IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 1377 of 2002(C)
1. A.N.RAMACHANDRAN S/O. A.K.NARAYNAN,
... Petitioner
2. A.N./CHANDRAMATHY, PUZHPAK, MULLUKKARA,
3. A.N.SAROJINI, PADINJAKARA HOUSE,
4. A.R.SAJEESH S/O. N.RAMACHANDRAN,
5. A.R.SHEENA, D/O..A.N.RAMACHANDRAN,
Vs
1. THE SCRUTINY COMMITTEE FOR VERIFICATION
... Respondent
2. THE VIGILANCE CELL, DIRECTORATE OF
3. KIRTADS, DIRECTORATE OF KIRTADS,
4. THE UNION BANK OF INDIA, REPRESENTED
5. THE STATE BANK OF TRAVANCORE,
6. THE UNIVERSITY OF CALICUT, REPRESENTED
7. THE TAHSILDAR, PALAKKAD
8. STATE OF KERALA, REPRESENTED BY
For Petitioner :SMT.V.P.SEEMANDINI (SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :28/01/2009
O R D E R
K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ.
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M.F.A. NO: 1377 OF 2002
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Dated this the 28th January, 2009.
JUDGMENT
BALAKRISHNAN NAIR, J.
The appellants challenge the proceedings of the Scrutiny
Committee for verification of community certificate (No: 3445/G-
2/97/SCSTDD) dated 21.11.2002. By the said order, the Scrutiny
Committee constituted under the Kerala (Scheduled Castes and
Scheduled Tribes) Regulation of Issue of Community Certificates
Act, 1996 (hereinafter referred to as the ‘Act’) has held that the
appellants do not belong to Thandan Scheduled Caste Community,
but belong to Thiyya community. The above decision of the
Scrutiny Committee rendered under Section 11 of the Act, is
challenged by filing this Miscellaneous First Appeal under Section
12(3) of the Act.
2. The brief facts of the case are the following:- Appellants 2
and 3 are the sisters of the first appellant and appellants 4 and 5
are the children of the first appellant. Appellants claim that they
belong to Thandan community, which is declared as a scheduled
caste, as per the Presidential Notification issued in 1976. Several
M.F.A.No: 1377/2002 2
documents which came into existence long before 1976, would
show that the appellants and their predecessors were members of
Thandan community, it is submitted. They also rely on a few
judgments of this Court, upholding the claim of their close relatives
that they belong to Thandan Scheduled Caste Community.
3. Appellants 2 and 3 got employment in the State Bank of
Travancore and Union Bank of India respectively on 26.10.1978
and 22.9.1980, in the quota reserved for scheduled caste. They
produced caste certificates issued by the competent authority,
while seeking appointment under the said Banks. While so, based
on some petitions filed by persons having vested interest against
appellants 2 and 3, the Vigilance Officer of KIRTADS, Kozhikode
issued notices to them to appear before him on 9.8.1996 and
15.10.1996 for an enquiry into the caste status of them. They
appeared on the said dates and submitted all documents in support
of their claim that they are members of the scheduled caste
Thandan Community. Later, they were served with a copy of the
report dated 16.12.1996, prepared by the second respondent
KIRTADS, along with a show cause notice issued by the first
respondent/Scrutiny Committee. The appellants submitted a
detailed written explanation on 2.5.1997 along with 44 documents
to support their scheduled caste status. They were personally
M.F.A.No: 1377/2002 3
heard by the first respondent on 30.6.1999. They appeared
through counsel and made their submissions. Later, again they
were served with a notice in October 2002, calling upon them to
appear before the Scrutiny Committee for personal hearing on
26.10.2002. On that date also they appeared and reiterated their
contentions.
4. In the meantime, the first appellant who is the brother of
appellants 2 and 3 approached the Tahsildar, Palghat for issuing
community certificates for his two children, the 4th and 5th
appellants. The Tahsildar rejected his request, by order dated
13.8.1998. He filed an appeal against that order before the
Revenue Divisional Officer. The Revenue Divisional Officer rejected
his appeal by proceedings dated 7.9.1998. The first appellant
preferred a revision before the Government. In the meantime,
appellants 4 and 5 had to approach this Court to get community
certificates, to get admission for higher studies. A Division Bench
of this Court directed the State Government to dispose of the
revision filed on behalf of appellants 4 and 5 within a time frame.
5. In the meantime, the vigilance cell of the KIRTADS had
already initiated proceedings against appellants 1, 4 and 5, to
determine their caste status. The Vigilance Officer of the KIRTADS
submitted a report against them on 28.9.2001. They were served
M.F.A.No: 1377/2002 4
with a copy of the said report by the Scrutiny Committee. The first
appellant appeared before the Committee on 28.9.2002. Again, he
appeared along with his counsel before the Scrutiny Committee on
19.10.2002. Finally, the matter was heard on 26.10.2002. Over-
ruling the objections of the appellants, the Scrutiny Committee
passed a common combined order by proceedings dated
21.11.2002, holding that the appellants do not belong to
scheduled caste Thandan Community, but are members of Thiyya
community, which is an OBC in Kerala. Aggrieved by the said order,
the present appeal is filed by them. During the pendency of the
appeal, based on the impugned order of the Scrutiny Committee,
consequential adverse orders have been passed against them by
the Government, a copy of which is produced in this appeal along
with C.M.P.8237/2002.
6. The appellants attack the reports of the KIRTADS as also
the impugned order of the Scrutiny Committee on various grounds.
They submit that the KIRTADS prepared the reports based on
enquiries made behind their back. Though, the appellants
requested before the Scrutiny Committee to give a chance to cross-
examine the witnesses, who have given statements against them,
the said claim was rejected. Secondly, it is submitted that A.N.
Sivanandan, who is the brother of appellants 1 to 3, got a decision
M.F.A.No: 1377/2002 5
in his favour, declaring his caste as Thandan in O.P.4506/1979.
Similarly their father’s brother’s daughter Padmini also got a
decision in her favour declaring that she belongs to Thandan
community in O.P.5010/1987. Thirdly, it is contended that several
documents, including those of pre-independent period, describe the
predecessors of the appellants as belonging to Thandan
community. While those documents were drafted, no one had an
inkling that Thandan community is going to be declared as a
Scheduled Caste Community in 1976. Such documents have great
probative value. Therefore, such documents and other documents
produced before the Scrutiny Committee should have been relied
on by the said authority. Instead, all those relevant documents
were rejected on flimsy grounds. It is also submitted that there
was also omission to consider some of the relevant documents
produced by the appellants. So the impugned order is vitiated, it
is submitted.
7. The official respondents have filed a detailed counter
affidavit and have produced the two reports of the vigilance cell of
the KIRTADS against the appellants. They also produced various
documents, which were relied on by the Scrutiny Committee to
reject the scheduled caste claim of the appellants. The learned
Special Govt. Pleader, appearing for the official respondents,
M.F.A.No: 1377/2002 6
submitted that going by Section 10 of the Act the burden of proof
to show that they belong to the Scheduled Caste Thandan
Community rests heavily on the appellants. But, they have failed to
produce any reliable material to support their claim. He also
pointed out that Section 9(2) of the Act makes the reports of the
expert agency (KIRTADS) conclusive proof for or against the
scheduled caste or scheduled tribe claim, as the case may be, of
the persons concerned. The Scrutiny Committee being a statutory
authority is bound by the said statutory provision. So, even if
evidence is let in before the Scrutiny Committee in support of their
claim of Scheduled Caste status, in view of sub-section (2) of
Section 9, such evidence cannot be looked into by the Scrutiny
Committee. The learned Special Govt. Pleader also brought to our
notice the various documents relating to the appellants and their
close relatives, including school admission registers, which would
show that they are in fact members of Thiyya community and to
corner the benefits available to the members of scheduled caste,
recently they have started calling themselves as Thandans and got
caste certificates for the said purpose. In this case, based on the
relevant evidence on record, the decision has been rendered by the
Scrutiny Committee. Therefore, the learned Govt. Pleader prayed
for dismissal of the appeal.
M.F.A.No: 1377/2002 7
8. We considered the rival submissions made at the Bar. We
also went through the two reports of the KIRTADS and the
impugned order of the Scrutiny Committee. We have perused the
materials placed by both sides before the said Committee. We will
first deal with the contention raised by the learned Special
Government Pleader relying on Section 9(2) of the Act. Section 9(2)
reads as follows:-
“The report of the Expert Agency shall be
conclusive proof for or against the Scheduled Caste or
the Scheduled Tribe claim, as the case may be, of the
persons reported upon.”
Section 4 of the Indian Evidence Act defines what is conclusive
proof in the following manner:-
“When one fact is declared by this Act to be
conclusive proof of another, the Court shall, on proof
of the one fact, regard the other as proved, and shall
not allow evidence to be given for the purpose of
disproving it.”
In many enactments, we find provisions dealing with conclusive
proof. In certain enactments it is said that some fact will be
conclusive evidence of some other fact. The distinction between
these two expressions has been settled by the Apex Court in Smt.
Somawanti and others v. The State of Punjab and others (AIR
1963 SC 151) . Majority of the Judges in that case held that there
is no substantial distinction between the above said two
M.F.A.No: 1377/2002 8
expressions. When fact (a) is said to be conclusive evidence of
fact (b), then fact (b) can be proved either by proving the existence
of fact (a) or by some other evidence. Once fact (a) is proved, it will
be impermissible to adduce any evidence to disprove fact (b). In
the said decision it was held as follows:-
” 19. The object of adducing evidence is to
prove a fact. The Evidence Act deals with the
question as to what kind of evidence is permissible
to be adduced for that purpose and states in S.3
when a fact is said to be proved. That section reads
thus:
‘Evidence means and includes—
(1) all statements which the court permits or
requires to be made before it by witnesses, in
relation to matters of fact under inquiry; such
statements are called oral evidence;
(2) all documents produced for the inspection
of the Court such documents are called
documentary evidence.
A fact is said to be proved when, after
considering the matters before it, the Court either
believes it to exist, or considers its existence so
probable that a prudent man ought, under the
circumstances of the particular case to act upon the
supposition that it exists.’
Since evidence means and includes all statements
which the Court permits or requires to be made,
when the law says that a particular kind of evidence
would be conclusive as to the existence of a
particular fact it implies that that fact can be proved
either by that evidence or by some other evidence
which the court permits or requires to be advanced.
Where such other evidence is adduced it would be
open to the Court to consider whether, upon that
evidence, the fact exists or not. Where on the other
hand, evidence which is made conclusive is adduced,
the Court has no option but to hold that the fact
exists. If that were not so it would be meaningless
to call a particular piece of evidence as conclusive
evidence. Once the law says that certain evidence is
conclusive it shuts out any other evidence whichM.F.A.No: 1377/2002 9
would detract from the conclusiveness of that
evidence. In substance, therefore, there is no
difference between conclusive evidence and
conclusive proof. Statutes may use the expression
‘conclusive proof’ where the object is to make a fact
non-justiciable. But the legislature may use some
other expression such as ‘conclusive evidence’ for
achieving the same result. There is thus no
difference between the effect of the expression
‘conclusive evidence’ from that of ‘conclusive proof’,
the aim of both being to give finality to the
establishment of the existence of a fact from the
proof of another.”
Thus, if the report of the KIRTADS held that a person does not
belong to scheduled caste, then that issue is no longer justiciable.
9. But, the finality given under a statute to the decision of a
statutory authority is available, if only the decision is taken in
accordance with law. If the decision is taken in violation of the
provisions of the statute or without following the due procedure,
then such a decision can be impugned even before ordinary civil
courts, notwithstanding the finality clause. Therefore, we feel that
if the appellants are able to show some fundamental flaw in the
procedure followed by the Scrutiny Committee in arriving at its
conclusion, the provisions of Section 9(2) will not stand in the way
of examining the validity of the impugned order. So, the non-
justiciability of the finding of the KIRTADS pointed out by the
learned Special Government Pleader will depend upon the
irregularities or illegalities pointed out by the appellants against
M.F.A.No: 1377/2002 10
the report. In other words, it is not a matter which can be decided
at the threshold. It is a contention to be decided along with the
merits of the grounds put forward by the appellants.
10. Now, we will examine the documents produced by both
sides concerning the appellants. First, we will refer to the
documents produced by the first appellant. It is common case that
Kunjiraman and Chellu are the grand parents of appellants 1 to 3.
Kunjiraman had 9 children. A.K.Narayanan, who is one among
them is the father of appellants 1 to 3. Document No: 151 of 1114
(Annexure A1 produced by the first appellant before the Scrutiny
Committee) describes A.K.Narayanan as the son of Thandan
Kunjiraman. Annexure A2 is a mortgage deed executed by
A.K.Narayanan, son of Thandan Kunjiraman. Annexure A3 which is
a document of 1932 describes Chami, father of Kunjiraman as
Thandan Chami. Annexure A4 describes Kunjiraman the paternal
grand father of first appellant as Thandan. Annexure A5 also
describes Kunjiraman as Thandan. In Annexure A6, produced by
the very same appellant, Kunjirman, who is the paternal grand
father, is described as Thandan. In Annexure A7 also, again
Kunjiraman is described as Thandan.
11. Now, we will refer to the documents produced by
appellants 2 and 3. Document No: D9 of 1913 produced by them
M.F.A.No: 1377/2002 11
before the Scrutiny Committee describes Kunjirman’s father Chami
as Thandan. The School admission registers of A.K.Girija and
Subadra, who are the daughters of the brother of A.K.Narayanan,
would show that they belonged to Thandan community. Annexure
A33 is the certified copy of the admission register of Krishna Das,
son of A.K.Gopalan, who is the brother of A.K.Narayanan, the
father of appellants 1 to 3. The same would show that Krishna Das
belongs to Thandan community. Annexuure A35 is the extract of
the school admission register of the first appellant. The same
shows his caste as Thandan. Annexure A37 is the extract of the
admission register of Chandramathy, second appellant, which
would show that her caste is Thandan. Annexure A42 is the
relevant page of the S.S.L.C book of the third appellant, which
would show that her caste is Thandan. Annexure A43 is the
relevant page of the S.S.L.C book of Indira Devi. N, who is one of
the sisters of appellants 1 to 3. As per that document her caste is
Thandan. Annexure A50 is the School admission register relating
to Chellamma, who is the daughter of Chami, the brother of
A.K.Narayanan. Annexure A51 is the School admission register of
Bharghavi, the sister of the above Chellamma. Those documents
would show that both of them belonged to Thandan community.
Annexure A52 is the school admission register of A.K.Sukumari,
M.F.A.No: 1377/2002 12
D/o. Kuttikrishnan, who is the brother of A.K.Narayanan. It shows
that she belongs to Thandan community. Document Nos: A28 &
A31 to 37, produced by Chandramathi and Sarojini, would show
that their mother’s relatives also were mentioned as Thandan in
those documents. Annexure A28 is a registered partition deed
and Annexures A31 to A37 are the extracts of school admission
registers. The above documents which came into existence before
1976, conclusively prove that the caste of the appellants is
Thandan, it is claimed by the appellants.
12. Per contra the learned Special Govt. Pleader made the
following submissions:- He submitted that the appellants and all
their blood relations belong to Thiyya community. The marital
relations between admitted Thiyyas and the kith and kin of the
appellants will fortify that fact. Some persons of the Thiyya
community were called Thandans as an honorific title and some of
the descendants of such persons also were described as Thandans
in common parlance. They are all Thiyyas with a higher status in
the society, especially among the Thiyyas, it is submitted. The
learned Special Government Pleader relied on the following
documents to show that the appellants and their blood relations
are Thiyyas/Ezhavas. He first referred to the documents
mentioned in Ext.R8(a) report of the KIRTADS dated 16.12.1996
M.F.A.No: 1377/2002 13
against appellants 2 and 3.
13. Document No:4 which is the extract from the admission
register of Govt. L.P. School, Peringottukurissi would show that
Shaji A.K belongs to Thiyya community. He is the son of A.G.
Krishna Das, who is the son of A.K. Gopalan, the brother of A.K.
Narayanan, the father of appellants 1 to 3. Document No:5 would
show that Lalitha A.K belongs to Hindu Thiyya community. She is
the daughter’s daughter of A.K. Gopalan, the brother of the said
A.K. Narayanan. Document No:6 which is an extract of the
admission register of Govt. L.P. School, Kottayi dated 13.5.1927
would show that A.K. Govindan belongs to Ezhava community.
A.K. Govindan is the brother of the said A.K. Narayanan. Document
No:7 relates to A.K. Kumaran. It is an extract from the admission
register of Govt. High School, Kottayi dated 14.6.1937, which would
show that the said person belongs to Ezhava Community. A.K.
Kumaran is the brother of the aforesaid A.K. Narayanan.
Document No: 8 relates of Subadra A.K, who is the daughter of A.K.
Kumaran, the brother of A.K. Narayanan. It is the admission
register of Govt. High School, Peringottukurissi dated 7.6.1957. In
that document her caste is shown as Ezhava. Document No:9
would show that Sulekha A.K. Is a member of Thiyya community.
She is the sister of Subadra A.K, mentioned in document No: 8.
M.F.A.No: 1377/2002 14
Document No: 10 shows that Sujatha A.K belongs to Hindu Ezhava
community. She is another sister of Subadra A.K mentioned in
document No: 8. Document No: 11 relates to none other than the
mother of appellants 1 to 3 Smt. M. Mookami. She was admitted in
Little Flower Girls High School on 12.10.1922. In that document
her caste is shown as Ezhava. Document No: 12 relates to
Sivanandan A.N. He was admitted in Govt. L.P. School,
Peringottukurissi on 3.6.1968. This document, which is the extract
of the admission register of that school, shows that he belongs to
Thiyya community. Sivanandan A.N is the brother of appellants 1 to
3. Document No: 13 is an extract from the SSLC book of the
second appellant. The same would show that her caste shown in
that document is Thiyya. Document Nos: 14 to 16 relate to
Pushpangathan K.N (husband of second appellant) and his sisters.
Those documents would show that they are members of Ezhava
community. Document Nos: 17 and 18 relate to Ranjith K.P and
Rajini K.P, who are the children of the second appellant
Chandramathi. Those documents are the school admission
registers of those children wherein their caste is shown as Ezhava.
Document Nos: 26 and 27 which are the extracts of School
admission register would show that Shalima P.A, who was born on
10.3.1988, belongs to other backward community. She is the
M.F.A.No: 1377/2002 15
daughter of Sarojini, the third appellant. Since the children’s
admissions in the educational institutions were made after 1976,
if they belong to scheduled caste community, the said claim would
have been raised, it is pointed out. Document No: 28 would show
that Padmini A.K belongs to Thiyya community. She is the daughter
of A.K. Kumaran, the brother of A.K. Narayanan, who is the father
of appellants 1 to 3. Document Nos: 29 and 30 also relate to A.K
Padmini, which would show that she belongs to Thiyya community.
The above documents, as mentioned earlier, were those produced
in Annexure R8(a) report.
14. The documents hereafter referred to are those mentioned
in Annexure R8(b) report dated 28.9.2001 of the KIRTADS against
appellants 4 and 5. Document No: 19 is the third page of the SSLC
book of Ramachandran A.N, the first appellant. The same would
show that he belongs to Thiyya community. Document No: 20
relates to Chandramathi A.N, the second appellant. The said
document is an extract from her SSLC book. The same would show
that she belongs to Thiyya community.
15. We notice that the Scrutiny Committee considered the
above documents and arrived at a finding that the appellants
belong to Thiyya community and not Thandan community. Since
the appellants pointed out various flaws in the consideration of
M.F.A.No: 1377/2002 16
materials by the Scrutiny Committee, we will independently
evaluate the probative value of the documents produced by both
sides. It is not in dispute that some of the blood relations of the
appellants including their predecessors were described as Thandan
in the registered deeds and school admission registers concerning
them. The Thandan community which was notified as a Scheduled
Caste community in Travancore-Cochin Area is a very backward
community. The members of that community are mainly engaged
in plucking coconuts. It is their traditional avocation. They are
treated as untouchables also. The Central Government issued a
Presidential Order in 1976, as per which the Thandans of Malabar
area also were treated as members of that Scheduled Caste. So, if
the appellants belonged to a separate and independent community
called Thandan community, then they are also entitled to be
treated as members of the scheduled caste, by virtue of the
decision of the Apex Court in Palghat Jilla Thandan Samudhaya
Samrakshana Samithi and another v. State of Kerala {1994(1) KLT
118}. But, in this case, we notice that members of the same family
related by blood are described as Thandan, Thiyya, Ezhava etc.
contemporaneously. If they belong to Thandan community, there
is no question of them being described as Thiyya and Ezhava also.
So, in this context the contention of the respondents that some
M.F.A.No: 1377/2002 17
persons among the Thiyya community were described using the
honorific title ‘Thandan’ and members of their family also used that
name as their caste name assumes importance.
16. Going by the facts disclosed and the various documents
produced, we find that the appellants or their sibblings and
children of some of them were described as members belonging to
Thiyya/Ezhava community in their school records. If they belonged
to a separate community called “Thandan community”, such
discrepancies in the matter of entering caste name concerning
them could not have happened. So, going by preponderance of
probability, we are inclined to accept the case of the respondents
that the appellants actually belonged to Thiyya/Ezhava community.
17. Now, we will consider the contention of violation of the
principles of natural justice raised by the appellants. In fact, many
of the documents collected by the expert agency viz., the Vigilance
Officer of KIRTADS, are undisputed documents and copies of them
were furnished to the appellants also. The Scrutiny Committee did
not rely on the statement of any witness recorded behind their
back. If oral evidence is collected, the same cannot be acted upon
unless the witness is made available for cross-examination of the
appellants. We find that the Scrutiny Committee has not rested its
decision on oral evidence. Mainly relying on documents, the
M.F.A.No: 1377/2002 18
decision has been rendered. Therefore, the claim of the appellants
regarding violation of the principles of natural justice cannot be
accepted. Further, we are not exercising the power of judicial
review, but we are hearing an appeal. We have perused all the
documents and we are rendering an independent decision after
extensively hearing the learned counsel for the appellants.
Therefore, the impugned order cannot be interfered with for the
violation of the principles of natural justice. The learned counsel
for the appellants also pointed out some of the decisions of this
Court, which have become final and which relate to some of the
blood relations of the appellants. A judicial decision even if it is
wrong, may bind the parties thereto. But, that decision cannot be
pressed into service to determine the caste status of the appellants,
as their status has been independently considered by the Scrutiny
Committee by virtue of the statutory power conferred on it. So, if
some of the relatives have obtained any orders from this Court,
they may be able to enjoy the fruits of that litigation. But the
appellants cannot rely upon it.
18. In view of our above finding, we hold that there is no
merit in the appeal. Accordingly, challenge against the impugned
order of the Scrutiny Committee dated 21.11.2002 is repelled. The
learned counsel for the appellants submitted that since the
M.F.A.No: 1377/2002 19
certificates were not obtained by playing fraud by the appellants,
as contemplated under Section 11 of the Act, the benefits received
by them on the strength of the certificates issued by the
competent authority may not be disturbed. We find it difficult to
accept the said contention. The appellants knowing fully well that
they do not belong to Thandan community have moved and
obtained caste certificates and further obtained benefits based on
them. So, the above contention of the appellants cannot be
accepted.
The M.F.A is accordingly dismissed. No costs.
K.BALAKRISHNAN NAIR
Judge
K. SURENDRA MOHAN
Judge
jj
K. BALAKRISHNAN NAIR &
K. SURENDRA MOHAN, JJ.
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M.F.A.NO:1377 OF 2002
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JUDGMENT
Dated: 28th January, 2008