# Om Prakash v. State of U.P. and others

- **Citation:** (2011) 2 ILRA 578
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-16
- **Case number:** Civil Misc. Writ Petition No. 16921 of 2011
- **Bench:** Ashok Bhushan, Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-v-state-of-u-p-and-others-41925
- **Pages:** 7

## Headnote

Constitution of India-Article 226-caste
certificate-cancellation by the authority
who had granted-no allegation of fraud
or concealment-held-authority granting
the
certificate
no
doubt
possess
2 All] Om Prakash V. State of U.P. and others
579
authority to cancel the same-but in
impugned
order
nothing
whisper
regarding
fraud
or
concealment
by
petitioner-order set-a-side with liberty
to place entire material before Disst.
Scrutiny of cost committee-with right of
appeal before commission to aggrieved
party.

Held: Para 18

In the facts and circumstances of the
present case, on a complaint, submitted
by respondent no. 4, the Tehsildar has
cancelled the caste certificate by order
dated 28th February, 2011. No finding
has been recorded by Tehsildar that
caste certificate was obtained by the
petitioner by playing fraud on the
authority. The facts of this case are fully
covered by the division bench judgment
of this court in the case of Hizwana Bano
(supra).
Case law discussed:
1994(6) SCC 241; Uttar Pradesh Public
Services (Reservation for Scheduled Castes,
Scheduled Tribe and Other Backward Classes)
Act, 1994; Writ Petition No. 1611 (MB) of 2008
Taramuni Tharu Vs. State of U.P. and others.;
Public Interest Litigation (PIL) No. 1396 of
2011 Tharu Shakti Samiti and Another Vs.
State of U.P. and others; 2011 (1) ADJ 440

## Text

578 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
be
entertained-without
awaiting
alternative statutory remedy.

Held: Para 6

In view of the submission made by Sri
Sujit Kumar Rai , learned counsel for the
Respondent no.1, Sri Pradeep Saxena,
learned counsel for the petitioner states
that
the
petitioner
will
pursue
the
alternative remedy available to him under
the U.P.Cooperative Societies Act, 1965
and, therefore, the present writ petition
may be dismissed as withdrawn.

(Delivered by Hon'ble S. P. Mehrotra,J. )

1. The present writ petition has been
filed, interalia, praying for directing the
Tehsil authorities not to execute the
citation/ notice dated 7.2.2011 (Annexure -
1 to the writ petition ).

2. By order dated 17.3.2011, Sri Sujit
Kumar Rai, learned counsel for the
respondent no.1 was granted time to obtain
instructions in the matter.

3. Sri Sujit Kumar Rai, on the basis
of the instructions received by him, states
that the petitioner had taken loan from the
respondent no. 1. As the petitioner
committed default in payment of loan the
respondent no.1 referred the matter for
arbitration under the U.P. Cooperative
Societies Act, 1965 read with Rule-229 (1)
(c) of the U.P. Cooperative Societies
Rules, 1968. The arbitrator gave an award
dated 16.8.2010.

4. Pursuant to the said award,
recovery proceedings have been initiated
against the petitioner.

5. Sri Sujit Kumar Rai further states
that the petitioner has got an alternative
remedy of filing appeal under Sections
98(1) (h) of the U.P.Cooperative Societies
Act, 1965.

6. In view of the submission made by
Sri Sujit Kumar Rai , learned counsel for
the Respondent no.1, Sri Pradeep Saxena,
learned counsel for the petitioner states
that
the
petitioner
will
pursue
the
alternative remedy available to him under
the U.P.Cooperative Societies Act, 1965
and, therefore, the present writ petition
may be dismissed as withdrawn.

7. In view of the statement made by
Sri Pradeep Saxena, learned counsel for
the petitioner, the present writ petition is
dismissed as withdrawn without prejudice
to the right of the petitioner to pursue the
alternative remedy as may be available to
the petitioner under law, if the petitioner is
so advised.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.04.2011

BEFORE
THE HON'BLE ASHOK BHUSHAN,J.
THE HON'BLE RAN VIJAI SINGH,J.

Civil Misc. Writ Petition No. 16921 of 2011

Om Prakash

 ...Petitioner
Versus
State of U.P. and others ... Respondent

Counsel for the Petitioner:
Sri Dhirendra Kumar Srivastas

Counsel for the Respondent :
C.S.C.
Sri V.B. Maurya

Constitution of India-Article 226-caste
certificate-cancellation by the authority
who had granted-no allegation of fraud
or concealment-held-authority granting
the
certificate
no
doubt
possess
2 All] Om Prakash V. State of U.P. and others
579
authority to cancel the same-but in
impugned
order
nothing
whisper
regarding
fraud
or
concealment
by
petitioner-order set-a-side with liberty
to place entire material before Disst.
Scrutiny of cost committee-with right of
appeal before commission to aggrieved
party.

Held: Para 18

In the facts and circumstances of the
present case, on a complaint, submitted
by respondent no. 4, the Tehsildar has
cancelled the caste certificate by order
dated 28th February, 2011. No finding
has been recorded by Tehsildar that
caste certificate was obtained by the
petitioner by playing fraud on the
authority. The facts of this case are fully
covered by the division bench judgment
of this court in the case of Hizwana Bano
(supra).
Case law discussed:
1994(6) SCC 241; Uttar Pradesh Public
Services (Reservation for Scheduled Castes,
Scheduled Tribe and Other Backward Classes)
Act, 1994; Writ Petition No. 1611 (MB) of 2008
Taramuni Tharu Vs. State of U.P. and others.;
Public Interest Litigation (PIL) No. 1396 of
2011 Tharu Shakti Samiti and Another Vs.
State of U.P. and others; 2011 (1) ADJ 440

(Delivered by Hon'ble Ashok Bhushan,J.)

1. Heard learned counsel for the
petitioner,
learned
standing
counsel
appearing for respondents no. 1 to 3 and
Sri Siddharth Verma, learned counsel for
respondent no. 4.

2. By consent of the learned counsel
for the parties, the writ petition is being
finally disposed of.

3. By this writ petition, the
petitioner has prayed for quashing the
order dated 28th February, 2011 passed
by Tehsildar, Tehsil Sakaldiha, District
Chandauli cancelling the scheduled caste
certificate granted to the petitioner dated
20th
August,
2001
and
25th
September,2010 on complaint filed by
respondent no. 4. The petitioner, who is
the resident of District Chandauli, made
an application for issuing a caste
certificate of scheduled caste category i.e.
'Gond'. The caste certificate was issued by
Tehsildar
Sakaldiha
Chandauli.
A
complaint was filed by respondent no. 4
to the effect that petitioner does not
belong to scheduled caste. A notice dated
4th January, 2011 was issued to the
petitioner to show-cause as to why the
caste certificate be not cancelled. The
Tehsildar, after hearing the petitioner and
the materials brought before him, passed
an order dated 28th February, 2011
cancelling the scheduled caste certificate
granted to the petitioner. The petitioner,
aggrieved by the said order, has filed this
writ petition.

4. Learned counsel for the petitioner
contends that the Tehsildar had no
jurisdiction to pass the impugned order.
He submits that in event the respondent
no. 4 was aggrieved with the scheduled
caste certificate granted to the petitioner,
it was open for him to request for
verification of the caste certificate by
Caste Scrutiny Committee constituted by
the State Government.

5. Refuting the submissions of
learned counsel for the petitioner, learned
counsel appearing for respondent no. 4
contends that the Tehsildar had every
jurisdiction to cancel the certificate. He
has
also
referred
and
relied
the
government order dated 5th January, 1996
as well as government order dated 27th
January, 2011 filed as Annexure C.A. 1
and C.A.2.
580 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

6. Before we proceed to consider the
submissions of learned counsel for the
parties and facts of the present case, it is
necessary to note the relevant provisions
and the government order issued from
time to time by the State of Uttar Pradesh
regulating the issuance of caste certificate
and mechanism for verification of such
caste certificate.

7.

The
Apex
Court,
while
considering the issue of caste certificate
and its verification, has issued certain
general directions in 1994 (6) SCC 241
Kumari Madhuri Patil and another Vs.
Additional
Commissioner,
Tribal
Development and others. The Apex
Court, in the said judgment, has issued
general directions for issuance of social
status certificates (caste certificate, their
scrutiny and approval).

8. In the State of Uttar Pradesh, an
enactment has been passed namely Uttar
Pradesh Public Services (Reservation for
Scheduled Castes, Scheduled Tribe and
Other Backward Classes) Act, 1994.
Section 9 of the said Act provides for
caste certificate, which is the following
effect.

"For the purposes of reservation
provided under this Act, caste certificate
shall be issued by such authority or
officer in such manner and form as the
State
Government
may,
by
order,
provide."

9. The State Government, taking
into consideration the general directions
issued by the Apex Court in Madhuri
Patil's case (supra) as well as power
given under Section 9 of the Act, has
issued the detail government order dated
5th January, 1996 providing for procedure
for issuance of caste certificate and
procedure for verification of caste. By the
said
government
order,
a
Scrutiny
Committee, headed by Principal Secretary
Social
Welfare
Department,
was
constituted to verify the caste certificates.

10. A Division Bench of this Court,
while considering a challenge to an order
of District Magistrate rejecting the claim
of issuance of caste certificate, issued
certain directions in Writ Petition No.
1611 (MB) of 2008 Taramuni Tharu Vs.
State of U.P. and others. Following
observations made by the Division Bench
of this Court, which is quoted as under.

"Considering the submissions made
during the course of arguments and
looking to the fact that this Court is
flooded with the cases, where the caste
certificates
issued
by
the
District
Magistrate are in question, we find that
there is no appropriate forum, where such
a grievance can be raised by the persons
who approach this Court under Article
226 of the Constitution.

Writ jurisdiction does not allow us to
enter into the disputed questions of fact or
to reassess or re-appreciate the findings
recorded by the District Magistrate,
unless, of course, it is established that the
finding
is
perverse
or
absolutely
arbitrary. We also take notice of the fact
that in the matters like the present one,
suit for declaration would also not be
maintainable, in view of the ratio of the
judgment in the case of Kumari Madhuri
Patil
and
another
Vs.
Additional
Commissioner, Tribal Development and
others, (1994) 6 SCC 241.

In the similar circumstances, this Court
had earlier in some cases, required the
2 All] Om Prakash V. State of U.P. and others
581
Chief
Standing
Counsel,
to
take
instructions as to why an appellate forum
be not provided but for one reason or the
other, the instructions could not be made
available.

We,
under
the
circumstances,
provide that the State Government may
consider this question and it does not
appear to be very difficult to provide a
forum for the purpose, may be the
Commissioner of the Division itself.

Let this order be communicated to
the Chief Secretary, Government of U.P.
for
taking
appropriate
action
for
providing appellate forum for the purpose
of
deciding
the
disputes
regarding
issuance of caste certificates, against the
orders passed by the concerned issuing
authority."

11. In pursuance of the aforesaid
observations of the Division Bench, the
State government issued a government
order dated 27th January,2011 providing
for appellate forum headed by Divisional
Commissioner to scrutinize the caste
certificates and to provide a forum to
aggrieved persons from the decision of
Collector,
Sub-Divisional
Officer/Tehsildar
regarding
caste
certificate to file an appeal within 90
days.

12. Another, the Division Bench
while
hearing
the
Public
Interest
Litigation (PIL) No. 1396 of 2011 Tharu
Shakti Samiti and Another Vs. State of
U.P. and others, again issued directions
on 12th January, 2011. The Division
Bench of this Court has made the
following directions.

"In the State of U.P., it appears that
there is only one Committee to consider
the caste certificates. There appears to be
no mechanism by which caste certificate
issued by the Tehsildar/Deputy Collector/
District Magistrate is to be verified. The
reserved
post
or
admission
in
professional colleges are only meant for
those who are entitled to. Utmost care
should be taken to see that a person who
claims
admission/appointment
is
a
genuine person and not a person who has
got
admission/appointment
on
a
certificate which may be false or
fabricated. It is impossible to accept that
in the State of U.P. that one committee
will do the entire exercise.

Considering
the
above,
the
respondents to produce the following
materials before this Court :

Firstly, as to whether the Committees
had been constituted in terms of the
Government Order dated 5.1.1996 for
SC/ST/OBC and the Constitution of the
Members,
including
the
nominated
members.

Secondly, whether the Vigilance Cell
has been attached to the Committee, the
strength of the Vigilance Cell and the
persons selected for the Vigilance Cell.

Thirdly, since the inception, the
number of caste certificates which have
been
scrutinized
by
the
Scrutiny
Committee.

Apart
from
that,
the
State
Government also to place before this
Court, considering the population of SCs,
STs and OBCs in the State of U.P., the
need to have such Scrutiny Committees at
District Level so that all caste certificates
582 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
issued in respect of which admissions
have been obtained against reserved
category posts/seats that these persons
who occupy are genuine persons."

13. The State government again
came with government order dated 28th
February, 2011 which has been produced
before us by learned standing counsel by
which for scrutiny of caste certificate a
Committee at District Level has been
constituted under the Chairman-ship of
the Collector.

14. The government order dated
28th February, 2011 also noticed that
large number of disputes come before the
High
Court
with
regard
to
caste
certificates in which directions are issued
for deciding the matter, the District Level
Committee has been constituted for the
aforesaid purpose.

15.

Another,
Division
Bench
decision of this Court which is to be noted
is the case of Hizwana Bano Vs. State of
U.P. and others reported in 2011 (1)
ADJ 440 where the Division Bench
considered in detail the entire mechanism
regarding verification of caste certificate.
The government order dated 5th January,
1996 has been extracted in the said
division bench judgment as well as the
judgment of the Apex Court in Madhuri
Patil's case (supra).

16. In paragraph no. 8 of the said
judgment, it has also been observed that
the authority issuing the caste certificate,
may not assume jurisdiction to cancel the
caste certificate except in the cases of
fraud on the face of the record. Following
observations was made in paragraph
nos.8, 9 and 11.

"In Kumari Madhuri Patil (supra),
the relevant directions of the Supreme
Court are contained in direction nos. 4 to
9. In other words, the caste certificate
issued in terms of direction no. (1) to be
valid, can only be verified by the
Committee and not by the Revenue
Officers, like Sub-Divisional Officers,
Deputy
Collector
or
Deputy
Commissioner, in the present case, the
respondent no. 2.

The respondent no. 2, for the
purpose of granting a caste certificate,
has to consider what has been set out in
para 3 of the Government Order, which is
in consonance with the direction no. 2 of
the directions issued by the Supreme
Court in Kumari Madhuri Patil (supra). It
is only in the event, the respondent no. 2
is satisfied, based on the material
produced before him that the applicant
belongs to the caste / tribe, then only the
certificate would be verified. Once that be
the procedure, it is not open to the
respondent no. 2 to assume jurisdiction to
cancel the caste certificate except may be
in a case of fraud on the face of the
record, as fraud vitiates all actions.
Respondent no. 2, therefore, ordinarily
would have no jurisdiction to reconsider
the issuance of the caste certificate and
pass orders cancelling the certificate or
otherwise.

When a complainant contends that a
caste certificate was wrongly issued or
obtained by suppressing facts or the like,
then in that event, it would be open to the
complainant, even if the complainant is a
stranger as long as his rights are affected,
to move the Caste Scrutiny Committee, to
verify the caste certificate by setting out
the reasons and objections as to why the
caste certificate should not be verified.
2 All] Om Prakash V. State of U.P. and others
583
Para 3 of the Government Order would
show that verification is not only with
regard to admission in any educational
institution or appointment in any service
but also for other reasons. Therefore,
whenever a person seeks to rely on a
caste certificate for claiming any benefits,
he would be entitled to, then in that event,
if a complainant intervenes to oppose the
verification of such caste certificate or
independently applies before the Caste
Scrutiny Committee, the procedure for
verification
shall
be
followed
and
necessary orders shall be passed by the
Committee after following due procedure.

If the issue is now considered in the
light of the above discussions, it would be
clear that the respondent no. 2 would
cease to have jurisdiction, once the caste
certificate was issued. The Tehsildar in
these circumstances would have no
authority to recall or cancel the same,
except may be in a case of fraud.
Respondent no. 2, however, would have
the power to correct clerical or artificial
mistakes. The jurisdiction to verify the
caste certificate and whether it should be
validated or invalidated is of the Caste
Scrutiny Committee."

17. In view of the foregoing
discussions, it is clear that a person
aggrieved by issuance of caste certificate
has remedy to approach the Caste
Scrutiny Committee in event the matter
has not come before the Scrutiny
Committee in normal course. Now in
view of the government order dated 27th
January, 2011 and 28 February, 2011 as
noticed above a Committee has been
constituted
for
scrutiny
of
caste
certificate. An aggrieved person as well
may
approach
the
said
Scrutiny
Committee
raising
his
grievance.
However the authority issuing the caste
certificate has also jurisdiction to cancel a
caste certificate which has been obtained
by playing fraud or concealing the
relevant facts. An order issued by the
authority can always be recalled where it
has been obtained by practising fraud.

18. In the facts and circumstances of
the present case, on a complaint,
submitted by respondent no. 4, the
Tehsildar
has
cancelled
the
caste
certificate by order dated 28th February,
2011. No finding has been recorded by
Tehsildar that caste certificate was
obtained by the petitioner by playing
fraud on the authority. The facts of this
case are fully covered by the division
bench judgment of this court in the case
of Hizwana Bano (supra).

19. In the result, the order dated 28th
February, 2011 is set aside. However,
liberty is given to respondent no. 4 to
submit a detail application along with
relevant materials before the Committee
headed by Collector of the District as per
the
government
order
dated
28th
February. 2011 within one month from
today. The Collector after receiving the
appropriate complaint against issuance of
caste certificate, may issue notice to
respondent no. 4 and give opportunity to
him to file his representation and
thereafter take a final decision regarding
the entitlement of the petitioner to the
caste certificate of scheduled caste.

20. It goes without saying that caste
certificate issued to the petitioner dated
20th August, 2001 and 25.9.2010 shall
abide by the decision of the District
Committee and aggrieved person from the
such decision shall have also right to file
an appeal before the appellate forum
584 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
constituted by the government order dated
27th January, 2011.

With the aforesaid direction, the writ
petition is disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.04.2011

BEFORE
THE HON'BLE PANKAJ MITHAL,J.

Civil Misc. Writ Petition No. 17472 of 2009

Atul Kumar

 ...Petitioner
Versus
State of U.P. and others ...Respondent

Counsel for the Petitioner:
Smt. Archana Tyagi
Sri Pankaj Kumar Tyagi

Counsel for the Respondent:
C.S.C.

(A) Uttar Pradesh Stamp (Valuation of
Property) Rules 1997-Rule 4 and 5-Mode
of calculation of valuation of commercial
building-argument that on monthly rent
only 300 time would be valuation-while
the
authorities
valued
the
Building
including
structure
also-heldmisconceived-undisputedly
building
standing on land-being subject matter of
transaction-order passed by authoritiesheld justified.

Held: Para 16

In view of the aforesaid facts and
circumstances,
the
authorities
have
rightly determined the minimum market
value of the property covered by the sale
deed
dated
21.106
by
adding
the
minimum market value of the land and
the building together. The submission
that in case of a commercial building
only the minimum market value of the
building as determined under Rule 5 of
the Rules is to be considered and not the
land cannot be accepted as the land also
had formed part of the sale.

(B) Constitution of India, Article 226valuation of commercial property fixedas
per
valuation
assessed
by
the
authority-including
commercial
to
structure as well as the land covered by
such structure-proper-but penalty can
not be imposed without assigning any
reason.

Held: Para 18 & 19

A perusal of the impugned orders reveal
that the authorities have not assigned
any reason for imposing penalty. No
finding has been recorded that the
petitioner willfully and deliberately had
disclosed lower market value with the
intention to evade stamp duty.

In the case of Smt. Sonia Jindal Vs. State
of
U.P.
and
others,
Writ
Petition
No.20357 of 2011 decided on 7.4.2011, I
have already held that the order of
penalty cannot stand unless some reason
is assigned and a finding of intentional
evaision of stamp duty is recorded. In
the absence of any reasoning and a
finding to the above effect makes the
order of penalty unsustainable in law.
Case law discussed:
Writ Petition No.20357 of 2011 decided on
7.4.2011,

(Delivered by Hon'ble Pankaj Mithal,J.)

1. Heard Smt. Archana Tyagi,
learned counsel for the petitioner and Sri
Nimai Das, learned Standing Counsel for
the respondents.

2. Pleadings have been exchanged
between the parties and they agree for
final disposal of the writ at the admission
stage itself.