Bombay High Court
Mohan Parasnath Goswami vs The Committee For Scrutiny Of Caste ... on 10 March, 2003
Equivalent citations: 2003(3)BOMCR481
Author: D.Y. Chandrachud
Bench: C.K. Thakker, D.Y. Chandrachud
JUDGMENT D.Y. Chandrachud, J.
1. Rule, made returnable forthwith. Counsel for the Respondents waive service of rule on behalf of the respective Respondents.
A. The compass of the controversy
2. Reservation of seats for the Scheduled Castes, Scheduled Tribes and for the Backward Classes is an important component of the policy of the State of ensuring electoral representation to these communities in institutions of local self governance. Equally, there is legislative recognition of the concern that affirmative action programmes must reach out to those who genuinely belong to the communities for whom they are designed. Election to a local self governing body on a reserved seat, of a candidate who does not belong to the community for whom the seat is reserved is destructive of the object and purpose of the reservation. A candidate who does not belong to the class for whom the seat is reserved in a democratically elected body does not truly represent the class. This concern led to the enactment by the legislature of two Acts in the State of Maharashtra. The first is 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, 2000. The second of them is the Maharashtra Municipal Corporations and Municipal Councils, Nagar Panchayats and Industrial Townships (Amendment) Act, 2000. By the first of the aforesaid enactments, the State legislature has enacted provisions inter alia for the issuance of caste certificates, scrutiny and verification of caste certificates, cancellation and confiscation of the false caste certificates, withdrawal of benefits secured on the basis of false caste certificates including electoral disqualification and penalties against persons who have fraudulently obtained such certificates. By the second enactment, amendments were made to statutes relating to Municipal Corporations, Municipal Councils and Nagar Panchayats so as to incorporate provisions for the disqualification of Councillors who have been elected to reserved seats on caste certificates invalidated and cancelled by the Scrutiny Committee on the ground of the caste certificate being based on a false claim or declaration. In the present case, the caste certificate of the Petitioner who was returned as an elected candidate in one of the Wards of the Thane Municipal Corporation in a reserved constituency has been held to be invalid. The Scrutiny Committee has directed that a prosecution will have to be launched against the Petitioner for having furnished false information in order to obtain a caste certificate. In accordance with the relevant statutory provisions which we will refer to in the course of this judgment, the Petitioner is deemed to have vacated his office upon the declaration of the invalidity of his certificate and its cancellation by the Scrutiny Committee on the ground provided in the statute. The order of the Scrutiny Committee is impugned in these proceedings under Article 226.
B. The facts
3. The Petitioner contested election to the Municipal Corporation of Thane from Ward No. 19-C in the month of February 2002. The electoral seat in the aforesaid Ward was reserved for candidates belonging to the Other Backward Classes. The Petitioner was declared elected, from the aforesaid Ward. The Petitioner contested the election claiming to belong to the Gosavi community which is recognized as a Nomadic Tribe by a Government Resolution dated 21st November, 1961. According to the Petitioner, on 15th November, 1989 a caste certificate was issued to him by the Executive Magistrate, Thane stating that he belonged to the Hindu Gosavi community. This, according to him, was on the strength of a certificate dated 27th September, 1989 issued by the Tahsildar, Patti, Pratapgarh, Uttar Pradesh, stating that the Petitioner belonged to the Gosai community. The Petitioner's case is that the original of the aforesaid caste certificate was misplaced and that he applied for the issuance of a fresh caste certificate on the strength of a photocopy of the earlier caste certificate dated 15th November, 1989. The Petitioner was thereupon issued a caste certificate dated 28th January, 1997 by the Sub Divisional Magistrate, Thane, The Petitioner thus contested the election on the strength of his claim that he belonged to a Nomadic Tribe, the Gosavi community and was elected on 11th February, 2002.
4. A complaint was made by the Second Respondent questioning the claim of the Petitioner to belong to a Nomadic Tribe upon which a notice was issued on 10th July 2002 by the Divisional Social Welfare Officer directing the Petitioner to appear before the Committee for Scrutiny and Verification of Caste Claims. The Committee referred the matter to the Police Vigilance Cell for its report. A copy of the report made upon investigation was furnished to the Petitioner. There is no dispute about the fact that the Petitioner was furnished a due opportunity of being heard and was heard by the Scrutiny Committee. An adequate opportunity was given to the Petitioner to produce all the documents upon which he sought to place reliance.
C. The Order of the Scrutiny Committee
5. By the impugned order dated 30th January, 2003, the Scrutiny Committee has invalidated and cancelled the caste certificate of the Petitioner and has come to the conclusion that the Petitioner had obtained the certificate to the effect that he belonged to the Gosavi community on the basis of false information. The Committee has, therefore, directed that the Petitioner should be prosecuted. The Scrutiny Committee has found in its order that the Petitioner had been admitted to the K.G. Joshi College of Arts and N.G. Bedekar College of Commerce on 20th June, 1984 and that he had left the institution on 31st May, 1985. In the certificate dated 28th January, 1997 issued by the College, it has been recorded that the Petitioner was a Hindu - Non-B.C. student (i.e. a non Backward Class student). The Scrutiny Committee noted that the Petitioner had, however, not produced the College leaving Certificate before the Sub Divisional Officer, Thane when he sought the issuance of a caste certificate. The Scrutiny Committee held that it was obligatory for the Petitioner, while applying for the issuance of a caste certificate to produce relevant documents such as his own School Leaving Certificate and Birth Certificate, the caste certificate of his father, School Leaving Certificate of his father and an extract from the service book of his father in the event that he was in service. The Petitioner, the Committee held, failed to produce these material documents either relating to him or to his father when he obtained the caste certificate on 28th January, 1997. In fact, despite the existence of the certificate of the K.G. Joshi College of Arts, Thane this was not produce before the Sub Divisional Officer. In the circumstances, the Scrutiny Committee held that the Caste Certificates had been issued in 1989 and in 1997 without a due application of mind, merely on the basis of the information which was supplied by the Petitioner. The Scrutiny Committee noted that in the certificate issued by the Tahsildar, Patti, Pratapgarh, Uttar Pradesh, there is a reference to the Petitioner belonging to the Gosai community. Even though this community was a Backward Caste in the State of Uttar Pradesh, it was not so at the material time in the State of Maharashtra and even when the caste certificate was issued on 28th January, 1997. The Sub Divisional Officer clearly erred in failing to take note of the factual position that the Gosai community was not the same as the Gosavi community listed as a Nomadic Tribe in Maharashtra, nor was it a sub caste thereof. On the basis of these findings, the Scrutiny Committee invalidated and cancelled the caste claim of the Petitioner. Consequential directions were issued.
D. The Submissions of Parties
(i) The Petitioners
6. Learned counsel appearing on behalf of the Petitioner urges that under Maharashtra Act XXIII of 2001 and Maharashtra Act 11 of 2002, a disqualification is not automatically attracted upon the invalidation of a caste certificate. Counsel urged that under the amendment to the Bombay Provincial Municipal Corporations Act, 1948, disqualification is attracted consequent upon the Caste Certificate Verification Committee declaring the caste certificate of the Councillor to be invalid and cancelling the same "on the ground of the same having been based on a false claim or declaration". Similarly, it was urged that under Maharashtra act XXIII of 2001, it is the procurement of a false caste certificate which is cancelled by the Scrutiny Committee that attracts the provision for disqualification. The power to order the confiscation and cancellation of a caste certificate, it was urged, is where the Committee is of the view that the certificate was obtained fraudulently. In the present case, it was contended, there is no clear finding that there was either a false declaration or a false claim by the Petitioner to belong to the Gosavi community. Counsel urged that it was only in the operative part of the order that the Scrutiny Committee had adverted to the Petitioner having obtained the caste certificate on the basis of false information. Moreover, it was urged that in the present case, the Petitioner had produced a certificate issued by the Tahsildar, Patti, Pratapgarh, Uttar Pradesh which revealed that he belonged to the Gosai community. Since despite the aforesaid certificate, the competent authority had issued a caste certificate to the Petitioner, it was submitted that there was no suppression of fact by the Petitioner. Finally, it was urged that on 14th February, 2001, the Gosai community has also been included in the list of Nomadic Tribes in pursuance of a Government Resolution. The Scrutiny Committee had, however, held that the Gosai caste was not a Nomadic Tribe in Maharashtra upto 14th February, 2001 and that in any event the Petitioner did not belong to the Gosavi community. The Scrutiny Committee has also held that the Gosai community is not a sub caste of the Gosavi community or a synonym thereof.
(ii) The Respondents
7. On the other hand, it was urged on behalf of the Respondents that in the present case, the Scrutiny Committee arrived at findings of fact on the basis of the material on the record and the report of the Vigilance Officer. Learned counsel urged that there was no complaint that there was any infraction of the principles of natural justice. The order passed by the Scrutiny Committee records a clear finding to the effect that though the Petitioner was in possession of the College Leaving Certificate which showed that he was a Hindu Non-B.C. candidate, this was suppressed at the time when the caste certificate was obtained. The findings of the Scrutiny Committee, it was urged were clear enough therefore to sustain the conclusion that the Petitioner had obtained a caste certificate on the basis of a false claim or false declaration that he belongs to the Hindu Gosavi community. The Scrutiny committee had also adverted to the fact that the Petitioner had failed to produce relevant material that would establish his claim of belonging to the Hindu Gosavi community. In the circumstances, it was submitted that the interference of this court was not warranted, particularly having regard to the object of enactment which is to deal strictly with cases of candidates who contest elections to reserved seats though they do not belong to the community for whom seats are reserved.
E. The Legislation in Maharashtra
(i) Maharashtra Act XXIII of 2001
8. The State legislature enacted 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, 2000. The Act received the assent of the President and was published in the Maharashtra Government Gazette on 23rd May, 2001. Prior to the enactment of the Act, the State Government had through Government Resolutions, set up Scrutiny Committees for the verification of Caste and Tribes claims. These Committees now find statutory recognition in the provisions of the Act. Section 3 of the Act requires any person belonging to a reserved category who seeks a benefit in public employment, for admission into any educational institution or for contesting an elective post to a local authority or a cooperative society or other benefits listed out therein to apply to the Competent Authority for the issuance of a caste certificate. Section 4 enables the Competent Authority to issue a caste certificate after satisfying itself about the genuineness of the claim. An appeal against an order of rejection is provided by Section 5. Section 6(1) provides that the Government shall constitute by notification in the Official Gazette, one or more Scrutiny Committees for verification of caste certificates issued by Competent Authorities under Sub-section (1) of Section 4. Section 7 of the Act is of some significance, in that it provides for confiscation and cancellation of a false caste certificate. Section 7 reads as follows:
"7. (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 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."
Section 8 provides that in an application to the Competent Authority under Section 3; in any enquiry conducted by the Scrutiny Committee or the Appellate Authority or in any trial of an offence under the Act, the burden of proving that the person belonged to such Caste, Tribe or Class shall be on such claimant applicant. Section 10 of the Act then provides that the benefits secured on the basis of a false caste certificate are liable to be withdrawn. Sub-sections (1) and (4) of Section 10 provide as follows:
"10. (1) Whoever not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category secures admission in any educational institution against a seat reserved for such Castes, Tribes or Classes, or secures any appointment in the Government, local authority or in any other Company or Corporation, owned or controlled by the Government or in any Government aided institution or Co-operative Society against a post reserved for such Castes, Tribes or Classes by producing a false Caste Certificate shall, on cancellation of the Caste Certificate by the Scrutiny Committee, be liable to be debarred from the concerned educational institution, or as the case may be, discharged from the said employment forth will and any other benefits enjoyed or derived by virtue of such admission or appointment by such person as aforesaid shall be withdrawn forthwith."
"(4) Notwithstanding anything contained in any law for the time being in force, 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 seat reserved for any of Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category by procuring a false Caste Certificate as belonging to such Caste, Tribe or Class on such false Caste Certificate being cancelled by the Scrutiny Committee, and any benefits obtained by such person shall be recoverable as arrears of land revenue and the election of such person shall be deemed to have been terminated retrospectively."
A criminal offence and penalty is provided for in Section 11 of the Act in the following terms:
"11. (1) Whoever, -
(a) obtains a false Caste Certificate by furnishing false information or filing false statement or documents or by any other fraudulent means; or
(b) not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category secures any benefits or appointments exclusively reserved for such Castes, Tribes or Classes in the Government, local authority or any other company or corporation owned or controlled by the Government or in any Government aided institution, or secures admission in any educational institution against a seat exclusively reserved for such Castes, Tribes or Classes or is elected to any of the elective offices of any local authority or Co-operative Society against the office, reserved for such Castes, Tribes or Classes by producing a false Caste Certificate;
shall, on conviction, be punished, with rigorous imprisonment for a term which shall not be less than six months but which may extent upto two years or with fine which shall not be less than two thousand rupees, but which may extend upto twenty thousand rupees or both.
(2) No court shall take cognizance of an offence punishable under this section except upon a complaint, in writing, made by the Scrutiny Committee or by any other officer duly authorised by the Scrutiny Committee for this purpose."
(ii) Maharashtra Act 11 of 2002
9. Apart from the enactment of the aforesaid legislation by the State legislature, the provisions of several local Acts including the Mumbai Municipal Corporation Act, the Bombay Provincial Municipal Corporations Act, 1949, the City of Nagpur Corporation Act, 1948 and the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 came to be amended by Maharashtra Act 11 of 2002. The Act called the Maharashtra Municipal Corporations and Municipal Councils, Nagar Panchayats and Industrial Townships (Amendment) Act, 2000 received the assent of the Governor and was published in the Official Gazette on 8th January, 2002. The amendments made to the local Acts provide a disqualification of a candidate elected as a councillor on the basis of a false claim or caste certificate. In so far as the Bombay Provincial Municipal Corporations Act, 1949 is concerned, this being the applicable Act in the present case, Section 10 of the Act was amended by the insertion of Sub-section (1B) and (1C) therein in the following terms:
"(1B) (a) A person shall be disqualified for being a Councillor or for contesting an election for being elected as a Councillor, for a period of six years, if, an order is passed by the concerned authority, under Section 12 or as the case may be, Section 16, holding that such person was elected as a Councillor to a seat which was reserved for a member belonging to a Scheduled Caste, Scheduled Tribe or a Backward Class of Citizens (hereinafter referred to as "a reserved category"), on the basis of a false claim or a false Caste Certificate declaring that such person belonged to such reserved category.
(b) Such period of disqualification shall be computed with effect from the date of passing of such order by the concerned authority.
(1C) (a) Notwithstanding anything contained in Sub-section (1B), a Councillor who has been elected to a reserved seat as mentioned in Sub-section (1B), shall be disqualified for being such Councillor consequent upon the Caste Certificate Verification Committee or any other Competent Authority specified by the State Government for the purpose of scrutiny of the Caste Certificates, declaring the Caste Certificate of such Councillor to be invalid and cancelling the same, on the ground of the same having been based on a false claim or declaration made by such person claiming to be belonging to the reserved category, and thereupon the Councillor shall be deemed to have vacated his office on and from the date of declaration of such Certificate to be invalid and cancellation of the same by the said Committee or the Competent Authority.
(b) On any person having been disqualified for being a Councillor and consequently, his seat as such Councillor having become vacant under Clause (a), the State Government shall, by notification in the Official Gazette, disqualify such person for being elected or being a Councillor for a period of six years from the date of such Order."
10. Sub-sections (1B) and (1C) of Section 10 provide for two situations in which an elected councillor may be disqualified. Under Sub-section (1B) a councillor shall be disqualified, upon the passing of an order under Section 12 or, as the case may be under Section 16, holding that the person was elected as a Councillor to a seat reserved for Scheduled Castes, Tribes or a Backward Class of Citizens on the basis of a false claim or false caste certificate declaring that such person belongs to such reserved category. Sub-section (1B) inter alia deals with a situation where an election petition is presented against a returned candidate and it is found upon an adjudication therein that the candidate was elected as a councillor on the basis of a false claim or a false caste certificate. Sub-section (1C) on the other hand deals with a situation where the Caste Certificate Verification Committee or other Competent Authority specified by the State Government has declared the caste certificate of the Councillor to be invalid and has cancelled the same on the ground of the certificate having been based on a false claim or declaration. Under Clause (a) of Sub-section (1B), the disqualification is for a period of six years from the date of the order of the concerned authority. Similarly, under Clause (a) of Sub-section (1C) the Councillor is deemed to have vacated his office on and from the date of declaration of such certificate to be invalid and its cancellation by the Scrutiny Committee. Thereupon under Clause (b) of Sub-section (1C) the State Government is required by a notification in the Official Gazette, to disqualify such a person for being elected or being a Councillor for a period of six years. Sub-section (1B) of Section 10 is prefaced by a non obstante provision.
F. The Ground for Electoral Disqualification
11. On behalf of the Petitioner, it has been submitted that the mere invalidation of the claim of a candidate to belong to a particular caste, Tribe or Backward Class of citizens is not by itself a ground for disqualification. That submission has merit. Ex facie, in Clause (a) of Sub-section (1C) of Section 10, the disqualification is attracted consequent upon the Scrutiny Committee declaring the caste certificate to be invalid and cancelling the same "on the ground of the same having been based on a false claim or declaration made by such person claiming to be belonging to the reserved category". There is in this sense a degree of consistency in the statutory theme enacted in the provisions of Section 10(1C) of the Bombay Provincial Municipal Corporations Act, 1949 and the provisions of Section 10(4) of Maharashtra Act XXIII of 2001. Disqualification under Section 10(1C) results where the ground for the invalidation and cancellation of the caste certificate is that it is based on a false claim or declaration by such person claiming to belong to a reserved category. In Section 10(4) of Act XXIII of 2001, the disqualification is attracted where a person has contested an election for a local authority, co-operative society or statutory body on a reserved seat by procuring a false caste certificate and on such false caste certificate being cancelled by the Scrutiny Committee. The power of cancellation is conferred upon the Scrutiny Committee by Section 7(1) of the said Act, under which the Committee is empowered to inquire into the correctness of the certificate and to cancel and confiscate it if it is of the opinion that the certificate was obtained fraudulently. Therefore, on an interpretation of Sections 7(1) and 10(4) of Maharashtra Act XXIII of 2001 on one hand, as well as of Section 10(1C) of the Bombay Provincial Municipal Corporations Act, 1949 as amended by Maharashtra Act 11 of 2002 on the other, it would be apparent that the legislature has required that apart from a mere invalidation of a caste certificate, an additional factor has to exist before a candidate can be regarded as being disqualified from holding electoral office. In Section 10(1C) as amended by Act 11 of 2002, the additional factor is that the caste certificate should have been held to be invalid and must have been cancelled on the ground of the certificate having been based a false claim or declaration. In Section 10(4) of Act XXIII of 2001, the additional factor is the cancellation of a false certificate. This has to be read together with Section 7 under which the power of cancellation arises on the ground that the certificate was obtained fraudulently.
G. The Principles Enunciated by the Supreme Court
12. In Madhuri Patil v. Additional Commissioner Tribal Development and Ors. , the Supreme Court issued directions regarding the constitution of Scrutiny Committee to verify caste or tribe claims of candidates who claim to belong to reserved categories. The rationale for such scrutiny was explained in paragraph 13 of the judgment of the Supreme Court thus:
"The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee..... It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude."
It was in pursuance of the directions of the Supreme Court in Madhuri Patil's case that Vigilance Cells came to be constituted for the purpose of investigation into caste and tribe claims.
13. The judgment of the Supreme Court in Madhuri Patil's case also lays down the standard of judicial review which the High Court, in a petition filed under Article 226 must adopt, particularly when it deals with a finding of fact recorded by the Scrutiny Committee. The Supreme Court held that "the Committee is empowered to evaluate the evidence placed before it" and when it "records a finding of fact, it ought to prevail unless it is found to be vitiated on judicial review by the High Court, such review being "subject to limitations of interference with findings of fact". The Supreme Court held that when the Scrutiny Committee "considers all the material facts and records a finding", the High Court ought not to reverse its findings "though another view, as a court of appeal may be possible." The jurisdiction of the High Court is "to see whether the Committee considered all the relevant material placed before it or has not applied its mind to relevant facts which have led the Committee to ultimately record the finding. Each case must be considered in the backdrop of its own facts.
14. The importance of an expeditious scrutiny into caste and tribe claims to detect cases of misuse of reservations by persons who do not genuinely belong to communities for whom reservations are intended was once again emphasized by the Supreme Court in its judgment in Director of Tribal Welfare, Government of A.P. v. Laveti Giri and Anr. . In Gayatrilaxmi Bapurao Nagpure v. State of Maharashtra , the Supreme Court held that "undoubtedly in cases of this type, the burden heavily lies on the applicant who seeks such a certificate". The supreme Court held that this does not, however, mean that the authorities have no role to play in finding out the correctness or otherwise of the claim for the issuance of a caste certificate.
15. These principles which have been laid down by the Supreme Court must illuminate the interpretation to be placed on the legislation enacted by the State of Maharashtra which forms the basis of interpretation in the present proceedings. In every case, it is for the Scrutiny Committee to determine the validity of the Caste Certificate which has been obtained by the candidate. The underlying procedure which must be followed by the Scrutiny Committee has to be in accordance with the directions issued by the Supreme Court in Madhuri Patil's case and which now finds statutory recognition in Maharashtra Act XXIII of 2001. In determining whether the candidate had made a false claim or declaration, the Scrutiny Committee has to assess and evaluate the facts and circumstances of each case.
H. The Question of Interpretation: "False Claim or Declaration" and "False Caste Certificate".
Section 10(1C) postulates that the Caste Certificate Verification Committee has to invalidate and cancel the caste certificate on the ground of the certificate having been based on a false claim or declaration made by a person claiming to belong to a reserved category, before a disqualification results. The expression "false" must bear a meaning and connotation in the context of a statute where it is used. Black's Law Dictionary (Seventh Edition page 618) defines the expressions "false" as something which is untrue, deceitful, lying, not genuine or in authentic. The definition therein also goes on to state that "what is false can be so by intent, by accident or by mistake". Whether an absence of intent or an accident or mistake should be sufficient to make a statement "false" must in our view depend upon the statutory context and the object or purpose underlying the use of the phrase. In P. Ramanatha Aiyer's Law Lexicon (1997 edition page 704) the expression "false" is defined in terms which would shed a considerable degree of light in this case:
"False, erroneous, untrue; the opposite of correct, or true. The term does not necessarily involve turpitude of mind. In the more important uses in jurisprudence the word implies something more than a mere untruth; it is an untruth coupled with a lying intent..... or an intent to deceive or to perpetrate some treachery or fraud. The true meaning of the term must, as in other instances often be determined by the context. See 9 CWN 799 = 30 Cal 123 (FB)."
Similarly, a "false claim" is defined as "a claim by one of more, than his due, and amercement, and punishment therefor." (Id at page 705). In the context of the provisions of Section 43 of the M.P. General Sales Tax Act, 1959, the Supreme Court held in the Cement Marketing Co. of India Ltd. v. The Assistant Commissioner of Sales Tax that a return filed by the assessee cannot be regarded as false unless there was an element of deliberateness in it. The Court held that:
"It is possible that even where the incorrectness of the return is claimed to be due to want of care on the part of the assessee and there is no reasonable explanation forthcoming from the assessee for such want of care, the Court may, in a given case, infer deliberateness and the return may be liable to be branded as a 'false return'."
Since, however, the provision in question was penal in character, the Supreme Court held that "unless the filing of an inaccurate return is accompanied by a guilty mind, the section cannot be invoked for imposing penalty". (At para 5 pp 347-8).
16. In the present case, it needs emphasis that Section 10(1C) of the Bombay Provincial Municipal Corporations Act, 1949 provides for electoral disqualification. The consequence of the Invalidation of a caste certificate and its cancellation on the ground of its being based on a false claim or declaration is that the Councillor is deemed to have vacated his office on the date of the declaration of invalidity and cancellation. Thereupon, the statute provides, the state Government shall by notification in the Official Gazette disqualify such person for being elected as or being a Councillor for six years. Serious consequences therefore ensue from the order of invalidation and cancellation of the caste certificate. The legislature therefore advisedly did not regard the mere cancellation and invalidation of the caste certificate as a ground for disqualification but mandated that a disqualification will ensue where the invalidation and cancellation is on the ground set out by the legislature, namely that the certificate is based on a false claim or declaration by a person claiming to belong to a reserved category.
17. In so far as Maharashtra Act XXIII of 2001 is concerned, the Scrutiny Committee's power to cancel and confiscate the caste certificate is based on the formation of an opinion by the Committee that "the certificate was obtained fraudulently". (Section 7(1)). On a false certificate being cancelled, a disqualification results under Section 10(4). Section 11 of the Act creates a criminal offence and provides a penalty of imprisonment inter alia for obtaining a false caste certificate by furnishing false information or filing a false statement or documents or by any other fraudulent means. Similarly, a person elected to an elective office of a local authority or co-operative society by producing a false caste certificate is subject to penal sanctions. These are stringent provisions, conceived in the public interest and invite serious consequences for infractions.
18. In so far as the question of fraud or fraudulent conduct is concerned, it would be apposite to refer to the provisions of Section 17 of the Contract Act in which 'fraud' means and includes the following acts committed with a view to deceive another party to a contract:
"(1) the suggestion, as to a fact, of that which is not true by one who does not believe ti to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fitted to deceive; and (5) any such act or omission as the law specially declares to be fraudulent."
An active concealment of a fact by a person who has knowledge or belief of the fact may thus amount to fraudulent conduct. The law may in certain cases comprehend a duty to inform. "A suppression of material facts can render that which is stated false." (Anson on Contracts, 26th edition, A.G. Guest ed p.210). An "active concealment" is defined in Black's Law Dictionary as "the concealment by words or acts of something that one has a duty to reveal." A "fraudulent concealment" is described as "the affirmative suppression or hiding, with the intent to deceive or defraud, of a material fact or circumstance that one is legally (or morally) bound to reveal." A "passive concealment" is that "act of maintaining silence when one has a duty to speak."
19. An applicant for the issuance of a caste certificate must in his conduct and dealings in that regard display utmost good faith. Section 8 of Maharashtra Act XXIII of 2001 casts the burden on the claimant applicant (i) seeking the issuance of a caste certificate; (ii) in the enquiry conducted by the Competent Authority, Scrutiny Committee or Appellate Authority; and (iii) in a trial of an offence under the Act of establishing that he belongs to the concerned Scheduled Caste or Tribe, Denotified or Nomadic Tribe or Other Backward Class. Undoubtedly, the Competent Authority which issues the caste certificate has to satisfy itself of the genuineness of the claim and follow the procedure prescribed. The Scrutiny Committee to whom a caste certificate is forwarded has to similarly conduct an enquiry in the manner prescribed, involving, as the Supreme Court laid down in Madhuri Patil's case, the Vigilance Cell and a due opportunity of being heard to the candidate. Yet there is an affirmative duty on the applicant for the issuance of a caste certificate to disclose all circumstances within his knowledge which have a bearing on the legitimacy of his claim. A candidate who sets up a claim cannot be heard to say that having asserted that claim, he will leave it to the authorities to ferret out information to the contrary. True enough, there are genuine cases where poverty, ignorance and illiteracy of the members of those communities for whom benefits are reserved and the social prejudice or discrimination practiced on a systemic scale may pose serious hurdles in producing material from the remote past. Bona fide cases must evince empathy so that genuine candidates are not excluded. Equally, the candidate must and is bound to make a full disclosure of all material facts within his knowledge by producing relevant documentary and other material which will enable a proper assessment of his claim to be possible. A suppression of fact or a failure to produce documentary material available with the candidate will sustain an inference that there was a deliberateness in his conduct to establish a false caste claim. At the same time, it is necessary to emphasize that the question as to whether a caste certificate has been based on a false claim or declaration is a question which has to be decided on the basis of the documentary and other material and the surrounding circumstances of the case. The Committee which decides the question cannot be subjected to the impossible ask of probing the inner recesses of the mind of the applicant. To expect the Committee to discharge an impossible function like that will defeat the purpose of the legislation. The element of deliberateness implicit in the lodgment of a false claim or declaration in hence to be deduced from the material before the Committee, the conduct of the claimant and the circumstances of the case. When the Court reviewing the decision of the Committee under Article 226 considers the case, the order of the Committee must be assessed in its entirety in deciding whether any interference is warranted. The reviewing Court is not an appellate forum. The Court is not a fact finding authority nor does it substitute its own opinion for that of the Committee.
I. The Correctness of the Decision of the Scrutiny Committee
20. A caste certificate was issued to the Petitioner on 15th November, 1989 by the Executive Magistrate, Thane. This according to the Petitioner was misplaced and, he applied again in January 1997. On 28th January, 1997, the Sub Divisional Magistrate, Thane issued a caste certificate to the Petitioner certifying that he belonged to the Hindu Gosavi Tribe which was recognized as a Nomadic Tribe under Government Resolution dated 21st November, 1961 as amended from time to time. The case of the Petitioner in paragraph 3(b) of the Writ petition is that the certificate dated 15th November, 1989 was issued on the strength of the certificate issued to him by the Tahsildar, Patti, Pratapgarh, Uttar Pradesh. A perusal of the record would reveal that there was a complete failure on the part of the Petitioner to produce any authentic and credible material in support of his claim that he belonged to the Gosavi community. The burden was clearly on the Petitioner to sustain his claim to belong to the Gosavi community both as a result of the position in law laid down by the Supreme Court and by virtue of the provisions of the Section 8 of Maharashtra Act XXIII of 2001. The burden rested upon the Petitioner both when he applied for a Caste Certificate as well as in the proceedings before the Scrutiny Committee, under Section 8. Even the certificate purportedly issued by the Tehsildar, Patti in the State of Uttar Pradesh does not support the claim that the Petitioner belongs to the Gosavi community. On the contrary, it is an undisputed position that the College Leaving Certificate issued by the College where the Petitioner studied reflected the name of the Petitioner as being a Hindu Non-B.C. candidate. The Scrutiny Committee has considered this aspect of the matter and has taken serious exception to the fact that apart from suppressing this vital document, the Petitioner had failed to produce relevant documentary evidence such as his School Leaving Certificate and Birth Certificate and the relevant documentary material relating to the status of his own father. There was hence a wilful suppression of fact by the Petitioner and a failure to produce relevant material in support of his claim to belong to the Gosavi community. These are findings which are adequate in themselves to sustain the conclusion of the Scrutiny Committee that there was an element of willfulness and intent on the part of the petitioner to suppress material which was available with him which would nullify his claim of belonging to the Gosavi community. A suppression of relevant material coupled with a failure to produce any cogent documentary material would in a case such as the present be sufficient to sustain the finding that the caste certificate was obtained on the basis of a false claim or declaration.
21. On behalf of the original complainant an effort has been made before this Court to demonstrate that far from establishing the case of the Petitioner of his belonging to the Gosavi community, the school records of the Petitioner's siblings would show that they have been described as Hindu Brahmins. Learned counsel sought to rely upon the records of the Petitioner's sister Rajpati in whose case the entry is "Hindu Brahmin": his sister Kalpana whose entry shows "Hindu Non B.C.", and sister Sushila in whose case the entry is "Hindu Brahmin". In response to this, the contention of Counsel for the Petitioner is that the Petitioner's father Parasnath Mahavir Goswami hailed from Uttar Pradesh and after coming to Mumbai worked at the Regional Mental Hospital, Thane until his retirement in 1982. The case urged was that Parasnath had earlier been married to Mohana who had borne him four children. Subsequently, the Petitioner's father married Rampati and out of the said wedlock six children including the Petitioner were born. Learned counsel urged that it is the case of the Petitioner that before his mother Rampati married Parasnath she was married to one Ramsamaj after whose death she remarried. According to the Petitioner, the earlier spouse of Rampati was a Brahmin and two children, Jagannath and Indranath were born from the marriage between Rampati and Ramsamaj. Jagannath looked after the siblings, it was urged. An affidavit of Jagannath, the eldest son from the said marriage was filed before the Scrutiny Committee, recording these facts.
22. The affidavit of Jagannath has been duly considered by the Scrutiny Committee. The Scrutiny Committee has held that the children born to Mohana, the first wife of Parasnath, would necessarily acquire the same caste as Parasnath. Similarly the children born to Rampati out of the wedlock with Parasnath would also acquire the caste of Parasnath. The Scrutiny Committee has held that in the circumstances, the Petitioner would acquire the same caste as his father Parasnath and that no part of the documentary record which has been produced before it would support the finding that Parasnath belonged to the Gosavi community. The Scrutiny Committee has also dealt with the question as regards the service record of Parasnath who had worked in the Mental Hospital at Thane. The Scrutiny Committee noted the report of the Vigilance Cell which found that the original record of Parasnath was not available with the Mental Hospital at Thane. Learned counsel appearing on behalf of the Petitioner referred to an application for pension/gratuity submitted by the father of the Petitioner upon his retirement in 1982 in which against the entry "Religion and Nationality" the particulars filled up are Hindu Gosavi. There is no supporting material to establish this claim. The documentary material has been considered by the Committee in its entirety and it would not be open to the Court in the exercise of its writ jurisdiction under Article 226 to reappreciate the evidence and to arrive at its own findings of fact. The Scrutiny Committee has correctly emphasised the point that primary documentary material relating to his father, such as the Birth Certificate or the School Leaving Certificate was not produced by the Petitioner.
23. In the present case, the Scrutiny Committee placed a considerable degree of emphasis on the fact that though the Petitioner was in possession of the College Leaving Certificate issued by the K.G. Joshi College of Arts and N.G. Bedekar College of commerce which showed him as being a Hindu Non-B.C. candidate, that was suppressed when the caste certificate came to be obtained in January 1997. The Scrutiny Committee has also laid a considerable degree of emphasis on the fact that there was a complete failure on the part of the Petitioner to produce any original record either relating to him or to his father which would sustain his claim of belonging to the Gosavi community. Indeed, if the material which has been produced before this Court is perused, it would be clear that there is ab absence of authentic or credible material to support the claim that the Petitioner belongs to the Gosavi community. In the entire record of the proceedings before the Scrutiny Committee and before this Court, there is a striking absence of any genuine, authentic or credible material that would establish that the Petitioner belongs to the Gosavi community.
24. As the facts of the case would demonstrate, almost the exclusive foundation for claiming that the Petitioner belonged to the Gosavi community and obtaining a caste certificate in the first instance was the certificate issued by the Tahsildar, Patti of Pratapgarh, in the State of Uttar Pradesh. Even that certificate was to the effect that the Petitioner belonged to the Gosai community. The Gosai community, it must be noted, was not designated as a reserved community, either as a Nomadic Tribe or otherwise on the date when either of the two caste certificates came to be issued to the Petitioner by the authorities in Maharashtra in 1989 or 1997. The Gosai community, it is common ground, has subsequently been included in the list of Nomadic Tribes in the State of Maharashtra on 14th February, 2001. If the case of the Petitioner was that the genuinely belonged to the Gosai community, he ought to have made an application for the issuance of a caste certificate certifying that he belonged to the Gosai community by producing relevant and cogent material to the effect that he belonged to that community. The Petitioner, it must be noted, has neither made an application for the issuance of a caste certificate to the effect that he belongs to the Gosai community nor did he contest the election of the Thane Municipal Corporation in February 2002 on that basis. In that view of the matter, we are of the view that the findings of fact which have been recorded by the Scrutiny Committee are based on material on record and do not call for any interference in the exercise of the writ jurisdiction under Article 226. The caste certificate of the Petitioner has been held to be invalid and it has been cancelled on the ground of its having been based on a false claim or declaration within the meaning of Clause (a) of Sub-section (1C) of Section 10.
25. Finally, a grievance that was sought to be urged was in respect of a communication dated 3rd February, 2003, by which the Municipal Commissioner informed the Petitioner that he has been declared as disqualified under the provisions of Section 10(1B) and (1C) of the Bombay Provincial Municipal Corporations Act, 1949. The letter of the Municipal Commissioner is only a formal communication. The disqualification under Sub-section (1C) of Section 10 is attracted once the Scrutiny Committee has declared the caste certificate of the Councillor to be invalid and has cancelled the same on the ground of the certificate having been based on a false claim or declaration. The law provides that "thereupon the Councillor shall be deemed to have vacated his office on and from the date of declaration of such certificate to be invalid and cancellation of the same by the said Committee".
26. In the circumstances, having considered the grievance of the Petitioner in these proceedings, we do not find any reason to interfere. The Writ Petition is, accordingly, dismissed. In the circumstances, however, there shall be no order as to costs.