TaxTMI 
TaxTMI 
2022 (2) TMI 1534
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.... government of Bihar Bihar on the basis of FIR registered under wrong provision of SC and ST Act. C Or pass any other order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the above said case." 2. The impugned notification is dated 23.08.2016, which reads as follows:- "BIHAR GAZETTE Extraordinary Marks Published by Government of Bihar 1 Bhadra 1938 (Sh) No Patna 689, Patna, Tuesday, 23 August 2016 General Publication Department From Rajender Ram, Chief Secretary of Government, To all Chief Secretary of all departments, all divisional Commissioner, all District Magistrate, the Secretary of Bihar Public Service Commission, Patna, Secretary of Bihar Staff Selection Commission, the Secretary Central Secretary Board (Constable recruitment, Patna, the controller of Examination Bihar Combined Entrance Competitive, Examination Board, Patna, Registrar, office of advocate General Patna High Court, and Secretary of Bihar State Election Authority, Patna) Patna- 15 dated 08/August/2016 Subject:- In regard to issue Scheduled Tribe Certi....
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....eduled Tribes Order (Amendment) Act, 1976. 2. In the Constitution (Scheduled Tribes) Order, 1950, as amended by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976, in the Schedule, in Part III relating to Bihar, for item 22 (Since renumbered as item 21), as appearing in the Hindi version of the said Act, the following shall be substituted, namely: - "21. Lohara, Lohra". 4. Still, thereafter, Parliament came to repeal the just aforementioned enactment by Act 23 of 2016. Purporting to draw inspiration from the said enactment, the respondent-State has issued the impugned Notification. The result of the Notification is not far to seek as the last sentence of the said Notification lays bare the intent, purport and object of the Respondent-State. In other words, seeking shelter under the amending Act of 2016, approval was given to issue Scheduled Tribe Certificate and other facilities to Lohar community. 5. It is the case of the petitioners that this is per se unconstitutional and illegal. It occasions breach of Articles 14 and 21 of the Constitution. What is more, relying upon the same, proceedings have been initiated against the petitioners un....
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....or enforcement of the Fundamental Rights. The founding fathers contemplated that the very right to approach this Court when there is a violation of Fundamental Rights, should be declared as beyond the reach of Parliament and, therefore, it is as a part of judicial review that the right under Article 32 has been put in place and invoked from time to time. That in a given case, the Court may refuse to entertain a petition under Article 32 of the Constitution is solely a part of self-restraint which is exercised by the Court having regard to various considerations which are germane to the interest of justice as also the appropriateness of the Court to interfere in a particular case. The right under Article 32 of the Constitution remains a Fundamental Right and it is always open to a person complaining of violation of Fundamental Rights to approach this Court. This is, no doubt, subject to the power of the Court to relegate the party to other proceedings. 8. At the heart of the Constitution lies certain principles which have, in fact, been recognised as part of the basic structure. Article 14 of the Constitution proclaims right to equality. The right against unfair State action is p....
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.... Bombay Municipal Corpn., it has now been conclusively held that all fundamental rights cannot be waived (at para 29). Given these important developments in the law, the time has come for this Court to say that at least when it comes to violations of the fundamental right to life and personal liberty, delay or laches by itself without more would not be sufficient to shut the doors of the court on any petitioner." Therefore, we do not think we should be detained by the objection. We would think that delay by itself cannot be used as a weapon to Veto an action under Article 32 when violation of Fundamental Rights is clearly at stake. 10. Equally unimpressive is the further argument of the learned senior counsel for the respondent-State that what is at stake is the case of personal feud or personal enmity. This Court is not concerned with the merits of the case as such. What this Court is concerned is with the legal and constitutional aspects arising from the challenge to the impugned Notification in question. Once this Court is convinced that the Notification has no legs to stand on and must collapse, it becomes the Court's duty to grant relief. 11. Another objection which i....
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....Tribes Order (Amendment) Act, 1976 was passed and in the English version of the same viz. Entry 22 the position as existing from 1956 was maintained. "Lohara" and "Lohra" were stated to be Scheduled Tribes. However, in the Hindi translation of the said entry "Lohara" was translated as "Lohar". Thus, the Hindi translation had "Lohar" and "Lohra" as two Scheduled Tribes. After the 1976 amendment, members of the "Lohar" community started claiming themselves to be members of a Scheduled Tribe even though they had been identified as a Backward Class as early as in the year 1955 by the Kaka Kalelkar Commission. 11. Because of the ambiguity in the Hindi translation of the 1976 Scheduled Tribes Order, members of "Lohar" community claimed themselves to be members of a Scheduled Tribe. The first litigation which came to the Supreme Court on this subject was in Shambhoo Nath v. Union of India [ CA No. 4631 of 1990 dated of on 12-9-1990 (Ed.: Coram: Ranganath Misra, M.M. Punchhi and K. Ramaswamy, JJ.)] . This came up for hearing before three Judges of this Court. This Court disposed of the appeal on 12-9-1990 [ CA No. 4631 of 1990 dated of on 12-9-1990 (Ed.: Coram: Ranganath Misra, M.....
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....yanand Sharma and Another vs. State of Bihar and Ors. (1996) 3 SCC 576. Therein, the appellants who hailed from the State of Bihar and belonged to the Lohar Caste claimed the status as Scheduled Tribes under the Scheduled Tribes Order of 1950 as amended by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. We need only notice the following paragraph Nos. 11, 13, 15: "11. 'Lohra' or 'Loharas' are thus different from 'Lohar' in Bihar as 'Lohars', as noticed hereinbefore are ranked with 'Koiris' and 'Kurmis' whereas 'Lohra' or 'Loharas' are merely sub-castes, a sept of Mundas in Chotanagpur or sub-tribes of Asurs who are Scheduled Tribes. xxx xxx xxx 13. The question then is: Whether Lohars could be co....
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....ord". In view of the factual quotation from the Act and the Second Schedule, as extracted in the earlier part of the judgment, the effect of the above sentence speaks for itself and seems to be otherwise. As a fact the Bench proceeded on the basis of the concession of the Union counsel. It proved to be an obvious mistake and as a fact the translated Hindi copy was placed before the Court and the Court proceeded on that premise. ..." 16. We may finally notice paragraph-20 of Nityanand Sharma (supra): "20. Accordingly, we hold that Lohars are an Other Backward Class. They are not Scheduled Tribes and the Court cannot give any declaration that Lohars are equivalent to Loharas or Lohras or that they are entitled to the same status. Any contrary view taken by any Bench/Benches of Bihar High Court, is erroneous. It would appear that except some stray cases, there is a consistent view of that Court that Lohars are not Scheduled Tribes. They are blacksmiths. We approve the said view laying down the correct law." 17. A perusal of paragraph No.20 would reveal unambiguously that this Court declared that Lohar is an Other Backward Class and what is more, they are not Scheduled T....
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.... is any illegality in the decision rendered by the Division Bench of the High Court warranting interference. 7. It is then contended that the doctrine of prospective application of the judgment in Nityanand Sharma case [(1996) 3 SCC 576] may be applied. In support thereof, the learned counsel relied upon two judgments of this Court in State of Karnataka v. Kumari Gowri Narayana Ambiga [1995 Supp (2) SCC 560 : 1995 SCC (L&S) 887 : (1995) 30 ATC 37] and Govt. of A.P. v. Bala Musalaiah [(1995) 1 SCC 184 : 1995 SCC (L&S) 275] . We are afraid, we cannot accede to the contention of the learned counsel. This is a case where the respondents were not entitled, from the inception, to the social status of Scheduled Tribes. Since the entry gained by them was based on wrong translation made by the Department in the notification and the order was obtained on that basis, the same cannot be made the basis of grant of the status of Scheduled Tribes. We cannot allow perpetration of the illegality since under the Constitution they are not at all entitled to the status of Scheduled Tribes. Under these circumstances, the above two judgments have no application to the facts in this case." (E....
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....ersion of the Act, at serial No.22 of the List of Scheduled Tribes for Bihar, the social group 'Lohar, Lohra' (in Hindi) was specified. It is their further case that later by another amendment in the year 2006 (Act 48/2006), amendment was made to the Act of 1976, whereby the schedule in part III relating to the State of Bihar, for item No. 22 (since renumbered as item 21), as appearing in the Hindi version of the Act, the words 'Lohara, Lohra' were substituted for the words 'Lohar, Lohra'. Reference is made to the fact that during this time various associations of Lohar caste were repeatedly making representation and emphasizing that the word 'Lohara' was the English translation of the word 'Lohar'. It is further contended that in Act No.48 of 2006, persons belonging to the Lohar social group in the State of Bihar were not being recognized as Scheduled Tribe at the time. However, keeping in view the backwardness of the said caste, an ethnographic report was commissioned to be prepared to evaluate the social and educational status of the Lohar social group. This group, inter alia, concluded on the basis of survey of 38 districts of Bihar that Lohara/Lohra were both mere synonyms of ....
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....tself with the law which is laid down by the Courts and find out whether the decision will occasion a breach of law declared by the highest Court of the land. This is a case where we have noticed an unbroken line of reasoning and decisions as noticed in the three judgments which we have referred to. This Court has also pronounced on the aspect of the English language prevailing over the Hindi version, if there is a conflict. 23. We should further realize the impact of a decision on the Rights and what is more, Fundamental Rights of the citizens flowing from of Government's action: and the need to increasingly evolve a system, whereby decision making promotes and strengthens the rule of law. Respect for the decisions of the Courts holding the field are the very core of Rule of Law. Disregard or neglecting the position at law expounded by the Courts would spell doom for a country which is governed by the Rule of Law. 24. In this case, it is clear as daylight that the Lohars were not included as members of the Scheduled Tribe right from the beginning and they were, in fact, included as members of the OBCs in the State of Bihar. This position has attained articulation at the hand....
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....icipatory bail is not even permitted under Section 438 of the Code of Criminal Procedure, 1973 vide Sections 18 and 18A of the 1989 Act. No doubt, the effect of these provisions has been clarified by the Court [See (Prathvi Raj Chauhan vs. Union of India and others (2020) 4 SCC 727)]. 27. These are aspects which should have been borne in mind. This is apart from the fact that inclusion of persons otherwise disentitled in the category of Scheduled Tribes would directly constitute an unjustifiable inroad into the rights of those members of the Scheduled Tribe in the matter of public employment and in other respects. 28. We are, therefore, of the view that there is absolutely no basis for respondent-State to have issued the impugned Notification. The limitation on the power of the Executive in this regard has been declared in Vinay Prakash (supra). We would think that the approach has been very casual and it has created a situation for which the State is solely responsible, even when it was entirely avoidable if only the respondent had taken proper care and applied its mind as we have already noticed. 29. In view of the aforesaid discussion, the writ petition must be allowed ....