IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:08.09.2017 Coram THE HONOURABLE Mr. JUSTICE M.VENUGOPAL AND THE HONOURABLE Mr. JUSTICE P.D.AUDIKESAVALU W.P.No.24214 of 2017 K.Dharmalingam .. Petitioner Vs.
The Sub Collector, Tirupattur, Vellore District. ..Respondent Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus directing the respondent to issue community certificate to the children of the Petitioner viz., 1) D.Priyanka and 2)D.Ramkumar, that they belong to “Kurumans (ST) Community” based upon the community certificate already issued to the Petitioner and proceedings of the District Level Vigilance Committee, Vellore passed in favour of the Petitioner's sister's son Thirumoorthy in Proceedings No.Na.Ka.Ke5/34625/2006 dated 02.05.2007.
For Petitioner : Mr.V.Ilangovan For Respondent : Mr.M.Elumalai Government Pleader O R D E R [Order of the Court was made by M.VENUGOPAL, J.] Heard the Learned Counsel for the Petitioner and Mr.M.Elumalai, Learned Government Advocate accepts notice on behalf of the Respondent. By consent, the Writ Petition itself is taken up for final disposal.
2. According to the Petitioner, he is a native of Kathirmangalam Village, Tirupattur Taluk, Vellore District. He belongs to 'Kurumans Community' which is notified as 'Scheduled Tribe Community' as per the Constitution (Scheduled Tribes) Order, 1950 as amended by the Scheduled Tribes Orders (Amendment) Act, 1976.
3. The specific case of the Petitioner is that he is working as a Supervisor, Ship Building Industries, Cochin and obtained a Community Certificate from the Learned Judicial Magistrate No.1, Tirupattur on 09.03.1989 stating that he belongs to Kurumans (ST) Community. Further, his father's own sister's son Thirumoorthy's Community Certificate dated 02.05.2007 verified by the Three Member District Level Vigilance Committee, Vellore, who gave a report that he belongs to 'Kurumans (ST) Community'.
4. It transpires that the Petitioner filed Application before the Respondent on 10.12.2015 seeking issuance of Community Certificate to his daughter and son viz., D.Priyanka and D.RamKumar to the effect that they belong to Kurumans (ST) Community and together with the Application, he had enclosed the following documents:
1. My Community Certificate
2. District Committee report of my sister's son Thirumoorthy.
3. Family Tree Certificate issued by Tahsildar, Tirupattur.
4. Sworn in affidavit of Thirumoorthy.
5. Sale Deed.
6. My sworn in affidavit.
7. Birth certificate of my children.
5. It appears that till date no order has been passed by the Respondent and no enquiry was conducted till date.
6. At this stage, the Learned Counsel for the Petitioner takes a plea that once father is possessing a valid Community Certificate, children are entitled to obtain the same from the Respondent, by applying the ratio laid down in the decision of the Hon'ble Supreme Court reported in (2005) 12 SCC 248 [State of Bihar V. Sumit Anand]. Therefore, the Respondent is bound to issue a Community Certificate. But, the grievance of the Petitioner is that the Respondent has not passed any order on his Application dated 10.12.2015.
7. In effect, the pith and substance of the contention advanced on behalf of the Petitioner is that once his blood relatives Community Certificate is certified to be a genuine, the Respondent ought to have issued Community Certificate to his children that they belong to Kurumans (ST) Community.
8. In response, the Learned Government Advocate for the Respondent informs this Court that within a period of two weeks, the Respondent/Sub Collector, Tirupattur, Vellore District will pass necessary orders based on the Application of the Petitioner dated 10.12.2015.
9. In this connection, this Court worth recalls and recollects the decision of the Hon'ble Supreme Court in Anand V. Committee for Scrutiny and Verification of Tribe Claims and others reported in (2012) 1 Supreme Court Cases 113, at special page 120 & 121, wherein, in paragraph 22 & 23, it is held and laid down as follows:
“22.It is manifest from the afore-extracted paragraph that the genuineness of a caste claim has to be considered not only on a thorough examination of the documents submitted in support of the claim but also on the affinity test, which would include the anthropological and ethnological traits etc., of the applicant. However, it is neither feasible nor desirable to lay down an absolute rule, which could be applied mechanically to examine a caste claim. Nevertheless, we feel that the following broad parameters could be kept in view while dealing with a caste claim:
(i) While dealing with documentary evidence, greater reliance may be placed on pre- Independence documents because they furnish a higher degree of probative value to the declaration of status of a caste, as compared to post-Independence documents. In case the applicant is the first generation ever to attend school, the availability of any documentary evidence becomes difficult, but that ipso facto does not call for the rejection of his claim. In fact the mere fact that he is the first generation ever to attend school, some benefit of doubt in favour of the applicant may be given. Needless to add that in the event of a doubt on the credibility of a document, its veracity has to be tested on the basis of oral evidence, for which an opportunity has to be afforded to the applicant;
(ii) While applying the affinity test, which focuses on the ethnological connections with the scheduled tribe, a cautious approach has to be adopted. A few decades ago, when the tribes were somewhat immune to the cultural development happening around them, the affinity test could serve as a determinative factor. However, with the migrations, modernisation and contact with other communities, these communities tend to develop and adopt new traits which may not essentially match with the traditional characteristics of the tribe. Hence, affinity test may not be regarded as a litmus test for establishing the link of the applicant with a Scheduled Tribe. Nevertheless, the claim by an applicant that he is a part of a scheduled tribe and is entitled to the benefit extended to that tribe, cannot per se be disregarded on the ground that his present traits do not match his tribes' peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. Thus, the affinity test may be used to corroborate the documentary evidence and should not be the sole criteria to reject a claim.
23. Needless to add that the burden of proving the caste claim is upon the applicant. He has to produce all the requisite documents in support of his claim. The Caste Scrutiny Committee merely performs the role of verification of the claim and therefore, can only scrutinise the documents and material produced by the applicant. In case, the material produced by the applicant does not prove his claim, the Committee cannot gather evidence on its own to prove or disprove his claim.”
10. Considering the fact that the Petitioner's Application seeking for issuance of Community Certificate to his children viz., D.Priyanka and D.Ramkumar that they belong to 'Kurumans (ST) Community' are pending ever since 10.12.2015 and the same has not seen the light of the day, at this stage, this Court, without expressing any opinion on the merits of the matter, based on the reason of Fair Play, Equity, Good Conscience, simpliciter, directs the Respondent to look into the representation of the Petitioner dated 10.12.2015 praying for issuance of Kurumans (ST) Community Certificate to his children and to dispose of the same on merits and in accordance with Law, within a period of two weeks from the date of receipt of copy of this order. Liberty is granted to the Petitioner to furnish even a copy of the representation dated 10.12.2015 addressed to the Respondent, coupled with the documents 1 to 7 that he relies upon [as made mention of in para 4 of his Affidavit in the Writ Petition]. The Respondent shall pass necessary orders within the time frame determined by this Court, of course, in a fair, free, unbiased and dispassionate manner uninfluenced and untrammelled with any of the observations made by this Court in this Writ Petition. It is needless for this Court to make a pertinent mention that the Respondent shall adhere to the Principles of Natural Justice in providing necessary opportunity to the Petitioner to establish his claim. The Respondent, after complying with the order of this Court in disposing of the representation of the Petitioner dated 10.12.2015 within the time determined by this Court, shall sent a Report of Compliance addressed to the Registrar (Judicial) of this Court.
11. With the aforesaid observation and direction, the Writ Petition is disposed of. No costs.
(M.V., J.) (P.D.A., J.) 08.09.2017 Speaking Order Index :Yes / No Internet :Yes / No Sgl To
1. The Sub Collector, Tirupattur, Vellore District.
2. The Registrar (Judicial) High Court, Madras.
(For information and necessary follow up action) M.VENUGOPAL, J.
and P.D.AUDIKESAVALU, J.
Sgl W.P.No.24214 of 2017 08.09.2017