Jadhav Rekoba And Others v. The Govt. Of A.P A.P Secretariat, Hyd. And Ors.

The three (3) petitioners assail the orders of the Government in G.O.Ms.No.22, Social Welfare (Department), dated 05.03.2002, whereby and whereunder, they in exercise of powers under section 7(2) of a.p. (scheduled castes, scheduled tribes & backward classes) regulation of issue of community certificates act, 1993 (for brevity, the act), rejected the appeal filed by the petitioners against the orders of the District Collector, the second respondent herein, who by order dated 31.12.2000, cancelled the Caste Certificates issued to the petitioners as belonging to Lambada (Scheduled Tribe).

The Girijana Lambadies Brundam, Adilabad gave a complaint that the first petitioner and his two sons, petitioner Nos.2 and 3, obtained false Certificates as belonging to Lambada community though they migrated from Maharashtra. In exercise of powers under Section 5 of the Act, the second respondent constituted a District Scrutiny Committee (D.S.C.) under Rule 8 of the A.P. Scheduled Castes, Scheduled Tribes and Backward Classes Issue of Community, Nativity and Date of Birth Certificates Rules, 1997 (for brevity, the Rules). The said Committee under the Chairmanship of the Joint Collector, issued show cause notice to the first petitioner and conducted enquiry. A report was submitted on 15.02.2000 based on which the second respondent passed orders on 31.12.2000 cancelling the Community Certificates of the petitioners. Petitioners, aggrieved thereby, filed the appeal under Section 7(2) before the Government, who by the impugned order, dismissed the same.

A counter affidavit is filed opposing the writ petition.

It is however not necessary to refer to the various averments therein as these proceedings are essentially for a Writ of Certiorari and the relevant issue is whether the impugned order is vitiated by grave error apparent on the face of the record.

The learned counsel for the petitioners mainly contended that the order of cancellation by the District Collector was based on the report of the D.S.C., a copy of which was not furnished to the petitioners and therefore, the Cancellation Order suffers from defect in law. He places reliance on M.Karunakar v State of A.P., B.C. Welfare Department 2001 (1) ALT 688, Bhakthavathsala Sukumar v M/s. Hindustan Petroleum Corporation Ltd., 2003 (6) ALT 133 and Duda Ramesh v State of A.P. 2005 (2) ALT 773. He also brought to the notice of this Court of a decision of the Supreme Court in Gulzar Singh v Sub-Divisional Magistrate 1999(10) SUPREME 162.

Per contra, the learned Assistant Government Pleader for Social Welfare relies on the decision of the Supreme Court in Director of Tribunal Welfare v Laveti Giri AIR 1995 SUPREME COURT 1506 and State of Tamil Nadu v A. Gurusamy (1997) 3 SCC 542 and submits that when the burden of proof that they belong to Scheduled Tribe lies on the petitioners under Section 6 of the Act, the non-supply of the copy of the report of D.S.C., does not vitiate the proceedings of the District Collector. He contends that at the request of the petitioners, the District Collector again gave opportunity, but the petitioners failed to produce any evidence that they migrated to State of Andhra Pradesh before 27.07.1977 when Lambada Community was included in the list of Scheduled Tribes by an amendment made by the Parliament to the Constitution (Schedules Tribes) Order, 1950.

In Certiorari proceedings, it is axiomatic the finding of fact recorded by the decision maker is not ordinarily interfered with unless such finding is grossly perverse. Therefore, this Court is not inclined to venture adjudicating the factual dispute. But the fact remains that the order of District Collector draws sustenance and support from the report of the Chairman of the D.S.C. dated 15.02.2000. The non-furnishing of such report vitiates the entire proceedings.

In Bhakthavathsala Sukumar (supra), this court held that

"when the enquiry authority relying on a document records a finding, such authority has to furnish such document to the delinquent to offer his remarks and non-supply of such copy would amount to violation of principles of natural justice"

. Yet again, in Duda Ramesh (supra), a learned single Judge of this Court, held as under:

"30. In ground No. (h) of the affidavit filed in support of the writ petition, it was specifically pleaded that the petitioners were denied reasonable opportunity since the report of the Mandal Revenue Officer, the Sub-Collector, the statement stated to be recorded by the Mandal Revenue Officer etc., were not furnished. The requirement of reasonable opportunity cannot be said to have been fulfilled by requiring the petitioners to inspect the records having regard to the nature of enquiry and the serious consequences involved. No opportunity was given for perusing the records etc., as alleged. Having regard to the complicated nature of enquiry etc., the 3rd respondent was bound to furnish copies of reports, statements etc., and a mere allegation that the petitioners were permitted to peruse the records is not sufficient compliance of the requirement of fair hearing."

In M. Karunakar (supra), a question arose as to whether the report of the D.S.C. should be furnished by the District Collector while passing orders under 9(7) of the Rules, explaining the mandatory nature of the requirement, this Court laid down that the District Collector has to furnish a copy of the finding of the D.S.C. to the persons and give them an opportunity of making representation before passing cancellation orders. The relevant observations are as under:

"20. In this case, the District Collector, after obtaining the preliminary report from the Revenue Divisional Officers concerned, referred, the case for enquiry to the Scrutiny Committee. However, the Scrutiny Committee neither furnished the copies of the preliminary reports submitted by the concerned Revenue Divisional Officers, nor furnished the material collected by it to the petitioners before proceedings further with the case. Likewise, the Scrutiny Committee while recording the statements of the individuals did not afford an opportunity to the petitioners to cross-examine them. In the light of the language employed in Section 5 of the Act i.e., ".... He shall by notification, cancel the certificate after giving the person concerned an opportunity of making a representation", I am of the view that the District Collector has to furnish a copy of the findings of the Scrutiny Committee to the petitioners and give them an opportunity of making a representation before passing the impugned orders. This is what the Supreme Court stated in guideline No. 6 in Laveti Giri's case (1) supra. Further a Division Bench of the Madras High Court also in D. Illamaran vs. Government of India, represented by Chief Engineer, All India Radio and Television, Southern Zone, Madras (1986 Writ L.R. 482) has taken a similar view which was followed in G. Muthulakshmi vs. The Collector, Madurai District and others(1999 II MLJ 147) and the relevant portion is extracted below.

"Whenever the question arises, as to whether a person belongs to a particular community recognized as the Scheduled Tribe or Scheduled Caste, decision has to be taken by the Collector of the District, after holding due enquiry and in such case, he may himself hold an enquiry or direct the Revenue Divisional Officer to hold an enquiry and submit a report. In the event the Collector adopts the latter course, he has to make available a copy of the report submitted by the Revenue Divisional Officer to the concerned person and give him an opportunity to file his objections and adduce evidence, if any and then decide the matter after hearing the aggrieved person, in the instant case the petitioner...... A copy of the report made by the Revenue Divisional Officer should be furnished to the petitioner and thereafter the petitioner should be given time to file his objections and adduce evidence, if any, and then the Collector shall decide the matter after hearing the petitioner, as to whether the petitioner belongs to Konda Reddy Community or not. In the event it is held that the petitioner does not belong to Konda Reddy community, the Collector shall cancel the community certificate issued to the petitioner by the Tahsildar that he belongs to Konda Reddy Community and intimate to respondents."

21. The fact that the appellate authority has given opportunity to the petitioners to produce additional evidence, if any, to prove their case, will not cure the inherent defect in the procedure followed by the Scrutiny Committee as well as the District Collector, more so in the absence of furnishing a copy of the report submitted by the Scrutiny Committee, even at that stage".

In Gulzar Singh (supra) the Supreme Court has laid down as under:

"3. It is clear from the facts on record that prior to the cancellation of the Scheduled Caste Certificate by the impugned order dated 3.6.1997, no show cause notice was issued to the appellant. It cannot be denied that with the issuance of the Scheduled Caste Certificate, certain rights accrued to the appellant. If this Certificate was to be cancelled on the basis of some enquiry which had been conducted by the department, it was incumbent on the department, keeping in view the principles of natural justice to issue a show cause notice to the appellant requiring him to explain as to why the Scheduled Caste Certificate which had been issued should not be cancelled. If there were statements of other persons which were recorded, as seem to have been done in the present case, on the basis of which the department came to the conclusion that the appellant was not a Majhbi Sikh by caste but was a Christian, then fairness would require that the said statements should be put to the appellant before a final decision is taken."

This Court has carefully gone through the two decisions relied upon by the learned Assistant Government Pleader for Social Welfare. Both the authorities nowhere laid down that a Community Certificate can be cancelled even where allegations of fraud or misrepresentation are made without following the principles of natural justice notwithstanding the fact that the burden of proof lies on the person who claims to belong to a particular community. As held by the three decisions of this Court cited above, if the report of the Scrutiny Committee is a basis for cancellation of a Community Certificate, such report has to be furnished by the District Collector before passing orders under Section 5 of the Act. In this case, the same has not been followed. Therefore, the Collector's order is vitiated.

The impugned order passed by the Government is bereft of any reasons. The Constitutional Courts have repeatedly held that the Government while exercising quasi judicial, appellate/revisional jurisdiction, is bound to give reasons and absence of reasons itself would be in violation of principles of natural justice. Therefore, the impugned order has to be set aside.

In the result, the order of the Government and the order of the District Collector are set aside. The matter is remitted to the District Collector, Adilabad. A copy of the report of the District Scrutiny Committee along with the findings may be furnished to the petitioners. An opportunity be afforded to them and appropriate orders then be passed in accordance with law.

This exercise may be completed within a period of eight weeks from the date of receipt of a copy of this order.

The writ petition stands allowed accordingly. No costs.