Partly allowed

Sri Kalsang Lhundup @ Tsering Lhundup v. the State of A.P.

Gauhati HC4 Feb 2020WP(C)/98/2014

Case brief

AI extract

What is this about?

In this writ petition under Article 226 of the Constitution, the Court quashed an order cancelling the petitioner's Scheduled Tribe (ST) certificate. Relying on Kumari Madhuri Patil, the Court held that cancellation adjudication lies with a Scrutiny Committee, not the Deputy Commissioner, and upheld the majority of the original ST certificate pending the Committee's enquiry.

What did the court decide?

Impugned enquiry report and order cancelling ST certificate set aside and remanded to Scrutiny Committee for final decision within 2 months.

Sri Kalsang Lhundup @ Tsering Lhundup Vs the… — Pension and Retirement Benefits | Gauhati HC (2020)

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Page No.# 1/5

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GAHC040006052014

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH)

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Case No. : WP(C) 98/2014

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1:SRI KALSANG LHUNDUP @ TSERING LHUNDUP S/O LT. GENDUN TSERING, R/O BAZAR LINE, BOMDILA, DIST. WEST KAMENG, AP

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VERSUS

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1:THE STATE OF A.P.

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REPRESENTED BY THE SECRETARY POLITICAL GOVT. OF AP, ITANAGAR

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2:THE DEPUTY COMMISSIONER TAWANG DISTRICT TAWANG AP

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3:THE DEPUTY COMMISSIONER WEST KAMENG DIST. BOMDILA AP

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4:THE CIRCLE OFFICER JUDICIAL DEPUTY COMMISSIONER'S OFFICE TAWANG A

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Advocate for the Petitioner : D Mazumdar, Sr. Advocate

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Advocate for the Respondent : GA

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BEFORE HONBLE MR. JUSTICE KALYAN RAI SURANA

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JUDGMENT

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Date : 04-02-2020

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Heard Mr. A. K. Singh, the learned counsel for the petitioner. And also Mr. K. Ete, the learned senior Additional Advocate General assisted by Ms. T. Wangmo, the learned Junior Government Advocate for the State.

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2 . In this writ petition filed under Article 226 of the Constitution of India, the case projected by the petitioner that he was born at Bomdila and brought up as a member of Mompa community of this State. By the certificate No.TJ-109/88 dated 21.01.1988, the Deputy Commissioner, Tawang, issued a Scheduled Tribe certificate in favour of the petitioner. It is projected that the petitioner is presently working in the establishment of Director of Civil Supplies, Govt. of Arunachal Pradesh. In course of his service, the Director of Civil Supplies, Govt. of Arunachal Pradesh vide letter dated 06.02.2003 requested the Deputy Commissioner, Tawang to verify the correctness of the S.T. certificate issued in favour of the petitioner and the Deputy Commissioner, Tawang, by communication dated 02.06.2004, informed that the said certificate was issued after completion of the necessary verification and formalities and it was genuine. On receipt of the complaint made by the Deputy Commission, West Kameng District, the Circle Officer was asked to verify the Scheduled Tribe certificate of the petitioner and by communication dated 30.11.2007, the Deputy Commissioner, Tawang was also asked to verify about the originality of the petitioner and some other persons. Later on by communication dated 07.07.2008, the Circle Officer (Judicial), Office of the Deputy Commissioner, Tawang submitted an enquiry report to the effect that the petitioner was not a resident of Shyo village, Tawang District and he was not a member of Mompa community of the village. Thereafter, the Deputy Commissioner, Tawang issued a notice to the petitioner to appear before him and accordingly, the petitioner appeared and filed his written statement of defense.

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3 . By the impugned order dated 17.01.2014, the Scheduled Tribe certificate of the petitioner was cancelled, as such, assailing the enquiry report as well as the order of cancellation of the Scheduled Tribe certificate, this present writ petition has been filed.

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4 . The learned counsel for the petitioner has submitted that in a meanwhile the State has constituted a “Scrutiny Committee” as per the scheme laid down by the Supreme Court of India in case of Kumari Madhuri Patil and Ors. – Vs - Additional Commissioner Tribal Development and Ors., reported in (1994) 6 SCC 241. It is further submitted that in a meanwhile the said Scrutiny Committee had issued a notice to the petitioner bearing ST-12/91(PRT-II)/189 dated 11.10.2018 and on receipt of such notice, the petitioner has already submitted his reply on 06.11.2019 before the said Committee, C/o. Office of Secretary, Department of Social Justice and empowerment and Tribal Affairs, Government of Arunachal Pradesh. The learned counsel for the petitioner submits that after filing of such written statement, the petitioner is not aware of the further development of the said proceeding.

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5 . It would be appropriate to mention herein that the learned counsel for the petitioner, apart from the relying of the case of Kumari Madhuri Patil (supra), has also related in the case of Tsewang Dorjee and others Vs. State of Arunachal Pradesh & Others, 2013(3) GLT 919 to project that the cancellation of ST certificate was required to be enquired by the Scrutiny Committee and he has submitted that in that case, this Court had issued a direction that the Scrutiny Committee would complete the enquiry within a time as provided therein.

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6 . Mr. K. Ete, the learned Senior Additional Advocate General has opposed this application and has made his submissions to justify the order impugned herein. However, on a query of this Court, he has submitted that in pursuant to the case of Kumari Madhuri Patil (supra), the Scrutiny Committee has been constituted in this case and he has submitted that as the Scrutiny Committee has already issued a notice to the petitioner, and he also submits that the said Committee is the appropriate forum to decide the issue in this present writ petition.

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7 . It appears to the Court that the grievance raised by the petitioner is duly covered by the case of Kumari Madhuri Patil (supra), and Tsewang Dorjee (supra).

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8 . In view of the ratio laid down by the case of Tsewang Dorjee (supra), this Court is incline to allow this writ petition by holding that the Deputy Commissioner, Tawang

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Page No.# 4/5 could not have taken up the adjudication of the caste certificate of the petitioner because only the Scrutiny Committee had jurisdiction to enter into the enquiry of the Schedule Tribe certificate issued by the DC, Tawang in light of the decision rendered in the case of Kumari Madhuri Patil (supra).

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9 . Accordingly, the impugned enquiry report dated 07.07.2008 by the Circle Officer (Judicial) DC, Tawang, Memo No. TJ-109/1990/ as well as the order dated 17.01.2014 passed by the DC, Tawang are not sustainable. Accordingly, the said enquiry report and the impugned order dated 17.01.2014 are both set aside.

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10 . The matter relating to enquiry regarding the ST certificate of the petitioner is remanded for the decision by the Scruntiny Committee constituted as per scheme laid done by the case of Kumari Madhuri Patil (supra).

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11 . It is further provided that in the event of the said Scrutiny Committee is not functioning at the moment, the State Government shall re-constitute the said committee within a period of 30(thirty) days from the date of the receipt of copy of this judgment and order. The State authority shall refer the case of the petitioner to the Scrutiny Committee. As the petitioner has already submitted his written statement of his defence before the Scrutiny Committee, it will be open to the Scrutiny Committee to proceed from that stage by examining and deciding the status of the petitioner. The Committee shall provide reasonable opportunity to the parties to substantiate their claims, if necessary, by the examination and cross examination of witness and to produce relevant documents in support of their respective claims.

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12 . The Scrutiny Committee shall complete the enquiry within a period of 2 (two) months from the date of commencement proceeding. It is further provided that till the entire process is completed, the operation of the ST certificate of the petitioner shall remain suspended.

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