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2012 Supreme(Bom) 618
High Court of Judicature at Bombay
D.D. SINHA & V.K. TAHILRAMANI
Rajesh Bharat Latkar Adult
Versus
State of Maharashtra, Through the Department & Others
WRIT PETITION NO. 359 OF 2012
Decided On : 21-03-2012
For the Petitioner:Y.S. Jahagirdar, Sr. Advocate i/b. C.G. Patil, Advocate.
For the Respondents:R1, A.B. Vagyani, R2, S.S. Patwardhan, R3, S.B. Shetye, R4, S.R. Ganbavale, Advocates.
Headnote:Maharashtra Scheduled Castes, 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 - Sections 8, 9 and 15 - Caste claim. Claimant, claiming that he belongs to such caste mentioned in caste certificate issued by competent authority, required to discharge his burden as per Section 8 of Act and establish that no belongs to such caste.
On the backdrop of the provisions of Sections 8 and 9 of Caste Certificate Act, 2000 it will be useful to consider the provisions of Section 15 of the Caste Certificate Act, 2000 which creates a bar of jurisdiction of the Civil
Court and contemplates that no Civil Court shall have a jurisdiction to entertain, to continue or to decide any suit or shall pass any decree or order or execute wholly or partially any order, if the claim involved in suit or proceeding, or if the passing of such decree or order or if such execution would in any way be contrary to the provisions of this Act.
Provisions of section 15 of the Caste Certificate Act, 2000 make it explicitly clear that the Civil Court shall have no jurisdiction to entertain any suit or proceeding or shall pass any decree or order or execute the same if it would in any way be contrary to the provisions of this Act. The joint reading of Sections 8, 9 and 15 of the Caste Certificate Act, 2000 would demon that the burden of proof to establish that the person belonged to the caste mentioned in the Caste Certificate issued by the Competent Authority is on the claimant who claims to belong to such caste as per the Section 8 of the Caste Certificate Act, 2000. Since the Caste Scrutiny Committee is vested with all the powers of the Civil Court, it is open for the claimant to adduce such evidence in this regard in order to discharge his burden as required by the provisions of Section 8 of the Caste Certificate Act, 2000 and establish that he belongs to such caste. Similarly since the Competent Authority, the Appellate Authority and the Scrutiny Committee all are vested with all the powers of the Civil Court, the Legislature has barred the jurisdiction of the Civil Court to entertain a suit or a proceeding or pass any decree or order if execution thereof would in any way will be contrary to the provisions of this Act as per the provisions of Section 15 of the Caste Certificate Act, 2000. The clear legal position which emerges from the purport of Sections 8, 9 and 15 of the Caste Certificate Act, 2000 is that the candidate who has obtained caste certificate from the Competent Authority, is required to prove and establish that he belongs to such caste or tribe as mentioned in the Caste Certificate, and therefore it is open for him to adduce such evidence to establish his caste claim before the Caste Scrutiny Committee during the verification proceedings conducted under Section 6(2) of the Caste Certificate Act, 2000, since the Scrutiny Committee has all the powers of the Civil Court and therefore the jurisdiction of the Civil Court is barred to entertain the suit as per the provisions of Section 15 of the Caste Certificate Act, 2000.
Maharashtra Scheduled Castes, 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 - Section 10(4) - Disqualification. Where caste certificate of petitioner was neither cancelled by Caste Scrutiny Committee nor by High Court therefore election of petitioner cannot be terminated retrospectively by invoking deeming fiction provided in Section 10(4) of Act.
Maharashtra Scheduled Castes, 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 - Section 10(4) - Exercise of power under. For exercising power under Section 10(4) of Act, two conditions required to be satisfied, i.e. person contested election for local authority procured false caste certificate and such false certificate was cancelled by Caste Scrutiny Committee under Section 7(1) of Act, 2000. - Section 10 of the Caste Certificate Act, 2000 needs to be considered in the light of provisions of Section 7(1) of the Act which contemplates that against person not belonging to any of the Scheduled Castes, Scheduled Tribes etc. has obtained a false certificate to that effect either for himself or his children, the Scrutiny Committee, suo motu or otherwise is entitled to 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 procedure as prescribed. Sub- section (4) of Section 10 mandates that a person shall be disqualified for being a member of any statutory body if he has contested the election for local authority Co- operative Society or any statutory body on the reserved seat for any Scheduled Caste, Scheduled Tribe etc. by procuring a false caste certificate as belonging to such caste, on cancellation of such false certificate by the Scrutiny committee, the election of such person shall be deemed to have been terminated retrospectively. It is therefore clear that before invoking power/jurisdiction under sub-section (4) of Section 10 of the Caste Certificate Act, 2000 there are two conditions required to be satisfied, namely, (i) the person who has contested election for local authority has procured false caste certificate; (ii) such false certificate has been cancelled by the Caste Scrutiny Committee by exercising power and by following procedure under Section 7(1) of the Caste Certificate Act, 2000. In the instant case as already observed hereinabove, no action as contemplated under Section 7(1) of the Caste Certificate Act, 2000 has been taken either by the Caste Scrutiny Committee or by the High Court vide judgment and order dated 1.7.2011 and therefore the impugned order dated 10.1.2012 passed by the Commissioner being inconsistent with the provisions of sub- section (4) of Section 10 of the Caste Certificate Act, 2000 cannot be sustained in law.
Maharashtra Scheduled Castes, 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 - Section 15 - Jurisdiction. Since Caste Scrutiny Committee is vested with all powers of Civil Court hence jurisdiction of Civil Court to entertain suit is barred by Section 15of Act.
D. Sinha, J.
Rule, returnable forthwith. Learned counsel for the respective respondents waives service.
Heard finally by consent of parties.
2. The writ petition is directed against the communication dated 10.1.2012 issued by the Commissioner of Kolhapur Municipal Corporation whereby retrospectively terminating the election of the petitioner as a Corporator.
3. The learned counsel for the petitioner has submitted that the petitioner obtained a caste certificate on 15.5.2010 from the competent authority whereby it is certified that the petitioner belongs to “Pancham” caste, which is recognized as “other backward class”. The competent Caste Scrutiny Committee verified the caste claim of the petitioner and issued Validity Certificate on 19.5.2010.
4. The learned counsel for the petitioner has submitted that the petitioner contested the election of respondent no. 2 – Kolhapur Municipal Corporation which was held on 30.10.2010 from Ward No. 12 which was reserved for “other backward class”. The petitioner was elected in the said election by majority of votes. One Smita Maruti Mani – respondent no. 4 herein who had contested the election from Ward No. 12 against the petitioner was defeated in the said election by the petitioner. She filed a writ petition in this Court bearing No. 1855 of 2011, challenging the Validity Certificate issued to the petitioner by the Caste Scrutiny Committee. Counsel for the petitioner has submitted that respondent no.4 has never challenged the election of the petitioner by filing an election petition as contemplated under the provisions of the Bombay Provincial Municipal Corporation Act, 1949 (“BPMC Act”) nor there was any prayer to that effect made in the said writ petition. This Court vide Order dated 1.7.2011 set aside the Validity Certificate issued to the petitioner on the ground that neither the caste claim of the petitioner was referred to the Police Vigilance Cell nor the statutory procedure applicable in this regard was undertaken by the Committee. It is contended by the learned counsel for the petitioner that the matter was remanded back to the Caste Scrutiny Committee for fresh decision in accordance with law without recording the finding by this Court that the Caste Certificate issued to the petitioner was a false document.
5. The learned counsel for the petitioner has contended that the petitioner received a communication dated 10.1.2012 signed by the Commissioner, Kolhapur Municipal Corporation whereby the petitioner is informed that the election of the petitioner to Kolhapur Municipal Corporation from Ward No. 12 is retrospectively terminated. Being aggrieved by the said communication dated 10.1.2012 issued by the Commissioner, the petitioner has approached this Court by filing the present writ petition under Article 226 of the Constitution of India.
6. The learned counsel for the petitioner has contended that the Commissioner has seriously erred in terminating the election of the petitioner without issuing any notice or giving any hearing to the petitioner and therefore the impugned communication dated 10.1.2012 being violative of principles of natural justice cannot be sustained in law and is liable to be set aside on this sole ground alone.
7. The learned counsel for the petitioner has submitted that even otherwise the impugned communication issued by the Commissioner, retrospectively terminating the election of the petitioner as Councillor is ex facie illegal and cannot be sustained in law. It is further contended that the petitioner while filing his nomination paper for the election in question had submitted his Caste Certificate and also the Caste Validity Certificate issued by the Caste Scrutiny Committee and thus has fully complied with the provisions of Section 5B of the BPMC Act. Thus setting aside the Validity Certificate by the High Court on the technical ground and remanding matter back to the Caste Scrutiny Committee for reconsideration does not either amount to cance
