IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal 8/2010 Subhash Chandra … Appellant Versus State of Uttarakhand & Others. … Respondents Mr. Devesh Bishnoi, Advocate, for the appellant. Mr. K.P. Upadhyay, Addl. CSC, for the State/respondents. Date of decision : 20.6.2011 Coram: Hon’ble Barin Ghosh, C.J. Hon’ble Servesh Kumar Gupta, J. BARIN GHOSH, C.J. (ORAL) Appellant applied for obtaining a certificate acknowledging that he belongs to ‘Khatik’ community. This application was rejected by an order dated 17.10.2007. In a writ petition, the appellant challenged the said order by contending that the order dated 17.10.2007 was passed without giving an opportunity of hearing to him. This Court allowed the writ petition and quashed the order dated 17.10.2007 and directed the Tehsildar, Kashipur to decide the said application of the appellant afresh, after giving a reasonable opportunity of hearing to the appellant. An opportunity of hearing was given to the appellant, whereupon Tehsildar, Kashipur passed an order dated 20.6.2008 and thereby agreed to issue a certificate in favour of the appellant showing that be belongs to ‘Gadaria’ community. Whereas ‘Khatik’ community belongs to Scheduled Caste community, ‘Gadaria’ community belongs to Other Backward Class community. Aggrieved by the said order dated 20.6.2008, appellant filed a writ petition, which has been dismissed by the judgment and order under appeal. 2 2. Tehsildar, Kashipur, in his order dated 20.6.2008, recorded that the grandfather of the appellant was shown to be belong to ‘Gadaria’ community in a Khatauni of 1356 Fasli. While dealing with the writ petition, the learned Single Judge, according to us, correctly held that the said Khatauni could not be treated as clinching evidence. The same was one of the evidences, which could be taken note of, inasmuch as the Khatauni does not contain any acknowledgment by the grandfather of the appellant. In other words, there is nothing to show from the Khatauni itself that the grandfather of the appellant accepted all the contents thereof. 3. Before the learned Single Judge, a contention was raised that ‘Pal Kshatriya’ is equivalent to ‘Khatik’ and that in the Khatauni, an endorsement was made to the effect that ‘Pal Kshatriya’ should have been inserted in the Khatauni. We think that the learned Single Judge correctly held that a writ court cannot go into the question whether ‘Pal Kshatriya’ can be treated as ‘Khatik’, or members belonging to ‘Pal Kshatriya’ community, are or are not, members of ‘Khatik’ community. The learned Single Judge felt that whereas, on the one side, evidence from the Khatauni was that the grandfather of the appellant was a ‘Gadaria’, and on the other hand, there were evidences emanating from School Leaving Certificates and municipal licenses suggesting that the father and the sister of the appellant belong to ‘Khatik’ community. The learned Judge, weighing these evidences and finding that there was application of mind, concluded that the Tehsildar, Kashipur correctly passed the 3 impugned order, which requires no interference. While doing so, the learned Single Judge failed to take into account the fact that the Tehsildar, Kashipur himself, as far back as on 10.10.1988, certified that the sister of the appellant belongs to ‘Khatik’ community and that she is, accordingly, a member of the Scheduled Caste community. Once the Tehsildar, Kashipur has declared that sister of the appellant belongs to ‘Khatik’ community, it was improper and unjust on the part of the selfsame Tehsildar to declare that the appellant belongs to ‘Gadaria’ community. 4. We, accordingly, set aside the judgment and order under appeal and allow the writ petition by quashing the order of the Tehsildar, Kashipur dated 20.6.2008 and direct the said Tehsildar to do the needful and decide the application of the appellant, which is still pending, in accordance with the law. It is hoped and expected, as is the requirement, Tehsildar, Kashipur, either himself or through his subordinates, make appropriate enquiry from the other relatives of the appellant, descending from the grandfather of the appellant, to ascertain whether they have been awarded certificates acknowledging that they belong to ‘Khatik’ community. It is also expected that appropriate local enquiry should also be made to find out whether the local people regarded and still regard the appellant and his family as belonging to ‘Khatik’ community. 5. The above exercise be completed as quickly as possible, but not later than four months from the date of service of a copy of this order upon the Tehsildar concerned. It goes without saying that before the decision is taken, appropriate hearing should be 4 given to the appellant in order to enable the appellant to clear any doubt that may crop up in the mind of the Tehsildar. (Servesh Kumar Gupta, J.) (Barin Ghosh, C.J.) 20.6.2011 20.6.2011 Prabodh