Research › Search › Judgment

Gujarat High Court · body

2018 DIGILAW 879 (GUJ)

Geetaben Maheshbhai Vasava v. State of Gujarat

2018-07-19

R.SUBHASH REDDY, V.M.PANCHOLI

body2018
JUDGMENT : V.M. Pancholi, J. 1. This appeal under Clause-15 of the Letters Patent is directed against the order dated 22.06.2018 passed by the learned Single Judge in Special Civil Application No. 8696 of 2018 by which the learned Single Judge has dismissed the petition. 2. The brief facts leading to the filing of the present appeal are as under : 2.1 It is a case of the petitioner that she is a resident of Rajpipla and belongs to a member of Scheduled Tribe community and, therefore, she obtained Tribal Certificate from the competent authority on 05.12.2006. The mother of the petitioner, namely, Kamlaben was daughter of Limjibhai Vasava. Kamlaben married to one Ramchandra Soni. Out of the said wedlock of Kamlaben Vasava and Ramchandra Soni, there were five children and the petitioner is the second child. It is stated that the father of the petitioner had, after the year 1980, abandoned the mother of the petitioner as well as her children, therefore, the mother of the petitioner, namely, Kamlaben and her children including the petitioner had associated with the tribal community and brought up in the said community. It is further stated that in the School Leaving Certificate of the petitioner, the surname is written as 'Vasava' and surname of her brothers and sisters was also shown as 'Vasava' and not 'Soni'. The petitioner had not received any advantageous start because of her father, who was hailing from upper caste. The petitioner, therefore, has also faced hardships and deprivation, indignities, humilities and handicaps. 2.2 It is further stated that in the year 2015, election of Rajpipla Nagarpalika was declared and in Ward No. 5, one seat was reserved for Scheduled Tribe female. The petitioner had filled up her nomination form. Respondent No. 5 had also filled up her nomination form from the said seat from another political party. In the said election, the petitioner was declared elected and, thereafter, respondent No. 5 filed election petition challenging the election of the petitioner on the ground that the petitioner does not belong to tribal community and, therefore, the election is to be cancelled. It is stated that after the trial, Additional District Judge, Narmada, set aside the election of the petitioner. Against the said order, the petitioner filed Special Civil Application No. 12853 of 2018 before this Court. It is stated that after the trial, Additional District Judge, Narmada, set aside the election of the petitioner. Against the said order, the petitioner filed Special Civil Application No. 12853 of 2018 before this Court. The Division Bench of this Court directed respondent No. 2 to verify Certificate dated 05.12.2006 issued by the Mamlatdar. 2.3 It is the case of the petitioner that as per the order dated 31.08.2017 passed by this Court, an inquiry was handed over to the Vigilance Cell for verifying the genuineness of the certificate. The Vigilance Cell submitted its Report after carrying out an inquiry and thereafter respondent No. 2 issued notice to the petitioner for production of documents. The petitioner produced documentary evidence. However, it is alleged that without taking into consideration the documentary evidence produced by the petitioner, the order dated 30.05.2018 came to be passed by respondent No. 2, by which the Caste Certificate of the petitioner issued on 05.12.2006 by the Mamlatdar has been cancelled. 2.4 The petitioner, therefore, challenged the said order by filing the captioned petition before this Court. The learned Single Judge, by the impugned order, dismissed the said petition and, therefore, the present appeal is filed by the appellant - petitioner. 3. Heard learned advocate Mr. V.C. Vaghela appearing for the appellant - petitioner and learned Additional Advocate General Mr. P.K. Jani with learned Assistant Government Pleader Mr. D.M. Devnani for the respondent authorities. 4. Learned advocate for the appellant - petitioner assailed the impugned order dated 22.06.2018 passed by the learned Single Judge mainly on the ground that the respondent authorities as well as the learned Single Judge have failed to consider the fact that though the father of the petitioner belonged to upper caste, actually she was brought up by her mother, who belongs to Scheduled Tribe and had also married to Scheduled Tribe person. It is submitted that respondent No. 2 has also not properly considered the documentary evidence produced by the petitioner in support of her case that when she was admitted in the School, her surname was shown as 'Vasava' and School Leaving Certificates of brother and sisters also reflect their surname as 'Vasava'. It is contended that though the father of the petitioner was Hindu Soni and hailing from upper caste, he has abandoned the mother of the petitioner and, therefore, the petitioner was brought up by her mother. It is contended that though the father of the petitioner was Hindu Soni and hailing from upper caste, he has abandoned the mother of the petitioner and, therefore, the petitioner was brought up by her mother. The petitioner had faced hardships and deprivation, indignities, humilities and handicaps and she did not get advantageous start in her life. 4.1 Learned advocate Mr. Vaghela has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Rameshbhai Dabhai Naika Vs. State of Gujarat and Ors. reported in 2012 (1) GLH 448 and submitted that the Hon'ble Supreme Court has held that in an inter caste marriage or a marriage between a tribal and a non-tribal, the determination of the caste of the offspring is essentially a question of fact to be decided on the basis of the facts adduced in each case. In an inter-caste marriage or a marriage between a tribal and a non-tribal, there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in an inter-caste marriage or a marriage between a tribal or a non-tribal, the husband belongs to a forward caste. However, such presumption is not conclusive or irrebuttable and it is open for the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the Scheduled Caste/Scheduled Tribe. However, respondent No. 2 as well as learned Single Judge have not properly appreciated the said decision rendered by the Hon'ble Supreme Court. It is, therefore, urged by the learned advocate for the appellant - petitioner that the impugned order be set aside. 5. Per contra, learned Additional Advocate General Mr. P.K. Jani appearing for the respondent authorities has mainly submitted that the father of the petitioner, namely, Ramchandra Soni belonged to upper caste and married to Kamlaben Vasava, who belonged to Scheduled Tribe. The petitioner was admitted to Primary School at Rajpipla on 22.07.1985. The School Leaving Certificate was issued by the concerned School in which the name of the petitioner is reflected as "Vasava Geetaben Ramchandra". It is stated that in the year 1996, the father of the petitioner died and, thereafter, the petitioner, her sisters and brothers have inherited the property of their father, namely, Ramchandra Soni. The School Leaving Certificate was issued by the concerned School in which the name of the petitioner is reflected as "Vasava Geetaben Ramchandra". It is stated that in the year 1996, the father of the petitioner died and, thereafter, the petitioner, her sisters and brothers have inherited the property of their father, namely, Ramchandra Soni. From the documentary evidence produced on record, the learned Additional Advocate General has pointed out that in the Caste Certificate dated 05.12.2006 issued by the Mamlatdar, the name of the petitioner is shown as "Kumari Vasava Geetaben Maheshbhai" as daughter of "Vasava Maheshbhai Bhikhabhai". It is submitted that in fact, the petitioner Geetaben is wife of Maheshbhai Vasava. It is also pointed out from the affidavit-in-reply that when the inquiry is made in the Office of the Mamlatdar with respect to the application made by the appellant - petitioner and the relevant documents submitted by her for obtaining Caste Certificate, no records were found from the office. 5.1 Learned Additional Advocate General thereafter referred the order dated 22.06.2017 passed by the Additional District Judge, Narmada, in Special Election Petition No. 1 of 2015 and, more particularly, the findings recorded against the petitioner in the order. At this stage, learned Additional Advocate General has also referred the order dated 30.05.2018 passed by respondent No. 2 while cancelling the Caste Certificate of the petitioner and, thereafter, contended that the petitioner has failed to point out before respondent No. 2 that she was brought up by her mother, as her father has abandoned her mother. It is contended that in absence of convincing material produced before respondent No. 2, respondent No. 2 has rightly cancelled the Caste Certificate of the petitioner. Relying upon the said order and the facts of the present case, the learned Single Judge has rightly dismissed the petition and, therefore, no error is committed by the learned Single Judge. It is, therefore, urged that this appeal be dismissed. Relying upon the said order and the facts of the present case, the learned Single Judge has rightly dismissed the petition and, therefore, no error is committed by the learned Single Judge. It is, therefore, urged that this appeal be dismissed. 5.2 Learned Additional Advocate General has placed reliance upon the following decisions in support of his contentions : (1) Kumari Madhuri Patil v. Additional Commissioner, Tribal Development reported in 1994 (6) SCC 241 (2) Punit Rai v. Dinesh Chaudhary reported in 2003 (8) SCC 204 (3) R. Vishwanatha Pillai v. State of Kerala reported in 2004 (2) SCC 105 (4) Dayaram v. Sudhir Batham reported in 2012 (1) SCC 333 (5) Rameshbhai Dabhai Naika v. State of Gujarat and Ors. reported in 2012 (3) SCC 400 (6) Kesriben Haribhai Gamar v. State of Gujarat reported in 2015 (1) GLH 107 (7) Food Corporation of India v. Jagdish Balram Bahira reported in 2017 (8) SCC 670 (8) Sunita Singh V. State of Uttar Pradesh reported in 2018 (2) SCC 493 6. We have considered the submissions canvassed by learned advocates appearing for the parties. We have also gone through the material produced on record. From the material produced before us, it has emerged that the petitioner obtained Tribal Certificate from concerned Mamlatdar on 05.12.2006. On the basis of the said certificate, she contested the election of Rajpipla Nagarpalika in the year 2015 from the reserved seat of Scheduled Tribe female. In the said election, the petitioner was declared elected whereas respondent No. 5 has lost the said election. Respondent No. 5, therefore, filed the election petition before the concerned District Court on the ground that the petitioner does not belong to tribal community and, therefore, her election be cancelled. The Additional District Judge, Narmada, vide order dated 22.06.2017, allowed the said election petition and thereby set aside the election of the petitioner on the ground that though the petitioner does not belong to Scheduled Tribe, she had contested the election on the said reserved seat. Against the said order, the petitioner has filed Special Civil Application No. 12853 of 2017 before this Court. During the pendency of the said petition, the Division Bench of this Court directed respondent No. 2 to verify Certificate dated 05.12.2006 issued by the Mamlatdar in favour of the petitioner. Against the said order, the petitioner has filed Special Civil Application No. 12853 of 2017 before this Court. During the pendency of the said petition, the Division Bench of this Court directed respondent No. 2 to verify Certificate dated 05.12.2006 issued by the Mamlatdar in favour of the petitioner. It is further revealed that the inquiry was conducted by the Vigilance Cell as per the direction issued by the Hon'ble Supreme Court in the case of Kumari Madhuri Patil v. Additional Commissioner, Tribal Development (supra). Thereafter, the concerned Committee followed the required procedure and the petitioner was asked to produce the documentary evidence in support of her case. The petitioner produced documentary evidence in support of her case that she belongs to Scheduled Tribe community. It further transpires that after considering the documentary evidence and after considering the case put forward by the petitioner, respondent No. 2 cancelled the Caste Certificate issued by the concerned Mamlatdar. 7. At this stage, we would like to refer the relevant decisions upon which the reliance is placed by the learned advocates appearing for the parties. In the case of Kumari Madhuri Patil v. Additional Commissioner, Tribal Development (supra), the Hon'ble Supreme Court has observed in Paragraph-14 as under : "14. 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 record 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 recorded the finding. Each case must be considered in the backdrop of its own facts." 8. In the case of Punit Rai v. Dinesh Chaudhary (supra), the Hon'ble Supreme Court has observed in Paragraph-26 as under : "26. The caste system in India is engrained in Indian mind. Each case must be considered in the backdrop of its own facts." 8. In the case of Punit Rai v. Dinesh Chaudhary (supra), the Hon'ble Supreme Court has observed in Paragraph-26 as under : "26. The caste system in India is engrained in Indian mind. A person, in the absence of any statutory law, would inherit his caste from his father and not his mother even in a case of inter-caste marriage." 9. In the case of Rameshbhai Dabhai Naika Vs. State of Gujarat and Ors. (supra), the Hon'ble Supreme Court has observed in Paragraph-43 as under: "43. In view of the analysis of the earlier decisions and the discussion made above, the legal position that seems to emerge is that in an inter-caste marriage or a marriage between a tribal and a non-tribal the determination of the caste of the offspring is essentially a question of fact to be decided on the basis of the facts adduced in each case. The determination of caste of a person born of an inter-caste marriage or a marriage between a tribal and a non-tribal cannot be determined in complete disregard of attending facts of the case. In an inter-caste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. This presumption maybe stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal the husband belongs to a forward caste. But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the scheduled caste/scheduled tribe. By virtue of being the son of a forward caste father he did not have any advantageous start in life but on the contrary suffered the deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged. Additionally, that he was always treated a member of the community to which her mother belonged not only by that community but by people outside the community as well." 10. In the case of Sunita Singh V. State of Uttar Pradesh (supra), the Hon'ble Supreme Court has observed in Paragraph-5 as under:- "5. Additionally, that he was always treated a member of the community to which her mother belonged not only by that community but by people outside the community as well." 10. In the case of Sunita Singh V. State of Uttar Pradesh (supra), the Hon'ble Supreme Court has observed in Paragraph-5 as under:- "5. There cannot be any dispute that there caste is determined by birth and the caste cannot be changed by marriage with a person of scheduled caste. Undoubtedly, the appellant was born in "Agarwal" family, which falls in general category and not in scheduled caste. Merely because her husband is belonging to a scheduled caste category, the appellant should not have been issued with a caste certificate showing her caste as scheduled caste. In that regard, the orders of the authorities as well as the judgment of the High Court cannot be faulted. However, having regard to the fact that the appellant has already served as a Teacher and Vice-Principal of Kendriya Vidyalaya without any black spot in her service career for about 21 years, and that she is going to retire shortly, we take lenient view by exercising jurisdiction under Article 142 of the Constitution of India and order to convert the order of termination to an order of compulsory retirement. While exercising leniency, we have also kept in mind that the appellant has neither played fraud nor misrepresented before any of the authorities for getting the caste certificate and while continuing in service based on the caste certificate. No questions were raised against her till the complaint in question came to be lodged, even when the authorities had seen the High School Certificate, Mark Sheet etc. showing her caste as Agarwal at the initial stage. Having regard to the totality of the facts of the case, the impugned judgment of the High Court is modified. "The order of termination from service" passed against the appellant shall be treated as "the order of compulsory retirement". However, we make it clear that this shall not be treated as a precedent in future." 11. Keeping in view of the aforesaid decisions rendered by the Hon'ble Supreme Court, now we would like to examine the facts of the present case. However, we make it clear that this shall not be treated as a precedent in future." 11. Keeping in view of the aforesaid decisions rendered by the Hon'ble Supreme Court, now we would like to examine the facts of the present case. In the Caste Certificate dated 05.12.2006 issued by the concerned Mamlatdar to the petitioner, the name of the petitioner is reflected as "Kumari Vasava Geetaben Maheshbhai" as daughter of "Vasava Maheshbhai Bhikhabhai". It is not in dispute that the petitioner is wife of Maheshbhai Vasava and not a daughter of Maheshbhai Vasava. In fact, the father of the petitioner is Rameshchandra Soni, who belonged to Hindu Soni i.e. upper caste. The mother of the petitioner is hailing from tribal community and the petitioner was born out of wedlock of the upper caste father and tribal mother. The father of the petitioner has expired in the year 1996 and the petitioner, her brothers and sisters inherited the property of their father as per the affidavit-in-reply filed by respondent No. 2. No rejoinder is filed by the petitioner controverting the said averments. Thus, it is undisputed fact that the father of the petitioner was hailing from upper caste whereas the mother was hailing from tribal community and, therefore, as per the decision rendered by the Hon'ble Supreme Court in the case of Rameshbhai Dabhai Naika Vs. State of Gujarat and Ors. (supra), ordinarily in an inter-cast marriage or a marriage between a tribal and a non-tribal, there may be a presumption that the child has the caste of the father. However, such presumption is not conclusive or irrebuttable. Such presumption can be rebutted by producing evidence before the competent authority/Committee. The concerned person has to point out that by virtue of being son/daughter of a forward caste father, he/she did not have any advantageous start in life but on the contrary suffered deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged. Additionally, he/she was always treated as member of community to which her mother belonged not only by that community but by people outside the community as well. From the material produced by the petitioner before respondent No. 2, the petitioner has failed to rebut such presumption and, therefore, respondent No. 2 has rightly cancelled the caste certificate of the petitioner. Additionally, he/she was always treated as member of community to which her mother belonged not only by that community but by people outside the community as well. From the material produced by the petitioner before respondent No. 2, the petitioner has failed to rebut such presumption and, therefore, respondent No. 2 has rightly cancelled the caste certificate of the petitioner. The learned Single Judge has also considered the said aspects and, thereafter, dismissed the petition. 12. In view of the aforesaid discussion and in view of the reasoning recorded by the learned Single Judge, we see no reason to interfere with the impugned order passed by the learned Single Judge. Accordingly, the appeal is dismissed. Consequently, Civil Application does not survive and is disposed of, accordingly.