Full Judgment Text
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
(I) WRIT PETITION NO.2131 OF 2008
Rajkumar s/o Deepchand Mulchandani,
aged about 49, occupation : business,
r/o Sindhi Camp, Akola, Taluq and
District Akola. ... Petitioner
- Versus -
1) State of Maharashtra, through the
Secretary, Social Welfare Department,
Mantralaya, Mumbai – 32.
2) The Divisional Caste Scrutiny Committee,
Amravati Division, Amravati, Taluq and
District Amravati.
3) The Collector, Akola, Taluq and District
Akola.
4) Khatanmal s/o Hisharam Sadhwani,
aged about 64 years, occupation :
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business, r/o Pakki Kholi, Sindhi
Camp, Akola, Taluq and District
Akola.
5) Commissioner, Municipal Corporation,
Akola, Taluq and District Akola. ... Respondents
-----------------
Shri M.G. Bhangde, Senior Counsel assisted by Shri C.A. Joshi,
Advocate for the petitioner.
Mrs. I. Bodade, Assistant Government Pleader for the respondent
nos. 1 and 3.
Shri M.B. Nasre, Advocate for the respondent no.2.
Shri R.L. Khapre, Advocate for the respondent no.4.
Shri P.G. Thombre, Advocate for the respondent no.5.
----------------
(II) WRIT PETITION NO.2132 OF 2008
Sachchanand s/o Kevalram Lulla,
aged about 55 years, occupation :
business, r/o Baba Hardasram Nagar,
Sindhi Camp, Akola, Taluq and District
Akola. ... Petitioner
- Versus -
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1) State of Maharashtra, through
the Secretary, Social Welfare Department,
Mantralaya, Mumbai – 32.
2) The Divisional Caste Scrutiny Committee,
Amravati Division, Amravati, Taluq and
District Amravati.
3) The Collector, Akola, Taluq and District
Akola.
4) Arun s/o Vishwasrao Gawande,
aged about 45 years, occupation :
business, r/o Sambhaji Nagar, Adarsh
Colony, Akola, Taluq and District
Akola.
5) Commissioner, Municipal Corporation,
Akola, Taluq and District Akola. ... Respondents
____________
Shri M.G. Bhangde, Senior Counsel assisted by Shri C.A. Joshi,
Advocate for the petitioner.
Mrs. I. Bodade, Assistant Government Pleader for the respondent
nos. 1 and 3.
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Mrs. N.S. Jog, Advocate for the respondent no.2.
Shri R.L. Khapre, Advocate for the respondent no.4.
Shri P.G. Thombre, Advocate for the respondent no.5.
__________
CORAM : D.D.SINHA AND C.L. PANGARKAR, JJ.
DATED : JUNE 19, 2008
ORAL JUDGMENT (PER D.D.SINHA, J.) :
Rule returnable forthwith. Heard finally by consent of
Shri Bhangde, learned Senior Counsel for the petitioners,
Mrs. Bodade, learned Assistant Government Pleader for the
respondent nos. 1 and 3, Mrs. Jog and Shri Nasre, learned
Counsel for the respondent no.2, Shri Khapre, learned Counsel
for the respondent no.4, and Shri Thombre, learned Counsel for
the respondent no.5. Since cause of action involved in both the
petitions is identical, they are heard together and disposed of by
this common judgment.
2) The petitions are directed against the orders dated
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18.2.2008 and 9.5.2008 passed by the Caste Scrutiny Committee
as well as consequential orders dated 21.5.2008 passed by the
Commissioner, Municipal Corporation, Akola.
3) Shri Bhangde, learned Senior Counsel for the
petitioners, states that the impugned orders dated 9.5.2008 are
passed by the Caste Scrutiny Committee mainly on the basis of
report dated 26.4.2007 submitted by the Tahsildar that the caste
certificates of the petitioners, which were forwarded for
verification by the Caste Scrutiny Committee, were not issued
from the office of Tahsildar. The Caste Scrutiny committee
refused to verify caste claims of the petitioners in view of
Government Resolution dated 1.1.2001 as well as in view of the
fact that the caste certificates were not genuine since they were
not issued from the Office of the concerned Tahsildar. It is
contended that the petitioners submitted applications dated
10.12.2007 before the Caste Scrutiny Committee seeking
permission to cross-examine Tahsildar in order to rebut the said
conclusion as well as to extract truth. It is further contended that
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Section 9 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
stipulates that Caste Scrutiny Committee while holding enquiry
under the said Act has all the powers of the Civil Court while
trying a suit and in particular in respect of matters, which are as
follows :
(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 affidavits,
(d) requisitioning any public record or copy thereof
from any Court or office, and
(e) issuing Commissions for the examination of
witnesses or documents.
4) Learned Senior Counsel Shri Bhangde submits that in
view of provisions of Section 9 of the said Act and in the facts and
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circumstances of the present case, the Caste Scrutiny Committee
ought to have allowed the applications dated 10.12.2007
submitted by the petitioners. However, the Caste Scrutiny
Committee vide orders dated 18.2.2008 rejected those
applications, which are not sustainable in law.
5) It is further contended by the learned Senior Counsel
for the petitioners that so far as decision of this Court relied on by
the Caste Scrutiny Committee for rejecting the applications of the
petitioners is concerned, since facts and circumstances involved
in the present case are not similar to one involved in the said case
of Pushpa w/o Laxman Pathrabe v. State of Maharashtra and
others (2007 (6) ALL MR 256), the law laid down in the said
decision does not further the case of the Caste Scrutiny
Committee. It is submitted that this Court considering the
identical situation, in para (5) of the judgment dated 21.8.2006
passed in Writ Petition No. 2335/2005 (Ku. Kalpana d/o
Govindrao Tapare vs. State of Maharashtra and others) has
observed thus :
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“The reasoning given by the Scrutiny Committee for
rejecting her claim is totally devoid of substance. On one
hand, the Scrutiny Committee has observed that the
petitioner has not produced any proof about her claim
regarding the entry in the School records and on the other
hand, it has rejected such opportunity to produce such
proof. The very fact that the petitioner had prayed for
opportunity to cross-examine the School authorities
discloses that the petitioner wanted to produce the proof in
support of her statement that the School record does not
disclose the factual position. The petitioner could have
established this fact certainly by cross-examining the
School authorities. While denying such opportunity, the
Scrutiny Committee could not have at the same breath
held that the petitioner has failed to establish her claim.”
It is, therefore, contended that the impugned orders passed by the
Caste Scrutiny Committee, in view of the above referred facts and
legal position, are liable to be quashed and set aside.
6) Mrs. Jog, learned Counsel for the respondent no.2 Caste
Scrutiny Committee, supports the impugned orders passed by the
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Caste Scrutiny Committee. It is contended that the report of the
Tahsildar clearly demonstrates that the caste certificates
submitted by the petitioners for verification before the Caste
Scrutiny Committee were never issued from the office of Tahsildar
and, therefore, in view of Government Resolution dated 1.1.2001,
the decision of the Caste Scrutiny Committee not to verify the
caste claims of the petitioners is perfectly justifiable and
sustainable in law. It is submitted that the Caste Scrutiny
Committee while rejecting applications of the petitioners has
taken into consideration decision of this Court in the case of
Pushpa wd/o Laxman Pathrabe (cited supra) and, therefore,
impugned orders passed by the Caste Scrutiny Committee are
sustainable in law.
7) Shri Khapre, learned Counsel for the respondent no.4,
states that since report of the Tahsildar makes it clear that the
caste certificates submitted by the petitioners for verification
were never issued from the office of the said Tahsildar, in such
situation, there was no occasion for the Caste Scrutiny Committee
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to allow the applications of the petitioners for permission to
cross-examine the Tahsildar and the orders passed by the Caste
Scrutiny Committee by placing reliance on the said report of the
Tahsildar are sustainable in law. However, learned Counsel
Shri Khapre does not dispute that in appropriate case, the Caste
Scrutiny Committee does have power to permit candidate to
cross-examine the witness, if his evidence/cross-examination is
necessary for the just decision of the enquiry.
8) We have considered the contentions canvassed by the
learned respective Counsel for the parties. The following facts are
not in dispute :
(i) The petitioners have contested election for the posts of
Corporator from Ward Nos. 46 and 58 of Akola
Municipal Corporation, which was held on 2.2.2007.
(ii) The caste claims of the petitioners were referred to the
Caste Scrutiny committee for verification.
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(iii) The Caste Scrutiny Committee obtained report of the
Tahsildar in order to consider whether the caste
certificates submitted by the petitioners for verification
were issued from the office of the Tahsildar.
(iv) The Tahsildar, Akola submitted report dated 26.4.2007
whereby it was informed that the caste certificates
submitted by the petitioners were not issued from the
office of the Tahsildar and, therefore, Caste Scrutiny
Committee refused to verify the caste claims of the
petitioners on this count.
(v) Both the petitioners approached this Court on earlier
occasion, by filing Writ Petition Nos. 2105/2007 and
2106/2007, which were disposed of by common
judgment dated 20.9.2007 by observing thus :
“1) Rule, returnable forthwith. Heard finally by
the consent of the parties.
2) It is obvious from the order impugned that
the date of the order is 30.4.2007 where in the order
reliance is placed on the report of Tahsildar which is,
dt. 26.4.2007, that too without affording an
opportunity of hearing to the petitioner. In our
opinion, therefore, the following order would meet the
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ends of justice :
The impugned order dated 30.4.2007 passed
by Scrutiny Committee/respondent no.2 is set aside.
th
The petitioner to appear before the Committee on 8
October 2007. At that time, copy of the report of
Tahsildar shall be handed over to the petitioner and
thereafter the matter shall be decided in accordance
with law by the Committee as expeditiously as possible
th
and in any case, within a period of 12 weeks from 8
October 2007.
Rule made absolute accordingly. No order as
to costs.”
(vi) After the matters were remanded back to the Caste
Scrutiny Committee for reconsideration of the caste
claims of the petitioners, the petitioners submitted
applications dated 10.12.2007 before the Caste Scrutiny
Committee whereby the Caste Scrutiny Committee was
requested to permit the petitioners to cross-examine the
Tahsildar since Caste Scrutiny Committee, on the
earlier occasion, took the decision not to verify caste
claims of the petitioners on the basis of report of the
Tahsildar.
(vii) The Caste Scrutiny Committee on 18.2.2008 rejected
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the applications dated 10.12.2007 submitted by the
petitioners in view of decision of this Court in the case
of Pushpa w/o Laxman Pathrabe (cited supra).
(viii) The Caste Scrutiny Committee thereafter on 4.3.2008
referred the caste claim of the petitioners to the
Vigilance Cell for conducting home enquiry and for
submission of the reports thereof.
(ix) The Vigilance Cell submitted reports on 2.5.2008.
(x) The petitioners on 2.5.2008 submitted applications to
the Caste Scrutiny Committee for supplying copies of
the said reports to them.
(xi) The Caste Scrutiny committee did not furnish copies of
the Vigilance Cell's reports to the petitioners.
(xii) On 9.5.2008 the Caste Scrutiny Committee passed the
impugned orders whereby Caste Scrutiny Committee in
view of Government Resolution dated 1.1.2001 once
again concluded that it shall not do verification of
the caste claims of the petitioners since caste certificates
submitted by the petitioners for verification were not
issued by the Office of the Tahsildar and, therefore,
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same were not genuine.
(xiii) After the orders dated 9.5.2008 were passed by the
Caste Scrutiny Committee, the Municipal Commissioner
vide impugned orders dated 21.5.2008 disqualified the
petitioners as Corporators for a period of six years.
9) The above referred facts are not in dispute and,
therefore, short question which falls for our consideration is
whether in the facts and circumstances of the present case, the
orders of the Caste Scrutiny Committee dated 18.2.2008 whereby
applications of the petitioners dated 10.12.2007 came to be
rejected as well as impugned orders dated 9.5.2008 passed by the
Caste Scrutiny Committee are sustainable in law in view of
provisions of Section 9 of the said Act as well as decision cited
and relied on by the Caste Scrutiny Committee. Perusal of the
orders dated 18.2.2008 passed by the Caste Scrutiny Committee
shows that the Caste Scrutiny Committee rejected the applications
of the petitioners mainly in view of the following observations
made by this Court in para (32) in the case of Pushpa w/o
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Laxman Pathrabe (cited supra) :
“As regards the demand to cross-examine Officer of
Vigilance Cell, it may be sufficient to observe that in no
proceeding to which Civil Procedure Code applies can a
person be cross-examined if he has not first been
examined by the party calling such person. Since
Vigilance Cell is an arm of the Committee itself, there is
no question of Officers of such cell being examined
before the Committee. In any case, Vigilance Cell merely
collects evidence, steps taken in collecting evidence could
be equated to evidence of facts in issue.”
Perusal of the above referred observations make it evident that
they were made in the context of the peculiar facts and
circumstances of that case and the Court was called upon to
decide whether cross-examination of the Officer of the Vigilance
Cell can be permitted in the facts of that case since job of the
Vigilance Cell is to collect evidence. However, the provisions of
Section 9 of the said Act contemplate that the Caste Scrutiny
Committee while holding an enquiry under this Act, shall have all
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the powers of the Civil Court while trying a suit under the Code of
Civil Procedure. It is, therefore, evident that the Caste Scrutiny
Committee enjoys all the powers under the Code of Civil
Procedure. Some of them are illustrated in Section 9 itself.
10) The observations made by this Court in paras (5), (6)
and (7) of the judgment dated 21.8.2006 in the case of Ku.
Kalpana d/o Govindrao Tapare (cited supra) are relevant, which
read thus :
(5) “The reasoning given by the Scrutiny Committee
for rejecting her claim is totally devoid of substance. On
one hand, the Scrutiny Committee has observed that the
petitioner has not produced any proof about her claim
regarding the entry in the School records and on the other
hand, it has rejected such opportunity to produce such
proof. The very fact that the petitioner had prayed for
opportunity to cross-examine the School authorities
discloses that the petitioner wanted to produce the proof in
support of her statement that the School record does not
disclose the factual position. The petitioner could have
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established this fact certainly by cross-examining the School
authorities. While denying such opportunity, the Scrutiny
Committee could not have at the same breath held that the
petitioner has failed to establish her claim.
(6) Undoubtedly, the Scrutiny Committee has
proceeded to analyse the records. However, perusal of the
entire order of the Scrutiny Committee discloses that the
Scrutiny Committee was very much impressed by the sole
entry in the school records and in respect of the same entry,
there was no opportunity to the petitioner to prove that the
record in that regard does not depict the factual situation.
Being so, the entire order of the Scrutiny Committee cannot
be sustained and is quashed and set aside and the matter is
remanded to the Scrutiny Committee to give the proper
opportunity including the opportunity to cross-examine the
School authorities and thereafter to pass appropriate order
on proper analysis of the entire material on record.
(7) The petition therefore succeeds. The impugned
order passed by the Caste Scrutiny Committee is quashed
and set aside and the matter is remanded to the Scrutiny
Committee for reconsideration of the claim of the petitioner
in accordance with the provisions of law and bearing in
mind the observations made hereinabove. The petitioner to
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appear before the Scrutiny Committee on 11.7.2006 at
11.00 a.m. for further proceedings before the Caste Scrutiny
Committee. Rule is made absolute in above terms. No
costs.”
The plain reading of the above referred observations shows that
permission to cross-examine was sought by the petitioner in the
said case in order to produce proof in support of her statement
that the School record did not disclose the factual position,
however, the Caste Scrutiny Committee rejected the application to
cross-examine the School Authorities. This Court set aside the
order passed by the Caste Scrutiny Committee and the caste claim
of the petitioner in the said case was remanded to the Caste
Scrutiny Committee for re-consideration.
11) In the instant case, it is not in dispute that the
impugned orders of the Caste Scrutiny Committee are based
primarily on the report of the Tahsildar dated 26.4.2007. It is
also evident that the Caste Scrutiny Committee has not considered
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any other evidence and rejected the applications dated
10.12.2007 of the petitioners only on the basis of report of the
Tahsildar. When the basis of the impugned orders of the Caste
Scrutiny Committee was the report of the Tahsildar and the
petitioners disputed the contents thereof and wanted opportunity
to cross-examine the Tahsildar to rebut the statement made by
him in the report, we see no legal impediment why such
opportunity cannot be granted to the petitioners in view of
scheme of Section 9 of the Act. We concur with the view
expressed by the Division Bench of this Court in the case of
Ku. Kalpana d/o Govindrao Tapare (cited supra).
12) It is no doubt true that provisions of Section 9 of the
Act empowers the Caste Scrutiny Committee to exercise all the
powers of the Civil Court while holding enquiry under this Act
and is also entitled to follow the procedure stipulated under the
Code of Civil Procedure, 1908. However, these powers are
required to be exercised by the Caste Scrutiny Committee as and
when it is necessary to do so and it is not mandatory for the Caste
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Scrutiny Committee to strictly follow the procedure stipulated
under the Code of Civil Procedure, 1908 as applicable to the trial
of the suit while conducting caste verification proceedings. At the
same time, there is no bar or prohibition for making application to
the Caste Scrutiny Committee by the candidate whose caste claim
is under verification, for necessary orders in view of provisions of
Section 9 of the Act. However, it is open for the Caste Scrutiny
Committee to reject such application, if it is frivolous, not
relevant for the issue in question, not bonafide, made only to
delay the proceedings of enquiry or for any other reason, by
passing speaking order.
13) For the reasons stated hereinabove, the impugned
orders dated 18.2.2008 and 9.5.2008 passed by the Caste Scrutiny
Committee as well as impugned orders dated 21.5.2008 passed by
the Municipal Commissioner are quashed and set aside. The
matters are remanded back to the Caste Scrutiny Committee with
a direction to permit the petitioners to cross-examine the
Tahsildar and thereafter proceed in the matter according to law.
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We expect the Caste Scrutiny Committee to complete entire
exercise within a period of three months from the date of receipt
of this judgment. The petitioners undertake to appear before the
st
Caste Scrutiny Committee on 1 July 2008, hence, no further
notice will be issued to the petitioners in this regard.
14) The rule is made absolute in the above terms. No order
as to costs.
__________
khj
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
(I) WRIT PETITION NO.2131 OF 2008
Rajkumar s/o Deepchand Mulchandani,
aged about 49, occupation : business,
r/o Sindhi Camp, Akola, Taluq and
District Akola. ... Petitioner
- Versus -
1) State of Maharashtra, through the
Secretary, Social Welfare Department,
Mantralaya, Mumbai – 32.
2) The Divisional Caste Scrutiny Committee,
Amravati Division, Amravati, Taluq and
District Amravati.
3) The Collector, Akola, Taluq and District
Akola.
4) Khatanmal s/o Hisharam Sadhwani,
aged about 64 years, occupation :
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business, r/o Pakki Kholi, Sindhi
Camp, Akola, Taluq and District
Akola.
5) Commissioner, Municipal Corporation,
Akola, Taluq and District Akola. ... Respondents
-----------------
Shri M.G. Bhangde, Senior Counsel assisted by Shri C.A. Joshi,
Advocate for the petitioner.
Mrs. I. Bodade, Assistant Government Pleader for the respondent
nos. 1 and 3.
Shri M.B. Nasre, Advocate for the respondent no.2.
Shri R.L. Khapre, Advocate for the respondent no.4.
Shri P.G. Thombre, Advocate for the respondent no.5.
----------------
(II) WRIT PETITION NO.2132 OF 2008
Sachchanand s/o Kevalram Lulla,
aged about 55 years, occupation :
business, r/o Baba Hardasram Nagar,
Sindhi Camp, Akola, Taluq and District
Akola. ... Petitioner
- Versus -
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1) State of Maharashtra, through
the Secretary, Social Welfare Department,
Mantralaya, Mumbai – 32.
2) The Divisional Caste Scrutiny Committee,
Amravati Division, Amravati, Taluq and
District Amravati.
3) The Collector, Akola, Taluq and District
Akola.
4) Arun s/o Vishwasrao Gawande,
aged about 45 years, occupation :
business, r/o Sambhaji Nagar, Adarsh
Colony, Akola, Taluq and District
Akola.
5) Commissioner, Municipal Corporation,
Akola, Taluq and District Akola. ... Respondents
____________
Shri M.G. Bhangde, Senior Counsel assisted by Shri C.A. Joshi,
Advocate for the petitioner.
Mrs. I. Bodade, Assistant Government Pleader for the respondent
nos. 1 and 3.
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Mrs. N.S. Jog, Advocate for the respondent no.2.
Shri R.L. Khapre, Advocate for the respondent no.4.
Shri P.G. Thombre, Advocate for the respondent no.5.
__________
CORAM : D.D.SINHA AND C.L. PANGARKAR, JJ.
DATED : JUNE 19, 2008
ORAL JUDGMENT (PER D.D.SINHA, J.) :
Rule returnable forthwith. Heard finally by consent of
Shri Bhangde, learned Senior Counsel for the petitioners,
Mrs. Bodade, learned Assistant Government Pleader for the
respondent nos. 1 and 3, Mrs. Jog and Shri Nasre, learned
Counsel for the respondent no.2, Shri Khapre, learned Counsel
for the respondent no.4, and Shri Thombre, learned Counsel for
the respondent no.5. Since cause of action involved in both the
petitions is identical, they are heard together and disposed of by
this common judgment.
2) The petitions are directed against the orders dated
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18.2.2008 and 9.5.2008 passed by the Caste Scrutiny Committee
as well as consequential orders dated 21.5.2008 passed by the
Commissioner, Municipal Corporation, Akola.
3) Shri Bhangde, learned Senior Counsel for the
petitioners, states that the impugned orders dated 9.5.2008 are
passed by the Caste Scrutiny Committee mainly on the basis of
report dated 26.4.2007 submitted by the Tahsildar that the caste
certificates of the petitioners, which were forwarded for
verification by the Caste Scrutiny Committee, were not issued
from the office of Tahsildar. The Caste Scrutiny committee
refused to verify caste claims of the petitioners in view of
Government Resolution dated 1.1.2001 as well as in view of the
fact that the caste certificates were not genuine since they were
not issued from the Office of the concerned Tahsildar. It is
contended that the petitioners submitted applications dated
10.12.2007 before the Caste Scrutiny Committee seeking
permission to cross-examine Tahsildar in order to rebut the said
conclusion as well as to extract truth. It is further contended that
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Section 9 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
stipulates that Caste Scrutiny Committee while holding enquiry
under the said Act has all the powers of the Civil Court while
trying a suit and in particular in respect of matters, which are as
follows :
(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 affidavits,
(d) requisitioning any public record or copy thereof
from any Court or office, and
(e) issuing Commissions for the examination of
witnesses or documents.
4) Learned Senior Counsel Shri Bhangde submits that in
view of provisions of Section 9 of the said Act and in the facts and
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circumstances of the present case, the Caste Scrutiny Committee
ought to have allowed the applications dated 10.12.2007
submitted by the petitioners. However, the Caste Scrutiny
Committee vide orders dated 18.2.2008 rejected those
applications, which are not sustainable in law.
5) It is further contended by the learned Senior Counsel
for the petitioners that so far as decision of this Court relied on by
the Caste Scrutiny Committee for rejecting the applications of the
petitioners is concerned, since facts and circumstances involved
in the present case are not similar to one involved in the said case
of Pushpa w/o Laxman Pathrabe v. State of Maharashtra and
others (2007 (6) ALL MR 256), the law laid down in the said
decision does not further the case of the Caste Scrutiny
Committee. It is submitted that this Court considering the
identical situation, in para (5) of the judgment dated 21.8.2006
passed in Writ Petition No. 2335/2005 (Ku. Kalpana d/o
Govindrao Tapare vs. State of Maharashtra and others) has
observed thus :
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“The reasoning given by the Scrutiny Committee for
rejecting her claim is totally devoid of substance. On one
hand, the Scrutiny Committee has observed that the
petitioner has not produced any proof about her claim
regarding the entry in the School records and on the other
hand, it has rejected such opportunity to produce such
proof. The very fact that the petitioner had prayed for
opportunity to cross-examine the School authorities
discloses that the petitioner wanted to produce the proof in
support of her statement that the School record does not
disclose the factual position. The petitioner could have
established this fact certainly by cross-examining the
School authorities. While denying such opportunity, the
Scrutiny Committee could not have at the same breath
held that the petitioner has failed to establish her claim.”
It is, therefore, contended that the impugned orders passed by the
Caste Scrutiny Committee, in view of the above referred facts and
legal position, are liable to be quashed and set aside.
6) Mrs. Jog, learned Counsel for the respondent no.2 Caste
Scrutiny Committee, supports the impugned orders passed by the
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Caste Scrutiny Committee. It is contended that the report of the
Tahsildar clearly demonstrates that the caste certificates
submitted by the petitioners for verification before the Caste
Scrutiny Committee were never issued from the office of Tahsildar
and, therefore, in view of Government Resolution dated 1.1.2001,
the decision of the Caste Scrutiny Committee not to verify the
caste claims of the petitioners is perfectly justifiable and
sustainable in law. It is submitted that the Caste Scrutiny
Committee while rejecting applications of the petitioners has
taken into consideration decision of this Court in the case of
Pushpa wd/o Laxman Pathrabe (cited supra) and, therefore,
impugned orders passed by the Caste Scrutiny Committee are
sustainable in law.
7) Shri Khapre, learned Counsel for the respondent no.4,
states that since report of the Tahsildar makes it clear that the
caste certificates submitted by the petitioners for verification
were never issued from the office of the said Tahsildar, in such
situation, there was no occasion for the Caste Scrutiny Committee
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to allow the applications of the petitioners for permission to
cross-examine the Tahsildar and the orders passed by the Caste
Scrutiny Committee by placing reliance on the said report of the
Tahsildar are sustainable in law. However, learned Counsel
Shri Khapre does not dispute that in appropriate case, the Caste
Scrutiny Committee does have power to permit candidate to
cross-examine the witness, if his evidence/cross-examination is
necessary for the just decision of the enquiry.
8) We have considered the contentions canvassed by the
learned respective Counsel for the parties. The following facts are
not in dispute :
(i) The petitioners have contested election for the posts of
Corporator from Ward Nos. 46 and 58 of Akola
Municipal Corporation, which was held on 2.2.2007.
(ii) The caste claims of the petitioners were referred to the
Caste Scrutiny committee for verification.
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(iii) The Caste Scrutiny Committee obtained report of the
Tahsildar in order to consider whether the caste
certificates submitted by the petitioners for verification
were issued from the office of the Tahsildar.
(iv) The Tahsildar, Akola submitted report dated 26.4.2007
whereby it was informed that the caste certificates
submitted by the petitioners were not issued from the
office of the Tahsildar and, therefore, Caste Scrutiny
Committee refused to verify the caste claims of the
petitioners on this count.
(v) Both the petitioners approached this Court on earlier
occasion, by filing Writ Petition Nos. 2105/2007 and
2106/2007, which were disposed of by common
judgment dated 20.9.2007 by observing thus :
“1) Rule, returnable forthwith. Heard finally by
the consent of the parties.
2) It is obvious from the order impugned that
the date of the order is 30.4.2007 where in the order
reliance is placed on the report of Tahsildar which is,
dt. 26.4.2007, that too without affording an
opportunity of hearing to the petitioner. In our
opinion, therefore, the following order would meet the
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ends of justice :
The impugned order dated 30.4.2007 passed
by Scrutiny Committee/respondent no.2 is set aside.
th
The petitioner to appear before the Committee on 8
October 2007. At that time, copy of the report of
Tahsildar shall be handed over to the petitioner and
thereafter the matter shall be decided in accordance
with law by the Committee as expeditiously as possible
th
and in any case, within a period of 12 weeks from 8
October 2007.
Rule made absolute accordingly. No order as
to costs.”
(vi) After the matters were remanded back to the Caste
Scrutiny Committee for reconsideration of the caste
claims of the petitioners, the petitioners submitted
applications dated 10.12.2007 before the Caste Scrutiny
Committee whereby the Caste Scrutiny Committee was
requested to permit the petitioners to cross-examine the
Tahsildar since Caste Scrutiny Committee, on the
earlier occasion, took the decision not to verify caste
claims of the petitioners on the basis of report of the
Tahsildar.
(vii) The Caste Scrutiny Committee on 18.2.2008 rejected
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the applications dated 10.12.2007 submitted by the
petitioners in view of decision of this Court in the case
of Pushpa w/o Laxman Pathrabe (cited supra).
(viii) The Caste Scrutiny Committee thereafter on 4.3.2008
referred the caste claim of the petitioners to the
Vigilance Cell for conducting home enquiry and for
submission of the reports thereof.
(ix) The Vigilance Cell submitted reports on 2.5.2008.
(x) The petitioners on 2.5.2008 submitted applications to
the Caste Scrutiny Committee for supplying copies of
the said reports to them.
(xi) The Caste Scrutiny committee did not furnish copies of
the Vigilance Cell's reports to the petitioners.
(xii) On 9.5.2008 the Caste Scrutiny Committee passed the
impugned orders whereby Caste Scrutiny Committee in
view of Government Resolution dated 1.1.2001 once
again concluded that it shall not do verification of
the caste claims of the petitioners since caste certificates
submitted by the petitioners for verification were not
issued by the Office of the Tahsildar and, therefore,
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same were not genuine.
(xiii) After the orders dated 9.5.2008 were passed by the
Caste Scrutiny Committee, the Municipal Commissioner
vide impugned orders dated 21.5.2008 disqualified the
petitioners as Corporators for a period of six years.
9) The above referred facts are not in dispute and,
therefore, short question which falls for our consideration is
whether in the facts and circumstances of the present case, the
orders of the Caste Scrutiny Committee dated 18.2.2008 whereby
applications of the petitioners dated 10.12.2007 came to be
rejected as well as impugned orders dated 9.5.2008 passed by the
Caste Scrutiny Committee are sustainable in law in view of
provisions of Section 9 of the said Act as well as decision cited
and relied on by the Caste Scrutiny Committee. Perusal of the
orders dated 18.2.2008 passed by the Caste Scrutiny Committee
shows that the Caste Scrutiny Committee rejected the applications
of the petitioners mainly in view of the following observations
made by this Court in para (32) in the case of Pushpa w/o
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Laxman Pathrabe (cited supra) :
“As regards the demand to cross-examine Officer of
Vigilance Cell, it may be sufficient to observe that in no
proceeding to which Civil Procedure Code applies can a
person be cross-examined if he has not first been
examined by the party calling such person. Since
Vigilance Cell is an arm of the Committee itself, there is
no question of Officers of such cell being examined
before the Committee. In any case, Vigilance Cell merely
collects evidence, steps taken in collecting evidence could
be equated to evidence of facts in issue.”
Perusal of the above referred observations make it evident that
they were made in the context of the peculiar facts and
circumstances of that case and the Court was called upon to
decide whether cross-examination of the Officer of the Vigilance
Cell can be permitted in the facts of that case since job of the
Vigilance Cell is to collect evidence. However, the provisions of
Section 9 of the said Act contemplate that the Caste Scrutiny
Committee while holding an enquiry under this Act, shall have all
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the powers of the Civil Court while trying a suit under the Code of
Civil Procedure. It is, therefore, evident that the Caste Scrutiny
Committee enjoys all the powers under the Code of Civil
Procedure. Some of them are illustrated in Section 9 itself.
10) The observations made by this Court in paras (5), (6)
and (7) of the judgment dated 21.8.2006 in the case of Ku.
Kalpana d/o Govindrao Tapare (cited supra) are relevant, which
read thus :
(5) “The reasoning given by the Scrutiny Committee
for rejecting her claim is totally devoid of substance. On
one hand, the Scrutiny Committee has observed that the
petitioner has not produced any proof about her claim
regarding the entry in the School records and on the other
hand, it has rejected such opportunity to produce such
proof. The very fact that the petitioner had prayed for
opportunity to cross-examine the School authorities
discloses that the petitioner wanted to produce the proof in
support of her statement that the School record does not
disclose the factual position. The petitioner could have
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established this fact certainly by cross-examining the School
authorities. While denying such opportunity, the Scrutiny
Committee could not have at the same breath held that the
petitioner has failed to establish her claim.
(6) Undoubtedly, the Scrutiny Committee has
proceeded to analyse the records. However, perusal of the
entire order of the Scrutiny Committee discloses that the
Scrutiny Committee was very much impressed by the sole
entry in the school records and in respect of the same entry,
there was no opportunity to the petitioner to prove that the
record in that regard does not depict the factual situation.
Being so, the entire order of the Scrutiny Committee cannot
be sustained and is quashed and set aside and the matter is
remanded to the Scrutiny Committee to give the proper
opportunity including the opportunity to cross-examine the
School authorities and thereafter to pass appropriate order
on proper analysis of the entire material on record.
(7) The petition therefore succeeds. The impugned
order passed by the Caste Scrutiny Committee is quashed
and set aside and the matter is remanded to the Scrutiny
Committee for reconsideration of the claim of the petitioner
in accordance with the provisions of law and bearing in
mind the observations made hereinabove. The petitioner to
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appear before the Scrutiny Committee on 11.7.2006 at
11.00 a.m. for further proceedings before the Caste Scrutiny
Committee. Rule is made absolute in above terms. No
costs.”
The plain reading of the above referred observations shows that
permission to cross-examine was sought by the petitioner in the
said case in order to produce proof in support of her statement
that the School record did not disclose the factual position,
however, the Caste Scrutiny Committee rejected the application to
cross-examine the School Authorities. This Court set aside the
order passed by the Caste Scrutiny Committee and the caste claim
of the petitioner in the said case was remanded to the Caste
Scrutiny Committee for re-consideration.
11) In the instant case, it is not in dispute that the
impugned orders of the Caste Scrutiny Committee are based
primarily on the report of the Tahsildar dated 26.4.2007. It is
also evident that the Caste Scrutiny Committee has not considered
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any other evidence and rejected the applications dated
10.12.2007 of the petitioners only on the basis of report of the
Tahsildar. When the basis of the impugned orders of the Caste
Scrutiny Committee was the report of the Tahsildar and the
petitioners disputed the contents thereof and wanted opportunity
to cross-examine the Tahsildar to rebut the statement made by
him in the report, we see no legal impediment why such
opportunity cannot be granted to the petitioners in view of
scheme of Section 9 of the Act. We concur with the view
expressed by the Division Bench of this Court in the case of
Ku. Kalpana d/o Govindrao Tapare (cited supra).
12) It is no doubt true that provisions of Section 9 of the
Act empowers the Caste Scrutiny Committee to exercise all the
powers of the Civil Court while holding enquiry under this Act
and is also entitled to follow the procedure stipulated under the
Code of Civil Procedure, 1908. However, these powers are
required to be exercised by the Caste Scrutiny Committee as and
when it is necessary to do so and it is not mandatory for the Caste
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Scrutiny Committee to strictly follow the procedure stipulated
under the Code of Civil Procedure, 1908 as applicable to the trial
of the suit while conducting caste verification proceedings. At the
same time, there is no bar or prohibition for making application to
the Caste Scrutiny Committee by the candidate whose caste claim
is under verification, for necessary orders in view of provisions of
Section 9 of the Act. However, it is open for the Caste Scrutiny
Committee to reject such application, if it is frivolous, not
relevant for the issue in question, not bonafide, made only to
delay the proceedings of enquiry or for any other reason, by
passing speaking order.
13) For the reasons stated hereinabove, the impugned
orders dated 18.2.2008 and 9.5.2008 passed by the Caste Scrutiny
Committee as well as impugned orders dated 21.5.2008 passed by
the Municipal Commissioner are quashed and set aside. The
matters are remanded back to the Caste Scrutiny Committee with
a direction to permit the petitioners to cross-examine the
Tahsildar and thereafter proceed in the matter according to law.
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We expect the Caste Scrutiny Committee to complete entire
exercise within a period of three months from the date of receipt
of this judgment. The petitioners undertake to appear before the
st
Caste Scrutiny Committee on 1 July 2008, hence, no further
notice will be issued to the petitioners in this regard.
14) The rule is made absolute in the above terms. No order
as to costs.
__________
khj
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