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2023 DIGILAW 717 (GUJ)

Pateliya Nimaben Jawanbhai v. State Of Gujarat

2023-05-01

VAIBHAVI D.NANAVATI

body2023
ORDER : 1. By way of present writ-application filed under Article 226 of the Constitution of India the writ-applicants herein have prayed for the following reliefs :- “(A) YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction by way of writ of mandamus to the respondent no. 2 & 3 to issue schedule tribe certificate as Patelia community for the purpose of section 73 AA of Land revenue code and also for other purpose of benefits there of etc. (B) During The pendency and final disposal of this petition, to direct the respondent no. 2 & 3 to issue the provisional scheduled Tribe certificate of petitioner as Patelia Community. (C) Any other relief deemed fit be granted in the interest of justice.” 2. Brief facts leading to the filing of the present writ application read thus :- 2.1 It is the case of the present writ-applicants herein that the writ-applicants belong to Scheduled Tribe Community “Patelia” and belong to tribal area of Lunavada by origin native of forest dwellers from their ancestor. Placing reliance on the same, the writ-applicants herein submitted application for issuance of Caste Certificate of Scheduled Tribe as per the constitutional rights enshrined under Part-III of the Constitution of India under the provisions of Gujarat State Caste Certification and Verification Rules, 2018 for the purpose of their general rights under Section 73AA of the Gujarat Land Revenue Code and also other benefits of the Scheduled Tribe community to the Mamlatdar vide application dated 7.10.2021 and submitted the required testimonials of claim of Scheduled Tribe benefit which came to be rejected on 11.10.2021. 2.2 The Mamlatdar – respondent No.3 rejected the said claim of the writ-applicants on the ground that Section 73AA of the Act was not applicable to Lunavada taluka and ‘Patelia” community and Lunavada is not entitled for the status of Scheduled Tribe as the whole Lunavada taluka is not covered under the provisions of Scheduled Tribe benefit on account of there being sub-caste and marriages are also not among the same community etc., hence the writ-applicants approached the respondent No.2 vide representation and appeal dated 21.10.2022 submitting the required testimonials as per the rules of verification of issuance of Scheduled Caste certificate as the forefather of the writ-applicants are original native and Scheduled Tribe of Hindu Patelia community and are entitled to protection of said rights of Scheduled Tribe by virtue of succession which cannot be denied and also Scrutiny – Screening Committee of Scheduled Tribe, Vadodara issued the certificate dated 2.8.2022 to Patelia Jawanbhai Manibhai and other persons of the said Patelia community and, therefore, the writ-applicants herein cannot be denied the said fundamental rights of status of Scheduled Tribe under Articles 15, 342 and 300A of the Constitution of India and also the Government policy, resolution and notification for declaring the said community as Scheduled Tribe which came to be rejected by the Collector i.e. respondent No.2 herein vide orders dated 21.5.2022, 23.5.2022 and 31.12.2022 accepting the reasonings of Mamlatdar and also under the wrong interpretation of Government Resolutions dated 4.11.2008, 4.4.1961, 15.2.2001 and 9.5.2005 etc., which are not properly appreciated by the respondent No.2 herein because of interse marriage between the community and also some of Hindu Thakore, Baria and Patelia community which is wrongly interpreted by the Collector and it is the statutory Presidential Order of 1950 and also State of Gujarat notification vide Entry No.22 which is only described as “Patelia” and there is no any question of sub-caste Hindu Thakore, Baria and Patelia etc., as there will be some variation in stating the said facts in the birth or school register which cannot deny rights to the writ-applicants to be considered as “Patelia” being Scheduled Tribe community and hence the order impugned passed by the Mamlatdar dated 11.10.2021 and respondent No.2 Collector dated 21.10.2022 denying the certificate to the writ-applicants under the provisions of Section 73AA of the Land Revenue Code the writ-applicants herein are constrained to approach this Court under Article 226 of the Constitution of India. 3. Heard Mr. A. N. Patel, the learned advocate appearing for the writ-applicants and Ms. Jeenal Acharya, the learned AGP appearing for the respondent No.1 – State. Submissions on behalf of the writ-applicants :- 4. Mr. A. N. Patel, the learned advocate appearing for the writ-applicants submitted that they are their relative and family members of Patelia community which is native and original Scheduled Tribe Caste of inhabitant permanent forest dweller of Panchmahal district from their forefathers by birth as per the social welfare of the Tribal area which is declared to be Scheduled Tribe community under the provisions of Articles 15 and 342 of the Constitution of India vide Presidential Order No.22 as per the notification issued by the union of India and adopted by the State of Gujarat. 4.1 It was submitted that the application for issuance of Caste Certificate of Scheduled Tribe as per the Constitutional rights of the writ-applicants under the provisions of the Gujarat State Caste Certification and Verification Rules, 2018 for the purpose of their general rights of education, revenue rights under Section 73AA of the Gujarat Land Revenue Code and for other benefits of Scheduled Tribe community to the Mamlatdar vide application dated 7.10.2021 and submitted requisite required documents of testimonials of claim of Scheduled Tribe benefit which was rejected by the respondent No.3 by order dated 11.10.2021 (Annexure-A). 4.2 It was submitted that the said application came to be rejected by the respondent No.3 on the ground that Section- 73AA of the Act was not applicable to the Lunavada Taluka and Patelia community in Lunavada was not entitled for the said status of ST as the whole Lunavada Taluka is not covered under the provision of Scheduled Tribe benefit on account of there different sub caste and the marriages are also not among the same community etc. Hence the writ-applicants approached the respondent no.2 vide the representation and appeal dated 21/10/2022 with the said testimonials as per the rules of verification for issuance of the ST certificate as the forefathers of the writ-applicants are original native and schedule tribe of Hindi Patelia Community and are entitled for protection of the rights of ST by virtue of succession which cannot be denied and also the scrutiny screening committee of schedule tribe at Vadodara issued the certificate dated 2/8/2022 to Patelia Jawanbhai Manibhai and some other persons of the said Patelia Community and hence they cannot be denied the said fundamental rights of status of Schedule tribe under article 15, 342, 300A of constitution of India and also the Government Policy and resolution and notification for declaring the said community as scheduled tribe , which came to be rejected by order of the Collector dated 21/05/2022, 23/05/22, 31/12/2022 etc. on the ground of the reason of the Mamlatdar and also wrong interpretation of the Government resolution dated 4/11/2008 4/4/1961, 15/02/2001, 9/05/2005 etc. which is not properly appreciated by some interse marriage of the community and also some are Hindu Thakore, Baria, Patelia etc., as per the School Leaving Certificate and Birth Certificate of some Patelia community which is wrongly interpreted by the Collector and it is the constitutional and statutory presidencial order of 1950 and also State of Gujarat notification vide entry No. 22 which is duly described as patelia and hence there is no any question of any Sub caste of Hindu, Thakor , Baria, Patelia etc. as there will be some variation in stating the said facts in the said birth and or school register record which can not denied the rights of the writ-applicants being consider as Patelia being the Schedule tribe community and hence the order of the Mamlatdar and collector against the provisions of law and against the statutory rights under the provision of Section 73 AA of Bombay Land revenue code and also the certificate Rules -2018 . 4.3 It was submitted that the writ-applicants herein alongwith the form which is duly produced at page-13 seeking certificate of Jati Pramanpatra produced all the documents as required for consideration of the same. However, the respondent authority rejected the same on the ground that the writ-applicants herein as per circular and interse marriage between the community were not entitled to the benefit of Scheduled Tribe. However, the respondent authority rejected the same on the ground that the writ-applicants herein as per circular and interse marriage between the community were not entitled to the benefit of Scheduled Tribe. 4.4 It was submitted that the writ-applicants thereafter approached the Scrutiny Committee wherein the Scrutiny Committee issued a certificate which is duly produced at page- 38 on 7.1.2022 certifying that the writ-applicants’ father in receipt of the said Scheduled Tribe Certificate dated 2.7.1991 being No.921. 4.5 The writ-applicants herein preferred an Appeal before the Collector placing on record all the documents as required alongwith the certificate issued by the Scrutiny Committee duly produced at page-38. The said Appeal came to be rejected by the Appellate Authority i.e. the Collector by order dated 21.5.2022. 4.6 It was submitted that while passing the said order the Appellate Authority failed to consider the submissions advanced by the writ-applicants herein and proceeded to pass the order impugned dated 21.5.2022 confirming the order dated 11.10.2021 passed by the Mamlatdar. 4.7 Mr. Patel, the learned advocate submitted that the certificate issued by the Scrutiny Committee is duly produced at page-14 and the same having been confirmed by the Scrutiny Committee in 2022 the Appellate Authority ought to have considered the genuineness of the certificate produced by the writ-applicants herein, however the respondent authority failed to consider the same. Submissions on behalf of the respondent No.1 – State :- 5. Ms. Jeenal Acharya, the learned AGP appearing for the respondent authority submitted that the said certificate could not have been considered by the respondent authority considering the fact that the writ-applicants had not produced the certificate from the Scrutiny Committee alongwith the form which was filled by the writ-applicants herein in accordance with law. 5.1 Ms. Acharya, learned AGP placed reliance on Notification dated 15.6.2020 wherein it is stated that “Patelia” community can be said to be a surname and not a tribe. 5.2 Placing reliance on the same, it was submitted that considering the Notification dated 15.6.2020 the respondent authority has rightly declined the application seeking the said caste certificate. 6. Position of law :- This Court also deem it fit to refer to the ratio as laid down in the case of Gujarat Dalit Civil & Constitutional Rights Pratipadan Samiti, Ahmedabad vs. Union of India & Ors., reported in GLR 1988 (1) 290, paragraphs-14 to 18 and 25 read thus :- “14. 6. Position of law :- This Court also deem it fit to refer to the ratio as laid down in the case of Gujarat Dalit Civil & Constitutional Rights Pratipadan Samiti, Ahmedabad vs. Union of India & Ors., reported in GLR 1988 (1) 290, paragraphs-14 to 18 and 25 read thus :- “14. The Statement of Objects and Reasons in the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (Act 108 of 1976) reads as follows : "Under the Scheduled Castes and Scheduled Tribes Orders some communities have been specified as Scheduled Castes or as Scheduled Tribes only in certain areas of the State concerned and not in respect of the whole State. This has been causing difficulties to members of these communities in the areas where they have not been so specified. The present bill generally seeks to remove these area restrictions. However, in cases where continuance of such restrictions were specifically recommended by the Joint Committee on the Scheduled Castes and Scheduled Tribes Orders (Amendment) Bill, 1967 no change is being effected. The Committee had also recommended exclusion of certain communities from the list of Scheduled Castes and Scheduled Tribes, These exclusions are not being made at present and such communities are being retained in the lists with the present area restrictions. Such of the communities in respect of which the Joint Committee had recommended exclusion on the ground that they were not found in a State are, however, being excluded if there were no returns in respect of these communities in the censuses of 1961 and 1971. 2. The proposed amendments in the fists of Scheduled Castes and Scheduled Tribes may lead to an increase in the population of these Castes and Tribes and consequently, in, the number of reserved seats in the Lok Sabha and certain State Legislative Assemblies. Provisions have, therefore, been made in the Bill to empower the census authority to reestimate the population of the Scheduled Castes and the Scheduled Tribes, and the Election Commission to reallocate the reserved constituencies." It is seen from the above said Statement of Objects and Reasons that a Joint Committee recommended the inclusion and exclusion of the Scheduled Castes in the list and a Bill called "Scheduled Castes Scheduled Tribes Orders (Amendment) Act, 1967" was passed. It is in the argument of the counsel for the Central Government, Mrs. It is in the argument of the counsel for the Central Government, Mrs. K. T. Mehta that, objections were called for on the said report and no such objections or suggestions were received from the State of Gujarat and as such, the recommendation of the Joint Committee was accepted. No doubt, Mr. Parmar objects to such inclusion on the ground that the objections were called for during the emergency period and as such the failure to object or suggest for the inclusion or the exclusion from the Schedule cannot, in any way, affect the contentions now put forth by the petitioner here.” 15. At this juncture, we can usefully refer to Article 341(1) and (2) of the Constitution, which reads as follows : "341(l). The President may, with respect to any State or Union Territory and where it is a State, after consultation with the Governor thereof by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case maybe. 341(2). Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under Clause (1) any caste, race or tribe, or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification." The object of Article 341(1) is to provide additional protection to the members of the Scheduled Castes having regard to the economic and educational backwardness from which they suffer. It is obvious that in specifying castes, races or tribes, the President has been authorised to limit in the Notification to parts or groups within the castes etc., and that must mean that, after examination of the educational and social backwardness of a caste, the President may well come to the conclusion that not the whole caste, race or tribe, but parts or groups within them should be specified. Similarly, the President may specify castes etc., or parts thereof in relation to parts of the State where he is satisfied that the examination of the social and educational backwardness of the race, caste or tribe justifies such specification. Similarly, the President may specify castes etc., or parts thereof in relation to parts of the State where he is satisfied that the examination of the social and educational backwardness of the race, caste or tribe justifies such specification. The Scheduled Castes Order, 1950 has been promulgated by the President by the power vested by the Constitution and the object of such order is to avoid all disputes as to whether a caste is a Scheduled Caste or not, for the purposes of the Constitution. In order, therefore, to determine whether a particular caste is a Scheduled Caste within the meaning of Article 341, one has to look to the terms of this order. The Courts have no power to go behind this order. With such an order made by the President, the Parliament by virtue of the power conferred on it under Article 341(2) may include by law or exclude by law from the fist of Scheduled Castes specified in a Notification issued under Clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said Clause shall not be varied by any subsequent notification. Thus, by virtue of Clause (2) of Article 341, the impugned order has been passed. Before passing the impugned order, we are able to see from the Statement of Objects and Reasons that a Commission was appointed to examine the list of Scheduled Castes and Scheduled Tribes and on the recommendation of the said Commission for adding and deleting certain castes, an Ordinance was passed. This Ordinance was called "The Scheduled Castes Scheduled Tribes Ordinance" and that was replaced by Act 108 of 1976. In its preamble it is stated "An act to provide for inclusion in and the exclusion from the lists of Scheduled Castes and Scheduled Tribes of certain castes and tribes for the readjustment of representation of parliamentary and assembly constituency in so far as such readjustment is necessitated by such inclusion or exclusion and for matters connected therewith." In the Schedule Part IV which deals with the State of Gujarat, Mochi community has been included. 16. Before the advent of our Constitution, Gujarat formed part of Bombay Presidency. On 5-11-1928, the-Bombay Presidency had appointed a Committee headed by Mr. O.H.B. Starte I.C.S. and other 9 members which include Dr. 16. Before the advent of our Constitution, Gujarat formed part of Bombay Presidency. On 5-11-1928, the-Bombay Presidency had appointed a Committee headed by Mr. O.H.B. Starte I.C.S. and other 9 members which include Dr. B. R. Ambedkar, to inquire into the educational, economical and social conditions of the Depressed Classes/ Untouchables and of the Aboriginal Tribes in the Presidency and to recommend measures for their uplift. The Committee gave elaborate description of the social stigma attached to the Depressed Classes in its report. The Committee recommended that the untouchable castes should be known as 'Depressed Classes'. Thus, it can be seen that the Committee laid down untouchability and its resultant disabilities and social isolation as a general test to identify Depressed Classes/Untouchables. Mr. Vimal Chandra, in his booklet states, "the possible test for specifying a Scheduled Caste (Untouchables) is whether persons belonging to that caste suffer or have suffered from the practice of untouchability and its resultant disabilities rendering them all round backwardness." The stigma of untouchability is one of the criteria for classifying Scheduled Castes as it is revealed by the report of Baxi Commission also. The Starte Committee, after elaborate investigation, came to the conclusion that Mochi community, except in the State of Gujarat are untouchables and as far as the State of ' Gujarat is concerned they are touchables and as such they come under the category of other backward classes. In the book called "Framing of India's Constitution" which is a Project Committee Report under the Chairmanship of Mr. B. Shiva Rao, in Volume II, it has been stated in paragraph 3 (c) that, Muslims shall have reservation of seats for the Muslims in the Lower Houses of the Central and Provincial Legislatures on the basis of their population. In paragraph 3A, the report says, "The section of the Hindu community referred to 'as Scheduled Castes as defined in Schedule I to the Government of India Act, 1935, shall have the same rights and benefits which are herein provided for the minority community specified in paragraph 3(c). In Volume III of the Project Committee Report by Mr. In paragraph 3A, the report says, "The section of the Hindu community referred to 'as Scheduled Castes as defined in Schedule I to the Government of India Act, 1935, shall have the same rights and benefits which are herein provided for the minority community specified in paragraph 3(c). In Volume III of the Project Committee Report by Mr. Shiva Rao under the title "Framing of India's Constitution, this Committee, while considering the 11th Schedule to the Constitution observed, "it was decided that this Schedule should be omitted and a definition of the expression "Scheduled Caste" should be inserted in the interpretation clause and the said expression should have the same meaning as in the Government of India (Scheduled Castes) Order 1936." As a matter of fact, the Government of Gujarat, subsequent to the passing of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (Act 108 of 1976), represented to the Government of India stating that the removal of area restrictions in the case of Mochi community is not justified because this community has never suffered from ' any disability arising out of the practice of untouchability in any part of Gujarat State, except the Dangs District and Umbergaon Taluka of the present Bulsar District. On this representation a Bill was prepared with an idea of restoring the position in respect of the Mochi community in the list of Scheduled Castes of Gujarat State which obtained prior to the enforcement of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. We find that this Bill has not been passed by the Parliament. In the light of the* above said literature in respect of bringing a particular caste in the Scheduled Castes and also as to how the Mochi community of Gujarat State was included in the Scheduled Castes taking out the area restriction, we can usefully refer to certain decisions. 17. In AIR 1980 Supreme Court 150, after referring to the grouping of certain communities in a specific entry, the Supreme Court observed that it is reasonable to quote that the communities mentioned against any specific entry are those which have mutual affinity amongst them. Thus, we find in the Schedule to the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 at Part IV in Item 4, the following communities are mentioned : Part IV-Gujarat 4. Thus, we find in the Schedule to the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 at Part IV in Item 4, the following communities are mentioned : Part IV-Gujarat 4. "Bhambi, Bhambhi, Asadaru, Asodi, Chamadia, Chamar, Chambhar, Chamgar, Haralayya,Harah, Khalpa, Machigar, Mochigar, Madar, Madig, Mochi, Nalia, Telegu Mochi, Kamati Mochi Ranigar, Rohidas, Rohit, Samgar." In this, we find Mochi community also. Mr. Parmar Contends that the Mochi community of Dangs District and Umbergaon Taluka alone can be considered as having mutual affinity with the other communities mentioned in this entry 4. This submission of Mr. Parmar proceeds on the basis that, as per the doctrine of affinity theory, the Mochi referred in (Part IV-Gujarat entry 4) are those Mochis who suffer the disability whether it be social, economical or educational as that of the castes mentioned along with it in that entry. We are not having any evidence or data regarding the disabilities suffered by the communities mentioned in those entry in order to limit the Mochies in certain area to come under this entry. Hence under the facts and circumstances of the present case, we do not think that the decision reported in AIR 1980 SC 150 can have any application to the facts of this case. 18. Art. 366 is a definition Article. In this Article, in Clause (24), 'Scheduled Castes' mean such castes, races or tribes or parts of or groups within such castes. races or tribes as are deemed under Art. 341 to be Scheduled Castes for the purposes of this Constitution. When such deeming fiction is created under Art. 366(24), any caste included in the Scheduled Castes by the Parliament by virtue of its power under Art. 341 is deemed to be a Scheduled Caste and the wisdom of the Parliament in that respect cannot be the subject-matter of any further interpretation. As we have seen in paragraph supra, the statement of Objects and Reasons in the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (Act 108 of 1976) spells out the exercise taken by the Parliament before it passed the said Act. Thus, it is clear, the constitutional mandate for the purpose of invoking the provisions of Art. 341 has been strictly followed in including the Mochi community in the Gujarat State in the Scheduled Castes and it cannot be said that such a power is used arbitrarily by the Parliament. Thus, it is clear, the constitutional mandate for the purpose of invoking the provisions of Art. 341 has been strictly followed in including the Mochi community in the Gujarat State in the Scheduled Castes and it cannot be said that such a power is used arbitrarily by the Parliament. 25. In view of the above said decisions which squarely apply to the facts of this case, much learning poured into the discussion of this case to the effect that the disability by untouchability alone is the basis for determining the Scheduled Caste cannot be of any avail. In the teeth of the decisions which settle the sphere of questioning the declaration made by the President and the Parliament in respect of a particular caste as to whether the same comes under the category of Scheduled Caste. or not the argument to the effect that caste which suffers the disability of untouchability alone is the basis to declare a caste as scheduled caste cannot be appreciated.” Analysis 7. Having heard the learned advocates appearing for the respective parties the following emerge for consideration of this Court. (a) the writ-applicants herein applied for issuance of certificate for Scheduled Tribe before the competent authority under Section 73AA of the Act before the Mamlatdar which is duly produced at Annex.13A. The same application was duly accompanied with the following requisite documents :- (i) Affidavit of father of the writ-applicant (pages-15-16). (ii) Caste Certificate of father (pages 14 to 38) (iii) revenue record Form No.7 (page-44) (iv) panchnama (page-28) (v) verification (pages 9-10) 7.1 This Court has perused the documents which were produced on record alongwith form on 3.9.2021. Considering the same, the respondent authority rejected the application of the writ-applicant. The writ-applicant herein thereafter approached the Scrutiny Committee wherein the Scrutiny Committee certified the correctness of said certificate dated 2.7.1991 was duly issued in favour of the writ-applicant’s father which reads thus (true translation) :-_ “After consideration of documents and relevant facts, it is certified that Mr./Mrs./Ms. Pateliya Javanbhai Manibhai belongs to the Scheduled Tribe. Therefore, the scrutiny committee has approved his/her Scheduled Tribe Certificate bearing No. 921 dated 02/07/1991, issued by the Competent Authority before the District Social Welfare Officer of Godhra District.” 8. The writ-applicants herein belong to “Patelia” community. Pateliya Javanbhai Manibhai belongs to the Scheduled Tribe. Therefore, the scrutiny committee has approved his/her Scheduled Tribe Certificate bearing No. 921 dated 02/07/1991, issued by the Competent Authority before the District Social Welfare Officer of Godhra District.” 8. The writ-applicants herein belong to “Patelia” community. “Patelia” community is included as Scheduled Tribe community under the constitutional and statutory Presidential Order 1950 at Serial No.15 and also included in the State of Gujarat Notification Entry No.22 which are duly produced at Annexure-C (Collectively). Considering the aforesaid, the Scrutiny Committee having certified that the correctness of the Scheduled Tribe Certificate held by the writ-applicant’s father dated 2.7.1991 having confirmed the same on 7.1.2022 vide Case No.1221 Serial No.115. The respondent authority to consider the application of the writ-applicant herein afresh taking into consideration the aforesaid certificate issued by the respondent authority and the form which is duly produced at page-13 afresh taking into consideration all the documents produced by the writ-applicant herein on record and decide the said application within a period of two weeks from the receipt of this order. Further the notification of 2020 which has been relied upon by the learned AGP is subsequent to the certificate issued in favour of the writ-applicant’s father herein which is dated 2.7.1991 and authenticity of the same having been certified by the Scrutiny Committee as referred above on 7.1.2022 affirming the authenticity of the same, in the opinion of this Court cannot be ignored by the respondent authority. 9. While exercising extraordinary jurisdiction under Article 226 of the Constitution of India the present writ-application stands allowed to the aforesaid extent. Consequently the civil application stands disposed of. Direct service is permitted.