Ishwar S/O Naga Bondalwar And ... vs The District Caste Certificate ...
2021 Latest Caselaw 9695 Bom

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

                           WRIT PETITION NO. 472 OF 2020


1. Ishwar s/o Naga Bondalwar,
   Aged about 52 years, Occ. Service,
   R/o Gurukunj Colony, Armori Road,
   Tahsil & District Gadchiroli

2. Harshad s/o Ishwar Bondalwar,
   Aged about 21 years, Occ. Student,
   R/o Police Nagar, Near Staywell Hostel,
   Hingna, Tahsil Hingna, District Nagpur                    ... Petitioners

V/s

1. The District Caste Certificate Verification
   Committee, Gadchiroli, through its Member Secretary,
   Office at Dr. Babasaheb Ambedkar Samajik Nyay Bhawan,
   I.T.I. Square, LIC Road, Gadchiroli 442605

2. The State of Maharashtra
   Through its Secretary, Home Department,
   Mantralaya, Mumbai-32

3. The Principal
   Priyadarshini College of Engineering,
   Digdoh, Hingna, Tahsil-Hingna,
   District Nagpur                                          ...     Respondents.


Shri Rohit Joshi, Advocate for petitioners.
Ms N. P. Mehta, Assistant Government Pleader for respondent Nos. 1 and 2.
Shri H. D. Dangre, Advocate for respondent No.3.

           CORAM : DIPANKAR DATTA, C.J. AND A. S. CHANDURKAR, J.

DATE : 26th July 2021

Judgment : (Per : A. S. Chandurkar, J.)

Rule. Rule made returnable forthwith and heard the learned

counsel for the parties.

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The orders dated 23/10/2019 passed by the District Caste

Certificate Verification Committee, Gadchiroli cancelling the Caste Validity

Certificate dated 06/03/2014 issued to the petitioner No.1 as belonging to

Nomadic Tribe-C as well as the Caste Validity Certificate dated 19/01/2015

issued to the petitioner No.2, who is the son of petitioner No.1 are under

challenge in this writ petition filed under Articles 226 and 227 of the

Constitution of India, particularly on the ground that the impugned orders as

passed are without jurisdiction.

2. The petitioners claim to belong to Zade-Nomadic Tribe-C and the

caste certificates issued to them were the subject matter of verification before

the Scrutiny Committee. On 06/03/2014 and 19/01/2015 both the

petitioners were issued Caste Validity Certificates by the Scrutiny Committee.

The daughter of petitioner No.1 sought verification of her caste certificate

and hence she approached the Scrutiny Committee. The daughter of

petitioner No.1 relied upon various documents including the Validity

Certificates issued to the petitioners. During the process of verification of

the caste certificate of the daughter of petitioner No.1, the Research Officer

and Member Secretary of the Scrutiny Committee issued show cause notices

to the petitioner No.1 on 18/04/2019 and 22/05/2019. A show cause

notice was also issued to the petitioner No.2 on 22/05/2019. In the said

show cause notices the petitioners were informed that while undertaking

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verification of the caste-claim of the daughter of petitioner No.1, a Vigilance

inquiry was conducted and in the school records of petitioner No.1 the

entries showing the caste as "Beldar" were found. Similarly, old revenue

records of the year 1922-24 indicated the entry of the caste as "Zade-

Kunbi". The Scrutiny Committee therefore sought a response from the

petitioners as to why the Caste Validity Certificates issued to them should not

be cancelled. In response thereto the petitioners submitted their reply and

reiterated that they belonged to Nomadic Tribe-C. The Scrutiny Committee

by its order dated 23/10/2019 found that the petitioners had been issued

the Validity Certificates without the report of the Vigilance Cell being called

and in the absence of any enquiry by the Vigilance Cell. The Committee then

proceeded to adjudicate the caste-claim of the petitioner No.1's daughter as

well as correctness of the Validity Certificates issued to the petitioners. It

found that certain revenue entries of the year 1922-24 in which it was

mentioned that the petitioners' predecessors belonged to "Zade-Kunbi" caste

had not been referred to by the petitioners. The Scrutiny Committee hence

proceeded to cancel the Caste Validity Certificates dated 06/03/2014 and

19/01/2015 issued to the petitioners as well as the Caste Certificate issued

to them. Being aggrieved the petitioners have challenged the aforesaid

orders.

3. Shri Rohit Joshi, learned counsel for the petitioners submitted

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that in absence of any provision in 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 (for short, the Act of 2000)

and particularly the Rules framed thereunder to re-examine a Validity

Certificate already granted by the Scrutiny Committee, it had no jurisdiction

to re-open such adjudication. Re-examination of the material on the basis of

which the Validity Certificate was issued would amount to exercising the

power of review which was not conferred on the Scrutiny Committee in the

Act of 2000 or under the Rules framed thereunder. The only limited scope/

power available with the Scrutiny Committee for revisiting the Validity

Certificate already granted was in case where the Scrutiny Committee found

that the Validity Certificate was obtained by fraud or that it was issued by the

Scrutiny Committee without jurisdiction. To support this contention the

learned counsel placed reliance on the decision in Apoorva d/o Vinay Nichale

vs. Divisional Caste Certificate Scrutiny Committee No.1 and ors. 2010 (6) Mh.L.J.

401 . He further submitted that if the Vigilance Cell merely had doubt with

regard to certain old entries pertaining to the predecessors of the petitioners

that by itself would not be sufficient to doubt such document unless there

was material available to show that the petitioners or their predecessors

were instrumental in making such changes in the old documents. In that

regard the learned counsel referred to the decision in Suraj s/o Rajesh

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Sandekar vs. Joint Commissioner & Vice Chairman, Schedule Tribe Caste

Certificate Scrutiny Committee, Nagpur and ors. 2020 (1) Mh.L.J. 874 .

Referring to the observations made by the Scrutiny Committee in the

impugned order it was urged that by reconsidering the material on record

along with other fresh material but without recording any finding that the

Validity Certificates/Caste Certificates had been obtained by the petitioners

by practicing fraud the same had been cancelled. It was thus submitted that

the impugned orders had been passed without the Scrutiny Committee

having jurisdiction to do so and on that count it was liable to be set aside.

4. Ms N. P. Mehta, learned Assistant Government Pleader for the

respondent Nos.1 and 2 on the other hand supported the impugned orders

and urged that as it was found by the Scrutiny Committee that the old

revenue records pertaining to the year 1922-24 recorded the caste of the

predecessors of the petitioners as "Zade-Kunbi", the Validity Certificates

indicating the caste of the petitioners of belonging to Nomadic Tribe-C were

rightly cancelled. The petitioners by not referring to the old revenue records

of the year 1922-24 which were found by the Vigilance Cell as relating to the

predecessors of the petitioners, had infact committed a fraud and hence the

petitioners were not entitled to claim that they belonged to Nomadic Tribe-C.

Since the Scrutiny Committee had the jurisdiction to recall its earlier order

on finding that the same had been obtained by practicing fraud, no fault

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could be found with the impugned order. The same had been passed after

giving due opportunity to the petitioners. Moreover, perusal of the

impugned orders would indicate that it was not the outcome of re-

examination of the material relied upon by the petitioners earlier but on the

basis of fresh material found by the Vigilance Cell. She therefore submitted

that no interference was called for in the impugned orders.

5. We have heard the learned counsel for the parties at length and

we have given due consideration to their respective submissions. It is not in

dispute that the petitioners had been issued Caste Validity Certificates of

belonging to Zade-Nomadic Tribe-C by the competent Scrutiny Committee

on 06/03/2014 and 19/01/2015. While undertaking the exercise of

verification of the caste-claim of the petitioner No.1's daughter, the

petitioners' Caste Validity Certificates that were relied upon by the petitioner

No.1's daughter were considered. The Scrutiny Committee while verifying

the documents relied upon by the petitioner No.1's daughter proceeded to

issue show cause notices to the petitioners on 18/04/2019 and 22/05/2019

and called upon them to produce all documents/material on the basis of

which the Caste Validity Certificates were obtained. In the said show cause

notices a reference was made to a revenue entry of the year 1922-24 and it

was stated that a different caste was mentioned against the names of the

petitioners' predecessors. It is thus clear that the show cause notices merely

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called upon the petitioners to produce documentary material/evidence on

the basis of which the Caste Validity Certificates were issued to them and a

reference was made to the old revenue entries of 1922-24. There is no

statement in the said show cause notices that the Caste Validity Certificates

had been obtained by the petitioners by practicing fraud or that the

Scrutiny Committee issuing it had no jurisdiction. After giving an

opportunity to the petitioners the Scrutiny Committee proceeded to cancel

the Caste Validity Certificates particularly on the ground that in the old

revenue records of the year 1922-24 the caste of the petitioners'

predecessors was recorded as " Zade-Kunbi". Again in the impugned orders

there is no finding recorded by the Scrutiny Committee that either the caste

certificates or the Caste Validity Certificates were obtained by the petitioners

by practicing fraud. It is before this Court that the Scrutiny Committee

seeks to support its orders by stating that since the petitioners had obtained

the Caste Validity Certificates by playing fraud, they were rightly cancelled.

6. We find that it was not permissible for the Caste Scrutiny

Committee to have re-examined the caste certificates and Caste Validity

Certificates issued to the petitioners on the grounds on which it was so

sought to be re-examined as stated in the show cause notices. It is

undisputed that there is no provision either in the Act of 2000 or the Rules

framed thereunder to re-open/re-examine the matter of issuance of a

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Validity Certificate by it. This aspect as regards absence of statutory power

to do so stands concluded by the decision of this Court in Apoorva Vinay

Nichale (supra). It has been held in clear terms that a mere different view

on the same facts would not entitle the Scrutiny Committee dealing with a

subsequent caste-claim to reject such claim. As stated above it is on the basis

of fresh material in the form of old revenue records of the year 1922-24 that

the exercise of re-examining the Caste Validity Certificate was undertaken by

the Scrutiny Committee. We thus find that in absence of any statutory

power either under the Act of 2000 or the Rules framed thereunder to re-

examine a Caste Validity Certificate already issued, the exercise undertaken

by the Scrutiny Committee pursuant to the show cause notices issued by it

was without jurisdiction.

7. We may note that neither in the show cause notices nor in the

impugned orders cancelling the Caste Validity Certificates issued to the

petitioners is there any reference made to "fraud" being practiced by the

petitioners while obtaining the Caste Validity Certificates. It is however

sought to be urged by the Scrutiny Committee that it exercised such power

on the premise that the petitioners while seeking verification of their caste-

claims had not referred to the old revenue records of 1922-24 and hence the

same amounted to playing fraud. It may be stated that it was the Scrutiny

Committee which was satisfied with the documents relied upon by the

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petitioners when they had sought verification of their caste-claims. The

Scrutiny Committee did not deem it fit to obtain a report of the Vigilance

Cell and instead proceeded to issue Caste Validity Certificates to the

petitioners. Such power of dispensing with an inquiry by the Vigilance Cell

is vested with the Scrutiny Committee by virtue of Rule 17(6) of the Rules

of 2012. The premise on which the Caste Validity Certificates issued to the

petitioners has been cancelled is that the petitioners failed to bring before

the Scrutiny Committee the old revenue records of 1922-24. In our view

such alleged act of the petitioners failing to bring before the Scrutiny

Committee the old revenue records can hardly amount to playing fraud

while seeking the Caste Validity Certificate. In this regard useful reference

may be made to the observations in Shri Krishnan vs. The Kurukshetra

University, Kurukshetra AIR 1976 SC 376 wherein the Honourable Supreme

Court observed that it is well settled that where a person on whom fraud is

committed is in a position to discover the truth by due diligence, fraud is not

proved. It would neither be a case of suggestio falsi or suppressio veri. In

other words, it was open for the Scrutiny Committee while verifying the

Caste Certificates of the petitioners to have conducted an inquiry by the

Vigilance Cell. The Scrutiny Committee however did not deem it necessary

to have such inquiry being undertaken by the Vigilance Cell. The Scrutiny

Committee was thus in a position to discover the old revenue records of

1922-24 by exercise of due diligence which could have been done by holding

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an inquiry by the Vigilance Cell. It however did not choose to do so and

thus it would not be legally permissible now for the Scrutiny Committee to

urge that by not referring to old revenue records of 1922-24 the petitioners

were guilty of practicing fraud. As stated above though the aspect of fraud

was neither stated by the Scrutiny Committee in its show cause notices nor

referred to in the impugned orders we have dealt with said aspect as the

impugned orders were sought to be supported on that count before this

Court.

8. Thus in the light of aforesaid discussion we find that the Scrutiny

Committee committed a jurisdictional error in passing the impugned orders

and cancelling the Caste Certificates as well as Caste Validity Certificates that

it had issued to the petitioners. The Scrutiny Committee had no jurisdiction

in law to do so. Consequently the orders dated 23/10/2019 passed by the

District Caste Certificate Verification Committee, Gadchiroli in the cases of

both the petitioners are quashed and set aside. The Caste Validity Certificate

issued to the petitioner No.1 on 06/03/2014 and that issued to the petitioner

No.2 on 19/01/2015 stand restored.

Rule is made absolute in aforesaid terms leaving the parties to

bear their own costs.

                     (A. S. CHANDURKAR, J.)                  (CHIEF JUSTICE)
Asmita