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2010 DIGILAW 998 (KAR)

S. P. Mahadevappa v. Suma Vasanth

2010-09-14

ANAND BYRAREDDY

body2010
Judgment Heard the learned counsel for the appellant and the learned counsel for the respondent. 2. The substantial question of law framed in this appeal is as follows:- ”Whether the finding of the courts below that the first respondent belongs to a Scheduled Caste is a perverse finding in the face of the school records and the report of the Revenue Inspector/Deputy Tahsildar indicating to the contrary?” 3. Having regard to the facts and circumstances which are narrated below, it would be necessary to reframe the substantial question of law especially in the light of the decision of the Supreme Court in the case of Kumari Madhuri Patil and another vs. Additional Commissioner, Tribal Development and others, (1994)6 SCC 241 , namely, “Whether a civil suit was maintainable in the light of the law as declared by the apex court in relation to Caste Certificates issued pursuant to the Constitution (Scheduled Tribes) Order, 1950 as amended by the Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976?” 4. The learned Counsel for the appellant as well as the respondents were heard on this substantial question of law that is reframed as above. 5. The facts of the case are as follows:- The appellant was the plaintiff who had filed a suit for declaration to the effect that the first respondent herein did not belong to a Scheduled Tribe and for the further relief of restraining her from putting herself out as a person belonging to a Scheduled Tribe and seeking benefits available to the said Scheduled Tribe and for such other consequential reliefs. It was contented that the plaintiff – appellant was a permanent resident of Kanoor Village, Virajpet Taluk, Kodagu District and that he was a social worker working for the betterment of the downtrodden of Virajpet Legislative Constituency. According to the plaintiff, the said constituency was declared as a Scheduled Tribe Assembly Constituency of the Karnataka Legislative Assembly and was reserved to be represented by candidates belonging to Scheduled Tribe. It is further stated that the Government of India, by a Presidential Order under Section (1) of the Scheduled Caste and Scheduled Tribe Orders (Amendment) Act, 1976, notified various castes and tribes of Karnataka State in whose favour the said reservation benefits were provided. The caste “Marathi”. According to the plaintiff, is neither a Scheduled Cast nor a Scheduled Tribe. It is further stated that the Government of India, by a Presidential Order under Section (1) of the Scheduled Caste and Scheduled Tribe Orders (Amendment) Act, 1976, notified various castes and tribes of Karnataka State in whose favour the said reservation benefits were provided. The caste “Marathi”. According to the plaintiff, is neither a Scheduled Cast nor a Scheduled Tribe. Under the Schedule to the above Act, Para-VI pertains to Karnataka State regarding notified Scheduled Tribes and Castes of Karnataka State. “Maratha” in Coorg District at Entry No.35 and “Marathi” in Dakshina Kannada District, notified at Entry No.36 are said to be Scheduled Tribes. The first defendant, who was earlier known as Marathi Padmini did not belong to Maratha caste found at Entry No.35 of Part-VI of the Schedule to the Act, but she belonged to Marathi Caste, which is a backward class as per the Notification of the Government of Karnataka dated 13.10.1986. However, on a misrepresentation by the first defendant, the she belonged to Maratha Scheduled Tribe of Coorg District, had obtained a caste certificate to that effect and had contested the Karnataka Legislative Assembly elections from Virajpet Constituency during the year 1983, 1989 and 1994. In the year 1983, she was successful in the election and had defeated a real Scheduled Tribe candidate one H.D.Rajan and who, in turn, had challenged her election by way of an election petition before this court in Election Petition No.4/1985, on the ground that she did not belong to a Scheduled Tribe. The said petition; however abated on account of the death of the petitioner therein. In the year 1989, the first defendant had again contested for the membership of the assembly from the same constituency as a Congress candidate and defeated one G.S.Pushkara. During those periods, the first defendant was even elevated as a minister in the Karnataka Legislative Assembly. Further, during the year 1994. She had contested from the same constituency against one H.D.Basavaraju and the said candidate defeated the first defendant. It is alleged that the first respondent herein is the daughter of one Marathi Muddappa of Nokya Village of Thithimathi Circle of Poonampet Hobli of Virajpet Taluk. He is the son of Marathi Subraya. Marathi Subraya had three wives and he had, in all, nine children. Defendant no.1 being the elder daughter of Marathi Muddappa, therefore clearly belonged to a Marathi community. He is the son of Marathi Subraya. Marathi Subraya had three wives and he had, in all, nine children. Defendant no.1 being the elder daughter of Marathi Muddappa, therefore clearly belonged to a Marathi community. Initially during her school days, she was known as Marathi Padmini. Later she changed her name as Suma Vasanth and obtained a Caste Certificate as on 4.6.1988 from the Tahsildar, Virajpet to the effect that the belonged to “Maratha” community. Again in 1994, she again obtained a fresh caste certificate claiming to be belonging to Maratha community. The sister of the first defendant by name Dharmavathy also obtained a Caste Certificate claiming to belong to Maratha community. The first defendant has managed to obtain caste certificates for her children as well. Therefore, it is alleged that the certificates obtained by the first defendant and her relatives are by misrepresentation though the first defendant and her relatives belonged to Marathi community. The school records of Gonikoppal High School of Coorg District pertaining to the first defendant, her sisters, brothers, relatives indicate that they did not belong to Maratha Scheduled Tribe of Coorg District, thought the first defendant managed to obtain a caste certificate to claim that she belongs to Maratha community. Incidentally, the appellant – plaintiff had filed a writ petition before this court in W.P. 30228/1998 against the defendants in the nature of public interest, seeking a direction to the State Government and other officers to inquire into the caste of the first defendant while producing material in support of the contentions. The petition which was filed in 1998 was withdrawn while reserving liberty to the appellant-plaintiff to question the caste of the first defendant by recourse to other proceedings. It is in this background that a suit was filed. The trial court had framed several issues on the basis fo the pleadings. On considering the pleadings and material evidence, the trial court had dismissed the suit. The same having been carried in appeal, the lower appellate court affirmed the judgment of the trial court. It is that which is under challenge in the present appeal. 6. The trial court had framed several issues on the basis fo the pleadings. On considering the pleadings and material evidence, the trial court had dismissed the suit. The same having been carried in appeal, the lower appellate court affirmed the judgment of the trial court. It is that which is under challenge in the present appeal. 6. The respondent herein has filed an application for vacating injunction and has produced material including the orders passed in an election petition challenging the election of the first defendant in the year 1999 in respect of her election to the assembly constituency in the 1999 elections, in Election Petition No.5/1999, which was dismissed by a judgment dated 22.6.2001. One of the issues raised therein was whether the first respondent belonged to the Maratha Community and whether she was entitled to claim as such. That issue having been held in her favour, and the same having been carried in appeal was affirmed by the apex court and the apex court in its judgment has held as follows:- “….Admittedly Constituency was one reserved for Scheduled Tribe candidates. The constituency falls in Coorg District. According to the Constitution (Scheduled Tribe) Order, 1950 as amended by Act 108/1976 in the state of Karnataka vide Entry No.35 of the Scheduled Maratha (Coorg district) is a Scheduled Tribe. The plea taken by the petitioners in his writ petition was that the maratha in the state of Maharashtra are Hindi speaking and are a General Community and what is a Schedule Tribe in Coorg District is ‘Maratha’ and that is what the Presidential Order intends and that is how it should be read. On the petitioner’s own saying respondent no.1 is a Maratha, also residing in Coorg District. She was issued a certificate Ex.P.16 dated 4.6.1988 by the Tahsildar certifying that Respondent No.1 was a Maratha (in Coorg District) and belonged in a Scheduled Tribe….”Therefore, the learned counsel for the respondent no.1 would submit that the question whether the respondent belongs to Maratha Scheduled Tribe or not has attained finality and could not be the subject matter of a civil suit. This is the position as laid down by the apex court in Kumari Madhuri Patil vs. Additional Commissioner, Tribal Development and others. (1994)6 SCC 241 , and also reiterated in the case of State of Tamil Nadu and others vs. Gurusamy, AIR 1997 SC 1199 . This is the position as laid down by the apex court in Kumari Madhuri Patil vs. Additional Commissioner, Tribal Development and others. (1994)6 SCC 241 , and also reiterated in the case of State of Tamil Nadu and others vs. Gurusamy, AIR 1997 SC 1199 . The learned counsel would seek to draw specific reference to the decision in Kumari Maduri’s case, to contend that a civil suit would not be maintainable in view of categorical directions issued by the Supreme Court insofar as any dispute or question in relation to caste certificates issued persuant to the Constitution (Scheduled Tribes) Order, 1950. 7. The learned counsel for the appellant however would contend that the earlier substantial question of also framed was as to whether the courts below had overlooked material documents such as school records and earliest records to indicate the first respondent as belonging to Marathi caste, which is a backward class and cannot be considered as a Scheduled Tribe and when those records would have highest probative value as held by the Supreme Court in the case of Maduri Patil, supra, the question therefore was currently framed and perversity of the findings of the courts below was required to be addressed by this court notwithstanding that it may also be possible for the appellant to have questioned the veracity or genuineness of the certificate obtained by respondent no.1 on other proceedings. It cannot be said that under Section 9 of the Code of Civil Procedure, 1908, a civil suit to question the correctness or otherwise of a Caste Certificate is taken away and there is no such express prohibition insofar as filing of a civil suit for a declaration to this effect. He would further contend that the Supreme Court having issued directions as to the manner and procedure that is to be followed, is directory and not mandatory. He would further contend that the Supreme Court having issued directions as to the manner and procedure that is to be followed, is directory and not mandatory. There is no express prohibition in law in filing a civil suit and obtaining a finding after a full-fledged trial which is a detailed and a more accurate inquiry insofar as a finding of fact is concerned when compared to summary proceedings before the quasi-judicial authorities and hence, would seek to justify the maintainability of the suit and would emphasize that the question of law framed earlier would yet require to be considered by this court in addition to addressing the maintainability which also would have to be answered in favour of the appellant. He would submit that to relegate the appellant to duplication of proceedings before the quasi-judicial authorities after the appellant had pursued the proceeding for over 12 years would be a travesty of justice and would serve little purpose, since the material on record is sufficient to arrive at a finding on the issue by this court in exercise of its power under Section 103 of the Code of Civil Procedure, 1908 notwithstanding that no substantial question of law may arise. It is in this vein that the learned counsel for the appellant would seek to justify the maintainability of the suit and seek to question the correctness of the findings of the courts below and would submit that both the substantial questions of law, one which was framed and one which is now sought to be reframed by this court ought to be answered in favour of the appellant. 8. Given the above facts and circumstances, the Supreme Court in Maduri Patil’s case was concerned with the daughters of one Laxman Pandurang Patil namely, Suchita and Madhuri, who had obtained caste certificates to the effect that they belonged to a Scheduled Tribe known as ‘Mahadeo Koli’ whereas Patil’s father and his fore-fathers admittedly belonged to Hindu Koli community. The question, therefore, was whether the proceedings that had preceded the appeal before the Supreme Court were properly conducted including writ proceedings before the High Court. The question, therefore, was whether the proceedings that had preceded the appeal before the Supreme Court were properly conducted including writ proceedings before the High Court. The Supreme Court while holding that the earliest records pertaining to Madhuri Patil indicating that the caste of the father and his parents showed them as belonging to Hindu Koli would carry the highest probative value and the finding of the High Court to the effect that the Caste Certificate prevailed, was without reference to the High Court having proceeded on the footing that the Mahadeo Koli was introduced through the Presidential Order under Section (1) of Scheduled Caste and Scheduled Tribe Orders (Amendment) Act, 1976 and therefore, they were genuine Scheduled Tribes entitled to the benefits was held to be incorrect reasoning and was held to be perverse and untenable. Thereafter, the Supreme Court had down as follows: “13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or pasts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generals made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinized at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following: 1. The application for grant of social status certificate shall be made to the Revenue Sub-Division Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the officer, Taluk or Mandal level. 2. The application for grant of social status certificate shall be made to the Revenue Sub-Division Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the officer, Taluk or Mandal level. 2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribe or tribal communities, the place from which the originally hails from and other particulars as may be prescribed by the Directorate concerned. 3. Application for certification of the caste certificate by the Scrutiny committee shall be at least six months in advance before seeking admission into educational institution or an appointment to a past. 4. All the State Governments shall constitute a Committee of three officers, namely (1) an Additional or Joint Secretary or any officer higher in rank of a Director of a department of the department concerned, (II) the Director. Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates, In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities. 5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the parent, guardian or birth registration if any. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the parent, guardian or birth registration if any. He should also examine on the parent, guardian or the candidate in relation to their caste etc, or such other persons who have knowledge of the social status of the candidate and then submit it report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc… by the castes or tribes or tribal committees concerned etc., 6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be “not genuine” or “doubtful” or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered past with acknowledgement due or through the had of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent./guardian to adduce all evidence in support of their claim. A public notice by beat of dram or any other convenient made may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-à-vis objections raised by the candidate or opponent and pass an appropriate under with brief reasons in support thereof. 7. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-à-vis objections raised by the candidate or opponent and pass an appropriate under with brief reasons in support thereof. 7. In view the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the later even the same procedure as is envisaged in para to be followed. 8. Notice contemplated in para 6 should be issued to parents/guardian also in case candidate is minor to appear before the Committee will all evidence in his or their support of the claim for the social status certificate. 9. The inquiry should be completed as espeditiously as possible preferably to day-to-day proceedings with such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order canceling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant. 10. Incase of any delay in finalizing the proceedings, and in the meanwhile the last date for admission into on educational institution or appointment to an officer past, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis fo the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission in appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee. 11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution. 12. No suit or other proceedings before any other authority should be. 13. The High Court would disposer of these cases as expeditiously as possible within a period of three months. In case as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would be against that order to the Division Bench but subject to special leave under Article 136. 14. 13. The High Court would disposer of these cases as expeditiously as possible within a period of three months. In case as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would be against that order to the Division Bench but subject to special leave under Article 136. 14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualifications for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament. 15. As soon as the finding is recorded by the Scrutiny Committee holding that the Certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission in the appointment. The Principal etc. of the educational institution responsible for making the admission of the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a past.” It may be seen that according to the procedure prescribed above, commencing with the application for grant of Social Status Certificate, it also provides for checks and balances insofar as the incorrect certificates being issued, and enquiry being conducted, which would also be subject to proceedings under Article 226 of the Constitution. While laying down the above directions, it is also categorically said that no suit or other proceedings before any other authority should lie. In that view of the matter, the contention that the appellant was entitled to file a civil suit in the face of the above directions of eh apex court, which are not shown to have been modified or having been set at naught by any later judgment, the same is binding on this court and would have to be applied in answering he substantial questions of law framed. Hence, the Caste Certificate which is issued pursuant to Constitution (Scheduled Tribes) Order, 1950 thereinafter referred to as ‘the 1950 Order’ for brevity) could only be the subject matter of such proceedings as is laid down by the apex Court and it is safe to presume that the State of Karnataka has, in its turn, in compliance with the directions issued by the Supreme Court constituted such Directorates and Committees its is contemplated under the above said directions. It was therefore for the appellant to have approached the competent authorities in questioning the veracity of the certificate issued to the first respondent. The person suit having been entertained would run counter to the directions issued by the Supreme Court, which ought not to be. Hence, the substantial question of law is answered against the appellant and it is to be held that it suit to declare the caste of the respondent contrary to a certificate issued by the competent authority pursuant to the 1950 Order would not be maintainable and it is only by recourse to proceedings as is contemplated in the aforesaid judgment of the Supreme Court. In that view of the matter, the appeal is dismisses while reserving liberty, if such a measure is open to the petitioner, to approach the competent authorities in raising any dispute as to the veracity of the certificate issued in favour of respondent no.1. Consequently, the interim order granted earlier stands vacated.