Kailas Nilkanth Tawade vs State Of Maharashtra And Ors.
2007 Latest Caselaw 347 Bom

JUDGMENT

R.M. Borde, J.

1. Heard Mr. S.R. Barlinge, learned Counsel for the petitioner, Mr. K.M. Suryawanshi, learned A.G.P. for respondent No. 1, Mr. M. S. Deshmukh, advocate for respondent No. 2 and Mr. A. B. Dhongade, learned Counsel for respondent No. 3.

2. Rule. Rule made returnable forthwith and heard finally by consent of the parties.

3. The petitioner claims to be belonging to 'Tokre Koli', a Scheduled Tribe. The petitioner has obtained a caste certificate in the prescribed proforma to the effect that he belongs to 'Tokre Koli', a Scheduled Tribe on 12-4-1989. The certificate is issued by the Executive Magistrate, Jalgaon. The petitioner, on the strength of the said certificate, secured employment as Conductor with Maharashtra State Road Transport Corporation. The caste certificate of the petitioner was referred to the Scrutiny Committee for the purposes of verification of status claim. It further appears that the Scrutiny Committee called for report of the vigilance officer. It was revealed during the course of vigilance cell inquiry that the caste certificate, which has been produced by the petitioner, was in fact not issued from the office of Executive Magistrate, Jalgaon. The Vigilance Cell Officer made an inquiry with the office of Executive Magistrate/Tahsildar, Jalgaon and during the course of inquiry it was reported to the Vigilance Officer by Tahsildar, Jalgaon that such a certificate has not at all been issued from their office. The petitioner was furnished with a copy of the report of vigilance cell inquiry and his comments were invited by the Scrutiny Committee. The petitioner has denied the allegations in respect of fabrication of the caste certificate and further reiterated his stand that the certificate is a genuine one. The petitioner contended in his explanation that the said certificate has been signed by the Executive Magistrate/Tahsildar, who was posted during the relevant period at Jalgaon. He further contended that the specimen signature of the then Tahsildar be called for the purposes of verification of the same through the handwriting expert. He requested the Scrutiny Committee not to jump to an adverse conclusion without holding a detailed inquiry in respect of allegations relating to the genuineness of the caste certificate. It appears that thereafter the Scrutiny Committee proceeded with the inquiry in respect of verification of the claim and came to the conclusion on the strength of vigilance cell report that the certificate, which has been obtained by the petitioner, is so obtained by illegal and fraudulent means. The Committee branded the certificate as fake one and directed confiscation and cancellation of the same. The Committee further directed to lodge criminal prosecution against the petitioner. The order dated 29-10-2001, passed by the Scrutiny Committee, directing confiscation and cancellation of the caste certificate and further directing criminal prosecution against the petitioner, is impugned in the instant petition.

4. Learned Counsel Shri Barlinge, appearing for the petitioner, contended that the Scrutiny Committee has not followed the correct procedure as prescribed under the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (hereinafter referred to as 'the Act of 2000'). According to the learned Counsel for the petitioner, a separate procedure in respect of confiscation and cancellation of false Caste Certificate, is provided under Section 7 of the said Act, whereas verification of Caste Certificate by Scrutiny Committee is provided under Section 6 of the said Act. After holding an inquiry as prescribed under Section 6 of the said Act, if the Committee comes to the conclusion that a candidate has failed to persuade the Committee to come to a conclusion in respect of validation of the certificate, in that eventuality, if such a candidate has derived any benefits, the same can be withdrawn in view of Section 10 of the said Act. The learned Counsel also contends that for making a detailed inquiry, the Committee is invested with powers of the Civil Court. In the opinion of the learned Counsel for the petitioner, the Committee' has not called upon the petitioner by issuing an appropriate notice to explain the reasons as to why action of confiscation and cancellation of the caste certificate be not taken under the provisions of Section 7 of the Act of 2000.

5. It would be appropriate to refer to the provisions of Section 7, which are as follows:

7. Confiscation and cancellation of false Caste Certificate.--(1) Where, before or after the commencement of this Act, a person not belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category has obtained a false Caste Certificate to the effect that either himself or his children belong to such Castes, Tribes or Classes, the Scrutiny Committee may, suo motu, or otherwise call for the record and enquire into the correctness of such certificate and if it is of the opinion that the certificate was obtained fraudulently, it shall, by an order cancel and confiscate the certificate by following such procedure as prescribed, after giving the person concerned an opportunity of being heard, and communicate the same to the concerned person and the concerned authority, if any.

(2) The order passed by the Scrutiny Committee under this Act shall be final and shall not be challenged before any authority or Court except the High Court under Article 226 of the Constitution of India.

In the instant case, the Committee has arrived at the conclusion on the strength of the report submitted by vigilance cell to the effect that the certificate produced by the petitioner for verification itself is not a genuine document. It was revealed during the vigilance cell inquiry that such a certificate has not at all been issued from the office of Executive Magistrate, Jalgaon. The Committee, as such, adopted a stand that as the certificate has not been obtained by a method or mode which is legally permissible, as such genuineness of the said certificate itself is doubtful. The Committee as such proceeded to draw an inference adverse to the petitioner and further recommended penalty as prescribed under Section 7 of the Act of 2000. There is no doubt that the Caste Scrutiny Committee has jurisdiction to inquire into the genuineness of the caste certificates. While examining allegations in respect of issuance of forged or bogus caste certificates, the Committee has got all the powers to investigate into as in the case of Civil Court, as provided under Section 9 of the Act of 2000.

6. The learned Counsel for the petitioner has canvassed before us that as the genuineness of the caste certificate itself is doubted, the petitioner ought to have been noticed in that regard and the Committee ought to have initiated proceedings as contemplated under Section 7 of the Act of 2000 and ought to have called upon explanation of the petitioner as to why action contemplated under said section should not be taken. According to the learned Counsel for the petitioner the scope of inquiry under Sections 6 and 7 of the Act of 2005 is different and both sections operate in different sphere. Section 7 of the Act deals with confiscation and cancellation of the false certificate. Sub-section (1) thereof provides that where, before or after commencement of the said Act, a person not belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category has obtained a false Caste Certificate to the effect that either himself or his children belong to such Castes, Tribes or Classes, the Scrutiny Committee may, suo motu, or otherwise call for the record and enquire into the correctness of such certificate and if it is of the opinion that the certificate was obtained fraudulently, it shall, by an order cancel and confiscate the certificate by following such procedure, as prescribed, after giving the person concerned an opportunity of being heard, and communicate the same to the concerned person and the concerned authority, if any.

Sub-section (2) thereof provides that the order passed by the Scrutiny Committee under this Act shall be final. Section 7(1) visualises an enquiry either suo motu or by calling the record. Such an enquiry is contemplated to ascertain the correctness of the caste or tribe certificate produced by the claimant. It contemplates two eventualities, which can follow on conclusion of the enquiry. One relates to the situation where the Committee finds the certificate to have been obtained fraudulently. Second eventuality relates to a situation where the certificate is found to be false, in the sense that it does not disclose the real caste or tribe of the certificate holder. In case of the first eventuality, the Caste Scrutiny Committee is left with no alternative than to direct cancellation and confiscation of the certificate by following the procedure prescribed for the same. Whereas, no such obligation is cast upon the Caste Scrutiny Committee merely because the caste certificate does not disclose the real caste of the certificate holder. Section 7(1) of the said Act essentially deals with the power of the scrutiny committee to verify the caste claim and on the basis of such verification to pass an appropriate order, while making it obligatory for the committee to cancel and confiscate such certificate in a case where the same is found to have been obtained fraudulently.

7. The learned Counsel for the petitioner placed reliance on the reported judgment in the case of Annaji Maroti Raut v. S.C.S.T....Committee, , and contended that the Committee, while inquiring into the matter, has to specifically call upon the petitioner to tender explanation in respect of proposed enquiry under Section 7 of the Act of 2000. In paragraph 9 of the said judgment, it is observed that:

In our opinion, it was the duty of the Scrutiny Committee to conduct independent enquiry into the question of genuineness of the caste certificate and the Committee has committed error in relying upon the report of the District Magistrate which was prepared and submitted without notice to the petitioner.

Relying upon the aforesaid observations, the learned Counsel for the petitioner has submitted that in the instant case, the Committee has relied upon the report of the vigilance cell officer, which, in turn, has relied upon a communication made by the office of the Executive Magistrate/Tahsildar, Jalgaon, intimating that the certificate in question has not been issued by the said office. The petitioner contends that he has not been given an appropriate notice in regard to the enquiry under Section 7 of the Act, whereas, the Committee, while conducting an enquiry in respect of validation of the tribe claim, which is essentially contemplated under Section 6 of the Act, has taken an action as contemplated under Section 7 of the Act, which is a distinct one.

8. Be that as it may. It appears that the Committee has not issued a notice as contemplated under Section 7 of the Act. The Committee can very well take evidence to determine the question of genuineness of the caste certificate as the Committee has been invested with all the powers to hold an enquiry in view of provisions of Section 9 of the Act.

It is evident from the scheme of the Act of 2000 that while dealing with the aspect of verification of the caste certificate under Section 6 of the Scrutiny Committee, the matter in respect of genuineness or falsehood of the caste certificate can be gone into as laid down under Section 7 of the said Act i.e. to say, an enquiry as contemplated under Section 7 of the said Act is permissible or in fact is essential while dealing with the question of validation of caste certificate. It would be appropriate to refer to the observations of the Full Bench of our High Court in the case of Ramesh Suresh Kamble v. State of Maharashtra and Ors. reported in 2007(1) Mh.LJ. 423, which reads thus:

Any person belonging to any of the Scheduled Castes, Scheduled Tribes and all other categories referred to in Act No. XXIII of 2001 has to apply, in such form and in such manner as prescribed, to the Competent Authority for issue of Caste Certificate if such person is required to produce the Caste Certificate in order to claim the benefit of any reservation provided to such caste. In the Rules framed thereunder the form is prescribed wherein that person has to give various information to the Competent Authority, including the information about his father and whether the father or close relative of the applicant has obtained the caste certificate. The applicant also has to make a declaration that the information furnished by him in the application is correct and that if such information is found to be incorrect later on, he is liable to be prosecuted under the provisions of Sections 199, 200 and 193(2) of the Indian Penal Code. The Caste Certificate issued by the Competent Authority is valid only if it is verified by the Caste Scrutiny Committee and the Validity Certificate is issued. The Caste Certificate issued by any person or authority other than the Competent Authority is invalid per se. Under Sub-section (2) of Section 6 of Maharashtra Act No. XXIII of 2001, the applicant who desires to avail of the benefit or concession available to such caste has to apply to the Scrutiny Committee for verification of such Caste Certificate and the issuance of validity Certificate. The Caste Scrutiny Committee, upon such application being made under Section 6(2), inquires into the correctness of such certificate under Section 7(1) and if it (Caste Scrutiny Committee) forms the opinion that the caste certificate was obtained by the applicant from the Competent Authority fraudulently, it cancels and confiscates the certificate; obviously, in accordance with the procedure prescribed and after giving the person concerned an opportunity of being heard. What is important to be noticed is that the inquiry made by the Scrutiny Committee is always into the correctness of the Certificate obtained by the applicant from the Competent Authority. The Caste Scrutiny Committee cancels such certificate or for that matter, confiscates that certificate where it is satisfied that such certificate has been obtained fraudulently by the applicant. Upon conjoint reading of Sections 6(2) and 7(1) of Maharashtra Act No. XXIII of 2001, it becomes very clear that the Caste Certificate is cancelled and confiscated when the Scrutiny Committee is of the opinion that the certificate has been obtained fraudulently by the applicant. Conversely, once the certificate has been obtained by the applicant from the Competent Authority is cancelled and confiscated, logically what follows from it is that the Caste Scrutiny Committee was not satisfied with the correctness of the certificate obtained from the Competent Authority; though the Caste Scrutiny Committee may not say in so many words that such certificate has been obtained fraudulently. What is important for the purposes of Section 16(1C)(a) of the M.M.C. Act is not the express finding by the Caste Scrutiny Committee that the caste certificate was obtained by the applicant by making false claim or declaration, but the factum of invalidation and cancellation of caste certificate by the Scrutiny Committee. The cancellation of caste certificate by the Scrutiny Committee implies that in the opinion the Scrutiny Committee, such certificate has been obtained fraudulently because the inquiry by the Scrutiny Committee centres around the correctness of such caste certificate obtained from the Competent Authority.

(Emphasis supplied)

9. The learned Counsel for the petitioner has further contended that the Committee has wrongly jumped to the conclusion that the certificate is a forged one. According to the learned Counsel for the petitioner, merely because the office of the Executive Magistrate/Tahsildar, Jalgaon has communicated that the said certificate has not been issued by their office, it does not necessary to draw an inference that the certificate is forged one or is obtained by fraudulent means.

10. We do not propose to go into the question as to whether the action of the petitioner in obtaining the certificate, if the allegations are taken to be proved, can be construed as a fraud. The Apex Court, in the case of State of Andhra Pradesh and Ors. v. T. Suryachandra Rao reported in 2005 AIR SCW 3603, taking note of its earlier judgment in the case of S.P. Changalvaraya Naidu v. Jagannath , observed that:

A "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is deception in order to gain by another's loss. It is a cheating intended to get an advantage.

It was further held that:

Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.

11. As stated above, as the question in respect of genuineness of the caste certificate or the question whether the certificate has been obtained by following the procedure as contemplated under the statute or rules framed thereunder is required to be gone into by the Scrutiny Committee, as provided under Section 7 of the Act, we refrain to make any comment as regards the presence of element of fraud or otherwise, whether can be inferred against the petitioner and we leave the said question for determination by the Scrutiny Committee.

12. We also find merit in the contention of the learned Counsel for the petitioner that the Scrutiny Committee has merely considered the report of the vigilance cell officer and has arrived at an adverse inference against the petitioner. It also appears from the perusal of the order passed by the Scrutiny Committee that the petitioner has not been afforded. proper opportunity of hearing before the Committee. It would, therefore, be appropriate, in order to meet the ends of justice, to afford an appropriate opportunity of hearing to the petitioner before arriving at any conclusion by the Scrutiny Committee. The Scrutiny Committee would be within its bounds to investigate into the matter of genuineness of the caste certificate in view of provisions of Section 7 of the Act of 2000 and would determine the question regarding genuineness or otherwise of the impugned caste certificate and may pass an appropriate order taking into consideration the relevant provisions contained in the Act of 2000.

13. In the result, for the reasons stated above, we quash and set aside the order dated 29-10-2001 passed by the Scrutiny Committee and remit the matter back to the Scrutiny Committee for fresh determination, after giving an appropriate opportunity of hearing to the petitioner to produce evidence. The petitioner has undertaken before this Court to appear before the Scrutiny Committee on 23-4-2006 and as such, no separate notice ensuring presence of the petitioner before the Committee is warranted. The Committee may proceed to determine the claim in the light of observations made in the preceding paras of this judgment, within a period of six months from the date of appearance of the petitioner, after affording an appropriate of opportunity to the petitioner for presenting his case.

14. Rule is made absolute in above terms. There shall be no order as to costs.