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The Caste Disabilities Removal Act, 1850 1
The Indian Penal Code, 1860
Kiran Singh And Others vs Chaman Paswan And Others on 14 April, 1954
Mantoo Sarkar vs Oriental Insurance Co.Ltd.& Ors. on 16 December, 2008
Section 21 in The Indian Penal Code, 1860

User Queries
Bombay High Court
Niraj Kamlakar More vs Scheduled Tribe Certificate on 11 May, 2012
Bench: A.S. Oka, S.P. Deshmukh

1 wp2016.12-tupe.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 2016 OF 2012

Niraj Kamlakar More,

Age: 16 years (Minor),

Being minor represented through

his natural guardian i.e. father:- Shri. Kamlakar Rajaram More,

R/o. Karegaon Road, Parbhani,

Tq. & Dist. Parbhani. ...PETITIONER

VERSUS

Scheduled Tribe Certificate

Scrutiny Committee, Aurangabad

Through its Member Secretary. ...RESPONDENT

WITH

WRIT PETITION NO. 1420 OF 2012

Pradeep s/o Bhaidas Koli (Tawar), Age: 38 years, Occ: Service,

R/o. Shrikrushna Nagar, HUDCO,

Aurangabad,

Tq. & Dist. Aurangabad. ...PETITIONER

VERSUS

1. The State of Maharashtra,

Through it's Secretary,

Tribal Development Department,

Mantralaya, Mumbai-32.

2 wp2016.12-tupe.doc

2. The Police Commissioner,

Aurangabad.

3. The Vice Chairman/Member-Secretary, Scheduled Tribe Certificate

Scrutiny Committee, Aurangabad

Division, Aurangabad. ...RESPONDENTS

WITH

WRIT PETITION NO. 3634 OF 2012

Shri. Rajesh s/o Pundlik Suryawanshi, Age: 36 years, Occ: Service,

R/o.'Vedant', Plot No.8,

Shivajinagar, Wadi-Bhokar Road,

Deopur, Dist. Dhule. ...PETITIONER

VERSUS

1. The State of Maharashtra,

Tribal Development Department,

Mantralaya, Mumbai-32.

Through its Secretary.

2. The Scheduled Tribe Certificate Scrutiny Committee, Nashik

Division, Nashik.

Through its Chairman/Director.

3. The Executive Magistrate,

Nashik, Dist. Nashik. ...RESPONDENTS

WITH

3 wp2016.12-tupe.doc

WRIT PETITION NO. 4046 OF 2012

Shri. Sacchidanand s/o Shrikrushna Suryawanshi,

Age: 19 years, Occ: Student,

R/o. Shrirampur, Tq. Shrirampur,

Dist. Ahmednagar. ...PETITIONER

VERSUS

1. The State of Maharashtra,

Department of Tribal Development, Mantralaya, Mumbai-32.

Through its Secretary.

2. The Scheduled Tribe Caste Certificate Scrutiny Committee, Nashik

Division, Nashik.

Through its Secretary.

3. The Sub Divisional Officer,

Shrirampur, Sub Division,

Shrirampur.

4. BRACT's Vishwakarma Institute of Information Technology,

S.No.2/3/4, Kondhwa Bk.,

Pune-411 048.

Through its Principal.

5. University of Pune,

Through its Registrar. ...RESPONDENTS

WITH

WRIT PETITION NO. 4050 OF 2012

Shri. Anil s/o Rajesing Thakur,

4 wp2016.12-tupe.doc

Age: 42 years, Occ: Service,

R/o.Sindkheda, Tq. Sindkheda,

Dist. Dhule. ...PETITIONER

VERSUS

1. The State of Maharashtra,

Department of Tribal Development, Mantralaya, Mumbai-32.

Through its Secretary.

2. The Scheduled Tribe Caste Certificate Scrutiny Committee, Nashik

Division, Nashik.

Through its Secretary.

3. The Sub Divisional Magistrate, Nashik City Division, Dist. Nashik. Dist. Nashik.

4. The Divisional Controller,

Maharashtra State Road Transport

Corporation Ltd., Dhule,

Dist. Dhule. ...RESPONDENTS

...

Mr. S.C. Phatale, Advocate holding for Mr. Mahesh S. Deshmukh, Advocate for the petitioner in W.P. No. 2016/2012. Mr. Y.K. Bobade, Advocate holding for Mr. S.S. Tope, Advocate for respondent sole in W.P. No. 2016/2012.

Mr. Y.C. Yeramwar, Advocate holding for Mr. Pratap V. Jadhavar, Advocate for the petitioner in W.P. No.1420/2012.

Mr. D.R. Korde, A.G.P. for respondent Nos. 1 & 2 in W.P. No. 1420/2012.

Mr. D.B. Bhange, Advocate for respondent No.3 in W.P. No.1420/2012.

Mr. S.C. Yeramwar, Advocate holding for Mr. Anil S. Golegaonkar, Advocate for the 5 wp2016.12-tupe.doc

petitioners in W.P. Nos. 3634/2012, 4046/2012 and 4050/2012.

Mr. D.R. Korde, A.G.P. for respondent Nos. 1 & 3 in W.P. Nos. 3634/2012, 4046/2012 and 4050/2012. Mr. P.P. More, Advocate for respondent No. 2 in W.P. No.3634/2012.

Mr. D.B. Bhange, Advocate for respondent No.2 in W.P. No. 4046/2012.

Mr. K.D. Bade Patil, Advocate for respondent No.2 in W.P. No.4050 of 2012.

...

CORAM: A.S. OKA AND

SUNIL P. DESHMUKH, JJ.

DATED : 11TH MAY 2012

ORAL JUDGMENT : [PER A.S. OKA, J.]

1. Considering the fact that the issue

arising in these petitions is identical, we had

put the parties to the notice that the petitions

will be disposed of finally at the stage of

admission.

2. For the sake of convenience, we are making

a reference to the facts of the case in Writ

Petition No. 2016 of 2012. This is a case where

the challenge is to the order dated 2nd December,

2011 passed by the Scheduled Tribe Certificates 6 wp2016.12-tupe.doc

Scrutiny Committee, Aurangabad Division,

Aurangabad. The petitioner applied for caste

verification on the basis of the caste certificate

dated 29th September, 2006, issued by the Deputy

Collector and the District Supply Officer,

Parbhani. The certificate issued was to the

effect that the petitioner belongs to Thakur Caste

which is recognised as a Scheduled Tribe under the

Constitution (Scheduled Tribe) Order, 1950. In

the impugned order, the Caste Scrutiny Committee

made a reference to the provisions of Rule 5(2) of

the Maharashtra Scheduled Tribes (Regulation of

Issuance and Verification of Certificate) Rules,

2003 (hereinafter referred to as "the said

Rules"). The Caste Scrutiny Committee came to the

conclusion that the competent authority who issued

caste certificate to the petitioner had no

territorial jurisdiction to issue caste

certificate and therefore, the certificate has

been issued without jurisdiction. The Caste

Scrutiny Committee, therefore, held the

certificate to be invalid and directed that the 7 wp2016.12-tupe.doc

certificate should be cancelled and confiscated

accordingly. The Caste Scrutiny Committee granted

liberty to the petitioner to obtain a fresh caste

certificate in the manner prescribed by said Rules

and submit it to the Scrutiny Committee. The Caste

Scrutiny Committee made it clear that cancellation

of the certificate is without affecting the merit

of his claim. In other writ petitions, there are

similar orders passed by the Scrutiny Committee

wherein findings have been recorded that the caste

certificates on the basis of which caste validity

was sought were issued by the competent

authorities having no territorial jurisdiction to

issue the same.

3. The detailed submissions have been made

in these petitions and in particular in Writ

Petition No. 2016 of 2012 by the learned Counsel

appearing for the petitioner. We have heard

submissions the learned A.G.P and the learned

Counsel appearing for the Scrutiny Committees.

The submissions have been made by the learned 8 wp2016.12-tupe.doc

Counsel appearing for the Petitioner by inviting

our attention to 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 (hereinafter referred to as

"the said Act"). The submissions have been made

on the procedure laid down by the said Rules and

in particular Rule 5 which deals with grant of

Scheduled Tribe Certificate to migrated persons.

Very elaborate submissions have been made before

us as regards the meaning of a migrant within the

State and the jurisdiction conferred on various

competent authorities within meaning of the said

Act to issue caste certificate to migrants. In

addition to these submissions, the learned Counsel

appearing for the petitioner in Writ Petition No.

2016 of 2012 has made submissions on the basis of

provisions of Section 6 and 7 of the said Act. He

has relied upon a decision of the Apex Court in

Vasant Pandurang Narwade @ Narvde vs. Subhash 9 wp2016.12-tupe.doc

[2001(10)JT 125]. His submission is that without

going to the question whether the competent

authority had territorial jurisdiction to issue

caste certificate, it was the duty of the Caste

Scrutiny Committee to make adjudication and to

record findings on the caste claim of the

petitioner.

4. In short, the submissions have been made

about the interpretation of Sub Rule (2) of Rule 5

of the said Rules with regard to the territorial

jurisdiction of the competent authorities to issue

caste certificates. After the submissions were

heard, we have given our careful consideration to

the same. After considering the provisions of the

said Act and the said Rules , we are of the view

that for deciding these petitions, it will not be

necessary to go into issue of interpretation of

sub Rule (2) of Rule 5 of the said Rules.

5. A brief reference will have to be made to

the provisions of the said Act and the Rules. We 10 wp2016.12-tupe.doc

will have to advert to the three important

provisions of the said Act which are Sections 4,6

and 7 which read thus :

"4. Caste Certificate to be issued by Competent Authority.

(1) The Competent Authority

may, on an application made to it under section 3, after satisfying itself about the genuineness of the claim and the following the procedure as prescribed, issue a Caste Certificate withich such time limit and in such form as may be prescribed or reject the application for reasons to be recorded in writing.

(2) A Caste Certificate

issued by any person, officer or authority other than the Competent Authority shall be invalid. The Caste Certificate issued by the Competent Authority shall be valid only subject to the verification and grant of validity certificate by the 11 wp2016.12-tupe.doc

Scrutiny Committee."

"6. Verification of Caste Certificate by Scrutiny Committee.

(1) The Government shall

constitute by notification in the Official Gazette, one or more Scrutiny Committee(s) for verification of Caste Certificates issued by the Competent Authorities under sub-section (1) of section 4 specifying in the said notification the functions and the area of jurisdiction of each of such Scrutiny Committee or Committees.

(2) After obtaining the

Caste Certificate from the Competent Authority, any person desirous of availing of the benefits or concessions provided to the Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category for the purposes mentioned in section 3 may make an application, well in time, in such form and in 12 wp2016.12-tupe.doc

such manner as may be prescribed, to the concerned Scrutiny Committee for the verification of such Caste Certificate and issue of a validity certificate.

(3) The appointing

authority of the Central or State Government, local authority, public sector undertakings, educational institutions, Co-operative Societies or any other Government aided institutions shall, make an application in such form and in such manner as may be prescribed by the Scrutiny Committees for the verification of the Caste Certificate and issue of a validity certificate, in case a person selected for an appointment with the Government, local authority, public sector undertakings, educational institutions, Co-operative Societies or any other Government aided institutions who has not obtain such certificate.

(4) The Scrutiny Committee

shall follow such procedure for 13 wp2016.12-tupe.doc

verification of the Caste Certificate and adhere to the time limit for verification and grant of validity certificate, as prescribed."

"7. Confiscation and cancellation of false Caste Certificate.

(1) Where, before or after the commencement of this Act, a person not belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category has obtained a false Caste Certificate to the effect that either himself or his children belong to such Castes, Tribes or Classes, the Scrutiny Committee may, suo motu, or otherwise call for the record and enquire into the correctness of such certificate and if it is of the opinion that the certificate was obtained fraudulently, it shall, by an order cancel and confiscate the certificate by following such 14 wp2016.12-tupe.doc

procedure as prescribed, after giving the person concerned an opportunity of being heard, and communicate the same to the concerned person and the concerned authority, if any.

(2) The order passed by the

Scrutiny Committee under this Act shall be final and shall not be challenged before any authority or court except the High court under Article 226 of the Constitution of India."

A reference will have to be made to definition of

"Comptent Authority" which is defined by clause

(b) of Section 2 of the said Act, which reads

thus:

"2. In this Act, unless the context otherwise requires,-

(a) ........

(b) "Competent Authority" means a officer or authority authorised by the Government, notification in the Official Gazette, to issue a Caste Certificate, for such area or for 15 wp2016.12-tupe.doc

such purposes as may be specified in the said notification and shall include all the Competent Authorities already designated by the Government before the coming into force of this Act, having jurisdiction over the area or place to which the applicant originally belongs, unless specified otherwise;"

6. From the scheme of the said Act, it

appears that a caste certificate is to be issued

by the competent authority defined under the said

Act after following prescribed procedure. It is

well settled that a caste certificate granted by

the competent authority in accordance with the

section 4 of the said Act is not conclusive and it

is only a prima facie evidence of caste of a

person. Sub-section (2) of Section 4 of the said

Act makes it clear that a caste certificate issued

by the competent authority shall be valid only

subject to the verification and grant of validity

certificate by the Scrutiny Committee. Thus, a 16 wp2016.12-tupe.doc

caste certificate issued by the competent

authority in accordance with Section 4 of the said

Act is valid, only when a validity certificate is

granted by the Scrutiny Committee. Sub-section

(2) provides that a caste certificate is invalid

when it is issued by any person, officer or

authority other than the competent authority

within meaning of the said Act. By virtue of

Section 6(2) of the said Act, a power is conferred

on the Scrutiny Committee to make verification of

the caste certificate issued by the competent

authority. Therefore, for the purposes of making

adjudication of caste claim of a person on his

application, the caste certificate issued by the

competent authority under Section 4 must be before

the Scrutiny Committee. The reason being that

power of the Scrutiny Committee as indicated by

Sub-Section (2) of Section 6 is to make

verification of the caste certificate issued by

the competent authority.

7. Perusal of the findings recorded by the 17 wp2016.12-tupe.doc

Scrutiny Committee in the impugned orders shows

that it is not held that the officer who has

issued caste certificate is not the competent

authority. It is not held that the certificate

has been issued by any person, officer or

authority other than the competent authority. The

finding is that the competent authority which has

issued the caste certificate did not have

territorial jurisdiction to issue the caste

certificate to the concerned petitioner and the

territorial jurisdiction by virtue of Rule 5(2)

was vesting in some other competent authority. We

may also note that findings have been recorded in

the impugned orders that caste certificates are

invalid only on the ground that the same are

issued by the competent authority having no

territorial jurisdiction to issue the same. The

Scrutiny Committee has proceeded to direct the

cancellation and confiscation of caste

certificates only for the reason that the

competent authority had no territorial

jurisdiction to issue the same.

18 wp2016.12-tupe.doc

8. Perhaps, the Scrutiny Committee has

ignored that sub-section (2) of section 4

specifically lays down in what circumstances a

caste certificate issued can be said to be

invalid. It is specifically provided therein that

a caste certificate is invalid, if it is issued by

any person, officer or authority other than the

competent authority. As we have already held that

in the cases in hand, it is not even the finding

recorded that caste certificates of the

Petitioners have been issued by any person,

officer or authority other than the competent

authority.

9. Therefore, the question is whether a

caste certificate issued by the competent

authority can be said to be invalid within meaning

of sub-section (2) of section 4 on the ground that

the competent authority which is otherwise

competent to issue a caste certificate had no

territorial jurisdiction to issue the particular 19 wp2016.12-tupe.doc

caste certificate. In this connection, we may note

the well settled position that there is a

difference between an order which is illegal and

order which is nullity. An order is invalid when

it is nullity. Merely because an order is

illegal, it cannot be said to be invalid. In this

connection, we may make a useful reference to a

decision of the Division Bench of this Court in

case of Wasp Pump Pvt. Ltd. vs. Union of India and

others [2008(3) Mh.L.J. 238] and in particular

paragraph-8 thereof. The Division Bench has held

thus:-

"It is now a well settled proposition of law that if an order is nullity then it is invalid and its invalidity can be set up anywhere and everywhere when such order is sought to be executed or enforced."

(emphasis added)

Thus, it is very clear that an order which is

nullity is an invalid order and therefore, 20 wp2016.12-tupe.doc

invalidity can be set up in any proceedings in

which said order is sought to be relied upon or

sought to be executed.

10. As we have already pointed out, on plain

reading of sub-section (2) of Section 4 of the

said Act, a caste certificate is invalid only if

it is issued by a person, officer or the authority

other than the competent authority. In the

present case, caste certificates are issued by the

competent authority. However, we are also

considering the question whether the caste

certificate issued by the competent authority

which lacks territorial jurisdiction can be said

to be invalid. We may state here that the

distinction between lack of inherent jurisdiction

and lack of pecuniary or territorial jurisdiction

is well settled. If an order is passed by an

authority, court or quasi-judicial authority which

lacks inherent jurisdiction to pass the same,

there is no difficulty in holding that such order

is nullity or is invalid. The question is whether 21 wp2016.12-tupe.doc

an order passed by the authority which does not

lack inherent jurisdiction but which lacks

territorial jurisdiction can be said to be

nullity.

11. On this aspect, we may make a reference

to a decision of the Apex Court in case of

Commissioner of Income Tax, Shimla vs. Greenworld

Corporation, Parwanoo [(2009) 7 Supreme Court

Cases 69] and in particular paragraph-63 thereof.

In paragraph-63 the Apex Court has held thus :

"63. In Mantoo Sarkar vs. Oriental Insurance Co. Ltd. & Ors. [2008 (16) SCALE 197], this Court held: (SCC pp. 248-49, paras 18-20)

"18. The Tribunal is a court subordinate to the High Court. An appeal against the Tribunal lies before the High Court. The High Court, while exercising its appellate power, would follow the provisions contained in the Code of Civil Procedure or akin thereto. In 22 wp2016.12-tupe.doc

view of sub-section (1) of Section 21 of the Code of Civil Procedure, it was, therefore, obligatory on the part of the appellate court to pose unto itself the right question, viz., whether the first respondent has been able to show sufferance of any prejudice. If it has not suffered any prejudice or otherwise no failure of justice had occurred, the High Court should not have entertained the appeal on that ground alone.

19. We, however, while taking

that fact or into consideration must place on record that we are not oblivious of the fact that a decision rendered without jurisdiction would be coram non juris. Objection in regard to jurisdiction may be taken at any stage. ( See Chief Engineer, Hydel Project v.Ravinder Nath , [ (2008) 2 SCC 350 ] ) wherein inter alia the decision of this Court in Kiran Singh v. Chaman Paswan, [AIR 1954 SC 340] was followed, stating: (Ravinder Nath case, SCC p.361, para 23 wp2016.12-tupe.doc

26)

'26. The Court also relied upon

the decision in Kiran Singh v. Chaman Pawan [AIR 1954 SC 340] and quoted (in Harshad Chiman Lal case {[(2005) 7 SCC 791], SCC pp. 804-805, para 33} therefrom: {Kiran Singh case, AIR p.342, para 6)

"6. ...It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, ...strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties."

Though in the aforementioned

decision these observations were made since the defendants before raising the objection to the 24 wp2016.12-tupe.doc

territorial jurisdiction had admitted that the court had the jurisdiction, the force of this decision cannot be ignored and it has to be held that such a decree would continue to be a nullity.'

20. A distinction, however,

must be made between a jurisdiction with regard to subject matter of the suit and that of territorial and pecuniary jurisdiction. Whereas in the case falling within the former category the judgment would be a nullity, in the latter it would not be..."

(emphasis added)

The Apex Court specifically held that lack of

jurisdiction as regards the subject matter of the

suit will render the decision nullity but in case

of lack of territorial or pecuniary jurisdiction,

the decision will not be invalid. In other

words, a judgment rendered by a Court which lacks

territorial jurisdiction will not be a nullity. 25 wp2016.12-tupe.doc

Lastly, on this aspect, a reference will have to

be made to a decision in the case of Krishnadevi

Malchand Kamathia and others vs. Bombay

Environmental Action Group and others [(2011) 3

Supreme Court Cases 363]. In paragraphs 16 to 19

the Apex Court has discussed the issue which reads

thus :

"16. It is a settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil [(1996) 1 SCC 435], Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd.,[[(1997) 3 SCC 443], M. Meenakshi v. Metadin Agarwal [(2006) 7 SCC 470) and Sneh Gupta v. Devi Sarup [(2009) 6 SCC 194)], this Court held that whether an order is valid or void, cannot be determined by the parties. For 26 wp2016.12-tupe.doc

setting aside such an order, even if void, the party has to approach the appropriate forum.

17. In State of Punjab v. Gurdev Singh [(1991) 4 SCC 1] this Court held that a party aggrieved by the invalidity of an order has to approach the court for relief of declaration that the order against him inoperative and therefore, not binding upon him. While deciding the said case, this Court placed reliance upon the judgment in SMith v. East Elloe RDC [1956 ac 736, wherein Lord Radcliffe observed : (AC pp. 769-70)

"...An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity [on] its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."

27 wp2016.12-tupe.doc

18. In Sultan Sadik v. Sanjay Raj Subba [(2004) 2 SCC 377], this Court took a similar view observing that once an order is declared non est by the court only then the judgment of nullity would operate erga omnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity.

19. Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the 28 wp2016.12-tupe.doc

same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person."

12. Thus, a caste certificate issued by the

competent authority cannot be said to be invalid

or nullity only on the ground that the competent

authority did not have territorial jurisdiction.

Thus, it follows that in the facts of these cases,

the caste certificates issued by the competent

authority cannot be said to be invalid. The

Scrutinee Committee cannot refuse to exercise its

power on the ground that the caste certificate

produced before it for validation was issued by

the competent authority having no territorial

jurisdiction to issue the same. When a caste

certificate issued by the competent authority is

not invalid within meaning of sub-section (2) of

Section 4 of the said Act, the Scrutiny Committee 29 wp2016.12-tupe.doc

cannot refuse to exercise its jurisdiction of

adjudication or verification of caste claim. In

cases in hand, the only finding of the Scrutinee

Committee is that the competent authority which

issued caste certificate had no territorial

jurisdiction to issue the certificate. Therefore,

we hold that the caste certificates are not

invalid and the Caste Scrutiny Committee was duty

bound to make adjudication on the respective

caste claims of the petitioners.

13. Before we conclude, a reference will have

to be made to a decision of this Court in Writ

Petition No. 1945 of 2003 and other connected writ

petitions (Musa s/o Ibrahim vs. The State of

Maharashtra and others) decided by the Division

Bench of this Court (Aurangabad Bench) dated 15th

September, 2003. In these petitions, the issue

before this Court was that when it is established

that the so called caste certificate produced

before the Scrutiny Committee was not at all

issued by the authority by which it was 30 wp2016.12-tupe.doc

purportedly issued, whether the Caste Scrutiny

Committee can close the proceedings of caste

verification. In this decision, Division Bench

has referred to a decision of the Apex Court in

Special Appeal (Civil) Nos. 4409-10/2011 in case

of Vasant Pandurang Narwade vs. Subhash Dashrathe.

Division Bench in Paragraph 7 of its Judgment

relied upon the following observations of the

Apex Court in the said decision:-

"We are, however, of the opinion

that the Scrutiny Committee did not act fairly and failed to comply with even the basic rules of natural justice. The appellant was called upon to establish his caste but the material produced by him was not considered by the Scrutiny Committee. It is only the validity of the certificate that was considered. The real issue was overlooked by the Committee. The Scrutiny Committee ought to have returned a finding as to whether or not the appellant belonged to "Kunbi" caste as claimed 31 wp2016.12-tupe.doc

by him on the basis of the certificates and other documents produced by him and should not have stopped short of that determination merely by considering whether the earlier certificate was in fact issued by the Tahsildar or not. Since the High Court has mainly relied upon the finding of the Scrutiny Committee, we consider it appropriate to set aside the order of the High Court and remand the petition to the High Court with a direction that the High Court shall specifically require the Scrutiny Committee to determine the question of caste of the appellant and for doing so grant opportunity to the parties to produce all such evidence as they may wish in support of their respective claims. The Scrutiny Committee shall be made time bound to furnish its report and in doing so the Scrutiny Committee shall ignore its earlier report-cum-order dated 28.8.2000 and the findings recorded therein. The High Court may, after receipt of report, decide the petition afresh after hearing the 32 wp2016.12-tupe.doc

parties."

(Emphasis added)

After considering the decision of the

Apex Court, in paragraph-12, the Division Bench

held thus :-

"12. Once a claimant of social status as belonging to reserved castes has utilised the caste certificate, either for seeking appointment against a reserved post or got elected against a reserved seat in a local self-Government body like Village Panchayat, Panchayat Samiti, Zilla Parishad or Municipal Council/Corporation, the benefit of reservation so obtained cannot be deprived solely on the ground that the caste certificate was found to be bogus or fabricated. When a person is elected as a Member of any of the self-Government bodies, he/she can be unsitted only when it is found by the Committee that he/she does not belong to the reserved category claimed to be. Even if the caste certificate is found to be bogus or false, the 33 wp2016.12-tupe.doc

social status claim is required to be scrutinised by the Committee by affording an opportunity of leading evidence and on the basis of the parameters set out for verification by the Caste Verification Act and/or the law laid down by the Apex Court. IN the process of verification if the Committee reaches to a conclusion that the caste certificate was not issued by the competent authority, it cannot stop there itself specifically when the caste certificate has been utilised either for appointment or for election against a reserved post/seat. The Committee will have to call upon the claimant to lead evidence in support of his/her social status notwithstanding the caste certificate and based on the evidence produced by him/her, the vigilance enquiry report and the social, religious practices and linguistic traits etc., the caste claim is required to be decided by the Committee. If finally the Committee comes to the conclusion 34 wp2016.12-tupe.doc

that the claimant does not belong to the caste he/she claims to be, it has to invalidate the caste claim and it has powers to direct confiscation and cancellation of the said certificate."

(emphasis added)

15. There is one more aspect which will have

to be noted. The Scrutiny Committee under the

impugned order has directed cancellation and

confiscation of caste certificates. We may note

here that under sub-section (1) of Section 7 of

the said Act, the power of cancellation and

confiscation of caste certificate can be exercised

only if the Caste Scrutiny Committee is of the

opinion that the certificate was obtained

fraudulently. Therefore, the direction issued

under the impugned orders to cancel and confiscate

the caste certificates is illegal. The finding

that the caste certificates were obtained

fraudulently could have been recorded only while

deciding the caste claim on merits. In the cases

in hand, there is no adjudication made on merits 35 wp2016.12-tupe.doc

and hence, there is no finding that the caste

certificates were obtained fraudulently.

16. Our attention was also invited to a

Government Resolution dated 10th March, 2005. We

are aware that this Government Resolution is not

applicable to the matter of grant of caste

certificate of a person belonging to Scheduled

Tribe. This decision is applicable to other

categories such as Scheduled Castes, Other

Backward Class etc. The decision of the State

Government which is reflected from the said

Government Resolution is that in case of a migrant

who has settled down permanently at a particular

place, he can make an application for grant of

caste certificate to the competent authority

having jurisdiction over the local area.

17. In the circumstances, the orders impugned

will have to be quashed and set aside only on the

ground that the findings of the competent

authority that the caste certificates are invalid 36 wp2016.12-tupe.doc

are completely erroneous and illegal. In the

circumstances, we are required to pass orders of

remand directing the concerned Caste Scrutiny

Committees to consider the caste claim of the

respective petitioners on merits. Hence, we pass

following order.

: O R D E R :

(1) The impugned orders passed by the

concerned Caste Scrutiny Committees

are quashed and set aside and the

matters of caste verification of the

petitioners stand remitted to the

concerned Caste Scrutiny Committees.

(2) The Caste Scrutiny Committees shall

proceed to adjudicate upon the caste

claims of the respective petitioners

in accordance with provisions of the

said Act and Rules.

(3) We direct the Caste Scrutity 37 wp2016.12-tupe.doc

Committees to pass appropriate

orders as expeditiously as possible.

(4) We make it clear that we have made

no adjudication on the caste claims

of the respective petitioners.

(5) We direct that till disposal of the

caste claims by the Scrutiny

Committees, no coercive action shall

be initiated against the concerned

petitioners on the ground that they

have not produced caste validity

certificates.

(6) The writ petitions are partly

allowed on the above terms with no

order as to costs.

Sd/- Sd/-

[SUNIL P. DESHMUKH, J.] [A.S. OKA, J.]

sut/MAY12