Gujarat High Court
Surekhaben Ranjitbhai Patelia vs Commissioner on 17 April, 2015
Author: Akil Kureshi
Bench: Akil Kureshi, Vipul M. Pancholi
C/LPA/75/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 75 of 2014
In
SPECIAL CIVIL APPLICATION NO. 11262 of 2009
With
LETTERS PATENT APPEAL NO. 273 of 2014
In
SPECIAL CIVIL APPLICATION NO. 11261 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
===========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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SUREKHABEN RANJITBHAI PATELIA....Appellant(s)
Versus
COMMISSIONER....Respondent(s)
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Appearance:
MR MA KHARADI, ADVOCATE for the Appellant(s) No. 1
MR TIRTHRAJ PANDYA, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Page 1 of 9
LETTERS PATENT APPEAL/75/2014 22/04/2015 01:33:20 AM
C/LPA/75/2014 JUDGMENT
Date : 17/04/2015
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. These appeals arise out of a common judgement dated 03.11.2009 passed by the learned Single Judge in Special Civil Application No. 11261 of 2009 and 11262 of 2009. Both the petitioners are real sisters named Sudha and Surekha, daughters of Ranjitbhai Patelia. On the basis of the declaration in the school leaving certificate that they belonged to Scheduled Tribe, they were granted scheduled tribe certificates by the competent authority in the Social Welfare Department of the State Government. On such basis, they also secured appointment in primary schools. Later on, it was revealed that their father Ranjitbhai Patelia was an employee in the Panchayat and had declared his status as belonging to Socially and Educationally Backward Class ['SEBC' for short]. An inquiry was, therefore, undertaken regarding the caste status of the two sisters. The Commissioner of Schedule Tribe Development passed an order dated 19.09.2009 holding that Sudha Ranjitbhai Patelia did not belong to Scheduled Tribe community and consequently, ordered cancellation of her caste certificate. He upheld the findings of the scrutiny committee constituted for such purpose. Under similar circumstances, the caste certificate of the other daughter of Ranjitbhai viz. Surekhaben also came to be cancelled. The two sisters, therefore, filed Page 2 of 9 LETTERS PATENT APPEAL/75/2014 22/04/2015 01:33:20 AM C/LPA/75/2014 JUDGMENT above noted petitions. Learned Single Judge dismissed the petitions by the impugned common judgement, in which, it was recorded that as per the record, father of the petitioners belonged to SEBC community. He also had a certificate to that effect. He had never claimed the benefit of scheduled tribe status. Inter alia on such grounds, the petitions came to be dismissed.
2. It is this judgement, which the original petitioners have challenged by filing two separate letters patent appeals. Upon perusal of the record and after hearing the learned counsel for the appellants, we notice that there is no grievance made about adequate opportunity not being granted to the petitioners before the authorities took adverse decision. Even the detail orders passed by the Commissioner and the contents thereof would reveal that at all stages, the petitioners were given ample opportunities to represent their cases and to place such materials on record as they desired. Even the statements of the father of the petitioners were recorded. Various documents were produced and taken into consideration. The short question, therefore, calls for consideration is whether the Government authorities erred in cancelling the caste certificate of the petitioners giving them a status of scheduled tribe and whether resultantly, the learned Single Judge was justified in dismissing the writ petitions.
3. From the record, it clearly emerges that before the Page 3 of 9 LETTERS PATENT APPEAL/75/2014 22/04/2015 01:33:20 AM C/LPA/75/2014 JUDGMENT Commissioner, the petitioners heavily relied on their school records which recorded that they belonged to Scheduled Tribe community. Their reliance also was on the premise that their mother held agricultural land in which the Collector had imposed restrictions flowing from Section 73AA of the Gujarat Land Revenue Code. These were primarily the grounds, on which, the petitioners defended their caste certificates before the Government authorities. The Commissioner of Scheduled Tribe Development, however, noted that the father of the petitioners belonged to SEBC community and he also held the certificate to that effect. He belonged to Baria Khsatriya community which fell in SEBC category. There is no other evidence to suggest that his family or his community followed customs of scheduled tribes. In his school admission form as well as school leaving certificate, he is shown to be belonging to SEBC community. The daughters of Ranjitbhai, therefore, would belong to the same caste and would fall within SEBC category. He refuted the contention of the petitioners that in case of the land held by their mother restriction was imposed by the Collector under Sections 73A and 73AA of the Gujarat Land Revenue Code by observing that their mother, Kariben held lands in which there is no indication of restrictions under Section 73A and 73AA of the Code.
4. It can thus be seen that the authorities examined all materials on record and came to the conclusion that the father of the Page 4 of 9 LETTERS PATENT APPEAL/75/2014 22/04/2015 01:33:20 AM C/LPA/75/2014 JUDGMENT petitioners from the outset, claimed to belong to Baria Khsatriya Community which fell in SEBC category. His admission form in the school, his school leaving certificate and caste certificate show that he belonged to SEBC category. His daughters therefore by birth would belong to SEBC category.
5. Before us learned counsel for the appellants, however, submitted that the agricultural lands of the mother of the petitioners were subjected to tenure restrictions as prescribed under Section 73A and 73AA of the Code which would imply that she belonged to Scheduled Tribe. The counsel relied on the decision of the Supreme Court in case of Rameshbhai Dabhai Naika vs. State of Gujarat and ors reported in 2012 (1) GLH page 448 in which the Apex Court observed that the daughters, born out of intercaste marriage of scheduled tribe mother, could claim the status of schedule tribe.
6. In our opinion, however, this contention is wholly fallacious. Firstly, it has now come on record as an undisputed position that the father of the petitioners is not a tribal. He all along claimed to belong to Baria Khsatriaya community which fell within SEBC category. There is no evidence on record to suggest that the mother of the petitioners belonged to Scheduled Tribe community. No evidence, in this regard, was placed before the authorities below. Mere reference to the restriction under Section 73A or 73AA of the Code in the land records would not be sufficient. The observation of the Page 5 of 9 LETTERS PATENT APPEAL/75/2014 22/04/2015 01:33:20 AM C/LPA/75/2014 JUDGMENT Commissioner that the land of the mother was not subjected to restriction under Section 73A or 73AA of the Code was not disclosed. In the writ petition, the petitioners produced two documents at Annexure C which were 7/12 records of agriculture lands. These lands were jointly in the name of the father of the petitioners and other family members. Neither of these two documents contained the name of the mother of the petitioners. The restriction under Section 73AA of the Code with respect to these revenue documents would not, therefore, establish that the petitioner's mother belonged to Scheduled Tribe community. Even otherwise mere entries in revenue records would not be conclusive proof of a caste status of a person. It is undoubtedly true that Sections 73A and 73AA of the Code envisage certain tenure restrictions on the lands held by tribals. However, mere revenue entries cannot decide right, title or interest and at any rate, not the caste status. It may provide a prima facie indication but not a conclusive proof. Thus we have no evidence to hold that the mother of the petitioners belonged to ST Community.
7. In case of Rameshbhai Dabhai Naika vs. State of Gujarat and ors. (supra) the Supreme Court discussed the law on the question of caste status of children borne out of intercaste marriages. It was opined that ordinarily presumption would be that the child would follow the status of the father. This would be more so in case of a marriage between the wife belonging to Scheduled Caste or Scheduled Tribe category and the husband belonging to a forward caste. However, this Page 6 of 9 LETTERS PATENT APPEAL/75/2014 22/04/2015 01:33:20 AM C/LPA/75/2014 JUDGMENT would not be conclusive and it may be open to lead evidence to demonstrate that the child was brought up in such circumstances and background as to suffer the same handicaps and prejudices as that of the mother. In which case, the child may as well claim the caste status of the mother. We may reproduce para 43 of the judgement which lays down the ratio:
"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 intercaste marriage or a marriage between a tribal and a nontribal 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 intercaste marriage or a marriage between a tribal and a nontribal cannot be determined in complete disregard of attending facts of the case. In an intercaste marriage or a marriage between a tribal and a nontribal 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 intercaste marriage or a marriage between a tribal and a nontribal 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."
8. In the present case, the petitioners could not demonstrate either before the authorities or even before us prima facie that Page 7 of 9 LETTERS PATENT APPEAL/75/2014 22/04/2015 01:33:20 AM C/LPA/75/2014 JUDGMENT the mother belonged to Scheduled Tribe and that the daughters were brought up in such circumstances that they should get the same protection as, a member of Scheduled Tribe would require. We would have certainly probed the matter further or even as suggested by the counsel for the appellants, remanded the proceedings before the Commissioner for fresh consideration if there was some evidence to this effect. However we find none. It is true that Commissioner has adopted the theory that the daughters would take the caste of the father and this would not be strictly in consonance of the view of the Supreme Court in case of Rameshbhai Dabhai Naika vs. State of Gujarat and ors. (supra). However, the scrutiny would be called for only when it was urged before the Commissioner that the mother belonged to a community different from the father and, in fact, was a member of schedule tribe. When no such foundation was put forth before the Commissioner he was not required to look any further. Even before us, as noted, the petitioners have failed to establish the first requirement that the mother belonged to the Scheduled Tribe and that therefore, further scrutiny was necessary to ascertain whether the daughters should enjoy the benefit of the caste status of the father or the mother.
9. In the result, Letters patent appeals are disposed of. Interim relief stands vacated.
Page 8 of 9 LETTERS PATENT APPEAL/75/2014 22/04/2015 01:33:20 AM C/LPA/75/2014 JUDGMENT (AKIL KURESHI, J.) (VIPUL M. PANCHOLI, J.) Jyoti Page 9 of 9
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