Holding

The matter requires reconsideration by the Caste Scrutiny Committee as the appellant belongs to the Sutar caste, which is recognized as OBC, and her residency status before 1967 is uncertain.

Summary

Smt. Sau Kusum, claiming to belong to the carpenter caste (known as Badhai in Madhya Pradesh and Sutar in Maharashtra), contested a panchayat election in Maharashtra for a seat reserved for OBCs. Her election was challenged on the ground that she was not an OBC and not a permanent resident of Maharashtra prior to 1967. The Caste Scrutiny Committee initially refused to verify her caste claim, relying on a 1996 government circular, but later, after a High Court direction, found her to be a Sutar. The High Court dismissed her writ petition, holding that her residence status could not be established. On appeal, the Supreme Court held that since the Committee had identified her as Sutar—a caste recognized as OBC in both states—the issue of her residency and eligibility must be reconsidered, and the impugned orders were set aside, directing a fresh scrutiny with liberty to adduce evidence. The appeal was allowed.

Issues considered

Whether the appellant belongs to a caste recognized as OBC in Maharashtra and thus is eligible for a reserved panchayat seat.
Whether the appellant's migration to Maharashtra before 1967 makes her a permanent resident eligible to contest the election.
Whether the High Court erred in setting aside the Caste Scrutiny Committee's finding that the appellant is a Sutar.
Whether the matter should be remanded to the Caste Scrutiny Committee for fresh consideration with an opportunity to present evidence on the date of migration.

Legislation cited

Constitution of Indias. Art.341, s. Art.342, s. Art.366(24)

Subjects

Panchayat electionsOBC reservationCaste verificationMigrationPermanent residenceState reorganisationCaste Scrutiny CommitteeReserved seatElection eligibility

Judgment

[2008] 17 S.C.R. 675
..,,.
" SAU KUSUM A
v.
..
STATE OF MAHARASHTRA & ORS.
(Civil Appeal No. 7313 of 2008)

DECEMBER 16, 2008
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]

Election - Panchayat elections in State of Maharashtra
\.. - Reserved seat - Entitlement to contest - Of migrants to
State pursuant to re-organisation thereof - Appellant contested c
elections claiming OBC status stating that she belonged to
-r' carpenter caste - Family of appellant had purportedly
migrated from Madhya Pradesh to Maharashtra, after
reorganization of the two States - Election of appellant
challenged on ground that she did not belong to OBC - Caste
Scrutiny Committee relying upon a Government circular D
concluded that appellant was not a resident of Maharashtra
;
prior to 1967 and accordingly declined to verify her caste claim
- Writ petition - On direction of High Court, Scrutiny
Committee considered the matter afresh and concluded that
appellant was a 'Sutar' - Order of Scrutiny Committee placed E
before High Court - Writ petition ultimately dismissed - On
appeal, held: If people belonging to carpenter Caste are
recognized as OBC, both in Madhya Pradesh and
Maharashtra being 'Badhai' in former and 'Sutar' in latter and
since Caste Scrutiny Committee found appellant to be F
t· belonging to 'Sutar' caste, the matter requires reconsideration
- If appellant migrated to Maharashtra before 1967, she would
be considered to be a permanent resident of Maharashtra -
Matter to be considered afresh by Scrutiny Committee with
liberty to appellant to adduce evidence on the question as to
G
when she had migrated.
Appellant contested panchayat elections in
Maharashtra claiming OBC status stating that she
... '""' belonged to the carpenter caste, and was elected .
675 H

...
676 SUPREME COURT REPORTS [2008] 17 S.C.R.
e
A The family of appellant had purportedly migrated from
Chhindwara region in the State of Madhya Pradesh to
Nagpur in the State of Maharashtra, after a part of
Chhindwara region came to Maharashtra on
reorganization of the two States. People belonging to
8 carpenter Caste were purportedly recognized as OBC,
both in Madhya Pradesh and Maharashtra being Badhai
in the former and Sutar in the latter.
The election of appellant was challenged on ground
that she did not belong to OBC caste. In this regard, an
C application was filed before Caste Scrutiny Committee.
The Scrutiny Committee arrived at a finding as regards
the parentage of appellant and relying upon a circular
issued by the State of Maharashtra dated 21.8.1996
concluded that appellant was not a resident of
Maharashtra prior to 1967 and accordingly declined to
D verify her caste claim.
Aggrieved, appellant filed writ petition. On an interim
direction of the High Court, the Scrutiny Committee
considered the matter afresh and concluded that
appellant was a 'Sutar'. The order of the Scrutiny
E Committee was placed before High Court, which
ultimately dismissed the writ petition.
In appeal to this Court, it was contended that the
High Court failed to consider that even the Caste Scrutiny
Committee opined that the appellant was a 'Sutar', which
F comes within purview of OBC in the State of Maharashtra
and, thus, the said decision could not have been set aside
by High Court and that too in the writ petition filed by the
appellant.
Allowing the appeal, the Court
G
HELD: 1.1. If it is a fact that the people belonging to
the carpenter Caste are recognized as OBC, both in
Madhya Pradesh and Maharashtra being Badhai in the
former and Sutar in the latter and keeping in view of the
fact that the Caste Scrutiny Committee has found
H
... SAU KUSUM v. STATE OF MAHARASHTRA & ORS. 677

A
appellant to be belonging to the Sutar caste; the matter
requires reconsideration. [Para 11) [684-C]
\
1.2. There is nothing on record to show as to when
appellant had migrated to the State of Maharashtra. If she
had migrated to the State of Maharashtra before 1967, she
would be considered to be a permanent resident of 8
Maharashtra. [Para 12) [684-G]
1.3. It is one thing to say that appellant, being not a
t permanent resident of the State, would not be entitled to
contest any election. If she is to be conferred the said
c
...
status, she will be entitled to all the benefits to which
members of the said caste are entitled to but would also
be entitled to other benefits i.e. not the benefit to contest
_.. in the reserved categories of the election of the
panchayat alone but other benefits as well. [Para 14) [685-
A-BJ ,
D
1.4. Interest of justice wou(~ ~e subserved if the
: impugned orders are set aside and the matter is directed
'
to be considered afresh by the Caste Scrutiny Committee
wherein the appellant may be permitted to adduce
evidence inter alia on the question as to when she· had
E
migrated. Further if the appellant is aggrieved by the
finding of the Caste Scrutiny Committee in regard to her
parentage, she would undoubtedly be entitled to file a
suit for an appropriate declaration. [Para 15] [685-C-D]
Sudhakar Vithal Kumbhare v. State of Maharashtra and
F
Others [(2004) 9 SCC 481), relied on.
•j:-'
Union of India and others v. Dudh Nath Prasad [AIR 2000
SC 525: (2000) 2 SCC 20 and Hitesh Dasiram Murkute v.
State of Maharashtra and others [2007 (5) Mah LJ 454),
referred to.
G
Case Law Reference:
AIR 2000 SC 525 referred to · Para 8
....... s
c2004) sec 481 relied on Para 9
.... 2007 (5) Mah LJ 454 referred to Para 11
CIVIL APPELLATE JURISDICTION : Civil Appeal No . H

.._
A
678

7313 of 2008.
SUPREME COURT REPORTS [2008] 17 S.C.R.
- --
-:)
From the Judgment and final Order dated 22.09.2005 of _
the High Court of Judicature at Bombay, Nagpur in Writ Petition
No. 14 of 2005.
B Dr. Rajeev B. Mosadkar and Anil K. Jha for the Appellant.

Asha G. Nair, Gargi Khanna and Varinder Kumar Sharma
for the Respondents.
f
y

The Judgment of the Court was delivered by
c S.8. SINHA, J. 1. Leave granted.
..,
2. Appellant claims to be belonging to the carpenter caste. ';

According to her, she hails from the Vidarbha area which is the
border area of the State of Madhya Pradesh and Maharashtra.
D Carpenters in the State of Madhya Pradesh are known as
'Badhai', whereas in the State of Maharashtra, they are known
as 'Sutar'. Their occupation is said to be the same. According i
to appellant, in both the States, people belonging to the said
caste are entitled to be considered as Other Backward Class
(OBC).
E
3. It is not known when the family of the appellant migrated
from the State of Madhya Pradesh to the State of Maharashtra.
Inter alia on the premise that she belongs to OBC, she
contested an election for a Member of Panchayat in Village
F Chincholi. The post of Sarpanch was reserved for the OBC
category candidates. She was elected in the said category. An --)-

application, however, was filed before the Caste Scrutiny
Committee by respondent No. 4 contending that she does not
belong to the OBC category and, therefore, could not have
been elected.
G
4. The Caste 'scrutiny Committee relying on or on the
basis of a purpocied circular letter issued by the State of
Maharashtra dat~q 21.08.1996 refused to go into the said ,>'

question holding /that the appellant is not the daughter of ...,._
H Gulabrao Deulkar but was the daughter of Marotrao Chindhuji

:-
SAU KUSUM v. STATE OF MAHARASHTRA & ORS. 679
.. [S.B. SINHA, J.]

Shingnapure. Marotrao Chindhuji Shingnapure was a resident A
of Madhya Pradesh and as such she is not a resident of
'-.-
Maharashtra prior to 1967. It was, therefore, held:

"As per the directions given in Govt. Circular dated 21st
August 1996, those candidates who are not residents of
Maharashtra, the caste claim should not be verified. B
Therefore, Smt. Kusum Akotkar is not the resident of
Maharashtra prior to 1967; her caste claim cannot be
~ verified. Hence this decision. The candidate has submitted
"' the documents in respect of her residence are doubtful.
Therefore the Committee has decided not to verify her c
.. caste claim."
5. Aggrieved by and dissatisfied therewith, she filed a writ
petition before the High Court of Judicature at Bombay, Nagpur
Bench, Nagpur. By an interim order dated 1.04.2005, a Division
Bench of the said,Court, directed: 0

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

In the course of hearing, we are of the opinion that
respondent No. 2, rather than refusing to examine the caste
claim of the petitioner on the ground that she was not the F
resident of Maharashtra prior to 1967, should scrutinize the
*' caste claim of the petitioner and give its finding. In so far
as the issue of the petitioner being a resident of
Maharashtra prior to 1967 or not is concerned, the same
can thereafter be considered by this Court.
G
We, therefore, direct the petitioner to appear before
respondent No. 2 on 25-4-2005 at 11 a.m. and extend all
~
possible co-operation to respondent No. 2 in getting her
caste claim examined.
""
H
680 f SUPREME COURT REPORTS [2008] 17 S.C.R.
e
~

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

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

B 6. Pursuant thereto or in furtherance of the said direction,
the Caste Scrutiny Committee considered the matter afresh.
"
By an order dated 5.07.2005, it was h.eld:

"The school certificate of Smt. Kusum Vithalrao Akotkar f

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

7. The said order of the Caste Scrutiny Committee was
placed before the High Court, and by reason of the impugned
.
judgment the writ petition was dismissed, opining:

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

8. Before the Division Bench, reference was made to a
decision of this Court in Union of India and others v. Dudh Nath
G
Prasad [AIR 2000 SC 525 : (2000)
~ . 2 SCC 20], which
according to the Division Bench was of no assistance to, the
app~l.lant in view of the peculiar facts obtaining therein.
.>-
9. Dr. Rajeev B. Masodkar, learned counsel appearing on
behalf of the appellant, would submit that the High Court ""
H committed a serious error insofar as it failed to take into
SAU KUSUM v. STATE OF MAHARASHTRA & ORS. 681
[S.B. SINHA, J.]

consideration that even tt1e Caste Scrutiny Committee opined A
that the appellant is a 'Sutar', which comes within the purview
of the OBC in the State of Maharashtra and, thus, the said
decision could not have been set aside by the High Court and
that too in the writ petition filed by the appellant.
The learned counsel would contend in that view of the B
matter the High Court must be held to have committed a
serious error in refusing to follow the decision of this Court in
Dudh Nath Prasad (supra), wherein this Court held:

"17. The word "reside" came to be considered by this C
Court in Jagir Kaur v. Jaswant Singh 1 in the context of
the jurisdiction of the Magistrate under Section 488 of the
Code of Criminal Procedure, 1898, for entertaining the
petition of a wife for maintenance. After considering the
meaning of the word "reside" in Oxford Dictionary, which
we have already set out above, the Court observed as D
under:
"The said meaning, therefore, takes in both a permanent
dwelling as well as a temporary living in a place. It is,
therefore, capable of different meanings, including domicile E
in the strictest and the most technical sense and a
temporary residence. Whichever meaning is given to it,
one thing is obvious and it is that it does not include a
casual stay in, or a flying visit to, a particular place. In short,
the meaning of the word would, in the ultimate analysis,
depend upon the context and the purpose of a particular F
statute. In this case the context and purpose of the present
statute certainly do not compel the importation of the
concept of domicile in its technical sense." (emphasis
supplied)
G
*** *** ***
29. We have already explained the meanings of the words
"ordinarily resident" and have found that notwithstanding
that the parents of the respondent lived at one time in a
village in District Siwan in the State of Bihar and that they H
"·
682 SUPREME COURT REPORTS [2008] 17 S.C.R.

A owned some property there also, they had shifted to the
State of West Bengal long ago and had been living there
since then. For all intents and purposes, therefore, they
shall be treated to be "ordinarily residing" in the State of
West Bengal. For the State of West Bengal, the President,
B in exercise of his powers under Article 341 (1) read with
Article 366(24) had already declared the "Nuniya" caste
as a Scheduled Caste and, therefore, the respondent was
rightly treated to be a Scheduled Caste candidate and was
rightly appointed against a reserved vacancy, after being
declared successful at the examination held by UPSC for
c the Indian Administrative and Allied Services in 1966."
It was urged that even if appellant is said to have migrated
from Chhindwara to Nagpur as was contended by the
complainant having regard to the fact that a part of that area
0 was transferred to the State of Maharashtra upon reorganization,
the principles laid down by this Court in Sudhakar Vithal
Kumbhare v. State of Maharashtra and Others [(2004) 9 SCC
481] should have been applied.
10. In Sudhakar Vithal (supra), this Court took into
E consideration the peculiar situation obtaining that the border
areas of a State where a part of the territory is transferred and
a part of the territory remained may be inhabited by the people
of same group having same traits and culture, holding:
"5. But the question which arises for consideration herein
..
I

F appears to have not been raised in any other case. It is
not in dispute that the Scheduled Castes and Scheduled
Tribes have suffered disadvantages and been denied
facilities for development and growth in several States.
They require protective preferences, facilities and benefits
G inter alia in the form of reservation, so as to enable them
to compete on equal terms with the more advantaged and
developed sections of the community. The question is as
to whether the appellant being a Scheduled Ttibe known
as Halba/Halbi which stands recognized both in the State
H of Madhya Pradesh as well as in the State of Maharashtra
SAU KUSUM v. STATE OF MAHARASHTRA & ORS. 683
[S.B. SINHA, J.]

having their origin in Chhindwara region, a part of which,, A
on States' reorganisation, has come to the State o:f
;-
;., Maharashtra, was entitled to the benefit of reservation. It
is one thing to say that the expression "in relation to th*
State" occurring in Article 342 of the Constitution of lndi~
should be given an effective or proper meaning so as t; 8
exclude the possibility that a tribe which has been include
as a Scheduled Tribe in one State after consultation with
the Governor for the purpose of the Constitution may nqt
~,,.,-
get the same benefit in another State whose Governor ha~

.,
9'
not been consulted; but it is another thing to say that wheh
an area is dominated by members of the same tribe
belonging to the same region which has been bifurcated,
the members would not continue to get the same benefit
c

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

...:. 7. In view of fact that the appellant's case was not referred
to the appropriate Committee, the judgment and order
'· under challenge deserves to be set aside. It will be open
H
684 SUPREME COURT REPORTS [2008] 17 S.C.R.
e
A to the Maharashtra State Electricity Board to refer the
matter to the Scrutiny Committee for verifying the eligibility
of the appellant. We direct that the appellant shall be
-r
reinstated forthwith as Assistant Engineer and shall
continue to hold the said post till the matter is decided by
B the Committee. The appeal is allowed on the
aforementioned terms. There shall be no order as to
costs."
11. In that view of the matter, if it is a fact that the people 'o--
,
belonging to the said Caste are recognized as OBC, both in
c Madhya Pradesh and Maharashtra being Badhai in the former
and Sutar in the latter and keeping in view of the fact that the ...
Caste Scrutiny Committee has found her to be belonging to the r-
Sutar caste, we are of the opinion that the matter requires
reconsideration.
D It may be· noticed that the Bombay High Court also in
Hitesh Dasiram Murkute v. State of Maharashtra and others
[2007 (5) Mah LJ 454] opined: t

"(iv) Date too is equally relevant in order to identify the
person as belonging to caste included in the schedule on
E the date of such inclusion with reference to locality identified
in the schedule. Therefore, a person claiming benefit would
have to show that his ancestors hailed on the date of
inclusion of caste in schedule from a place identified in the
schedule. In other words, the relevant date is not date of le
F migration but date of inclusion of caste or tribe in the '
schedule." -Jr ;
'
'12. There is nothing on record to show as to when she had
migrated to the State of Maharashtra. l,f admittedly she had
migrated to the State of Maharashtra before 1967, she would
'G be considered to be a pe.rmanent resident of Maharashtra.
13. Dr. Masodkar states that the appellant had been
residing in Maharashtra for a long time and, thus, there is no >'
reason as to why she should not be held to be a permanent "
H resident.
SAU KUSUM v. STATE OF MAHARASHTRA & ORS. 685
[S.B. SINHA, J.]

14. It is one thing to say that she, being not a permanent A
resident of the State, would not be entitled to contest any
election. If she is to be conferred the said status, she will be
entitled to all the benefits to which members of the said caste
are entitled to but would also be entitled to other benefits i.e.
not the benefit to contest in the reserved categories of the 8
election ofthe panchayat alone but other benefits as well.
15. We, therefore, are of the opinion that interest of justice
would be subserved if the impugned orders are set aside and
the matter is directed to be considered afresh by the Caste
Scrutiny Committee w@rein the appellant may be permitted to , c
adduce evidence inter alia on the question as to when she had
migrated. We may further observe that if the appellant is
aggrieved by the finding of the Caste Scrutiny Committee in
regard to her parentage, she would undoubtedly be entitled to
file a suit for an appropriate declaration.
D
16. For the reasons aforementioned, the appeal is allowed
to the aforementioned extent. But, in the facts and
circumstances of the case, there shall be no order as to costs.
B.B.B. Appeal allowed.