SRI G R SOMESH vs. THE SUPERINTENDENT OF POLICE

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WP No. 5366 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. 5366 OF 2022 (GM-CC) BETWEEN: 1. SRI. G.R.SOMESH, S/O G.Y.RUDRAPPA, AGED ABOUT 40 YEARS, OCC: AGRICULTURE, R/O CHOWKAHALLI, KASABA HOBLI, K.R.NAGAR TALUKA, DISTRICT: MYSURU – 571 602.

…PETITIONERS (BY SMT.SUMANGALA GACHCHINAMATH, ADVOCATE) AND: 1. THE SUPERINTENDENT OF POLICE, CIVIL RIGHTS ENFORCEMENT CELL, NO.114, 10TH MAIN ROAD, SANMARGA, NEAR VAISHALI SCHOOL,

Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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WP No. 5366 of 2022

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, 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 07.01.2022 VIDE ANNEXURE - C BY R-2; QUASH THE IMPUGNED NOTICE DATED 09.02.2022 VIDE ANNEXURE – D BY R-2; QUASH THE IMPUGNED NOTICE DATED 18.02.2022 VIDE ANNEXURE – E BY R-2; QUASH THE IMPUGNED NOTICE DATED 07.01.2022 VIDE ANNEXURE – F BY R-2; QUASH THE IMPUGNED NOTICE DATED 09.02.2022 VIDE ANNEXURE – G BY R-2; QUASH THE IMPUGNED NOTICE DATED 18.02.2022 VIDE ANNEXURE – H BY R-2 AND ETC.,

THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The petitioners in the subject petition have sought for the following prayer: “WHEREFORE for the reasons stated above the petitioners most humbly prays that this Hon’ble court may be pleased to:

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WP No. 5366 of 2022

a. Quash the impugned i. Notice Annexure-C bearing No.Sam.Sa.Jha.Vi /82/Na.Ha.Ja.Ni/My/2020 dated 07.01.2022, ii. Notice Annexure-D bearing No.Sam.Sa.Jha.Vi /82/Na.Ha.Ja.Ni/My/2020 dated 09.02.2022, iii. Notice Annexure-E bearing No.Sam.Sa.Jha.Vi /79/Na.Ha.Ja.Ni/My/2020 dated 18.02.2022, iv. Notice Annexure-F bearing No.Sam.Sa.Jha.Vi/77 /Na.Ha.JaNi/My/2020 dated 07.01.2022. v. Notice Annexure-G bearing No.Sam.Sa.Jha.Vi/77/ Na.Ha.Ja.Ni /My/2020 dated 09.02.2022, vi. Notice Annexure-H bearing No. Sam.Sa.Jha.Vi/77/ Na.Ha.Ja.Ni /My/2020 dated 18.02.2022, 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 petitioners and submission of certain documents.

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WP No. 5366 of 2022

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 12.10.2022, stayed all the notices.

¤ªÀÄä eÁw «ZÁgÀuÉUÉ ¸ÀA§AzsÀ¥ÀlÖAvÉ ¤ªÀÄä ºÁUÀÆ ¤ªÀÄä vÀAzÉAiÀĪÀgÀ ±Á¯Á zÁR¯Áw, eÁw ¥ÀæªÀiÁt ¥ÀvÀæ, ªÀÄÆgÀÄ vÀ¯ÉªÀiÁj£À ªÀA±ÀªÀÈPÀë, ªÀÄvÀzÁgÀgÀ

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WP No. 5366 of 2022

UÀÄgÀÄw£À aÃn / DzsÁgï PÁqïð ºÁUÀÆ EvÀgÉÀ CUÀvÀå zÁR¯ÉUÀ¼ÉÆA¢UÉ ¢£ÁAPÀ:13.01.2022 gÀAzÀÄ ¨É½UÉÎ 10:30 UÀAmÉUÉ F PɼÀUÉ ¸À» ªÀiÁrgÀĪÀ C¢üPÁjAiÀÄ ªÀÄÄAzÉ ºÁdgÁUÀ®Ä w½¸À¯ÁVzÉ.”

The CRE Cell directs the petitioners 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 on 13.01.2022 for presence of the particular petitioner and other dates in respect of other petitioners for attending the enquiry. It is at that juncture, the petitioners have knocked at the doors of this Court.

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WP No. 5366 of 2022

“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 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

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WP No. 5366 of 2022

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 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

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WP No. 5366 of 2022

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 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.

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WP No. 5366 of 2022

… 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. 21. That being so, the High Court was not justified in dismissing the writ petition at the initial stage without

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WP No. 5366 of 2022

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”. 31. 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 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.

The Apex Court clearly holds that if a notice is without jurisdiction, the writ not only is maintainable but such notices

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WP No. 5366 of 2022

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.

Sd/- JUDGE

SJK List No.: 1 Sl No.: 0