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2017 Supreme(Kar) 330
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
G. NARENDAR, J.
Narayan V. Shiroor, S/o. late Venkappa Shivappa Shiroor - Petitioner
Vs.
The Tahsildar, Bhatkal Taluk, Uttara Kannada District & Ors. - Respondents
W.P. No.103502 of 2016 [GM-CC]
Decided On : 16-02-2017
For the Petitioner: Sri. Hemanthkumar L. Havaragi, Adv.
For the Respondent: Sri. C. Jagadish, Spl. Standing Counsel, Sri. R.G. Hegde, Adv.
Headnote:KARNATAKA SCHEDULED CASTES, SCHEDULED TRIBES & OTHER BACKWARD CLASSES (RESERVATION OF APPOINTMENTS, ETC.) ACT, 1990 – Sections 4-B, 4-A & 4-C – Issuance of caste certificate – Appeal against – Appellate Authority is required to conduct an enquiry after giving both parties an opportunity of being heard – Thereafter to pass orders allowing or dismissing appeal – But, Assistant Commissioner abdicating duty cast upon him and referring appeal to District Caste Verification Committee – Held, A reading of sub- section (2) of Section 4-A of the Act 1990 would demonstrate that it is only the person, who has obtained the caste certificate under Section 4-A or 4-B of the Act 1990 or the Appointing Authority or any Authority making admission to a course of study in University or any Educational Institution alone are entitled to make the application to the Verification Committee is without the authority of law and in the back-drop of the facts of this Case, this Court is restrained to conclude that as a probable dilatory tactics. This is so in view of not only the above said act of reference by the Appellate Authority but also the subsequent funded by the other authorities i.e., the act of the District Verification Committee in referring it to the Tahsildar and the act of referring to the Tahsildar and the act of the Tahsildar in calling for a verification from the Deputy Commissioner with regard to the powers to pass such an order. A reading of the scheme of the Act clearly demonstrate that the said action was not supported by the enactment. The Act stipulates the requirement for an enquiry under sub- section (3) and that the enquiry ought to be in conformity with the procedure prescribed and as mandated by some-section (4) of the said section. Section 4-B of the Act stipulates that any person aggrieved by the order of the Tahsildar may prefer an appeal to the Assistant Commissioner of the Sub-Division. Sub-section (2) of Section 4-B of the Act stipulates that the Assistant Commissioner of the Revenue Sub-Division after giving both the parties an opportunity of being heard shall pass orders allowing or dismissing the appeal or in appropriate case directing issue of Caste Certificate or Income and Caste Certificate to the applicant i.e., in essence sub- section (2) empowers the Appellate Authority with the limited powers with the regard to the relief it could grant. The Assistant Commissioner can either allow or dismiss the appeal or direct issue of certificate. That in the instant case, the Appellate Authority has ventured to refer the same to the Verification Committee, which power is not vested with the Assistant Commissioner. The Act i.e., sub- section (2) of Section 4-B having stipulated the nature of the relief and orders that could be granted by the Appellate Authority. The Appellate Authority could not have ventured to grant the relief other than those stipulated under the Act. The act of the Appellate Authority in referring the appeal to the Verification committee is contrary to the Scheme and mandate of the Act and hence, the same is unsustainable. It is the Appellate authority, who alone can either come from the grant of Certificate or set aside the Certificate granted.
Heard the learned counsel for the petitioner, the learned Special Standing counsel for the 1st respondent and learned counsel for the 2nd respondent.
2. The above writ petition is preferred praying for the following reliefs:
(i) Issue a writ, order or direction, in the nature of mandamus, directing respondent No.1 to cancel the caste certificate issued in favour of respondent No.2 in pursuance of the letter addressed by the Chairman and Deputy Commissioner, District Caste Verification Committee, dated 09.07.2015, produced at Annexure-“B”, insofar as respondent No.2 is concerned.
(ii) Pass such other order/orders as this Hon’ble Court deems fit in the facts and circumstances of the case, including an order as to costs, in the interest of justice and equity.
3. The factual matrix are that the petitioner belongs to Samagar caste, which is notified as scheduled caste under Article 341 of the Constitution of India and that the 2nd respondent belongs to Category-I backward class notified by the State under G.O. No.SWD 225 BCA 2000 dated 30th March, 2002. The said notification has been issued by invoking the power vested with the State under the Provisions of Articles 15(4) and 16(4) of the Constitution of India. That the 2nd respondent in collusion with the 1st respondent has obtained a caste certificate, certifying him as belonging to a schedule caste community and that the certificate came to be issued on 19.08.2014.
4. It is submitted that aggrieved by the order of the Tahsildar, the petitioner has preferred an appeal before the Assistant Commissioner. The Assistant Commissioner referred the matter to the District Caste Verification Committee and that the Verification Committee by its Order dated 23.11.2014, directed respondent No.1- Tahsildar to verify and cancel the Caste Certificate, issued in favour of respondent No.2. Pursuant to the orders passed by the Verification Committee, the Assistant Commissioner, Batkal has issued a letter to cancel the Caste Certificate of respondent No.2. But, despite the long passage of time, respondent No.1 has not taken any steps to cancel the said caste certificate and to further complicate the issue, respondent No.1 has addressed a letter seeking clarification from the Deputy Commissioner as to whether Grade II Tahsildar like himself had the jurisdiction to cancel the caste certificate and in response to the same, the Deputy Commissioner by a Communication dated 09.07.2015 has issued a direction to respondent No.1 to cancel the Caste Certificate issued to respondent No.2. The 1st respondent was further put on notice, in the event of his failure to abide by the direction, the omission would be viewed seriously. Despite such a stringent advise, the 1st respondent has omitted to abide by the direction issued by the competent authority and hence, the petitioner is before the Court, seeking for a direction to the 1st respondent to initiate action and comply with the direction issued by the Deputy Commissioner, who is also a Chairman of the Verification Committee.
5. The writ petition is stoutly resisted by the 2nd respondent. Learned counsel appearing on behalf of the 2nd respondent would vehemently contend that the writ petition itself is not maintainable and that the petitioner has no locus standi to maintain the writ petition. He would contend that the petitioner is a third party and he is not a person, who is affected or aggrieved by the Certificate issued by the 1st respondent. He would contend that the order of the 1st respondent is perfectly in order and does not call for any interference and that the writ petition ought to be rejected at the threshold. In this regard, learned counsel for the 2nd respondent would place a reliance on the ruling of the Hon’ble Apex Court, in the case of Ayaaubkhan Noorkhan Pathan Vs. State of Maharashtra, reported in Laws(SC)-2012-11-11. He would draw the attention of this Court to the observations of the Hon’ble Apex Court at patragraph 5 and would contend
