MINI A.K. Vs. JWALA SAJIKUMAR & ANOTHER

JUDGEMENT

(1.) A short, but, interesting question arise in common for consideration in these revisions, both filed by the returned candidates whose election as members to the Panchayat was impeached. Both of them were elected from reserved constituencies earmarked for Scheduled Caste. Election of the revision petitioner in C.R.P. No. 834 of 2007 was impeached on the ground she belonged to the Scheduled Tribe and that of the revision petitioner in C.R.P. No. 252 of 2008 contending that he is a converted Christian, and thus, disqualified. Both of them are incompetent and not qualified to contest from the reserved constituencies for Scheduled Caste was the challenge in the respective election petitions. The question posed for determination is whether the civil court, even when it is competent to try an election petition as empowered under Section 88 of the Kerala Panchayat Raj Act, 1994, for short, the 'Panchayat Raj Act,' has jurisdiction to examine the disqualification imputed over the community of a candidate when his claim as a member of Scheduled caste/tribe is supported by a certificate issued under the provisions of the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of issue of Community Certificates Act, 1996 (Act 11 of 1996), for short, the K(BC and ST) RICC Act and the Kerala (Scheduled Caste and Scheduled Tribes) Regulation of issue of Community Certificates Rules, 2002, for short the K(SC and ST)RICC Rules, 2002. Since the K (SC and ST)RICC Act and K(SC and ST)RICC Rules provide for a mechanism to examine the genuineness of a certificate issued in relation to Scheduled Castes and Scheduled Tribes and Section 24 of the Act oust the jurisdiction of the civil court in respect of any order passed by any officer or authority under the Act, it cannot examine even in an election petition disqualification imputed against the election of the returned candidate as not being a member of the Scheduled Caste or Scheduled Tribe is the challenge canvassed in these revisions.

(2.) ADV . Sri. S. Sreekumar appeared for the revision petitioner in C.R.P. No. 834 of 2007 and Adv. Sri Joice George, for the revision petitioner in C.R.P. No. 252 of 2008. Adv. Sri. Liji J. Vadakedom appeared for the 1st respondent and Adv. Sri. K.T. Shyamkumar for the 2nd respondent in C.R.P. No. 834 of 2007 and Adv. Sri Mathew John for the 1st respondent in C.R.P. No. 252 of 2008.

(3.) THE civil court as the Election Tribunal notified and empowered under Section 88 of the Panchayat Raj Act, has no competency or jurisdiction to adjudicate any challenge relating to the status of thereunder candidate as a member of the Scheduled Castes/Scheduled Tribes, when his claim thereof had been established by the production of a certificate issued by the competent authority under the K(SC and ST)RICC Act and K(SC and ST)RICC Rules, is the common ground canvassed by the learned counsel appearing for the respective revision petitioners/the returned candidates to impeach and assail the concurrent decisions of both the courts below declaring the election of the revisions petitioners/returned candidates as void. A number of authorities has been pressed into service by the respective counsel to contend that the Election Tribunal has no jurisdiction to decide and adjudicate upon a dispute over the status of a returned candidate as a member of Scheduled Caste or Scheduled Tribe, where his claim over such caste/tribe is established by the production of a certificate issued under the K(SC and ST)RICC Act and K(SC and ST)RICC Rules. My attention has been invited to Kumari Madhuri Patil and another v. Addl. Commissioner of Tribal Development and others ( : (1994) 6 SCC 241). Director of Tribal Welfare. Government of A.P. v. Laveti Giri and another ( : (1995) 4 SCC 32) to highlight that the above Act has been brought into force on the directions issued by the apex court in the above two cases. Reliance is also placed on State of Tamil Nadu and others v. A. Guruswami ( : (1997) 3 SCC 542) and Kutty Nanu v. State of Kerala ( : 2002 (1) KLT 367) to contend that the jurisdiction of the civil court to decide the status of a person, whether he belongs to the community of Scheduled Caste or Scheduled Tribe, is impliedly barred under Section 9 of the Code of Civil Procedure, and so much so, it has no jurisdiction to adjudicate upon that question. Inviting my attention to Gayathri Lakshmi Bapurao Nagpure v. State of Maharashtra and others ( : (1996) 3 SCC 685) it was contended by the learned counsel for the revision petitioners that greater care and caution is required in deciding any issue relating to the validity of a caste certificate issued under the K(SC and ST)RICC Act, and it can be gone into only by the statutory authorities under that Act. The Election Tribunal under the Panchayat Raj Act, notified civil court dealing with an election petition, is incompetent to decide a dispute over a caste certificate issued under the K(SC and ST)RICC Act and K(SC& ST)RICC Rules or the cancellation of such caste certificate, and any certificate issued thereunder is valid until it is cancelled under the provisions of the above Act is the submission of the learned counsel. Reliance is placed on Prakash v. State of Kerala ( : 2002 (2) KLT 580) to contend that the caste certificate issued under the above Act is valid and binding including the Government and it can be cancelled only under the provisions and in the manner provided under the Act complying with the procedural requirements necessary for doing so. Where a Statute has been enacted empowering an authority constituted thereunder to decide any question relating to the status of a person as a member of the Scheduled Caste or Scheduled Tribe, as under the K(SC and ST)RICC Act, it is submission of the counsel, a dispute regarding the status of a returned candidate as a member of such caste/tribe, when it is supported by a certificate issued by the competent authority under the above Act is outside the province of the Election Tribunal. Reliance is placed on Bhagawathi Prasad Dixit Ghorewala v. Rajeev Gandhi ( : (1986) 4 SCC 78) to contend that the caste question as to whether an elected member of the Panchayat is a member of the Scheduled Caste or Scheduled Tribe is not a dispute which could be entertained by the Election Tribunal, notified civil court, but only before the authority under the K(SC and ST)RICC Act Banking upon the decision rendered by the apex court in Thampanoor Ravi v. Charupara Ravi and others ( : (1999) 8 SCC 74), it is contended where an authority has been constituted under the K(SC and ST)RICC Act, jurisdiction to decide a dispute relating to the caste question as to whether the elected member belongs to a Scheduled Caste or Scheduled Tribe even if it is canvassed as a disqualification in an election petition can be decided only by that authority and not by the Election Tribunal. Both the courts below in having decided the disputed caste question had overstepped and transgressed the limits of their jurisdiction, is the challenge canvassed in the revisions for setting aside the concurrent decisions declaring election of the respective revision petitioners/the returned candidates as void. Per contra, the learned counsel appearing for the respective respondents/petitioners in the election petitions, contended that the Election Tribunal, civil court empowered under Section 88 of the Kerala Panchayat Raj Act, which alone can go into the election disputes, is fully competent to decide the caste question when it is raised as a ground imputing disqualification of the returned candidate, to set aside his election. Challenge raised on the basis of the K(SC and ST)RICC Act and K(SC and ST)RICC Rules by the revision petitioners is resisted by the counsel submitting that the provisions of the Act have applicability in determining the disputes on the claim of caste as a member of the Scheduled Castes or Scheduled Tribes for admission to educational institutions or appointment to public services and not in the case of determining the election disputes. Placing emphasis on the provisions of the Act and distinguishing the decisions rendered thereunder it is contended that the Election Tribunal constituted under the Panchayat Raj Act is the sole authority which can go into a dispute relating to the caste of an elected member when an election to a reserved constituency for Scheduled Caste and Scheduled Tribe is impeached on the ground of his disqualification as not a member of that Caste/Tribe. Neither the K(SC and ST)RICC Act nor the K(SC and ST)RICC Rules, according to the counsel, in any way place any embargo or interdict or preclude or prohibit the Election Tribunal from examining and entering a decision over a dispute as to whether the returned candidate is a member of the Scheduled Caste or Scheduled Tribe when his election is impeached on the ground of such disqualification, and failure of the Election Tribunal to do so, it is contended, will tantamount to abdication of the jurisdiction vested in it to determine that ground of disqualification which had been raised in the election petition to impeach the election of the returned candidate.