Only Scrutiny Committee Empowered To Withdraw Community Certificates: Kerala High Court Quashes Tahsildar's Order

The Kerala High Court has recently ruled that Tahsildars are not empowered to withdraw or suspend a community certificate issued under the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificate Act, 1996 merely because it is the authority empowered to issue such certificate.

Justice T.R Ravi established that only the Scrutiny Committee constituted under the Act was empowered to conduct an enquiry and thereby cancel community certificates if it was found to have been obtained by fraud:

"Going by the statutory provisions and the decisions which say that fraud vitiates every action, it can be seen that a conclusion that an order has been obtained by fraud and that it is vitiated is possible only after an enquiry into the matter and such enquiry is very much within the powers available to the Scrutiny Committee and not to the person who has issued the certificate." 

Factual Background: 

The post of President of the Arakulam Grama Panchayat was reserved for people belonging to Scheduled Caste communities. The petitioner is the only candidate who belongs to the community in the locality who is eligible to be elected as the President of the Panchayat. 

The election was proposed to be conducted on 30.12.2020.

However, the petitioner came to know that one Sindhu P.S, the 6th respondent herein, had been issued a community certificate by the Tahsildar of the Taluk under Rule 4 of Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificate Rules, 2002 showing her status as a member of the Hindu Pallan community. 

Therefore, on 21.12.2020, the petitioner filed a complaint alleging that the 6th respondent had obtained the community certificate by fraud pursuant to which the Tahsildar conducted an inquiry.

Accordingly, the Tahsildar directed the 6th respondent to surrender her certificate granted citing that she had converted to Christianity in 2008 and that she was wrongly granted the certificate.

Contentions Raised:

In the counter-affidavit, the 6th respondent produced 7 documents to show that she belonged to Scheduled Caste community Hindu Pallan and that she is not a Christian, including her marriage certificate and school leaving certificate. 

However, the Tahilsdar on the other hand argued that she had after her marriage embraced Christianity and got baptised in 2008 and is following Christian beliefs and customs and that she had changed her name to Sincy.

It was further submitted that the respondents were initiating legal steps against her for having fraudulently obtained a community certificate suppressing material facts and misrepresentation that she belongs to Scheduled Caste.

It is added that the Tahsildar was not empowered to cancel the community certificate which he himself has issued, which is the reason why the certificate has only been temporarily withdrawn by him. 

The Counsel for the petitioner submitted that the principle "fraud will vitiate everything" will apply to the facts of this case. According to him, when there is an element of fraud, the statutory provisions relating to cancellation will not have a role and relies on a plethora of decisions to fortify his stand. 

Observations:

The Court decided that from the principles laid down in the relevant judgments and the statement of law contained in the authoritative texts, the law is well settled that fraud vitiates everything and that an order obtained by playing fraud is a nullity.

However, the existence of fraud/misrepresentation/non-disclosure is a fact that will have to be established, and then alone the consequences will follow.

In the case at hand, the order of the Tahsildar did not conclusively find that there has been a fraud.

"What is stated is that there was a complaint that the certificate issued to the petitioner was on misrepresentation which was enquired into by the Village Officer, Idukki, who has reported that the petitioner had converted into Christianity and hence the community certificate stating she belongs to Hindu Pallan community is wrongly issued."

The order further says that a detailed investigation is to be conducted into the issue and hence the certificate was "temporarily withdrawn".

It is in this context that the power under Section 11 of Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificate Act has to be considered.

Section 11 specifically contemplates such situations and empowers the Scrutiny Committee to probe into the question of whether the certificate was obtained fraudulently and to cancel the same if it is found to have been obtained fraudulently.

Going by the statutory provisions and the decisions which say that fraud vitiates every action, it was concluded that if the certificate was obtained by fraud and ought to be vitiated, it is possible only after an enquiry into the matter and such enquiry is very much within the powers available to the Scrutiny Committee and not to the person who has issued the certificate.

"It is not a case where an inherent power of review needs to be exercised, particularly since the power to cancel a false certificate has been specifically bestowed on the Scrutiny Committee created under the Statute, with all the necessary powers of enquiry." 

It is to be noticed that even the response filed on behalf of the State says that there is no power available in the statute to withdraw a community certificate that has been issued, by the officer who issued the certificate. In the above circumstances, the Court took the opinion that the Tahsildar's order was not legally sustainable, and it was accordingly quashed. 

The Scrutiny Committee was thereby directed to consider the complaint filed by the petitioner and pass orders thereon within two months.

Advocates Blaze K Jose, Judy Jose and Urmila Zacharia appeared for the petitioner, while Advocates Kodoth Sreedharan, P.K Ravi Sankar, Standing Counsel for Election Commission of India Deepu Lal Mohan and Government Pleader Deepa Narayanan represented the respodents. 

Case Title: Vinod K.S v. State Election Commission & Ors.

Click Here To Read The Order