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CASE NO.: Appeal (civil)  6365-6382 of 1999

PETITIONER: Tejumal Bhojwani and Ors.            

RESPONDENT: Vs. State of U.P.                                  

DATE OF JUDGMENT: 26/08/2003@ CJI &  S.B. Sinha. & ORDER

With C.A. Nos. 6383-6398 of 1999

       The appellants herein (in C.A. Nos. 6365-6382 of  1999) were the owners of large tract of land situate in  village Chhauni Gora Barik and/or Chhauni Qadim,  Pargana Khairabad, Tehsil and District Sitapur in the  State of Uttar Pradesh.  The respondent herein (in C.A.  Nos. 6365-6382 of 1999) is the State of U.P., through the  Collector, [Land Acquisition Officer, Avas Evam Vikas  Parishad (hereinafter referred to as ’the Parishad’)],  established and constituted under the provisions of U.P.  Avas Evam Vikas Parishad Adhiniyam, 1965 (for short  ’the Adhiniyam’).  Under the Adhiniyam, the Parishad is  entrusted with certain functions and duties for preparing  and executing housing schemes.  For the aforesaid  purpose in mind, the Parishad issued a notification dated  1st of November, 1974 under Section 28 of the  Adhiniyam, which is equivalent to Section 4 of the Land  Acquisition Act, 1894.  By the aforesaid Notification a  large tract of land was sought to be acquired pursuant to  a Housing Scheme for construction of houses for the  public.  The said notification was followed by a  Notification dated 11th November, 1978, under Section 32  of the Adhiniyam, which is equivalent to Section 6 of the  Notification.

       The Land Acquisition Officer gave three different  Awards on three different dates.  In the case of appellants  herein, the Land Acquisition Officer offered compensation  for the acquired land @ Rs. 2/- per square feet in first  two Awards and Rs.3/- per square feet in the last Award.   It is pertinent to mention here that the Land Acquisition  Officer offered separate compensation for the structure  standing on the land as well as to the existing Tube Well.   The claimants were not satisfied by the compensation  and, therefore, they sought compensation before the Civil  Court.  The Civil Court enhanced the compensation to  Rs.7.75, Rs. 12/- and Rs.15/- per square feet  respectively and also enhanced the compensation  awarded for the Tube Well as well as the structure  standing on the land.  Aggrieved, the parties preferred  appeals and cross appeals before the High Court.         The High Court after considering the matters,  modified the judgment of the Reference Court awarding  compensation @ Rs.10/- per square feet.  However, it  declined to award separate compensation for the Tube  Well and the structure standing on the Land.  The High  Court, however, held that there would be further  deduction @ 10% towards the development of the land.  

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The claimants, (appellants in C.A. Nos. 6365-6382 of  1999 and the U.P. Avas Evam Vikas Parishad and  appellants in C.A. Nos. 6383-6398 of 1999) not satisfied,  preferred separate appeals by way of special leave  petition.

       This Court, while entertaining the special leave  petitions, restricted the notice on the following three  questions:

(1)     Whether solaltium and interest should have been  awarded as per the Land Acquisition  (Amendment) Act, 1984 as laid down by this  Court in U.P. Avas Evam Vikas Parishad Vs.  Jainul Islam and Anr. (1998 (2) S.C.C. 467); (2)     Whether appropriate compensation should have  been awarded for structures and tube wells  situated on the land concerned; and  (3)     Whether the offer regarding payment of  compensation for trees given by the Land  Acquisition Officer could be withdrawn in Section  18 proceedings.

So far Civil Appeal Nos. 6365-6382 of 1999 are  concerned, the grounds challenged were limited as  indicated above.

Mr. S. Ganesh, learned senior counsel appearing for  the appellants, urged that in view of the latest decision of  this Court in the case of Savitri Cairae Vs. U.P. Avas  Evam Vikas Parishad and Anr., reported in 2003 (6) SCC  255, the claimants whose land were acquired by the  Parishad and whose proceedings are pending in the year  1984, are entitled to solatium as provided under the  Land Acquisition (Amendment) Act, 1984.  We find merit  in the submission.  In view of the decision in Savitri  Cairae’s case (supra), it must be held that each of the  appellants are entitled to solatium @ 30%, interest and  additional compensation.

Next submission of learned senior counsel is that  the claimants were entitled to separate compensation for  the Tube Well as well as for the structure standing on the  land and the High Court committed error while denying  compensation for the above items, although the Land  Acquisition Officer has granted compensation for those  items.  We find substance in the argument.  However,  learned counsel appearing for the Parishad argued that  the claimants were not entitled to compensation for value  of land and building separately and for that purpose cited  a decision of this Court in Ratan Kumar Tandon and Ors.  Vs. State of U.P., reported in 1997 (2) SCC 161.  We find  that the said decision is distinguishable.  In that case we  find that there was capitalisation of the value of land and  structure and, therefore, the claimants were not given  separate compensation for land and building.  Here we  find that there was no capitalisation of value of land and  structure by the Land Acquisition Officer in his award.   On the other hand, Land Acquisition Officer has given  compensation separately for the land, building and Tube  Well.  In that view of the matter claimants are entitled to  separate compensation for land, Tube Well and structure.

Learned counsel appearing in C.A. Nos. 6383-6398  of 1999 urged that the High Court, while deducting the

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development charges @ 10% from compensation, acted  erroneously, and in fact the deduction ought to have  been between 30 to 40% and for that purpose he relied  on the decision in Shimla Development Authority and  Ors. Vs. Smt. Santosh Sharma and Anr., reported in AIR  1997 SC 1791.  It is true that the deduction for  development charges ought to be adequately provided for,  but it varies from place to place, area to area and amount  of developments which are required to be carried out and  thus there cannot be any fixed amount of deduction  towards development charges.  In the present case, we  find that the total land acquired was about 27 acres.  We  are, therefore, of the view that it would be appropriate if  the development charges @ 25% is deducted from the  compensation awarded to the claimants.

For the aforesaid reasons, the orders and judgment  under challenge are modified and the appeals are  disposed of in the aforesaid terms.  No costs.   

+ 5 659 2003 ! Punit Rai                                                        Vs. Dinesh Chaudhary                                                 @ August 19, 2003.

BENCH: S.B. Sinha

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       Matter relating to castes, races and tribes of a person is  governed by Articles 341 and 342 of the Constitution of India.  Article  341 reads thus:

"341 SCHEDULED CASTES.  (1) The President may with respect to any State  or Union territory, and where it is a State  after consultation with the Governor thereof,  by public notification, specify the castes,  races or tribes or parts of or groups within  castes, races or tribes or parts of or groups  within castes, races or tribes which shall for  the purposes of this Constitution be deemed to  be Scheduled Castes in relation to that State  or Union territory, as the case may be.  (2) Parliament may by law include in or exclude  from the list of Scheduled Castes specified in

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a notification issued under clause (1) any  caste, race or tribe or part of or group within  any caste, race or tribe, but save as aforesaid  a notification issued under the said clause  shall not be varied by any subsequent  notification."         The object of Clause (1) of Article 341 is to provide  preferential right by way of protection to the members of the Scheduled  Caste having regard to the economic and educational backwardness from  which they suffer.  It is in relation thereto the President has been  authorised to limit the notification to parts or groups within the  castes.  The notification issued in terms of the said provision is  exhaustive.   

       How the caste or tribe of the person is to be determined depends  upon several factors including the customary laws.

       The President of India in exercise of his power conferred under  Article 341(1) of the Constitution of India notified Constitution  (Scheduled Castes) Order, 1950.  The tribe ’Pasi’ admittedly finds  place in the said notification whereas ’Kurmi’ does not.  By reason of  Articles 341 of the Constitution, a legal fiction is created which is  to be given its full effect.

       Caste has been defined in Collins English Dictionary as  "any of  the four major hereditary classes, namely, the Brahman, Kshatriya,  Vaisya and Sudra into which Hindu society is divided".

       The caste system in India is engrained in Indian mind.  A person,  in the absence of any statutory law, would inherit his caste from his  father and not his mother even in a case of inter-caste marriage.   

       In ’the caste system in India - Myth and Reality’ by Dr. Rajendra  Pandey, the different attributes of the caste as unit mentioned by  various writers has been stated thus :

"1.     Basic (pivotal) attributes: Endogamy. 2.      Sufficiently relevant attributes : (i)     Membership by birth (ii)    Common occupation (iii)   Caste Council. 3.      Peripheral attributes : (i)  Name (ii)    Diacritical signs.

Following the same pattern of attribute- hierarchy, the attributes that characterize  caste as system have been drawn up and set in  as follows : 1.      Basic attribute: Plurality of interacting  endogamous groups. 2.      Sufficiently relevant attribute:  Hierarchy. 3.      Peripheral attribute : Traditional  division of labour.

Besides these, Ghurye among others, has  also mentioned segmental division of society,  hierarchy, restriction on feeding and social  intercourse, and civil and religious  disabilities and privileges of the different  sections as characteristics of the caste.   Above them all, Nagendra has made mention of  the principle of individual freedom as one of

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the attributes of the caste, which seems to  have been omitted by most of the authors.

       In summary, then, hierarchy, restricted  commensality and connubium, hereditary  occupation and a clear-cut differentiation of  functions, ritual observance, and the principle  of individual freedom are characteristics of  the caste system till today."

In ’Caste in Modern India and other Essays’ by M.N. Srinivas at  page 3, it is stated :

"A sociologist would define caste as a  hereditary, endogamous, usually localized  group, having a traditional association with an  occupation, and a particular position in the  local hierarchy of castes.  Relations between  castes are governed, among other things by the  concepts of pollution and purity, and  generally, maximum commensality occurs within  the caste."

In ’Caste and the Law in India’ by Justice S.B. Wad at page 30  under the heading ’Sociological Implications’, it is stated :

"Traditionally, a person belongs to a caste in  which he is born.  The caste of the parents  determines his caste but in case of re- conversion a person has the liberty to renounce  his casteless status and voluntarily accept his  original caste.  His caste status at birth is  not immutable.  Change of religion does not  necessarily mean loss of caste.  If the  original caste does not positively disapprove,  the acceptance of the caste can be presumed.   Such acceptance can also be presumed if he is  elected by a majority to a reserved seat.   Although it appears that some dent is made on  the classical concept of caste, it may be  noticed that the principle that caste is  created by birth is not dethroned.  There is  also a judicial recognition of caste autonomy  including right to outcaste a person."                  If he is considered to be a member of Scheduled Caste, he has to  be accepted by the community.   (See C.M. Arumugam Vs. V.S. Rajgopal  and Others (1976) 1 SCR 82 and Principal, Guntur Medical College v. V.  Y. Mohan Rao â\200\223 (1976) 3 SCR 1046).

       A Christian by birth when converted to Hinduism and married a  member of Scheduled Caste was held to be belonging to her husband’s  caste on the evidence that she had not only been accepted but also  welcomed by the important members, including the President and Vice- President of the community. [See Kailash Sonkar vs. Smt. Maya Devi [AIR  1984 SC 600].

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       In the instant caste there is nothing on record to show that the  Respondent has ever been treated to be a member of Scheduled Caste.  In  fact evidence suggests that he has not been so treated.   He as well as  his brothers and other members of his family are married to persons  belonging to his own caste i.e. ’Kurmi’.   

       There was no attempt on the part of the respondent herein to  bring on records any material to the effect that he was treated as a  member of ’Pasi’ community.  Furthermore, no evidence has been brought  on record to show that the family of the respondent had adopted and had  been practising the customary traits and tenets of ’Pasi’ community.         

       The question as to whether a person belongs to a particular caste  or not has to be determined by the statutory authorities specified  therefor.

       In B.Basavalingappa Vs. D.Munichinnappa [(1965) 1 SCR 316], a  Constitution Bench of this Court considered the scope of Article 341(1)  and (2) (which is in pari materia with Article 342(1) and (2)), and  held that it is not open to any person to lead evidence to establish  that the caste to which he belongs to is the same as and/ or part of  another caste, which is included in the Constitution (Scheduled Castes)  order, it was observed:

"It may be accepted that it is not open to make  any modification in the Order by producing  evidence to show (for example) that though  caste A alone is mentioned in the Order, caste  B is also a part of caste A and therefore must  be deemed to be included in caste A. It may  also be accepted that wherever one caste has  another name it has been mentioned in brackets  after it in the Order [see Aray (Mala) Dakkal  (Dokkalwar) etc.]. Therefore, generally  speaking it would not be open to any person to  lead evidence to establish that caste B (in the  example quoted above) is part of caste A  notified in the Order.

       (See also Parsram Vs. Shivchand AIR 1969 SC 597 paras 38 & 39)

       In Kumari Madhuri Patil Vs. Addl. Commissioner, Tribal  Development and Other [(1994) 6 SCC 241], this court denounced the  practice of persons claiming benefits conferred on STs by producing  fake, false and fraudulent certificates observing:

"The admission wrongly gained or appointment  wrongly obtained on the basis of false social  status certificate necessarily has the effect  of depriving the genuine Scheduled Castes or  Scheduled Tribes or OBC candidates as enjoined  in the Constitution of the benefits conferred  on them by the Constitution. The genuine  candidates are also denied admission to  educational institutions or appointments to  office or posts under a State for want of  social status certificate. The ineligible or  spurious persons who falsely gained entry  resort to dilatory tactics and create hurdles  in completion of the inquiries by the Scrutiny  Committee. It is true that the applications for  admission to educational institutions are  generally made by a parent, since on that date  many a time the student may be a minor. It is  the parent or the guardian who may play fraud

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claiming false status certificate."

       Similar observations have also been made in Director of Tribal  Welfare Vs. Laveti Giri [(1995) 4 SCC 32].

       A person in fact not belonging to Scheduled Caste, if claims  himself to be a member thereof by procuring a bogus caste certificate,  would be committing fraud on Constitution.  No court of law can  encourage commission of such fraud.   

       This Court in Kumari Madhuri Patil and Another Vs. Addl.  Commissioner Tribal Development, Thane and Others (Second) [(1997) 5  SCC 437] laid down the law thus:  

"3. As regards prayer (b) read with direction  No. (iv) of the Order of this Court, we too  appreciate the inconvenience caused due to vast  area of the State. Therefore, instead of one  committee of three officers, there will be  three Scheduled Tribe/Caste Scrutiny Committees  comprising of five members with quorum of three  members, as suggested in para 4 of the  directions, to take a decision. At Pune, Nasik  and Nagpur, six Caste Scrutiny Committees for  SCs, Denotified Tribes, Nomadic Tribes, Other  Backward Classes and the Special Backward  Category in existence at Mumbai, Pune, Nasik,  Aurangabad, Amaravati and Nagpur would continue  to scrutinise the certificates issued by the  respective officers and take a decision in that  behalf. In this regard, it is also suggested by  Shri Dholakia, learned Senior Counsel for the  applicant, that in case any certificate has  been wrongfully refused by the certificate  issuing authority, the aforestated Committees  also would go into the question and decide in  that behalf, whether refusal was wrongful and  in case it finds that the refusal was wrongful,  they are at liberty to direct the authority to  grant the certificate.  5. With regard to prayer (d), along with the  Vigilance Cell, one Research Officer/Tribal  Development or Social Welfare Officer would be  associated in finding the social status of  eligibility of the officers."  

       Determination of caste of a person is governed by the customary  laws. A person under the customary Hindu Law would be inheriting his  caste from his father.  In this case, it is not denied or disputed that  the respondent’s father belonged to a ’Kurmi’ caste.  He was,  therefore, not a member of Scheduled Caste.  The caste of the father,  therefore, will be the determinative factor in absence of any law.   Reliance, however, has been placed upon a circular dated 3.3.1978 said  to have been issued by the State of Bihar which is in the following  terms:

"Subject: Determination of caste of a child  born from Non-Schedule Caste Hindu father and  Schedule Caste mother.

Sir,         In the aforesaid subject as per  instruction I have to state for the

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determination of a child born from Non-Schedule  Caste father and schedule caste mother, upon  deliberation it has been decided that child  born from such parents will be counted in the  category of schedule caste. 2.      In such cases before the issue of caste  certificate there will be a illegible enquiry  by the block development officer/ circle  officer/ block welfare officer."

       The said circular letter has not been issued by the State in  exercise of its power under Article 162 of the Constitution of India.   It is not stated therein that the decision has been taken by the  Cabinet or any authority authorized in this behalf in terms of Article  166(3) of the Constitution of India.  It is trite that a circular  letter being an administrative instruction is not a law within the  meaning of Article 13 of the Constitution of India.  (See Dwarka Nath  Tewari and Others Vs. State of Bihar and Others AIR 1959 SC 249)

       A person can take the benefit of a reserved category candidate if  he satisfies the test laid down by the Constitution of India, the  Representation of the People Act, 1950 and the guidelines issued by the  Election Commission, if any.   

       In our opinion, the State has no jurisdiction to reserve a  Constituency for a person who does not belong to the reserved category  for whose benefit it was constituted except by way of a legislation.

       If a customary law is to be given a go-bye for any purpose  whatsoever and particularly for the purpose of enlarging the scope of a  notification issued by the President of India under Clause (1) of  Article 341 of Constitution of India, the same must be done in terms of  a statute and not otherwise.

       The High Court itself noticed that the caste certificate of the  Respondent was found to be forged by the Returning Officer and a  criminal case is pending.  It was held:

"Definitely, if a person is born of a Kurmi  father or in a Kurmi family then the  presumption goes that the child is Kurmi by  caste.  But here the respondent could make out  a special case that, although, he has been born  of a Kurmi father but mother being a Pasi, he  is a Scheduled Caste and as such, a competent  person to contest from the Reserved  Constituency."   

       The High Court, therefore, erred in so far as it failed to  consider that for the purpose of determination of caste, the Respondent  could not have relied upon the circular letter dated 3.3.1978 in  absence of any law.  In any event, it has not been shown by the  Respondent as to what enquiry was made for determination of his caste.   If he had taken part in some enquiry, he had special knowledge in  respect thereof within the meaning of Section 106 of the Evidence Act.   He, therefore, was bound to prove the same by bringing on records  relevant evidence which was in his power or possession.

        If a special case is to be made out, the same has to be done in  accordance with law.  It must meet the legal requirement.   Unfortunately, this aspect of the matter has not been considered by the

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High Court.  The impugned judgment, therefore, cannot be sustained.

       Subject to aforementioned, I respectfully agree with the opinion  of my learned brother.