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HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (C) No. 4944 of 2009 PETITIONER : Rajendra Singh (Arora). V E R S U S RESPONDENTS : State of Chhattisgarh & Others. PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon’ble Shri Satish K. Agnihotri, J. --------------------------------------------------------------------------------------------- Present: Shri Kishore Shrivastava, Senior Advocate with Shri Sanjay Tamrakar, Shri Ashish Shirvastava and Shri Anshuman Shrivastava, Advocates for the petitioner. Shri V.V.S.Moorthy, Deputy Advocate General for the State/ respondent No. 1, 2, 4 and 5. Dr. N.K.Shukla, Senior Advocate with Shri Aditya Khare, Advocates for the respondent No. 7 and 8. --------------------------------------------------------------------------------------------- O R D E R (Delivered on 10th day of July, 2013) 1. The petitioner mainly challenges the order dated 23.07.2007 (Annexure P/14) passed by the High Power State Level Caste Scrutiny Committee i.e. respondent No. 3 (for short ‘the Committee’) wherein the petitioner has been found that he does not belong to “Lohar” i.e. Other Backward Class category, and also the subsequent order dated 28.08.2009 (Annexure P/2) wherein on the basis of the order dated 22.09.2008 (Annexure P/1) the petitioner was disqualified for a further period of five years in view of the provisions of section 19(2) of the Chhattisgarh Municipal Corporation Act, 1956 (for short 'the Act, 1956'). 2. The facts, in brief, are that the petitioner, in the year 2000, contested the election as Councillor from Ward No. 22, Municipal 2 Corporation, Bhilai, declaring himself as a member of “Lohar” community that comes within OBC category on the basis of social status certificate dated 10.04.2000 (Annexure P/3). A complaint was made by the respondent No. 7 in respect of the caste of the petitioner. The said complaint was forwarded to the Committee. The Senior Superintendent of Police, Durg, on 07.05.2013 (Annexure P/7) submitted a report to the Committee holding that no conclusion can be arrived at on the basis of the documents. Thereafter, a show cause notice was issued to the petitioner on 27.10.2004 (Annexure P/8). The petitioner submitted his detailed reply (Annexure P/9). On the preliminary objection raised by the petitioner, the order dated 24.01.2005 (Annexure P/10) was passed by the Committee and the Committee declined to entertain the preliminary objection raised by the petitioner in view of the fact that the case in respect of the caste of the petitioner was pending consideration before the Committee. It appears that thereagainst, the petitioner preferred a petition before this Court, being W.P. No. 924/2005 questioning the non-observance of the guidelines laid down by the Supreme Court in Ku. Madhuri Patil & another v. Addl. Commissioner, Tribal Development & Others1 which was disposed of by this Court on 04.01.2007 (Annexure P/11) on the ground that the objection may be raised before the Committee. Thereafter, a representation was made to the Committee by the petitioner on 28.05.2007 (Annexure P/12). The Committee, on receipt of the representation, issued a notice to the petitioner, 1 (1994) 6 SCC 241 3 which was duly replied by the petitioner. The Committee, by order dated 23.07.2007 (Annexure P/14), held that the petitioner failed to establish his case by giving sufficient and cogent reasons as well as the documents that he belongs to “Lohar” community. The Committee further directed the Collector, Durg to initiate proper proceedings, in accordance with law, against the petitioner for filing false caste certificate to contest the election for the post of Councillor, reserved for the OBC. Being aggrieved, the petitioner approached this Court by filing a petition being W.P.(C) No. 5248/2007. This Court, by order dated 22.07.2008 (Annexure P/15), on the request of the Committee, disposed of the matter to provide fresh opportunity of hearing to the petitioner. Thereafter, the impugned order was passed on 22.09.2008 (Annexure P/1). 3. The instant writ petition was disposed of by order dated 28.07.2010 holding that since the period of six months on the basis of provisional caste certificate has come to an end, the matter became infructuous. Against the said order, the respondent No. 7 herein, preferred a Civil Appeal No. 9891-9892 of 2011 (Samay Lal Sahu & Another v. Rajendra Singh Arora & Others) before the Supreme Court. The Supreme Court, by order dated 17.11.2011, allowed the appeal in part and restored the writ petition for hearing on merits. 4. Shri Shrivastava, learned senior counsel appearing Shri Sanjay Tamrakar, Shri Ashish Shirvastava and Shri Anshuman Shrivastava, Advocates for the petitioner would submit that even after repeated observations made by this Court in the earlier two 4 writ petitions, the dictum laid down by the Supreme Court has not been followed by the respondent authorities in its letter and spirit. Affording opportunity to the petitioner to adduce his evidence was a mere formality as the respondent authorities were pre-determined to pass an order against the petitioner. The depositions of the witnesses adduced by the petitioner were never taken into consideration by the respondent authorities. Even the respondent authorities did not care to consider the preliminary objection raised by the petitioner with regard to maintainability of complaint. 5. The respondent No. 2 ought to have issued notice before passing the impugned order dated 26/28.08.2009 (Annexure P/2) as contemplated under section 19(1) of the Act, 1956. 6. Shri V.V.S.Moorthy, Deputy Advocate General for the State/respondent No. 1, 2, 4 & 5 would submit that the petitioner has admitted that in the school register, his caste has been mentioned as “Sikh” not “Lohar”. In some of the documents, it has been mentioned as “Hindu (Sikh)”. It is the burden of the petitioner to prove his case. A complaint was made by the Bhilai Vishwakarma (Jharia Lohar) samaj. The petitioner completely failed to produce any document to establish his case as “Lohar”. Even the witnesses adduced by the petitioner were the interested witnesses and relatives of the petitioner. Thus, their statements could not be relied upon. Shri Moorthy would further submit that the memo dated 01.08.1996, issued by the then State of Madhya Pradesh, which was subsequently adapted by the State of 5 Chhattisgarh, powers of the Committee has been provided and under the said directives, the Committee is competent to entertain a complaint by any person on the allegation of production of forged or false caste certificate. 7. Dr. N.K.Shukla, Senior Advocate with Shri Aditya Khare, Advocates for the respondent No. 7 and 8, in addition to the above, would submit that the Committee, after appreciating the evidences, documents, produced by the respondent authorities as well as the petitioner, has come to a right conclusion that the petitioner has failed to establish his caste as “Lohar”. The Committee, after appreciating the evidences, has given the finding that the Provisional Caste Certificate was not proper. The petitioner has also not submitted any document to establish that he belongs to Lohar community and even the notification issued by the Government of India in this regard also establishes that “Arora” does not come within the Lohar community and it is not a backward class. The Committee has come to a specific finding that the Lohana/Arora caste does not fall within the OBC category. The petitioner was provided ample opportunity to prove his case, but has miserably failed in doing so. In Tribal Welfare, Government of Andhra Pradesh v. Laveti Giri2, the Supreme Court has held that the burden of proof is upon the person claiming the benefit of a caste, which has not been done in this case. Thus, the orders sought to be impugned herein, may not be interfered with. 2 AIR 1995 SC 1506 6 8. It is further submitted that there is no caste system in Sikh religion as observed in Indra Sawhney v. Union of India3. Dr. Shukla also relies on the observations of the Supreme Court in Ku. Madhuri Patil (supra), to the extent that the admission wrongly gained or appointment wrongly obtained on the basis of false social status necessarily have the effect of depriving the genuine Scheduled Caste or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. 9. Dr. Shukla would also submit that the non-Hindu religions like Islam, Christianity and Sikh do not recognize caste and as such, though, as pointed out hereinabove, castes did exist even among these religions to a varying degree. He would lastly contend that the order passed by the Committee is final and conclusive. 10. Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. 11. It is an admitted position that in the Census of India 1931 J.H.Hutton, Vol. 2 of Undivided India, at page No. 174, “Lohana Arora” is shown. Lohana, Arora caste is a caste shown to be engaged in business belonging to general catregory. Aroras caste mainly belong to North West region of Punjab and Jammu & Kashmir. 12. It is evident that the petitioner contested the election of Ward Councillor from Ward No. 22, Municipal Corporation, Bhilai, as OBC candidate on the basis of certificate and documents produced before the authorities. The petitioner was duly elected. According 3 AIR 1993 SC 477 7 to the petitioner, the period of said election came to an end in the year 2004. Thereafter, in the year 2010, the petitioner contested the election for the same post as general candidate and was duly elected as Ward Councillor.