Chattisgarh High Court
Mukund Soni And Anr vs State Of Chhattisgarh And Ors. 31 ... on 19 July, 2018
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
WPC No. 1180 of 2013
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPC No. 1180 of 2013
1. Mukund Soni S/o Tyagi Soni Aged About 50 Years R/o Vilage
Gourgaon Chikhladihi, Near Vishrampur Chowk, Tah Keshkal, PS
Kondagaon, Distt Kondagaon, Revenue Distt Kondagaon, Civil Distt
Bastar, Chhattisgarh
2. Tanuja Soni D/o Shri Anjor Singh, W/o Mukund Soni, Aged About 42
Years, R/o Village Gourgaon Chikhladihi, Near Vishrampour Chowk,
Tah Keshkal, Ps Kondagaon, Dist Kondagaon, Revenue Distt
Kondagaon, Civil Dist Bastar, District : Kondagaon, Chhattisgarh
---- Petitioners
Versus
1. State Of Chhattisgarh Through the President, C.G., State Anushuchit
Janjati Aayog, State Of C.G, 61, Jalvihar Colony, Raipur, Dist Raipur,
Chhattisgarh
2. State of Chhattisgarh, Through The Secretary, C.G. State Anushuchit
Janjati Aayog, State Of C.G., 61, Jalvihar Colony, Raipur, District :
Raipur, Chhattisgarh
3. Tahsildar Keshkal, Distt Kondagaon, District : Kondagaon,
Chhattisgarh
4. Nijam Singh Dhruv S/o Kushalal Singh Dhruv R/o Village Surdongar,
Tah Keshkal, P.S. Kondagaon, Distt Kondagaon, Revenue Distt
Kondagaon, Civil Distt Bastar, District : Kondagaon, Chhattisgarh
---- Respondents
For Petitioners : Mr. Awadh Tripathi, Advocate. For Respondent / State : Mr. Anand Dadariya, Dy. G. A. For Respondent No. 1 & 2 : Mr. B. L. Sahu on behalf of Mr. A. S. Kachhawaha and Mr. Shalvik Tiwari, Advocates.
Hon'ble Shri Justice Sanjay K. Agrawal Order On Board 19/07/18 WPC No. 1180 of 2013 2
1. This writ petition is directed against the order dated 26.06.2013 (Annexure - P/1) passed by the Chhattisgarh Rajya Anushuchit Janjati Aayog.
2. Learned counsel for the petitioner would submit that the State Commission has no jurisdiction to make recommendation for handing over the possession to respondent No. 4 dispossessing the petitioner as the said jurisdiction lies with the Civil Court.
3. Learned counsel for the State and private respondent would support the order impugned.
4. I have heard learned counsel for the parties and perused the impugned order with utmost circumspection.
5. The Chhattisgarh Rajya Anusuchit Janjati Ayog Adhiniyam, 1995 was enacted to constitute the State Commission to protect the interest of Scheduled Tribes and to provide for matters connected therewith or incidental thereto.
6. The Chhattisgarh Rajya Anusuchit Janjati Ayog has been constituted under Section 3 the Chhattisgarh Rajya Anusuchit Janjati Ayog Adhiniyam, 1995 (hereinafter called as Act of 1995). The function of the Commission has been provided under Section 9 of Act of 1995. Section 9 of the Act is reproduced below for sake of convenience:-
"9. Functions of the Commission.-(1) It shall be function of WPC No. 1180 of 2013 3 Commission-
(a) to act as watch-dog Commission for the protection afforded to the members of the Scheduled Tribes under the constitution and under any other law for the time being in force.
(b) To recommend to the State Government to take steps to add particular tribes or tribal communities or parts of or groups within tribes or tribal communities in the Constitution (Scheduled Tribes) Order, 1950.
(c) to watch the proper and timely implementation of programmes meant for welfare of Scheduled Tribes and to suggest improvement in such programmes of the State Government or any other body or authority responsible for such programmes;
(d) to tender advice regarding reservation for Scheduled Tribes in public services and admission in educational institution;
(e) to perform such other function as may be assigned to it by the State Government.
(2) The advice of the Commission shall, ordinarily be binding upon the State Government, where, however, the government does not accept the advice, it shall record its reason therefore.
7. A careful reading of the sub-section(1) of Section 9 of the Act of 1995 would show that the function of the Commission is to protect the interest of the member of Scheduled Tribe particularly the protection afforded to them under the Constitution or under any other law for time being in force and to ensure timely implementation of the programmes meant for the member of the Scheduled Tribe and also to extend advice regarding reservation for them in public service and admission in educational institution. By virtue of sub-section (2) of Section 9 of the Act of 1995 advice of the Commission is ordinarily binding upon the government and as such the function of the Commission is advisory/recommendatory in nature. From the scheme of the Act of WPC No. 1180 of 2013 4 1995, it appears that the Commission has not been conferred with the adjudicatory function, it is only advisory/Recommendatory body having advisory jurisdiction.
8. According to Black's Law dictionary sixth addition, "advise" means to give an opinion or counsel, or recommend a plan or course of action, also to give notice. To encourage, inform, or acquaint. It is different in meaning from "instruct" or "persuade." Hughes v. Van Bruggen, 44 N.M. 534, 105 P. 2d 494, 497. Where a statute authorizes the trial court to advise the jury to acquit, the court has no power to instruct the jury to acquit. The court can only counsel, and the jury are not bound by the advice. "Advice" imports that it is discretionary or optional with the person addressed whether he will act on such advice or not.
9. According to Merriam-Webster's Collegiate Dictionary, eleventh Edition, recommendation means the act of recommending or something that recommends or expresses commendation.
10. The word "Recommendation" is defined as under in Black's Law Dictionary, Sixth Edition:-
"Recommendation. In feudal law, a method of converting allodial land into feudal property. The owner of the allod surrendered it to the king or a lord, doing homage, and received it back as a benefice or feud, to hold to himself and such of his heirs as he had previously nominated to the superior.
The act of one person in giving to another a WPC No. 1180 of 2013 5 favourable account of the character, responsibility, or skill of a third.
Recommendation refers to an action which is advisory in nature rather than one having any binding effect, People v. Gates, 41 CA 3d 590, 116 Cal Rptr. 172, 178. Letter of recommendation. A writing whereby one person certifies concerning another that he is of good character, solvent, possessed of commercial credit, skilled in his trade or profession, or otherwise worthy of trust, aid, or employment. It may be addressed to an individual or to whom it may concern, and is designed to aid the person commended in obtaining credit, employment, etc. See Letter of credit."
11. Recently, the Constitution Bench of the Supreme Court in the matter of Manoj Narula vs. Union of India 1 considered the meaning of "advice" as employed under Article 75 (1) and 164(1) of the Constitution of India and held as under:-
"95. As per the New Shorter Oxford English Dictionary, one of the meanings of the word "advice" is "the way in which a matter is looked at; opinion; judgment". As per P. Ramanatha Aiyer's Law Lexicon, 2nd Edition, one of the meanings given to the word "advice" is "counsel given or an opinion expressed as to the wisdom of future conduct"
(Abbot L. Dict.). In Webster Comprehensive Dictionary, International Edition, one of the meanings given to the word "advice" is "encouragement or dissuasion; counsel; suggestion". Thus, the word "advice" conveys formation of an opinion. The said formation of an opinion by the Prime Minister in the context of Article 75(1) is expressed by the 1 (2014) 9 SCC 1 WPC No. 1180 of 2013 6 use of the said word because of the trust reposed in the Prime Minister under the Constitution. To put it differently, it is a "constitutional advice."
12. In the matter of Manohar s/o. Manikrao Anchule v. State of Maharashtra2, while dealing with Section 20(2) of the Right to Information Act, 2005, the Supreme Court has held that recommendation must be seen in contradiction to direction or mandate, and observed as under:-
"..........Power to recommend disciplinary action is a power exercise of which may impose penal consequences. When such a recommendation is received, the disciplinary authority would conduct the disciplinary proceedings in accordance with law and subject to satisfaction of the requirements of law. It is a "recommendation" and not a "mandate" to conduct an enquiry. "Recommendation" must be seen in contradiction to "direction" or "mandate".
13. In the Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and another 3, the Supreme Court considered the extent of power of the State Commission for Women constituted under Section 3 of the Orissa State Commission for Women Act, 1993 and after analyzing the scheme of the Act, it has been held that no power or authority has been conferred to State Commission to adjudicate or determine of the rights of the parties. It was held succinctly as under:-
2 (2012) 13 SCC 14 3 (2010) 8 SCC 633 WPC No. 1180 of 2013 7 "10. In other words, the State Commission is broadly assigned to take up studies on issues of economic, educational and health care that may help in overall development of the women of the State; gather statistics concerning offences against women; probe into the complaints relating to atrocities on women, deprivation of women of their rights in respect of minimum wages, basic health, maternity rights, etc. and upon ascertainment of facts take up the matter with the authorities concerned for remedial measures;
help women in distress as a friend, philosopher and guide in enforcement of their legal rights. However, no power or authority has been given to the State Commission to adjudicate or determine the rights of the parties.
11. Mr Ranjan Mukherjee, learned counsel for Respondent 2 submitted that once a power has been given to the State Commission to receive complaints including the matter concerning deprivation of women of their rights, it is implied that the State Commission is authorised to decide these complaints. We are afraid, no such implied power can be read into Section 10(1)(d) as suggested by the learned counsel. The provision contained in Section 10(1)(d) is expressly clear that the State Commission may receive complaints in relation to the matters specified therein and on receipt of such complaints take up the matter with the authorities concerned for appropriate remedial measures. The 1993 Act has not entrusted the State Commission with the power to take up the role of a court or an adjudicatory tribunal and determine the rights of the parties. The State Commission is not a tribunal discharging the functions of a judicial character or a court.
13. It is clear to us that the legislature has not gone so far as to give jurisdiction to the State Commission to make an order such as the one that has been made. From whatever angle we may examine the validity of the directions given by the State Commission in its order dated 11-5-2009, it appears to us that the said order was outside the jurisdiction, power or competence of the State Commission. It was an order which the State Commission had no competence to WPC No. 1180 of 2013 8 make and, therefore, a void order. The High Court instead of correcting that order went a step further and directed that DNA test of the child as well as the appellant shall be conducted."
14. Dealing with the powers of the Chief Commissioner and the Commissioners under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 and the Rules thereunder, the Supreme Court in State Bank of Patiala v. Vinesh Kumar Bhasin4 has struck the similar proposition of law by crystallizing condensely as under:-
"18. It is evident from the said provisions, that neither the Chief Commissioner nor any Commissioner functioning under the Disabilities Act has power to issue any mandatory or prohibitory injunction or other interim directions. The fact that the Disabilities Act clothes them with certain powers of a civil court for discharge of their functions (which include the power to look into complaints), does not enable them to assume the other powers of a civil court which are not vested in them by the provisions of the Disabilities Act."
15. Similarly, the Supreme Court in the matter of Collector, Bilaspur v. Ajit P.K. Jogi and others 5 considered the duty of National Commission for Scheduled Caste and Scheduled Tribes provided under Article 338(5) of the Constitution of India and held that the Commission cannot determine/adjudicate the caste or tribe status of any particular individual. Relevant extract of report states as under:-
"17. It is evident from Article 338 as it originally 4 (2010) 4 SC 368 5 (2011) 10 SCC 357 WPC No. 1180 of 2013 9 stood, that the Commission was constituted to protect and safeguard the persons belonging to Scheduled Castes and Scheduled Tribes by ensuring: (i) anti- discrimination, (ii) affirmative action by way of reservation and empowerment, and (iii) redressal of grievances. The duties under clause 5(b) of Article 338 did not extend to either issue of caste/tribe certificate or to revoke or cancel a caste/tribe certificate or to decide upon the validity of the caste certificate. Having regard to sub-clause (b) of clause (5) of Article 338, the Commission could no doubt entertain and enquire into any specific complaint about deprivation of any rights and safeguards of Scheduled Tribes. When such a complaint was received, the Commission could enquire into such complaint and give a report to the Central Government or the State Government requiring effective implementation of the safeguards and measures for the protection and welfare and socio-economic development of the Scheduled Tribes. This power to enquire into "deprivation of rights and safeguards of the Scheduled Castes and Scheduled Tribes" did not include the power to enquire into and decide the caste/tribe status of any particular individual. In fact, as there was no effective mechanism to verify the caste/tribe certificates issued to individuals, this Court in Madhuri Patil v. Commr., Tribal Development6 directed constitution of scrutiny committees.
23. The contention that there was sufficient material to reach such a conclusion is not relevant. The scope of the duties of the Commission as noticed above, did not involve inquiry or adjudication in regard to the rights of parties or caste status of the parties. The same is the position even under Article 338-A (which was subsequently inserted) providing for a separate Commission for Scheduled Tribes with identical duties. The order of the Commission cannot therefore be sustained. The High Court was justified in setting aside the said order dated 16-10-2001."
6 (1994) 6 SCC 241 WPC No. 1180 of 2013 10
16. Following the principle of law enunciated in above-stated judgments rendered by Their Lordships of the Supreme Court, it is quite vivid that the function of the Chhattisgarh Rajya Anusuchit Janjati Ayog constituted under the Act of 1995 is advisory in nature. The power and jurisdiction to make enquiry and adjudication in regard to the rights of the Schedule Tribes have not been conferred to the State Commission by Act of 1995. Therefore, the Commission constituted under the Act of 1995 has no adjudicatory jurisdiction and as such State commission is not a tribunal exercising functions of judicial character or Civil Court and cannot determine rights of the Schedule Tribes. The State Commission can by virtue of functions entrusted to him by Section 9(1) of the Act can supervise and see that the protection granted to members of Scheduled Tribe under the Constitution of India or under any other law for the time being in force is actually extended to them and proper implementation and execution of programmes meant for them and also to make recommendation for the State Government for insertion of certain tribes/group of tribes in the Constitution (ST) Order 1950 and further advice for representation of Scheduled Tribe in public service and admission in educational institution, but cannot perform adjudicatory function being only a body competent to make recommendation to the State Government as well as to make advise to the State Government.
WPC No. 1180 of 201311
17. If the facts of the case are examined in light of the discussion made hereinafter that the Commission has adjudicated the title of respondent No. 6 over the suit land and held that the title has been established by respondent No. 6 and petitioner has no title over the suit land and further recommended dispossession of the petitioner from the suit land and handed over the possession to respondent No. 4 which is absolutely the jurisdiction of the Civil Court and Commission has no jurisdiction and adjudicatory power to declare the title and further direct dispossession of the petitioner.
18. As a fall out and consequence of the aforesaid discussion, the petition is allowed and the impugned order dated 26.06.2013 (Annexure - P/1) passed by respondent No. 1 is quashed and hereby declared as void and inoperative leaving the parties to bear their own cost(s). However, this would not prevent the respondent No. 4 to proceed further in accordance with law.
Sd/-
(Sanjay K. Agrawal) Judge Priyanka