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2009 DIGILAW 326 (KER)

Sasidharan v. Election Commission Of India

2009-03-31

KURIAN JOSEPH, S.R.BRAHMBHATT

body2009
JUDGMENT S. R. Bannurmath, C. J. 1. This Public Interest Litigation is filed. (a) to declare that the entries in the records maintained by the 5th respondent in regard to register in SSLC Book No. 321426 can alone be depended upon to decide the caste status of Shri J. Moniyan, S/o. Smt. Rosily, baptised in the Malankara Catholic Church, Ayirooppara, who is now describing himself as Kodikunnel Suresh, a member of the Scheduled Caste. (b) to issue a writ of mandamus to the second respondent, Returning Officer, not to accept any entries other than the entries made in the SSLC Book to determine the claim of the 5th respondent, if made, as a member of the Scheduled Caste along with his nomination paper; and (c) to issue a writ of mandamus to the Kerala Institute for Research, Training and Development Studies of Scheduled Castes and Scheduled Tribes (KIRTADS) to immediately conduct an enquiry into the false claim made by the 5th respondent as member of the Scheduled Caste and cancel all certificates, if any, declaring him as a member of the Scheduled Caste, as they have been obtained fraudulently.It is alleged that the petitioner is a Christian but is desirous of contesting the parliamentary election, particularly from Mavelikkara Parliamentary Constituency, one of the Constituencies reserved for Scheduled Caste candidates. According to the petitioner, the 5th respondent Kodikunnel Suresh is a Christian by birth, having been born as such to one Smt. Rosily, on 04/06/1962, his name at the time of baptism was Shri J. Moniyan and he was baptized in the Malankara Catholic Church, Ayirooppara. In the school records he is described as Christian Cheramar, which is admittedly not one of the Scheduled Castes. Even the SSLC records of L.V.H.S., Pothenkodu, would show that the 5th respondent is a Christian. However, according to the petitioner, the 5th respondent though not converted himself into Pulaya or Cheramar or became a Hindu by any process of law, due to his tremendous influence and deceitful means, has managed to obtain a certificate from the Tahsildar, Nedumangad, suppressing his real caste and describing himself as Hindu Cheramar. According to the petitioner, there is no caste called Hindu Cheramar or Christian Cheramar and the only community described as one of Scheduled Caste in the State of Kerala is Cheramar/Pulaya. According to the petitioner, there is no caste called Hindu Cheramar or Christian Cheramar and the only community described as one of Scheduled Caste in the State of Kerala is Cheramar/Pulaya. The allegations are that, on the basis of the false certificate issued by the 5th respondent, he has not only committed an offence under Section 177 of Indian Penal Code, but he has also tried to hoodwink the electoral officers and had contested elections in the past to the Parliamentary Constituencies in the reserved category producing false certificate. It is stated that, again on the basis of the said certificate, he is intending to contest as a member of the Scheduled Caste in the present parliamentary election to be held on 16/04/2009. Hence, as the 5th respondent does not belong to the Scheduled Caste and being a Christian by birth, the aforesaid writs are prayed for. 2. The learned Senior Counsel appearing for the petitioner taking us through the Kerala (Scheduled Caste and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 and the three decisions of the Honourable Supreme Court in the case of Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju and Others, 2006 (1) SCC 212 , Desh Raj v. Bodh Raj, 2008 (2) SCC 186 and Punit Rai v. Dinesh Chaudhary, 2003 (8) SCC 204 , vehemently contended that as per the norms and the law and facts, the 5th respondent being a born Christian and without conversion, which is also impermissible, is claiming the Scheduled Caste status, which is illegal and hence, he should not be permitted to contest the elections on the basis of the said false certificate. 3. The first respondent has filed a statement of objections and respondents 2 to 4 are represented by the learned Government Pleader. It is contended on behalf of the respondents that the facts alleged by the petitioner are all disputed questions of fact and the present writ petition is not maintainable, as there is a proper and adequate remedy provided under the provisions of the Representation of the People Act, 1951. 4. After hearing both the counsels in length, in our view, we need not go into the details of the facts as to whether the 5th respondent belongs to Scheduled Caste or whether as per the petitioner, played fraud and obtained the status of Scheduled Caste or not, etc. 4. After hearing both the counsels in length, in our view, we need not go into the details of the facts as to whether the 5th respondent belongs to Scheduled Caste or whether as per the petitioner, played fraud and obtained the status of Scheduled Caste or not, etc. and also as to whether he is entitled or not entitled to contest the elections, as these are all questions of facts. Admittedly and undisputedly, as per the calender of events, the scrutiny of nominations is yet to take place. Under Section 36 of the Representation of the People Act, 1951, at the time of scrutiny of nominations, it is mandatory for the Returning Officer to examine the nomination papers and decide all objections which may be made to any nomination, and may, on such objection or on his own motion, after summary enquiry, if any, as he thinks necessary, reject or accept the nomination paper. Under the Representation of the People Act, the Returning Officer acts independently in deciding the validity or otherwise of nomination paper. He is not bound by any directions or instructions of any of his superiors including the Election Commission and no such instruction can be issued to him in performance of his quasi judicial functions. As such, if there is any dispute regarding the caste to which the 5th respondent belongs, it is open to the contesting candidates to object to the same on the grounds now raised in the petition and it is for the Returning Officer to consider the same as per Section 36 of the Representation of the People Act and hence, we do not think it proper to exercise the extra­ordinary jurisdiction of writ under Article 226 of the Constitution of India, to decide the questions of facts raised by the petitioner herein. As such, we find, there is no merit in the writ petition and the same is, hence, dismissed.