IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 CRP.No. 834 of 2007() --------------------- OPEA.94/2007 of DISTRICT COURT, KOTTAYAM OPEL.1/2005 of MUNSIFF COURT, CHANGANACHERRY .................... REVN. PETITIONER(S)/APPELLANT/1ST CR.PETITIONER: ------------------------------------------------ A.K.MINI @ MINIPODIYAN, D/O.PODIYAN, AGED 27, RESIDING AT KATHAKAPPALLIYIL, ADAMATTOM BHAGOM, VADAKARA KARA, VELLAVOOR VILLAGE, CHANGANASSERY TALUK. BY ADV. SRI.S.SREEKUMAR SRI.S.VAIDYANATHAN RESPONDENT(S)/RESPONDENTS/PETITIONER & 2ND CR.PETITIONER: --------------------------------------------------------- 1. JWALA SAJIKUMAR @ LIJU SAJIKUMAR, W/O.A.K.SAJI KUMAR, AGED 27, RESIDING AT ANCHANIYIL HOUSE, CHUVATTADI BHAGOM, VADAKARA KARA VELLAVOOR VILLAGE, CHANGANASSERY TALUK. 2. AJITHA SURESH, W/O.SURESH, AGED 33, RESIDING AT MYLATHUPARA, MOONGANI BHAGAM, MANIMALA KARA, VELLAVOOR VILLAGE, CHANGANACHERRY TALUK. ADV. SRI.LIJI.J.VADAKEDOM FOR R1 SRI.K.T.SHYAMKUMAR FOR R2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/08/2009 ALONG WITH CRP NO.252 OF 2008, THE COURT ON 22/02/2010 PASSED THE FOLLOWING: ORDER IN I.A.NO.2283/07 IN CRP.NO.834/07 DISMISSED. 22.2.2010 S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE C.R. S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.834 OF 2007 & C.R.P.NO.252 OF 2008 () ----------------------------------- Dated this the 22nd day of February, 2010 O R D E R A short, but, interesting question arise in common for consideration in these revisions, both filed by the returned candidates whose election as members to the Panchayat was impeached. Both of them were elected from reserved constituencies earmarked for Scheduled Caste. Election of the revision petitioner in C.R.P.No.834 of 2007 was impeached on the ground she belonged to the Scheduled Tribe and that of the revision petitioner in C.R.P.No.252 of 2008 contending that he is a converted Christian, and thus, disqualified. Both of them are incompetent and not qualified to contest from the reserved constituencies for Scheduled Caste was the challenge in the respective election petitions. 2. The question posed for determination is whether the C.R.P.NO.834 OF 2007 & C.R.P.NO.252 OF 2008 2 civil court, even when it is competent to try an election petition as empowered under Section 88 of the Kerala Panchayat Raj Act, 1994, for short, the 'Panchayat Raj Act', has jurisdiction to examine the disqualification imputed over the community of a candidate when his claim as a member of Scheduled caste/tribe is supported by a certificate issued under the provisions of the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of issue of Community Certificates Act, 1996 (Act 11 of 1996), for short, the K(SC & ST)RICC Act and the Kerala (Scheduled Caste and Scheduled Tribes) Regulation of issue of Community Certificates Rules, 2002, for short the K(SC & ST)RICC Rules, 2002. Since the K (SC & ST)RICC Act and K(SC & ST)RICC Rules provide for a mechanism to examine the genuineness of a certificate issued in relation to Scheduled Castes and Scheduled Tribes and Section 24 of the Act oust the jurisdiction of the civil court in respect of any order passed by any officer or authority under the Act, it cannot examine even in an election petition disqualification imputed against the election of the returned candidate as not being a member of the Scheduled Caste or C.R.P.NO.834 OF 2007 & C.R.P.NO.252 OF 2008 3 Scheduled Tribe is the challenge canvassed in these revisions. Shorn of all paraphernalia, the bare facts giving rise to these revisions can be summed up hereunder: (i) C.R.P.No.834 of 2007 is filed by the 1st respondent in O.P.(Ele).No.1 of 2005 on the file of the Munsiff Court, Changanacherry. She was the returned candidate from Ward No.6 of Vellavoor Grama Panchayat in which the petitioner and the 2nd respondent in the O.P. were other contesting candidates. Ward No.6 of Vellavoor Grama Panchayat is a reserved constituency for Scheduled Castes. The 1st respondent (revision petitioner) who contested and got elected from that Ward is a member of Hindu Malavedan Community included in the list of the Schedule Tribe and not a member of the Scheduled Caste was the case canvassed to impeach her election as the returned candidate from the reserved constituency for Scheduled Castes. Disqualification imputed against the revision petitioner that she is not a member of the Schedule Caste, and thus, her election from the C.R.P.NO.834 OF 2007 & C.R.P.NO.252 OF 2008 4 constituency reserved for such caste, after trial, was upheld by the learned Munsiff, and later, confirmed in appeal by the learned District Judge, Kottayam. Her election as the returned candidate from Ward No.6 of Vellavoor Grama Panchayat was declared void by the learned Munsiff, and in appeal, it was confirmed by the learned District Judge. Propriety and correctness of the decisions so rendered concurrently by the two inferior courts is challenged in the revision by the returned candidate. (ii). C.R.P.No.252 of 2008 is preferred by the 1st respondent in O.P.No.1 of 2005 on the file of the Munsiff Court, Kanjirappally. He was the returned candidate from Ward No.5 of Manimala Panchayat, a constituency reserved for Scheduled Castes. His election was impeached by the petitioner in the O.P. alleging that he is not a member of the Scheduled Caste and that he and his family members had converted to Christianity five years before the election and they are members of the Roman Catholic fraction of the Christian Religion. The 2nd respondent in the O.P. was C.R.P.NO.834 OF 2007 & C.R.P.NO.252 OF 2008 5 another candidate who contested the election with the petitioner and the 1st respondent. The learned Munsiff, after examining the materials produced found that the 1st respondent in the O.P., the returned candidate/the revision petitioner was a converted Christian and disqualified to contest the election from a constituency reserved for the Schedule Castes. His election as the returned candidate was declared void. Challenge raised against the decision by the 1st respondent in the O.P. (revision petitioner) by way of an appeal was turned down by the learned District Judge Kottayam concurring with the findings entered by the learned Munsiff and upholding the declaration that his election as the returned candidate is void. The 1st respondent in the O.P., the returned candidate has filed the revision challenging the propriety and correctness of the concurrent decision rendered by both the courts below declaring his election as void. 3. Adv.Sri.S.Sreekumar appeared for the revision petitioner in C.R.P.No.834 of 2007 and Adv.Sri.Joice George, for the revision petitioner in C.R.P.No.252 of 2008. C.R.P.NO.834 OF 2007 & C.R.P.NO.252 OF 2008 6 Adv.Sri.Liji J. Vadakedom appeared for the 1st respondent and Adv.Sri.K.T.Shyamkumar for the 2nd respondent in C.R.P.No.834 of 2007 and Adv.Sri.Mathew John for the 1st respondent in C.R.P.No.252 of 2008. 4. The civil court as the Election Tribunal notified and empowered under Section 88 of the Panchayat Raj Act, has no competency or jurisdiction to adjudicate any challenge relating to the status of the returned candidate as a member of the Scheduled Castes/Scheduled Tribes, when his claim thereof had been established by the production of a certificate issued by the competent authority under the K(SC & ST)RICC Act and K(SC & ST)RICC Rules, is the common ground canvassed by the learned counsel appearing for the respective revision petitioners/the returned candidates to impeach and assail the concurrent decisions of both the courts below declaring the election of the revisions petitioners/returned candidates as void. A number of authorities has been pressed into service by the respective counsel to contend that the Election Tribunal has no jurisdiction to decide and adjudicate C.R.P.NO.834 OF 2007 & C.R.P.NO.252 OF 2008 7 upon a dispute over the status of a returned candidate as a member of Scheduled Caste or Scheduled Tribe, where his claim over such caste/tribe is established by the production of a certificate issued under the K(SC & ST)RICC Act and K(SC & ST)RICC Rules. My attention has been invited to Kumari Madhuri Patil and another v. Addl. Commissioner of Tribal Development and others ((1994) 6 SCC 241), Director of Tribal Welfare, Government of A.P. v. Laveti Giri and another ((1995) 4 SCC 32) to highlight that the above Act has been brought into force on the directions issued by the apex court in the above two cases. Reliance is also placed on State of Tamil Nadu & others v. A.Guruswami ((1997) 3 SCC 542) and Kutty Nanu v. State of Kerala (2002 (1) KLT 367) to contend that the jurisdiction of the civil court to decide the status of a person, whether he belongs to the community of Scheduled Caste or Scheduled Tribe, is impliedly barred under Section 9 of the Code of Civil Procedure, and so much so, it has no jurisdiction to adjudicate upon that question. Inviting my attention to Gayathri Lekshmi Bapurao Nagpure v. State of Maharashtra & C.R.P.NO.834 OF 2007 & C.R.P.NO.252 OF 2008 8 others ((1996) 3 SCC 685) it was contended by the learned counsel for the revision petitioners that greater care and caution is required in deciding any issue relating to the validity of a caste certificate issued under the K(SC & ST)RICC Act, and it can be gone into only by the statutory authorities under that Act. The Election Tribunal under the Panchayat Raj Act, notified civil court dealing with an election petition, is incompetent to decide a dispute over a caste certificate issued under the K(SC & ST)RICC Act and K(SC & ST)RICC Rules or the cancellation of such caste certificate, and any certificate issued thereunder is valid until it is cancelled under the provisions of the above Act is the submission of the learned counsel. Reliance is placed on Prakash v. State of Kerala (2002 (2) KLT 580) to contend that the caste certificate issued under the above Act is valid and binding including the Government and it can be cancelled only under the provisions and in the manner provided under the Act complying with the procedural requirements necessary for doing so. Where a Statute has been enacted empowering an authority constituted thereunder to decide any question relating to the C.R.P.NO.834 OF 2007 & C.R.P.NO.252 OF 2008 9 status of a person as a member of the Scheduled Caste or Scheduled Tribe, as under the K(SC & ST)RICC Act, it is submission of the counsel, a dispute regarding the status of a returned candidate as a member of such caste/tribe, when it is supported by a certificate issued by the competent authority under the above Act is outside the province of the Election Tribunal. Reliance is placed on Bhagawathi Prasad Dixit Ghorewala v. Rajeev Gandhi ((1986) 4 SCC 78) to contend that the caste question as to whether an elected member of the Panchayat is a member of the Scheduled Caste or Scheduled Tribe is not a dispute which could be entertained by the Election Tribunal, notified civil court, but only before the authority under the K(SC & ST)RICC Act. Banking upon the decision rendered by the apex court in Thampanoor Ravi v. Charupara Ravi and others ((1999) 8 SCC 74), it is contended where an authority has been constituted under the K(SC & ST)RICC Act, jurisdiction to decide a dispute relating to the caste question as to whether the elected member belongs to a Scheduled Caste or Scheduled Tribe even if it is canvassed as a disqualification in an election petition can be C.R.P.NO.834 OF 2007 & C.R.P.NO.252 OF 2008 10 decided only by that authority and not by the Election Tribunal. Both the courts below in having decided the disputed caste question had overstepped and transgressed the limits of their jurisdiction, is the challenge canvassed in the revisions for setting aside the concurrent decisions declaring election of the respective revision petitioners/the returned candidates as void. Per contra, the learned counsel appearing for the respective respondents/petitioners in the election petitions, contended that the Election Tribunal, civil court empowered under Section 88 of the Kerala Panchayat Raj Act, which alone can go into the election disputes, is fully competent to decide the caste question when it is raised as a ground imputing disqualification of the returned candidate, to set aside his election. Challenge raised on the basis of the K(SC & ST)RICC Act and K(SC & ST)RICC Rules by the revision petitioners is resisted by the counsel submitting that the provisions of the Act have applicability in determining the disputes on the claim of caste as a member of the Scheduled Castes or Scheduled Tribes for admission to educational institutions or appointment to public services and not in the C.R.P.NO.834 OF 2007 & C.R.P.NO.252 OF 2008 11 case of determining the election disputes. Placing emphasis on the provisions of the Act and distinguishing the decisions rendered thereunder it is contended that the Election Tribunal constituted under the Panchayat Raj Act is the sole authority which can go into a dispute relating to the caste of an elected member when an election to a reserved constituency for Scheduled Caste and Scheduled Tribe is impeached on the ground of his disqualification as not a member of that Caste/Tribe. Neither the K(SC & ST)RICC Act nor the K(SC & ST)RICC Rules, according to the counsel, in any way place any embargo or interdict or preclude or prohibit the Election Tribunal from examining and entering a decision over a dispute as to whether the returned candidate is a member of the Scheduled Caste or Scheduled Tribe when his election is impeached on the ground of such disqualification, and failure of the Election Tribunal to do so, it is contended, will tantamount to abdication of the jurisdiction vested in it to determine that ground of disqualification which had been raised in the election petition to impeach the election of the returned candidate. C.R.P.NO.834 OF 2007 & C.R.P.NO.252 OF 2008 12 5. To appreciate the challenge canvassed that the Election Tribunal constituted under the Kerala Panchayat Raj Act, in view of the provisions under the K(SC & ST)RICC Act and K(SC & ST)RICC Rules, has no jurisdiction to decide the caste question relating to Scheduled Caste/Scheduled Tribe even when it is canvassed as a ground to impeach the election of the returned candidate, it is necessary to examine some of the relevant provisions of the Panchayat Raj Act and also K(SC & ST)RICC Act and K(SC & ST)RICC Rules. Disputes regarding election to a Panchayat are covered by Chapter X of the Panchayat Raj Act. An election of a returned candidate can be questioned only by way of an election petition as provided under the Act. Section 88 of the Panchayat Raj Act specify the court which has jurisdiction to try an election petition in the case of an election to a Village Panchayat; and, it is the Munsiff Court over the place in which the headquarters of the Panchayat is located is the competent court having jurisdiction to try the petition. Such an election petition can be filed within the time limit fixed only by an C.R.P.NO.834 OF 2007 & C.R.P.NO.252 OF 2008 13 elector or by a contestant to the election from the constituency, as per the provisions under Section 89 (1) of the Act. Section 102 of the Panchayat Raj Act specify the ground on which an election of the returned candidate can be impeached by filing an election petition before the court having jurisdiction. Sub section (1) (a) of Section 102 of the Panchayat Raj Act states that an election of a returned candidate can be impeached on the ground that on the date of his election, he was not qualified or was disqualified, to be chosen to fill the seat under the Act. There is no challenge that the election petitions giving rise to these revisions have not been presented before the competent court having jurisdiction to entertain such petitions nor that the grounds canvassed for declaring the election of the returned candidates do not come within the ambit of Section 102 of the Panchayat Raj Act. Election petitions have been presented before the respective civil court which has jurisdiction to entertain such petition and the grounds canvassed are also such on which election of the returned candidate can be impeached by presenting such a petition goes a long away in resolving C.R.P.NO.834 OF 2007 & C.R.P.NO.252 OF 2008 14 the challenge in the revisions that the Civil Court (Election Tribunal) lack jurisdiction to decide a caste question, the adjudication of which is stated to be falling within the ambit of the K(SC & ST)RICC Act and K(SC & ST)RICC Rules. 6. A perusal of K(SC & ST)RICC Act and K(SC & ST) RICC Rules spell out that it has been brought into force to regulate the issue of community certificate to members of the Scheduled Caste and Scheduled Tribe. The above Act, K(SC & ST)RICC Act has been brought into force pursuant to directions given by the apex court in Kumari Madhuri Patil and another v. Addl.Commissioner of Tribal Development and others ((1994) 6 SCC 241) and Director of Tribal Welfare, Government of A.P. v. Laveti Giri and another ((1995) 4 SCC 32). The apex court noticing that the benefits reserved for the Scheduled Caste and Scheduled Tribe are claimed and exploited by others fabricating false records issued guidelines and directions for bringing about a uniform legislation prescribing penal consequences as well against the persons who take advantage C.R.P.NO.834 OF 2007 & C.R.P.NO.252 OF 2008 15 of the benefits of the marginalised sections on false certificates. The above two decisions at the most only explain the backdrop how the K(SC & ST)RICC Act came into force and is not of any assistance in resolving the present question. 7. Much emphasis has been laid by the learned counsel appearing for the revision petitioner in C.R.P.No.834 of 2007, Adv.S.Sreekumar, on Section 3 of the K(SC & ST)RICC Act to contend that the mechanism provided under the Act has to be resorted to even when a challenge over the qualification of the returned candidate impeaching his claim as a member of Scheduled caste/tribe is canvassed before the election petition pending before the court. The Malayalam translation relating to Section 3 of the Act was also read over to me by the counsel, wherein it is expressed with more clarity that proof of a person as a member of a Scheduled Caste and Scheduled Tribe as covered under Section 3 is applicable in the case of contesting to a reserved constituency in a local authority. C.R.P.NO.834 OF 2007 & C.R.P.NO.252 OF 2008 16 8. Section 3 of the K(SC & ST)RICC Act reads thus: “Notwithstanding anything contained in any other law for the time being in force, any person belonging to any of the Scheduled Castes of the Scheduled Tribes claiming any benefit, concession, protection, exemption or reservation provided to such Castes or Tribes either for any appointment in public services or for admission into educational institutions, exclusively intended for members of the Scheduled Castes or Scheduled Tribes, or for contesting for the seats reserved for them in any educational institution in the State or outside the State for the students of the State or local authority or co- operative institution, shall prove his claim by a Certificate issued for the purpose under this Act, by the competent authority, in the prescribed manner.” Section 3 of the Act mandates that any person belonging to the Scheduled Caste or Scheduled Tribe to claim any benefit, concession, protection, exemption or reservation provided to such caste or tribe for any appointment in public services or for admission in the educational institutions, exclusively for such castes or tribes, or for contesting the reserved seats for C.R.P.NO.834 OF 2007 & C.R.P.NO.252 OF 2008 17 them in any educational institutions or local authority or cooperative institution shall prove his claim by a certificate issued by the competent authority under the Act. The certificate issued under Section 3 of the Act by the competent authority in the prescribed manner is mandated to prove the status of the candidate claiming to be Scheduled Caste or Scheduled Tribe to contest the election from a reserved constituency has been highlighted by the counsel for the revision petitioners to contend that the certificate has to be treated as conclusive and final unless and until it is cancelled by due process of law as envisaged under the Act. Before considering the merit of the challenge canvassed under Section 3 of the Act, other provisions in that Act which has some bearing over the question presented has to be adverted to. The scheme of the K(SC & ST)RICC Act provide for issue of certificate by the competent authority (Section 5), constitution of Screening Committee for verification of Community Certificate (Section 6), further verification by the Competent authority or the head of the educational institution at the time of initial appointment, selection or admission or at C.R.P.NO.834 OF 2007 & C.R.P.NO.252 OF 2008 18 any stage thereafter (Section 7), constitution of Scrutiny Committee for verification of the Community Certificates (Section 8), and enquiry by the Expert Agency (Section 9) to examine and give a final conclusive opinion over the claim of an individual or group of individuals that he or they belong to Scheduled Caste or Scheduled Tribe. The report of the expert agency has to be treated as conclusive proof for and against the claim of a person as a member of the Scheduled Caste or Scheduled Tribe. The Act provide for an appeal and a review against any order passed by the competent authority on an application submitted for issue of a certificate under the Act and also an order passed by the Scrutiny Committee constituted under Section 11 of the Act. Power of revision is conferred on the Government (Section 13) to examine the record relating to any decision or order passed by the competent authority or any of the committees constituted under the Act. Section 24 of the Act bars the jurisdiction of the Civil court from examining the correctness of any order passed by any officer or authority under the Act and from granting any stay or injunction in respect of any action taken C.R.P.NO.834 OF 2007 & C.R.P.NO.252 OF 2008 19 under the Act. 9. The edifice of the challenge as to the ouster of jurisdiction of the civil court, which is otherwise competent to try an election petition as the notified court under Section 88 (2) of the Panchayat Raj Act, is built upon the mechanism provided under the K(SC & ST)RICC Act to examine the correctness and validity of a community certificate issued under that Act and Rules and the bar of jurisdiction of the civil court as covered by Section 24 of the above Act. A close scrutiny of the provisions of the K(SC & ST)RICC Act and K(SC & ST)RICC Rules spell out that there is no merit in the challenge set up that the court notified for, which is competent to try an election petition, has no jurisdiction to go into the disqualification imputed against the returned candidate as to his status as a member of Scheduled caste/tribe when his claim thereof is supported by a certificate issued under the Act. 10. Section 3 of the K(SC & ST)RICC Act provides for C.R.P.NO.834 OF 2007 & C.R.P.NO.252 OF 2008 20 issue of community certificate to establish the claim of a person as a Scheduled Caste or Scheduled Tribe to contest an election to a local authority as similar to establish a claim for admission to an educational institution or appointment to public services or co-operative institution is at the most only an incidence of proof as to the status of a person as coming under the community of Scheduled Caste or Scheduled Tribe. It is interesting to note that Section 6, which deals with the Screening Committee to be constituted for verification of the community certificate issued under the Act is empowered to scrutinise the validity or correctness of the certificate issued to the members of the Scheduled Caste and Scheduled Tribe for the admission of the seats reserved for such community in educational institutions, but not of certificates issued in relation to appointment to public services or for contesting election to a local authority. Section 7 of the K(SC & ST)RICC Act states that the production of the community certificate issued by the competent authority under the Act in no way preclude the appointing