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2010 Supreme(Bom) 685
2010(5) ALL MR 225
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A. S. OKA, J.
Smt. Chandrabhagabai pandurang Shevare & Ors.
Versus
Manoj Gangadhar Burkule & Ors.
Writ Petition No.1 0833 of 2009
Decided On : 6th May, 2010.
Mr. M. M. SA THA YE, for the Petitioners.
Mr. S. S. BHENDE, A.G.P., for State.
Mr. S. R. RONGHE, for Respondent Nos.1 and 2.
Headnote:Bombay Court Fees Act, 1959 - Section 46 - Civil Procedure Code, 1908, Order VII, Rule 11 - Exemption of Court fees - Suit for declaration and injunction filed by petitioners and respondents 3 and 4 against respondents 1 and 2 - Plaintiffs-petitioners claimed themselves belongs to schedule tribe - Exemption granted under Section 46 of Act from Court fees - Respondents prayed for rejection of plaint - Plaintiffs directed to pay requisite stamp duty by impugned judgment - Writ petition challenging impugned judgment - Contentions - Civil Court has no jurisdiction to adjudicate caste claim - Held - Civil Court ought to have allowed petitioners to avail exemption on basis of caste certificate produced alongwith suit which neither invalidated nor cancelled - Impugned order set aside subject to condition of all petitioners producing caste certificate issued in accordance with Section 4(1) of Maharashtra Schedule Caste Act within period of 8 weeks - Petition partly allowed. - Neither under the provisions of the said Act of 2000 nor under the provisions of the said Rules there is a provision by which a Civil Court can issue directions to a Scrutiny Committee to decide the caste claim within a specified time. However, Rule 7 of the said Rules provides that any complaint or allegation that a person to whom a Scheduled Tribes certificate has been issued, is not belonging to a Scheduled Tribe shall be inquired into by the concerned Scrutiny Committee. It is provided in that such complaints shall be decided within a period of six months from the date of receipt. In case of a suit where plaintiff has filed Scheduled Tribe certificate issued by the Competent Authority if the Court has any doubt as to whether plaintiff belongs to a Scheduled Tribe, the Court can always direct one of its officers to lodge a complaint under Rule 7. Even on an objection being raised by a defendant, the Court can direct one of its officers to file such a complaint. If the complaint is decided against the plaintiff and his caste claim is held to be invalid, the Court can follow the procedure under clause (c) of Rule 11 of Order VII of the said Code.
Now turning to the present case, the trial Court has recorded a finding on the caste claim of the petitioners. The jurisdiction of a Civil Court to decide such issue of caste claim has been ousted by necessary implication in as much as under the said Act of 2000, exclusive jurisdiction to decide a caste claim is conferred on the Caste Scrutiny Committee. Therefore, the impugned order will have to be set aside. A reasonable time will have to be granted to the petitioners to produce caste certificates issued by the competent authority. The petitioners have filed on record a caste certificate issued to one of the plaintiffs. The other plaintiffs will have to produce their respective caste certificates within a period of eight weeks from today. If compliance is not made within stipulated period, the order of rejection of the plaint will stand.
The petitioners are the original plaintiffs. The 1st and 2nd respondents are the original defendants. The State of Maharashtra has been added as a party to this Writ Petition. The petitioners and 3rd and 4th respondents filed a suit for declaration and injunction against the 1st and 2nd respondents. The declaration sought is that the agreement for sale dated 9th October, 2007 and sale deed dated 11th December, 2007 allegedly obtained by the 1st and 2nd respondents from the plaintiffs are illegal and the same are not binding on the plaintiffs. A prayer for perpetual injunction was made as a consequential relief In paragraph 8 of the plaint it is asserted that the plaintiffs belong to Scheduled Tribe and therefore, there is exemption granted under section 46 of the Bombay Court Fees Act, 1959 (hereinafter referred to as the said Act of 1959) from the payment of Court fees.
2. The 1st and 2nd respondents made an application under Rule 11 of Order 7 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) praying for rejection of the plaint on the ground that the Court fee payable on the plaint was not paid. An application was made by the plaintiffs at Exh.32 contending that the caste certificate issued to the 3rd Plaintiff by the Competent Authority has been produced on record. It was contended that the caste certificate issued by the Competent Authority was sufficient to prove the caste of the plaintiffs. In the said application at Exh.32 it was prayed that the report of the superintendent of the Court be called for. Another application was made by the plaintiffs at Exh.35 on 14th October, 2009 contending that the caste certificate issued by the Competent Authority in respect of the 2nd plaintiff was produced which shows that the 2nd plaintiff was belonging to Mahadeo Koli which is a scheduled tribe. A prayer was made for making a reference to the Caste Scrutiny Committee.
3. The application made by the 1st and 2nd defendants at Exh.15-A for rejection of the plaint was taken up for hearing. By the impugned Judgment and Order dated 25th November 2009, the petitioners were directed to pay requisite stamp duty within the period of one month failing which the plaint shall stand rejected. The said order has been impugned in this petition.
4. The learned counsel for the petitioners invited my attention to the impugned order and pointed out that the caste claim of the petitioner has been decided by the Civil Court in the impugned order by holding that the petitioners/plaintiffs belong to Hindu Koli community. He submitted that the Civil Court has no jurisdiction to adjudicate upon the caste claim of the plaintiffs in view of bar created by the Maharashtra Scheduled Caste, Scheduled Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000. He submitted that in view of law laid down by the Apex Court and in view of express provisions of the said Act of 2000, Civil Court had no jurisdiction to give a finding on the caste of the plaintiffs. He submitted that the petitioners were entitled to claim exemption from payment of Court fees on the basis of caste certificate issued by the Competent Authority which is valid till the same is invalidated or cancelled by the appropriate authority under the said Act of 2000. He submitted that the caste claim of the petitioner is pending before the statutory Scrutiny Committee and till such time, the caste claim is not invalided, exemption ought to have been granted to the petitioners. He submitted that in a case like this, the principles governing the Order 33 of the said Code should be taken as a guideline. He submitted that if ultimately it is found that the petitioners are not entitled for exemption as a result of the Scrutiny Committee invalidating their claim, the Court fees can be always recovered. He submitted that intention of exercising power under section
