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2000 DIGILAW 1017 (MP)

Devi Das Sindhi v. Jagdish Vishwakarma And Ors.

2000-09-18

S.C.PANDEY

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ORDER S.C. Pandey, J. 1. This revision under Section 441-F of the Municipal Corporation Act (henceforth 'the Act') is directed against the order dated 30-6-98 passed by Ist Additional District Judge, Murwara (Katni) (Election Tribunal) in Election Petition No. 64 of 1994. 2. It is not in dispute that the State Election Commission, Murwara (Katni) (henceforth 'the Commission') had issued a Notification for election of Municipal Corporation, Katni in the year 1994. According to the Notification issued by the Commission the Ward No. 41 at Katni was reserved for other backward classes. It was also not disputed before the Election Tribunal that the non-applicant No. 1 was a member of other backward class and for which a necessary proforma was issued by the competent authority on 20-4-94. 3. The non-applicant No. 1 filed the said Election Petition No. 64 of 1994 before the Election Tribunal stating that sometime in the month of October, 1994 elections were to be held for Ward Members of the Wards of Municipal Corporation. The non-applicant No. 1 had filed a nomination paper for the purpose of his election from Ward No. 41, Katni, claiming himself to be a member of the other backward class. The applicant and the non-applicant No. 2 had also tiled their nomination papers. On 1-10-94, the Election Officer scrutinized the nomination papers. At the time of scrutiny, the non-applicant No. 1 filed his objection to the acceptance of nomination papers of the applicant. The objection of the non- applicant No. 1 was not accepted by the Election Officer. Subsequently, in the election, the applicant was declared to be elected for Ward No. 41, Murwara (Katni). The claim of the non- applicant was based on the ground that the applicant was not a member of the backward class for which the Ward No. 41 was reserved. It is stated in the petition that the Ward No. 41, popularly known as Amar Shahid Hemu Kalani Ward', was reserved for backward classes, but the applicant could not have filed his nomination on the basis that he belonged to 'Soni' caste. It is stated in the petition that the Ward No. 41, popularly known as Amar Shahid Hemu Kalani Ward', was reserved for backward classes, but the applicant could not have filed his nomination on the basis that he belonged to 'Soni' caste. It was claimed that the applicant belonged to Sindhi community and the members of Sindhi community could not claim reservation on the basis that they belong to 'Soni' caste which was one of the backward classes as per the Notification No. F-8-5-twenty five-84, issued by the State Government, on 26th December, 1994 (see M.P.L.T./Part-II, at page 73) under Articles 15(4) and 16(4) of the Constitution of India. The petition was mainly directed against the acceptance of the nomination of applicant and the rejection of the objection tiled by the non-applicant No. 1. It was also claimed that the State Government had issued direction to the Collectors to the effect that people belonging to Sindhi community could not be treated as members of the other backward class. It was further averred that the use of word 'Soni' for denoting his caste by a party would not automatically make him a member of the other backward class. It was stated that certain persons of upper castes like 'Gahoi Vaishya' also claim themselves to be belonging to 'Soni' caste, but they cannot be treated as 'Soni' belonging to other backward class. It is not necessary to mention any other allegation made in the Election Petition for the purpose of decision of this revision. 4. The defence of the applicant and the non-applicant No. 2 was that their forefathers had shifted from Pakistan as displaced persons to Murwara (Katni) in India in the year 1948. The applicant stated that he was born in the year 1948 at Katni. He belongs to 'Soni' caste of Sindhi community. He further stated that the members of 'Soni' caste of Sindhi community also reside at Balaghat and Raipur. 5. In this case, the Election Officer also filed his reply. He claimed that he had accepted the nomination of the applicant Devidas Sindhi on the report issued by the Revenue Inspector. 6. On these main allegations, one of the issues framed by the Election Tribunal was - if the applicant and the non-applicant No. 2 were not the members of the other backward class. He claimed that he had accepted the nomination of the applicant Devidas Sindhi on the report issued by the Revenue Inspector. 6. On these main allegations, one of the issues framed by the Election Tribunal was - if the applicant and the non-applicant No. 2 were not the members of the other backward class. The other issue was to the effect whether the Election Officer could have accepted the nomination papers of the applicant without the certificate of the competent authority. The Election Tribunal has held against the applicant while deciding these two issues and held that the nomination of the applicant could not have been accepted by the Election Officer and that he did not belong to other backward class by name 'Soni' and, therefore, he could not contest the election from Ward No. 41, Murwara (Katni). His election was, accordingly, set aside. 7. In this revision, the learned counsel for the applicant has tried to assail the conclusion of the Election Tribunal on the ground that there was sufficient evidence on record for holding that the applicant belonged to 'Soni' caste. It was further contended that under the rules of election for election of the Municipal Corporation there was no rule providing that the applicant was required to file a certificate from the competent authority. Therefore, the Election Officer had validly accepted the nomination of the applicant and his election could not be set aside by the Election Tribunal. 8. The main question for decision in this revision is - if the applicant is right in his submission merely because he belonged to 'Soni' caste of Sindhi community, he could be covered by the Item No. 32 of the Notification aforesaid issued under Articles 15(4) and 16(4) of the Constitution of India. 9. The finding recorded by the Election Tribunal is that the applicant belonged to the Sindhi community from Sindh province (Now, part of Pakistan) in the wake of Hindu-Muslim holocaust which took the shape of riots, through out the 'country' on the eve of partition of former India into two countries : Pakistan and India. By and large, this community settled at Murwara (Katni) at that time. Thereafter, they have continued to live there. This fact is not in dispute. By and large, this community settled at Murwara (Katni) at that time. Thereafter, they have continued to live there. This fact is not in dispute. On the aforesaid facts, it was argued that 'Sindhis' at Katni became the part of the main stream of community as they were well entrenched there for more than fifty years. There was no reason to hold that the Item No. 32 of the Notification (ibid) excluded 'Soni' belonging to Sindhi community and included those 'Sonis' only who were residing in the various regions, in Madhya Pradesh from the very inception. 10. Having heard the learned counsel for the parties and after going through a number of books, the census report and the record of the case, this Court comes to the conclusion that the view taken by Election Tribunal cannot be interfered with in this revision. The applicant himself has filed a Family Directory of "Madhya Pradesh Sindhi Suvichar Sonara" before the Election Tribunal, which was marked as Ex. P-6. It appears from this book that the following are the denominations of the Sindhi Sonara Samaj :- "Valecha, Pahuja, Koira, Dudinyan, Mahinya, Singhad, Dhera, Dhalnaja, Rupadja, Moorpana, Moodirya, Kateja, Iadula, Basira, Rughta, Gamtu, Bhoneja, Luliyan, Raunsh". It is obvious that the persons carrying on the business of 'goklsmithy', were known as 'Sonara' in Sindhi language. They were not known as 'Sonis' in Sindh. Subsequently in Madhya Pradesh, they called themselves 'Sonis' or sometimes, 'Swarnakars'. For example, some persons who are 'Valechas', 'Katejas', 'Pahujas' etc. are calling themselves as 'Sonis'. This fact would be clear from the photographs of husbands and wives reproduced in the said Directory itself. Therefore, the question is - if the Item No. 32 of the Notification under Articles 14 and 16 of the Constitution of India was meant to apply to Sindhis, who adopted the 'Soni' surname after their migration to Madhya Pradesh. The Item No. 32 (ibid) was meant to apply to caste known as 'Sonis' in Madhya Pradesh. The Sonis must have started their business in gold far back in time when it must have been a profession. The group continued its profession from time immemorial and began to show the characteristics of caste by social stratification. Weathering the onslaughts of time, the group became solid as a rock. The Sonis must have started their business in gold far back in time when it must have been a profession. The group continued its profession from time immemorial and began to show the characteristics of caste by social stratification. Weathering the onslaughts of time, the group became solid as a rock. It could be identified as a caste because after a considerable period of time, not within the span of the human memory it gave itself a caste name like 'Soni'. A caste has to be judged as a group of human beings wherein the individuals surrender their identities to group behaviour especially, in the matter of marriage. The group believes that the marriage outside the caste would drown its identity as a homogenous unit. Thus, the most important taboo is that a member of caste is prohibited from marrying outside the caste. In some castes there is taboo of marriage beyond the sub-caste. There are other taboo in various castes and sub-castes. The Court has culled out only that taboo which preserves the ethnic identity of a caste and, in its absence, there may not exist an institution like a caste. It is clear from the Notification dated 16-12-1984 that schedule is based on caste, sub-caste or denominations classified as a group. The Item No. 32 is as follows :-- ^^lksukj] lqukj] >k.kh] >kM+h] Lo.kZdkj] vof/k;k] lksuh Lo.kZdkj** The Item No. 32 was made exhaustive as far as possible because it applied to entire Madhya Pradesh, which is a sprawling State having varieties of group identies called by different names. It is obvious that the word 'Soni' was meant to be applied to that group of people who are settled in Madhya Pradesh and calling them as 'Sonis' from the time, which has lost itself in the mists of antiquity. It is not within the realm of human memory when a group of people began to call itself 'Soni' or 'Swarnakar'. Same principle applies to other groups in Item No. 32 and generally speaking to the Notification itself. Therefore, 'Sonaras' who began to call themselves as 'Sonis' after migration to India just after partition, could not become 'Sonis' by giving themselves a 'name'. The 'Sonars' is their correct name and, therefore, the Notification should have included the word 'Sonaras' for their recognition, as members of other backward class. Therefore, 'Sonaras' who began to call themselves as 'Sonis' after migration to India just after partition, could not become 'Sonis' by giving themselves a 'name'. The 'Sonars' is their correct name and, therefore, the Notification should have included the word 'Sonaras' for their recognition, as members of other backward class. The Notification includes other denominations of the castes of goldsmiths like >k.kh] >kM+h vof/k;k or vkSf/k;k- It is not function of the court to add any word to the Notification or in the garb of interpretation to enlarge its scope. The Item No. 80 of the Notification indicates that 'Harijans' belonging to Sikh religion were accepted as other backward castes. However, on the basis of this item alone it cannot be argued that because the members of Sindhi community are 'Hindus' and they do not deny that they are Hindus unlike Sikhs, it was not necessary to mention their identity separately. This argument cannot be accepted because the 'Sonaras' of Sindhi community were never known as 'Sonis' in Sindh. They were known as 'Sonaras' and for this reason, they cannot be adopted as 'Sonis'. 11. Moreover, the evidence on record showed that the certificate filed by the applicant was obtained from Patwari which has been found to be based on certain certificates given to him by the applicant, Devidas. The Tahsildar F.R. Panda, P.W. 8 refused to have given the applicant a caste certificate. The two Notifications mentioned in the paragraph 10 of the order, passed by the Tribunal do not authorise a Patwari or Revenue Inspector to issue a caste certificate. Such certificate is to be issued by an officer not below the rank of Tahsildar. In view of this matter, Election Officer should have rejected the nomination papers of the applicant then and there. In case, the evidence led by the applicant showed that Sonara have begun to call themselves as 'Sonis', this fact, by itself is not enough. The more important thing is if they have been recognized as 'Sonis' by the 'Sonis' of Madhya Pradesh or in the alternative, the State had recognized them as the members of a backward class. As to the first, the Ex. P-6 belies their case. They do not inter-marry with 'Sonis' of Madhya Pradesh as would be clear from the photographs and addresses of the married couples in the book Ex. P-6. It is also clear from Ex. As to the first, the Ex. P-6 belies their case. They do not inter-marry with 'Sonis' of Madhya Pradesh as would be clear from the photographs and addresses of the married couples in the book Ex. P-6. It is also clear from Ex. P-7 that Ram Chand Jadwani, President of Sindhi Central Panchayat, Katni, had made a request to Dinesh Singh Yadav, the member of the Backward Commission, to include among others, members of 'Sonara' caste as members of other backward class. It appears that the Commission did not accept 'Sonara' of Sindhi community as members of the other backward class. So long as the 'Sonaras' were not recognized members of other backward class, they cannot masquerade as such by calling themselves as 'Sonis'. The 'Sonis' of Madhya Pradesh are endemic to the state of Madhya Pradesh and they have recognized as such in Notification as members of backward class alongwith other sub-castes. The 'Sonaras' who may have followed the profession of goldsmithy in Sindh from time immemorial and got stratified into a caste there, cannot automatically become 'Sonis' on migration to the State of Madhya Pradesh. They may claim to be a separate group of Sindhi goldsmiths which, in fact, they may be originally, and get themselves recognized as a members of other backward class from the State by amendment of the Notification. They cannot gate crash into that class by changing the name of their caste which was known as 'Sonaras' suo motu, to 'Sonis'. 12. As a consequence of the aforesaid discussion, this Court does not find any merit in this revision. The revision fails and it is, accordingly, dismissed. No order as to costs.