Bombay High Court
Jaimala Jageshwar Barapatre vs Union Of India (Uoi) And Ors. on 12 October, 2007
Equivalent citations: 2008(3)BOMCR357, 2008(1)MHLJ428
Author: A.H. Joshi
Bench: A.H. Joshi, R.C. Chavan
JUDGMENT A.H. Joshi, J.
1. As the pleadings are complete, by consent of parties, petition is taken up for final disposal. Hence, Rule. Rule is made returnable forthwith, and heard finally.
2. Petitioner herein claimed to be belonging to Halba - Scheduled Tribe. She had applied for, and was issued the Certificate dated 31st March, 1993, certifying her to be belonging to Halba - Scheduled Tribe. Based on this Certificate, petitioner contested the election as a Corporator in the general elections to Nagpur Municipal Corporation, and has been elected. The petitioner's tribe claim was subjected to scrutiny. Petitioner's tribe claim has been scrutinized, and is invalidated by order dated 13th June, 2007. Petitioner has challenged said order of invalidation by this petition.
3. Petitioner has also challenged the constitutional validity of 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 (for brevity, hereinafter referred to as "Act No. 23 of 2001"), and Rules framed thereunder.
4. It would be convenient to deal with one after other challenges in sequence hereinafter.
Constitutional Validity The challenge to the constitutional validity of the "Act No. 23 of 2001", as urged by the petitioner, can be summarized as follows:
(a) The subject of legislation - "Act No. 23 of 2001", is not covered by any of the Entries contained in the State List, nor is found in the Concurrent List. The residuary clause i.e., Entry No. 97 would enable the Union Legislature to pass such a law and hence the State Legislature has no power.
(b) The State is not in a position to show its legislative authority to legislate on the subject covered.
(c) In case of Dattatraya Ramrao Thorat v. State of Maharashtra and Ors. 2003(5) Mh.LJ. 539, the challenge was as to competence of the State Legislature to render a candidate duly elected to be disqualified under Sub-section (4) of Section 10 of the said Act in view of provision to that effect already contained in Sections 12 and 16(2A) of the Bombay Provincial Municipal Corporations Act, 1949, and Article 14 of the Constitution of India, which, therefore, does not preclude challenge on other grounds. The challenge to the constitutional validity of the "Act No. 23 of 2001" J is still open notwithstanding the Judgment of this Court.
5. The challenge to constitutional validity has been replied by learned Additional Govt. Pleader Mrs. Bharti Dangre by urging as follows:
(a) That, the enabling provisions to legislate under which the legislation, in question, is competent, are namely:
(i) Entry Nos. 2, 13, 46, 20, 23 and 25 of Concurrent List;
(ii) Entry No 41 of the State List;
(iii) The legislation has been enacted in compliance with mandate given by Hon'ble Supreme Court in the verdicts in cases of (i) State of Maharashtra v. Abhay and Ors. , (ii) Ku. Madhuri Patil and Anr. v. Addl. Commissioner, Tribal Dept. and Ors. and (iii) Director of Tribal Welfare, Govt. of U.P. v. Laveti Giri and Anr. ;
Therefore, challenge to constitutional validity on the ground of lack of legislative competence is without any substance.
(b) None else, except the State Legislature has the legislative competence to enact the law governing proper grant of benefits of reservations emerging in various fields to the persons belonging to various castes or tribes within the territory of the State of Maharashtra as well provide for certification of claim of social status for enabling the citizen concerned to avail the benefit available within and even outside the State and in various other fields. No other authority or the State than the State of origin of caste/tribe etc., concerned can certify the social status of persons who are claiming the benefit based on social status.
(c) In absence of enacting "Act No. 23 of 2001", the field was bound to be governed by Executive directions issued by the State Government as modified in view of the Judgment given in above referred three cases decided by Hon'ble Supreme Court.
(d) The procedure contemplated is in relation to issuance and verification etc., of the status and certificate with larger details through this statute. The State Legislature has translated into a legislative act the dictum of Apex Court in "Act No. 23 of 2001."
(e) Such act of translating a judicial precedent into a legislative enactment is, therefore, beyond the compass of further judicial review as to its constitutional validity since what this Court is being called upon by the petitioner is to scrutinize the correctness of the dictum of the Apex Court as translated into a legislative enactment.
Analysis of Rival Submissions
6. On plain reading of the Entries from State List and Concurrent List relied upon by the Addl. Govt. Pleader, we find that the statute, in question, is, with no ambiguity, found to be squarely covered by these Entries.
This Court finds that the question as to in which amongst the entries the subject on which the legislation impugned is enacted, therefore, turns out to be a question of a formal debate.
7. This Court is in total agreement with Point Nos. (a) to (e) contained in foregoing para No. 8. These points raised by the State have gone unrefuted, and we find that those are unrefutable. State has acted perfectly within the dictum of Hon'ble Supreme Court.
8. With this discussion, the issue relating to constitutional validity is considered to be properly answered and any further exercise of discussing a large number of judgments relied upon by petitioner's Advocate is considered to be wholly unwarranted.
Documentary Evidence before Committee
9. Perused the record annexed to the petition as well as record of the Committee. It is seen that in the application furnished by the petitioner for issue of the Caste Certificate as well as for referring the case for scrutiny to the Scrutiny Committee, the petitioner did not give any information as to the place of origin and about ancestors of petitioner's paternal side.
10. In support of her application, petitioner has furnished affidavits dated 22nd and 26th December, 2006, which are at pages 41 and 49 respectively of the record of the Committee. In these affidavits, the petitioner has given the family tree of her husband up to his grand-father - Atmaram Changoji and the name of her husband - Jageshwar's brother - Manohar along with their children. In these affidavits as well as in case of contents of application in Form-E (which is at page 45), the petitioner did not give any information, whatsoever, about her paternal side.
11. It is seen from the Roznama of the Committee that the Committee called for the report of Vigilance Cell. The Officers of Vigilance Cell called at the petitioner's residence on 25th January, 2007 as well as on 17th February, 2007. The petitioner did not co-operate, and avoided to meet the officers of Vigilance Cell. A lady, who represented herself to be "Snehal Barapatre" to be daughter-in-law of the petitioner, informed the officers that the petitioner was out of house as well she has no time.
12. The Police Inspector, the member of team visiting petitioner's house, who had called at petitioner's residence on 17th February, 2007, delivered a letter dated 17th February, 2007 to petitioner's daughter-in-law and obtained an acknowledgment on its office copy. Through this letter, petitioner has been informed that though the officers intimated about their visit on 25th January, 2007 and 17th February, 2007, accompanied by a Research Officer, no information could be received from the petitioner and, therefore, the petitioner was called to appear before the Vigilance Cell on 20th February, 2007 at 10.00 a.m.
13. The petitioner did not appear before the Vigilance Cell on the given date or thereafter. The officers of Vigilance Cell, therefore, visited Khapa, the place of origin of petitioner's father as well as husband and collected certain documents.
14. During this visit to village Khapa, the Vigilance Cell recorded statement of Yadavrao Bijewar, aged 71 years. He revealed following information:
(a) He is a resident of village Khapa.
(b) He knows father of Jaimala Barapatre.
(c) He knows the family of Jaimala's husband.
(d) Jaimala was married within the caste.
(e) He is married to sister of Jageshwar Barapatre - husband of the petitioner.
(f) He gave the occupation of the caste to be weaving and told that mother tongue as well as dialect of the caste is Koshtau.
(g) He gave details of family tree of Ramchandra, father of Jaimala, the petitioner.
Original statement of Yadavrao Bijewar is at Pages 61 and 62 of the record of Committee.
15. Vigilance Cell also recorded statement of Vithuram Krishnaji Barapatre, aged 60 years. He has revealed following information:
(a) He is a resident of Khapa.
(b) The occupation of his caste is weaving.
(c) Jaimala was married to Jageshwar within the caste, and he is cousin of petitioner's husband - Jageshwar.
(d) He gave details of family tree of his ancestors consisting of ancestors of Jageshwar.
Original of the statement of Vithuram is at pages 63 and 64 of the record of the Committee.
16. Vigilance Cell also collected certain documents, namely:
(i) A copy of record of Birth Register at Serial No. 317/801 showing entry of birth of Ramchandra Ganpati - Moundekar and indicating his caste to be Koshti.
(ii) Copy of affidavit sworn by Shrawan son of Changya Atmaram Barapatre furnished before Headmaster, Sarvodya Primary School, Khapa affirming that Jageshwar Changobaji was born on 27th December, 1956 and he belongs to Halba and occupation is weaving.
(iii) Extract of Admission Register of Sarvodaya Primary School, Khapa, pertaining to Shrawan son of Changya Atmaram Barapatre showing his date of birth to be 28th August, 1935 and he was admitted to school on 1st March, 1943. This certificate shows caste of Shrawan to be Koshti and occupation weaving.
17. On the basis of information collected by the Vigilance Cell, it has furnished its report along with documents collected by it and statements of witnesses. The report is dated 23rd February, 2007 and is at pages 57 to 77 with enclosures of the record of Scrutiny Committee.
In this report, the Vigilance Cell has recorded its opinion that petitioner belongs to caste Koshti.
This opinion has been endorsed by Research Officer, stating that he does not agree with the petitioner's tribe claim.
18. A Show-cause-Notice dated 6th March, 2007 forwarding a copy of the report of Vigilance Cell along with its annexures was sent to the petitioner by Registered Post Acknowledgment Due as well as by hand delivery. The envelope mailed by Registered Post is acknowledged by the petitioner on 10th March, 2007, of which acknowledgment in petitioner's own handwriting is seen at page 85.
Insofar as the copy sent by Hand Delivery is concerned, the petitioner has received it some time later through her husband.
19. Before the petitioner responded to Show-cause-Notice, petitioner's Advocate - Shri B.U. Sonkusre furnished his Vakalatnama as he had done in cases of six other corporators, along with a letter dated 2nd March, 2007. Followed by furnishing a Vakalatnama, he submitted another letter dated 8th March, 2007, as was done by him in cases of other six corporators. This is a common letter and he furnished the following documents as was done in other cases, namely:
(1) A photo copy of affidavit dated 23rd February, 2007, which contains prototype information as given in case of all other cases, copy whereof is at page 89.
(2) Copy of extract of Book titled as "Linguistic Survey of India Vol. VII - Indo-Aryan Family" (pages 107 to 115).
(3) A Note titled as "Janganana Ahawalachya Anushangane Halbanche Vichar" (Some ideas pertaining to Halbas furtherance to Report of Census)(pages 117 to 162).
(4) A Note titled as "Swatantryapurviche Halbanchya Sandarbhatil Purawe" (Evidences relating to Halbas prior to independence)(page 163 to 193).
(5) Copy of Govt. Resolution dated 9th July, 1998 to urge that Research Officer - Mr. Sawarkar is not competent to hold enquiry etc. This document is at pages 195 to 199.
20. After the petitioner received a copy of Show-cause-Notice and the report of Vigilance Cell, she has furnished an application which is dated 14th March, 2007, in which she denies the copy of report delivered to her husband by Hand Delivery and omits to mention as to Show-cause-Notice along with the copy of report received by Registered Post Acknowledgment Due. She has stated that since she was busy in the official business of the Corporation, she could not furnish reply and prayed for a month's time.
Petitioner was then sent intimation calling her for hearing telegraphically as well as by Hand Delivery. These intimations are dated 9th April, 2007.
21. Petitioner's Advocate then furnished a letter of request, stating he ought to have been sent intimation instead to the petitioner. The petitioner, however, submitted applications dated 23rd March, 2007 and 24th April, 2007 and raised an objection about the manner in which date and time was written in the notice dated 9th April, 2007. She also disclosed that she has not received 'authorized' copy of the notice of show cause etc., and that she would furnish her reply only after she would receive the notice in a proper form and mode.
22. Yet, by letter dated 26th April, 2007, petitioner submitted evidence in support of her claim. This evidence in the form of documents are at pages 251, 253, 255, 257, 259, 261 and 263, the description whereof is as follows:
(a) Attested Xerox copy of a School Leaving Certificate of Lilawati Ramchandra Ganpatrao Khapekar showing her caste to be Halbi.
(b) Xerox copy of Extract of Admission Register in respect of Lilawati Ramchandra Ganpatrao Khapekar, in which her caste is shown as "Halbi."
(c) Attested xerox copy of Primary School Certificate in respect of Manohar Changya wherein his caste is shown to be Halba.
(d) Xerox copy of Extract of Admission Register pertaining to Changya Atmaram Barapatre mentioning his caste as "Halba."
(e) Xerox copy of a Certificate dated 8th December, 1976 issued by Shri Ram Hedaoo, the then Member of Parliament in favour of Ramchandra Ganpatrao Khapekar certifying him to be belonging to Halba.
(f) Xerox copy of School Leaving Certificate of Manohar Changya, Barapatre issued by Headmaster, Sarvoday Primary School, Khapa, showing his caste to be "Halba."
23. On 26th April, 2007, the petitioner and her -husband also appeared before the Officer of Vigilance Cell, who recorded their statements. In her statement again, the petitioner gave details about her husband. She has revealed in the information that:
(a) Her mothertongue and dialect are Marathi and Koshtau.
(b) That the traditional occupation of her tribe is weaving.
Petitioner's husband, however, did not give information, except about giving details, of his family tree.
24. Considering the evidence furnished by the candidate, it is seen that the report of Vigilance Cell was again called which was submitted on 5th May, 2007 which is at page 265. It accompanies the statements of the candidate and her husband referred to in foregoing para, and other documentary evidence, namely:
(a) Extract of Property Register showing:
House No. 233-B purchased by Ramchandra Ganpat and Gulab Khapekar, wherein along with Ramchandra Ganpat, the word "Koshti" is mentioned.
(b) The extract of Admission Register of Lilawati, sister of petitioner, is also called, in which her caste is shown to be "Halbi."
(c) Extract of the Admission Register of Shrawan Changya, brother of petitioner's husband as well as Changya Atmaram shows their caste and occupation to be Koshti and weaving respectively.
25. In the aforesaid background, the case has been proceeded for hearing by tire Scrutiny Committee.
Analysis of Documentary Evidence done by Committee
26. From the documents brought before Committee, petitioner's foundation is based on two separate categories, namely:
(1) claim based on documentary evidence relied upon by the petitioner, and (2) claim based on literature, such as treatise pertaining to Castes and Tribes in this region and around.
27. It would be useful to ascertain as to how the Scrutiny Committee has examined the evidence on record. It is seen that the Committee has divided into two parts the evidence on record. First part relates to one pertaining to petitioner's paternal side and another to husband's side.
Evidence on Paternal Side
28. In its decision, in para No. 3 which is seen at Pages 38 to 40 of the paper-book, the Committee has listed and discussed about documents and evidence relied upon by petitioner which relate to her and from her father's side. The documents relied upon by the petitioner are in all fifteen. Discussion by Committee reveals as follows:
(a) First two documents are (1) the application for issue of Certificate, and (2) application for scrutiny, and those shall be dealt with in last sub-para of this para.
(b) Item No. 3 : Attested xerox copy of School Leaving Certificate of Ku. Jijabai i.e. the petitioner:
In this Certificate, in Column No. 4, caste of the student Jijabai (Jaimala, the petitioner) is mentioned as "Halba". This certificate would prove that petitioner's tribe was recorded at the time of her admission in the school as "Halba."
(c) Item No. 4 : The Certificate issued by Ram Hedaoo, Member of Parliament, in favour of Ramchandra Khapekar:
This Certificate has no evidentiary value and, therefore, need not be discussed.
(d) Item No. 5 : Caste Certificate of Jaimala Jageshwar Barapatre:
This document is the Certificate under scrutiny and has no evidentiary value.
(e) Item No. 6: The notice issued by Ghat In-charge in respect of death of candidate's father - Ramchandra Khapekar:
No caste is mentioned in it and, therefore, it does not prove the tribe claim or any corroboration.
(f) Item No. 7 : Attested xerox copy of Caste Certificate of Bhumesh Tulshiram Khapekar:
In absence of scrutiny and proof of relation of Bhumesh Tulshiram Khapekar, this document is of no assistance to the petitioner.
(g) Item No. 8 : Attested xerox copy of the Duplicate Primary School Leaving Certificate of Ku. Lilawati Ramchandra Ganpatrao Khapekar issued by the Headmaster, Bastarwari Marathi Primary School, wherein her caste is shown as "Halhi", and Item No. 12 : Unattested xerox copy of Extract of Primary School Admission Register pertaining to the petitioner issued by In-charge Headmistress, Mehandibag Marathi Primary School, Nagpur, indicating the caste as "Halba":
The said documents are of no use to the petitioner, as those are Xerox copies, and are not proved.
(h) Item No. 9 : Unattested xerox copy of an extract of the Primary School Admission Register in respect of Ku. Lilawati Ramchandra Khapekar issued by Headmaster, Bastarwari Marathi Primary School, Nagpur, Item No. 10 : Unattestad xerox copy of Birth Certificate of the petitioner Mrs. Jaimala Jageshwar Barapatre, (nee Jijabai Ramchandra Ganpatrao Khapekar) issued by Municipal Corporation, Nagpur, and Item No. 11 : Unattested xerox copy of Death. Certificate of petitioner's father - Ramchandra Ganpatrao Khapekar issued by Nagpur Municipal Corporation:
The above documents do not help the petitioner as caste/tribe is not mentioned therein.
(i) Insofar as the application form of the petitioner and her affidavits which are Document Nos. 1, 2, 14 and 15, are concerned, we have perused those from original record of the Committee produced before us. In these documents petitioner was to furnish information as follows:
(a) Column No. 9 - Place of residence prior to 1958 : "Nagpur".
(b) Column No. 10 - Place whether petitioner's father has property : 'Nil'.
(c) The reason for leaving original place : 'Nil'.
29. In relation to other documents relied upon by the petitioner, those pertain to the documents relating to the husband's side. Though the Committee has discussed those in detail, the candidate's caste is determined from her father's side and not from her husband's side and further and detailed discussion on this point is not required. Moreover, petitioner's Advocate has strongly criticized the decision of Committee for discussing these documents.
30. It is necessary to appreciate as to how case shaped before the Scrutiny Committee which can be summarized as follows:
From the report and evidence collected by Vigilance Cell, what reveals is as follows:
(a) The mothertongue of candidate is Marathi/Koshtau.
(b) The traditional language of the tribe is shown to be Koshtau.
(c) The place of tribe is shown to be Khapa, Tq. Saoner, Distt. Nagpur.
(d) The family is residing at the present place since grand-father's time.
(e) The occupation of community is said to be weaving.
(f) The information was collected from the relatives whose names are supplied by the petitioner in the application and format.
(g) The petitioner has not disclosed as to when the family is said to have left Khapa.
(h) Only evidence pertaining to the parental side of the petitioner was of Lilawati Ramchandra Khapekar, in which case, her caste has been recorded as "Halbi".
(i) As documents from her husband's side in respect of Shrawan Barapatre and Changdeo Atmaram are concerned, record shows that their caste is shown to be "Koshti."
31. Further we find that assessment of evidence and information given by the petitioner before the Committee reveals that the evidence did not emerge a conclusion that the petitioner belongs to Halba - Scheduled Tribe. Barring her oral claim that she belongs to Scheduled Tribe, in a very crude and rude language, the petitioner challenged Vigilance Cell and we find that those imputations are without substance.
32. In the background that the Vigilance Cell in its first and subsequent reports opined unfavourably to petitioner's claim of being a tribal - Halba, it was the turn of the petitioner to prove her claim. As it is revealing from record, all that she has done is:
(a) produced the information relating to her husband's side.
(b) did not produce information relating to her father's side.
(c) did not give any details about place of origin and relied upon solitary evidence of her having belonged to Halba, i.e. by way of School Leaving Certificate of her own and of her sister Lilawati and extracts of Admission Registers of Manohar as well Changya, i.e., husband's brother and father, to be Halba.
(d) Articles and extracts of Census.
(e) Photocopy of her own affidavit dated 23rd February, 2007 which is word to word, i.e., mechanically done reproduction of similar affidavit the way it was done by other six Corporators facing scrutiny of their tribe claim.
(f) She has not produced any other evidence.
(g) Entries in the school record of petitioner's sister, petitioner's husband's brother and father are, thus, the only pieces of evidence relied upon by the petitioner to prove her claim to be belonging to Scheduled Tribe - Halba.
(h) She has no personal knowledge nor has she procured and produced any evidence to prove that her father belonged to Halba - Scheduled Tribe. Photo copy of her own affidavit has no worth or value of evidence, whatsoever.
33. The petitioner has not brought any evidence, much less any material, whatsoever, suggesting even the semblance that she or her forefathers belonged to Halba - Scheduled Tribe. On the very admission of the petitioner that she is residing at Nagpur from her grand-father's time, and does not know why they shifted to Nagpur, these facts in themselves distance the petitioner from the place of abode of Halba tribals. The material relied upon by the petitioner to say that she belongs to Halba Scheduled Tribe are the weakest and fragile links and can be classified as broken and unrelated pieces of material devoid of value of evidence. rl^l
34. Almost eight Corporators of City of Nagpur Municipal Corporation, whose claim of Halba Tribe was rejected by Committee, had filed Writ Petitions. Present petition was filed after decision in those petitions. Therefore, this petition has been heard later in time and is being decided separately. As noted above in this para, this Court has already considered the issue as to the reliance on the literature now relied upon by present petitioner in cases of (1) Deorao Umredkar v. State of Maharashtra and Ors. Writ Petition No. 2576 of 2007 decided on 6th July, 2007 [since reported in 2008(1) Mh.L.J. 364] and (2) Pushpa L. Pathrabe v. State of Mah. and Ors. Writ Petition No. 2575 of 2005, decided on 6th July, 2007 [since reported in 2008(1) Mh.LJ. 404] and other petitions connected therewith.
In these two cases, this Court has dealt with how reliance placed by the petitioner on treatise and various books is perfunctory, and rejected that claim of petitioners as proved from this literature.
35. This Court finds no hesitation in recording that reliance on same literature and treatise could have been of some use to any claimant, provided the candidate brings his claim within the compass of the issue of affinity and other parameters of Halba tribals (now Scheduled Tribe) as recorded therein. If, on facts, the candidate fails to demonstrate his/her origin and nexus with the tribe by proving all related facts, the reliance of a candidate on this literature and treatise is nothing, but an effort to put the Court to the exertion without bringing on record any nexus with genesis of the tribe claimed by him. This Court would prefer to rely upon two judgments referred to in the foregoing para, and declines to accept the petitioner's plea that relying upon this literature, the petitioner's claim is, in any manner, corroborated, much less proved by these treatises.
36. In the result, the conclusions reached by the Committee that the petitioner has failed to prove her tribe claim cannot be said to be either perverse or illegal, or reached without considering evidence placed on record before the Committee.
In the result, petition does not call for interference. Rule is discharged. In the circumstances, parties shall bear own costs.