C.K Thakker, J. (on behalf of S.B Sinha, J. and himself)— The present appeal is filed by the appellant against the judgment and order dated 15-3-2004 in MFA No. 333 of 2003. By the said order, the Division Bench of the High Court of Kerala dismissed the appeal filed by the appellant and confirmed the order dated 26-2-2003 passed by the Scrutiny Committee for verification of community certificates.
2. The case of the appellant as revealed from the record is that she belongs to the Hindu Pulayan Community, a Scheduled Caste. Both her parents, at the time of their marriage, were Hindu Pulayan. The appellant was born in 1961 as Hindu Pulayan and she was never converted to Christianity and remained to be of the Hindu Pulayan Scheduled Caste all throughout. She took her education and during that period she was treated as a member of the Scheduled Caste. In 1975, she got married to Kunjukutty, a member of the Scheduled Caste in accordance with the custom of the said community. A certificate to the effect that both, the appellant as well as her husband, were members of Hindu Pulayan Community was issued by the Association of the Community and was produced in the enquiry proceedings. According to the appellant, it was alleged that much later after she got married, her mother remarried a Christian and converted to Christianity. Conversion by her mother was not proved but even if it is assumed that there was conversion on the part of her mother, the said fact in no way affected the status of the appellant who was born to Hindu Pulayan parents who at the time of their marriage belonged to the Scheduled Caste and the appellant who was born was a member of the Scheduled Caste. The appellant never converted to Christianity.
3. It is the case of the appellant that on 25-9-2000, an election for Thannithode Gram Panchayat was held. The appellant contested from Ward No. 2 reserved for women. Though she belonged to a Scheduled Caste, she contested the election by filing a nomination paper for a seat reserved for women without filling the column in the nomination paper as “Scheduled Caste”. Respondent 3 P.K Gopi belongs to a Scheduled Caste. He contested the election and got himself elected from the constituency reserved for the Scheduled Caste in Ward No. 4. On 5-10-2000, there was an election for the office of the President of the Gram Panchayat. It was reserved for a member belonging to a Scheduled Caste. The third respondent contested for the reserved seat. Since the appellant belonged to a Scheduled Caste, she also contested for the office of the President against Respondent 3, and got herself elected as the President of the Gram Panchayat. According to the appellant, the third respondent did not like the act of contesting by the appellant against him and since he lost against the appellant, he filed a complaint under the Kerala (Scheduled Castes and Scheduled Tribes) Regulations of Issue of Community Certificate Act, 1996 (Act 11 of 1996) (hereinafter referred to as “the Act”), alleging that the appellant did not belong to the Hindu Pulayan Scheduled Caste Community and hence could not have contested for the office of President of the Gram Panchayat as a member of a Scheduled Caste. Appropriate actions were, therefore, required to be taken against her. Upon receipt of the complaint, the Government referred the issue to the Vigilance Officer, KIRTADS for detailed inquiry. Notices were issued to the appellant and the third respondent by the Vigilance Officer and on finalisation of the inquiry, he submitted the report to the Government. The Government referred the issue to the Scrutiny Committee. The Committee felt that detailed inquiry was necessary which was conducted by the Vigilance Officer and the final report was submitted. The Committee, on the basis of the evidence reached the conclusion that the appellant was not Hindu Pulayan and did not belong to the Scheduled Caste. She never followed Hinduism nor lived in Hindu cultural milieu. The Scrutiny Committee by its order dated 22-9-2001, held that the appellant did not belong to a Scheduled Caste.
4. According to the Committee, the appellant was born to Christian parents and she had never been converted to Hinduism nor professed Hinduism. She was not accepted as a member of the Hindu Pulayan Scheduled Caste Community. She, therefore, could not claim the status of the Hindu Pulayan Scheduled Caste Community. A recommendation was, therefore, made by the Committee to take action for cancelling the certificate granted in favour of the appellant.
5. It appears that against the decision of 22-9-2001 by the Scrutiny Committee rejecting the claim of the appellant, an appeal being MFA No. 1303 of 2001 was preferred by the appellant. The High Court set aside the order of the Committee on 4-12-2002 observing that the constitution of the Committee was not as per the decision of this Court in Kumari Madhuri Patil v. Addl. Commr., Tribal Development (1994) 6 SCC 241, (1994) 28 ATC 259. The High Court observed that after the decision in Kumari Madhuri Patil (1994) 6 SCC 241, (1994) 28 ATC 259 the legislature of Kerala enacted Act 11 of 1996 and constituted a Committee on 20-4-2002 under Section 8 of the Act. Since the Committee, which considered the case of the appellant had not been constituted in accordance with law, it had no jurisdiction to pass the order or to make recommendation. The recommendation was, therefore, liable to be set aside. A direction was issued by the High Court to the Committee constituted under the Act to consider the matter after hearing the parties on the basis of the evidence and material and to pass final order. The appeal was accordingly allowed.
6. In the light of the directions of the High Court, the Committee constituted under the Act considered the case of the appellant. It issued notices to the parties and applied its mind on the status of the appellant as to whether she belonged to a Scheduled Caste. The Scrutiny Committee considered several documents which were before it and on the basis of such evidence came to the conclusion that the appellant did not belong to the Hindu Pulayan Scheduled Caste Community. Her claim, therefore, could not be upheld. The Committee constituted under the Act went through the report, statements recorded during the course of enquiry and also documentary evidence. According to the Committee, the enquiry report “conclusively” proved that the claimant's mother Saramma @ Ponnamma was a born Christian and died also as a Christian. The appellant was, therefore, a born Christian. It further found that the caste entries of the appellant showing her to be Hindu Pulayan Scheduled Caste have been obtained fraudulently by misrepresenting facts with a view to corner benefits as a member of a Scheduled Caste. The appellant, however, was a Christian. The appellant's children were also participating actively in Baptist Church, Thannithode. The Committee found that though the appellant professed Christian religion and never followed Hinduism nor lived in Hindu culture, she declared herself to be Pulayan Hindu and styled herself as a member of the Scheduled Caste falsely. It was a deliberate attempt on her part to conceal her true identity. The Committee noted that under Section 9 of the Act, the report of the expert agency was “conclusive” proof for or against the claimant and under Section 10 of the Act, burden of proof that the claimant belonged to a Scheduled Caste or a Scheduled Tribe was on the person claiming the benefit of such caste or tribe. Since all materials went to show that the appellant was a Christian and did not belong to a Scheduled Caste Community, she was not entitled to the benefits as a member of Hindu Scheduled Caste. She had been born and brought up as a Christian. She continued and remained as a Christian. She had never been converted to Hinduism. She was not accepted as a member of the Hindu Pulayan Scheduled Caste Community. The Committee, therefore, cancelled the certificate of the appellant as belonging to the Scheduled Caste Community. The Committee also forwarded the copy of the report and proceedings to the Government for taking appropriate consequential action.
7. In accordance with the provisions of the Act, the appellant preferred an appeal in the High Court of Kerala at Ernakulam under Section 12 of the Act. The Division Bench of the High Court again considered the relevant evidence produced before the Scrutiny Committee and the reasons recorded by the Committee and held that the Committee was justified in negativing the claim of the appellant. The High Court also observed that it was satisfied that the appellant could not substantiate her claim that she belonged to a Scheduled Caste. Accordingly, the appeal was dismissed.
8. Being aggrieved by those orders, the appellant has approached this Court. Leave was granted. Parties were given liberty to file affidavit and further affidavit and also to produce additional documents. Hearing was expedited. We have heard learned counsel for the parties.
9. The learned counsel for the appellant contended that the parents of the appellant belonged to the Hindu Pulayan Scheduled Caste Community, at the time of their marriage as well as at the time of birth of the appellant. In the light of the said circumstance, the burden could not have been cast on the appellant to prove that she belonged to a Scheduled Caste Hindu Community. The Committee as well as the High Court ought to have considered whether Respondent 3 was able to prove that the appellant converted herself to Christianity. As there was nothing to show that the appellant was converted to Christianity, her claim that she was Hindu Pulayan Scheduled Caste was well founded and the certificate could not have been cancelled. Alternatively, it was contended by the learned counsel that even if it is assumed that she had married a Christian, such marriage with non-Hindu male was not sufficient to prove conversion and she would continue to enjoy all the benefits as a member of the Scheduled Caste. Reference was made by the learned counsel to certain decisions of this Court in Kailash Sonkar v. Maya Devi (1984) 2 SCC 91, Principal, Guntur Medical College v. Y. Mohan Rao (1976) 3 SCC 411, C.M Arumugam v. S. Rajgopal (1976) 1 SCC 863. Reference was also made to State of Kerala v. Chandramohanan (2004) 3 SCC 429 and E.V Chinnaiah v. State of A.P (2005) 1 SCC 394
10. The learned counsel for the respondents, on the other hand, supported the order passed by the Scrutiny Committee and confirmed by the High Court. It was submitted that all the findings recorded by the Scrutiny Committee and confirmed by the High Court were findings of fact. On the basis of the documentary evidence and material on record, the Scrutiny Committee considered the case and by observing principles of natural justice and fair play and having gone through the report of the expert agency and after application of mind, it came to the conclusion that it was proved that the appellant was born and brought up as a Christian and she had all through continued to remain as a Christian and never believed or professed Hinduism. She had put forward her claim as Hindu Pulayan-Scheduled Caste only with a view to get undeserving benefits and since she was not entitled to such benefits as she was a Christian and there was no proof that she was reconverted to Hinduism, the certificate was liable to be cancelled and accordingly the action was taken. The counsel also submitted that the Caste Scrutiny Committee as well as the High Court were right in relying upon Sections 9 and 10 of the Act and as burden was not discharged by the appellant, the action taken against her could not be said to be illegal, unlawful or otherwise objectionable. The sole question raised by the third respondent related to false and fraudulent claim put forward by the appellant and for cancellation of caste certificate. The only remedy available for such dispute was to file a complaint under the Act which had been done and no fault can be found against the orders passed by the Scrutiny Committee and the High Court. It was, therefore, prayed that the appeal deserves to be dismissed.
11. Having heard the learned counsel for the parties, in our opinion, no case has been made out to interfere with the order passed by the Scrutiny Committee and confirmed by the High Court. We are clearly of the view that the Caste Scrutiny Committee considered the case of the appellant and her assertion that she belonged to the Hindu Pulayan Scheduled Caste Community and on the basis of the report of the expert agency and considering the relevant record rightly negatived such claim. A finding of fact has been recorded that the appellant was born and brought up as a Christian and she continued to remain as a Christian. She was never accepted by the Hindu Pulayan Scheduled Caste Community as a member of the Community. She never followed Hinduism nor lived in Hindu milieu.
12. In our opinion, the submission of the learned counsel for Respondent 3 is well founded that such a finding cannot be assailed in this Court under Article 136 of the Constitution. By no stretch of imagination, it can be said that the finding is based on “no evidence” or is arbitrary or perverse. To us, the provisions of the Act are clear and unambiguous. They provide procedure for an enquiry by the expert agency and the report by such agency is “conclusive” proof by or against the person reported upon. Section 10 casts the burden of proof on the person claiming the status of a Scheduled Caste or a Scheduled Tribe.
13. In the instant case, it is the appellant who claimed to belong to a Scheduled Caste. In view of the finding of fact recorded against her that she was born and brought up as a Christian, the caste certificate was ordered to be cancelled. In view of the said finding, it is immaterial that she had obtained a certificate showing her caste to be the Hindu Pulayan Scheduled Caste. If her case was that she was reconverted to Hinduism, it was for her to put forward such claim and to prove it in accordance with law. In our opinion, Section 10 is clear and expressly enacts that when a person claims to be a member of a Scheduled Caste or a Scheduled Tribe, the burden of proof that he or she belongs to such caste or tribe is on him/her. Since the appellant was born as a Christian and continued to remain as a Christian, the order passed by the Scrutiny Committee cancelling the appellant's certificate and confirmed by the High Court cannot be said to be illegal and no interference is called for.
14. The learned counsel for the respondents are also right in contending that the controversy in the present proceedings was as to whether the appellant belonged to the Hindu Pulayan Scheduled Caste or not. Such a claim could only be decided in the light of the relevant statutory provisions of the Act and hence the proceedings initiated by the third respondent were proper and in consonance with law. Similarly, the enquiry which has been made was also legal and proper. The Caste Scrutiny Committee considered the claim of the appellant and decided the complaint of Respondent 3 by invalidating and cancelling the certificate of the appellant. It was also according to law and no illegality has been committed. The proceedings before the Committee were legal, valid and lawful and the certificate was rightly cancelled. The appellant approached the High Court by invoking appellate jurisdiction under the Act and the High Court again considered the relevant material, evidence and the findings recorded by the Caste Scrutiny Committee and confirmed them.
15. If the appellant had to suffer because of the finding recorded by the Scrutiny Committee and confirmed by the High Court in accordance with law, she cannot make complaint inasmuch as such consequences would ensue in view of the order passed against the appellant. The respondent rightly relied upon Sections 16, 17 and 26 of the Act. Section 16 provides for withdrawal of benefits secured by a person on the basis of false community certificate. Section 17 is a penal provision and prescribes punishment for securing an appointment or election to local bodies on the basis of false community certificate. Section 26 gives overriding effect to the Act over other laws.
16. As late as on 2-9-2005, the appellant filed IA No. 2 permitting her to raise additional grounds. Apart from relying on certain decisions of this Court, the appellant sought leave to raise the contention that in view of Article 243-O of the Constitution and Section 153(14) of the Kerala Panchayat Raj Act, 1994, it was not open to Respondents 1, 2 and 4 to enquire into the eligibility or status of the appellant. It was also contended that the only remedy available to Respondent 3 was to file an election petition. The counsel submitted that the order passed by the Scrutiny Committee for verification of community certificates and confirmed by the High Court requires to be set aside on these additional grounds also.
17. The learned counsel for the respondents objected to the application submitted by the appellant at this stage. It was stated that these grounds were neither taken before the Scrutiny Committee nor before the High Court. At this stage, such new plea should not be allowed to be raised. Even otherwise, the appellant is not right in relying on Article 243-O of the Constitution or Section 153(14) of the Kerala Panchayat Raj Act as they do not apply to the present case. According to the respondents, the order passed by the Scrutiny Committee was legal, lawful and in accordance with law, which was confirmed by the High Court and this Court is considering whether those orders are in consonance with law.
18. From the orders impugned, it is clear that the plea sought to be taken by the appellant now was never taken earlier. There is, therefore, no pleading on the point, nor finding recorded on such plea. We are prima facie of the view that learned counsel for the respondents are right in submitting that the issue was whether the appellant belonged to the Hindu Pulayan Scheduled Caste Community. Once it is held that she did not belong to the Scheduled Caste, the action of cancellation of certificate could not be held illegal. Consequential actions can be taken thereafter in pursuance of cancellation of caste certificate.
19. In the facts and circumstances of the case, however, it is not necessary to deal with the contention sought to be raised by the appellant since it was never raised earlier. The application, accordingly, stands disposed of without expressing final opinion on applicability or otherwise of Article 243-O of the Constitution or Section 153(14) of the Kerala Panchayat Raj Act, 1994.
20. Since, we are of the view that the findings recorded by the Scrutiny Committee and confirmed by the High Court cannot be said to be contrary to law or based on “no evidence” or otherwise objectionable, the grievance of the appellant is ill-founded and no relief can be granted to her.
21. For the foregoing reasons, the appeal deserves to be dismissed and is accordingly dismissed. In the facts and circumstances of the case, however, there shall be no order as to costs.
S.B Sinha, J. (supplementing)— Although, I respectfully agree with the judgment and order proposed to be pronounced by Brother Thakker, J., I would like to add a few words.
23. The Scheduled Castes and the Scheduled Tribes in view of the constitutional provisions contained in Articles 341 and 342 of the Constitution occupy a special position. Protective discrimination and affirmative action for the downtrodden people are envisaged in our constitutional scheme despite the fact that the equality clause enshrined under Article 14 of the Constitution is of great significance. (See E.V Chinnaiah v. State of A.P (2005) 1 SCC 394)
24. When, thus, a person who is not a member of a Scheduled Caste or a Scheduled Tribe obtains a false certificate with a view to gain undue advantage to which he or she was not otherwise entitled to, would amount to commission of fraud. Fraudulent acts are not encouraged by the courts. A person for the purpose of obtaining the benefits of the Presidential Order must fulfil the condition of being a member of the Scheduled Castes and continue to be so. Conversion of a member of the Scheduled Castes to a different religion may not, in certain circumstances, deprive him of the said benefits although there appears to be some divergence of views in this regard. (See State of Kerala v. Chandramohanan (2004) 3 SCC 429 and Sobha Hymavathi Devi v. Setti Gangadhara Swamy (2005) 2 SCC 244.) In this case, however, even the said question does not arise.
25. In Ram Chandra Singh v. Savitri Devi (2003) 8 SCC 319 this Court held:
“15. … Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together.
16. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter.”
It was further held:( & 328-29, paras 18 & 23-26)
“18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.
23. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous.
24. In Arlidge & Parry on Fraud it is stated at p. 21:
‘Indeed, the word sometimes appears to be virtually synonymous with “deception”, as in the offence (now repealed) of obtaining credit by fraud. It is true that in this context “fraud” included certain kinds of conduct which did not amount to false pretences, since the definition referred to an obtaining of credit “under false pretences, or by means of any other fraud”. In Jones, for example, a man who ordered a meal without pointing out that he had no money was held to be guilty of obtaining credit by fraud but not of obtaining the meal by false pretences: his conduct, though fraudulent, did not amount to a false pretence. Similarly, it has been suggested that a charge of conspiracy to defraud may be used where a “false front” has been presented to the public (e.g a business appears to be reputable and creditworthy when in fact it is neither) but there has been nothing so concrete as a false pretence. However, the concept of deception (as defined in the Theft Act, 1968) is broader than that of a false pretence in that (inter alia) it includes a misrepresentation as to the defendant's intentions; both Jones and the “false front” could now be treated as cases of obtaining property by deception.’
25. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata.
26. In Shrisht Dhawan v. Shaw Bros. (1992) 1 SCC 534 it has been held that:
‘20. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct.’ ”
(See also Vijay Shekhar v. Union of India (2004) 4 SCC 666 and Vice-Chairman, Kendriya Vidyalaya Sangathan v. Girdharilal Yadav (2004) 6 SCC 325.)
26. Yet recently in Bhaurao Dagdu Paralkar v. State of Maharashtra (2005) 7 SCC 605, JT (2005) 7 SCC 530 a Division Bench of this Court inter alia following Ram Chandra Singh (2003) 8 SCC 319 and other decisions observed:
“15[17]. ‘Fraud’ is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter.”
27. In Lazarus Estates Ltd. v. Beasley (1956) 1 All ER 341, (1956) 2 WLR 502, (1956) 1 QB 702 (CA) the Court of Appeal stated the law thus: (All ER p. 345 C)
“I cannot accede to this argument for a moment. No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever;”
(See also Ram Preeti Yadav v. U.P Board of High School and Intermediate Education (2003) 8 SCC 311.)
28. Any action by the authorities or by the people claiming a right/privilege under the Constitution which subverts the constitutional purpose must be treated as a fraud on the Constitution. The Constitution does not postulate conferment of any special benefit on those who do not belong to the category of people for whom the provision was made.
29. The fraud committed by the appellant for obtaining unlawful gain has been found as of fact by a statutory committee. The said finding of fact has not been interfered with by the High Court. No case has been made out for us to take a different view.