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2014 DIGILAW 147 (JHR)

Madan Mohan Gond v. State of Jharkhand

2014-01-23

APARESH KUMAR SINGH, R.BANUMATHI

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JUDGMENT Aparesh Kumar Singh, J: - The writ petitioner is in appeal against the judgment dated 29th August 2013 passed in WPC No. 6140/2012 by the learned Single Judge refusing to entertain his writ application. The appellant being aggrieved by the order dated 14th September 2012 passed by the Sub Divisional Officer, Pakur cancelling his election as Mukhiya of Shaharkol Panchayat, had preferred the writ application seeking quashing of the same. 2. The appellant had contested the election for the post of Mukhiya of the said panchayat falling within the district of Pakur claiming himself to be a member of the Scheduled Tribe on the basis of a caste certificate issued by the Sub Divisional Magistrate. The appellant was declared elected for the said post. The respondent no. 4 challenged his election before the Sub Divisional Magistrate, Pakur on the ground that he does not belong to the Scheduled Tribes Category and was not eligible to contest the election as a Scheduled Tribe Candidate for the post of Mukhiya of Shaharkol Panchayat. 3. According to the respondent no. 4, the petitioner belongs to the caste 'Gode' and not 'Gond'. Sub Divisional Officer, Pakur after hearing the appellant and the respondent no. 4 and after going through the inquiry report prepared at the direction of the Deputy Commissioner, Pakur came to the conclusion that the petitioner has been elected on the post of Mukhiya on false representation of being a Scheduled Tribe candidate for the reserved seat of Shaharkol Panchayat and cancelled his election. 4. The appellant being aggrieved by the said order, had challenged the same before the learned Single Judge. The learned Single Judge after considering the fact that the issue raised by the petitioner involves disputed questions of fact and that it is the 'Gond' community comes within the ambit of Scheduled Tribe under the Presidential Order applicable within the State of Jharkhand, refused to entertain the writ application which was dismissed. Learned Single Judge while dismissing the writ application, observed that the petitioner claims to a member of the Scheduled Tribe as according to him, the caste 'Gond' and 'Gode' comes within the community of the Scheduled Tribe. 5. Learned Single Judge while dismissing the writ application, observed that the petitioner claims to a member of the Scheduled Tribe as according to him, the caste 'Gond' and 'Gode' comes within the community of the Scheduled Tribe. 5. Learned Senior Counsel for the appellant has submitted that the impugned judgment suffers from error as the learned Single Judge has erroneously held that such disputed questions of fact can be adjudicated in the declaratory suit before the competent civil court. According to the appellant, in a circumstance relating to the determination of question whether a particular person falls within the Scheduled Caste/Scheduled Tribe category or otherwise, the Hon'ble Supreme Court in the case of Kumari Madhuri Patil and another vs. Addl. Commissioner, Tribal Development and others [AIR 1995 Supreme Court 94] has clearly directed that such an issue should be resolved by a Caste Scrutiny Committee. It has been submitted that such committee has been constituted by the State of Jharkhand vide notification dated 8th July 2004 and the committee comprises of Commissioner and Secretary, Social Welfare Department, Tribal Welfare Commissioner, person nominated by the State Government having special knowledge of Scheduled Caste / Tribe and Managing Director, Scheduled Tribe Cooperative Development Corporation. Therefore, the learned Single Judge committed an error in not entertaining the writ application and relegating the petitioner to seek a declaration from the competent civil court. Learned Senior Counsel has submitted that the very issue whether 'Gaur / Gond' community is to be treated as a Scheduled Tribe and the same as 'Gond', has been decided by the Government of Bihar vide its DOPT resolution dated 20th July 2007 which is enclosed as annexure-13 to the instant appeal. It is submitted that the State of Jharkhand in the revised list of Most backward caste and backward caste published on 31st March 2010 vide resolution no. 1816 of DOPT, Government of Jharkhand, has also deleted 'Gond' community from the list of Most backward Class at serial no. 24 of the earlier list. According to the appellant, Sub Divisional Officer, Pakur issued a caste certificate in favour of the petitioner on 2nd September 2005 (Annexure-5) categorically declaring him to be the member of the Scheduled Tribe category which cannot be annulled by the Sub Divisional Magistrate in a election petition preferred by the respondent no. 4. 24 of the earlier list. According to the appellant, Sub Divisional Officer, Pakur issued a caste certificate in favour of the petitioner on 2nd September 2005 (Annexure-5) categorically declaring him to be the member of the Scheduled Tribe category which cannot be annulled by the Sub Divisional Magistrate in a election petition preferred by the respondent no. 4. It is submitted that the impugned order passed by the Sub Divisional Magistrate therefore suffers from complete lack of jurisdiction and the only authority which could have determined the correctness of the caste certificate, is the Caste Scrutiny Committee created by the State of Jharkhand in terms of judgment passed by the Hon'ble Supreme Court in the case of Kumari Madhuri Patil (Supra). Counsel for the appellant submits that the list of most backward caste published in the year 1991 for the purposes of reservation under The Bihar Reservation of Vacancies in Posts and Services (For Scheduled Castes, Scheduled Tribes and other Backward Classes) Ordinance, 1991 earlier contained the 'Gour' or 'Gonr' community in the list of Extremely Backward and Backward Classes at serial no. 24. The matter was though considered by the State of Bihar and by resolution dated 20th July 2007, 'Gour/Gonr' community and 'Gond' community have been treated to be the member of the Scheduled Tribe Community. The State of Jharkhand have also followed the same resolution vide annexure-12 and deleted the 'Gour' / 'Gonr' community from the list of Most Backward Classes. The appellant deserves to be treated as a member of the scheduled tribe and his election could not have been set aside by the Sub Divisional Officer, Pakur in the election appeal no. 01/12-13 at the instance of the respondent no. 4. It has been further submitted on behalf of the learned Senior Counsel that the learned Single Judge has failed to appreciate the entire facts and erroneously dismissed the writ petition. 6. Counsel for the respondent State submits by referring to the annexure contained in the counter affidavit filed on their behalf in the writ petition that 'Gour' caste has been declared a most backward class category and not a scheduled tribe. The appellant having contested the election as a scheduled tribe candidate on forged claim of being a scheduled tribe candidate, which he actually did not belong, his election has rightly been set aside in election appeal by the Sub Divisional Officer, Pakur. The appellant having contested the election as a scheduled tribe candidate on forged claim of being a scheduled tribe candidate, which he actually did not belong, his election has rightly been set aside in election appeal by the Sub Divisional Officer, Pakur. Even the ancestor of the appellant have been indicated in the record of rights as the community belonging to 'Minoti Gour' i.e. 'Gour' community which is a backward caste. 7. Learned counsel appearing on behalf of the respondent no. 4 has also submitted that the appellant had falsely declared himself to be the member of the Scheduled Tribe Category and accordingly got elected in Shaharkol Panchayat in the post of Mukhiya which was a reserve post of schedule tribe category person. According to the learned counsel, under the Presidential Order of 1950, it is the 'Gond' community indicated at serial no. 11 contained at Sixth Schedule of Bihar Reorganization Act which has been declared to be a scheduled tribe community. He further referred to Khatiyan of mouza Kohaljore which also indicates that the ancestor of the appellant hail from 'Gour' community. Learned counsel has further drawn attention of this court to the certificate issued by the Sub Divisional Officer in favour of the brothers of the appellant which are annexed to the counter affidavit whereunder also, brothers of the appellant namely, Prakash Gour and Vikash Gour both sons of Shyamlal Gour who is father of the appellant, have been declared to be belonging to the most backward class and not scheduled tribe category. Such certificate is dated 3rd December 2008 and 1st December 2008 respectively. It is submitted that in the wake of the aforesaid facts, since the election of the appellant was based upon the doubtful document, the appellate authority-cum-Sub Divisional Magistrate, Pakur after due consideration of the matter and after taking into account the inquiry report, rightly set aside the election of the appellant. The respondent no. 4 a candidate having second highest number of votes in his favour, was rightfully entitled to hold the post of Mukhiya being a member of the scheduled tribe community. In such circumstances, the learned Single Judge rightly dismissed the writ petition where such disputed question of facts are involved. The writ petitioner has failed to prima facie satisfy the court that he belongs to the scheduled tribe category. 8. In such circumstances, the learned Single Judge rightly dismissed the writ petition where such disputed question of facts are involved. The writ petitioner has failed to prima facie satisfy the court that he belongs to the scheduled tribe category. 8. On the question of fact relating to caste of a candidate when there are concurrent findings recorded by the Election Tribunal as also by the learned Single Judge, counsel for the respondent no. 4 submits that the same is not required to be interfered with in an appeal by this Court. 9. We have heard learned counsel for the parties and gone through the relevant materials on record including the impugned judgment. The Presidential Notification has been annexed by way of supplementary affidavit by the appellant at Annexure-2 and part of Sixth Schedule of Bihar Reorganization Act whereunder 'Gond' caste has been declared to be a Scheduled Tribe in the State of Jharkhand. A perusal of the certificates enclosed in the supplementary affidavit filed by the appellant discloses the name of the appellant's father as Shyamlal Gour. However, in the caste certificate dated 2nd September 2005, the appellant's name has been indicated as Madan Mohan Gond', son of Shyamlal Gond being a member of the Scheduled Tribe community. The fact that the brothers of the appellant namely, Prakash Gour and Vikash Gour have been granted caste certificate of Most Backward Caste, has also not been denied by the appellant. 10. Reliance by the appellant upon the list of Most Backward Class, Extremely Backward Class contained in the schedule to the Bihar Reservation of Vacancies in Posts and Services (For Scheduled Castes, Scheduled Tribes and other Backward Classes) Ordinance, 1991 where 'Gour' or 'Gonr' class is indicated at serial no. 24 only raises the presumption against the appellant that the said caste were actually not the scheduled tribes, but member of the Most Backward Class category. 11. Reliance of the appellant upon the resolution dated 20th July 2007 issued by the DOPT, Government of Bihar having been issued by the successor State of Bihar, is of no help to the appellant. Even contention of the appellant that the caste 'Gour' having been deleted in the revised list of Most Backward Caste vide resolution dated 31st March 2010 by DOPT, Government of Jharkhand, cannot led to inference that the same has been treated to be a member of the scheduled tribe. Even contention of the appellant that the caste 'Gour' having been deleted in the revised list of Most Backward Caste vide resolution dated 31st March 2010 by DOPT, Government of Jharkhand, cannot led to inference that the same has been treated to be a member of the scheduled tribe. It is well settled position in law that the declaration of Scheduled Tribe and Scheduled Caste are made on Presidential Notification issued in exercise of powers conferred under Article 341 and 342 of the Constitution of India. Article 341 provides that the President may after consultation with the Governor of a particular State, by public notification specify the tribe and tribal community or parts of or tribal groups within tribe or tribal community which shall for the purposes of this Constitution deemed to be Scheduled Tribes in relation to that State. Article 341, Sub-Clause-2 further provides that the Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe of tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. It has been held in catena of judgments rendered by the Hon'ble Supreme Court in the matter of Presidential Order issued under Article 342 relating to the Scheduled Tribe that the Court cannot add or subtract any entry. Any amendment to the Presidential Order can only be done by Union Legislature. The contention of the appellant based upon the resolution of DOPT, Government of Bihar as also the deletion of the caste 'Gaur' from the list of Most Backward Class by the resolution of Government of Jharkhand dated 31st March 2010, cannot lead to conclusion that the 'Gour' community is also a scheduled tribe community. A perusal of the impugned order indicates that the Appellate Authority considered the aforesaid aspect of the matter after giving due opportunity to the appellant as well as to the private respondent and also considered the inquiry report prepared pursuant to the direction of the Deputy Commissioner, Pakur and came to the conclusion that the election of the appellant on the basis of being scheduled tribe category person, was not proper. It therefore set aside the election of the appellant. It therefore set aside the election of the appellant. Upon consideration of the documents brought on record and pointed out herein above, it therefore appears that the appellant's claim of belonging to the scheduled tribe community, was based upon documents which were doubtful in nature and did not conclusively establish that he belongs to the Scheduled Tribe Community within the State of Jharkhand where under the Presidential Notification, 'Gond' community and not 'Gaur' community has been declared to be a scheduled tribe community. 12. Though observation of the learned Single Judge that the petitioner is required to seek declaration from the competent Civil Court may not be correct, but we in the ultimate analysis, do not find any reason to interfere with the conclusion reached by the learned Single Judge that the order impugned in the writ petition did not require any interference. Therefore, we are not inclined to entertain the instant appeal, which is accordingly dismissed. Appeal dismissed.