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2012 DIGILAW 684 (HP)

Transgiri Anay Pichhra Varg Kalyan Samiti v. State of Himachal Pradesh

2012-10-05

DEEPAK GUPTA, RAJIV SHARMA

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Judgment Rajiv Sharma, J. Petitioner No. 1 is a society registered under the Societies Registration Act, 2006 on 28.2.2009 with its office at village Kafota, Post Office Shilla, Tehsil Paonta Sahib, District Sirmour. More than 6500 families in District Sirmour were recorded as belonging to ‘Bhat’ with different Gotras, as per revenue record, i.e. Shajra Nasab Malkan Bandobasti for the year 1985-86. The Additional Secretary (Welfare) to the Government of Himachal Pradesh vide letter dated 6.2.1999 issued clarification that ‘Bhat Brahmin’, ‘Bhat Brahmin Bhardwaj’, ‘Bhat Brahmin Sehal’ could not be issued O.B.C. certificate. The clarification led to filing of CWP Nos. 905 of 2000, 663 of 2000 and 16 of 2001 challenging the notification dated 6.2.1999. These petitions were allowed by this Court on 29.6.2001. Operative portion of the judgment dated 29.6.2001 reads thus: “….On consideration of the entire material on record, the logical conclusion which can be drawn is that the subsequent appendage to the main caste cannot alter the main characteristics of caste ‘Bhat’ and even if further appendage in the form of ‘Gotra’ is added in the impugned letter dated 6.2.1999 by the Additional Secretary (Welfare), the situation will remain the same so far original caste of the person is concerned……. 2. In sequel to the judgment of this Court dated 29.6.2001, the Department of Social Justice and Empowerment issued notification dated 9.8.2004. However, in the recent revenue record, the caste of 6500 families in District Sirmour has been changed. It has been changed from ‘Bhat Bhardwaj’, ‘Bhat Kashav’ and ‘Bhat Kajoor’ to ‘Brahmin Bhardwaj’, Brahmin Kashyap’ and ‘Brahmin Sheel’, as per Annexures P-8 to P-15. Once these revenue records were changed, respondents have stopped issuing O.B.C. certificate to the members of these families. 3. Respondent-State in its reply has admitted that O.B.C. certificates were being issued to the people whose caste was recorded as ‘Bhat’ in Bandobasti revenue record, but later on caste of these families were changed and recorded ‘Brahamin’ with different Gotras on the basis of instructions issued by the Assistant Secretary (Revenue) to the Government of Himachal Pradesh vide letter No. 86-76/55 dated 4.7.1955. State has admitted in its reply that as per notification dated 9.8.2004, ‘Bhat’ has been notified as other backward class. 4. Ms. State has admitted in its reply that as per notification dated 9.8.2004, ‘Bhat’ has been notified as other backward class. 4. Ms. Jyotsna Rewal Dua has brought to the notice of the Court that respondents have not been issued any show cause notice to the members of the petitioner-society before effecting any change in the revenue record. She has also argued that about 29 cases for correction of caste were under process in the Court of District Collector, Sirmour District, but the final decision has not been taken yet. 5. Mr. Vivek Singh Thakur, learned Additional Advocate General has argued that corrections in the revenue record are being made on the basis of letter dated 4.7.1955. He has also contended that the District Collector, Sirmour District makes only recommendations to the Financial Commissioner (Appeals) for taking final decision in the matter. 6. We have heard the learned counsel for the parties and have perused the pleadings carefully. 7. It is not in dispute that the members of the petitioner-society and similarly situate persons were included in the revenue record, i.e. Shajra Nasab Malkan Bandobasti for the year 1985-86 as ‘Bhat’. Shajra Nasab Malkan Bandobasti is integral part of the revenue record, i.e. Jamasbandi. Respondent-State has started issuing certificates to the members of the petitioner-society on the basis of revenue record. However, clarification issued on 6.2.1999 led to filing of CWP No. 905/2000 and other connected petitions. These writ petitions were allowed on 29.6.2001. The operative portion of judgment dated 29.6.2001 has already been reproduced hereinabove. Respondent-State has also issued notification dated 9.8.2004 whereby ‘Bhat’ has been included in the category of O.B.C. Respondent-State, however, on the basis of instructions issued on 4.7.1955 has started changing the caste of the members of the petitioner-society and the similar situate persons from the revenue record, i.e. Shajra Nasab Malkan Bandobasti. Members of the petitioner-society and similarly situate persons have suffered civil consequences since they are being deprived of the status of O.B.C. without following due process of law. We are of the considered view that the notices were required to be issued to all the persons qua whom the caste entries were being changed in the revenue record. 8. The FC-cum-Secretary (Revenue) to the Government of Himachal Pradesh has issued instructions to all the Deputy Commissioners on 7.2.2006. We are of the considered view that the notices were required to be issued to all the persons qua whom the caste entries were being changed in the revenue record. 8. The FC-cum-Secretary (Revenue) to the Government of Himachal Pradesh has issued instructions to all the Deputy Commissioners on 7.2.2006. Text of letter dated 7.2.2006 reads thus: “I am directed to state that the department has been receiving references regarding change/correction of caste/tribe in the revenue records. Since these entries have been made during the settlement operation or while up dating the records after every five years hence such entries cannot be changed by an administrative orders. Procedure to deal with such cases has been elaborated in section 17 of the Land Revenue Act 1954. To avoid unnecessary correspondence on the issue in future the District Collector shall report such cases with his recommendation/opinion to Financial Commissioner (Appeal), H.P. after affording due opportunity of being heard to the affected parties under the provisions of law referred to ibid.” 8. It is evident from the text of letter dated 7.2.2006 that all the District Collectors have been directed to report such cases with his recommendations/opinion to Financial Commissioner (Appeal), H.P. after affording due opportunity of being heard under the provisions of law. 9. Accordingly, we dispose of this writ petition with the following mandatory directions: 1. District Collector, Sirmour is directed to a take final decision qua 29 cases and to submit his recommendations/opinion to the Financial Commissioner (Appeals) within a period of six weeks from today. He shall hear the affected parties before making recommendations/opinion to the Financial Commissioner (Appeals). 2. Respondent No.2 is directed that henceforth as and when changes are made in the revenue record, i.e. Shajra Nasab Malkan Bandobasti, all the affected parties shall be issued show cause notice and only thereafter the entries may be changed. 10. Pending application(s), if any, also stands disposed of. No costs.