Kodikunnil Suresh @ J.Monian vs N.S.Saji Kumar Etc.Etc

2. The facts very briefly are that No.16 Mavelikkara Parliamentary Constituency is reserved for the Scheduled 2 Castes. Section 4(a) of the Act provides that a person shall not be qualified to be chosen to fill a seat in the House of the People unless in the case of a seat reserved for the Scheduled Castes in any State, he is a member of any of the Scheduled Castes, whether of that State or of any other State and is an elector for any Parliamentary Constituency.

For elections to the Mavelikkara reserved constituency in the year 2009, the appellant filed his nominations before the Returning Officer on 23.03.2009 declaring in the nomination papers that he belongs to the Hindu Cheramar Caste and filed alongwith the nomination papers a caste certificate dated 12.03.2009 issued by the Tehsildar, Nedumangad that the Caste Cheramar has been declared as a Scheduled Caste in relation to the State of Kerala in Entry 54 in Part VIII of the Schedule to the Constitution (Scheduled Castes) Order, 1950. Objections were filed before the Returning Officer contending that the appellant was not a member of the Scheduled Caste and instead he was a Christian. The Returning Officer after examining the nomination papers of the appellant rejected the objections and accepted the nomination papers of the appellant under 3 Section 36 of the Act. Polling in the constituency took place on 16.04.2009 and after counting, the result of the election was declared on 16.05.2009. The appellant secured 3,97,211 votes and the appellant was declared elected by a margin of 48,048 votes over the defeated candidate who secured 3,49,163 votes.

3. The election of the appellant was challenged by two voters of the Mavelikkara Parliamentary Constituency in Election Petition Nos. 3 of 2009 and 8 of 2009 and by the defeated candidate in Election Petition No. 7 of 2009. The ground of challenge in Election Petition Nos. 3 of 2009 and 8 of 2009 was that the appellant was a Christian and under the Constitution (Scheduled Castes) Order, 1950 only a Hindu can be a Scheduled Caste and not being a Scheduled Caste, he was not qualified to be chosen to fill a seat in the House of the People under Section 4(a) of the Act and accordingly his election was void under Section 100 (1) (a) of the Act. In Election Petition No. 7 of 2009 filed by the defeated candidate, besides the aforesaid grounds, an additional ground was taken that the nomination of the appellant was improperly accepted and that the election of 4 the appellant was void under Section 100(1)(d)(i) of the Act, inasmuch as the result of the election so far as it concerned the returned candidate had been materially affected by the improper acceptance of the nomination of the appellant.

The appellant pleaded in his written statements filed in the three cases that his father and mother were both Hindus, but due to their poverty they had availed various reliefs from Christian Missionaries and that is why his father was known as Joseph. His further case was that in 1978 he had undergone an expiatory ceremony and had reconverted himself to Hinduism and had also been accepted as a member of the Cheramar caste and he was therefore qualified to contest the election from the Mavelikkara Parliamentary Constituency reserved for Scheduled Castes.

4. The findings recorded by the High Court in the impugned order are that the appellant was born to 5 Christian parents and due to conversion to Christianity the parents of the appellant had lost their caste because Christianity did not admit any differentiation on the basis of castes. The High Court further held that when the appellant undertook the expiatory ceremony in 1978 to convert himself to Hinduism, he had not attained the age of discretion as he was under 18 years of age. The High Court, however, held that though the appellant married a Hindu and he professed Hindu religion from the time of his admission in the law college at Thiruvananthapuram, there was no acceptable evidence to prove that the appellant was accepted as a member of the Cheramar Caste after his re-

conversion to Hinduism. Relying on the decisions of this Court that without acceptance by the Scheduled Caste community after re-conversion, the reconvert does not get back to his original caste, held that the appellant after his re-conversion did not become a member of the Cheramar Caste and hence he was not qualified to contest from the Mavelikkara reserved constituency and his nomination was improperly accepted and his election was void.

Exhibit P-10 shows that the appellant was admitted to this School on 05.05.1975 into Standard VIII and his name was entered as Monian J. (Joseph) and mother's name was shown as Thakkamma T. and religion of the appellant was shown as Christian. The appellant left the School on 28.02.1978. Exhibit P-4 is his School Leaving Certificate issued by the Head Master, Laxmi Vilasom High School, Pothencode, in which the name of the appellant has been shown as Monian J. (Joseph) and his religion has been shown as Christian and the mother of the appellant is 11 shown as Thakkamma T. This School Leaving Certificate was issued after the appellant completed his Standard X in the School in 1977-78. This School Leaving Certificate has been produced by PW-1, N.S. Saji Kumar, and is the same as Exhibit R-2 produced by the appellant. The appellant in his evidence (affidavit filed before the High Court in Election Petition No.7 of 2009) has stated in para 5 that in Exhibits P-4, P-9 and P-10 and Exhibit R-2, his religion is shown as Christian, but he did not profess Christian religion at any point of time. In para 8 of the affidavit, he has stated that in Exhibit P9 his father's name is Joseph and his father was called `Joseph' by Christian Missionaries because his father was visiting Christian Missionaries to avail help and his father was actually Kunjan and continued to be a Hindu and his alleged conversion was only nominal. The appellant has explained in his cross-examination that when he was admitted in the School for the first time his father had gone for work and his friend Thomas had taken him to School and as his father was called by the Missionaries as `Joseph', his name was shown by Thomas as Joseph. The appellant has stated in his affidavit that he decided to get himself 12 converted to Hinduism in 1978 and got himself converted as a Hindu on 25.05.1978 and the Kerala Hindu Mission has issued a certificate (Exhibit R-10) in proof of such conversion and his name has been shown therein as Suresh J.

21. The Cheramar community and the Pulayan community, however, appear to be two distinct castes as per Entry 54 in Part VIII of the Schedule to the Constitution (Scheduled Castes) Order, 1950 as has been contended by Mr. Giri. From the written statements of the appellant and from his evidence, however, it appears that the appellant entertains a belief that the Cheramar caste and the Pulayan caste are one and the same caste. Perhaps, because of this belief he has married Bindu who belongs to the Pulayan caste. The fact, however, remains that the appellant has declared himself to be belonging to the Cheramar caste in his nomination form and there was no declaration by him that he belongs to the Pulayan caste. The Returning Officer relying on the certificate Ext. P-2 issued by the Tehsildar, Nedumangad dated 12.03.2009 had come to the conclusion that the appellant belongs to Cheramar caste and had accordingly accepted his nomination. The relevant findings of the Returning Officer in the proceedings dated 31.03.2009 (Ex.P-3) are quoted here:

23. In the result, we set aside the impugned order of the High Court and hold that the appellant was qualified under Section 4(a) of the Act to be chosen to fill the seat in the House of People from Mavelikkara Parliamentary Constituency reserved for the Scheduled Castes and that his nomination was not improperly accepted by the Returning Officer and accordingly his election was not void under Section 100 (1)(a) and 100 (1)(d)(i) of the Act. The appeals are allowed and the three Election Petitions of the respondents are dismissed. The appellant will be entitled to the amount deposited by the respondents under Section 117 of the Act as security deposit towards the costs. The substance of this decision will be intimated to the Election Commission and the Speaker of the House of the People in accordance with Section 116-C (2) of the Act.