A. RAJA Vs. D. KUMAR

JUDGEMENT

(1.) This is an appeal preferred under Sec. 116-A('116-A. Appeals to Supreme Court.-(1) Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie to the Supreme Court on any question (whether of law or fact) from every order made by a High Court under Sec. 98 or Sec. 99. (2) Every appeal under this Chapter shall be preferred within a period of thirty days from the date of the order of the High Court under Sec. 98 or Sec. 99: Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period.') of the Representation of the People Act, 1951 (hereinafter referred to as the 'Act') against the Final Judgment and Order dtd. 20/3/2023 (hereinafter referred to as the 'Impugned Judgment')(2023:KER:16955 | 2023 SCC OnLine Ker 1643 | (2023) 2 KLT 716 | (2023) 2 KLJ 1.) passed by the High Court of Kerala at Ernakulam (hereinafter referred to as the 'High Court'), in Election Petition No.11 of 2021 (hereinafter referred to as the 'Election Petition'), filed by the Respondent (hereinafter also referred to as the 'Election Petitioner'), declaring the election of the Appellant to the Legislative Assembly of Kerala from the Devikulam Legislative Assembly Constituency 088 in Idukki District, Kerala, which is reserved for the Scheduled Castes, as void under Sec. 100(1)(a) and (d)(i)('100. Grounds for declaring election to be void.-(1) Subject to the provisions of sub-sec. (2) if the High Court is of opinion- (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or (b) ... (c) ... (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected- (i) by the improper acceptance of any nomination, or (ii) ... (iii) ... (iv) ... the High Court shall declare the election of the returned candidate to be void.') of the Act.

(2.) General Elections to the Devikulam Assembly Constituency for membership of the Legislative Assembly of Kerala were to be conducted in 2021. The Appellant filed his nomination papers before the Returning Officer on 17/3/2021 declaring therein that he belongs to the Hindu Parayan caste as per Caste Certificate dtd. 9/3/2021 issued by the Tehsildar, Devikulam. The said caste has been declared as a Scheduled Caste in relation to the State of Kerala in Part VIII of the Schedule to the Constitution (Scheduled Castes) Order, 1950 (hereinafter referred to as the '1950 Order') issued on 10/8/1950 by Hon'ble the President of India. Oral objections before the Returning Officer were raised by the Respondent contending that the Appellant was not a member of the Scheduled Castes from Kerala 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. Polling in the Constituency took place on 6/4/2021 and after counting, the result of the election was declared on 2/5/2021. The Appellant secured 59,049 votes and was declared elected by a margin of 7848 votes over the Respondent defeated candidate who had secured 51,201 votes.

(3.) The election of the Appellant was challenged by the Respondent in Election Petition No.11 of 2021 before the High Court. The ground of challenge laid therein was that the Appellant's paternal grandparents had migrated from Tamil Nadu to Kerala in 1951. They were of the 'Hindu Parayan' caste in the State of Tamil Nadu. 'Parayan' is included in the list of Scheduled Castes of both States viz. Tamil Nadu and Kerala in the 1950 Order, as originally brought into force. Since the Appellant's grandparents on the paternal side were persons who had migrated from Tamil Nadu, they and their successors were not entitled to claim that they belonged to 'Hindu Parayan' of Kerala State. It was averred that hence, the Appellant is not entitled to contest from a Constituency reserved for candidates belonging to the Scheduled Castes from Kerala. The Appellant was born on 17/10/1984 to Mr Antony and Mrs Esther. Mr Antony and Ms Esther, it was asserted, were Christians baptized by the CSI's(Church of South India.) Church in Kundala Estate by a pastor named Ebenezer Mani in the year 1982. The Appellant, born in 1984, also was baptized by the said Ebenezer Mani. Thus, the Appellant was a Christian and not entitled to contest from a Constituency reserved for the Scheduled Castes.