Tripura High Court
Sri Ashok Das vs The State Of Tripura on 13 February, 2017
Author: S. Talapatra
Bench: Chief Justice, S. Talapatra
IN THE HIGH COURT OF TRIPURA
AGARTALA
W.A. No. 108 of 2016
Sri Ashok Das,
son of Sri Promode Chandra Das,
permanent resident of village -
Ballamukha, Bankar, P.O. & P.S.
Belonia, Sub-Division- Belonia, District-
South Tripura,
presently residing at village-
Indranagar, P.O. Kunjaban, P.S. East
Agartala, Sub-Division-Agartala,
District-West Tripura
.......... Appellant
Versus
1. The State of Tripura,
represented by the Commissioner &
Secretary, Department of Welfare for
Scheduled Caste & OBCs, having his
office at Agartala, P.O. Agartala, P.S.
West Agartala, Sub-Division-Agartala,
District-West Tripura.
2. The Member Secretary,
State Level Scrutiny Committee
(Director for Welfare of SC & OBC,
Tripura), Government of Tripura, having
his office at Agartala, P.O. Agartala, P.S.
West Agartala, Sub-Division-Agartala,
District-West Tripura.
3. The Block Development Officer,
Rajnagar R.D. Block, P.O. Rajnagar, P.S.
P.R. Bari, District-South Tripura
.........Respondents
BEFORE HON'BLE THE CHIEF JUSTICE THE HON'BLE MR. JUSTICE S. TALAPATRA For the appellant : Mr. A. Bhowmik, Advocate For the respondents : Mr. S. Chakraborty, Advocate Date of hearing : 27.01.2017 Date of delivery of : 13.02.2017 Judgment and Order Yes No Whether fit for reporting :
√ [2] [[ JUDGMENT & ORDER (S. Talapatra, J) By this intra-court appeal, the judgment and order dated 22.09.2016 delivered in W.P.(C) No.275 of 2011 [ Sri Ashok Das vs. the State of Tripura] by a learned Single Judge of this Court has been challenged by the writ petitioner, the appellant herein.
[2] The State Level Scrutiny Committee, the SLSC in short, by the order dated 21.05.2011, Annexure-P/6 to the writ petition, has cancelled the Scheduled Caste (SC) certificate bearing No.739/SDO/BLN/CTZN/90 dated 01.11.1990 issued by the Sub-Divisional Officer, Belonia, South Tripura. On challenging the said order, the petitioner has filed the writ petition. The SLSC in the order dated 21.05.2011 has recorded how they have inquired into the veracity of the claim that the petitioner belongs to Mahishya Das Community, members of which, is recognized as the Scheduled Caste in Tripura.
[3] Having received of the complaint dated 13.08.1998 lodged by one Samir Das, the Director of Scheduled Caste Welfare, Government of Tripura had sent the said complaint to the Statutory Sub-Committee for the Scheduled Castes at Rajnagar RD Block. It appears from the records that the said Sub-
Committee for the Scheduled Caste in their meeting held on 28.02.2002 had resolved unanimously as under:W.A No.108 of 2016 Page 2 of 11 [3]
"On the basis of reference No.19012-13 of 2-138 BSN -51 SCW GL 98 dated 03.11.2001 of the SC & OBC Welfare Directorate, the case of SC certificate of Sri Ashok Das, S/O- Sri Promode Ranjan Das of village Ballamukha, Bankar, Belonia, South Tripura has been examined and after detailed discussions it has been found that the said person does not belong to Scheduled Caste."
[4] The said Sub-Committee came to a clear decision that the petitioner does not belong to the Scheduled Caste community. Thereafter, the reference was made by the Director for Welfare of Scheduled Caste and OBC's Welfare, Government of Tripura to the SLSC. The SLSC in observance of the procedure as laid down in Rule 7A of the Tripura Scheduled Castes and Scheduled Tribes Reservation Rules, 1992 had sent the said complaint to the Director of Vigilance. After investigation, the Vigilance Officer submitted the report to the SLSC on 09.03.2005. It has been clearly held in the vigilance report that the petitioner does not belong to the Scheduled Caste community rather he belongs to 'Barui' community which is not recognized as the Scheduled Caste community. The vigilance officer had submitted his report after recording the statements of the persons who were living in the neighbourhood and reasonably believed to have knowledge about the status of the petitioner. With the report of the Vigilance Officer, the report of the Statutory Sub-Committee and a copy of the complaint was sent to the petitioner asking for his reply, if any. It has been stated in the notice that he may submit the reply in writing with all relevant records, evidence and he may also appear for personal hearing. In response to the show cause W.A No.108 of 2016 Page 3 of 11 [4] notice, the petitioner has submitted his reply on 15.09.2010. Thereafter, the petitioner availed accommodation no various dates but on 15.11.2010 he had urged for a long adjournment. The SLSC granted 2(two) weeks time for personal hearing on fixing the next date on 02.12.2010. But the petitioner was absent on that day. However, he filed a writ petition being W.P.(C) No.565 of 2010 in this court challenging the said show cause notice. By the judgment and order dated 05.01.2011, the said writ petition was disposed of on consensus with the following directions:
"The respondent No.2 is directed to dispose of the reply [Annexure-3 to the writ petition] of the petitioner to the show cause notice by a reasoned order taking note of the contentions made in the writ petition within a period of one month from the date of receipt of this order.
[5] In the said order dated 05.01.2011, the petitioner was asked to appear on 25.02.2011. On appearing, the petitioner has clearly submitted that he does not have anything to say more except what he has stated in his reply to the show cause and in the writ petition. As a measure of abundant caution, the SLSC has reduced that statement in writing and that was signed by the petitioner. After scrutinising the records and the reply of the show cause as submitted by the petitioner, the SLSC has observed as under:
"There is no dispute that said certificate was issued by the Sub-Divisional Officer, Belonia, South Tripura, but facts remain petitioner has obtained the same by misrepresentation of facts. Since a proceeding has been initiated about the caste certificate of the petitioner, the burden of proof lies upon the petitioner to prove that he really belongs to SC category by W.A No.108 of 2016 Page 4 of 11 [5] producing caste evidence and any affinity towards "Mahisyadas" which is recognized as Sch. Caste. By the show cause notice he was afforded opportunity to prove his caste status."
Finally, the SLSC by the said order dated 21.05.2011 has unanimously inferred as under:
"After careful examination and consideration of the showcause notice and averments made in writ petition, the views of the SC Welfare Sub- Committee and report of Vigilance, the State Level Scrutiny Committee came to the conclusion that the petitioner does not belong to Sch. Caste and had obtained the SC certificate by mis-representation of facts. Hence, the SC certificate bearing No.739/SDO/BLN/CTZN/90 dated 01.11.1990 issued by the Sub-Divisional Officer, Belonia, South Tripura is hereby cancelled and SLSC directs the certificate holder to return his original SC certificate to the Directorate for Welfare of SCs & OBCs, Pandit Nehru Complex, Gurkhabasti Agartala within 7 (seven) days from the date of receipt of this order."
[Emphasis added] [6] The petitioner in order to question the legality of the said order dated 21.05.2011 filed this second writ petition and by the impugned judgment, the said writ petition has been dismissed by holding that due and reasonable opportunity was afforded to the petitioner in accordance with the provisions of Rule 7A of the said Rules and thereafter, the SLSC had passed the said order dated 21.05.2011, which according to the learned Single Judge is well reasoned and does not call for interference. [7] Mr. A. Bhowmik, learned counsel appearing for the appellant has made a robust endeavour to satisfy us that due process and the opportunities were not observed or afforded by W.A No.108 of 2016 Page 5 of 11 [6] the SLSC in the inquiry which has finally culminated in the order dated 21.05.2011. According to him, the Register of Ordinary Residents (ROR) was relied by the SLSC but the ROR which has been submitted by the petitioner along with his reply clearly shows that in the said ROR the status of the petitioner is recorded as Schedule Caste. The said ROR of Bollamukha under Rajnagar R.D. Block [page No. 196 of the writ appeal] are in conflict with the ROR that has been relied by the SLSC. In the one ROR, the petitioner and his family members are shown as general category and in another ROR the petitioner and his family members have been shown as the Schedule Caste. Mr. Bhowmik, learned counsel has drawn our notice to the observation in this regard as made by the SLSC in their order dated 21.05.2011 which is as under:
"The certificate of the elder brother of the petitioner submitted along with his showcause reply was not issued by competent authority so it cannot be accepted as affinity."
Thereafter, the SLSC has observed:
"The copy of ROR submitted alongwith his showcause reply also cannot substantiate his caste status because it contradicts with the ROR submitted by the vigilance. Verification of caste status is a process to ascertain the fact. A genuine SC certificate holder would not hesitate to cooperate with the authority by producing related records. This being the factual aspects, the said State Level Scrutiny Committee does not find any merit in the submission of the petitioner that they do not have any jurisdiction. This has disposed of the reply of the petitioner in response to the showcause notice dated 22.07.2010 in compliance of the Hon'ble High Court's direction."
[Emphasis added] W.A No.108 of 2016 Page 6 of 11 [7] [8] Mr. Bhowmik, learned counsel appearing for the appellant however did not press the ground that SLSC had no jurisdiction to inquire into the complaint as at the relevant point of time, meaning when the complaint was lodged, the SLSC was not constituted. As such, this Court would not reconsider that issue but it is required to be noted that when the SLSC was constituted, the matter was referred to the SLSC for inquiry by the Director of Scheduled Caste Welfare, Government of Tripura. Even though Rule 7A of the said Rules was inserted by the 2nd Amendment Rules, 2007, but earlier to the rule came into force the direction of the apex court as issued in Kumari Madhuri Patil and another vs. Addl. Commissioner, Tribal Development and others, reported in (1994) 6 SCC 241 and later on, Director of Tribal Welfare, Government of A.P. vs. Laveti Giri and another, reported in (1995) 4 SCC 32 were governing the field how the SLSC would function. The SLSC's competence in view of those decisions of the apex court and of Rule 7A of said Rules cannot be questioned by the petitioner. Even on the date when the SLSC is constituted, the SLSC could take up an inquiry on the basis of a complaint that was filed before its constitution. There is no legal bar in any parallel law even that the inquiry committee cannot be constituted after the complaint is received. It is unlike the penal law vis-a-vis its retrospective operation. Hence, the learned Single Judge, though differently, has reached to a correct conclusion in this regard and held that there was no jurisdictional infirmity. W.A No.108 of 2016 Page 7 of 11 [8] [9] Mr. Bhwomik, learned counsel has contended before us that the ROR as submitted by the Vigilance Officer cannot be believed as the ROR as submitted by the petitioner was an old version. The Vigilance Officer in his report did not explain the subsequent amendment in the entry for which no notice was given either to the petitioner or any member of his family. He has urged this point but has fairly admitted that in this regard, the petitioner did not lead any evidence.
[10] From the other side, Mr. S. Chakraborty, learned Addl. G.A. appearing for the respondents has submitted that the petitioner was afforded with all procedural safeguards and the petitioner was asked to adduce any evidence to prove his caste status but he did not adduce any further evidence, except those were annexed with his reply and he had clearly stated that he would not like to adduce any further evidence. Mr. Chakraborty, learned Addl. G.A. has submitted that the ROR is not a binding evidence so far the caste status is concerned. The ROR is maintained by the Block Development Officer and he has no competence to determine the caste status of any person. The entry in the ROR is definitely based on the status certificate issued by the competent authority. The inquiry is made to verify the genuineness of the said status certificate. For that purpose, entries in the ROR may constitute a prima-facie evidence but those are not the primary evidence for purpose of declaring someone's caste status. In the inquiry, the SLSC has not relied on W.A No.108 of 2016 Page 8 of 11 [9] the entry in the ROR rather they have relied on the report of the Vigilance Officer which was not rebutted by the petitioner. Even the resolution was unanimously adopted by the Statutory Sub- Committee of Rajnagar RD Block in respect of caste status of the petitioner. Rule 6 of the Tripura Scheduled Castes and Scheduled Tribes Reservation Rules, 1992 provides as under:
"6. Cancellation of Scheduled Caste or Scheduled Tribe certificate:
An authority who issued a Scheduled Caste Certificate or Scheduled Tribe certificate to any one may, at a subsequent stage cancel it, if after an enquiry and after giving the party concerned an opportunity of being heard, it finds that the person to whom the Community Certificate was issued does not actually belong to the Scheduled Caste or the Scheduled Tribe, as the case may be.
Provided that in cancelling a Scheduled Caste Certificate, the issuing authority shall obtain the views of the concerned Block Level or Nagar Panchayat Level or Municipal Level Scheduled Castes Welfare Sub-Committee and in cancelling a Scheduled Tribe certificate, the issuing authority shall obtain the views of the Sub- Divisional Level Scheduled Tribes Welfare Sub-
Committee, if any, constituted by the Government, as to whether the certificate holder belongs to Scheduled Caste or Scheduled Tribe and the views so given by the Scheduled Castes Welfare or Scheduled Tribes Welfare Sub- Committee shall form a part of the order cancelling the certificate in question.
Provided further that the Scrutiny Committee shall also be competent to cancel a community certificate issued by a competent authority. For arriving at a decision whether the community certificate in question shall be cancelled or not, the Scrutiny Committee shall follow the procedure prescribed in Rule 7A hereinafter along with reports/records obtained from the competent authority."
[Emphasis added] W.A No.108 of 2016 Page 9 of 11 [10] [11] As such, the opinion of the Sub-Divisional Committee of the concerned area has got its evidentiary primacy. Moreover, the burden of proving the caste status does not lie on the SLSC or any other authority having the power to cancel the caste status certificate on subsequent verification. Such burden lies with the person who is holding such certificate. In Laveti Giri (supra), the apex court has clearly observed as under:
The High Court in its traditional would wrongly caused the burden of proof on the Department when it squarely rests upon the candidate to prove his caste/tribe according to the procedure prescribed under the rules.
[12] The same burden even lies with the certificate holder before the SLSC by way of substantive evidence, he has to rebut the finding of the Vigilance Officer on admitting the substantive evidence, if he wanted to succeed in his defence. In this case, we are of the view that there is no clinching evidence to rebut the evidence which has been considered by the SLSC for cancelling the status certificate. Another pertinent question emerges is whether the court can appreciate the case on merit as if it were a court of appeal. In Kumari Madhuri Patil (supra) the apex court has observed that the High Court is not a court of appeal to appreciate the evidence. The apex court has further observed in Kumari Madhuri Patil (supra) as under:
"The Committee which is empowered to evaluate the evidence placed before it when records a finding of fact, it ought to prevail unless found vitiated by judicial review of any High Court subject to limitations of interference with findings of fact. The Committee when W.A No.108 of 2016 Page 10 of 11 [11] considers all the material facts and records a finding, though another view, as a court of appeal may be possible, it is not a ground to reverse the findings. The court has to see whether the Committee considered all the relevant material placed before it or has not applied its mind to relevant facts which have led the Committee ultimately record the finding. Each case must be considered in the backdrop of its own facts."
[Emphasis added] [13] In Dayaram vs. Sudhir Batham and others, reported in (2012) 1 SCC 333, where some part of Kumari Madhuri Patil (supra) has been reversed by a larger bench of the apex court. But in respects of the limits of a judicial review there had been no interference at all, inasmuch as for purpose of a judicial review under Article 226 of the Constitution of India, the said circumspection is universally acknowledged. Hence, what Mr. Bhowmik, learned counsel appearing for the appellant has urged before us cannot be reappraised within the said limit, as substantively there is no infirmity in the finding of the SLSC. Moreover, the appellant has utterly failed to lay any clinching evidence to establish that he belongs to Scheduled Caste Community by preponderance of probability.
[14] Having held so, the writ appeal is dismissed. However, there shall be no order as to costs.
JUDGE CHIEF JUSTICE
Sujay
W.A No.108 of 2016 Page 11 of 11