Kerala High Court
Vinod.K.S vs State Election Commission on 15 September, 2021
W.P.(C)Nos. 29165 &
29210 of 2020 1
"CR"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 15TH DAY OF SEPTEMBER 2021 / 24TH BHADRA, 1943
WP(C) NO. 29165 OF 2020
PETITIONER:
VINOD.K.S
AGED 45 YEARS, S/O. LATE SREEDHARAN,
THAZHATHU MANAKKAL HOUSE,
ARAKKULAM KARA, ARAKKULAM VILLAGE,
IDUKKI-685 591
BY ADVS.
BLAZE K.JOSE
SHRI.JUDY JOSE
SMT.URMILA ZACHARIA
RESPONDENTS:
1 STATE ELECTION COMMISSION
CORPORATION OFFICE COMPLEX,
LMS JUNCTION, PALAYAM,
THIRUVANANTHAPURAM-695 033,
REPRESENTED BY ITS SECRETARY.
2 THE DISTRICT COLLECTOR,
CIVIL STATION, PAINAVU,
IDUKKI DISTRICT-685 603.
3 TAHSILDAR,
IDUKKI TALUK OFFICE, VANCHIKAVALA,
CHRUTHONI, IDUKKI-685 602
4 VILLAGE OFFICER
IDUKKI VILLAGE OFFICE,
W.P.(C)Nos. 29165 &
29210 of 2020 2
PAREMMAVU, IDUKKI-685 602.
5 AEO,
ARAKKULAM, RETURNING OFFICER,
ARAKKULAM GRAMA PANCHAYATH,
ARAKKULAM, IDUKKI DISTRICT, 685 591.
6 SINDHU P.S,
W/O. SANISH JAMES,
PLAKKAL HOUSE, URUMBULLU,
KULAMAVU, IDUKKI-685 601
BY ADVS.
SRI KODOTH SREEDHARAN
SRI.P.K.RAVI SANKAR
SHRI.DEEPU LAL MOHAN, SC, ELECTION COMMISSION OF INDIA
BY SR. GOVERNMENT PLEADER SMT.DEEPA NARAYANAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 10.08.2021, ALONG WITH WP(C).29210/2020, THE
COURT ON 15.09.2021 DELIVERED THE FOLLOWING:
W.P.(C)Nos. 29165 &
29210 of 2020 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
WEDNESDAY, THE 15TH DAY OF SEPTEMBER 2021 / 24TH BHADRA, 1943
WP(C) NO. 29210 OF 2020
PETITIONER:
SINDHU P.S.
AGED 25 YEARS, D/O. SELVAKANNI,
PLAKKAL HOUSE, KULAMAVU POST,
IDUKKI DISTRICT-685 601
BY ADVS.
P.K.RAVISANKAR
SRI.M.K.THANKAPPAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
SCHEDULED CASTE DEVELOPMENT DEPARTMENT,
THIRUVANANTHAPURAM
2 THE DISTRICT COLLECTOR,
IDUKKI, CIVIL STATION,
PAINAVU P.O., IDUKKI-685 603
3 THE TAHSILDAR,
TALUK OFFICE, IDUKKI,
IDUKKI COLONY P.O., CHERUTHONI
IDUKKI DISTRICT-685 602
4 KERALA STATE ELECTION COMMISSION,
REPRESENTED BY ITS SECRETARY,
JANAHITHAM TC-27/6(2),
VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM-695 033
W.P.(C)Nos. 29165 &
29210 of 2020 4
5 ASSISTANT EDUCATIONAL OFFICER/RETURNING OFFICER,
ARAKULAM, IDUKKI DISTRICT-685 588
6 ARAKULAM GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY,
ARAKULAM, IDUKKI DISTRICT-685 588
7 EMMANUEL C.S.,
AGED ABOUT 55 YEARS
S/O. SIMON, CHERUVALLATH HOUSE,
PRESIDENT, INDIAN NATIONAL CONGRESS (I),
ARAKULAM MANDALAM COMMITTEE,
ARAKULAM P.O., IDUKKI DISTRICT-685 588
8 *ADDL. R8 IS IMPLEADED
VINOD.K.S.,
AGED 45 YEARS, S/O.LATE SREEDHARAN,
THAZHATHU MANAKKAL HOUSE,
ARAKKULAM KARA, ARAKKULAM VILLAGE,
IDUKKI- 685591
*ADDL.R8 IS IMPLEADED AS PER ORDER DATED 06-08-2021
IN I.A. NO.1/2021 IN WP(C) 29210/2020
BY ADVS.
SRI KODOTH SREEDHARAN
SHRI.DEEPU LAL MOHAN, SC, ELECTION COMMISSION OF
INDIA
SRI NIVEA LIZ PETER FERNANDEZ
SRI JUDY JOSE
SMT. URMILA ZACHARIA
SR. GOVERNMENT PLEADER SMT.DEEPA NARAYANAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 10.08.2021, ALONG WITH WP(C).29165/2020, THE COURT ON
15.09.2021 DELIVERED THE FOLLOWING:
W.P.(C)Nos. 29165 &
29210 of 2020 5
T.R.RAVI,J. "CR"
-----------------------------
W.P.(C)Nos. 29165 & 29210 of 2020
-------------------------------
Dated this the 15th day of September, 2021
JUDGMENT
The issues involved in the two writ petitions are intrinsically
connected and are hence heard and disposed of together. The
pleadings in the two writ petitions, in short, are as below:
W.P.(C)Nos.29210/2020
2. The petitioner claims to be a member of the Hindu Pallan
community, which is a Scheduled Caste. She was duly elected as a
member of Ward No.5 of Arakulam Grama Panchayat in the general
election to the Local Bodies held on 08.12.2020. The post of
President of the Arakulam Grama Panchayat was reserved for
persons belonging to Scheduled Caste communities. The petitioner
proposed to contest for the post of President, the election to which
was scheduled to be held on 30.12.2020. The 3 rd respondent had
issued certificate No.818/20 on 17.12.2020 under Rule 4 of the
W.P.(C)Nos. 29165 &
Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue
of Community Certificate Rules, 2002 (hereinafter referred to as the
Rules for short), showing the status of the petitioner as a member of
the Hindu Pallan community. On 23.12.2020, the 3 rd respondent
issued order No.A2-818/20(ii) whereby the certificate granted on
17.12.2020 was provisionally withdrawn stating that the petitioner
had converted to Christianity in 2008 and that she was wrongly
granted the certificate. The writ petition is hence filed alleging that
the order withdrawing the community certificate issued to the
petitioner would exclude the petitioner from contesting the election
to the post of President of Arakulam Grama Panchayat. It is
contended that the order withdrawing the certificate has been issued
in violation of the provisions of the Kerala (Scheduled Castes and
Scheduled Tribes) Regulation of Issue of Community Certificate Act,
1996 (hereinafter referred to as the Act for short) and the Rules
made thereunder.
WP.(C)No..29165/2020
3. The petitioner belongs to Hindu Velan community which is
W.P.(C)Nos. 29165 &
a Scheduled Caste community. The petitioner is the elected member
of Ward No.2 (Kavumpady) of Arakulam Grama Panchayat, which is
the only Ward reserved for candidates belonging to Scheduled
Castes community in the Panchayat. The post of President of the
Arakulam Grama Panchayat is reserved for Scheduled Caste
community as per Section 153(3) of the Kerala Panchayat Raj Act.
The petitioner is the only candidate who belongs to the Scheduled
Caste community who is eligible to be elected as the President of
Arakulam Grama Panchayat. The petitioner came to know that on
an application submitted by the 6th respondent (petitioner in WP.
(C)No. 29210/2020) for a community certificate on 17.12.2020, she
had been issued with such a certificate. The petitioner filed Ext.P1
complaint on 21.12.2020. The 3 rd respondent is stated to have
initiated an enquiry proceedings and a notice No.A2-818(A)/2020 is
said to have been issued on 21.12.2020 to the 6 th respondent
directing her to surrender the certificate that has been obtained. It
is stated that on the same day he had filed a complaint before
respondents 1, 3 and 5 stating that the 6 th respondent has obtained
W.P.(C)Nos. 29165 &
the community certificate by fraud and is not entitled to contest to
the post of President. It is further stated that respondents 2 and 3
had called for a report from the 4 th respondent Village Officer who
had conducted a detailed enquiry and submitted Ext.P6 report before
the 4th respondent stating that the certificate is liable to be
cancelled. On 24.12.2020, the petitioner had submitted a complaint
before the 1st respondent requesting not to proceed with the
candidature of the 6th respondent as President of the Panchayat,
since she did not belong to Scheduled Caste community.
4. The petitioner in WP.(C)No.No.29165/2020 has filed
I.A.No.1/2021 in WP.(C)No.No.29210/2020 seeking to get impleaded
in the writ petition. The petition was allowed by this Court on
06.08.2021 by impleading him as additional 8th respondent. He has
thereafter filed a counter affidavit in the writ petition wherein it is
stated that he was under the bonafide belief that the complaint filed
by him and the report of the Village Officer would have been
forwarded to the Revenue Divisional Officer and to the Scrutiny
Committee which is the body which has to consider issues relating to
W.P.(C)Nos. 29165 &
the caste/community status. According to him, no proceedings have
been initiated owing to Covid-19 lockdown. The petitioner in WP.
(C)No.29210/2020 has filed a counter affidavit in WP.(C)No.
29165/2020 producing 7 documents to show that she belongs to
Scheduled Caste community Hindu Pallan and that she is not a
Christian. Ext.R6(a) produced along with the counter affidavit is the
community certificate issued on 17.12.2020 showing that the
petitioner belongs to Hindu Pallan community. Ext.R6(b) is the
representation submitted by the 6th respondent in reply to Ext.P3
notice dated 21.12.2020 issued by the Tahsildar, directing her to
come over to the office on 23.12.2020 along with the certificate
issued, for a hearing proposed to be held. Exts.R6(c) and R6(d) are
communications relating to the above issue. Ext.R6(e) is the
marriage certificate showing that the 6 th respondent was married to
one Saneesh under the Special Marriage Act. The certificate was
issued on 11.3.2015. Ext.R6(f) is the certificate issued to the 6 th
respondent's father on 30.05.2010 which shows that the 6 th
respondent and her family belong to Hindu Pallan community.
W.P.(C)Nos. 29165 &
Ext.R6(g) is the Secondary School Leaving Certificate of the 6 th
respondent which also shows that she belongs to Hindu Pallan
community. The 3rd respondent in WP.(C)No.29165/2020 has filed a
counter affidavit wherein it is stated that the 6 th respondent had
after her marriage embraced Christianity and got baptised in 2008
and is following Christian beliefs and customs and that she had
changed her name as Sincy. It is further submitted that the
respondents are taking legal steps against the 6 th respondent for
having fraudulently obtained a community certificate suppressing
material facts and by misrepresentation that she belongs to
Scheduled Caste. It is further stated that the 3 rd respondent is not
empowered to cancel the community certificate which he himself has
issued, which is the reason why the certificate has only been
temporarily withdrawn by him. The petitioner in WP.
(C)No.29165/2020 has thereafter filed I.A.No.1/2021 seeking to
amend the writ petition by incorporating a prayer for a direction to
respondents 2 and 3 to forward Ext.P9 order and all connected
records and files to the Scrutiny Committee and for a further
W.P.(C)Nos. 29165 &
direction to the Scrutiny Committee to consider Ext.P12 complaint
on the basis of Ext.P9 and connected records and to take a final
decision.
5. Sri P.K.Ravisankar appearing for the petitioner in
W.P.C)No.29210/2020, who is the 6th respondent in the other writ
petition, contended that the show cause notice issued by the 3 rd
respondent directing the petitioner to appear for a hearing on
23.12.2020 states about the report of the Village Officer, Idukki
which was not even served on the petitioner. He further refers to
Rule 4(2) to submit that there was no power to "temporarily
withdraw" the certificate which has been issued. Referring to Ext.P6
in W.P.(C)No.29165/2020, it is submitted that the report of the
Village Officer, Idukki would show that there was conversion when
the petitioner was 13 years of age, that subsequently she was
removed from the Church register and that her name was changed
to Sincy as per the baptism records of the Church. The counsel
submits that the petitioner did not even get an opportunity to submit
her response to the contents of the report. The counsel referred to
W.P.(C)Nos. 29165 &
Section 2(d) of the Act which defines "Competent Authority" to mean
any officer or authority authorised by the Government by any
notification to perform the functions of the competent authority
under the Act for such areas or for such purposes as may be
specified in the notification. Section 2(g) defines "Expert Agency"
to mean an officer or team of officers belonging to the
Anthropological Wing in the KIRTADS. Section 2(n) defines Scrutiny
Committee to mean a Committee constituted by the Government by
notification under Section 8 to perform the functions of the Scrutiny
Committee under the Act for such areas or for such purpose as may
be specified in the notification. Section 5 says that community
certificate is to be issued only by the competent authority. Section 8
deals with constitution of Scrutiny Committee for verification of
community certificates. Section 11(1) deals with cancellation of
false community certificate issued and it reads thus;
11. Cancellation of false community certificate. -
(1) Where, before or after the commencement of this Act, a
person not belonging to any of the Scheduled Castes or the
Scheduled Tribes has obtained a false community certificate
W.P.(C)Nos. 29165 &
to the effect that either himself or his children belongs or
belong to such Caste or the Tribe, the Scrutiny Committee
may either suo motu or on a written complaint or report by
any person or authority, call for the records and enquire into
the correctness of such certificate and if it is of the opinion
that the certificate was obtained fraudulently, it shall, by
order, cancel the certificate after giving the person
concerned an opportunity of making a representation, if any.
(2) xxxxx xxxxx xxxxx
(3) xxxxx xxxxx xxxxx
(4) xxxxx xxxxx xxxxx
6. Rule 4 of the Rules which is referred above reads as
follows;
4. Issuance of Community Certificates
(1) If upon such enquiry, as it may deem fit, the
Competent Authority is satisfied that the particulars
furnished in the application are correct and if it is found
that the applicant belongs to the Scheduled Caste or the
Scheduled Tribe as claimed by him, a Certificate in Form
No.III shall be issued to the applicant within seven days
from the date of receipt of the application.
(2) If, on enquiry it is found that the claim of the
applicant is not genuine and that the applicant does not
belong to the Scheduled Caste or Scheduled Tribe, as the
W.P.(C)Nos. 29165 &
case may be, the application shall be rejected, recording
in writing the reasons therefor and the
applicant shall be informed accordingly."
7. Section 12 of the Act contains provisions for appeal and
review. As per Section 12(1), any person aggrieved by an order
passed under sub-section (1) of Section 5 by the Competent
Authority rejecting an application made to it under Section 4 may,
within thirty days from the date of receipt of such order, appeal to
the next higher Competent Authority. The above provision does not
deal with filing of an appeal by an aggrieved person against the
grant of a community certificate. Section 12(2) says that where the
Competent Authority rejecting the application for community
certificate is the District Collector, the person aggrieved by the said
decision may within fifteen days from the date of receipt of the order
of the District Collector, appeal to the Government and the
Government may after giving the appellant an opportunity of being
heard, confirm the order of the District Collector or arrange for an
enquiry through the Expert Agency and issue appropriate orders or
directions on the basis of the expert report.
W.P.(C)Nos. 29165 &
8. A review petition can be preferred with the Government
under Section 12(4), whereby any person aggrieved by an order
passed by the Government under Section 11(2) may seek review of
the order. The contention of the counsel is that having regard to the
statutory provisions, there is no power available to the 3 rd
respondent to withdraw a certificate which has already been issued.
Reference is also made to Rule 9 of the Rules. Rule 9 lays down the
procedure to be followed by the Scrutiny Committee for verification
of the community certificate. A detailed procedure has been laid
down regarding enquiry to be conducted into the community status.
The counsel referred to the judgment of a Division Bench of this
Court in Vijayan P.S. & Ors. v. State of Kerala and Ors. reported
in [2013 (2) KLT 488]. The Division Bench considered the
question whether community certificate issued by the competent
authority can be cancelled under Section 11 of the Act, on the mere
finding that the person in whose favour the certificate was issued
does not belong to Scheduled Caste or Scheduled Tribe community.
The Court held that cancellation of a false community certificate
W.P.(C)Nos. 29165 &
requires the Scrutiny Committee to apply its mind to (i) whether the
false community certificate was issued by the Competent Authority
to a person not belonging to a Scheduled Caste, (ii) whether such
person had obtained fraudulently a false community certificate either
for himself or for his children and before cancelling a false
community certificate, the person concerned should be given an
opportunity for making representation to the Scrutiny Committee.
The Scrutiny Committee will have to render specific findings on such
facts. Section 11 is the only provision in the Act dealing with
cancellation of a false community certificate, which includes a
certificate fraudulently obtained. It is hence submitted that the
order of the 3rd respondent whereby the certificate which was
already issued has been withdrawn is not legally correct and is liable
to be set aside. The Division Bench had also found that till the
community certificate is cancelled in accordance with law, it remains
valid. The only other provision which deals with cancellation of a
certificate is Section 8(a) of the Act, which says that where, on
verification, the Scrutiny Committee finds that community certificate
W.P.(C)Nos. 29165 &
issued is not genuine, it shall cancel the same. The said provision
does not apply to false community certificates, but to bogus or fake
community certificates which are not genuine.
9. Sri Blaze K.Jose, appearing for the petitioner in WP.
(C)No.29165/2020 submits that the principle "fraud will vitiate
everything" will apply to the facts of this case. According to him,
when there is an element of fraud, the statutory provisions relating
to cancellation will not have a role. Reference is made to several
decisions to submit that fraud is always an exception to such cases.
Relying on the report of the Village Officer, Idukki, it is contended
that there has been a baptism in 2008 whereby the 6 th respondent
converted into Christianity and thereafter she had married a
Christian and changed the name. Even though it is stated that she
was expelled from the Church that does not in any way mean that
she ceased to be a Christian; is the contention.
10. Sri Blaze K.Jose relied on the decision of the Hon'ble
Supreme Court in A.P. State Financial Corporation Ltd. v. M/s.
Gar Re-rolling Mills and Anr. reported in [1994 (2) SCC 647] to
W.P.(C)Nos. 29165 &
contend that the role of a court of equity exercising the equitable
jurisdiction under Article 226 of the Constitution of India should be
to prevent perpetration of a legal fraud and the Court is obliged to
do justice by promotion of good faith. In the above case, the
Hon'ble Supreme Court was considering the power of the State
Financial Corporation to invoke Section 29 of the State Financial
Corporation Act in a case where they had already obtained a decree
under Section 31 of the Act. It was while considering the above
issue that the Court observed that there can be no interference at
the instance of a person who had attempted to evade the action.
11. The counsel relied on the decision in Chengalvaraya
Naidu v. Jagannath and others reported in [AIR 1994 SC 853]
to contend that a judgment and decree obtained by fraud is a nullity
and can be questioned even in collateral proceedings and that non-
disclosure of relevant and material documents with a view to obtain
advantage will amount to fraud. The Apex Court was considering an
appeal from the judgment of the competent Civil Court, wherein it
was found that a judgment had been obtained by playing fraud, after
W.P.(C)Nos. 29165 &
a full-fledged trial. It was a case, in other words, where a fraud had
been established before the Court.
12. Another decision relied on is Indian Bank v. Satyam
Fibres (India) Pvt. Ltd. reported in [1996 (3) SCC 550]. In the
said case, the question was whether the National Commission under
the Consumer Protection Act had power to review its order on the
ground of fraud and forgery. It was a case where a petition had
been filed before the National Commission seeking review. The Court
held that there is an inherent of power to recall an order if it is
found to be obtained by fraud or forgery. The Court further held
that the National Commission in such a case was bound to go into
the question of allegation of fraud/forgery. In the said case, the
Hon'ble Supreme Court itself went into the facts and found that
there was forgery.
13. The next decision that is relied on is the one in Indian
National Congress (I) v. Institute of Social Welfare and Ors.
reported in [2002 (2) KLT 548 (SC)]. In the above said case, the
Court was considering the question whether Election Commission
W.P.(C)Nos. 29165 &
can de-register or cancel the registration of a political party on the
ground that it had called for a 'hartal' by force, intimidation, or
coercion and thereby violated the provisions of the Constitution of
India. The Hon'ble Supreme Court considered the power of the
Election Commission and held that what was exercised is a quasi
judicial power and that once it is exercised, there is no power of
review available with the Commission. The Court further added
certain exceptions, one of which is that, if the registration was
obtained by practicing fraud, the Election Commission can go into
the issue. The Court specifically considered the application of
Section 21 of the General Clauses Act and held that the said clause,
which says that the power to issue would include the power to add,
to amend, vary or rescind, will not apply in the case of quasi judicial
orders. There again the Court had stated the exception of fraud, but
did not go into the question as to how the fraud has to be
established in a given case.
14. The next judgment that is relied on is Devendra Kumar
v. State of Uttaranchal and Ors. reported in [2013 (9) SCC
W.P.(C)Nos. 29165 &
363]. The said case related to a person who was found to have
furnished false information while seeking employment by
suppressing the fact that there was a criminal case against him. The
employee was discharged immediately after he completed his
training. The learned Single Judge of the High Court found on the
basis of the pleadings and evidence, that there was suppression of
material facts. The above finding was confirmed by the Division
Bench of the High Court. The Hon'ble Supreme Court found that
there was no material available before the Supreme Court, other
than those which were available before the High Court, to take a
view different from that of the High Court that there was
suppression of material information. It was a case where the Court
has specifically entered a finding on the factum of suppression and
thereafter held that fraud will vitiate.
15. The counsel also relied on the decision of this Court in
Easwaranunni T. and Ors. v. State of Kerala and Ors. reported
in [2020 (2) KLT 362]. In the said decision, a learned Judge of
this Court considered the difference between fraud on power that
W.P.(C)Nos. 29165 &
vitiates an order and an order obtained by playing fraud on the
authority. It was a case in which lands belonging to the petitioners
were subject matter of proceedings under the Kerala Private Forests
(Vesting and Assignment) Act, 1971, which ended in favour of the
petitioners. The lands were restored to the petitioners. Thereafter
the lands were notified under the Kerala Forest (Vesting and
Management of Ecologically Fragile Lands) Act, 2003. The petitioners
had approached the Custodian contending that the lands did not
come under the definition of "ecologically fragile land" and the
Custodian had passed orders holding that the lands cannot be
included as ecologically fragile lands. However, the orders had been
issued notifying the land under Section 5 of the Kerala Preservation
of Trees Act. The writ petition was filed challenging the notification
under the Kerala Preservation of Trees Act. Pending the writ petition,
the successor in office of the Custodian issued orders revising the
earlier order that the lands are not ecologically fragile lands. The
said order was also challenged by amending the writ petition. It was
contended on behalf of the State that the earlier order was obtained
W.P.(C)Nos. 29165 &
by misrepresentation and non-disclosure of relevant facts and hence
amounted to fraud and the authority was empowered to correct the
order. After noticing the law regarding fraud, this Court held that
when a quasi judicial power has been exercised, there was no power
to revise or recall the order on merits, except on the ground of
fraud. On the question of fraud, this Court held that mere non-
disclosure of relevant facts will not constitute fraud and that it
should be established that such non-disclosure was deliberate and
that there was culpable mind involved. The Court finally quashed
the order issued by the Custodian.
16. In Chapter XII of Kerr on the Law of Fraud and
Mistake, 7th Edition,Third Indian Reprint 2001 at page 669,
referring to an early decision, the author has stated thus "If fraud is
not strictly and clearly proved, as it is alleged, relief cannot be had,
although the party against whom relief is sought may not have been
perfectly clear in his dealings (Mowatt v. Blake (1858)31 LT
387)"
17. It can be seen from the principles laid down in the above
W.P.(C)Nos. 29165 &
judgments and the statement of law contained in the authoritative
text referred above, that the law is well settled that fraud vitiates
everything and that an order obtained by playing fraud is a nullity.
However, the existence of fraud/misrepresentation/non-disclosure is
a fact that will have to be established, and then alone the
consequences referred above will follow.
18. In the case on hand, the order Ext.P5 does not
conclusively find that there has been fraud. What is stated is that
there was a complaint that the certificate issued to the petitioner
was on misrepresentation which was enquired into by the Village
Officer, Idukki, who has reported that the petitioner had converted
into Christianity and hence the community certificate stating she
belongs to Hindu Pallan community is wrongly issued. After stating
about the above reports, the order further says that a detailed
investigation is to be conducted into the issue and hence the
certificate is "temporarily withdrawn". It cannot be said that by
Ext.P5, the authority has reviewed its earlier order, on the ground of
established fraud, and can be understood only as a withdrawal of an
W.P.(C)Nos. 29165 &
order on allegations of fraud. It is in this context that the power
under Section 11 of the Act has to be considered. Section 11 of the
Act specifically contemplates such situations and empowers the
Scrutiny Committee to go into the question whether the certificate
was obtained fraudulently and to cancel the same if it is found to
have been obtained fraudulently. Going by the statutory provisions
and the decisions which say that fraud vitiates every action, it can
be seen that a conclusion that an order has been obtained by fraud
and that it is vitiated is possible only after an enquiry into the matter
and such enquiry is very much within the powers available to the
Scrutiny Committee and not to the person who has issued the
certificate. It is not a case where an inherent power of review needs
to be exercised, particularly since the power to cancel a false
certificate has been specifically bestowed on the Scrutiny Committee
created under the Statute, with all the necessary powers of enquiry.
It is to be noticed that even the response filed on behalf of the State
says that there is no power available in the statute to withdraw a
community certificate which has been issued, by the officer who
W.P.(C)Nos. 29165 &
issued the certificate. In the above circumstances, I am of the
opinion that Ext.P5 is not legally sustainable.
19. Having said so, the issue cannot be left there. The
Scrutiny Committee is said to be in seisin of the matter on the basis
of a complaint which has been preferred by the petitioner in WP.
(C)No.29165/2020. The Scrutiny Committee has to see that the
enquiry is taken to its logical end and an order is issued on the
question whether the certificate issued to the petitioner is liable to
be cancelled as having been obtained fraudulently or not. It is
hence only appropriate that a direction is issued to the Scrutiny
Committee to consider the complaint filed by the petitioner in
WP.C)No.29165/2020 and pass orders thereon.
In the result, Ext.P5 order in W.P.(C)No.29210/2020 is
quashed. There will be a direction to the Scrutiny Committee to
consider the complaint filed by the petitioner in W.P.
(C)No.29165/2020 regarding the caste status of the petitioner in
W.P.(C)No.29210/2020 and pass orders thereon within two months
from the date of receipt of a copy of this judgment. Needless to say,
W.P.(C)Nos. 29165 &
the enquiry shall be with notice to the petitioners in both the writ
petitions and after giving them an opportunity to put forward their
respective claims. Going by the law laid down by the Division Bench
of this Court in Vijayan's case (supra), the certificate issued to the
petitioner in W.P.(C)No.29210/2020 on 17.12.2020 will have to be
considered to be valid till a specific finding regarding its falsity or
otherwise is rendered by the Scrutiny Committee.
The writ petitions are disposed of as above. The parties will
bear their respective costs.
Sd/-
T.R.RAVI
JUDGE
dsn
W.P.(C)Nos. 29165 &
APPENDIX OF WP(C) 29165/2020
PETITIONERS' EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE COMMUNITY CERTIFICATE
ISSUED TO THE PETITIONER DATED 1.2.2018 BY
THE 3RD RESPONDENT.
EXHIBIT P2 A TRUE COPY OF THE COMPLAINT DATED
21.12.2020 TO THE 3RD RESPONDENT.
EXHIBIT P3 A TRUE COPY NOTICE NO. A2-818(A)/2020
DATED 21.12.2020 ISSUED BY THE 3RD
RESPONDENT.
EXHIBIT P4 A TRUE COPY OF THE DETAILED OBJECTION
FILED BY THE PETITIONER DATED 23.12.2020
BEFORE THE 3RD RESPONDENT.
EXHIBIT P5 A TRUE COPY OF THE COMPLAINT DATED
21.12.2020 SUBMITTED TO RESPONDENTS 1,2,4
AND 5.
EXHIBIT P6 A TRUE COPY OF THE REPORT NO. 325/20 DATED
21.12.2020 SUBMITTED BY THE 4TH RESPONDENT
TO THE 3RD RESPONDENT.
EXHIBIT P7 A TRUE COPY OF THE COMPLAINT SUBMITTED BY
THE PETITIONER TO THE 1ST RESPONDENT DATED
24.12.2020.
EXHIBIT P8 THE NEWS REPORT IN MALAYALA MANORAMA DAILY
DATED 22.12.2020.
EXHIBIT P9 THE TRUE COPY OF THE ORDER ISSUED BY THE
3RD RESPONDENT VIDE ORDER NO.A2-818/20(ii)
DATED 23.12.2020
EXHIBIT P10 THE TRUE COPY OF COMPLAINT DATED
26.04.2021 BEFORE THE SCRUTINY COMMITTEE
HEADED BY THE SECRETARY TO GOVERNMENT,
SCHEDULED CASTES DEVELOPMENT DEPARTMENT
W.P.(C)Nos. 29165 &
EXHIBIT P11 THE TRUE COPY OF THE COMPLAINT DATED
26.04.2021 BEFORE THE KERALA INSTITUTE FOR
RESEARCH TRAINING AND DEVELOPMENT STUDIES
OF SCHEDULED CASTES SCHEDULED TRIBES
(KIRTADS)
EXHIBIT P12 THE TRUE COPY OF THE REMAINDER LETTER
DATED 27.07.2021 BEFORE THE SCRUTINY
COMMITTEE HEADED BY THE SECRETARY TO
GOVERNMENT, SCHEDULED CASTES DEVELOPMENT
DEPARTMENT
EXHIBIT P13 THE TRUE COPY OF THE REMAINDER DATED
27.07.2021 BEFORE THE DIRECTOR, KIRTADS
DEPARTMENT
EXHIBIT P14 THE TRUE COPY OF THE REGISTERED POSTAL
RECEIPTS DATED 27.07.2021
EXHIBIT P15 THE TRUE COPY OF THE ACKNOWLEDGEMENT CARD
DATED 29.07.2021
RESPONDENTS' EXHIBITS
EXT.R6(A) TRUE COPY OF THE CERTIFICATE NO.818/2020
DATED 17.12.2020 ISSUED BY THE 3RD
RESPONDENT
EXT.R6(B) TRUE COPY OF THE REPRESENTATION 22.12.2020
SUBMITTED BY THE PETITIONER BEFORE THE 2ND
RESPONDENT
EXT.R6(C) TRUE COPY OF THE OBJECTION DATED
22.12.2020 SUBMITTED BY THE PETITIONER
BEFORE RESPONDENT NO.3
EXT.R6(D) TRUE COPY OF THE ORDER NO.A2-818/20(ii) ON
23.12.2020 ISSUED BY RESPONDENT NO.3
EXT.R6(E) TRUE COPY OF THE CERTIFICATE OF MARRIAGE
DATED 11.03.2015
W.P.(C)Nos. 29165 &
EXT.R6(F) TRUE COPY OF THE CERTIFICATE ISSUED BY
TAHSILDAR, THODUPUZHA DATED 13.05.2010 AND
TYPED COPY
EXT.R6(G) TRUE COPY OF THE SECONDARY SCHOOL LEAVING
CERTIFICATE OF THE PETITIONER.
W.P.(C)Nos. 29165 &
APPENDIX OF WP(C) 29210/2020
PETITIONERS' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE NO.818/2020
DATED 17.12.2020 ISSUED BY THE 3RD
RESPONDENT
EXHIBIT P2 TRUE COPY OF THE NOTICE NO.A2-818(A)/2020
DATED 21.12.2020 ISSUED BY THE 3RD
RESPONDENT
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION 22.12.2020
SUBMITTED BY THE PETITIONER BEFORE THE 2ND
RESPONDENT
EXHIBIT P4 TRUE COPY OF THE OBJECTION DATED
22.12.2020 SUBMITTED BY THE PETITIONER
BEFORE RESPONDENT NO.3
EXHIBIT P5 TRUE COPY OF THE ORDER NO.A2-818/20(ii) ON
23.12.2020 ISSUED BY RESPONDENT NO.3
EXHIBIT P6 TRUE COPY OF THE CERTIFICATE ISSUED BY
TAHSILDAR THODUPUZHA DATED 13.05.2010
EXHIBIT P7 TRUE COPY OF THE SECONDARY SCHOOL LEAVING
CERTIFICATE OF THE PETITIONER
