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2020 DIGILAW 173 (GAU)

Arup Megu v. State of Arunachal Pradesh

2020-02-10

MICHAEL ZOTHANKHUMA, SANJAY KUMAR MEDHI

body2020
JUDGMENT 1. Heard Mr. S. Taye, learned counsel for the appellant/writ petitioner. Also heard Mr. I. Riram, learned Addl. Senior Govt. Advocate for the State respondents. 2. This writ appeal has been filed against the impugned order dated 16.05.2019, passed in WP(C) No. 331(AP)/2016, by which the learned Single Judge has upheld the cancellation of the appellant''s Scheduled Tribe Certificate, issued on 26.05.1982. 3. The brief facts of the case is that a Scheduled Tribe Certificate was issued to the appellant on 26.05.1982 by the Deputy Commissioner, East Sing District, Pasighat. The same was cancelled by the Deputy Commissioner vide order dated 05.05.2016, on the ground that the appellant''s father, Shri Dipu Bhattacharjee did not belong to a Scheduled Tribe recognized in Arunachal Pradesh. The order dated 05.05.2016, issued by the Deputy Commissioner also states that as per the letters dated 06.05.1991, 05.12.1992 and 30.07.2010, " if an APST woman is married to a non-APST man, her offspring shall not be entitled to obtain Scheduled Tribe Certificate". Thereafter, the order dated 05.05.2016, issued by the Deputy Commissioner was challenged by the appellant vide WP(C) No. 331(AP)/2016. The learned Single Judge after hearing the parties dismissed the writ petition vide the impugned order dated 16.05.2019 by holding as follows: "Mr. B. Picha, learned counsel for the respondent No. 7, submits that the father of the petitioner, ShriDipuBhattacharjee, does not belong to Arunachal Pradesh Scheduled Tribe would be evident from the "All India Higher Secondary (Three year course) Examination, 1978" certificate of the writ petitioner, issued by the Central Board of Secondary Education to the writ petitioner, dated 31.08.1978, annexed as Annexure ''A'' to the writ petition, wherein, the father''s name of the writ petitioner has been reflected as DipuBhattacharjee. On perusal of the certificate annexed as Annexure ''A'' to the writ petition, submission made by Mr. B. Picha, learned counsel for the respondent No. 7, is accepted. If the father of the writ petitioner, namely, DipuBhattacharjee, does not belong to Arunachal Pradesh Scheduled Tribe, the writ petitioner cannot be said to be an Arunachal Pradesh Scheduled Tribe. In view of the above, no infirmity can be found in the impugned order dated 05.05.2016, issued by the Deputy Commissioner, East Siang District, Pasighat, vide No. J-4311/ST/ENQ/2016/313, whereby, the Scheduled Tribe Certificate issued to the writ petitioner has been cancelled. In view of the above, no infirmity can be found in the impugned order dated 05.05.2016, issued by the Deputy Commissioner, East Siang District, Pasighat, vide No. J-4311/ST/ENQ/2016/313, whereby, the Scheduled Tribe Certificate issued to the writ petitioner has been cancelled. For the reasons and discussion made above, the writ petition is dismissed being devoid of merit." 4. The appellant''s counsel has made a challenge to the impugned order of the learned Single Judge, on the ground that no opportunity of hearing had been given to the appellant, prior to the order dated 05.05.2016 being passed, by which the appellant''s Scheduled Tribe Certificate had been cancelled. The appellant''s counsel also submits that Sh. Dipu Bhattacharjee is the late step father of the writ petitioner/appellant. 5. Mr. I. Riram, learned Addl. Senior Govt. Advocate for the State respondents, on the other hand, submits that there is no infirmity with the impugned order passed by the learned Single Judge, as the same has been passed in consonance with the letters dated 16.05.1991 and 15.12.1992 issued by the Secretary (Political), Govt. of Arunachal Pradesh.He also submits that the fact that Sh. DipuBhattacharjee is the father of the appellant/petitioner is evident from the "All India Higher Secondary (Three year course) Examination, 1978" Certificate, issued to the appellant by the Central Board of Secondary Education on 31.08.1978. He accordingly submits that the impugned order passed by the learned Single Judge should be upheld. 6. We have heard the learned counsels for the parties. 7. From a perusal of the records, it is clear that prior to the impugned order dated 05.05.2016 being issued by the Deputy Commissioner, cancelling the appellant''s Scheduled Tribe Certificate dated 26.05.1982, a show cause notice dated 19.02.2016 had been issued to the appellant. The show cause notice dated 19.02.2016 was however replied to by the appellant''s daughter and not by the appellant. In the reply dated 26.02.2016 submitted by the appellant''s daughter to the show cause notice, the appellant''s daughter has prayed for giving some time to the appellant to recover from his ill health, so that he could appear before the Deputy Commissioner. The reply dated 26.02.2016 is reproduced below: "To, The Deputy Commissioner, Pasighat, East Siang District, Arunachal Pradesh. Dated:- 26 th day of February 2016. Sub: Your show cause Notice No. J-4311/ST/ENQ/2016, Dated Pasighat the 19 th February 2016. The reply dated 26.02.2016 is reproduced below: "To, The Deputy Commissioner, Pasighat, East Siang District, Arunachal Pradesh. Dated:- 26 th day of February 2016. Sub: Your show cause Notice No. J-4311/ST/ENQ/2016, Dated Pasighat the 19 th February 2016. Sir/Madam, I have the honour to inform you that my father Sri Arup Megu is suffering from multiple ailments like Hepatitis-B, liver problems etc. since few days and he is undergoing treatment at Dibrugarh. That for the aforesaid reasons my father who is out of station for his treatment is not in a position to appear before the office of your authority personally as directed to appear today. That non appearance of my father before your authority is unintentional, but due to unavoidable circumstances of his ill health. Under the circumstances, it is therefore, prayed that your Hon'ble authority may be pleased to allow sometime to my father till recover from his ill health to appear before your authority and to show cause as to why he should not surrender and why his ST Certificate should not be cancelled, the act for which I shall be highly obliged. Thanking you. Yours faithfully Miss AmotiMegu, D/o Sri Arup Megu, Upper Banskota, Pasighat, East Siang District. (A.P)" 8. On considering the reply dated 26.02.2016, issued by the appellant''s daughter to the show cause notice dated 19.02.2016, we are of the view that Deputy Commissioner should have allowed the prayer of the appellant''s daughter and granted some time to the appellant, to make a reply to the show cause notice himself,or allowed him to appear before the Deputy Commissioner, but the same was not done.Thus, we are of the view that an opportunity of being heard has not been provided to the appellant, prior to his Scheduled Tribe Certificate being cancelled by the order dated 05.05.2016 issued by the Deputy Commissioner. 9. On a perusal of the impugned order of the learned Single Judge, the only reason given by the learned Single Judge for not inferring with the Deputy Commissioner''s order dated 05.05.2016 is on the ground that the appellant''s father Sh. DipuBhattacharjee did not belongto the Arunachal Pradesh Scheduled Tribe. 9. On a perusal of the impugned order of the learned Single Judge, the only reason given by the learned Single Judge for not inferring with the Deputy Commissioner''s order dated 05.05.2016 is on the ground that the appellant''s father Sh. DipuBhattacharjee did not belongto the Arunachal Pradesh Scheduled Tribe. Thus, the question that has to be answered is whether the tribe of a father is the determinative factor in all cases, in deciding whether a person is a Scheduled Tribe or not, regard being had to the offspring being bornfrom a tribal woman and a non tribal man. In the case of Rameshbhai Dabhai Naika v. State of Gujarat and others, (2012) 3 SCC 400 , the Apex Court has held that 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 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. In the above case, the Tribal Certificate of the appellant had been taken away without adverting to any evidence. The Apex Court had accordingly set aside the said order. In the present case, as no opportunity of hearing has been provided to the appellant, we are of the view that the Deputy Commissioner, East Sing District, Pasighat should have provided an opportunity of hearing by considering the reply dated 26.02.2016 submitted by the appellant''s daughter. The Apex Court had accordingly set aside the said order. In the present case, as no opportunity of hearing has been provided to the appellant, we are of the view that the Deputy Commissioner, East Sing District, Pasighat should have provided an opportunity of hearing by considering the reply dated 26.02.2016 submitted by the appellant''s daughter. Besides the above, as has been held by the Apex Court in the case quoted above, the issue may require evidence to be adduced, in which case the Writ Court would not be an appropriate Court to decide the issue. 10. It has been stated at the bar that in pursuance to the decision of the Apex Court in Kumari Madhuri Patila and Another v. Addl. Commissioner, Tribal Development and Others, (1994) 6 SCC 241 , a Caste & Tribe Scrutiny Committee has been constituted in the State of Arunachal Pradesh, which is to investigate social status claims of a person and take decisions on the same. In the present case, the order dated 05.05.2016 issued by the Deputy Commissioner seems to have been made without any decision being made by the Caste & Tribe Scrutiny Committee with regard to the tribal status of the appellant. As such, the decision of the Deputy Commissioner is in excess of his jurisdiction and not sustainable in law. Consequently, the impugned order dated 05.05.2016, issued by the Deputy Commissioner, East Sing District, Pasighat cancelling the Scheduled Tribe Certificate dated 26.05.1982 of the appellant/writ petitioner is hereby set aside. The Deputy Commissioner, East Sing District, Pasighat is accordingly directed to remand the matter to the Caste & Tribe Scrutiny Committee under the Govt. of Arunachal Pradesh, constituted in terms of the judgment of the Apex Court in the case of Kumari Madhuri Patila and Another v. Addl. Commissioner, Tribal Development and Others (supra), to decide the matter afresh. The Caste & Tribe Scrutiny Committee shall decide the matter, after issuing notice to all the parties herein and after giving an opportunity of hearing to all the parties. Accordingly, the impugned order dated 16.05.2019 passed by the learned Single Judge in WP(C) No. 331(AP)/2016 is set aside. Writ appeal is accordingly disposed of.