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Judgment
M.L. Dudhat, J.—By this writ petition the petitioner has challenged the order dated November 30, 1992 passed by the Additional Chief Judge, Small Causes Court, Bombay, in Municipal election Petition No. 74 of 1992. Government of Maharashtra Urban Development Department-respondent No. 3 issued a notification dated October 11, 1991 and November 29, 1991 declaring that there would be 221 Wards of the Bombay Municipal Corporation for the purpose of elections which were held on February 25, 1992. Out of the said 221 Wards, 10 Wards were reserved for the Scheduled Caste candidates and Wards No. 69 was reserved for scheduled caste women. It is an admitted position that Ward No. 69, where from petitioner also contested the election, was reserved for scheduled caste women. In the said Ward the petitioner, who was the Congress candidate, contested the election along with respondent No. 1, the Shiv Sena candidate. On February 27, 1992 results of the elections were declared and as per the said results, the petitioner secured 6,127 votes while Respondent No. 1 secured 5,846 votes. Pursuant to the said results the present petitioner took charge as elected Corporator for Ward No. 69. Respondent No. 1, the defeated candidate, thereafter filed election petition on or about March 10, 1992 challenging the election of the present petitioner on the ground that the Returning Officer illegally accepted the nomination paper of the petitioner as the petitioner was not scheduled caste candidate and also on the ground that the certificate produced by the petitioner showing that she is scheduled caste candidate is invalid as the same is not according to law. It was contended by respondent No. 1 in the said petition that the present petitioner was Shimpi belonging to Other Backward Classes. However, she got married to Mr. Sunil Shinde belonging to Hindu Kankayya, a caste declared as scheduled caste. The certificate of the competent authority produced by the petitioner, according to respondent No. 1, only stated that the petitioner, Hindu Shimpi, belonging to Other Backward Classes married with Mr. Sunil Shinde, belonging to Hindu Kankayya caste, declared as scheduled caste, on February 7, 1989. The certificate further states that this couple as well as their progenies will be eligible for the concessions admissible to the scheduled caste as per the orders issued. According to respondent No. 1 the said certificate produced by the present petitioner was only a certificate from the competent authority for showing that the petitioner is eligible for certain concessions admissible to scheduled caste and the said certificate is not valid certificate for the purpose of showing that she is reserved class candidate belonging to scheduled caste as contemplated by the Act. Therefore, according to respondent No. 1 the Returning Officer illegally accepted the nomination paper of the present petitioner relying on the said certificate. According to respondent No. 1, since Ward No. 69 was reserved for scheduled castes women and since the petitioner was not a reserved class candidate by wrongly accepting the nomination of the present petitioner the election of the petitioner is vitiated and is liable to be set aside.
As against this, it was contended on behalf of the present petitioner that though originally she belonged to Other Backward Classes, on February 7, 1989 she was married to Sunil Shinde belonging to Hindu Kankayya caste, admittedly scheduled caste, and by virtue of the marriage she is entitled to contest election from a ward reserved for scheduled caste women. To support her contention, the present petitioner also relied upon certain circulars to show as to how she is eligible for certain concessions admissible to scheduled caste. The trial Court mainly framed two issues. Firstly, as to whether the petitioner proves that the certificate enclosed by the first respondent (present petitioner) along with the nomination paper is not prescribed caste certificate and secondly, as to whether the election of respondent No. 1 (present petitioner) is to be set aside and whether the petitioner (respondent No. 1 herein) is entitled to be declared as elected candidate being the second highest. The Trial Court held that the said certificate is not the caste certificate as prescribed under the Law. The trial Court, therefore, set aside the election of the present petitioner on the ground that she w as not entitled to contest the election as a scheduled caste candidate. The aforesaid decision given by the trial Court is the subject- matter before me in this writ petition. In this case, it is an admitted position that the petitioner''s election was challenged by respondent No, 1 only on the ground that the petitioner was not scheduled caste candidate and had failed to produce a certificate as required under Law to be produced along with the nomination paper to show that she belonged to scheduled caste category. It is also an admitted position that the present petitioner is not scheduled caste by birth but she belonged to Shimpi community declared as Other Backward Classes and it is only by virtue of her marriage with Sunil Shinde on February 7, 1989, belonging to scheduled caste, she claims to be scheduled caste candidate. Excepting the pleadings and nomination forms including the certificate produced by the present petitioner, the parties led no oral evidence but proceeded to argue their respective cases on the basis of the aforesaid facts and also relying on certain Government circulars.
Mr. Vashi, the learned Counsel appearing on behalf of the present petitioner, mainly contended that the trial Court erred in coming to the conclusion that the certificate of caste produced by the present petitioner was not a caste certificate as required under the Law. It was further contended by Mr. Vashi that in fact respondent No. l filed the election petition challenging the election of the present petitioner only on the ground that the certificate filed by the present petitioner alongwith the nomination form is not proper certificate and was not issued in the prescribed form. According to the petitioner, in the election petition filed by respondent No. 1, respondent No. 1 ought to have given the details as to why the said certificate is not a caste certificate and also should have given reasons for challenging the said certificate and since the said details were not given, on this ground itself the trial Court ought to have rejected the election petition filed by respondent No. 1. To support this argument Mr. Vashi refers to the averments made by respondent No. 1 in his election petition. The said averments are in paragraph 4 of the election petition and are on page 35 of the present paper book. Same reads as under :
The petitioner submits that the nomination form filed by respondent No. 1 was not accompanied by the requisite and duly prescribed caste certificate and she has not satisfied the prescribed requirements to enable her to contest the election from Ward No. 69 which was a reserved constituency for women belonging to scheduled caste. The petitioner further says that the certificate produced and filed by respondent No. 1 along with the nomination form is not a proper caste certificate and was not issued in the prescribed form as required. The nomination form submitted by respondent No. 1 along with the so called caste certificate is improper and not a valid one and further does not satisfy the prescribed requirement to enable her to contest the election from Ward No. 69 which is a reserved constituency for women belonging to scheduled caste.
According to my opinion, though the election petition is not happily drafted, still, the aforesaid portion in paragraph 4 of that petition clearly states that the petitioner herein failed to produce certificate of caste as required under the Law to show that she is scheduled caste and, therefore, if after going through the caste certificate produced by the present petitioner, respondent No. 1 is in a position to show that the said certificate is not a caste certificate, she will be entitled to do so because of the specific averments made in the election petition originally filed by her. Further, in paragraph 5 of the said election petition it is stated as under :
The petitioner says and submits that the nomination form of the respondent No. 1 was not accompanied by a proper Caste Certificate and the so called certificate was not in the prescribed form. Hence the petitioner submits and says that the nomination form of respondent No. 1 and its acceptance by respondent No. 4 are improper, wrongful and has been accepted wrongly. The petitioner, therefore, submits and says that respondent No. 1 is not entitled in law to contest the election from Ward No. 69 which is a reserved constituency reserved for women belonging to scheduled caste only. The petitioner, therefore, further submits and says that her nomination for contesting the aforesaid is thus vitiated and deserves to be set aside.
In paragraph 7 of the said election petition it is further stated as follows:
The petitioner says that respondent No. I by birth belongs to the caste known as Shimpi which is not a duly notified scheduled caste as required under the law. The petitioner says that respondent No. 4 has wrongly and improperly accepted the nomination form submitted by respondent No. 1 along with here alleged caste certificate, as valid and allowed her to contest the election which in law she i.e. respondent No. 1 was not entitled to do so. The petitioner says that the election of respondent No. 1 is thus liable to be set aside and prays for the declaration viz. for wrongful acceptance of the nomination form which is invalid and further for an Order to set aside the election of respondent No. 1.
After going through the aforesaid averments it becomes clear that respondent No. 1 in her election petition has taken a specific stand that the petitioner herein belonged to Shimpi community which is not scheduled caste and, therefore, she was not entitled to contest the election from Ward No. 69 which was reserved for scheduled caste women and further that the certificate produced by the petitioner does not show that she belongs to scheduled caste and the said certificate is not as per the requirements of the law. In view of these clear averments as advanced in the election petition, according to my opinion, there is no substance in the arguments made by Mr. Vashi. Mr. Vashi, the learned Counsel for the petitioner herein, relies upon the ratio of the Supreme Court as laid down in the case of N.E. Horo Vs. Smt. Jahanara Jaipal Singh, , more particularly on Head Note ''E''. Head-Note '' E'' reads as under :
Even if a female is not a member of a tribe by virtue of birth she having been married to a tribal after due observance of all formalities and after obtaining the approval of the elders of the tribe would belong to the tribal community to which her husband belongs on the analogy of the wife taking the husband''s domicile.
In the aforesaid case decided by the Supreme Court nomination of the widow of Jaipal Singh was rejected by the Returning Officer on the ground that she does not belong to Scheduled Tribe. The widow of Jaipal Singh had filed her nomination for Lok Sabha election due to the vacancy created by the death of her husband Jaipal Singh. The said constituency was reserved for Scheduled Tribe and it was the contention of the widow of Jaipal Singh that though originally she was not from scheduled tribe, by virtue of her marriage with Jaipal Singh who belonged to scheduled tribe of Munda Caste in Bihar and that when a Munda Male marries outside the Munda Tribe if his marriage is accepted by the Tribe he continues to be a member of that Tribe and his wife also acquires its membership. Therefore, it was contended by the widow of Jaipal Singh that since she had married Jaipal Singh, a member of Munda Tribe, and since she was accepted by the Tribe, she had become a member of Munda community and, therefore, she was entitled to file nomination in a constituency which was reserved for Scheduled Tribe. After going through the evidence, Law and accepted evidence along with customary law, both the lower Courts came to the conclusion that in view of the evidence though the widow of Jaipal Singh originally did not belong to any Scheduled Tribe, by virtue of her marriage she had become a member of Scheduled Tribe in view of the customary law and, therefore, the Supreme Court confirmed the decision of the High Court. It is under these circumstances the widow of Jaipal Singh was accepted as a member of Munda caste, a scheduled tribe. According to my opinion, the observations and the ratio laid down by the Supreme Court in the aforesaid case is not applicable to the facts and circumstances of the present case. In this case, to show that the petitioner belongs to Scheduled Caste, the petitioner has relied upon a caste certificate, granted to her by the Competent Authority, which reads as order :
This is to certify that SHRI SUNIL SHINDE belonging to Hindu KANKAYYA a caste declared as a Scheduled Caste has married SMT. JYOTI SUNIL SHINDE belonging to Hindu SHIMPI a Caste declared as a O.B.C. on 7-2-1989. This couple as well as their progeny is eligible for the concessions admissible to Scheduled Caste as per orders issued in ....
After going through the contents of the aforesaid certificate it is clear that in any case this certificate cannot be called as a caste certificate. This certificate only states to the effect that the petitioner belonging to Hindu Shimpi a caste declared as O.B.C. got married to Sunil Shinde belonging to Hindu Kankayya, a caste declared as a scheduled caste, and that the couple "and their progeny is eligible to the concessions admissible to Scheduled Caste.
Mr. Zambre, the learned Counsel appearing on behalf of respondent No. 3, rightly contended that the aforesaid certificate is issued under Circular No. CBC-1475/1945/Desk-V issued by Social Welfare, Cultural Affairs, Sports and Tourism Department, Government of Maharashtra, whereby the Government of Maharashtra decided to grant certain concessions to a non-scheduled caste person marrying scheduled caste person. Under the said circular a form is also prescribed and as per the said form a certificate was issued to the present petitioner to show that though she is not scheduled caste she is entitled to certain concessions admissible to the scheduled caste as she had married a scheduled caste person. The said circular reads as under :
In accordance with para 3 of the instructions for the issue of Caste Certificates, forwarded under Government Circular, Social Welfare, Cultural Affairs, Sports and Tourism Department No. CBC-1475/19689-Desk-V, dated 15th October, 1975, person who does not belong to a Scheduled Caste or a Scheduled Tribe, can be deemed to be a member of a Scheduled Caste, or Scheduled Tribe, merely because he or she has married a person belonging to a Scheduled Caste or Scheduled Tribe. A doubt has been raised whether a non-Scheduled Caste person would be eligible to the concessions granted under Government Resolution, Labour and Social Welfare Department No. SCW. 2258-E, dated 12th August 1958, in respect of marriage between a Harijan and non Harijan, as he/she would not be declared as belonging to a Schedule Caste in accordance with the instructions accompanying Government Circular, dated 15th October, 1975, referred to earlier. Government is pleased to clarify that the instructions under Government Circular, dated 15th October, 1975 relate to the legal position regarding issuance of a Caste Certificate while the orders contained in Government Resolution, Labour and Social Welfare Department No. SCW. 2258-E, dated 12th August 1958, relate to the concessions granted to the couple in respect of marriage between a Scheduled Caste person and a non-Scheduled Caste person. Though a person will not be eligible for the caste certificate, he/she will be eligible for the concessions granted under Government Resolution dated 12th August, 1958 ...
For the issuance of the Certificate to be issued a form is prescribed under the above mentioned Circular and the same reads as under:
This is to certify that Shri...belonging to... .a Caste declared/ not declared as a Scheduled Caste/Tribe/Vimukta Jatis/Nomadic Tribe, has married Smt. belonging to a caste...declared/not declared as a Scheduled Caste/ Scheduled Tribe/Vimukta Jatis/Nomadic Tribe on...This couple as well as their progeny, is eligible for the concessions admissible to Scheduled Caste/Scheduled Tribe/Vimukta Jatis/Nomadic Tribe as per orders issued in....
Form of certificate to be produced by a candidate belonging to a Scheduled Caste or Scheduled Tribe in support of his claim reads as under:
This is to certify that Shri/Shrimati/Kumari son/daughter of....village/ town... .in District/Division... of the State/Union Territory.. .belongs to the.. .Caste/ Tribe which is recognised as a Scheduled Caste/Scheduled Tribe under...
Mr. Zambre, the learned Counsel for respondent No. 3 further contended that the petitioner herein ought to have produced a caste certificate in the aforesaid prescribed form to show that she belonged to Scheduled caste. After going through the aforesaid circular and the prescribed form, it becomes clear that the petitioner obtained the certificate for grant of concessions and used the same to show that she is a scheduled caste candidate when the said certificate does not say so. Concessions granted to certain non-scheduled caste person by virtue of marriage is altogether a different matter from the caste certificate as envisaged under the Act. Therefore, in my opinion, the trial Court was right in coming to the conclusion that the certificate produced by the petitioner along with the nomination form showing therein that she is entitled to certain concession is not a certificate showing that she belongs to Scheduled Caste and, therefore, the Returning Officer was wrong in accepting her nomination paper. Consequently, the election of the present petitioner is liable to be set aside.
In the present case respondent No. 1 has taken a specific objection as regards the validity of the certificate and as regards the entitlement of the petitioner to contest the election as a scheduled caste candidates. Inspite of that the petitioner has led no evidence whatsoever to show that in fact there is a custom in Hindu Kankayya caste that if a non-member of Kankayya community marries with a person belonging to Hindu Kankayya caste and if the said marriage is accepted by the caste, then by virtue of the said marriage the person belonging to non-Hindu Kankayya caste becomes a member of Hindu Kankayya caste as per the custom prevalent in the said caste. In view of this, the observations made by the Supreme Court in the case of N.E. Horn v. Jahan Ara (supra) do not in any way help the petitioner in advancing her case any further. Returning Officer was wrong in accepting her nomination paper. Consequently, the election of the present petitioner is liable to be set aside.
In the present case respondent No. 1 has taken a specific objection as regards the validity of the certificate and as regards the entitlement of the petitioner to contest the election as a scheduled caste candidate. Inspite of that the petitioner has led no evidence whatsoever to show that in fact there is a custom in Hindu Kankayya caste that if a non-member of Kankayya community marries with a person belonging to Hindu Kankayya caste and if the said marriage is accepted by the caste, then by virtue of the said marriage the person belonging to non-Hindu Kankayya caste becomes a member of Hindu Kankayya caste as per the custom prevalent in the said caste. In view of this, the observations made by the Supreme Court in the case of N.E. Horo v. Jahan Ara (supra) do not in any way help the petitioner in advancing her case any further.
In my opinion, the trial Court was justified in rejecting the caste certificate and the nomination paper of the petitioner as she failed to produce a caste certificate showing therein that she belonged to scheduled caste. This petition is, therefore, dismissed with no order as to costs. Rule is discharged and the decision of the trial Court stands confirmed.
Certified copy be issued forthwith.