Orissa High Court
Nara Raghava Rao vs Nadiabasi Biswas on 3 April, 1986
Equivalent citations: AIR1986ORI255, AIR 1986 ORISSA 255
ORDER K.P. Mohapatra, J.
1. The petitioner has challenged the election of the respondent to the Orissa Legislative Assembly from 86 Malkanagiri (Scheduled Gaste) Constituency.
2. The case of the petitioner stated briefly is that his father late Nara Karanaya belonged to the Scheduled Caste of Domba (Dombo) community. He converted himself to the Christian religion. He married a second wife who was a Hindu through whom the petitioner was born. After the second marriage late Nara Karnaya ceased to profess the Christian religion and adopted the Hindu religion. He performed all functions and ceremonies and followed all customs and practices connected with the Hindu religion. Therefore, late Nara Karnaya, his second wife and the petitioner professed Hindu religion, were treated as such and belonged to Domba scheduled caste community. The petitioner had obtained a scheduled caste certificate (Ext. 2) from the Tahasildar, Motu.
In the general election of the year 1985 for the Orissa Legislative Assembly, the petitioner filed his nomination paper as a candidate for 86-Malkanagiri (Scheduled Caste) Constituency and along with his nomination paper he enclosed the scheduled caste certificate (Ext. 2). There were six other scheduled caste candidates, namely, Ramesh Majumdar, Sukumar Burman, Sadananda Mandal, Naka Kannayya, Naka Lachayya and respondent Nadiabasi Biswas. At the time of scrutiny of the nomination papers on 9-2-1985, Naka Kannayya raised objection to the effect that the petitioner did not belong to the scheduled caste of Domba community, but was a Christian. He produced some documentary evidence to prove the fact. The Returning Officer conducted an enquiry on 9-2-1985 and again on 11-2-1985, referred to documents and passed an order (Ext. 3) holding that the petitioner did not belong to the scheduled caste of Domba community, but was a Christian and so he rejected the nomination paper, as a result of which, the petitioner was prevented from contesting in the said election. The nomination paper of Ramesh Majumdar was rejected and Sadananda Mandal withdrew his candidature. Out of the rest of the candidates who contested the election, the respondent secured majority votes and was declared elected.
It is averred that on account of illegal rejection of the nomination paper of the petitioner and as he was wrongly prevented from contesting the election from 86-Malkanagiri (Scheduled Caste) Constituency, the election was materially affected and so the election of the respondent should be set aside.
3. The sole respondent who is the elected candidate of 86-Malkariagiri (Scheduled Caste) Constituency in his written statement has, inter alia, contended that the election petition is barred by limitation and is otherwise liable to be dismissed under Section 86(1) for non-compliance of the provisions of Sections 81, 82, 83 and 117 of the Representation of the People Act (referred to as 'Act'). The petitioner is a Christian by birth and all through professes the Christian religion. He never belonged to the scheduled caste of Domba community. His father was never a Hindu belonging to the scheduled caste of Domba community nor was he converted into Christianity at any time. As a matter of fact, the petitioner, his father late Nara Karnaya and his forefathers were at all points of time Christians. The petitioner's mother was not a Hindu. She was also a Christian. Assuming that she was a Hindu, after her marriage with late Nara Karnaya she professed Christian religion. So the petitioner born of Christian parents is a Christian by birth. The petitioner and the members of his family never practised Hindu religion nor performed functions and ceremonies connected therewith. The petitioner has never lived as a Hindu nor he has been treated as such by the Hindu community. He goes to the Church and performs religious ceremonies connected with Christianity. Therefore, the scheduled caste certificate (Ext. 2) granted in favour of the petitioner was not based on proper enquiry and was false. The petitioner had filed his nomination paper for election to the office of the Chairman of Podia Panchayat Samiti by making a security deposit of Rs. 100/- as a general candidate because, be belonged to the Christian Community. Had he been a scheduled caste candidate of Domba community, he would have made the security deposit at the concessional rate of Rs. 50/-. Therefore, an objection being raised by another candidate, Naka Kannayya, to the effect that the petitioner was not a scheduled caste candidate but was a Christian, the Returning Officer made proper enquiries and was satisfied on documentary evidence that he was actually a Christian and did not belong to the Scheduled Caste of Domba community. So he had no right to contest from 86-Malkanagiri (Scheduled Caste) constituency to the Orissa Legislative Assembly. Accordingly, the nomination paper of the petitioner was rightly rejected by order (Ext. 3).
It is averred that the election took place on 5-3-1985 and the result thereof was declared on 6-3-1985. The respondent who had contested as an independent candidate secured maximum number of valid votes and was declared elected. His election, therefore, cannot be set aside as void.
4. On the pleadings, the following issues have been framed : --
Issues
1. Is the Election Petition maintainable ?
2. Is the petition barred by limitation ?
3. Is the petition liable to be dismissed for non-compliance of the provisions of Sections 81, 82, 83 and 117 of the Representation of the People Act, 1951 ?
4. Is the petition liable to be dismissed, having not been accompanied by any affidavit on the date of presentation of the petition as required under Chap. 6, Rule 3(1), Part-II of Vol. I of the High Court Rules ? :
5. Is the Election Petition liable to be dismissed for non-joinder of the Returning Officer and other candidates as parties ?
6. Is the Election Petition liable to be dismissed for want of proper verification and affidavit ?
7. Is the petitioner a member of the Scheduled Caste as notified by the President of India under Article 341 of the Constitution and whether he is qualified for contesting the election ?
8. Is the petitioner a Hindu and a Scheduled Caste (Domba) or (Dombo) or he is a Christian by religion and if so disqualified for contesting the election ?
9. Has the nomination of the petitioner been improperly rejected ?
10. To what relief the petitioner is entitled, if any ?
Findings
5. Issues Nos. 7 and 8 : -- 86-Malkanagiri, indisputably is a scheduled caste constituency. It has been provided in Clause (3) of the Constitution (Scheduled Castes) Order, 1950 that no person who professes a religion different from the Hindu or the Sikh religion shall be deemed to be a member of a Scheduled Caste. In view of the aforesaid provision, a person who professes Christian religion is ineligible to contest from the aforesaid constituency even though, originally he might have belonged to a Scheduled Caste. The centre of dispute in this Election Petition is, whether, the petitioner, whose nomination paper, enabling him to contest for the Orissa Legislative Assembly from 86-Malkanagiri (Scheduled Caste) Constituency, was rejected by the Returning Officer on 11-3-1985 on the ground that he was a Christian and did not belong to a Scheduled Caste, is in reality a Christian or a member of the Scheduled Caste of Domba (Dombo) community?
6. In order to prove that he is a Hindu belonging to Domba (Dombo) community and does not profess Christian religion, the petitioner has relied on the following oral, as well as, documentary evidence : --
Oral evidence.
Evidence of P.Ws. 3, 4, 5 and 6. Documentary evidence
(i) Ext. 2, caste certificate; (ii) Ext. 6, order of the Tahasildar, Motu dt. 27-11-1982; (iii) Ext. D, the application of the petitioner for grant of a caste certificate and the report of the Revenue Inspector, Podia thereon."
In order to prove that the petitioner is a Christian and is not a Hindu belonging to the Scheduled Caste of Domba (Dombo) community, the respondent has relied on the following oral and documentary evidence :--
Oral evidence Evidence of P.W. 2 and R.Ws. 1, 3, 4, 5, 6 and 7.
Documentary evidence.
(i) Ext. 3, orders passed by the Returning Officer on 9-2-1985 and 11-2-1985 rejecting the nomination paper of the petitioner; (ii) Ext. 5, certificate of the Revenue Inspector, Podia to the effect that in Khata No. 525/171 of Podia the recorded tenant, namely, the petitioner was noted as a Christian by caste, (iii) Ext. 4, a sale-deed dt. 28-5-1973 in which the executants, namely, the stepbrothers of the petitioner were described as Christians; (iv) Ext. 7, the record of R.M.C. No. 60 of 82 of the Court of the Tahasildar, Motu in which proceedings were drawn up for cancellation of the caste certificate (Ext. 2); (v) Ext. A, the written objection filed by R. W. 6, Naka Kannayya before the Returning Officer stating that the petitioner is a Christian (vi) Ext. B, certified copy of record-of-rights in which the petitioner as the recorded tenant has been shown as a Christian, (vii) Ext. F, the nomination paper filed by the petitioner for election of Chairman of Panchayat Samiti, Podia (viii) Ext. G, a receipt showing payment of Rs. 100/- by the petitioner along with the nomination paper (Ext. F); (ix) Ext. H, the certificate by one B. Podiami dt. 22-7-85 stating that the petitioner is a Christian.
Discussion of Oral Evidence : --
7. P.W. 1 was the Returning Officer of 86-Malkanagiri (Scheduled Caste) Constituency during the general election to the Orissa Legislative Assembly held in February-March, 1985. He stated that at the time of scrutiny of the nomination papers on 9-2-1985 and 11-2-1985, on the objection of one of the candidates r. w. 6, Kannayya, he examined the document, such as, Ext. 2, Ext. 4, Ext. 5 and nomination paper filed by the petitioner to contest for the Chairmanship of Podia Panchayat Samiti on deposit of Rs. 100/- as security (Exts. F and G). He arrived at the conclusion that the petitioner does not belong to the Scheduled Caste of Domba (Dombo) community and is a Christian. The finding of the Returning Officer has no binding effect because, on materials available to him during enquiry he conducted, he arrived at a particular conclusion. This Court, on oral and documentary evidence placed before it, has to arrive at its own conclusion on the point at issue. Therefore, the evidence of P.W. 1 is not very material and it is enough that a reference has been made to it.
8. P.W. 3 is a Hindu and is the maternal uncle of the petitioner. He has stated that he is a Domba by caste. His village is at a distance of one mile from Podia to which the petitioner belongs. The father of the petitioner had married his sister for the second time. The petitioner is the son of his sister. His sister was a Hindu till her death. The petitioner's father became a Hindu after marriage to his sister and left his first wife and the children born through her. The petitioner's father observed the religious ceremonies of Hinduism. The petitioner is a Hindu and belongs to Domba community. He visits Hindu temples alongwith the members of his family. He does not visit the Church. The petitioner's mother died four years back and the funeral ceremony was performed according to the Hindu rites. In cross-examination he has stated that the petitioner's father married his sister about 50 years ago. (The witness has stated his age to be 50 years). He was aged 10 years when the petitioner's father married his sister. The aforesaid statements show that if at all he was born, he was a child when the petitioner's father married his sister. Therefore, his evidence of performance of a religious ceremony by the petitioner's father for conversion to Hinduism can hardly be accepted. As a matter of fact, in the latter part of his cross-examination he admitted that he did not see the conversion ceremony of the petitioner's father from Christianity to Hinduism. But he had heard of it. He has further stated that the petitioner has married a Hindu girl. He shaved his head when he performed the funeral ceremonies of his parents.
The evidence of this witness has been, challenged on the ground that being the maternal uncle of the petitioner he is an interested witness and his evidence should be discarded. It is true that he is an interested witness because of his close relationship with the petitioner, but in a case where the question is as to which religion the petitioner belongs, the assessment of near relatives about the practice of religion by the petitioner is an important factor. Therefore, instead of totally rejecting the evidence of P.W. 3 on the ground of interestedness, it would be reasonable to consider the same with great caution while seeking for corroboration from independent sources.
9. P.W. 4 is a Domba convert to Christianity. He has stated that the petitioner's father was a Christian and had married a Christian wife. He lived with the petitioner's mother and left his first wife and three children who lived separately. The petitioner's father was ex-communicated from the Christian community. The petitioner's mother was a Hindu. Her funeral rites were performed according to Hindu customs. The petitioner is a Hindu and not a Christian. In cross-examination he has staled that his house is at a distace of hundred yards from the petitioner's house intervened by 10 to 12 houses. He never visited the petitioner's house. The members of his family had no social relationship with the petitioner's father nor with the petitioner. He was present when the father of the petitioner was converted to Hinduism, but he could not say about the ceremony after going through which the conversion took place. This part of the evidence of the witness cannot be accepted on the ground that he is aged 50 years and he in the case of P.W. 3, he must have been a child when the alleged conversion took place. He has further proceeded to state that the petitioner's father was putting vermillion on his fore-head and was performing Hindu Pujas and ceremonies by seeing which he got the impression that he got converted to Hinduism. At the time of ex-communication of the petitioner's father he was aged about 20 years which cannot be true in view of the evidence of P.W. 3. The petitioner had a love marriage with a Hindu girl. He did not attend the marriage ceremony. His evidence read as a whole does not inspire confidence.
10. P.W. 5 is a Christian. He has stated that the first wife of the petitioner's father is his father's elder sister. In other words, the Christian step-mother of the petitioner is his aunt and as such he is a relation of the petitioner. He has stated that the petitioner is a Domba by caste and not a Christian. In cross-examination he has stated that the petitioner was not baptised in the Church. He could not say if any record is kept in the Church noting the names of persons baptised as Christians. Peculiarly, he has stated that the children of Christians, till they are baptised, are considered as Hindus. He has no social relationship with the petitioner and does not visit his house except now and then. During such infrequent visits he came to know that the petitioner observes Hindu customs. He could not say if the petitioner's mother was a Hindu or a Christian when she began to live with the petitioner's father.
The witness being a relation of the petitioner is prone to support his case. But one thing which is clear from his evidence is that, in the region the parties and the witnesses reside, there is hardly any religious inhibition amongst the Domba community because, according to his evidence, one of his wives was a Hindu and two of the brothers of R. W. 6, Naka Kannayya are Christians although he himself is a Hindu. Besides stating that the petitioner is a Hindu, the witness has not stated in detail as to what Hindu customs and ceremonies he observes. Perhaps, because, he is not a frequent visitor to the petitioner's house he is unable to speak about the same. If that be so, it is not possible to place absolute reliance on his evidence with regard to his statement that the petitioner is a Hindu.
11. P.W. 6 is the petitioner. He has stated that he had obtained the scheduled caste certificate (Ext. 2) from the Tahasildar, Motu in R.M.C.No. 60 of 1982. The certificate was granted after due enquiry. He was a candidate in the general election for the Orissa Legislative Assembly and had filed his nomination paper for 86-Malkanagiri (Scheduled Caste) Constituency. R.W. 6, Naka Kannayya, another candidate raised obj ection on the date of scrutiny namely, 9-2-1985 by filing a petition (Ext. A) on the ground that he is not a Hindu belonging to the scheduled caste of Domba community but a Christian. P.W. 1, the Returning Officer held enquiry on 9-2-1985 and 11-2-1985 and after considering documents held that the petitioner does not belong to the scheduled caste or Domba community, but is a Christian and so rejected his nomination paper. If he would have contested the election he was hopeful of success.
He has stated that his father was a Christian, but he married his mother who was a Hindu. After such marriage, his father became a Hindu and continued to remain as such till his death. Both his father and mother belonged to Domba community. His father's first wife and the children begotten through her are alive and are still Christians. They are living in a separate house in the same homestead. He has no relationship with the family of his father's first wife and her children. His father died when he was aged three years and his mother died in January, 1983. He performed the funeral ceremony of his mother according to the Hindu rites. Since the petitioner was aged three years when his father died, he is not in a position to say whether at the time of marriage between his father and mother the latter was a Hindu and if after such marriage his father became a Hindu and practised Hindu customs till his death. As a matter of fact, the petitioner has provided no evidence about the conversion of his father from Christianity to Hinduism after he married his mother.
He has stated that he had a love marriage in 1982. At that time his father-in-law and all members of his family were Hindus. Naturally his wife was also a Hindu. Two years after his marriage his father-in-law embraced Christianity, but his wife still continues to be a Hindu. He practises Hindu customs.
He admitted that he contested for the office of the Chairman, Podia Panchayat Samiti and along with his nomination paper he had deposited security money of Rs. 100/- meant for general candidates. He was unable to deposit security money of Rs. 50/- meant for scheduled caste candidates because, he had forgotten to bring the caste certificate.
In his cross-examination, it is revealed that he read up to VIIth class in Podia M.E. School during which time he was staying in his own house and from VIIIth class up to matriculation he was a student of Jeypore Evangelical Lutharian School from which he passed his matriculation examination. He was staying in the hostel meant for scheduled castes and scheduled tribes students.
In the record-of-rights it has been noted that he is a Domba by caste. Although it was with him, he did not produce the same. According to the above statement, the record--of-rights undoubtedly is an important document to prove his caste and religion, but the same has been withheld from the Court for which adverse inference has to be drawn against him. On the other hand, he admitted that the record-of-rights (Ext. B) is in respect of Ac. O. 16 cents of land which he had purchased from two persons of Podia pertaining to Khata No. 525/171 in which it is noted that he is a Christian. He has also admitted that a proceeding has been initiated against him by the Tahasildar, Motu for cancellation of the caste certificate (Ext. 2) which is still pending. P.W. 3 is his maternal uncle and P.W. 5 is the son of his step-mother's brother. He has also admitted that P.W. 2, whose evidence will be discussed later, is a neighbour and both of them know each other since childhood.
He has stated that the son of a Christian is a Christian as the son of a Hindu is a Hindu and the son of a Muslim is a Muslim. There is no evidence to show that his father was excommunicated by the Christian society because, he lived with a Hindu woman except that the fact was told to him by his mother. There is also no document to show that his father was converted from Christianity to Hinduism after such marriage. He was asked about the car festival at Puri and existence of two Hindu temples in his village and he answered them correctly. But this, by itself, will not prove that he is a Hindu because, the famous car festival of Shri Jagannath at Puri is known all over the world and by the people of all religions and faith and so it is no wonder that the petitioner has knowledge of the same. As the petitioner's village is not a large one and there are two Hindu temples, it is also not unlikely that he knows about the same.
It is significant to note that the petitioner has not stated that by and large he was accepted and treated as a Hindu in the Hindu community of his village and he attended communal and religious ceremonies or communal and social functions of Hindus. His evidence by and large is self-serving.
12. The respondent has adduced evidence to prove that the petitioner is a Christian and not a Hindu belonging to Domba community. Before discussing the evidence adduced by him, the evidence of P.W. 2 can be usefully discussed. P.W. 2 indisputably is a neighbour of the petitioner and both of them are known to each other from childhood. He is a Hindu belonging to Domba community. He came as a witness of the petitioner and stated that the petitioner is a Christian. He was declared hostile and was cross-examined. In cross-examination by the petitioner, nothing substantial has been elicited so as to disbelieve his statements. In cross-examination by the respondent, he has stated that the parents of the petitioner were Christians. All the family members of the petitioner are Christians. They go to the Church which adjoins his homestead and do not visit temples. There seems to be a ring of truth in the evidence of this witness, because he has candidly stated that P.W, 3 who is the maternal uncle of the petitioner is a Hindu and all the members of his family are also Hindus. According to him, the marriage ceremony of the petitioner was performed in the Church. He married the daughter of B. Sanjiba Rao of the same village who is a Christian.
The evidence of the witness is such that it cannot be easily discarded.
13. R. W. 1 has stated that the petitioner's father was a Christian and had married two Christian wives. The petitioner is a Christian, so also, his wife and father-in-law. R.W. 1 is a Hindu by religion. While reading in the M.E. School of Podia till VIIth class the petitioner was staying in the hostel of the Church of South India where only Christian students were allowed to stay. After Vllth class the petitioner studied in J.E.L.C. School at Jeypore and was staying in the hostel where only Christian students were allowed to stay. The petitioner's mother was buried according to Christian rites. The petitioner attended the Church and does not visit temples. He performs all functions according to Christian customs. The cross-examination of this witness will disclose that he never went inside the house of the petitioner. He did not go inside the hostel of the Church of South India where only Christian students were allowed to stay. Because he is aged only 32 it is not possible on his part to say about the marriage of the petitioner's father and mother. Being a Hindu it is not usually expected of him to know about the marriage of the petitioner and the funeral rites of his mother. His evidence, read as a whole, will show that except for the fact that being a co-villager, he is aware that the petitioner is a Christian by religion, he has no knowledge about the observance of customs by the petitioner and his stay during studies in Christian hostels.
14. R.W. 3, aged 31 years is the Sarpanch of Podia Gram Panchayat. He is a Hindu and lived in a different locality though in the same village. According to his evidence, the father of the petitioner was a Christian and the petitioner is also a Christian. He was a class-mate of the petitioner in Podia U.P. School. The petitioner was staying in the hostel meant for Christian students. After VIIth class the petitioner went to Jeypore and became a student of J.E.L.C. School. He was staying in the hostel meant for Christian students. The petitioner married in the family of a Christian. His wife is a Christian. In cross-examination he has stated that if he is invited to take part in a feast by a Harijan or by a Domba Christian, he will not attend the feast, but will simply attend the function. People of Telega caste to which he belongs do not enter inside the houses of Dombas or Christians. He has not gone inside the house of any Hindu Domba or Christian Domba. He has not gone inside the Church of his village. He has no personal knowledge as to where the petitioner studied after passing the U.P. examination at Podia. He did not go inside the Christian hostel. Although the petitioner invited him to attend his marriage ceremony, the witness did not attend.
The witness has been forthright in making statements, based on his general impression that except the reputation of the petitioner that he is a Christian by religion he -has no other personal knowledge about him.
15. R.W. 4 aged 33 years is a Hindu. He has stated that the father of the petitioner was a Christian. This statement cannot be accepted because, by the time the petitioner's father died, the witness must have been a child. He has stated that the petitioner and his wife are Christians. His mother was a Christian. His father-in-law is also a Christian. The marriage ceremony of the petitioner was performed in the Church of South India which he had attended. On the next day the petitioner entertained guests in a feast which also he had attended. While reading in the village school the petitioner was staying in the Christian hostel. The funeral ceremony of the petitioner's mother was performed according to Christian rites. He had gone to the burial ground. In cross-examination he has stated that although he was not summoned to appear in the Court, at the request of R. W. 1 he has come to the Court. He did not enter inside the Christian hostel of the village. There might be records in the Christian hostel to show that the petitioner was a resident thereof. He has not gone inside the houses of Christians or Dombas in the village. He has not dined in their houses. The marriage dinner was given by the petitioner in the house of one Madri Pravakar Rao who is a Christian. He has not gone inside the petitioner's house. He has gone up to the outer court-yard in front of the house. He has not allowed the petitioner to come inside his own house.
The evidence of this witness, read as a whole, gives the impression that he knows by reputation that the petitioner is a Christian and his evidence on other points is unacceptable.
16. R.W. 5 is the respondent. He has stated that at the time of scrutiny of the nomination papers, when R. W.6, Naka Kannayya raised objection before the Returning Officer to the effect that the petitioner does not belong to the Scheduled caste but is a Christian, he came to know him for the first time. After the election was over and he received summons in the Election case, he made enquiries in village Podia by holding a meeting of local gentlemen in the house of one Poi Appa. The gentlemen present in the meeting told him that the petitioner is a Christian. He also obtained a certificate (Ext. H) from Brahmananda Podiami, Chairman of the Podia Panchayat Samiti to the effect that the petitioner is a Christian. For the purpose of this case he also collected materials to produce as documentary evidence to prove the religion of the petitioner. He has not pretended to know the details about the caste and the religion of the petitioner prior to the date of scrutiny of the nomination papers. His evidence though appears to be true shall only be considered as such without adding any importance to his case.
17. R.W. 6, Naka Kannaya had earlier been elected to the Orissa Legislative Assembly from Malkanagiri (Scheduled Caste) Constituency. He had filed nomination paper to contest in the general election to the Orissa Legislative Assembly held in 1985. He raised objection to the nomination paper of the petitioner on the ground that the latter does not belong to the scheduled caste of Domba community, but is a Christian by religion. He produced documentary evidence to prove his objection and ultimately the objection raised was upheld by the Returning Officer and the nomination paper was rejected. He is an important and knowledgeable man of the locality having previous acquaintance with the petitioner who previously was a co-party worker. So the importance of his evidence cannot be undermined. He has stated that the petitioner is a Christian. At the instance of the Returning Officer, as is revealed from the letter (Ext. K) addressed to the Pastor of C.S.I. Church, Podia, he even wanted inspection of documents maintained in the aforesaid Church to prove that the petitioner is a Christian, but the Pastor of the Church, according to his evidence, avoided and kept himself away so as not to give opportunity to the witness for inspection of the Church documents. On consideration of his evidence I find nothing to discard the same.
At the time of recording his evidence, the document marked 'Z-2' for identification was sought to be proved by the petitioner. The document is the carbon copy of a certificate on the writing pad of the Orissa Legislative Assembly. It is purported to have been given by R.W.6 on 2-8-1978 when he was a sitting member of the Orissa Legislative Assembly certifying that the petitioner belongs to the scheduled caste, his sub-caste being Domba. R.W. 6 denied to have given the certificate and also denied his signature marked 'Z-1' for identification. Because of late production of the document by the petitioner and for reasons assigned by this Court in order dt. 6-1-86 (vide Misc. Case No. 119 of 1985) the petitioner's prayer for sending the document to the Handwriting Expert for the purpose of examination and comparison of the disputed signature marked 'Z-l' for identification with his admitted signature in Ext. A, the prayer was refused. Even if the document marked 'Z-2' for identification had been sent to the Handwriting Expert and he would have opined that the signature of R. W.6 marked 'Z-1' for identification was genuine and was given by him, then the certificate would have served the principal purpose of controverting the evidence of R. W. 6 and the subsidiary purpose of being one of the pieces of evidence in support of the petitioner's contention that he belongs to the scheduled caste. This document, therefore, could not have been decisive. On the sole consideration of which it could be held that the petitioner belongs to the scheduled caste.
18. R.W. 7 is a Christian and is a neighbour of the petitioner. His house is at a distance of about 20 cubits from the petitioner's house. He is the nephew of P.W. 3 and the petitioner's mother was his father's sister. He has stated that the petitioner and his wife are Christians. They visit Church. He has got family relationship with the petitioner and both of them are in visiting terms to each other's houses. He was staying in Sarah Cain Memorial Orphanage while he was a student of the village School. The petitioner was also an inmate of the said hostel which was not open to Hindu students and accommodated only Christian students. The petitioner's marriage was performed in the Church according to the Christian rites. He had attended the marriage ceremony. The petitioner's father was a Christian and the petitioner does not profess Hindu religion. In cross-examination he has stated that P. W.3, his father's brother, is a Hindu. In the School at Podia the petitioner was junior to him by one year. All Christian students of Podia live in the hostel. He could not say when the petitioner's father died because he was a child. So his evidence with regard to the religion of the petitioner's father seems hearsay and not based on personal knowledge. But so far as his evidence with regard to the religion of the petitioner is concerned, the same cannot be lightly brushed aside.
Discussion of Documentary Evidence : --
19. Ext.3 : It consists of the orders passed by the Returning Officer, 86-Malkanagiri (Scheduled Caste) Constituency on 9-2-1985 and 11-2-1985 when one of the candidates, R.W.6 Naka Kannayya raised objection to the effect that the petitioner, another candidate who had filed his nomination paper does not belong to the scheduled caste but professes Christianity. The petitioner was represented by an advocate who argued his case before the Returning Officer. P.W. 1 considered the following documents : --
1) Caste certificate granted by the Tahasildar, Motu in favour of the petitioner stating therein that he belongs to the scheduled caste, the sub-caste being Domba.
2) Record-of-right standing in the name of the petitioner in which he is described as a Christian.
3) Sale-deeds executed by the step-brothers of the petitioner in favour of R. W. 6 on 28-5-1973 in which their religion was described as Christianity; and
4) Deposit of security money of Rs. 100/-by the petitioner when he contested for the office of Chairman, Podia Panchayat Samiti, although as a scheduled caste candidate he could have made a security deposit of Rs. 50/-only.
In the enquiry, P. W. 1 did not place reliance on the caste certificate and accepted the other documents and decided that the petitioner does not belong to the scheduled caste of Domba community but is a Christian.
The finding of the Returning Officer (P. W.1) is not binding on this Court. This Court has to arrive at an independent conclusion with regard to the caste and religion of the petitioner on the evidence adduced before it. It can only be said that an authority like the Returning Officer having jurisdiction to take a decision on the caste and religion of the petitioner did take a decision against him and to this extent, Ext. 3, orders passed by the Returning Officer (P.W.I) are relevant.
20. Ext. 5 and Ext. B :- At the time of scrutiny of the nomination papers, Ext. 5 was produced before the Returning Officer (P. W. 1). It is a certificate given by the Revenue Inspector of Podia to the effect that Khata No. 525/171 of village Podia stands recorded in the name of the petitioner and it is further recorded that he is a Christian by caste. Ext. B is the certified copy of the record-of-rights in respect of Khata No. 525/171 standing in the name of the petitioner and he has been described in it as a Christian.
Learned counsel appearing for the petitioner urged that according to the settled principle of law, entries in the record-of-rights give rise to the presumption that the person who is shown to be in possession of land is in Khas possession thereof. No. such presumption, however, is attached to other entries, such as, caste etc. In support of his contention he had relied on Sections 11 (5) and 13 of the Orissa Survey and Settlement Act, 1958 (hereinafter referred to as the 'Settlement Act') and Rule 21 of the Orissa Survey and Settlement Rules, 1962 (hereinafter referred to as the 'Settlement Rules'). He has also placed reliance on AIR 1920 PC 46 Nageshar Baksh Singh v. Mt. Ganesh, AIR 1925 PC 132, Mt. Bhagwani Kunwar v. Mohan Singh, AIR 1948 PC 210, Durga Prasad v. Ghanshiam Das and AIR 1976 SC 1485, Vishwa Vijay Bharati v. Fakhrul Hassan. Learned counsel appearing for the respondent on the other hand urged that Courts in India have given weight to entries with regard to caste made in the record-of-rights and in support of his contention he has relied on AIR 1971 SC 2533, Bhaiya Ram Munda v. Anirudh Patar and ILR (1981) 1 Cuttack 353, Norosingh Tripathy v. Gurubaru Majhi.
S. 11(5) of the Settlement Act has made the following provisions : --
"11. Power of Government to Order preparation of record-of-rights : --
5. The record-of-rights shall be comprised of--
(a) the khewat which shall show the character and extent of proprietary interest and may also show the particulars of other rent receiving interests; and
(b) the khatian which shall show such details as may be prescribed.
Rule 21 of the Settlement Rules has prescribed the details to be shown in the khatian. Rule 21 is quoted below for easy reference : --
"21. Particulars to be recorded :-- Where an order is made under section 11, the particulars to be recorded shall be specified in the order and may include either without or in addition to other particulars, all or any of the following, namely : --
(i) the name of each tenant or occupant, (ii) the class to which each tenant belongs.
(iii) the situation and extent of the land held by each tenant or occupant.
(iv) the name of the landlord of each tenant.
(v) the name of each proprietor and landlord.
(vi) the rent and charges for irrigation payable by each proprietor, landlord, tenant or occupant.
(vii) if the rent is a gradually increasing rent, the time at which and the steps by which it increases,
(viii) the use of water for agricultural purposes whether obtained from a river, tank or well or any other source of supply and the repair and maintenance of works for securing supply of water for the cultivation of the land held by each proprietor, landlord, tenant or occupant, whether or not such works be situated within the boundaries of such land.
(ix) the special conditions or incidents, if any, of the tenancy,
(x) any right of way or other easement attached to the land,
(xi) if the land is claimed to be held rent free whether or not rent is actually paid, and if not paid, whether or not the occupant is entitled to hold the land without payment of rent, and if so entitled, under what authority."
Section 13 of the Settlement Act has made a provision as to the presumption to be drawn from the entries made in the record-of-rights. According to Sub-section (3) thereof:
"3. Every entry in a record-of-rights so published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved by evidence to be incorrect:"
The sum total effect of the aforesaid provisions is that for preparation of record-of rights the particulars prescribed in Rule 21 have to be recorded. Every entry thus made and published shall be treated as evidence of the matter referred to therein and shall be presumed to be correct until the contrary is proved. Rule 21 does not prescribe the religion or caste of the tenant to be recorded in the record-of-rights. So even if the religion or caste of the tenant is recorded in the record-of-rights, presumption under Section 13(3) about the correctness of such entry cannot arise.
In the decisions of the Privy Council referred to above the principle that was laid down was, entries in the settlement record-of-rights, though important evidence of the matter recorded therein, are not conclusive evidence. In the case of Vishwa VJjay Bharati (AIR 1976 SC 1485) (supra) it was held that the entries in the revenue records ought, generally, to be accepted at their face value and Courts should not embark upon an appellate inquiry into their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine, but it is real. The distinction is that one cannot challenge the correctness of what the entry in the revenue record states. In the case of Bhaiya Ram Munda (AIR 1971 SC 2533) (supra) the question that arose for consideration was whether the elected candidate belonged to the scheduled tribe. In order to prove the caste/community of the elected candidate certified copies of two khatians were admitted into evidence. The Court considered the same in the light of other documentary evidence and held : --
".....Exhibits 4 and 4(a) are certified copies of two raiyati khatians in which the caste of the tenants who were patars is mentioned as Patar, but from that also no inference arises that they are a tribe distinct from Mundas."
In the case of Narosingh Tripathy (ILR (1981) 1 Cuttack 353) (supra) the question for consideration was whether the elected candidate belonged to the scheduled tribe. As proof of the community on which the elected candidate belonged, a large number of records-of-rights in which entries had been made with regard to caste and community were proved. In consideration thereof a learned single Judge of this Court held : --
"All the record-of-rights-Exts. 5 and C to G have been prepared in course of one and the same settlement. The presumption arising out the entry in Ext. 5 about the caste of Bali Pujari stands rebutted by the entries made in Exts. C to G."
Of course the provisions of the Settlement Act and the Settlement Rules were not discussed. Nevertheless due importance was given to the entries made in the record-of-rights. Consideration of the provisions of law and the decisions lead to the conclusion that although entries made in the record-of-rights shall be presumed to be correct until the contrary is proved, such entries are confined to those prescribed in law. If entries not prescribed in law are made in the record-of-rights, such as, caste or community of the tenant such entries cannot be presumed to be correct as in the case of entries referred to above. Nevertheless, entries in the record-of- rights with regard to the caste and community of the tenants can be treated as evidence like any other evidence. Viewed in that light, the entry made in the record-of-rights (Ext. B) to the effect that the petitioner is a Christian by religion is a piece of evidence -- a good piece of evidence -- to be considered along with other evidence. It cannot be altogether ignored as it has a direct bearing on the principal point at issue. It also goes a long way to prove that the reputation of the petitioner, in the locality is that he is a Christian.
21. Ext. 4 -- It is a sale-deed executed by the step-brothers of the petitioner on 28-5-1973 in favour of r.w. 6 Naka Kannayya in respect of some land. The vendors have described themselves as Christians in the sale deed. The petitioner and his witnesses have not denied the fact that the first wife of the petitioner's father and the sons born through her profess Christianity. For the reason that the step-brothers of the petitioner are Christians, a conclusion cannot be drawn that the petitioner is also a Christian. So the sale-deed (Ext. 4) does not, in my view, improve the case of the respondent. It only shows that the step-mother and the stepbrothers of the petitioner profess Christianity.
22. Exts. 2, 6, 7, D and E : -- Ext. 7 consists of the entire record of R.M.C. No. 60 of 1982 of the Court of the Tahasildar, Motu. The record discloses that on the application of the petitioner a scheduled caste certificate (Ext. 2) was granted to him by the Tahasildar, Motu on 27-11-1982 and subsequently on 25-4-1985 an enquiry was initiated for cancellation of the scheduled caste certificate on the ground that it was obtained fraudulently.
By letter No. 38402/HTW dt. 2-12-1980 the State Government communicated a set of rules, namely, the Orissa Caste Certificate (for SC and ST) Rules, 1980, which came into force at once. According to Rule 6 thereof, the Tahasildar was one of the competent authorities to grant a scheduled caste or scheduled tribe certificate. According to Rule 4(iv), a person claiming to be of a scheduled caste must profess either the Hindu or the Sikh religion. According to Rule 5, before issuing such a certificate, there should be proper verification based primarily on revenue records and, if necessary, other reliable sources. According to Rule 8(2), the competent authorities were authorised to cancel the scheduled caste/scheduled tribe certificate in case subsequent verification revealed that the claim of the candidate was false. In accordance with these rules, the scheduled caste certificate was granted to the petitioner and subsequently when doubt was entertained steps were initiated for cancellation thereof. But the record reveals that till now the cancellation proceeding is pending and the scheduled caste certificate (Ext. 2) granted in favour of the petitioner has not yet been cancelled.
Undoubtedly, grant of a scheduled caste certificate in favour of the petitioner according to the existing rules will prima facie show that he belongs to the scheduled caste. The certificate can be utilised for obtaining some advantage available to people of the scheduled caste and scheduled tribe communities or for getting an appointment in an establishment. But in an election dispute, it only serves as a piece of evidence to be considered along with other evidence. In other words, solely on the basis of a scheduled caste certificate, a verdict cannot be returned that the candidate belongs to the scheduled caste. No statutory presumption is attached to a scheduled caste certificate that the facts stated therein are true, because the rules under which the certificate is granted is non-statutory. It is, however, necessary to notice that the scheduled caste certificate (Ext. 2) was granted to the petitioner on the day it was received. It seems, the petitioner first obtained the report of the Revenue Inspector, Podia, on 26-11-1982 (Ext. D) and then presented the application on 27-11-1982 and on the same day the Tahasildar, Motu passed the order (Ext.6) and granted Ext. 2. It is significant to note that the Revenue Inspector, Podia submitted the report to the effect that Khata Nos. 262 and 263 of village Podia stand recorded in the name of the petitioner's father and his caste was noted as 'Domba'. The Tahasildar, Motu accepted the report and did not verify the record-of-rights of Khata Nos. 262 and 263 which could be available in his own office before grant of the certificate. If, as a matter of fact, in the record of rights of Khata Nos. 262 and 263 of village Podia the petitioner's father was described as belonging to Domba caste, it was expected that the petitioner should have produced the record-of-rights in Court to substantiate his case that although his father was originally a Christian, subsequently he adopted Hinduism and returned to the 'Domba' caste. But in the evidence of the petitioner, there is not a whisper about the record-of-rights of Khata Nos. 262 and 263. This raises a suspicioa as to whether actually there is record-of-rights in respect of Khata Nos. 262 and 263 and, if it is there; whether the petitioner's father has been described as a person belonging to 'Domba' community. Not only this, but the subsequent events which transpired on account of rejection of the nomination paper of the petitioner on the ground that he is a Christian, raised sufficient doubt in the mind of the Tahasildar, Motu, to initiate the latter proceeding for cancellation of the scheduled caste certificate (Ext. 2) granted in favour of the petitioner earlier.
Ext. E is the report of the Revenue Inspector, Podia dt. 1-7-1985. He reported that he enquired into the religion of the petitioner and came to know that the petitioner's father and his father-in-law were Christians. He has photographs of Jesus Christ in his house and has calendars for propagation of Christianity. He has also Bibles in his house. I do not wish to attach any importance to this report for the reason that it came into existence after the election petition was filed and the person who made the enquiry and submitted the report is not available for cross-examination.
In conclusion, it can be said that the caste certificate (Ext. 2) is a piece of evidence to be considered along with other evidence, no presumption as to its correctness can either be raised or be permissible and there are materials in Ext. 7 to raise serious doubts about the correctness of the caste certificate (Ext.2).
23. Ext. A :-- It is the objection filed by r.w."6 Naka Kannayya before the Returning Officer on 11-2-1985. It was stated therein that the petitioner's father was recorded in the revenue records as a Christian. There is, however, no evidence that in any revenue record the petitioner's father was described as a Christian. It has also been pointed out that in the sale deed (Ext. 4), the step-brothers of the petitioner were described as Christians. Therefore, no particular importance has to be attached to Ext. A.
24. Ext.F and Ext.G :- Ext.F is the nomination paper dt. 8-2-1984 presented by the petitioner to contest in the election of Chairman, Podia Panchayat Samiti. Ext.G is the receipt showing that he deposited the security money of Rs. 100/- to contest in the said election. R.W.2 is the Sub-divisional Panchayat Officer of Malkanagiri. He produced Exts. F and G. The petitioner admitted that he had contested in the said election, filed the nomination paper and made security deposit of Rs. 100/-. He also did not dispute that for a person belonging to scheduled caste or scheduled tribes, the security deposit was Rs. 50/-. In his evidence he offered the explanation that he submitted the nomination paper on the last date fixed for submission of the same and as he had forgotten to bring with him the scheduled caste certificate, he could not make the security deposit of Rs. 50/- as a scheduled caste candidate. There was no time, because of the distance factor between Motu and Podia, to come back home, take the scheduled caste certificate and make the security deposit of Rs. 50/-. That is why to be on the safe-side he made the security deposit of Rs. 100/- as a general candidate. The explanation offered cannot be said to be unreasonable.
On consideration of the above, it seems that deposit of Rs. 100/- as security cannot be taken as a decisive factor as to whether the petitioner belongs to scheduled caste or he is a Christian. There was no bar for scheduled caste and scheduled tribe candidate to make security deposit of Rs. 100/- like a general candidate due to his ignorance or for some other sufficient reason. Therefore, Exts. F and G will not advance the case of the respondent nor will be detrimental to the petitioner's case.
25. Ext.H :-- It is a certificate by Brahmananda Podiami dt. 22-7-85 who is the Chairman of Podia Panchayat Samits. In the certificate it is mentioned that the petitioner is a Christian; Brahmananda Podiami has not been examined as a witness. The certificate cannot be acted upon for the following reasons ; --
1) Brahmananda Podiami having not been examined as a witness, the petitioner has been precluded from testing its correctness by cross-examining him;
2) No rule has been cited to show that as the Chairman of the Panchayat Samiti he was competent to grant a certificate of this nature; and
3) The certificate was obtained after the election petition was filed.
Therefore, no importance can be attached to Ext.H.
26. On consideration of the oral and the documentary evidence the following findings are recorded : --
1) The father of the petitioner was a Christian. His step-mother and step-brothers who are alive are Christians. His father-in-law is also a Christian.
2) There is no direct evidence that his mother came from a Christian family or was converted from Hinduism to Christanity.
3) There is also no evidence that after the petitioner's father married his mother, he was converted to Hinduism.
4) There is scanty evidence to show that the petitioner's father adopted Hinduism, performed Hindu rites, customs and ceremonies or was accepted by the Hindu society. There is no evidence worth the name to show that the petitioner all throughout his life has practised Hinduism or has been accepted by the Hindu society. On the other hand he has the reputation of being a Christian and has been discribed as such in the record-of-rights.
27. It is now necessary to discuss the principles of law relating to conversion to another religion, reconversion to the original religion, adoption of a different religion of a person belonging to another religion, loss and revival of caste in case of conversion and reconversion. At the outset I will quote para 29, at page 22 of the Hindu Law by Raghavachariar (Sixth Edition).
"29. Converts to Hinduism :-- Hindu Law would apply even to converts to Hinduism and it is not necessary for its application that a person should be a Hindu by birth. In other words, Hindu Law applied not only to a person who is a Hindu both by birth and religion, but also to a person 'who is a Hindu only by religion. But the mere fact that a non-Hindu professes a theoretical allegiance to the Hindu faith or is an ardent admirer and advocate of Hinduism does not make him a Hindu. Long residence in India, abdication of the original religion by a clear act of renunciation, adopting the Hindu religion by a formal conversion thereto, assuming a Hindu name, marrying a Hindu according to Hindu rules and taking to the Hindu modes of life are proofs that a non-Hindu has become a Hindu, The real test of conversion is not domicile but religion. But it is not necessary that every one of these tests should be fulfilled before an alleged conversion to Hinduism can be established, for instance, it is not necessary that there should be established a formal conversion to Hinduism except perhaps, in the case of reconversion to Hinduism where the reconversion is into the Brahmin Community of the Hindus. But a mere conversion to any particular religion may not necessarily involve the adoption of the laws as to inheritance and succession obtaining among the followers of that religion, but when the convert identifies himself with those followers, strong evidence must be forthcoming to show that he kept his own laws unaffected by the rules of law obtaining among the other adherents of his new faith. A Hindu who has renounced Hinduism is not debarred from going back to his original faith so as to be governed by Hindu Law and since there are no ceremonies prescribed in the Smrities for conversion or reconversion to the Hindu religion, one has to look to the sense of the community into which the convert or reconvert is alleged to have been let in, and if the members of that community are prepared to receive him as one of themselves, the fact that there has been no purificatory or expiatory ceremonies, does not militate against that person being treated in law as a member who has been duly admitted into the Hindu fold. But a mere declaration by a non-Hindu that he is a Hindu does not make him a Hindu in the absence of evidence showing that he has adopted the ways and modes of life of Hindu."
In AIR 1969 SC 101, S. Rajagopal v. CM. Arumugam it was held as follows : --
"In the present case, therefore, we agree with the finding of the High Court that the appellant on conversion to Christianity, ceased to belong to the Adi Dravida caste and consequently, the burden lay on the appellant to establish that on his reverting to the Hindu religion by professing it again, he also became once again a member of the Adi Dravida Hindu caste.
xxxxx Almost all these cases laid down the principle that, on reconversion to Hinduism, a person can become a member of the same caste in which he was born and to which he belonged before having been converted to another religion. The main basis of the decisions is that, if the members of the caste accept the reconversion of a person as a member, it should be held that he does become a member of that caste, even though he may have lost membership of that caste on conversion to another religion.
xxxxx .......It is, in our opinion, enough to take notice of the decision in Durga Prasad Rao, ILR (1940) Mad 653 : AIR 1940 Mad 513 (supra), where these two aspects were emphasised by a Full Bench of the Madras High Court. In that case, the first question that arose was whether a person could become a convert to Hinduism without going through a formal ceremony of purification. It was held that no proof of any particular ceremonial having been observed was required. Veradachariar, J., held that when on the facts it appears that a man did change his religion and was accepted by his co-religionists as having changed his religion, and lived, died and was cremated in that religion, the absence of some formality should not negative what is an actual fact. Considering the question of entry into the caste, Krishnaswami Ayyangar, J., held that, in matters affecting the well-being or composition of a caste, the caste itself is the supreme judge. It was on this principle that a reconvert to Hinduism could become a member of that caste, if the caste itself as the supreme judge accepted him as a full member of it. In the appeal before us, we find that the appellant had not given evidence to satisfy these requirements in order to establish that he did become a member of Adi Dravida Hindu Caste by the time of general elections in 1967.
xxxxx .....Ordinarily, the membership of a caste under the Hindu religion is acquired by birth. Whether the membership of a caste can.be acquired by conversion to Hinduism or after reconversion to Hinduism is a question on which we have refrained from expressing our opinion, because, even on the assumption that it can be acquired, we have arrived at the conclusion that the appellant must fail in this appeal."
In AIR 1976 SC 939, C. M. Arumugam v. S. Rajgopal it was held as follows : --
"These cases show that the consistent view taken in this country from the time Administrator-General of Madras v. Anandachari (1886) ILR 9 Mad 466 (supra) 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 Caste) 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 1st respondent could once again revert to his original Adi Dravida caste if he was accepted as such by the other members of the caste."
In AIR 1984 SC 411, S. Amjialagan v. Devarajan, on review of earlier decisions it was held as follows : --
"......These precedents, particularly those from South India, clearly establish that no particular ceremony is prescribed for reconversion to Hinduism of a person who had earlier embraced another religion. Unless the practice of the caste makes it necessary, no expiatory rites need be performed and, ordinarily, he regains his caste unless the community does not accept him. In fact, it may not be accurate to say that he regains his caste; it may be more accurate to say that he never lost his caste in the first instance when he embraced another religion. The practice of caste however irrational it may appear to our reason and however repugnant it may appear to our moral and social sense, is so deep-rooted in the Indian People that its mark does not seem to disappear on conversion to a different religion. If it disappears, it disappears only to reappear on reconversion. The mark of caste does not seem to really disappear even after some generations after conversion. In Andhra Pradesh and in Tamil Nadu, there are several thousands of Christian families whose fore-fathers became Christians and who, though they profess the Christian religion, nonetheless observe the practice of Caste. There are Christian Reddies, Christian Kammas, Christian Nadars, Christian Adi-Andhras Christian Adi Dravidas and so on.
The practice of their caste is so rigorous that there are intermarriages with Hindus of the same caste but not with Christians of another caste. Now, if such a Christian becomes a Hindu, surely he will revert to his original caste, if he had lost it at all. In fact this process goes on continuously in India and generation by generation lost sheep appear to return to the caste-fold and are once again assimilated in that fold. This appears to be particularly so in the case of members of the Scheduled Castes, who embrace other religions in their quest for liberation, but return to their old religion on finding that their disabilities have clung to them with great tenacity. We do not think that any different principle will apply to the case of conversion to Hinduism of a person whose forefathers had abandoned Hinduism and embraced another religion from the principle applicable to the case of reconversion to Hinduism of a person who himself had abandoned Hinduism and embraced another religion."
In 1985 Jab LJ 671 : (AIR 1984 SC 600), Kailsh Sonkar v. Maya Devi, almost all the decisions on the subject were reviewed and it was held as follows : --
"In our opinion, there is one aspect which does not appear to have been dealt with by any of the castes discussed by us. Suppose, A, a member of the scheduled caste, is converted to Christianity and marries Christian girl and a daughter is born to him who, according to the tenets of Christian religion, is baptised and educated. After she has attained the age of discretion she decides of her own volition to re-embrace Hinduism, should in such a case revival of the caste depend on the views of the members of the community of the caste concerned or would it automatically revive on her reconversion if the same is genuine and followed by the necessary rites and ceremonies? In other words, is it not open for B (the daughter) to say that because she was born of Christian parents their religion cannot be thrust on her when after attaining the age of discretion and gaining some knowledge of the world affairs, she decides to revert to her old religion. It was not her fault that she was born of Christian parents and baptised at a time when she was still a minor and knew nothing about the religion. Therefore, should the revival of the caste depend on the whim or will of the members of the community of her original caste or she would lose her caste for ever merely because fortunately or unfortunately she was born in a Christian family? With due respect, our confirmed opinion is that although the view of the members of the community would be an important factor, their views should not be allowed to a complete loss of the caste to which B belonged. Indeed, if too much stress is laid on the views of the members of the community the same may lead to dangerous exploitation. Perhaps, this factor was present in the mind of Bhagwati, J., who delivered the leading judgment in a latter decision of this Court in C. M. Arumugam v. S. Rajgopal (1976) 3 SCR 82 : (AIR 1976 SC 939) where, speaking for the Court, he made the following observations :
"It is sufficient to state that originally there were only four main castes, but gradually castes and sub-castes multiplied as the social fabric expanded with the absorption of different groups of people belonging to various cults and professing different religious faiths. The caste system in its early stages was quite elastic but in course of time it gradually hardened into a rigid framework based upon heredity...... But that immediately raises the question what is a caste, when we speak of a caste, we do not mean to refer in this context to the four primary castes, but to the multiplicity of castes and sub-castes which disfigure the Indian social scene....... A caste is more a social combination than a religious group.
XX XX XX XX XX But from that it does not necessarily follow as an invariable rule that whenever a person renounces Hinduism and embraces another religious faith, he automatically ceases to be a member of the caste in which he was born and to which he belonged prior to his conversion........ If the structure of the caste is such that its members must necessarily belong to Hindu religion, out of the caste, because no non-Hindu can be in the caste, according to its rules and regulations where, on the other hand, having regard to its structure, as it has evolved over the years, a caste may consist not only of persons professing Hindu religion but also persons professing some other religion as well conversion from Hinduism to that other religion may not involve loss of caste, because even persons professing such other religion can be members of the caste. This is indeed not an infrequent phenomenon in South India where, in some of the castes, even after conversion to Christianity, a person is regarded as continuing to belong to the caste.
xxxxx There are castes, particularly in South India, where this consequence does not follow on conversion, since such castes comprise both Hindus and Christians."
These weighty observations support the view that after conversion the caste will normally revive. On the question whether the caste will revive if the members of the community accept the reconvert, the Judges are silent, although Bhagwati, J. held that prima facie on conversion to Christianity the respondent would not cease to belong to the Adi Dravida caste, yet he refrained from expressing any final opinion on the point.
xxxxx It is true that a caste to which a Hindu belongs is essentially determined by birth and if a Hindu is converted to Christianity or any other religion which does not recognise caste, the conversion amounts to loss of the said caste.
The question that arises for consideration is whether the loss of the caste is absolute, irrevocable so as not to revive under any circumstances? In considering this question the Courts have gone into the history of the caste system and have formulated the following guiding principles to determine this question : --
(a) Where a person belonging to a scheduled caste is converted to Christianity or Islam, the same involves loss of the caste unless the religion to which he is converted is liberal enough to permit the convertee to retain his caste or the family laws by which he was originally governed. There are a number of cases where members belonging to a particular caste having been converted to Christianity or even to Islam retain their caste or family laws and despite the new Order they were permitted to be governed by their old laws. But this can happen only if the new religion is liberal and tolerant enough to permit such a course of action. Where the new religion, however, does not at all accept or believe in the caste system, the loss of the caste would be final and complete. In a large area of South and some of the North Eastern States it is not unusual to find persons converted to Christianity retaining their original caste without violating the tenets of the new Order which is done as a matter of common practice existing from times immemorial. In such a category of cases, it is obvious that even if a person abjures his old religion and is converted to a new one, there is no loss of caste. Moreover, it is a common feature of many converts to a new religion to believe or have faith in the Saints belonging to other religions. For instance, a number of Hindus have faith in the Muslim Saints. Dargahs, Imambadas which become part of their lives and some Hindus even adopt Muslim names after the Saints but this does not mean that they have discarded their old Order and got themselves converted to Islam.
(b) In all other cases, conversion to Christianitf or Islam or any other religion which does not accept the caste system and insists on relinquishing the caste, there is a loss of caste on conversion.
The other important question which is to be answered and which is really the controversy in the present case is : if after a person is converted to a new religion-in the instant case, Christianity-does his caste revive if he is reconverted to his old religion and, if so, under what circumstances? As indicated above, starting from the Privy Council to the present day, authorities of the High Courts and this Court have laid down certain norms and conditions under which a caste could revive. These conditions are as follows : --
(1) Where the convertee exhibits by his actions and behaviour his clear intention of abjuring the new religion on his own volition without any persuasion and is not motivated by any benefits or gain.
(2) Where the community of the old order to which the convertee originally belonged is gracious enough to admit him to the original caste either expressly or by necessary intendment, and (3) Rules of the new Order in permitting the convertee to join the new caste.
Unless the aforesaid conditions are fulfilled the loss of caste on conversion is complete and cannot be revived. In our opinion, having regard to the present setup and the circumstances prevailing in our modern society. It will he difficult to insist on the second condition, viz., the insistence on the members of the community of the caste to admit the convertee on reconversion to the original faith because such a course of action may lead to dangerous consequences and ill-conceived exploitation. The curse and cancer of untouchability despite thirty years of social reforms still persists and no quarter should be given to further persecution of the members of the scheduled castes who as we often find, are subjected to all kinds of indignities and are looked down upon as slaves or vessals, meant merely to serve the members of the Higher caste. In the case of Ganpat v. Returning Officer (1975) 2 SCR 923 : (AIR 197S SC 420) this Court speaking through Alagiriswami. J. highlighted this particular aspect in the following words :
"The monstrous curse of untouchability has got to be eradicated. It has got to be eradicated not merely by making constitutional provisions or laws but also by eradicating it from the minds and hearts of men. For that it is even more important that members of communities who are untouchable should assert their self-respect and fight for their dignity that members of the other communities should forget about it."
In our opinion, the main test should be genuine intention of the reconvert to adjure his new religion and completely dissociate himself from it. We must hasten to add here that this does not mean that the reconversion should be only a ruse or a pretext or a cover to gain mundane worldly benefits so that the reconversion becomes merely a show for achieving a particular purpose whereas the real intention may be shrouded in mystery. The reconvert must exhibit a clear and genuine intention to go back to his old fold and adopt the customs and practices of the said fold without any protest from members of his erstwhile caste. In order to judge this factor, it is not necessary that there should be a direct or conclusive proof of the expression of the views of the community of the erstwhile caste and it would be sufficient compliance of this condition if no exception or protest, is lodged by the community members, in which case the caste would revive on the reconversion of the person to his old religion.
Another aspect which one must not forget is that when a child is born neither has he any religion nor is he capable of choosing on until he reaches the age of discretion and acquires proper understanding of the situation. Hence the mere fact that the parents of a child, who were Christians, would in ordinary course get the usual baptism certificate and perform other ceremonies without the child knowing what is being done but after the child has grown up and becomes fully mature and able to decide his future, he ought not to be bound by what his parents may have done. Therefore, in such cases, it is the intention of the convertee which would determine the revival of the caste. If by his clear and conclusive conduct the person reconverts to his old faith and adjures the new religion in unequivocal terms, his caste automatically revives.
xxxxx In our opinion, when a person is converted to Christianity or some other religion the original caste remains under eclipse and as soon as during his/her lifetime the person is reconverted to the original religion the eclipse disappears and the caste automatically revives. Whether or not the revival of the caste depends on the will and discretion of the members of the community of the caste is a question on which we refrain from giving any opinion because in the instant case there is overwhelming evidence to show that the respondent was accepted by the community of her original Katia caste. Even so, if the fact of the acceptance by the members of the community is made condition precedent to the revival of the caste it would lead to grave consequences and unnecessary exploitation, sometimes motivated by political considerations. Of course, if apart from the oral views of the community there is any recognised documentary proof of a custom or code of conduct or rule of law binding on a particular caste, it may be necessary to insist on the consent of the members of the community, otherwise in normal circumstances the caste would revive by applying the principles of doctrine of eclipse. We might pause here to add a rider to what we have said, i.e.. where it appears that the person reconverted to the old religion had been converted to Christianity since several generations, it may be difficult to apply the doctrine of eclipse to the revival of caste. However, that question does not arise here."
28. The trend of the decisions of the Supreme Court thus appears to be that if a person is converted from Hinduism to Christianity he loses his caste in the original fold because. Christianity does not recognise caste system. If a Christian is reconverted to Hinduism, he becomes a Hindu and regains his original caste if he is accepted by the people of the caste. But a different note was struck by the later decisions reported in AIR 1984 SC 411 and 1985 Jab U 671 :1 AIR 1984 SC 600) (supra). In the earlier case it was held that in case of reconversion to Hinduism, unless the practice of It he caste makes it necessary, no expiatory rites need be performed and, ordinarily, the person regains his caste unless the community does not accept him. In fact, it may not be accurate to say that he regains his caste; it may be more accurate to say that he never lost his caste in the first instance when he embraced another religion. In the latter case it was held that when a person is converted to Christianity or some other religion the original caste remains under eclipse and as soon as the person is reconverted to the original religion the eclipse disappears and the caste automatically revives. No opinion was expressed as to whether revival of the caste depends on the will and discretion of the members of the community of the caste.
29. Now coming to the case of the petitioner, his father was a Christian. There is no evidence that he was reconverted to Hinduism after his marriage with the petitioner's mother. There is scanty evidence showing that after his second marriage with the petitioner's mother he practised and observed the ceremonies and customs of Hinduism. On such scanty evidence it is not possible to arrive at a finding that he became a fulfledged Hindu. There is no evidence as to what religion the petitioner's mother belonged. She could originally be a Hindu. After her marriage with the petitioner's father she could continue to be a Hindu which was not very likely in the context of the society and the social status to which she and her husband belonged. There is no evidence that she was converted from Hinduism so Christianity. In view of the above position we have to accept for the purpose of this case that the petitioner's father was a Christian and the religion of his mother is not specifically proved. She was either a Hindu or a Christian. The petitioner being born to a Christian father ordinarily belonged to the Christian community. But after attaining the age of discretion he could decide and adopt the religion of his choice for which there must be specific evidence. In this case a few witnesses including two of his relatives have stated that the petitioner practices Hindu religion. Some of his co-villagers and persons who know him by reputation to be a Christian have stated that he is not a Hindu, but is a Christian. In a case of this nature onus is heavy on the petitioner to prove by cogent and reliable evidence that he is a Hindu and not a Christian. Such standard of evidence is lacking and as rightly pointed out by way of caution in AIR 1976 SC 1886, Kanhaiyalal v. Mannalal oral testimony will have to be judged with greatest care and an electoral victory cannot be allowed to be nullified by a mouthful of oral testimony without contemporaneous assurance of a reliable nature from independent sources.
30. After consideration of the evidence and the legal principles with great care, I hold that the petitioner has failed to prove that he is a Hindu belonging to Domba (Dombo) caste which is recognised as a scheduled caste. These issues are answered against the petitioner.
31. Issue No. 3 :- Section 81(3) of the Act is quoted below for easy reference : --
"81. Presentation of petition.
xxxxx (3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be true copy of the petition."
Under Section 86(1) of the Act, the High Court shall dismiss an election petition which does not comply with the provisions of Section 81. Section 86(1) is mandatory in character. Non-compliance of its provisions shall entail dismissal of the election petition (see AIR 1971 SC 342, Jagar Kishore Prasad Narain Singh v. Rajendra Kumar Podar. AIR 1976 SC 744, Udhav Singh v. Madhav Rao Scindia. AIR 1983 SC 558, M. Karunanidhi v. H. V. Handa and AIR 1984 SC 305, Mithilesh Kumar Pandey v. Baidyanath Yadav).
Along with the election petition, the petitioner enclosed the xerox copy (Annexure-2) of the caste certificate (Ext. 2). The xerox copy (Annexure-2) is an exact replica of the original caste certificate (Ext. 2). The petitioner also filed in Court along with the election petition a complete set of copies of the election petition and the enclosed annexures of documents for service on the respondent. Ext. J is a typed copy of the caste certificate (Annexure-2). Ext. J. is not an exact repliaca or an exact copy of the original caste certificate (Ext. 2) although it has been attested as 'true copy' by the learned counsel of the petitioner, as well as, by the petitioner himself. Two things are missing in it. First, the signature of the Tahasildar, Motu and second, the date and the month below the signature on the basis of the aforesaid discrepancies between Ext. 2 and Ext. J learned counsel for the respondent urged that Ext. J which was served on the respondent being not a true copy of the original, there was contravention of Section 81(3) for which the election petition is liable to be dismissed under Section 86(1) of the Act, According to him the respondent was prejudiced, inasmuch as. in the absence of the date, it was not possible on his part to obtain a certified copy of the caste certificate from the office of the Tahasildar, Motu so as to prepare for his defence. Learned counsel for the petitioner, on the other hand, contended that all the materials required for obtaining a certified copy were available in Ext. J, namely, the case no., the name of the person in whose favour the caste certificate was granted and the authority who granted the same. Further, the petitioner has not produced any document to show that he made an application for the certified copy of the caste certificate and on account of non-mention of particulars, such as, the date, the certified copy was refused. Therefore, the respondent was not at all prejudiced in his defence and so for non-compliance of the provisions of Section 81(3) the petition is not liable to be rejected under Section 86(1) of the Act.
32. As already referred to above, except the signature and the date '27-11' Ext. J is an exact copy of the original caste certificate (Ext. 2). The case No. (R.M.C. No. 60 of 1982), the name and address of the petitioner and the authority who granted the caste certificate clearly appear in Ext. J. If the respondent wanted to obtain a copy of the caste certificate, it was easy for him to obtain it by utilising the particulars appearing in Ext. J and even showing it to the Tahasildar, Motu. So, I am of the firm opinion that nothing stood on the way of the respondent to obtain a certified copy of the caste certificate (Ext. 2) from the court of the Tahasildar. Motu by utilising the particulars mentioned in Ext. J or showing the caste certificate to the Tahasildar, Motu. As a matter of fact, the respondent did not make any attempt to obtain the certified copy of the caste certificate (Ext. 2). No documentary evidence was produced by him to show that he made an application, but in the absence of the signature and the date of the Tahasildar, Motu the petition was rejected and the certified copy was not granted. I would further go to show that during the entire proceeding of the election petition it did not appear as if the respondent was in any way prejudiced for the simple reason that the signature of the Tahasildar and the date below it were absent in Ext. J. Therefore, I would record that the respondent was in no way prejudiced because of the slight omission in Ext. J.
33. The word 'copy' occurring in section 81(3) of the Act has been interpreted by the Supreme Court in several cases. In AIR 1964 SC 1545, Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore it was held : --
"We are of the view that the word 'copy' in sub-s. (3) of Section 81 does not mean an absolutely exact copy, but means that the copy shall be so true that nobody can by any possibility misunderstand it (see Stroud's Judicial Dictionary, third Edi. Vol. 4, page 3098)."
Relying on the above noted decision it was held in AIR 1971 SC 342 (supra) as follows : --
".....Admittedly Shri Munshi Hansda and Paul Hansda are members of the Patna Legislative Assembly. In the election petition it was stated that money was offered to Shri Jetha Kisku, M.L.A. by Munshi Hansda but in Exh.'O' it was stated that money was offered to the said Jetha Kisku by Paul Hansda. This divergence was bound to mislead the contesting respondents and prejudice their defence."
In ILR (1981) 1 Cuttack 39, Norosingh Tripathy v. Gurubaru Majhi there was a mistake to spelling the name of the returned candidate and it was held that the mistake was not fatal attracting Section 86(1). In ILRI1981) 1 Cuttack 199, Jadunath Das Mohapatra v. Pitambar Panda, it was held :
"Thus, it is clear that where a portion omitted from the copy is a material portion such as a copy cannot be treated to be a true copy within the meaning of Section 81(3) of the Act."
In AIR 1983 SC 558 (supra) one of the allegations of corrupt practice was that the returned candidate had spent about Rs. 50,000/- in erecting fancy banners throughout the constituency, the cost of each banner being not less than Rs. 1,000/-. It was averred that photograph of one such banner was filed along with the election petition, but a copy of such photograph was not annexed to the copy of the petition furnished to the returned candidate. In such circumstances it was held that the photograph was a part of the averment contained in the petition. In the absence of the photograph the averment contained in the petition would be incomplete. The photograph was therefore an integral part of the election petition and so there was non-compliance of the requirement of Section 81(3). It was further held that the words "copies thereof" in Section 81(3) read in the context of Section 83(2) must necessarily refer not only to the election petition proper but also to schedules or annexures thereto containing particulars of any corrupt practice alleged therein. In AIR 1984 SC 305 (supra) on review of the earlier decisions the following principle was enunciated with regard to compliance of Section 81(3). :-
"On a careful consideration and scrutiny of the law on the subject, the following principles are well established;
(1) that where the copy of the election petition served on the returned candidate contains only clerical or typographical mistakes which are of no consequence, the petition cannot be dismissed straightway under Section 86 of the Act.
(2) A true copy means a copy which is wholly and substantially the same as the original and where there are insignificant or minimal mistakes, the court may not take notice thereof.
(3) Where the copy contains important omissions or discrepancies of a vital nature, which are likely to cause prejudice to the defence of the returned candidate it cannot be said that there has been a substantial compliance of the provisions of Section 81(3) of the Act.
(4) Prima facie, the statute uses the words 'true copy' and the concept of substantial compliance cannot be extended too far to include serious or vital mistakes which shed the character of a true copy so that the copy furnished to the returned candidate cannot be said to be a true copy within the meaning of Section 81(3) of the Act, and (5) As Section 81(3) is meant to protect and safeguard the sacrosanct electoral process so as not to disturb the verdict of the voters, there is no room for giving a liberal or broad interpretation to the provisions of the said section."
The same principle was followed in AIR 1984 SC 956, Rajendra Singh v. Smt. Usha Rani.
34. The principle of law is, therefore, settled that copies of the election petition and its enclosures and annexures which shall be served on the returned candidate shall be true copies in every sense. But if there are some omissions or mistakes which are not of a vital character so as to mislead and prejudice the returned candidate, then strict non-compliance of Section 81(3) is not fatal so as to entail dismissal of the election petition under Section 86(1) of the Act. In this case, as already found above, the omission of the signature of the Tahasildar, Motu and the date '27-11' below it was not of a vital character and did not mislead nor prejudice the returned candidate. He was not at all prejudiced in his defence. Therefore, non-compliance of Section 81(3), in the facts and circumstances of this case is not fatal and on this account alone the election petition is not liable to be dismissed under Section 86(1) of the Act.
35. Nothing was shown by the respondent how for non-compliance of Sections 82, 83 and 117 of the Act, the election petition is liable to be dismissed. On this point no arguments were advanced. Therefore, the question of dismissal of the election petition for non-compliance of the aforesaid sections docs not arise.
The issue is thus answered in the negative.
36. Issues Nos. 2. 4 and 6 :-- The last date for presentation of the election petition was 20-4-85.20-4-85 and 21-4-85 being holiday the election petition was presented on 22-4-85. So patently it was presented within the period of limitation of 45 days prescribed in Section 81(3) of the Act.
37. According to Section 83(1)(c) and its proviso, every election petition shall be signed by the petitioner and verified in the manner laid down in the Civil P.C. for the verification of Pleadings. Where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. It is not disputed that the petitioner duly verified the election petition and as he did not allege corrupt practice, he did not swear affidavit in the prescribed form. Nevertheless, the Stamp Reporter of the High Court reported that the election petition was not supported by any affidavit as required under Rule 3(1). Part-II. Chap. VI of the High Court Rules. Vol. I. This defect was removed and thereafter the election petition was admitted and process was issued for service on the respondent. Learned counsel for the respondent contended that the affidavit as required by the High Court Rules having been filed after expiry of the period of limitation, it should be held that the election petition was not presented according to law within limitation as prescribed in Section 81(1) of the Act and so the election petition is liable to be dismissed as being barred by limitation. He did not support his argument by any authority.
38. As already stated above the petitioner complied with the mandatory provisions of Section 83(1)(c). The question of compliance of its proviso did not arise because, he did not allege any corrupt practice. Section 83 does not mandate that every election petition should be supported by affidavit irrespective of whether there are allegations of corrupt practice or not. Patently, therefore, it cannot be said that the petitioner did not comply with the mandatory provisions of Section 83(1).
39. The objection of the Stamp Reporter refers to Rule 3(i) which is quoted below for easy reference : --
"3. (i) The facts stated in every petition shall be verified either by affirmation or on oath of the petitioner or by a separate affidavit annexed to the petition; the solemn affirmation or oath being made in every case before a Commissioner for affidavits or other officer appointed for the purpose."
A bare look at the aforesaid rule will show that an affidavit is not compulsory. If the petition has been verified either by affirmation or on oath, then it will be sufficient compliance. In this case, as required by Section 83(1)(c), the election petition was duly verified which means, there was substantial compliance of Rule 3(1) of the High Court Rules, affidavit being not a compulsory requirement. Therefore, absence of affidavit shall not entail dismissal of the election petition on the ground that it is barred by limitation.
These issues are answered in the negative.
40. Issue No. 5 :-- Not pressed. No argument was advanced. The returned candidate being the respondent, the election petition is not liable to be dismissed for nonjoinder. It is decided in the negative.
41. Issues Nos. 1, 9 and 10 :-- In view of the findings on issues Nos. 7 and 8 the election petition is not maintainable, the nomination paper of the petitioner was rightly rejected and consequently the election petition is liable to be dismissed.
ORDER The election petition is dismissed with costs. Advocate's fee is at the contested scale. Costs shall be recovered from the security deposit.