The High Court
Case Details
THE HIGH COURT OF MEGHALAYA AT SHILLONG. PIL NO. (SH) 5/2013 :::: Petitioner Sri. Tennydard M Marak S/o (L) P.N. Sangma, Nokgilawe, Williamnagar, East Garo Hills, Meghalaya. -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 For the Respondents Date of hearing Date of Judgment & Order : : : : Mr. OP Bhati, Adv Mr. KS Kynjing, Advocate General Mr. ND Chullai, Sr. GA. 16.09.2013 07.10.2013 Page 1 of 75 (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12)(cid:9)(cid:9)(cid:9)(cid:9) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12) (cid:9)(cid:9)(cid:9)(cid:9) (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
Legal Reasoning
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
Decision
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. to Sub: Disposed of petition/representation Scheduled Tribe (Garo Tribe) Certificate obtained by Dr. Mukul Sangma. relating in 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 35/08 06.11.09 Order 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 75 The 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 the Ampati Constituency 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. four consecutive terms, for to Garo schedule 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 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 the party will be unfounded without any material, 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 is not the objection petition 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 the present suit that 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 75 Both 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 75 8. 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 them in resident respectively in those parts of that Schedule. localities specified relation the to in 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. Chakma Dimasa, Kachari Garo Hajong Hmar Khasi, Jaintia, Synteng, Pnar, War, Bhoi, Lyngngam Any Kuki Tribes including:- Biate, Biete Changsan Chongloi Doungel Gamalhou Gangte Guite Hanneng Haokip, Haupit Haolai Hengna Hongsungh Hrangkhwal, Rangkhol Jongbe Khawchung Khawathilang, Khothalong Khelma Kholhou Kipgen Kuki Lengthang Lhangum Lhoujen Lhouvun Lupheng Mangjel Misao Riang Sairhem Selnam Singson Sitlhou Sukte Thado Thangngeu Uibuh Vaiphei 1. 2. 3. 4. 5. 6. 7. (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) (xii) (xiii) (xiv) (xv) (xvi) (xvii) (xviii) (xix) (xx) (xxi) (xxii) (xxiii) (xxiv) (xxv) (xvi) (xvii) (xviii) (xxix) (xxx) (xxxi) (xxxii) (xxxiii) (xxxiv) (xxxv) (xxxvi) (xxxvii) Page 13 of 75 8. 9. 10. 11. 12. 13. 14. *15. *16. *17. Lakher Man (Tai speaking) Any Mizo (Lushai) Tribes Mikir Any Naga tribes Pawi Synteng Boro Kacharis Koch 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. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. Bansphur Bhuinmali, Mali Brittial Bania, Bania Dhupi, Dhobi Dugla, Dholi Hira Jalkeot Jhalo, Malo, Jhalo-Malo Kaibartta, Juliya Lalbegi Maharu Mehtar, Bhangi Muchi, Rishi Namasudra Patni 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 in view of the present proceedings “8. Incidentally, we may point out that the plea that the Dohar caste is a sub-caste of the Chamar caste cannot be entertained the Constitution in (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: