Full Judgment Text
Judgment 1 wp2950.18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2950 OF 2018
Manoj Parmeshwar Sidam,
Age 51 years, Occu.: Elected Member
Kurkheda Nagar Panchayat,
R/o. Kurkheda, Tahsil : Kurkheda,
District : Gadchiroli.
…. PETITIONER.
// VERSUS //
1. State of Maharashtra, through its
District Election Officer and District
Collector, Office Address : Gadchiroli
District Collector Office, Gadchiroli,
Tah. and District : Gadchiroli.
2. SubDivision Officer and Election Officer,
Kurkheda SubDivision, Kurkheda,
Tah. : Kurkheda, Dist : Gadchiroli.
3. Smt. Shaheda Tabassum Tayar Mugal,
Age : 30 years, Occu. : Member of
Kurkheda Nagar Panchayat,
R/o. Kurkheda, Tah. Kurkheda,
District : Gadchiroli.
…. RESPONDENTS .
___________________________________________________________________
Ms A.K. Shah, Advocate for Petitioner.
Shri N.R.Patil, A.G.P. for Respondent No. 1.
Shri V.N.Morande, Advocate for Respondent No.2.
Shri M.P.Khajanchi, Advocate for Respondent No.3.
___________________________________________________________________
CORAM : B.P.DHARMADHIKARI AND Z.A.HAQ, JJ.
DATE OF RESERVING THE JUDGMENT : 14.06.2018.
DATE OF PRONOUNCING THE JUDGMENT: 27.06.2018.
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 2 wp2950.18.odt
ORAL JUDGMENT : (Per : Z.A.Haq, J.)
1. Heard.
2. RULE .
3. Considering the nature of controversy, the writ petition is taken up
for final hearing.
4. The petitioner has challenged the decision of the respondent No.2
Election Officer by which the nomination form of the respondent No.3 for the
post of PresidentKurkheda Nagar Panchayat is accepted. According to the
petitioner, the post of President Kurkheda Nagar Panchayat is reserved for
Scheduled Tribe candidate and the respondent No.3, who originally belonged
to Gond Scheduled Tribe accepted Islam after her marriage and therefore,
she ceased to belong to Gond Scheduled Tribe, and she is not eligible to
contest the election as Scheduled Tribe candidate.
5. It is undisputed that the petitioner belongs to Scheduled Tribe, is a
member of Kurkheda Nagar Panchayat and presently Chairman of Health,
Sanitation and Nutrition Committee.
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 3 wp2950.18.odt
It is undisputed that the respondent No.3 originally belonged to
th
Gond Scheduled Tribe and she married Tayar Mugal (a Muslim) on 9 April,
2010. It is undisputed that before marriage, name of the respondent No.3
was “Sharda Deorao Uikey” and the Scheduled Tribe Certificate Scrutiny
th
Committee, Gadchiroli Division issued certificate of validity on 26 March,
2010 to the effect that she belonged to Gond Scheduled Tribe. It is admitted
fact that after marriage, the respondent No.3 has changed her name as “Smt.
Shahida Tabassum” and for this she followed the prescribed procedure and
th
had submitted an affidavit dated 13 April, 2015 stating that before marriage
the caste of the respondent No.3 was Gond, however, after marriage she has
become a Muslim (Musalman).
6. The point which arises for consideration is, whether the
respondent No.3 is entitled to contest the election as Scheduled Tribe
candidate for the post reserved for Scheduled Tribe person.
7. The advocate for the respondent No.3 has raised preliminary
objection to the maintainability of the writ petition on the ground that Article
243ZG(b) of the Constitution of India bars any Court, except the Court/
Tribunal having jurisdiction to entertain and decide the election petition,
from entertaining any challenge to the election matters. The advocate for the
respondent No.3 has relied on the provisions of Section 341B1(4) of the
Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 4 wp2950.18.odt
Act, 1965 (hereinafter referred to as “the Act of 1965”) and has argued that
appeal is provided before the Regional Director of the Municipal
Administration to challenge the decision of the Returning Officer, accepting
or rejecting the nomination paper and this appeal is required to be filed
within 48 hours from intimation of such decision. Relying on subsection (6)
of Section 341B1 of the Act of 1965, it is submitted that even after the
elections are held and if occasion arises, the petitioner can raise dispute
regarding election of respondent No.3 as President of Nagar Panchayat,
before the State Government.
It is not in dispute that this writ petition is filed within forty
eight hours from the intimation of the decision of the respondent No.2
Returning Officer to accept the nomination form of the respondent No.3.
8. The advocate for the petitioner has submitted that the affidavit
sworn by the respondent No.3 at the time of changing her name shows
unequivocal declaration made by the respondent No.3 that on her marriage
with a Muslim man, she ceased to belong to Gond Tribe and has embraced
Islam and in view of this admitted fact, this Court should examine the
legality of the impugned decision. The learned advocate for the petitioner
has relied on the judgment given in the case of K. Venkatachalam Vs. A.
Swamickan , reported in (1999)4 SCC 526 to urge that in the circumstances
like the present one, this Court would be justified in exercising the
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 5 wp2950.18.odt
extraordinary jurisdiction and prevent the fraud attempted by the
respondents on the Constitution.
Considering the facts of the case and the proposition laid down
in the judgment given in the case of K. Venkatchalam (supra) we overrule the
preliminary objection taken by the advocate for the respondent No.3, to the
maintainability of the petition.
9. On merits, the submission on behalf of the petitioner is that the
respondent No.3 has is unequivocally revoked her affinity with Gond
Scheduled Tribe and has embraced Islam declaring that now she is Muslim,
and in these facts she has lost her status as Scheduled Tribe person and is not
entitled for any benefits available to Scheduled Tribe persons.
To support the arguments, the learned advocate for the petitioner
has relied on the following judgments:
i) Judgment given in the case of Kailash Sonkar Vs. Maya Devi ,
reported in (1984) 2 SCC 91 ;
ii) Judgment given in the case of Mohd. Sadique Vs. Darbara Singh
Guru , reported in (2016) 11 SCC 617 ;
iii) Judgment given by Madras High Court in the case of S.
Yasmine Vs. The Secretary, Tamil Nadu Public Service
Commission , reported in 2013 (4) CTC 53 ;
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 6 wp2950.18.odt
10. The submission on behalf of the respondent No.3 is that though
the respondent No.3 has changed her name and has sworn an affidavit on
which the petitioner is relying, the respondent No.3 does not lose her affinity
with Gond Scheduled Tribe. It is argued that the social status of the person
is determined on the basis of birth and it does not change on marriage. To
support the argument, the advocate for the respondent No.3 has relied on the
following judgments:
i) Judgment given in the case of V.V.Giri Vs. D. Suri Dora & oth ,
reported in AIR 1959 SC 1318 ;
ii) Judgment given in the case of Rajendra Vs. State of Mah. ,
reported in 2010 (2) Mh.L.J. 198 ;
iii) Judgment given in the case of M. Chandra Vs. M. Thangamuthu ,
reported in ( 2010) 9 SCC 712 ;
iv) Judgment given in the case of Kailash Sonkar Vs. Maya Devi ,
reported in (1984) 2 SCC 91 ;
v) Judgment given in the case of Mohd. Sadique Vs. Darbara Singh
Guru , reported in (2016) 11 SCC 617 ;
vi) Judgment given in the case of Rameshbhai Dabhai Naika Vs.
State of Gujarat , reported in ( 2012) 3 SCC 400 ;
11. In the case of Rajendra Shrivastava (supra) the Full Bench of this
Court has laid down that when a woman born in a Scheduled Caste family or
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 7 wp2950.18.odt
Scheduled Tribe family marries to a person belonging to a forward caste, her
caste by birth does not change by virtue of the marriage. It is laid down that
the person born as a member of the Scheduled Caste or a Scheduled Tribe
has to suffer from disadvantages, disabilities and indignities, only by virtue of
belonging to a particular caste which he or she acquires involuntarily on birth
and the sufferings of such a person by virtue of the caste are not wiped out
by marriage with a person belonging to a forward caste. It is laid down that
the label attached to the person born in scheduled caste or scheduled tribe
continues notwithstanding the marriage.
The judgment given in the case of Rameshbhai Dabhai
Naika (supra) deals with the rights of a child born to a Scheduled Tribe
mother and forward caste father. Though this judgment may guide us in
deciding the controversy we are dealing with, in our view the judgment will
not have direct impact on the issue under consideration.
12. In the judgment given in the case of M. Chandra the challenge was
that M. Chandra who had contested the election for the seat reserved for
Scheduled Caste candidate, was not a scheduled caste person. M. Chandra
claimed that her father was Christian and her mother was Hindu, her father
had subsequently remarried and deserted her mother when she was a child,
she was brought by her mother at her sister's house and their ties with M.
Chandra's father were severed. M. Chandra claimed that she was converted
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 8 wp2950.18.odt
to Hinduism in Arya Samaj in 1994 and on 23/01/1995 she married
Murugan (who had converted to Hinduism in the year 1975) and Murugan
belonged to Pallan caste and after marriage she got the certificate that she
belonged to Hindu Pallan community which is recognized as Scheduled Caste
in the state of Tamil Nadu. The election of M. Chandra was challenged by
filing petition under Section 81 read with Sections 5(a), 100(1)(a) and 125
A of the Representation of the People Act, 1951. The High Court allowed the
election petition. The High Court concluded that M. Chandra belonged to
Pallan Christian community and she could not have contested the assembly
elections for the seat reserved for Scheduled Caste community. The judgment
passed by High Court was challenged by M. Chandra before the Hon'ble
Supreme Court. After scanning the evidence on record, the Hon'ble Supreme
Court recorded that the election petitioner in that case had not produced
sufficient evidence to prove that M. Chandra professed Christianity and was
not belonging to Scheduled Caste.
13. In the judgment given by the Constitution Bench in the case of V.V.
Giri (supra) the main issue which fell for consideration was whether the
person belonging to Scheduled Tribe and who claimed the benefit of the
reserved seat was precluded from contesting the election, if necessary for the
general seat in DoubleMember Constituency. While examining this issue,
the Hon'ble Supreme Court has discussed on the point as to whether the
person belonging to Scheduled Caste loses his caste status and ceases to be a
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 9 wp2950.18.odt
member of Scheduled Caste on acquiring status as Kshatriya. While
discussing on this point, the Hon'ble Supreme Court has observed that
unilateral act of a person cannot be considered to determine the claim of
such person to higher caste status.
14. In the judgment given in the case of Kailash Sonkar (by Three
Judge Bench), we find that para No.34 is relevant for considering the
controversy before us, and reads thus:
“ 34. 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 a 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 case 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.,
whether 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. ”
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 10 wp2950.18.odt
The proposition laid down in the judgments given in the case of
V.V.Giri and M. Chandra (supra) and the other judgments relied upon by the
advocates for the respondent No.3 is also in consonance with the proposition
laid down in the judgment given in the case of Kailash Sonkar (supra).
The judgment given by the Constitution Bench of the Hon'ble
Supreme Court in the case of Guntur Medical College Vs. V. Mohan Rao ,
reported in ( 1976) 3 SCC 411 and the judgment given by the Hon'ble
Supreme Court (by Bench of three Hon'ble Judges) in the case of State of
Kerala Vs. Chandramohanan , reported in (2004)3 SCC 429 lay down that
whether the person ceases to be a member of Scheduled Tribe/ Scheduled
Caste by change of religion would depend on the facts of each case.
15. After examining the material on record, we find that the
respondent No.3 after marriage has changed her name and for that purpose
th
has sworn the affidavit dated 13 April, 2015 stating that before marriage
her caste was 'Gond' but after marriage her caste is 'Musalman'. Though the
respondent No.3 submitted that the petitioner has not been able to prove
that the respondent No.3 is not following the rituals of Gond Scheduled Tribe
and is following the rituals of Islam after marriage and therefore, the
challenge, as raised by the petitioner, cannot be accepted, we are not
inclined to accept this submission. In our view, the burden was on the
respondent No.3 to show that even after marriage she is not following the
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 11 wp2950.18.odt
rituals of Islam but continues to follow rituals of Gond Scheduled Tribe, and
the respondent No.3 has failed to discharge this burden. In the facts of the
case and considering the proposition laid down in the judgment given in the
case of Kailash Sonkar , we uphold the challenge of the petitioner.
16. The submission made on behalf of the respondent No.3 that the
petition is liable to be dismissed for suppression of relevant facts and
misleading statements also cannot be accepted. The advocate for the
respondent No.3 has argued that the petitioner has pleaded in the writ
petition that the respondent No.3 had contested the election for the seat of
Member of Nagar Panchayat as open category candidate and this statement is
made to mislead the Court, the factual position is being that the respondent
No.3 contested the election for the seat of member of Nagar Panchayat
reserved for Scheduled Tribe candidate. In our view, the wrong submission
on behalf of the petitioner on this point is not relevant for adjudication of the
substantive issue and therefore, we are of the view that the petition need not
be dismissed on this point.
17. In view of our conclusions recorded above, the following order is
passed:
i) It is held that the respondent No.3 is not eligible to contest
the election for the post of President of Kurkheda Nagar Panchayat
as scheduled tribe candidate.
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 12 wp2950.18.odt
ii) The decision of the respondent No.2Election Officer to
accept the nomination form of the respondent No.3 as Scheduled
Tribe candidate for the post of President of Kurkheda Nagar
Panchayat is quashed.
iii) The Respondent No.2Election Officer is directed to reject
the nomination form of the respondent No.3 for the post of
President, Kurkheda Nagar Panchayat, election.
Rule is made absolute in the above terms. In the
circumstances, the parties to bear their own costs.
( Z.A.HAQ, J ) ( B.P.DHARMADHIKARI, J.)
At this stage, Advocate Shri Khajanchi seeks continuation of the
interim order for a period of three weeks more.
The request is being strongly opposed by the petitioners.
However, in the interest of justice, we continue that interim
order for a period of three weeks from today. It shall cease to operate,
automatically, thereafter.
( Z.A.HAQ, J ) ( B.P.DHARMADHIKARI, J.)
RRaut..
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2950 OF 2018
Manoj Parmeshwar Sidam,
Age 51 years, Occu.: Elected Member
Kurkheda Nagar Panchayat,
R/o. Kurkheda, Tahsil : Kurkheda,
District : Gadchiroli.
…. PETITIONER.
// VERSUS //
1. State of Maharashtra, through its
District Election Officer and District
Collector, Office Address : Gadchiroli
District Collector Office, Gadchiroli,
Tah. and District : Gadchiroli.
2. SubDivision Officer and Election Officer,
Kurkheda SubDivision, Kurkheda,
Tah. : Kurkheda, Dist : Gadchiroli.
3. Smt. Shaheda Tabassum Tayar Mugal,
Age : 30 years, Occu. : Member of
Kurkheda Nagar Panchayat,
R/o. Kurkheda, Tah. Kurkheda,
District : Gadchiroli.
…. RESPONDENTS .
___________________________________________________________________
Ms A.K. Shah, Advocate for Petitioner.
Shri N.R.Patil, A.G.P. for Respondent No. 1.
Shri V.N.Morande, Advocate for Respondent No.2.
Shri M.P.Khajanchi, Advocate for Respondent No.3.
___________________________________________________________________
CORAM : B.P.DHARMADHIKARI AND Z.A.HAQ, JJ.
DATE OF RESERVING THE JUDGMENT : 14.06.2018.
DATE OF PRONOUNCING THE JUDGMENT: 27.06.2018.
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 2 wp2950.18.odt
ORAL JUDGMENT : (Per : Z.A.Haq, J.)
1. Heard.
2. RULE .
3. Considering the nature of controversy, the writ petition is taken up
for final hearing.
4. The petitioner has challenged the decision of the respondent No.2
Election Officer by which the nomination form of the respondent No.3 for the
post of PresidentKurkheda Nagar Panchayat is accepted. According to the
petitioner, the post of President Kurkheda Nagar Panchayat is reserved for
Scheduled Tribe candidate and the respondent No.3, who originally belonged
to Gond Scheduled Tribe accepted Islam after her marriage and therefore,
she ceased to belong to Gond Scheduled Tribe, and she is not eligible to
contest the election as Scheduled Tribe candidate.
5. It is undisputed that the petitioner belongs to Scheduled Tribe, is a
member of Kurkheda Nagar Panchayat and presently Chairman of Health,
Sanitation and Nutrition Committee.
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 3 wp2950.18.odt
It is undisputed that the respondent No.3 originally belonged to
th
Gond Scheduled Tribe and she married Tayar Mugal (a Muslim) on 9 April,
2010. It is undisputed that before marriage, name of the respondent No.3
was “Sharda Deorao Uikey” and the Scheduled Tribe Certificate Scrutiny
th
Committee, Gadchiroli Division issued certificate of validity on 26 March,
2010 to the effect that she belonged to Gond Scheduled Tribe. It is admitted
fact that after marriage, the respondent No.3 has changed her name as “Smt.
Shahida Tabassum” and for this she followed the prescribed procedure and
th
had submitted an affidavit dated 13 April, 2015 stating that before marriage
the caste of the respondent No.3 was Gond, however, after marriage she has
become a Muslim (Musalman).
6. The point which arises for consideration is, whether the
respondent No.3 is entitled to contest the election as Scheduled Tribe
candidate for the post reserved for Scheduled Tribe person.
7. The advocate for the respondent No.3 has raised preliminary
objection to the maintainability of the writ petition on the ground that Article
243ZG(b) of the Constitution of India bars any Court, except the Court/
Tribunal having jurisdiction to entertain and decide the election petition,
from entertaining any challenge to the election matters. The advocate for the
respondent No.3 has relied on the provisions of Section 341B1(4) of the
Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 4 wp2950.18.odt
Act, 1965 (hereinafter referred to as “the Act of 1965”) and has argued that
appeal is provided before the Regional Director of the Municipal
Administration to challenge the decision of the Returning Officer, accepting
or rejecting the nomination paper and this appeal is required to be filed
within 48 hours from intimation of such decision. Relying on subsection (6)
of Section 341B1 of the Act of 1965, it is submitted that even after the
elections are held and if occasion arises, the petitioner can raise dispute
regarding election of respondent No.3 as President of Nagar Panchayat,
before the State Government.
It is not in dispute that this writ petition is filed within forty
eight hours from the intimation of the decision of the respondent No.2
Returning Officer to accept the nomination form of the respondent No.3.
8. The advocate for the petitioner has submitted that the affidavit
sworn by the respondent No.3 at the time of changing her name shows
unequivocal declaration made by the respondent No.3 that on her marriage
with a Muslim man, she ceased to belong to Gond Tribe and has embraced
Islam and in view of this admitted fact, this Court should examine the
legality of the impugned decision. The learned advocate for the petitioner
has relied on the judgment given in the case of K. Venkatachalam Vs. A.
Swamickan , reported in (1999)4 SCC 526 to urge that in the circumstances
like the present one, this Court would be justified in exercising the
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 5 wp2950.18.odt
extraordinary jurisdiction and prevent the fraud attempted by the
respondents on the Constitution.
Considering the facts of the case and the proposition laid down
in the judgment given in the case of K. Venkatchalam (supra) we overrule the
preliminary objection taken by the advocate for the respondent No.3, to the
maintainability of the petition.
9. On merits, the submission on behalf of the petitioner is that the
respondent No.3 has is unequivocally revoked her affinity with Gond
Scheduled Tribe and has embraced Islam declaring that now she is Muslim,
and in these facts she has lost her status as Scheduled Tribe person and is not
entitled for any benefits available to Scheduled Tribe persons.
To support the arguments, the learned advocate for the petitioner
has relied on the following judgments:
i) Judgment given in the case of Kailash Sonkar Vs. Maya Devi ,
reported in (1984) 2 SCC 91 ;
ii) Judgment given in the case of Mohd. Sadique Vs. Darbara Singh
Guru , reported in (2016) 11 SCC 617 ;
iii) Judgment given by Madras High Court in the case of S.
Yasmine Vs. The Secretary, Tamil Nadu Public Service
Commission , reported in 2013 (4) CTC 53 ;
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 6 wp2950.18.odt
10. The submission on behalf of the respondent No.3 is that though
the respondent No.3 has changed her name and has sworn an affidavit on
which the petitioner is relying, the respondent No.3 does not lose her affinity
with Gond Scheduled Tribe. It is argued that the social status of the person
is determined on the basis of birth and it does not change on marriage. To
support the argument, the advocate for the respondent No.3 has relied on the
following judgments:
i) Judgment given in the case of V.V.Giri Vs. D. Suri Dora & oth ,
reported in AIR 1959 SC 1318 ;
ii) Judgment given in the case of Rajendra Vs. State of Mah. ,
reported in 2010 (2) Mh.L.J. 198 ;
iii) Judgment given in the case of M. Chandra Vs. M. Thangamuthu ,
reported in ( 2010) 9 SCC 712 ;
iv) Judgment given in the case of Kailash Sonkar Vs. Maya Devi ,
reported in (1984) 2 SCC 91 ;
v) Judgment given in the case of Mohd. Sadique Vs. Darbara Singh
Guru , reported in (2016) 11 SCC 617 ;
vi) Judgment given in the case of Rameshbhai Dabhai Naika Vs.
State of Gujarat , reported in ( 2012) 3 SCC 400 ;
11. In the case of Rajendra Shrivastava (supra) the Full Bench of this
Court has laid down that when a woman born in a Scheduled Caste family or
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 7 wp2950.18.odt
Scheduled Tribe family marries to a person belonging to a forward caste, her
caste by birth does not change by virtue of the marriage. It is laid down that
the person born as a member of the Scheduled Caste or a Scheduled Tribe
has to suffer from disadvantages, disabilities and indignities, only by virtue of
belonging to a particular caste which he or she acquires involuntarily on birth
and the sufferings of such a person by virtue of the caste are not wiped out
by marriage with a person belonging to a forward caste. It is laid down that
the label attached to the person born in scheduled caste or scheduled tribe
continues notwithstanding the marriage.
The judgment given in the case of Rameshbhai Dabhai
Naika (supra) deals with the rights of a child born to a Scheduled Tribe
mother and forward caste father. Though this judgment may guide us in
deciding the controversy we are dealing with, in our view the judgment will
not have direct impact on the issue under consideration.
12. In the judgment given in the case of M. Chandra the challenge was
that M. Chandra who had contested the election for the seat reserved for
Scheduled Caste candidate, was not a scheduled caste person. M. Chandra
claimed that her father was Christian and her mother was Hindu, her father
had subsequently remarried and deserted her mother when she was a child,
she was brought by her mother at her sister's house and their ties with M.
Chandra's father were severed. M. Chandra claimed that she was converted
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 8 wp2950.18.odt
to Hinduism in Arya Samaj in 1994 and on 23/01/1995 she married
Murugan (who had converted to Hinduism in the year 1975) and Murugan
belonged to Pallan caste and after marriage she got the certificate that she
belonged to Hindu Pallan community which is recognized as Scheduled Caste
in the state of Tamil Nadu. The election of M. Chandra was challenged by
filing petition under Section 81 read with Sections 5(a), 100(1)(a) and 125
A of the Representation of the People Act, 1951. The High Court allowed the
election petition. The High Court concluded that M. Chandra belonged to
Pallan Christian community and she could not have contested the assembly
elections for the seat reserved for Scheduled Caste community. The judgment
passed by High Court was challenged by M. Chandra before the Hon'ble
Supreme Court. After scanning the evidence on record, the Hon'ble Supreme
Court recorded that the election petitioner in that case had not produced
sufficient evidence to prove that M. Chandra professed Christianity and was
not belonging to Scheduled Caste.
13. In the judgment given by the Constitution Bench in the case of V.V.
Giri (supra) the main issue which fell for consideration was whether the
person belonging to Scheduled Tribe and who claimed the benefit of the
reserved seat was precluded from contesting the election, if necessary for the
general seat in DoubleMember Constituency. While examining this issue,
the Hon'ble Supreme Court has discussed on the point as to whether the
person belonging to Scheduled Caste loses his caste status and ceases to be a
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 9 wp2950.18.odt
member of Scheduled Caste on acquiring status as Kshatriya. While
discussing on this point, the Hon'ble Supreme Court has observed that
unilateral act of a person cannot be considered to determine the claim of
such person to higher caste status.
14. In the judgment given in the case of Kailash Sonkar (by Three
Judge Bench), we find that para No.34 is relevant for considering the
controversy before us, and reads thus:
“ 34. 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 a 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 case 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.,
whether 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. ”
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 10 wp2950.18.odt
The proposition laid down in the judgments given in the case of
V.V.Giri and M. Chandra (supra) and the other judgments relied upon by the
advocates for the respondent No.3 is also in consonance with the proposition
laid down in the judgment given in the case of Kailash Sonkar (supra).
The judgment given by the Constitution Bench of the Hon'ble
Supreme Court in the case of Guntur Medical College Vs. V. Mohan Rao ,
reported in ( 1976) 3 SCC 411 and the judgment given by the Hon'ble
Supreme Court (by Bench of three Hon'ble Judges) in the case of State of
Kerala Vs. Chandramohanan , reported in (2004)3 SCC 429 lay down that
whether the person ceases to be a member of Scheduled Tribe/ Scheduled
Caste by change of religion would depend on the facts of each case.
15. After examining the material on record, we find that the
respondent No.3 after marriage has changed her name and for that purpose
th
has sworn the affidavit dated 13 April, 2015 stating that before marriage
her caste was 'Gond' but after marriage her caste is 'Musalman'. Though the
respondent No.3 submitted that the petitioner has not been able to prove
that the respondent No.3 is not following the rituals of Gond Scheduled Tribe
and is following the rituals of Islam after marriage and therefore, the
challenge, as raised by the petitioner, cannot be accepted, we are not
inclined to accept this submission. In our view, the burden was on the
respondent No.3 to show that even after marriage she is not following the
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 11 wp2950.18.odt
rituals of Islam but continues to follow rituals of Gond Scheduled Tribe, and
the respondent No.3 has failed to discharge this burden. In the facts of the
case and considering the proposition laid down in the judgment given in the
case of Kailash Sonkar , we uphold the challenge of the petitioner.
16. The submission made on behalf of the respondent No.3 that the
petition is liable to be dismissed for suppression of relevant facts and
misleading statements also cannot be accepted. The advocate for the
respondent No.3 has argued that the petitioner has pleaded in the writ
petition that the respondent No.3 had contested the election for the seat of
Member of Nagar Panchayat as open category candidate and this statement is
made to mislead the Court, the factual position is being that the respondent
No.3 contested the election for the seat of member of Nagar Panchayat
reserved for Scheduled Tribe candidate. In our view, the wrong submission
on behalf of the petitioner on this point is not relevant for adjudication of the
substantive issue and therefore, we are of the view that the petition need not
be dismissed on this point.
17. In view of our conclusions recorded above, the following order is
passed:
i) It is held that the respondent No.3 is not eligible to contest
the election for the post of President of Kurkheda Nagar Panchayat
as scheduled tribe candidate.
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::
Judgment 12 wp2950.18.odt
ii) The decision of the respondent No.2Election Officer to
accept the nomination form of the respondent No.3 as Scheduled
Tribe candidate for the post of President of Kurkheda Nagar
Panchayat is quashed.
iii) The Respondent No.2Election Officer is directed to reject
the nomination form of the respondent No.3 for the post of
President, Kurkheda Nagar Panchayat, election.
Rule is made absolute in the above terms. In the
circumstances, the parties to bear their own costs.
( Z.A.HAQ, J ) ( B.P.DHARMADHIKARI, J.)
At this stage, Advocate Shri Khajanchi seeks continuation of the
interim order for a period of three weeks more.
The request is being strongly opposed by the petitioners.
However, in the interest of justice, we continue that interim
order for a period of three weeks from today. It shall cease to operate,
automatically, thereafter.
( Z.A.HAQ, J ) ( B.P.DHARMADHIKARI, J.)
RRaut..
::: Uploaded on - 28/06/2018 ::: Downloaded on - 02/06/2024 03:01:31 :::