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Uttarakhand High Court · body

2017 DIGILAW 623 (UTT)

Chatar Dutt Joshi v. State

2017-11-21

RAJIV SHARMA

body2017
JUDGMENT : Rajiv Sharma, J. Petitioner has challenged the Scheduled Tribes Caste Certificate issued in favour of respondent nos.5 and 6 on 16.07.1984 and 08.07.2006 respectively. 2. The case of the petitioner, in a nutshell, is that the respondent nos.5 and 6 are Nepali Gorkhas in origin and they could not be issued Scheduled Tribes certificates. 3. Petitioner has placed reliance upon the report furnished by Lekhpal on 14.12.2006. The complaint was lodged by the petitioner. The matter was looked into by Tehsildar i.e. respondent no.4 vide report dated 09.12.2006. 4. Shri Ran Bahadur was the father of respondent no.5 and grandfather of respondent no.6. 5. It is evident from the report dated 09.12.2006 that a land measuring 1.17 acre was registered in the Revenue records in the year 1949-50, in the name of Ran Bahadur, Nar Bahadur and Dhan Bahadur. In the year 1963, land measuring 3.26 acre was registered in the name of Ran Bahadur. 6. The father of Bachan Singh, Mr. Major Singh has obtained his education from Junior High School, Tiuni, Chakrata. His date of birth is registered as 25.09.1955. His caste was registered as Rajput. The father of Mr. Major Singh was residing in village Darmigaad, before independence. In the electoral roll, the name of Mr. Ran Bahadur was registered at Sl. No.398 and the name of Mr. Major Singh was registered at Sl. No.403. 7. In the subsequent revenue records, the names of father and grandfather of respondent nos.5 and 6 are entered. Mr. Major Singh was working as in-charge Post office at village Darmigaad. The marriage of the family members of respondent nos.5 and 6 was solemnized in the same area. Respondent nos.5 and 6 were issued Scheduled Tribes Caste Certificates on 16.07.1984 and 08.07.2006 respectively. 8. The Ministry of Law has issued notification on 24.06.1967, whereby the tribes or tribal communities, or parts of, or groups within, tribes or tribal communities, specified in the Schedule to the Order, shall, for the purpose of the Constitution of India be deemed to be Scheduled Tribes in relation to the State of Uttar Pradesh so far as regards members thereof resident of that State. In the schedule, Jaunasari is mentioned at Sl. No.3. Respondent nos.5 and 6 are residing in Jaunasari area. 9. The Secretary, Ministry of Tribal Affairs, Govt. of India has sent a communication on 10.09.2001 to the Secretary, Social Welfare Department, Govt. In the schedule, Jaunasari is mentioned at Sl. No.3. Respondent nos.5 and 6 are residing in Jaunasari area. 9. The Secretary, Ministry of Tribal Affairs, Govt. of India has sent a communication on 10.09.2001 to the Secretary, Social Welfare Department, Govt. of Uttranchal for exclusion of Khasa Jaunsaris viz. Rajputs and Brahmins who are relatively advanced sections from the Scheduled Tribes category. A copy of letter dated 10.09.2011 was placed on record by learned counsel for the respondent nos.5 and 6. However, the Govt. of Uttranchal under its letter dated 28.08.2001 has interalia suggested that the original entry may be retained. 10. Learned counsel for the petitioner has vehemently argued that every person belonging to Jaunsar cannot claim themselves to be Scheduled Tribes. It is evident from the notification dated 24.06.1967 that all the persons irrespective of their castes living in Jaunsari area were to be converted into Scheduled Tribes status. 11. Respondent nos.5 and 6 were born in India after its independence. The Sub-Divisional Magistrate, Tyuni has also sent the report to the Secretary, Scheduled Castes and Scheduled Tribes Commission, State of Uttarakhand on 14.12.2007. The Sub-Divisional Magistrate, Tyuni has recorded the statements of witnesses of complainant as well as respondent nos.5 and 6. 12. He has also referred to the inquiry conducted by respondent no.3 on 09.12.2006, on which, much reliance was placed, pertains to removal of illegal encroachment. It has nothing to do with the issuance of caste certificate. 13. In AIR 1964 Patna 201, in the case of “Kartik Oraon vs. David Munzni & another”, the Division Bench of Patna High Court has defined the term “Tribe” as under: - “14. "Tribe" has been defined in Encyclopaedia Britannica, Volume 22, 1961 edition, at page 465, by W. H. R. Rivers as "a social group of a simple kind, the members of which speak a common dialect, have a single government, and act together for such common purposes as "warfare". Other typical characteristics include a common name, a contiguous territory, a relatively uniform culture or way of life and a tradition of common descent. Tribes are usually composed of a number of local communities, e.g., bands, villages or neighbourhoods, and are often aggregated in clusters of a higher order called nations. Other typical characteristics include a common name, a contiguous territory, a relatively uniform culture or way of life and a tradition of common descent. Tribes are usually composed of a number of local communities, e.g., bands, villages or neighbourhoods, and are often aggregated in clusters of a higher order called nations. The term is seldom applied to societies that have achieved a strictly territorial organization in large states but is usually confined to groups whose unity is based primarily upon a sense of extended kinship ties. It is no longer used for kin groups in the strict sense, such as clans." 14. In AIR 1995 Orissa 267, in the case of “Ismile Guru vs. State of Orissa”, the Division Bench of Orissa High Court has underlined the factors to be considered for issuance of social status certificate. The Division Bench has held as under: - “8. The aforesaid aspects have not been considered by the Tahasildar. In the fitness of things, therefore, he should re-examine the matter keeping in view the guidelines indicated by the apex Court in Kumari Madhuri Patil's case (supra). The State is directed to forthwith take steps as directed by the apex Court in the said case. The petitioner shall be granted opportunity to place materials on record in support of his stance and if he so desires may cross-examine the witnesses already examined. The impugned order dated 10-12-1994 vide Annexure-8 is quashed, and the matter is remitted back to the Tahasildar for fresh consideration as directed above.” 15. In 2005 (10) SCC 301 , in the case of “A.S. Nagendra & others vs. State of Karnataka & others”, their Lordships of the Hon’ble Supreme Court have held that appropriate authority to interpret Presidential Order of 1950 would be the National Commission for SCs and STs established under Article 338. Their Lordships have held as under: - “6. In our opinion the appropriate authority to decide this issue, namely, the interpretation of the Presidential Order of 1950, would be the National Commission for Scheduled Castes and Scheduled Tribes established under Article 338 of the Constitution. Their Lordships have held as under: - “6. In our opinion the appropriate authority to decide this issue, namely, the interpretation of the Presidential Order of 1950, would be the National Commission for Scheduled Castes and Scheduled Tribes established under Article 338 of the Constitution. We may have considered referring the matter to the State Commission for Scheduled Castes and Scheduled Tribes as constituted by the Karnataka State Commission for Scheduled Castes and Scheduled Tribes Act, 2002, had the State Government shown any predisposition to determine the issue as directed by this Court’s order in the earlier writ proceedings. 7. We accordingly direct the National Commission to look into the matter and to submit a report before this Court after hearing all affected parties within a period of six months from the date of service of copy of this order. The parties are at liberty to place such material before the National Commission in addition to and over and above the material already referred to, as they may think fit, in order to enable the National Commission to determine the issue correctly.” 16. Learned counsel for the petitioner has also argued that the respondent nos.5 and 6 are not the domicile of Jaunsar area. 17. In AIR 1955 SC 36 , in the case of “Central Bank of India Ltd. vs. Ram Narain”, their Lordships of the Hon’ble Supreme Court have held laid down the principle to determine domicile as under: - “6. The question of nationality of Ram Narain really does not arise in the case. The real question to be determined here is, whether Ram Narain had Indian domicile at the time of the commission of the offence. Persons domiciled in India at the time of coming into force of our Constitution were given the status of citizens and they thus acquired Indian nationality. If Ram Narain had Indian domicile at the time of the commission of the offence, he would certainly come within the ambit of Section 4 of the Indian Penal Code, and Section 188 of the Criminal Procedure Code. If, on the other hand, he was not domiciled in India at the relevant moment, those sections would have no application to his case. Writers on Private International Law are agreed that it is impossible to lay down an absolute definition of “domicile”. If, on the other hand, he was not domiciled in India at the relevant moment, those sections would have no application to his case. Writers on Private International Law are agreed that it is impossible to lay down an absolute definition of “domicile”. The simplest definition of this expression has been given by Chitty, J. in Craignish v. Craignish wherein the learned Judge said: “That place is properly the domicile of a person in which his habitation is fixed without any present intention of removing therefrom.” But even this definition is not an absolute one. The truth is that the term “domicil” lends itself to illustrations but not to definition. Be that as it may, two constituent elements that are necessary by English law for the existence of domicil are: (1) a residence of a particular kind, and (2) an intention of a particular kind. There must be the factum and there must be the animus. The residence need not be continuous but it must be indefinite, not purely fleeting. The intention must be a present intention to reside for ever in the country where the residence has been taken up. It is also a well established proposition that a person may have no home but he cannot be without a domicil and the law may attribute to him a domicil in a country where in reality he has not. A person may be a vagrant as when he lives in a yacht or wanderer from one European hotel to another, but nevertheless the law will arbitrarily ascribe to him a domicil in one particular territory. In order to make the rule that nobody can be without a domicil effective, the law assigns what is called a domicil of origin to every person at his birth. This prevails until a new domicil has been acquired, so that if a person leaves the country of his origin with an undoubted intention of never returning to it again, nevetheless his domicil of origin adheres to him until he actually settles with the requisite intention in some other country. 8. In our opinion, none of these circumstances conclusively indicate an intention in Ram Narain of permanently removing himself from Pakistan and taking up residence in India. It has to be remembered that in October or November 1947, men’s minds were in a state of flux. 8. In our opinion, none of these circumstances conclusively indicate an intention in Ram Narain of permanently removing himself from Pakistan and taking up residence in India. It has to be remembered that in October or November 1947, men’s minds were in a state of flux. The partition of India and the events that followed in its wake in both Pakistan and India were unprecedented and it is difficult to cite any historical precedent for the situation that arose. Minds of people affected by this partition and who were living in those parts were completely unhinged and unbalanced and there was hardly any occasion to form intentions requisite for acquiring domicil in one place or another. People vacillated and altered their programmes from day to day as events happened. They went backward and forward; families were sent from one place to another for the sake of safety. Most of those displaced from West Pakistan had no permanent homes in India where they could go and take up abode. They overnight became refugees, living in camps in Pakistan or in India. No one, as a matter of fact, at the moment thought that when he was leaving Pakistan for India or vice versa that he was doing so for ever or that he was forever abandoning the place of his ancestors. Later policies of the Pakistan Government that prevented people from going back to their homes cannot be taken into consideration in determining the intention of the people who migrated at the relevant moment. Ram Narain may well have sent his family to India for safety. As pointed out by the learned Judge below, he and his ancestors lived in the Multan district. He had considerable business there. The bank had given him a cash credit of rupees three lakhs on the security of goods. He had no doubt some business in Hodel also but that was comparatively small. There is no evidence that he had any home in India and there is no reason to go behind the finding of the learned Judge below that he and his ancestors had been living in Mailsi. He had no doubt some business in Hodel also but that was comparatively small. There is no evidence that he had any home in India and there is no reason to go behind the finding of the learned Judge below that he and his ancestors had been living in Mailsi. In these circumstances, if one may use the expression, Ram Narain’s domicil of origin was in the district of Multan and when the district of Multan fell by the partition of India in Pakistan, Ram Narain had to be assigned Pakistan domicil till the time he expressed his unequivocal intention of giving up that domicil and acquiring Indian domicil and also took up his residence in India. His domicil cannot be determined by his family coming to India and without any finding that he had established a home for himself. Even if the animus can be ascribed to him the factum of residence is wanting in his case; and in the absence of that fact, an Indian domicil cannot be ascribed to Ram Narain. The subsequent acquisition by Ram Narain of Indian domicil cannot affect the question of jurisdiction of courts for trying him for crimes committed by him while he did not possess an Indian domicile. The question in this case can be posed thus: Can it be said that Ram Narain at the time of the commission of the offence was domiciled in India? That question can only be answered in one way viz. that he was not domiciled in India. Admittedly, then he was not a citizen of India because that status was given by the Constitution that came into force in January 1950. He had no residence or home in the Dominion of India. He may have had the animus to come to India but that animus was also indefinite, and uncertain. There is no evidence at all that at the moment he committed the offence he had finally made up his mind to take up his permanent residence in India, and a matter of this kind cannot be decided on conjectural grounds. It is impossible to read a man’s mind but it is even more than impossible to say how the minds of people worked during the great upheaval of 1947.” 18. It is impossible to read a man’s mind but it is even more than impossible to say how the minds of people worked during the great upheaval of 1947.” 18. In 1973 (1) SCC 451 , in the case of “Abdus Samad vs. State of West Bengal”, their Lordships of the Hon’ble Supreme Court have again explained the meaning of word “domicile”, as under:- “6. In the present case the domicile of origin communicated by operation of law to the appellant at birth at Sylhet could not on partition of India be called Indian. The domicile of choice is that every person of full age is free to acquire in substitution for that which he possesses at the time of choice. By domicile is meant a permanent home. Domicile means the place which a person has fixed as a habitation of himself and his family not for a mere special and temporary purpose, but with present intention of making it his permanent home. Domicile of choice is thus the result of a voluntary choice. 7. Every person must have a domicile. A person cannot have two simultaneous domiciles. Domicile denotes connection with the territorial system of law. The burden of proving a change in domicile is on those who allege that a change has occurred. 8. The High Court found that there were no materials to show that the appellant was not a resident of India for five years before the commencement of the Constitution. But in order to attract Article 5(c) of the Constitution the appellant must have Indian domicile. Mere residence is not domicile. There must have been the intention of the appellant on the partition of India to remain in India permanently. The intention of mind of the appellant is indicated by two principal facts. First, the appellant had a Pakistani passport in 1952. Second, the appellant made an application under Section 5 of the Indian Citizenship Act for registration as an Indian citizen after the appellant had been given notice under the Foreigners Act to leave India.” 19. In 2000 (2) SCC 20 , in the case of “Union of India & others vs. Dudh Nath Prasad”, their Lordships of the Hon’ble Supreme Court have explained the difference between ‘resident’ and ‘domicile’ as under: - “26. In 2000 (2) SCC 20 , in the case of “Union of India & others vs. Dudh Nath Prasad”, their Lordships of the Hon’ble Supreme Court have explained the difference between ‘resident’ and ‘domicile’ as under: - “26. Etymologically, “residence” and “domicile” carry the same meaning, inasmuch as both refer to the “permanent home”, but under private international law, “domicile” carries a little different sense and exhibits many facets. In spite of having a permanent home, a person may have a commercial, a political or forensic domicile. “Domicile” may also take many colours; it may be the domicile of origin, domicile of choice, domicile by operation of law or domicile of dependence. In private international law, “domicile” jurisprudentially has a different concept altogether. It plays an important role in the conflict of laws. The subject has been elaborately considered by Dicey in his book Conflict of Laws (6th Edn.) as also in another book by Phillimore on domicil. An equally valuable discussion is to be found in Private International Jurisprudence by Foote and by Westlake on private international law. 28. In view of the above, the concept of “domicile” as canvassed by learned counsel for the appellants with reference to change of nationality or change of domicile from one country to another, cannot be imported in the present case. Moreover, “domicile” and “residence” are relative concepts and have to be understood in the context in which they are used, having regard to the nature and purpose of the statute in which these words are used. We are principally concerned with the expression “ordinarily reside” as used in the Note to para 5 of the “Instructions” and the expression “ordinarily resident” used in Section 20 of the Representation of the People Act, 1950. This Act and the Representation of the People Act, 1951, both deal with the election matters including delimitation of constituencies, right to contest the election as also right to vote in a constituency.” 20. In 2002 (2) SCC 29 , in the case of “Chandigarh Housing Board & another vs. Gurmit Singh”, their Lordships of the Hon’ble Supreme Court have held that the word “domicile” in Regulation 6 has been employed in popular or loose sense in contradiction to the words “bona fide” resident of Chandigarh. In 2002 (2) SCC 29 , in the case of “Chandigarh Housing Board & another vs. Gurmit Singh”, their Lordships of the Hon’ble Supreme Court have held that the word “domicile” in Regulation 6 has been employed in popular or loose sense in contradiction to the words “bona fide” resident of Chandigarh. The popular and loose meaning of the expression “domicile” in Regulation 6 is permanent home or intention to live permanently or indefinitely within the Union Territory of Chandigarh. Their Lordships have held as under: - “9. A perusal of Regulation 6 shows that one of the eligibility criteria for submitting an application for allotment of flat is that the applicant should be a domicile of the Union Territory of Chandigarh. The expression “domicile” employed in Regulation 6 has not been used in technical sense, as referred to in Article 5 of the Constitution or as stated by this Court in the context of Article 5 of the Constitution in Dr Pradeep Jain case. The word “domicile” in Regulation 6 has been employed in popular or loose sense in contradiction to the words “bona fide resident of Chandigarh for a period of at least three years”. The popular and loose meaning of the expression “domicile” in Regulation 6 is permanent home or intention to live permanently or indefinitely within the Union Territory of Chandigarh. We are, therefore, required to assign the meaning of the expression “domicile” in Regulation 6 not in technical sense in which it is used in private international law but what is understood in popular or loose sense. Applying the popular meaning of the expression “domicile” it means a person must be having permanent home in Chandigarh or he being there for years with the intention to live permanently or indefinitely.” 21. In the instant case, respondent nos.5 and 6 are residing in Jaunsari area for more than three decades. 22. The Sub-Divisional Magistrate, Tyuni has sent the report to the Secretary, Scheduled Castes and Scheduled Tribes Commission, State of Uttarakhand, as per Annexure No.3. 23. It is not apparent from the record whether the Commission has decided the complaint or not finally. 24. 22. The Sub-Divisional Magistrate, Tyuni has sent the report to the Secretary, Scheduled Castes and Scheduled Tribes Commission, State of Uttarakhand, as per Annexure No.3. 23. It is not apparent from the record whether the Commission has decided the complaint or not finally. 24. Accordingly, the writ petition is disposed of with the direction to the Scheduled Castes and Scheduled Tribes Commission to decide the complaint, if not already decided, in view of the observations made hereinabove, within three months from the production of a certified copy of this order.