TaxTMI 
TaxTMI 
TaxTMI 
2010 (9) TMI 946
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....e said constituency was held on 08.05.2006. The result of the election was declared on 11.05.2006 and the appellant was declared as the successful candidate in the elections having secured the highest number of votes. 3) The respondent no.1 [Election Petitioner] challenged the result of the election by filing election petition under Section 81 read with Section 5(a), 100 (1)(a) and 125-A of the Representation of the Peoples Act, 1951. His prayer was for declaration of the election of the returned candidate as void and to declare the candidate with the next highest number of votes as the successful candidate. Contention of the Election Petitioner : 4) The contention is that, the Rajapalayam assembly constituency is a reserved constituency and only candidates belonging to the Scheduled Caste are eligible to contest the elections from such constituency. According to the petitioner, the respondent No.1 (appellant in this appeal) filed her nomination papers claiming herself to be a member of a Scheduled Caste by filing false declaration and suppressing material facts. According to him, the appellant professes Christianity and her actual name is Glory Chandra and she is born to Chr....
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.... husband's family to the community known as Devendrakula Velalar Samooham. She claims that her community members are the members of Devendrakula Velalar Samooham. She obtained a community certificate in 1997, certifying the fact that she belonged to the Hindu Pallan community. She specifically states that she did not find it necessary to inform the electorate of her conversion as she was born and brought up as a Hindu and practiced Hinduism. She states that she used to worship Hindu gods since childhood in the village temples and the nearby Kamatchiamman temple. When she attained puberty, the requisite ceremonies were performed according to Hindu customs. She also contested and won the Panchayat Ward no.3 election held in the year 2001. In the said elections no one filed any objection to the nomination filed by her. She clarifies that a daughter was born to her on 20.6.1997 and not the date mentioned in the Birth Register for the year 1997. She also denies that she intentionally did not file the Birth Certificate of her two daughters so as to reveal her religion. She also asserts that it is her brother Sudhakar Gnanaraj who had studied in Government High School, Devathanampatty, w....
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....llant herein, that she was a Christian before converting to Hinduism in the year 1994, the burden of proof is shifted and it is for the appellant to show that she had renounced Christianity. The High Court after appreciating the evidence, both oral and documentary adduced by the respondent/Election petitioner is of the view that the circumstances in which the community certificate was granted was highly suspicious, as it was issued within two days of the receipt of the application. The court has further stated that it was likely that the appellant used her political influence to get the certificate issued in her favour. The High Court also has taken strong exception to the fact that the original conversion certificate was not produced by the appellant and only a duplicate copy of the same was produced. Though in her testimony, the appellant had stated that the original conversion certificate was issued in the evening on 27.08.1994 and it was received by her uncle Santhakumar from Arya Samaj, Madurai and remained in his custody. The Certificate was not delivered to her and after the filing of the election petition, she asked her uncle Santhakumar to hand over the certificate to her.....
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....ential Order would show that if a person belongs to a caste which is notified in the schedule to the presidential order, he/she would have status of a Schedule Caste, provided he/she professes Hinduism or one of the other religions specified in paragraph 3 of the order. It is further contended that the expression 'Profess' occurring in paragraph 3 of the Presidential order has been considered by a Constitution Bench in the case of Punjab Rao Vs. D.P. Mesh Ram and others (1965) 1 SLR.849. Therefore, the sine qua-non for a person to be treated a Scheduled Caste is that he must practice the Hindu religion. Reliance is also placed on the decision of this court in the case of Perumal Nadar Vs. Ponnuswamy (1970) 1 SCC 605 and Gangapal Vs. Returning Officer (1975) 1 SCC 589. 9) While elaborating the contention that the High Court has wrongly placed the burden of proof on the appellant contrary to the well established legal principles, the learned counsel would submit, that, the burden of proof is on the election petitioner in an election petition and it is his duty to establish his case beyond reasonable doubt. However, the High Court in its impugned order has erred in holding that it is....
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....he belongs to Christian religion and this fact was suppressed by the appellant in the nomination papers filed by her. It is further submitted that the parents of the appellant are professing Christianity and the appellant was brought up as a Christian and further the marriage of the appellant was as per the Christian religion and the husband of the appellant is a member of a Church called Thuya Sahaya Annai Alayam. The learned Senior Counsel submitted that the appellant does not belong to Scheduled Caste, but by using her political clout has procured community certificate from Tahsildar, Rajapalayam, as if she belongs to Scheduled Caste Community. It is also submitted that in the absence of specific pleadings, in written statement on an issue, no evidence can be looked into in relation thereto. Our attention was invited to the decisions of this Court in the case of Duggi Veera Venkata Gopala Satyanarayana Vs. Sakala Veera Raghavaiah & Anr. (1987) 1 SCC 254; Sri Venkataramana Devaru & Ors. Vs. State of Mysore & Ors. AIR 1958 SC 255; Gajanan Krishnaji Bapat & Anr. Vs. Dattaji Raghobaji Meghe & Ors. (1995) 5 SCC 347; Abubakar Abdul Inamdar (dead) by LRs & Ors. Vs. Harun Abdul Inamdar ....
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....ng to him, that in the reply filed in the election petition, there is no pleading that she was Hindu by birth and that till conversion she was professing Hinduism and that there is no pleading that at any stage she was professing Hinduism and or living Hindu way of life or believing in Hindu faith. Therefore, submits that the High Court was justified in allowing the election petition filed by Election petitioner. Definition of Scheduled Caste : 13) We may begin to discuss this issue firstly by referring to weighty observations made by this Court in the case of Ganpat vs. Returning Officer, 1975 (1) SCC 589. "The monstrous course of untouchability has got to be eradicated. It has got be eradicated not merely by making constitutional provisions or laws but also by eradicating it from the minds and hearts of men. For that it is even more important that members of communities who are untouchables should assert their self-respect and fight for their dignity than that members of the other communities should forget about it. 14) In order to bring the lower castes on par with the upper castes, there are special provisions in the Constitution to ensure that equal opportunity was not just....
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....sions, the Constitution (Scheduled Castes) Order was issued in 1950. It sets out the caste, races and tribes in each State of India and provides under para 2, that a person belonging to any of the caste specified therein be deemed to be a Scheduled Caste for the purpose of the Constitution. Para 3 contains a proviso to the effect that notwithstanding anything contained in para 2, no person who professes a religion different from the Hindu, Sikh or Budhist religion shall be deemed to be a member of a Scheduled Caste. Reading para 2 and 3 of the Presidential Order would show that if a person belongs to a caste which is notified in the Schedule to the Presidential Order he/she would have the status of a Scheduled Caste, provided he/she professes Hinduism or one of the other religions specified in paragraph 3 of the Order. 18) The text of the Order is reproduced below : "In exercise of the powers conferred by clause (1) of article 341 of the Constitution of India, the President, after consultation with the Governors and Rajpramukhs of the States concerned, is pleased to make the following Order namely: 1. This order may be called the Constitution (Scheduled Castes) Order, 1950. 2.....
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....t it would be known to those whom it may interest. Therefore, if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion he will be taken as professing the other religion. In the face of such an open declaration it would be idle to enquire further as to whether the conversion to another religion was efficacious. The word "profess" in the Presidential Order appears to have been used in the sense of an open declaration or practice by a person of the Hindu (or the Sikh) religion. Where, therefore, a person says, on the contrary, that he has ceased to be a Hindu he cannot derive any benefit from that Order". 20) The way we understand the order 1950, and the observation made by this court is, in order to claim the benefits of reservation under the Presidential Order, a person must establish that the caste to which he belongs is notified in the Presidential Order and he is not professing a religion different from the Hindu, the Sikh or the Budhist. Conversion of Religion - Burden of Proof : 21) It is not in dispute that Hindu Pallan Community is notified under the Presidential Order as Scheduled Caste. The appellant c....
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....tt, J., observed that no gesture or declaration may change a man's religion, but when on the facts it appears that a man did change his religion and was accepted by his coreligionists as having changed his religion and lived and died in that religion, absence of some formality cannot negative what is an actual fact. Krishnaswami Ayyangar, J., observed that a Hindu who had converted himself to the Christian faith returned to Hinduism and contracted a second marriage during the life-time of his first wife and remained and died a Hindu having been accepted as such by the community and co-religionists without demur. Absence of evidence of rituals relating to conversion cannot justify the Court in treating him as having remained a Christian." 22) In the case of Ganpat v. Returning Officer, (1975) 1 SCC 589, it was observed: "11. In this connection it is necessary to remember that Hinduism is a very broad based religion. In fact some people take the view that it is not a religion at all on the ground that there is no one founder and no one sacred book for the Hindus. This, of course, is a very narrow view merely based on the comparison between Hinduism on the one side and Islam and Ch....
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....rved:- "These precedents, particularly those from South India, clearly establish that no particular ceremony is prescribed for reconversion to Hinduism of a person who had earlier embraced another religion. Unless the practice of the caste makes it necessary, no expiatory rites need be performed and, ordinarily, he regains his caste unless the community does not accept him. In fact, it may not be accurate to say that he regains his caste; it may be more accurate to say that he never lost his caste in the first instance when he embraced another religion. The practice of caste however irrational it may appear to our reason and however repugnant it may appear to our moral and social sense, is so deep-rooted in the Indian people that its mark does not seem to disappear on conversion to a different religion. If it disappears, it disappears only to reappear on reconversion. The mark of caste does not seem to really disappear even after some generations after conversion." 25) In Kailash Sonkar vs. Smt. Maya Devi [(1984) 2 SCC 91], this court speaking through FAZAL ALI, J. made the following observation. "In our opinion, there is one aspect which does not appear to have been dealt with....
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....nvolve loss of caste, because even persons professing such other religion can be members of the caste.... This is indeed not an infrequent phenomenon in South India where, in some of the castes, even after conversion to Christianity, a person is regarded as continuing to belong to the caste." 26) In C.M. Arumugam vs. S. Rajgopal and Others (1976) 1 SCC 863; the following observation is made by this Court. "These cases show that the consistent view taken in this country from the time Administrator-General of Madras v. Anandachari was decided, that is, since 1886, has been that on reconversion to Hinduism, a person can once again, become a member of the caste in which he was born and to which he belonged before conversion to another religion, if the members of the caste accept him as a member. There is no reason either on principle or on authority which should compel us to disregard this view which has prevailed for almost a century and lay down a different rule on the subject. If a person who has embraced another religion can be reconverted to Hinduism, there is no rational principle why he should not be able to come back to his caste, if the other members of the caste are prepare....
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.... be a conversion and second acceptance into the community to which the person converted. It is obvious that the need of a conversion cannot be altogether done away with. 30) The appellant had examined herself as RW3. In her examination in chief, she has categorically stated, that as a Hindu, in her household they are celebrating festivals like Pongal, Vinayaka-Chaturthi etc. She has also stated that since her birth she has been living as a Hindu and following Hindu customs and tradition and her relatives are also treating her as Hindu and all her relatives are Hindus. She has also stated that she has not gone to any Church and she does not know about Christianity and that form of worship. In her constituency people knew her only as Chandra and not as Glory Chandra. She has also stated that she contested in the elections held for Rajapalyam Panchayat Union Council from reserved constituency and nobody raised any objection. It has also come in her evidence that she wanted to reaffirm her faith in Hinduism and therefore she approached Arya Samaj, Madurai and after making her go through all the rituals, the Arya Samaj, Madurai issued a certificate of reconversion to Hinduism bearing ....
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....ble, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasized that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party. In the instant case, it is the specific case of the appellant that in the year 1994 that is much before the Assembly elections which was held in the year 2006, she had undergone all the rituals in Arya Samaj only for the purpose of reaffirmation of Hindu faith and the conversion certificate issued by Arya Samaj was received and acknowledged by her uncle Santnakumar who had accompanied her. It is also her specific case that she did not take back the certificate from her uncle, since she was of the view the same may not be required for her purpose. It is only when the election petition was filed, it order to proof her case of reaffirmation of her faith in Hinduism, she c....
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.... burden placed on him and the burden shifted to the appellant to establish that he belonged to the 'Konda Dora' Tribe." 32) On a careful perusal of the judgment, it is possible to distinguish the present case on the basis of the facts and circumstances. In the above mentioned case, which the High Court has relied upon, there was no conversion from one religion to another. The question was whether the person belongs to Kshatriya Caste or a Scheduled Tribe. The question relates to caste within a religion as opposed to the present case, where there has been conversion from one religion to another. Therefore the reasoning given by the High Court to reverse and discharge the burden of proof is erroneous and the burden of proof should lie on the election petitioner to prove that the appellant still professes Christianity. 33) We, therefore express our disapproval to the findings of the High Court on this issue. 34) The appellant, in support of her case, has examined Sengaiah alias Chinna Sangaiah-RW4, Rasu-RW5, Govindan-RW6, Paulraj-RW7, and RW10-Surulimuthu. 35) Mr. Sengaiah (RW 4) belongs to the same village as the appellant. He has deposed that he knows the appellant as she was bo....
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....d in his capacity as the Village Nattamai. He also claims that before filing her nomination papers for the Assembly elections in May 2006, the appellant and her husband came to the Sundaranatchiamman temple and worshipped the deity. This witness is cross-examined by the election petitioner, but nothing useful is elicited. Therefore, his evidence goes unchallenged. 37) Mr. Govindan was examined as RW 6. He states that he attended the marriage of the appellant. He went on to describe the rituals and the ceremonies that took place during the course of the marriage. He also mentions that he invited the appellant to his house for his daughter's puberty ceremony on account of her being a member of the community. Though he was subjected to lengthy cross-examination, the election petitioner could not elicit which discredit his evidence. 38) Mr. S. Paulraj was examined as RW 7. In his evidence he states that he belongs to Hindu Pallan Community. He also asserts that the appellant also belongs to Hindu Pallan Community. He has stated that he had attended the betrothal ceremony of the appellant which was performed at her maternal uncle Surulimuthu's house as per Hindu rites and customs. He ....
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....nst the appellant that she is making false assertion. 40) Election petitioner has examined himself as PW 1. In support of his allegations and assertions made in the election petition he has examined T.P. Paulaswamy-PW2, Rajaiya-PW3, Rajendran-PW4, Mrs. D. Jaymanorama-PW5 and Arumugan- PW6. T.P Paulaswamy-PW2 is the Village Secretary of DMK Party in Ganapathy Sundaranatchiyapuram. Paulaswamy in his cross examination states that the father-in-law of the appellant is a member of Christian church. He also goes on to state that the name of the appellant clearly indicates that she professes Christianity. But later rather inexplicably, he states "I do not know as to which religion the first respondent no.1 and her family members are professing. At the instance of the election petitioner, I have come as a witness today." He further states that he does not know the mother of the appellant and has not visited the residence of the appellant. He further states that he has never been to the residence of Murugan (husband of the appellant) and does not know the father-in-law of the appellant. He does however concede that Murugan works for Harijan Welfare Department of the Government. He further ....
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.... Soosaimanickam and the name of the mother has been described as Glory and the religion shows Christianity. All the relevant entries were listed in Ex. P 10. In his testimony, Mr. M.K Rajendran, PW4, Deputy Tahsildar, Periyakulam, Theni District clearly states that none of the entries in the Ex. P 10 register have been entered on the reporting of births by the parents. This is a very important admission on the part of the witness as this indicates that may be not many people had the knowledge of the conversion of the appellant and her husband. The entry cannot be relied upon by the respondent no.1 as it is mainly based on hearsay knowledge; because of the fact that the parents had themselves not reported the birth of the child. In the present case, the child birth was reported by the Village Head Nurse. She also states that she knows neither Soosaimanickam nor Glory. 43) We now move over to the deposition of Mr. S. Arumugan- PW6 presently working as Tahsildar, Rajapalayam. According to his deposition, the husband of the appellant applied for a permanent community certificate from Adi Dravidar Welfare Department, vide application dated 27.3.1997 (Ex. P 13). The application was rece....
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....ever his own admission, it is not mentioned in Ex. R1 that the appellant is a Christian. He further states that he has not denied in his counter that the marriage of the appellant was as per Hindu customary rites. He also clarifies that he has not stated anywhere that the marriage of the appellant took place as per Christianity. He clearly states that he does not know much about any of the friends or the family of the appellant and her husband. 45) We move over to the testimony of the K.V Balasubrmaniam (R.W 2), who is the General Manager, Bharat Sanchar Nigam Limited, Virudhumagar Telecom District. The Election petitioner has contended that the application of a telephone connection made by the husband of the appellant showed his name as Soosaimanickam. The application was made in 27.4.1998. There was no name and photograph affixed to the application. More importantly, as per the deposition of R.W 2 there is no column showing religion or caste of the applicant. Also he has not seen the applicant put his signature on the form. As clarified by him, there is no rule that only the owner of the property can apply for the telephone connection. Even the tenant can apply for the telephon....
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....nt case, merely because the appellant had stated in her counter affidavit that she got converted into Christian faith in the year 1994 in Arya Samaj, Madurai, after following the required essential rituals, the learned Judge while deciding the lis between the parties has shifted the burden of proof on the appellant to disprove that she is not a Christian but a person practicing Hindu faith and the community has accepted her as a person belonging to Hindu Pallan Community. This reasoning of the learned Judge runs counter to the settled legal principles. We say so for the reason, that in an election petition the burden of proof lies on the person who accuses that the elected person who had the support of the majority of the electorates still does not deserve to represent them in the State Assembly. We reiterate that in the present case, the appellant candidly accepts that her father Navakumar is a Christian, but her mother who is separated from him never practiced Christian faith but continued to follow Hindu religion even after her marriage. The election petitioner has not produced any acceptable evidence to disprove the evidence adduced by the appellant and her witnesses. Therefor....
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....ection petitioner and the evidence of the appellant. In our view, the discrepancy pointed out by the election petitioner has been properly explained by the appellant and in our view, this by itself cannot be a ground to hold that the appellant was ineligible to contest from the reserved constituency. 49) In so far as issuance of community certificate to the appellant, in our view the evidence of PW6 amply demonstrates that due procedure was followed while issuing the Community Certificate. The High Court, in our considered view has not properly appreciated PW6 evidence while doubting the genuineness of the Community Certificate produced by the appellant. Therefore, we do not approve the reasoning of the High Court on this issue. We also add that the learned senior counsel for contesting respondent in this appeal relied on certain observations made by this Court in the case of Kumari Madhuri Patil & Anr. Vs. Addl. Commissioner, Tribal Development & Ors. (1994) 6 SCC 241; GM, Indian Bank Vs. R. Rani & Anr. (2007) 12 SCC 796; R. Palanimuthu Vs. Returning Officer & Ors. (1984) Supp. SCC 77; John Valiamattom & Anr. Vs. Union of India (2003) 6 SCC 611; Meera Kanwaria Vs. Sunitha & Ors. ....
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....tted such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings." 52) It is a settled legal position that an election petition must clearly and unambiguously set out all the material facts which the petitioner is to rely upon during the trial, and it must reveal a clear and complete picture of the circumstances and should disclose a definite cause of action. In the absence of the above, an election petition can be summarily dismissed. To see whether material facts have been duly disclosed or whether a cause of action arises, we need to look at the averment and pleadings taken up by the party. 53) In the case of V.S Achutanandan v. P.J Francis [(1999) 2 SCR 99], it was held that failure to plead material facts is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time limit prescribed for filing the election petition. 54) One cannot file an election petition based on frivolous grounds. The facts presented must be clear, concise and u....
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....entary evidence produced by her. The evidence of Shri Sengaiah (RW 4) and S. Paulraj (RW 7) also support the facts stated by the appellant. The fact that the appellant was a trustee of the Mayurarathaswamy Temple at Rajapalayam is supported by the testimonies of Shri. P. Magesh (RW 8) and Shri. K. Paramasivam (RW 9). Though the appellant has not produced the original conversion certificate, there is no reason to disbelieve the duplicate that she has submitted, as the petitioner has failed to provide a reasoned rebuttal to the evidence adduced by the appellant, to proof her case. Validity of community Certificate & Evidence Act : 58) There is nothing on record to show that the community certificate was issued illegally or in contravention of the valid procedure. The Election petitioner should have examined the person in charge while the certificate was being issued to bring to light any alleged malpractice in the issuance of the said certificate. The validity of the issuance of the community certificate is presumed unless shown otherwise by the respondent no.1, who clearly failed to do so. It is also baffling to note that the conversion certificate from the Arya Samaj was not exam....