Karnataka High Court
Honnappa S/O Hanumanthappa Akkivalli vs The Deputy Commissioner on 13 December, 2013
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 13th DAY OF DECEMBER, 2013
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
WRIT PETITION NO.63610 OF 2010 (SC, ST)
Between:
Honnappa
S/o Hanumanthappa Akkivalli
Age: 59 years
Occ: Service
Resident of Baichavalli
Taluk: Hanagal, District: Haveri
...Petitioner
(by Shri S.N. Rajendra, Advocate)
And:
1. The Deputy Commissioner
Haveri District
2. The Assistant Commissioner
Savanur
Taluk: Savanur, District: Haveri
3. The Tahsildar
Taluk: Hanagal
District: Koppal
4. Suresh
S/o Gadigeppa Koti
Age: Major
Resident of Baichavalli
2
Taluk: Hanagal
District: Haveri
...Respondents
(By Shri K.S. Patil, HCGP for R1 to R3;
Shri S.G. Kadadakatti, Advocate forR4)
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India praying to quash the order dated
25.06.2009 on the file of the first respondent produced at
Annexure-P; and etc.
This petition coming on for preliminary hearing, this day,
the Court made the following:
ORDER
The fourth respondent filed an appeal under Section 4A of the Karnataka Scheduled Castes and Scheduled Tribes and Other Backward Classes (Reservation of Appointment etc.) Act, 1990 (hereinafter referred to as 'the Act' for short) before the Assistant Commissioner with a request to issue a direction to the Tahsildar, Hanagal Taluk, Haveri District to cancel the Caste Certificate dated 27th November 2001 issued in favour of the petitioner. The ground for preferring the said appeal by the fourth respondent is that the petitioner made a complaint against the fourth respondent for having committed atrocity under section 3(1)(x) of Scheduled Caste/Scheduled Tribes (Prohibition of Atrocity) Act and also under the Provisions of 3 Sections, 143, 323, 325, 504, 506(1) read with Section 149 of the Indian Penal Code. In order to substantiate his case for canceling the caste certificate issued to the petitioner, the fourth respondent referred to birth certificate issued by the office of the Tahsildar Haveri in which the community of the petitioner has been referred to as 'Talawar' and another certificate issued by the office of the Tahsildar, Hanagal in No.18/2000 dated 22nd July 2000 wherein it is referred that the petitioner belongs to 'Hindu Talawar', which is classified as BCA-I. Since the petitioner belongs to Talawar community and classified as BCA-I, which does not come under scheduled tribe; contending that the petitioner, by false representation, had obtained the caste certificate, he had made a prayer to Tahsildar to cancel the caste certificate issued to the petitioner. The Assistant Commissioner, by order dated 5th February 2008, exercising his power under Section 4A of the Act, cancelled the caste certificate dated 22nd October 1977 declaring that the petitioner does not belong to 'Hindu Valmiki'. The said order is in challenge in this petition. 4
2. The ground urged by the petitioner is that the Assistant Commissioner exercised his power under Section 4A of the Act and the same is without authority of law, since the certificate issued in favour of the petitioner was for reservation, appointment or education and the Assistant Commissioner has no power to cancel the caste certificate, which was issued by Tahsildar, Haveri. He referred Annexure-A, the caste certificate issued by the Revenue Authority on 22nd October 1977 in which the caste of the petitioner has been referred to as 'Valmiki'. The petitioner has also produced several caste certificates as per Annexure-B to G, in which the 'valmiki' community has been classified as scheduled tribe for the purpose of reservation. The learned counsel also referred to the President of India Order 1950 in which Entry 38 the synonym terms have been included under scheduled tribe community by virtue of amendment made by the President of India. Further, it is submitted that the Full Bench of this Court in the case of JAYAMMA v. DEPUTY COMMISSIONER, CHITRADURGA AND OTHERS in Writ Petition No.28263 of 2004 (SC/ST) disposed of on 3rd August 2012 has held that amendment to Constitution in year 1991 is to be 5 considered as retrospective in effect. The observation made at paragraph 14 of the Order is extracted hereunder:
"14. So far as the facts of the present case are concerned, the original grantee's name was "£ÁAiÀ ÁAiÀÄPÀ"À in vernacular/Kannada. How this is to be spelt in English is the abiding question that arises even before us. If we translate it as 'Naikda' or 'Nayaka', then it was included in 1950 Presidential enumeration. If we are to translate it as 'Naika' or 'Nayak' then it is to be found in the subsequent amendment of 1991 only. The translation should have been made with greater care by the Assistant Commissioner and thereafter by the Deputy Commissioner. We are certain that the Schedule Tribe is the same, attracting only the variant spelling in the translation. Both the Assistant Commissioner as well as the Deputy Commissioner have erroneously concluded that since "£ÁAiÀÄPÀ"À (Naika or Nayak) was included as a Schedule Tribe only in 1991, the grantee did not fall within the purview of the PTCL Act and erroneously restored the land to the State. This error would not have manifested had the two authorities perceived the legal position that all entries in the Constitution (Scheduled Tribes) Order 1950 original or subsequent are only elucidatory and clarificatory in nature. To sum up, after careful cogitation we are of the conviction that the view expressed by the Division Bench in Krishnappa and Rangaiah has to be preferred. In these circumstances, 6 assuming that "£ÁAiÀÄPÀ"À was included as a Scheduled Tribe in 1991, we shall nevertheless answer the Reference by stating that every inclusion would have retrospective effect and would therefore revert back to the Presidential Notification 1950."
3. The learned counsel for the fourth respondent, who also appeared before the Assistant Commissioner in the appeal under Section 4A of the Act, submits that in the birth certificate and in the certificate issued by the Tahsildar on 22nd July 2000, the community of the petitioner has been referred as 'Talawar"
and the said community does not find place in the President of India Order of 1950 or 1991. Under the circumstances, he justifies the order of the Assistant Commissioner.
4. Heard both. The learned Government Advocate secured the Lower Court Records and placed the same for examination. The fundamental thing that an authority, who exercises his power has to examine, whether he has got jurisdiction under the specific provisions of law. Here, Section 4A of the Act has been invoked under the Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointment 7 Etc.) Act, 1990 and under Scheduled Castes and Scheduled Tribes and Other Backward Classes (Reservation) Rules, 2000. The said authority has been constituted to examine the appeal filed by the aggrieved person, in case, if it relates to reservations for appointment. In the instant case, the petitioner did not make any application or obtained caste certificate for the purpose of appointment or reservation and promotions. Under the circumstance, the Assistant Commissioner does not get jurisdiction under Rule 4A of 2000 Rules. The competent authority to issue caste certificate is the Tahsildar and he only is the authority to cancel it. The certificate issued on 27th November 2001 by Tahsildar, Haveri classifying 'Valmiki' community, which is claimed by the petitioner as Scheduled Tribe, has not been cancelled by the competent authority, viz. the Tahsildar. The competent authority, viz., the Tahsildar has got power to cancel the caste certificate that on verification if it is found true then the same has to be confirmed by the Income and Caste Verification Committee, for which the Deputy Commissioner of the respective district would be the Chairman. But, in the case on hand before canceling the caste certificate, 8 the competent authority has neither examined, recorded the evidence nor collected the materials. Merely, by relying on the birth certificate and enquiry made by the Tahsildar the status of the person, for the purpose of reservation, cannot be cancelled. The Authority, who exercises his jurisdiction under Rule 4A of Rules, has to remember that he is exercising quasi-judicial powers. The cancellation or inclusion, changes one's status or withdraws his status. Before doing so the quasi-judicial authority has to provide fullest opportunity to the affected party and he has to be heard in the matter. The evidence or materials has to be recorded. In absence of either of the one, the order of the Assistant Commissioner vitiates and the same is liable to be set aside. The evidence and materials are to be recorded because, in many cases, in village, the persons belonging to Bedar, Nayaka, Nayak and Naik community, etc. are normally addressed as a 'Talawar'. A person, if he is called as Shastri, does not be presumed that he belongs to a particular community. For instance, the persons belonging to scheduled caste and scheduled tribe and other backward class categories have names like 'Shastri', 'Rao', etc. By considering all these 9 aspects, it is held that gathering jurisdiction under Rule 4A of the Rules is arbitrary and unconstitutional.
5. Under these circumstances, the order passed by the Assistant Commissioner is bad in law and liable to be quashed and accordingly it is quashed. The caste certificate issued by the competent authority, Tahsildar, Haveri in favour of the petitioner is restored and held as valid.
6. Even at this juncture or at any point of time, if the authority finds that the person has obtained the caste certificate by misrepresentation or by undue influence, it is always open to them to cancel it. But the cancellation is to be strictly after affording fullest opportunity, that too by the competent authority under the relevant provisions of law. The competent authority for the purpose of present Rules, viz. SC/ST, OBC (Reservation in appointment) Rules, is different from the competent authority to issue caste certificate for the purpose of elections to the local bodies and etc. Under these circumstances, the competent authorities have to exercise their power and if any action is taken exercising the power or adjudicating the cases of the 10 parties, without specifying any of the provisions, then it violates the provisions of law and the same would be arbitrary and violative of Article 14 of the Constitution of India.
7. Under the circumstance, the petition is allowed. The order impugned is hereby quashed. Consequently, the Order of the Deputy Commissioner is also quashed.
SD/-
JUDGE lnn