REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  7313         OF 2008 [Arising out of SLP (Civil) No. 25151 of 2005]

Sau Kusum …Appellant

Versus

State of Maharashtra & Ors. …Respondents

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. Appellant claims to be belonging to the carpenter caste.  According to

her, she hails from the Vidarbha area which is the border area of the State of

Madhya  Pradesh  and  Maharashtra.   Carpenters  in  the  State  of  Madhya

Pradesh are known as ‘Badhai’, whereas in the State of Maharashtra, they

are known as ‘Sutar’.  Their occupation is said to be the same.  According to

appellant, in both the States, people belonging to the said caste are entitled

to be considered as Other Backward Class (OBC).   

3. It is not known when the family of the appellant migrated from the

State  of  Madhya Pradesh  to  the State  of  Maharashtra.   Inter  alia  on  the

premise that she belongs to OBC, she contested an election for a Member of

Panchayat in Village Chincholi.    The post of Sarpanch was reserved for the

OBC  category  candidates.   She  was  elected  in  the  said  category.   An

application,  however,  was  filed  before  the  Caste  Scrutiny  Committee  by

respondent No. 4 contending that she does not belong to the OBC category

and, therefore, could not have been elected.

4. The  Caste  Scrutiny  Committee  relying  on  or  on  the  basis  of  a

purported  circular  letter  issued  by  the  State  of  Maharashtra  dated

21.08.1996 refused to go into the said question holding that the appellant is

not  the daughter  of  Gulabrao Deulkar  but  was the daughter  of  Marotrao

Chindhuji Shingnapure.  Marotrao Chindhuji Shingnapure was a resident of

Madhya Pradesh and as such she is not a resident of Maharashtra prior to

1967.  It was, therefore, held:

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“As  per  the  directions  given  in  Govt.  Circular dated 21st August 1996, those candidates who are not  residents  of  Maharashtra,  the  caste  claim should  not  be  verified.   Therefore,  Smt.  Kusum Akotkar is not the resident of Maharashtra prior to 1967; her caste claim cannot be verified.  Hence this  decision.   The  candidate  has  submitted  the documents  in  respect  of  her  residence  are doubtful.   Therefore  the  Committee  has  decided not to verify her caste claim.”

5. Aggrieved  by  and  dissatisfied  therewith,  she  filed  a  writ  petition

before the High Court of Judicature at Bombay, Nagpur Bench, Nagpur.  By

an  interim  order  dated  1.04.2005,  a  Division  Bench  of  the  said  Court,

directed:

“The petitioner has impugned the order dated 29- 12-2004  passed  by  respondent  No.  2  –  Social Welfare  Department,  which  held  that  as  the petitioner was born on 21-7-1962 in Chhindwara District  and being  not  a resident  of  Maharashtra prior  to  1967,  the  caste  claim  could  not  be verified.

In  the  course  of  hearing,  we  are  of  the opinion that respondent No. 2, rather than refusing to examine the caste claim of the petitioner on the ground  that  she  was  not  the  resident  of Maharashtra  prior  to  1967,  should  scrutinize the caste claim of the petitioner and give its finding. In  so  far  as  the  issue  of  the  petitioner  being  a

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resident  of  Maharashtra  prior  to  1967  or  not  is concerned, the same can thereafter be considered by this Court.

We, therefore, direct the petitioner to appear before respondent No. 2 on 25-4-2005 at 11 a.m. and extend all possible co-operation to respondent No. 2 in getting her caste claim examined.

Respondent No. 2 to take a decision in the matter within a period of six weeks.

The petition be listed before this Court for further orders on 20-6-2005.”

6. Pursuant  thereto  or  in  furtherance  of  the  said  direction,  the  Caste

Scrutiny  Committee  considered  the  matter  afresh.   By  an  order  dated

5.07.2005, it was held:

“The school  certificate  of Smt. Kusum Vithalrao Akotkar (Miss Kusum Gulabrao Deulkar) as well as  the  certificate  of  Sarpanch,  Gram Panchayat, Jam, Dist.  Chhindwara  (Madhya Pradesh)  shows that  the  caste  of  Shri  Marotrao  Chindhbaji Singnapure  is  Badhai  (in  Maharashtra,  Sutar); hence  the  Committee  maintains  its  decision  dt. 29.12.2004 and further holds that the caste of Smt. Kusum Vithalrao Akotkar is Sutar.”

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7. The said order of the Caste Scrutiny Committee was placed before the

High Court, and by reason of the impugned judgment the writ petition was

dismissed, opining:

“We have considered the contentions canvassed by the respective counsel.  In the instant case, there is no  reason  for  us  to  disbelieve  the  evidence collected  by  the  Vigilance  Cell,  which  is  an independent  agency  meant  for  the  purposes  of collecting  the  documentary  as  well  as  other evidence in order to find out whether the person really belongs to caste which he or she claims, as well  as  the  place  from  where  such  person belongs.”

8. Before the Division Bench, reference was made to a decision of this

Court  in  Union of  India  and others v.  Dudh Nath Prasad [AIR 2000 SC

525 : (2000) 2 SCC 20], which according to the Division Bench was of no

assistance to the appellant in view of the peculiar facts obtaining therein.

9. Dr. Rajeev B. Masodkar, learned counsel appearing on behalf of the

appellant,  would  submit  that  the  High  Court  committed  a  serious  error

insofar as it failed to take into consideration that even the Caste Scrutiny

Committee opined that the appellant is a ‘Sutar’, which comes within the

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purview of the OBC in the State of Maharashtra and, thus, the said decision

could not have been set aside by the High Court and that too in the writ

petition filed by the appellant.   

The learned counsel  would  contend in  that  view of the matter  the

High Court must be held to have committed a serious error in refusing to

follow the decision of this Court in Dudh Nath Prasad (supra), wherein this

Court held:

“17. The word “reside” came to be considered by this Court in Jagir Kaur v. Jaswant Singh 1 in the context of the jurisdiction of the Magistrate under Section  488 of  the Code of  Criminal  Procedure, 1898,  for  entertaining  the  petition  of  a  wife  for maintenance. After considering the meaning of the word  “reside”  in  Oxford  Dictionary,  which  we have already set out above, the Court observed as under: “The  said  meaning,  therefore,  takes  in  both  a permanent dwelling as well as a temporary living in  a  place.  It  is,  therefore,  capable  of  different meanings,  including domicile in  the  strictest  and the  most  technical  sense  and  a  temporary residence. Whichever meaning is given to it, one thing is obvious and it is that it does not include a casual  stay  in,  or  a  flying  visit  to,  a  particular place. In short, the meaning of the word would, in the ultimate analysis, depend upon the context and the purpose of a particular statute. In this case the context and purpose of the present statute certainly do not  compel the importation of the concept  of domicile in its technical sense.” (emphasis supplied)

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29. We have already explained the meanings of the words  “ordinarily  resident”  and  have  found  that notwithstanding that the parents of the respondent lived at one time in a village in District Siwan in the  State  of  Bihar  and  that  they  owned  some property there also, they had shifted to the State of West Bengal long ago and had been living there since then. For all intents and purposes, therefore, they shall be treated to be “ordinarily residing” in the State of West Bengal.  For the State of  West Bengal,  the  President,  in  exercise  of  his  powers under Article 341(1) read with Article 366(24) had already  declared  the  “Nuniya”  caste  as  a Scheduled  Caste  and,  therefore,  the  respondent was  rightly  treated  to  be  a  Scheduled  Caste candidate  and  was  rightly  appointed  against  a reserved vacancy, after being declared successful at the examination held by UPSC for the Indian Administrative and Allied Services in 1966.”

It  was  urged  that  even  if  appellant  is  said  to  have  migrated  from

Chhindwara to Nagpur as was contended by the complainant having regard

to the fact that a part of that area was transferred to the State of Maharashtra

upon reorganization,  the  principles  laid  down by this  Court  in  Sudhakar

Vithal Kumbhare v.  State of Maharashtra and Others [(2004) 9 SCC 481]

should have been applied.   

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10. In  Sudhakar  Vithal (supra),  this  Court  took  into  consideration  the

peculiar situation obtaining that the border areas of a State where a part of

the  territory  is  transferred  and  a  part  of  the  territory  remained  may  be

inhabited  by  the  people  of  same  group  having  same  traits  and  culture,

holding:

“5.  But  the  question  which  arises  for consideration  herein  appears  to  have  not  been raised in any other case. It is not in dispute that the Scheduled  Castes  and  Scheduled  Tribes  have suffered disadvantages  and been denied facilities for  development  and  growth  in  several  States. They require protective preferences, facilities and benefits inter alia in the form of reservation, so as to enable them to compete on equal terms with the more  advantaged  and  developed  sections  of  the community.  The  question  is  as  to  whether  the appellant  being  a  Scheduled  Tribe  known  as Halba/Halbi which stands recognized both in the State of Madhya Pradesh as well as in the State of Maharashtra  having  their  origin  in  Chhindwara region, a part of which, on States’ reorganisation, has come to the State of Maharashtra, was entitled to the benefit of reservation. It is one thing to say that  the  expression  “in  relation  to  that  State” occurring  in  Article  342  of  the  Constitution  of India  should  be  given  an  effective  or  proper meaning  so  as  to  exclude  the  possibility  that  a tribe  which  has  been  included  as  a  Scheduled Tribe  in  one  State  after  consultation  with  the Governor for the purpose of the Constitution may not  get  the  same benefit  in  another  State  whose Governor has not been consulted; but it is another thing  to  say that  when  an  area  is  dominated  by members of the same tribe belonging to the same region  which  has  been  bifurcated,  the  members

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would not continue to get the same benefit when the said tribe is recognized in both the States. In other  words,  the  question  that  is  required  to  be posed and answered would be as to whether  the members of a Scheduled  Tribe  belonging  to one region would continue to get the same benefits despite  bifurcation thereof in  terms of the States Reorganisation Act. With a view to find out as to whether  any  particular  area  of  the  country  was required to be given protection is a matter which requires detailed investigation having regard to the fact  that  both  Pandhurna  in  the  district  of Chhindwara and a part of the area of Chandrapur at one point of time belonged to the same region and  under  the  Constitution  (Scheduled  Tribes) Order,  1950  as  it  originally  stood  the  tribe Halba/Halbi of that region may be given the same protection. In a case of this nature the degree of disadvantages  of  various  elements  which constitute  the input  for  specification  may not  be totally different and the State of Maharashtra even after  reorganisation  might  have  agreed  for inclusion  of  the  said  tribe  Halba/Halbi  as  a Scheduled tribe in the State of Maharashtra having regard to the said fact in mind.

7. In view of fact that the appellant’s case was not referred  to  the  appropriate  Committee,  the judgment and order under challenge deserves to be set aside. It will be open to the Maharashtra State Electricity Board to refer the matter to the Scrutiny Committee  for  verifying  the  eligibility  of  the appellant.  We  direct  that  the  appellant  shall  be reinstated  forthwith  as  Assistant  Engineer  and shall continue to hold the said post till the matter is  decided  by  the  Committee.  The  appeal  is allowed on the aforementioned terms. There shall be no order as to costs.”

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11. In that view of the matter, if it is a fact that the people belonging to

the  said  Caste  are  recognized  as  OBC,  both  in  Madhya  Pradesh  and

Maharashtra being Badhai in the former and Sutar in the latter and keeping

in view of the fact that the Caste Scrutiny Committee has found her to be

belonging to the Sutar caste, we are of the opinion that the matter requires

reconsideration.   

It may be noticed that the Bombay High Court also in Hitesh Dasiram

Murkute v. State of Maharashtra and others [2007 (5) Mah LJ 454] opined:

“(iv)  Date  too  is  equally  relevant  in  order  to identify the person as belonging to caste included in the schedule on the date of such inclusion with reference  to  locality  identified  in  the  schedule. Therefore, a person claiming benefit  would have to  show that  his  ancestors  hailed on  the date  of inclusion  of  caste  in  schedule  from  a  place identified  in  the  schedule.  In  other  words,  the relevant date is not date of migration but date of inclusion of caste or tribe in the schedule.”

12. There is nothing on record to show as to when she had migrated to

the State of Maharashtra.   If admittedly she had migrated to the State of

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Maharashtra  before  1967,  she  would  be  considered  to  be  a  permanent

resident of Maharashtra.   

13. Dr.  Masodkar  states  that  the  appellant  had  been  residing  in

Maharashtra for a long time and,  thus,  there  is  no reason as  to  why she

should not be held to be a permanent resident.

14. It is one thing to say that she, being not a permanent resident of the

State, would not be entitled to contest any election.  If she is to be conferred

the said status, she will be entitled to all the benefits to which members of

the said caste are entitled to but would also be entitled to other benefits i.e.

not the benefit to contest in the reserved categories of the election of the

panchayat alone but other benefits as well.   

15. We, therefore,  are  of  the  opinion  that  interest  of  justice  would  be

subserved if the impugned orders are set aside and the matter is directed to

be considered afresh by the Caste Scrutiny Committee wherein the appellant

may be permitted to adduce evidence inter alia on the question as to when

she had migrated.  We may further observe that if the appellant is aggrieved

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by the finding of the Caste Scrutiny Committee in regard to her parentage,

she  would  undoubtedly  be  entitled  to  file  a  suit  for  an  appropriate

declaration.   

16.  For  the  reasons  aforementioned,  the  appeal  is  allowed  to  the

aforementioned  extent.   But,  in  the  facts  and  circumstances  of  the  case,

there shall be no order as to costs.

………………………….J. [S.B. Sinha]

..…………………………J.     [Cyriac Joseph]

New Delhi; December 16, 2008

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