' ^,;/1 ^nQ HIGH COURT OF JUDICATURE AT BILASPUR: CHHATTISGARH (Division Bench) Coram: Hon'ble Shri S.R. Nayak, CJ & Hon'ble Shri V.K. Shrivastava, J WRIT PETITION No.2080 OF 2001 ORDER FQR CQNSIDERATJON Chief Justice HON'BLE SHRI V.K. SHRIVASTAVA, J. ^.fr_-—^.__._ Sd/- V.K. Shrivatava Judge POST FOR PRONOUNCEMENT ~QE THE ORDER : r9 11212006. Sd/- HIGH COURT OF JUDICATURE CHHATTISGARH: BILASPUR (DIVISION BENCH) CORAM : HOIi'BLE SHRI S.R. NAYAK, CJ & HON'BLE SHRI V.K. SHRIVASTAVA, J. WRITPETITION N0.2080 of 2001 Petitioner: Ajit P.K. Jogi S/o Shri K.P.Jogi Aged about 55 years, R/o Civil Lines, Raipur Chhattisgarh. Respondents: VERSUS National Commission for Scheduled Castes & Scheduled Tribes through its Secretar/ 5 Floor, Lok Nayak Bhavan, Khan Marketing, New Delhi. The Chairman National Commission for Scheduied Castes & Scheduled Tribes through its Secretary 5 Floor, Lok Nayak Bhavan, Khan Marketing, New Delhi. The State Govt. of Chhattisgarh Through its Chief Secretary D.K.S. Bhavan. Raipur (Chhattisgarh) The Principal Secretary/Secretary SC. ST. OBC & Minorities Welfare Deptt., Govt. of Chhattisgarh Raipur (Chhattisgarh) The Collector Distt. Bilaspur Bilaspur (Chhattisgarh) Shri Sant Kumar Netam Village Uslapur, P.0. Sikari Distt. Bilaspur (Chhattisgarh). Present: Shri Vivek Tankha & Shri Manindra Shrivastava, Sr. Advocates w:{'n Shri Ashish Shrivastava and Shri Amrito Das learned coursel forthe petitioner. Shri Jog Sin^h learned standing counsel for respondents 1 and2. Shri Ravish Agrawal, learned Advocate General with Shri Sumesh Baaj, learned Govt. Advocate and Shri Ravi Shankar Prasad, learned Sr. Advocate with Smt. Suparna Shrivastava earned counsel for the State/respondents 3, 4 and 5. Shri Rohit Arya learned Sr. Advocate with Shri K.K. Singh learned cour.sel for respondent No.6. Shri H.N. Vyas and Shri Satyendra Sahu learned counsel for the interveners. O R D E (Passed on 15 of December 2006) The following order of the Court was passed by S.R. Nayak, CJ: - This writ petition preferred under Articles 226/227 of the Constitution of India is di ected against the proceedings of the National Commission for Schedued Castes and Scheduled Tribes, the first respondent herein registcred in file No.2/FCS 2/2001-SSW-I and the "findings" contained in the; report dated 16-10-2001. The petitioner has sought for quashing of the impugned proceedings by writ of certiorari and also prayed for a writ of rnandamus to declar'e the findings contained in the report dated 16-10-2i)01 as void and inoperative. In addition, the petitioner has sought for a direction restraining the respondents from conducting any proceedini, or taking any action pursuant to the comp!aint filed by the sixth respondint herein or the impugned findings of the first respondent-Commission. (2) The facts of 'he case leading to filing of this writ petition may be noted in the first instan^e and they, as stated by the petitioner himself, in brief, are as follows: The petitioner beiongs to a Tribal Community known as 'Kawar/Kanwar' which i; notified as Scheduled Tribe under the Constitution Scheduled T.1be Order, 1950. The petitioner's forefathers were resident of a Tribal S-lamlet called Jogi Dongari in village Sarbahara, Tahsil Pendra Road, Distrct Bilaspur which is predominantly inhabited by Tribals. As far back as in the year 1967 a social status/caste certificate was issued in favour of tlie petitioner by the competent officer i.e. Naib Tahsildar, Pendra Road, Bilaspur certifying the petitioner as a member of Kanwar Scheduled tribe. Subsequently, similar certificates have also been issued to the petitioner, from time to time, by competent authorities. The petitioner was twice elected to Rajya Sabha and contested two Parliamentary elections from Raigarh and Shahdol Parliamentary constituencies. hle was sjccessfully elected from 'reserved' constituency of Raigarh. The petitioner successfully contested from Marwahi Vidhan Sabha Constituency in the year 1991 which is a constituency reserved for Scheduled Tribes. In ths past, due to political motivation and out of vendetta, some disgruntled persons falsely and frivolously trying to raise question regarding the pe 'tioner's social status, filed a writ petition in the form of Public Interest Litigation in the High Court of Madhya Pradesh at Bench Indore vide Misc. Petition No.1417 of 1988 which came to be decided by a Division Berch of that Court on 24-07-1989, dismissing the writ petition. Again, a wiit petition being Writ Petition No.1039 of 2001 was filed in the High Cou-i of Madhya Pradesh at Jabalpur and that writ petition was also dismissi;d by learned Single Bench of that Court vide order dated 24-07-2001 :.n merit with exemplary cost of Rupees Ten Thousand. Copies of bot^' judgments are annexed to the writ petition as Annexure-P/1 and Annex.ire-P/2, respectively. (3) When the matter stood thus, the petitioner received a letter N0.2/SCS-2/200-SSW-1 dited 29-08-2001 from the Joint Secretary of the first respondent-Commiss on, referring to an earlier letter dated 26-07- 2001 of the Chairman of the first respondent-Commission, proposing to investigate and enquire in-o the allegations made by the sixth respondent in his complaint made to the first respondent-Commission that the petitioner does not belcng to Scheduled Tribe community but had contested the election to V'idhan Sabha from Tribal Constituency, Mar\n/ahi in the year 2001 and that the petitioner obtained a false Scheduled Tribe Certificate. (4) The petitioner on receipt of the above letter dated 29.08.200( ^ vide his letter dated 11.09.2001 addressed to the Chairman of the first respondent-Commission rofuted the allegations contained in the complaint of the sixth respondent and brought it to the notice to the first respondent- Commission the two orders of the High Court of Madhya Pradesh, referred to above and also drev' attention of the Commission to their own regulation, i.e., paras 6.2 (d) and (e) contained in the Hand Book published by the Commi'ssion and contended that the first respondent- Commission has no jurisciiction or power to enquire into the allegations leveled by the sixth respo -'dent with regard to the caste and social status of an individual like the petitioner and that such a power cannot be culled out from the provisions ofArticle 338 ofthe Constitution of India. (5) The first respondent-Commission without deciding the jurisdictional issue raisec by the petitioner proceeded to conduct the enquiry and investigation behind the back of the petitioner, and quite surprisingly the petitionei received a copy of the report of the first respondent-Commission cated 16.10.2001 in Case No.2/FCS/2001-SS-1 containing 'findings' of th'r- Commission regarding the verification of the community certificate of tlie petitioner. Then, the petitioner also came to know that the first respon.sent-Commission sent its report to respondents 2 to 4 calling upon them t3 conduct verification of the genuineness of the Scheduled Tribe Certificat'i obtained by the petitioner and to initiate urgent necessary action for cancellation of his Scheduled Tribe Certificate and also to take criminal action against him as provided in the law and the rules and directed them to submit a report within thirty days with regard to the action taken. Under the circumstance, this writ petition was presented inthisCourton 22.10.200'. (6) This Court while entertaining the writ petition on 22.10.2001 stayed 'effect and operat'on of the findings contained in the impugned report dated 16.10.2001 until further orders' vide order dated 22.10.2001. The Court by the same crder also directed the respondents not to take any action consequent to the impugned report dated 16-10-2001. Although subsequently the above interim order was sought to be vacated, the Court refused to vacats the interim order and consequently the interim order passed on 22-10-20i)1 has been in operation till now. (7) M/s. Brij Mohan Agrawal, Ajay Chandrakar then Members of the Legislative Assembly and now Ministers and Shiv Ratan Sharma a Member of the Legislative Assembly jointly made I.A. No.5320 of 2001 on 27-11-2001 for permissior to be impleaded as interveners in Writ Pelition No.2080 of 2001. Therea-terwards, Shri Nankiram Kanwar then MLA and now Minister and Dr. Shukrajeet Nayak, MLAfiied I.A. No.5527 of 2001 on 07-12-2001 for permissior to be impleaded as interveners in Writ Petition No.2080 of 2001. I.A. No.5320 of 2001 and I.A. No.5527 of 2001 were listed before the Court cn 31-07-2002 for orders. The Court having considered those interiocutor^' applications directed that the applicants/proposed interveners will be permitted to address the Court on any question of law, whiih may arise for determination in Writ Petition No.2080 of 2001. When -he matter stood thus, I.A. No.585 of 2002 was filed on 31-01-2002 for deleting the name of Dr. Shukrajeet Nayak, intervener No.5 from the array of interveners. That application, as prayed for, was allowed by this Court vide order dated 31-01-2002. M/s. Brij Mohan Agrawal, Ajay Chandrakar, Shiv Ratan Sharma and Nankiram Kanwar remained as interv'eners on record. (8) On 22-11-2003 L.C. Bhadoo, J. having opined that vvhat arises for consideration in the writ petition is interpretation of sub-clauses (a) and (b) of Clause (5) ofArticle 338 ofthe Constitution of India referred the writ petition to a Largi'r Bench. The relevant portion of the reference order dated 22-11-2003 reads as follows: "After hearing iearned counsel for the parties, 1 am of the considered opinion t'iat apart from other points, the main point arises for consideration and determination of this Court is interpretation of sub-ciauses (a) & (b) of Clause 5 of Article 338 of the Constitution of Irdia as to whether the National Commission for Scheduled Csiites & Scheduled Tribes under these constitutional provisiuns is entitled to enquire into the specific individual complaints with regard to the genuineness or otherwise of Caste Certificate issued to the particular individual i.e. the petitioner. So far, th:s point has not been decided by any of the High Court or by tlie Hon'ble Apex Court. Therefore, these provisions of Article ; 38 of the Constitution of India have not been interpreted by any Ccurt in this regard. The issue in' olved is of a great public importance and therefore, 1 am of the considered opinion that this matter requires an authoritative deci»ion on the point by a Larger Bench of this Court. The Registry !S directed to place the matter before Hon'ble the Chief Justice fo' consideration of constitution of a Larger Bench, whether Divis on Bench or Full Bench." ^ Accordingly, the Hon'ble Chief Justice placed this writ petition for hearing beforethe Division Bench. (9) Respondents 1 and 2 opposing the writ petition filed their counter-affidavit dated 30-11-2001 Justifying the impugned proceedings and the report. Respoiidents 3 and 4, namely, the State Govt. of Chhattisgarh and the Principal Secretary/Secretary SC. ST. OBC & Minorities Welfare Deptt., 3ovt. of Chhattisgarh jointly filed reply dated 05- 03-2002 supported by an affidavit sworn to by Shri Arun Kumar Dwivedi, Deputy Secretary, Govt. cf Chhattisgarh, SC/ST, OBC & Ministry Weifare Department as the Officei-in-Charge of the case. The Collector Bilaspur District, the fifth respondent also filed a separate reply dated 18-03-2002. The sixth respondent aiso filed his return dated 31-03-2003. Recently, respondents 3 and 4 have jointly filed an additional return dated 14-03-2006 supported by an affidavit sworn to by one Shri A. Minj, Additional Secretary, Department of Tribal Welfare. The petitioner has filed his rejoinder to the counter-affidavit of respondents 1 and 2. When this writ petition was heard both by the learned Single Bench and later by the Division Bench, respondents 1 and 2 were repeatedly directed to produce the records ofth" proceedings, as could be seen from the order- sheets of the case, but, fcr the reasons best known to respondents 1 and 2 records of the impugn'id proceedings were not produced before the Court for perusal. Consequently, several allegations made by the petitioner with regard to ihe procedure followed by the first respondent- Commission in conducting the enquiry could not be verified and tested with reference to the origir al records. (10) After this writ petition was placed before the Division Bench for hearing, as directed 'oy Hon'ble the Chief Justice, ihe case had undergone number of ad ournments at the request of one or the other parties to the writ petition Ultimately, the writ petition was heard on 15- 11-2006 in part and further arguments were heard on 28-11-2006 and after conclusion of the hearing, judgment was reserved on 28-11-2006. After the writ petition was heard in part on 15-11-2006, it appears, on 27-11-2006, learned counsel for the sixth respondent filed I.A. No.11230 of 2006 which runs to typed 31 pages for a direction to the Central Bureau of Investigation to seize ;he entire records from the State Government pertaining to issuance of alleged caste certificates in the name of the petitioner at different poin's of time and also record of enquiry conducted by the National Commission for Scheduled Castes and Scheduled Tribes and to direct CBI to conduct an enquiry with regard to the issuance of caste certificates to the petitioner at different points of time and use of such caste certificates by him at various places. On behaif of the fifth respondent-Collector, lesrned Govt. Advocate also filed an application being I.A. No.11281 of 2006 on 27-11-2006 for taking affidavit of the fifth respondent on record enclosing certain documents, marked as Annexure- R/1 to Annexure-R/11. There is no need for the Court to refer to or consider the application filed by the fifth and sixth respondents at a very belated stage of hearing, particularly, in the light of the view we take in the instant case. There is no need for this Court to decide the social or caste status .of the petitioner iii the present proceedings nor this Court can undertake adjudication of such issue in a summary proceeding under Article 226 of the Constitution of India. We are referring to the applications filed by the fif.h and sixth respondentjust one day prior to the conclusion of the hearing, Shat too in the Registry, only for the purpose of completing narration ot'facts ofthe case. (11) We heard M/'s. Vivek Tankha and Manindra Shrivastava, learned senior counsel for the petitioner, Shri Jog Singh learned standing counsel for respondents 1 and 2, Shri Ravi Shankar Prasad learned senior counsel with Shri Ravish Agrawal learned Advocate General for respondents 3 to 5, Shri Rohit Arya learned senior counsel for respondent No.6 and Shri H.N. Vyas learned counsel forthe inten/eners. (12) Learned senior counsei for the petitioners would assail the validity of the impugned p'oceedings and the report by contending that (i) the first respondent-Commlssion has no jurisdiction under Article 338(5) of the Constitution of India to entertain the complaint of the sixth respondent and, therefore, the impugred report is ex facie the one withoutjurisdiction; (ii) that the complaint of the sixth respondent ought to have been rejected in limine even otherwise, because, he sought to collaterally impugn the election of the petitioner ;rom Marwahi Vidhan Sabha Constituency and the first respondent-Commission by entertaining the complaint ofthe sixth respondent has usurped the jurisdiction of the Returning Officer and the High Court and other Constitutional authorities tike the Election Commission of India; (iii) that the first respondent-Commission ought to have seen that the con-plaint of the sixth respondent was politically motivated and by filing such complaint, he wanted to unsettle the settled matter with regard to the Kocial and caste status of the petitioner; (iv) that the impugned report cannot be said to be the report of the first respondent-Commission, because, the report is signed only by the Chairman and not by Vice-Chairman and other Members of the Commission; (v) that the Commission ought not to have entertained the complaint of the sixth respondent in view of the judgments (Annexure- P/1) ofthe Madhya Pradesh High Court dated 24-07-1989 in Writ Pe'ation --> 10 No.1417 of 1988 and Ar.nexure-P/2 dated 27-04-2001 in Writ Petition No.1039 of 2001 and (vi) that the impugned report was prepared and the findings are recorded ad'.'erse to the petitioner behind the back of the petitioner in utter violation of the principle of natural justice and fair play in action. It was also contended by the learned counsel for the petitioner that after the judgment of the Supreme Court in Kumari Madhuri Patil and another Vs. Addl. Commissioner, Tribal Development and others' the procedure envisaged in para 13 of the said judgment has to be gone through by the Committee and the first respondent-Commission utterly lacks jurisdiction to entertain the complaint of the sixth respondent. It was also contended by the senior counsel for the petitioner that by no stretch of interpretation and reasoning, the first respondent-Commission could claim to have Jurisdiction to enquire into the caste or tribal status of an individual like the petit.oner under the constitutional scheme and provisions as are contained in Article 338(5) of the Constitution. The learned senior counsel for the petitioner would highlight on limited scope of power of the first respondent-Commission and the applicability of the provisions of the Code of Civil Procedure in investigating or conducting enquiry under sub-clauses (a) and (b) of Clause (5) ofArticle 338. (13) Shri Jog Singh learned standing counsel for respondents 1 and 2 departing from the stand taken by the Commission in the return of respondents 1 and 2, wou'd submit that though the Commission cannot decide caste status of ar. individual like the petitioner, it is open for the Commission to entertain c complaint with regard to the caste status of an individual person and to see whether the caste certificate issued to such individual is legally valid, end if it finds that the cast certificate issued to an 1. (1994)63cc241 3L|i 01 pajje^aj BUIABL) 'qjeBsi^eqqo ^o 9}eis 3i-li -loj |ejsusQ sieooApy peujea) |BMB-i6v qswey UL]S 4l!M 6uo|e ^ pue e siuspuodssj jo^ psjesdde oqw\ issunoo joiuss peujes] pesejd JB>|ueu;- iAey UL|S [^^) •uoipe ui Ae|d JIBJ. pue soflsnf |ejnieu ^o s3|diouud su-, ^o UO!IB|OIA 01 spBLU SEM }jodej psu6ndLui sqi }eqi pies sq iou p|noo 11 sjoisjeqi pue A}iun}joddo eqi jo IIBAB iou pip sq 'soitou Ouinssi Aq IISSLUIU pus^ep 0} jsuoi^sd sqi 01 A^unyoddo ue 8Ae6 UOISSILULUOQ SL|I L)6noqtieu- puaiuoo pinoM 46015 6of uq9 'psiBAiiOLU A||eoi}i|0d si jeuoiiiisd eqi jo iuie]dujoo sq} ieq} Ausp p|noM L]Buig Bof UL|S 'spjoosj sqt sonpojd p|nom UOISSILULUOQ SL]! 'jGUOiiitsd SL|I ^o srfye}s siseo [enioe eqi suiLUjaiop 01 Ajinbue- sqi pnpuoo 0} spesoojd seniLULUOQ Auiinjog si-ll 10 Atuoqine steig psu.souoo sqi usqM ieq} pue lj8UO!i!ied 941 io snysis siseo at]} uodn sounouojd o} uodn p3||eo iou si pnoo siqi 'ssneoeq 'ijnoQ siiii ejo^eq spjoosj s-ji sonpojd 01 UOISSIIULUOO SL|l JOJ p3SU OU Sl sjeqi 'jsuoiiiied sqi ^o snieis siseo sqi A|]eui^ peppep iou seq UOISSILULUOO 9i|t aouis ^eL|i pL.no.lB 8L|i uo ynoQ 34} Aq peonpojd sq 0} psioejip spjoosj }ueA3|9j yi ucipnpojd-uou A^iisnf p|noM q6u)s Bof uqg 'V. sjo^oq pie| s|BU8ieuj si)} p ^qBii siji ui UOISSIIULUOQ sqt ^o uoipe^siies soe; eu/ud uo spBiu sje suoiiBAjasqo esoqi '}nq lj3uoii!isd 941 ^o snieis siseo/ieioos sqi 01 pjeSs-i qiiM qons se sSuipuii lou eje ijodej peuSndLui sqi ui UOISSILULUOQ si^ Aq epeuj suoiiBAjasqo IBJ3ASS IBL|I ^iLuqns pinoM 46013 Bop uqs 'Ajinbue AJBSSSOSU Buip|oq jsye lenpiAipui qons io sr\}e\s leioos pue sites |enpe sqt uo sppap pue Ajinbue ue pnpuoo 0} ( e-idng) sjsqio pue }uoiudo|8Aea |6qui 'jeuoissiuiiuoQ "ippv "SA Ja^ioue pue we^ unqpeuv ueiun» ^o sseo eqi ui lueiuBpnf SL|I j.o £[. ejed ui paBesiAua SSUILULUOO aqi jo ssnuoqine sieis SMI ps-i!P UBO UOISSIUJUJOQ eqi 'P!]e/, A|ie63| iou si lenpiMpui II 12 provisions of Articles 15(4). 16(4), 16(4A), 16(4B), 330, 332, 341 and 342 and other relevant Articles of the Constitution, would contend that the protective discrimination provided in the Constitution should really reach the really backward segments of the society like Scheduled Castes, Scheduled Tribes and other backward classes, and a person like the petitioner who does not belong to the Scheduled Tribe cannot be allowed to claim the status of a Sr.heduled Tribe and enjoy the benefits conferred by the Constitution on the Scheduled Tribes. Shri Ravi Shankar Prasad would submit that the Commission for Scheduled Castes and the Commission for Scheduled Tribes constituted underArticle 338 and Article 338-A of the Constitution of India are charged with a constitutional duty to see that the benefits provided for the Scheduled Castes and Scheduled Tribes should reach onlv those belonging to Scheduled Castes and Scheduled Tribes, as tne case may be, and those benefits and advantages should not be knocked away by unscrupulous persons not belonging to those groups. Shri Ravi Shankar Prasad would contend that the Commission in discharging the above onerous duty should be allowed to have all incidental and residuary powers to decide even the caste or social status of an individual like the petitioner and if such a power is not conceded to the Com.nission, the object behind creating these Commissions would be 'rustrated. Shri Ravi Shankar Prasad would submit that while interpreting the constitutional provisions a different yardstick/principle has to be applied and the rules of interpretation of ordinary statute cannot hiindly be followed. In support of the above submission, Shri Ravi Shankar Prasad would cite the judgments of the Supreme Court in State cf Karnataka Vs. Union of India and another , 2. AIR1979SC68 13 IVI/s. Goodyer India Ltd. Vs. State of Haryana and others and Gujrat Assembly Election Matter . Shri Ravi Shankar Prasad would maintain that the Commission has full-fledged power to decide each and every issue arising out of caste or social status of any person and, therefore, the findings recorded by the Commission that the petitioner does not belong to Scheduled Tribe could not be condemned as the one without jurisdiction. Alternatively, Shri Ravi Shankar Prasad would contend that even assuming that the Commission lacks the jurisdiction to decide the caste status of an individual like the petitioner in exercise of its power under Article 338(5) of the Constitution itself, even then, the power of the Commission to refer the natter to the concerned State authorities or the Committee referred to in para 13 of the judgment in the case of Kumari iVIadhuri Patil and snother Vs. Addl. Commissioner, Tribal Development and othe.'s (Supra ) to find out the actual caste of the petitioner after conducting an enquiry could not be doubted. Meeting the contention of the petitioner that the impugned findings are recorded without giving him &ny opportunity and without disclosing the materials collected behind his back, Shri Ravi Shankar Prasad would submit that though an opportunity was given by the Commission by issuing a notice to the pf-titioner, he did not avail of the opportunity and on the other hand, he raised untenable ground of want ofjurisdiction and did not participate in the snquiry and therefore, now, it should not lie m his mouth to contend that the impugned report was made in violation of the princip'es of natural justice and fair play in action. Shri Ravi Shankar Pras.id would contend that though before this Court voluminous materials ar; placed by the respondents to show that the 3. AIR 1990 SC 781 4. (2002) 8 SCC 237 14 petitioner does not belong to Scheduled Tribe, the petitioner has failed to produce any rebuttal evidence to prove his case that he actually belongs to Scheduled Tribe. Shri Ravi Shankar Prasad by citing the judgment of the Apex Court in Director of Tribal Welfare, Govt. of A.P. Vs. Laveti Giri and another would submit that it is the burden of the petitioner to prove his social status and that he has utterly failed to discharge that burden before this Court and therefore the writ petition is liable to be dismissed in limine. Shn Ravi Shankar Prasad would also contend that simply because the petitioner has been claiming the social status of a Scheduled Tribe for a iong period, that is to say, from the year 1967 and onwards and contested the election on earlier occasions on the basis that he belongs to Scheauled Tribe, that fact itself would not operate as an estoppel for the respondents authorities or the Commission now to test the social status claimed by the petitioner and in that regard he would cite the judgment of the Supreme Court in State of T.N. and others Vs. A. Guruswamy . (15) The arguments advanced by Shri Rohit Arya learned senior counsel for the sixth respondent are also on the same lines as advanced by Shri Ravi Shankar Prasad. In addition, Shri Rohit Arya would hightight that all