IN THE HIGH COURT OF KARNATAKA, BANGALORE BEFORE THE HON'BLE MR.JUSTICE L. NARAYANA SWAMY. WRIT PETITION No.45279/2011 (GM-RES)

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1 1 IN THE HIGH COURT OF KARNATAKA, BANGALORE DATED THIS THE 01 ST DAY OF JULY, 2014 BEFORE THE HON'BLE MR.JUSTICE L. NARAYANA SWAMY WRIT PETITION No.45279/2011 (GM-RES) BETWEEN SRI M.K.SOMASEKHAR SON OF SRI KEMPANNA AGED ABOUT 55 YEARS RESIDENT OF NO.318 SUBBAIAH ROAD MYSORE PETITIONER (BY SRI. P PRASANNA KUMAR & SRI.CHRISTOPHER NOEL, ADVOCATES) AND 1. THE DIRECTOR SCHEDULED TRIBES WELFARE DEPARTMENT & STATE CASTE VERIFICATION COMMITTEE KRISHI BHAVAN 2 ND FLOOR, HUDSON CIRCLE BANGALORE THE ADDL. DIRECTOR GENERAL OF POLICE CRE CELL BANGALORE BANGALORE THE DISTRICT SOCIAL WELFARE OFFICER MYSORE MYSORE

2 2 4. THE SUPERINTENDENT OF POLICE DIRECTORATE OF CIVIL RIGHTS ENFORCEMENT MYSORE MYSORE M.C.CHIKKANNA S/O. LATE CHIKKAIAH R/O. NO.788/98 12 TH CROSS, RAMANUJA ROAD MYSORE RESPONDENTS (BY SRI. C.JAGADEESH, SPL.GA FOR R-1 & 2; SRI.S.H.PRASHANTH, ADV., FOR R-5; R3 AND 4 SERVED AND UNREPRESENTED) * * * THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RELEVANT RECORDS AND QUASH THE REPORT OF THE RESPONDENT NO.4 DATED AS PER ANNEXURE-H AND THE ORDER DATED PASSED BY THE RESPONDENT NO.1 VIDE ANNEXURE-J AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B GROUP THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER The petitioner has challenged the impugned order passed by the State Caste Verification Committee for ST, Bangalore dated , in which the report made by the DCRE, Mysore was upheld and confirmed the complaint made

3 3 by the respondent No.5 addressed to DCRE and 4 th respondent (5 th respondent herein) has alleged that the petitioner has obtained false certificate claiming himself as ST Kadu Kuruba. The petitioner nor his family members belong to ST. The petitioner made efforts by placing created documents and taken the benefit meant for them. The complaint of the 5 th respondent was referred and DCRE in its report found that the petitioner does not belong to ST. The report was placed before the committee duly constituted for examining the status certificate. 2. Learned counsel for the petitioner submits that the order of the committee is liable to be set aside for the reason that it is not a speaking order. The petitioner submits that in the complete order of which 4½ pages were dedicated only to the pleadings and for examining the documents placed by the complainant and it has dedicated 5 th page, for giving its finding. None of the documents placed by the petitioner and evidence examined and evaluated by the committee. While, cancelling the caste status of the person by the committee it is a quasi judicial proceeding. It has given fullest

4 4 opportunity to the affected person. Document made by both the parties should have been examined and the evidence of the respective parties also to be examined. The document placed by the complainant only have been considered by the DCRE, no efforts have been made by the committee either to go into the matter or to examine the genuinity of the certificate. By relying on the additional documents marked as Annexure-N dated issued by the Thasildar, Virajpete has been produced and submitted that the forefathers of the petitioner were migrated from Coorg to Mysore and they were not resided in Madikeri. As per document Annexure-P letter dated , issued by the Panchayat Development Officer, Chennaiahna Kote, Amathi Hobli, Virjpet Taluk, in which it is stated that about 90 years back, the forefathers of the petitioner were stayed in Chennangi and for their livelihood they have migrated to Mysore and they belonged to Kadu Kuruba. The document Annexure-Q dated , is produced, it is a mahazar drawn by the Panchayat Development Officer in which statements of J.A Annaiah, G.K.Muttamma, J.J.Putta,

5 5 J.B.Deva and Dasa have been recorded to the effect that petitioner s forefathers were belong to Kadukuruba and they have migrated to Mysore. With this strength of documents, learned senior counsel submits that this aspect has not been considered by the committee. About Locus standi of 5 th respondent in making the complaint, learned counsel referred the judgment of Hon ble Supreme Court in 2013 (4) SCC 478 between AYAAUBKHAN NOORKHAN PATHAN Vs. STATE OF MAHARASHTRA AND OTHERS and submitted that unless legal injury is grievous or locus standi to make the complaint more particularly in challenging the caste status of the person, it is true that the petitioner claims himself as Hindu and on the said basis, he contested for the election and later it is realized that his forefathers belonged to ST category and consequently, the petitioner also. Hence, he made an attempt to get certificate as Kadu Kuruba. By referring Annexure-A, the caste certificate issued in the name of the petitioner, it is referred that the person belongs to Kadukuruba which is numbered as 8555/79-80 and a Xerox copy of the same is produced since it was issued in the year

6 that it means prior to The State Verification Committee has no jurisdiction to go into it. Merely, the petitioner s brothers belong to different caste; it does not mean that this petitioner do not belongs to Kadu kuruba, all depends upon the materials placed by the petitioner. Hence, learned counsel submitted that the State Verification Committee has not passed a speaking order. Hence, it is liable to be set aside and since there is a certificate existing in the name of the petitioner as Kadu Kuruba, this petition is to be allowed permitting the petitioner to avail benefits meant for those people. 3. Learned senior counsel for the 5 th respondent submits to confirm the order passed by the committee. It is submitted that throughout the life of the petitioner he has claimed himself as Kuruba and belongs to BCA and on the very status, he contested for the election. In order to substantiate the stand, the respondents by filing statement of objections produced number of documents namely residential certificate issued by the office of the District Magistrate as per Annexure-R1, in which it is mentioned that the petitioner is a

7 7 resident of Mysore and a school certificate issued by the Hardwick High School, dated , there it was mentioned that the petitioner belongs to the caste of Halu kuruba and another school certificate of Hardwick High School, Mysore in which at Column No.9 it was mentioned as Hindu Halu Kuruba, the certificate issued by D.Banumaiah Commerce and Arts College and another certificate issued by Sharada Vilas Law college, in all these documents the caste of the petitioner was mentioned as Hindu and not Kadukuruba. The application made by the petitioner to Marimallappa s Institution, Mysore, he himself has written as Halukuruba. When such being the case, the claim of the petitioner is after thought, it is not on the basis of the material. Statements of the brothers of the petitioner were recorded. In their statement they averred that they do not belong to Kadu kuruba. Under these circumstances, the order of the State Verification Committee is legal, valid, sound and proper. Hence, the same is required to be confirmed. 4. Learned counsel for respondent No.1 and 2 submits to justify the order of the State Verification

8 8 Committee. As many as 11 documents have been referred including the statements of brothers of the petitioner namely M.K.Mohan and M.K.Gururaj and in all these documents and statements, the caste of the petitioner was referred as Kuruba only. Under these circumstances, the order is based on materials and evidence. Hence, petition is to be rejected. 5. I have heard learned counsel for the petitioner, 5 th respondent and Spl. Government advocate. 6. As about Madhuri Patil s case, reported in (1994) 6 SCC 241, the committees have been constituted namely District Income and Caste Verification committee and from the year 2006 State Verification committee has been constituted. In the case where the status of the caste is disputed, then it is to be rectified and examined by the committee constituted for it. The members of the committee have to discharge their duties having all the quasi judicial and statutory provision and also under the Constitution of India. It requires lot of care while dealing with this matter. Out of the five pages order, the major portion of the order is

9 9 dedicated only to the pleadings and the case of the complainant and it has not given any scope for examining witnesses and verifying documents and verifying the over all circumstances. 7. As per the submissions made by the learned Special Government Advocate by relying ILR 2012 KAR 238, it is submitted that the State Caste Verification Committee has been formed. Now the matter is to be remanded to District Caste Verification Committee. In view of the judgment referred above, the matter is to be remanded to the District Caste and income Verification Committee. Further, the committee is to be directed to examine the respective case of the petitioner and pass appropriate order. 8. The committee has to verify not only on the basis of the existing document but also on the basis of the materials and evidence and to give a finding as to whether the petitioner belongs to Kadu kuruba or not. The existing documents are not the deciding factor. The Kadu kuruba who hails from Coorg are to be treated as ST as per 1950

10 10 Government of India order. The applicability of the same is to be looked into. In the decision reported in 2012 (1) SCC 113 between ANAND Vs. COMMITTEE FOR SCRUTINY & VERIFICATION OF TRIBE CLAIMS & ORS., in which procedures have been mentioned as to how the committee should proceed with. That, these guidelines are directly applicable as far as possible. For the convenience of the committee, the procedures are extracted as below: It is manifest from the afore-extracted paragraph that the genuineness of a caste claim has to be considered not only a thorough examination of the documents submitted in support of the claim but also on the affinity test, which would include the anthropological and ethnological traits etc., of the applicant. However, it is neither feasible nor desirable to lay down an absolute rule, which could be applied mechanically to examine a caste claim. Nevertheless, we feel that the following broad parameters could be kept in view while dealing with a caste claim: (i) While dealing with documentary evidence, greater reliance may be placed on pre-independence documents because

11 11 they furnish a higher degree of probative value to the declaration of status of a caste, as compared to post-independence documents. In case the applicant is the first generation ever to attend school, the availability of any documentary evidence becomes difficult, but that ipso facto does not call for the rejection of his claim. In fact the mere fact that he is the first generation ever to attend school, some benefit of doubt in favour of the applicant may be given. Needless to add that in the event of a doubt on the credibility of a document, its veracity has to be tested on the basis of oral evidence, for which an opportunity has to be afforded to the applicant; (ii) While applying the affinity test, which focuses on the ethnological connections with the scheduled tribe, a cautious approach has to be adopted. A few decades ago, when the tribes were somewhat immune to the cultural development happening around them, the affinity test could serve as a determinative factor. However, with the

12 12 migrations, modernization and contact with other communities, these communities tend to develop and adopt new traits which may not essentially match with the traditional characteristics of the tribe. Hence, affinity test may not be regarded as a litmus test for establishing the link of the applicant with a Scheduled Tribe. Nevertheless, the claim by an applicant that he is a part of a scheduled tribe and is entitled to the benefit extended to that tribe, cannot per se be disregarded on the ground that his present traits do no match his tribes peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. Thus, the affinity test may be sued to corroborate the documentary evidence and should not be the sole criteria to reject a claim. 9. Annexure-J to the petition - the caste certificate issued in favour of the petitioner as Kadukuruba was of the year , issued by the Thasildar, Mysore it is to be

13 13 examined by Thasildar, who issued the very certificate. If it is the case of the Thasildar, after verifying the same, suitable report should be made to the District Caste and Income Verification Committee. For the purpose of verifying the status, investigation has to be made by the committee by investigating and recording the evidence. With these observations the writ petition is disposed of. 10. All the contentions are kept open for the respective parties participated in these proceedings. The committee is directed to pass an order in accordance with law and dispose of the matter within a period of six months from the date of receipt of copy of the order. Sd/- JUDGE HJ*