Kerala High Court
Nidha Fathima B H vs Union Territory Of Lakshadweep on 31 May, 2024
Author: T.R.Ravi
Bench: T.R.Ravi
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 31ST DAY OF MAY 2024 / 10TH JYAISHTA, 1946
WP(C) NO. 7331 OF 2024
PETITIONER:
NIDHA FATHIMA B H
AGED 20 YEARS
D/O VALIYABI B H, BAITHUL HUDA HOUSE,
AMINI ISLAND,
UNION TERRITORY OF LAKSHADWEEP, PIN - 682 552
BY ADVS.
S.MOHAMMED AL RAFI
THAJUNA MARIA FRANCIS
RESPONDENTS:
1 UNION TERRITORY OF LAKSHADWEEP
REPRESENTED BY ADMINISTRATOR,
SECRETARIAT BUILDING, KAVARATTI,
UNION TERRITORY OF LAKSHADWEEP, PIN - 682 555
2 THE EXECUTIVE MAGISTRATE
AMINI ISLAND,
UNION TERRITORY OF LAKSHADWEEP, PIN - 682 552
3 THE SUB DIVISIONAL OFFICER
AMINI ISLAND,
UNION TERRITORY OF LAKSHADWEEP, PIN - 682 552
4 UNION OF INDIA
REPRESENTED BY SECRETARY, MINISTRY OF TRIBAL
AFFAIRS,RAJENDRA PRASAD ROAD,
SHASTRI BHAWAN, NEW DELHI, PIN - 110 001
5 NATIONAL TESTING AGENCY
REPRESENTED BY ITS DIRECTOR, FIRST FLOOR,
NSIC-MDBP BUILDING, OKHLA INDUSTRIAL ESTATE,
NEW DELHI, PIN - 110 020
BY ADVS.
SAJITH KUMAR V.
NIRMAL S
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
31.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 7331 OF 2024
2
T.R.RAVI.J
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WP(C) No.7331 of 2024
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Dated this the 31st day of May, 2024
JUDGMENT
The writ petition is filed praying for a direction to
the 2nd respondent to issue Scheduled Tribe certificate to
the petitioner. The petitioner's mother is an inhabitant of
Lakshadweep Island and was born and brought up in
Lakshadweep Island. The petitioner's father is a non
resident Lakshadweep person and their marriage is stated
to have been solemnized in Lakshadweep. The petitioner
was born on 29.11.2003 at the Community Health Center
Amini, Lakshadweep. It is on the above basis, the
petitioner seeks issuance of a certificate as a Scheduled
Tribe. Ext.P8 is a copy of the Constitution (Scheduled
Tribes (Union Territories)) Order, 1951 as amended. The
concerned entry reads thus;
WP(C) NO. 7331 OF 2024
"Throughout the Union territory:--
Inhabitants of the Laccadive, Minicoy and Amindivi Islands
who, and both of whose parents, were born in those Islands:
"[Provided that the children who are born to inhabitants of
Lakshadweep in any other place in the Mainland of India shall
be deemed to be inhabitants born in the islands if such children
settle permanently in the islands.
Explanation.--The term "settle permanently" shall have the
same meaning as defined under clause 3(1)(d) of the
Lakshadweep Panchayats Regulation, 1994 (Reg. 4 of 1994)."
2. It can thus be seen that for being entitled to be
issued with a Scheduled Tribe certificate, a person
should be an inhabitant of the Laccadive, Minicoy and
Amindivi Islands who, and both of whose parents, were
born in those Islands. Admittedly, the petitioner's father
was not born in Lakshadweep Island. Even if the proviso
is to be applied, the proviso takes in only those children
born to inhabitants of Lakshadweep, but in the main
land. The deeming provision also will not help the
petitioner since the basic requirement that the person
claiming the certificate should have been born to
WP(C) NO. 7331 OF 2024
inhabitants of Lakshadweep is not met in this case.
3. The counsel for the respondents placed before
this Court the judgment of a Division Bench of this
Court in Sayed v. Union Territory of Lakshadweep [2008
(3) KLT 138], which had been rendered prior to the
inclusion of the proviso in the Constitution Order. This
Court relying on the decision of Hon'ble Supreme Court
in State of Maharashtra v. Milind [2001 (1) SCC 4] and
judgment of another Division Bench in WA.No.1422 of
2005 held that Court cannot tinker with the Presidential
Order on the ground that the same would amount to
under inclusiveness and if a person has been left out on
the basis of place of birth, an exercise to include, can
only be undertaken by the Parliament, by law.
4. In view of the constitutional entry and the
judgments of the Apex Court and the Division Bench of
WP(C) NO. 7331 OF 2024
this Court, no relief can be granted in this writ petition.
The writ petition fails and is dismissed.
Sd/-
T.R.RAVI
JUDGE
sn
WP(C) NO. 7331 OF 2024
APPENDIX OF WP(C) 7331/2024
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE BIRTH CERTIFICATE DATED 30-
10-2018 ISSUED BY THE REGISTRAR OF BIRTH AND
DEATH, AMINI ISLAND
Exhibit P2 TRUE COPY OF THE CASTE CERTIFICATE DATED
8/06/1993 ISSUED TO THE PETITIONER'S MOTHER
Exhibit P3 TRUE COPY OF THE DOMICILE CERTIFICATE DATED
27/10/2016 ISSUED TO THE PETITIONER
Exhibit P4 TRUE COPY OF NATIVITY CERTIFICATE DATED
20/10/2014 ISSUED TO THE PETITIONER
Exhibit P5 TRUE COPY OF THE SECONDARY SCHOOL LEAVING
CERTIFICATE DATED NIL ISSUED TO THE
PETITIONER
Exhibit P6 TRUE COPY OF THE ELECTION IDENTITY CARD DATED
10/12/2019 ISSUED TO THE PETITIONER'S FATHER
ABDUL GAFOOR
Exhibit P7 TRUE COPY OF THE RESIDENT IDENTITY CARD DATED
NIL ISSUED TO THE PETITIONER'S FATHER ABDUL
GAFOOR
Exhibit P8 TRUE COPY OF THE CONSTITUTION (SCHEDULED
TRIBES) (UNION TERRITORIES) ORDER,
951(C.O.33)
Exhibit P9 TRUE COPY OF THE APPLICATION DATED 11/08/2023
SUBMITTED BY THE PETITIONER TO THE 2ND
RESPONDENT
RESPONDENTS' ANNEXURES
ANNEXURE R1(A) A TRUE COPY OF THE CONSTITUTION (SCHEDULED
TRIBES) [(UNION TERRITORIES)] ORDER, 1951
DATED 20.08.1951
//TRUE COPY// PA TO JUDGE
