BHANUMATHY P G Vs. CHAIRMAN

JUDGEMENT

(1.) The captioned appeal is filed under Section 12(3) of the Kerala (Scheduled Castes & Scheduled Tribes) Regulation of issue of Community Certificates Act, 1996, for short, the "Act", challenging a decision of the Scrutiny Committee under Section 11 of that Act. The connected writ petition is filed challenging the validity of certain provisions of the Act. we may record that while the reliefs sought for in the writ petition relate to different provisions of the Act, arguments were confined to pointing out that Section 9(2) of the Act is arbitrary, in as much as, the report of the Expert Agency, an entity defined in Section 2(g) of the Act, is ordained as "conclusive proof, taking away safeguards in adjudication. But, as rightly pointed out by the Learned Counsel for the petitioners and the learned Special Government Pleader, that challenge no more survives, in view of the amendment made as per the Kerala (Scheduled Castes & Scheduled Tribes) Regulation of issue of Community Certificates (Amendment) Act, 2008, for short, the "Amending Act". Thereby, the vigor of the Expert Agency's report as "conclusive proof has been watered down to be "unless found contrary by the Scrutiny committee, after due procedure". No other issue having been raised and argued on the validity of the Act, WPC.No. 30481 of 2003 is only to be ordered recording that the invalidity of Section 9(2) of the Act, as contended by the petitioners, does not survive in view of the legislative change as noted above.

(2.) On to the appeal; the fact of the matter remains that by two different written objections filed by them, the appellants placed their entire contentions before the Scrutiny Committee. Apart from producing the documents relied on by them, they had also requested that Committee for opportunity to examine the witnesses enumerated in their objections. Remember, this exercise was carried out by the appellants at a point of time when the Act stood un amended and the Scrutiny Committee had to follow the Expert Agency's report, as if it were an unexceptional hard rock of "conclusive proof, in view of sub-section 2 of Section 9 as it then stood. At that time, subsection 2 of Section 9 of the Act enjoined that the Expert Agency's report shall be "conclusive proof for or against the Scheduled caste or the Scheduled Tribe claim, as the case may be, of the person reported upon. It was, obviously therefore, that the scrutiny committee did not grant opportunity to the appellants, either to summon and examine the witnesses or to incorporate the documents placed on record.

(3.) Section 10 of the Act provides that in any enquiry conducted by the Competent Authority, the Expert Agency or the Scrutiny Committee, the burden of proving that he belongs to such Caste or Tribe shall be on the claimant. Section 14 provides that the Competent Authority, the Expert Agency and the Scrutiny Committee shall, while holding an enquiry under the Act, have all the powers of a Civil court, trying a suit under the Code of Civil Procedure, in respect of the matters enumerated in clauses 1 to 6 of that section. This includes powers attendant to summoning; discovery; recording evidence; issuing commissions for examination of witnesses or documents etc. After casting the burden of proof on the claimant in terms of section 10, the Legislature prescribed, in section 14, the mechanism for carrying out the enquiry; enabling the claimant to discharge his burden of proof which would be in the nature of rebuttal evidence, in as much as, he has to show that he belongs to the Caste or Tribe as claimed by him and thereby establish his on the face of an imputation to the contrary. That being so, there is no ground to exclude opportunity to adduce evidence. The amendment to Section 9(2) relates to matters attendant to procedure and evidence. Appeal under section 12(3) is a statutory appeal. It is provided to an established Court, i.e., the High Court. Appeal is continuation of trial, change in laws relating to procedure and evidence (is to be reckoned as applying to all pending proceedings. That way, such legislative changes are retrospective and apply to proceeding pending in the appellate jurisdiction also. Therefore, that amendment having come during the pendency of the appeal, that has to be applied in deciding the appeal, though the impugned decision was rendered by the scrutiny Committee before that amendment.