IN THE SUPREME COURT OF INDIA
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CIVIL
APPELLATE JURISDICTION
CIVIL
APPEAL NO. 6106 OF 2017
M/s
DARVELL INVESTMENT AND
LEASING (INDIA) PVT. LTD. AND OTHERS …
Appellant(s)
VERSUS
THE STATE OF WEST BENGAL
AND OTHERS …
Respondent(s)
JUDGMENT
RAJESH BINDAL, J.
1.
The judgment1 of the Division Bench
of High Court2 is under challenge in the present appeal. Vide aforesaid
judgment, the order3 passed by the Single Judge was upheld.
2.
The issue in the present appeal
pertains to cancellation of caste certificate issued to respondent No. 15.
SET
OF FACTS
3.
Late-Ramanand Baraik sold 2.11 acres
of land vide registered sale deeds dated 30.08.1983 to one Sanjay Gupta and two
others. It was mutated in the name of the purchasers. Between 1980 and 1983,
late-Ramanand Baraik sold more than ten acres of land to different persons. He
was working as a driver with the Corporation4. He was appointed as such on
01.01.1973 and was terminated from service w.e.f. 30.11.1987. As per the record
with his employer, he belonged to general category. Ramanand passed away in the
year 1991.
4.
On an application filed by
respondent No. 15 son of late Ramanand Baraik, the concerned SDO5 on 23.04.1993
issued a Caste Certificate of Scheduled Tribe in his favour showing him to be
belonging to ‘Chik Baraik’.
5.
On 08.02.2000, respondent No. 15
purchased 0.07 acres of land for the purpose of construction of a dwelling
house for a total sale consideration of ₹93,950/-. It is claimed that the
aforesaid land was sold by respondent No. 15 on 01.03.2000. At that stage, he
claimed himself to be belonging to general category and no permission as such
was taken for sale of the land under Sections 14B and 14C of the 1955 Act6.
Seventeen years after registration of the sale deeds by late Ramanand Baraik in
favour of Sanjay Gupta and others on 30.08.1983 and about ten years after his
death, a complaint was filed by Bishwanath Roy and another person claiming that
the aforesaid land had been sold in violation of Section 14B and 14 C of the
1955 Act. Notices were issued to the complainant as well as Sanjay Gupta on
29.06.2000 on the subject ‘Alienation of S/T land’.
6.
There are affidavits sworn by
respondent No. 15 dated 06.07.2000 and 02.08.2000 stating that he belongs to
general caste which is ‘Tanti’. He further specifically stated that he does not
belong to Scheduled Tribes community and that there is no bar for selling his
land. Subsequent thereto, on 07.02.2001, respondents No. 15 and 16 sold land to
one Zainul Abdin. It is stated in the aforesaid sale-deed that 0.26 acres of
land was purchased by late Ramanand Baraik, which was inherited by them being
the only legal heir, after the death of Ramanand Baraik in the year 1991. Out
of that, they sold 0.07 acres of land in favour of one Parmeshwar Rao Nalla and
one Zainul Abdin. At that stage, no permission was taken for sale of the land
under Sections 14B and 14C the 1955 Act, even though it is claimed that
respondent No. 15 had been issued a certificate of his belonging to S.T.
Category on 23.04.1993.
6.1 The District Land and Land Reforms Officer,
Darjeeling vide memo dated 21.05.2001 informed the Block Land & Land
Reforms Officer, with reference to his memo No. 816 dated 29.08.2000, on the
subject ‘Alienation of S/T land’ that the complaint filed by Bishwanath Roy was
dismissed. It referred to the affidavit submitted by respondent No. 15.
7.
On 22.01.2004, respondents No. 15 to
18 filed an application under Section 14E of the 1955 Act challenging the sale
deeds dated 30.08.1983 executed in favour of Sanjay Gupta and others by his
late father. This was despite the fact that earlier similar complaint filed by
Bishwanath challenging the aforesaid sale deed had already been dismissed.
8.
The appellants No. 1 and 2 purchased
the land in dispute from Sanjay Gupta and others on 24.11.2004. Vide order
dated 29.11.2004, the Revenue Officer empowered under Section 14E of the 1955
Act directed cancellation of three sale deeds dated 30.08.1983 in favour of
Sanjay Gupta and others. A perusal of the order shows that notice was also
issued to them, though prior to that the land had been purchased by appellants
No. 1 and 2 on 24.11.2004. The order was passed despite the fact that vide
earlier order dated 21.05.2001, similar complaint had already been dismissed.
9.
On 10.04.2005, the Director of
appellants No. 1 and 2 wrote a letter to the SDO seeking enquiry into the caste
certificate issued in favour of respondent No. 15. It was followed by another
letter dated 12.05.2005.
10. Appellants No. 1 and 2 addressed a letter
to the District Magistrate & District Collector, Darjeeling on 28.11.2006
for cancelling the caste certificate wrongly issued in favour of respondent No.
15 and also for restoration of the title of the property in their favour. It
was followed by another letter dated 04.05.2007.
11. Having come to know that respondent No. 15
had executed number of sale deeds claiming himself to be belonging to general
category and further that the caste certificate was obtained by him inter alia
by playing fraud, the appellants No. 1 and 2 through their attorney filed an
application for cancellation of the caste certificate issued in favour of
respondent No. 15 on 29.03.2012 before S.D.O., Siliguri. The proceedings were
initiated. The certificate issuing authority vide order dated 06.07.2012
cancelled the caste certificate issued in favour of respondent No. 15. The
order noticed that not only respondent No. 15 but even his father had sold land
on number of occasions to different persons as general category. It also
referred to the affidavits sworn by him that he does not belong to Scheduled
Tribes category. When respondent No. 15 appeared before the authority, he
clearly claimed that his caste certificate was lying with his advocate.
However, later on he submitted that he lost the same for which no FIR was
lodged. No material was produced on the basis of which such a certificate could
be issued. Even in the office record, nothing was found which could justify
issuance of caste certificate in favour of respondent No. 15.
12. On 26.07.2012, appellants No. 1 and 2 filed
application for mutation of the land in their favour as the caste certificate
issued in favour of respondent No. 15 already stood cancelled.
13. Aggrieved against the aforesaid order of
cancellation of caste certificate dated 06.07.2012, respondent No. 15 filed
appeal before the District Magistrate. The said appeal was dismissed by the
Additional District Magistrate (Appellate Authority) vide order dated
14.01.2013. The order refers to the report from S.D.O., Siliguri that
respondent No. 15 had failed to submit any supporting document to prove his
claim of belonging to ‘Chik Baraik’ community; he had sworn two affidavits
claiming himself to be belonging to general category; his father late Ramanand
Baraik, his brother and he himself had sold land to various persons claiming to
be belonging to general category without seeking permission. Even his father
late Ramanand Baraik was also not a Scheduled Tribe, hence his son could not be.
Copy of the aforesaid order was forwarded by the Additional District Magistrate
vide memo dated 21.01.2013 to the District Welfare Officer. The District
Magistrate also directed the District Welfare Officer to lodge FIR against
respondent No. 15 on the ground of committing fraud.
14. Vide letter dated 06.03.2013, Commissioner,
Jalpaiguri Division wrote to the Commissioner of Police, Siliguri Police
Commissionerate to advise respondent No. 15 to file appeal against the order
dated 06.07.2012 cancelling his caste certificate. It was then respondent No.
15 filed appeal against the orders dated 06.07.2012 and 14.01.2013 before the
Committee7.
15. The appellants filed Writ Petition8
challenging the memo dated 06.03.2013 addressed by the Commissioner, Jalpaiguri
Division to the Commissioner of Police, Siliguri. The aforesaid writ petition
was disposed of on 25.04.2013 noticing the stand of the State that
communication dated 06.03.2013, which was impugned in the writ petition, had
been withdrawn by the Commissioner, Jalpaiguri Division on 18.04.2013. It was
left open to the parties to avail their appropriate remedy.
16. Appellants No. 1 and 2 sold 1.76 acres of
land in favour of appellants No. 3 and 4 on 17.09.2013. The land stood mutated
in the names of the appellants.
17. Having come to know that the respondent No.
15 had approached the Committee raising grievance against cancellation of his
caste certificate in his favour, appellants No.1 and 2 submitted a letter on
05.11.2013 giving detailed facts and also praying for an opportunity of
hearing.
18. Vide order dated 23.12.2013, the Committee
opined that the caste certificate issued in favour of respondent No. 15 was
cancelled inappropriately. Hence, the order was revoked and the matter was
remitted back for consideration afresh.
19. The
aforesaid order was
challenged by the
appellants before the High Court by filing Writ Petition9. The writ
petition was allowed vide order dated 28.01.2014. The order passed by the Committee
was set aside. The Committee was directed to decide on the point of
jurisdiction first and then hear all the parties concerned before passing fresh
order.
20. Vide order dated 28.3.2014, the Committee
opined that it is always empowered to deal with appeal with reference to
verification of the caste certificate issued in favour of respondent No. 15.
The aforesaid order was challenged by the appellants by filing a Writ Petition
which was dismissed vide order dated 25.11.2014. The order passed by the Single
Bench was challenged by the appellants by filing Intra-Court Appeal. The High
Court vide impugned judgment dismissed the appeal opining that the Committee has
jurisdiction to enquire into the complaints of cancellation of illegal Caste
Certificate.
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21. Dr. A. M. Singhvi, learned senior counsel
appearing for the appellants while narrating the facts, as noticed above,
submitted that the impugned judgment of the High Court is illegal, whereby it
was held that the Committee had power to hear an appeal regarding cancellation
of caste certificate. The amendment in Section 8A of the 1994 Act10, carried
out vide notification dated 15.09.2017, cannot be said to be retrospective as
the Legislature has not expressed that intention. Even the objects as mentioned
in the Bills for carrying out the amendment do not suggest the same. He further
submitted that the conduct of respondents No. 15 to 18 also needs to be
examined by this Court to see their bona fide. Number of sale deeds had been
executed by late Ramanand Baraik during his life time and thereafter by his
sons-respondents No. 15 and 16 without seeking permission from the competent
authority, in case the claim was that they belong to Scheduled Tribes
community. The sale deeds were executed from the year 1983 onwards. It is only
the sale deeds in question for which the issues are sought to be raised.
22. He further submitted that even as per the
certificate issued by the Corporation, father of respondent No. 15 when entered
into Government service as a driver of the Corporation, claiming himself to be
belonging to general category. He never claimed that he was Scheduled Tribe.
Once the father was not Scheduled Tribe, his legal heirs cannot possibly be.
Even respondent No. 15 had sworn two affidavits dated 06.07.2000 and 02.08.2000
specifically stating that he belongs to General Category of ‘Tanti’ and does
not belong to any Scheduled Tribe community. He even got the sale deed
registered on 01.03.2000 without taking any permission. Further, one Bishwanath
Roy made a complaint regarding the sale deeds in question, which was dismissed
on 29.08.2000. However, on enquiry and finding that respondent No. 15 had
already sworn affidavits that he belongs to general category, the same was
closed. Subsequent thereto, respondent No. 15 sought to re-open the issue. He
could not even produce his original caste certificate when the proceedings were
conducted by certificate issuing authority. No record was found even in the
office. Once the family had been executing number of sale deeds claiming
themselves to be of general category, the issue sought to be raised with
reference to the sale deeds in question shows some oblique motive.
23. He further submitted that seeing the
chequered history of the case, which is hanging fire for the last 19 years, the
issue needs to be closed as respondent No. 15 does not deserve any relief. The
matter should not be sent back to either of the authorities as respondent No. 15 is only bent upon to harass the
appellants who have not been able to raise construction though the property was
purchased more than 19 years ago. On other portions of land sold by respondent
No. 15, construction has already been raised. It was further submitted that the
idea of enactment of the protective legislation of seeking permission for sale
of land belonging to Scheduled Castes/Scheduled Tribes is only to save their
property so that they are not forced to sell the same. But in the case in hand
as the facts suggest, predecessor-in-interest of respondents No. 15 and 16 was
owning huge property which he sold from time to time.
24. On the other hand, learned counsel for
respondents No. 15 to 18 submitted that there is no error in the order passed
by the High Court. Considering the amendment carried out vide Act No. XXXV of 201711
in the 1994 Act, the Committee has power to examine the issue, even in the case
of cancellation of caste certificate. The amendment carried out is
retrospective as it is clarificatory in nature. Even if the caste certificate
in the case in hand was cancelled prior to the notification of the amendment in
Section 8A of the 1994 Act, the issue can still be examined by the Committee.
Now it has power to deal with the same. Even otherwise, respondents No. 15 to
18 could not be left remediless. If they could not challenge the cancellation
of caste certificate before the Committee or any other authority, they could
certainly avail their remedy by filing a writ petition. He further submitted
that presently respondents No. 15 to 18 are carrying on minimal work and are
hardly able to make their both ends meet.
25. Heard learned counsel for the parties and
perused the relevant referred record.
26. The primary issue in the case in hand is
with reference to caste certificate issued to the respondent No. 15. A
certificate was issued in his favour on 23.04.1993 declaring him as belonging
to ‘Chik Baraik’, a Scheduled Tribe. It is inter-related with the sale
transactions of the land. In case, respondent No. 15 belongs to Scheduled Tribe
community, permission is required for selling the land. In case, he is not, no
permission is required. In the case in hand, the sale deed which is subject
matter of dispute was executed by late Ramanand Baraik, father of respondent
No. 15 in favour of Sanjay Gupta and two others on 30.08.1983.
27. To appreciate the arguments of learned
counsel for the parties, we deem it appropriate to extract the details of
various sale deeds executed by late Ramanand Baraik, father of respondent No.
15. These are detailed out in paragraph No. 8 of the memo dated 03.04.2013
issued by District Magistrate. The same are extracted below:
28. At the time of hearing, it remained
undisputed that the only sale deed dated 30.08.1983 executed by late Ramanand
Baraik in favour of Sanjay Gupta and two others is subject matter of dispute as
on the same ground other sale transactions entered into by late Ramanand Baraik
are not in question in any other case.
29. The fact remains that the sale deeds in
question were executed by late Ramanand Baraik. He was engaged as a driver by
the Corporation on 01.01.1973. His services were terminated w.e.f. 30.11.1987.
As per the record with his employer, he belonged to general category. A
certificate to that extent issued by the Corporation has been annexed showing
that late Ramanand Baraik was from general category as per the record of the
Corporation. Meaning thereby, till his termination from service on 30.11.1987,
he never claimed even with his employer that he belonged to any reserved category,
especially Scheduled Tribe, as is sought to be claimed by respondent No. 15.
30. The sale deeds were sought to be challenged
by respondents No. 15 and 16 by moving an application dated 22.01.2004 before
Revenue Officer, Daknikata through Block Land & Land Reforms Officer,
Matigara. It was claimed that they belonged to Scheduled Tribe community and
the sale transaction was in violation of Sections 14B and 14C of the 1955 Act.
Notice was issued to the vendees-Sanjay Gupta and others. Revenue Officer, vide
order dated 29.11.2004, declared the sale deeds as null and void. The order was
impugned by the appellants No. 1 and 2 before the learned Civil Judge (Junior
Division), Siliguri under Section 14H of the 1955 Act because in the meanwhile
vide sale deeds dated 24.11.2004, Sanjay Gupta sold the land to appellants No.
1 and 2. Vide order dated 16.03.2005, the Civil Judge dismissed the
application. The order was further challenged in revision before District
Judge, Darjeeling who also dismissed the same vide order dated 23.02.2006.
31. Attorney of appellants No. 1 and 2 filed an
application dated 29.03.2012 before SDO, Siliguri for cancellation of Caste
Certificate issued in favour of respondent No. 15. He was granted number of
opportunities to submit his original Tribal Certificate and personally appear
along with documentary evidence. Initially, his stand was that the caste
certificate is lying with his Advocate, hence, he may be granted some time to
produce the same. Thereafter, the stand taken was that his original caste
certificate has been lost. However, undisputedly no complaint or FIR was
lodged. The fact remained that he was not able to produce any material or the
original caste certificate in his favour. The aforesaid application for cancellation
of the caste certificate was disposed of inter alia with the observation that
no supporting documents were found in the record, on the basis of which caste
certificate was issued in favour of respondent No. 15; father of respondent No.
15, namely, Ramanand Baraik was serving as a Driver in the Corporation as
general category employee; respondent No. 15 had sworn two affidavits dated
06.07.2000 before Notary Public, Siliguri and 02.08.2000 before Executive
Magistrate, Siliguri stating that he belonged to general caste community and
not Scheduled Tribe. The signatures on the receipt register supply copy of the
Caste.
32. Respondent No. 15 sold the property vide
sale deed No. I/1039/2000 dated 01.03.2000 as a person belonging to general
category and subsequently, respondents No. 15 and 16 sold another inherited
property vide sale deed No. I/575/2001 dated 07.02.2001. No permission was
sought while executing the aforesaid sale deeds. Late Ramanand Baraik, father
of respondent No. 15 had sold more than ten acres of land between 1980 and 1983
claiming himself to be of general category. A complaint was filed regarding
sale of the land in question, however, the same was closed by District Land and
Land Revenue Officer vide order memo dated 21.05.2001 holding that respondent
No.
33. In view of the aforesaid facts, SDO,
Siliguri cancelled the caste certificate issued in favour of respondent No. 15
on 06.07.2012. The aforesaid order was challenged by respondent No. 15 by
filing appeal before the District Magistrate (Appellate Authority). The order
of cancellation of caste certificate was confirmed by the Appellate Authority vide
order dated 14.01.2013. Thereafter, respondent No. 15 moved an application
before the Committee. Vide order dated 23.12.2013, the Committee set aside the
order dated 06.07.2012 passed by the SDO cancelling the Caste Certificate
issued in favour of respondent No. 15. The Committee directed the Director,
Cultural Research Institute to conduct an enquiry and to verify the caste
status of respondent No. 15. On receipt of the report dated 18.04.2013, the
Committee was of the view that respondent No. 15 belongs to ‘Chik Baraik’ of
Scheduled Tribe community. Even the Committee observed that the original caste
certificate issued to respondent No. 15 was not produced before SDO. Finally,
the Committee opined that cancellation of caste certificate was inappropriate,
hence, the order was set aside and the matter was remitted back to the SDO
concerned for passing fresh order in the light of the observations made by the
Committee.
34. Aggrieved against the aforesaid order, the
appellants filed Writ Petition in the High Court raising the issue of
jurisdiction of the Committee to entertain the application filed by respondent
No. 15. Various other grounds were also raised including that the Committee
consisted of many members, however, the Chairman himself had issued the order.
The Single Bench of the High Court finding merit in the submissions made by
appellants No. 1 and 2 set aside the order of the Committee and remitted the
matter back for fresh consideration leaving it open to them to raise the issue
regarding jurisdiction of the Committee.
35. Thereafter, vide order dated 02.01.2014,
the Committee decided that it had jurisdiction to entertain the application
filed by respondent No. 15. The order was communicated to the parties vide
letter dated
28.03.2014.
36. The aforesaid order dated 02.01.2014, as
communicated to the parties vide memo dated 28.3.2014, was challenged by the
appellants before the High Court. Single Bench of the High Court, vide order
dated 25.11.2014 found merit in the arguments raised on behalf of respondent
No. 15 and opined that the Committee had the jurisdiction to entertain the
issue regarding his social status.
37. The aforesaid order passed by the Single
Bench was challenged by the appellants by filing appeal. The Division Bench,
vide impugned order dated 30.03.2015 had upheld the order passed by the Single
Judge holding that the Committee had jurisdiction to enquire into the
complaints of illegal cancellation of Caste Certificate.
38. As far as the argument regarding
jurisdiction of the Committee is concerned, in our opinion, the issue is not
required to be gone into in detail at this stage, as the High Court opined that
the Committee had jurisdiction to entertain even the issue regarding
cancellation of the Caste Certificate in terms of Section 8A of the 1994
Act. Though it has not
specifically been mentioned in the Section,
however,
vide amendment carried out in the 1994 Act w.e.f. 15.09.2017, clause (c) in
Section 8A was substituted to include even the cases regarding cancellation of
caste certificate. The only issue required to be considered may be as to
whether this amendment should be considered to be retrospective or retroactive.
However, the fact remains that it being a procedural law and the matter being
still pending before the Committee to be decided on merits after it had opined
that the Committee had jurisdiction to deal with even the cases of caste
certificate, it could very well be examined by the Committee at this stage. In
the view of that matter, it should have been sent back to the Committee only.
39. However, we do not deem it appropriate to
follow that route considering the conduct of the private respondents. The fact
which remained undisputed even at the time of hearing is that late father of
respondent No. 15 who was in service of the Corporation, never claimed himself
to be a person belonging to Scheduled Tribe community. During his life time, he
had sold about ten acres of land between 1980 and 1983 including the sale deed
in question executed in favour of Sanjay Gupta and two others. None of those
sale transactions have been challenged by him during his life time or by
respondents No. 15 and 16, after his death claiming that the father belonged to
Scheduled Tribe community. In fact, there was no certificate issued to that
extent in his favour. It was the father who had executed the sale deeds. It
also came on record that respondent No. 15 had executed the sale deeds I-1039
dated 01.03.2000 and I-575 dated 07.02.2001. Those were also executed without
seeking any permission from any authority. There is no challenge to that.
Earlier to that, a complaint was filed for cancellation of the sale deed in
question which was closed by the District Magistrate, vide order dated 29.08.2000
holding that respondent No. 15 did not belong to Scheduled Tribe community, as
was even the status mentioned in two affidavits dated 06.07.2000 and 02.08.2000
sworn by him before Notary Public and Executive Magistrate, respectively.
40. There is nothing produced on record to show
that late Ramanand Baraik, father of respondent No. 15 was ever issued any
certificate showing him belonging to Scheduled Tribe community. The sale deeds
in question were registered on 30.08.1983. It shows that on the basis of a
certificate, which was issued subsequently in favour of respondent No. 15, he
sought to challenge one of the various sale deeds executed by his late father
Ramanand Baraik during his life time. Even at the time of death of late Ramanand
Baraik, father of respondent No. 15, in the year 1991, respondent No. 15 was
more than 18 years of age. The sale deeds in question in isolation were sought
to be challenged only in the year 2004, even though the certificate of
Scheduled Tribe community was issued in favour of respondent No. 15 in the year
1993.
41. Considering the aforesaid facts, in our
opinion, the present appeal deserves to be allowed. Ordered accordingly. The
judgment dated 30.03.2015 passed by the High Court is set aside. It will be an
exercise in futility to remit the matter back to any authority for examination
as we do not find any merit in the claim of respondent No. 15.
…..……………..J
(VIKRAM
NATH)
…………………..J
(RAJESH
BINDAL)
New Delhi
December 08, 2023.
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