This revision has been directed against the order in Election Original Petition No.305 of 2006 on the file of the Principal District Judge, Coimbatore. The unsuccessful first respondent, who had lost her membership in the panchayat Ward No.12 of Anaimalai Panchayat Union in lieu of the order passed in EOP.No.305 of 2006 on the file of the Court of Principal District Judge, Coimbatore, is the revision petitioner herein.
2.According to the petitioner in the Election Original Petition No.305 of 2006, the revision petitioner & R1 to R3 herein had contested in the Ward No.12 in Ramanamudalipudur for membership of the panchayat board, which was a reserved constituency and the said election was conducted on 13.10.2008. The petitioner belongs to DMK party and he was assigned "Rising Sun" symbol. The first respondent contested from AIADMK party and she was allotted "Two Leaves" symbol. The 2nd respondent was belonging to MDMK party and he was allotted 'Theebam' symbol. The 3rd respondent contested the election as an independent candidate and he was allotted "Coconut Tree" symbol. After the election was conducted, the results were announced on 18.10.2008. As per the result, the first respondent was declared as elected member after scoring 1181 votes. The petitioner had secured 1014 votes and the 2nd respondent had secured 55 votes and R3 had secured 29 votes. The first respondent's husband was working as a Village Administrative Officer. By using his influence, the first respondent, who is the wife of the 3rd respondent, had contested the election in the reserved seat, claiming that she belongs to Schedule Caste community, even though she belongs to Naickar community. Hence, the petition for cancellation of the membership of the first respondent in the said election.
3.The first respondent in her counter had contended that her father belonged to Naickar community, who died in the year 1994 and her mother Meenaskhi belonged to Hindu Kudumban, schedule caste community, who died in the year 1982 and that her parents lived at Karumalai estate amidst the people belonging to Schedule Caste community and the brothers and sisters of the first respondent were also married to the people belonging to the Schedule Caste community. In the school certificate the first respondent's caste was shown as Naicker, but it represented only the caste of her father. The first respondent had also married a person by name Vasu, who belonged to Schedule Caste community. The children of the first respondent were also brought up as per the schedule castes custom. Under such circumstances only, the first respondent had every right to contest in the reserved constituency. The first respondent had contested for the president post in Ramanamudalipudur - Ward No.12 in the year 1998 and was also elected. Even at that time she contested the election describing herself as belonging to Schedule Caste community. Even at that time the petitioner has not made any petition. The Officials, who conducted the election, have scrutinized the application of the first respondent and had allowed the first respondent to contest in the reserved constituency since her application was found to be in order. Hence, the petition is liable to be dismissed.
4.The second respondent and third respondent remain exparte.
5.The 5th & 6th respondents have adopted the counter filed by the 4th respondent, which reads as follows:- The petition is not maintainable. At the time of scrutiny of the applications for the elections, these respondents have not made neither oral nor written objection. Hence, the petition is liable to be dismissed.
6. Before the learned trial Judge P.W.1 was examined and Ex.P.1 to Ex.P.8 were marked on the side of the petitioner. On the side of the respondents R.W.1 to R.W.3 were examined and Ex.R.1 was marked. After going through the evidence both oral and documentary, the learned trial Judge has allowed the petition in part declaring that the election of the first respondent as a member of Ward No.12 in Anaimalai Panchayat Union is illegal, not valid and against law. Aggrieved by the said findings of the learned trial Judge, the present revision has been preferred by the first respondent.
7.Now the point for determination in this revision is whether the nomination filed by the first respondent / revision petitioner for the election in Anaimalai Panchayat Union Ward No.12, conducted on 15.12.2008 is valid and the findings of the learned trial Judge in EOP.NO.305 of 2006 is liable to be set aside for the reasons stated in the memorandum of revision?
8.Point:- The only point to be decided in this revision is whether the revision petitioner is competent to contest in the panchayat election in Anaimalai Panchayat Union Ward No.12, which is a reserved constituency on the basis that she belonged to Scheduled Caste community. The learned trial Judge on the basis of the evidence of R.W.1 (Revision petitioner herein) in the cross-examination had come to the conclusion that the revision petitioner's father belonged to Naicker community and that even in the school certificate her caste was mentioned as Naicker and that the community certificate issued in favour of the revision petitioner was issued not in accordance with law, and had allowed Election Original Petition No.305 of 2006, thereby set aside the election of the revision petitioner as a member of the said panchayat union. The learned counsel appearing for the first respondent herein / petitioner in EOP.305 of 2006 relying on 2006(1) SCC 344 (Meera Kanwaria Vs. Sunita and others) would contend that Ex.R.1-community certificate itself was obtained under the influence of her husband, who was working as VAO cannot be given any credence and that the revision petitioner was following the customs of the community of Naicker, to which her father belonged. Further, the learned counsel for the first respondent / revision petitioner herein also focused the attention of this Court to a communication sent by the Tahsildar, Pollachi to the President of Anaimalai Panchayat Union, which was furnished under the provisions of the Information Act. The learned counsel for the first respondent would contend that Ex.R.1 community certificate was not issued in favour of the revision petitioner after due enquiry and in accordance with the provisions of
Article 341 of the Constitution of India.
Article 341 of the Constitution of India runs as follows:-
"(1) The President may with respect to any State or Union territory and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races tribes or parts of or groups within castes, races or tribes which shall for the purpose of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the ist of Scheduled Cases specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."
A perusal of Ex.R.1-community certificate would go to show that the revision petitioner belongs to Hindu Kudumban community, a schedule caste. R.W.2 in his evidence has deposed that the revision petitioner's father belonged to Hindu Naicker community and her mother belonged to Hindu Kudumban community, a Schedule caste community, and the revision petitioner was also married to Vasu, a person belonged to Schedule caste community and that the revision petitioner had contested the panchayat election in Ramanamudalipudur Panchayat Union, a reserved constiency, and she was elected and she was the panchayat board president for the period 1996 to 2001 and subsequently also in the year 2006 she contested in the reserved constituency of Anaimalai Panchayat Union councilor post and won the election. It was contended on behalf of the first respondent that Ex.R.1-community certificate was not issued after due enquiry. But the letter issued by the Tahsildar, Pollachi, under the Information Act shows that only on the basis of the particulars furnished by the VAO of Somandurai by name R.Krishnasamy and also by the another VAO of Kaliyapuram South by name Vasu, the community certificate was issued. So it is clear that not oly on the basis of the information furnished by Vasu, the husband of the revision petitioner, but also by the information furnished by one Krishnasamy another VAO, the community certificate Ex.R.1 was issued in favour of the revision petitioner. There is absolutely no discussion or observation in the orders of the learned trial Judge in respect of Ex.R.1 to discredit or discard the same. The learned trial Judge has omitted to consider the validity of Ex.R.1-community certificate, issued by an appropriate authority. So far the first respondent herein (petitioner in EOP.No.305 of 2006) has not taken any steps to set aside the said Ex.R.1. As per the G.O.No.477 dated 27.06.1975, the revision petitioner is entitled to get a community certificate describing her belonging to Schedule caste community, Hindu Kudumban since her mother belongs to Hindu Kudumban, schedule caste community, even though her father belonged to Naicker community. G.O.No.477 dated 27.06.1975 reads as follows:-
"The Government have been extended certain concession to the members of Scheduled Tribes, Scheduled Castes ad Backward Classes from time to time. A question has arisen about the determination of the community of the children born of inter-caste marriages.
2.The Government after carefully examining the question, direct that the children born of inter-caste marriage, that is marriages
(i)between a person of a Scheduled Tribe and another of the Scheduled Caste or Backward Class or Forward Class;
(ii)between a person of a Scheduled Caste and another of a Backward Class or Forward Class; and
(iii)between a person of a Backward Class and of a Forwad Class, shall be considered to belong to either the community of the father or the community of the mother according to the declaration of the parents regarding the way of life in which the children are brought up and that the declaration in respect of one child will apply to all children."
8(a)The learned counsel for the first respondent relying on 2006(1)SCC 344 (Meera Kanwaria Vs. Sunita and others) would contend that the burden of proof would be on the person who affirms that he belongs to schedule caste. The revision petitioner has filed Ex.R.1 to show that she belongs to schedule caste community. Now the burden was not on the first respondent to show that she does not belong to schedule caste community. As far as the G.O.No.477 of 27.06.1975 is in force, Ex.R.1 community certificate produced by the revision petitioner cannot be said to be illegal or unsustainable.
8(b)Further the learned counsel for the first respondent relying on 2003(8) SCC 204 (Punit Rai Vs. Dinesh Chaudhary) would contend that a child born in an inter-caste marriage would inherit his caste from his father and not from his mother. Reliance was also placed at para 41 of the said Judgment, which runs as follows:-
"Determination of caste of a person is governed by the customary laws. A person under the customary Hindu law wold be inheriting his caste from his father. In this case, it is not denied or disputed that the respondent's father belonged to a "Kurmi" caste. He was, therefore, not a member of the Scheduled Caste. The caste of the father, therefore, will be the determinative factor in absence of any law. Reliance, however, has been placed upon a circular dated 3.3.1978 said to have been issued by the State of Bihar which is in the following terms:
"Subject: Determination of the caste of a child born from non-Scheduled Caste Hindu father and a Scheduled Caste mother.
Sir, In the aforesaid subject as per instruction I have to state for the determination of a child born from a non-Scheduled Caste father and a Scheduled Caste mother, uon delibeartion it has been decided that the chiled born from such parents will be counted in the category of Scheduled Caste.
2.In such case before the issue of caste certificate there will be legible enquiry by the Block Development Officer/Circle Officer/Block Welfare Officer."
The learned counsel appearing for the revision petitioner to meet the above arguments of the learned counsel for the first respondent herein would contend that as per G.O.No.477 dated 27.06.1975, the Government has passed an order that the children born to parents, one of whom belongs to Schedule caste can be considered as to belong to either the community of the father or the community of the mother and that the said GO was passed as per the
Article 162 of the Constitution of India under the executive power of the State.
Article 162 runs as follows:-
"Subject to the provisions of this Constitution, the execution power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws.
Provided that in any matter with respect to which the Legislature of a State and parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this constitution or by any law made by Parliament upon the Union or authorities thereof."
In AIR 1955 SC 549 (Ram Jawaya Vs. State of Punjab, the dictum runs as follows:- On the other hand, the language of
Article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies
Article 73 of the Constitution."
Under such circumstances, on the basis of Ex.R.1-community certificate, which was issued as per the G.O.No.477 dated 27.06.1975 the revision petitioner is competent to contest in the panchayat union election in Ward No.12 of Anaimalai Panchayat Union, since the constituency is a reserved one. Without giving any findings in respect of Ex.R.1, the learned trial Judge has set aside the election on the ground that the revision petitioner does not belong to schedule caste community and hence, she was not competent to contest in the reserved constituency of Anaimalai Panchayat Union Ward No.12, which requires interference from this Court. Point is answered accordingly.
9.In fine, the Civil Revision Petition is allowed and the order passed by the trial Judge in Election Original Petition No.305 of 2006 on the file of the Court of Principal District Judge, Coimbatore, is set aside and Election Original Petition No.305 of 2006 is dismissed. No costs. Connected Miscellaneous Petition is closed.
.01.2008 Index :Yes/No Web :Yes/No ssv To, The Principal District Judge, Coimbatore.
A.C.ARUMUGAPERUMAL ADITYAN, J.
ssv C.R.P.NPD.No.3515 of 2008 and M.P.No.1 of 2008 07.01.2009