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2008 DIGILAW 992 (BOM)

Mahesh Pralhadrao Lad v. State of Maharashtra

2008-07-14

F.I.REBELLO, S.B.DESHMUKH

body2008
JUDGMENT (PER F.I. REBELLO, J.) 1. Rule. Heard forthwith. 2. By its order dated 8th April, 2008 the petitioner’s claim as belonging to Rajput Bhamta was rejected by the Scrutiny Committee No.1, Aurangabad based on the following conclusions:- A) The caste Rajput Bhamta (Vikmukta Jati) claimed by the candidate is declared vide Government Resolution dated 21-11-1961. Therefore, the candidate ought to have produced the pre-21/11/1961 documents. However, the candidate did not produce any school or revenue record of pre-21/11/1961 in spite of sufficient opportunities. (B) The documents which have been produced by the candidate are of recent period and are of the period after declaration of Rajput Bhamta caste by the government. There is no proper entries about the caste in the school record of father and uncle of the candidate though they are literate. (C) In spite of proper opportunities given to the candidate, the candidate did not produce any school or revenue record, of the period of prior to the declaration of caste Rajput Bhamta (Vimukta Jati) by government, in which the caste is recorded." 3. The petitioner herein by his application dated 10th March, 2008 had placed before the Committee the case of Kum. Yogita Sopan Kachave, who had been issued caste validity certificate. The petitioner pointed out that in the case of Kum. Yogita Sopan Kachave the Committee had accepted the caste validity certificate of son of his aunt. The petitioner in the instant case had produced the caste validity certificate dated 8th August, 1997 of the petitioner’s brother which is shown as Entry No.7. This was produced in the context of Government Resolution dated 22nd August, 2007, which are guide-lines for caste certificate/verification of caste claims of Scheduled Caste, Vimukta Jati, Nomadic Tribe, Other Backward Class and Special Backward Class candidates. This was produced in the context of Government Resolution dated 22nd August, 2007, which are guide-lines for caste certificate/verification of caste claims of Scheduled Caste, Vimukta Jati, Nomadic Tribe, Other Backward Class and Special Backward Class candidates. The relevant portion of Government Resolution reads as under:- "At the time of scrutiny of caste certificate/verification of caste claim of the person belonging to Scheduled Caste, Vimukta Jati, Nomadic Tribe, Other Backward Class and Special Backward Class, if they possess the validity certificate (Validity certificate issued by appropriate authority) in favour of family relatives in blood relation e.g. father, real brother/sister in their family (father’s genealogy with blood relation) and if other family members (family members in blood relations e.g. father, son, daughter, brother, sister) submitted caste claim placing reliance on said certificate, then at the time of issuance of validity certificate no other documents be asked to produce and after receipt of such claim, the committee should take decision within one month on the same." . The Committee inspite of the documentary evidence which was produced and the report of the Vigilance enquiry in the form of home and school enquiry, as also enquiry into the traits, characteristics and customs as to whether the petitioner belongs to Rajput Bhamta Vimukta Jati, rejected the claim of the petitioner. 4. In this context the following questions require consideration:- (i) Whether the impugned order invalidating the caste claim of the petitioner only on the ground that the petitioner did not produce pre-1961 document can be sustained in law or is it illegal, arbitrary and/or suffers from total non-application of mind and violation of the law laid down by the Supreme Court and this Court and statutory provisions? (ii) Whether the Government Resolution dated 22nd August, 2007 is binding on the committee and if binding to what extent would the committee be bound? 5. In Kum. Madhuri Patil vs. Additional Commissioner, A.I.R. 1995 S.C.94 the Supreme Court was considering the probative value of entries in the school register preceding the Constitution the Court noted that in terms of the then census Rules the caste status of the people was insisted upon and that hierarchical caste startification of Hindu social order has its reflection in entries in public record. Similarly the Court observed that the entries in the school register preceding the Constitution do furnish great probative value. Similarly the Court observed that the entries in the school register preceding the Constitution do furnish great probative value. The Supreme Court in Madhuri Patil (supra) has not laid down as a matter of law or even as an obiter that documents post Constitution or post Presidential notification cannot be considered. On the contrary the direction in the judgment contemplates the constitution of Vigilance Cell to investigate into the social status claim. The Vigilance Officer has to personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian as the case may be from the school records and birth register records, if any and consider the same . The statement of parents or guardian of the candidate in relation to their caste or such other persons who have knowledge of the social status of the candidate had to be received and then a report submitted. If the Director on receipt of the report from the vigilance officer found that the clam of social status to be not genuine or doubtful or spurious or falsely or wrongly claimed, the Director was to issue show cause notice supplying the copy of the report of the vigilance officer to the candidate. It is thus clear from the judgment in Madhuri Patil (supra) that the Supreme Court itself noted that the Vigilance Officer would consider the school, and birth register records, if any, thereby acknowledging the fact that in many cases there may not be record either in the school or birth register either on account of parent being not admitted to the school or the birth not being registered in the relevant records. The other aspect of the matter is that if from the report of the Vigilance Cell only in the event the Director (the Committee herein) formed the opinion based on the report that the claim for social status was not genuine or doubtful or spurious or falsely or wrongly claimed would a show cause notice be issued to the applicant. Where the committee accepts the report then there will be no need for further enquiry. . Documents which are subsequent to the Presidential notification or in respect of documents subsequent to Presidential notification, we may gainfully refer to the judgment of the Supreme Court in Gayatrilaxmi Baburao Nagpure vs. State of Maharashtra, 1996 (3) SCC 685 . Where the committee accepts the report then there will be no need for further enquiry. . Documents which are subsequent to the Presidential notification or in respect of documents subsequent to Presidential notification, we may gainfully refer to the judgment of the Supreme Court in Gayatrilaxmi Baburao Nagpure vs. State of Maharashtra, 1996 (3) SCC 685 . In that case what was under consideration were documents of Halba Scheduled Tribe. The documents were of recent origin and not pre-presidential notification. The Supreme Court noted that the Committee failed to consider all the relevant materials placed before it and did not apply its mind to the important document there which was a document in respect of one Abinash Prabhakar Nagpure verifying his caste clam. This judgment was considered by this Court in Prabhu Narayan Survase vs. State of Maharashtra & Ors., 1990 (4) All M.R. 815 where this Court in no uncertain terms set out that it was not open to the Committee to reject the documentary evidence on the ground that it is of recent origin. This judgment was followed by another Division Bench of this Court in Surajsingh s/o.Jaisingh Maher vs. The State of Maharashtra, Writ Petition No.4589 of 2003 decided on 13th November, 2003. 6. We may now consider the provisions 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, which hereinafter referred to as the Act of 2000 and the provisions of the Maharashtra Scheduled Tribes (Regulation of Issuance and Verifications of Certificate Rule 2003, which hereinafter shall be referred to as the Rules. The relevant provisions are being reproduced. Section 8 reads as under:- "8. The relevant provisions are being reproduced. Section 8 reads as under:- "8. Burden of proof.- Where an application is made to the Competent Authority under section 3 for the issue of Caste Certificate in respect of Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category and in any enquiry conducted by the Competent Authority and Scrutiny Committee or the Appellate Authority under this Act or any trial of offence under this Act, the burden of proving that the person belonged to such Caste, Tribe or Class shall be on such claimant applicant." It is thus clear from this provision that the burden of proving that the person belonged to such Caste, Tribe or Class shall be of such claimant applicant. This burden can be discharged by the applicant by producing the documents as set out in Rule 11, which will include:- (i) Primary School Leaving Certificate. (ii) An extract of school admission register. (iii) An extract of birth register. Also documents pertaining to his father which are:- (i) An extract of birth register. (ii) Primary School Leaving Certificate. (iii) Extract of school admission register. (iv) Scheduled Tribe Certificate. (v) If a father is in service, the extract of the pages of the service record (book) which contain religion and tribe entry. (vi) If a father is illiterate, the primary school leaving certificate of the real elderly blood relatives of the paternal side of the applicant and extract of school admission register. Other documents :- (i) Revenue record like birth register, extract of 7/12 Sale Deed etc. (ii) Any other relevant documents in support of his Scheduled Tribe claim. (iii) Affidavits of the near relatives whose Validity Certificates are submitted in support of the Scheduled Tribe claim of the applicant.. In terms of Rule 12(2) if the Scrutiny Committee is not satisfied with the documentary evidence produced by the applicant the Scrutiny Committee shall forward the applications to the Vigilance Cell for conducting the school, home and other enquiry. On the Vigilance Cell conducting an enquiry if the Scrutiny Committee on the basis of Vigilance Cell report and other documents available is not satisfied about the claim of the Applicant the Committee shall issue a show cause notice to the applicant and serve a copy of the report to the Vigilance Officer on which the Applicant must give his say. Thereafter after personal hearing the Committee if satisfied regarding the genuiness of the claim, the validity certificate in form "G" can be issued. 8. We may now refer to Section 9 of the Act which reads as under:- "9. Civil Court powers to Competent Authority, Appellate Authority, and Scrutiny Committee. Committee.-- The Competent Authority, the Appellate Authority and the Scrutiny Committee shall, while holding an enquiry under this Act, have all the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 and in particular in respect of the following matters, namely:- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavit; (d) requisitioning any public record or copy thereof from any Court or office; and (e) issuing Commissions for the examination of witnesses or documents. From the reading of Section 9, it is clear that the Competent Authority while holding an enquiry can exercise the powers of the Civil Court trying a suit as set out therein. Section 9 would not have been required, if the Committee had to proceed based only on documents which were prior to the Constitution or the pre-Presidential Notification notifying the Scheduled Castes and Scheduled Tribes and for that matter the Notification in respect of other castes that the Legislature thinks fit. To confer power on the Committee under Section 9 or considering the oral evidence, presumes or pre-supposes the recognition by the Legislature about the inability on the part of many an applicant before the committees to produce documentary evidence. We need not proceed to examine the the reasons for the inability of such parties to produce documents. The very fact that the Tribes and Castes are notified as Scheduled Caste and Scheduled Tribes is a recognition of their backwardness social, and economic. This reasoning would also be made applicable to other castes, considering the mandate of the Legislature as envisaged in Section 9. The very fact that the Tribes and Castes are notified as Scheduled Caste and Scheduled Tribes is a recognition of their backwardness social, and economic. This reasoning would also be made applicable to other castes, considering the mandate of the Legislature as envisaged in Section 9. A Committee, therefore, while conducting the verification for the issuance of the Caste Validity Certificate apart has to consider the documentary evidence produced, the report of the Vigilance Officer if called for and other evidence which the applicant may lead in terms of Section 9, and finally adjudicate the matter as a quasi judicial body, unfettered with the strict Rules of evidence, but bearing in mind the principles of natural justice and fair play. Though the strict the Rules of evidence will not be applicable, the principles thereof in the matter of consideration of documentary evidence and oral evidence have to be borne in mind. On a consideration of the judgments of the Supreme Court and of this Court it would be clear that documentary evidence public or private as also oral can be considered by the Committee irrespective of the period. The Committee while considering the evidence will be guided by the similar tests which the Civil Court applies in the appreciation of evidence. The tests of preponderance of evidence will have to be considered considering the provisions of Section 15 of the Act which bars the jurisdiction of a Civil Court. The consequence of rejection of a claim either as to tribe or caste will not be confined to the applicant alone, but to the future generations. Courts and Tribunals, therefore, while conducting the enquiry must bear these aspects in mind. 9. It is, therefore, clear that there is no requirement either under the Act or the Rules or the Judgments of the Supreme Court or of this Court that documentary evidence other than pre-constitution, pre-Presidential Notification or State Notification notifying caste or nomadic tribe to be excluded from being considered when a Committee considers an application for verification of Tribe/Caste status for the purpose of issuing a validity certificate. The procedure under the Rules is to enable the Committee if it is satisfied based on the documentary evidence of the claim to proceed to issue the validity certificate without conducting the Vigilance enquiry or asking the applicant to lead other evidence. The procedure under the Rules is to enable the Committee if it is satisfied based on the documentary evidence of the claim to proceed to issue the validity certificate without conducting the Vigilance enquiry or asking the applicant to lead other evidence. It is only in that event that the committee is not satisfied from the documentary evidence produced on record about the genuiness of the claim the Committee then can call for the report of the Vigilance Cell. If the Committee still is not satisfied based on the Vigilance Report of the status of the applicant, then being given a show cause notice, it will be open to such applicant to lead other evidence. The burden lies on the applicant to satisfy by evidence oral or documentary on the applicant being issued a show cause notice about his claim. In answer to the show cause notice the Applicant can submit his reply and also apply to lead further evidence as contemplated in terms of Section 9 read with Rule 12 of the Rules. This contention is, therefore, answered accordingly. We, therefore, hold that all documents whether post or pre-Constitution or Presidential or State Notifications can be considered as also oral evidence. treated in the form of affidavit evidence. It will always be open to the Committee to examine the deponent of such affidavits or get verified their statements. 10. We than come to the issue of Government G.R. dated 22nd August, 2007. The law as to consideration of G.Rs. by a quasi judicial authority is well settled. The Committee is a creature of a statute appointed in terms of Section 6 of the Act. The Powers, functions and duties are those conferred by the Act and Rules framed thereunder. Section 18 is the power to make Rules. The Rules so made have to be placed before the Legislature. In other words under the Act the power of the State Government is confined to making Rules under Section 18 and these Rules will govern the procedure of the Committee. The only other power is under Section 19 which is to make provisions not inconsistent with the provisions of the Act which power, however, was limited for a period of two years from the commencement of the Act and has since exhausted itself. We have also perused the Rules framed under the Act. The only other power is under Section 19 which is to make provisions not inconsistent with the provisions of the Act which power, however, was limited for a period of two years from the commencement of the Act and has since exhausted itself. We have also perused the Rules framed under the Act. Under the Rules also no power is conferred on the Government to issue any G.R. which would bind the Committee or which would compel the Committee to consider the said G.R. The Government Resolution, therefore, is not be binding on the Committee nor will the Committee in exercise of its discretion be bound to follow the same. . However, we may note that the said G.R. is to an extent innocuous. It neither takes away the power of the Committee nor impinges on its functioning. At the highest the said G.R. can be considered in the context of Rule 12 of the Rules. It is, therefore, for the Committee while exercising its jurisdiction, if it is satisfied that the caste validity certificate issued in favour of a blood relative meaning thereby father, son, daughter, brother, sister is genuine then instead of proceeding to call for the report of the Vigilance Officer proceed to issue the caste validity certificate. The G.R. therefore, has to be read in that context as non-binding, but be open to a Committee considering Rule 12, while deciding the claim of an applicant to consider that aspect. 11. Considering these tests we are of the opinion that the order of the Committee suffers from an error of law apparent on the face of the record in as much as the Committee has not considered the evidence available before it and consequently its order is set aside. For the reasons above stated, we remand the matter to Respondent No.2 to decide the same according to law, at any rate not later than 30th September, 2008. In the mean time Respondent No.3 is directed to consider the petitioner’s application without the caste validity certificate. The selection, if any, of the petitioner would be subject to the caste validity certificate being issued by the Respondent No.3 and the petitioner will claim no equity because he has been selected and/or admitted. . Rule is made absolute accordingly. . Authenticated copy be issued to the parties. All parties to act on authenticated copy.