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. The election held in the year 2010 is
not in question before this Court.
13. The petitioner is aggrieved by the order dated 22.09.2008
(Annexure P/1) passed by the Committee, wherein it has been held
that the petitioner does not belong to “Lohar” community i.e. OBC
and the order dated 28.08.2009 (Annexure P/2) whereunder the
petitioner has been declared as disqualified to contest election for a
further period of five years.
14. This Court will first deal with validity of the order dated
28.08.2009 (Annexure P/2), passed by the Commissioner, Urban
Administration & Development, Raipur. Pursuant to the impugned
order dated 22.09.2008 (Annexure P/1) passed by the Committee,
and after issuing show cause notice, the impugned order dated
28.09.2009 (Annexure P/2) was passed. It was held that the
election of the petitioner as Ward Councillor, held in the year 2000
against the seat reserved for the OBC was on the basis of a forged
temporary caste certificate dated 10.04.20000 (Annexure P/3)
issued by the then Deputy Collector, Durg, and as such, in exercise
of power under Section 19(2) of the 1956, the Commissioner
passed the order of disqualification for a further period of five
years as the election was held in the year 2000 and the term has
already come to an end in the year 2004. Section 19 of the Act,
1956 provides for removal of councillor, which reads as under: 8
“19. Removal of Councillors. - (1) The Divisional Commissioner may, at any time, remove any elected councillor:-
(a) if his continuance as a concillor is not in the opinion of the Divisional Commissioner, desirable in the interests of public or the Corporation; or
(a-1) if it is found that he does not belong to the reserved category for which the seat was reserved, or
(b) if the Corporation has, by a resolution supported by at least two third of the total number of councillors; recommended that a councillor is not fit to continue as a councillor on account of misconduct in the discharge of his duties or disgraceful conduct and should therefore be removed.
(2) The Divisional Commission, may while ordering the removal under sub-section (3) of Section 23 or this section, also order that the councillor, shall not be eligible to become a councillor of a Corporation for a period which shall be specified in the order and which shall not exceed five years.”
15. Under section 19(2) of the Act, 1956, the petitioner was removed
from the post of Councillor and he was held as disqualified for
contesting the election for the post of Ward Councillor for a period
of five years. The period of 'five years' was substituted by M.P. Act
No. 18 of 1997. Proviso to sub section (2) of Section 19 of the Act,
1956 provides that no resolution recommending the removal of the
Councillor shall be passed by the Corporation nor any such order
of removal shall be passed by the Divisional Commissioner, unless
such Councillor has been given a reasonable opportunity of
showing cause why a recommendation should not be made for his 9
removal or why he should not be removed from his office and
disqualified for further election.
16. The contention of the petitioner that before passing of the
impugned order dated 22.08.2009 (Annexure P/2), no opportunity
of hearing which is mandatory, as aforestated, was afforded, is
noticed to be rejected as the petitioner was issued a show cause
notice on 19.12.2007 before passing the impugned order. A copy of
the same is not found on record, however, it is evident that the
show cause notice was issued and the petitioner has also filed his
reply on 08.01.2008. Thus requirement of affording opportunity of
hearing has been complied with.
17. Show cause notice was issued not only for removal from the
elected post of Councillor but also for disqualifying the petitioner
for a period of five years as is clear from the perusal of the
impugned order dated 28.08.2009 (Annexure P/2). The petitioner
has not produced any documents contrary to the facts recorded by
the Commissioner. Even the period of disqualification, which at
the most will start from 2004, on completion of the period of 2000
election, has also come to an end in 2009. On perusal of the
impugned order dated 28.08.2009 (Annexure P/1) it cannot be held
that the same suffers from any infirmity or vice of
unreasonableness and non-compliance of the principles of natural
justice.
18. Election of the petitioner as Councillor in the 2000 was on the
basis of being OBC candidate, came to an end in the year 2004.
Counting five years from the year 2004, the disability attached to 10
the candidature of the petitioner for five years has also come to an
end in the year 2009. It is clear from the fact that the petitioner has
contested the election of Ward Councillor again in the year 2010 as
general candidate and it is informed, was duly elected. Thus, it
cannot be held that the impugned order dated 28.08.2009
(Annexure P/2) is not just and proper. The respondent authorities
have also accepted the position by permitting the petitioner to
participate in the election of Councillor as general candidate, held
in the year 2010.
19. The next issue is asto whether the order dated 22.09.2008
(Annexure P/1) passed by the Committee, was just, proper, and in
accordance with law and the procedure as laid down by the
Supreme Court, in Madhuri Patil (supra). On the basis of the
report, an enquiry was made on receipt of a complaint made by the
respondent No. 7, who claims to be a member of OBC community.
20. The, then, State of Madhya Pradesh, by memo dated 01.08.1996,
which was adapted by the State of Chhattisgarh, in compliance of
the directives issued by the Supreme Court, in Madhuri Patil
(supra), as well as in Laveti Giri (supra), and other cases, had
issued guidelines. Under clause 22(2), the powers of the
Committee have been described. Under clause 22(2)(gha), the
Committee is authorized to consider the complaint wherein a
person has availed the facility of reservation/relaxation on
production of forged documents or certificate. Thus, the
Committee was right in entertaining the complaint made by the
respondent No. 7 on 26.12.2002 (Annexure P/5). The 11
Commissioner, Scheduled Tribe and Scheduled Castes Welfare
Department, Raipur, by communication dated 22.02.2003, directed
the Senior Superintendent of Police (for short 'the SSP'), Durg, to
enquire into the claim of the petitioner as “Lohar” OBC
community. The SSP, Durg, recorded the statement of the
petitioner and Harbhajan Singh. It was found that the documents
produced by the petitioner did not establish any caste, however, it
was found that the father of the petitioner Sujan Singh was
working in the Bhilai Steel Plant wherein his caste was not given.
In the certificate of Rajendra Singh against the column of caste,
“Sikh” was written. The grand father of the petitioner was living in
Jhelum prior to independence and no document could be verified
from there. Thus, it was held that it is difficult to ascertain the caste
of the petitioner.
21. A show cause notice was issued to the petitioner on 20.05.2003
to produce the documents and other materials in support of his
case. The committee examined the case of the petitioner at length.
The petitioner's witnesses i.e. the petitioner himself, his father
Sujan Singh, Sadhu Singh, Swarna Singh, Ajay Kumar Dhiman
(son in law of the petitioner) in their statements have submitted
that the forefathers of the petitioner were living in the Pakistan
occupied Punjab and were doing the work of “Blacksmith”. The
respondent No. 5 also deposed that “Arora” is “Blacksmith”. The
Committee, after examining all the witnesses, came to the
conclusion that in the academic documents and other documents
also, the caste of the petitioner was not written as “Lohar”. As per 12
Census of India, 1931, members of Lohana Arora community were
general category candidate. Thus, the Committee came to the
conclusion that the petitioner does not belong to “Lohar” caste,
under the OBC category.
22. At the bar, an article, “Sikh Castes” written by Prof. Baldev Singh
'Panthi' was produced. Mr. Panthi, in his article has observed as
under:
“Castes exist but all castes are equal Some say that Guru Gobind Singh did not abolish caste system within Sikhs but merely implied equality of all castes. Major Sikh Castes and Subcastes Some prominent castes among Sikhs are Arora, Khatri, Ramgarhia, Jat, Saini, Kamboh, Mahton, Chhimba, Mohyal , Chamar, etc. Each caste has its sphere of influence and specialization. Commercial Castes: Arora, Khatri and Bhatia Sikhs Aroras and Khatris In the cities, Khatri and Arora dominate the sphere of business activities. Khatri and Aroras are essentially identical caste and are primarily a caste of traders, shopkeepers and accountants. Khatris and Aroras are equivalent of Baniyas found elsewhere in India. Please note there are also Agarwal Baniyas in Punjab too but they are almost 100% Hindu. Bhatias Aroras, who as already pointed out, are purely trading castes equivalent to Baniyas found elsewhere in the country. According to English observers of 19th century Punjabi social order, "they stand distinctly below the Khatri and perhaps below Arora, and are for most part engaged in petty shop-keeping, though the Bhatias of Dera Ismail Khan are described as belonging to a "widely spread and enterprising mercantile community." 13
Artisan Castes According to McLeod, the present day Ramgarhias are a caste formed by merging of Nais (barbers), Raj (blacksmiths) and Tarkhans (carpenters) are primarily expert carpenters and blacksmiths. Besides the above there are other minor Sikh castes which are primarily artisans. Chhimbas are tailors (darzi) and printers (chhipa) who had assumed the title of Tonk Kshatriyas in the colonial era. Suniyaras or goldsmiths call themselves Mair Rajputs. Kashyap Rajput is a reference used for the caste of water carriers or Jheers these days. Jheer is essentially a service caste and not an atrisan caste like the others in the foregoing list . Service castes Among the Dalit caste groups prominent ones Chamars and Chooras. Both communities are called Mazhabi Sikhs. The word Chamar is derived from Charmakar or leather tanner. They used to be expert shoe-makers. Some poor men and women of this caste also work as laborers in the farms of traditional landowning castes like Jat, Mahton, Saini, etc. Mazbi Sikhs have in the past made sterling contribution to Sikhism both as mystics and soldiers. Bhagat Ravidas belonged to Chamar caste but is accorded highest respect in Sikhism with his poetry being included in Sri Guru Granth Sahib. In recent times Sardar Buta Singh has been a well-known Mazhbi Sikh politician.
23. In Chapter IV of “The Caste System and The Sikhs in The Later
Period”, it has been observed as under:
Before labelling, on connubial grounds, Jat Sikhs, Khatri Sikhs, Arora Sikhs and Ramgarhia Sikhs as Brahmanical castes, it is necessary to establish that intermarriages between them are inhibited not merely by an old but dying prejudice that they carry along with them from their caste heritage, but by the hard and fast rules of the caste society, 14
according to which "members of different castes must marry only within their castes."
(C) Urban Artisans & Menials
Out of a total of 1,853,426 Sikhs in 1881, the number of artisan and menial castes among the Sikhs, other than the Tarkhans, Lohar Sikhs, Nai Sikhs, Chimba Sikhs, Sunar Sikhs, Kumhar Sikhs and Kalal Sikhs. These categories do not constitute any caste problem of major social significance.Kalal Sikhs, although assigned a lower position than most of the artisan castes by the Indian caste system. Therefore, the Sikhs from artisan and menial categories face no social discrimination excepting that they find reluctance on the part of Jat, Khatri, Arora and Ramgarhia Sikhs to intermarry with them. Such intermarriages are not so common, but they are not insignificant either, the writer himself having, attended such marriage ceremonies on a number of occasions.
24. Thus, contention of learned counsel for the petitioner that the
Committee has ignored the statements made by his witnesses,
when they have clearly stated that the petitioner belongs to
“Lohar” community and also no cross examination was made
while passing the impugned order, thus, the same is bad and
illegal, deserves to be rejected.
25. It is well settled principle of law that the burden of proof is always
on the person claiming benefit on the basis of a particular caste.
(See: Gayatrilaxmi Bapurao Nagpure v. State of Maharashtra4 and
Laveti Giri (supra)).
26. It is also well settled that the findings recorded and the decisions
rendered by the Committee, if are fully supported by the materials
4 (1996) 3 SCC 685 15
placed on record, the High Court may restrain itself from
interferring with the same (See: Pournima Suryakant Pawar v.
State of Maharashtra & Others5).
27. I have found that proper enquiry was done, examination of
witnesses were made, however, no documents were produced in
support of the petitioner’s claim. Statements submitted by the
petitioner's witnesses had not supplied sufficient materials to
establish the fact that “Aroras” have been notified as “Lohar”,
except the selfsame statements made by them. The conclusion and
findings recorded by the Committee is neither perverse nor
unjustified.
28. In view of the above analysis, this petition, being devoid of merit,
is accordingly dismissed.
29. However, if the petitioner intends to claim any reservation or
exemption, it is open for him to obtain a proper caste certificate
from the appropriate authority and duly verified by the Committee
as the petitioner has accepted the position of not being OBC by
contesting the election for the post of Ward Councillor, held in the
year 2010, as general candidate.
30. No order asto costs.
JUDGE
5 (2013) 3 SCC 690