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WP No. 5393 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2022 BEFORE THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 5393 OF 2022 (GM-POLICE) BETWEEN: 1. SRI. SATHISH K.P., S/O PANCHAKSHARI, AGED ABOUT 46 YEARS, OCC: FAST FOOD BUSINESS, R/O WARD NO.14, HALLAD BEEDI, BASAVESHWAR BLOCK, K.R.NAGAR, TQ: K.R.NAGAR, DISTRICT: MYSURU – 571 602. …PETITIONER (BY SMT.SUMANGALA GACHCHINAMATH, ADVOCATE) AND: 1. THE SUPERINTENDENT OF POLICE, CIVIL RIGHTS ENFORCEMENT CELL, NO.114, 10TH MAIN ROAD, SANMARGA, NEAR VAISHALI SCHOOL, SIDDARTH NAGAR, MYSURU – 570 001. 2. THE ENQUIRY OFFICER/POLICE INSPECTOR, CIVIL RIGHTS ENFORCEMENT CELL, NO.114, 10TH MAIN ROAD, SANMARGA, NEAR VAISHALI SCHOOL, SIDDARTH NAGAR,
Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA
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WP No. 5393 of 2022
MYSURU – 570 001. …RESPONDENTS (BY SRI.C.JAGADISH, SPL. COUNSEL)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTICE DATED. 13.01.2022 PRODUCED AS ANNEXURE – B BY R2; NOTICE DATED 10.02.2022 PRODUCED AS ANNEXURE – C BY R2 AND ETC.,
THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
The petitioner in the subject petition have sought for the following prayer: “WHEREFORE for the reasons stated above the petitioner most humbly prays that this Hon’ble court may be pleased to:
a. Quash the impugned i. Notice dated 13.01.2022 bearing No.Sanke/Hai.Jha.Vi/46/Na.Ha.JaNi/My/2020 produced as Annexure-B. ii. Notice dated 10.02.2022 bearing No. Sanke/Hai.Jha.Vi/46/Na.Ha.JaNi/My/2020 produced as Annexure-C. by issue of writ of certiorari or any other suitable writ or order or directions and further direct the Respondents not to unnecessarily cause any sort of harassment or hardships with regard to the issue in question.
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b. Grant such other reliefs as this Hon’ble Court deems fit under the circumstances of the present case including an order for costs may kindly be passed in the interest of justice and equity.”
The challenge is to the afore-quoted notices issued by the Civil Rights Enforcement Cell (‘CRE Cell’ for short) seeking the appearance of the petitioner and submission of certain documents.
Heard Smt. Sumangala Gachchinamath, learned counsel for the petitioner and Sri C. Jagadish, learned special counsel for the respondents.
The contention of the learned counsel for the petitioner is that, the CRE Cell has no jurisdiction under the Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointments, etc.) Act, 1990 (‘the Act’ for short) to issue notices of the kind that are challenged in this petition. Considering the aforesaid submission, this Court in terms of the interim order dated 19.04.2022, stayed all the notices.
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The matter coming up for Preliminary Hearing, with the consent of the parties it is taken up for final disposal as the issue lies in a narrow compass.
For a resolution of the lis, one of the impugned notices, is quoted for the purpose of quick reference: “eÁw «ZÁgÀuÉUÉ ºÁdgÁUÀ®Ä £ÁºÀeÁ¤ - w¼ÀĪÀ½PÉ ¥ÀvÀæ – 2 F ªÀÄÆ®PÀ ¤ªÀÄUÉ w½AiÀÄ¥Àr¸ÀĪÀÅzÉãÉAzÀgÉ, ªÀiÁ£Àå dAn ¤zÉÃð±ÀPÀgÀÄ ¸ÀªÀiÁd PÀ¯Áåt E¯ÁSÉ ªÉÄʸÀÆgÀÄ f¯Éè (f¯Áè eÁw ¥Àj²Ã®£Á ¸À«Äw) gÀªÀgÀÄ vÀªÀÄä eÁwAiÀÄ ¥ÀæªÀiÁt ¥ÀvÀæªÀ£ÀÄß ¥Àj²Ã°¹ «ZÁgÀuÉ £Àqɹ ªÀgÀ¢ ¸À°è¸À®Ä ¤ÃrgÀĪÀ DzÉñÀPÉÌ C£ÀÄUÀÄtªÁV £ÀªÀÄä PÀbÉÃjAiÀÄ°è eÁw «ZÁgÀuÉ ZÁ°ÛAiÀÄ°ègÀÄvÀÛzÉ.
F §UÉÎ ¤ªÀÄUÉ ¢£ÁAPÀ: 13.01.2022 gÀAzÀÄ eÁw «ZÁgÀuÁ w½ªÀ½PÉ ¥ÀvÀæ ¤Ãr «ZÁgÀuÉ ¸ÀA¨sÀA¢¹zÀAvÉ ªÀÄÆgÀÄ vÀ¯ÉªÀiÁj£À ªÀA±ÀªÀÈPÀë, ¤ªÀÄä vÀAzÉ ªÀÄvÀÄÛ ¥ÀƪÀðdgÀ ªÀiÁ»w / zÁR¯Áw, eÁw ¥ÀæªÀiÁt ¥ÀvÀæ, ªÀÄvÀzÁgÀgÀ UÀÄgÀÄw£À aÃn / DzsÁgï PÁqïð E¤ßvÀgÀ zÁR¯ÁwUÀ¼ÉÆA¢UÉ «ZÁgÀuÉUÉ ºÁdgÁUÀ®Ä PÉÆÃgÀ¯ÁVvÀÄÛ. DzÀgÉ ¤ÃªÀÅ E°èAiÀĪÀgÉUÀÆ AiÀiÁªÀÅzÉà zÁR¯ÁwUÀ¼À£ÀÄß ºÁdgÀÄ¥Àr¹gÀĪÀÅ¢®è ªÀÄvÀÄÛ «ZÁgÀuÉUÀÆ ¸ÀºÀ ºÁdgÁVgÀĪÀÅ¢®è.
F ¸ÀA§AzsÀ ¢:17.02.2022 gÀAzÀÄ C¥ÀgÁºÀß vÀªÀÄä ªÀÄ£ÉAiÀÄ ªÀĺÀdgï PÀæªÀÄ dgÀÄV¸À®Ä ºÁdgÁUÀÄwÛzÀÄÝ, F ¸ÀªÀÄAiÀÄzÀ°è vÁªÀÅ ªÀĺÀdgï PÀæªÀÄ dgÀÄV¸À®Ä ªÀÄvÀÄÛ vÀªÀÄä ºÉýPÉAiÀÄ£ÀÄß ¥ÀqÉAiÀÄ®Ä ¸ÀºÀPÀj¸ÀĪÀAvÉ ¸ÀÆa¸À¯ÁVzÉ.”
The CRE Cell directs the petitioner to produce documents concerning their caste status along with all other documents. It is alleged that they were directed to attend the enquiry and they have not attended the enquiry. Finally, the date is fixed
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on 17.02.2022 for presence of the petitioner for attending the enquiry. It is at that juncture, the petitioner has knocked at the doors of this Court.
The issue is governed by the Act. Exercising powers under Section 13 of the Act, the State Government has made the Rules namely, the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointments, Etc.) Rules, 1992 (‘the Rules’ for short). Therefore, the issue is covered by the statute i.e., Section 13 of the Act and the Rules. The role of the CRE Cell comes about in terms of the Rules 7 and 7A of the Rules and they read as follows: “7. Issue of Validity Certificate:-
(1) After getting a report on a reference made under Rule 6-A, the Caste Verification Committee and the Caste and Income Verification Committee shall hold an enquiry after giving opportunity to the parties concerned.
(2) The Committee may examine school records, birth registration certificate if any, and such other relevant materials and may also examine any other person
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who has the knowledge of the community of the applicant.
Provided that in case of an applicant who belongs to the Scheduled Tribes, the Committee may also examine the anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies and such other matters.
(3) If on such enquiry the committee finds that the applicants claim is genuine it may issue the certificate sought for, in Form I-A, but where the committee finds that the applicant obtained the Caste Certificate or Income and Caste Certificate by making a false representation, it shall pass an order rejecting the application indicating the reasons therefore for such refusal. An order under this sub-rule shall be passed within one month from the date of receipt of the application.
(4) Where the Committee even after the enquiry referred to in sub-rules (2) and (3) finds that the claim is doubtful, and is not in a position to come to a conclusion it shall refer the matter to the Directorate of Civil Rights Enforcement for detailed investigation and report. On receipt of the report from the Directorate of Civil Rights Enforcement, the Committee shall dispose off the case on merit, after holding such enquiry as it deems fit and after giving the applicant an opportunity of being heard. An order under this sub-rule shall be made within one month from the date of receipt of the application.
(5) Any person aggrieved by an order of the Caste Verification Committee or Caste and Income Verification Committee may appeal to the Divisional Commissioner. The Divisional Commissioner shall after giving an
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opportunity of being heard to both the parties pass such order as he deems fit within forty five days from the date of filing of such appeal.
7A. Prosecution for obtaining false caste Certificate:- (1) The Caste Verification Committee or the Caste and Income Verification Committee, as the case may be and the Divisional Commissioner, shall send a copy of the order rejecting claim of the applicant for grant of Validity Certificate or, as the case may be, a Copy of the order in appeal rejecting such claim to the Directorate of Civil Rights Enforcement. (2) The Directorate of Civil Rights Enforcement shall take steps to prosecute such claimant who has obtained a false caste certificate.”
The CRE Cell would get a right to spring into action in terms of Sub-rule (4) of Rule 7 of the Rules, for which, there should be a proceeding instituted by a Committee - the District Caste Verification Committee. Sub-rule (4) of Rule 7 mandates that, even after enquiry in terms of Sub-rules (2) and (3) of Rule 7 of the Rules, if the Committee finds that the claim of any candidate being doubtful and is not in a position to come to conclusion, the Committee shall then refer the matter to the Directorate of Civil Rights Enforcement for a detailed
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investigation and a report. It is here, the right of the CRE Cell is ascribed. There is no other power conferred upon the CRE Cell to initiate independent proceedings.
It is an admitted fact that there are no proceedings instituted by the District Caste Verification Committee against the petitioner herein and no matter is referred to the CRE Cell for conduct of investigation by the Committee. Without there being any such reference, the impugned notices are on the face of it, are without jurisdiction as it is contrary to the Rules afore- quoted. If it is an act of without jurisdiction, even if it is at a stage of issuance of a show cause notice, the writ petition would be maintainable and such notices are to be obliterated.
In the afore-narrated facts of the case, reference is being made to the judgment of the Apex Court in the case of WHIRLPOOL CORPN. V. REGISTRAR OF TRADE MARKS reported in (1998) 8 SCC 1, in these circumstances becomes apposite. The Apex Court has held as follows: “16. Rashid Ahmed v. Municipal Board, Kairana [1950 SCC 221 : AIR 1950 SC 163 : 1950 SCR
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566] laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting writs. This was followed by another Rashid case, namely, K.S. Rashid & Son v. Income Tax Investigation Commission [AIR 1954 SC 207 : (1954) 25 ITR 167] which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, “unless there are good grounds therefor”, which indicated that alternative remedy would not operate as an absolute bar and that writ petition under Article 226 could still be entertained in exceptional circumstances. …
… 20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.
That being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show-cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the “Tribunal”.
The history of legislation is more than a century old. The first legislation brought on the statute-book was the Indian Merchandise Marks Act, 1889 (Act 4 of 1889). This was followed by the Trade Marks Act, 1940 (Act 5 of 1940). Both these Acts were repealed by the Trade and Merchandise Marks Act, 1958. This Act follows the pattern of the Trade Marks Act, 1938 of the United Kingdom. Prior to the enactment of the Trade Marks Act, 1940, the
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disputes or problems, specially those relating to infringement of trade marks or passing off were decided in the light of Section 54 of the Specific Relief Act, 1877, while the registration problem was tackled by obtaining a declaration as to ownership of a trade mark under the Indian Registration Act, 1908. The present Act which, as pointed out above, has repealed the Indian Merchandise Marks Act, 1889 and the Trade Marks Act, 1940, also provides in Section 129 that any document declaring or purporting to declare the ownership or title of a person to a trade mark other than a registered trade mark, shall not be registered under the Indian Registration Act, 1908.
We may now have a quick look at other relevant provisions of the Act.
Section 4 provides that the Central Government shall appoint a person as Controller General of Patents, Designs & Trade Marks who shall be the Registrar of Trade Marks under the Act. The functions of the Registrar, as are authorised by him, can also be performed by such other persons as the Central Government may appoint. Thus, there is an element of plurality in the sense that the functions of the Registrar can be performed by more than one person.”
The Apex Court clearly holds that if a notice is without jurisdiction, the writ not only is maintainable but such notices should be quashed. In the light of the admitted facts, the unmistakable conclusion would be that the impugned notices, which are all without jurisdiction are all nullity in law and therefore, are to be quashed.
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For the aforesaid reasons, the following: ORDER i. The writ petition is allowed. ii. The impugned notices issued by the respondents stand quashed. iii. Quashment of these notices will not come in the way of the respondents to initiate any proceedings, if available in law.
Sd/- JUDGE
SJK List No.: 1 Sl No.: 0