Bombay High Court
Sadeek Shaha Ramjan Shaha vs The State Of Maharashtra on 11 September, 2008
Author: F.I. Rebello
Bench: F.I. Rebello, K.U. Chandiwal
(1)
WRIT PETITION NO.3909 OF 2008
Date of decision: 11TH SEPTEMBER, 2008
For approval and signature.
THE HONOURABLE SHRI JUSTICE F.I. REBELLO
THE HONOURABLE SHRI JUSTICE K.U. CHANDIWAL
1. Whether Reporters of Local Papers } Yes/No
may be allowed to see the Judgment? }
2.
To be referred to the Reporter or not } Yes/No
3. Whether Their Lordships wish to see } Yes/No
the fair copy of the Judgment? }
4. Whether this case involves a substantial }
question of law as to the interpretation } Yes/No
of the Constitution of India, 1950 or }
any Order made thereunder? }
5. Whether it is to be circulated to the } Yes/No
Civil Judges? }
6. Whether the case involves an important }
question of law and whether a copy of } Yes/No
the Judgment should be sent to Mumbai, }
Nagpur and Panaji offices? }
[A.S. Bhagwat)
Personal Assistant to
the Honourable Judge.
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.3909 OF 2008
Sadeek Shaha Ramjan Shaha,
Age-24 years, Occu: Agri.
R/o-Kunjikheda, Tq-Kannad,
Dist-Aurangabad.
.... PETITIONER.
VERSUS
1) The State of Maharashtra,
Through its Secretary,
Rural Development Department,
Mantralaya, Mumbai-32.
2) The Collector,
Aurangabad.
3) The Block Development Officer,
Panchayat Samiti Kannad,
Tq-Kannad, Dist-Aurangabad.
4) The Tahasildar,
Kannad, Tq-Kannad,
Dist-Aurangabad.
5) Committee for the Scrutiny
Divisional Caste Certificate
Scrutiny Committee,
Aurangabad Division, Aurangabad,
Committee No.1 (Aurangabad).
6) Gulsherka Maheboobkhan Pathan,
Age-40 years, Occ: Agri.,
R/o-Kunjikhed, Tq-Kannad,
Dist-Aurangabad.
7) The Superintendent of Police,
(Vigilance Cell), Aurangabad,
Tq. & Dist-Aurangabad.
.... RESPONDENTS.
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2
...
Mr.V.A. Jadhav Advocate for the
Petitioner.
Mr.S.K. Tambe, A.G.P. for Respondent
Nos. 1, 2, 3 and 4.
Mr.C.K. Shinde Advocate for Respondent
No.5.
Mr.M.V. Ghatge Advocate for Respondent
No.6.
...
CORAM: F.I. REBELLO
AND
K.U. CHANDIWAL, JJ.
DATE : 11TH SEPTEMBER, 2008.
JUDGMENT:(PER F.I. REBELLO, J.)
1. Rule. Heard forthwith.
2. The Petitioner claims as to belong to "Chhapparband" which is notified as a Vimukta Jati (V.J.). He was elected as member of Gram Panchayat, Kunjikhed for a seat reserved for V.J. The caste certificate of the Petitioner was sent for verification to the Committee constituted for verification of the caste claims. The Committee ::: Downloaded on - 09/06/2013 13:50:48 ::: 3 by its order dated 12/6/2008 negatived the claim of the Petitioner. It is this order, which is the subject matter of the present Petition.
3. The Petitioner professes the Muslim faith.
The State Government what has notified the "Chhapparband" as Vimukta Jati, noticed difficulties faced by the persons claiming as "Chhapparband" which is included at Serial No.14 in the list of Vimukta Jatis, the Government of Maharashtra issued a circular dated 5th January, 1999. The relevant translated portion of which reads as:
"After considering all the aspects mentioned in their request application, the Government hereby directs that those who have claimed to be the members of 'Chhapperbandh' Muslim community and those who are to be given certificates to this effect and also those who have suffixed their names with the word "Shah", in such case the record of their fore-fathers be verified and it should be seen that the persons use to wander in the garb of 'Fakir' and were indulged in coining fake currency and were trying to bring it into usage. If, proper proof in respect of such characteristics are submitted to the competent authority, then the caste certificate be issued to them as per rules. However, it would not be proper to regard that any of those except using the term "Shah" should not be included in ::: Downloaded on - 09/06/2013 13:50:48 ::: 4 "Chapperbandh" community (alongwith Muslims). Members of Hindu community or even the members of Muslim community who are not using the term "Shah" can also be included in the Chapperbandh community."
. The State Government thereafter it appears to have noted that in case of persons who have suffixed against their names the word "Shah", then the record of their fore-fathers, as set out therein, be considered, to verify whether they belong to 'Chhapparband' community. At the same time, the Government also noted because the term "Shah" is not included, would not that merely preclude a caste certificate being issued if otherwise the applicant was able to satisfy from other material that he belongs to 'Chhapparband'.
4. The circular of the State Government in the matter of producing evidence of indulging in coining fake currency was creating difficulties in the matter of proof and as such the Government issued another circular on 21st December, 2002 and clarified as under:
"Each person applying for getting caste certificate, should produce proper evidence on the point that he belongs to Chhapparbandh Caste. What will be the ::: Downloaded on - 09/06/2013 13:50:48 ::: 5 nature of necessary evidence? It will depend on the different facts of each matter. The condition about counterfeiting of coin and bringing it in currency is cancelled as per Government Circular of Social Welfare Cultural Activities and Sports Department No. CBC-1495/378/ C.No.57/MVK-5, dated 5th January, 1999, for getting caste certificate of Chhapperbandh Caste. That condition has been cancelled by this Government Circular."
. Both these circulars were in respect of obtaining caste certificates and not for the purpose of determining their caste validity.
5. Government issued another circular dated 29th June, 2006, which apart from being addressed to the competent authority issuing the caste certificate, was also addressed to the Caste Scrutiny Committee. In this, it was stated that to examine whether a person belongs to 'Chhapparband' community, the following could be borne in mind:-
(i) Is he a Muslim?
(ii) In his name is "Shah" included?
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(iii) Whether his ancestor record shows as
"Fakir"?
. The circular thus stated that, if these
three factors are there, then there is no
difficulty to issue caste certificate.
6. The Petitioner has produced several documents before the Committee including a document "Khasara Patrak" issued by the Tahasildar Office, Kannad, which according to the Petitioner, showed an entry as "Chhapparband". The Committee insofar as this document is concerned, noted that it does not mention caste. The main challenge which the Petitioner made to the Order of the Committee, was that the Vigilance Report was called for from the Vigilance Cell. This Report was not made available to the Petitioner in advance, to give his say thereon. From the order of the Committee it is clear that on the date of the hearing, the Petitioner was represented by his Advocate who had perused the Vigilance Report.
The Committee in its order, has made a note that neither the Petitioner nor his Advocate made grievance about the supply of the Vigilance Report ::: Downloaded on - 09/06/2013 13:50:48 ::: 7 to them during the course of hearing. The Committee noted that this would amount to sufficient compliance.
. In our opinion, merely because the document was made available at the time of hearing, by itself would not result in holding that the principles of natural justice were satisfied, at least on the facts of this case and considering the controversy. An order rejecting a caste or tribe claim has serious repercussions as to the caste or tribe status of the person concerned.
The order of the Committee is final. There is no Appeal provided against that order except by way of a challenge before this Court in the exercise of its extra ordinary jurisdiction. The jurisdiction of Civil Court is expressly barred.
This Court, in the exercise of its extra ordinary jurisdiction, does not act as fact finding Court.
In our opinion, therefore, in the matter involving verification of the caste or tribe claim, the procedure has to be followed strictly, and an applicant should not be denied fair and reasonable opportunity. In our opinion, in the instant case the failure to give copy of the Vigilance Report, ::: Downloaded on - 09/06/2013 13:50:48 ::: 8 specially it being adverse to the Petitioner/ applicant, must result in holding that prejudice has occurred to the Petitioner. The order on that count is liable to be set aside. Consequent to the rejection of the caste claim, there is a further direction to register a police complaint.
7. The Committee has noted that in the school records, there is no record showing "Chhapparband' previous to 21/11/1961, on which date by the Notification "Chhapparband" was recognised as Vimukta Jati (Nomadic Tribe). The Committee further noted that in the school records the Petitioner had claimed that word "Fakir" was mentioned and therefore to arrive at a conclusion that he belongs to "Chhapparband", V.J.
8. The questions that arise for consideration is, firstly, the effect of the Government circulars. It will be clear from the Government circulars of 5th January, 1999 and 24th December, 2002 that those were only in the matter of issuance of caste certificate. The competent authority to issue caste certificate, had to bear those aspects in mind while issuing the caste ::: Downloaded on - 09/06/2013 13:50:48 ::: 9 certificate. There were, therefore, no directions to the Caste Scrutiny Committee. Similarly, the communication of 29th June, 2006 though addressed amongst others, to the Caste Scrutiny Committee, is basically in the matter of issuance of caste certificate. Considering the provisions of the 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, for short the 'Act', and the Rules framed thereunder, any claimant seeking to get his tribe or caste certificate validated, will have to comply with the said procedure as set out therein and the Committee would be bound by the procedure laid down under the Act and the Rules.
9. Having said so, the question that emerges, would if there be absence of documentary evidence before 1961, preclude a person from being considered as belonging to the caste or tribe? We may gainfully refer to the following observations of the Supreme Court in Madhuri Patil v/s.
Additional Commissioner, AIR 1995, SC 94.
94 This is ::: Downloaded on - 09/06/2013 13:50:48 ::: 10 what the Supreme Court observed:
"The entries in the school register preceding the Constitution do furnish great value to the declaration of the status of a caste. Hierarchical caste startification of Hindu social order has its reflection in all entries in the public records. What would, therefore, depict the caste status of the people inclusive of the school or college records , as the then census rules insisted upon. Undoubtedly, Hindu social order is based on hierarchy and caste was one of the predominant factors during pre-Constitution period........"
.
Insofar as the Hindu community is concerned the Supreme Court has noted that Hindu Social Order is based on hierarchy and caste was one of the predominant factors. Public records inclusive of school or college records would depict their caste. This, however, need not be true in cases of applicants who may not be a part of Hindu Social Order but converts from the same. Long years after conversion are bound to reflect in the absence of entries in the public records including in the school and college records as members of those communities who have converted to other faiths for religious or other reasons may not show the caste in its record. As noted in Madhuri ::: Downloaded on - 09/06/2013 13:50:48 ::: 11 Patil, supra, supra in those areas where census were carried out and we presume under Brtish Rule those census or school or college records showed 'Caste' in the Hindu Social Order. Absence therefore of caste in the records of the other communities before the Presidential Notification or State Notification cannot be held against them. The issuance of Notification recognising that community as belonging to an OBC or Vimukta Jatis or De-notified Tribes may have resulted in the members of these communities no longer in the Hindu Social Order showing their V.J. or N.T. status or other caste status in their school, college or other records. These documents post notification can also be considered in the absence of documents before the Presidential or State Notification. The evidentiary value has to be considered by the Committee on its own merits.
10. The Scheme of the Act and the Rules have been considered in the unreported Judgment in Writ Petition No. 4068 of 2008 in the case of Mahesh Pralhadrao Lad v/s. State of Maharashtra, decided on 14th July, 2008.
2008 It would clearly indicate
that on many occasions for various reasons, there
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may not be documentary evidence available. This
Court had observed as under:-
"To confer power on the Committee under Section 9 or considering the oral evidence, presumes or pre-supposes the recognition by the Legislature about the inability on the part of many an applicant before the committees to produce documentary evidence. We need not proceed to examine the reasons for the inability of such parties to produce documents. The very fact that the Tribes and Castes are notified as Scheduled Caste and Scheduled Tribes is a recognition This of their backwardness social, and economic.
reasoning would also be made applicable to other castes, considering the mandate of the Legislature as envisaged in Section 9. A Committee, therefore, while conducting the verification for the issuance of the Caste Validity Certificate has to consider the documentary evidence produced, the report of the Vigilance Officer if called for, and other evidence which the applicant may lead in terms of Section 9, and finally adjudicate the matter as a quasi judicial body, unfettered with the strict Rules of evidence, but bearing in mind the principles of natural justice and fair play. Though the strict Rules of evidence will not be applicable, the principles thereof in the matter of consideration of documentary evidence and oral evidence have to be borne in mind."
11. Our attention was invited to a Judgment of learned Division Bench of this Court in a case of Sayeed Shah s/o Badhushah v/s. State of ::: Downloaded on - 09/06/2013 13:50:48 ::: 13 Maharashtra, 2007 (3) ALL MR 770 to point out that in Madhuri Patil (supra) emphasis has been given to the ethnic test, particularly in relation to claim of Scheduled Tribes and that any interpretation to this effect that affinity test shall be imperative for all other castes or De-notified Tribes or claims has not received any judicial sanction, and be not considered as law or precedent. The learned Division Bench in the matter of Sayeed Shah (supra) has further observed as under:
"The test of ethnic linkage and affinity was applied to scrutiny of claim of 'Tribals', because tribals are having their distinction on these points as compared with all other members of civilized society."
. We may only note, as we have reproduced the earlier observations in Madhuri Patil (supra) that Hindu social order is based on hierarchy and caste was and is a predominant factor and the caste of persons normally is identified by the profession, trade or occupation that they were carrying on.
The very fact that the caste has been recognised would be based on the fact that the members of ::: Downloaded on - 09/06/2013 13:50:48 ::: 14 that community have an identity which distinguishes them from those others who belong to another caste or communities. It is , therefore, not impermissible in the absence of any documentary evidence for an applicant to prove by evidence his affinity to a particular caste or tribe which he belongs to. The very fact that the Act permits the oral evidence to be led, is an answer that the Committee is not bound while deciding a claim only to consider documentary evidence. If the test of only documentary evidence was to be applied then many applicants would be precluded from proving their claim before the Committee in the absence of the documentary evidence. Neither the Act nor the Judgments of the Supreme Court have excluded oral evidence being considered by the Committee either in support of the documentary evidence or in absence of the documentary evidence.
12. It was also pointed out to us from the Judgment in Deorao s/o Ganpatrao Umredkar v/s.
State of Maharashtra and others, 2007 (5) ALL MR, 757, that the Committee while considering the burden of proof would be governed by the general ::: Downloaded on - 09/06/2013 13:50:48 ::: 15 law i.e. Indian Evidence Act. The Committee is not a Court but it is a Tribunal constituted under the Act. The burden of proving a claim is on the person/ claimant. The Committee is conferred with some powers available to Civil Court while considering an application.
. These are basically procedural provisions
in the matter of recording of evidence. That by
itself would not make the Tribunal a Court. The
Committee while
igconsidering the claim, has to
consider the Report of the Vigilance Cell. The
Report of the Vigilance Cell would not be a
document which is to be proved considering the
provisions of the Evidence Act. There is no
provision made for cross examination of the
witnesses though it may be open to the Tribunal
where oral evidence is led, to ask questions.
Similarly the strict rules of evidence in proving
documents are not to be followed by the Committee.
What the learned Division Bench in Deoram s/o Ganpatrao Umredkar (supra) observed that general law of evidence would be applicable. As explained by this Court in Mahesh Pralhadrao Lad (supra), (supra) the Tribunal not being a Civil Court, would not be ::: Downloaded on - 09/06/2013 13:50:48 ::: 16 bound by the strict rules of evidence but bear in mind the principles of Evidence Act as also natural justice and fair play.
13. On behalf of the Committee, the learned counsel had drawn our attention to the fact that 'Fakir' is also notified as OBC and 'Chhapparband' is a De-notified Tribe and that mere inclusion of word 'Fakir' by itself cannot result in the Petitioner's establishing that he belongs to 'Chhapparband', ig Nomadic Tribe. We are in agreement with the view expressed by the learned counsel of the Committee. Mere presence of the word 'Fakir' or 'Shah' cannot by itself result in the caste certificate being validated. The applicant will have to establish, by cogent evidence, his affinity to 'Chhapparband', Nomadic Tribe. The burden of proof which is cast on an applicant cannot be taken away by the Circulars, nor have the Circulars done so. The Circulars basically are for issuance of caste certificates.
Considering the provisions of the Act it is not open to any authority to issue any directions to the Committee. The Committee would be bound only by the provisions of the Act and the Rules framed ::: Downloaded on - 09/06/2013 13:50:48 ::: 17 thereunder and proceed to answer the issues as a Tribunal or a quasi judicial authority.
14. For the reasons stated, we are of the opinion that the impugned order has to be set aside and matter be remanded back to the Committee to consider the case in the light of what we have set out in the Judgment. The Petitioner to appear before the Committee on 24/9/2008 at 11.00 a.m. The Committee thereafter to decide the same not later than four months from the said date.
Needless to say that the complainant be also heard in the matter.
. We make it clear that as the order is set aside, directions to launch prosecution against the Petitioner are also set aside.
. Rule is made absolute accordingly. There shall be no order as to the costs.
[K.U. CHANDIWAL] [F.I. REBELLO]
JUDGE. JUDGE.
asb/u/wp3909.08
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