V. Ayyappan vs The District Collector and The Revenue Divisional Officer

E. Padmanabhan, J.—The Petitioner prays for the issue of a writ of mandamus directing the Respondents herein to forthwith consider and pass orders on the application of the Petitioner dated 15.7.1996 for issuance of a Community Certificate without further delay.

This Court ordered Notice of Motion on 2.6.1999. The Writ Petition was taken up for hearing on three different dates.

Mr. Kandavadivel Doraisamy, Learned Counsel for the Petitioner submitted that though the Petitioner had prayed for the issue of writ of mandamus directing the Respondents to consider and pass orders on the application for issuance of Community Certificate in view of the delay, the Learned Counsel persuaded this Court to give a specific direction to issue the Social Status Certificate as prayed for and without any delay as the social status claimed by the Petitioner has since been decided by a competent Civil Court in his favour.

Per contra, Mr. Patti B. Jegannathan, the learned Special Government Pleader and Mr. G. Sankaran Govt. Advocate contended that the declaration issued by the Civil Court is not for issuance of Community Certificate and the Petitioner''s request having been rejected already by the competent authority, there cannot be a direction either to consider or to issue a Social Status Certificate as claimed by the Petitioner.

It was vehemently contended that the Civil Court decree secured by the Petitioner is of no consequence and it cannot be relied upon as the jurisdiction of the Civil Court is excluded in this respect. In this respect, the learned Special Government Pleader relied upon the pronouncement of the Apex Court in State of Tamil Nadu and others Vs. A. Gurusamy, well as the pronouncement in Kumari Madhuri Patila and another Vs. Addl. Commissioner, Tribal Development and others, .

Per contra, Mr. Kandavadivel Doraisamy, Learned Counsel for the Petitioner relied upon the pronouncement of Sathasivam, J in State of Tamil Nadu and two others Vs. Durairaj and another, in support of his contention that a suit is maintainable and that a decree passed by the Civil Court which is binding on the Respondents should be complied with and the Respondents cannot be allowed to get over the decree passed by the Court below relying upon the later pronouncement of the Apex Court and having allowed the Civil Court decree to become final.

Petitioner''s case: The Factual Matrix could be summarised briefly:

The Petitioner claims that he belongs to Kattunaicken, a Scheduled Tribe Community. The Petitioner claims that he instituted the suit O.S. No. 217 of 1993 on the file of the District Munsif Court, TiruchirapaUi to declare that he belongs to Kattunaicken, a Scheduled Tribe. By judgment and decree dated 6.12.1993, the trial Court decreed the suit and sustained the claim of the Petitioner, namely that he belongs to Kattunaicken, a Scheduled Tribe. After 3-years, the Petitioner approached the first Respondent for issuance of a social status certificate certifying that he belongs to Kattunaicken, a Scheduled Tribe Community.

The first Respondent in turn directed the second Respondent by his communication dated 6.9.1996 to take appropriate action on the said petition dated 15.7.1996. Instead of issuing the Community Certificate as per the decree, the Respondents moved the trial Court to set aside the ex parte decree with a petition to condone the inordinate delay of 307 days by filing I.A. No. 934 of 1996. The said delay was sought to be explained. Taking advantage of the said pendency of the applications to set aside the ex parte decree as well as the petition to condone the delay, the Respondents have been delaying the issuance of Community Certificate. The second Respondent intimated the Petitioner that his request would be considered after disposal of the applications filed by the Respondents.

I.A. No. 934 of 1996 in O.S. No. 217 of 1993 taken out by the Respondents to condone the delay came to be dismissed on 3.9.1998 after contest. To the knowledge of the Petitioner, the said order became final. So also the decree. As even after the dismissal, of the said application which had reached finality, the Respondents have not chosen to issue the Social Status Certificate, the Petitioner caused a notice through his Advocate on 12.1.1999 calling upon the Respondents to pass orders on the applications submitted by the Petitioner. Even after receipt of the said notice, the Respondents have not taken steps. Once again a reminder was sent on 16.3.1999. Despite demands, no action has been taken and the Respondents had evaded to honour the Civil Court decree, which is binding on them and despite demands the Respondents have avoided to discharge the obligation in issuing the Social Status Certificate applied for by the Petitioner and hence the present Writ Petition.

Respondent''s case

On behalf of the Respondents, the second Respondent has filed a counter affidavit. According to the Respondents the Petitioner a resident of No. 21 Butterworth Road, Tiruchi obtained a Community Certificate from the Special Tahsildar (Scholarship), Tiruchi certifying that he belonged to Kattunaicken, a Scheduled Tribe and on that basis he had secured an appointment of male sweeper in the office of the Ordnance Factory, Tiruchi and subsequently he has been promoted to the post of Peon on 30.7.1984 against the quota reserved for Scheduled Tribe Community. The Deputy General Manager, Ordnance Factory, Tiruchirapalli addressed the District Collector to verify the social status of the Petitioner and to report.

Admittedly, the second Respondent conducted a discreet enquiry and had reported to the Collector that the writ Petitioner does not belong to Kattunaicken Community. The District Collector passed orders cancelling the Community Certificate issued by the Special Tahsildar and it was intimated to the employer, namely, the Ordnance Factory on 3.9.1992. Thereafter the Petitioner instituted the suit O.S. No. 217 of 1993 seeking for a declaration that he belonged to Kattunaicken, a Scheduled Tribe and on the file of the District Munsif Court, Tiruchirapalli and the trial Court granted the decree, besides directing the Revenue Divisional Officer to issue a Social Status Certificate to the said effect. The District Collector took out an application to set aside the ex parte decree and also I.A. No. 934 of 1996 to condone the delay in filing the application to set aside the ex parte decree. After contest, the trial Court dismissed the application as there is no justifiable reason to condone the inordinate delay. Being aggrieved, the Respondents have already moved this Court by way of revision. In the meanwhile, the present Writ Petition has been filed.

According to the Respondents, the Special Tahsildar, Thiruchirapalli has no powers to issue a Social Status Certificate and the Petitioner had obtained the certificate by dubious means. It is further contended that the declaratory decree obtained by the writ Petitioner and the direction is without jurisdiction as has been held by the Apex Court in Civil Appeal No. 1565/97 dated 17.2.1997. According to the Respondents, the decree is inexecutable as it has been passed by a Court having no jurisdiction.

The Petitioner had not placed all the materials to support his claim in the application submitted by him and he cannot rely upon the decree for the issuance of a certificate. The Petitioner has to satisfy the Respondents by placing the materials in support of his claim of social status. The Petitioner does not belong to Kattunaicken Community, a Scheduled Tribe and that he is not entitled for a direction as prayed for. The relief prayed for cannot be granted and there are no merits.

Contentions:

Based upon the above case and counter case, it was contended by the counsel for the Respondents that the Petitioner cannot seek for the issuance of mandamus as the decree passed in his favour is a nullity in. the light of the judgment of the Apex Court and therefore no mandamus could be issued. Further, it is contended that in any event, the Respondents, if at all, they could be only directed to consider the application and there could be no direction to issue the Social Status Certificate.

Mr. Kandavadivel Doraisami, Learned Counsel for the Petitioner contended that in view of the passage of time, even after the declaratory decree passed by the Civil Court decree, the Respondents have not chosen to consider the application based upon the Civil Court decree and therefore a mandamus should be issued directing the Respondents to issue a certificate applied for by the Petitioner instead of giving liberty to the Respondents to consider the application on merits. According to Mr. Kandavadivel Doraisami, the Civil Court decree is binding on the Respondents and therefore, they have no discretion except to issue a certificate.

Concedingly, the District Munsif Court, Tiruchirappalli, by judgment and decree dated 6th December 1993 in a suit instituted on 12.1.1993 granted a decree in favour of the Petitioner holding that he belongs to Kattunaicken, a Scheduled Tribe, it is true that the said decree is an ex parte decree. Though the Defendants, namely, the District Collector, representing the State of Tamil Nadu had been served with suit summons and though the local Government Pleader had appeared in the suit, they have not contested the suit and therefore, the State of Tamil Nadu had been set ex parte and a decree has been passed declaring the social status of the Petitioner.

The Respondents had moved the trial Court to set aside the ex parte decree with a petition to condone the delay of 307 days. After contest IA. No. 934 of 1996 came to be dismissed on 3.9.1998 as no sufficient cause has been shown by the Defendants to condone the delay. Thereafter the Petitioner moved the Respondents for the issuance of Community Certificate but there has been no action at all except delaying the matter.

Though it was represented by the Learned Counsel for the Respondents that a revision has been preferred by the State of Tamil Nadu against the dismissal of IA. No. 934 of 1996, despite granting of three adjournments, the counsel for the Respondents is unable to furnish either the date of filing or the number of the revision petition or as to what had happened to such revision said to have been preferred. Despite grant of time, the Respondents are unable to give any particulars with respect to the revision, if any preferred by the Respondents. It is the same Government Pleader''s Office, if at all could have preferred the revision petition. On the specific request made by the counsel for the Respondents, this Court adjourned the matter twice to furnish the particulars, but the counsel expressed the inability to furnish any one of the above informations. As such, this Court would be justified in proceeding as if the Civil Court decree passed in O.S. No. 217 of 1993 on 6.12.1993 has reached finality and no revision at all had been preferred or pending.

Mr. Patti B. Jaganathan, the learned Special Government Pleader contended that the Civil Court has no jurisdiction to grant the declaratory decree and the decree passed on 6.12.1993 in O.S. No. 217 of 1993 is a nullity and placing reliance upon the said decree, the writ Petitioner cannot seek for a direction to issue a Community Certificate according to the Learned Counsel for the Respondents, the said decree is a nullity. In this respect, the Learned Counsel heavily relied upon the decision of the Apex Court in Kumari Madhuri Patila and another Vs. Addl. Commissioner, Tribal Development and others, as well as State of Tamil Nadu and others Vs. A. Gurusamy, referred supra.

Per contra, Mr. Kandavadivel Doraisamy contended that the pronouncement of the Apex Court is in later point of time and that there has been no adjudication of the Petitioner''s claim by any of the Respondents at any earlier point of time nor he had moved this Court under Article 226 by filing a Writ Petition nor his request has been denied by this Court and consequently, the jurisdiction of the Civil Court is not excluded and the decree is valid and binding on the Respondents herein. As a declaratory decree, which is binding on the State of Tamil Nadu, the Respondents being the subordinates are bound to issue a certificate. Mr. Kandavadivel Doraisami, relied upon the recent pronouncement of Sathasivam, JT (2000 (2) L.W.495) in support of his contention.

In terms of Section 9 of Code of Civil Procedure, Courts shall have jurisdiction to try suits of civil nature excepting such of those suits whose cognizance is either expressly or impliedly barred. No provision has been shown by the Respondents to hold that the civil suit filed by the Petitioner is barred or of taking cognizance of the suit is barred either impliedly or expressly. Section 9 of the CPC was the subject matter of detailed consideration before a three judges Bench of the Apex Court in Shiv Kumar Chadha and Others Vs. Municipal Corporation of Delhi and Others, wherein it has been held thus:

Section 9 of the CPC (hereinafter referred to as "the Code") says that Courts shall have jurisdiction to try all suits of civil nature "except suits of which their cognizance is either expressly or impliedly barred". According to the Corporation once the jurisdiction of the Court to try a suit in which the validity of any order passed under the provisions of the Corporation Act or the notice issued thereunder has been specifically barred and an internal remedy has been provided for redressal of the grievances of the persons concerned, there is no scope for Court to entertain a suit.

In the olden days the source of most of the rights and liabilities could be traced to the common law. Then statutory enactments were few. Even such enactments only created rights or liabilities but seldom provided forums for remedies. The result was that any person having a grievance that he had been wronged or his right was being affected, could approach the ordinary Civil Court on the principle of law that where there is a right there is a remedy - ubi jus ibi remedium. As no internal remedy had been provided in the different statutes creating rights or liabilities, the ordinary Civil Courts had to examine the grievances in the light of different statutes. With the concept of the Welfare State, it was realised that enactments creating liabilities in respect of payment of taxes, obligations after vesting of estates and conferring rights on a class of citizens, should be complete codes by themselves. With that object inview, forums were created under the Acts themselves where grievances could be entertained on behalf of the persons aggrieved. Provisions were also made for appeals and revision to higher authorities.

Then a question arose as to where a particular Act had created a right or liability and had also provided a forum for enforcement of such right or for protection from enforcement of a liability without any authority in law, whether a citizen could approach a Court. It may be pointed out that many statutes have created certain rights or liabilities and have also provided the remedial measures in respect thereof. But such statutes have not touched the common law rights of the citizen. But there are some statutes, which in public interest affect even the common law rights or liabilities of the citizen, which were in the nature of existing subtle in nature but at the same time very vital.

Further exclusion of Civil Court jurisdiction, it has been repeatedly held cannot be inferred readily and exclusion of jurisdiction of Civil Court has to be provided for or atleast it should be referred by providing a forum and making the adjudication by such forums as final and further adding that it cannot be called in question.

In Most. Rev. P.M.A. Metropolitan and others, etc. etc. Vs. Moran Mar Marthoma and another etc. etc., while considering the scope of Section 9 of the Code of Civil Procedure, the Apex Court held thus:

...The expansive nature of the Section is demonstrated by use of phraseology both positive and negative. The earlier part opens the door widely and latter debars entry to only those which are expressly or impliedly barred. The two explanations, one existing from inception and later added in 1976 bring out clearly the legislative intention of extending operation of the Section to such religious matters where right to property or office is involved irrespective of whether any fee is attached to the office or not. The language used is simple but explicit and clear. It is structured on the basic principle of a civilised jurisprudence that absence of machinery for enforcement of right renders it nugatory. The heading which is normally key to the Section brings out unequivocally that all civil suits are cognizable unless barred. What is meant by it is explained further by widening the ambit of the Section by use of the word ''shall'' and the expression, all suits of a civil nature unless expressly or impliedly barred.

Each word and expression casts an obligation on the Court to exercise jurisdiction for enforcement of right. The word ''shall'' makes it mandatory. No Court can refuse to entertain a suit if it is of description mentioned in the Section. That is amplified by use of expression, all suits of civil nature. The word ''civil'' according to dictionary means, ''relating to citizen as an individual; civil rights.'' In Black''s Legal Dictionary it is defined as, ''relating to provide rights and remedies sought by civil actions as contrasted with criminal proceedings.'' In law it is understood as an antonym of criminal. Historically the two broad classifications were civil and criminal. Revenue, tax and company etc. were added to later. But they too pertain to the larger family of ''civil''. There is thus no doubt about the width of the word ''civil''. Its width has been stretched further by using the word ''nature'' along with it. That is even those suits are cognizable which are not only civil but are even of civil nature. In Article 123 of the Constitution an appeal lies to this Court against any judgment, decree or order in a ''civil proceeding.'' The expression came for construction in S.A.L. Narayan Row and Another Vs. Ishwarlal Bhagwandas and Another, . The Constitution Bench held a proceeding for relief against infringement of civil right of a person is a civil proceeding. In Arbind Kumar Singh Vs. Nand Kishore Prasad and Others, ''it was held to extend to all proceedings which directly affect civil rights.'' The dictionary meaning of the word ''proceedings'' is the institution of a legal action, ''any step taken in legal action.'' In Black''s Law Dictionary it is explained as, in a general sense, the form and manner of conducting juridical business before Court or judicial officer. Regular and orderly progress in form of law, including all possible steps in an action from its commencement to the execution of judgment. Term also refers to administrative proceedings before agencies, tribunals, bureaus, or the like. The word ''nature'' has been defined as the fundamental qualities of a person or thing; identity or essential character; sort; kind; character. It is thus wider in content. The word ''civil nature'' is wider than the word ''civil proceeding.'' The Section would, therefore, be available in every case where the dispute has the characteristic of affecting one''s rights which are not only civil but of civil nature.

In M.P. Electricity Board, Jabalpur Vs. M/s. Vijaya Timber Co., , it has been held that normal rule is that the Civil Courts have jurisdiction to try all suits of civil nature and exclusion of such jurisdiction cannot be inferred readily.

In S. Vanathan Muthuraja Vs. Ramalingam alias Krishnamurthy Gurukkal and Others, it has been laid down that presumption is in favour of existence of jurisdiction and exclusion of jurisdiction of a Civil Court is only an exception. It is well settled that a litigant having a grievance of civil nature has independently by any statute a right to institute a suit in some Court or other unless its cognizance is expressly or impliedly barred. No provision of law or a statutory enactment has been shown by the Respondents herein to exclude the jurisdiction of the Civil Court and the Respondents have failed to discharge the onus, which is heavily on them as they seek to oust the jurisdiction of the Civil Court when the Petitioner had already obtained a declaration to establish his social status. The declaration prayed for relates to a civil right and it is not being disputed also.

In Kumari Madhuri Patila and another Vs. Addl. Commissioner, Tribal Development and others, K. Ramaswamy, J. speaking for the Bench observed thus:

... The anthropoligical moorings and ethnological kinship affirmity (sic) gets genetically ingrained in the blood and no one would shake off from past, in particular, when once is conscious of the need of preserving its relevance to seek the status of Scheduled Tribe or Scheduled Caste recognised by the Constitution for their upliftment in the society. The ingrained tribal traits peculiar to each tribe and anthoropological features all the more become relevant when the social status is in acute controversy and needs a decision. The correct projectives furnished in pro forma and the material would lend credence and give an assurance to properly consider the claims of the social status and the officer or authority concerned would get an opportunity to test the claim for social status of particular caste or tribe or tribal community of group or part of such caste, tribe or tribal community.

Their Lordships laid down guidelines numbering 15 for issue of social status certificate and scrutiny of such certificates as well as approval, and there is nothing to indicate in the said judgment that the Civil Court''s jurisdiction has been excluded. In that context it has been held thus:

The application for grant of Social Status Certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level.

The parent, guardian or the candidate, as the case may be shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.

Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.

However in State of Tamil Nadu v. Gurusamy (cited supra), their Lordships of the Apex Court had occasion to consider as to whether a suit of civil nature is barred in respect of declaration of the President of India issued under Articles 341 and 342 of the Constitution. In that context, the Apex Court held that no suit is maintainable challenging the declaration issued by the President with respect of lists of the Scheduled Castes and Scheduled Tribes in relation to a State, that a particular caste or tribe is defined in Article 366(24) or 25 respectively. It has been held that the Presidential Notfication is conclusive subject to an amendment by the Parliament under Articles 341(2) and 342(2) of the Constitution. Only in that context, the jurisdiction of the civil court to take cognizance of and give a declaration stands prohibited. In that context, it has been held thus:

The only question is whether, the suit is maintainable? By operation of Section 9 of Code of Civil Procedure, a suit of civil nature cognizance of which is expressly or by implication excluded, cannot be tried by any Civil Court. The Declaration of the President of India, under Articles 341 and 342 of the Constitution, with respect of lists of the Scheduled Castes and Scheduled Tribes in relation to a State, that a particular caste or tribe is defined in Article 366(24) or (25) respectively, is conclusive subject to an amendment by the Parliament under Article 341(2) and 342(2) of the Constitution. By necessary implication, the jurisdiction of the Civil Court to take cognizance of and give a declaration stands prohibited.

The above passage has to be read in the context in which it is made and in my considered view, the contention that the suit for a declaration that an individual belongs to particular community or his social status is such and such is not barred nor there is anything in the said judgment to hold that the said suit is not maintainable, nor barred by any statutory provision.

Concedingly, the Petitioner had not prayed for a declaration with respect to the Presidential notification nor he had sought for a declaration that a particular community falls under particular entry in the Presidential Notification.

It is also relevant to point out that there had been no adjudication by this Court with respect to the social status of the Petitioner in any earlier proceedings. The Respondents herein before much prior to the judgment of the Supreme Court in Kumari Madhuri Patil and Anr. v. Addl. Commissioner, Tribal Development and Ors. as well as State of Tamil Nadu v. Gurusami (cited supra) have concluded that the Petitioner is not a member of the Kattunaicken Community. Immediately there of the said suit has been filed by the Petitioner seeking for a declaration that he is a member of Kattunaicken, a Scheduled Tribe and a decree has been passed. Hence it is clear that such a suit is not barred at all either by the implication or by a specific provision.

In State of Tamil Nadu and two others Vs. Durairaj and another, P. Sathasivam, J., had occasion to consider an identical contention and hold that the Hon''ble Supreme Court did not specifically and categorically decide the jurisdiction of the Civil Court to go into the question whether an individual or group of persons belong to a particular community or not or whether their social status falls under particular entry of the Presidential order or not. The learned Judge referred to an unreported judgment of S.M. Abdul Wahab, J. in SA. No. 370 of 1997 dated 30th March 1999. The view taken by this Court finds support in the judgment of P. Sathasivam, J. in State of Tamil Nadu and two others Vs. Durairaj and another, .

As the Civil Court decree though ex parte has reached finality and therefore it is binding on the State of Tamil Nadu and their subordinates namely, the Respondents herein. Once a Civil Court has granted declaration about the social status of the Petitioner to the effect that he belongs to the community of Kattunaicken, a Scheduled tribe and when the said Civil Court decree has reached finality, the Respondents have no other alternative except to issue a certificate and they will not be permitted to enquire into the matter or decline to issue such Social Status Certificate applied for by the Petitioner. The decree is conclusive and binding on the Respondents. Though the decree is declaratory, once such a declaration is issued it follows that the Respondents are estopped from going back and contending that the Petitioner does not belong to Kattunaicken, Scheduled Tribe. It is not open to the Respondents to take such a stand nor such a stand could be sustained. The latter decision of the Supreme Court will not advance the case of the Respondents nor it is an authority to hold that even after the binding Civil Court decree, the Respondents are yet to decide the social status of the Petitioner.

In the circumstances, though the relief prayed for is for consideration, in the light of the binding adjudication by a competent Civil Court which decree has already become final and binding on the Respondents, this Court directs the Respondents to issue a Social Status Certificate certifying that the Petitioner belongs to Kattunaicken a Scheduled Tribe Community within eight weeks from the date of communication of this cider or within eight weeks from the date on which an authenticated copy of this order is placed before the Respondents by the writ Petitioner.

The Writ Petition is allowed in the above terms, but without costs. Consequently, connected W.M.P. is closed.