*THE HON’BLE SRI JUSTICE K.G. SHANKAR +C.R.P.No.3063 of 2007 % 21.01.2011 Between: #U. Sanyasi Rao … Petitioner Vs. $The Govt. A.P., rep.by its Secretary, Social Welfare, Secretariat, Hyderabad and 4 others … Respondents ! Counsel for the petitioner: Sri Thoom Srinivas Counsel for the Respondents: G.P. for Social Welfare <Gist: >Head Note: ? Cases referred: 1. 2004 (2) ALT 760 2. 2005 (2) ALT 773 THE HON’BLE SRI JUSTICE K.G. SHANKAR W.P.No.17446 of 2000 Date: .01.2011 Between: U. Sanyasi Rao … Petitioner AND The Govt. of A.P., rep.by its Secretary, Social Welfare, Secretariat, Hyderabad, and 4 others … Respondents THE HON’BLE SRI JUSTICE K.G. SHANKAR W.P.No.17446 of 2000 ORDER: Whether notice under Form-V of the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Issue of Community, Nativity and Date of Birth Certificates Rules, 1997 (‘the Rules’, for short) in accordance with Rule 8 of the Rules is not sufficient satisfaction of hearing the aggrieved party as envisaged by Section 5 of the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes Regulation of Issue of Community Certificates Act, 1993 (‘the Act’, for short) is the main question in this writ petition. The writ petitioner laid the Writ for issuance of a Writ of Certiorari to quash the orders passed by the District Collector, Vizianagaram, cancelling the caste certificate already issued in favour of writ petitioner and also to declare Rule 9 of the Rules and Section 6 of the Act as ultravires the Constitution. However, Sri D. Vivekanand Patnaik, learned counsel representing the writ petitioner before me would appear to have given up the question relating to the viresness of the provisions of the Act and the provisions of the Rules. He attacked the case on the factual side and also contended that reasonable opportunity was not accorded to the writ petitioner to represent his case. 2. The case of the petitioner is: The writ petitioner belongs to ‘nayaka’ community. Nayaka community is a scheduled tribe. The parents, paternal grand parents and forefathers of the paternal and maternal side of the writ petitioner belonged to nayaka community. They belonged to villages around Andra Mandal, which are presently situate in Mentada Mandal, Visakhapatnam District. The forefathers of the petitioner have been following the traditions and custom of nayaka tribe. As the scheduled tribes were provided with statutory benefits, the forefathers have been enjoying the same as members of the scheduled tribe. 3. The parents of the petitioner migrated to Vizianagaram for their livelihood. They settled in the Nayaka Street at Vizianagaram. The petitioner was born on 01.07.1958 at Vizianagaram. His school record described the petitioner as belonging to Nayaka tribe. On 16.07.1986, the Mandal Revenue Officer, Vizianagaram issued a caste certificate in favour of the petitioner that the petitioner belongs to nayaka tribe and that he is a member of the scheduled tribe. These are the basic facts on the basis of which the writ petitioner made his claim. 4. It would appear that in 1985, the petitioner joined as a causal worker with the Indian Oil Corporation Limited (IOCL) at Vizianagaram. It also would appear that in 1990, the petitioner was appointed as a Junior Operator in IOCL. The Deputy General Manager (HR) and the Deputy Manager (Finance) of the IOCL, who are the respondents 4 and 5, would appear to have written to the District Collector, Vizianagaram to verify the community certificate of the writ petitioner produced by him. The respondents 4 and 5 addressed the letter to the District Collector on 05.05.1993. It is the case of the learned counsel for the petitioner that this request to the District Collector by the respondents 4 and 5 was not on any suspicion regarding the community certificate of the petitioner but was an enquiry sought for in the routine course. 5. The District Collector referred the matter to the Mandal Revenue Officer, Vizianagaram. The Mandal Revenue Officer, Vizianagaram reported to the District Collector that an enquiry was made with Smt. Undru Annapoornamma, who is a sister-in-law of the father of the writ petitioner, that the family of the father of the petitioner has been residing in Boya Street, Vizianagaram, that by occupation and other social customs, the families residing in Boya Street, Vizianagaram belong to ‘Boya’ Caste and that the caste certificate dated 16.07.1986 in favour of the petitioner, therefore, deserves to be cancelled. It may be noticed that boya community is a community within Backward Class Group-A in the State of Andhra Pradesh. 6. The District Collector also requested the Revenue Divisional Officer, Vizianagaram, to enquire about the community of the petitioner and report. The Revenue Divisional Officer, Vizianagaram reported to the District Collector that he enquired one Kollapu Simhachalam about the details and that Kollapu Simhachalam informed the Revenue Divisional Officer, Vizianagaram that all the residents of Boya Street belong to the boya community. Kollapu Simhachalam further stated that the petitioner obtained the certificate from the Mandal Revenue Officer on the strength of his residence in Boya Street, which was known as Nayaka Street, before it was named as Boya Street. The Revenue Divisional Officer, Vizianagaram, therefore, opined that the petitioner belonged to boya caste and that he did not belong to nayaka community. 7. On the strength of the report of the Mandal Revenue Officer and the Revenue Divisional Officer, Vizianagaram, Form-V notice was issued upon the petitioner to appear before the Scrutiny Committee together with documentary evidence in support of his claim that he belongs to nayaka community. The petitioner accordingly appeared before the Scrutiny Committee. After interacting and examining the petitioner, the Scrutiny Committee was satisfied that the petitioner did not belong to nayaka tribe, that he belonged to boya community and issued its opinion accordingly. On the basis of the finding of the District Level Scrutiny Committee, the District Collector passed the impugned order on 28.08.2000 cancelling the community certificate dated 16.07.1986 issued in favour of the petitioner showing that he belonged to naika community. The petitioner would appear to have informed the decision of the District Collector, Vizianagaram. The District Collector also informed respondents 4 and 5. It would appear that respondent No.5 wrote a letter to the petitioner on 03.09.2000 bringing the attention of the petitioner to the impugned orders and directed the petitioner to acknowledge the receipt of the impugned orders. Aggrieved by the same, the petitioner laid the present writ petition. 8. The notice was served by the fifth respondent upon the petitioner on 13.09.2000. The writ petition was filed on 18.09.2000. Apart from challenging the order of the District Collector, as already pointed out, the petitioner challenged the constitutional validity of some of the provisions of the Act and some of the provisions of the Rules. I would venture to repeat that the learned counsel for the petitioner, however, did not argue about the constitutional validity of the Act and Rules. He confined his claim to the finding of the District Collector and pointed out that the order of the District Collector is bad. He further contended that Section 5 of the Act envisages that the District Collector shall accord an opportunity to the petitioner to explain his case before he passes orders cancelling the community certificate issued earlier and that the District Collector has not accorded opportunity to the petitioner accordingly. Inter alia, the learned counsel for the petitioner also contended that the community certificate issued by the competent authority prior to the commencement of the Rules is a valid certificate, which cannot be questioned on the strength of Rule 21 of the Rules. The learned Government Pleader on the other hand placed his claim on the technicalities that Section 7 (2) of the Act envisages an alternative relief and that the petitioner, therefore, is not entitled to invoke the special original jurisdiction of the Court. 9. Section 5 of the Act adumbrates that the District Collector may cancel a community certificate issued prior to the commencement of the Act which was obtained on false representation. Rule 9 of the Rules referred to the enquiry into fraudulent claims and the cancellation of the community certificates. Rule 2 (b) of the Rules makes it clear that the Rules are framed with reference to the Act. Thus, the Act and Rules envisaged procedure for the cancellation of the community certificate which was issued prior to the commencement of the Act or the Rules. The Rule 21 is a saving provision only. It merely envisages that a person, who has already obtained a community certificate before the commencement of the Rules need not obtain community certificate afresh by no stretch of imagination. Thus, Rule 21 holds that no enquiry can be conducted in respect of community certificate issued prior to the commencement of the Rules. I, therefore, do not agree with the contention of the learned counsel for the petitioner that in view of Rule 21, the very proceedings in respect of the community of the petitioner shall be considered to be bad. Section 5 of the Act controls Rule 21 of the Rules. The merits of the case of the petitioner, therefore, deserve to be examined. 10. The forefathers of the petitioner were residents of tribal areas in the erstwhile Andra Mnadal and the present Pentada Mandal. It is the case of the petitioner that the parents of the petitioner migrated to Vizianagaram even before the birth of the petitioner and started residing in Nayaka Street at Vizianagaram. As the petitioner was born in and has been a resident of Nayaka Street, Vizianagaram, it would appear that the revenue authorities were carried away with the impression that the petitioner is a nayaka by community and would appear to have issued the community certificate under the old Act, 1986. As misfortune would have it, the Nayaka Street was renamed as Boya Street. Now there is no assumption for the revenue authorities that the petitioner is a nayaka. They went by a new circumstance and concluded that the petitioner is a boya by community as he has been residing in the Boya Street. 11. Both the views of the revenue authorities are not acceptable. The community of a one cannot be decided on the strength of the name of the street in which one has been residing. There shall be an independent enquiry before the community of an individual is decided. I, therefore, readily hold that the finding of the Revenue Divisional Officer, Vizianagaram that the petitioner is a boya by community by virtue of the fact that he has been residing in Boya Street cannot be accepted. The community of the petitioner shall be determined on independent evidence. 12. However, the petitioner did not dispute the report of the Mandal Revenue Officer and the Revenue Divisional Officer. The Mandal Revenue Officer claimed that he examined one Undru Annapoornamma, a close relative of the writ petitioner through his father. Smt. Annapoornamma would appear to have informed the Mandal Revenue Officer that the petitioner’s family has migrated more than 30 years prior to 2000 to Vizianagaram from Andra and has been residing in the Boya Street. The Revenue Divisional Officer examined Kollapu Simhachalam. Kollapu Simhachalam informed the Revenue Divisional Officer that the family of the petitioner migrated from Andra about 70 years prior to 2000 and that the leaders of various families obtained caste certificate as belonging to nayakas or boyas, as the case may be, on the strength of their residence in Naika Street or Boya Street, as the case may be. The two persons, viz., Undru Annapoornamma, a close relative of the petitioner and Kollapu Simhachalam did not state that the petitioner belonged to Naika community. Therefore, the petitioner cannot claim that he belongs to Nayaka Tribe on the strength of the representation of Annapoornamma or Simhachalam. He has to establish the same through independent means. 13. It comes back to Rule 21 of the Rules. The claim of the learned counsel for the petitioner is that as the petitioner obtained caste certificate by one method or the other and that the caste certificate was issued prior to the Act and the Rules, it is for the District Collector to establish that the petitioner does not belong to Naika tribe, lest the caste certificate shall not be disturbed. The District Collector, through the impugned order recorded the admissions of the petitioner before the District Level Scrutiny Committee. 14. The District Level Scrutiny Committee directed the petitioner to appear before the Committee. Before the scrutiny Committee, the petitioner admitted that his wife Smt. Ramba Devi belongs to Naidu committee and that she is neither a nayaka nor a boya by community. Indeed, the community of an individual cannot be judged from the community of the spouse. The petitioner could have entered into an inter caste marriage. Therefore, it is primarily irrelevant whether the wife of the petitioner belongs to the community of the petitioner or any other community. 15. The petitioner also stated before the Scrutiny Committee that his native place is Andra, that he has been residing in Boya Street, Vizianagaram and that he has no relatives either in nayaka community or in boya community at Vizianagaram. 16. Added to it, admittedly the petitioner did not know the names of other individuals belonging to nayaka community nor did he know the social customs and traditions of either nayaka or boya community. Although he claimed that his mother’s native place was Vizianagaram, he admitted before the Scrutiny Committee that he never heard the name of ‘sugali’ tribe, which is said to be a synonym of nayaka tribe. He claimed that he worships Godess Ellamma and Lord Venkateshwara and that he did not know the deity of nayaka tribe. He also admitted before the Scrutiny Committee that he did not know the relationship between nayaka tribe and kondadora tribe. He finally admitted before the Scrutiny Committee that he did not know his community. On the strength of this representation of the petitioner before the Scrutiny Committee, the Scrutiny Committee reported to the District Collector that the petitioner did not belong to nayaka community. On the strength of the report of the District Level Scrutiny Committee, the District Collector cancelled the community certificate issued in 1996. 17. The learned counsel for the petitioner contended that reasonable opportunity was not accorded to him to represent his case. In support of his contention, he placed reliance on K. Adinarayana Reddy v. Govt. of A.P.[1]. In that case, the District Collector directed the Revenue Divisional Officer to verify and report whether the petitioner therein was member of a schedule tribe. The Revenue Divisional Officer reported to the District Collector that the writ petitioner therein was not a member of the scheduled tribe. A show cause notice was issued thereafter to the writ petitioner therein and after considering the explanation of the petitioner, the District Collector cancelled the community certificate issued earlier. The High Court held that the District Collector should have issued a show cause notice to the petitioner on the basis of the report submitted by the Revenue Divisional Officer. The High Court consequently cancelled the proceedings of the District Collector canceling the community certificate issued earlier. The District Collector was directed by the Court to issue a show cause notice to the petitioner based on the enquiry report submitted by the Revenue Divisional Officer and pass appropriate order. 18. In Duda Ramesh v. State of A.P.[2], the writ petitioner questioned the order of the District Collector in cancelling the community certificate. The petitioner claimed that he belonged to a Valmiki tribe, which is a scheduled tribe. On the strength of the report of the Mandal Revenue Officer and the Sub-Collector and the statements recorded by them that the petitioner belongs to Adi-Andhra Christian community, which is Backward Class Group-C community, the District Collector cancelled the community certificate. The enquiry reports and the statement recorded during the enquiry by the Mandal Revenue Officer and the Sub-Collector were not furnished to the writ petitioner. Reasonable opportunity was not accorded to him to establish their claim. The Court held that merely providing with the gist of the enquiry report in the show cause notice is not tantamount to compliance of the requirement of fair hearing and reasonable opportunity and that it would amount to violation of principles of natural justice. 19. It is the case of the learned counsel for the petitioner on the strength of these two decisions that the petitioner has not been accorded reasonable opportunity and that the orders of the District Collector are in violation of principles of natural justice. 20. Section 5 (1) of the Act envisages the cancellation of the certificate “…………….. after giving the person concerned an opportunity of making a representation ………………..”. Rule 8 (6) of the Rules ordains that the Scrutiny Committee shall give reasonable opportunity to the applicant to produce evidence in support of his claim. It is the contention of the learned counsel for the petitioner that such an opportunity was not accorded to him. 21. It may be noticed that the impugned order shows that the District Level Scrutiny Committee directed the petitioner to appear before them. After the petitioner appeared before them and after the District Level Scrutiny Committee reached the conclusion that the petitioner did not belong to nayaka community, the show cause notice was not issued to the petitioner to offer explanation on the opinion of the District Level Scrutiny Committee. Consequently, I wholly agree with the claim of the petitioner that the petitioner was not accorded reasonable opportunity to put forth his case. 22. The learned Government Pleader for Social Welfare submitted that the District Level Scrutiny Committee called the petitioner and that the petitioner appeared before the District Level Scrutiny Committee. He also pointed out that the impugned order shows what transpired before the Scrutiny Committee when the petitioner was examined and that the petitioner was thus accorded an opportunity to put forth his claim. His contention is that the impugned order was not passed without hearing the petitioner and that the order does not offend the principles of natural justice. I am afraid that the contention of the learned Government Pleader cannot be accepted. The petitioner, indeed, was called by the District Level Scrutiny Committee. This is in tune with Rule 8 (6) of the Rules. Section 5 of the Act, however, is to the effect that the District Collector can cancel the community certificate issued in favour of an individual after according an opportunity to the petitioner. The District Collector unfortunately bye-passed the procedure before he passed the impugned order. This is exactly what happened in Duda Ramesh’s case (supra). P.S. Narayana, J held in that case that the supply of gist of the enquiry report in the show cause notice is not sufficient compliance of reasonable opportunity. In the present case, the District Collector has not issued any show cause notice to the petitioner to explain why his caste certificate shall not be cancelled. The District Level Scrutiny Committee also did not issue any show cause notice to the petitioner before it reported the matter to the District Collector. It merely directed the petitioner to appear before them and the petitioner accordingly appeared before them. Thereafter, they reported the matter to the District Collector who did not issue any show cause notice to the petitioner. Thus, the principles of natural justice indeed are violated in this case. The petitioner deserves to be accorded an opportunity by way of show cause notice from the District Collector. 23. However, Section 7 (2) of the Act contemplates that the petitioner aggrieved by the orders of the District Collector shall be entitled to prefer an appeal to the Government. The question is whether the petitioner is not entitled to move the Court by way of a Writ in the light of Section 7 (2) of the Act. It may be recalled that the petitioner sought not only for the setting aside the impugned order, he also challenged the provisions of the Act and the Rules as ultravires. Obviously neither the District Collector nor the Government has power to determine the viresness of the Act and the Rules. The petitioner is entitled to invoke the special original jurisdiction under Article 226 of the Constitution of India. That the petitioner ultimately gave up the plea regarding viresness of the provisions of the Act and the Rules does not matter. When the Writ was filed, the Government had no jurisdiction to entertain the same. I, therefore, consider that this writ petition does not offend Section 7 (c) of the Act and is maintainable. 24. Where the Writ is not liable to be rejected on technical grounds, the petitioner has established that the principles of natural justice in his case are violated, as reasonable opportunity was not accorded to him by the District Collector before the District Collector passed the impugned order. Consequently, the impugned order is set aside. The District Collector-second respondent shall issue show cause notice to the writ petitioner as envisaged under Section 5 of the Act and after according an opportunity to the petitioner, shall pass appropriate orders regarding the existence certificate of the petitioner. 25. Accordingly, the writ petition is allowed. There shall be no order as to costs. _______________ K.G. SHANKAR, J Date: .01.2011 Isn [1] 2004 (2) ALT 760 [2] 2005 (2) ALT 773