P. Jayabalan v. The Revenue Divisional OfficerNamakkalNamakkal District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 03.02.2007CORAM:THE HONOURABLE MR. JUSTICE V. DHANAPALANW.P. No.14210 of 2004 & W.P.M.P. No.16795 of 2004P. Jayabalan.. Petitionervs.The Revenue Divisional OfficerNamakkalNamakkal District.. RespondentWrit Petition filed under Article 226 of the Constitution ofIndia praying for a writ of certiorarified mandamus as statedtherein.For petitionerMr. T. KarunakaranFor respondentMr. K. Balakrishnan, AGP (Writs)O R D E RThis writ petition is filed challenging the order of the RevenueDivisional Officer, Namakkal, the respondent herein, in Na.Ka.8988/03/(A5) dated 30.12.2003, seeking to quash the same and for aconsequential direction to the respondent to issue CommunityCertificate to the petitioner's son as Bandi (SC) community.2.The case of the petitioner is that he is residing atNallipalayam Village, Namakkal District with his family. His son wasstudying in IX standard at the time of filing of the writ petition.As his son requires Community Certificate for higher studies, he hasapplied for the Community Certificate on 26.05.2003 to the RevenueDivisional Officer, (in short “RDO”) Namakkal, the sole respondentherein. His father, grand father and great grand father lived inNallipalayam village for several decades. The petitioner studiedupto S.S.L.C. and is working as a Writer in a Government school. Heand his ancestors belong to Kal Oddar caste and they used the word“Boyar” with their name as their surname. His ancestors wereilliterate and they have given his caste as Boyar in his schoolcertificate. He has produced the sale deed made in the year 1974 in https://hcservices.ecourts.gov.in/hcservices/ which the words “Kal Oddar” has been prefixed to his father's nameand in the other sale deeds also made in the year 1943 and 1947, thewords “Kal Oddar” have been prefixed to his ancestors' name. 3.According to the petitioner, “Kal Oddar” caste is called“Bandi” and this comes under SC. In support of this contention, herelies on a Gazette Notification published in the year 1967 which hasbeen annexed in the typed-set of papers to show that Bandis are therein all districts of Tamil Nadu and a clarification in this regard hasbeen sent to the Secretary to Government, Adi Dravidar and TribunalWelfare Department, on 07.06.1999 and photo copy of the proceedingsalso has been filed in the typedset. He had sent representations tothe District Collector and Tahsildar on 09.09.2003 and since therewas no response, he had filed a writ petition in W.P. No.28199 of2003 with this Court seeking a direction to the respondent toconsider his representation dated 09.09.2003 and to dispose of thesame. This Court, on consideration of the case of the petitioner,passed the following order on 10.10.2003."It is for the petitioner to make anapplication to the Revenue Divisional Officer,Namakkal seeking such certificate. On receiptof such application, the Revenue DivisionalOfficer is directed to consider the same andpass orders within a period of two months fromthe date of receipt of this order..."4.As per the above direction of this Court, the petitionerhas forwarded an application to the respondent on 03.11.2003 andthereafter, the respondent has passed an order in his proceedingsdated 30.12.2003 rejecting the petitioner's claim and this is theproceedings impugned in this writ petition.5.The grounds on which the petitioner has filed this writpetition are that:a.his ancestors belong to Kal Oddar caste and the saledeed in his ancestors’ name show that they are Kal Oddars;b.the Gazette Notification published in 1967 wherein itis stated that the Bandi caste falls under SC has not beenconsidered by the respondent;c.the respondent's finding that the petitioner belongsto Hindu Boyar community which comes under MBC is not correct asin Namakkal District, Hindu Boyars were given SC certificatewithout any evidence. https://hcservices.ecourts.gov.in/hcservices/ d.the list of relatives provided by him who belong toKal Oddar or Bandi caste, for verification, has not been takeninto consideration by the respondent;e.one of his relatives by name Kannaiyan has obtainedCommunity Certificate for his children as Bandi and therefore,he has to be considered as a Bandi. f.the finding of the respondent in the impugned orderthat his relatives are Hindu Boyars based on their schoolrecords is not correct and that cannot be taken as evidence todecide the issue.g.the respondent has acted with non-application of mindand the impugned order is in violation of the fundamental rightguaranteed under Article 14 of the Constitution of India and theact of the respondent is unfair, arbitrary and violative ofprinciples of natural justice.6.The respondent has filed counter and his case is asfollows:a.The application of the petitioner to obtain CommunityCertificate as Bandi to his son was rejected by the thenTahsildar since he belongs to Boyar (MBC). The fact that thepetitioners' ancestors lived in Nallipalayam village for severaldecades and they belong to Kal Oddar community is not disputed.The petitioner cannot claim his caste as Bandi (SC) merelybecause his caste name was called and mentioned as Kal Oddar.The Madras District Gazette, Salem, published in the year 1967,has provided a detailed definition regarding the origin of Bandi(SC) community, its culture and traditions which have not beenfound either with the petitioner or among his relatives. Onenquiry, the relatives of the petitioner also have givenstatements to the effect that they belong to Boyar (MBC)community even though their community is called as Oddar or KalOddar. The Boyar community (MBC) people are usually called withsurname Oddar or Kal Oddar; but their culture and tradition aretotally different from that of SC community. The Oddars whooriginally came from Orissa can only be treated as Bandi (SC)and the petitioner and his relatives are having the origin ofTamil Nadu and hence, they have been classified under thecategory of Boyar (MBC) community. The relatives of thepetitioner have concretely stated that they have no documentaryor oral evidence for the claim of the petitioner as Bandi (SC)community and therefore, in the absence of any proof, thepetitioner is not entitled to get the Community Certificate asBandi (SC). https://hcservices.ecourts.gov.in/hcservices/ b.Based on the representation received by theGovernment, the Principal Commissioner and Commissioner-RevenueAdministration, Chennai, in his letter dated 25.04.2001, hasinstructed the District Collectors of the respective Districtsfor issuance of Bandi community certificate, in which he hasinstructed to issue Community Certificates only to the eligiblepersons and that action should be initiated against thoseineligible persons producing bogus and false evidence forgetting the same.c.Since the petitioner’s application for issuance ofCommunity Certificate as Bandi (SC) to his son was rejected bythe Tahsildar, Namakkal (which is not challenged by thepetitioner nor the Tahsildar has been impleaded as a party inthe petition) on the ground that he belongs to Boyar (MBC)community, the petitioner filed a writ petition before thisCourt and this Court, on 10.10.2003 directed the petitioner tomake an application to the respondent herein seeking suchcertificate on receipt of which the respondent has to passorders within a period of two months from the date of receipt ofsuch application. Accordingly, on receipt of an applicationdated 03.11.2003 from the petitioner, he was summoned forenquiry on 17.11.2003 before the respondent and was orallyenquired. During the enquiry, he was asked to produce CommunityCertificate obtained by any one of his relatives for which hereplied that he is the only educated person among his relativesand employed as a clerk in Education Department and hisrelatives as well as the relatives in his wife's side are noteducated and all of them are engaged in stone quarrying work inMinnampalli Village, Namakkal Taluk. On his failure to furnishaddresses of his ten relatives, he was summoned again forenquiry on 27.11.2003 and he stated that his father and grandfather were engaged in stone-breaking work and that his caste isunknown as Bandi and since his ancestors were engaged in stonequarrying work and they were speaking Telugu, his son has to beissued Bandi community certificate. At the end of enquiry, hefurnished seven addresses of his relatives residing inNallipalayam village and five addresses of his wife's siderelatives at Minnampalli village at Namakkal Taluk.d.After a detailed enquiry with the relatives of thepetitioner and his wife by the team of revenue officials and bythe RDO, it has been found that the petitioner and his relativesdo not belong to Bandi (SC) community and the Bandi (SC)community certificate obtained by the said Kannayyan in respectof his children were subsequently ordered to be cancelled by theTahsildar by his order dated 25.03.2004 on the ground that theywere obtained by producing bogus evidence and in view of thesefacts gathered on the basis of personal enquiry and spot enquiry https://hcservices.ecourts.gov.in/hcservices/ with the petitioner, his relatives and public, the claim of thepetitioner for issuance of a Bandi (SC) community certificate tohis son was rejected and a speaking order, without anyinfirmity, was passed by the respondent to this effect and thesame is challenged in this writ petition.7.The petitioner has filed his reply affidavit denying theaverments of the respondent in the counter affidavit and I haveperused the same.8.Heard Mr. T. Karunakaran, learned counsel for thepetitioner and Mr. K. Balakrishnan, learned Additional GovernmentPleader for the respondent.9.The learned counsel for the petitioner has contended thatthe claim of the petitioner is based on (i) three sale deeds, (ii)definition to Bandi community given in 1967 Gazette Notification and(iii) the Bandi (SC) community certificate obtained by Kannayyan, oneof his relatives and the enquiry conducted by a team of revenueofficials reveals that they belong to Kal Oddar which is defined as aBandi (SC) community and therefore, the petitioner's claim is alegitimate one and as such, he is entitled to get the Bandi (SC)community certificate and the action of the respondent in passing theimpugned order is arbitrary and hence, the order passed by him has tobe set aside and also a consequential direction has to be issued tothe respondent to issue Bandi (SC) community certificate to thepetitioner’s son.10.In support of his contentions, the counsel for thepetitioner has relied on a judgment of the Supreme Court reported in2005 (12) SCC 248 in the case of State of Bihar & others vs. SumitAnand (para 6)“We have perused the findings recorded bythe Division Bench as well as the Single Judgeof the High Court. In view of the fact thatthe respondent’s father, grandfather, motherand maternal uncle had all been granted thecertificate certifying that they belong to the“Gond” community, we see no reason to come aconclusion other than the one arrived at bythe High Court to the effect that therespondent was entitled to issuance of thecaste certificate.”11.He has placed further reliance on a judgment of the SupremeCourt reported in (1996) 3 SCC 685 in the case of GayatrilaxmiBapurao Nagpure vs. State of Maharashtra & Others and the relevantportion reads as under: (paras 14, 15 and 17) https://hcservices.ecourts.gov.in/hcservices/ “Taking into consideration thesecertificates and also the order of theGovernment dated 01.09.1981 certifying thatAbinash Prabhakar Nagpure, first cousin of theappellant belongs to ‘Halba’ community, we areof the view that the rejection of theappellant’s claim especially when there is noother evidence placed contra to suspect theproof produced by the appellant and withoutappreciating the vital document placed beforethe Committee, is correct.It is true that this Court in MadhuriPatil case has observed:“The Committee which is empowered toevaluate the evidence placed before itwhen records a finding of fact, it oughtto prevail unless found vitiated byjudicial review of any High Court subjectto limitations of interference withfindings of fact. The Committee whenconsiders all the material facts andrecords a finding, though another view, asa court of appeal may be possible, it isnot a ground to reverse the findings. Thecourt has to see whether the Committeeconsidered all the relevant materialplaced before it or has not applied itsmind to relevant facts which have led theCommittee ultimately to record thefinding. Each case must be considered inthe backdrop of its own facts.”Applying the above test to the facts ofthe present case, we are satisfied that theCommittee failed to consider all the relevantmaterials placed before it and did not applyits mind to an important document “Sl.No.9”which led the Committee ultimately to record afinding against the appellant. By a wrongfuldenial of the caste certificate to the genuinecandidate, he/she will be deprived of theprivileges conferred upon him/her by theConstitution. Therefore, greater care must betaken before granting or rejecting any claimfor caste certificate.” https://hcservices.ecourts.gov.in/hcservices/

12.On the other hand, the Additional Government Pleader hasstrenuously contended that the documents produced by the petitionerthemselves would show that the petitioner's father and ancestors areKal Oddars for several decades and they belong to Hindu Boyarcommunity and the Madras District Gazette Notification published in1967 has provided a detailed definition regarding the origin of Bandi(SC) community, their culture and tradition which have not been foundeither with the petitioner or among his relatives and the Governmenthas also instructed the Collectors for issuance of Bandi communitycertificates only to eligible persons and to take serious actionagainst those applying for community certificates by producing anybogus or false certificates.13.The learned Additional Government Pleader has also pointedout that the certificates issued to the children of Kannayyan, weresubsequently cancelled as it was found out that he had obtained thesame by giving false evidence and therefore, the contention of thepetitioner that his relative Kannayyan is a Bandi belonging to (SC)and hence, his son has to be issued Bandi (SC) community certificate,does not have legs to stand and in the absence of any documentaryproof on the petitioner’s side, the respondent has followed the dueprocess of law by way of conducting a proper enquiry and passing aspeaking order, after affording an opportunity to the petitioner andtherefore, there is no infirmity whatsoever with the order passed bythe respondent and as such, the same should be upheld and the writpetition dismissed.14.On a careful analysis of the case of the parties andperusal of the documents filed in support of their support, it is notin dispute that the petitioner’s ancestors were living in Tamil Nadufor several decades and they belong to Kal Oddar community. But, inthe affidavit filed by the petitioner, he has nowhere stated that hisancestors were originally from Orissa or any other part of India andhave migrated to this State and they have the practice, culture andtradition of the Bandi (SC). Many of his relatives have givenstatement that they belong to Kal Oddar community or Boyar communitycoming under (MBC) and the Boyar community people are usually calledwith surname Oddar or Kal Oddar and their culture and tradition aretotally different from that of Bandi (SC) community. 15.It is seen from the petitioner’s case as well as theenquiry conducted with him, his relatives and the public that thepetitioner and his relatives are having the origin of Tamil Nadu andthey have not originated from Orissa or any other place. Further,concrete and clear statements given by seven relatives of thepetitioner and five relatives of the petitioner’s wife also confirm https://hcservices.ecourts.gov.in/hcservices/ that they belong to Kal Oddar or Boyar community and not to Bandi(SC) community. Further, it is also relevant to point out here thatin the Constitution (Scheduled Castes) Order, 1950, under the list ofScheduled Castes in Tamil Nadu, in Serial No.9, the Bandi communityis identified as SC category. Whereas in the Appendix to Tamil NaduState and Subordinate Services Rules, Schedule I, Part B, the Boyaror Oddar community falls under MBC category. 16.As pointed by the Additional Government Pleader, the claimof the petitioner that one Kannayyan, one of his relatives, hasobtained Bandi (SC) community certificates for his children andtherefore, his son has to be issued a Bandi (SC) communitycertificate cannot be sustained since the same were ordered to becancelled by an order dated 25.03.2004 passed by the Tahsildar on theground that they were obtained by producing false evidence.17.The enquiry conducted with the petitioner, his relativesand public clearly shows petitioner belongs to Kal Oddar or Boyarcommunity which comes under the definition of Boyar (MBC) community.As the enquiry has been conducted in a proper manner in the presenceof the petitioner, his relatives and also the public, the contentionof the petitioner that the principle of natural justice has not beenfollowed cannot be accepted. That apart, it is seen that therespondent has come to the conclusion that the petitioner belongs toKal Oddar or Boyar community not only by way of enquiry conductedwith him, his relatives and public but also by the school records ofthe petitioners’ relatives whose addresses were given by thepetitioner himself which show that they belong only to Kal Oddar orBoyar community. The petitioner, having given the addresses of hisrelatives to the respondent during enquiry, cannot raise a groundthat the respondent has gone wrong in relying on the school recordsof his relatives. Lastly, it is also relevant to point out here thatin the Constitution (Scheduled Castes) Order, 1950, in the SerialNo.9, the Bandi community is identified as a community falling underSC category. Whereas in Appendix to Tamil Nadu State and SubordinateServices Rules, Part – B, it is stated that the Boyar/Oddar communityfalls under the of MBC category.18.At this juncture, it would be useful to refer to a decisionof the Supreme Court reported in (2001) 1 SCC 4 in the case of Stateof Maharashtra vs. Milind and others wherein the object of givingconcessions in education and employment to the people in lowerstratum of society is emphasised: (para 35)“In order to protect and promote the lessfortunate or unfortunate people who have beensuffering from social handicap, educationalbackwardness besides other disadvantages,certain provisions are made in the https://hcservices.ecourts.gov.in/hcservices/ Constitution with a view to see that they alsohave the opportunity to be on par with theothers in the society. Certain privileges andbenefits are conferred on such peoplebelonging to Scheduled Tribes by way ofreservations in admission to educationalinstitutions (professional colleges) and inappointment in services of State. The objectbehind these provisions is noble and laudablebesides being vital in bringing a meaningfulsocial change. But, unfortunately, even somebetter-placed persons by producing falsecertificates as belonging to Scheduled Tribeshave been capturing or cornering seats orvacancies reserved for Scheduled Tribesdefeating the very purpose for which theprovisions are made in the Constitution. ThePresidential Orders are issued under Articles341 and 342 of the Constitution recognisingand identifying the needy and deserving peoplebelonging to Scheduled Castes and ScheduledTribes mentioned therein for theconstitutional purpose of availing benefits ofreservation in the matters of admissions andemployment. If these benefits are taken awayby those for whom they are not meant, thepeople for whom they are really meant orintended will be deprived of the same andtheir sufferings will continue. Allowing thecandidates not belonging to Scheduled Tribesto have the benefit or advantage ofreservation either in admissions orappointments leads to making mockery of thevery reservation against the mandate and thescheme of the Constitution.19.It is also relevant to refer to yet another decision of theSupreme Court reported in (1994) 6 SCC 241 in the case of KumariMadhuri Patil and another vs. Additional Commissioner, TribalDevelopment and others which says that no sympathy need be shown to aperson if it is found that he, who is seeking a communitycertificate, has played fraud or does not deserve the same: (para 16)“. . .The courts have constitutional dutyand responsibility, in exercise of the powerof its judicial review, to see thatconstitutional goals set down in the Preamble,the Fundamental Rights and the Directive https://hcservices.ecourts.gov.in/hcservices/ Principles of the Constitution, are achieved.A party that seeks equity, must come withclean hands. He who comes to the court withfalse claim, cannot plead equity nor the courtwould be justified to exercise equityjurisdiction in his favour. There is noestoppel as no promise of the social status ismade by the State when a false plea was putforth for the social status recognised anddeclared by the Presidential Order under theConstitution as amended by the SC & ST(Amendment) Act, 1976, which is later found tobe false. Therefore, the plea of promissoryestoppel or equity have no application. Whenit is found to be case of fraud played by theconcerned, no sympathy and equitableconsiderations can come to his rescue. Northe plea of estoppel is germane to thebeneficial constitutional concessions andopportunities given to the genuine tribes orcastes. Courts would be circumspect and varyin considering such cases.”20.From the aforesaid discussion and on a meticulousappreciation of the material evidence, I am of the considered viewthat the petitioner belongs only to Hindu Boyar community and doesnot belong to Bandi (SC) community, as claimed by him and therespondent has considered all aspects of the matter, including thefundamental right of the petitioner under Article 14 of theConstitution of India, while passing the order dated 31.12.2003 whichis of speaking nature, giving therein, cogent and convincing reasonsin rejecting the case of the petitioner in issuing Bandi (SC)community certificate to his son. In view of the above findings and the rulings of the SupremeCourt referred to above in the context of the case on hand, I find novalid reason to interfere with the order of the respondent and assuch, it is upheld and accordingly, the writ petition stands failedand is, therefore, dismissed without any order as to costs.Consequently, the connected W.P.M.P. is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarcad https://hcservices.ecourts.gov.in/hcservices/ ToThe Revenue Divisional OfficerNamakkalNamakkal District+1cc to Mr.T.Karunakaran,Advocate Sr 6510+1cc to Govt. Pleader Sr 6660TEJ (CO)kk/5.2.W.P. No.14210 of 2004