Suresh S/O Govindrao Jadhao vs The Divisional Caste Certificate ...
2017 Latest Caselaw 3266 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR

                        WRIT PETITION NO. 5371 OF 2013

 Suresh s/o Govindrao Jadhao,
 Aged about : 50 years,
 Occupation : Agriculturist,
 (Member of Grampanchayat), 
 R/o Tapneshwar Road,
 Ward No.4, Jamkhed,
 Tah. Jamkhed, Dist. Ahmednagar.                                  ..... PETITIONER

                                 ...V E R S U S...

 1. The Divisional Caste Certificate Scrutiny
    Committee No.2, Akola,
    Tah. and Dist. Akola.

 2. Rajendra s/o Sukhdev Wavhal,
    Aged about : 40 years,
    Occupation : Business,
    R/o Kumbhar Tale,
    Jamkhed, Tah. Jamkhed,
    Dist. Ahmednagar.                                             ... RESPONDENTS

 -------------------------------------------------------------------------------------------
 Shri N. B. Kalwaghe, Advocate for the petitioner.
 Shri H. R. Dhumale, AGP for the respondent No.1.
 -------------------------------------------------------------------------------------------


                                  CORAM:-    
                                             SMT. VASANTI  A  NAIK &
                                                 ARUN D. UPADHYE, JJ.

DATED :-

16/06/2017.

ORAL JUDGMENT : (Per Smt. Vasanti A Naik, J.)

Whether the Scrutiny Committee could have directed

the launching of the prosecution against the petitioner under Section 11

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of The Maharashtra Scheduled Caste, 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 without serving a notice on the petitioner as

to why action should not be taken against him under Section 11 of the

Act is a question that falls for consideration in this petition.

The petitioner claimed to belong to "Kaikadi" caste

which is a scheduled caste and had contested the election to the Gram

Panchayat on a seat that was reserved for the Scheduled Castes. The

caste claim of the petitioner was referred to the Scrutiny Committee for

verification. The rival candidate that had contested the election, filed a

writ petition challenging the caste claim of the petitioner. This Court

directed the Scrutiny Committee to decide the caste claim after hearing

the complainant. The Scrutiny Committee, by the impugned order dated

23/07/2013 invalidated the caste claim of the petitioner and also

directed that the petitioner be prosecuted in view of the provisions of

Section 11 of the Act.

Shri Kalwaghe, the learned counsel for the petitioner

fairly states that when this writ petition came up for admission, this

Court had restricted the challenge to the order of the Scrutiny

Committee, only insofar as it directs that a prosecution may be

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launched against him in view of the provisions of Section 11 of the Act.

Inter alia, it is submitted on behalf of the petitioner that the Scrutiny

Committee was not justified in directing that the prosecution be

launched against the petitioner in view of the provisions of Section 11

of the Act without serving a notice on the petitioner asking him to show

cause as to why action under Section 11 of the Act should not be taken

against him for filing false and fabricated documents. It is stated that an

erroneous observation is made by the Scrutiny Committee in the

impugned order that the petitioner had tendered fabricated documents

in support of his caste claim. It is submitted that the Scrutiny

Committee could have at the most held that the documents on which

the petitioner relied may not be helpful for validating the caste claim

but a finding could not have been recorded that the documents were

false and fabricated. It is submitted that in any case, a notice ought to

have been served on the petitioner asking him to show cause as to why

an action should not be initiated against him in view of the provisions

of Section 11 of the Act. The learned counsel for the petitioner relied on

the Judgment, reported in 2006 (Supp.) Bombay Cases Reporter 618 to

substantiate his submission that before taking action under Section 11

of the Act or for that matter under Section 7 thereof, it would be

necessary for the Scrutiny Committee to put the claimant on notice, so

as to give an opportunity to him to explain as to why the Committee

should not hold that the claimant is guilty of producing false, forged

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and fabricated documents including the certificate. It is submitted by

taking this court through the notice issued by the Scrutiny Committee,

dated 30/04/2013 that by the said notice, the Scrutiny Committee had

merely directed the petitioner to show cause against the report of the

Vigilance Cell and remain present personally before the Scrutiny

Committee to substantiate his caste claim and there is no mention in the

notice that the Scrutiny Committee had prima facie found that the

petitioner had tendered false and fabricated documents in support of his

caste claim.

Shri Dhumale, the learned Assistant Government

Pleader appearing for the respondent submitted that the Scrutiny

Committee had directed the launching of the prosecution against the

petitioner in view of the provisions of Section 11 of the Act. It is

submitted that the Scrutiny Committee had found that the documents

tendered by the petitioner were false and fabricated. It is however fairly

admitted that it does not appear from the notice served on the

petitioner that the petitioner was asked to show cause as to why the

Scrutiny Committee should not take action against the petitioner for

producing false and fabricated documents. It is stated that in case the

Scrutiny Committee so desires, it would serve an appropriate show

cause notice on the petitioner.

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On hearing the learned counsel for the parties and on a

perusal of the provisions of the Act, the Judgment on which reliance is

placed by the learned counsel for the petitioner as also the show cause

notice dated 30/04/2013, it appears that the petitioner was not granted

any opportunity, whatsoever to show cause as to why action should not

be taken against him in view of the provisions of Section 11 of the Act.

In the notice dated 30/04/2013, the Scrutiny Committee has not even

made a mention that it prima facie appeared to the Scrutiny Committee

that the petitioner had tendered false and fabricated documents. In the

said notice, dated 30/04/2013, the Scrutiny Committee has merely

informed the petitioner that it was not satisfied with the documents

tendered by the petitioner and the vigilance enquiry report and hence,

the petitioner should remain present before the Scrutiny Committee in

order to prove his caste claim. It was necessary for the Scrutiny

Committee to have served a notice on the petitioner asking the

petitioner to show cause as to why action should not be initiated against

him, in view of the provisions of Section 11 of the Act for filing false

and fabricated documents. Since the Scrutiny Committee has not served

any notice on the petitioner in regard to the proposed action of

initiating criminal prosecution against the petitioner, the impugned

order is liable to be quashed and set aside.

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In view of the aforesaid, the writ petition is partly

allowed. The part of the order of the Scrutiny Committee that directs

the initiation of the criminal prosecution against the petitioner, in view

of the provisions of Section 11 of the Act is hereby quashed and set

aside. The Committee would be free to take appropriate action against

the petitioner, if it so desires.

Rule is made absolute in the aforesaid terms with no

order as to costs.

                      JUDGE                                        JUDGE




 Choulwar