Ashok Shinwar Mali vs Smt. Indira Digvijaysinghrao ...
2017 Latest Caselaw 8796 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION


                           WRIT PETITION NO.3868 OF 2012


      Ashok Shinwar Mali
      of Dahanu, District - Thane
      Indian Inhabitant, Age - 61 years,
      Occupation - Agriculture,
      Residing at Naralwadi, Dahanu,
      District - Thane.                                                .. Petitioner

               V/s.

      (1)      Smt.Indira Digvijaysinghrao Mukane
               Age - 61 yrs, Occupation - Business;

      (2)      Mahendrasingh Digvijaysinghrao
               Mukane, Adult, Occupation - Business;

      (3)      Ms.Padminiraje Digvijaysinghrao
               Mukane, Adult,
               All Indian Inhabitant,
               Residing at 3, Motibaug,
               Ganesh Khind Road, Pune,
               At Present all Residing at
               "Chandrama", 76, Koregaon Park,
               Pune - 411 001;

      (4)      Vice Chairman
               Scheduled Tribe Certificates
               Scrutiny Committee,
               Konkan Vibhag, Thane,
               At Vedanta Complex,
               Vartak Nagar, Thane (West);

      (5)      Chairman,
               Scheduled Tribe Certificates
               Scrutiny Committee,
               Maharashtra State Pune - 1;




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      (6)      Executive Magistrate,
               Jawhar, Office of the Tahasildar,
               Jawhar, District - Thane;

      (7)      The State of Maharashtra,
               Through the Government Pleader,
               High Court, Writ Cell,
               Appellate Side, Mumbai.                                     .. Respondents

                                 ......
      Mr.Dilip B. Bagwe a/w. Mr.Kantilal Kanojia, Advocate for the
      Petitioner.

      Mr. Abhishek Pungaliya, Advocate for Respondent Nos.1 to 3.

      Ms.Neha Bhide, AGP" for Respondent Nos.4 to 7.
                                  ......

                               CORAM : S.C. DHARMADHIKARI AND
                                       PRAKASH D. NAIK, JJ.

             JUDGMENT RESERVED ON : SEPTEMBER 13, 2017
             JUDGMENT PRONOUNCED ON : NOVEMBER 17, 2017


      JUDGMENT (Per PRAKASH D. NAIK, J.) :

The petitioner has invoked the writ jurisdiction of this

Court under Article 226 of the Constitution of India and prayed

for issuance of writ of certiorari or any other appropriate

writ,order or directions for setting aside the impugned caste

certificates and caste validity certificates issued to respondent

nos.2 and 3. In the alternative, it is also prayed that respondent

nos.4 and 5 be directed to hold an inquiry into the claim made by

the respondent nos.1 to 3 of belonging to Mahadev Koli caste, a

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Scheduled Tribe and thereupon confiscate and cancel the

impugned caste certificate and caste validity certificates, in the

event, the same are found to have been illegally obtained by

respondent nos.1 to 3.

      2                 The    facts   and    circumstances                   narrated    by     the

      petitioner in this petition are as follows:



      (a)      The petitioner and his relatives Smt.Jayanti Pandurang

Mali, Shri Mohan S.Mali, Smt.Sujata Mohan Mali and

Smt.Arti Mali are in occupation and possession of the land

bearing Survey No.133/Hissa No.1A, admeasuring about

90.55 R Potkharaba 7.33 R and land bearing survey no.152,

Hissa No.3A admeasuring about 7.10 R situated at Dahanu

Fort Road, popularly known as Naralwadi.

(b) Respondent nos.1 to 3 are the heirs of the original owners

of the said lands. They are claiming to belonging to

Mahadeo Koli tribe, a scheduled tribe recognized under

The Scheduled Caste and Scheduled Tribe order 1950.

      (c)      The petitioner and his said relatives are the successor in





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title of one Shinvar Mali who was the tenant of the said

land since 1952. At all material times, the predecessors in

title of the respondent nos.1 to 3 were the landlords in

respect of the said lands. The said land is uncultivable and

filled with sand being proximate to the beach. The said

land consist of coconut trees. The petitioner has his

residential house in the said land which is situated at

Survey No.133/1A. The land is situated within the limits of

Dahanu Municipal Corporation. The respondent nos.1 to 3

or their predecessors in title have never cultivated the said

land. On the other hand, the petitioner and his relatives

were holding Navratri Utsav and permitting the holding of

marriage receptions in the said land. The petitioners

predecessor in title, during his lifetime and thereafter the

petitioner and his said relatives have been in exclusive

possession of the said land which is to the knowledge of the

respondent nos.1 to 3. The said respondents or their

predecessors in title have never adopted any legal

proceedings in the civil court against the petitioner and his

relatives. The petitioner and his relatives had, thereafter,

become owners of the said land by adverse possession.

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      (d)      On 6th April, 2004, the said respondent nos.1 to 3 through

their hirelings had attempted to dispossess the petitioner

and his relatives employing by physical force from the said

land which was successfully resisted by the petitioner. The

complaint was lodged with Dahanu Police Station, against

respondent nos.1 to 3.

(e) The petitioner and his relatives filed a suit in the Court of

Civil Judge Junior Division, Dahanu being Civil Suit No.13

of 2004 against the respondent nos.1 to 3 for a declaration

that the title of the petitioner and his relatives over the

said land had been perfected by doctrine of adverse

possession and for consequential relief by way of

permanent order and injunction restraining the said

respondents from interfering with the physical possession

of the petitioner and his relatives. The said respondents

appeared in the said suit and filed a written statement.

They also filed an application under Section 9A of the Code

of Civil Procedure, challenging the jurisdiction of the Civil

Court to entertain and try the suit on the ground that they

belonged to the Scheduled Tribe-Mahadeo Koli and by

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virtue of Section 10 of the Maharashtra Restoration of

Lands to the Scheduled Tribe Act, 1974 (hereinafter

referred to as "the said Restoration Act of 1974"), the Civil

Court has no jurisdiction to entertain and try the same. In

support of the said application the respondents relied upon

caste certificate and validity certificate issued to them

purportedly under the provisions of Maharashtra

Scheduled Caste, Scheduled Tribes, D-Notified Tribes

(Vimukta Jatis) Nomadic Tribes, other backward classes

and Special Backward Category (Regulation of Issuance

and Verification of) Caste Certificate Act, 2000.

(f) The Civil Judge Junior Division, Dahanu by judgment and

order dated 20th April, 2010, rejected the plaint under

order VII Rule 11(d) of CPC. The petitioner and his

relatives challenged the order dated 20th April, 2010 by

preferring Appeal before the District Judge, Palghar being

Civil Appeal No.25 of 2010. The said Appeal was dismissed

by Judgment and order dated 5th September, 2011. The

petitioner challenged the aforesaid decision by preferring

Second Appeal No.17 of 2012, before this Court.

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      (g)      The predecessor in title of respondent nos.1 to 3 were the

rulers of erstwhile State of Jawhar. According to the

petitioner, the respondent nos.1 to 3 do not belong to

Scheduled Tribe Mahadeo Koli or of any other Scheduled

Tribe as defined under Section 2(j) of the Maharashtra

Castes Certificate Act, 2000. It is the case of the petitioner

that the said respondents either belong to the caste of

Hindu Koli, Hindu Maratha or Rajput none of which is a

Scheduled Tribe.

(h) Mr.Marzban Jahangir Patel, a resident of Dahanu had

claimed to be tenant of certain other plots of land of which

predecessor in title of respondent nos.1 to 3 Shri Digvijay

Singh Rao was the owner. The tenancy disputes had arisen

between Mr.Patel and the aforesaid owner. Mr.Patel filed a

regular civil suit no.36 of 1988 in the Court of Civil Judge

Junior Division, Dahanu against Shri Digvijaysingh Rao for

a declaration that he was tenant in respect of lands in his

occupation and for permanent injunction consequential

thereto. The respondent no.1 to 3 were brought on record

after the death of the original defendant in the said suit.

The said respondents contended that the suit was barred

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by the provisions of Maharashtra Restoration Act, 1974.

The respondent No.3 produced caste certificate and caste

validity certificate issued to original defendant in support

of their claim of belonging to Mahadeo Koli Scheduled

Tribe. Mr.Patel challenged the legality of the said

certificates. The trial Court has framed issues in the said

suit including the issue whether the plaintiff proves that

the respondent nos.1 to 3 herein did not belong to Hindu

Mahadeo Koli (Scheduled Tribe) community and that the

Maharashtra Restoration Act was not applicable for the

properties mentioned in the suit and whether the plaintiff

proved that the caste certificate issued to the defendant

therein was illegal and contrary to its provisions of law.

(i) The trial Court in its judgment and order dated 4th May,

2002 had held that the respondent nos. 1 to 3 did not

belong to Hindu Mahadeo Koli (Scheduled Tribe) and that

the Maharashtra Restoration of Lands to the Scheduled

Tribes Act was not applicable to the properties which were

subject matter of the suit. It was also declared that the

caste certificate issued to defendant therein was illegal and

was issued in violation of provisions of law.

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      (j)      Respondent nos.1 to 3 preferred an Appeal before the

District Judge, Palghar viz Regular Civil Appeal No.59 of

2002. Thereafter, Mr.Patel and respondent nos.1 to 3 had

settled the matter out of Court and filed pursis dated

11th October, 2007 in Appeal bearing No.59 of 2002,

pursuant to which the said Appeal was disposed of by order

dated 11th October, 2007. According to the petitioner, the

findings arrived at and recorded by the trial Court in its

judgment could not be reexamined or reassessed on merits

by the Appellate Court. The judgment and order of the trial

Court gives a clear indication that the respondent nos.1 to

3 do not belong to Mahadeo Koli and that the caste

certificate as well as caste validity certificate obtained by

their predecessor in title were illegal and issued contrary

to provisions of law.

(k) The petitioner preferred an Application/Appeal No.49 of

2011 before the respondent no.4 for cancellation of the

caste certificates and certificate of validity issued to said

respondents. The said Appeal/application was rejected vide

order dated 24th January, 2012, stating that the scrutiny

committee did not have power to review in respect of

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certificate of validity which were issued by the said

authority.

(l) In the aforesaid circumstances, the petitioner has

approached this Court by invoking Article 226 of the

Constitution of India challenging the impugned caste

certificate at Exhibits - C and D and certificate of validity

at Exhibits - E and F, which were issued to the respondent

nos.2 and 3.

3 Learned counsel for the petitioner submitted that the

petitioner and his relatives were in possession and occupation of

the subject land. The respondent nos.1 to 3 are claiming that they

belong to Mahadeo Koli (Scheduled Tribe). The caste certificate

and the certificate of validity issued by respondent nos.4, 5 and 6

to respondent nos.1 to 3 were obtained by suppressing material

facts and documents and without following the procedure

prescribed by law. It is submitted that the Civil Court in the suit

preferred by Mr.Marzban Patel, has held that the respondent

nos.1 to 3 did not belong to Hindu Mahadeo Koli and, therefore,

the Maharashtra Restoration Act was not applicable to the

properties which were the subject matter of the suit. The said

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Court has declared that the caste certificate issued to defendant

therein was illegal and was issued in complete violation of clear

and express provisions of the applicable law. It is further

submitted that in the said decision, the Civil Court has observed

that the reports prepared by the administration of Bombay

Presidency dating back to 1886 mentioned the name of king

thereof as "Raja Patangeshaw of Jawhar" and in the column of

caste or race or religion was given as "Koli Hindu" which is not

the Scheduled Tribe. The documents dating back to the year

1952 signed by Smt. Priyamvade Raje, the mother of the said

original defendant, states the name of her child as

"Digvijaysingh" and as belonging to Hindu Maratha caste and

which is not the scheduled caste. There are several other adverse

findings which refutes the claim of the said original defendant.

It is submitted that although the said order was set aside in the

Appeal, it was done so in a peculiar circumstances as there was

settlement between both the parties and the Court has not dealt

with the merits of the case. The respondent nos.1 to 3 had agreed

to transfer the subject lands in favour of Mr.Patel upon his

accepting that the said respondents belong to Mahadeo Koli

scheduled tribe. It is submitted that it was in these

circumstances, that the said judgment and decree was set aside.

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The said judgment gives a clear indication that said respondents

do not belong to Mahadeo Koli tribe and the caste certificate and

certificate of validity obtained by their predecessor-in-title was

illegal. The findings of the Civil Court was thereby not set aside

by the Appellate Court. It is submitted that the impugned

documents are illegal and contrary to the provisions of law and in

violation of the procedure prescribed by law. The respondents are

misusing the said documents and depriving the petitioner of the

said lands which he and his relatives have acquired by adverse

possession. The predecessor in title of respondent nos.1 to 3 have

also availed of the illegal caste certificate and certificate of

validity by contesting the election for constituency reserved for

Scheduled Tribe which they do not belong. The misuse of the

said document is prejudicial to the right, title and interest of the

petitioner and his relatives in the subject land. It is submitted

that documents available, many of which are ancient public

documents show that the ancestors of respondents belong to the

Hindu Koli or Hindu Maratha or Hindu Rajput caste, neither of

which is Scheduled Tribe. The concerned authorities, therefore,

ought to have instituted proper inquiry as prescribed under the

law and ascertained the caste of the respondent nos.1 to 3 before

issuing the said caste certificate and certificate of validity. The

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concerned authorities were erroneously influenced by the caste

certificate and certificate of validity issued to Shri

Digvijaysinghrao. The said fact itself would not be conclusive in

nature to bind another concerned authority while examining the

case of other members of the family namely respondent nos.1 to

3, if it is proved that such caste certificate and certificate of

validity was issued by mistake, or non-consideration of relevant

facts and suppression of documents. It is submitted that the

scrutiny committee ought to have applied the affinity test in the

case of respondent nos.1 to 3 who were the descendents of the

erstwhile rulers of former state of Jawhar. The scrutiny

committee ought to have concluded that the said respondents did

not belong to Mahadeo Koli Scheduled Tribe in view of several

ancient documents as well as the traits displayed by them and

ought to have cancelled and confiscated the said documents. The

said certificates are issued without holding proper enquiry and

following due procedure of law. The purport of Maharashtra

Restoration Act is to provide for restoration of certain lands to

persons belonging to the Scheduled Tribe. The said act is being

misused. It is submitted that the scrutiny committee has

erroneously rejected the application preferred by the petitioner

seeking cancellation of the caste certificate. The authority has

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rejected the application erroneously on the ground that they

cannot review its earlier decision granting the said certificates.

It is submitted that the authority was empowered to review its

decision in the facts and circumstances of the present case and it

was an error to reject the said appeal/application. It is submitted

that in the alternative to the prayer for setting aside, the

impugned documents, this Court may direct the respondent nos.4

and 5 to make inquiry into the claim made by the said

respondents.

4 The learned counsel for the petitioner relied upon the

Government Resolution dated 8th March, 1985 bearing No.CBC-

1684/(392)/D/XI. The said resolution states that a separate

Scrutiny Committee has been appointed by the Government for

verification of caste certificates of Scheduled Tribe under

Government Resolution dated 23rd January, 1985. The

government directed that at the time of verification of the caste

certificate, mentioned in para 2 of the Government Resolution

dated 23rd January, 1985, the scrutiny committee may go into the

correctness or otherwise of the certificate already issued by the

competent authority by calling additional evidence/documents

from the concerned candidates and conduct detailed inquiry

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before arriving at the final decision even by going beyond the

Government resolution referred to therein if it has reason to

believe that the certificate is manipulated or fabricated or has

been obtained by producing insufficient evidence etc. and that

the committee is authorized to cancel and confiscate it if on full

enquiry and verification the same is found to be incorrect or

invalid. On the basis of the said resolution, it is submitted that the

committee ought to have conducted an inquiry to find out the

truth as enumerated herein and ought not to have rejected the

application/appeal mechanically on the ground that the

committee cannot review its earlier decision.

5 Learned counsel for the petitioner relied upon

following decisions:

(1) Mangesh Nivruti Kashid & Ors. Vs. District Collector and Ors.1;

               (2)      Sandip Wysal Vs. State of Maharashtra &
                        Ors.2;
               (3)      Sangita Kolse Vs. State of Maharashtra 3;
               (4)      Madhuri        Patil       and       Anr.         Vs.      Municipal
                        Commissioner of Tribal Development and
                        Ors.4


      1   2012(3) Bombay Cases Reporter page 716
      2   2010(3) BCR 717
      3   2006 ALL MR Page 565;
      4   1994(6) SC Page 241





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      6                 The learned counsel for the respondent nos.1 to 3

submitted that the petition is devoid of merits. It is submitted

that the petitioner had filed a suit no.13 of 2004. In the said suit,

the respondent had filed a written statement as well as an

application under Section 9A of the Civil Procedure Code and

submitted that the said Court has no jurisdiction to entertain the

said suit. The said suit was dismissed vide order dated 20 th April,

2010. The learned Civil Judge had observed in the said order that

there is specific bar of jurisdiction under Section 19 of the

Restoration Act to settle the claim in question raised under the

provisions of the Restoration Act. The respondent had challenged

the order by preferring Appeal before the District Judge, which

was rejected on 5th September, 2011. Thereafter, the petitioner

had preferred an appeal before this Court challenging the

aforesaid order. It is submitted that the Court in the aforesaid

proceedings had considered the issue relating to the validity of

the caste certificate and certificate of validity which is under

challenge and, therefore, the petitioner cannot challenge the

validity of the said documents by preferring writ petition before

this Court. It is submitted that the petitioner cannot rely upon the

order dated 4th May, 2002, passed by the Civil Court in the suit

preferred by Shri Marzban Patel. The said order was set aside by

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the District Court. It is submitted that although there was

compromise between the parties, the District Judge was pleased

to pass an order on 11th October, 2007, stating that the judgment

and decree passed by the lower court to the extent of declaration

as regards the caste of original defendants is set aside. It is,

therefore, submitted that the petitioner thereafter cannot take

advantage of the decree dated 4th May, 2002, passed by the Court

in Suit filed by Shri Patel. It is further submitted that the

certificate in question were issued in 1981 and 1989. After

resorting to all the remedies in law, the petitioner has now

chosen to invoke the writ jurisdiction of this Court. It is submitted

that Mr.Marzban Patel had also challenged the certificate issued

to Shri Digvijaysinghrao by preferring an Appeal before the

Commissioner, Konkan Division. In the said Appeal, the said

authority had scrutinized the validity of the caste certificate as

well as caste validity certificate by relying upon several

documents and the said Appeal was dismissed. Vide order dated

29th May, 1987, it was observed that the caste certificate dated 5 th

May, 1984 issued to Shri Digvijaysinghrao Mukane is valid and he

belongs to Mahadeo Koli (Scheduled Tribe). Shri Patel then

challenged the said order before the High Court by preferring

writ petition. By order dated 14th March, 1988, the said petition

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was dismissed. It is, therefore, submitted that there is no

substance in the submissions advanced by the petitioner. The

learned counsel relied upon the decision in the case of State of

Tamil Nadu Vs. Guruswami5.

7 An affidavit in reply dated 13 th July, 2012 is filed by

Shri Mukund Ghodke, Reserch Officer Scheduled Tribe Scrutiny

Committee, Konkan Division, Thane on behalf of respondent nos.

4 and 5. In the said reply, it is stated that the validity certificate is

issued in 1989 by the Chairman Schedule Tribe Certificate

Committee and Director, Tribal Research and Training Institute,

Maharashtra State, Pune. The said committee came into

existence as per the resolution dated 23rd January, 1985, issued

by the Government of Maharashtra. The caste certificates of

respondent nos.2 and 3 were issued by the concerned competent

authority. Since 1989 till today the said certificates are intact.

It is further stated that as per the record, the respondent nos.2

and 3 are ordinary residents of Jawhar, District-Thane. Koli

Mahado, Scheduled Tribes were residents of areas mentioned

therein which includes area of Jawhar in Thane District. The caste

is acquired by birth from paternal side and affinity is considered

5 AIR 1997 SC 1999

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by the then committee. It is stated that as far as the certificate

issued to respondent nos.2 and 3 are concerned, the committee

might have issued these certificates on the basis of documentary

evidence and considering the legal position prevailing at the

relevant time.

8 We have perused the documents on record. The

respondent nos.1 to 3 claims that they belong to Hindu Mahadeo

Koli Tribe which is recognized as a "Scheduled Tribe". Shri

Digvijaysinghrao Mukane is the husband of respondent no.1 and

father of respondent nos.2 and 3. The respondents are relying

upon the caste certificate issued by the Executive Magistrate,

Jawhar on 5th May, 1984 issued in favour of Shri Digvijaysinghrao

Mukane as well as the caste validity certificate dated 7 th January,

1986 issued by the Scrutiny Committee in his favour. Reliance is

also placed on the caste certificate issued in favour of respondent

no.3 by Executive Magistrate Jawhar on 24th February, 1981 and

the caste validity certificate issued by the scrutiny committee on

27th September, 1989 in her favour stating that she belongs to

Hindu Mahadeo Koli caste, which is a Scheduled Tribe. Similarly,

the respondent no.2 relies on the caste certificate dated 24 th

February, 1981 and the caste validity certificate dated 27 th

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September, 1989 in support of his caste.

9 Shri Marzban Jahangir Patel had initially challenged

the caste certificate dated 5th May, 1984 issued in favour of Shri

Digvijaysinghrao Mukane, before the Commissioner, Konkan

Division. The said authority vide its order dated 29 th May, 1987

rejected the said complaint filed by Mr.Marzban Patel and held

that caste certificate issued to aforesaid persons is valid and he

belongs to Mahadeo Koli (Scheduled Tribe). While passing the

said order, the Commissioner, Konkan Division, had adjudicated

upon the contentions of the complainant Shri Patel that the caste

certificate issued to Shri Digvijaysinghrao was not in prescribed

form and it was granted without proper enquiry. It was prayed

that the said certificate be cancelled and the Executive

Magistrate be directed to conduct fresh inquiry or in the

alternate the inquiry be conducted at a divisional level. In the

order dated 29th May, 1987, the Commissioner has observed that

on 15th November, 1985, Tahasildar Jawhar was directed to make

local enquiries into the allegations made by the complainant after

giving opportunity to both the parties and to submit a report in

accordance with G.R. Dated 29th October, 1980. Accordingly, the

Tahsildar submitted the report on 24th February, 1986. The

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Commissioner heard both the parties, also considered written

arguments and dealt with all the contentions of the complainant

therein. The submissions were also made that the enquiry

conducted by the Tahsildar is superfluous and arbitrary. The

order reproduces all the contentions of the complainant. The

commissioner also considered the aspect of validity of documents

relied upon by the claimant of caste certificate. The

Commissioner also made reference to several documents,

correspondence, writings, publications while adjudicating the

said issues raised in the said complaint. After analysing all

aspects in detail, the Commissioner concluded that the caste

certificate issued to Shri Digvijaysinghrao Mukane is valid and

that he belongs to Mahadeo Koli (Scheduled Tribe). In the

concluding paragraph it was also observed by the Commissioner

that the most important document in favour of the opponent is

the decision or validity certificate dated 7 th January, 1986 of the

Scheduled Tribe Scrutiny Committee holding the caste certificate

dated 5th May, 1984 to be valid. This certificate shows that the

caste certificate is validated in view of G.R. Tribal Development

Department No.OBC-1684/2818 (219) XI dated 23 rd January,

1985. The said order was challenged by Shri Marzban Patel in

Writ Petition No.6010 of 1987 filed before this Court. By order

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dated 14th March, 1988, the petition was dismissed on the ground

that the Commissioner has appreciated the evidence and

recorded the finding of fact, which cannot be disturbed in writ

petition.

10 It is apparent that Mr.Marzban Patel thereafter filed

the suit before the Court of Civil Judge, Dahanu wherein the

respondent nos.1 to 3 were added as defendants being heirs and

legal representatives of Shri Digvijaysiingh Yashwantrao Mukane.

The petitioner has annexed the decree passed in the said suit to

the petition. The said decree was passed on 4th May, 2002,

wherein it was declared that Shri Patel is the tenant of the

subject suit property and that the defendants do not belong to

Hindu Mahadeo Koli (Scheduled Tribe) and hence, the provisions

of Maharashtra Restoration of Lands to the Scheduled Tribe Act,

1974 is not applicable to the said properties. It was also declared

that the caste certificate dated 5th May, 1984 issued to the

defendant is illegal and the defendants were restrained from

claiming for and on behalf of them and were prohibited by

injunction from implementing caste certificate dated 5th May,

1984 and the caste certificate possessed by the defendant nos.2

and 3 (respondent Nos.2 and 3) and from acting in furtherance of

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the said caste certificate. It is pertinent to note that the said

decision dated 4th May,2002 was challenged by the respondent

nos.1 to 3 before the District Judge Palghar vide Civil Appeal

No.59 of 2002. A compromise pursis was filed by the appellants

and the original plaintiff Shri Marzban Patel. In the compromise

pursis, it was stated that the parties have compromised the

proceedings. It was also stated that the original plaintiff declared

that he admit the caste status of the defendant as Mahadeo Koli

(Scheduled Tribe) and that declaration sought in the decree in

respect to caste certificate issued to Digvijaysingh Mukne dated

5th May, 1984 and order dated 29th May, 1987 is withdrawn. The

District Judge vide order dated 11th October, 2007passed an order

that the parties have arrived at compromise and that the

respondents has admitted that the appellants are from Mahadeo

Koli caste which is a Scheduled Tribe. In view of this admission,

the decree passed by the lower Court to the extent of declaration

as regards the caste cannot be sustained. The judgment and

decree passed by the lower court to the extent of declaration as

regards the caste of original defendants is set aside.

11 The petitioner had filed the suit bearing No.13 of

2004 against respondent nos.1 to 3 for a declaration that the title

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of the petitioner and his relatives over the suit land had been

perfected by adverse possession. The respondent nos.1 to 3 filed

an application in the said suit under Section 9A of the Code of

Civil Procedure challenging the jurisdiction of the Civil Court to

entertain and try the suit on the ground that they belong to

Scheduled Tribe Mahadeo Koli and by virtue of Section 10 of the

Maharashtra Restoration of Lands to the Scheduled Tribe Act,

1974, the Civil Court had no jurisdiction to entertain and try the

same. In support of the said application, the said respondents

relied upon the caste certificate as well as caste validity

certificate. The Civil Judge, Junior Division Dahanu rejected the

plaint vide order dated 20th April, 2010. In the said order, it was

observed that the defendants (respondent nos.1 to 3) had

succeeded in showing that the Court has no jurisdiction to decide

the subject matter as the suit is barred by the provisions of law.

The Civil Court had framed preliminary issues whether the Court

has jurisdiction to try the said suit. The respondent/s had relied

upon the documents such as caste certificate issued by the

Executive Magistrate as well as the caste validity certificate in

support of their claim that they belong to Mahadeo Koli

(Scheduled Tribe). The said order dated 20 th April, 2010 was

challenged by the Petitioner before the Court of District Judge at

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Palghar by preferring an Appeal. Vide order dated 5 th September,

2011, the Appeal was dismissed. While dismissing the said

Appeal, the Appellate Court has observed that the trial Court has

properly considered the evidence on record. The trial Court has

also considered the legal provisions and rightly rejected the

plaint and the Appellate Court does not find any reason to

interfere with the order passed by the trial Court. The said order

is not disturbed by any other Court. On the contrary, the

petitioner had preferred Second Appeal No.17 of 2012

challenging the aforesaid orders before this Court. The said

Appeal was dismissed at the stage of admission vide order dated

28th January, 2013. A copy of the said order has been placed on

record by the respondents. In the order dated 28 th January, 2013,

it was observed that the respondents had taken a positive stand

that they are tribals and they are protected by the said Act. The

said respondents also led evidence to support their claim and the

appellants therein did not lead any evidence. This would mean

that though the appellants got a chance to lead evidence on the

points which were to be considered by the Court, they did not do

so. The judgment of the trial Court indicates that the appellants

had filed evidence closure pursis. It is further observed that it is

noticed that the case of the respondents that they are protected

rpa 26/31 wp-3868-12.doc

by the Act has been accepted on the basis of evidence before it.

There is concurrent finding about it. If this is so, the said

concurrent finding on the basis of the evidence led before the

Court need not be interfered with and that the ultimate decision

arrived at by both Courts that the plaint deserves to be rejected

need not be interfered with. On the basis of the aforesaid

observations, the Second Appeal preferred by the petitioner was

dismissed on 28th January, 2013.

      12                In the case of Mangesh Kashid & Ors. (Supra)

      relied upon by the petitioner, it was observed that the                          caste

certificate are required to be verified in proper perspective. This

Court considered the issue whether it is mandatory for

committee to call for field enquiry by vigilance cell and the legal

status of certificates issued without such reports. It is observed

that this relates to fundamental rights of backward classes. If a

wrong person gets certificate he can use it even for other benefits

and he deprives genuine persons of their rights. It is mandatory

therefore for State Government to follow Act and Rules. The

petitioner contends that no such procedure was followed and thus

the committee ought to have allowed the application for review.

We have noted that the order passed by commissioner to refers to

rpa 27/31 wp-3868-12.doc

enquiry made by Tahasildar and his report qua the caste

certificate of father of respondent nos.2 and 3, adjudication on

the documents relied by respondent nos.1 to 3, by Court. Hence,

in the facts and circumstances of the present case, we do not find

that any scrutiny is required for reviewing the said documents.

The other decision of this Court in the case of Sandip Wysal

(Supra) relied upon by the petitioner, this Court has observed

that the scrutiny committee is the forum who has to make an

enquiry in case the complaint is lodged with the scrutiny

committee that the caste validity certificate is obtained by

practicing fraud upon the scrutiny committee. In the other

decision in the cased of Sangita Kolse (Supra) relied upon by

the petitioner again it was observed that fraud affects the legality

and regularity of the proceedings before the Court and also

amounts to an abuse of the process of Court and, therefore, the

court has inherent powers to set aside the orders obtained by

fraud practiced upon that Court. Similarly, when the Court was

misled by the parties, the Court has the power to recall its order.

It was therefore observed that the order of the scrutiny

committee invalidating the caste claim of the petitioner therein

on the ground of fraud cannot be said to be an order without

jurisdiction. We find that the said decision is wholly inapplicable

rpa 28/31 wp-3868-12.doc

in the present case. There is nothing to indicate that the

respondents have played fraud while obtaining the said

certificate. Apart from that the genuineness of the said

documents is already considered by Courts and authorities. The

decision in the case of Kum.Madhuri Patil (Supra) was also

relied upon by the counsel for the petitioner. The Apex Court had

dealt with several issues in the said decision regarding the caste

claim of the parties. It was observed that equity and promissory

estoppel is not applicable where social status certificate showing

that the person belongs to Scheduled Caste or Scheduled Tribe is

obtained fraudulently to secure admission to educational

institution (medical college) or employment. We do not find that

even the said decision is of any use to the petitioner. The Apex

Court in the case of State of Tamil Nadu (Supra) has observed

that a person who plays fraud and obtains certificate cannot

plead estoppel. The said principle arises only when lawful

promise was made and acted upon to his detriment, the party

making promise is estopped to resile from the promise. In the

case before us, there is no element of fraud being established in

obtaining the documents in question.

      13                In view of the aforesaid circumstances, it is Crystal





        rpa                                      29/31                                  wp-3868-12.doc

clear that the respondent nos.1 to 3 have relied upon the caste

certificate and caste validity certificates issued by the authority.

The caste certificate issued to the father of respondent nos.2 and

3 was challenged in the earlier proceedings which was rejected

before the Commissioner, Konkan Division, which order was also

confirmed by this Court. It is apparent that the issue about the

genuineness of the caste certificate as well as caste validity

certificate was adjudicated in legal proceedings and the validity

of the said documents has attained finality. The petitioner had

filed a suit which was dismissed against which Appeal was

preferred, which is also dismissed. As stated above, the said

orders were also confirmed by this Court. In all these

proceedings, the validity of the documents in relation to the caste

certificate of respondent nos.1 to 3 was under challenge and the

same have been adjudicated in favour of the respondents. The

petitioner cannot invoke the writ jurisdiction of this Court and

pray that in exercise of powers under Article 226 of the

Constitution of India, the Court should again scan the validity of

the said documents or that the authority may be directed to again

enquire into the genuineness of the said documents. It is

pertinent to note that the documents were issued in 1981 and

1989. The authority and Court while scrutinizing the said

rpa 30/31 wp-3868-12.doc

documents has not disturbed the legality and validity of the said

documents. The petitioner is relying on the orders passed by the

Civil Court in the suit filed by Mr.Marzban Patel wherein

documents relied upon by respondent nos.1 to 3 were discarded.

The said order dated 4th May, 2002 was challenged by preferring

Appeal and on the basis of compromise, the decree in respect to

the caste claim of respondents was set aside. The original

plaintiff therein had admitted the caste claim of the said

respondents. Since the decree to that extent has been set aside,

the petitioner cannot rely upon the said judgment and order.

Apart from that in the proceedings initiated by the petitioner as

well as Shri Marzban Patel before the Commissioner, the

authenticity of the caste certificate and the caste validity

certificate issued in favour of Shri Digvijaysinghrao was dealt

with by the said authority by relying upon voluminous documents

and after considering all the objections which are enumerated in

detail by the Commissioner in its order which was also confirmed

by the High Court. In the circumstances, we do not find any

reason to interfere with the caste certificate and caste validity

certificate issued by the authority in favour of the respondents. It

would be arbitrary to send the documents again for enquiry as

prayed by the petitioner, more particularly in the facts and

rpa 31/31 wp-3868-12.doc

circumstances of the present case. Even assuming that the

authority can review the certificates, we find that this is not a fit

case to accept the said submissions advanced by the advocate for

the petitioner.

14 In view of the above, no case is made out for grant of

any relief prayed by the petitioner in this petition and thus, the

same deserves to be dismissed.

      15                Hence, we pass the following order:


                                     :: O R D E R ::


               (i)      Writ Petition No.3686 of 2012 is dismissed;

               (ii)     No order as to costs.



             (PRAKASH D. NAIK, J.)                          (S.C. DHARMADHIKARI, J.)