Karnataka High Court
B Guruprasad vs Assistant Commissioner on 28 May, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on :24.04.2024
Pronounced on :28.05.2024 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.8039 OF 2021 (GM - CC)
BETWEEN:
B. GURUPRASAD
S/O OF H.D.BASAVARAJU
AGED ABOUT 39 YEARS
RESIDENT OF NO.1138 E/A
'PADMA', 3RD 'B' MAIN ROAD,
VIJAYANAGAR 2ND STAGE
AMPINAGARA
BENGALURU - 560 104.
... PETITIONER
(BY SMT.SADHANA DESAI, ADVOCATE)
AND:
1. ASSISTANT COMMISSIONER
BENGALURU NORTH SUB-DIVISION
2ND FLOOR, KANDAYA BHAVANA
BENGALURU - 560 009.
2. THE THASILDAR
GRADE-2
2
BENGALURU NORTH TALUK
KANDAYA BHAVANA
K.G.ROAD
BENGALURU - 560 009.
3. THE SCHEDULED TRIBE WELFARE AND
APPELLATE AUTHORITY
REPRESENTED BY ITS DIRECTOR
1ST FLOOR, LOTUS TOWERS
RACE COURSE ROAD,
BENGALURU - 560 001.
4. THE DISTRICT CASTE
VERIFICATION COMMITTEE
REPRESENTED BY ITS
CHAIRMAN AND DEPUTY COMMISSIONER
BENGALURU URBAN DISTRICT
BENGALURU - 560 009.
5. SMT. GAYATHRI M.,
W/O LATE NAGES NAIDU M.,
AGED ABOUT 46 YEARS,
R/O NO.34/1, 8TH CROSS
K.P.AGRAHARA, BINNYPETE
BENGALURU - 560 023.
... RESPONDENTS
(BY SRI C.JAGADISH, ADVOCATE FOR R-1 TO R-4;
SRI R.B.SADASIVAPPA, ADVOCATE FOR R-5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
PROCEEDINGS BEFORE THE FIRST RESPONDENT ANNEXURE-G AS
THE R-1 IS CORAM NON JUDICE.
3
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 24.04.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner is before this Court calling in question entire
proceedings before the 1st respondent/Assistant Commissioner,
Bengaluru Sub-Division, Bengaluru pending in file No.MSC/CR/
113/20-21 as coram non-judice.
2. Heard Smt. Sadhana Desai, learned counsel appearing for
the petitioner, Sri C.Jagadish, learned counsel appearing for
respondents 1 to 4 and Sri R.B. Sadasivappa, learned counsel
appearing for respondent No.5.
3. The facts adumbrated are as follows:-
The issue revolves round the 5th respondent and her caste
certificate. On 30-06-2015 a caste certificate is issued by the
Tahsildar, Bengaluru North Taluk on an application filed by the 5th
respondent that she belongs to Nayaka community, a Scheduled
Tribe. On the strength of the caste certificate, it appears that the
5th respondent contested election to Councillor of Bruhat Bengaluru
Mahanagara Palike ('BBMP' for short). On 05-09-2015, the
petitioner registers a complaint before the Directorate of Civil
Rights Enforcement complaining that the 5th respondent had
obtained a Scheduled Tribe certificate fraudulently. The said
complaint was transferred by the Directorate of Civil Rights
Enforcement to the District Caste Verification Committee, Bangalore
Urban District (hereinafter referred to as 'the Committee' for short),
the 4th respondent, Chairman of which is the Deputy Commissioner.
After long drawn proceedings, the Committee cancels the caste
certificate issued in favour of the 5th respondent on 26-06-2018.
4. The 5th respondent prefers an appeal before the 3rd
respondent/ Scheduled Tribe Welfare and Appellate Authority
('Appellate Authority' for short), which by its order dated
15-09-2018 sets aside the order passed by the Committee dated
26-06-2018 and remits the matter back to the Committee. After the
said remand, the Committee upholds the caste certificate issued to
the 5th respondent depicting her to be belonging to Nayaka
community, a Scheduled Tribe. This order is challenged by the
petitioner before the Appellate Authority. The Appellate Authority
in terms of its order dated 19-09-2019 sets aside the order of the
Committee directing the Committee to furnish reports upon which
the earlier order was passed to both the parties and decide the
matter afresh. After the said remand by the Appellate Authority, the
Committee by its order dated 05-08-2020 directs that the complaint
could not be entertained before the Committee, as the caste
certificate was issued for election purpose which was not covered
under the Karnataka Scheduled Castes, Scheduled Tribes and Other
Backward Classes (Reservation of Appointment Etc.) Act, 1990 and
the Rules framed thereunder in the year 1992 (hereinafter referred
to as 'the Act' and 'the Rules' for short). The complaint thus comes
to be dismissed. This order has become final.
5. The 2nd respondent/Tahsildar, in terms of order of the
Committee dated 26-06-2018, cancels the caste certificate issued
to the 5th respondent in terms of his order dated 23-09-2020. The
5th respondent challenges the said order of the Tahsildar by filing an
appeal before the 1st respondent/Assistant Commissioner. These
proceedings are challenged by the petitioner in this writ petition.
6. The learned counsel appearing for the petitioner
Smt. Sadhana Desai would vehemently contend that the
proceedings before the 1st respondent/Assistant Commissioner are
coram non-judice, as he has no authority to consider the appeal. It
is her further submission that the caste certificate issued in favour
of the 5th respondent comes to be cancelled by the Tahsildar not on
independent inquiry conducted by him but only following the order
of the Deputy Commissioner and Chairman of the Committee dated
26-06-2018. Therefore, if it is following the order of the Deputy
Commissioner, the Assistant Commissioner, a subordinate officer
cannot and will not sit as an Appellate Authority over the order of a
superior officer. It is her submission that it is coram non-judice.
Elaborating the said submission, the learned counsel would contend
that the appeal is preferred under Section 4B of the Act as against
the order of the Tahsildar passed under Section 4A. The Tahsildar
has, in fact, not exercised his jurisdiction under Section 4A, but
only implemented the order of the Committee. Therefore, the
appeal under Section 4B is unavailable to the 5th respondent, as the
Tahsildar has no jurisdiction to cancel the caste certificate. He can
only accept an application, grant the caste certificate or reject the
application. He has no power to cancel a caste certificate already
issued.
7. The learned counsel Sri C.Jagadish representing
respondents 1 to 4 would toe the lines of the petitioner in
contending that the Tahsildar had only implemented the order
passed by the Committee. Therefore, the appeal would not lie to
the 1st respondent/Assistant Commissioner. It was appropriately
directed to be considered by the Committee. The Committee
erroneously holds that it has no jurisdiction to consider the caste
certificate issued for election purposes under the Act. The learned
counsel would submit that the issue as to whether the Committee
has jurisdiction to consider caste certificate issued for election
purposes is completely answered holding that the Committee has
jurisdiction by the Apex Court in the case of BHARATI REDDY v.
STATE OF KARNATAKA1. The learned counsel submits that since
the 5th respondent has not challenged the order of the Committee
which sets aside the order of the Tahsildar dated 30-06-2015, the
plea of the 5th respondent cannot be considered by this Court.
8. The learned counsel for the 5th respondent would though at
the initial stage vehemently refutes these submissions, but would
boil down his submissions to the fact of grant of liberty to challenge
the order passed in the year 05-08-2020 by the Committee
declining to entertain the petition before it on the score that the
caste certificate issued for election purposes is not covered under
the Act. He would contend that the caste certificate was
appropriately granted on genuine documents submitted and it was
not a fraud played by the 5th respondent. He would further contend
that the 5th respondent does belong to Scheduled Tribe - Nayaka
community and there has been no determination by any Authority
appropriately. Therefore, liberty be reserved to the 5th respondent
to knock at the doors of the Appropriate Authority is his submission.
(2018) 6 SCC 162
9. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
10. To resolve the conundrum of jugglery of orders and
jurisdiction in the case at hand, it becomes germane to notice the
Act and the Rules. Section 4A of the Act deals with issuance of
caste certificate and income and caste certificate. Section 4B deals
appeal against the order under Section 4A. Section 4D deals with
appeal against an order passed by the Committee. These sections
read as follows:
4A. Issue of caste certificate and income and caste
certificate.- (1) Any candidate or his parent or guardian
belonging to the Scheduled Castes or the Scheduled Tribes may,
in order to claim benefit of reservation under section 4, either
for appointment to any service or post or for admission to a
course of study in a university or any educational institution,
make an application to the Tahasildar in such form and in such
manner as may be prescribed for issue of a caste certificate.
(2) Any candidate or his parent or guardian belonging to
other Backward Classes may, in order to claim benefit of
reservation under section 4 either for appointment to any
service or post or for admission to a course of study in a
university or any educational Institution, make an application to
the Tahasildar in such form and in such manner as may be
prescribed for issue of an income and caste certificate.
(3) The Tahasildar may, on receipt of an application under
sub-section (1) or (2), and after holding such enquiry as he
deems fit and satisfying himself regarding the genuineness of
the claim made by applicant pass an order issuing a caste
certificate or, as the case may be, an income and caste
certificate in such form as may be prescribed, or rejecting the
application.
(4) The Tahasildar shall follow such procedure as may be
prescribed before passing the order under sub-section (3).
(5) The burden of proving that the candidate or his parent
or guardian belongs to Scheduled Castes, Scheduled Tribes or
other Backward Classes shall be on the applicant.
4B. Appeal against order under section 4A.- (1) Any
person aggrieved by an order of the Tahasildar under section 4A
may, within thirty days from the date of receipt of the order
prefer an appeal to Assistant Commissioner of the revenue sub-
division.
(2) The Assistant Commissioner of the revenue sub-
division may after giving both parties an opportunity of being
heard pass orders allowing or dismissing the appeal and in
appropriate cases directing issue of a caste certificate or as the
case may be, an income and caste certificate to the applicant.
... ... ...
4D. Appeal.- (1) Any person aggrieved by an order
passed by the Verification Committee under section 4C may,
within thirty days from the date of receipt of the order appeal,-
(i) to the Commissioner/Director, Social Welfare in
case the verification certificate relates to a person
belonging to the Scheduled Castes;
(ii) to the Director, Tribal Welfare in case the
verification certificate relates to a person belonging
to the Scheduled Tribes;
(iii) to the Director, Backward classes Department, in
case the verification certificate relates to a person
belonging to other Backward Classes; in such form
and in such manner and on payment of such fee as
may be prescribed.
(2) The Appellate Authority shall after giving to both the
parties an opportunity of being heard pass such order in appeal
as it deems fit."
In exercise of the powers conferred under Section 13(1) of the Act,
Government has notified the Rules. Rule 2 deals with definitions.
Sub-rule (4) of Rule 2 defines 'Caste Verification Committee'
meaning a committee constituted under Rule 4. A 'Caste and
Income Verification Committee' is defined under sub-rule (5) of
Rule 2. The said sub-rules read as follows:
"4) "Caste verification Committee" means "a committee
and an Additional Committee constituted under Rule 4;
5) "Caste and Income Verification Committee" means "a
Committee and an Additional Committee constituted
under Rule 5;"
Rule 4 deals with constitution of 'Caste Verification Committee' and
reads as follows:
"4. Caste Verification Committee:- (1) There shall be a
committee called the Caste Verification Committee for each
district to verify the caste certificate issued in respect of the
persons belonging to Scheduled Castes and Scheduled Tribes.
The committee shall consist of the following members namely:-
(1) The Deputy Commissioner of the District who shall
be the Chairman;
(2) The Deputy Secretary (Administration) of the Zilla
Panchayat;
(3) The Tahsildar of Taluk;
(4) The District Social welfare officer who shall be the
Member Secretary.
Provided that the State Government may constitute an
additional Caste Verification Committee for any district to verify
the caste certificate issued in respect of the persons belonging
to Scheduled Castes or Scheduled Tribes which shall consist of
the following members, namely.
(i) An officer not below the rank of Chairman
Special Deputy Commissioner
appointed by the State Government.
(ii) The Assistant Commissioner of the Member
Sub-Division.
(iii) The Tahsildar of the Taluk. Member
(iv) The District of Social Welfare Officer Member
Rule 5 deals with constitution of 'Caste and Income Verification
Committee' and reads as follows:
"5. Caste and Income Verification Committee:- There
shall be a committee called a Caste and Income Verification
Committee in respect of each district to verify the caste and
income certificate issued in respect of the Other Backward
Classes. The committee shall consist of the following members,
namely.
(i) The Deputy Commissioner of the District who shall
be the Chairman;
(ii) The Deputy Secretary (Administration) of the Zilla
Panchayat;
(iii) The concerned Tahsildar of the Taluk;
(iv) The District Backward Classes and Minorities officer
who shall be the member secretary.
Provided that the State Government may constitute an
additional Caste and Income Verification Committee for any
district to verify the income and caste certificate issued in
respect of persons belonging to other Backward Classes, which
shall consist of the following members namely:
(i) An officer not below the rank of Chairman
Special Deputy Commissioner
appointed by the State
Government.
(ii) The Assistant Commissioner of Member
the Sub-Division.
(iii) The Tahsildar of the Taluk. Member
(iv) The District Backward Classes Member-Secretary"
and Minorities Officer
It is on the afore-quoted Act and the Rules, the issue in the lis
needs consideration.
11. The genesis of the problem is when the 5th respondent
secures a caste certificate as belonging to Scheduled Tribe -
Nayaka Community from the office of the Tahsildar by making an
application under the Act, it is the Tahsildar who is empowered to
accept the application, issue caste certificate or reject it. His role
ends there. A complaint is registered by the petitioner before the
Directorate of Civil Rights Enforcement alleging securing of false
caste certificate by the 5th respondent and as necessary the
Directorate refers the matter to the 4th respondent Committee to
enquire into the allegations made by the petitioner. The Committee
in terms of its proceedings dated 26-06-2018 sets aside the caste
certificate issued to the 5th respondent arriving at a conclusion that
it was based upon concocted documents. The 5th respondent
challenges the said order before the 3rd respondent/Appellate
Authority. After hearing the parties, the Appellate Authority on
15-09-2018 passes the following order:
"ORDER
The impugned order dated: 26.06.2018 vide No. passed
in No.G.SA.KA.A(Na)/japa/CR-112/2015-16 as per ANNEXURE-A
passed by the Respondent No.2 is hereby set aside. The matter
is remitted back to the Respondent No.2. The Respondent
no.2 is hereby directed to constitute the Committee
strictly in accordance with Rule 4 of the Karnataka
Scheduled Castes, Scheduled Tribes & Other Backward
Classes (Reservation of Appointments, etc.)Rules, 1993
and pass appropriate order in accordance with law, the
appellant and Respondent No.1 are directed to appear
before the Respondent No.2 on 29.09.2018 without
expecting any notice from the respondent No.2.
Thereafter, the Respondent No.2 is directed to pass
appropriate order within 45 days. All other contentions
of both the parties are kept open. It is made clear that
while passing the order all the Committee members
including the Chairman should sign the order.
This order is pronounced in the open Court on 15th day of
September 2018.
Sd/- 15/9/18
(Sangappa)
Appellate Authority and
Director,
Scheduled Tribal Welfare Department
Bangalore."
(Emphasis added)
The matter was remitted back to the 4th respondent/Committee.
The Committee again takes up the proceedings and after a long
drawn proceeding on 12-02-2019 passes the following order:
"No.GSKAA(NA)/JAPA/CR-112/15-16 Dated: 12.02.2019
ORDER
For the reasons stated above, we are resolved that
Smt.M.Gayathri, City Corporator, Ward No.122,
Kempapura Agrahara Ward, BBMP, Vijayanagara
Assembly Constituency, Bengaluru, is originally a Nayaka
Caste and the Caste Certificate dated 30.06.2015 issued
by the Tahasildar, Bengaluru North Taluk, in her favour as
a Nayaka Caste is in accordance with law.
(Order pronounced in the Open Court on this 12th day of
February 2019)."
(Emphasis added)
The order was that the caste certificate issued to the 5th respondent
is in accordance with law. This comes to be challenged by the
petitioner again in appeal before the Appellate Authority in Appeal
No.24 of 2019. The Appellate Authority passes the following order
on 19-09-2019:
"ORDER
The appeal is allowed in part. The impugned order dated
12.02.2019 passed by the respondent No.2 is hereby set aside.
The matter is remanded back to the respondent No.2
herein to proceed further after furnishing copies of the
report dated 05.02.2019 by the respondent No.3 and the
report dated 11.02.2019 by the Deputy Director of Public
Instructions, Bengaluru, to both the appellant as well as
the respondent No.2, by providing an opportunity of
hearing as well as providing an opportunity to file their
objections to the said reports. Thereafter, the
respondent no.2 is directed to pass appropriate order
within 45 days. All other contentions of both the parties
are kept open.
This order is pronounced in the open Court on the 19.09.2019."
(Emphasis added)
The appeal filed by the petitioner was allowed in part and the order
of the Committee dated 12-02-2019 holding that the caste
certificate was issued in accordance with law was set aside. The
matter was remitted back to the hands of the Committee to
proceed further after furnishing copies of the report that led to
passing of the order impugned before it. The matter again goes to
the doors of the Committee and the Committee after considering
the issues in terms of its detailed reasoned order passes the
following on 05-08-2020:
".... .... ....
Now considering all these aspect and also the
contention raised by the learned counsel for the
respondent no.1, this committee is of the opinion that,
without going into the merit of the case whether the
complaint filed by the complainant is maintainable or
not? As already stated above, the respondent no. 1 has
made use of the said caste certificate for the purpose of
contesting election. In the instant case the complaint
filed by the complainant before this authority is under the
Karnataka Scheduled Caste, Scheduled Tribe and Other
Backward Classes [Reservation of Appointment Etc.,] Act,
1990. Admittedly, the said act and rules are enacted for
the purpose of issuing caste certificate or validity
certificate only for appointment or for getting admission
to educational institution. In the instant case, the
respondent no. 1 has not made use of the caste
certificate either for appointment in the state or central
government or for admission in educational institution.
On the other hand, she has made use of the caste
certificate for contesting Municipal Elections to support
her contention that she belongs to Scheduled Tribe at the
time of filing nomination paper to reserved constituency.
Therefore such cases are not covered under this act. In
fact the Hon'ble High Court of Karnataka in the case of
Sri. Chikkanna V/s. District Social Welfare Officer and
another in W.P. No. 13173/2008 [GM-CC] and also in the
case of Smt. Sangeetha V/s. Deputy Commissioner and
Chairman, DLCVC and others in W.P. No. 63482/2019 has
held that, the District Caste Verification Committee has
no jurisdiction to deal with the matter.
Apart from the above fact, Rule 6 of the Karnataka
Scheduled Caste, Scheduled Tribes and Other Backward Classes
[Reservation of Appointment Etc.,] Rules 1992, which reads as
follows:
'Every person claiming reservation for appointment,
shall submit an application in Form No. 1 for verification of
caste or caste and income claim'. Thereafter this committee
would come to picture for issue of validity certificate under
rule 7. In the instant case as already narrated above, the
caste certificate obtained is for the purpose of contesting
the elections. Therefore, there is no provision under the Act
or under the Rules made thereunder to entertain the instant
complaint filed by the complainant.
Further the Hon'ble Supreme Court in the case of
Dhananjaya Riddy V/s. State of Karnataka, reported in 2001
Vol. 4 SCC Page 9 at Para 26 has held as follows:
'If a statute has conferred a power to do an act and
has laid down the method in which that power has to be
exercised, it is necessarily prohibits the doing of act in any
other mariner than what which has been prescribed.'
In the light of the law laid down by the Hon'ble Supreme
Court and also the law laid down by the Hon'ble High Court of
Karnataka referred supra, the complaint filed by the
complainant is not maintainable and this committee has no
jurisdiction to entertain the complaint. Accordingly, the
committee proceed to pass the following order.
No. GS/KAA(NA)/JAPA/CR-112/15-16 Date: 05.08.2020
ORDER
For the reasons and circumstances narrated above
the complaint filed by the complainant is not
maintainable. This committee has no jurisdiction to
entertain the complaint. However, it is made clear that
this authority has not gone into the merit of the case, it
has only dealt with regard to the jurisdiction of this
committee to entertain the complaint. All the contentions
of both the parties are kept open.
Dictated and Pronounced in the open court
on.05.08.2020."
(Emphasis added)
This order is not challenged and has thus become final. The effect
of non-challenge of the said order is that the existence of an order
of the Appellate Authority which sets aside the affirmation of the
caste certificate issued to the 5th respondent. Therefore, as on
today there is no caste certificate that is held to be in favour of the
5th respondent.
12. Certain strikingly outlandish proceedings take place later.
As observed hereinabove, the Committee headed by the Deputy
Commissioner had cancelled the caste certificate issued to the 5th
respondent on 26-06-2018. The Tahsildar following the said dictate
cancels the caste certificate of the 5th respondent by an order dated
23-09-2020. The order reads as follows:
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(Emphasis added)
In the aforequoted order, the Tahsildar implements the order of the
Committee, Chairman of which is the Deputy Commissioner and
cancels the caste certificate. Against the said cancellation, the 5th
respondent prefers an appeal before the 1st respondent. The 1st
respondent is the Assistant Commissioner. As noted hereinabove,
the Tahsildar only implements the order of the Deputy
Commissioner. Now the appeal, in effect, is filed against the order
of the Deputy Commissioner, before the Assistant Commissioner,
who is an officer subordinate to the Deputy Commissioner and
cannot be Appellate Authority to an order passed on the direction of
the Deputy Commissioner. The appeal ought to have been preferred
before the 3rd respondent/Appellate Authority, which admittedly is
not done.
13. The submission of the learned counsel Smt. Sadhana
Desai appearing for petitioner merits acceptance, as the Tahsildar
has no power to cancel a caste certificate. He can either accept or
reject the application. Cancellation of caste certificate is the power
vested with the Committee. The Tahsildar only implements the
direction of the Committee. An appeal to the Assistant
Commissioner/1st respondent would lie under the Act, if the
Tahsildar has on independent application of mind rejected the
application for issuance of caste certificate and not cancellation of a
caste certificate on the directions of the Committee. Admittedly, the
Tahsildar has not passed any order under Section 4A of the Act, as
Section 4A supra empowers the Tahsildar to issue caste certificate
or caste and income certificate as the case would be. Appeal to
the Assistant Commissioner would lie under Section 4B against the
order passed by the Tahsildar under Section 4A, which is either
accepting or rejecting the application seeking issuance of caste
certificate, as Section 4A deals with only issuance of caste
certificate and Section 4B deals with appeal against an action on
such issuance or non-issuance.
14. Therefore, the appeal in the case at hand, before the
Assistant Commissioner, is undoubtedly an appeal before a forum,
which is coram non-judice. It becomes apposite to refer to the
judgment of the Apex Court in the case of HASHAM ABBAS
SAYYAD V. USMAN ABBAS SAYYAD2 wherein the Apex Court
holds as follows:
".... .... ....
"21. A contention was raised that having regard to the
conduct of the appellant, we should not interfere, but the
appellant herein has raised a jurisdictional question. However,
the appellant can be put to terms.
22. The core question is as to whether an order passed
by a person lacking inherent jurisdiction would be a nullity. It
will be so. The principles of estoppel, waiver and acquiescence
or even res judicata which are procedural in nature would have
no application in a case where an order has been passed by the
Tribunal/court which has no authority in that behalf. Any order
passed by a court without jurisdiction would be coram
non judice, being a nullity, the same ordinarily should not
be given effect to. [See Chief Justice of A.P. v. L.V.A. Dixitulu
[(1979) 2 SCC 34 : 1979 SCC (L&S) 99 : AIR 1979 SC 193] and
MD, Army Welfare Housing Organisation v. Sumangal Services
(P) Ltd. [(2004) 9 SCC 619] ]
(Emphasis supplied)
(2007)2 SCC 355
The Apex Court holds that any order passed by a Court which has
no jurisdiction is coram non-judice. If the finding of the Apex Court
is paraphrased to any proceeding, preceding passage of an order
would also be a proceeding, which would be coram non-judice.
The proceeding before the 1st respondent is undoubtedly de hors
jurisdiction and is now trite that, any proceeding or an order which
is without jurisdiction is coram non-judice, resultantly, a nullity in
law. Therefore, the very proceeding before the 1st respondent is
contrary to law.
15. The order of the 4the respondent/Committee rejecting
entire proceedings as not maintainable is again erroneous, as the
Apex Court in the case of BHARATI REDDY (supra) has held as
follows:
".... .... ....
21. The concurrent finding recorded by the learned Single
Judge and the Division Bench of the High Court is that the
process of issuance of the certificate to the appellant by the
jurisdictional authority was done in a mortal hurry. This
inference has been drawn by the High Court in the light of the
facts revealed from the original official file -- that the appellant
purchased stamp paper for preparing affidavit at 5.27 p.m. on
26-4-2016 and used the same for notarisation and also
submitted it to Respondent 5, who then issued the caste
certificate on the same day i.e. 26-4-2016. The Court has also
noted that there was some overwriting in relation to the date.
After adverting to these circumstances, the High Court opined
that there was something seriously wrong about the process
adopted by Respondent 5 for issuance of caste certificate, which
was obviously done to favour the appellant who could then
contest the election. The High Court also noted that Respondent
5 who had issued the stated certificate was later on suspended,
pending departmental enquiry against him in reference to the
self-same certificate issued to the appellant. Additionally, the
High Court has found that there was discrepancy in the two
affidavits filed by the appellant, which is in the nature of
suppression and non-disclosure of material financial information.
Finally, the High Court concluded that since the issue regarding
the validity of income and caste certificate was pending before
the Caste Verification Committee, which was a fact-finding
Committee, the Committee would decide the same on its own
merits. Notably, the High Court did not quash the caste
certificate as being void but left it open to the Caste Verification
Committee to proceed in accordance with law.
... ... ...
25. Indubitably, both these aspects will be the
subject-matter of the enquiry before the Caste
Verification Committee, being intrinsically mixed with the
question of validity of the stated certificate. The appellant
had offered explanation on both these matters. Regarding
the factum of mortal hurry allegedly displayed by
Respondent 5 in issuing the caste certificate, she
contends that it was not issued on the same day as
alleged but after due enquiry. That is evinced from the
original official file produced before the Court. In that,
the application was made on 22-4-2016 whence the
process commenced and then concluded on 26-4-2016.
The process was required to be completed expeditiously
as the certificate was required for contesting the
impending election of Adhyaksha scheduled on 29-4-
2016. This explanation certainly will have to be examined
by the Caste Verification Committee, before invalidating
the caste certificate on the ground that proper procedure
was not followed. For the present, suffice it to observe
that the mere fact that the certificate was issued in a
short span of five days from the date of the application,
per se, does not lead to an inference that the required
procedure has not been followed."
(Emphasis supplied)
The Apex Court holds that the caste certificate issued for the
purpose of election which was the subject matter in BHARATI
REDDY'S case (supra) was based on a disputed question of fact
which would require evidence and accordingly directed the
Committee to conclude the proceedings in a time bound manner.
The caste certificate in the case before the Apex Court had been
issued for election purpose. Therefore, I leave the issue open to
the parties to avail all such remedy as is available in law.
16. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed and the proceedings in
MSC/CR/113/20-21 before the 1st respondent/ Assistant
Commissioner stand obliterated.
(ii) The parties are left with liberty to avail all such
remedy as is available in law.
(iii) All other contentions other than the ones considered
in the case at hand, shall remain open.
Consequently, I.A.No.1 of 2023 also stands disposed.
Sd/-
JUDGE
bkp
CT:MJ
