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2006 Supreme(Guj) 669
Gujarat High Court
Judgename :RAVI R.TRIPATHI
KISHANKUMAR BALUBHAI GARSAR - Appellant
Versus
COLLECTOR, JAMNAGAR - Respondent
SPECIAL CIVIL APPLICATION 12257 Of 2006
Decided On : 10/13/2006
Headnote:Point in Issue :
Whether merely on basis of Forest Department reports that there are no nesses in the forest of area of Allech with human population caste certificate can be denied.
Head Note :
Constitution of India, 1950 - Article 226 - Caste certificate - Non-grant of - Ground that place of permanent residence not included in forest area - Sustainability - Finding as to - As per the Presidential Notification dated 29.10.1956 the persons belong to Rabari Community residing in the ness area of the forest of Allech only are Scheduled Tribe - Court observed that a person residing in a ness is dependent on the forest for all his requirements - For all practical purposes that area is a forest area more particularly for purpose of entry in the Presidential Notification - Therefore, merely because the Forest Department as in the case has certified that there are no nesses in forest area of Allech with human population it cannot be made basis for denying caste certificate - That being so, the certificate could not have been denied on the basis of the reply of the Forest Department - That apart as directed by Division Bench of the Court Vigat Darshak Card is one of the material to be considered by Court for issuance of such certificate - In this case from the impugned order it is clearly reflected that Mamlatdar has failed to discharge the duty as required - Court therefore quashed and set aside order that the impugned order and directed Mamlatdar to consider the case of petitioners strictly in accordance with the guidelines issued by the Division Bench of this Court.
Held :
A person residing in a ness is dependent on the forest for all his requirements. He grazes his cattle in the forest which is the only source of his livelihood, and instead of staying in the thick forest, he stays/ resides on the periphery of the forest. For all practical purposes that area is a forest area, more particularly for the purpose of entry in the Presidential Notification. Therefore, merely because the Forest Department has certified that there are no nesses in the forest of area of Allech with human population cannot be made the basis for denying caste certificate. The object behind the entry which provides that a community (Rabari) residing in the ness area (which must include the periphery areas also) of Allech forest be considered eligible for issuance of certificate, is that they are given certain benefits as they are deprived of the benefits flowing from urbanisation like easy access to education, social and economic development etc. They being in the close vicinity of the forest and being dependent on the forest, was the main factor, which must have weighed with the legislators for including them in the Presidential Notification. That being so, the certificate could not have been denied on the basis of the reply filed by the Forest Department.
[Para 9]
Law Laid Down :
All the area on the periphery of the forest, for all practical purposes is a forest area more particularly for the purposes of entry in the Presidential Notification.
Conclusion :
Merely because the Forest Department has certified that there are no nesses in the forest area of Allech with human population cannot be made the basis of denying caste certificate.
Cases Referred :
Kumari Madhuri Patil vs. Addl. Commr., Tribal Development 1994 (6) SCC 241;; Director of Tribal Welfare Government of A.P. vs. Laveli Giri., 1996 (4) SCC 32.
Decided in Favour of :
Appellant
Petition Allowed
( 2 ) THESE two petitions are filed by the petitioners being aggrieved by the non action on the part of the respondent authorities, namely, the Mamlatdar, who did not grant Caste Certificate to the petitioners. In Special Civil Application (SCA) No. 11734 of 2006 it is prayed that:
" (A) A writ of mandamus or a writ in the nature of mandamus or any other writ, direction or order may kindly be issued by directing the respondent no. 2 to issue caste certificate in the name of the petitioner on the basis of the documents produced by the petitioner along with the application. "
Whereas, in SCA No. 12257 of 2006, it is prayed that:
"10 (A) A writ of mandamus or a writ in the nature of mandamus or any other writ, direction or order may kindly be issued by directing the respondent no. 2 to issue caste certificate in the name of the petitioner on the basis of the documents produced by the petitioner along with the application. Application dated 18-8-2005 and the document produced in appeal no. 2/ 2006 as well as the documents produced in this petition. "
( 3 ) THE question involved in these two petitions, namely, non-grant of caste certificate by the Mamlatdar is similar to that of one involved in SCA SCA No. 4593 of 1999, SCA No. 5977 of 1999 and SCA No. 3885 of 1999, filed before this Court. The same were heard and disposed of by this Court (Coram: M. S. Shah, J.) by judgement and order dated 20. 09. 1999. In these petitions, the Court had to consider as to whether the petitioners are entitled to a caste certificate, in view of Government Resolution dated 29th February 1996, whereby the word, "ancestors is substituted by word, parents . This Hon ble Court referring to Part-IV (Gujarat) of the Presidential Order dated 29. 10. 1956 has observed as under:
"10. The contention of Mr. Mehta is that the Presidential Notification does not limit the operation of this declaration to only the children of the rabaris who were residing on those forests and that when the Government has given the benefits to children of the rabaris who were residing in the nesses as on 29. 10. 1956, there is no reason to deny the benefit to the grand children of the rabaris who were residing in the nesses on 29. 10. 1956. While this contention of Mr. Mehta has some substance, at the same time it cannot be said that the Government can never draw a line as to when the persons may be deemed to have shifted their residence permanently. Whether the persons who were originally residing as rabaris in the aforesaid nesses on 29. 10. 1956 had permanently migrated or not can perhaps be decided with reference to the number of generations which are away from the nesses. It would be reasonable to presume that even if the rabaris might have migrated for earning living and therefore, might not be residing in the nesses after 29. 10. 1956, they might come back to the locality after their retirement and so also their children and the grand children may also come back. There is no reason for limiting the benefits of this declaration only to the second generation, i. e. the children. Of course, it cannot also the unlimited, but at the same time it appears that the benefit can be extended to two generations, i. e. Rabaris who were residing in the nesses on 29. 10. 1956 and to their children who might be away for the purpose of earning living and their grand children who may be away for the purpose of education. "
After the aforesaid discussion, this Court allowed all these petitions and directed the respondents to treat the petitioners as belonging to the Scheduled Tribe.
( 4 ) THE respondents being aggrieved by the said direction filed Letters Patent Appeals in all the three petitions being Letters Patent Appeals No. 1670 of 1999, 1671 of 1999 and 1672 of 1999, which were heard and decided by a Division
