Gujarat High Court
Damor Narmadaben Pujabhai vs State Of Gujarat & on 31 July, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/14541/2008 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14541 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? No
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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DAMOR NARMADABEN PUJABHAI....Petitioner(s)
Versus
STATE OF GUJARAT & 11....Respondent(s)
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Appearance:
MR KB PUJARA, ADVOCATE for the Petitioner(s) No. 1
MR MANAN MEHTA, AGP for the Respondent(s) No. 1 - 2
RULE SERVED BY DS for the Respondent(s) No. 3 - 12
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 31/07/2017
CAV JUDGMENT
Heard learned advocate Mr.K.B. Pujara for the petitioner and learned Assistant Government Pleader Mr.Manan Mehta for the respondent authorities.
2. The Mamlatdar issued certificate dated 29th Page 1 of 7 HC-NIC Page 1 of 7 Created On Sun Aug 20 03:09:07 IST 2017 C/SCA/14541/2008 CAV JUDGMENT July, 1999 that the petitioner belong to Hindu Bhil community which was recognised as Scheduled Tribe. As per the certificate dated 25th August, 2004, Vigilance Officer (Scheduled Caste Development), certified that petitioner was Hindu Bhil Damor and was recognised as Scheduled Tribe in the State of Gujarat. By yet another certificate dated 15th June, 2006 the petitioner's caste Hindu Bhil was certified. Respondent No.4-The Commissioner, Tribal Development, by his order dated 20th November, 2008, being the impugned order; cancelled the certificates of the petitioner, consequently disregarded the caste status of the petitioner recognised as Scheduled Tribe.
3. The petitioner came to be admitted in the P.T.C. Course in the year 2004-05 and studied in the vacancy reserved for Scheduled Tribe, passed first year examination, also passed the second year examination and appeared at the final examination in March-April, 2006. His result was withheld as respondent No.4 was holding inquiry about the validity of the petitioner's caste certificate as Scheduled Tribe. The Scrutiny Committee in its meeting dated 06th August, 2008 took a view that the caste status of the petitioner was liable to be de-recognised. Followed thereafter the impugned order, and the petitioner filed the present petition to challenge the same.
3.1 While issuing Rule on 29th January, 2009, this Court passed interim order as under.
"By interim order, it is directed that the result of the petitioner shall be declared subject to the final order which may be passed in the present proceedings.Page 2 of 7
HC-NIC Page 2 of 7 Created On Sun Aug 20 03:09:07 IST 2017 C/SCA/14541/2008 CAV JUDGMENT It is observed that based on such result, the petitioner will not be in a position to claim the status as that of ST candidate, but will have the status as existed prior to the granting of certificate for reservation as ST candidate. The aforesaid also shall be subject to further orders as may be passed by this Court at the time of final disposal."
3.2 It appears that Scrutiny Committee and thereupon respondent No.4 proceeded to cancel the caste certificate of the petitioner pursuant to opinion dated 25th May, 2005 given by the Collector. The reason which weighed with the authority to conclude that the caste certificate was erroneously obtained by the petitioner, was the aspect that the surnames such as Hindu Damor, Hindu Koli and Hindu Damor Koli were included in the list of Socially & Economically Backward Classes. It was recorded that the caste was mentioned as Koli Damor and further that people residing in the nearby area were Hindu Koli. It was further reasoned that land of the forefathers of the petitioner had gone in submergence in irrigation project and they have been stayed at the land allotted by the State Government, however the said land is not entered under Section 73AA of the Bombay Land Revenue Code which showed that the Scheduled Tribe status accorded to the petitioner was not correct and that the certificates were obtained by producing misleading documents.
4. While defending the impugned orders, the fourth respondent, in his affidavit-in-reply, as highlighted by learned Assistant Government Pleader, submitted that the report from the office of the Mamlatdar as well as report of the Collector dated 16th Page 3 of 7 HC-NIC Page 3 of 7 Created On Sun Aug 20 03:09:07 IST 2017 C/SCA/14541/2008 CAV JUDGMENT March, 2005 and 25th May, 2005 showed that the land of the petitioner's father which was one of the basis to claim membership of Scheduled Tribe, was a new tenure land granted to the father of the petitioner in lieu of the land which went into the floods. The certificate of the school record of the grandfather of the petitioner was relied on which suggested that grandfather was Hindu Koli. It was further contended that father of the petitioner described his surname as Damor which does not reflect the status of Scheduled Tribe. It was submitted that the provess of investigation in the caste status of the petitioner was initiated pursuant to a communication of Sarpanch of the Village.
5. Amongst the submission that respondent No.4 disregarded the material aspects and documents which established the caste of the petitioner as Scheduled Tribe, learned advocate for the petitioner Mr.K.B. Pujara highlighted from paragraph 12 of the petition that the authority relied on documents, notifications and circulars to come to a conclusion against the petitioner, however copy of none of them were supplied to the petitioner and petitioner did not have opportunity to meet with them. Not only that this omission on part of respondent No.4 constituted breach of natural justice rendering the order passed by respondent No.4 liable to be set aside on that ground alone, all the more, when the facts on record were carefully gone through, and the impugned order was considered, it could be noticed that respondent No.4 had disregarded several decisive documents and facts.
Page 4 of 7HC-NIC Page 4 of 7 Created On Sun Aug 20 03:09:07 IST 2017 C/SCA/14541/2008 CAV JUDGMENT 5.1 When a conclusion is drawn by respondent No.4 that in respect of land of the father of the petitioner entry under Section 73AA of the Bombay Land Revenue Code was not made, the same was not acceptable in asmuch as it is an admitted position that petitioner's father Pujabhai Vechatbhai owned his original land at Village Paniyar and in that respect, entry under Section 73AA under the Code indicating status as Scheduled Tribe of the owner was mentioned. After the submergence of the said land in the Kadana Dam Project, government allotted another land to the petitioner's father. When the entry in respect of original land at Village Paniyar was on the basis of petitioner's caste as Scheduled Tribe, displacement of the petitioner from the said land in view of submergence of land would not denude the petitioner of the Scheduled Tribe status which was otherwise based on a conclusive proof on an entry under Section 73AA of the Bombay Land Revenue Code entered for the land at Village Paniyar.
5.2 The Vigilance Officer (Tribal Department), Panchmahal, was directed to undertake an inquiry to verify the facts regarding petitioner's caste by letter dated 07th July, 2006. The Vigilance Officer made an inquiry and verified the facts, upon which a report came to be submitted to the Deputy Collector, Tribal Development, on 23rd March, 2007. In his report, the Vigilance Officer had relied on the following documents - (i) record of Paniyar Primary School where the petitioner had taken primary education; (ii) Page 5 of 7 HC-NIC Page 5 of 7 Created On Sun Aug 20 03:09:07 IST 2017 C/SCA/14541/2008 CAV JUDGMENT letter dated 19th January, 2004 issued by the Deputy Collector, Land Acquisition and Rehabilitation, Godhra, wherein the father of the petitioner Mr.Pujabhai Vechatbhai Damor was recorded as belonging to scheduled tribe in respect of the land at Paniyar and in the entry of his original native place; (iii) Pedhinama of Damor Pujabhai Vechatbhai wherein also the name of the petitioner was stated; (iv) 7X12 Form wherein entry of Section 73AA of the Bombay Land Revenue Code - (Restriction on Transfer of Occupancy of Tribals to Tribals or Non-Tribals) was duly entered. The aforesaid report of the Vigilance Officer was before the authorities who considered the question of caste status of the petitioner, however the report was plainly ignored. Thus there was a non- consideration of material evidence.
5.3 Significantly, the authority passing the impugned order unequivocally recorded on the basis of the report of the Vigilance Officer mentioned above, that the sub-caste of the petitioner was Hindu Bhil. Once the sub-caste of the petitioner was established to be Hindu Bhil, it is not a disputed position that Scheduled Caste and Scheduled Tribe Order, 1976 contains Entry no.74 and mentions Bhil recognising it as Scheduled Tribe. This aspect coupled with the fact that in the school leaving certificate issued to the elder brother of the petitioner, Hindu Bhil was mentioned and he was given Scheduled Tribe certificate. Therefore, when elder brother himself was recognised as Scheduled Tribe, there was no reason for not recognising the petitioner as Scheduled Tribe.
Page 6 of 7HC-NIC Page 6 of 7 Created On Sun Aug 20 03:09:07 IST 2017 C/SCA/14541/2008 CAV JUDGMENT 5.4 It appears that the respondent authorities misdirected themselves on the basis that school record mentioned the surname Damor. Not only that 'Damor' was written after the group of words 'Hindu Bhil' in the school leaving certificate of the petitioner, as already noted, the Hindu Bhil community was recognised as Scheduled Tribe. A particular community may be known with different surnames. The authorities mistook the surname with the caste status and denied the petitioner the status of Scheduled Tribe. Thus though the petitioner was Hind Bhil which was falling under Scheduled Tribe, the certificates were cancelled.
6. The impugned decision was thus a decision which was arrived at by ignoring legally tenable and acceptable evidence which had decisive effect on the case of the petitioner. Irrelevant considerations were gone into. When a decision is rested on irrelevant considerations, it is characterised as perverse.
7. For the aforesaid reasons, the impugned order dated 20th November, 2008 passed by respondent No.4 is bad in law and cannot be sustained. The same is set aside. The petition is allowed. Rule is made absolute.
(N.V.ANJARIA, J.) Anup Page 7 of 7 HC-NIC Page 7 of 7 Created On Sun Aug 20 03:09:07 IST 2017