Karnataka High Court
State Of Karnataka vs Varadashankar Chinnappa Javalgi on 27 March, 1996
Equivalent citations: ILR1996KAR3693, 1996(7)KARLJ818
JUDGMENT K.S. Bhakthavathsalam, J.
1. The State of having failed in both the Courts below has come up in this second appeal.
2. The substantial question of law framed at the time of admitting the appeal is, "Is the suit of the plaintiff-respondent maintainable in view of Section 9 of the Code of Civil Procedure taking into consideration the relief sought by him?"
3. The plaintiff filed the suit for declaration that he belongs to "Koshti" caste and that a direction may be issued to the Director of Public Instructions or his subordinates to rectify the records by changing the words "Hindu Lingayat" and substituting the words "Hindu Koshti".'
4. The case of the plaintiff is that he is a resident of Hulyal and his father and forefathers also came from the same place and since time immemorial they are following the business of weaving known as "Koshti" in Marathi and "Jardar" in Kannada. It is claimed that the plaintiff and his family members follow the same profession. Plaintiff alleges that he is a Graduate of Karnataka University and is perusing his studies. While entering his name in the school register, his name was shown as Hindu Lingayat but there is no religion in India as Hindu Lingayat. According to the plaintiff, Lingayat is only a caste. The plaintiff alleges that Hindu is religion and the Government also recognised the plaintiff's case that Koshti is a caste from 1932 and the same state of affairs continue till now. It is stated that the plaintiff came to know about the wrong mention of the caste during May 1980 and after issuing notice under Section 80 C.P.C. has filed the suit.
5. The defence was, adoption of weaving profession by the parents of plaintiff does not constitute a sub-caste as 'Jadar' in Kannada and "Koshti" in Marathi. The entry in the school and college register is being continued on the information being given in the application for admission and census by the plaintiff's parents and "as such the plaintiff and his parents cannot go back and contend that what has been noted is wrong and illegal. It is stated that the weaving profession is done by one and all irrespective of caste, creed or community. It is also stated that the suit is time barred and plaintiff is estopped now from contending that it is illegal. A plea with regard to non-joinder of necessary parties and validity of Section 80 C.P.C. notice are also raised. Another defence was that the suit was bared under Section 9 C.P.C. as the Court has no jurisdiction to grant the declaration sought for.
6. The Trial Court, after considering the documentary and oral evidence produced by the parties, came to the conclusion that the plaintiff is Hindu Koshti by caste and accordingly decreed the suit partly without granting the consequential relief of rectification of school register by the authorities concerned. Being aggrieved by the judgment and decree of the Trial Court, the State filed an appeal. In the appeal, one of the important questions raised was in regard to the scope of Section 9 C.P.C. and maintainability of the suit. The question raised before the Appellate Court was that the Civil Court has no jurisdiction to try the suit involving principally the caste question and consideration of caste question is beyond Civil Court's jurisdiction. However, the Appellate Court held that the principal question involved is not of caste but of the civil right accrued to the plaintiff by virtue of his belonging to a particular caste or sub-caste. Taking note of Article 16(4) of the Constitution and the report of the Backward Classes Commission, the Appellate Court held that suit is maintainable and affirmed the judgment and decree of the Trial Court. The State is before this Court.
7. I have already extracted the substantial question of law which has been formulated by this Court when this appeal was admitted. The short question is, whether the suit is maintainable on the facts and circumstances of the case. It is to be noted that whether it is a suit for mere declaration for a particular caste as backward community or a suit for the enforcement of civil right accrued to the plaintiff in pursuance of the report of the Backward Classes Commission wherein the caste Koshti has been included as one of the backward caste.
8. Learned Counsel for the State strenuously contended that the suit is not maintainable under Section 9 C.P.C. and referred to a judgment of the Supreme Court reported in SWVIGARADOSS v. ZONAL MANAGER, F.C.I., He has contended that the judgment of the Supreme Court concludes the issue and as such the second appeal has to be allowed on the sole ground that the suit is not maintainable under in view of Section 9 C.P.C. The sum and substance of the argument of the Learned Counsel for the State is, the suit as framed is not of a civil nature and as such both the Courts below have erred in entertaining the suit.
9. The plaintiff has come to the Civil Court praying for a relief that he belongs to a caste called Hindu Koshti. Plaintiff has taken advantage of the report of Backward Classes Commission appointed by the State Government to declare that he belongs to Hindu Koshti and not Hindu Lingayat as entered earlier in the school and college registers. Section 9 C.P.C. reads as follows:-
"Courts to try all civil suits unless Barred:- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred."
It is clear that the Courts have jurisdiction to try all suits of civil nature except suits of which their cognizance is expressly or impliedly barred. In the instant case, the principal question-involved is not the caste but of the civil right accrued to the plaintiff by virtue of his belonging to a particular caste or sub-caste in pursuance of the report of the Backward Classes Commission appointed by the State Government. A right has accrued to the plaintiff in view of the report of the Backward Classes Commission. However, on merits plaintiff has to prove that he belongs to Koshti caste by adducing evidence both oral and documentary. Ex.P-4 is the true copy of the Births and Deaths register of Hulyal village for the year 1930 which shows that the plaintiff's grand-father and fore-father belongs to Koshti caste. So, I do not think that the concurrent findings of fact recorded by both the Courts below with regard to the caste of plaintiff could be questioned by the appellant.
10. I am not able to agree with the argument of the Learned Counsel for the State that the suit filed by the plaintiff is barred by time and cannot be entertained by the Civil Court. It is not the case where the plaintiff seeks to include his caste as one of the castes under the backward community but what the plaintiff sought before the Civil Court is that he belongs to a particular caste which has been notified by the Backward Classes Commission as a backward community. In my view, surely it is a civil right which the petitioner is entitled to enforce in Civil Court. Courts have held that a suit will lie for declaration that a particular person is entitled to be re-admitted to a caste Jagannath v. Akali, - 21 Calcutta 461. Only in Bombay a suit does not lie in view of the provisions of Bombay Regulation 2 of 1927, under which a suit was expressly barred.
11. To understand the question whether it is a civil right or not, it is necessary to refer to certain Articles of Constitution of India. In Part III of Constitution of India, Article 15(1) and (2) reads as follows:-
"(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them".
"(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to (a) x x x (b) x x x Article 16(1) and (2) reads as follows:-
"16. Equality of opportunity in matters of public employment:-
(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds' only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the State".
Part XVI of the Constitution provides for special provisions relating to certain classes. The Supreme Court in K.C. VASANTH KUMAR v. STATE OF KARNATAKA, while considering the reservation to Scheduled Castes and Scheduled Tribes with reference to Articles 14 and 16(4) of the Constitution, has held at page 1541 as to what is 'caste" as under:-
"109. We are aware of the meanings of the words caste, race or tribe or religious minorities in India. A caste is an association of families which practice the custom of endogamy i.e. which permits marriages amongst the members belonging to such families only. Caste rules prohibit its members from marrying outside their caste. There are sub-groups amongst the castes which sometimes inter-marry and sometimes do not. A caste is based on various factors, sometimes it may be a class a race or a racial unit. A caste has nothing to do with wealth. The caste of a person is governed by his birth in a family. Certain ideas of ceremonial purity are peculiar to each caste. Sometimes caste practices even led go segregation of same castes in the villages. Even the choice of occupation of members of caste was predetermined in many cases and the members of a particular caste were prohibited from engaging themselves in other types of callings, professions or occupations. Certain occupations were considered to be degrading or impure. A certain amount of rigidity developed in several matter and many who belonged to castes which were lower in social order were made to suffer many restrictions, privations and humiliations. Untouchability was practised against members belonging to certain castes. Interdining was prohibited in some cases...."
In INDRA SAWHNEY v. UNION OF INDIA, the Supreme Court had an occasion to consider the expression "caste" while considering the meaning of the expression 'backward class". After referring to few passages from Vasanth Kumar's case, at page 552 the Supreme Court has held as under:-
".....A caste in a horizontal division of society spread over a district or a region or the whole State and also sometimes outside it. Homo Hierachicus is expected to be the central and substantive element of the caste/system which differentiate it from other social systems. The concept of purity and impurity condeptualises the caste system.......There are four essential features of the caste system which maintained its homo hierarchicus character: (1) hierarchy, (2) commensality, (3) restrictions on marriage and (4) hereditary occupation. Most of the castes are endogamous groups. Inter-marriage between two groups is impermissible. But "Partiloma' marriages are not wholly known."
Ventakataramiah, J. also defined "caste" in practically the same terms. He said:-
"82. The above material makes it amply clear that a caste that a caste is nothing but a social class - a socially homogeneous class. It is also an occupational grouping, with this difference that its membership is hereditary. One is born into it. Its membership is involuntary. Even if one ceases to follow that occupation, still he remains and continues a member of that group. To repeat, it is a socially and occupationally homogeneous class. Endogamy is its main characteristic. Its social status and standing depend upon the nature of the occupation followed by it. Lowlier the occupation, lowlier the social standing of the class in the graded hierarchy...."
So, the Supreme Court has clearly held that a caste is nothing but a social class and occupational grouping, with this differences its membership is hereditary. The Supreme Court has pointed-out that 'caste-occupation-poverty' cycle is the ever present reality. So, it is an expected fact that for purposes of Article 16(4) of the Constitution the caste system is taken note of while considering the identification of "backward class citizens". As such, in view of the principles laid down by the Supreme Court, in my view, in the instant case the principal question involved is not of caste but civil right which the plaintiff can enforce if a declaration is granted by any Court. It is not brought to my notice that any other Tribunal is constituted for the purpose for which the plaintiff has approached the Civil Court. No other judgment is brought to my notice which takes a contrary view.
12. The judgment relied upon by the Learned Counsel for the State, in my view, is not applicable to the facts of this case. In that case petitioner's parents belonged to Adi Dravida community ailing from a remote village in Tamil Nadu and before his birth they had converted into Christian religion. He got married according to the Christian rites also. When a notice was issued to the petitioners asking how is entitled to the benefits extended to Scheduled Caste, a suit was filed. The Supreme Court, considering the scope of Article 366 and Article 341 of the Constitution of India, came to the conclusion that the suit is not maintainable as notification has been published by the President of India under Articles 341 and 342 of the Constitution of India and also under the Scheduled Caste and Scheduled Tribe orders unamended Act, 1976. In view of the notification, which was against the claim of the petitioner therein and in view of the Constitutional scheme, the Supreme Court held that the Civil Court has no jurisdiction under Section 9 C.P.C. to entertain the suit. But that is not the case here. Here, the Backward Class Commission formed under Article 340 of the Constitution of India has included the caste "Koshti" as one of the backward castes. When it has been included by the Backward Class Commission, a right accrues to the plaintiff to claim that he belongs to a backward community. So, it can be seen that the judgment relied upon by the counsel for the State is distinguishable on facts.
13. Apart from that, this Court in PRABHUSHANKAR K.V. v. SELECTION COMMITTEE FOR MEDICAL COLLEGES, 1981(1) KLJ 255 held that even among Lingayats there could be persons who belong to sub-caste and which could be declared to be a backward community. Rama Jois, J. as he then was, also in an earlier judgment reported in SOMASHEKHAR VEERAPPA B. MURGOD v. STATE OF KARNATAKA, AIR 1980 KAR 63 held that the principal community is backward one even if the particular candidate is a Lingayat. In view of that, I think both the Courts below are right in granting the declaration as prayed for by the plaintiff. At the same time, it has to be noted that the consequential relief has not been granted by both the Courts below. When only a declaration is made by both the Courts below. I do not see any reason why the State has come up before this Court in this second appeal. Obviously, on a question of law the State has come up in appeal. Considering the judgment of the Supreme Court and the relief asked for by the plaintiff, I am of the view that the suit is maintainable under Section 9 C.P.C. on the facts and circumstances of this case.
14. The second appeal stands dismissed.