Case: Kurapati Maria Das Vs. M/S. Dr. Ambedkar Seva Samajan

There is yet another distinguishing feature in case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] . In that case there is a clear finding that the elected person therein played a fraud with the Constitution inasmuch as that he knew that his name was not in Electoral Roll of that constituency and he impersonated for some other person taking the advantage of the similarity of names. The appellant herein asserts on the basis of his Caste Certificate that he still belongs to Scheduled Caste. We are, therefore, of the clear opinion that the case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] is not applicable to the present case and the High Court erred in relying upon that decision. 24. Once it is held that the aforementioned case was of no help to the respondents, the only other necessary inference which emerges is that the bar under Article 243 ZG would spring in action. 25. Shri Gupta, however, pointed out that it was specifically proved that the appellant was a Christian and as such he did not belong to the Mala caste which was a Scheduled Caste. Now there is no dispute that the appellant was given two caste certificates within the definition of Section 2 (b) of the 1993 Act. There is also no dispute that these community certificates were obtained by the appellant and they were valid and genuine certificates. It is also an admitted position that the certificates were never cancelled under Section 5 of the 1993 Act. The said certificates could be cancelled only under Section 5 after a full-fledged enquiry by the authority named in that Section. Under such circumstances we do not think that the High Court could have decided that question of fact which was very seriously disputed by the appellant. It seems that in this case, the High Court has gone out of its way, firstly in relying on the Xerox copies of the service records of the appellants and then at the appellate stage, in calling the files of the Electricity Board where the appellant was working. This amounted to a roving enquiry into the caste of the appellant which was certainly not permissible in writ jurisdiction and also in the wake of Section 5 of 1993 Act. 26. Again merely because the appellant was described as being a Christian in the service records did not mean that the appellant was actually a person professing Christian religion. It was not after all known as to who had given those details and further as to whether the details, in reality, were truthful or not. It would be unneccesary for us to go into the aspect whether the petitioner in reality is a Christian for the simple reason that this issue was never raised at the time of his election. Again the appellant still holds the valid caste certificates in his favour declaring him to be belonging to Scheduled Caste and further the appellants status as the Scheduled Caste was never cancelled before the authority under the 1993 Act which alone had the jurisdiction to do the same. If it was not for High Court to enter into the disputed question of fact regarding the caste status of the appellant, the findings recorded by it on that question would lose all its relevance and importance. There is one more peculiar fact which we must note. It has come in the judgment of the learned Single Judge as also in the Division Bench that the appellant converted to Christianity. Now it was nobodys case that the petitioner ever was converted nor was it anybodys case as to when such conversion took place, if at all it took place. All the observations by the learned Single Judge regarding the conversion of the appellant to Christianity are, therefore, without any basis, more particularly, in view of the strong denial by the appellant that he never converted to Christianity. Again the question whether the petitioner loses his status as Scheduled Caste because of his conversion is also not free from doubt in view of a few pronouncements of this Court on this issue. However, we will not go into that question as it is not necessary for us to go into that question in the facts of this case. 27. Shri Gupta then contended that there was no opportunity for the writ petitioners to challenge the caste as the application filed by them for cancellation of the Caste before the authority under 1993 Act was never decided. It was pointed out that such application was filed on 18.04.2006 and various representations were also made to various authorities. We are not concerned with the various representations made to any other authority. However, if an application under Section 5 of the 1993 Act was made to the proper authority it was bound to be enquired into. However, taking the advantage that it was not decided for four months, the writ petitioners could not have rushed with the writ petition. At the most, the writ petitioners could have asked for a direction to the said authority for deciding that application one way or the other. That was not done. If that application had been decided upon and the concerned authority had found that the appellants caste certificate itself was false and fraudulent and he did not genuinely belong to the Scheduled Caste then that itself could have been enough for the appellant to lose the post that he was elected to. In our opinion, it is necessary to get examined the Caste certificates of all the elected persons from reserved constituencies within a time frame to avoid such controversies. 28. Be that as it may, in our opinion, the High Court clearly erred firstly, entertaining the writ petition, secondly in going into the disputed question of fact regarding the caste status, thirdly, in holding that the appellant did not belong to the Scheduled Caste and fourthly, in allowing the writ petition.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]20. We are afraid, we are not in position to agree with the contention that the case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] is applicable to the present situation. Here the appellant had very specifically asserted in his counter affidavit that he did not belong to the Christian religion and that he further asserted that he was a person belonging to the Scheduled Caste. Therefore, the Caste status of the appellant was a disputed question of fact depending upon the evidence. Such was not the case in K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] . Every case is an authority for what is actually decided in that. We do not find any general proposition that even where there is a specific remedy of filing an Election Petition and even when there is a disputed question of fact regarding the caste of a person who has been elected from the reserved constituency still remedy of writ petition under Article 226 would be available21. Again as we have stated earlier, there was no dispute and no challenge to the findings of the High Court that K. Venkatachalam, the petitioner in case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] was not a Legislator in electoral roll of the constituency for the general elections for December, 1984 and he blatantly and fraudulently represented himself to be a Legislator of the constituency using the similarity with the name of another person. The situation in the present case is, however, entirely different in the sense that here the petitioner very seriously asserted that firstly, he was not a Christian and, secondly, that he belongs to the Scheduled Caste22. Shri Gupta, however, further argued that in the present case what was prayed for was a writ of quo warranto and in fact the election of the appellant was not called in question. It was argued that since the writ petitioners came to know about the appellant not belonging to the Scheduled Caste and since the post of the Chairperson was reserved only for the Scheduled caste, therefore, the High Court was justified in entering into that question as to whether he really belongs to Scheduled Caste. In short, the learned counsel argued that independent of the election of the appellant as a Ward member or as a Chairperson, his caste itself was questioned in the writ petition only with the objective to see whether he could continue as the Chairperson. This argument is clearly incorrect as the continuance of the appellant as the Chairperson was not dependent upon something which was posterior to the appellants election as Chairperson. It is not as if some event had taken place after the election of the appellant which created a disqualification in appellant to continue as the Chairperson. The continuance of the appellant as the Chairperson depended directly on his election, firstly, as a Ward member and secondly as the Chairperson which election was available only to the person belonging to the Scheduled Caste. It is an admitted position that Ward No.8 was reserved for Scheduled Cast and so also the Post of Chairperson. Therefore, though indirectly worded, what was in challenge in reality was the validity of the election of the appellant. According to the writ petitioners, firstly the appellant could not have been elected as a Ward member nor could he be elected as the Chairperson as he did not belong to the Scheduled Caste. We can understand the eventuality where a person who is elected as a Scheduled Caste candidate, renounces his caste after the elections by conversion to some other religion. Then a valid writ petition for quo warranto could certainly lie because then it is not the election of such person which would be in challenge but his subsequently continuing in his capacity as a person belonging to a particular caste. The Counsel for the appellant rightly urged that the question of caste and the election are so inextricably connected that they cannot be separated. Therefore, when the writ petitioners challenged the continuation of the appellant on the ground of his not belonging to a particular caste what they in fact challenged is the validity of the election of the appellant, though apparently the petition is for the writ of quo warranto23. There is yet another distinguishing feature in case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] . In that case there is a clear finding that the elected person therein played a fraud with the Constitution inasmuch as that he knew that his name was not in Electoral Roll of that constituency and he impersonated for some other person taking the advantage of the similarity of names. The appellant herein asserts on the basis of his Caste Certificate that he still belongs to Scheduled Caste. We are, therefore, of the clear opinion that the case of K. Venkatachalam v. A Swamickan & Anr. [1999 (4) SCC 526] is not applicable to the present case and the High Court erred in relying upon that decision24. Once it is held that the aforementioned case was of no help to the respondents, the only other necessary inference which emerges is that the bar under Article 243 ZG would spring in actionThere is also no dispute that these community certificates were obtained by the appellant and they were valid and genuine certificates. It is also an admitted position that the certificates were never cancelled under Section 5 of the 1993 Act. The said certificates could be cancelled only under Section 5 after ad enquiry by the authority named in that Section. Under such circumstances we do not think that the High Court could have decided that question of fact which was very seriously disputed by the appellant. It seems that in this case, the High Court has gone out of its way, firstly in relying on the Xerox copies of the service records of the appellants and then at the appellate stage, in calling the files of the Electricity Board where the appellant was working. This amounted to a roving enquiry into the caste of the appellant which was certainly not permissible in writ jurisdiction and also in the wake of Section 5 of 1993 Act26. Again merely because the appellant was described as being a Christian in the service records did not mean that the appellant was actually a person professing Christian religion. It was not after all known as to who had given those details and further as to whether the details, in reality, were truthful or not. It would be unneccesary for us to go into the aspect whether the petitioner in reality is a Christian for the simple reason that this issue was never raised at the time of his election. Again the appellant still holds the valid caste certificates in his favour declaring him to be belonging to Scheduled Caste and further the appellants status as the Scheduled Caste was never cancelled before the authority under the 1993 Act which alone had the jurisdiction to do the same. If it was not for High Court to enter into the disputed question of fact regarding the caste status of the appellant, the findings recorded by it on that question would lose all its relevance and importance. There is one more peculiar fact which we must note. It has come in the judgment of the learned Single Judge as also in the Division Bench that the appellant converted to Christianity. Now it was nobodys case that the petitioner ever was converted nor was it anybodys case as to when such conversion took place, if at all it took place. All the observations by the learned Single Judge regarding the conversion of the appellant to Christianity are, therefore, without any basis, more particularly, in view of the strong denial by the appellant that he never converted to Christianity. Again the question whether the petitioner loses his status as Scheduled Caste because of his conversion is also not free from doubt in view of a few pronouncements of this Court on this issue. However, we will not go into that question as it is not necessary for us to go into that question in the facts of this caseIt was pointed out that such application was filed on 18.04.2006 and various representations were also made to various authorities. We are not concerned with the various representations made to any other authority. However, if an application under Section 5 of the 1993 Act was made to the proper authority it was bound to be enquired into. However, taking the advantage that it was not decided for four months, the writ petitioners could not have rushed with the writ petition. At the most, the writ petitioners could have asked for a direction to the said authority for deciding that application one way or the other. That was not done. If that application had been decided upon and the concerned authority had found that the appellants caste certificate itself was false and fraudulent and he did not genuinely belong to the Scheduled Caste then that itself could have been enough for the appellant to lose the post that he was elected to. In our opinion, it is necessary to get examined the Caste certificates of all the elected persons from reserved constituencies within a time frame to avoid such controversies28. Be that as it may, in our opinion, the High Court clearly erred firstly, entertaining the writ petition, secondly in going into the disputed question of fact regarding the caste status, thirdly, in holding that the appellant did not belong to the Scheduled Caste and fourthly, in allowing the writ petition