The
State of Tamil Nadu & Ors Vs. A. Gurusamy
[1997] INSC 176 (17 February 1997)
K.
RAMASWAMY, G.T. NANAVATI
ACT:
HEAD NOTE:
O R D E
R
Leave
granted.
We have
heard learned counsel for both the parties.
This
appeal by special leave arises from the judgment of the single Judge of the
Madras High Court, made on 23.3.1996 dismissing S.A. No. 228/96 on the ground
that the declaration granted by the Courts below was concurrent finding of
fact. Admittedly, when the respondent was studying in the school, he was described
as a member of 'Thotti' community. The Presidential notification issued under
Article 341(1) of the Constitution read with Article 366(24) of the
Constitution notifies 'Thotti' to be a Scheduled Caste as Item No.67 of the
Presidential notification.
Subsequently,
in 1970, the respondent had obtained a certificate from the Revenue Divisional
Officer indicating him to be 'Kattunaicken' as Item No.9 of the list of the
Scheduled Tribes in the State of Tamil Nadu issued by the President under Article 342(1) read with Article 366(25)
of the Constitution. Subsequently, he had applied for permanent certificate. On
that basis, an enquiry was conducted and it was found that the respondent was
not a Scheduled Tribe but is a Scheduled Caste. Accordingly, the certificate
came to be cancelled. Impugning the said cancellation, the respondent filed a
civil suit for declaration that he is 'Kattunaicken', a Scheduled Tribe. That
declaration was granted by the trial Court dismissed the second appeal.
Thus,
this appeal by special leave.
The
only question is: whether the suit is maintainable? By operation of Section 9
of CPC, a suit of civil nature cognisance of which is expressly or by
implication excluded, cannot be tries by any civil Court. The declaration of
the President of India, under Article 341 and 342 of the Constitution, with
respect of lists of the Scheduled 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 question then is: whether the respondent has been given
an opportunity to establish has case before the authorities cancelled his
community certificate obtained by him? The order of the District Collector
dated 2.12.1991 clearly mentions that an opportunity was given to the
respondent and he himself had examined him. The District Collector does not
decide it like a suit. What he does is an enquiry complying with the principles
of rational justice. He considered his stand, namely, one of the sale deed of
1962 in which his status was declared as Kattunaicken but the same was
disbelieved by the District Collector before cancellation. It is self-serving
document. The authority had, therefore, given an opportunity to the respondent
to establish his status and found that the certificate previously obtained was
wrong and illegal.
Accordingly,
he cancelled the certificate given to the respondent on January 23, 1971. It is then contended by learned
counsel for the respondent that the guidelines had been given by the Collector
in the manner in which the enquiry is to be conducted and the synonyms are to
be taken and in pursuance thereof, the Revenue Division Officer granted him the
certificate. We find that the stand taken is not correct. The guidelines are
only to identify the persons and not to give a declaration as to which
community comes under particular entry of the Presidential notification. It is
then contended that the respondent has been given the right to enjoy the status
right from 1971 and, therefore, the principle of estoppel applies to him. We
find that it has no force. It is a fraud played on the Constitution. A person
who plays fraud and obtains a false certificate cannot plead estoppel. The
principle of estoppel arises only when a lawful promise was made and acted upon
to his detriment: the party making promise is estopped to resile from the
promise. In this case, the principle of estoppel is inapplicable because there
is no promise made by the State that the State would protect perpetration of
fraud defeating the Constitutional objective; no promise was made that his
false certificate will be respected and accepted by the State. On the other
hand, he is liable for prosecution. The courts would not lend assistance to
perpetrate fraud on the Constitution and he cannot be allowed to get the
benefit of the fraudulent certificate obtained from the authorities.
The
declaration issued by the courts below is unconstitutional and without
jurisdiction.
The
appeal is accordingly allowed. The suit stands dismissed. No costs.
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