The Andaman And Nicobar Administration And ORS. v. Smti.Nazreen Banu And ANR

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA AND THE HON'BLE JUSTICE SHAMPA DUTT (PAUL) MAT/47/2025 (IA NO: CAN/1/2025, CAN/2/2025) THE ANDAMAN AND NICOBAR ADMINISTRATION AND OTHERS ... APPELLANTS VS.

SMTI NAZREEN BANU AND ANOTHER ... RESPONDENTS For the Appellant : Ms. Babita Das For the respondents : Mrs. Anjili Nag, Sr. Adv.

Mr. Adarsh Ilango Reserved on : December 19, 2025 Judgment on : December 19, 2025 HIRANMAY BHATTACHARYYA, J.

Re: CAN/2/2025 ( Condonation of delay) 1.

This is an application under section 5 of the Limitation Act praying for condonation of delay of 208 days in preferring the instant appeal.

2.

The respondents herein contested the said application by filing an affidavit-in-opposition to such application.

3.

Ms. Anjili Nag, learned advocate appearing for the respondents vehemently opposes the prayer for condonation of delay. She submits that pursuant to the directions contained in the impugned order, the Scheduled Tribe Certificate has been issued in favour of the respondent and on the basis of such certificate, the respondent got admission in the MBBS course and studying therein. 4.

She further submits that, after issuing the tribal certificate on the basis of the directions contained in the impugned order, the respondents, have accepted the order passed by the learned Single Judge, and cannot now turn around and challenge the said order by preferring the appeal.

5.

She further submits that no sufficient cause has been shown excepting that movement of files from one department to other took a considerable time. Ms. Nag places reliance upon a decision of the Hon'ble Supreme Court in the case of Commissioner of Income Tax Chennai vs. M/s Sri Ram City Union Finance Co. Limited , SLP (Civil) Diary No.62399 of 2025 in support of her contention that unless the delay is satisfactorily explained the same cannot be condoned.

6.

She further submits that the time takes for movement of files from one department to another cannot be a ground for condonation of delay.

7.

The learned advocate appearing for the appellants herein submits that under the threat of contempt, the respondent authorities have issued the tribal certificate. She further submits that the authorities ultimately took a decision to challenge the said order by preferring an appeal and, therefore, mere issuance of the certificate in compliance with the direction contained in the impugned order, cannot be a ground for holding that the appeal is not maintainable. She submits that for taking a decision as to whether the impugned order will be challenged, there was movement of files from one department to other which is the reasons for the delay in preferring the instant appeal.

8.

After going through the averments made in the said application, this Court finds that the internal file movement; administrative formalities and the time taken by the learned Government Pleader for preferring the memorandum of appeal have been cited as the cause for the delay in preferring the appeal. 9.

This court has to consider whether the cause shown by the appellant for preferring the appeal beyond the stipulated period falls within the expression "sufficient cause" under section 5 of the Limitation Act.

10.

The Hon'ble Supreme Court in Commissioner of Income Tax Chennai (supra) held that mere movement of files cannot be accepted as "sufficient cause" within the meaning of section 5 of the Limitation Act. In the said decision, the Hon'ble Supreme Court

reiterated the proposition of law laid down in Shivaamma (Dead) by Lrs vs. Karnataka Housing Board and others reported at 2025 SCC OnLine SC 1969 that delay in filing petitions/appeals by State or its instrumentalities is not to be condoned by showing extra leniency for lethargic and negligent attitude of their officers who tend to carve out their own periods of limitation having little regard for the limitation period specified in the statute or the rules. 11.

By applying the aforesaid proposition of law, the Hon'ble Supreme Court refused to condone the delay in preferring the said Special Leave Petition. At this stage, it would be relevant to point out that the period of delay in the case of Commissioner of Income Tax Chennai (supra) was 892 and 911 days respectively. 12.

In the case on hand, the delay is only about 208 days. 13.

That apart the direction contained in the impugned order was also complied with within the time limit indicated in the said order. Thus, no prejudice can be said to have been caused to the writ petitioner/respondents for the delay in preferring the instant appeal as the petitioner/respondent has already got admission in the MBBS course on the basis of such certificate issued after the impugned order was passed.

14.

In course of hearing of the application for condonation of delay, the learned advocates appearing for the respective parties made exhaustive arguments on the merits of the appeal.

15.

At this stage it would be relevant to point out that the issue involved in this appeal is whether an offspring born out of a wedlock between a Scheduled Tribe women and a non Scheduled Tribe man should be treated as a Scheduled Tribe or not. The said issue is also of some public importance. Though the delay in filing the instant appeal may not have been explained satisfactorily but considering the issue involved in this appeal is of some importance, this Court is inclined to exercise discretion in favour of the appellant and condone the delay in preparing the instant appeal.

16.

For all the reasons as aforesaid, the delay in preferring the appeal is condoned.

17.

Accordingly, CAN/2/2025 stands allowed.

18.

The department is directed to formally register the instant appeal.

Re: MAT/47/2025 ( Appeal) 19.

This intra court appeal is at the instance of the Andaman and Nicobar Administration and is directed against the judgment and order dated February 27, 2025 passed by a learned Single Judge in WPA/653/2024.

20.

By the judgment and order impugned, the jurisdictional Tehsildar was directed to issue necessary Scheduled Tribe Certificate in favour of the writ petitioner no.2/respondent no.2 herein positively within 24 working hours from the date and time of communication of

this judgment and order but not later than the closing of working hours on March 01, 2025.

21.

An application was submitted on September 05, 2024 through OnLine mode for issuance of the Scheduled Tribe Certificate in favour of the 2nd respondent. Since the said application was pending for a considerable period of time, the respondents herein filed the instant writ petition. At the time when the writ petition was filed, the application for issuance of the Certificate was pending. However, pursuant to the interim order passed in the writ petition, the jurisdictional Tehsildar passed the order dated February 26, 2025 which was subsequently corrected on February 27, 2025. 22.

By the said order, the jurisdictional Tehsildar, after taking note of the letter dated December 21, 2024 issued by the Chairman of the Tribal Council, rejected the application filed by the respondent no.2 for issuance of the Scheduled Tribe Certificate. The order of rejection passed by the jurisdictional Tehsildar was placed before the learned Single Judge which was taken on record and the parties were invited to make their respective submissions on the legality or otherwise of the said order.

23.

The learned Trial Judge, by the judgment and order impugned, had set aside and quashed the orders passed by the Tehsildar dated February 26, 2025 as corrected on February 27, 2025 and directed the jurisdictional Tehsildar to issue the necessary Scheduled Tribe

Certificate in favour of the respondent no.2 within a stipulated time limit.

24.

Ms. Das, the learned advocate appearing for the appellant submits that the Chairman of the Tribal Council issued a letter withdrawing the recommendation for issuance of the Scheduled Tribe Certificate. She submits that in a case where a marriage takes place between a tribal and non-tribal, the applicant for issuance of the Scheduled Tribe Certificate has to prove that he/she was born and brought up in a tribal family and in the locality where the tribal spouse was born and brought up. She submits that the applicant was born and brought up in the family of a forward class at Port Blair and not as a tribal class.

25.

She further submits that no evidence was produced by the respondents in support of her claim for issuance of the tribal certificate. She further submits that the learned Single Judge without considering such aspect had set aside the order passed by the concerned Tehsildar.

26.

Per contra, Mrs. Nag, learned senior advocate for the respondents raises an objection as to the maintainability of this appeal as the directions contained in the impugned order has already been complied with by the Tehsildar. She submits that once an order has been accepted and the directions passed therein have been complied with, same cannot be assailed thereafter. She submits that the relevant Office Memorandum only requires that the applicant was

accepted by the tribal community for the purpose of issuance of the Scheduled Tribe Certificate in her favour. She further submits that an application was submitted for issuance of Scheduled Tribe Certificate with the declaration of the members of the Tribal Community as required in the prescribed format. She further submits that the Chairman of the Tribal Council withdrew the recommendation given by the members without giving any opportunity of hearing to the writ petitioners/respondents herein. She submits that withdrawal of the recommendation of the tribal council was made in violation of the principles of natural justice and taking note of such fact that the learned Single Judge held that such withdrawal of recommendation was improper and consequently set aside the order passed by the Tehsildar.

27.

In reply Ms. Das, learned advocate for the appellant submits that in view of the threat of contempt, the direction contained in the impugned order was complied with. She submits that the competent authorities after considering the gravity of the issue involved, decided to prefer the instant appeal. She submits that mere compliance of the directions contained in the impugned order cannot be a ground for holding that the instant appeal is not maintainable. 28.

Heard the learned advocates appearing for the respective parties and perused the materials placed.

29.

A party to a lis is bound to comply with the order so long as the order remains alive and operative. A right to prefer an appeal is a

statutory right. Merely because a party has complied with the directions contained in the order, it cannot be presumed that such party communicated to the other side that he is waiving his statutory remedies to challenge such an order. The objection raised by Ms. Nag against the maintainability of this appeal is based on the principle of "approbate and reprobate" which postulates that no party can accept and reject the same instrument.

30.

It is now judicially settled that the doctrine of ""approbate and reprobate" which is based on the rule of estoppel has no manner of application when statutory rights and liabilities are involved and it cannot impede the statutory right to prefer an appeal to challenge an order.

31.

This Court holds that the instant appeal is maintainable irrespective of the fact that the direction contained in the impugned order has been complied with.

32.

The short point that arises for consideration is whether the respondent No. 2 satisfied the requirements for issuance of a Scheduled Tribe Certificate in her favour.

33.

Record reveals that enquires about the caste status of the offspring of the inter caste married couples have been sought from the Ministry of Home Affairs, Government of India by various State Governments/Union Territories. The Ministry after examining the legal views, issued an Office Memorandum (for short, "O.M.") dated

May 21, 1977 laying down the comprehensive legal position about the status of the offspring born to couples where one or both of the spouses is/are member(s) of Scheduled Castes and/or Scheduled Tribes in Annexure A to D of the said O.M.

34.

Annexure B of the said O.M. contains the legal views on the status of the off-springs of a couple where one of the spouses is a member of a Scheduled Tribe. After considering the views of various High Courts and the Hon'ble Supreme Court the view expressed therein is that the final result will always depend on whether the child was accepted as a Member of the Scheduled Tribe or not. 35.

The relevant portion of the said O.M. is extracted hereinafter:- "4.

In the case of marriage between a tribal with a non-tribal, the main factor or consideration is whether the couple were accepted by the tribal society to which the tribal spouse belongs. If he or she, as the case may be, is accepted by the Society then their children shall be deemed to be Scheduled Tribes. But this situation can normally happen when the husband is a member of the Scheduled Tribe. However, a circumstance may be there when a Scheduled Tribe woman may have children from marriage with a non-Schedule Tribe man. In that event the children may be treated as Scheduled Tribes only if the members of the Scheduled Tribe Community accept them and treat them as members of their own community. This view has been held by the Assam High Court in Wilsom Read v. C.S. Booth reported in AIR 1958 Assam at p.

128, where it has been held- "The test which will determine the membership of the individual will not be the purity of blood, but his own conduct in following the customs and the way of life of the tribe; the way in which he has been treated by the Community and the practice amongst the tribal people in the matter of dealing with persons whose mother was a Khasi and father was a European". Similarly, in the case of Muthusamy Mudaliar v. Masilamam Mudaliar, reported in ILR 33, Madras, 342, the Court held - "it is not uncommon process for a class or tribe outside the pale of caste to another pale and if other communities recognized their claim they are treated as of that class or caste".

Similary, in V.V. Giri v. D.S. Dora, reported in AIR, 1959 S.C. 1318(1327) the Court held - "The Caste-status of a person in the context would necessarily have to be determined in the light of the recognition received by him from the members of the caste into which he seeks an entry".

5.

As mentioned above, it is the recognition and acceptance by the Society of the children borne out of a marriage between a member of Scheduled Tribe with an outsider, which is the main determining factor irrespective of whether the Tribe is matriarchal or patriarchal. The final result will always depend on whether the child was accepted as a member of the Scheduled Tribe or not."

(Emphasis supplied) 36.

This Court, therefore, holds that whether the child was accepted as a member of the Scheduled Tribe or not is the only guiding factor for deciding whether such child born out of the wedlock of a Scheduled Tribe woman with a non Scheduled Tribe man shall be treated as a Scheduled Tribe or not. 37.

In the case on hand, the mother of the applicant is the Scheduled Tribe woman and the father is a non-Scheduled Tribe man. Thus, the off-spring i.e the respondent no.2 should be treated to be a Scheduled Tribe only if the members of the Scheduled Tribe Community, accept her and treat her as member of their own community.

38.

In course of hearing of this appeal, a copy of the writ petition has been produced wherein the application form for Scheduled Tribe Certificate has been annexed. On a bare perusal of the said application form, it is evident that Head of Tuhet, Head man of Perka

Village, Car Nicobar and the Secretary, Tribal Council, Car Nicobar have certified that the respondent no.2 is the bonafide tribal of the islands and entitled to get Scheduled Tribe Certificate. 39.

This Court is, therefore, of the considered view that the basic requirement for issuance of the Scheduled Tribe Certificate that the child was accepted as a member of the Scheduled Tribe stood satisfied as it would be evident from the Certificate of the members of the said Community which forms part of the said application. 40.

However, the Chairman, Tribal Council, Car Nicobar by a letter dated 21st December, 2024 addressed to the Deputy Commissioner, DC Office, Car Nicobar informed that as the husband of the respondent no.1 is a non-tribal, therefore her daughter i.e. the respondent No. 2 is not to be considered as tribal by over sighting the fact. For such reason, the Chairman of the Tribal Council withdrew the recommendation for issuance of the Scheduled Tribe Certificate. 41.

The application form was submitted with the recommendation of the members of the tribal community. Such recommendation could not have been withdrawn only by the Chairman of the Tribal Council and that too without giving any opportunity of hearing to the respondents.

42.

It is not in dispute that the Chairman, Tribal Council Car Nicobar withdrew the recommendation for issuance of the Scheduled Tribe Certificate without affording any opportunity to the

respondents. Thus, there has been gross violation of the principles of natural justice while withdrawing the said recommendation as rightly held by the learned Single Judge.

43.

That apart, the only ground for withdrawal of the recommendation for issuance of the Scheduled Tribe Certificate as indicated in the letter dated December 21, 2024 is that the husband of the respondent no.1/father of the respondent o.2 is a non-tribal. 44.

Merely because of the fact that the father of the respondent no.2 is a non-tribal, the same cannot be the ground for holding that the respondent no.2 is not entitled to a Scheduled Tribe Certificate. 45.

The basic criteria for issuance of Scheduled Tribe Certificate of a off-spring when the mother is the tribal and the father is a nontribal is whether the members of the tribal community has accepted the applicant as a member of that community. The basic criteria for deciding whether the offspring should be treated as a Scheduled Tribe in case of marriage between a Tribal woman and a non-tribal man has been totally overlooked by the Chairman of Tribal Council. This, according to us, is an additional ground for not giving any credence to such letter of withdrawal of recommendation. 46.

The only basis for passing the order rejecting the claim of the second respondent for issuance of the Scheduled Tribe Certificate by the concerned Tehsildar is withdrawal of recommendation of the Chairman, Tribal Council. This Court has already held that such

withdrawal is improper. The learned Single Judge was right in setting aside such order passed by the concerned Tehsildar. 47.

Now, this Court has to decide whether the matter should have been sent back to the concerned Tehsildar for taking a fresh decision. 48.

Record reveals that the members of the Tribal Community has certified and accepted the second respondent as member of the Scheduled Tribe community. No contrary evidence has been produced by the appellant which would nullify or destroy the evidence in the form of declaration made by the members of the tribal community. The Chairman of the Tribal Council, while withdrawing the recommendation also did not make any observation on the factual aspect that the second respondent has been accepted as a member of the Tribal Community.

49.

For all the reasons as aforesaid, this Court holds that the learned Single Judge was right in setting aside the orders of the jurisdictional Tehsildar dated February 26, 2025 as corrected on February 27, 2025 and directing the concerned Tehsildar to issue the Scheduled Tribe Certificate.

50.

The impugned judgment and order does not suffer from any infirmity warranting interference in an intra court appeal. 51.

Accordingly, MAT/47/2025 stands dismissed. There shall, however, be no order as to costs.

52.

Consequently, the application for stay being CAN/1/2025 also stands disposed of.

53.

Urgent Photostat certified copy of this judgment, if applied for, shall be granted to the parties as expeditiously as possible, upon compliance of all formalities.

( HIRANMAY BHATTACHARYYA, J. ) I agree.

( SHAMPA DUTT (PAUL), J. )