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2011 (4) Supreme 19
SUPREME COURT OF INDIA
Altamas Kabir and A. K. Patnaik, JJ.
Kodikunnil Suresh @ J. Monian — Appellant
versus
N.S. Saji Kumar, Etc. Etc. — Respondents
Civil Appeal Nos. 6391-6393 of 2010
Decided on : 12-5-2011
(b) Indian Evidence Act, 1872 – Section 53 – Information furnished by the villagers about religion or caste of a person have probative value and can be considered by the Court – Appellant’s religion recorded in school records on the basis of information furnished by his father’s friend – Said friend not examined – No attempt made for correction of the religion for more than two decades – No error in High Court accepting the same. (Paras 8 and 9)
1988 (supp.) SCC 604; (2008) 2 SCC 186 – Relied upon
2010 (9) SCALE 145; Ranjana v. State of Maharashtra, delivered on 30.04.2009 – Distinguished
AIR 2001 Allahabad 109 – Distinguished impliedly
(c) Indian Evidence Act, 1872 – Section 53 r/w section 2(o), Children Act, 1960 – Determination whether the child had attained sufficient maturity to understand the religious significance and the social consequences of this decision to reconvert to the Hindu religion depends on facts of each case – Acceptance of the fact of reconversion depends upon the intention and conduct of the person concerned. (Para 12)
(2007) 11 SCC 75; (1970) 1 SCC 605; 1954 SCR 817 – Relied upon
AIR 1952 Madras 245; (1984) 2 SCC 91 – Distinguished
(d) Indian Evidence Act, 1872 – Section 53 – Reconversion – Appellant’s marriage by the caste rituals, his conduct and his election for four times from reserved constituency are all relevant circumstances showing acceptance of the Cheramar community – Findings of the High Court, therefore, that there was no acceptable evidence to prove that the appellant was accepted as a member of the Cheramar caste after his reconversion to Hinduism was contrary to the evidence on record. (Para 22)
(1969) 1 SCR 254 – Relied upon
(1976) 1 SCC 863; (2006) 1 SCC 212; (1984) 2 SCC 112; (1984) 2 SCC 91 – Distinguished
(e) Representation of the People Act, 1951 – Section 4(a) – Having been validly reconverted to Hinduism and accepted by the Cheramar community, appellant was qualified to contest the election from the reserved constituency. (Para 23)
Facts of the case:
1. No.16 Mavelikkara Parliamentary Constituency is reserved for the Scheduled Castes.
2. For elections to the Mavelikkara reserved constituency in the year 2009, the appellant filed his nominations declaring that he belongs to the Hindu Cheramar Caste and filed alongwith the nomination papers a caste certificate 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.
3. 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 rejected the objections and accepted the nomination papers of the appellant under section 36 of the Act.
4. The appellant was declared elected.
5. The election of the appellant was challenged by two voters of the Mavelikkara Parliamentary Constituency and by the defeated candidate.
6. High Court declared the election of the appellant void.
Finding of the Court:
The appellant had reconverted to Hinduism in 1978 after fully realizing the religious significance and social consequences of his decision to reconvert to Hinduism.
Result : Appeal allowed.
JUDGMENT
A. K. Patnaik, J. —
This is an appeal under Section 116A of the Representation of the People Act, 1951 (for short ‘the Act’) against the common order dated 26.07.2010 of the Kerala High Court in Election Petition Nos. 3 of 2009, 7 of 2009 and 8 of 2009 declaring the election of the appellant to the House of People from the Mavelikkara Parliamentary Constituency reserved for the Scheduled Castes void under Section 100 (1)(a) and (d) (i) of the Act.
2. The facts very briefly are that No.16 Mavelikkara Parliamentary Constituency is reserved for the Scheduled 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 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 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. The High Court framed issues in the three cases, examined witnesses and admitted documents and on consideration of the oral testimony and documentary evidence declared the election of the appellant void under Sections 100 (1)(a) and 100 (1)(d)(i) of
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