Gujarat High Court
Jagdishbhai @ Jagabhai Pababhai vs State Of Gujarat & on 22 December, 2015
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/13594/2008 JUDGMENT
SPECIAL CIVIL APPLICATION NO.13594 of 2008
For Approval and Signature:
HONOURABLE MR.JUSTICE R.M.CHHAYA Sd/
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Whether Reporters of Local Papers may be
1 NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
Whether their Lordships wish to see the
3 NO
fair copy of the judgment ?
Whether this case involves a substantial
question of law as to the interpretation
4 NO
of the constitution of India, 1950 or any
order made thereunder ?
Whether it is to be circulated to the
5 NO
civil judge ?
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JAGDISHBHAI @ JAGABHAI PABABHAI
MAKWANA....Petitioner(s)
Versus
STATE OF GUJARAT & 10....Respondent(s)
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Appearance:
NOTICE UNSERVED for the Petitioner(s) No. 1
PARTYINPERSON, ADVOCATE for Petitioner(s) No. 1
MR MANAN MEHTA, AGP for Respondent(s) No.15, 711
RULE SERVED for the Respondent(s) No. 6
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 22/12/2015
ORAL JUDGMENT
(1) Heard the petitioner, Mr.Jagdishbhai @ Jagabhai Pababhai Makwana, as partyinperson and Mr.Manan Mehta, learned Assistant Government Pleader for respondent Nos.1 to 5 and 7 to 11. Though served none appears for respondent No.6. (2) By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:
"(A) A writ of mandamus or a writ in the nature of mandamus or Page 1 of 39 HC-NIC Page 1 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT any other appropriate writ, order or direction may kindly be issued directing the respondent to remove Shri A.M. Tiwari as a Chairman as well as Shri A.B. Parmar as a Secretary of the Scrutiny Committee.
(B) A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction may kindly be issued directing the respondent to appoint somebody as a memberchairman of the Scrutiny Committee and also appoint somebody as a secretary of the scrutiny committee.
(C) Pending admission, hearing and final disposal of this petition direct the respondent to remove Shri A.M. Tiwari as a Chairman as well as Shri A.B. Parmar as a Secretary of the Scrutiny Committee.
(D) Pass such other and further orders as may deem fit in the interest of justice.
(E) quash the impugned minute of meeting of 6/10/08 pending admission, hearing and final disposal of this petition, direct to stay the proceeding and cancellation, of the certificate.
(F) Due to subsequent development of concelling the caste certificate, Hon'bl court may quash and set aside the impugned order dated 20.11.2008 and direct the respondents not to take to act on the direction of the order date 20.11.2008 till the court takes their final decision. Hon'ble Court may pass appropriate order as they deem fit."
(3) It appears form the prayers which are amended that during pendency of this petition the caste certificate issued in favour of the petitioner on 04.06.1975 was cancelled by order dated 20.11.2008.
(4) The facts of the case which emerges from the record of the petition are as under:
(5) As per the petitioner, the petitioner belongs to Bharwad Community of Gir, Barda and Alech forest area. That Bharwad Community is declared to be a Schedule Tribe (S.T. for short) by notification dated 29.10.1956 issued by the Page 2 of 39 HC-NIC Page 2 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT Hon'ble the President of India. That the forefathers of the petitioner were residing in the forest area and therefore the petitioner is entitled to be conferred the status of S.T. Bharwad. It appears from the record that Mamlatdar, Bhanvad, issued a caste certificate to the petitioner on 04.06.1975 certifying the petitioner belongs to S.T. Bharwad community.
Petitioner pointed out during course of arguments that he is engineer and was employed in Bharat Petroleum Corporation Limited (BPCL) in the Schedule Tribe category on 17.06.1985.
(6) Record of the petition indicates that one of the officers of the BPCL wrote a letter dated 14.05.1998 to the Commissioner, Tribal Development, State of Gujarat, requesting to verify the caste certificate of the petitioner. That about nine years nothing was done by the authorities of the State of Gujarat. That for the first time on 09.02.2007 the Deputy Commissioner, Tribal Development, State of Gujarat, informed the petitioner as regards verification of the caste certificate of the petitioner. That the petitioner was informed that in spite of the fact that the petitioner was asked to remain present before District Collector, Jamnagar, the petitioner has not remained present and therefore the petitioner was asked to contact District Collector, Page 3 of 39 HC-NIC Page 3 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT Jamnagar. That when the petitioner contacted the District Collector the petitioner was informed that the petitioner was not called upon.
(7) As per the petitioner Vigilance Officer (Tribal Development, Rajkot), asked the petitioner to remain present before him. As averred by the petitioner the petitioner remained present before the Vigilance Officer and submitted all necessary and requisite documents substantiating the fact that the petitioner belongs to S.T. category and on the basis of and on appreciation of evidence, the Vigilance Officer submitted a report before the Secretary, Scrutiny Committee dated 30.03.2007. Record indicates that by further communication dated 09.03.2007 the Secretary, Scrutiny Committee informed the petitioner that verification of the caste certificate of the petitioner is being done by the Scrutiny Committee and the petitioner was asked to remain present before the said committee on 03.04.2007 along with the documents mentioned in the said letter and the documents on which the petitioner relies. That the next meeting of the Scrutiny Committee was held on 04.04.2007 wherein the petitioner submitted the required documents to prove that the petitioner belongs to S.T. category. That the statement of the Page 4 of 39 HC-NIC Page 4 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT petitioner was also recorded on that day, which is part of the record.
(8) Record reveals that thereafter by communication dated 29.05.2007 the petitioner was asked to submit further documents which were demanded by the Scrutiny Committee and was also thereafter asked to remain present before the Scrutiny Committee on 06.08.2007. It is the say of the petitioner that on the said day the petitioner was informed that investigation with regard to the caste certificate of the petitioner shall be carried out by Director, Tribal Research and Training Institute and the petitioner was asked to remain present before the said authority on 22.09.2007 and the petitioner remained present on the said day and submitted written documents.
(9) Record further indicates that the Secretary, Tribal Development Department, thereafter formed a committee comprising of three members i.e. Director, TRTI, Vigilance Officer (Tribal Development), Rajkot and Deputy Director, Training Coordination Branch, Commissioner Tribal Development, Head Office Gandhinagar. It further reveals that such committee conducted the said inquiry and submitted its report dated 05.11.2007 wherein it is clearly stated that the documents produced by the petitioner to the Page 5 of 39 HC-NIC Page 5 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT fact that the petitioner belongs to S.T. gives corroboration to the said fact. Record further reveals that the Scrutiny Committee decided that further inquiry about verification of the caste certificate of the petitioner would be conducted by the Office of the Commissioner, Tribal Development. It is alleged by the petitioner that though no record was available with the office of Commissioner, Tribal Development Department, who was to inquire as per the Scrutiny Committee, the Deputy Commissioner, who was the Secretary to the Scrutiny Committee himself formed an illegal committee, comprising of Deputy Commissioner, Tribal Development himself and his subordinate officers. Such committee constituted by the Secretary himself submitted report dated 13.03.2008. It is the say of the petitioner that the report remained incomplete and thereafter the Committee, so appointed called the various officers from the Forest Department, Revenue Department, as well as DILR, Jamnagar, and directed them to remain present before the Scrutiny Committee on 10.04.2008.
(10) It is alleged by the petitioner that the Scrutiny Committee did not call upon such officers, however, chairman of the committee Page 6 of 39 HC-NIC Page 6 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT approved the same. It is the say of the petitioner that in the meeting of the Scrutiny Committee held on 05.05.2008 the officers of the Forest Department remained present and submitted documents, maps, etc. and also submitted before the Scrutiny Committee that the department does not possess any material or documents as of the year 1956, however, such officers, who remained present before the Scrutiny Committee submitted the documents as on the date on which the same were prepared.
(11) It appears that thereafter the petitioner was called upon by the Deputy Commissioner, Tribal Development Department, by notice dated 16.05.2008 asking the petitioner to clarify why the caste certificate dated 04.06.1975 should not be cancelled. It is alleged by the petitioner that the petitioner was not given any information about the report of the so called committee constituted by the Deputy Director, who was also Secretary of the Scrutiny Committee and therefore the petitioner had to apply for getting the same under the Right to Information Act, 2005. It is further alleged by the petitioner that such information containing 80 pages was given on 27.06.2008 and further information containing 450 pages was given on the next next day i.e. 28.06.2008 and the petitioner was asked to remain present Page 7 of 39 HC-NIC Page 7 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT before the Scrutiny Committee on 30.06.2008 i.e. within a period of one day. It is further stated that by further letter dated 23.06.2008 the petitioner was asked to visit the office of the Deputy Director in order to verify the documents asking the petitioner to remain present for such work on 27.06.2008, however, such letter was received by the petitioner on the next day i.e. on 28.06.2008.
(12) Record indicates that the petitioner was further served with a notice dated 16.05.2008, which was replied to by the petitioner on 14.06.2008 whereby the petitioner informed the authorities that all documents are not supplied to the petitioner and in absence of such documents it would not be possible for the petitioner to give proper reply. That thereafter the petitioner was served with another notice dated 19.06.2008 asking the petitioner to remain present before the Secretary, Scrutiny Committee on 30.06.2008, which was received by the petitioner at Mumbai on 26.06.2008. That on receipt of the said communication dated 26.06.2008 the petitioner wrote letter(s) to Deputy Commissioner as well as Chairman, Scrutiny Committee on 27.06.2008 that the petitioner is not provided all documents and therefore he will not be able to remain present on 30.06.2008. Petitioner has Page 8 of 39 HC-NIC Page 8 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT further averred that as the petitioner received no response from Deputy Commissioner, the petitioner again sent a letter dated 30.06.2008 through facsimile as well as email to the members of the Scrutiny Committee stating the aforesaid aspect and the petitioner also prayed for an adjournment and to grant next date for hearing and even though the petitioner asked for adjournment the petitioner was not granted and as averred in the petition that the petitioner was granted no time to reply of voluminous record consisting of 530 pages and therefore the impugned order is passed without giving proper opportunity of being heard and is in violation of principles of natural justice.
(13) Record also reveals that as thereafter no reply was received, the petitioner approached this Court by way of filing Special Civil Application No.9177/08 before this Court, which came to be disposed of vide order dated 11.07.2008 wherein it is observed thus:
1. Leave to correct the name of the petitioner as 'Jagdishbhai Pababhai Makwana'.
2. The present petition is preferred for appropriate writ to direct the respondent Nos. 1 to 4 not to take any decision pursuant to the Notice dated 16.05.2008 and it is also prayed that opportunity of being heard may be given to the petitioner.
3. Heard Mr.K.D.Shah for Mr.Tushar Mehta for the petitioner and Mr.Pujari, learned AGP for the State Authorities upon advance copy.Page 9 of 39
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4. As such, the initiation of the proceedings by way of Show Cause Notice is not lacking jurisdiction with the authority and it is also an admitted position that uptil now, no order is passed. Therefore, the petition can be said as premature.
5. Mr.Shah, learned counsel appearing for the petitioner however submitted that reasonable opportunity may be given to the petitioner to submit the reply and the opportunity of hearing also.
6. Mr.Pujari, learned AGP states that if an application is made, 15 days time will be given to submit the reply and further 15 days time shall be given for hearing of the matter.
7. In view of the above, if the petitioner moves an application for submitting reply and/or for hearing, the authority shall grant reasonable time as declared and recorded hereinabove.
8. Subject to the aforesaid observations, the petition is not entertained at this stage.
Sd/ (JAYANT PATEL, J.)"
(14) It is further alleged by the petitioner that the petitioner had time and again complained by filing various letters and also relied upon the guidelines issued by the Apex Court in the case of Kumari Madhuri Patil Vs. Additional Commissioner, Tribal Development, A.I.R. 1995 SC 94. It is alleged by the petitioner that though it is shown in the order and the record of the respondents that the petitioner remained present in the meeting held on 06.12.2007 the petitioner was never summoned on 06.12.2007. It is further contended by the petitioner that even though this Court passed order as the aforesaid dated 11.07.2008, the petitioner was informed by communication dated 22.07.2008 that his caste certificate is cancelled. It further Page 10 of 39 HC-NIC Page 10 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT appears that ultimately the petitioner appeared on 06.10.2008 and also conveyed the Chairman of the Scrutiny Committee to inform the petitioner if anything is lacking wherein the petitioner was informed that written submissions will be looked into before passing any further orders.
However, ultimately by order dated 20.11.2008 the caste certificate issued in favour of the petitioner came to be cancelled. Hence, this petition.
(15) It may further be noted that the petitioner has further amended the petition and has raised contentions on the facts which are part of his arguments and therefore they have been dealt with at appropriate time.
(16) Petitioner, the Partyinperson, has taken this Court through the factual matrix arising out of this petition and also submitted a written submission in the form of synopsis as well as the grounds. Petitioner has also relied upon the vital documents viz. the family tree given by TalaticumMantri of Bharatpur Gram Panchayat as well as photocopy of the extract of Village Form No.6 in favour of Bharwad Kumbh Ala being Entry No.233 dated 06.10.1956. It was mainly contended by the petitioner as under:
i) that the caste certificate was issued on Page 11 of 39 HC-NIC Page 11 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT 04.06.1975 on the basis of the evidence, which was produced by the petitioner and even Mamlatdar, Bhanvad, has confirmed about the same, however, record of the year 1975 has been destroyed at the office as the certificate was issued before 34 years of the inquiry. That signature of the Mamlatdar was also verified by the Joint Committee.
ii) Relying upon the notification issued by the Central Government it was contended that the position as on the date of Presidential notification dated 29.10.1956 is to be considered while determining the question whether the petitioner belongs to S.T. or not.
iii) That the caste certificate of the petitioner was issued on 04.06.1975 by Mamlatdar, Bhanvad, on the basis of Masvadi Receipts of the father and grandfather of the petitioner, which is also reflected in the Vigilance Officer's report.
iv) Relying upon the family tree it was contended that his grandfather Kumbha Ala was allotted agricultural land under Maldhari Vasahat Yogna, Rajkot, which clearly reveals that his grand parents were living in forest prior to Presidential notification dated 29.10.1956.
v) That Masvadi Receipts also show that the
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petitioner belongs to the Maldhari Community and such receipts were verified by the competent authority before granting the caste certificate dated 04.06.1975, which is conclusive proof that the family and/or the parents of the Maldhari are dwelling in the forest area.
vi) Relying upon the family tree it was submitted that Paba Kara, who happens to be the great grandfather of the petitioner from the same family stayed in forest area and the petitioner has also relied upon Masvadi receipt dated 09.09.1943, which is of Ranivav Ness. The petitioner has also relied upon another aspect that his great grandfather Paba Kara also given benefit of Rs.120/ as Maldhari, which is also before the Presidential notification dated 29.10.1956.
vii) In addition to the above, it was also contended that Rama Ladha, Daya Gokal, who happen to be of the same family and are cousin grandfathers of the petitioner, who stayed for decades at Bala Ness and the petitioner had also relied upon Masvadi Receipt in their names dated 07.08.1949. It was also contended that Gopalpara Ness and Ranivav Ness are at a distance of 0.5 km. It is further contended that "Ness" means huts, spread across the ness Page 13 of 39 HC-NIC Page 13 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT area in the forest area.
viii)That the Scrutiny Committee while passing the impugned order has discarded opinion of the Vigilance Officer dated 03.03.2007 wherein it is conclusively held by the Vigilance Officer that the predecessors of the petitioner were staying in the forest area in Ness and such opinion is based on Masvadi Receipt dated 09.09.1943 as well as the financial assistance given to the grandfather of the petitioner under Saurashtra Backward Class Board, Rajkot on 14.02.1958.
ix) That there is total breach of the directions and the guidelines issued by the Apex Court in the judgment rendered in the case of Kumari Madhuri Patil (supra) while deciding the case of the petitioner by the Scrutiny Committee.
x) That even as per the said guidelines the Secretary, Scrutiny Committee has only to do the administrative and secretarial work, whereas in the case of the petitioner special interest was taken by the Secretary, who also happens to be the Deputy Director of Tribal Commissionerate.
xi) That three members Committee constituted by the Deputy Director as Secretary of the Scrutiny Page 14 of 39 HC-NIC Page 14 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT Committee was illegally constituted and the petitioner was not even given copy of the report and the very basis of the impugned order in each aspect is based on such report, which was submitted by a illegally constituted committee.
xii) That there is total breach of the guidelines issued by the State Government on the basis of the judgment of Kumari Madhuri Patil (supra) in as much as that the petitioner was deprived not only of the hearing but was also not given documents, which are made the basis of the impugned order.
xiii)That after much difficulties the petitioner had to apply under the provisions of the Right to Information Act, 2005 to get the material on which the committee has passed the impugned order and therefore there is total denial of principles of natural justice while passing the impugned order.
xiv) That because of personal vengeance Deputy Director of the Commissionerate Tribal, who happens to be the Secretary of the Scrutiny Committee, took personal interest, which is beyond the jurisdiction and competence of the Secretary of the Scrutiny Committee.
xv) Relying upon the Government Circular dated Page 15 of 39 HC-NIC Page 15 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT 20.07.2000 (of Tribal Development Department) it was contended that manner in which the Secretary has acted in case of the petitioner is beyond the jurisdiction and power.
xvi) Relying upon the Circular of the Government of India dated 04.03.2005 as well as Resolution of the State Government dated 29.03.2005 it was pointed out that "parents" would mean even the forefathers and the following generation would also fall within the category of S.T. xvii)That even though the Apex Court has provided period of two months to decide the issue about the validity of the caste certificate granted in favour of the petitioner, the said issue lingered for almost more than three years and such inquiry was conducted on the basis of the erstwhile employee of BPCL only with a view to harass the petitioner.
xviii) That the documents which were submitted and relied upon by the petitioner are only referred to in the impugned order and the same are not considered and new material, which was collected by the Secretary by constituting an illegal committee, is made the basis of the impugned order.
xix) That the reasons for which the caste Page 16 of 39 HC-NIC Page 16 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT certificate was given way back on 04.06.1975 to the petitioner is cancelled on the basis of nongermane grounds and/or facts as position as on the day of the presidential notification dated 29.10.1956 is to be considered, whereas the authorities have considered, more particularly as regards the boundary of the forest as is existed after commencement of the Wildlife Protection Act, 1972. That nongermane issues have been taken into consideration and therefore the findings given by the authority in the impugned order are de hors the provisions of the presidential notification dated 29.10.1956 and the same is in violation of the Constitution of India.
xx) Petitioner has also placed reliance upon the following judgments:
(a) Kumari Madhuri Patil Vs. Additional Commissioner, Tribal Development, A.I.R. 1995 SC 94;
(b) Gayatrilaxmi Bapurao Nagpure Vs/. State of Maharashtra, 1996 (3) S.C.C. 685;
(c) State of Bihar Vs. Sumit Anand, 2005 (12) S.C.C. 248;
(d) Anand V/s. Committee for Scrutiny And Verification of Tribe Claims, 2012 (1) S.C.C. 113;
(e) Ramana Dayaram Shetty Vs. International Airport Authority of India & Ors., (1979) 3 S.C.C. 489;Page 17 of 39
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(f) Common Cause, a Registered Society, V/s. Union of India & Ors., AIR 1996 SC 3538; AND
(g) Kishankumar Balubhai Garsar Vs. Collector, Jamnagar & Ors., 2007 (2) G.L.H. 305.
xxi) That with a predetermined mind and with mala fide intention to cancel the caste certificate issued to the petition on 04.06.1975 the proceeding of the Scrutiny Committee were conducted, which is also not as per the constitution of the Scrutiny Committee and even it is alleged that the report is not signed by all the members.
(17) Per contra learned Assistant Government Pleader has relied upon the impugned order as well as the affidavitinreply filed by the State Government authorities in this petition. It was contended that the impugned order is legal and proper and as per the guidelines issued by the Apex Court in the case of Kumari Madhuri Patil (supra). Relying upon the affidavitinreply it was denied that there was any mala fide intention on the part of the Scrutiny Committee and has submitted that the petitioner could not prove his case before the Scrutiny Committee. It was also contended that the documents, which were produced by the petitioner were not sufficient to even prima facie prove that his Page 18 of 39 HC-NIC Page 18 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT ancestor stayed in any forest area and therefore the impugned order is legal and proper and does not require any interference of by Court. Reliance is placed upon the following judgments:
(a) Rameshbhai Mathurbhai Patel Vs. State of Gujarat, AIR 2012 Guj. 106;
(b) Division Bench order of this Court in Letters Patent Appeal No.1236/14 dated 19.11.2014; AND
(c) Learned Single Judge order of this Court in Special Civil Application No.29022903/10.
No other or further submissions have been made by the petitioner as well as the learned Assistant Government Pleader.
(18) Considering the submissions made by the petitioner as well as learned Assistant Government Pleader this Court thought it fit to call for the original record and proceedings of the Scrutiny Committee. The original record indicates that the documents relied upon by the petitioner were very much there before the Scrutiny Committee.
(19) It is a matter of record that by presidential notification dated 29.10.1956 Maldhari or Bharwad communities residing in forest areas of Page 19 of 39 HC-NIC Page 19 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT Gir, Barda and Alech Forest Areas were accorded status of S.T. Record further establishes that the petitioner was given the caste certificate as belonging to S.T. category by the competent authority i.e. Mamlatdar, Bhanvad, on 04.06.1975 and as averred in the petition, which is not controverted, the petitioner was employed with BPCL in S.T. category on 17.06.1985 and was working as Assistant Manager, (Marketing Corporate), BPCL, at Mumbai. In course of inquiry by the Vigilance Officer of Tribal Development Department, Rajkot, first inquired into the issue involved in this petition as regards verification and veracity of the caste certificate issued to the petitioner on 04.06.1975. Vigilance Officer made an inquiry report on 30.03.2007. It is reiterated by the Vigilance Officer on the basis of the documents which are enumerated in the report, more particularly Masvadi receipt dated 09.09.1943 in the name of Pababhai Karabhai Makwana, who happens to be the grandfather of the petitioner as well as evidence as regards payment of Rs.120/ given as assistance by Saurashtra Backward Class Board, Rajkot on 14.02.1958 as well as family tree, which was prepared by TalaticumMantri of Bharatpur Gram Panchayat, Dist. Jamnagar, as held that the petitioner and his ancestors were residing in Ranivav Ness area.
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(20) At this juncture it would be appropriate to refer to the judgment of the Apex Court in the case of Kumari Madhuri Patil (supra) wherein the Apex Court has laid down the guidelines and has streamlined as provided at Paragraph No.12 as under:
"12. The admission wrongly gained or a appointment wrongly obtained on the basis of false social status certificate necessarily have 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 true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of a social status certificates, their scrutiny and their approval, which may be the following:
1. The application for grant of social status certificate shall be made to the RevenueSubDivisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such Officer rather than at the Officer, Taluk or Mandal level.
2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or nongazetted officer with particulars of castes and subcastes, tribe, tribal community, parts of groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the concerned Directorate.
3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a Page 21 of 39 HC-NIC Page 21 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT post.
4. All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any office higher in rank of the Director of the concerned department, (II) the Director, Social Welfare / Tribal Welfare / Backward Class Welfare, as the case may, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.
5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in overall charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He also should examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial and dead bodies etc. by the concerned castes or tribes or tribal communities etc.
6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine'' or "doubtful'' or spurious or falsely or wrongly claimed, the Director concerned should issue show cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgment due or through the head of the concerned educational institution in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing Page 22 of 39 HC-NIC Page 22 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT and claims an inquiry to be made in that behalf, the Director on receipt of such representation / reply shall convene the Committee and the Joint / Addl. Secretary as Chairperson who shall give reasonable opportunity to the candidate / parent / guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him / it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims visavis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.
7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.
8. Notice contemplated in para 6 should be issued to the parents / guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.
9. The inquiry should be completed as expeditiously as possible preferably by daytoday proceedings within such period not exceeding two months. If after inquiry, the caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent / guardian and the applicant.
10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent / guardian / candidate before the competent officer or nonofficial and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.
11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.Page 23 of 39
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12. No suit or other proceedings before any other authority should lie.
13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition / Miscellaneous petition / matter is disposed of by a single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136.
14. In case, the certificate obtained or social status claimed is found to be false, the parent / guardian / the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or the Parliament.
15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the concerned educational institution or the appointing authority by registered post with acknowledgment due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission / appointment without any further notice to the candidate and debar the candidate for further study or continue in office in a post."
(21) State Government as per the aforesaid judgment has adopted the guidelines as enumerated at Paragraph No.12 of the said judgment and constituted a Scrutiny Committee by resolution dated 20.07.2000. As per the said resolution the Scrutiny Committee consisted of three members as under:
(i) Additional Chief Secretary/ Principal Secretary / Secretary / Tribal Development Department, Sachivalaya, Gandhinagar, as Chairman;Page 24 of 39
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(ii) Commissioner, Tribal Development, Gujarat State, Gandhinagar, as Member; AND
(iii) Director, Tribal Development Research and Training Center, Gujarat Vidhyapith, as Member.
(22) It appears from such constitution that three members - consisting of one Chairman and two members out of which one is an expert. Said circular further recites that Deputy Commissioner working in the office of Commissioner, Tribal Development, would be the Secretary of Scrutiny Committee to handle the work like calling of meeting, preparation of the minutes of the meeting, etc. and other administrative work. Said circular is entirely based on the directions issued by the Apex Court in the judgment of Kumari Madhuri Patil (supra). Said circular also provides for the powers of the Scrutiny Committee. Thus, by following the directions issued by the Apex Court in the judgment of in the case of Kumari Madhuri Patil (supra), such Scrutiny Committee came to be constituted for the first time by the State Government vide Resolution dated 20.07.2000. Record shows that the said Scrutiny Committee has thereafter been reconstituted by addition of one member.
(23) In light of the aforesaid position, therefore, Page 25 of 39 HC-NIC Page 25 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT it requires to be seen whether the Scrutiny Committee, which is so appointed by the State Government, has adhered to the guidelines given by the Apex Court in the judgment in the case of Kumari Madhuri Patil (supra) or not. On examination of the record of the petition as well as the original record of the Scrutiny Committee and on perusal of the impugned order, it appears that it is to be examined whether the Scrutiny Committee has considered the case of the petitioner as per the guidelines of the Apex Court in the judgment of Kumari Madhuri Patil(supra) or not.
(24) Upon examining the record of this petition as well as the original record and the contentions raised by the petitioner, it appears that the petitioner had submitted as many as 27 various documents, which can be seen from Paragraph No.3 of the impugned order. Similarly, it is also found from the impugned order that the Scrutiny Committee has taken into consideration the statements, which are given by various officers as well as the revenue officers of the area and other documents. It is also seen from the impugned order in Paragraph No.4 thereof on record is attributed to the inquiry reports.
(25) The Scrutiny Committee has also noted the contents of the said report. The impugned order Page 26 of 39 HC-NIC Page 26 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT records that the petitioner was given opportunity to be heard lastly on 06.10.2008 and the impugned order also records that the meeting of the Scrutiny Committee was held on 30.06.2008 wherein the petitioner had remained absent. Paragraph No.6 of the impugned order deals with the submissions made by the petitioner and the documents relied upon by the petitioner, whereas Paragraph No.7 thereof recites record of the government considered by the Scrutiny Committee as well as the documents relied upon it, which is 47 in number. While coming to the conclusion it is found that at every stage the Scrutiny Committee has considered the statement and the record submitted by the Government authorities, which is not as existed from the date of presidential notification i.e. dated 29.10.1956. Learned Assistant Government Pleader has not been able to controvert the contentions raised by the petitioner that the documents which were relied upon against the petitioner by the Scrutiny Committee were not supplied to the petitioner and in fact the record of the petition shows that the petitioner had to apply under the provisions of the Right to Information Act, 2005 to get such documents. The Apex Court in the case of Anand V/s. Committee for Scrutiny And Verification of Tribe Claims (supra) has observed (at Paragraph Nos.13, 1618 and 20) Page 27 of 39 HC-NIC Page 27 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT thus:
"13. Article 342 of the Constitution of India empowers the President of India to specify the tribes or tribal communities or parts or groups within them which shall for the purposes of the Constitution be deemed to be Scheduled Tribes in relation to a State or a Union Territory, as the case may be. Under clause (2) of Article 342, the power to include in or exclude from the lists of Scheduled Tribes specified in a notification, issued under clause (1) of Article 342 of the Constitution, vests in the Parliament. In exercise of the powers conferred by Article 342 of the Constitution, the President issued an order, called the Constitution (Scheduled Tribes) Order, 1950. This was followed by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1956. In the year 1976, the Parliament enacted the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976. Part IX of the Third Schedule to the Amending Act specifies Scheduled Tribes for the State of Maharashtra. One of the Scheduled Tribes so specified therein is "Halba", "Halbi".
16. In the light of the aforesaid observations, the State of Maharashtra enacted the Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (for short "the Act"). The Act made statutory provisions for verification and scrutiny of caste claims by the Competent Authority and subsequently by the Caste Scrutiny Committee. In exercise of its rule making power under the Act, the State notified the Rules laying down a complete procedure for obtaining and verification of Scheduled Tribes Certificate. Therefore, insofar as the State of Maharashtra is concerned, the verification and grant and/or rejection of Scheduled Tribe Certificate by the Caste Scrutiny Committee has to be as per the procedure prescribed in the Rules.
17. Rule 11(2) enumerates a list of documents to be filed along with the application to the Caste Scrutiny Committee. Rule 12 prescribes the procedure to be followed by the Caste Scrutiny Committee on receipt of such application in the prescribed format. It provides that if the Caste Scrutiny Committee is not satisfied with the documentary evidence produced by the applicant, it shall forward the application to the Vigilance Cell for conducting the school, home and other enquiry. Subrule (3) of Rule 12 requires the Page 28 of 39 HC-NIC Page 28 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT Vigilance Officer to visit the local place of residence and the original place from where the applicant hails and usually resides. The rules further stipulate that the Vigilance Officer shall personally verify and collect all the facts about the social status claimed by the applicant or his parents or guardians, as the case may be. He is also required to examine the parents or the guardians or the applicant for the purpose of verification of their tribe. It is evident that the scope of enquiry by the Vigilance Officer is broadbased and is not confined only to the verification of documents filed by the applicant with the application or the disclosures made therein. Obviously, the enquiry, supposed to be conducted by the Vigilance Officer, would include the affinity test of the applicant to a particular tribe to which he claims to belong. In other words, an enquiry into the kinship and affinity of the applicant to a particular Scheduled Tribe is not alien to the scheme of the Act and the Rules. In fact, it is relevant and germane to the determination of social status of an applicant. We are of the view that for the purpose of examining the caste claim under the Rules, the following observations of this Court in Kumari Madhuri Patil (AIR 1995 SC 94) (supra), still hold the field: ".The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc."
18.It is manifest from the aforeextracted paragraph that the genuineness of a caste claim has to be considered not only on a thorough examination of the documents submitted in support of the claim but also on the affinity test, which would include the anthropological and ethnological traits etc., of the applicant. However, it is neither feasible nor desirable to lay down an absolute rule, which could be applied mechanically to examine a caste claim. Nevertheless, we feel that the following broad Page 29 of 39 HC-NIC Page 29 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT parameters could be kept in view while dealing with a caste claim:
(i)While dealing with documentary evidence, greater reliance may be placed on preIndependence documents because they furnish a higher degree of probative value to the declaration of status of a caste, as compared to postIndependence documents.
In case the applicant is the first generation ever to attend school, the availability of any documentary evidence becomes difficult, but that ipso facto does not call for the rejection of his claim. In fact the mere fact that he is the first generation ever to attend school, some benefit of doubt in favour of the applicant may be given. Needless to add that in the event of a doubt on the credibility of a document, its veracity has to be tested on the basis of oral evidence, for which an opportunity has to be afforded to the applicant;
(ii)While applying the affinity test, which focuses on the ethnological connections with the Scheduled Tribe, a cautious approach has to be adopted. A few decades ago, when the tribes were somewhat immune to the cultural development happening around them, the affinity test could serve as a determinative factor. However, with the migrations, modernisation and contact with other communities, these communities tend to develop and adopt new traits which may not essentially match with the traditional characteristics of the tribe. Hence, affinity test may not be regarded as a litmus test for establishing the link of the applicant with a Scheduled Tribe. Nevertheless, the claim by an applicant that he is a part of a Scheduled Tribe and is entitled to the benefit extended to that tribe, cannot per se be disregarded on the ground that his present traits do not match his tribes' peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. Thus, the affinity test may be used to corroborate the documentary evidence and should not be the sole criteria to reject a claim.
20. Having examined the present case on the touchstone of the aforesaid broad parameters we are of the opinion that the claim of the appellant has not been examined properly. We feel that the documentary evidence produced by the appellant in support of his claim had been lightly brushed aside by the Vigilance Officer as also by the Caste Scrutiny Committee. Insofar as the High Court is concerned it has rejected the claim solely on the Page 30 of 39 HC-NIC Page 30 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT basis of the affinity test. It is pertinent to note that some of these documents date back to the independence era, issued to appellant's grandfather and thus, hold great probative value as there can be no reason for suppression of facts to claim a nonexistent benefit to the 'Halbi' Scheduled Tribe at that point of time. From the documents produced by the appellant, it appears that his near paternal relatives had been regarded as belonging to the 'Halbi' Scheduled Tribe. The Vigilance Officer's report does not indicate that the documents produced by the appellant in support of his claim are false. It merely refers to the comments made by the Head Master with reference to the school records of appellant's father's maternal brother and his aunt, which had been alleged to be tampered with, to change the entry from Koshti Halba to Halba and nothing more. Neither the Head Master was examined, nor any further enquiry was conducted to verify the veracity of Head Master's statement. It is of some importance to note at this juncture that in similar cases, involving appellant's first cousin and his paternal uncle, the High Court, while observing nonapplication of mind by the Caste Scrutiny Committee, had decided a similar claim in their favour. We are convinced that the documentary evidence produced by the appellant was not examined and appreciated in its proper perspective and the High Court laid undue stress on the affinity test. Thus, the decision of the Caste Scrutiny Committee to cancel and confiscate the caste certificate as well as the decision of the High Court, affirming the said decision is untenable. We are, therefore, of the opinion that the claim of the appellant deserves to be re examined by the Caste Scrutiny Committee. For the view we have taken on facts in hand, we deem it unnecessary to refer to the decisions cited at the bar.
(26) Similarly, the Apex Court in the case of Gayatrilaxmi Bapurao Nagpure (supra) has held that the Scrutiny Committee has to take greater care before granting or rejecting any claim for caste certificate. It is clarified therein that though the burden heavily lies on the applicant who seeks such a certificate, however, the Page 31 of 39 HC-NIC Page 31 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT authority has a vital role to play. Relying upon the ratio laid down in the cases of Kumari Madhuri Patil (supra) as well as Director of Tribal Welfare, Govt. of A.P. Vs. Laveti Giri, 1995 4 S.C.C. 321 the Apex Court has observed at Paragraph Nos.1518 as under:
"15. It is true that this Court in Kumari Madhuri Patil's case (1994 AIR SCW 4116) (supra) has observed (Para 14) :
"The Committee which is empowered to evaluate the evidence placed before it when records a finding of fact, it ought to prevail unless found vitiated by judicial review of any High Court subject to limitations of interference with findings of fact. The Committee when considers all the material facts and records a finding, though another view, as a court of appeal may be possible, it is not a ground to reverse the findings. The court has 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 ultimately recorded the finding. Each case must be considered in the backdrop of its own facts."
16. The same view has been reiterated in Director of Tribal Welfare, Govt. of AP v. Laveti Giri, (1995) 4 SCC 32 : (1995 AIR SCW 2289).
17. Applying the above test to the facts of the present case, we are satisfied that the Committee failed to consider all the relevant materials placed before it and did not apply its mind to an important document "Sl. No. 9" which led the Committee to ultimately record a finding against the appellant. By a wrongful denial of the caste certificate, the genuine candidate, he/she will be deprived of the privileges conferred upon him/her by the Constitution. Therefore greater care must be taken before granting or rejecting any claim for caste certificate.
18. The High Court without appreciating the probative value of the documents placed before it has dismissed the writ petition filed by the appellant by simply accepting the conclusions reached by the secondrespondent Committee. Undoubtedly, in cases of this type, the burden heavily lies on the applicant who seeks such a certificate. That does not mean that the authorities Page 32 of 39 HC-NIC Page 32 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT have no role to play in finding out the correctness or otherwise of the claim for issue of a caste certificate. We are of the view that the concerned authorities must also play a role in assisting the Committee to arrive at a correct decision. In this case, except the documents produced by the appellant, nothing has been produced by the concerned authorities to arrive at a different conclusion."
(27) From the conclusion arrived at by the Scrutiny Committee it appears that the Scrutiny Committee has not considered the documents which were supplied by the petitioner and has ignored the Vigilance Officer's report dated 30.03.2007 and the evidence which in fact has been produced by the petitioner has wrongly been brushed aside.
(28) It is found from the impugned order that the Scrutiny Committee has also not considered the Circular dated 04.03.2005 issued by the Central Government as regards clarification about the entitlement of status of S.T. category in cases were grandparents or ancestors were staying in areas which are notified under presidential notification. It is reiterated in fact by way of further instructions by the State Government to all the authorities by communication dated 29.03.2005. It is not the case of the respondents that no one in the family of the petitioner is issued caste certificate and that none of them belonging to Maldhari and Bharwad Communities and being a S.T. and therefore Page 33 of 39 HC-NIC Page 33 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT judgment relied upon by learned Assistant Government Pleader in the case of Rameshbhai Mathurbhai Patel (supra) would not be applicable in the present case. Similarly, the judgment rendered by Division Bench of this Court in Letters Patent Appeal No.1236/14 (supra) confirming the view taken by this Court in Special Civil Application No.12881/12 vide judgment and order dated 19.11.2014 is also not be applicable to the facts of the present case as in the said case what was challenged by the petitioner was grant of caste certificate to the respondent No.4 therein and after examining the record and the order of the Scrutiny Committee this Court held that the Scrutiny Committee has rightly examined the certificate issued to respondent No.4 strictly following the principles laid down by the Apex Court in the case of Kumari Madhuri Patil (supra) and therefore the said judgment would not be applicable in the present case. Similarly the judgment rendered by this Court in Special Civil Application Nos.29022903/13 dated 07.04.2014 is also not applicable to the present case.
(29) Petitioner, partyinperson, has also relied upon certain documents especially the family tree, the fact that the grandfather of the petitioner was allotted land situated at Dungar being a Maldhari out of kharaba land which, in Page 34 of 39 HC-NIC Page 34 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT the opinion of this Court, is a vital document, however, the same have not been considered by the Scrutiny Committee. In the facts of this case, more particularly upon perusal of the original record and the impugned order it is found that the Scrutiny Committee has not properly given hearing to the petitioner to prove his case and as observed hereinabove, the Scrutiny Committee has considered the Government record and the statements of the officers of the Forest Department as well as the Revenue Department, including DILR Office of the area in question, which does not reflect position as on 29.10.1956 i.e. date on which the presidential notification was issued.
(30) Considering the totality of the facts of the case this court is of the opinion that the Scrutiny Committee has not properly evaluated the evidence before it. Petitioner has also relied upon the judgment of the Apex Court in the case of Ramana Dayaram Shetty (supra) as well as Common Cause, a Registered Society (supra), however, in light of the observations made in this judgment and the conclusion arrived at, the same are not separately dealt with and it would be sufficient to mention that the Scrutiny Committee has not decided the case of the petitioner as per the ratio laid down by Apex Court, more particularly the guidelines Page 35 of 39 HC-NIC Page 35 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT given by the Apex Court in the case of Kum.Madhuri Patil(supra) and the subsequent policy decision on the subject matter by the State Government. It may also be noted that the petitioner has made allegations against the Deputy Commissioner Tribal Department, who also happens to be the Secretary of the Scrutiny Committee. Such facts are denied by the respondents. However, this Court does not find it necessary to deal with the same separately since on the contrary the said aspect has drifted the main issue of examining whether the impugned order is legal or proper or not. Following the ratio laid down by the Apex Court in the case of Kumari Madhuri Patil (supra) it is the duty of the Scrutiny Committee to adhere to the guidelines of the Apex Court and then decide the status of the caste certificate issued to the petitioner by the competent authority on the basis of the documents which are also produced by the petitioner before the Scrutiny Committee. It is an admitted position that the caste certificate was issued on 04.06.1975 and therefore when the Scrutiny Committee was dealing with the same after a long period it should have been done after careful and meticulous scrutiny of the documents. It is found that the evidence relied upon by the Scrutiny Committee does not reflect the position as on the date of presidential Page 36 of 39 HC-NIC Page 36 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT notification and therefore there is an error apparent on the face of record in the findings arrived at by the Scrutiny Committee on various and major issues. Though it is found that the Scrutiny Committee has given its finding on each point and aspect, relying upon the evidence which is made the basis of such finding is also erroneous. Not considering the material which is already on record in a way is not only an error apparent on face of record but the same amounts to denial of justice. Documents, more particularly like family tree, Masvadi Receipts, financial assistance given to the grandfathers of the petitioner by Saurashtra Backward Class Board, Rajkot on 14.02.1958 and the land allotted in Dungar to the grandfather of the petitioner as Maldhari. It is also found that the Scrutiny Committee while deciding the issue whether the Ness in question was part of forest area is concerned, is also not properly decided. Instead of examining the position as it was existed prior to 29.10.1956 the Scrutiny Committee has relied upon the notifications, which are issued under the Wildlife Protection Act, 1972, which are admittedly much after the date of presidential notification and the limits of the reserved forest of the sanctuary, which are fixed as per the subsequent law cannot be made basis to come to the conclusion that the area of ness, in Page 37 of 39 HC-NIC Page 37 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT which the ancestral of the petitioner used to reside was not part of the forest. Such error is eminently found from the impugned order, which is de hors the evidence on record which was submitted by the petitioner before the Scrutiny Committee.
(31) When a person is confronted with the issue of proving that he belongs to a particular community, which is declared as S.T. as per the presidential notification dated 29.10.1956 as held by the Apex Court in the case of Kumari Madhuri Patil (supra) such person should be given proper and ample opportunity to do it.
(32) Resultantly because of the reasons which are enumerated hereinabove, the impugned order dated 20.11.2008 deserves to be quashed and set aside and the proceedings of verification of the caste certificate issued to the petitioner dated 04.06.1975 deserves to be reexamined by the Scrutiny Committee, after giving all the documents and effective, real and actual opportunity of being heard, keeping in mind the binding decision of the Apex Court in the case of Kumari Madhuri Patil (supra) and also keeping in mind the ratio laid down by the Apex Court in the case of State of Bihar Vs. Sumit Anand (supra) and the material which is already on record and that may be produced by the Page 38 of 39 HC-NIC Page 38 of 39 Created On Thu Dec 24 01:55:41 IST 2015 C/SCA/13594/2008 JUDGMENT petitioner. Such exercise shall be carried out by the Scrutiny Committee within a period of two months from the date of receipt of this order. Petitioner shall also cooperate with hearing of the Scrutiny Committee and the Scrutiny Committee shall decide the issue afresh, without in any manner being influenced by any of the observations made in the impugned order as well as in this order. Rest of the prayers do not survive. Petition is thus, partly allowed accordingly. Partyinperson has changed his residential address, which is provided to the learned Assistant Government Pleader. Rule is made absolute to the aforesaid extent only. No costs.
Sd/ [R.M.CHHAYA, J ] *** Bhavesh [pps]* Page 39 of 39 HC-NIC Page 39 of 39 Created On Thu Dec 24 01:55:41 IST 2015