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2008 DIGILAW 219 (GAU)

Anjali Medhi v. State of Assam

2008-03-14

BIPLAB KUMAR SHARMA

body2008
JUDGMENT B.K. Sharma, J. 1. The challenge made in this writ petition is the order by which the Caste certificate of the petitioner has been cancelled. 2. According to the petitioner, she hails from Rabha Community which is recognized as a Scheduled Tribe of Assam. Although her ancestors used the title "Rabha", but her father used the title "Medhi" and petitioner also followed the same title. Thus, it is the case of the petitioner that although her title is Medhi, but in fact she is Rabha, which is recognized as a Scheduled Tribe. The petitioner, in support of her claim as such has placed reliance on the Annexure-1 series documents, which are Caste Certificate issued by the Chairman and the copy of the Jamabandi of K.P. Patta No. 3 of Village-Nagaon under Mouza-Borduar. The petitioner has also annexed the Annexure-2 certificate dated 17.10.2001 issued by the Gaonburha, Palashbari Circle, Mouza-Borduar certifying that she belongs to Rabha Community. 3. The petitioner having offered her candidature for LPG dealership/distributorship at Chaigaon, was invited to appear before the Dealer Selection Board on 29.08.2001, which she accordingly did. Pursuant to the selection conducted, in which the candidatures of others were also considered, the petitioner was placed at serial No. 1 of the select list which comprised of three names in order of preference. The respondent No. 7 was placed at serial No. 2. The respondent No. 7 having raised objection relating to the caste certificate of the petitioner, she made Annexure-IV objection dated 12.09.2001. In the objection, it was stated that her family belong to Rabha community of Loharghat in the district of Kamrup, which is recognized as ST (Plains). 4. After the aforesaid objection, the Circle Officer, Palashbari Revenue Circle issued the Annexure-5 notice dated 21.09.2001 asking the petitioner to show cause on 26.09.2001 by remaining personally present. The notice was issued on receipt of objection regarding her caste certificate. It is the plea of the petitioner that the Circle Officer wanted to strike a deal on extraneous consideration. In the meantime the All Assam Tribal Sangha by its letter dated 22.09.2001 addressed to the Circle Officer authenticated the caste certificate of the petitioner. The said letter was followed by Annexure-7 letter dated 25.09.2001 addressed to the Deputy Commissioner, Kamrup by the Borduar Bholagaon Area Tribal Sangha purportedly withdrawing the complaint lodged against the petitioner. 5. In the meantime the All Assam Tribal Sangha by its letter dated 22.09.2001 addressed to the Circle Officer authenticated the caste certificate of the petitioner. The said letter was followed by Annexure-7 letter dated 25.09.2001 addressed to the Deputy Commissioner, Kamrup by the Borduar Bholagaon Area Tribal Sangha purportedly withdrawing the complaint lodged against the petitioner. 5. By Annexure-VIII letter dated 09.10.2001 addressed to the Deputy Commissioner, the President, All Assam Tribal Sangha intimated about withdrawal of the objection regarding caste certificate of the petitioner. However, it was advised that a report be called for from the Circle Officer, Palashbari Revenue Circle. Thereafter by Annexure-IX letter dated 18.10.2001, the Additional Deputy Commissioner, Kamrup intimated All Assam Tribal Sangha, All Guwahati District Tribal Sangha and All Kamrup District Tribal Sangha asking their representatives to be present in the office on 22.10.2001 in connection with the complaint lodged against the caste certificate of the petitioner. 6. Amidst the aforesaid developments, the Additional Deputy Comrnissioner, Kamrup by his Annexure-X letter dated 19.10.2001 intimated the respondent/corporation that the petitioner did not belong ST (Rabha) Community. The letter mentioned about verification of relevant documents including land documents, the local enquiry carried out and interaction with the jurisdictional Circle Officer and the Lot Mandal. The Annexure-IX letter dated 19.10.2001 was followed by Annexure-12 letter dated 25.01.20.02 issued by the Deputy Commissioner and addressed to the respondent corporation. The letter mentioned about verification of the relevant records and the reports furnished by the Revenue Circle Officer, Rabha Hasong Autonomous Council, Borduar Anchalik Tribal Sangha, Guwahati Zilla Tribal Sangha, All Assam Tribal Sangha, South Kamrup District Tribal Sangha, All Bodo Students Union. On that basis it was intimated that the petitioner did not belong to ST community. It was further intimated that the petitioner in fact was OBC. 7. By Annexure-XIII letter dated 22.02.2002, the General Secretary, All Assam Tribal Sangha requested the Deputy Commissioner, Kamrup to treat the petitioner as a member of the ST(P) (Rabha Community). In the meantime, several writ petitions were filed pertaining to the dealership questioning the validity of the caste certificate. The petitioner has also filed WP(C) No. 7751/2001 making a grievance against cancellation of her ST Caste certificate. All the writ petitions were disposed of by order dated 04.01.2005 directing the Deputy Commissioner, Kamrup to examine the matter afresh upon hearing the parties involved. The petitioner has also filed WP(C) No. 7751/2001 making a grievance against cancellation of her ST Caste certificate. All the writ petitions were disposed of by order dated 04.01.2005 directing the Deputy Commissioner, Kamrup to examine the matter afresh upon hearing the parties involved. In the order it was noticed that the order dated 19.10.2001 (Annexure-X) was passed without hearing the petitioner. 8. After the aforesaid order, the Deputy Commissioner, Kamrup has resolved the issue by the impugned order dated 31.05.2005 (Annexure-XVI). It has been held that the petitioner does not belong to Rabha Community, but in fact belongs to "Sarania Kachari Community". By the said order the ST caste certificate dated 11.11.1990 certifying the petitioner as ST (P) (Rabha) has been cancelled. Being aggrieved the petitioner has filed the instant writ petition. 9. The Deputy Commissioner, Kamrup i.e. the respondent No. 2 has filed the affidavit-in-opposition and so also by the respondent No. 7. They have justified the impugned order. According to the respondent No. 2 although the ancestors of the petitioner might have belonged to Rabha Community but since the days of her paternal grandfather (1943) the family renounced all tribal culture and took "Saran" under "Goswami Guru" and accepted the culture of "Koch" community. It has been stated that the order dated 19.10.2001 was passed taking into account the reports of the enquiry and other related documents. In paragraph 11 of the affidavit, it has been stated that the impugned order has been passed as per direction of this Court and after providing due opportunity to the petitioner and on perusal of the relevant documents. In paragraph 12 of the affidavit, it has been stated thus: ...The letter sent by All Assam Tribal Sangha bearing No. AATS/C-3/2001-02/779 dated 20.02.02 supporting the claim of the petitioner to be belonged to ST community is under proposed examination and hearing. However, the process could not be continued due to the filing of the writ petition by the petitioner.... 10. In the affidavit-in-opposition filed by the respondent No. 7, the impugned order has been supported upon a reference to the order dated 19.10.2001 and other related orders. The affidavit also highlights the spot enquiry carried out by the authorities. However, the process could not be continued due to the filing of the writ petition by the petitioner.... 10. In the affidavit-in-opposition filed by the respondent No. 7, the impugned order has been supported upon a reference to the order dated 19.10.2001 and other related orders. The affidavit also highlights the spot enquiry carried out by the authorities. As against the reference to the letters purportedly issued by the All Assam Tribal Sangha, the respondent No. 7 has annexed the Annexure-E and F letters dated 16.01.2002 and 29.09.2002 purportedly addressed to the Deputy Commissioner and a particular political party by the All Assam Tribal Sangha intimating that the petitioner does not belong to Rabha Community. 11. I have heard Mr. N. Dutta, learned Sr. Counsel assisted by Mr. B.D. Goswami, learned Counsel for the petitioner as well as Mr. U.K. Nair, learned Counsel representing the respondent No. 7. I have also heard Ms. R. Chakraborty, learned Additional Sr. Government Advocate, representing the State respondent. 12. While Mr. Dutta, learned Sr. Counsel for the petitioner upon a reference to the above quoted stand of the respondent No. 2 in his affidavit submitted that the authority did not take into account all the relevant documents towards passing the impugned order, Mr. Nair, learned Counsel for the respondent No. 7 submitted that the finding of fact arrived at by the authority on the basis of the related materials should not be interfered with exercising writ jurisdiction. Learned counsel for the parties have placed reliance on number of decisions relating to caste status and the effect of transition that might take place over the years and as to the effect of acceptance of a particular person as a member of a particular caste by the other members of the caste. The decisions referred to are- (Ananda Ram Baruah (Dr.) v. Guneswar Das) AIR 1995 SC 94 (Kumari Madhuri Patil v. Additional Commissioner) [1976] 3 SCR 1046 (The Principal, Guntur Medical College v. Y. Mohan Rao) AIR 2005 SC 162 (E.V. Chinnaiah v. State of A.P.) [1996] 1 SCR 995 (S. Swvigaradoss v. Zonal Manager, FCI) 2001 (3) GLT 45 (Arabinda Kumar Saha v. State of Assam) 13. I have given my anxious consideration to the submissions made by the learned Counsel for the parties. I have also gone through the materials available on record. Learned Additional Sr. Government Advocate Ms. I have given my anxious consideration to the submissions made by the learned Counsel for the parties. I have also gone through the materials available on record. Learned Additional Sr. Government Advocate Ms. R. Chakraborty has produced the copy of the enquiry report furnished by the Circle Officer, Palashbari Revenue Circle. The enquiry report contains what is reflected in the affidavit-in-opposition filed by the respondent No. 2. As per the report, upon a visit to the village and the house of the petitioner and interaction with the villagers including the mother of the petitioner namely Smt. Nalini Patgiri Medhi, the Circle Officer found that the grandfather of the petitioner was Madha Medhi @ Madha Gaonburha. Late Madha Medhi had two brothers namely Bhetek and Sadha. Informations were furnished by one Sri Rameswar Nath, a living age old person. 14. As per the aforesaid information, Late Madha Medhi had four wives, three wives from Rabha Community and forth one Late Bileti from Koch Community. The fourth marriage was performed in 1938 and 5 years thereafter Late Madha took "Sarana" under Goswami Guru of village-Khatiamari in presence of villagers and converted to Koch community taking oath to leave to all tribal culture. Late Madha had 4 sons namely, Late Mamat Koch, Late Manik Koch, Late Dharmeswar Medhi and Sri Binoy Medhi. All are living separately following the Koch culture. Presently, there is no sign of any tribal culture prevalent among any of the families. They are living in the same "Para" in the midst of General Caste people. They performed their marriages inviting "Purohit" (Brahmin). In fact, sister in laws brought to the families are all from General Category and the daughters of the families are also married to General Category Caste. 15. The local Gaonburha namely, Sri Rameswar Rabha supported the aforesaid information furnished by Sri Rameswar Nath and the mother of the petitioner as well as the petitioner, who were present in the enquiry could not contradict to the same. It was further found that even in the revenue records pertaining to the petitioner's family and her relations, there is no mention of any Rabha title. As per the said record Late Mamat i.e. the petitioner's uncle had accepted the title Koch. 16. It is on the above basis the conclusion was drawn that the petitioner did not belong Rabha Tribe recognized as ST (P). As per the said record Late Mamat i.e. the petitioner's uncle had accepted the title Koch. 16. It is on the above basis the conclusion was drawn that the petitioner did not belong Rabha Tribe recognized as ST (P). On the other hand it is the respective claim of the petitioner and the respondent No. 7 that the All Assam Tribal Sangha has supported the respective claim. In the affidavit-in-opposition filed by the respondent No. 2, there is mention of the letter dated 20.02.2002 (Annexure-XIII), by which the said Sangha requested the Deputy Commissioner to drop the issue once for all revalidating the ST Caste certificate earlier issued in favour of the petitioner. As per the above statement in the said affidavit, the letter was under examination but could not be processed any further in view of filing of the writ petition. 17. The question relating to caste status of the petitioner necessarily involves adjudication of questions of fact. The findings of fact arrived at by the authority cannot be interfered with lightly exercising writ jurisdiction. The impugned order dated 31.05.2005 is based on the findings arrived at by the authorities who were entrusted with the enquiry relating to Caste status of the petitioner. In the order of this Court passed on 04.01.2005, there was direction to resolve the issue after hearing the parties involved namely the petitioner, the respondent No. 7 and the respondent corporation. The impugned order has been passed after hearing the said parties. Thus, there is substantial compliance of the order of this Court. 18. While in the Caste Certificate (Annexure-I), the petitioner is stated to be of village Bhakatpara, but in the certificate issued by the Gaoburha (Annexure-II), she is stated to be of village Loharghat. It is also not understood why such a certificate was necessary in 2001, when the petitioner was already in possession of the Annexure-I Caste Certificate of 1990. It will be pertinent to mention here that the selection for LPG dealership was in process at that point of time and the results were declared on 30.08.2001. 19. This Court by its aforesaid order dated 04.01.2005 passed in the earlier writ proceeding issued direction to decide the matter afresh upon hearing the parties. It is not a case of not affording opportunity of being heard to the petitioner. 19. This Court by its aforesaid order dated 04.01.2005 passed in the earlier writ proceeding issued direction to decide the matter afresh upon hearing the parties. It is not a case of not affording opportunity of being heard to the petitioner. The documents on which the petitioner has placed reliance were all in her possession, including the letter dated 20.02.2002. The enquiry was also contended by the Circle Officer in pursuance of the petitioner and her mother and upon a visit to the locality including the residence of the petitioner. 20. Some amount of contradiction is discernible in respect of the stand of the All Assam Tribal Sangha. While the letters annexed to the writ petition purportedly issued by the All Assam Tribal Sangha supported the case of the petitioner, the letters annexed to the affidavit-in-opposition filed by the respondent No. 7 opposed her case. It is not unlikely that having regard to the high stack involved (LPG Dealership), influential persons might try to take advantage of the situation. The dealership is now hinged on, the correctness or otherwise of the Caste certificate describing the petitioner as belonging to ST (P) (Rabha community). The Deputy Commissioner did not proceed towards examining the Annexure-XIII letter dated 20.02.2002 issued to him by the General Secretary, All Assam Tribal Sangha as in the meantime the writ petition was filed. 21. In Kumari Madhuri Patil (supra), the Apex Court observed thus: 15. The question then is whether the approach adopted by the High Court in not elaborately considering the case is vitiated by an error of law. High Court is not a Court of appeal to appreciate the evidence. The Committee which is empowered to evaluate the evidence placed before it when records a finding of fact, it ought to prevail unless found vitiated by judicial review of any High Court subject to limitations of interference with findings of fact. The Committee when considers all the material facts and records of a finding, though another view, as a Court of appeal may be possible, it is not a ground to reverse the findings. The Court has to see whether the Committee considered all the relevant material placed before it or has not applied its mind to relevant facts which have led the Committee ultimately record the finding. Each case must be considered in the backdrop of its own facts. 22. The Court has to see whether the Committee considered all the relevant material placed before it or has not applied its mind to relevant facts which have led the Committee ultimately record the finding. Each case must be considered in the backdrop of its own facts. 22. As noted above, determination of the real caste of the petitioner necessarily involves disputed questions of fact, which the Writ Court exercising its power of judicial review under Article 226 of the Constitution of India cannot adjudicate upon. Further the findings of fact arrived at by the competent authority cannot be lightly interfered with in absence of any error apparent on the face of the record. At the same time, this Court cannot be oblivious of the stand of the respondent No. 2 quoted above. For what has been discussed above, while not interfering with the impugned order dated 31.05.2005 (Annexure-XIV) passed by the Deputy Commissioner, Kamrup, it is hereby provided that the Deputy Commissioner, Kamrup may consider the effect of the Annexure-XIII letter dated 20.02.2002. If upon consideration of the same, it is found that a review of the impugned order dated 31.05.2005 is on the card, he will do so. However, in the process of consideration of the effect of the said letter dated 20.02.2002, both the parties should be heard including the responsible representative of the All Assam Tribal Sangha, who had purportedly issued the said letter. Entire exercise shall be carried out as expeditiously as possible but at any rate not later than 30.04.2008. With the aforesaid direction and observation the writ petition is disposed of. It is hereby provided that till completion of the exercise on or before 30.04.2008, the interim order dated 17.06.2005 shall continue to operate.