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1997 DIGILAW 54 (MAD)

N. v. Subramanian VS Additional Collector, Salem District and Another

1997-01-21

E.PADMANABHAN

body1997
Judgment :- The petitioner prays for the issue of writ of Certiorari calling for the records in Roc. No. 125821/84-D, ii dt. 4-11-87 on the file of the 1st respondent and to quash the same. 2. According to the petitioner, he belongs to a Scheduled Tribe Community of 'Kurumbas' and that the cancellation of his community certificate already issued in his favour is illegal, without jurisdiction, vitiated, violative of principles of natural justice and totally unjustified. The petitioner states that his father belongs to 'Kurumbas' a Scheduled Tribe Community and his mother belong to Sreekaruneegar community, which is not a Scheduled Caste Community. The petitioner further states that his father migrated from the Nilgiris to Namakkal. The petitioner states that he married a girl belonging to Brahmin community, that certain disputes arose during the course of the services of the petitioner's wife as Headmistress, in such circumstances anonynous petitions were submitted, by certain members of an association, that the petitioner is leading a life and continuing to have relationship only with the people belonging to the Kurumbao Community and that they are being treated and continued to be recognised as members of the said community. The 2nd respondent without conducting enquiry had sent a report dt. 18-6-84, to the 1st respondent. It is further stated that the entire materials have been collected behind his back, that the said report has been submitted at the instance of one Kandasamy, and that the earlier verification which ended in favour of petitioner had been suppressed. Based on the report dt. 11-6-68 submitted by the Tahsildar, Salem, the 1st respondent-Additional Collector, issued a show cause notice dt. 26-8-87. Even in the very show cause notice itself, it has been concluded that the petitioner belonged to Sreekaruneegar Community which is not a scheduled caste, that the Certificate issued on 11-6-68 has to be cancelled. To the show cause notice dt. 26-8-87, the petitioner submitted a detailed explanation on 12-9-87. Without affording further opportunity of hearing and without holding an enquiry, the 1st respondent by impugned proceedings dt. 4-11-1987 confirmed the show cause notice and ordered cancellation of the community certificate issued in favour of the petitioner on 11-6-1968. Being aggrieved, the present writ petition has been filed by the petitioner. 3. The respondents have been served respectively on 25-4-88 and 28-4-88. Till this date no counter has been filed by the respondents. 4. Mr. 4-11-1987 confirmed the show cause notice and ordered cancellation of the community certificate issued in favour of the petitioner on 11-6-1968. Being aggrieved, the present writ petition has been filed by the petitioner. 3. The respondents have been served respectively on 25-4-88 and 28-4-88. Till this date no counter has been filed by the respondents. 4. Mr. N. Kannadasan, learned Counsel for the petitioner raised the following contentions : (1) The 1st respondent-Additional Collector is not competent to cancel the community Certificate validly issued by the Tahsildar. (2) The cancellation has been ordered without following the principles of natural justice. (3) Cancellation has been ordered without furnishing a report to the petitioner, based on which the impugned proceedings was passed. (4) The 1st respondent had assumed that the petitioner belonged to "Sreekaruneegar" Community whereas by birth he continued to be the "Kurumbas" as that is the community of his father. 5. In this respect Mr. Kannadasan relied upon the reported decision of this Court in 1996 WLR 482 (D-II Lamaran v. Government of India, rep. by Chief Engineer. All India Radio and Television, Southern Zone), 1996 WLR 484 (R. K. Sekar v. District Collector, Chennai MGR District, Kancheepuram and by the Apex Court in 1996 LIC 919 , 1996 (1) SLR 655 , 1996 (1) Scale 85 , 1996 (1) UJ 626 , 1996 (3) SCC 545 , 1996 (33) ATC 713 , 1996 AIR(SC) 1011, 1996 SCC(L&S) 772, 1996 SCC(L&S) 772, 1996 (1) JT(SC) 57, 1996 (1) CTC 301, 1996 SCC(L&S) 772, 1996 SCC(L&S) 772, 1996 SCC(L&S) 772, 1996 SCC(L&S) 772, 1996 SCC(L&S) 772, 1996 SCC(L&S) 772) (Valaamma Paul v. Cochin University) (1996)2 Serv LR 868 : 1996 AIR(SC) 1338, 1996 (3) AD(SC) 293, 1996 (2) CLT 56, 1996 (2) CCC 24, 1996 (3) JT 405 , 1996 (2) SLR 868 , 1996 (3) Supreme 126 , 1996 (3) Scale 53 , 1996 (3) SCC 685 ) (Gayatrilaxmi Bapurao Nagapure v. State of Maharashtra) and an unreported order of the Division Bench of this Court dt. 9-8-1996 made in W.P. No. 5258/86. 6. As regards the 1st contention, there is no dispute that the 1st respondent is not the District Collector and he is the Additional District Collector, who exercise the powers of the District Revenue Officer. 9-8-1996 made in W.P. No. 5258/86. 6. As regards the 1st contention, there is no dispute that the 1st respondent is not the District Collector and he is the Additional District Collector, who exercise the powers of the District Revenue Officer. It is not disputed that, a member of the Indian Administrative Service, when posted as the District Revenue Officer, he is designated as Additional District Collector. Thus, the powers of the 1st respondent is that of a District Revenue Officer in all respects and he cannot exercise the powers of the District Collector in terms of the G.O. Ms. No. 1193 Social Welfare dt. 23-3-1982. The competent authority to cancel the community certificate is the District Collector, which is also not disputed by the respondents. The Government has prescribed the Authority who is competent to cancel the community Certificate. After due consideration of the said G.O. in (1985) 98 LW 105 Sakthi Devi v. Collector of Salem, it has been held that the District Collector is the Authority to pass orders as to the cancellation of a community Certificate. In fact, a Division Bench of this Court in W.P. No. 5258/96 dt. 9-8-96 held that the District Revenue Officer could not have decided the issue and the order passed by the District Revenue Officer has been quashed. It has been held thus : "Apart from the fact that the District Revenue Officer could not have decided the issue, he has relied upon the report made by the Sub-Collector, Cheranmahadevi, copy of which was not furnished to the petitioner. Therefore, he had no opportunity to put forth his case as to the correctness of the said report. Accordingly, we hold that the order of the District Revenue Officer cannot be sustained. 2. For the reasons stated above, the writ petition is allowed and the order dt. 6-6-1986 passed by the District Revenue Officer, Tiruneveli is quashed." * The impugned order is thus without jurisdiction as the 1st Respondent is not competent to pass the impugned proceedings. 7. The second and third contentions are well supported by the decisions of this Court reported in 1996 WLR 484 as well as 1996 WLR 482. 6-6-1986 passed by the District Revenue Officer, Tiruneveli is quashed." * The impugned order is thus without jurisdiction as the 1st Respondent is not competent to pass the impugned proceedings. 7. The second and third contentions are well supported by the decisions of this Court reported in 1996 WLR 484 as well as 1996 WLR 482. The Division Bench has held thus : "Whenever the question arises, as to whether a person belongs to a particular community recognised as the Scheduled Tribe or Scheduled Caste, decision has to be taken by the Collector, of the District, after holding due enquiry and in such case, he may himself hold an enquiry or direct the Revenue Divisional Officer to hold an enquiry and submit a report. In the event the Collector adopts the latter course, he has to make available a copy of the report submitted by the Revenue Divisional Officer to the concerned person and give him an opportunity to file his objections and adduce evidence, if any and then decide the matter after hearing the aggrieved person, in the instant case the petitioner." * Thus, on this ground, the impugned order has to go. 8. The last ground being that the petitioner's father belong to "Kurumbas" Community, which is a scheduled caste community, his mother also becomes a member of the caste of her husband and recognition by the family or the community is not a pre-condition. The G.O. Ms. No. 477, Social Welfare Department dt. 27-6-1975, the State Government has issued certain clarifications in this respect. Even that G.O. also supports the claim of the petitioner. The G.O. Ms. No. 477, Social Welfare Department dt. 27-6-1975, the State Government has issued certain clarifications in this respect. Even that G.O. also supports the claim of the petitioner. The Supreme Court in 1996 LIC 919 , 1996 (1) SLR 655 , 1996 (1) Scale 85 , 1996 (1) UJ 626 , 1996 (3) SCC 545 , 1996 (33) ATC 713 , 1996 AIR(SC) 1011, 1996 SCC(L&S) 772, 1996 SCC(L&S) 772, 1996 (1) JT(SC) 57, 1996 (1) CTC 301, 1996 SCC(L&S) 772, 1996 SCC(L&S) 772, 1996 SCC(L&S) 772, 1996 SCC(L&S) 772, 1996 SCC(L&S) 772, 1996 SCC(L&S) 772), Valsamma Paul v. Cochin University had an occasion to consider the issue and hold thus at page 1021 : "It is well-settled law from Bhoobum Moyee Debia v. Ram Krishore Acharj Chowdhry, (1865) 10 Moo Ind App 279, that judiciary recognised a century and a half age that a husband and wife are one under Hindu law, and so long as the wife survives, she is half of the husband. She is 'Sapinda' of her husband as held in Lulloobhoy Bappoobhoy Gassidass Moolchand v. Cassibai, (1979-80) 7 Ind App 212. It would, therefore, be clear that be it either under the Canon law or the Hindu law, on marriage the wife becomes an integral part of husband's marital home entitled to equal status of husband as a member of the family. Therefore, the lady on marriage, becomes a member of the family and thereby she becomes a member of the caste to which she moved. The caste rigidity breaks down and would stand no impediment to her becoming a member of the family to which the husband belongs and she gets herself transplanted. The immediate question arises: Whether recognition of the community is a pre-condition? Though it was consistently held that recognition is a circumstance to be taken into consideration, marriage being personal right of the spouses they are entitled to live, after marriage, openly to the knowledge of all the members of the community or locality in which they live and by such living they acquire married status. Though it was consistently held that recognition is a circumstance to be taken into consideration, marriage being personal right of the spouses they are entitled to live, after marriage, openly to the knowledge of all the members of the community or locality in which they live and by such living they acquire married status. In the light of the constitutional Philosophy of social integrity and national unity, right to equality assured by the human rights and the Constitution of India, on marriage of a man and a woman, they become members of the family and are entitled to the social status as marked couple, recognition per se is not a pre-condition on but entitled to be considered, when evidence is available. It is common knowledge that with education or advance of economic status, young men and women marry against the wishes of parents and in many a case consent or recognition would scarcely be given by either or both the parties or parents of both spouses. Recognition by family or community is not a pre-condition for married status." * Thus on a consideration of the entire matter, the impugned proceeding is quashed. The writ petition is allowed with costs of Rs. 1000/-. Petition allowed.