Madras High Court
Kavitha vs The Revenue Divisional Officer on 29 March, 2012
Author: P.Jyothimani
Bench: P.Jyothimani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.3.2012 CORAM THE HON'BLE MR.JUSTICE P.JYOTHIMANI AND THE HONOURABLE MR.JUSTICE M.VIJAYARAGHAVAN W.P.Nos.21535 and 25415 of 2011 W.P.No.21535 of 2011: Kavitha .. Petitioner Vs. The Revenue Divisional Officer Dharmapuri. .. Respondent PRAYER in W.P.No.21535 of 2011: Petition under Article 226 of the Constitution of India praying for a writ of Certiorarified Mandamus to call for the records relating to the order of rejection passed in proceedings in Na.Ka.5702/2010(A4), dated 22.8.2011 on the file of the respondent, to quash the same and to direct the respondent to issue community certificate to the petitioner's two children by names S.Karthic and C.S.Bhavana that they belong to "'Kurumans (ST) Community" based upon the community certificates already issued to the petitioner, her husband and blood relatives by the respondent. W.P.No.25415 of 2011: D.Sivakumar .. Petitioner Vs. The Sub Collector Dharmapuri. .. Respondent PRAYER in W.P.No.25415 of 2011: Petition under Article 226 of the Constitution of India praying for a writ of Certiorarified Mandamus to call for the records relating to the order of rejection passed in proceedings in Na.Ka.5702/2010(A4), dated 22.8.2011 on the file of the respondent, to quash the same and to direct the respondent to issue community certificate to the petitioner's two children by names S.Mohan Kumar and S.Madhumitha that they belong to "'Kurumans (ST) Community" based upon the community certificates already issued to the petitioner and his family members by the respondent. For Petitioners : Mr.S.Doraisamy For Respondents : Mr.N.Visagamoorthy Government Advocate O R D E R
(Made by P.JYOTHIMANI,J.) In W.P.No.21535 of 2011, the petitioner, who is the mother of S.Karthic and C.S.Bhavana, has challenged the order of the Revenue Divisional Officer dated 22.8.2011, in and by which the Revenue Divisional Officer has rejected the claim of the petitioner for issuance of community certificate to her two children denoting that they belong to "Kurumans" Community, which is a notified Schedule Tribe Community.
2. Likewise, in W.P.No.25415 of 2011, the petitioner, who is the father of S.Mohan Kumar and S.Madhumitha, has challenged the order of the respondent dated 22.8.2011, in and by which the respondent has rejected the claim of the petitioner for issuance of community certificate to his two children denoting that they belong to "Kurumans" Community, which is a notified Schedule Tribe Community.
3. It is seen from the records that, in fact, the petitioners have produced community certificates issued by the authority competent to issue such certificates for the Scheduled Tribe Community, namely the Revenue Divisional Officer, to various members of the families of the petitioners, which includes in the case of the petitioner in W.P.No.21535 of 2011 to the petitioner herself, her husband K.Sundararajan, and many other family members, and in the case of the petitioner in W.P.No.25415 of 2011 to the petitioner himself, his brothers and sister. It is relevant to note that those documents wherein the community has been notified in respect of the individuals as Scheduled Tribe range from the year 1995 to 2010. Apart from the above documents, the petitioners to justify their claim that they belong to "Kurumans" Community have produced other evidence at the time of enquiry before the respondents to show the tribal status of the parents and also other family members.
4. However, under the impugned orders, the respondents have found that in some of the certificates, the community of some of the family members is stated as "Kurumbar" Community. The respondent has correctly come to a conclusion that there is no such community as "Kurumbar" and what is "Kurumans" Community is by mistake mentioned in the certificates as "Kurumbar" Community, but nevertheless by making suspicion about the claim of the children of the petitioners, the respondents have come to a conclusion that in the absence of any concrete evidence that the children of the petitioners belong to "Kurumans" Community, they should be deemed to be belonging to "Kurumbar" Community, which is not a Scheduled Tribe Community and also steps must be taken for the purpose of setting aside all the certificates issued to various family members and it is with that view, the applications made by the petitioners came to be rejected holding that the children of the petitioners do not belong to "Kurumans" Community.
5. Simply because in one or two certificates which have been produced by the petitioners there have been some mistakes in denoting the community of the members of the family as "Kurumbar", one cannot jump to a conclusion that the children of the petitioners do not belong to "Kuruman" Community, especially when it is admitted that the petitioners, who are the parents of the children, are belonging to "Kurumans" Community and certificates have been produced to that effect. When many members of the family have the community notified as "Kurumans" Community, it is not known as to how the respondents, who are the competent authority to issue certificate, can single out the children of the petitioners simply because some of the family members community has been wrongly denoted as belonging to "Kurumbar" Community.
6. In fact, a Division Bench of this Court, by order dated 29.10.2010 in W.P.No.15953 of 2010 (R.Silambarasan v. The Secretary, Selection Committee, Directorate of Medical Education, Kilpauk, Chennai and two others), has held that when it is not in dispute that there is no community as "Kurumbar", simply because some certificate mentions about "Kurumbar" Community, the authority cannot deny the right, if otherwise the person is eligible to belong to "Kurumans" Community, which is a Scheduled Tribe Community. The operative portion of the said judgment is as follows:
"4. In our opinion, as it is not in dispute that 'Kurumbar' community is not one of the communities notified by the Government, for the purpose of identifying the status of an individual, that community cannot be taken into consideration. If that be so, the finding of the second respondent that the petitioner belongs to 'Kurumbar' community cannot be sustained and as a necessary corollary, the same cannot be the reason for rejecting the request of the petitioner for issuance of Kurumans community certificate.
5. In view of the above, we are inclined to accept the submission of the learned counsel for the petitioner. Accordingly, the impugned order is set aside and the matter is now remitted to the second respondent, Revenue Divisional Officer, Harur, Dharmapuri District, for fresh consideration of the application of the petitioner. The petitioner shall file an affidavit of his parents/guardians duly sworn to and attested by a competent gazetted officer or non-gazetted officer with particulars of caste and sub castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the concerned Directorate. Such an affidavit shall be filed by the petitioner together with any other further materials that may be available with him within a period of thirty days from the date of receipt of copy of the order. On receipt of the same, the Revenue Divisional Officer, Harur, Dharmapuri District, shall consider the application of the petitioner independently and without reference to the earlier finding that the petitioner belongs to 'Kurumbar' community and pass necessary orders on that application in a period of two months therefrom."
7. Even if the authority competent to issue certificate entertains any doubt about the communal status, including the traits, characteristics, and customs of the said community, the Revenue Divisional Officer cannot decide the same. It is squarely for that reason the Government appointed State Level Scrutiny Committee with Anthropologist as one of its members, for the Anthropologist is competent to decide about the culture and traits of the person. Therefore, in such cases where the Revenue Divisional Officer entertains doubt, it is his duty to refer the matter to the State Level Scrutiny Committee for the purpose of conducting enquiry and he has no right to deny the issuance of the certificate, especially when there is concrete evidence available in respect of the family members. That was also the view expressed by the Supreme Court in State of Bihar and others v. Sumit Anand, (2005) 12 SCC 248, wherein while considering about the "Gond" Community, which is a Scheduled Tribe Community, the High Court has held that when father, grandfather, mother and maternal uncle have all been given such certificate denoting them as belonging to "Gond" Community, which is a Scheduled Tribe Community, there is no reason to deny the same to some other family members of the said community. Upholding the view of the High Court, the Supreme Court in the above said case has held as follows:
"6. We have perused the findings recorded by the Division Bench as well as the Single Judge of the High Court. In view of the fact that the respondent's father, grandfather, mother and maternal uncle had all been granted the certificate certifying that they belong to the Gond community, we see no reason to come to a conclusion other than the one arrived at by the High Court to the effect that the respondent was entitled to issuance of the caste certificate."
8. The said decision has been followed subsequently in various other judgments of the Division Benches of this Court, especially in C.V.Kalaivanan v. The Sub Collector, Mettur Dam, 2010 (3) CTC 673.
9. By order dated 28.2.2012 made in W.P.No.20988 of 2011 (D.Ponnumudi v. The Revenue Divisional Officer), this Court, to which one of us was a party (P.Jyothimani,J.), has held that the authority competent should consider the certificates of the family members and issue the same and in case of any doubt it is for the authority to refer the same to the three member Committee, namely the State Level Scrutiny Committee.
Under such circumstances, these writ petitions stand ordered with the following directions:
(i)the impugned orders of the respondents are set aside and the matter is remitted to the respondents with a direction to reconsider the case of the petitioners in respect of their children and pass necessary orders in issuing community certificates and the respondents shall pass such orders within a period of four weeks from the date of receipt of a copy of this order and in case the respondents entertain any doubt about the communal status of the children of the petitioners, they shall make it clear in the said certificates to be issued that such issuance shall be subject to the final decision which may be taken by the State Level Scrutiny Committee; and
(ii)in the event of entertaining a doubt about the communal status of the children of the petitioners, it is for the respondents to refer it to the State Level Scrutiny Committee and thereafter act as per the directions of the State Level Scrutiny Committee.
No costs.
sasi To:
1. The Revenue Divisional Officer Dharmapuri.
2. The Sub Collector Dharmapuri