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HIGH COURT OF KARNATAKA
THE HONOURABLE MRS. JUSTICE B.V. NAGARATHNA
Mrs. Shantha Naik
Versus
Smt. Rajeevi & Others
WRIT PETITION No. 36558 of 2010 (LB-ELE)
Decided on : 18-01-2011
KARNATAKA PANCHAYAT RAJ ACT, 1993 - Section 19(1)(a): [B.V.Nagarthna,J] Election Petition under - Order passed by the Trial Court holding that as on the date of the election, the Petitioner did not belong to Scheduled Tribe Category and she was disqualified to contest in the Scheduled Tribe Category - Claim of the Petitioner though she is a member of the Scheduled Caste by birth, she had acquired the caste of her husband i.e. Scheduled Caste, to contest the Gram Panchayat Elections - Challenge to the election of the Petitioner - Held, A person acquires his cast status by birth and not by marriage. As far as a Hindu is concerned, caste is determined by birth and not by marriage and by marriage, the husband’s caste may be recognized for Customary Social or other purposes, but for claiming reservation under the Constitution and other such Constitutional benefits, the caste at the time of birth has to be taken into consideration. In the present case, the Petitioner belongs to Scheduled Caste by birth and after her marriage her husband’s caste being Scheduled Tribe, she claims to belong to Scheduled Tribe Caste. Under the circumstances, it was held that she was not entitled to take part in election to the seat reserved for Scheduled Tribe. Further held, The reliance placed by the petitioner on the Caste Certificate which was issued to her stating that she belong to Scheduled Tribe could not have been relied upon by the Petitioner in support of her status as a Scheduled Tribe and the same would have been useful to her social purpose only. But for seeking reservation of a seat for the purpose of election in the instant case or for any benefit under the Constitution, a person could claim such reservation only if she is a Scheduled Tribe by birth as in the present case, the said seat was reserved for Scheduled Tribe woman. Though petitioner belong to another depressed Class, that by itself would not give her the benefit of reservation as a Scheduled Tribe upon her marriage since reservation of post has to be strictly followed in terms of the particular caste for which it is made and the said caste is determined by birth. Therefore, the Trial Court was right in holding that as on the date of the election, the petitioner did not belong to Scheduled Tribe category and therefore, she was disqualified to contest the election in the said reserved category.
1. In this writ petition, petitioner has challenged the order dated 30/10/2010 passed by the Prl. Civil Judge & J.M.F.C., Mangalore, in Election Petition No.1/2010, which is produced at Annexure ‘A’ and he has also challenged the order dated 5/5/2010 passed by the Tahsildar – Respondent No.3, which is produced at Annexure ‘E’.
2. According to the petitioner, she is a member of the Bhovi community, a Scheduled Caste , by birth and was married to Sri Narayan Naik, a member of Scheduled Tribe on 7/3/1993 at Kateel as per the customary rights of the community; that she has been recognized as a member of her husband’s caste and accepted by the public as a member of the Naik Community. She filed her nomination as a candidate of Ward No.2 of Mogaru Village, which is reserved for Scheduled Tribe women, on 23/4/2010, to be elected a member of Ganjimutt Gram Panchayat. At the time of filing her nomination, she had attached a Caste Certificate issued by the Tahsildar, certifying that she belonged to Scheduled Tribe. On scrutiny, the same was accepted and she contested for the said election as per Section 17 of the Karnataka Panchayat Raj (Conduct of Elections) Rules, 1993 (hereinafter, referred to as the ‘Rules’). The election was conducted on 12/5/2010 and the petitioner was declared elected on 15/5/2010. The said election was challenged by respondent No.1 initially, seeking rejection of the nomination on the basis that she did not belong to she Schedule Tribe and thereafter, the election petition was filed before the Prl. Civil Judge, Mangalore, in Election Petition No. 1/2010 under Section 19 of the Karnataka Panchayat Raj Act, 1993 (hereinafter, referred to as the ‘Act’), by contending that as on the date of the election, the returned candidate was not qualified or in other words, was disqualified. The said ground raised in the Election Petition was under Section 19(1)(a) of the Act. The Election Petition was posted for trial. During the course of trial, the first respondent examined herself as P.W.1 and produced 10 documents, which were marked as Exs.P.1 to P.10 while the petitioner herein examined herself as R.W.1 and another witness was examined as R.W.2. On the basis of the said evidence, the trial Court held that first respondent herein had made out a case under Section 19 and 20 of the Act and while allowing the election petition, declared that the petitioner herein was disqualified to act as member of Ward No.2 of Mogaru village, Ganjimutt Grama Panchayat, Mangalore. It was also declared that respondent No.1 was duly elected and consequently, directions were issued that the first respondent was to act as the member of Ward No.2. The said order has been challenged in this writ petition.
3. I have heard the learned counsel Sri.Taranath Poojary for petitioner, learned counsel Ms. Jayana Kothari for respondent No.1 and the learned G.P. For respondents 2 and 3.
4. According to the petitioner, the trial Court was not right in holding that as on the date of the election, the petitioner was disqualified to contest the election for the post of member of Gram Panchayat and thereby, allowing the election petition. He has drawn my attention to various judgments of the Apex Court and also of the Division Bench of this Court to contend that a lady acquires the caste of her husband by marriage and that the said proposition was squarely applicable to the facts of the present case and it is on that premise that the Tahsildar had issued a caste certificate to the petitioner herein stating that she belonged or Scheduled Tribe and since the post in question were reserved for Scheduled Tribe woman, she was rightly entitled to contest for the said post. He submitted that although the petitioner was by birth belonging to Scheduled Caste but my marriage had acquired the caste of her husband and his proposition has been supported by various decisions of the Apex Court and under the circumstances, the trial Court has not appreciated the dec
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