MOHD AFZAL MALIK AND ANOTHER V. DEPUTY COMMISSIONER KISHTWAR AND ANOTHER

WP(C)/464/2022

AI Insights

The case involves Mohd. Afzal Malik and another petitioner challenging the rejection of their application for a Backward Area Certificate by the Tehsildar, Bunjwah. Initially, their application was rejected, but upon appeal, the Deputy Commissioner, Kishtwar set aside this rejection and ordered a fresh enquiry. The petitioners, aggrieved by the possibility of bias from the Tehsildar due to the Deputy Commissioner's observations, approached the High Court. The court's decision mandates a new, unbiased enquiry by the Tehsildar.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 725796 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 16-07-2022
• Assessment Year: misc
• Other Referred Cases: Shahnawaz Butt v. Divisional Commissioner Jammu and others, Zareena Hassan and others v. State and others
• Laws Referred To: J&K Reservation Rules, 2005, SRO 294 of the J&K Reservation Rules, 2005
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: S S NANDA
• Assessee Lawyers: ASHEESH KOTWAL
• Keywords: Backward Area Certificate; Resident of Backward Area; J&K Reservation Act, 2005; Tehsildar Bunjwah; Deputy Commissioner Kishtwar
• Section: 22; 25; 21(III)

Judgement Text

" HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU WP(C) No. 464/2022 (O&M) Mohd. Afzal Malik and anr. …..Petitioner Through: Mr. Asheesh Singh Kotwal, Adv. v. Deputy Commissioner Kishtwar and anr. .…. Respondents Through: Mr. S. S. Nanda, Sr. AAG Coram: HON’BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE ORDER 1. The present petition has been preferred against the order dated 07.12.2021 passed by the Deputy Commissioner, Kishtwar-respondent No. 1 herein in an appeal filed by the petitioners (appellants therein) in terms of rule 25 of the SRO 294 of the J&K Reservation Rules, 2005 (for short, the Rules of 2005) against the order dated 23.10.2021 passed by the Tehsildar, Bunjwah (competent authority under the Rules of 2005) whereunder the application for grant of resident of Backward Area Certificate has been rejected. 2. Before adverting to the controversy in question, it would be apt to give brief summary of the case. 3. The petitioners filed an application before the Naib Tehsildar, Nali for issuance of certificate for resident of Backward area and the same was forwarded to the concerned Patwari Halqa seeking detailed factual report. Thereafter the Naib Tehsildar forwarded the case to the Tehsildar, Bunjwah on 16.10.2021 along with report of the Patwari Halqa. The Tehsildar, Sr. No. 51 2 WP(C) No. 464/2022 Bunjwah after considering the material placed before him passed a detailed order wherein he rejected the application of the petitioners for grant of resident of Backward Area Certificate. 4. Being aggrieved of the order passed by the Tehsildar, Bunjwah, the petitioners challenged the same before the Deputy Commissioner, Kishtwar and the Deputy Commissioner Kishtwar, by virtue of order dated 07.12.2021, set aside the order passed by the Tehsilder Bunjwah and accordingly, the Tehsildar Bunjwah was directed to conduct a fresh enquiry within a period of fifteen days from the date of receipt of that order and pass fresh order as per J&K Reservation Act, 2005 and rules thereof. 5. The memo of appeal filed before the Deputy Commissioner, Kishtwar reflects that the petitioners have pleaded their case on the following grounds: “I) That both the appellants are the permanent residents and domicile of village Binoon, Tehsil Bunjwah UT of Jammu and Kashmir owning the Landed Property thereat, of which the record is maintained in the Record of Rights prepared by the Revenue authorities under Land Revenue Act and appellants have never abandoned their residence from the said village except for the purpose of undergoing higher studies. II) That both the appellants are doing their independent jobs and having an independent incomes sufficient to maintain themselves and thus as per the clarification issued vide Govt. Notification No. GAD (Mtg) Res- 18/2003 Dated 14-11-2003, wherein it is clarified that son or Daughter, who are employed or gainfully engaged has to apply of his own and his/her income from all sources should not exceed Rs.3,00000/- so as to exclude from claiming the benefit of belonging socially and economically Backward class and income of son/Daughter, who is gainfully engaged cannot be added to the income of Father, as the certificate has to be claimed by the Government Servant for his dependent Children alone and not for those who are independent. 3 WP(C) No. 464/2022 Ill) That as per the scheme and object of Jammu and Kashmir Reservation Rules, 2005, in terms of Rule 21(III) the applicant is required to establish that he has not permanently abandoned his residence from the village falling within the parameters of Reservation Rules, 2005 except being compelled to be out of his village on the account of his employment, business or other vocational reasons and therefore both the appellants admittedly being permanent residents of village Binoon Bunjwah wherein they are entered in all the public records, which includes Voter List, Aadhar Card, Ration Card, Domicile Certificate and other Immoveable property which continuous to be in the name and personal cultivation of the appellants, impliedly, are the permanent residents of village Binoon Bunjwah and therefore can never be denied their entitlement of being member of RBA in terms of rule 21(III) of SRO 294 of Jammu and Kashmir Reservation Act, 2005. Further, appellants have also quoted the reference of law judgments of Shahnawaz Butt v. Divisional Commissioner Jammu and others and Zareena Hassan and others v. State and others in support of their claims. IV) That appellants being independently engaged gainfully in job are residing separately from their father having a separate Ration Card and therefore both the appellants ceases to dependent upon their parents viz a viz as per the mandate of SRO 294 of 2005 and accordingly the income of their parents is not required at all, for any purpose, much less for the purpose of entitlement of appellants for issuance of RBA certificate in their favour, but the respondent herein has landed himself in to an error by way of rejection of application of the appellants erroneously. V) That the respondent-Tehsildar Bunjwah, herein under SRO 294 has misconstrued the import and object of SRO 294 for the determination of annual income includes income of the applicants, his parents, his spouses, his guardians in as much as the said Rule 22 is required to be read as conjunction to the circular No. GAD-(MTG) Res- 18/2003 Dated 14-11-2003, wherein it has been clarified that in case of a son or daughter who are self employed are gainfully engaged ceases dependent upon their parents and for purpose of issuance of RBA certificate, the income of parents guardian etc. is not required to be taken into consideration, but the competent authority has failed to appreciate to the import of Rule 22 in light of Clarification issued by the government and therefore has illegally rejected the appellants application on the basis of surmises and conjecture in contravention to the Mandate of Jammu and Kashmir Reservation Act 2005. 4 WP(C) No. 464/2022 VI) That impugned order in rejection of application dated 09- 08-2021 is otherwise contrary to the Scheme and object of SRO 294, as also to the constitutional provision. VII) That the appellants have furnished all the requirements as warranted under SRO 294 as amended from time to time which includes Land record, voter List, Ration Card, Adhar Card, Independent Income certificate, including the income Tax Return, Chullah Chowkidari etc., though not expressly required in Jammu and Kashmir Reservation Rules 2005 when the domicile certificate in January 2021 has already been issued in favour of the appellants. The appellants Father has paid Chullah Chowkidari Fees time to time to concerned Lumbardar who in turn have submitted Tasdiquenama under his seal and signature for receipt of chullah Chowkidari fee regularly upto 2020 and found recorded in his Chandi lying with him. VIII) Besides, brother of appellants father, have also furnished a joint Halfnama regarding the residence of appellants in their parental house separately being the explicit proof of their residence at village Binoon. Also the statements of the two witnesses have also been recorded in presence of Naib Tehsildar, Binoon, as per the directions of the Tehsildar Bunjwah. Further, it is alleged in the same para that the Tehsildar Before rejecting the application has not given an opportunity of being heard to the appellants to explain the scheme of SRO 294 and their entitlements. 6. On the basis of the pleadings of the counsel for the petitioners and the record produced during the time of hearing, it has been observed by the appellate authority that certain doubts have been created with regard to the deposition of the Chowki Chowkidara and continuous stay of the petitioners in the RBA area. As per the observation of the appellate authority, there were certain doubts and as a consequence of which, the appellate authority, with a view to grant fair opportunity to the appellants-petitioners herein, the order impugned dated 23.10.2021 passed by the Tehsildar, Bunjwah, rejecting the claim of the appellants-petitioners herein, was set aside and consequently, a direction was issued to the Tehsildar, Bunjwah to conduct a fresh enquiry within a period of fifteen days from the receipt of the said order and pass 5 WP(C) No. 464/2022 fresh order as per the J&K Reservation Act, 2005 and rules framed thereunder. 7. Mr. Asheesh Singh Kotwal, learned counsel appearing for the petitioners has challenged the aforesaid order passed by the appellate authority through the medium of the present petition. He is aggrieved of the observation of the appellate authority while passing the aforesaid order and he apprehends that the Tehsildar, Bunjwah will be influenced by the observation of the appellate authority while conducting a detailed enquiry. 8. Per contra, the reply has been preferred by Mr. S. S. Nanda, learned Sr. AAG appearing for the respondents wherein it has been specifically pleaded in brief facts that in compliance to the direction issued by the Deputy Commissioner Kishtwar, the Tehsildar, Bunjwah vide order No. Gen/TB/457- 59 dated 08.02.2002 constituted a Commission under the Chairmanship of Naib Tehsildar, Nali to conduct a fresh enquiry into the matter. The said Commission, as per learned counsel appearing for the respondents and reply filed by him which is supported by an affidavit of the Tehsildar concerned, has already submitted a report vide order No.01/CAMP/2022 dated 04.03.2022 to the Tehsildar concerned, the operative part of which is as under: “Commission has issued a summon to the applicants on 09.02.2022 through the Process Server for the service of the summon. The Process Server reported on 15.02.2002 that he went to the village of the applicant the applicant not traced in his native village (i.e. Binoon). Then he traced the contact number of the applicant and contact him telephonically and also send copy of the summon to one of the applicant namely Mohd. Afzal Malik through Whatsapp Messenger. Applicant telephonically replied that he had come to Delhi for his medical treatment and due to which could not appear before the Commission on the scheduled time and date.” 6 WP(C) No. 464/2022 9. Besides that, it is specific stand of Mr. Nanda, learned Sr. AAG that office Patwari has also sent summon to the applicants on 11.02.2022 as well as called telephonically and asked them to report on Whatsapp regarding the receipt of summons but inspite of receipt of the same, the petitioners were not responding and were unable to appear due to ill health. In the same breath, the applicants intimated the process server of the concerned office that one of the applicants is in Delhi which is contradictory with the prescription send by him on whatsapp number of the office Patwari as the prescription sent to him were of C&D Hospital situated in Jammu. It is also stated that Commission further reported that they approached to Uncle of the applicants to inform the applicants for appearance before the Commission but till date Uncle of the applicants not replied in the said matter. 10. Be that as it may, a direction is issued to the petitioners to participate in the aforesaid enquiry which is being conducted in pursuance of the direction issued by the appellate authority i.e. Deputy Commissioner, Kishtwar and the petitioners are at liberty to put forth their claim before the Tehsildar, Bunjwah. It is made clear that the Tehsildar Bunjwah will conduct the enquiry afresh strictly in conformity with the provisions of the J&K Reservation Rules, 2005 with particular reference to Rules 21 and 22 of the aforesaid rules without being influenced by the observations of the Deputy Commissioner, Kishtwar who has exercised his powers in terms of Rule 25 of the SRO 294 as an appellate authority. The Tehsildar, Bunjwah is directed to conclude the said enquiry after associating the petitioners and providing them an opportunity of being heard within a period of four weeks positively from the date a copy of this order along with complete paper book is served upon him by the petitioners against the proper receipt. The Tehsilder, Bunjwah 7 WP(C) No. 464/2022 shall also consider the judgment/documents which the petitioners intend to produce before him in support of their claim with respect to the legal aspect of the matter. In case the findings of the Tehsildar Bunjwah, goes against the petitioners, they shall be at liberty to challenge the same by way of appropriate proceedings within two weeks thereafter and the said decision would be kept in abeyance during that period. 11. With the aforesaid decision, the present petition stands disposed of. (Wasim Sadiq Nargal) Judge Jammu 16.07.2022 Paramjeet Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No "