Meghalaya High Court
Sri. Tennydard M Marak vs The State Of Meghalaya, on 7 October, 2013
Bench: T Nandakumar Singh, S R Sen
THE HIGH COURT OF MEGHALAYA
AT SHILLONG.
PIL NO. (SH) 5/2013
Sri. Tennydard M Marak
S/o (L) P.N. Sangma,
Nokgilawe, Williamnagar,
East Garo Hills, Meghalaya. :::: Petitioner
-Vs-
1. The State of Meghalaya,
represented by the Secretary to the
Department of Welfare of Schedule Tribes &
Schedule Castes, Govt. of Meghalaya, Shillong.
2. The Secretary, to the Department of Home,
Government of Meghalaya, Shillong.
3. The Deputy Commissioner,
South West Garo Hills, PO-Ampati,
District- South West Garo Hills, Meghalaya.
4. The Deputy Commissioner,
West Garo Hills,
District-Tura, Meghalaya.
5. Dr. Mukul M Sangma,
S/o Sri. Binoy Bhusan Marak,
Presently, the Chief Minister of Meghalaya,
Residing at Chief Minister's Residence,
Shillong, Meghalaya. :::: Respondents.
BEFORE THE HON'BLE MR JUSTICE T NANDAKUMAR SINGH THE HON'BLE MR. JUSTICE S R SEN For the Petitioner : Mr. OP Bhati, Adv For the Respondents : Mr. KS Kynjing, Advocate General Mr. ND Chullai, Sr. GA.
Date of hearing : 16.09.2013
Date of Judgment & Order : 07.10.2013
Page 1 of 75
(Justice T. Nandakumar Singh)
As prayed for by the parties, the present writ petition (PIL) is taken up for deciding the preliminary issue as to whether the present writ petition in the form of PIL is maintainable or not. For deciding the maintainability of the present writ petition in the form of PIL, this Court is called for to decide the two core questions:-
(i) Whether the petitioner has the locus standi or the petitioner is an aggrieved party to file the present PIL?
(ii) Whether the present PIL is the proper forum/procedure for the relief sought for in the present writ petition (PIL)?
The relief sought for in the present PIL reads as follows:-
"It is, therefore, prayed that Your Lordships may be pleased to issue a Rule setting aside Order No.TGC.7/2009/222 dated 17.07.2013 passed by Shri.Pravin Bakshi, IAS, Deputy Commissioner, West Garo Hills, Tura, Meghalaya (respondent No.4).
And call upon the respondents to show cause as to why the respondents No.1 to 4 and specially the respondent No.3 and 4 should not be directed to produce the Caste Certificate (Sic. S.T. Certificate) No.TGC-18/81/6295 dated 23.06.1982 issued by the respondent No.4 in favour of Dr. Mukul M Sangma (respondent No.5) and on such production as to why the said Caste Certificate (Sic S.T. Certificate) issued in favour of Dr. Mukul M Sangma (respondent No.5) should not be cancelled;
And call for the records and on hearing such cause or causes as may be shown by the respondents, make the Rule absolute and direct the respondent No.4 to cancel the Caste Certificate (Sic S.T. Certificate) No.TGC-18/81/6295 dated 23.06.1982 issued in favour of Dr. Mukul M Sangma (respondent No.5) and/or pass such or further orders as Your Lordships may seem fit and proper."Page 2 of 75
2. Heard Mr. OP Bhati, learned counsel appearing for the petitioner and Mr. KS Kynjing, learned Advocate General, Meghalaya assisted by Mr. ND Chullai, learned Sr. GA for the State respondents.
3. Factual Matrix (pleaded case of the petitioner) leading to the filing of the present PIL:-
The petitioner came across details about the parentage of respondent No.5 (Dr. Mukul M Sangma, present Chief Minister of Meghalaya) vis-à-vis his caste certificate (Sic S.T. Certificate) from the information available on a website and on being very much disturbed and shocked on his claim of belonging to "Sangma" caste, the petitioner had filed an application for cancellation of the caste certificate (Sic S.T. Certificate) issued to the respondent No.5 as far back as 23.06.1982 bearing No.TCG-
18/81/6295. The said caste certificate (Sic S.T. Certificate) was obtained by the respondent No.5 by misrepresentation and suppressing the material facts and as such, the said caste certificate (Sic S.T. Certificate) is liable to be cancelled for the reasons that the respondent No.5 was born on 24.09.1965 at Chengkompara village, West Garo Hills District to Binoy Bhusan M Marak and Roshanara Begum. The mother of the respondent No.5 was a Muslim throughout her life and this fact is apparent on going through the electoral roll, 1983 of 58 Ampatgiri (ST) Assembly Constituency, Meghalaya at Sl.No.359. However, the title or caste of the respondent No.5 mother has been shown as Sangma in the electoral roll, 2004 of the said Constituency at Sl.No.283. The marriage between Shri.Binoy Bhusan Marak (Garo) and (L) Roshanara Begum is, even though, was valid but the facts remain that the children born out of wedlock between them do not acquire the status of a Garo Tribal according to the social customs and usages and customary practices so universally prevalent among the Garo people (Scheduled Tribe) as a whole.Page 3 of 75
4. It is the pleaded case of the petitioner that the Garo (Scheduled Tribe) society follows matrilineal system and the descent is always traced and accorded through mother alone. Being so, in a Garo family, the children belong to mother's clan. For instance, if a mother belongs to a Sangma clan and the father to a Marak clan, the children all become Sangma and not Marak. As the mother of the respondent No.5 was a Muslim by faith and non-
Garo, who hailed from Nagoan in the State of Assam, the respondent No.5 could not be a member of the Scheduled Tribe "Garo" according to the customs and usages prevalent in the Garo society. On the strength of such certificate (Scheduled Tribe certificate) that the respondent No.5 is the member of the Scheduled Tribes community or Sangma clan, he not only enrolled as a voter belonging to the tribal (Scheduled Tribe) but also contested the elections to the Meghalaya Legislative Assembly from Ampatigiri (a reserved Constituency for Scheduled Tribes) in the years 1993, 1998, 2003, 2008 and 2013 respectively and now he has become the Chief Minister of Meghalaya. Since, the caste certificate (Sic S.T. Certificate) issued is not a valid one for the reasons alluded above, the election of the respondent No.5 to the Meghalaya Legislative Assembly from a reserved constituency was/is void-ab-initio.
5. The caste certificate (Sic. S.T. Certificate) which is in possession of the respondent No.5 and the particulars and materials upon which the said certificate was issued in favour of the respondent No.5 are in the custody of the respondents No.3 & 4 i.e. respondent No.3, the Deputy Commissioner South West Garo Hills P.O.-Ampati District, South West Garo Hills District, Meghalaya and the respondent No.4 Deputy Commissioner, West Garo Hills District, Tura, Meghalaya are to be produced before this Court for enquiry and investigation. It is well settled law that the PIL cannot Page 4 of 75 be filed for the purpose of making roving enquiry and this point is being discussed in the later part of this judgment. The PIL had been filed for the benefit of the Garo tribal (Scheduled Tribe "Garo") to safeguard their constitutional as well as statutory rights and privileges guaranteed under the Constitution of India. The petitioner made a representation on 27/05.2013 to the respondent No.3 and copies of which were endorsed to the respondents No.1 & 2, requesting them to investigate or enquiry into the matter without being influenced as to the cancellation of the certificate. In the meantime, the petitioner received a copy of the letter No.ACS/CB.12/92/pt.II/69 dated 30.05.2013 addressed by the respondent No.3 to the respondent No.4 whereby, the representation dated 27.05.2013 submitted by the petitioner was forwarded to the respondent No.4 for necessary action for the reasons stated therein. On 17.07.2013, the respondent No.4 passed the impugned order No. TGC.7/2009/222 dated 17.07.2013, mechanically disposing of the representation. The impugned order/letter dated 17.07.2013 (Annexure-D to the writ petition) reads as follows:-
"No.TGC.7/2009/222, Dated Tura, 17th July, 2013 From:- Pravin Bakshi, IAS, Deputy Commissioner, West Garo Hills, Tura.
To,
1. Shri.Teenydard M. Marak, Nokgilawe, Williamnagar-794111, Meghalaya.
2. Shri.Hinaldro D. Sangma, President, All India Garo Union, Williamnagar Unit, East Garo Hills, Meghalaya.
3. Secretary/President, All North East Indegenous Garo, Law Promoter's Association, Page 5 of 75 Williamnagar, East Garo Hills, Meghalaya-794111.
Sub: Disposed of petition/representation in relating to Scheduled Tribe (Garo Tribe) Certificate obtained by Dr. Mukul Sangma.
Sir, This has reference to the subject cited above and demand for the cancellation of the Scheduled Tribe (Garo Tribe) certificate No.TGC-18/81/6295 dated 23.6.1982 issued by the office of the undersigned in favour of Dr. Mukul M Sangma, son of Shri.Binoy Bhusan Marak.
In this regard the undersigned has called for records and consulted legal experts.
It is asserted that since the Scheduled Tribe certificate was issued way back in 23.6.1982 it is presumed that the then Deputy Commissioner, West Garo Hills must have conducted an enquiry and it is only upon satisfying himself about the antecedents of the petitioner - the Schedule Tribe certificate must have been issued.
Further in 2008 the issuance and the maintainability of the Schedule Tribe certificate was challenged vide case No.STC Misc. Case No.35/2008 in the District Court which ruled in the favour of opposite party in Mohindro Agitok - vs - Dr. Mukul M Sangma.
As such further legal recourse is available as per law for the petitioners. This is for your kind information with which your respective petitions are disposed off.
Yours faithfully, Sd/-
(Pravin Bakshi) Deputy Commissioner, West Garo Hills, Tura."
6. One Shri. Mohindro Agitok raised the question of tribal status of the respondent No.5 for the first time before the APO, Ampati at the time of scrutiny of the nomination paper filed by the respondent No.5 for contesting the election from Ampatigiri Constituency in the last Assembly election. The APO rejected the contention of Shri. Mohindro Agitok, after a full dress Page 6 of 75 hearing. Mr. Mohindro Agitok did not file the election petition challenging the election of the respondent No.5 as S.T. candidate from Ampatigiri constituency (a reserved constituency for S.T.). The said Mohindro Agitok filed the Civil Suit being S.T.C. (Misc) Case 35/2008 in the Court of Additional Deputy Commissioner, Tura, West Garo Hills, Meghalaya under Rule 24 of the Rules for the Administration of Justice & Police in Garo Hills District, 1937. The learned Additional Deputy Commissioner, West Garo Hills, Tura had dismissed the suit by passing a reasoned order dated 06.11.2009, which reads as follows:-
"S.T.C. (MISC) Case 35/08Order 06.11.09 The present suit/case is preferred under Rule 24 of the Administration of Justice and Police in Garo Hills District, 1937. In brief, the petitioner has alleged that the OP has obtained an ST Certificate fraudulently and by misrepresenting facts. He does not belong to the scheduled tribe as he was born to a non-tribal (Muslim) mother and a tribal ST-Garo father. The OP cannot claim himself the status of ST following the customary law of the Garo Society which clearly states in brief as: (a) the Garo society follows the matrilineal system and descent is always traced and accorded through the mother and through her alone the GT of the family traces its origin back to the great common ancestors and (b) In Garo society the children belong to the mother clan. For instance, if the mother belongs to a Sangma clan and the father to a Marak clan the children all become Sangmas and not Maraks.
There is a delay in pronouncing this judgment as I am a full fledged Project Director District Rural DW Agency, West Garo Hills, Tura. The nature of jobs and work pressure is such that it demands my full attention and occupies even beyond the regular working hours. Further, I have to make site visits for various scheme at the blocks for which I am answerable and also required to send regular progress reports to the Central and State Govts. Besides that, I am also handling several other branches within the Deputy Commissioner's office and entrusted with various other overtime works and not to forget law and order duty at regular intervals. Although I have heard the arguments of the case and have noted down the points, I could not possibly give the judgment earlier in spite of my best efforts.
Page 7 of 75The petitioner has argued that the mother of the OP not being a "Garo" the OP has no legal right to claim the status of an ST. Hence, although the OP was aware of this fact, he obtained an ST Certificate from the office of the Deputy Commissioner, West Garo Hills, Tura, way back in 1982. It is also alleged that the OP has made use of this certificate for various purpose and has contested MLA elections from Ampati Constituency for four consecutive terms, the constituency being a reserve ST constituency, the OP not being an ST by virtue of the fact that he is an offspring of a no tribal mother has acted in a fraudulent manner.
The petitioner has also prayed for restraining the OP from using the ST certificate issued to him. The petitioner has argued on many other points in his original petition and the petition for restraining the OP from use of his ST certificate which this Court takes note of. The OP not followed the principles of the Garo matrilineal society and there was no formal marriage of the parents of the OP according to Garo schedule tribe matrilineal society customary law of marriage or even to Indian Christian Marriage Act, 1872. The claim of the parents of OP about alleged court marriage requires verification. Even if it is so, both the parents have retained their respective personal identifies intact. Late Rosanara Begum, the mother of the OP did not assume the name of the clan of her husband, but rather preferred to be called as Rousanara Begum. She did not adopt the social custom, usages, rites and rituals of the Garo society. Hence, the OP being her offshoot, cannot claim to be an ST.
The petitioner stressed on the decision of the Hon'ble Supreme Court in Anjan Kumar-Vs-Union of India and others passed vide its judgment dated 14.02.2006 in support of his objection. Reference is also made from the principles of Garo Law by Late Jangsan A Sangma, Advocate, retired Judge Guwahati High Court. The Garo customary law and practices by Dr. J.R.R. Marak etc. The OP in his petition for dismissal of the case filed by the petitioner has strongly rebutted the contentions of the petitioner, the first being it is not in a prescribed from of the suit in the spirit of the Order II of the Code of Civil Procedure. Further, the certificate in question has been issued by the Deputy Commissioner, hence the Deputy Commissioner ought to have been made a party to this suit, which has not been made alone in the present case.
The OP further contradict the allegation as to what fraud the OP had resorted to. It is a serious allegation and if unfounded without any material, the party will be responsible for false statement and shall not only be liable to be criminally prosecuted but shall also be liable to compensate the OP. It is argued that the petitioner's case ought to be dismissed forthwith as it suffers from certain Page 8 of 75 legal infirmities. The petitioner cannot seek the relief under the present provisions. He has also argued on other points as elaborated in the petition filed by the OP.
Further, the petitioner raised the question of tribal status for the first time before the APO, Ampati, though the petitioner contested elections from the same constituency three times earlier. The APO rejected the contention of the petitioner after a full dress hearing. The petitioner should have filed election petition before the Hon'ble High Court as the matter essentially relates to and has arisen out of election to the Legislative Assembly. Since the petitioner did not question the tribal status of the OP during the earlier elections, he is estopped from raising the question now.
The character certificate issued by the petitioner dated 16.06.1982 in respect of the OP describes Dr. Mukul as "Sangma" indicating thereby that he is a "Garo". The petitioner never questioned the status of the OP in the past three elections.
The OP has also relied on the decision Anjan Kumar-Vs- Union of India and Others passed by the Hon'ble Supreme Court in the judgment dated 14.02.2006 in support of his contention. Further, he has also cited a case reported in GLT 2008(1), A.S. Khongphai-Vs-Stanely D.D. Nichols Roy and others, which was a case dealing with a tribal father and a non tribal mother. The Hon'ble High Court considered that a person is to be considered a tribal irrespective of his birth if he follows the custom and way of life of a tribal and if the tribal society considers as part of the society. This instant case is identical with the case of the OP, his mother though a Muslim and though belonging to forward class, abandoned her parental home and lived in a feafling and backward Ampati area among the Garos who accepted her as one of them. The children including the OP were brought up in a Garo society in a Garo way of life. They have suffered from all disabilities to which the Garo scheduled tribes are subject. The OP passed his MBBS course under ST-Quota and obtained his degree, and therefore, there is no reason not to treat him a tribal (Garo).
The OP has also relied on the decision of the Hon'ble High Court in AIR-1972 SC-1840 N.E.Horo-Vs-Smt. Jahanara Ara Jaipal Singh wherein a non-tribal woman married to a tribal husband was accepted as a tribal.
In reply to the objection petition filed by the OP, the petitioner has also filed a reply wherein the contentions of the OP are dismissed by the petitioner. In brief, it is asserted that the presumption of the OP in the first para of the objection petition that the present suit is not maintainable as it is not in the prescribed form of a suit has no force in law. The present case is not a suit in the true sense of the terms but, it is pure miscellaneous case in nature. The OP is trying to slip away from the main issue Page 9 of 75 making adequate attempt to justify his ST-certificate. The statement of the OP in reference to the Civil Appeal No. 6445 of the Hon'ble Supreme Court and the decision dated 14.02.2006 is not correct. The OP has simply quoted the ruling in a cryptic manner. The OP has mis-read the ruling of the Supreme Court and he did not decipher the underlying meaning of the Court's judgment. The impact of marrying a non-tribal woman by a tribal male and their offshoots social status vis-à-vis the Garo schedule tribe matrimonial system here in the State of Meghalaya has not been stated by the OP. Further, the petitioner has also rejected the contention of the OP that he has been elected four times from Ampati constituency which is a reserved seat, without any objection. The petitioner vide his reply dated 30.08.2009 has given his view on the matter in detail.
Having heard both the sides, the Court has taken note of the submissions of either side. The relief being sought under Rule 24 of the Rules of Administration of Justice and Police in Garo Hills District, 1937 which only empowers the Deputy Commissioner to try Civil Cases. A Civil Case has to furnish particulars as laid down in CPC. The present petition does not follow the accepted procedure. Moreover, the Civil Court does not have the power to cancel ST certificate duly granted by the competent authority.
Further, it is the certificate issued by the Deputy Commissioner, which is the matter of dispute, accordingly the Deputy Commissioner ought to have been impleaded as a party. Moreover, the petitioner ought to have filed Election Petition in the first place as soon as the APO rejected his plea at the time of scrutiny of nomination papers. Further, the petitioner did not raise the objection in the previous three elections although he himself has contested all the three elections.
The contents of the case cited by the petitioner Anjan Kumar-Vs-Union of India relates to a case which stands on a different footing and has been argued for a person who is offshoot of a tribal mother and a non-tribal father. However, the instant case is just the opposite. Moreso, the Hon'ble Supreme Court in para 3 has stated "the situation will however stand on a different footing in a case where a tribal man marries a non-tribal woman (forward class). Then, the offshoots of such wedlock will obviously attain the tribal status".
This Court also take note that the OP had contested simultaneous four elections from the reserved Ampati constituency without any objection. He had been elected by the people four times consecutively. He has been brought up in a Garo society and he has suffered all the disabilities.
Upon perusal of the decisions and the points argued between the parties, I feel the present petition deserves to be dismissed and accordingly, I dismiss.
Page 10 of 75Both parties are represented. The order is readout, pronounced in the open court."
7. From the pleaded case of the petitioner in the writ petition, the case of the petitioner spelled out is that the respondent No.5 who is not a member of the Scheduled Tribe community or clan Sangma contested the elections to the Meghalaya Legislative Assembly from Ampatigiri constituency (a reserved constituency for S.T.) in the years 1993, 1998, 2003, 2008 and 2013 respectively and according to the pleaded case of the petitioner in the writ petition, the Garo society followed matrilineal system and descent is always traced and accorded to the mother alone and offshoot of wedlock between the non-tribal specially non-Garo tribal women and Garo tribal cannot claim the status of S.T. either under the customary law applicable to the Garo tribal or under the Constitution of India. It is also very clear from the case of the petitioner that the petitioner had not contested election to the Meghalaya Legislative Assembly from Ampatigiri constituency (a reserved constituency for S.T.) and no election petition challenging the elections of the respondent No.5 to the Meghalaya Legislative Assembly from Ampatigiri constituency (a reserved constituency for S.T.) in the years 1993, 1998, 2003, 2008 and 2013 respectively had been filed but on one occasion as stated above, one Shri. Mohendro Agitok raised objections to the nomination papers filed by the respondent No.5 for contesting the election to the Meghalaya Legislative Assembly (a reserved constituency for S.T.) and after full hearing, the objections raised by the said Shri. Mohendro Agitok had been rejected and the nomination papers of the respondent No.5 had been accepted by the APO.
Page 11 of 758. It appears from the pleadings of the petitioner that the petitioner misread the constitutional provisions under Article 341 "Scheduled Castes"
and Article 342 "Scheduled Tribes" of the Constitution of India inasmuch as, according to the pleadings of the petitioner, there can be different castes amongst Scheduled Tribe. This theory of caste amongst the members of a Scheduled Tribe is not contemplated in the Constitution. In many places of the pleadings in the writ petition, the petitioner pleaded that there are different clans/castes such as "Sangma" and "Marak" amongst the members of the Scheduled Tribe "Garo" and such caste in the manner put up by the writ petitioner in the writ petition cannot be the type of Scheduled Caste envisaged under Article 341 "Scheduled Castes" of the Constitution of India.
A portion of the Presidential Order i.e. the Constitution (Scheduled Tribes) Order, 1950 in exercise of the powers conferred by clause (1) of Article 342 of the Constitution of India, so far as the Scheduled Tribes of Meghalaya are concerned, is quoted hereunder:-
"THE CONSTITUTION (SCHEDULED TRIBES) ORDER, 1950 In exercise of the powers conferred by Clause (1) of Article 342 of the Constitution of India, the President, after consultation with the Governors and Rajpramukhs of the States, concerned, is pleased to make the following Order, namely:-
1. This Order may be called the Constitution (Scheduled Tribes) Order, 1950.
2. The Tribes or tribal communities, or parts of, or groups within, tribes or tribal communities specified in Parts 1 to 3 (XVIII) of the Scheduled to this Order shall, in relation to the States to which those parts respectively relate, be deemed to be Scheduled Tribes so far as regards members thereof resident in the localities specified in relation to them respectively in those parts of that Schedule.
4.[3. Any reference in this Order to a State or to a district or other territorial division thereof shall be construed as a reference to the State, district or other territorial division as constituted on the 1st day of May, 1976].
Page 12 of 75 5[THE SCHEDULE] * * * PART XI - Meghalaya. 1. Chakma 2. Dimasa, Kachari 3. Garo 4. Hajong 5. Hmar 6. Khasi, Jaintia, Synteng, Pnar, War, Bhoi, Lyngngam 7. Any Kuki Tribes including:- (i) Biate, Biete (ii) Changsan (iii) Chongloi (iv) Doungel (v) Gamalhou (vi) Gangte (vii) Guite (viii) Hanneng (ix) Haokip, Haupit (x) Haolai (xi) Hengna (xii) Hongsungh (xiii) Hrangkhwal, Rangkhol (xiv) Jongbe (xv) Khawchung (xvi) Khawathilang, Khothalong (xvii) Khelma (xviii) Kholhou (xix) Kipgen (xx) Kuki (xxi) Lengthang (xxii) Lhangum (xxiii) Lhoujen (xxiv) Lhouvun (xxv) Lupheng (xvi) Mangjel (xvii) Misao (xviii) Riang (xxix) Sairhem (xxx) Selnam (xxxi) Singson (xxxii) Sitlhou (xxxiii) Sukte (xxxiv) Thado (xxxv) Thangngeu (xxxvi) Uibuh (xxxvii) Vaiphei Page 13 of 75 8. Lakher 9. Man (Tai speaking) 10. Any Mizo (Lushai) Tribes 11. Mikir 12. Any Naga tribes 13. Pawi 14. Synteng *15. Boro Kacharis *16. Koch *17. Raba, Rava" 9. A portion of the Presidential Order i.e. the Constitution
(Scheduled Castes) Order, 1950 in exercise of the powers conferred by clause (1) of Article 341 of the Constitution of India, so far as the Scheduled Castes of Meghalaya are concerned, is quoted hereunder:-
"THE CONSTITUTION (SCHEDULED CASTES) ORDER, 1950 In exercise of the powers conferred by Clause (1) of Article 341 of the Constitution of India, the President, after consultation with the Governors and Rajpramukhs of the States, concerned, is pleased to make the following Order, namely:-
1. This Order may be called the Constitution (Scheduled Castes) Order, 1950.
2. Subject to the provisions of this Order, the castes, races or tribes or parts of groups within, castes or tribes, specified in 2 [Parts 1 to 3 (XIX)] of the Schedule to this Order shall, in relation to the States to which those parts respectively relate, be deemed to be Scheduled Castes so far as regards members thereof resident in the localities specified in relation to them in those parts of that Schedule.
4 [3. Notwithstanding anything contained in paragraph 2, no person who profess a religion different from the Hindu or the Sikh religion shall be deemed to be a member of a Scheduled Caste].
5. [4. Any reference in this Order to a State or to a district or other territorial division thereof shall be construed as a reference to the State, district or other territorial as constituted on the 1st day of May, 1976].Page 14 of 75
[THE SCHEDULE] * * * PART XI - Meghalaya.
1. Bansphur
2. Bhuinmali, Mali
3. Brittial Bania, Bania
4. Dhupi, Dhobi
5. Dugla, Dholi
6. Hira
7. Jalkeot
8. Jhalo, Malo, Jhalo-Malo
9. Kaibartta, Juliya
10. Lalbegi
11. Maharu
12. Mehtar, Bhangi
13. Muchi, Rishi
14. Namasudra
15. Patni
16. Sutradhar
10. The words "For the purposes of this Constitution in relation to that State" in Articles 341 and 342 of the Constitution of India had been considered and interpreted by the Constitution Bench of the Apex Court in Action on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra & Anr vs. Union of India & Anr: (1994) 5 SCC 244 and held that:-
"The power of the President of India is limited to specifying the castes or tribes, which shall, for the purposes of the Constitution, be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State or a Union Territory, as the case may be. The Castes or Tribes have to be specified in relation to a given State or Union Territory. That means a given caste or tribe can be a Scheduled Caste or a Scheduled Tribe in relation to the State of Union Territory for which it is specified. Considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Scheduled Tribes or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non est in another State to which persons belonging thereto may migrate. Coincidentally Page 15 of 75 it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they have been specified may be totally different. Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State "for the purpose of this Constitution."
11. The Apex Court in Parsram & Anr v. Shivchand & Ors: AIR 1969 SC 597 held that:
"7. A point very similar to the one before us came up for consideration in this Court in Bhaiya Lal v. Harikrishen Singh (AIR 1965 SC 1557). There, the appellant's election was challenged on the ground that he belonged to the Dohar caste and was not a chamar. Dealing with this point, it was stated by this Court:
". the plea that the Dohar caste is a sub-caste of the Chamar caste cannot be entertained in the present proceedings in virtue of the Constitution (Scheduled Castes) Order, 1950."
Reference was then made to Art. 341 of the Constitution, Cls. 1 and 2 and it was said:
"In order to determine whether or not a particular caste is a scheduled caste within the meaning of Article 341, one has to look at the public notification issued by the President in that behalf. In the present case, the notification refers to Chamar, Jatav or Mochi and so in dealing with the question in dispute between the parties, the enquiry which the Election Tribunal can hold is whether or not the appellant is a Chammar, Jatav or Mochi. The plea that though the appellant is not a Chammar as such, he can claim the same status by reason of the fact that he belongs to the Dohar Caste which is a sub-caste of the Chammar caste, cannot be accepted. It appears to us that an enquiry of this kind would not be permissible having regard to the provisions contained in Article 341."
12. The Apex Court (Constituted Bench) in Bhaiya Lal v.
Harikrishen Singh (AIR 1965 SC 1557) held (para 8 of the AIR) that:
Page 16 of 75"8. Incidentally, we may point out that the plea that the Dohar caste is a sub-caste of the Chamar caste cannot be entertained in the present proceedings in view of the Constitution (Scheduled Castes) Order, 1950. This Order has been issued by the President under Article 341 of the Constitution. Article 341 (1) provides that the President may with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races, or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be. Sub-Article (2) lays down that Parliament may be law include in or exclude from the list of Scheduled Castes specified in a notification issued under Clause (1) any caste, race or trine or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. It is thus clear that in order to determine whether or not a particular caste is a Scheduled caste within the meaning of Art.341, one has to look at the public notification issued by the President in that behalf. In the present case, the notification refers to Chama, Jatav or Mochi, and so, in dealing with the question in dispute between the parties, the enquiry which the Election Tribunal can hold is whether or not the appellant is a Chamar, Jatav or Mochi. The plea that though the appellant is not a Chamar as such, he can claim the same status by reason of the fact that he belongs to the Dobar caste which is a sub-caste of the Chamar caste, cannot be accepted. It appears to us that an enquiry of this kind would not be permissible having regard to the provisions contained in Art.341. In the case of B. Basavalingappa v. D. Munichinnappa Civil Appeal No.401 of 1964, dated 23.9.1964:
reported in AIR 1965 SC 1269) this Court had occasion to consider a similar question. The question which arose for decision in that case was whether respondent No.1, though Voddar by caste, belonged to the scheduled caste of Bhovi mentioned in the Order, and while holding that an enquiry into the said question was permissible, the Court has elaborately referred to the special and unusual circumstances which justified the High Court in holding that Voddar caste was the same as the Bhovi caste within the meaning of the Order; otherwise the normal rule would be:
"It may be accepted that it is not open to make any modification in the Order by producing evidence to show, for example, that though caste A alone is mentioned in the Order, Caste B is also part of caste A and, therefore, must be deemed to be included in Caste A."
That is another reason why the plea made by the appellant that the Dohar caste is a sub-caste of the Chamar caste and as Page 17 of 75 such must be deemed to be included in the Order, cannot be accepted."
13. The State respondents filed a short affidavit raising the preliminary issue of the maintainability of the writ petition (PIL) for the inter-
alia reasons that:-
(i) The writ petitioner had filed the PIL with an ulterior motive to conceive publicity and has no locus standi to file the present PIL;
(ii) There is no element of public interest. The Garo customs or Khasi customs pleaded by the petitioner in the writ petition is not correct;
(iii) The offshoots/progeny of marriage between the Garo (father) and non-Garo (mother) is undoubtedly belong to the Garo tribe;
(iv) The writ proceeding is not the prescribed forum or proceeding for investigation as to whether the S.T. certificate had been correctly issued in favour of the respondent No.5 or not?;
(v) The S.T. certificate issued in favour of the respondent No.5 many years ago and the tribal status of the respondent No.5 had been raised by Shri. Mohendro Agitok of village Ampati PO & PS Ampati, West Garo Hills, Tura by filing the said suit i.e. ST(Misc) Case No.35/2008 in the Court of Deputy Commissioner, West Garo Hills, Tura and vide judgment and order dated 06.11.2009, the said suit had been dismissed and the said judgment and order dated 06.11.2009 had attained finality; and Page 18 of 75
(vi) The PIL is liable to be rejected inasmuch as, the PIL is not in the proper form and also not in accordance with the Gauhati High Court (PIL) Rules, 2011.
PLEADINGS:-
14. It is now well settled law that a party has to plead its case and produce sufficient evidence to substantiate the averments made in the writ petition and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. There is a clear distinction between a pleading under the Code of Civil Procedure and a writ petitioner or counter affidavit. While in a pleading i.e. a plaint or written statement, the facts and not the evidence are required to be pleaded. But in a writ petition or in a counter affidavit not only the facts but also evidence in proof of such facts have to be pleaded and annexed to it. The Apex Court held in the State of Madhya Pradesh v. Narmada Bachao Andolan & anr: (2011) 7 SCC 639, (para 9 of the SCC) that:
"9. In Bharat Singh v. State of Haryana: (1988) 4 SCC 534:
AIR 1988 SC 2181, this Court has observed as under (SCC p.543, para 13) "13. ........ In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or the counter affidavit, as the case may be, the court will not entertain the point. .... there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter affidavit. While in a pleading, that is, a plaint or written statement, the facts and not [the] evidence are required to be pleaded in a writ petition or in the counter affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it." (emphasis added) Page 19 of 75 A similar view has been reiterated by this Court in Larsen & Toubro Ltd. v. State of Gujarat: (1998) 4 SCC 387: AIR 1998 SC 1608, Atul Castings Ltd. v. Bawa Gurvachan Singh:
(2001) 5 SCC 133: AIR 2001 SC 1684 and Rajasthan Pradesh Vaidya Samiti v. Union of India: (2010) 12 SCC 609: AIR 2010 SC 2221."
15. A petitioner who seeks to invoke jurisdiction of High Court under Article 226 must fully aver and establish his rights flowing from bundle of facts thereby requiring the opposite party to indicate its stand either by denial or by positive assertions. In the absence of any averments in the writ petition or even in the rejoinder, it is not permissible for a court to arrive at a conclusion on a factual position merely on the basis of submissions made in the course of hearing. The Apex Court in Rani Laxmibai Kshetyiya, Gramin Bank v. Chand Behari Kapoor & ors: (1998) 7 SCC 469 held that "the High Court, therefore, in our view committed serious error in coming to the conclusion that there existed vacancies in the post of Field Supervisor on the materials produced before it. In fact the respondents herein who were the petitioners in the High Court had not produced any material in support of their stand that vacancies existed and yet appointments have not been made. We are of the considered opinion that the conclusion of the High Court that there existed vacancies is unsustainable in law and is accordingly set aside." The Apex Court in celebrated case of Narmada Bachao Andolan & anr i.e. State of Madhya Pradesh v. Narmada Bachao Andolan & anr: (2011) 7 SCC 639 held that "it cannot be said that the rules of procedural law do not apply in PIL. The PIL litigant has to lay a factual foundation for his averments on the basis of which such a person claims the relief. The information furnished by him should not be vague and indefinite. Even in PIL, the litigant cannot approach the court to have a fishing or roving enquiry. He cannot claim to have a chance to establish his claim." The Apex Court further held that in the absence of proper pleadings before the High Court on the basis of Page 20 of 75 which the writ petition could be entertained/decided, the writ petition is liable to be rejected at the threshold for the reasons that the writ petition suffered for want of proper pleadings and material to substantiate the averments or allegations contained therein. Paras 10, 11, 12, 13, 14, 15 & 16 of the SCC in State of Madhya Pradesh case (Supra) read as follows:-
"10. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question(s) in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that "as a rule relief not founded on the pleadings should not be granted". Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties.
11. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. If any factual or legal issue, despite having merit, has not been raised by the parties by the parties, the court should not decide the same as the opposite counsel does not have a fair opportunity to answer the line of reasoning adopted in that regard. Such a judgment may be violative of the principles of natural justice. (Vide Ram Sarup Gupta v. Bishun Narain Inter College (1987) 2 SCC 555 : AIR 1987 SC 1242 and Kalyan Singh Chouhan v. C.P. Joshi (2011) 11 SCC 687 : AIR 2011 SC 1127).
12. It cannot be said that the rules of procedural law do not apply in PIL. The caution is always added that every technicality in the procedural law is not available as a defence in such proceedings when a matter of grave public importance is for consideration before the Court. (Vide Rural Litigation and Entitlement Kendra v. State of U.P 1989 Supp (1) SCC 504 : AIR 1988 sc 2187).
13. Strict rules of pleading may not apply in PIL, however, there must be sufficient material in the petition on the basis of which the court may proceed. The PIL litigant has to lay a factual foundation for his averments on the basis of which such a person claims the reliefs. The information furnished by him should not be vague and indefinite. Proper pleadings are necessary to meet the requirements of the principles of natural justice. Even in PIL, the litigant cannot approach the court to have a fishing or roving enquiry. He cannot claim to have a chance to establish his claim. However, the technicalities of the rules of pleading cannot be made applicable vigorously. Pleadings prepared by a layman must be construed generously as he lacks the standard of accuracy and precision particularly Page 21 of 75 when a legal wrong is caused to a determinate class. (Vide A. Hamsaveni v. State of T.N. (1994) 6 SCC 51: 1994 SCC (L&S) 1277 : (1994) 28 ATC 240, Ashok Kumar Pandey v. State of W.B.(2004) 3 SCC 349 : (2011) (Cri) 865 : AIR 2004 sc 280, Prabir Kumar Das v. State of Orrisa (2005) 13 SCC 452 and A Abdul Farook v. Municipal Council, Perambalur (2009) 15 SCC 351.)
14. In the instant case, in the writ petition, an impression had been given that some drastic steps would be taken by the authorities which would cause great hardship to a large number of persons. However, the writ petition did not disclose the factum of how many persons had already vacated their houses and handed over the possession of their land. It was contended that urgent measures were required to be taken by the Court in order to mitigate the sufferings of the people. In view of the fact that there was no material before the Court to adjudicate upon the issues involved therein, the High Court passed the order dated 30-3-2007 directing GRA to submit the report on the rehabilitation work already done and still to be done and to disclose the consequences of the closure of radial gates of the dam and blocking of the sluice gates of the dam on the people residing in the area which would be submerged.
15. In pursuance of the said order, GRA submitted the report dated 7-4-2007, explaining that a huge amount of several thousand crores of repees had already been invested. The SRG had already been disbursed. Out of a total number of 4513 families to be adversely affected by the project, 2787 families had already shifted and 1726 families remained there.
An amount of Rs. 9924 lakhs had already been disbursed among the claimants and only a sum of Rs. 589 lakhs remained to be disbursed. The report further explained that land in lieu of land acquired would be allotted to the oustees "as far as possible" and as most of the oustees had accepted the compensation, it was not required on the part of the State to allot the land for the land acquired. The other benefits of the R&R Policy had already been given. In fact, it is in view of this report, the High Court started examining the grievances of the oustees. Several reports were submitted by GRA before the High Court from time to time and whatever has been disclosed in those reports provided the basis for raising further queries and that, in fact, became part of pleadings of the case. In fact, the present appellants had been asked to lay factual foundation to adjudicate the issues raised by the writ petitioners.
16. In view of the above, it is evident that there were no pleadings before the High Court on the basis of which the writ petition could be entertained/decided. Thus, it was liable to be rejected at the threshold for the reason that the writ petition suffered for want of proper pleadings and material to substantiate the averments/allegations contained therein. Even in the case of a PIL, such a course could not be available to the writ petitioners."
Page 22 of 75Whether the petitioner has the locus standi or the petitioner is an aggrieved party to file the present PIL?
16. The question "what 'PIL' means and is " had been deeply surveyed, explored and explained not only by various judicial pronouncements in many countries, but also by eminent Judges, jurists, activist lawyers, outstanding scholars, journalists and social scientists etc. with a vast erudition. Basically the meaning of words 'Public Interest' is defined in the Oxford English Dictionary, 2nd edn. Vol.XII as "the common well being .... also public welfare".
17. In Shrouds Judicial Dictionary, Vol. 4 (IV Edition), 'public interest' is defined thus:
"Public Interest (1) A matter of public or general interest "does not mean that which is interesting as gratifying curiosity or a love of information or amusement' but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected." (Per Cambel C.J., R. v. Bedfordshire 24 L.J.Q.B. 84).
18. In Black's Law Dictionary (6th edn.), 'public interest' is defined as follow:
"Public Interest - Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, state or national government. ...."
19. The expression 'litigation' means a legal action including all proceedings therein, initiated in a Court of Law with the purpose of enforcing a right or seeking a remedy. Therefore, lexically the expression 'PIL' means a Page 23 of 75 legal action initiated in a Court of Law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected. There is a host of decisions explaining the expression 'PIL' in its wider connotation in the present-day context in modern society.
20. It would be quite appropriate in the case on hand to analyze both the basic features and the evolution and profound transformation of the developing and growing PIL in modern society. Suffice it to say that the challenges facing this ameliorable litigation are examined in the light of their social, economic, political and ideological causes; and that the solutions to be adopted by the legal system to meet those challenges are explored, since there is still an ocean of unmet needs. These challenges are: (1) The expanded role of Courts in the modern 'social' state and the new demands for judicial responsibility; (2) the rise and growth of varied systems of judicial review and the legitimacy of such development; (3) the emergence of the notion of 'access to justice' as a judicial answer to egalitarian ideals and demands for effectiveness, and the development of PIL, and (4) the role of courts in promoting the legal system in the arena of PIL. The relentless efforts taken by courts in meeting all those challenges, in fact, strive for a optimally in which the interest of the least advantaged is given an overriding priority. During the last three decades, judicial activism has opened up new dimension for the judicial process and has given a new hope to the justice-
starved millions. On the question of legitimacy of the PIL and the significant importance of its various aspects in the context of the present-day felt needs, stimulated by the emergence of a variety of new social movements and societal exigencies, the Court has laid down a long line of decisions, outlining the evolution of PIL, its vital issues and problems relating to the focus, choice of relief methods, the means and the administrative strategy for litigation and Page 24 of 75 the demand for distributive justice for resolving the complicity of social problems and creating genuine initiatives so that this new activism may be more meaningful social justice. Thus the concept of PIL which has been and is being fostered by judicial activism has become an increasingly important one setting up valuable and respectable records, especially in the arena of constitutional and legal treatment for 'the unrepresented and under-
represented'.
21. The period of 1960s in United States of America was the important period of social embroilment during which not only manifold changes to many institutions took place; but also significant reforms of which public interest litigation was one were proposed and tried. The concept of PIL though had its origin in U.S.A., over the march of years it has passed through various changes and modifications in their common law based systems. It is not necessary to examine all those modifications and changes in the structure of the public law of that country and the manner in which the legal services have been redistributed in American society except saying that the strict requirement of legal interest has been diluted and attenuated in the country of its origin. Similarly, the common law based systems in other parts of the common wealth countries have also undergone various changes.
Legal aid programmes in Australia and Canada have been restructured to serve divergent aspects of the public interest. Some of the countries have gone to the extent of broadening its scope even beyond litigation and including many varieties of negotiations and even non-litigating approaches.
Thus the definition of PIL emerged from historical context in which the commonality of the various forms of legal representation involving the basic and fundamental rights of a significant segment of the public demanding vindication of its rights has been recognised in various parts of the world.
Page 25 of 7522. The emergence of the concept of PIL, in the Indian legal system has been succinctly explained by P.N. Bhagwati, J. (as he then was) in one of his articles contributed under the caption 'Social Action Litigation:
The Indian Experience' thus:
"The judiciary has to play a vital and important role not only in preventing and remedying abuse the misuse of power but also in eliminating exploitation and injustice. For this purpose it is necessary to make procedural innovations in order to meet the challenges posed by this new role of an active and committed judiciary. The summit judiciary in India, keenly alive to its social responsibility and accountably to the people of the country, has liberated itself from the shackles of Western thought, made innovative use of the power of judicial review, forged new tools, devised new methods and fashioned new strategies for the purpose of bringing justice for socially and economically disadvantaged groups. ....
During the last four or five years however, judicial activism has opened up a new dimension for the judicial process and has given new hope to the justice-starved millions of India." (Vide 'Role of the Judiciary in Plural Societies' published in 1987.)
23. Indian law has historically been strongly identified - both in theory and practice - with a tradition which has been concerned with the rights and duties of individuals. Yet in recent years it has been recognized that this tradition is inadequate to cope with a wide range of problems arising out of inequality of means, opportunities and entitlements in society. This conflict has generated increasing discussion of PIL, and also the development of a whole new corpus of law for effective and purposeful implementation of PIL and institutions explicitly concerned with the manner and techniques by which the public interest is, and can be, safeguarded by the legal system.
24. The seed of the concept of PIL was initially sown in India by Krishna Iyer, J. in 1976 (without assigning the terminology) in Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai: (1976) 3 SCC 832: 1976 SCC Page 26 of 75 (L&S) 517. He while disposing an industrial dispute in regard to the payment of bonus, has observed: (SCC pp.837-38, para 7).
"Our adjectival branch of jurisprudence, by and large, deals not with sophisticated litigants but the rural poor, the urban lay and the weaker societal segments for whom law will be an added terror if technical mis-descriptions and deficiencies in drafting pleadings and setting out the cause-title create a secret weapon to non-suit a part. Where foul play is absent, and fairness is not faulted, latitude is a grace of processual justice. Test litigations, representative actions, pro bono publico and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to bypass the real issues on the merits by suspect reliance on peripheral procedural short comings. Even Article 226, viewed on wider perspective, may be amenable to ventilation of collective or common grievances, as distinguished from assertion of individual rights, although the traditional view, backed by precedents has opted for the narrower alternative. Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties with individualisation of the right to invoke the higher courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with fair process, is the aim of adjectival law."
25. It is fairly settled law that only a person bonafide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court for the poor and needy, suffering from violation of the fundamental rights. But a person for personal gain or private profit or political motive or any oblique consideration has no locus standi. The Apex Court in Dr. P. Nalla Thampy Thera v. Union of India and Janata Dal v. H.S. Chowdhary held that "however, only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court for the poor and needy, suffering from violation of their fundamental rights. But a person for personal gain or private profit or political motive or any oblique consideration has no locus standi. Similarly, a vexation petition under the colour of PIL brought before the court for Page 27 of 75 vindicating any personal grievance, deserves rejection at the threshold. The Court should not allow its process to be abused by mere busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either for themselves or as proxy of others or for any other extraneous motivation or for glare of publicity. But this does not mean there is any retreating or recoiling from the earlier views expressed by the Supreme Court about the philosophy of public interest litigation."
26. The Apex Court in Janata Dal case (Supra) had discussed the meaning of locus standi for filing the PIL. Paras 61, 62, 63, 64, 65, 66, 67, 68, 69, 108 and 109 of the SCC in Janata Dal case (Supra) read as follows:-
61. Though it is imperative to lay down clear guidelines and propositions; and outline the correct parameters for entertaining a Public Interest Litigation - particularly on the issue of locus standi yet no hard and fast rules have yet been formulated and no comprehensive guidelines have been evolved. There is also one view that such adumbration is not possible and it would not be expedient to lay down any general rule which would govern all cases under all circumstances.
62. Be that as it may, it is needless to emphasise that the requirement of locus standi of a party to a litigation is mandatory; because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold.
63. The traditional syntax of law in regard to locus standi for a specific judicial redress, sought by an individual person or determinate class or identifiable group of persons, is available only to that person or class or group of persons who has or have suffered a legal injury by reasons of violation of his or their legal right or a right legally protected, the invasion of which gives rise to action ability within the categories of law. In a private action, the litigation is bipolar; two opposed parties are locked in a confrontational controversy which pertains to the determination of the legal consequences of past events unlike in public action. The character of such litigation is essentially that of vindicating private rights, proceedings being brought by the persons in whom the right personally inhere on their legally constituted representatives who are thus obviously most competent to commence the litigation.Page 28 of 75
64. In contrast, the strict rule of locus standi applicable to private litigation is relaxed and a broad rule is evolved which gives the right of locus standi to any member of the public acting bona fide and having sufficient interest in instituting an action for redressal of public wrong or public injury, but who is not a mere busy body or a meddlesome interloper; since the dominant object of PIL is to ensure observance of the provisions of the Constitution or the law which can be best achieved to advance the cause of community or disadvantaged groups and individuals or public interest by permitting any person, having no personal gain or private motivation or any other oblique consideration but acting bona fide and having sufficient interest in maintaining an action for judicial redress for public injury to put the judicial machinery in motion like actio popularize of Roman Law whereby any citizen could bring such an action in respect of a public delict.
65. It will be befitting to recall the observation of this Court in People's Union for Democratic Rights and Ors. v. Union of India: (1982) 3 SCC 235:1982 SCC (L&S)275 which reads thus: (SCC pp.248-49, para 9).
"But the traditional rule of standing which confines access to the judicial process only to those to whom legal injury is caused or legal wrong is done has now been jettisoned by this Court and the narrow confines within which the rule of standing was imprisoned for long years as a result of inheritance of the Anglo-Saxon System of jurisprudence have been broken and a new dimension has been given to the doctrine of locus standi which has revolutionised the whole concept of access to justice in a way not known before to the western system of jurisprudence... it is therefore necessary to evolve a new strategy by relaxing this traditional rule of standing in order that justice may become easily available to the lowly and the lost."
66. R.S. Pathak, J. (as the learned Chief Justice then was) while agreeing with the directions proposed by Bhagwati, J. (as the learned Chief Justice then was) in Bandhua Mukti Morcha v. Union of India and Ors. (1984) 3 SCC 161: 1984 SCC (L&S) 389: 1984 2 SCR 67, 159 expressed his view stating, "in public interest litigation, the role held by Court is more assertive than in traditional actions." (SCC p.229, para 55).
67. M.N. Venkatacbaliah, J. speaking for the Bench in Sheela Bane v. Union of India and Ors: (1988) 4 SCC 226 has brought out the distinction between private litigation and public interest litigation in the following words: (SCC pp.223-34, para
11).
"In a public interest litigation, unlike traditional dispute resolution mechanism, there is no determination or adjudication of individual rights. While in the ordinary conventional adjudications the party structure is merely bi-polar and the controversy pertains to the Page 29 of 75 determination of the legal consequences of past events and the remedy is essentially linked to and limited by the logic of the array of the parties, in a public interest action the proceedings cut across and transcend these traditional forms and inhibitions. The compulsion for the judicial innovation of the technique of public interest action is the constitutional promise of a social and economic transformation to usher in an egalitarian social order and a welfare State.... The dispute is not comparable to one between private parties with the result there is no recognition of the status of a dominus litis for any individual or group of individuals to determine the course or destination of the proceedings, except to the extent recognised and permitted by the Court. The "rights" of those who bring the action on behalf of the others must necessarily be subordinate to the "interests"
of those for whose benefit the action is brought. The grievance in a public interest action, generally speaking, is about the content and conduct of government action in relation to the consitutional or statutory rights of segments of society and in certain circumstances the conduct of government policies. Necessarily, both the party structure and the matters in controversy are sprawling and amorphous, to be defined and adjusted or readjusted as the case may be, ad hoc, according as the exigencies of the emerging situations. The proceedings do not partake of predetermined private law litigation models but are exogenously determined by variations of the theme.
68. Though we have, in our country, recognised a departure from the strict rule of locus standi as applicable to a person in private action and broadened and liberalised the rule of standing and thereby permitted a member of the public, having no personal gain or oblique motive to approach the court for enforcement of the constitutional or legal rights of socially or economically disadvantaged persons who on account of their poverty or total ignorance of their fundamental rights are unable to enter the portals of the courts for judicial redress, yet no precise and inflexible working definition has been evolved in respect of locus standi of an individual seeking judicial remedy and various activities in the field of PIL. Probably, some reservation and diversity of approach to the philosophy of PIL among some of the Judges of this Court as reflected from the various decisions of this Court, is one of the reasons for this Court finding it difficult to evolve a consistent jurisprudence in the field of PIL. True, in defining the rule of locus standi no 'rigid litmus test' can be applied since the broad contours of PIL are still developing apace seemingly with divergent views on several aspects of the concept of this newly developed law and discovered jurisdiction leading to a rapid transformation of judicial activism with a far reaching change both in the nature and form of the judicial process.
69. In this context, it would be quite relevant to recite the observations made by Bhagwati, J. (as the learned Chief Page 30 of 75 Justice then was) in S.P. Gupta v. Union of India: 1981 Supp. SCC 87: AIR 1982 SC 149 at page 210 (para 17) reading thus:
"Today a vast revolution is taking place in the judicial process; the theatre of law is fast changing and the problems of the poor are coming to the forefront. The Court has to innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning. The only way in which this can be done is by entertaining writ petitions and even letters from public- spirited individuals seeking judicial redress for the benefit of persons who have suffered a legal wrong or a legal injury or whose constitutional or legal rights has been violated but who by reason of their poverty or socially or economically disadvantaged position are unable to approach the court for relief."
(emphasis supplied)
108. K.N. Singh, J. speaking for the Bench in Subhash Kumar v. State of Bihar and Ors: (1991) 1 SCC 598: (1991) 1 SCR 5 has ex-pressed his opinion in the following words: (SCC pp.604-05 para 7).
"Public interest litigation cannot be invoked by a person or body of persons to satisfy his or its personal grudge and enmity. If such petitions under Article 32, are entertained it would amount to abuse of process of the Court, preventing speedy remedy to other genuine petitioners from this Court. Personal interest cannot be enforced through the process of this Court under Article 32 of the Constitution in the garb of a public interest litigation. Public interest litigation contemplates legal proceedings for vindication or enforcement of fundamental rights of a group of persons or community which are not able to enforce their fundamental rights on account of their incapacity, poverty or ignorance of law. A person invoking the jurisdiction of this Court under Article 32 must approach this Court for the vindication of the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge or enmity. It is duty of this Court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extraordinary jurisdiction of this Court for personal matters under the garb of the public interest litigation."
109. It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the Page 31 of 75 court for vindicating any personal grievance, deserves rejection at the threshold."
27. The Apex Court Bandhua Mukti Morcha v. Union of India and others: (1984) 3 SCC 161 reiterated that the person who is aggrieved is to file the PIL. The Apex Court also in Dr. Duryodhan Sahu & ors v.
Jitendra Kumar Mishra & ors: (1998) 7 SCC 273 held that "'person aggrieved' does not comprehend such stranger to the service concerned.
Para 20 of the SCC in Dr. Duryodhan Sahu's case (Supra) reads as follows:-
"20. Learned counsel for the respondents relied upon the decision of this Court in S.P. Gupta v. Union of India: 1981 Supp SCC 87: (1982) (2) SCR 365 and read out several passages from the judgment dealing with the question of 'standing'. In that case the Court was not concerned with a Tribunal constituted under a Statute. It was discussing the question of 'standing' in a proceeding before the High Court or this Court. That ruling cannot help the respondents in the present case. Our attention is also drawn to a judgment in University of Mysore v. C.D. Govinda Rao: AIR 1965 SC 491: (1964) 4 SCR. 575 wherein the scope of a writ of quo warranto has been discussed. That decision will not apply in the present case as there was no application for issue of a writ of quo warranto before the Tribunal. Learned counsel for the respondents submits that the proceedings before the Tribunal is in the nature of quo warranto and it could be filed by any member of the public as he is an aggrieved person in the sense public interest is affected. We have already pointed out that the applications in the present case have been filed before the appointment of the petitioner as a Lecturer and the relevant prayers are to quash the creation of the post itself and preventing authorities from appointing the petitioner as lecturer. Hence, the applications filed by the respondents cannot be considered to be quo warranto."
28. The Apex Court in Balco Employees' Union (Regd) v. Union of India & ors: (2002) 2 SCC 333 held that only person acting bonafide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy and not by a person for personal gain or private profit or political Page 32 of 75 motive. Paras 84 and 85 of the SCC in Balco Employees' Union case (Supra) reads as follows:-
"84. After referring to the decision in Subhash Kumar vs. State of Bihar and Others, (1991) 1 SCC 598 and other cases on the point, in Janata Dal vs. H.S. Chowdhary and Others, (1992) 4 SCC 305: 1993 SCC (Cri) 36, it was observed at p. 348 as follows: (SCC para 109) "109. It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the court for vindicating any personal grievances, deserves rejection at the threshold".
85. Referring to the litigants standing in queues waiting for the cases to be listed in Courts at page 349, Pandian, J. had observed as follows: (SCC para 110).
".[T]he busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either for themselves or as proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffling their faces by wearing the mask of public interest litigation, and get into the courts by filing vexatious and frivolous petitions and thus criminally waste the valuable time of the courts and as a result of which the queue standing outside the doors of the Court never moves which piquant situation creates a frustration in the minds of the genuine litigants and resultantly they lose faith in the administration of our judicial system."
29. The Apex Court reiterated the cautions made by the Apex Court against the abuse of Public Interest Litigation (PIL) in S.P. Gupta v.
Union of India: 1981 Supp SCC 87. Para 82 of the SCC reads as follows:-
"82. The limitation within which the Court must act, and the caution against the abuse of the same is referred to by Bhagwati J. at p. 219 as follows:- (SCC para 24) "24. But we must be careful to see that the member of the public, who approaches the court in cases of this Page 33 of 75 kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The Court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective. Andre Rabie has warned that "political pressure groups who could not achieve their aims through the administrative process" and we might add, through the political process, "may try to use the courts to further their aims". These are some of the dangers in public interest litigation which the court has to be careful to avoid. It is also necessary for the court to bear in mind that there is a vital distinction between locus standi and justiciability and it is not every default on the part of the State or a public authority that is justiciable. The court must take care to see that it does not overstep the limits of its judicial function and trespass into areas which are reserved to the Executive and the Legislature by the Constitution. It is a fascinating exercise for the court to deal with public interest litigation because it is a new jurisprudence which the court is evolving a jurisprudence which demands judicial statesmanship and high creative ability. The frontiers of public law are expanding far and wide and new concepts and doctrines which will change the complexion of the law and which were so far as embedded in the womb of the future, are beginning to be born.
25. Before we part with this general discussion in regard to locus standi, there is one point we would like to emphasise and it is, that cases may arise where there is undoubtedly public injury by the act or omission of the State or a public authority but such act or omission also causes a specific legal injury to an individual or to a specific class or group of individuals. In such cases, a member of the public having sufficient interest can certainly maintain an action challenging the legality of such act or omission, but if the person or specific class or group of persons who are primarily injured as a result of such act or omission, do not wish to claim any relief and accept such act or omission willingly and without protest, the member of the public who complains of a secondary public injury cannot maintain the action, for the effect of entertaining the action at the instance of such member of the public would be to foist a relief on the person or specific class or group of persons primarily injured, which they do not want."
30. The Apex Court in Guruvayoor Devaswom Managing Committee & Anr v. C.K. Rajan & Ors: (2003) 7 SCC 546 held that rule of exhaustion of alternative remedies is also applicable to the PIL. The roving Page 34 of 75 enquiry is not contemplated in the PIL. Paras 62 & 65 of the SCC in Guruvayoor Devaswom Managing Committee's case (Supra) read as follows:-
"62. Existence of certain gray areas may not be ruled out but such a case was required to be made out before the High Court which has not been done in the instant case. For any court of law including this Court, it is difficult to draw a strict line of demarcation as to which matters and to what extent a public interest litigation should be entertained but, as noticed hereinbefore, the decisions of this Court render broad guidelines. This Court and the High Court should, unless there exist strong reasons to deviate or depart therefrom, not undertake an unnecessary journey through the public interest litigation path.
65. Where access to justice poses a fundamental problem facing the third world today, its importance in India has increased. Laws are designed to improve the socio-economic conditions of the poor but making the law is not enough, it must be implemented. The core issues which have been highlighted by the learned counsels by the party must be considered from that angle. Administration of temple by entertaining complaints does not lead to a happy state of affairs. Roving enquiry is not contemplated. Principles of natural justice and fair play ought to be followed even in the pro bono public proceedings. The Courts undoubtedly would be parens patriae in relation to idols, but when the statute governs the field and the State takes over the management, ordinarily the Courts would not step in."
31. The Apex Court in Chairman & M.D., BPL Ltd. v. S.P. Gururaja & Ors: (2003) 8 SCC 567 held that the High Court ought to have taken into consideration the locus standi of the respondent having regard to the specific pleas raised in this behalf by the appellants herein. Therefore, we while taking into consideration as to whether the petitioner has the locus standi to file the present writ petition, we are given our anxious consideration to the specific pleas raised by the petitioner in the writ petition. Para 33 of the SCC in Chairman & M.D., BPL Ltd. v. S.P. Gururaja & Ors: (2003) 8 SCC 567 case (Supra) reads as follows:-
"33. Furthermore, the High Court ought to have taken into consideration the factum of resistance in the matter from those Page 35 of 75 persons whose lands have been acquired. Only because the lands are vested in the State upon acquisition thereof, the same by itself would not mean that the persons whose lands were acquired were not interested in getting the allotment. The locus standi of the respondent ought to have been taken into consideration having regard to the specific pleas raised in this behalf by the appellants herein."
32. A person acting bonafide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. A writ petitioner who comes to the court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective. The court must not allow its process to be abused for oblique consideration by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives, and try to bargain for a good deal as well as to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs. (Ref: Dattaraj Nathuji Thaware v. State of Maharashtra & ors: (2005) 1 SCC 590).
33. The Apex Court in Dattaraj Nathuji Thaware's case (Supra) held that exemplary costs for filing the PIL, without necessary disclosure of the so called information, should be imposed. Paras 12, 13, 14 & 16 of the SCC in Dattaraj Nathuji Thaware's case (Supra) read as follows:-
"12. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity Page 36 of 75 seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique considerations. The Court must not allow its process to be abused for oblique considerations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives, and try to bargain for a good deal as well to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.
13. The Council for Public Interest Law set up by the Ford Foundation in USA defined the "public interest litigation" in its Report of Public Interest Law, USA, 1976 as follows:
"Public Interest Law is the name that has recently been given to efforts provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others."
14. The Court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busybodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect.
16. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence Page 37 of 75 something else. It is shocking to note that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, Courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Duryodhan Sahu (Dr.) and Ors. v. Jitendra Kumar Mishra:
(1998) 7 SCC 273: 1998 SCC (L&S) 1802: AIR 1999 SC 114 this Court held that in service matters PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the Courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents.
Apart from the sinister manner, if any, of getting such copies, the real brain or force behind such cases would get exposed to find out the truth and motive behind the petition. Whenever such frivolous pleas, as noted, are taken to explain possession, the Court should do well not only to dismiss the petitions but also to impose exemplary costs. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as afore-stated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts."
34. A stranger cannot be permitted to meddle in any proceedings unless he satisfies the authority/court that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order, etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the writ petitioner that there has been a breach of statutory duty on the part of the authorities. Therefore, there must be a judicially enforceable right available for enforcement on the basis of which writ jurisdiction is resorted to. It is implicit in the exercise of such extraordinary jurisdiction that the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is Page 38 of 75 the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the writ petitioner himself, who complains of infraction of such right and approaches the Court for relief as regards the same. Even as regards the filing of a habeas corpus petition, the expression "next friend" means a person who is not a total stranger. Such a petition cannot be filed by one who is a complete stranger to the person who is in alleged illegal custody.
A "legal right", means an entitlement arising out of legal rules.
Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury, a "person aggrieved" must, therefore, necessarily be one whose right or interest has been adversely affected or jeopardized. Hence, a person who raises a grievance, must show how he has suffered legal injury. Generally, a stranger having no right whatsoever to any post or property, cannot be permitted to intervene in the affairs of others. (Ref:-Ayyaubkhan Noorkhan Pathan v. State of Maharashtra & Ors: (2013) 4 SCC 465). Paras 9, 10, 13, 17 and 19 of the SCC in Ayyaubkhan Noorkhan Pathan's case (Supra) read as follows:-
Person aggrieved "9. It is a settled legal proposition that a stranger cannot be permitted to meddle in any proceeding, unless he satisfies the Authority/Court, that he falls within the category of aggrieved persons. Only a person who has suffered, or suffers from legal injury can challenge the act/action/order etc. in a court of law. A writ petition under Article 226 of the Constitution is maintainable either for the purpose of enforcing a statutory or legal right, or when there is a complaint by the appellant that there has been a breach of statutory duty on the part of the Authorities.
Therefore, there must be a judicially enforceable right available for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Page 39 of 75 Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide: State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; Saghir Ahmad & Anr. v. State of U.P., AIR 1954 SC 728; Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal & Ors., AIR 1962 SC 1044; Rajendra Singh v. State of Madhya Pradesh, (1996) 5 SCC 460: AIR 1996 SC 2736; and Tamilnad Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar & Ors., (2009) 2 SCC 784).
10. A "legal right", means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, "person aggrieved" does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardised. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New York, (1964) 2 SCC 387: AIR 1974 SC 1719; and State of Rajasthan v. Union of India & Ors., (1977) 3 SCC 592: AIR 1977 SC 1361).
13. This Court, even as regards the filing of a habeas corpus petition, has explained that the expression, 'next friend' means a person who is not a total stranger. Such a petition cannot be filed by one who is a complete stranger to the person who is in alleged illegal custody. (Vide: Charanjit Lal Chowdhury v. The Union of India, AIR 1951 SC 41; Sunil Batra (2) v. Delhi Admn, (1980) 3 SCC 488: 1980 SCC (Cri) 138: AIR 1980 SC 1579; Neelima Priyadarshini v. State of Bihar, 1987 Supp. SCC 732: 1988 SCC (Cri) 138: AIR 1987 SC 2021; Simranjit Singh Mann v. Union of India, (1992) 4 SCC 653: 1993 SCC (Cri) 22: AIR 1993 SC 280; Karamjeet Singh v. Union of India, AIR, (1992) 4 SCC 666: 1993 SCC (Cri) 17: AIR 1993 SC 284; and Kishore Samrite v. State of U.P., (2013) 2 SCC
398).
17. In view of the above, the law on the said point can be summarised to the effect that a person who raises a grievance, must show how he has suffered legal injury. Generally, a stranger having no right whatsoever to any post or property, cannot be permitted to intervene in the affairs of others.
19. This Court in Ravi Yashwant Bhoir v. District Collector, Raigad & Ors., (2012) 4 SCC 407, held as under: (SCC pp. 434-35, paras 58-60).
"58. Shri Chintaman Raghunath Gharat, ex- President was the complainant, thus, at the most, he could lead evidence as a witness. He could not claim the status of Page 40 of 75 an adversarial litigant. The complainant cannot be the party to the lis. A legal right is an averment of entitlement arising out of law. In fact, it is a benefit conferred upon a person by the rule of law. Thus, a person who suffers from legal injury can only challenge the act or omission. There may be some harm or loss that may not be wrongful in the eye of the law because it may not result in injury to a legal right or legally protected interest of the complainant but juridically harm of this description is called damnum sine injuria.
59. The complainant has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest. In case he has no legal peg for a justiciable claim to hang on, he cannot be heard as a party in a lis. A fanciful or sentimental grievance may not be sufficient to confer a locus standi to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro ratione voluntas reasons i.e. a claim devoid of reasons.
60. Under the garb of being a necessary party, a person cannot be permitted to make a case as that of general public interest. A person having a remote interest cannot be permitted to become a party in the lis, as the person who wants to become a party in a case, has to establish that he has a proprietary right which has been or is threatened to be violated, for the reason that a legal injury creates a remedial right in the injured person. A person cannot be heard as a party unless he answers the description of aggrieved party."
35. For the foregoing discussions and reasons, we are of the considered view that the petitioner in the given case cannot be an aggrieved party or person having the locus standi for filing the present PIL as it has been clearly spelled out from the facts that he was never the candidate for the election to the Meghalaya Legislative Assembly from Ampatigiri constituency (a reserved constituency for S.T.). inasmuch as pleaded facts for the relief sough for in the present PIL are that the respondent No.5, who is not a Scheduled Tribe by misrepresentation obtained the S.T. certificate;
and contested the election to the Meghalaya Legislative Assembly from Ampatigiri constituency (a reserved constituency for S.T.).
Page 41 of 75Whether the present PIL is the proper forum/procedure for the relief sought for in the present writ petition (PIL)?
36. First, we have to see who is the competent authority to issue the S.C./S.T. certificate; second, who is the competent authority for conducting the enquiry and investigation in case of complaint that S.C./S.T. certificate had been obtained fraudulently or obtained by misrepresentation of facts and third, is the writ petition a proper forum or the proceeding for entertaining such complaint. The Apex Court in Kumari Madhuri Patil & Anr v. Addl. Commissioner, Tribal Development & Ors: (1994) 6 SCC 241 had prescribed the procedure for the issuance of social status certificates, their scrutiny and their approval. Para 13 of the SCC in Kumari Madhuri Patil's case (Supra) reads as follows:-
"13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following:
1. The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level.
2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by Page 42 of 75 a competent gazetted officer or non-gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.
3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.
4. All the State Governments shall constitute a Committee of three officers, namely, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (11) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.
5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc.
6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or 'doubtful' or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate Page 43 of 75 is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an enquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such enquiry as it deems expedient and consider the claims vis-à-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.
7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.
8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.
9. The enquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after enquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant.
10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the enquiry by the Scrutiny Committee.Page 44 of 75
11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.
12. No suit or other proceedings before any other authority should lie.
13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136.
14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim.
If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.
15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post.
37. The exhaustive procedure for issuance of social status certificates, their scrutiny and their approval laid down by the Apex Court in Kumari Madhuri Patil's case (Supra) had been considered and followed in subsequent cases by the Apex Court.
38. The Apex Court in Director of Tribal Welfare, Govt. of AP v.
Laveti Giri & Anr: (1995) 4 SCC 32 reiterated the guidelines laid down in Page 45 of 75 Kumari Madhuri Patil's case (Supra). Paras 7 & 8 of the SCC in Director of Tribal Welfare, Govt. of AP case (Supra) read as follows:-
"7. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates envisaged of the benefits conferred on them by the Constitution. By reason thereof the genuine candidates would be denied admission to professional courses etc. or appointments to offices or posts under State instrumentalities. More often they arc denied social status certificates while ineligible or spurious persons easily would secure them. After falsely gaining entry, resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is the parent or the guardian who may play fraud claiming false status certificate to his child. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following:-
1. The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level.
2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.
3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.
4. All the State Governments shall constitute a Committee of three officers, namely, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (11) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (111) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.Page 46 of 75
5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in overall charge and such number of Police Inspectors to investigate into the social status claims, The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the fats of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any., He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc.
6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or 'doubtful' or spurious or falsely or wrongly claimed, the Director concerned should issue show- cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an enquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/ guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient made may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such enquiry as it deems expedient and consider the claims vis-à-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof
7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be Page 47 of 75 taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.
8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.
9. The enquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after enquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order canceling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant.
10. In case of any delay in finalising the proceedings, and the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or nonofficial and such admission or appointment should be only provisional, subject to the result of the enquiry by the Scrutiny Committee.
11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.
12. No suit or other proceedings before any other authority should lie.
13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article
14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.Page 48 of 75
15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or he appointing authority by registered post with acknowledgement due with a request to cancel the admission of the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post.
8. While reiterating the above guidelines to be workable principles, it is high time that the Government of India would have the matter examined in greater detail and bring about a uniform legislation with necessary guidelines and rules prescribing penal consequences on persons who flout the Constitution and comer the benefits reserved for the real tribals etc. etc., so that the menace of fabricating the false records and to gain unconstitutional advantages by plain/spurious persons could be prevented. Lest they would defeat the Constitutional objective of rendering socio- economic justice envisaged under Article 46 in the Preamble of the Constitution under Articles 14, 15, 16, 38 and 39."
39. Competency of the Apex Court to lay down the procedure for issuance of social status certificates, their scrutiny and their approval had been considered by the Apex Court (Three Judges in Dayaram v. Sudhir Batham & Ors: (2012) 1 SCC 333 and held that entire scheme in Madhuri Patil case will only continue till the legislature concerned makes an appropriate legislation in regard to verification of claims for caste status as SC/ST and issue of caste certificates, or in regard to verification of caste already obtained by the candidates who seek the benefit of reservation, relying upon such caste certificates.
If there were to be a legislation governing or regulating grant of caste certificates, and if caste certificates are issued after due and proper enquiry, such caste certificates will not call for verification by the Scrutiny Committees. Madhuri Patil case provides for verification only to avoid false and bogus functioning for the last one-and-a-half decades. If there are any Page 49 of 75 shortcoming, the Government can always come up with an appropriate legislation to substitute the said scheme. There is no reason why the procedure laid down in Madhuri Patil should not continue in the absence of any legislation governing the matter. Paras 20, 21, 27, 28, 29, 30, 35 & 36 of the SCC in Dayaram v. Sudhir Batham's case (Supra) read as follows:-
"20. In fact in the very decision this court further observed that its observations did not mean that Judges should never be activists as many a time judicial activism is a useful adjunct to democracy and such activism should be resorted to only in exceptional circumstances where the situation forcefully demands it in the interest of the nation or the poorer or weaker sections of the society, keeping in mind that ordinarily the task of legislation or administrative decisions is for the legislature and the executive and not for the judiciary.
21. Thus the decision in Aravali Golf Club: (2008) 1 SCC 683:
(2008) 1 SCC (L&S) 289 in effect supports the principle which is the basis for the directions in Madhuri Patil, (1994) 6 SCC 241: 1994 SCC (L&S) 1349: (1994) 28 ATC 259. The principle is wherever the interests of weaker sections are adversely affected due to unscrupulous acts of persons attempting to usurp the benefits meant for such weaker sections, court can, and in fact should, step in, till a proper legislation is in place. It is not necessary to refer to the second case mentioned in the reference order, that is Common Cause vs. Union of India - (2008) 5 SCC 511, for two reasons. First is, it reiterates Aravali Golf Club: (2008) 1 SCC 683: (2008) 1 SCC (L&S) 289.
Second is, on the relevant issue, the two learned Judges have differed and therefore the discussion is not of any assistance.
27. It is therefore clear that the jurisdiction of the civil court to entertain any suit of a civil nature arising under a statute can be excluded only when cognizance is expressly or impliedly barred by the statute which gives rise to such suits. In this case, the creation of the scrutiny committee is by the judgment of this Court. The procedure and functioning of the scrutiny committee is also in accordance with the scheme formulated by the said judgment. Thus if a suit is to be filed in a civil court in regard to the decision of the scrutiny committee, the cause of action for such suit would not arise under any statute, but with reference to an order of a committee constituted in pursuance of a scheme formulated by this court, by way of a stop-gap quasi - legislative action.
28. The principle underlying section 9 is that cognizance of any category of suits arising under a statute, can be barred (either expressly or impliedly) by that Statute. But in regard to cognizance of the category of suits arising from the scheme formulated by a decision of this Court (and not under a statute), the scheme formulated by the decision of the court is the Page 50 of 75 `statute', and therefore the scheme can expressly or impliedly bar cognizance of such suits. This is because the `statute' which gives rise to a cause of action referred to in the aforesaid decisions in V. Venkata Subha Rao: (1997) 5 SCC 460, Bal Mukund Bairwa (2): (2009) 4 SCC 299: (2009) 1 SCC (L&S) 812: (2009) 2 SCC (Civ) 138 and Dhulabai, AIR 1969 SC 78:
(1968) 3 SCR 662 in this case is substituted by the `quasi-
legislative' stop-gap scheme created by the decision of this Court.
29. As the scrutiny committee is a creature of the judgment in Madhuri Patil, (1994) 6 SCC 241: 1994 SCC (L&S) 1349:
(1994) 28 ATC 259 and the procedure for verification and passing of appropriate orders by the scrutiny committee is also provided for in the said judgment, there is nothing irregular or improper in this court directing that orders of the scrutiny committee should be challenged only in a proceeding under Article 226 of the Constitution and not by way of any suit or other proceedings. Section 9 of the Code and plethora of decisions which considered it, state that the civil court will have jurisdiction except where the cognizance of suits of civil nature is either expressly or impliedly barred.
30. One incidental submission about the nature and constitution of the scrutiny committee requires to be dealt with. It is submitted that scrutiny committee, directed to be constituted by Madhuri Patil, (1994) 6 SCC 241: 1994 SCC (L&S) 1349:
(1994) 28 ATC 259, is neither a court nor a tribunal, but a committee consisting of government officers, namely, (i) an officer of Additional or Joint Secretary level or other officer higher in rank than the Director of the department concerned;
(ii) the Director, Social Welfare/Tribal Welfare/Backward Classes Welfare, as the case may be; and (iii) an officer, who has an intimate knowledge in the verification and issuance of social status certificates in the case of scheduled castes and a Research Officer who has intimate knowledge in identifying tribes, communities etc., in the case of scheduled tribes. The scrutiny committee does not have any judicial member.
35. The scrutiny committee is not an adjudicating authority like a Court or Tribunal, but an administrative body which verifies the facts, investigates into a specific claim (of caste status) and ascertains whether the caste/tribal status claimed is correct or not. Like any other decisions of administrative authorities, the orders of the scrutiny committee are also open to challenge in proceedings under Article 226 of the Constitution. Permitting civil suits with provisions for appeals and further appeals would defeat the very scheme and will encourage the very evils which this court wanted to eradicate. As this Court found that a large number of seats or posts reserved for scheduled castes and scheduled tribes were being taken away by bogus candidates claiming to belong to scheduled castes and scheduled tribes, this Court directed constitution of such scrutiny committees, to provide an expeditious, effective and efficacious remedy, in the absence of any statute or a legal framework for proper verification of false claims regarding SCs/STs status. This Page 51 of 75 entire scheme in Madhuri Patil, (1994) 6 SCC 241: 1994 SCC (L&S) 1349: (1994) 28 ATC 259 will only continue till the concerned legislature makes appropriate legislation in regard to verification of claims for caste status as SC/ST and issue of caste certificates, or in regard to verification of caste certificates already obtained by candidates who seek the benefit of reservation, relying upon such caste certificates.
36. Having regard to the scheme for verification formulated by this Court in Madhuri Patil, (1994) 6 SCC 241: 1994 SCC (L&S) 1349: (1994) 28 ATC 259, the scrutiny committees carry out verification of caste certificates issued without prior enquiry, as for example the caste certificates issued by Tahsildars or other officers of the departments of Revenue/Social Welfare/Tribal Welfare, without any enquiry or on the basis of self- affidavits about caste. If there were to be a legislation governing or regulating grant of caste certificates, and if caste certificates are issued after due and proper enquiry, such caste certificates will not call for verification by the scrutiny committees Madhuri Patil, (1994) 6 SCC 241: 1994 SCC (L&S) 1349: (1994) 28 ATC 259 provides for verification only to avoid false and bogus claims. The said scheme and the directions therein have been satisfactorily functioning for the last one and a half decades. If there are any shortcomings, the Government can always come up with an appropriate legislation to substitute the said scheme. We see no reason why the procedure laid down in Madhuri Patil, (1994) 6 SCC 241: 1994 SCC (L&S) 1349: (1994) 28 ATC 259 should not continue in the absence of any legislation governing the matter."
40. From the above discussions, we are of the considered view that the writ proceeding is not the proper/forum proceeding for enquiry as to whether the S.T. certificate had been issued correctly or not on misrepresentation of the facts in favour of the respondent No.5 and also that the High Court is not the proper authority for conducting the enquiry.
Therefore, the present PIL is not a proper forum for conducting enquiry as to whether the S.T. certificate in favour of the respondent No.5 had been issued correctly or not and also the present PIL is not the proper forum for granting the relief(s). The Division Bench of the Gauhati High Court in a PIL which is also similar with the present PIL to some extent held that the PIL is not maintainable vide judgment and order dated 12.09.2007 passed in PIL No.95/2007, which reads as follows:-
Page 52 of 75"12.09.2007 (CHELAMESWAR, CJ) Heard Mr. A.H. Hazarika, learned counsel for the petitioner.
This PIL has been filed with the prayer as follows:-
" ......... to show cause as to why an independent enquiry should not be investigated by an impartial Body or any other Independent Agency as alleged in respect of obtaining Schedule Caste Bogus Certificate by the Private Respondent No.11 and cancellation thereof and/or as to why issuance of Schedule Tribe Certificates by the State respondents without proper verification in routine manner to number of similarly situated persons in the State of Meghalaya should not be stopped to safeguard the right and interest of the indigenous Schedule Tribe, and/or why various Ruling/Judgment of the Hon'ble Supreme Court in respect of safeguarding the interest of the Schedule Tribe in the State of Meghalaya should not be implemented and/or why the Regional Passport Officer, Beltola Branch should not be direct to produce the Passport of the Private Respondent No.11 for verification and/or as to why a doubtful person claiming to he Scheduled Tribe of Meghalaya should not be prevented to contest the forthcoming General Election in the State of Meghalaya from the S.T. Reserve Seat ..........."
The grievance of the petitioner is that the 11th Respondent obtained a caste certificate which shows that the 11th Respondent belong to Schedule Tribe and on that basis he contested the election in the Legislative Assembly of Meghalaya some time in the year 2003 and got elected to the Legislative Assembly.
The prayer in the writ petition is in two parts. The first part of the prayer seeks investigation into the alleged bogus caste certificate issued in favour of the 11th Respondent and the second part of the prayer is more omnibus seeking direction that caste certificate in Meghalaya should not be issued without proper verification.
Insofar as the first part of the prayer is concerned, first of all to arrive at a conclusion whether the caste certificate issued in favour of the 11th Respondent is sustainable in law or not requires scrutiny and verification of facts, which exercise eventually cannot be undertaken by this Court under Article 226 of the Constitution of India. Apart from that an enquiry into such an issue would have bearing in the continuance of 11th Respondent as member of the Legislative Assembly. Such an enquiry is prohibited under Article 329 of the Constitution of India, which stipulates that "no election to either House of the Page 53 of 75 Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature."
The Parliament has already provided for forum under the Representation of Peoples Act, 1951 for adjudication of such issue and such an issue has to be decided under the procedure prescribed therein. In view of the above provisions, this Court, in our view, ought not to inquire into the issue raised by the petitioner.
Insofar, as the second prayer is concerned, as already mentioned, the prayer is too vague and omnibus and we do not see any reason to grant any relief in this petition. The petition is, therefore, dismissed at the admission stage."
Custom:-
41. The gist of the custom pleaded in the writ petition is that the Garo society follows matrilineal system and descent is always traced and accorded through the mother alone. The offshoots or progeny of marriage between Garo (male) and non-Garo (female) cannot claim the status of Scheduled Tribe either under the customary law applicable to the Garo tribal or under the Constitution of India. The father of the respondent No.5, who is a Garo tribal, married with a non-Garo and respondent No.5 cannot claim the status of Scheduled Tribe. The writ petitioner must plead and prove such facts by evidence. If the facts are not pleaded and evidence in support of the facts are not annexed to the writ petition, the Court will not entertain the point as there is marked distinction between pleadings under the Code of Civil Procedure in pleading, in a plaint, where the material facts, not evidences, are required to be pleaded but in the writ petition where not only the facts but also the evidence in support of the facts have to be produced and annexed to it. In the present PIL, the petitioner has to plead not only the material facts but also produce the evidence in proof of such facts and annexed to it. It is fairly well settled law that a custom must be proved to be ancient, certain and reasonable and had been acted upon in practice for such a long period with Page 54 of 75 such invariability and proved by general evidence as to its existence by members of the tribe. Only when these conditions are fulfilled, the custom may be taken as a customary law. When a custom has been judicially recognized by the Court, it passes into the law of the land and proof of it becomes unnecessary under Section 57(1) of the Evidence Act, 1872.
Materials custom must be proved properly and satisfactorily, until the time that such custom has, by way of frequent proof in the Court become so notorious that the Courts take judicial notice of it.
42. In the present case, the petitioner did not cite any instances where the custom so pleaded by the petitioner in the present PIL had been judicially recognized by the Court by making judicial pronouncement. No doubt custom, particularly, custom which has been judicially recognized by the Court is not required to be proved in it individual case. Therefore, in the present case, since there is no judicial pronouncement of the custom so pleaded by the petitioner in the PIL, the petitioner has to prove that the custom so pleaded by him in the PIL has all the ingredients for recognizing as a customary law and also for taking judicial notice. The question is if the writ proceeding is a proper forum for deciding the custom inasmuch as, the custom is required to be proved by adducing both oral and documentary evidence. The answer would be that the writ proceeding is not a proper forum for deciding the custom in the present context. The general principles which should be kept in view in dealing with questions of customary law had been summarized by the Apex Court in Gokal Chand v. Pravin Kumari:
AIR 1952 SC 231. Para 14 of the AIR in Gokal Chand's case (Supra) reads as follows:-
"14. ........... (2) Inspite of the above fact, there is no presumption that a particular person or class of persons is governed by custom, and a party who is alleged to be governed by customary law must prove that he is so governed and must Page 55 of 75 also prove that existence of the custom set up by him. See 'Daya Ram v. Sohel Singh' 110 P.R. 1906 p. 390 at 410; 'Abdul Hussein Khan v. Bibi Sona Dero', 45 Ind App 10 (PC).
(3) A custom, in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that "a custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary" should not be strictly applied to Indian conditions. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality. See 'MT. Subhani v. Nawab' AIR 1941 PC 21 at 32.
(4) A custom may be proved by general evidence as to its existence by members of the tribe or family who would natu-
rally be cognizant of its existence and its exercise without controversy, and such evidence may be safely acted on when it is supported by a public record of custom such as the Riwaj-i- am or Manual of Customary Law. See 'Ahmed Khan v. MT. Channi Bibi', AIR 1952 PC 267 at 271.
(5) No statutory presumption attaches to the contents of a Riwaj-i-am or similar compilation, but being a public record prepared by a public officer in the discharge of his duties under Government rules, the statements to be found therein in support of custom are admissible to prove facts recited therein and will generally be regarded as a strong piece of evidence of the custom. The entries in the Riwaj-i-am may however be proved to be incorrect, and the quantum of evidence required for the purpose of rebutting them will vary with the circumstances of each case. The presumption of correctness attaching to a Riwaj-i-am may be rebutted, if it is shown that it affects adversely the rights of females or any other class of persons who had no opportunity of appearing before the revenue authorities. See 'Beg v. Allah Ditta', AIR1916 PC 129 at 131, 'Saleh Mohammad v. Zawar Hussain', AIR 1994 PC 18; 'MT. Subhani v. Nawab', AIR 1941 PC at 25.
(6) When the question of custom applicable to an agri- culturist is raised, it is open to a party who denies the application of custom to show that the person who claims to be governed by it has completely and permanently drifted away from agriculture and agricultural associations and settled for good in urban life and adopted trade, service, etc., as his principal occupation and means and source of livelihood, and does not follow other customs applicable to agriculturists. See 'Muhammad Hayat Khan v. Sandhe Khan', 55 P.R. 1908 p. 270 at 274, 'Muzaffar Muhammad v. Imam Din', 9 Lah 120 at p.125."
Page 56 of 7543. The Apex Court in Ass Kaur (Deceased) by L.Rs. v. Kartar Singh (Dead) L.Rs. & Ors: AIR 2007 SC 2369, held that:-
"18. In R.B.S.S. Munnalal and others v. S.S. Rajkumar and Others [AIR 1962 SC 1493], this Court was considering the question as to whether a Jain widow could adopt a son to her husband without his express authority, being governed by the custom which had by long acceptance become part of the law applicable to them. Therein, it was observed: "......... It is well settled that where a custom is repeatedly brought to the notice of the Courts of a country, the courts may hold that custom introduced into the law without the necessity of proof in each individual case .........."
19. The court can also take judicial notice of such customs in terms of Section 57 of the Evidence Act, 1872. As and when custom has repeatedly been recognized by the courts, the same need be proved. Reference in regard to the Punjab 'general custom' may be made to Ujagar Singh (supra), and Bawa v. Taro [AIR 1951 Punjab 239].
26. A serious contention was raised that the validity of customs must be judged on the touchstone of justice, equity and good conscience. No such contention had been raised before the learned Trial Judge or before the High Court. It is one thing to say that customary law had no application or the custom had not been proved; but it is another thing to say despite its acceptance and proof the same should not be applied on the ground of equity, justice and good conscience. We, therefore, cannot go into such a contention."
44. The Apex Court in Laxmibai (Dead) through LRS & Anr. v.
Bhagwantbuva (Dead) through LRS & Ors: (2013) 4 SCC 97 reiterated that a custom must be proved to be ancient, certain and reasonable and the evidence adduced on behalf of the party concerned must prove the alleged custom and the proof must not be unsatisfactory and conflicting and when a custom has been judicially recognized by the Court, it passes into the law of the land and proof of it becomes unnecessary under Section 57(1) of the Indian Evidence Act, 1872. Material customs must be proved properly and satisfactorily, until the time that such custom has, by way of frequent proof in the Court become so notorious, that the Courts take judicial notice of it.
Page 57 of 75Paras 14, 15, 16 & 17 of the SCC in Laxmibai (Dead) through LRS's case (Supra) read as follows:-
14. A custom must be proved to be ancient, certain and reasonable. The evidence adduced on behalf of the party concerned must prove the alleged custom and the proof must not be unsatisfactory and conflicting. A custom cannot be extended by analogy or logical process and it also cannot be established by a priori method. Nothing that the Courts can take judicial notice of needs to be proved. When a custom has been judicially recognised by the Court, it passes into the law of the land and proof of it becomes unnecessary under Section 57(1) of the Evidence Act, 1872. Material customs must be proved properly and satisfactorily, until the time that such custom has, by way of frequent proof in the Court become so notorious, that the Courts take judicial notice of it. (See also:
Effuah Amissah v. Effuah Krabah, (1936) 44 LW 73: AIR 1936 PC 147, T. Saraswati Ammal v. Jagadambal. , AIR 1953 SC 201; Ujagar Singh v. Jeo, AIR 1959 SC 1041 and Siromani v. Hemkumar, AIR 1968 SC 1299).
15. 10. In Ramalakshmi Ammal v. Sivanatha Perumal Sethuraya: (1871-72) 14 MIA 570 it was held:
"It is essential that special usage, which modifies the ordinary law of succession is ancient and invariable; and it is further essential that such special usage is established to be so, by way of clear and unambiguous evidence. It is only by means of such evidence, that courts can be assured of their existence, and it is also essential that they possess the conditions of antiquity and certainty on the basis of which alone, their legal title to recognition depends."
16. In Salekh Chand: (2008) 13 SCC 119 this Court held as under: (SCC pp.130-131, paras 23 & 26-27) "23. Where the proof of a custom rests upon a limited number of instances of a comparatively recent date, the court may hold the custom proved so as to bind the parties to the suit and those claiming through and under them.......
* * *
26. ....... All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality.
27. A custom may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence, and its Page 58 of 75 exercise without controversy ......"
(emphasis supplied)
17. In Bhimashya & Ors. v. Janabi:, (2006) 13 SCC 627, this Court held: (SCC pp.635-36 paras 25 & 28-29) "25. A custom is a particular rule which has existed either actually or presumptively from time immemorial, and has obtained the force of law in a particular locality, although contrary to or not consistent with the general common law of the realm......it must be certain in respect of its nature generally as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect.
* * *
28. Custom is authoritative, it stands in the place of law, and regulates the conduct of men in the most important concerns of life; fashion is arbitrary and capricious, it decides in matters of trifling import; manners are rational, they are the expressions of moral feelings. Customs have more force in a simple state of society.
29. Both practice and custom are general or particular but the former is absolute, the latter relative; a practice may be adopted by a number of persons without reference to each other; but a custom is always followed either by limitation or prescription; the practice of gaming has always been followed by the vicious part of society, but it is to be hoped for the honour of man that it will never become a custom."
(See also: Ram Kanya Bai v. Jagdish; (2011) 7 SCC 452: (2011) 3 SCC (Civ) 736: AIR 2011 SC 3258).
45. The Apex Court in Anjan Kumar v. Union of India & Ors:
(2006) 3 SCC 257 held that an offshoots of wedlock between a tribal man and a non-tribal woman would attain the tribal status. Para 6 of the SCC in Anjan Kumar's case (Supra) reads as follows:-
"6. ..................... The situation will, however, stand on different footing in a case where a tribal man marries a non- tribal woman (Forward Class) then the offshoots of such wedlock would obviously attain the tribal status. However, the woman (if she belongs to a Forward Class) cannot automatically attain the status of tribal unless she has been accepted by the community as one of them, observed all rituals Page 59 of 75 customs and traditions which have been practiced by the tribals from time immemorial and accepted by the community of the village as a member of tribal society for the purpose of social relations with the village community. Such acceptance must be by the village community by a resolution and such resolution must be entered in the Village Register kept for the purpose. ............"
46. The custom pleaded by the petitioner in the present PIL had not been accepted by the Gauhati High Court (Division Bench) in A.S. Khongphai v. Stanley D.D. Nichols Roy & Anr: 2008 (1) GLT 180. In that case, the case of the appellant was that according to the custom of Khasi, Khasi society being matriarchal every Khasi must take the Jaid (clan) of his mother and the son of an American mother cannot have a clan. In that case, one Mr. Hamlet Bareh, who had been awarded D.Phill degree by the Gauhati University on his thesis "the origin and History of the Khasi People" deposed that now-a-days the matter of taking a "Jaid" has become a matter of choice, i.e. one can have the "Jaid" of the father or of the mother or he may not take any "Jaid" at all. According to Mr. Hamlet Bareh, the Khasi society being matriarchal every Jaid from a Khasi woman must take the Jaid of the mother is not wholly correct. The Division Bench of the Gauhati High Court in A.S. Khongphai case (Supra) had accepted the case of the respondents i.e. Stanley D.D. Nichols Roy that the offshoots of marriage between Khasi (male) and non-Khasi (female) could be a Khasi. Paras 3, 6, 7 & 12 of the GLT in A.S. Khongphai case (Supra) read as follows:-
"3. The Tribunal answered the above first issue in the affirmative and the above second issue in the negative. In the present appeal only these two issues have been taken up. The contention of the petitioner is that respondent No. 1 Sri Nichols Roy is not a Khasi and as such he is not eligible for the seat from the Cherrapunji (L.A. 24) constituency which is reserved for a member of a Scheduled Tribe inhabiting the United Khasi Jaintia Hills Autonomous District. The petitioner puts forward the following arguments in support of his contention. According to the Khasi Customary Law, every Khasi must have a "Jaid"
(clan). There cannot be any Khasi without a "Jaid". The Khasi Page 60 of 75 society being matriarchal every "Jaid" springs from a Khasi woman. A Khasi must take the "Jaid" of his mother. He cannot take the "Jaid" of his father. Consequently, the children of a Khasi father and a non-Khasi mother cannot be Khasis. It is not disputed that the father of respondent No. 1 is a Khasi gentleman, but his mother is an American Lady. Therefore, respondent No. 1 Sri Nichols Roy whose mother has no "Jaid" being a non-Khasi, cannot be a Khasi as he is not in a position to take any "Jaid".
6. I may next refer to the evidence of witnesses produced by Respondent No. 1 R.W. 1 is the respondent No. 1 himself. He practically knows nothing about Khasi customs. R.W. 2 Prof. R.S. Lyngdoh is the Head of the Department of Khasi Language and Culture at the St. Anthony's College. He says that there are people of the War locality who are Khasis, but who have no "Jaids". R.W. 3 Dr. S.R. Laloo also says that the War people have no "Jaid". R.W. 4 Phritson Kharkongor says that his clan is "Jaid Dkhar" and that their ancestress was a non-Khasi women by the name of Mohkhynhong. R.W. 6 Jebuni says that he was a Wahadadar for 27 years and that he knows Respondent No. 1. He also says that Respondent No. 1 is a Khasi of War Sheila and that the Khasis of War Sheila have No. "Jaid". R.W. 8 Hamlet Bareh is a Professor of History at the St. Edmund's College. He was awarded the D. Phill degree by the Gauhati University on his thesis the origin and History of the Khasi People. He says that there cannot be a Khasi without a "Jaid" but adds that now-a-days the matter of taking a "Jaid" has become a matter of choice, i.e., one can have the "Jaid" of the father or of the mother or he may not take any "Jaid" at all.
R.W. 10 Lokendro Syem says that he is the Syiem of Jirang Syiemship. He further says that there are many Khasis in his Syemship whose fathers are Khasi and mothers are non- Khasis. These people take their "Jaids" from their fathers. In cross-Examination he says "Khasis take their Jaid from the mothers". R.W. 11 Oniram Nongrum is a School teacher. He deposes that the ancestresses of "Jaid Dkhars" are non-Khasis and these "Jaid Dkhars" are now treated as Khasis. R.W. 12B. Wellington says that he has been collecting infomiation about Khasi customs, origin, etc., since 1960. One cultural organisation requested him to submit a paper on the above topics and he did so. The Sheila Presbytery has also appointed him to collect information regarding the history of the Church in Sheila. According to this witness; the people of Sheila, Mustoh, Nongwar and the War area have no "Jaid".
7. From the discussion above, one thing is clear that the witnesses of the petitioner have no definite idea about the two customs put forward by the petitioner, viz., that every Khasi must have a "Jaid" and that a Khasi can take the Jaid of his mother only and not of the father. The respondent's witnesses have deposed against those two theories and while doing so Page 61 of 75 have made slips here and there. But to prove a custom the evidence must be precise and conclusive. It cannot be proved by slips made by some antagonistic witnesses. A custom must have the attributes not only of antiquity and certainty but also of uniformity. If exceptions to a custom are found, any theory based on it must be rejected.
12. What has actually happened seems to me to be as follows:
As pointed out above, not only the original Khasis but also various groups like Syntengs, Wars, Bhois and Lynngams became merged with the Khasis. But in spite of such merger these groups retain some of their customs which are different from the customs of the original Khasis. In this connection the following passage from Gurdon's book (page 82) regarding inheritance is apposite:
"The Khasi and Synteng laws of inheritance are practically the same, although in some of the doloiships in the Jaintia Hills there are some slight differences. The War law of inheritance differs greatly from that of the Khasis and the customs of the Bhois or Mikirs, who inhabit the Bhoi doloiship of the Jaintia Hills, are totally different from those of the Khasis, thereby supplying another link in the chain of evidence in support of the conclusion that the Bhois, or, more correctly speaking, the Mikirs, are of Bodo origin, and not Khasi or Mon- Anam. The Lynngams follow the Khasi law of inheritance."
47. The Assam High Court (Division Bench) had considered the meaning of the words "Khasi Tribe" mentioned in the Precedential order for Scheduled Tribe under the Constitution of India and also the custom of the Khasi Tribe in Wilson Reade v. C.S. Booth & Ors: AIR 1958 Assam 128.
The case of the petitioner in the election case before the Election Tribunal, Assam was that the progeny of the marriage between the Khasi and non-
Khasi cannot be the members of the Khasi Tribe and there should be purity of blood for becoming the members of the Khasi Tribe, according to the Khasi custom. The respondent whose election to the Legislative Assembly from the reserved constituency i.e. (reserved constituency for Khasi Tribe) is challenged is the progeny or offshoot of the marriage between one European Page 62 of 75 and Khasi Lady. The Assam High Court in Wilson Reade's case (Supra) held that in the absence of any definition of the words "Khasi Tribe" in the Constitution or in the law, the test which will determine the membership of that individual will not be only the purity of blood, but his own conduct in following the customs and the way of life of the tribe, the way in which he was treated by the community and the practice amongst the tribal people in the matter of dealing with persons whose mother was a Khasi and father was an European and also that in the past there have been cases where the Khasis brought slave girls from outside and married them and their progeny were regarded as members of the Khasi clan. The relevant portion of para 5 of the AIR in Wilson Reade's case (Supra) reads as follows:-
"5. ...................... The question whether an individual who is seeking election for the reserved seat is or is not a member of the Khasi tribe will have to be determined by the Courts when they are required to adjudicate upon that question and in the absence of any definition of the word 'Khasi tribe' in the Constitution or in the law, the test which will determine the membership of that individual will not be only the purity of blood, but his own conduct in following the customs and the way of life of the tribe, the way in which he was treated by the community and the practice amongst the tribal people in the matter of dealing with persons whose mother was a Khasi and father was an European.
* * * The conduct of the community which has been given a right of special representation, the manner and how the community regarded the particular individual and whether the community as a whole intended to take the individual within its fold are all matters which will be relevant for consideration of the question as to whether within the meaning of the Constitution, the appellant could or could not be regarded as a member of the Khasi clan.
* * * We do not think that the purity of blood is the only criterion to judge whether a particular individual is a member of the Khasi Community or not. If that is the only element which will have to be considered in determining whether the appellant is a member of the Khasi clan, it will be hardly possible to find a Page 63 of 75 dozen people who can be said to possess racial purity in that restricted sense.
The counsel for the respondents has admitted that in the past, there have been cases where the Khasis brought slave girls from outside and married them and their progeny were regarded as members of the Khasi clan. The girls brought from outside, were taken in the Khasi fold and their children were regarded as Khasis. This goes to establish that the clan has gradually developed and brought within its fold who applying this strict test, could not be regarded as Khasis. ......................."
ELECTION:
48. It is the case of the petitioner in the PIL that the respondent No.5, who is not a member of the Scheduled Tribe contested the election to the Meghalaya Legislative Assembly from Ampatigiri constituency (a reserved constituency for S.T.) and the objections raised by the said Shri. Mohendro Agitok to the nomination papers filed by the respondent No.5 for election to the Meghalaya Legislative Assembly from Ampatigiri constituency had been illegally rejected. According to the petitioner, the election of the respondent No.5 to the Meghalaya Legislative Assembly from Ampatigiri constituency (a reserved constituency) is illegal and void. The Constitution Bench of the Apex Court in celebrated case of N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency, Namakkal, Salem Dist., & Ors: AIR (39) 1952 SC 64 clearly defined the word "election" in the context of Article 329(b) of the Constitution of India and held that the law does not contemplate two attacks on matters connected with the election, one under Article 226 of the Constitution and another election petition under the Representation of the People Act, 1951. Paras 7, 9, 11 & 12 of the AIR in N.P. Ponnuswami's case (Supra) read as follows:-
"7. These arguments appear at first sight to be quite impressive, but in my opinion there are weightier and basically more important arguments in support of the view taken by the High Court. As we have seen, the most important question for Page 64 of 75 determination is the meaning to be given to the word "election"
in article 329 (b). That word has by long usage in connection with the process of selection of proper representatives in democratic institutions, acquired both a wide and a narrow meaning. In the narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected. In Srinivasalu v. Kuppuswami: AIR(15) 1928 Mad. 253 at p.255 the learned Judges of the Madras High Court after examining the question, expressed the opinion that the term "election" may be taken to embrace the whole procedure whereby an "elected member" is returned, whether or not it be found necessary to take a poll. With this view, my brother, Mahajan J, expressed his agreement in Sat Narain v. Hanuman Prashad: AIR (33) 1946 Lah. 85; and I also find myself in agreement with it. It seems to me that the word "election" has been used in Part XV of the Constitution in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature. The use of the expression "conduct of elections" in article 324 specifically points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in Part XV including article 329 (b). That the word "election" bears this wide meaning whenever we talk of elections in a democratic country, is borne out by the fact that in most of the books on the subject and in several cases dealing with the matter, one of the questions mooted is, when the election begins. The subject is dealt with quite concisely in Halsbury's Laws of England in the following passage under the heading "Commencement of the Election":-
"Although the first formal step in every election is the issue of the writ, the election is considered for some purposes to begin at an earlier date. It is a question of fact in each case when an election begins in such a way as to make the parties concerned responsible for breaches of election law, the test being whether the contest is "reasonably imminent". Neither the issue of the writ nor the publication of the notice of election can be looked to as fixing the date when an election begins from this point of view. Nor, again, does the nomination day afford any criterion. The election will usually begin at least earlier than the issue of the writ. The question when the election begins must be carefully distinguished from that as to when "the conduct and management of"
an election may be said to begin. Again, the question as to when a particular person commences to be a candidate is a question to be considered in each case."
The discussion in this passage makes it clear that the word ''election" can be and has been appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process.
Page 65 of 759. The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which, as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any court. It seems to me that under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question. Article 329(b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question could be urged. I think it follows by necessary implication from the language of this provision that those grounds cannot be urged in any other manner, at any other stage and before any other court. If the grounds on which an election can be called in question could be raised at an earlier stage and errors, if any, are rectified, there will be no meaning in enacting a provision like article 329 (b) and in setting up a special tribunal. Any other meaning ascribed to the words used in the article would lead to anomalies, which the Constitution could not have contemplated, one of them being that conflicting views may be ex- pressed by the High Court at the pre-polling stage and by the election tribunal, which is to be an independent body, at the stage when the matter is brought up before it.
11. The Representation of the People Act, 1951, which was passed by Parliament under article 327 of the Constitution, makes detailed provisions in regard to all matters and all stages connected with elections to the various legislatures in this country. That Act is divided into II parts, and it is interesting to see the wide variety of subjects they deal with. Part II deals with "the qualifications and disqualifications for membership", Part III deals with the notification of General Elections, Part IV provides for the administrative machinery for the conduct of elections, and Part V makes provisions for the actual conduct of elections and deals with such matters as presentation of nomination papers requirements of a valid nomination, scrutiny of nominations, etc., and procedure for polling and counting of votes. Part VI deals with disputes regarding elections and provides for the manner of presentation of election petitions, the constitution of election tribunals and the trial of election petitions. Part VII outlines the various corrupt and illegal practices which may affect the elections, and electoral offences. Obviously, the Act is a self contained enactment so Page 66 of 75 far as elections are concerned, which means that whenever we have to ascertain the true position in regard to any matter connected with elections, we have only to look at the Act and the rules made thereunder. The provisions of the Act which are material to the present discussion are sections 80, 100, 105 and 170, and the provisions of Chapter II of Part IV dealing with the form of election petitions, their contents and the reliefs which may be sought in them. Section 80, which is drafted in almost the same language as article 329 (b), provides that "no election shall be called in question except by an election petition presented in accordance with the provisions of this Part". Section 100, as we have already seen, provides for the grounds on which an election may be called in question, one of which is the improper rejection of a nomination paper. Section 105 says that "every order of the Tribunal made under this Act shall be final and conclusive". Section 170 provides that "no civil court shall have jurisdiction to question the legality of any action taken or of any decision given by the Returning Officer or by any other person appointed under this Act in connection with an election." These are the main provisions regarding election matters being judicially dealt with, and it should be noted that there is no provision anywhere to the effect that anything connected with elections can be questioned at an intermediate stage.
12. It is now well-recognized that where a right or liability is created by a statute which gives a special remedy for en- forcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes J. in Wolverhampton New Water Works Co. v. Hawkesford:
(1859) 6 C.B. (N.S.) 336, at p. 356 in the following passage:-
"There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common law and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy: there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. ........... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."
The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspaper Limited:
(1919) A.C. 368 and has been reaffirmed by the Privy Council Page 67 of 75 in Attorney-General of Trinidad and Tobago v. Gordon Grant & Co., 1935 A.C. 532 and Secretary of State v. Mask & Co., 44 Cal. W.N. 709; and it has also been held to be equally applicable to enforcement of rights (see Hurdutrai v. Off.
Assignee of Calcutta, 52 Cal. W.N. 343, at 349. That being so, I think it will be a fair inference from the provisions of the Representation of the People Act to state that the Act provides for only one remedy, that remedy being by an election petition to be presented after the election is over, and there is no remedy provided at any intermediate stage."
49. The Apex Court in Harnek Singh v. Charanjit Singh & Ors:
(2005) 8 SCC 383 held that in an election matters, the High Court, even though, exercising a plenary jurisdiction under Article 226 of the Constitution of India should not exercise the power under jurisdiction under Article 226 of the Constitution in a case where there is an alternative remedy of election petition under the statue. Paras 7, 14 & 15 of the SCC in Harnek Singh's case (Supra) read as follows:-
"7. A writ petition was filed by the respondents in the High Court of Punjab and Haryana alleging inter alia therein that the Returning Officer did not have the power to fix a date of the adjourned meeting to elect the Chairman of the Panchayat Samiti and only the State Election Commission is empowered therefor. Accepting the contention of the respondents, the High Court set aside the election of the petitioner as Chairman of the Panchayat Samiti. Aggrieved by the order of the High Court, the Appellant is before us.
14. It may be true that the respondent herein questioned the jurisdiction of the Deputy Commissioner and/or the Returning Officer in fixing a date for election but in his writ petition he had prayed inter alia for the following:
"(a) Issue a writ, order or direction quashing the entire process, manner and method adopted by respondent 3 in holding the election and for quashing the result declared by respondent 3 in declaring respondent 4 elected as Chairman of the Block Samiti to be illegal and bad.
(b) Issue a writ, order or direction, quashing the action of respondent 3 in rejecting the valid vote cast in favour of the petitioner, the same being actuated with malice and motive and otherwise being arbitrary and illegal.
(c) Issue a writ, order or direction declaring the petitioner elected as Chairman of the Block Samiti on the basis of Page 68 of 75 votes cast in his favour if necessary by calling for the records of the election and ballot papers and after examining the same.
(d) Issue a writ, order or direction commanding the respondents to restart the election process from the stage respondent 3 illegally adjourned and reassemble the meeting or, alternatively, to direct the respondent to hold a fresh election by following the process of law and the procedures and rules prescribed in the Act and the Rules.
(e) Issue a writ, order or direction quashing the order passed by DC on the representation filed by the petitioner, the same being illegal and in violation of the statutory provision.
(f) Dispense with service of advance notice on the respondents."
15. Prayers (b) and (c) aforementioned, evidently, could not have been granted in favour of the petitioner by the High Court in exercise of its jurisdiction under Article 226 of the Constitution. It is true that the High Court exercises a plenary jurisdiction under Article 226 of the Constitution. Such jurisdiction being discretionary in nature may not be exercised inter alia keeping in view of the fact that an efficacious alternative remedy is available therefor. (See Hindustan Petroleum Corpn. Ltd.: (2005) 8 SCC 242: (2005) 7 Scale
290)."
50. It is well settled law that the Constitutional authority cannot do indirectly what is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge.
That would be clearly a fraud on the Constitutional provisions. (Ref:- Dr. D.C. Wadhwa & Ors vs. State of Bihar & Ors: AIR 1987 SC 579.)
51. It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided will be violative Page 69 of 75 of the fundamental principles of natural justice. (Ref:- Hukam Chand Shyam Lal vs. Union of India & Ors: AIR 1976 SC 789).
52. The Apex Court in Dalip Singh Vs State of Uttar Pradesh & Ors : (2010) 2 SCC 114 held that materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final". Para 1- 10 and 16-24 of the SCC in Dalip Singh's case (Supra) read as follows:
1. For many centuries, Indian society cherished two basic value of life i.e.. 'Satya (truth) and 'Ahimsa' (non-violence). Mahavir, Gautam Buddha and Mahatma Gandi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vahue in pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has over-shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.
2. In the last 40 years, a new creed pf litigants has cropped up.
Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.
Page 70 of 753. In Hari Narain V. Badri Das: AIR 1963 Sc 1558, this Court adverted to the aforesaid rule and revoked the leave granted to the appellant by making the following observations: (AIR p. 1558) "It is of utmost importance that in making material statements and setting forth grounds in applications for special leave made under Article 136 of the Constitution, care must be taken not to make any statements which are inaccurate, untrue and misleading. In dealing with applications for special leave, the Court naturally takes statements of the fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. Thus, if at the hearing of the appeal the Supreme Court is satisfied that the material statements made by the appellant in his application for special leave are inaccurate and misleading, and the respondent is entitled to contend that the appellant may have obtained special leave from the Supreme Court on the strength of what he characterizes as misrepresentations of facts contained in the petition for special leave, the Supreme Court may come to the conclusion that in such a case special leave granted to the appellant ought to be revoked."
4. In welcome Hotel and others V. State of AP: (1983) 4 SCC 575 the Court held that a party which has misled the Court in passing an order in its favour is not entitled to be heard on the merits of the case.
5. In G. Narayanaswamy Reddy and v. Govt. of Karnataka:
(191) 3 SCC 261, the Court denied relief to the appellant who had concealed the fact that the award was not made by the Land Acquisition Officer within the time specified in Section 11-
A of the Land Acquisition Act because of the stay order passed by the High Court. While dismissing the special leave petition, the Court observed: (SCCp. 263, para 2) "......Curiously enough, there is no reference in the Special Leave Petitions to any of the stay orders and we came to know about these orders, there is no reference in the Special Leave Petitions to any of the stay orders and we came to know about these orders only when the respondents appeared in response to the notice and filed their counter affidavit. In our view, the said interim orders have a direct bearing on the question raised and the non-disclosure of the same certainly amounts to suppression of material facts. On this ground alone, the Special Leave Petitions are liable to be rejected. It is well settled in law that the relief under Article 136 of the Constitution is discretionary and a petitioner who approaches this Court for such relief must come with frank and full disclosure of facts. It he fails to do so and suppresses material facts, his application is liable to be Page 71 of 75 dismissed. We accordingly dismiss the Special Leave Petitons."
6. In S.P. Chengalvaraya Naidu v. Jagannath: (1994) 4 SCC 1, the court held that where a preliminary decree was obtained by withholding an important documents from the court, the party concerned deserves to be thrown out at any stage of the litigation.
7. In Prestige Lights Ltd. v. S.B.I.: (2007) 8 SCC 449, it was held that in exercising power under Article 226 of the Constitution of India the High Court is not just a court of law, but is also a court of equity and a person who invokes the High Court's jurisdiction under Article 226 of the Constitution is duty bound to place all the facts before the court without any reservations. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain petition filed under Article 226 of the Constitution. This Court referred to the judgment of Scrutton, L.J. in R v. Kensington Income Tax Commissioners (1917) 1 K.B. 486, and observed: (Prestige Lights Ltd. case (2007) 8 SCC 448, SCC p. 462, para 35).
"In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty misleading the Court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. It the materials facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible."
8. In A.V. Papayya Sastry v. Government of A.P.: (2007) 4 SCC 221, the Court held that Article 136 does not confer a right of appeal on any party. It confers discretion on this Court to grant leave to appeal in appropriate cases. In other words, the Constitution has not made the Supreme Court a regular Court of Appeal or a Court of Error. This Court only intervenes where justice, equity and good conscience require such intervention.
9. In Sunil Poddar v. Union Bank of India: (2008) 2 SCC 326, the Court held that while exercising discretionary and equitable jurisdiction under Article 136 of the Constitution, the facts and circumstances of the case should be seen in their entirety to find out if there is miscarriage of justice. If the appellant has not come forward with clean hands, has not candidly disclosed all the facts that he is aware of and he intends to delay the proceedings, then the Court will non-suit him on the ground of contumacious conduct.
Page 72 of 7510. In K.D. Sharma v. SAIL: (2008) 12 SCC 481, the court held that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the Writ Court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. The same rule was reiterated in G. Jayshree v. Bhagwandas S. Patel: (2009) 3 SCC 141.
* * *"
53. The Apex Court in Abhyudhya Sanstha v. Union of India:
(2011) 6 SCC 145 held that petitioner must come with clean hands for obtaining interim order; and for the injury suffered by the students due to misrepresentation of fact, compensation of Rs.1 lakh had been awarded by the Apex Court to each of the students.
54. The Apex Court in A Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam represented by its President & Ors: (2012) 6 SCC 430 held that every litigants is expected to state the truth before the law court whether it is pleadings, affidavits or evidence. Dishonest and unscrupulous litigants have no place in law courts. It is imperative that the Judges must have complete grip of the facts before they start dealing with the case. Para 23, 24, 26, 27, 28 and 29 of the SCC in A Shanmugam's case (Supra) read as follows:-
"23. We reiterate the immense importance and relevance of purity of pleadings. The pleadings need to be critically examined by the judicial officers or Judges both before issuing the ad interim injunction and/or framing issues.
24. The entire journey of a Judge is to discern the truth from the pleadings, documents and arguments of the parties. Truth is the basis of the justice delivery system. This Court in Dalip Page 73 of 75 Singh v. State of U.P. (2010) 2 SCC 114 observed that: (SCC p.116, para 1):
"1. Truth constituted an integral part of the justice delivery system which was in vogue in the pre- Independence era and people used to feel proud to tell the truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system."
26. As stated in the preceding paragraphs, the pleadings are the foundation of litigation but experience reveals that sufficient attention is not paid to the pleadings and documents by the judicial officers before dealing with the case. It is the bounden duty and obligation of the parties to investigate and satisfy themselves as to the correctness and authenticity of the matter pleaded.
27. The pleadings must set forth sufficient factual details to the extent that it reduces the ability to put forward a false or exaggerated claim or defence. The pleadings must inspire confidence and credibility. If false avertments, evasive denials are introduced, then the court must carefully look into it while deciding a case and insist that those who approach the court must approach it with clean hands.
28. It was imperative that the Judges must have complete grip of the facts before they start dealing with the case. That would avoid unnecessary delay in disposal of the cases.
29. Ensuring discovery and production of documents and a proper admission/denial is imperative for deciding civil cases in a proper perspective. In relevant cases, the courts should encourage interrogatories to be administered."
55. For the foregoing reasons and discussions, we are of the considered view that the petitioner has no locus standi to file the present PIL and/or is not an aggrieved person in the given case to file the PIL and the relief(s) sought for in the present PIL cannot be granted in the writ proceeding and the writ proceeding is not a proper proceeding for deciding the customs and also the High Court in the given case, is not the proper authority for holding enquiry as to whether the Scheduled Tribe certificate issued in favour of the respondent No.5 is correct or not and also the PIL Page 74 of 75 cannot be filed for making roving enquiry. Accordingly, the present PIL is not maintainable and is dismissed.
JUDGE JUDGE
(Justice S.R. Sen) (Justice T Nandakumar Singh)
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