CASE TITTLE: B. GURUPRASAD V ASSISTANT COMMISSIONER and Anr
CASE NO: WRIT PETITION No.8039 OF 2021
ORDER ON: :28.05.2024
QUORUM: JUSTICE M. NAGAPRASANNA
FACTS OF THE CASE:
The facts leading to the present appeal in question is that, On 30-06-2015 a caste certificate is issued by the Tahsildar, Bengaluru North Taluk on an application filed by the 5th respondent that she belongs to Nayaka community, a Scheduled Tribe. On the strength of the caste certificate, it appears that the 5 th respondent contested election to Councillor of ‘BBMP’. the petitioner registers a complaint before the Directorate of Civil Rights Enforcement complaining that the 5th respondent had obtained a Scheduled Tribe certificate fraudulently. The said complaint was transferred by the Directorate of Civil Rights Enforcement to the District Caste Verification Committee, Bangalore Urban District, the 4th respondent, Chairman of which is the Deputy Commissioner. After long drawn proceedings, the Committee cancels the caste certificate issued in favour of the 5th respondent. The 5th respondent prefers an appeal before the 3rd respondent/ Scheduled Tribe Welfare and Appellate Authority, which by its order sets aside the order passed by the Committee and remits the matter back to the Committee. After the said remand, the Committee upholds the caste certificate issued to the 5th respondent depicting her to be belonging to Nayaka community, a Scheduled Tribe. This order is challenged by the petitioner before the Appellate Authority. The Appellate Authority further sets aside the order of the Committee directing the Committee to furnish reports upon which the earlier order was passed to both the parties and decide the matter afresh. After the said remand by the Appellate Authority, the Committee by its order directs that the complaint could not be entertained before the Committee, as the caste certificate was issued for election purpose which was not covered under the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes Act, 1990 and the Rules framed there under in the year 1992 The complaint thus comes to be dismissed. This order has become final. The 2nd respondent/Tahsildar, in terms of order of the Committee, cancels the caste certificate issued to the 5th respondent in terms of his order dated 23-09-2020. The 5 th respondent challenges the said order of the Tahsildar by filing an 6 appeal before the 1st respondent/Assistant Commissioner. These proceedings are challenged by the petitioner in this writ petition.
LEGAL PROVISIONS:
Section 4A of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointment Etc.) Act, 1990 talks about Issue of caste certificate and income and caste certificate.
Section 4B of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointment Etc.) Act, 1990 Appeal against order under section 4A
Section 4D of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointment Etc.) Act, 1990 Appeal.
CONTENTIONS OF PETITIONER:
The learned counsel appearing for the petitioner Smt. Sadhana Desai would vehemently contend that the proceedings before the 1st respondent/Assistant Commissioner are coram non-judice, as he has no authority to consider the appeal. Counsel further submitted that the caste certificate issued in favour of the 5th respondent comes to be cancelled by the Tahsildar not on independent inquiry conducted by him but only following the order of the Deputy Commissioner and Chairman of the Committee. Therefore, if it is following the order of the Deputy Commissioner, the Assistant Commissioner, a subordinate officer cannot and will not sit as an Appellate Authority over the order of a superior officer.counsel also submitted that it is coram non-judice. Elaborating the said submission, the learned counsel would contend that the appeal is preferred under Section 4B of the Act as against the order of the Tahsildar passed under Section 4A. The Tahsildar has, in fact, not exercised his jurisdiction under Section 4A, but only implemented the order of the Committee. Therefore, the 7 appeal under Section 4B is unavailable to the 5th respondent, as the Tahsildar has no jurisdiction to cancel the caste certificate. He can only accept an application, grant the caste certificate or reject the application. He has no power to cancel a caste certificate already issued.
CONTENTIONS OF THE RESPONDENT:
The Respondent through their counsel Sri C.Jagadish contended that the Tahsildar had only implemented the order passed by the Committee. Therefore, the appeal would not lie to the 1st respondent/Assistant Commissioner. It was appropriately directed to be considered by the Committee. The Committee erroneously holds that it has no jurisdiction to consider the caste certificate issued for election purposes under the Act. The learned counsel also submited that the issue as to whether the Committee has jurisdiction to consider caste certificate issued for election purposes is completely answered holding that the Committee has jurisdiction by the Apex Court in the case of BHARATI REDDY v. STATE OF KARNATAKA . The learned counsel further submits that since the 5th respondent has not challenged the order of the Committee which sets aside the order of the Tahsildar, the plea of the 5th respondent cannot be considered by this Court.
The learned counsel for the 5th respondent vehemently refutes these submissions, but would boil down his submissions to the fact of grant of liberty to challenge the order passed in the year 05-08-2020 by the Committee declining to entertain the petition before it on the score that the caste certificate issued for election purposes is not covered under the Act. Counsel further contended that the caste certificate was appropriately granted on genuine documents submitted and it was not a fraud played by the 5th respondent. Counsel further contended that the 5th respondent does belong to Scheduled Tribe – Nayaka community and there has been no determination by any Authority appropriately. Therefore, the counsel contended that liberty be reserved to the 5th respondent to knock at the doors of the Appropriate Authority is his submission.
COURTS ANALYSIS AND JUDGEMENT:
The court on giving anxious consideration to the submissions made by the respective counsels and having perused the material on record. The court opined that the submission of the learned counsel for petitioner merits acceptance, as the Tahsildar has no power to cancel a caste certificate. He can either accept or reject the application.the court further opined that Cancellation of caste certificate is the power vested with the Committee. The Tahsildar only implements the direction of the Committee. The court also observed that, An appeal to the Assistant Commissioner/1st respondent would lie under the Act, if the Tahsildar has on independent application of mind rejected the application for issuance of caste certificate and not cancellation of a caste certificate on the directions of the Committee. Admittedly, the Tahsildar has not passed any order under Section 4A of the Act, as Section 4A supra empowers the Tahsildar to issue caste certificate or caste and income certificate as the case would be. Appeal to the Assistant Commissioner would lie under Section 4B against the order passed by the Tahsildar under Section 4A, which is either accepting or rejecting the application seeking issuance of caste certificate, as Section 4A deals with only issuance of caste 22 certificate and Section 4B deals with appeal against an action on such issuance or non-issuance. 14. Therefore, the appeal in the case at hand, before the Assistant Commissioner, is undoubtedly an appeal before a forum, which is coram non-judice.the court further observed that the proceeding before the 1st respondent is undoubtedly de hors jurisdiction and is now trite that, any proceeding or an order which is without jurisdiction is coram non-judice, resultantly, a nullity in law. Therefore, the very proceeding before the 1st respondent is contrary to law.The court further opined that the order of the 4the respondent/Committee rejecting entire proceedings as not maintainable is again erroneous, therefore For the aforesaid reasons, allows the Writ Petition and the proceedings before the 1st respondent/ Assistant Commissioner stand obliterated.further the court left the parties with liberty to avail all such remedy as is available in law.
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Judgement Reviewed by:Sowmya.R
