Madras High Court
K. Vasikaran vs The District Level Vigilance Committee on 31 October, 2013
Author: K. Ravichandra Baabu
Bench: N.Paul Vasanthakumar, K.Ravichandra Baabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 31-10-2013 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR and The Honourable Mr.Justice K.RAVICHANDRA BAABU Writ Petition No.25243 of 2013 M.P.No.1 of 2013 K. Vasikaran ... Petitioner -Vs- 1. The District Level Vigilance Committee, rep.by the District Collector, Kancheepuram District Kancheepuram. 2. The State of Tamil Nadu, rep.by its Secretary to Government, Rural Development and Panchayat Raj Department, Secretariat, Chennai 600 009. 3. The Tamil Nadu State Election Commission, rep.by its Secretary, No.208/2, Jawaharlal Nehru Road, Arumbakkam, Chennai 600 106. 4. P. Srinivasan ... Respondents Writ Petition filed under Article 226 of the Constitution of India for issuance of writ of certiorari calling for the records of the respondents relating to the order of the first respondent in R.C.No.6799/2012/J2, dated 8.8.2013 and quash the same. For Petitioner : Mr.K.Doraisami, Senior Counsel, for Mr.Kandhan Duraisami For Respondents 1 & 2 : Mr.R.Ravichandran, Additional Government Pleader For 3rd Respondent : Mr.B.Nedunchezhiyan For 4th Respondent : Mr.M.Udaya Banu O R D E R
N. PAUL VASANTHAKUMAR, J.
By consent of learned counsel for all parties, the writ petition itself was taken up for final hearing on 11.10.2013 and further heard on 23.10.2013.
2. In this writ petition petitioner is challenging the order of the District Level Vigilance Committee represented by the District Collector, Kancheepuram, dated 8.8.2013 stating that the community certificate issued to the petitioner as Hindu Adi Dravidar, is not valid.
3. The brief facts necessary for disposal of the writ petition are as follows:
(a) Petitioner belongs to Hindu Adi Dravidar Community by birth and studied upto B.A. Degree. He was issued with a community certificate to that effect by the Tahsildar, Sriperumpudur on 22.1.1996 and in the school transfer certificate dated 21.6.1989 also petitioner's community is stated as Hindu Adi Dravidar Community.
(b) Petitioner solemnised his marriage as per Christian rites. However, he reconverted himself to Hindu religion along with his wife by undergoing Shuddhi ceremony conducted by Arya Samaj (Central Madras) and a certificate of reconversion to Hindu religion was issued by Arya Samaj on 5.6.2011. Reconversion and change of name of the petitioner and his wife were also duly notified in the official Gazettee of the Government of Tamil Nadu dated 15.6.2011 at page No.1237 of Part-IV, Section 4.
(c) Petitioner contested the election for the post of Gerugambakkam Panchayat President held on 19th October, 2011 and he was declared as a successful candidate with huge majority. He is functioning as President of the said Panchayat. One of the unsuccessful candidate by name M.Sundaresan filed election petition in O.P.No.59 of 2011 before the District Munsif Court, Kancheepuram, seeking to declare the petitioner's election as null and void and the said OP is pending.
(d) Another unsuccessful candidate by name P.Srinivasan, who is the 4th respondent herein, who got only 13 votes as against 2893 votes secured by the petitioner, filed W.P.No.7724 of 2012 seeking direction to consider his representation made to the District Collector, Kancheepuram on 28.2.2012 praying verification of community status of the petitioner. This Court by order dated 23.7.2012 without expressing any opinion on merits, directed the District Collector, Kancheepuram to forward the said complaint/representation to the District Level Vigilance Committee for consideration and the Committee was directed to examine the same and pass appropriate orders on merits and as per law, within eight weeks after affording opportunity to the petitioner and 4th respondent.
(e) It is the case of the petitioner that even though he was impleaded as 4th respondent in the said writ petition, no notice was served on him and the District Collector/the Committee also did not give any opportunity to the petitioner. Notice for enquiry sent by the District Collector was not sent in the name of the petitioner viz., K.Vasikaran and the said notice was sent in the name of K.Victor, which was returned by the postal authorities stating 'incorrect address'.
(f) On 16.11.2012, petitioner sent a representation to the District Collector and requested to give proper opportunity and conduct enquiry regarding the community status followed with reminders dated 24.11.2012 and 10.12.2012. Petitioner also filed W.P.No.32618 of 2012 and prayed for issuing a writ of mandamus directing the District Collector to forbear from in any manner resorting to or discharging the post of President of Gerugambakkam Panchayat without affording opportunity of being heard as contemplated under the Tamil Nadu Panchayats Act, 1994 and by order dated 6.2.2013, this Court disposed of the writ petition and clarified that in view of the earlier order dated 23.11.2012, orders can be passed by the District Collector only after affording an opportunity to the petitioner. Hence no further order is required to be passed in the subsequent writ petition.
(g) The District Vigilance Committee headed by the District Collector without communicating any decision to the petitioner, has chosen to communicate its decision to the Tamil Nadu State Election Commission, third respondent herein, pursuant to which the petitioner was issued with notice on 14.2.2013 by the Tamil Nadu State Election Commission calling upon the petitioner to appear for enquiry on 21.2.2013 under Section 41-A of the Tamil Nadu Panchayats Act, 1994. In the said notice, it was mentioned that the District level Vigilance Committee decided that the community certificate issued to the petitioner was not valid.
(h) Petitioner filed W.P.No.4288 of 2013 against the notice of the Tamil Nadu State Election Commission. A Division Bench of this Court by order dated 20.2.2012 dismissed the writ petition in view of the earlier directions issued by this Court. Petitioner appeared before the Tamil Nadu State Election Commission and also submitted a detailed representation. Thereafter no order was passed.
(i) Under Right to Information Act, a reply was received by the petitioner from the P.A. to RDO, Kancheepuram stating that the District Collector, Kancheepuram has decided that the community certificate of the petitioner was liable to be cancelled and the petitioner's election as President of the Panchayat was invalid and therefore he had sent a proposal to the Government for removal of the petitioner from the post of President of the Gerugambakkam Panchayat.
(j) It is the further case of the petitioner that the Sub-Collector (Training), Kancheepuram, once made a brief visit to petitioner's residence and without conducting any enquiry seems to have sent a report to the RDO and the said report was relied on for cancelling the community certificate, by the District Level Vigilance Committee.
(k) Petitioner again filed W.P.No.10759 of 2013 before this Court stating that without giving any opportunity, the community certificate was wrongly cancelled and this Court by order dated 25.4.2013 set aside the said order cancelling the community certificate and remitted the matter to the District Level Vigilance Committee with further direction to hold fresh enquiry and the enquiry was ordered to be conducted at 11 a.m. on 10.5.2013 in the presence of both the parties.
(l) On 10.5.2013 petitioner appeared along with his advocate by name J.Vinoth. The District Level Vigilance Committee refused permission to engage advocate. Petitioner represented his case by submitting a written representation and enclosed the following certificates/documents.
1. Transfer certificate dated 21.6.1989
2. Community certificate dated 22.1.1996
3. Community certificate dated 9.9.2011
4. Father's community certificate
5. Father's transfer certificate
6. Mother's community certificate
7. Mother's transfer certificate
8. Wife's community certificate
9. Certificate issued by the Arya Samaj (Central Madras) dated 5.6.2011
10. Tamil Nadu Gazette dated 15.6.2011 declaring/notifying reconversion and change of name of the petitioner and his wife.
11. G.O.Ms.No.1 Adi Dravidar and Tribal Welfare, dated 2.1.2009
12. Sworn affidavits given by local people of Hindu Harijan community expressing their acceptance of petitioner and his family members as Hindu Adi Dravidar Community dated 10.5.2013.
(m) Ultimately petitioner expressed his willingness to produce all the persons who have signed the affidavits, confirming acceptance of the petitioner as Harijan/Adi Dravidar to affirm the contents of the affidavit dated 10.5.2013 before the first respondent. The first respondent without considering the said documents produced as well as the written submissions made, passed an order on 10.5.2013 and confirmed the earlier order dated 5.2.2013 cancelling the community certificate, even though the said order was quashed by this Court. Petitioner again filed W.P.No.14583 of 2013 which was also ordered on 28.6.2013 wherein the petitioner has prayed for ordering fresh enquiry, which was rejected stating that the authority need not conduct fresh enquiry and based on the enquiry already conducted along with available records, orders may be passed.
(n) Again another representation was submitted on 8.7.2013, which was received by the District Collector on 10.7.2013. Subsequently on 8.8.2013 without even referring the representation dated 8.7.2013 as well as 31.7.2013 and without discussing/referring any of the certificates furnished to prove the community of the petitioner, as well as the G.O.Ms.No.1 Adi Dravidar and Tribal Welfare Department dated 2.1.2009, cancelled the community certificate on 8.8.2013 and the said order is challenged in this writ petition.
(o) The grounds raised in the writ petition are that the documents produced by the petitioner were totally ignored by the first respondent; that copy of the report of the Revenue Divisional Officer relied on in the impugned order was not furnished to the petitioner; that the impugned order is in violation of G.O.Ms.No.1 Adi Dravidar and Tribal Welfare Department,dated 2.1.2009; that the affidavit dated 10.5.2013 submitted by the petitioner from various persons of his village accepting the petitioner as Hindu Harijan have not been considered; that the portion of the statement of the Village Administrative Officer and Revenue Divisional Officer which are in favour of the petitioner have been ignored while relying the adverse portion alone; and that the Petitioner had been accepted by the community people after reconversion by electing him with huge margin, is a clear proof which has not been considered by the first respondent while passing the impugned order.
4. Mr.K.Doraiswamy, learned Senior Counsel appearing for the petitioner emphasised the grounds raised in the writ petition and also relied on certain judgments of this Court as well as the Hon'ble Supreme Court and submitted that at the time of filing nomination/scrutiny of nomination, 4th respondent failed to raise objection regarding the community status of the petitioner and the directions issued by this Court in the earlier proceedings between the parties have not been followed by the first respondent and the order of the first respondent is not only in violation of the principles of natural justice as the statements obtained from the VAO said to have been submitted before the RDO, was not recorded in the presence of the petitioner and neither the VAO nor the Sub-Collector (Training) or the RDO, who filed the report was examined to corroborate the contents therein, and prayed for quashing the order of the first respondent.
5. Mr.R.Ravichandran, learned Additional Government Pleader appearing for respondents 1 and 2 relying on the typed set of papers filed by the petitioner argued the matter without filing counter affidavit, and he relied on the statement given by the VAO as well as the report submitted by RDO to sustain the impugned order by stating that on visiting petitioner's house there were ample evidence to show that the petitioner is following Christian faith, though he got converted to Hindu religion, and therefore the factual finding given by the first respondent regarding the community status of the petitioner, cannot be challenged and the writ petition is liable to be dismissed.
6. Mr.B.Nedunchezhiyan, learned counsel appearing for the third respondent supported the stand of the learned Additional Government Pleader.
7. Mr.M.Udaya Banu, learned counsel appearing for the 4th respondent, who was one among the candidates opposed the petitioner in the election to the post of Gerugambakkam Panchayat President, submitted that the petitioner is a Christian by birth, born to Christian parents and he is following Christian doctrines even today. Petitioner married a Christian lady at Redeemer Christ Church, Kovoor in accordance with Christian matrimony (rituals and customs), and after reaffirming the Christian faith, the marriage was solemnised and his reconversion to Hindu religion through Arya Samaj (Central Madras) has not been proved by the petitioner. The learned counsel further submitted that by submitting the nomination form during election, petitioner has deceived the State Election Commission as well as the Electorates. Even now the petitioner's relatives are Christians and the petitioner is attending Church worship occasionally. The learned counsel also relied on the judgment of this Court reported in 2009 (1) LW 153 (M.Thangamuthu v. M.Chandra) wherein the election of a Member of Legislative Assembly Rajapalayam Constituency was set aside by this Court on similar grounds.
8. In reply to the said submissions, Mr.K.Doraiswamy, learned Senior Counsel appearing for the petitioner submitted that the judgment relied on by the learned counsel for the 4th respondent viz., 2009 (1) LW 153 (M.Thangamuthu v. M.Chandra) was overruled by the Hon'ble Supreme Court in the decision reported in (2010) 7 SCC 712 (M.Chandra v. M.Thangamuthu) and therefore the learned counsel for the 4th respondent is not justified in relying on the judgment of this Court, which was overruled by the Supreme Court. Therefore he prayed for allowing the writ petition.
9. We have considered the rival submissions made by the respective counsels as well as the documents relied on along with the judgments cited. From the pleadings the following issues arise for consideration.
1. Whether the first respondent is justified in ignoring the certificate dated 5.6.2011 issued by Arya Samaj (Central Madras) and the Gazette Notification of Government of Tamil Nadu dated 15.6.2011 issued declaring conversion of petitioner from Christian religion to Hindu faith.
2. Whether the first respondent is justified in solely relying on the statements said to have been given by VAO, Sub-Collector (Training), Kancheepuram, which were stated in the report of the RDO, based on which the first respondent decided the community status of the petitioner ?
3. Whether the first respondent is justified in giving a finding that the petitioner's relatives are still professing Christianity and merely because the symbol of cross is still available in pillars of the petitioner's house, which was constructed prior to his conversion to Hinduism, can be taken as clear proof of petitioner's continued faith in Christian religion ?
4. Whether the petitioner is justified in his contention that the overwhelming majority of the voters in the Panchayat having voted in his favour is a clear proof of acceptance of the petitioner as Hindu Adi Dravidar by Hindu Adi Dravidar community people ?
Issue No.1: Whether the first respondent is justified in ignoring the certificate dated 5.6.2011 issued by Arya Samaj (Central Madras) and the Gazette Notification dated 15.6.2011 issued declaring conversion of petitioner from Christian religion to Hindu faith.
10. Petitioner is a Hindu Adi Dravidar. To prove the same, he has produced the community certificate issued by the Tahsildar, Sriperumpudur dated 22.1.1996 and later on 1.12.2005 (in the permanent card) certifying that the petitioner is a Hindu Adi Dravidar (SC). In the transfer certificate issued to the petitioner on 21.6.1989 by the Headmaster of the Government High School, Kovoor, Chennai-101, petitioner's community is mentioned as Hindu Adi Dravidar. During his marriage, petitioner converted to Christianity and solemnised his marriage under Christian rites. The said marriage was performed in the Church. After marriage, petitioner and his wife reconverted to Hindu Religion by observing Shuddhi ceremony through Arya Samaj, Central Chennai and changed petitioner's Christian name i.e., 'K.Victor' to that of 'K.Vasikaran'. His wife's name 'Lidia Inbakumari' was also changed to 'Valli Vasikaran'. The said certificate was issued by Arya Samaj on 5.6.2011, which is competent to conduct reconversion ceremony. The reconversion of petitioner and his wife to Hindu religion was published in the Tamil Nadu Government Official Gazette dated 15.6.2011 Part VI, Section 4 and the said notification reads as follows:
"Thiru K.Victor (Christian), son of Thiru T.Krishnan, born on 28th March, 1972 (native District: Kancheepuram), residing at No.2/381, Thiruvallur Street, Gerugambakkam, Kancheepuram District, has reconverted to Hinduism with the name of K.Vasikaran on 5th June, 2011."
The said reconversion of the petitioner to Hindu religion through Arya Samaj by observing Shuddhi ceremony on 5.6.2011 has not been disproved by the 4th respondent, who challenged the community status of the petitioner, or any Revenue Officials before passing the impugned order. The certificate issued by the Arya Samaj was also acted upon and official declaration relating to community status of the petitioner and his wife and their name change was also declared in the Tamil Nadu Government Gazette, which is also not disproved by the respondents. After the gazette notification, petitioner also obtained community certificate from the Tahsildar, Sriperumpudur on 8.9.2011, who is the competent authority to issue community certificate to SC candidates. The said certificate was issued in the normal discharge of his duties by the Tahsildar. The said Tahsildar, who issued the community certificate was also not examined either by the respondents 1 and 2 or by 4th respondent.
11. In this context it is relevant to cite a judgment of the Supreme Court reported in (2010) 9 SCC 712 (M.Chandra v. M. Thangamuthu). In paragraph 65 of the Judgment, it is held that in the election petition filed it has not been brought on record by the Election Petitioner by way of evidence or by questioning the relevant authorities as to whether there was proper enquiry before the endorsement made by the Revenue Authorities. In the said judgment in paragraph 85 it is further held thus, "85. 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 Respondent 1, who clearly failed to do so. It is also baffling to note that the conversion certificate from the Arya Samaj was not examined in detail by the respondents in spite of the High Court making a strong observation in this regard. No proof by way of documents or oral evidence was provided to show how the certificate was granted and what procedure was followed. ........"
(Emphasis Supplied)
12. From the perusal of the impugned order it is ascertained that the petitioner reconverted to Hindu religion prior to election and genuineness of the certificate issued by the Arya Samaj, which was further notified in the Tamil Nadu Government Official Gazette and the community certificate issued subsequent thereto have not been considered. Thus, there is a presumption in favour of the petitioner regarding the community status of the petitioner under section 114 of the Indian Evidence Act, 1872.
(a) The Supreme Court in the decision reported in AIR 1971 SC 761 (Jugraj Singh v. Jaswant Singh) applied the presumption under Section 114 of the Evidence Act, 1872, on the ground that the execution and presentation of document for registration was authenticated by the Notary Public.
(b) In the decision reported in AIR 1969 SC 903 : 1969 (1) SCR 478 (State of Punjab v. Satya Pal) the Supreme Court applied the principle of presumption of regularity when the Government issued public notification regarding prorogation of Legislative Assembly. In paragraph 17 (in AIR), the Hon'ble supreme Court held thus, "17. We are, therefore, clearly of the opinion (which the High Court also unanimously entertained) that the prorogation became effective on the 11th when the Governor issued a public notification. The means open to the Governor under the Constitution are public notification and proclamation. Article 174(3) does not state what procedure is to be followed and Rule 7(8) says that the Secretary to the Assembly shall notify the order. If the Governor followed the same procedure no exception can be taken. ......
(c) In the decision reported in (1976) 1 SCC 863 (C.M.Arumugam v. S.Rajgopal) the Supreme Court considered the effect of reconversion of a person if he is accepted by the community as theirs. In paragraph 17 the Supreme Court held thus, "17. 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 prepared to readmit him as a member. It stands to reason that he should be able to come back to the fold to which he once belonged, provided of course the community is willing to take him within the fold. It is the orthodox Hindu society still dominated to a large extent, particularly in rural areas, by medievalistic outlook and status-oriented approach which attaches social and economic disabilities to a person belonging to a scheduled caste and that is why certain favoured treatment is given to him by the Constitution. Once such a person ceases to be a Hindu and becomes a Christian, the social and economic disabilities arising because of Hindu religion cease and hence it is no longer necessary to give him protection and for this reason he is deemed not to belong to a scheduled caste. But when he is reconverted to Hinduism, the social and economic disabilities once again revive and become attached to him because these are disabilities inflicted by Hinduism. A Mahar or a Koli or a Mala would not be recognised as anything but a Mahar or a Koli or a Mala after reconversion to Hinduism and he would suffer from the same social and economic disabilities from which he suffered before he was converted to another religion. It is, therefore, obvious that the object and purpose of the Constitution (Scheduled Castes) Order, 1950 would be advanced rather than retarded by taking the view that on reconversion to Hinduism, a person can once again become a member of the scheduled caste to which he belonged prior to his conversion We accordingly agree with the view taken by the High Court that on reconversion to Hinduism, the first respondent could once again revert to his original Adi Dravida caste if he was accepted as such by the other members of the caste."
13. The Government of Tamil Nadu issued G.O.Ms.No.1 Adi Dravidar and Tribal Welfare Department dated 2.1.2009, wherein it is ordered that even the children born to Christian Scheduled Caste parents, i.e, Christian by birth, converted to Hindu, Sikh or Buddhist religion at a later date, and the Scheduled Caste parents embracing such religion on reconversion, if they are accepted by their community people, the Revenue Authorities can issue community certificate to them to get constitutional privileges available to Hindu Scheduled Caste. Thus, the only legal requirement on reconversion is acceptance of their community people as Scheduled Caste Community. Applying the said Government Order, one of us (N.P.V.,J.) rendered a decision holding that reconversion to Hindu religion through Arya Samaj (Central Madras) was valid, which is reported in (2009) 1 MLJ 318 (C.Clara v. Principal, Government Quai-De-Milleth Arts College for Women). The said decision was confirmed by the Division Bench of this Court in W.A.No.908 of 2009, Judgment dated 11.9.2009.
14. Even assuming that the petitioner is visiting Church occasionally, the same cannot be put against the petitioner. This issue is also decided by the Division Bench of this Court in the decision reported in 2013 (1) CWC 111 (A.Jothimani v. The Secretary, Adi Dravidar and Tribal Welfare Department) wherein in paragraph 6 and 7 it is held thus, "6. ........... The order impugned goes on the footing of an enquiry made which revealed that the Petitioner has been visiting Church and offering rituals as per Christianity. The Constitution recognizes freedom to practice any religion. Visiting places of prayer or worship is a matter of individual choice or preference. Such mobility is available to a person without even changing to any religion from the one in which one is born. We do not understand how visiting Chruch, per se would result in the conversion from one religion to another. The enquiry merely revealed that the Petitioner observed rituals of the Christianity. Except for this, the report has nowhere stated that the petitioner, in fact, embraced Christianity. In the circumstances, we do not think the claim of the Second respondent that the petitioner is not entitled to a Community Certificate that she belongs to Hindu Adi Dravidar Community, could be accepted.
7. In the circumstances, we set aside the order of the Second Respondent, thereby, allowing the writ petition. The Sixth respondent is hereby directed to issue Community Certificate to the Petitioner as one belonging to Hindu Adi Dravidar Schedule Caste Community forthwith. ..."
Thus, issued No.1 is decided in favour of the petitioner.
Issue No.2: Whether the first respondent is justified in solely relying on the statements said to have been given by VAO and Sub-Collector (Training), Kancheepuram, which was stated in the report of the RDO, based on which the first respondent decided the community status of the petitioner ?
and Issue No.3: Whether the first respondent is justified in giving a finding that the petitioner's relatives are still professing Christianity and merely because the symbol of cross is still available in pillars of the petitioner's house, which was constructed prior to his conversion to Hinduism, can be taken as clear proof of petitioner's continued faith in Christian religion ?
15. The first respondent has decided the community status of the petitioner solely on the basis of the reports said to have been given by the Village Administrative Officer, Gerugambakkam and the report of the Revenue Divisional Officer, Kancheepuram, dated 18.9.2012 addressed to the District Collector, Kancheepuram. In the said statement of the Village Administrative Officer, it is stated that the petitioner's wife Tmt.Valli looks like a Hindu lady wearing Thali chain and having kumkum in her forehead and she has stated that her parents and relatives compelled her to perform marriage as per Christian rites and the marriage was not registered and they and their children are worshipping Hindu God. However, the Village Administrative Officer has further stated that a visit to the house of the petitioner showed that there were Vinayagar and other Hindu Gods photograph in pooja room and Kumkum, Chandan, Vibhoothi and Harathi lamp were not arranged in a proper manner. In petitioner's house, the Bible words were found. In the pillars of the house, there is inscription of Cross and near his house there is a Pentacost prayer hall owned by petitioner's brother. Petitioner also produced his transfer certificate, Transfer Certificate of his wife, Certificate issued by Hindu Arya Samaj dated 5.6.2011, Gazette notification dated 15.6.2011 relating to conversion, etc. Therefore, he has recommended cancellation of community certificate issued to the petitioner by the Tahsildar, Sriperumpudur.
16. The report of the Revenue Divisional Officer dated 18.9.2012 also contains similar averments, which is replica of the statement said to have been given by the Village Administrative Officer. The District Vigilance Committee solely relying on the report of the Village Administrative Officer and Revenue Divisional Officer, came to the conclusion that the petitioner is not living as a Hindu and ordered that the community certificate issued to him is not valid.
17. It is not the case of the respondents that the said reports were drawn in the presence of the petitioner and the persons who submitted the report were permitted to be cross-examined by the petitioner to contravert the contents in the report while relying upon the adverse report submitted by them. It is well settled principle of law that if a report is relied on to come to a conclusion the person who is likely to be affected by relying upon the said report, should not only be furnished with the copy of the report, but also be permitted to cross-examine the person, who prepared the report. In the absence of such a procedure being followed, the order of the first respondent in ordering cancellation of the community certificate issued by the Revenue Authority viz., Tahsildar, Sriperumpudur, cannot be sustained. The same was the consistent view taken by this Court. The decision of His Lordship Mr.Justice P.Sathasivam, as he then was decided a case in the decision reported in (2000) 1 MLJ 267 (N.Rajeswari v. The District Collector, Nellai Kattabomman District, Tirunelveli). In paragraph 13 and 14 it is held thus, "13. Another infirmity in the impugned order is that, even though copy of the report of the Sub-Collector was furnished to the petitioner along with the show cause notice, admittedly, the Enquiry Officer viz., the Sub-Collector obtained statement from several persons behind the back of the petitioner. Inasmuch as the District Collector considered not only the report of the Sub-Collector, but also the entire proceedings, the report based on the statement of several persons who were not examined in the presence of the petitioner cannot be relied upon as per the decision of this Court reported in D.Selvaraju v. Bharat Heavy Electricals Limited, 1991 WLR 68. The following conclusion of Mishra, J. (as he then was) is very relevant.
"5. In the instant case, however the quashing of the order of the Collector may not be necessary. The Collector may have come to a right conclusion. The Revenue Divisional Officer being a responsible officer, was not expected to report that villagers gave statements supporting the allegations that the petitioners belong to Forward Caste and do not belong to Scheduled Tribes Community. Yet, to satisfy the ends of justice, lest the petitioners may have a grievance that adequate opportunity of being heard was not given to them, in my view, a post-facto enquiry to test the veracity of the report of the third respondent with reference to the statements of the villagers will be necessary. On the facts of this case, I am inclined to order and accordingly direct the Collector, Tiruchirappalli, the second respondent, either himself to verify the statements of the villagers by examining them afresh in the presence of the petitioners or appoint any other officer to enquire into the allegation levelled against the petitioners with reference to the statements of the individual villagers in the presence of the petitioners."
In the light of the above decision, the impugned order of the District Collector relying on the report and other proceedings of the Sub-Collector cannot be sustained.
14. Decision of mine P.Sathasivam, J., reported in M.Ramamurthy v. State of Tamil Nadu, (1998) 3 MLJ 699 : (1998) 3 CTC 638 also supports the case of the petitioner."
18. Further, it is not the case of the respondents that the house where the petitioner is residing was constructed after reconversion. In the absence of any such positive proof, availability of cross symbol in the pillars of his house, which was inscribed prior to reconversion, cannot be a conclusive proof, particularly when admittedly there is a pooja room available in the petitioner's house and pictures of Vinayagar and other Hindu Gods are placed, though pooja articles on a particular date was not available, when Kuthuvilakku was available in the pooja room. It is an admitted position that pooja room will normally be available in the residence of people professing Hindu Religion and there may not be any separate room for prayer in every Christian house. Thus, the uncorroborated statement of the Village Administrative Officer as well as the report of the Revenue Divisional Officer, which was drawn on the basis of the visit of the Sub-Collector (Training) cannot be a conclusive proof to arrive at a conclusion that the petitioner is not professing Hindu religion after reconversion. Not conducting pooja by a Hindu in pooja room regularly also cannot be a conclusive proof to declare that the petitioner is not a Hindu.
19. It is an admitted position that the post of President of Gerugambakkam Village Panchayat is reserved for Scheduled Caste/Adi Dravidar Community. There is a procedure for filing nomination, filing objection, scrutiny, withdrawal and for declaring the eligible candidates, for the contestants. The 4th respondent, who contested against the petitioner for the post of President of Panchayat, who secured only 13 votes in the said election has not chosen to raise any objection about the community or religious status of the petitioner at the time of filing of nomination, scrutiny and before finally declaring the eligible contestants or before the declaration of election results.
20. In the decision of the Supreme Court reported in (2010) 9 SCC 712 (supra) in paragraph 85 it is held that no one raised any objection to the candidate while filing nomination for the assembly election for the reserved constituency and all the issues have been raised after the candidate won the Rajapalayam Assembly constituency. The said conduct of the contesting candidate in not raising objection at the time of filing nomination was stated as one of the reason to uphold the election of the said candidate as MLA.
21. If we apply the said principle to the facts of this case, it is clear that after election of the petitioner to the post of President of Panchayat with huge margin, a defeated candidate had chosen to file election petition and the 4th respondent had initiated proceedings against the petitioner seeking cancellation of his community certificate.
22. In fine, issue Nos.2 and 3 ar also decided in favour of the petitioner.
Issue No.4: Whether the petitioner is justified in his contention that the overwhelming majority of the voters in the Panchayat having voted in his favour is a clear proof of acceptance of the petitioner as Hindu Adi Dravidar by the community people ?
23. It is the fact in this case that the petitioner has won the Panchayat President Election with huge majority of votes viz., 2893 votes out of 5551 valid votes polled, as against 13 votes secured by the 4th respondent. The said Panchayat President post is reserved for scheduled caste community. Vast majority of voters, numbering 2893 cast their votes in favour of the petitioner in a reserved constituency, which shows acceptance of the petitioner by the Adi Dravidar Community people of that area and the same is a presumption, which can be relied on by the petitioner to sustain his community status regarding the acceptance of the petitioner in terms of the following judgments of the Supreme Court.
(i) In the decision reported in (1984) 2 SCC 91 (Kailash Sonkar v. Maya Devi) in paragraph 33 it held thus, "33. Another dominant factor to determine the revival of the caste of a convert from Christianity to his old religion would be that in cases of election to the State Assemblies or the Parliament where under the Presidential Order a particular constituency is reserved for a member of the scheduled caste or tribe and the electorate gives a majority verdict in his favour, then this would be doubtless proof positive of the fact that his community has accepted him back to his old fold and this would result in a revival of the original caste to which the said candidate belonged."
(ii) In the decision reported in AIR 2003 SC 4355 : (2003) 8 SCC 204 (Punit Rai v. Dinesh Chaudhary) it is held that acceptance of a person by the community people can be presumed, if he is elected by a majority in a reserved constituency.
(iii) In the decision reported in (2004) 1 SCC 1082 (State of Kerala v. Chandramohanan) it is held that merely by change of religion, a person cannot ceases to be a member of the community and the question would depend on the suffering from social disability and also following the customs and traditions of the community.
24. Thus, issue No.4 is also answered in favour of the petitioner.
25. Applying the said judgments to the facts of this case as well as the overwhelming evidence available to prove the genuineness of the community status of the petitioner, merely because the VAO and RDO have submitted some adverse statement/report, which are not corroborated by any other oral or documentary evidence, the first respondent is not justified in arriving at the conclusion that the petitioner is not belonging to Hindu Adi Dravidar Community.
26. In fine, the writ petition is allowed and the impugned order of the first respondent dated 8.8.2013 is quashed. No costs.
Index : Yes/No. (N.P.V.,J) (K.R.C.B.,J.)
Internet : Yes/No. 31-10-2013
vr
To
1. The District Collector, District Level Vigilance Committee,
Kancheepuram District, Kancheepuram.
2. The Secretary to Government,
Rural Development and Panchayat Raj Department,
State of Tamil Nadu, Secretariat, Chennai 600 009.
3. The Secretary, Tamil Nadu State Election Commission,
No.208/2, Jawaharlal Nehru Road, Arumbakkam,
Chennai 600 106.
N.PAUL VASANTHAKUMAR, J.
and
K. RAVICHANDRA BAABU, J.
vr
Pre-delivery Order in
W.P.No.25243 of 2013
31-10-2013