WILSON READE Vs. C.S. BOOTH AND ORS.
LAWS(GAU)-1958-4-11
HIGH COURT OF GAUHATI
Decided on April 02,1958

Wilson Reade Appellant
VERSUS
C.S. Booth And Ors. Respondents


Referred Judgements :-

NARANTAKATH AVULLAH V. PARAKKAL MAMMU [REFERRED TO]
GHATTURBHUJ VITHALDAS JASANI VS. MORESHWAR PARASHRAM [REFERRED TO]





JUDGEMENT

G. Mehrotra, J. - (1.)THIS is an appeal under the Representation of the People Act against the decision of the District Judge, Lower Assam Districts - Member Election Tribunal, dismissing the Election petition filed by the Appellant. The Appellant filed a petition under Section 81 of the Representation of the People Act, seeking a declaration that the election of Jormanik - Respondent No. 3, to the Assam Legislative Assembly from the Nongpoh Constituency in the last general election, be held void.
The Nongpoh constituency is within the autonomous district of Khasi and Jaintia Hills and the seat is reserved for a member of the scheduled tribe of that district. On 20 -1 -1957 or sometime before that, nominations were filed for that seat on behalf of the Appellant Wilson Reade, Aroon Aley, Respondent No. 2 and Jormanik Respondent No. 3.

The Appellant was the nominee of the political party called the Eastern India Tribal Union, Respondent No. 2 was the Congress nominee and the Respondent No. 3, who is the present Siem of Mylliem State was an independent candidate. The scrutiny of the nomination papers was held on 1 -2 -1957 and on that date, the nomination paper of the Appellant was rejected on the ground that the Appellant was an Anglo -Indian within the meaning of the word as defined in Article 366(2) of the Constitution and was thus not a member of the scheduled tribe and was not entitled to be nominated as a candidate for the reserved seat for the members of the tribe.

Thereupon, the elections were held and Respondent No. 3 was declared duly elected. The present petition was then filed challenging the election of the Respondent No. 3 on the ground that the nomination paper of the Appellant was wrongfully rejected. The said petition was forwarded to the District Judge, Lower Assam Districts, as the Member of the Tribunal for disposal. The Tribunal held that the Appellant was not a member of the Khasi tribe and thus his nomination was rightly rejected. The main issue decided by the Tribunal was that the Petitioner was not a member of the scheduled tribe.

(2.)ARTICLE 332 of the Constitution provides as follows:
(1) Seats shall be reserved for the Scheduled castes and the Scheduled Tribes, except the Scheduled Tribes in the tribal areas of Assam, in the Legislative Assembly of every State. (2) Seats shall be reserved also for the autonomous districts in the Legislative Assembly of the State' of Assam.

Sub -section (4) of Article 332 deals with the number of seats reserved for an autonomous district in the Legislative Assembly of the State of Assam and provides that it shall bear to the total number of seats in that Assembly a proportion not less than the population that the district bears to the total population of the State.

Sub -section (5) provides that the constituencies for the seats reserved for any autonomous district of Assam shall not comprise any area outside that district except in the case of the constituency comprising the cantonment and municipality of Shillong. Sub -section (6) provides that no person who is not a member of a Scheduled Tribe of any autonomous district of the State of Assam shall be eligible for election to the Legislative Assembly of the State from any constituency of that district except from the constituency comprising the cantonment and municipality of Shillong.

These sub -sections therefore make it clear that for the seats reserved for the autonomous districts of Assam, persons who are members of the Scheduled Tribe are eligible to seek election. Article 342 then provides as to which of the Tribes will be regarded as Scheduled Tribe. The said article reads as follows:

The President may, with respect to any State, and where it is a State specified in Part A or Part B of the First Schedule, after consultation with the Governor or Rajpramukh thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State.

In the exercise of the powers conferred by Article 342, the President issued an order known as the Constitution (Scheduled Tribes) Order, 1950. In the Schedule attached to this order in part I Assam Autonomous Districts, the following tribes were notified as the Scheduled Tribes: (1) Dimasa (Kachari), (2) Garo, (3) Hajong, (4) Khasi and Jaintia, (5) Any kuki tribes, (6) Lakher, (7) Any Lushai (Mizo) tribes, (8) Mikir, (9) Any Naga tribes and (10) Synteng.

There has been a subsequent amendment in the schedule, but for the purpose of this case, it is not necessary to refer to that amendment by which certain other tribes have been included. We are however, concerned with the Khasi and Jaintia tribes as the Appellant claims to be a member of the Khasi tribe and as such entitled to seek election to the reserved seat. The Khasi tribe has nowhere been defined.

Under the Constitution, the Khasi tribe has been notified as the tribe entitled to a reservation of seat under Article 342. The only question therefore to be considered is whether the Appellant has established by evidence on record that he is a member of the Khasi tribe. If he is, his nomination obviously was wrongfully rejected. It should be at this stage pointed out that the sole ground on which the Returning Officer decided that the Appellant was not entitled to claim a right to be nominated for the reserved seat for Khasi tribe was that the Appellant got himself enrolled in the Auxiliary Force in the allegation that he was a British descent in the male line and thus calling himself an Anglo -Indian.

According to the Returning Officer, as the Appellant called himself an Anglo -Indian and thus got himself enlisted in the Auxiliary Force, he was debarred from claiming himself to be a member of the Khasi tribe. In our opinion, the entire approach to the question by the Returning Officer as well as the Tribunal has been fallacious.

The only question which had to be determined was whether the Appellant could be regarded a member of the Khasi tribe under the Constitution. That is a question of fact depending upon the evidence produced in the case. It will have to be inferred from the totality of circumstances. It is an admitted fact that the father of the Appellant late James Alfred Reade was an English man who married late Ka Lainshap Phanwar a Khasi woman. The Appellant had never seen his father. He has, from his childhood, lived among the Khasis and excepting a daughter of his, who has married a Bengali and another who married an American, all his children are married to Khasis. He alleges that one of his sons has married the daughter of Siem of Cherra. The Appellant himself has married a Khasi woman. He also asserts that his wife and Respondent No. 3 were born of the same father.

He has further alleged that under the practice prevalent among the Khasi Tribal people, any one who was born of a Khasi mother was regarded as a member of the Khasi tribe. The Appellant occupied an important position among the Khasis and was a founder -member of a political organisation called the "Khasi National Durbar", which came into existence on the 4th September, 1923.

He was also a member of the executive Committee of the said Durbar. He was the President of the said Durbar at the time when the case was decided by the Tribunal. He is also a member and treasurer of the District Tribal Union which is a branch of the Eastern India Tribal Union and was a member of the delegation that gave evidence before the State Re -organisation Commission.

He was also an elector and treasurer of the Federation of the Khasi States. He was also a candidate both for the Parliament and the State Legislative Assembly of Assam as a member of the Khasi tribe and had filed his nomination in the last election, which was accepted. On these facts, he has contended that it has been amply proved by the materials on the record that he is a member of the Khasi Tribe, and could validly seek election to the reserved seat for the members of Khasi Tribe.

(3.)THE Tribunal came to certain findings of facts and before examining the evidence ourselves, it will be necessary to refer to those findings. The counsel for the Appellant had contended before the Tribunal that the Khasis being matriarchal in descent, the Appellant acquired the domicile of his mother by birth as a legal incident and he continued to retain that domicile in the matter of personal law.
The Tribunal was in substance right in holding that the question of the Petitioner's domicile was by itself not enough to confer any particular status on him. But it is certainly an element in determining the fact as to whether the Petitioner was regarded as a member of the Khasi tribe or not. After examining the law on the point, the Tribunal came to the finding that although it could not be said that the Khasi tribe being matriarchal, the Appellant necessarily acquired the mother's domicile at birth to the total obliteration of the domicile of his patriarchal father, still the Petitioner could claim his mother's domicile at birth.

He also held that according to the Khasi customary law, mere living as husband and wife constituted a valid marriage and that the marriage between late James Alfred Reade, the father of the Petitioner and late Ka Lainshap was a valid one. He also concluded that the intention that the children should take the domicile of the father was absent in this case and it was open to the Petitioner to claim that "at birth it was the domicile of his mother that clung to him."

Having held that the Tribunal seems to think that the Appellant, after attaining majority, made some sort of choice & claimed descent from European British subject in the male line and thus he forfeited his rights to claim the domicile of his mother. His finding seems to be based entirely on the consideration that from 1918 till about 194C, the Petitioner was enjoying the privileges of an Anglo Indian or a British subject of European descent in the male line; but even so, though an Anglo Indian, the Petitioner clearly falls within the sub -group - Anglo -Khasi.

After having held that, it is difficult to follow what he means by saying that though an Anglo Khasi, in the matters of personal law, he is still governed by the Khasi law and usage. There is no sub -division of a Khasi clan called an Anglo -Khasi. An Anglo -Khasi is an expression which in a common parlance, indicates a mixture of blood. There may be a marriage between a Khasi and an European and the children born of such a marriage, may be called Anglo -Khasi; but that by itself is not enough to exclude them from the membership of the Khasi tribe. Whether they can be regarded as Khasi tribal, will be determined by the evidence produced in the case.



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