BHUPENDRASINH VECHATBHAI KHANT Vs. COMMISSIONER, TRIBAL DEVELOPMENT DEPARTMENT

JUDGEMENT

(1.) The petitioner, by way of the present petition, has raised a much vexed question as to whether the petitioner, an offspring of a tribal mother and a non-tribal father could acquire the caste status of his mother, despite the legal presumption that in case of an inter-caste marriage, the child acquires the caste of his father, and though there was no evidence produced before the Scrutiny Committee to rebut the said presumption to show that he had suffered the deprivations, indignities, humilities and handicaps like other members of the community to which his mother belonged?

(2.) The petitioner in the present petition has sought direction to quash and set aside the impugned order dated 19.2.2018 passed by the respondent No.2 Scrutiny Committee and to declare that the certificate issued by the District Social Welfare Officer (District Panchayat), Panchmahal, Godhra as well as the certificate issued by the Mamlatdar, Civic Service Centre, Taluka Morva (Hadaf), District Panchmahal, certifying the petitioner as the member of scheduled tribe "Hindu Bhil" are legal and valid. As per the case of the petitioner, his mother belonged to "Bhil" community, which is a scheduled tribe and his father belonged to a non-tribal community i.e. "Khant - Hindu Soni". The petitioner was born on 1.5.1979 at Village Bhuvar and his birth was registered at the Gram Panchayat Bhuvar on or about 10.5.1979, wherein his caste was mentioned as "Bhil". Thereafter in July 1984 the petitioner was admitted in the School at Bhuvar and thereafter was sent to Godhra for the purpose of studies, where he was required to submit his caste certificate. The petitioner, therefore, had made an application to the District Social Welfare Officer, Panchmahal at Godhra and the competent Authority had issued the caste certificate to the petitioner on 7.7.1994 showing his caste as "Hindu Bhil" (Annexure-A). Thereafter the petitioner had applied to the Mamlatdar, Civic Service Centre, Morva (Hadaf) for issuing the caste certificate, which was issued by the said Authority on 2.7.2009, showing him as a member belonging to scheduled tribe "Hindu Bhil" (Annexure-B). It is further case of the petitioner that one Nisarta Fatabhai Varsinbhai, resident of Valaiya, Taluka Morva (Hadaf) had submitted an application for cancellation of the certificate issued by the Mamlatdar, however, the same was filed by the Mamlatdar. Thereafter, another person Shri Amarsinh Manabhai Rathod, President of Morva (Hadaf) Taluka had also submitted an application for cancellation of the said certificate of the petitioner. Pursuant to the said application, the Vigilance Officer (Tribal Development), Panchmahal at Godhra was directed to hold inquiry. The Vigilance Officer submitted a report to the Commissioner, Tribal Development, State of Gujarat on 1st October, 2012 (Annexure-C). The said report of Vigilance Officer was sent to the Collector for verification and the Collector had expressed the opinion that the certificate issued to the petitioner and the benefit flowing from the said certificate to the petitioner could not be denied.

(3.) The petitioner had contested the 13th Gujarat Legislative Assembly Election as an independent candidate, from 125-Morva (Hadaf) Legislative Assembly Constituency, which was reserved for ST category. In the said election, the petitioner was elected as the returned candidate in the result declared on 18.12.2017 and the respondent No.7 was defeated. The respondent No.7 thereafter made an application on 23.12.2017 to the respondent No.1 for verification of the caste status of the petitioner. The respondent No.2 Scrutiny Committee, therefore, called upon the petitioner to appear before it on 9.1.2018, vide the communication dated 28.12.2017. The petitioner had challenged the action of the respondent Authorities by filing Special Civil Application No.1162 of 2018 on 18.1.2018. The said petition came to be withdrawn by the petitioner on 23.1.2018 as the petitioner had filed another substantive petition being Special Civil Application No.1337 of 2018, challenging the order dated 19.1.2018 passed by the Scrutiny Committee. The Special Civil Application No.1337 of 2018 preferred by the petitioner was allowed by the Court with the consent of the learned Advocates for the parties as the Court was of the prima facie opinion that the petitioner was not afforded sufficient opportunity of being heard before the impugned order dated 19.1.2018 was passed by the Scrutiny Committee. The Court, while setting aside the said order without going into the merits of the case, had directed the petitioner to file his reply and necessary documents in support thereof before the respondent No.2 Scrutiny Committee on or before 7.2.2018, and directed the respondent No.2 to decide the matter afresh and in accordance with law as expeditiously as possible and preferably before 21.2.2018. The petitioner accordingly filed the reply and the documents before the respondent No.2 Committee. According to the petitioner, the respondent No.2, however, misinterpreting the guidelines issued by the Government of India dated 21.5.1977 and the judgements of the Supreme Court, passed the impugned order, holding that the petitioner had failed to rebut the presumption that in case of inter-caste marriage, the child would acquire the caste status of his father, and that the petitioner had failed to establish that he had suffered deprivations, indignities, humilities, like other members of the community to which his mother belonged. As per the further case of the petitioner, the respondent No.2 Committee having wrongly cancelled the caste certificates issued by the District Social Welfare Officer, Panchmahal, Godhra and by the Mamlatdar, Civic Service Centre, Taluka Morva (Hadaf), District Panchmahal, certifying the petitioner as the member of scheduled tribe "Hindu Bhil", the present petition has been filed.