Madras High Court
Union Of India Rep By The General Manager vs J.Vimala on 20 October, 2010
Author: N.Kirubakaran
Bench: N.Kirubakaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/10/2010 CORAM THE HONOURABLE MR. JUSTICE N.KIRUBAKARAN S.A.(MD)No.989 of 2005 1. Union of India rep by the General Manager, Southern Railway, Madras - 600 003. 2. The Personnel Officer, Personnel Branch, Southern Railway, Ponmalai, Tiruchirappalli. ... Appellants vs 1. J.Vimala 2. The District Collector, Pudukkottai. ... Respondents PRAYER Second Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree dated 29.04.2004 in A.S.No.157 of 2003 on the file of the I Additional District Judge(PCR), Trichirapalli, confirming the Decree and Judgment dated 24.02.2003 in O.S.No.706 of 1997 on the file of the learned District Munsif, Trichirapalli. !For Appellants ... Mr.A.Haja Mohaideen ^For R-1 ... Mr.N.Balakrishnan for Mr.C.K.Rajan For R-2 ... Mr.M.Rajarajan Government Advocate :JUDGMENT
Challenging the validity of decree of declaration granted in favour of the first respondent, declaring that the first respondent belongs to Kattunayakkan community, which is a Scheduled Tribe, the present Second Appeal is filed.
2. The case in the suit is that the first respondent belongs to Kattunayakkan community. However, that was not reflected in the S.S.L.C book of the first respondent. The first respondent was appointed in the appellant Southern Railway, subject to verification of the first respondent's Community Certificate and she was directed to produce the Certificate of the community from the learned Judicial Magistrate. A Community Certificate from the learned Judicial Magistrate was produced and the matter was referred to the second respondent herein, viz, the District Collector for verification of the Community Certificate. The first respondent also applied to the Taluk Office, Tirumayam for issuance of Community Certificate.
3. Though Headquarters Deputy Tahsildar had issued a Community Certificate to the effect that the first respondent belongs to the Kattunayakkan community dated 23.7.1981 after a thorough enquiry, the Tahsildar, Thirumayam, refused to issue Community Certificate stating that the first respondent's S.S.L.C book is not relating her community. As the Tashildar, Thirumayam refused to issue Certificate to the first respondent, she approached the Civil Court seeking a declaration that she belongs to Kattunayakkan community and for permanent injunction restraining the second respondent herein from submitting a report other than the verification of the Certificate originally issued by the Head quarters Deputy Tashildar, Thirumayam on 23.07.1981.
4. The said suit was contested by the appellant herein by filing a written statement. Though the first respondent submitted the community certificate, it was referred to the Revenue Department for verification and after verification, the second respondent herein stated that the first respondent does not belong to Kattunayakkan community.
5. After an elaborate trial, the Trial Court granted the decree and judgment as prayed for. Against the said judgement, A.S.No.157 of 2003 was filed by the appellant herein, and the same was also got dismissed, by judgment passed on 29.04.2004. Aggrieved by that present Second Appeal has been preferred.
6. At the time of the admission, the Second appeal was admitted on the following substantial questions of law:
i. whether the Civil Courts have jurisdiction to go into the disputes relating to the community or castes of a particular persons especially when the Revenue Authority disputes the basis?
ii. Whether the proposition of law laid down in Kumari Madhuri Patil vs. Additional Commissioner Tribal Development and other reported in 1994(6) SCC 241, will apply to the instant case as the certificate obtained is from a Deputy Tahsildar and that too when it is repudiated by the Revenue Authorities?
iii. Whether the case of Sakthi Devi vs. Collector of Salem reported in 98 L.W.105 will apply to the instant case as the certificate issued by Deputy Tahsildar is negatived by an higher officer i.e. District Collector in his Written Statement supported by files?"
7. Mr.Haja Mohaideen, learned counsel for Railways, submitted that the Civil Court has got no jurisdiction to go in to the dispute relating to the community or caste of a particular person. He relied upon a Judgment of the Hon'ble Supreme Court in State of Tamil Nadu and others vs. A.Gurusamy reported in 1997(1) CTC 564. In that case, it has been held that the suit for declaration of community status by the Civil Court is ousted and the jurisdiction of the Civil Court to give declaration, as to community stands prohibited.
8. Further, a Full Bench of this Court in P.Maragathamani vs. General Manager (In charge) Bharath Heavy Electricals Limited and three others reported in 2006(4) L.W 1041 held that for declaration of community status by the Civil Court suit is not maintainable and even if the decree is granted, the said decree is null and void and not binding on the authorities. Therefore, he seeks for setting aside the decree of the judgment by trial Court and the confirmed by the appellate Court.
9. On the other hand, Mr.C.K.Rajan, learned counsel for the first respondent submitted that the civil Court has got jurisdiction to decide the community of persons.
Secondly, he submitted that there is no pleading questioning the jurisdiction of the civil Court in the written statement. In the absence of pleading, the learned counsel for the first respondent submitted that it is not open to the appellant now to raise the question of jurisdiction of the Civil Court. He relied upon the order passed in I.A.No.395 of 1998 in the original suit. The said application was filed by the appellant herein to transfer the matter to the Administrative Tribunal and after enquiry, the trial Court dismissed the application for transfer and therefore, the learned counsel submitted that the trial court decided the issue of jurisdiction at the earliest point of time and it is not now open to the appellant to canvass the point before this Court.
10. The learned counsel further submitted that the issue was already settled by issuance of community certificate by the Head quarters Deputy Tashildar, Thirumayam on 23.07.1981 showing that the first respondent belongs to Kattunayakkan community, after due enquiry. When the Revenue Authorities already came to the conclusion after a thorough enquiry, and gave a Certificate on 23.07.1981, the issue cannot be reopened again under the guise of verification. He relied upon the judgment of the Hon'ble Supreme Court in Baburam vs. C.C.Jacob and others reported in AIR 1999 SC 1845, wherein, it has been decided by the very object of prospective declaration of law. It is deemed that all actions taken contrary to the declaration of law prior to its date of declaration are validated. Relying upon the said judgment the learned counsel submitted that the dictum laid down in Kumari Madhuri Patil vs. Additional Commissioner Tribal Development and other reported in 1994(6) SCC 241 would apply prospectively and not retrospectively as Community Certificate of the first respondent was certified and issued by the Head quarters Deputy Tashildar on 23.07.1981. Therefore, the Community Certificate stands and it cannot be invalidated by applying the dictum of Kumari Mathiri Patil's case. Further, he would submit that Kumari Mathiri Patil case is not a law that has been enacted, but it is only a judgment of the Supreme Court.
11. Secondly, he submitted that the Section 34 of the Specific Relief Act gives power to the Civil Court to maintain the suit for declaration of communal status. In this regard, he relied upon the judgment of this Court in State of Tamil Nadu and 2 others vs. Durairaj and another reported in 2000(2) CTC 425, wherein, it was held that the suit for declaration of communal status held to be maintainable. He referred to judgment of the Division Bench of this Court in S.P.Sakthidevi and others vs. The Collector of Salem and 3 others, reported in 1984 Writ law Reporter 535, wherein it was held that the community certificate issued by an empowered public authority continues to be a valid document till it is cancelled by the said authority or by its superior authority and that the contents of the said document have to be treated as correct by every authority, undertakings etc.
12. He relied upon another judgment of the Hon'ble Apex Court in State of Tamil Nadu and others vs. A.Gurusamy reported in AIR 1997(4) SC 1199, wherein, it is held that by necessary implication, the jurisdiction of Civil Court to take cognizance of and to give declaration in respect of caste of parties stands prohibited. However, the learned counsel submitted that the Judgment is only with regard to the prohibition of jurisdiction of the Civil Court, only with regard to initial notification under 341 and 342 of the constitution and not with regard to the communal status jurisdiction with regard to the declaration of communal status. Finally, he submitted that in view of the judgment of the Single Judge in S.P.Sakthidevi and others vs. The Collector of Salem and 3 others, reported in 1984 Writ law Reporter 535, he pleaded for referring the matter to a Larger Bench.
13. The learned counsel for the first respondent submitted that the appeal is not maintainable, as the appellant is only an employer and not the authority which issued the certificate. Further, he submitted that the judgment of the Hon'ble Supreme Court passed in Kumari Mathuri Patil cannot overtake the Act enacted by the parliament, namely, Section 34 of the Specific Relief Act. Therefore he seeks for dismissal of the appeal.
14. Mr.M.Rajarajan, learned Government Advocate submitted that subsequent to the judgment of the Hon'ble Supreme Court in Kumari Mathuri Patil case, the Government passed G.O.(2D)No.108, Adi-dravidar and Tribal Welfare (CV-I) Department, dated 12.09.2007 and the State Government constituted a State Level Scrutiny Committee to verify the genuineness of the Community Certificate issued to Scheduled Tribes. As per the said G.O., only the State Level Scrutiny Community has got jurisdiction to scrutinize the genuineness of the community certificate issued to Scheduled Tribes.
Substantial questions of law 1 & 2
15. The issue Nos.1 and 2 are connected with each other and therefore they are dealt together with regard to the Civil Court's jurisdiction to grant declaration of communal status, the Hon'ble Supreme Court in Kumari Mathiri Patil vs. State of Maharastra reported in 1994(6) SC 241 held that the civil suit for a decree of declaration regarding the Community Certificate is not maintainable. Again, it was followed by another Judgment of Hon'ble Supreme Court in State of Tamil Nadu and others Vs. A.Gurusamy reported in 1997(1) CTC 564 = AIR 1997 SC 1199. Apart from that as there were diverse opinions' judgements given by two single Judges of this Court, the matter was referred to a Full Bench of this Court. After discussion of the various Judgments of the Supreme Court as well as this Court, the Full Bench in P.Maragathamani vs. General Manager (incharge) BHEL and three others reported in 2006 (4) LW 1041 held that the Civil Court has got no jurisdiction to declare the communal status and the decree passed by the Civil Court is null and void. When the issue was already decided by the Hon'ble Supreme Court as well as by a Full Bench of this Court, the same is binding on this Court. Apart from that, there cannot be any judgment contrary to the dictum laid down by the Supreme Court which was declared under Article 141 of Constitution of India. Any attempt to deviate from the law declared by the Supreme Court would be unconstitutional. In fact, the learned counsel for the first respondent made an attempt to re-open the issue settled by the Supreme Court and the same cannot be done. In view of the Judgment, the suit is not maintainable and even if a decree and judgment is passed, the same is null and void and is not binding on the authority and therefore, the substantial questions of law 1 and 2 are answered in favour of the appellant and against the first respondent.
16. Following the judgment of the Supreme Court in Kumari Mathiri Patil's case, the Government passed G.O.Ms.No.108, dated 12.09.2007, by which the State Level Scrutiny Committee alone is empowered to scrutinize the genuiness of the Community Certificate issued (as Scheduled Tribe). In this case, the first respondent claims that she belongs to Kattunayakkan community, which is a Scheduled Tribe under which quota, the appellant joined the Southern Railway. As the jurisdiction of the Civil Court is taken away the State Level Scrutiny Committee alone is empowered to look into the matter.
17. The 3rd question of law, whether the case of Sakthi Devi Vs. Collector of Salem reported in 1998.L.W 105 would apply to the instant case as the Certificate issued by the Deputy Tahsildar is negatived by an higher officer i.e., District Collector in his written statement supported by files. Sakthi Devi judgement could not be of any use as the judgement was passed in the year 1984 and much water has flown under the bridge. The dictum of the Hon'ble Supreme Court has come in Kumari Mathiri patil case. Hence the third question of law is also answered against the first respondent.
18. In this case, regarding the community status, only an enquiry is being conducted and based on the outcome of the enquiry only, the authority should decide about community status of the petitioner. Therefore, there cannot be any prohibtion for the petitioner to support the Community Certificate already issued to her during verification. The verification is being conducted by the Authority as there are large number of cases of bogus Community certificates are produced and knocked away the benefits given to the suppressed and oppressed communities. The benefit should not land in the hands of already developed communities, whereas, the benefits which are aimed at under privileged, are not reaching them in view of bogus certificates. By obtaining false certificates advance sections of the Society are unjustly benefited and in that process an under privileged is being denied the concession given by reservation.
19. As rightly pointed out by Mr.Rajarajan, the learned Government Advocate, the Government has already constituted the State Level Scrutiny Committee to verify the genuineness of the community issued as Scheduled Tribe. Therefore, the state level scrutinize committee alone has got jurisdiction to verify the community certificate issued to the first respondent.
20. Taking into consideration of the fact that the suit was filed in the year 1987 and passage of more than two decades, this Court refers the matter to State Level Scrutiny Committee, which is empowered to scrutinize the community certificate issued to the first respondent. The first respondent is also allowed to file a comprehensive representation along with supporting documents in his favour to the State Level Scrutiny Committee, within four weeks from the date of receipt of a copy of the judgment. After receipt of the records from this Court and first respondent's representation the State Level Scrutiny Committee is hereby directed to decide the issue with regard to the Community Certificate issued to the first respondent as per law expeditiously preferably within a period of four months.
21. With the above, the Second Appeal is allowed. Subsequently, a direction is given to the State Level Scrutiny Committee as stated above. No costs.
SKN To
1. The I Additional District Judge(PCR), Trichirapalli.
2. The District Munsif, Trichirapalli.
3 The Principal Secretary to Govt.
State Level Scrutiny Committee, Adi Dravidar Tribal Welfare Department, Fort St. George, Secretariat, Chennai-600 009.