Prakash Namdeorao Kedar & others vs Union of India, through Ministry of Finance & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2003 Supreme(Bom) 889

IN THE HIGH COURT OF BOMBAY
(FULL BENCH)
(NAGPUR BENCH)
Before :
Sinha D.D., Deshpande A.P. Mohite R.S., JJ.
Prakash Namdeorao Kedar others .... Petitioners.
Versus
Union of India, through Ministry of Finance others.... Respondents.
Writ Petition No. 77 of 1995 with W.P. No. 262 of 1996 with W.P. No. 786 of 2002 with W.P. No. 1598 of 2003, decided on 8-8-2003.
Advocates appeared :
C.G. Madkholkar, in W.P. Nos. 77/1995 262/1996, petitioners.
A.S. Jaiswal, in W.P. No. 77/1995, for respondent No. 2.
Mrs. Bharti Dangre, A.G.P., in W.P. No. 77/1995, for respondent No. 6 in W.P. No. 262/1996, for respondent No. 1 in W.P. Nos. 786/2002 1598/2003, for respondent No. 1.
Mrs. S.W. Deshpande, in W.P. No. 77/1995, for respondents 7 8 in W.P. No. 262/1996, for respondent No. 5 in W.P. No. 786/2002, for respondent No. 2.
R.K. Deshpande, in W.P. No. 262/1996, for respondents 2 to 4.
M.P. Gulhane, in W.P. No. 786/2002, for petitioner.
T.D. Khade, in W.P. No. 786/2002, for respondent No. 3.
B.T. Patil, in W.P. No. 786/2002, for respondent No. 4.
M.R. Joharapurkar in W.P. No. 1598/2003, for petitioner.

Headnote:Civil Procedure Code, 1908 - Section 115 - Power to make revision and reference. - A Division Bench had held that power to make reference to scrutiny committee is equal to revisional power, but it did not hold it so, this was headed by Justice Daga and he was not justified in holding that Division Bench in case 2003 (2) Bom CR 205 had held it so. The issue is not relevant for decision of this reference.
       Maharashtra Revenue (Conversion of Use of Land and Non-Agricultural Land) Rules, 1969 - Sections 6(3), 7 and 10 - Reference of case to Full Bench. - What would be a reasonable time for reference of case, would depend upon facts of a given case. There is no inconsistency as such in respect of findings recorded by Division Benches of the Court, nor it can be held that Apex Court has rendered a decision per incuriam 1999 (2) Bom CR 45.
       Maharashtra Revenue (Conversion of Use of Land and Non-Agricultural Land) Rules, 1969 - Sections 6(3) and 7 - Power to make reference. - Division Bench in referred case 2003 (2) Bom CR 205 not hold that power to make reference is equal to the power of revision, another Division Bench decision 1999 (2) Bom CR 45 was also not justified in holding that Division Bench in 2003 (2) Bom CR 205 had held it so. The issue is irrelevant for decision of case in hand.
       Maharashtra Revenue (Conversion of Use of Land and Non-Agricultural Land) Rules, 1969 - Sections 6(3) and 7 - Time- limit for reference. - Where ratio of judgment does not prescribe any time limit, right of the employer to make a reference on the other hand is kept open. Such a reference made beyond two years period cannot be said to be illegal, thought Government can take action against officer responsible for delay in making reference.
       Maharashtra Revenue (Conversion of Use of Land and Non-Agricultural Land) Rules, 1969 - Sections 6(3) and 7 - Ascer- taining of a document. - To ascertain the ratio of a decision judgment has to be read as a whole in light of the questions raised before it and it will be improper to pick up some observations as laying down law.
       CONSTITUTION OF INDIA - Articles 14, 15, 16, 341 and 342 - Difference of opinion - Reference to Full Bench. - Though State is not precluded from making reference beyond reasonable time or of two years, it is desired that State makes such reference as early as possible and rights of citizen under Articles 14, 15, 16 of Constitution have to be kept in view.
       CONSTITUTION OF INDIA - Articles 14, 15, 16, 341 and 342 - Benefit based on fraud render transaction void. - The benefits based on fraud render the transaction void ab initio and action against the defaulter can be taken any time under the provisions of law.

judgment

Per SINHA D.D., J.:---The Honble the Chief Justice referred Writ Petition No. 786 of 2002 (Vijay Sukhdeo Naydekar v. State of Maharahtra and three others)1, to the larger Bench in view of the Order of Reference, dated 3-2-2003, passed by the Division Bench. Similarly, Writ Petition No. 77 of 1995 (Prakash Namdeorao Kadar and others v. Union of India and others)2, as well as Writ Petition No. 262 of 1996 (Gajanan Govindrao Isal v. State of Maharashtra and others)3, are referred to this larger Bench by the Honble the Chief Justice, and Writ Petition No. 1598 of 2003 (Smt. Uma Jamunalal Joshi v. State of Maharashtra and two others)4, is also referred to us by the Honble Chief Justice in view of the Reference Order, dated 17-4-2003, passed by another Division Bench.

2. Since a common question of law is involved in the, above referred writ petitions, we have heard all the writ petitions together and disposed of the references by this common judgment.

3. Heard learned Counsel for the parties in the respective writ petitions.

4. The Division Bench, presided over by Mr. Justice Daga in Writ Petition No. 786 of 2002 Vijay Sukhdeo Naydekar v. State of Maharashtra and others, while considering the challenge to validity of the order, dated 10-12-1999, passed by the Committee for Scrutiny Verification of Tribe Claims, Nagpur (hereinafter referred to as ""the Caste Scrutiny Committee"", for short), came across and noticed that the Division Bench, presided over by the Honble the Chief Justice in (Anil Vasantrao Shirpurkar v. State of Maharashtra through its Secretary)5, reported in 2003(2) Bom.C.R. 205 : 2002(4) Mh.L.J. 365 had taken a view that the power of the Scrutiny Committee is akin to the power of revision and as such must be exercised within a reasonable period. So far as reasonable period is concerned, the Bench was pleased to prescribe time limit for reference to the Castes/Tribes Scrutiny Committee equal to the period prescribed for confirmation of services of the employee who is on probation. Similarly, the decision rendered by the Division Bench in the case of Anil Vasantrao Shirpurkar (supra) is based on the earlier decision of Division Bench of this Court in case of (Chandrabhan Yamaji Nandanwar v. Director of Health Services, M.S., Bombay and others)6, 1999(2) Bom.C.R. (N.B.)45 : 1999(1) Mh.L.J. 536. The Counsel for the petitioner in Vijay Sukhdeo Naydekars case contended before the Division Bench in that case that the law laid down by the Division Bench in Chandrabhans case is that if the person is appointed in the Government or semi-Government organization from the reserved category availing the benefits extended to such category in the employment, the employer is required to make a reference for verification of the Caste Certificate of such employee to the Caste Scrutiny Committee within the period of two years, which is normally prescribed for confirmation of services of the probationers, and if the reference is made after a period of two years, the same was held to be violative of Article 14 of the Constitution of India being beyond the reasonable period. It is further contended that in Anil Vasantrao Shirpurkars case (supra), the Division Bench, relying on the law laid down in Chandrabhans case (supra), also concluded that the person, who is appointed in the Government or semi-Government employment, normally remains on probation for a period of two years and before completion of period of probation, the employer should initiate proceedings for reference of the Caste Certificate of such employee for verification by the Caste Scrutiny Committee. In nutshell, the contention, which was canvassed before the Division Bench in Vijay Naydekars case (supra) was that the employer can only exercise power, or is entitled to refer the caste claim/Caste Certificate of his employee to the Caste Scrutiny Committee within the reasonable period of two years from the date of his appointment, and if the reference is made beyond the

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