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2018 DIGILAW 860 (MP)

Kulsuma Begam Khatoon v. State of M. P.

2018-10-05

HEMANT GUPTA, VIJAY KUMAR SHUKLA

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JUDGMENT Shukla J. -- 1. In the present intra-Court appeal filed by the appellant/petitioner, a challenge has been made to the order dated 20.9.2018 passed by the learned Single Judge in W. P. No. 23434/2017 (Smt. Kulsuma Begum Khatoon v. State of M.P. and ors.) whereby the High Level Scrutiny Committee (herein after the same shall be referred as “Scrutiny Committee”) for caste verification, has been dismissed. 2. The facts, in short, are that the petitioner was born in the year 1978 at village Barauli, Tehsil Ajaygarh, District Panna in a Syed family known as ‘Kazi’ family. On 27th October, Collector Panna has notified the election for the post of Sarpanch of village Barauli, District Panna. The said seat was reserved for ‘OBC Woman’. The petitioner filed a nomination for the post of Sarpanch as ‘OBC’ candidate. In the nomination form she stated that she is a married lady and mother of three children and is resident of Village Barauli. She filed a caste certificate which was obtained 15 days prior to the date of filing the nomination. It is stated that respondent No. 10 being a social worker, raised an objection before the Returning Officer and requested for cancellation of the candidature of the petitioner on the ground that she does not belong to ‘Momin Julaha’ community (OBC). Since the said objection was not considered, the respondent No. 10 filed a writ petitione comprising W. P. 1554/2015 (Quazi Ziyauddin v. M. P. State Election Commission) making a prayer for restraining the petitioner from contesting the election of Sarpanch as she was not entitled to contest the said election. In view of the Constitutional bar under Article 243-O of the Constitution, the writ Court declined to interfere and asked the respondent No. 10 to avail the alternative remedy by filing an election petition. The respondent No. 10 invoked the writ appellate jurisdiction in W. A. No. 84/2015. The said writ appeal was also disposed of by affirming the order passed by the learned Single Judge in view of the constitutional provisions with a direction to the authority, that if the contention of the respondent No. 10 that the present appellant had produced the bogus certificate, the authorities will be obliged to take appropriate action against the appellant/respondent No. 5 in the said appeal. The election was conducted on 22.2.2015 and the appellant was elected by margin of four votes for the post of Sarpanch. In the light of the aforesaid observation, the respondent apprised authorities regarding bogus caste certificate. It is alleged that no action was taken by the authorities on his representation. In the meanwhile, the Election Commission directed the Sub-Divisional Officer to enquire about the complaint of the respondent No. 10 against the present appellant. It is stated that the said representation was also forwarded to the Sub-Divisional Officer, Dewas. By order dated 17.5.2016, the Sub-Divisional Officer, Dewas held that the caste certificate issued to the present appellant on 19.12.2014 is correct and genuine. It is also alleged that another SDO, Ajaygarh, District Panna also followed the same order passed by Sub-Divisional Officer, Dewas. Being aggrieved by the said order, the respondent No. 10 filed an appeal before the Additional Collector, Dewas. The said appeal was also dismissed by order dated 17.8.2016 on the ground that no appeal is prescribed against such an order. 3. The respondent No. 10 has also filed a criminal complaint against the present appellant for obtaining a fraudulent caste certificate under the provisions of section 200 of CrPC before the Judicial Magis-trate 1st Class. The said Magistrate has taken cognizance on the said complaint and the case has been registered. The case has been committed to the Sessions Court, Panna and after framing of the charge, the same is pending before the Court of 1st Additional Sessions Judge, Panna. 4. A complaint was also made before the Caste Verification Committee regarding bogus caste certificate of the petitioner. It has not been clarified by counsel for the parties that at whose instance the matter was referred to the Caste Verification Committee. The Committee directed the Superintendent of Police, Dewas to enquire about the same. The Dy. Superintend of Police submitted a detailed report on 8.12.2016 before the Committee. A show cause notice was issued to the present appellant, who filed objection to the report submitted by the Superintendent of Police. A request was made on behalf of the appellant that the report was submitted by the Dy. Superintend of Police without giving any opportunity of hearing to her. The Committee in order to provide opportunity to the appellant, remanded the matter to the Superintendent of Police, Dewas to re-enquire the same. A request was made on behalf of the appellant that the report was submitted by the Dy. Superintend of Police without giving any opportunity of hearing to her. The Committee in order to provide opportunity to the appellant, remanded the matter to the Superintendent of Police, Dewas to re-enquire the same. After re-enquiring, a detailed second report was submitted before the Committee, stating that the certificate obtained by the appellant is false and bogus. It was stated that the petitioner and her entire family belongs to Village Barauli, District Panna and the petitioner belongs to ‘Sayyed community’ which comes under ‘Kazi’ family. The appellant had claimed that her father belongs to ‘Momin Julaha’ community which comes under the ‘OBC’ category but the Public Information Officer had given infor- mation that no such certificate was even issued to the father of the petitioner from that office. The other materials like the certificates, panchnama, tasdiknama of Gram Panchayat Barauli were produced to the effect that no person belonging to ‘Momin Julaha’ community are residing in Village Barauli and only three people belonging to ‘OBC’ are residing in the said village namely Behna, Hazzam and Fakir. 5. After taking into consideration the entire material placed before the Committee, the Committee found that the caste certificate issued to the petitioner is suspicious and doubtful and therefore, recommended for cancellation of the same. Being aggrieved with the decision of the High Power Screening Committee (Caste Verification Committee) the writ petition was filed which has remained unsuccessful and dismissed by the impugned order by learned Single Judge. 6. Learned senior counsel for the appellant vehemently argued that the Committee has failed to record the specific finding regarding the caste certificate of the appellant. The Committee had only recorded a finding that the caste certificate issued in favour of the appellant is suspicious and doubtful and therefore, the decision of the Committee to cancel the caste certificate of the appellant is illegal, arbitrary and unreasonable. 7. Upon perusal of the recommendation of the Committee, it is evident that the Committee had taken into consideration the entire material placed by the appellant before it. The Committee had taken into consideration the complaints, affidavits filed in support of the complaints, as well as the reply filed by the appellant and all the documents placed before it. 7. Upon perusal of the recommendation of the Committee, it is evident that the Committee had taken into consideration the entire material placed by the appellant before it. The Committee had taken into consideration the complaints, affidavits filed in support of the complaints, as well as the reply filed by the appellant and all the documents placed before it. The committee had further taken into consideration the objection of the appellant in respect of the report of the Superintendent of Police. In para 19 of the report, the Committee had referred all the documents placed by the appellant from Sl. No. 1 to 34 before it. 8. After due consideration of facts, the Committee found that the appellant could not proved that she belongs to ‘Momin Julaha’ community under the ‘OBC’ category. 9. The learned Single Judge, while appreciating the arguments of the petitioner, has also taken note of the fact that the Committee has taken into consideration the entire material placed before it and has found that the appellant has failed to discharge its burden to prove her claim that she belongs to ‘Momin Julaha’ community under the ‘OBC’ category. In the case of Director of Tribal Welfare, Government of Andhra Pradesh v. Laveti Giri and another, reported in (1995) 4 SCC 32 , wherein the apex Court has held that the burden of proof is on the person who claims the caste status of a particular category to prove its case with all cogent material. It is not the duty of the State to disprove or otherwise. 10. The apex Court in the case of Kumari Madhuri Patil and another v. Additional Commissioner, Tribal Development and others (1994) 6 SCC 241 has held that the proceedings of High Powered Scrutiny Committee is in the nature of civil proceedings and preponderance of probability is a degree of prove ordinarily, theretofore, merely because the word doubtful or suspicious used by the Committee does not mean that the Committee has not recorded a finding that the appellant does not belong to ‘Momin Julaha’ community under the ‘OBC’ category and her caste certificate was not a genuine certificate. 11. The scope for interference against the findings of the High Power Committee has been considered in case of Madhuri Patil (supra), which has been held as under: “14. 11. The scope for interference against the findings of the High Power Committee has been considered in case of Madhuri Patil (supra), which has been held as under: “14. The question then is whether the approach adopted by the High Court in not elaborately considering the case is vitiated by an error of law. High Court is not a Court of appeal to appreciate the evidence. The Committee which is empowered to evaluate the evidence placed before it when records a finding of fact, it ought to prevail unless found vitiated by judicial review of any High Court subject to limitations of interference with findings of fact. The Committee when considers all the material facts and records a finding, though another view as a Court of appeal may be possible, it is not a ground to reverse the findings. The Court has to see whether the Committee considered all the relevant material placed before it or has not applied its mind to relevant facts which have led the Committee ultimately record the finding. Each case must be considered in the backdrop of its own facts.” 12. The same has been reiterated in the case of Jayrajbhai Jayantibhai Patel v. Anilbhai Nathubhai Patel and ors. (2008)8 SCC 200 in para 18 has held as under: “18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the Court in the sense that it is in defiance of logic or moral standards, but no standardized formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consider- ation the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consider- ation the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a Court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the Court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decisionmaking process and not the decision.” 10. In view of the aforesaid conspectus of the facts and discussion of law, we do not find any error in the order of learned Single Judge warranting any interference in the present intra-Court appeal. Ex consequenti, the writ appeal stands dismissed.