Karnataka High Court
Vijayakumar vs The State Of Karnataka And Ors on 1 February, 2022
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 01ST DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.225917/2020 (GM-CC)
C/W
WRIT PETITION NO.226907/2020
IN W.P.NO.225917/2020
BETWEEN:
SRI. RAVINDRA SWAMY
S/O KALLAYYA SWAMY
AGED ABOUT: 41 YEARS
R/O H.NO. 8-11-254
RAGHAVENDRA COLONY
BIDAR-585401
... PETITIONER
(BY SRI SHIVANAND PATIL, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER
BIDAR DEPUTY COMMISSIONER
BIDAR D.C. OFFICE
BIDAR-585401
2. THE TAHSILDAR AURAD-B
TALUKA BIDAR
BIDAR -585401
3. THE COMMISSIONER
SOCIAL WELFARE DEPARTMENT
2
M.S. BUILDING
DR. B.R. AMBEDKAR VEEDHI
BENGALURU-560001
4. THE DIRECTORATE OF
CIVIL RIGHTS ENFORCEMENT
PALACE ROAD
BENGALURU-560001
REPRESENTED BY ITS DIRECTOR
5. SRI. PRABHU CHAVAN
AGED ABOUT: 47 YEARS
OCC: AGRICULTURE AND SOCIAL SERVICE
R/O PANCHAYAT NO. 104, BONTI THANDA
(GHUMSAIBAI THANDA)
TQ: AURAD-B
DIST: BIDAR-585326
... RESPONDENTS
(BY SRI C. JAGADISH, ADVOCATE FOR R1 TO R4;
SRI ASHOK HARANAHALLI, SENIOR ADVOCATE FOR
SRI VINAYAKA B., ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI THEREBY QUASH THE IMPUGNED ENDORSEMENT
DATED 31.03.2020/10.04.2020 IN FILE NO.REV/C AND V/CR-
98/2016-17 AS AT ANNEXURE-C ISSUED BY THE FIRST
RESPONDENT AUTHORITY AS ILLEGAL AND ARBITRARY AND
WITHOUT JURISDICTION AND BEYOND THE SCOPE OF
PROVISIONS OF LAW.
IN WRIT PETITION NO.226907/2020
BETWEEN:
VIJAYAKUMAR
S/O KOUDIYAL,
AGED ABOUT 45 YEARS,
3
R/AT IERBHAG,
BASAVAKALYANA
BIDAR DISTRICT 585 327
... PETITIONER
(BY SRI G.K. BHAT, SENIOR ADVOCATE,
SRI SUNIL KUMAR VISHWANATH, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS CHIEF SECRETARY
VIDHANA SOUDHA
BENGALURU 560 001
2. THE COMMISSIONER OF SOCIAL WELFARE
GOVERNMENT KARNATAKA
M. S. BUILDING
BENGALURU 560 001
3. THE DEPUTY COMMISSIONER
BIDAR DISTRICT,
BIDAR 585401
4. SRI. PRABHU CHAWHAN,
HONBLE MINISTER FOR ANIMAL HUSBANDRY,
HAJ AND WAKF,
GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA,
BENGALURU 560 001
... RESPONDENTS
(BY SRI C. JAGADISH, ADVOCATE FOR R1 TO R4;
SRI ASHOK HARANAHALLI, SENIOR ADVOCATE
FOR SRI VINAYAKA B., ADVOCATE FOR R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT OF MANDAMUS OR ANY OTHER APPROPRIATE WRIT OR
DIRECTION THE DIRECTING THE 3RD RESPONDENT TO DECIDE
4
THE APPEAL/REVISION PETITION NO.KAM/C AND
V/CR/98/2016-17 AS PER ANNEXURE-F FORTHWITH WITHOUT
LOSS OF TIME.
IN THESE PETITIONS ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT OF
ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
In these petitions the grievance of the petitioners is with regard to caste certificate issued by the Tahsildar, Aurad-B, Bidar District in favour of the contesting respondent herein and as such, petitions are taken up together, heard and disposed of by this common order.
Facts of the case in Writ Petition No.225917/2020:
2. It is the case of the petitioner that, he belongs to Scheduled Caste community and is a resident of Bidar Taluk and District. He was Councilor of Bidar Municipality and is an aspirant to contest for the election to the Legislative Assembly from Aurad-B Constituency, which is reserved for Scheduled Caste candidate. It is stated in the writ petition that, the contesting respondent (respondent No.5) got elected from the said Constituency during 2008-2013, 2013-2018 and 2018-
2022. It is the categorical statement in the writ petition that the 5 contesting respondent basically hails from the State of Maharashtra and his grandfather was the resident of Tondachir village, Udgir Taluk, Latur District of Maharashtra State. It is further stated that the contesting respondent belongs to Lambani (Banjara) community which has been notified as 'Denotified Nomadic Tribe' in the State of Maharashtra under Article 15(4) and 16(4) of the Constitution of India and the Lambani community is not treated as Scheduled Caste. It is further averred that the father of respondent No.5 is 'Bamala' and he is the resident of State of Maharashtra. The contesting respondent was brought up in Togari village, Udgir Taluk, Latur District of Maharashtra State and he has pursued his 1 st to 12th standard education at Pratibha Devi Ashram School, Silvani Border Tanda, Deglur Taluk, Nanded District, Maharashtra and he is a permanent resident of Maharashtra. It is further stated in the writ petition that the ration card issued by the competent authority demonstrates that the respondent No.5 is a permanent resident of Maharashtra State, however, the contesting respondent claims to be belonging to Lambani community, which has been notified as Scheduled Caste under Article 341 of the 6 Constitution of India in the State of Karnataka and had secured the caste certificate in collusion with respondents 2 and 3 by producing fake and illegal documents and has committed fraud on the voters of the Aurad-B constituency and as such, the petitioner, being aggrieved by the "fraud" committed by the contesting respondent while obtaining the caste certificate, approached the respondent No.1 by invoking provision under Section 4-F of the Karnataka SC/ST and Other BC (Reservation of Appointments, etc.,) Act, 1990 (hereinafter referred to as 'the Act'). It is further stated that the caste of the contesting respondent was questioned in the election proceedings and pursuant to the same, the respondent No.4 herein has conducted investigation at the instance of one Shankerrao Doddi and the said enquiry report was made available to the Caste Verification Committee, Bidar in case No. C&V/CR-98/2016-17. The report of the respondent No.4 demonstrates that the respondent No.5 has committed fraud by obtaining false caste certificate, however, the Caste Verification Committee, by order dated 20.11.2017, held that the respondent No.5 is born and brought up in Karnataka and he is a resident of Karnataka and as such, 7 approved the caste certificate issued by the Tahsildar, Aurad-B Taluk. Being aggrieved by the order dated 20.11.2017 passed by the Caste Verification Committee, Shankerrao Doddi-applicant therein, filed appeal No.CR.01/2018-19 before the Commissioner, Social Welfare Department and Appellate Authority, Bengaluru and the said applicant withdrew the appeal at the instance of the respondent No.5 herein and as such, the respondent No.3, in order to ascertain the caste of the respondent No.5, directed the respondent No.1 herein to investigate the matter, by expressing doubt with regard to the caste certificate issued by the respondent No.2 herein and thereafter, no further action is said to have been taken by the respondent No.1 herein. During the pendency of the writ petition, petitioner has filed application to amend the prayer by challenging the order dated 20.11.2017 passed by the Caste Verification Committee, Bidar and same came to be allowed.
Being aggrieved by the issuance of caste certificate by the Tahasildar and order dated 20.11.2017 passed by the Caste Verification Committee, Bidar, the petitioner has sought for following reliefs:
81) Issue a writ of Certiorari thereby quash the impugned endorsement dated 31-03-2020/10-
04-2020 in file No. REV/C&V/CR-98/2016-17 as at Annexure-C, issued by the 1st respondent authority as illegal and arbitrary and without jurisdiction and beyond the scope of provisions of law;
1A) Issue a writ of certiorari and thereby quash the impugned order dated 20.11.2017 in file No.C&V/CR-98/2016-17 of the Caste Verification Committee, Bidar as at Annexure-F to the writ petition;
2) Issue a writ of mandamus directing the Respondent No.1 to hold enquiry by providing proper opportunity to the Petitioner in terms of the direction issued by the 3rd Respondent as at Annexure-H within such stipulated time frame as this Hon'ble Court deems fit in the circumstances of the case;
3) Pass any Order or orders which may be deemed fit by this Hon'ble Court in the circumstances of the case.
Facts of the case in Writ Petition No.226907/2020:
3. In this writ petition, the petitioner stated that he belongs to scheduled caste community and further challenged the caste certificate issued by the Tahsildar, Aurad-B Taluk, Bidar District in favour of the contesting respondent-respondent No.4 as without any basis and contrary to the documents. It is 9 further stated that, on an earlier occasion, the aggrieved person-
Shankerrao Doddi had filed Writ Petition No.58264/2017 before this Court, and this Court, by order dated 06.03.2018, directed the petitioner therein to approach the competent authority for redressal of his grievance in accordance with law. Pursuant to the same, the petitioner filed revision petition before the respondent No.3 in the said writ petition and the respondent No.3 issued notice as per Annexure-F to the respondent No.4 to enable him to file objection and to furnish documents. However, no further progress has been made in the said revision petition at the instance of the contesting respondent and as such, the petitioner has sought for following reliefs:
1. Issue a writ of mandamus or any other appropriate writ or direction the directing the 3rd Respondent to decide the Appeal / Revision Petition no. kam/c&v/CR/98/2016-17 as per Annexure -F, forthwith without loss of time.
2. Issue of Writ of mandamus or any other appropriate writ or direction deemed fit to be granted in the facts and the circumstances of the case.10
3. Issue any other appropriate writ order or direction deemed fit to be granted including the direction for cost.
4. Pending disposal of the above Writ Petition, it is prayed that this Hon'ble Court be pleased to pass an interim order directing the respondent No.3 to immediately commence the process of enquiry in the matter of deciding the Revision Petition No.Kam/C&V/CR/98/2016-17 as per annexure-f to the writ petition, to meet the ends of justice.
Objection by the respondents:
5. The contesting respondent has filed the detailed statement of objection in Writ Petition No.225917/2020 and contended that the writ petition is not maintainable as the petitioner is not an "aggrieved person" and he has no locus standi to file the revision petition before the Deputy Commissioner. It is further stated in the statement of objections that, the petitioner has no locus standi to challenge the caste certificate issued by the Tahsildar before the Deputy Commissioner, Bidar. It is also stated that the caste certificate issued by the Tahsildar was confirmed by the Caste Verification Committee and thereafter, the same was challenged by one Shankerrao Doddi, before the appellate authority, which came to 11 be dismissed and as such, the same has reached finality and therefore, the issue cannot be reopened by the petitioner. It is also stated that the respondent No.5 is the resident of State of Karnataka and has immovable properties in the State of Karnataka and as such, denied the averments made in the writ petition. It is further stated that the Deputy Commissioner has no jurisdiction to review the order passed by the District Caste Verification Committee and therefore, sought for dismissal of the writ petition.
6. In writ petition No.226907/2020, the respondent No.4 filed statement of objections reiterating the averments made in the objections filed in writ petition No.225917/2020 and sought for dismissal of the writ petition.
Submissions of the learned counsel for the parties:
7. I have heard Sri Shivanand Patil, learned counsel appearing for the petitioner in Writ Petition No.225917/2020; Sri G.K. Bhat, learned senior counsel appearing for the petitioner in Writ Petition No.226907/2020; Sri Ashok Haranahalli, learned 12 Senior counsel for the contesting respondent; and Sri C. Jagadish, learned special Counsel for the Government.
8. Sri Shivanand Patil, learned counsel for the petitioner contended that the respondent No.5 belong to Lambani Community which has been recognized as scheduled caste in the State of Karnataka under Article 341 of Constitution of India and he hails from State of Maharashtra and in the State of Maharashtra, Lambani community has not been recognised as Scheduled Caste community and therefore, the respondent No.5 fraudulently obtained the caste certificate from the Tahasildar, Bidar, only for the purpose of contesting in the election. He further submitted that objection raised by the respondents with regard to maintainability of writ petition cannot be accepted as the constitutional right of the petitioner under Article 341 of the Constitution of India is infringed and the ancestors of the respondent No.5 were residing in the State of Maharashtra, parents of respondent No.5 are also from the State of Maharashtra and the entire education of the respondent No.5 was at Maharashtra State and therefore submitted that, 13 respondent No.5 is a permanent resident of Maharashtra State.
As the respondent No.5 came to know that the Aurad Constituency is reserved for Scheduled caste candidate and as such, with an intention to contest in the said Legislative Assembly elections, the respondent No.5 by using his money and muscle power, was able to secure the caste certificate from the Tahasildar. He further contended that respondent No.5 is the Cabinet Minister in the State of Karnataka and by misusing his Office, was able to get the confirmation of his caste by Caste Verification Committee and therefore, he prays for allowing the writ petition.
9. Sri. Patil, further contended that the respondent No.5 has not produced any substantial material to establish that he is having permanent residence in the State of Karnataka in order to obtain caste certificate and the respondent No.5 belongs to Denotified Nomadic Tribe in Maharashtra State and by suppressing all these facts, in collusion with the Tahasildar, Aurad-B Taluk, the respondent No.5 has managed to obtain the caste certificate depriving the rights of the schedule caste people 14 in the said Constituency and being a representative of people, the respondent No.5 has committed illegal act inter alia the alleged act amounts to fraud on the Constitution of India, so also on the Society. He further contended that the genuinity of the true factual aspects has not been brought to the notice of the Tahasildar nor before the Caste Verification Committee, and as such, one Shankerrao Doddi had challenged the caste certificate issued by the Tahasildar in favour of respondent No.5, however, during the said period the respondent No.5 was the Minister in charge of Bidar District and as such, the entire District machinery was under his administrative control and therefore, by misusing his power, as he prevailed upon the members of Caste Verification Committee, obtained the order at Annexure-H dated 07.05.2018 fraudulently, which requires to be set aside in this petition. Emphasising on these aspects, Shri Shivanand Patil, further argued that the said Shankerrao, had challenged the order of the Caste Verification Committee before the appellate authority in appeal No.CR.01/2018-19. However, the respondent No.5 misusing his office, threatened the appellant therein to withdraw the appeal, resulting in confirmation of the 15 caste certificate issued in favour of the respondent No.5. He further argued that these facts would substantiate the fact that the respondent No.5 has committed fraud on the Constitution of India. Shri Shivanand Patil further argued that the appellate authority, addressed a letter dated 07.05.2018 to the Deputy Commissioner, Bidar to conduct a detailed enquiry along with the members of the Directorate of Civil Rights Enforcement Cell to discern the truth about the actual caste of the respondent No.5, however, nothing has happened and there is no progress in the said enquiry, much less, constitution of the committee since the respondent No.5 was the in charge Minister of Bidar District.
10. Shri Shivanand Patil further argued that the Caste Verification Committee did not consider relevant particulars as observed by the Directorate of Civil Rights Enforcement Cell vide Annexure-E and since the contesting respondent has obtained the caste certificate from the Tahsildar for the sake of election process under the provisions of Representation of Peoples Act, 1950 and the Petitioner is not a party before Caste Verification 16 Committee and the said aspect of the matter was not considered by the respondent No.1 and that apart, while issuing impugned order at Annexure-C, no opportunity of hearing was given to petitioner to substantiate actual aspects along with the relevant documents to prove that respondent No.5 has committed illegal and malafide act to secure the caste certificate and therefore, he contended that Annexure-C is passed by the respondent No.1 without following the principles of natural justice. Therefore, he argued that impugned endorsement at Annexure-C and order dated 20.11.2017 passed by the Caste Verification Committee requires to be set aside.
11. Inviting the attention of the Court to Rule 10 of The Karnataka SC/ST and OBC (Reservation of Appointments, etc) Rules, 1992 (hereinafter referred as 'Rules'), Shri Shivanand Patil argued that the respondent authority ought to have passed reasoned order based on material produced by the respondent No.5 to arrive at a conclusion that the respondent No.5 has produced cogent material for issuance of caste certificate.
However, being a quasi-judicial authority, the respondent-
17authority should follow the fairness, and there is no semblance of reason by the respondent-authorities while issuing the impugned orders. He further contended that the son of the respondent No.5 has also obtained false caste certificate from the competent authority and the same is also under dispute.
Continuing his submission on these aspects Shri Patil argued that order passed by the respondent No.1 declining to accept the revision petition under Section 4-F of the Act is contrary to law and same is required to be set right in this petition.
12. On the other hand, Shri Jagadish learned special Counsel for the State argued that the petitioner has no locus standi. However, it is his categorical submission that the respondent No.5 is a resident of Maharashtra State and the arguments advanced by the learned counsel appearing for the petitioner to the extent that the respondent No.5 is from the State of Maharashtra, is correct. He also referred to judgments of Apex Court in the case of AYAAUBKHAN NOORKHAN PATHAN v. STATE OF MAHARASHTRA reported in (2013)4 SCC 465 and in the case of BHARATI REDDY v. STATE OF KARNATAKA reported 18 in (2018)6 SCC 162 and submitted that the petition requires to be dismissed.
13. Sri Ashok Haranahalli, learned Senior Counsel appearing on behalf of Sri Vinayak for respondent No.5, argued that the writ petition itself is not maintainable as the petitioner has no locus standi to challenge the order of Caste Verification Committee in the revision petition. He further contended that the petitioner is not an aggrieved person as he does not belong to Schedule Caste community and as he has not suffered any injury, the petitioner has no legal right to initiate proceedings, questioning the caste certificate issued in favour of respondent No.5. He further contended that this petition is politically motivated, solely to harass respondent No.5. Emphasising on these aspects, Shri Ashok Haranahalli contended that the caste certificate issued by the Tashildar, Aurad-B Taluk is confirmed by Caste Verification Committee headed by the Deputy Commissioner, Bidar and therefore, the rejection of the revision petition by the respondent No.1 is just and proper and in view of withdrawal of appeal by Shankerrao Doddi-appellant therein, the 19 caste certificate issued by the competent authority in favour of the respondent No.5 has reached finality. Shri Ashok Haranahalli, denied the arguments of the learned counsel for writ petitioner that the respondent No.5 belong to Denotified Nomadic Tribe in the State of Maharashtra. He further contented that respondent No.5 has immovable properties in Bidar Taluk and is a resident of Bidar Taluk. Referring to Rule 5 of the Rules, learned Senior Advocate argued that the Caste Verification Committee alone determines the caste of the applicant and therefore, he refuted the contentions raised by the learned counsel for the petitioner. To buttress his arguments, Sri Ashok Haranahalli, placing reliance on the judgment of the Apex Court in the case of J. CHITRA v. DISTRICT COLLECTOR AND CHAIRMAN, STATE LEVEL VIGILANCE COMMITTEE, TAMIL NADU AND OTHERS reported in (2021)9 SCC 811; in the case of BHARATI REDDY (supra); and the Division Bench judgment of this Court in the case of K AREEF HAFEEZ AND ANOTHER v.
NAZEER AHMED AND OTHERS in Writ Appeal No.100376-377 of 2017 disposed of on 05.02.2019 and the judgment of the Co-
ordinate Bench of this Court in the case of H.P. RAJESH v. S V 20 RAMCHANDRA AND OTHERS in Election Petition No.6 of 2018 decided on 08.06.2020, argued that the Caste Verification Committee alone shall declare the caste certificate as valid or not and therefore, sought for dismissal of writ petitions.
14. In reply, Shri Shivanand Patil, invited the attention of the Court to the caste certificate issued by the Tashildar, Aurad Taluk in Form-D dated 04.02.2013 and submitted that the said certificate is not issued as required under Sub-Rules (2) and (3) of Rule 3(A) of the Rules read with Section 4-A of the Act for the purpose of admission/employment and issued under APPENDIX-I of Representation of Peoples Act, 1950 for election purpose and as such, he contended that the Caste Verification Committee, affirming the caste certificate issued by the Tashildar, Aurad-B Taluk, has no legal sanctity and therefore, sought for interference of this Court to discern the truth with regard to issuance of caste certificate by the Tahsildar in favour of the respondent No.5 which later confirmed by the Caste Verification Committee is genuine or not.
2115. In respect of Writ Petition No.226907/2020, Shri G K Bhat, learned senior counsel appearing for the petitioner, argued in the similar lines of submissions of Shri Shivanand Patil, learned counsel appearing for petitioner Writ Petition No.225917/2020. In addition, he invited the attention of the Court to the scope and object of the Act and argued that the said Act has been made to claim Caste certificate by the applicant for the benefit of education/employment at an earlier stage and not at a later stage, like the contesting respondent, for the purpose which is not provided under the Act. He contended that the contesting respondent did not possess caste certificate and date of birth certificate at the initial stage and only for the purpose of the producing as a document in the case, he obtained decree from Civil Court regarding date of birth, by misusing his office.
Referring to proceedings filed by the petitioner before the 1 st respondent in CR No.98/2016-17, Shri G.K. Bhat argued that respondent-authorities, though issued notice to respondent No.4, but no progress has been made to discern the truth. The said laxity and lethargic way of administration by the respondent No.1 is on account of strong political influence by the contesting 22 respondent. He further argued that the contesting respondent has amassed huge money, and being politically strong in the locality, he was able to win over/prevail upon the respondent authorities, and accordingly he submitted that, the contesting respondent has committed fraud on the Constitution of India and as such, the respondent authorities have failed to take action against respondent No.4. He further argued that, despite issuance of notice at Annexure-F by the respondent No.1, the respondent No.4 has not filed objections which would demonstrate the height of money and muscle power of respondent No.4. He further argued that, during the pendency of this writ petition, the respondent No.1 has issued endorsement dated 26-11-2021 and thereafter, the respondent No.1, for the reasons best known to him, has issued another endorsement dated 30-11-2021 withdrawing the endorsement dated 26-11-2021 and accordingly, sought for interference of this Court.
16. Shri Jagadish learned Special Counsel for the Government sought to justify the action of the respondent 23 authorities and produced entire original records in CR.No.98/2016-17, which is pending consideration before the Deputy Commissioner, Bidar.
17. Shri Ashok Haranahalli, learned senior counsel reiterating his submissions advanced in writ petition No.225917 of 2020, further argued that the respondent No.4 has not received any notice from the respondent No.1 in the proceedings at Annexure-F referred to by Shri G.K. Bhat and accordingly sought for dismissal of the writ petition.
Consideration:
18. After hearing the learned counsel for the parties at length, the points that arise for consideration in these petitions are:
1. Whether the writ petition No.225917 of 2020 is maintainable under Article 226 of the Constitution of India? and;
2. Whether the interference of this Court is called for in these writ petitions?24
19. In the backdrop of the facts narrated above, the controversy is with regard to the caste certificate issued by the Tahsildar, Aurad-B Taluk, to the contesting respondent in both the petitions.
20. In the light of the arguments advanced by the learned counsel appearing for the parties and the rulings of the Hon'ble Supreme Court referred to by the parties, I am of the view that the Writ Petition No.225917/2020 is maintainable under Article 226 of the Constitution of India and the order dated 20.11.2017 passed by the Caste Verification Committee, Bidar, and further proceedings are required to be quashed for the reasons infra.
21. I have carefully considered the order dated 20.11.2017 issued by the Caste Verification Committee, Bidar.
The said matter was referred to the Caste Verification Committee at the instance of one Shankerrao Doddi. The Caste Verification Committee, after considering the material produced by the parties, particularly the contesting respondent, arrived at a 25 conclusion that the contesting respondent was born on 06.07.1969 at Bonti, Ghamusubai Tanda, Bidar Taluk and District and the said fact was substantiated through the certificate issued by the competent authority under the provisions of Registration of Births and Deaths Act, 1969 read with the Rules made by the State of Karnataka. Insofar as residential certificate issued by the Deputy Tahsildar, Aurad-B Taluk is concerned, it specifies that the contesting respondent is a resident of Bonti Ghamusubai Tanda, Bidar Taluk and District.
Further, the resident certificate was confirmed through the voters list of Aurad-B Constituency pertaining to Bonti Ghamusubai Tanda, Bidar Taluk and District in the year 1993.
On perusal of the order passed by the Caste Verification Committee, firstly, the entire discussion has been made based on the particulars furnished by the contesting respondent and the documents referred to by the Caste Verification Committee are post 1993 and not earlier to the said period, and there is no discussion with regard to the documents produced by the complainant therein (Shankerrao Doddi) by the Caste Verification Committee in the impugned order, and on the other 26 hand, the entire discussion by the Caste Verification Committee is solely based on the documents relied upon by the contesting respondent No.5 and therefore, I am of the opinion, that the Caste Verification Committee requires to arrive at a fair conclusion and to pass orders based on the material produced by both the parties, to do justice to the parties.
22. Secondly, the said complainant-Shankerrao Doddi challenged the order passed by the Caste Verification Committee before the 3rd respondent-Commissioner, Social Welfare Department, Bengaluru. It is forthcoming from the order produced at Annexure-G that, when the matter was taken up for hearing, strangely, the complainant therein had engaged new counsel and filed a memo seeking withdrawal of the appeal. In respect of the said proceedings are concerned, learned Special counsel highlighted on the conduct of the complainant/appellant therein. Resultantly, the appellate authority dismissed the appeal as withdrawn and passed the following order:
"The Appeal filed by the Appellant is dismissed as withdrawn. As rightly pointed by the learned Special Counsel in this appeal a serious issue regarding the caste 27 status of the respondent No.6 who is contesting for ensuing election. When a serious issue regarding the caste status is raised before this Authority that too, after prolonged arguments the appellant now has come forward to withdraw the appeal. By this, he has wasted not only the precious time of this Court, but also the precious time of the learned Special Counsel and the respondent No.6. The very conduct of the appellant has to be deprecated. Hence, taking in to the account of the time consumed by this authority and also regarding the conduct of the appellant, it would be appropriate for me to impose an exemplary cost of Rs.1,00,000/. The appellant is hereby directed to deposit the said amount towards the Central Relief Committee for the Welfare of Homeless and Poor within 15 days from the date of the order passed by this authority. If the appellant fails to remit said amount, the respondent No.3 has to recover the said amount forthwith. Inspite of this order if the appellant fails to deposit the said amount necessary legal action may be taken against him."
(emphasis supplied)
23. The order passed by the appellate authority, directing the Deputy Commissioner, Bidar to conduct detail enquiry as per the observation made by the Directorate of Civil Rights Enforcement Cell dated 08.08.2016 reads as follows:
28"²æà ¥Àæ¨sÀÄ ZÀªÁít, ºÁ° ±Á¸ÀPÀgÀÄ OgÁzï PÉëÃvÀæ, ©ÃzÀgÀ f¯Éè gÀªÀgÀ eÁw «ZÁgÀuAÉ iÀÄ£ÀÄß J¸ï.¦.£ÁºÀeÁ¤, PÀ®§ÄgÀV ¥ÁæzÉòPÀ, PÀ®§ÄgÀV gÀªÀgÀÄ PÉÊUÉÆAqÀÄ F PÀbÉÃjUÉ G¯ÉèÃRzÀ jÃvÁå «ZÁgÀt ªÀgÀ¢AiÀÄ£ÀÄß ¸À°¹è PÉÆArgÀÄvÁÛg.É ¸ÀzjÀ ªÀgÀ¢AiÀÄ£ÀÄß ¥Àg²À ð¸À¯ÁV, ²æà ¥Àæ¨sÀÄ ZÀªÁít gÀªÀgÀÄ ªÀÄÆ®vÀ: ªÀĺÁgÁµÀÖç gÁdåzÀªÀgÁVzÀÄ,Ý '«ªÀÄÄPÀÛ eÁwAiÀÄ ®A¨ÁtÂ' ¥ÀæªÀUÀðzÀ°è §gÀĪÀ eÁwUÉ ¸ÉÃjzÀªÀgÁVgÀÄvÁÛg.É EªÀgÀÄ ªÀÄvÀÄÛ EªÀgÀ ªÀÄPÀ¼Ì ÀÄ ªÀĺÁgÁµÀÖç gÁdåzÀ°è ºÀÄnÖzÀÄÝ, EªÀgÀ ¸ÀA§A¢üPÀg® É ègÀÆ ¸ÀºÀ ªÀĺÁgÁµÀÖç gÁdåzÀ ¯ÁvÀÆgÀ f¯ÉAè iÀÄ GzÀVgÀ vÁ®ÆèQ£À vÉÆUÀj UÁæªÀÄzÀ°è ªÁ¸ÀªÁVgÀÄvÁÛg.É JzÀÄgÀÄzÁgÀgÀÄ vÀªÀÄä vÁ¬ÄAiÉÆA¢UÉ PÀ£ÁðlPÀ gÁdåzÀ ©ÃzÀgï f¯ÉAè iÀÄ OgÁzï vÁ®ÆèQ£À ¨ÉÆAw UÁæªÀÄzÀ WÀªÀĸÀĨÁ¬Ä vÁAqÀPÉÌ ªÀ®¸É §A¢gÀÄvÁÛg.É JzÀÄgÀÄzÁgÀgÀÄ ªÀÄÆ®vÀB ªÀĺÁgÁµÀÖç gÁdåzÀªÀgAÉ zÀÄ zÁR¯ÁwUÀ½AzÀ ªÀÄvÀÄÛ «ZÁgÀuɬÄAzÀ zÀÈqsÀ¥ÀnÖgÀÄvÀÛz.É JzÀÄgÀÄzÁgÀgÀÄ PÀ£ÁðlPÀ gÁdåzÀªÀg® À è¢zÀÝgÀÆ vÀº²À ïÁÝgï, OgÁzï (©) gÀªjÀ AzÀ ¥Àj²µÀÖ eÁwAiÀÄ '®ªÀiÁtÂ" JAzÀÄ ¸ÀļÀÄî eÁw ¥ÀæªÀiÁt ¥ÀvÀæªÀ£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀÄ CzÀgÀ DzsÁgÀzÀ ªÉÄÃ¯É «ÄøÀ¯ÁwAiÀÄrAiÀÄ°è OgÁzï «zsÁ£À¸À¨sÁ PÉëÃvÀæzÀ ±Á¸ÀPÀgÀ ZÀÄ£ÁªÀuÉUÉ ©.eÉ.¦. ¥ÀPÀë¢AzÀ 2008 ªÀÄvÀÄÛ 2013 gÀ°è ¸Àà¢üð¹ ±Á¸ÀPÀgÁV DAiÉÄAÌ iÀiÁVgÀÄvÁÛg.É EzÀjAzÀ PÀ£ÁðlPÀ gÁdåzÀ ¤dªÁzÀ ¥Àj²µÀÖ eÁwAiÀĪÀgÉUÉ ºÁUÀÆ ¸ÀPÁðgÀPÉÌ ªÉÆøÀ ªÀiÁrgÀĪÀÅzÀÄ «ZÁgÀuÁ PÁ®zÀ°è ¸ÀAUÀ» æ ¹zÀ zÁR¯ÁwUÀ½AzÀ ªÀÄvÀÄÛ ºÉýPÉUÀ½AzÀ zÀÈqsÀ¥ÀnÖgÀÄvÀÛzÉ.
DzÀjÝ AzÀ ¸ÀzjÀ AiÀĪÀgÀ eÁwAiÀÄ §UÉÎ vÀªÀÄä ºÀAvÀz° À è ¥Àj²Ã°¹, CAwªÀÄ ¤tðAiÀÄ vÉUÉzÀÄPÉƼÀÄîªÀ PÀÄjvÀÄ G¯ÉèÃTvÀ «ZÁgÀuÁ ªÀgÀ¢ ªÀÄvÀÄÛ 29 ªÀÄÆ® zÁR¯ÁwUÀ¼À£ÀÄß vÀªÀÄä ªÀÄÄA¢£À PÀæªÀÄPÁÌV EzÀgÉÆA¢UÉ ®UÀw¹Û ¸À°¹è zÀÄ,Ý PÀÆqÀ¯Éà ¸ÀzjÀ gÀªÀgÀ eÁwAiÀÄ §UÉÎ ¤tðAiÀÄ vÉUÉzÀÄPÉÆAqÀÄ vÀªÀÄä CAwªÀÄ DzÉñÀzÉÆA¢UÉ ªÀÄÆ® zÁR¯ÁwUÀ¼À£ÀÄß F PÀbÃÉ jUÉ ªÀÄÄA¢£À PÀæªÀÄPÁÌV »A¢gÀÄV¸À®Ä PÉÆÃjzÉ."
(emphasis supplied)
24. The aforesaid observation by the Director of Civil Rights Enforcement Cell is based on the investigation conducted by their office as per the letter dated 01.01.2016 produced at Annexure-D. The said investigation having been conducted by an independent body, cannot be brushed aside solely based on the documents produced by the contesting respondent before the Caste Verification Committee and therefore, this Court expresses its shock and surprise to the way in which the proceedings were initiated and concluded by the quasi-judicial bodies, especially, Caste Verification Committee.
25. The third aspect that needs to be considered in these petitions is that, the Deputy Commissioner Bidar, issued notice Annexure-F 03.06.2020 to the contesting respondent and in this regard, I have summoned entire original records from the office 30 of the Deputy Commissioner, Bidar. The same would reflect that though the said notice has been ordered to the contesting respondent, however, the same has not been served on the contesting respondent for the reason best known to the Deputy Commissioner, Bidar and the contesting respondent. That apart, as rightly argued by the learned senior counsel Sri G.K. Bhat, the contesting respondent being a Cabinet Minister in the State of Karnataka and in charge Minister of Bidar District and therefore, it may not be out of place to say that the entire district administration is under the control of the contesting respondent. This Court infers that there may be chances of political influence and the contesting respondent might have prevailed over the office of the Deputy Commissioner, Bidar to see that notice dated 03.06.2020 is not served upon him. In this connection, the office of the Deputy Commissioner, Bidar, issued endorsement dated 26.11.2021, rejecting the application dated 26.05.2020 made by the petitioner in W.P.No.226907/2020, and thereafter, within a span of four days, for the reasons best known to them, passed another endorsement dated 30.11.2021 withdrawing the earlier 31 endorsement dated 26.11.2021 and stated that the grievance of the petitioner will be considered only after disposal of these writ petitions. This act would raise doubt in the minds of the Court that, there is lack of fairness in the proceedings conducted by the respondent-authorities.
26. It is to be noted from the original records that no progress has been made by the office of the Deputy Commissioner, Bidar pursuant to the issuance of notice dated 03.06.2020 and the same would shock the conscience of this Court.
27. Nextly, I have carefully considered the submission made by the learned special counsel appearing for the respondents who has repeatedly and consciously contended that the respondent No.5 is born in State of Maharashtra and not in the State of Karnataka. The said submission made by the learned special counsel for the State cannot be brushed aside by this Court since the documents in question are passed by the respondent-State only and therefore, I find force in the submission made by the learned special counsel to arrive at a 32 conclusion that a re-enquiry needs to be made to determine the residential status of the contesting respondent.
28. Having arrived at a conclusion that in the present case, an enquiry is required to be made to determine the residential status and to verify the caste of the contesting respondent, for the reasons stated above, I am very conscious about the rulings relied upon by learned Senior Counsel, Sri Ashok Haranahalli, for the contesting respondent. In the case of R. S. MAHADEV (supra), the Division Bench of this Court, while dismissing the writ appeal, at paragraph 34 of the judgment, had come to a conclusion that there was no falsehood, fabrication, manipulation or concealment made by the respondent therein while issuing the caste certificate. However, the pronouncement made by the Division Bench is not applicable to the case on hand, as the narration of the facts of the present case, the way in which proceedings are being conducted by the quasi-judicial body and the finding recorded above would clearly indicate that the contesting respondent win over the respondent-
authorities and therefore, I do not find that the observation 33 made in the above judgment is applicable to the facts on hand.
I have also carefully noticed the finding recorded by the Co-
ordinate Bench of this Court in the case of H.P. RAJESH (supra).
Undisputably, the said writ petition is filed challenging the order in Election Petition. I fully endorse the view taken by this Court at paragraph 15 of the said judgment, wherein the Caste Verification Committee alone considers the validity certificate determining the caste under Section 4 and 4-C of the Act. The appeal against the order passed by the Caste Verification Committee under Section 4-C of the Act lies to the authorities mentioned under Section 4-D of the Act. In the case on hand, the petitioners have pleaded that there is a fraud committed by the contesting respondent while obtaining the caste certificate from the Tahsildar, Aurad-B Taluk and also substantiate the same by filing various documents in the writ petitions to demonstrate that there is likelihood of bias by the respondent-
authorities and therefore, the judgment of the Co-ordinate Bench of this Court in the case of H. P. RAJESH (supra), is not applicable to the facts of the present case.
3429. It is pertinent to refer to the dictum of the Hon'ble Apex Court in the case of J. CHITRA (supra). In the said judgment, the observation made at paragraphs 7 to 9 of the judgment read thus:
"7. Realising the pernicious practice of false caste certificates being utilized for the purpose of securing admission to educational institutions and public employment depriving genuine candidates of the benefits of reservation, this Court in Kumari Madhuri Patil (supra) issued the following directions :
"1. The application for grant of social status certificate shall be made to the Revenue Sub- Divisional 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 non- gazetted officer with particulars of castes and sub- castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.
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 post.
4. All the State Governments shall constitute a Committee of three officers, namely, (I) an 35 Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, 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 over-all 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 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.
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 36 concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned 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 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/Additional 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 vis-à-vis 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 37 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 day-to-day 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 non-official 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.
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 136.38
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 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 educational institution concerned or the appointing authority by registered post with acknowledgement 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 from further study or continue in office in a post."
8. In Dayaram (supra), this Court was of the view that the Scrutiny Committee is an administrative body which verifies the facts and investigates into claims of caste status. The orders of the Scrutiny Committee are open to challenge in proceedings under Article 226 of the Constitution of India. It was further held by this Court that permitting civil suits with provisions for appeals and further appeals would defeat the very scheme and will encourage the very evils which this Court wanted to eradicate. It was observed that the entire scheme in Kumari Madhuri Patil (supra) will only continue till the 39 legislature concerned makes an appropriate legislation in regard to verification of claims for caste status as SC/ST. It was made clear that verification of caste certificates issued without prior inquiry would be verified by the Scrutiny Committees. Such of those caste certificates which were issued after due and proper inquiry need not to be verified by the Scrutiny Committees.
9. District Vigilance Committees for verification of community certificates issued to Scheduled Castes/ Scheduled Tribes were reconstituted on 06.07.2005 pursuant to the judgment of this Court in Kumari Madhuri Patil (supra). G.O. 108 dated 12.09.2007 contains guidelines issued by the Government of Tamil Nadu for the functioning of the District and State Level Vigilance Committees. The guidelines issued by the Government in G.O. 108 of 12.09.2007 are as follows:
9.1. In cases which were remitted to the three-
member District Level Vigilance Committee by the State Level Scrutiny Committee as per the Court directions before 12.09.2007, the decision of the District Vigilance Committee reconstituted by G.O. 111 dated 06.07.2005 regarding the genuineness of community certificate of Scheduled Tribes is final.
9.2. In case of community certificate issued by the Deputy Tahsildar/ Tahsildar has been found to be not genuine by the three-member District Vigilance 40 Committee and an individual has filed an Appeal to the State Level Scrutiny Committee, the individual shall be directed to approach the High Court by filing a Writ Petition.
9.3. If appeals are filed against orders passed by the two-member District Level Vigilance Committee to the State Level Scrutiny Committee and were not remitted back to the reconstituted three-member Scrutiny Committee by the Government, in view of pendency of Writ Petitions before the Court, the State Level Scrutiny Committee shall conduct an inquiry."
(underlining emphasised)
30. In the aforesaid case, the District Level Vigilance Committee cancelled the community certificate issued in favour of the appellant therein after conducting an enquiry and had arrived at a conclusion that the State Level Scrutiny Committee did not have power to re-open the matter relating to the caste certificate. However, the Hon'ble Apex Court, referring to the guideline No.7 in MADHURI PATIL v. COMMISSIONER, TRIBAL DEVELOPMENT, reported in 1994(6) SCC 241, held that if the enquiry is made based on the documents referred to therein, the same cannot be interfered with by the appellate authority.
41However, in the instant case, there is no due and proper enquiry by the Caste Verification Committee and further though the order dated 20.11.2017 passed by the Caste Verification Committee was assailed before the appellate authority in appeal C.R.No.01/2018-19, withdrawal of the appeal at the fag end of the proceedings, would raise doubt in the minds of this Court that the said withdrawal of the appeal by the appellant therein, requires detailed evaluation with regard to fairness of the parties. Therefore, in the light of the discussion made above, I am of the view that if the parties to the litigation raise plea of fraud, unfairness, unjustness and unreasonableness in the orders passed by the quasi-judicial authorities, this Court under Article 226 of the Constitution of India, shall step in to set right the injustice caused to the other side (see E. P. ROYAPPA v.
STATE OF TAMIL NADU reported in AIR 1974 SC 555).
31. The Hon'ble Supreme Court, in the case of In R.P. KAPUR v. STATE OF PUNJAB reported in AIR 1960 SC 866 at paragraph 6 of the judgment held thus:
42"6.....It is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. ..."
(emphasis supplied)
32. The said position of law was reiterated by the Hon'ble Supreme Court in the case of UNION OF INDIA AND OTHERS v. RAMESH GANDHI reported in (2012) 1 SCC 476.
33. In the case of REAL ESTATE AGENCIES V. STATE OF GOA AND OTHERS reported in (2012)12 SCC 170, at paragraphs 16 to 18 of the judgment, the Hon'ble Supreme Court has held thus:
"16. A reading of the order of the High Court would go to show that its refusal to interdict the developmental works undertaken or about to be undertaken is on the ground that the Petitioner has an efficacious alternative remedy, i.e. a suit for injunction. The Writ Court exercising jurisdiction under Article 226 of the Constitution is fully empowered to interdict the State or its instrumentalities from embarking upon a course of action to detriment of the rights of the citizens, though, in the exercise of jurisdiction in the domain of public law 43 such a restraint order may not be issued against a private individual. This, of course, is not due to any inherent lack of jurisdiction but on the basis that the public law remedy should not be readily extended to settlement of private disputes between individuals. Even where such an order is sought against a public body the Writ Court may refuse to interfere, if in the process of determination disputed questions of fact or title would require to be adjudicated.
17. However, there is no universal rule or principle of law which debars the Writ Court from entertaining adjudications involving disputed questions of fact. In fact, in the realm of legal theory, no question or issue would be beyond the adjudicatory jurisdiction under Article 226, even if such adjudication would require taking of oral evidence. However, as a matter of prudence, the High Court under Article 226 of the Constitution, normally would not entertain a dispute which would require it to adjudicate contested questions and conflicting claims of the parties to determine the correct facts for due application of the law. In ABL International Ltd. & Anr. V. Export Credit Guarantee Corporation of India Ltd., the precise position of the law in this regard has been explained in paragraphs 16, 17 and 19 of the Judgment in the course of which the earlier views of this Court in Smt. Gunwant Kaur & Ors. v. Municipal Committee, Bhatinda and Century Spg. & Mfg. Co. Ltd. v. Ulhasnagar Municipal Council has been referred to.44
18. The aforesaid paragraphs of the judgment in ABL International Ltd. & Anr. v. Export Credit Guarantee Corporation of India Ltd. may, therefore, be usefully extracted below: (SCC pp. 567-69) "16. A perusal of this judgment though shows that a writ petition involving serious disputed questions of facts which requires consideration of evidence which is not on record, will not normally be entertained by a court in the exercise of its jurisdiction under Article 226 of the Constitution of India. This decision again, in our opinion, does not lay down an absolute rule that in all cases involving disputed questions of fact the parties should be relegated to a civil suit. In this view of ours, we are supported by a judgment of this Court in the case of Gunwant Kaur v. Municipal Committee, Bhatinda - 1969 (3) SCC 769 where dealing with such a situation of disputed questions of fact in a writ petition this Court held: (SCC p. 774, paras 14-16) '14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit-in-reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their 45 determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition.
Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.
15. From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector.
16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit-in-reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit."
17. The above judgment of Gunwant Kaur finds support from another judgment of this Court in the case of Century Spg. and Mfg.
Co. Ltd. v. Ulhasnagar Municipal Council 46 wherein this Court held: (SCC p. 587, para
13) '13.....Merely because a question of fact is raised, the High Court will not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive process by a civil suit against a public body. The questions of fact raised by the petition in this case are elementary.'
18. xxx xxx xxx
19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur (supra) this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken.
This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact."
34. In the case of DHANANJAYA REDDY v. STATE OF KARNATAKA reported in (2001) 4 SCC 9 at paragraph 23 of the judgment, it is observed thus:
47"23. It is settled principle of law that where a power is given to do a certain thing in a certain manner, the thing must be done in that way or not at all. This Court in State of Uttar Pradesh v. Singhara Singh held :
"A Magistrate, therefore, cannot, in the course of investigation, record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down."
35. In STATE OF ORISSA AND ANOTHER v. MAMATA MOHANTY reported in 2011 AIR SCW 1332 at paragraphs 36, 38 to 42, the Apex Court has observed thus:
"36. It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. This principle also applies to judicial pronouncements. Once the court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the court to rectify the mistake rather than perpetuate the same. While dealing with a similar issue, this Court in Hotel Balaji & Ors. v. State of A.P. & 48 Ors., AIR 1993 SC 1048 : (1993 AIR SCW 3) observed as under:
"...To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v. Delameter (A.M.Y. at page 18: `a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors'".
37. xxx xxx xxx ARBITRARINESS:
38. The rule of law inhibits arbitrary action and also makes it liable to be invalidated. Every action of the State or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even give an impression of bias, favouritism and nepotism. Procedural fairness is an implied mandatory requirement to protect against arbitrary action where Statute confers wide power coupled with wide discretion on an authority. If the procedure adopted by an authority offends the fundamental fairness or established ethos or shocks the conscience, the order stands vitiated. The decision making process remains bad. (Vide Haji T.M. Hassan Rawther v. Kerala Financial Corporation, AIR 1988 SC 157; Dr. Rash Lal Yadav v. State of Bihar & Ors., (1994) 5 SCC 267; (1994 AIR SCW 3329); and Tata 49 Cellular v. Union of India, (1994) 6 SCC 651 : ( AIR 1996 SC 11) : (1994 AIR SCW 3344).
39. In the State of Andhra Pradesh & Anr. v. Nalla Raja Reddy & Ors., AIR 1967 SC 1458, a Constitution Bench of this Court observed as under:
"Official arbitrariness is more subversive of doctrine of equality than the statutory discrimination. In spite of statutory discrimination, one knows where he stands but the wand of official arbitrariness can be waived in all directions indiscriminately."
40. Similarly, in S.G. Jaisinghani v. Union of India & Ors., AIR 1967 SC 1427, a Constitution Bench of this Court observed as under:
"....absence of arbitrary power is the first essence of the rule of law, upon which our whole Constitutional system is based..... Rule of law, from this point of view, means that the decision should be made by the application of known principle and rules and in general such decision should be predictable and the citizen should know where he is, if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law."
41. It is a matter of common experience that a large number of orders/letters/circulars, issued by the State/statutory authorities, are filed in court for placing reliance and acting upon it. However, some of them are definitely found to be not in conformity with law. There 50 may be certain such orders/circulars which are violative of the mandatory provisions of the Constitution of India. While dealing with such a situation, this Court in Ram Ganesh Tripathi & Ors. v. State of U.P. & Ors., AIR 1997 SC 1446: (1997) AIR SCW 126) came across with an illegal order passed by the statutory authority violating the provisions of Articles 14 and 16 of the Constitution. This Court simply brushed aside the same without placing any reliance on it observing as under:
"The said order was not challenged in the writ petition as it had not come to the notice of the appellants. It has been filed in this Court along with the counter affidavit... This order is also deserved to be quashed as it is not consistent with the statutory rules. It appears to have been passed by the Government to oblige the respondents......"
(Emphasis added)
42. The whole exercise done by the State authorities suffers from the vice of arbitrariness and thus is violative of Article 14 of the Constitution. Therefore, it cannot be given effect to."
36. The Hon'ble Apex Court in the case of UNITED INDIA INSURANCE COMPANY v. RAJENDRA SINGH AND OTHERS reported in AIR 2000 SC 1165, while dealing with the issue of fraud, at paragraphs 13, 14 and 15, has held as follows:
51"13. No one can possibly fault the Insurance Company for persistently pursuing the matter up to this court because they are dealing with public money. If they have discovered that such public fund, in a whopping measure, would be knocked off fraudulently through a fake claim, there is full justification for the Insurance Company in approaching the Tribunal itself first. At any rate the High Court ought not have refused to consider their grievances. What is the legal remedy when a party to a judgment or order of court later discovered that it was obtained by fraud?
14. In S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagnnath (dead) by Lrs. & ors. {1994 (1) SCC 1} the two Judges Bench of this Court held:
"Fraud avoids all judicial acts, ecclesiastical or temporal- observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court-has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings."
15. In Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd. {1996 (5) SCC 550} another two Judges bench, after making reference to a number of earlier decisions rendered by different High Courts in India, stated the legal position thus:
52"Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order."
37. In the case of PRESTIGE LIGHTS LIMITED v. STATE BANK OF INDIA reported in (2007)8 SCC 449, at paragraphs 33 to 35, the Hon'ble Supreme Court has observed thus:
"33. It is thus clear that though the appellant- Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a Court of Law is also a Court of Equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the Writ Court may refuse to entertain the petition and dismiss it without entering into merits of the matter.53
34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R v. Kensington Income Tax Commissioners, [(1917) 1 KB 486 : 86 LJ KB 257 : 116 LT 136], in the following words:
"(I)t has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should made a full and fair disclosure of all the material facts facts, not law. He must not misstate the law if he can help itthe Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the Court will set aside, any action which it has taken on the faith of the imperfect statement".
(emphasis supplied)
35. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a Writ Court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, the Court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from 54 abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible."
38. In the case of MUNICIPAL COUNCIL, SUJANPUR v.
SURINDER KUMAR reported in (2006)5 SCC 173, at paragraph 11 of the judgment, the Hon'ble Supreme Court observed thus:
"11. The High Court's jurisdiction to issue a writ of certiorari though is limited, a writ of certiorari can be issued if there is an error of law apparent on the face of the record. What would constitute an error of law is well known. In the Judicial Review of Administrative Action, IV edition p.136, S.A De Smith has summed up the position:-
"The concept of error of law includes the giving of reasons that are bad in law or (if there is a duty to give reasons) inconsistent, intelligible or, it would seem, substantially inadequate. It includes also the application of a wrong legal test to the facts found, taking irrelevant considerations into account and failing to take relevant considerations into account, exercising a discretion on the basis of any other incorrect legal principles, misdirection as 55 to the burden of proof, and wrongful admission or exclusion of evidence, as well as arriving at a conclusion without any supporting evidence."
(emphasis supplied)
39. In the case of MACKINNON MACKENZIE AND COMPANY LIMITED v. MACKINNON EMPLOYEES UNION reported in (2015)4 SCC 544 the Hon'ble Supreme Court held that "the Court cannot sympathise with a party which gambles in litigation to put off the evil day, and when that day comes, prays to be saved from its own gamble."
40. In the case of LT. COL. KHAJOOR SINGH v. UNION OF INDIA AND OTHERS reported in AIR 1961 SC 532, at paragraph 40 of the judgment, the Hon'ble Supreme Court observed thus:
"40. The foregoing discussion may be summed up in the following propositions: (1) The power of the High Court under Art. 226 of the Constitution is of the widest amplitude and it is not confined only to issuing of writs in the nature of habeas corpus, etc., for it can also issue directions or orders against any person or authority, including in appropriate cases any Government. (2) The 56 intention of the framers of the Constitution is clear, and they used in the Article words "any Government" which in their ordinary significance must include the Union Government. (3) The High Court can issue a writ to run throughout the territories in relation to which it exercises jurisdiction. and to the person or authority or Government within the said territories. (4) The Union Government has no constitutional situs in a particular place, but it exercises its executive powers in respect of matters to which Parliament has power to make laws and the power in this regard is exercisable throughout India; the Union Government must, therefore, be deemed in law to have functional existence throughout India. (5) When by exercise of its powers the Union Government makes an order infringing the legal right or interest of a person residing within the territories in relation to which a particular High Court exercises jurisdiction, that High Court can issue a writ to the Union Government, for in law- it must be deemed to be "within" that State also. (6) The High Court by issuing a writ against the Union Government is not travelling beyond its territorial jurisdiction, as the order is issued against the said Government "within" the State. (7) The fact that for the sake of convenience a particular officer of the said Government issuing an order stays outside the territorial limits of the High Court is not of any relevance, for it is the Union Government that will have to produce the record or carry out the order, as the case may be. (8) The orders issued by the High Court can certainly be enforced 57 against the Union Government, as it is amenable to its jurisdiction, and if they are disobeyed it will be liable to contempt. (9) Even if the Officers physically reside outside its territorial jurisdiction, the High Court can always reach them under the Contempt of Courts Act, if they choose to disobey the orders validly passed against the Union Government which cannot easily by visualized or ordinarily be expected. (10) The difficulties in communicating the orders pertain to the rules of procedure and adequate and appropriate rules can be male for communicating the same to the Central Government or its officers."
41. It also useful to refer to the decision in the case of ROSHAN DEEN v. PREETI LAL reported in AIR 2002 SC 33, at paragraph 12, it is observed thus:
"12. We are greatly disturbed by the insensitivity reflected in the impugned judgment rendered by the learned single Judge in a case where judicial mind would be tempted to utilize all possible legal measures to impart justice to a man mutilated so outrageously by his cruel destiny. The High Court non-suited him in exercise of a supervisory and extraordinary jurisdiction envisaged under Article 227 of the Constitution. Time and again this Court has reminded that the power conferred on the High Court under Article 226 and 227 of the Constitution is to advance justice and not to thwart it. {vide State of Uttar 58 Pradesh vs. District Judge, Unnao and ors. (AIR 1984 SC 1401)}. The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the byproduct of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law."
(emphasis supplied)
42. In the case of K.S. BHOIR v. STATE OF MAHARASHTRA reported in AIR 2002 SC 444, it is held that the power conferred on the High Court under Article 226 of Constitution of India is to enforce the rule of law and to ensure that the State and other statutory authorities act in accordance with law.
43. In the case of ARJUN v. JUMNADAS reported in AIR 1989 SC 1599, it is held that the High Court may interfere with the finding of fact, if it is shown that the finding is not supported 59 by any evidence or that the finding is perverse or based upon a view of facts which could never be reasonably entertained.
44. In the case of STATE OF KARNATAKA v. N.A. NAGENDRAPPA reported in AIR 1991 KAR 317, this Court has held that the existence of a statuary remedy is no bar to issue writ of mandamus where the ground on which relief is sought is beyond the competence of the statutory tribunal to entertain.
45. After following the rulings of the Hon'ble Supreme Court it may be deduced that, while exercising jurisdiction under Article 226 of Constitution of India this Court shall interfere in the cases where the statutory authority blindly acts in compliance with the direction or advise given by the Government.
46. It is also apt to follow the dictum of the Hon'ble Apex Court in the case of AYAAUBKHAN NOORKHAN PATHAN (supra), wherein at paragraph 23 of the judgment, Hon'ble Apex Court observed thus:
60"23. Thus, from the above it is evident that under ordinary circumstances, a third person, having no concern with the case at hand, cannot claim to have any locus- standi to raise any grievance whatsoever. However, in the exceptional circumstances as referred to above, if the actual persons aggrieved, because of ignorance, illiteracy, inarticulation or poverty, are unable to approach the court, and a person, who has no personal agenda, or object, in relation to which, he can grind his own axe, approaches the court, then the court may examine the issue and in exceptional circumstances, even if his bonafides are doubted, but the issue raised by him, in the opinion of the court, requires consideration, the court may proceed suo-motu, in such respect."
(emphasis supplied)
47. In the above case, the Apex Court further held that the "person aggrieved" be interpreted by looking into the facts and circumstances of the case; and further held that even if bona fides are doubted, Court is empowered to interfere with the order of the Caste Verification Committee. Applying the principles referred to above to the facts on hand, and for the reasons stated above, I am of the view that this Court has doubted the bona fides of the contesting respondent and therefore the same is required to be interfered with in these writ 61 petitions. That apart, the petitioner in Writ Petition No.225917/2020 belong to scheduled caste community and learned special Counsel to Government Shri Jagadish argued in support of the petitioner therein regarding maintainability of writ petition and he further denied the fact that the contesting respondent is not a resident of State of Karnataka and this would enlighten the Court to discern the truth of bona fides of the contesting respondent.
48. Yet another ground to interfere with the order passed by the Caste Verification Committee is that the scheme and mandate of the Act has not been properly followed by the Tahasildar and by the Caste Verification Committee. In this regard, it is useful to refer to the dictum of this Court, in the case of NARAYAN V SHIROOR v. THE TAHSILDAR, BHATKAL TALUK AND ANOTHER reported in ILR 2017 KAR 1561, wherein at paragraphs 18 and 19 of the judgment, this Court held as follows:
"18. The Hon'ble Apex Court in the case of State of Bihar and another Vs. J.A.C. Saldanna and others, 62 reported in 1980 SC 326 was pleased to hold at paragraph 17 as follows:
"... It was incidentally submitted that it is an undisputed dictum of law that when a statute requires a thing to be done in a certain manner it shall be done in that manner alone and the Court would not expect its being done in some other manner...."
It was further contended that because such an interpretation would derogate from the principle that where a thing is required by a statute to be done in a particular way it shall be deemed to have prohibited that thing being done in any other way. In ex-parte Stephens, [1976]3 Ch D 659, the principle is stated that if a statute directs a thing to be done in a certain way that thing shall not, even if there be no negative words, be done in any other way. Subba Rao, J. in Patna Improvement Trust v. Smt. Lakshmi Debi [1963] Supp 2 SCR 812 at p.823, spelt out the combined effect of the aforementioned principles thus;
"A general Act must yield to a special Act dealing with a specific subject-matter and that if an Act directs a thing to be done in a particular way, it shall be deemed to have prohibited the doing of that thing in any other way."
A reading of the Scheme of the Act mandates that any person or any candidate or his/her parents or guardian desirous of claiming a benefit of reservation under Section 4 either for appointment in any service or 63 post are required to make an application to the jurisdictional Tahsildar. In such form and in such manner as prescribed, for issue of an income and Caste Certificate. Upon receipt of such an application either under sub-Section (1) or sub- Section (2) of Section 4- A of the Act 1990. Sub-Section (3) mandates the Tahsildar to hold such enquiry and after satisfying himself regarding the genuineness of the claim and upon arriving at such conclusion, he is required to issue the Caste Certificate in the prescribed form or reject the application. It is mandatory on the Tahsildar to follow such procedure as prescribed before passing the Order under sub-Section (3).
19. That a conjoint reading of the above provision would demonstrate that the Act stipulates the requirement for an enquiry under sub-Section (3) and that the enquiry ought to be in conformity with the procedure prescribed and as mandated by sub-Section (4) of the said Section. Section 4-B of the Act, 1990 stipulates that any person aggrieved by the order of the Tahsildar may prefer an appeal to the Assistant Commissioner of the Divisional sub-Division. Sub-Section (2) of Section 4-B of the Act 1990 stipulates that the Assistant Commissioner of the Revenue Sub-Division after giving both the parties an opportunity of being heard shall pass orders allowing or dismissing the appeal or in appropriate case directing issue of Caste Certificate or Income and Caste Certificate to the applicant i.e., in 64 essence sub-Section (2) empowers the Appellate Authority with limited powers with regard to the relief it could grant. The Assistant Commissioner can either allow or dismiss the appeal or direct issue of Certificate. That in the instant case, the Appellate Authority has ventured to refer the same to the Verification Committee, which power is not vested with the Assistant Commissioner. The Act i.e., sub-Section (2) of Section 4-B having stipulated the nature of the relief and orders that could be granted by the Appellate Authority. The Appellate Authority could not have ventured to grant the relief other than those stipulated under the Act in the light of the above discussion and in the light of the law laid-down by the Hon'ble Apex Court in the case of J.A.C. Saldanna, the act of the Appellate Authority in referring the appeal to the Verification Committee is contrary to the Scheme and mandate of the Act and hence, the same is unsustainable. Consequently, it is held that the reference of the appeal to the Verification Committee and the consequential reference of the same to the Tahsildar by the Verification Committee and the Order of the Deputy Commissioner and the instructions of the Deputy Commissioner directing the Tahsildar - 1st respondent to cancel the Certificate are unsustainable being contrary to the principles of law- laid down by the Hon'ble Apex Court and the provisions of the Act 1990 and the provisions of sub-Section (2) of Section 4-B of the Act 1990. Accordingly, while holding so, it is to be seen that the relief sought for i.e., prayer No.(1) sought for by the petitioner cannot be granted as 65 no powers of cancellation are vested with the Tahsildar under the provisions of sub-Section (2) of Section 4-B of the Act 1990 and it is the Appellate Authority, who alone can either confirm the grant of Certificate or set aside the Certificate granted."
(underlining supplied)
49. Applying the principles laid down by this Court in the abovesaid case, with regard to the scheme of the Act, respondent authorities, ought to have followed the procedure contemplated under the Act. Both authorities have not appreciated the documents of either side in the manner known to law and on the other hand, no discussion has been made with regard to documents filed by Sri Shankerrao Doddi-applicant therein.
50. To answer the points that are framed with regard to interference with the impugned orders, it is trite law that exercising of power under Article 226 of Constitution of India is discretionary in nature and same has to be exercised to set right the injustice caused to the litigant. It is well established principle of law that the person seeking equity, must do equity.
66Granting of relief under Article 226 of the Constitution of India is by exercising equitable discretion. Parties to the writ petition shall approach the Court with clean hands. It is expected that every citizen, who approach the equitable jurisdiction under Article 226 of the Constitution of India seeking justice, should be fair to the Court. "Fairness" is the condition precedent for Article 14 of the Constitution of India. "Fairness" implies that the authorities under Article 12 of the Constitution of India must not have acted arbitrarily or capriciously or could come to a conclusion, which cannot be considered as perversity in nature.
The rules of natural justice are not codified nor are they unvarying in all situations, rather they are flexible. The natural justice be summarized in one word "Fairness".
51. In the case of MOHINDER SINGH GILL AND ANOTHER v. THE CHIEF ELECTION COMMISSIONER, NEW DELHI AND OTHERS reported in (1978)1 SCC 405, at paragraphs 43 to 63, 66, 70, 76 and 130 of the judgment, the Hon'ble Supreme Court observed thus:
67"43. Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of Authority. It is the bone of healthy government, recognised from earliest times and not a mystic testament of judge-made law. Indeed, from the legendary days of Adam-and of Kautilya's Arthasastra-the rule of law has had this stamp of natural justice which makes it social justice. We need not go into these deeps for the present except to indicate that the, roots of natural justice and its foliage are noble and not newfangled. Today its application must be sustained by current legislation, case- law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system.
44. The dichotomy between administrative and quasi-judicial functions vis-a-vis the doctrine of natural justice is presumably obsolescent after Kraipak in India and Schmidt in England.
45. Kraipak marks the watershed, if we may say so, in the application of natural justice to administrative proceedings. Hegde, J., speaking for a Bench of five judges observed, quoting for support Lord Parker in In re H.K. (an infant):68
"It is not necessary to examine these decisions as there is a great deal of fresh thinking on the subject. The horizon of natural justice is constantly expanding.(p. 467) (SCC p.271, para 17) The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it.(p. 468) (SCC p. 272, para
20) The validity of that limitation is not questioned.
If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative inquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi- judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. The University of Kerala the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case."
6946. It is an interesting sidelight that in America it has been held to be 'but fundamental fairness that the tight to an administrative hearing is given. Natural justice is being given access to the United Nations. It-is notable that Mathew, J. observed in Indira Gandhi (p. 513, scc p.128, para 303):
'If the amending body really exercised judicial power that power was exercised in violation of the principles of natural justice of audi alteram partem. Even if a power is given to a body without specifying that the rules of natural justice should be, observed in exercising it, the nature of the, power would call for its observance.' Lord Morris of Borthy-Gest in his address before the Bentham :club concluded :
We can, I think, take pride in what has been done in recent periods and particularly in the field of administrative law by invoking and by applying those principles which we broadly classify under the designation of natural justice. Many testing problems as to their application yet remain to be solved. But affirm that the area of administrative action is but one area in which the principles are to be deployed. Nor are they to be invoked only when procedural failures are shown. Does natural justice qualify to be described as a "majestic"conception? I believe it does. Is it just a rhetorical but vague phrase which can I be employed, when needed, to give a gloss of assurance? I believe that it is very much more. If it can be summarised as being fair play in action-who could wish that it would ever be out of action? It denotes that the law is not only to be guided by reason and by logic but that its purpose will not be fulfilled if it lacks more exalted inspiration.70
47. It is fair to hold that subject to certain necessary limitations natural justice is now a brooding omnipresence although varying in its play.
48. Once we understand the soul of the rule as fairplay in action-and it is so-we must hold that it extends to both the fields. After all, administrative power in a democratic set-up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice. Nor is there ground to be frightened of delay, inconvenience and expense, if natural justice gains access. For fairness itself is a flexible: pragmatic and relative concept, not a rigid, ritualistic or sophisticated abstraction. It is not a bull in a china shop nor a bee in one's bonnet. Its essence is good conscience in a given situation: nothing more- but nothing less. The 'exceptions' to the rules of natural justice are a misnomer or rather are but a shorthand form of expressing the idea that in those exclusionary cases nothing unfair can be inferred by not affording an opportunity to present or meet a case. Text-book excerpts and ratios from rulings can be heaped, but they all converge to the same point that audi alteram partem is the justice of the law without, of course, making law lifeless, absurd, stultifying, self- defeating or plainly contrary to the commonsense of the situation.
49. Let us look at the jurisprudential aspects of natural justice, limited to the needs of the present case, as the doctrine has developed in the Indo-Anglian systems. We 71 may state that the question of nullity does not arise here because we are on the construction of a constitutional clause. Even otherwise, the rule of natural justice bears upon construction where a statute is silent save in that category where a legislation is charged with the vice of unreasonableness and consequential voidness.
50. Article 324, on the face of it, vests vast functions which may be powers or duties, essentially administrative and marginally even judicative or legislative. (See All Party Hill Leaders Conference, Shillong v. Capt. W. A. Sangma). We are not fascinated by the logo-machic exercise suggested by Sri P. P. Rao, reading 'functions' in contradistinction to 'powers' nor by the trichotomy of diversion of powers, fundamentally sound but flawsome in several situations if rigidly applied. These submissions merely serve to draw the red-herring across the trial. We will now zero-in on the crucial issue of natural justice vis a vis Article 324 where the function is so exercised that a candidate is substantially prejudiced even if be has not acquired a legal right nor suffered 'civil consequence', whatever that may mean.
51. We proceed on the assumption that even if the cancellation of the poll in this case were an administrative act, that per se does not repel the application of the natural justice principle. Kraipak (supra) nails the contrary argument. Nor did the learned Additional Solicitor General contend that way, taking his stand all through, not on technicalities, easy victories or pleas for 72 reconsideration of the good and progressive rules gained through this Court's rulings in administrative law but on the foundational thesis that any construction that we may adopt must promote and be geared to the great goal of expeditious, unobstructed, despatch of free and fair elections and leaving grievances to Ice fully sorted out and solved later before the election tribunal set out by the Act. To use a telling word familiar in officialese : 'Election Immediate'.
52. So now we are face to face with the naked issue of natural justice and its pro tem exclusion on grounds of necessity and non-stultification of the on-going election. The Commission claims that a direction for re-poll is an 'emergency' exception. The rules of natural justice are rooted in all legal systems, not any 'new theology', and are manifested in the twin principles of nemo judes in sua caues and audi alteram partem. We are not concerned here with the former since no case of bias has been urged. The grievance ventilated is that being condemned unheard. Sporadic applications or catalogue of instances cannot make for a scientific statement of the law and so we have to weave consistent criteria for application and principles for carving out exceptions. If the rule is sound and not negatived by statute, we should not devalue it nor hesitate to hold every functionary who effects others' right to it. The audi alteram partem rule has a few facets two of which are (a) notice of the case to be met; and (b) opportunity to explain. Let us study how far the situation 73 on hand can co- exist with canons of natural justice. When natural justice is universally respected, the standards vary with situations, contracting into a brief, even post-decisional opportunity, or expanding into trial- type trappings.
53. Ridge v. Baldwin is a leading case which restored light to an area 'benighted by the narrow conceptualism of the previous decade to borrow Professor Clark's expression. Good administration demands fairplay in action and this simple desideratum is the fount of natural justice. We have already said that the classification of functions as judicial' or 'administrative' is a stultifying shibboleth, discarded in India as in England. Today, in our jurisprudence, the advances made by natural justice far exceed old frontiers and if judicial creativity belights penumbral areas it is only for improving the quality of government by injecting fairplay into its wheels.
54. The learned Additional Solicitor General welcomed the dramatic pace of enlargement in the application of natural justice. But he argued for inhibiting its spread into forbidden spaces lost the basic values of Art. 329 be nullified. In short, his point is that where utmost promp- titude is needed-and that is the raison d'etre of exclusion of intermediate legal proceedings in election matters- natural justice may be impractical and may paralyse, thus balking the object of expeditious completion. He drew further inspiration from another factor to validate the exclusion of natural justice from the Commission's 74 actions, except where specifically stipulated by statutes. He pointed out what we have earlier mentioned-that an election litigation is one in which the whole constituency of several lakhs of people is involved and, if the Election Commission were under an obligation to hear affected parties it may, logically, have to give notice to lakhs of people and not merely to candidates. This will make an ass of the law and, therefore, that is not the law. This reduction and absurdum also has to be examined.
55. Law cannot be divorced from life and so it is that the life of the law is not logic but experience. If, by the experiential test, importing the right to be heard will paralyse the process, law will exclude it. It has been said that no army can be commanded by a debating society, but it is also true that the House of Commons did debate, during the days of debacle and disaster, agony and crisis of the Second World War, the life-and-death aspects of the supreme command by the then British Prime Minister 'to the distress of all our friends and to the delight of all our foes'-too historic to be lost on jurisprudence. Law lives not in a world of abstractions but in a cosmos of concreteness and to give up something good must be limited to extreme cases. If to condemn unheard is wrong, it is wrong except where it is overborne by dire social necessity. Such is the sensible perspective we should adopt if ad hoc or haphazard solutions should be eschewed.
7556. Normally, natural justice involves the irritating inconvenience for men in authority, of having to hear both sides since notice and opportunity are its very marrow. And this principle is so integral to good government, the onus is on him who urges exclusion to make out why. Lord Denning expressed the paramount policy consideration behind this rule of public law (while dealing with the nemo judex aspect) with expressiveness.
"Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking 'the judge was biased'. "We may adapt it to the audi alteram situation by the altered statement : "Justice must be felt to be just by the community if democratic legality is to animate the rule of law. And if the invisible audience sees a man's case disposed of unheard, a chorus of 'no- confidence' will be heard to say, 'that man had no chance to defend his stance'." That is why Tuckor LJ in Russel v. Duke of Norfolk emphasised that 'whatever standard of natural justice is adopted, one A, essential is that the person concerned should have a reasonable opportunity of presenting his case'. What is reasonable in given circumstances is 'in the domain of practicability; not formalised rigidity. Lord Upjohn in Fernando observed that 'while great urgency may rightly limit such opportunity timeously, perhaps severely, there can never be a denial of that opportunity if the principles of natural justice are applicable'. It is untenable heresy, in our view, to look jaw the victim or act behind his back by tempting invocation of urgency, unless the clearest case of public 76 injury flowing from the least delay is self-evident. Even in such cases a remedial hearing as soon as urgent action has been taken is the next best. Our objection is not to circumscription dictated by circumstances, but to annihilation as an easy escape from a benignant, albeit inconvenient obligation. The procedural pre-condition of fair hearing, however minimal, even post- decisional, has relevance to administrative and judicial gentlemanliness. The Election Commission is an institution of central importance and enjoys far-reaching powers and the greater the power to affect others' right or liabilities the more necessary the need to hear.
57. We may not be taken to say that situational modifications to notice and hearing are altogether impermissible. They are, as the learned Additional Solicitor General rightly stressed. The glory of the law is not that sweeping rules are laid down but that it tailors principles to practical needs, doctors remedies to suit the patient promotes, not freezes. Life's processes, if we may mix metaphors. Tucker L.J. drove home this point when he observed in the Duke of Norfolk case (supra):
'There are no words which are of universal application to very kind of inquiry...... The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting the subject-matter that is being dealt with, and so forth.' This circumstantial flexibility of fair bearing has been underscored in Wiseman v. Borneman by Lord 77 Reid when he said he would be "sorry to see this fundamental general principle degenerate into a series of hard-and-fast rules." Lord Denning, with lovely realism and principled pragmatism, set out the rule in Selvaraien:
The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings. or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, when he should be told the case made against him and be afforded a fair opportunity of answering it. The investigation body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man.
Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only. Moreover it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report.
Courts must be tempered by the thought while compromise on principle is unprincipled, applied administrative law in modern complexities of government must realistic, not academic. The myriad maybes and the diverse urgencies are live factors. Natural justice should not destroy administrative order by insisting on the impossible.
58. This general discussion takes its to four specific submissions made by the learned Additional Solicitor General. He argued that the Election Commission, a high constitutional functionary, was charged with conducting 78 elections with celerity to bring the new House into being and the tardy process of notice and hearing would thwart this imperative. So no natural justice. Secondly, be submitted that there was no final determination to the prejudice of any party by directing a re-poll since the Election Court had the last word on every objectionable order and so the Commission's order was more or less provisional. So no natural justice. Thirdly, he took up the position that no candidate could claim anything more than an expectation or apes and no right having crystallised till official declaration of the result, there was no room for complaint of civil consequence. What was condemned was the poll, not any candidate. So no natural justice. Finally, he reminded us of the far-flung futility of giving a hearing to a numerous constituency which too was interested in proper elections like the candidates. So no natural justice.
59. De Smith was relied on and Wisemen as well as Pearlberg were cited in support of these propositions. We may add to these weighty rulings the decision of the House of Lords in Pearlberg. The decision of this Court in the ruling in Bihar School Examination Board v. Subhas Chandra Sinha & Ors., where a whole university examinations was cancelled without hearing any of the candidates but was up- held against the alleged vice of non-hearing, was relied on.
60. We must admit that the law, in certain amber areas of natural justice, has been unclear. Vagueness haunts this zone but that is no argument to shut down. If 79 it is twilit, we must delight. So we will play down the guidelines but guard ourselves against any decision on the facts of this case. That is left for the Election Court in the light of the law applicable.
61. Nobody will deny that the Election Commission in our democratic scheme is a central figure and a high functionary. Discretion vested in him will ordinarily be used wisely, not rashly, although to echo Lord Camden wide discretion is fraught with tyrannical potential even in high personages, absent legal norms and institutional checks, and relaxation of legal canalisation on generous 'VIP' assumptions may boomerang. Natural justice is one such check on exercise of power. But the chemistry of natural justice is confused in certain aspects., especially in relation to the fourfold exceptions put forward by the respondents.
62. So let us examine them each. Speed in action versus soundness of judgment is the first dilemma. Punnuswami (supra) has emphasised what is implicit in Article 329(b) that once the process of election has started, it should not be interrupted since the tempo may slow down and the early constitution of an elected parliament may be halted. Therefore, think twice before obligating a hearing at a critical stage when a quick re- poll is the call. The point is well taken. A fair hearing with fun notice to both or others may surely protract; and notice does mean communication of materials since no one can meet an unknown ground. Otherwise hearing 80 becomes hollow, the right becomes a ritual. Should the cardinal principle of 'hearing' as condition for decision- making be martyred for the cause of administrative, immediacy? We think not. The full panoply may not be there but a manageable minimum may make-do.
63. In Wiseman v. Borneman there was a hint of the competitive claims of hurry and hearing. Lord Reid said :
'Even where the decision has to be reached by a body acting judicially, there must be a balance between the need for expedition and the need to give fall opportunity to the defendant to see material against him' (emphasis added). We agree that the elaborate and sophisticated methodology of a formalised hearing may be injurious to promptitude no essential in ,in election under way. Even so, natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of circumstances. To burke it altogether may not be a stroke of fairness except in very exceptional circumstances. Even in Wiseman where all that was sought to be done was to see if there was a prima facie case to proceed with a tax case where, inevitably, a fuller bearing would be extended at a later stage of the proceedings, Lord Reid. Lord Morris of Borth-y-Gest and Lord Wilborforce suggested "that there might he exceptional cases where to decide upon it ex-parte would be unfair, and it would be the duty of the tribunal to take appropriate steps to eliminate unfairness "(Lord Denning M. R., in Manward v. Bornenam(2) summarised the 81 observations of the law Lords in this form). No doctrinaire approach is desirable but the Court must be anxious to salvage the cardinal rule to the extent permissible in a given case. After all, it is not obligatory that counsel should be allowed to appear nor is it compulsory that oral evidence should be adduced. Indeed, it is not even imperative that written statements should be called for Disclosure of the, prominent circumstances and asking for an immediate explanation orally or otherwise may, in many cases be sufficient compliance. It is even conceivable that an urgent meeting with the concerned parties summoned at an hour's notice, or in a crisis even a telephone call, may suffice. If all that is not possible as in the cue of a fleeing person whose passport has to be impounded lest he, should evades the course of justice or a dangerous nuisance needs immediate abatement, the action may be taken followed immediately by a hearing for the purpose of sustaining or setting aside the action to the extent feasible. It is quite on the cards that the Election Commission if pressed by circumstances, may give a short hearing. In any view, it is not easy to appreciate whether before further steps got under may he could not have afforded an opportunity of hearing the parties, and revoke the earlier directions. We do not wish to disclose our mind on what, in the critical circumstances, should have been done, for a fair-play of fair hearing. This is a matter pre-eminently for the Election Tribunal to judge, having before him the vivified totality of all the factors. All that we need emphasize is 82 that the content of natural justice is a dependent variable, not an easy casualty.
66. It was argued, based on rulings relating to natural justice, that unless civil consequences ensued, hearing was not necessary. A civil right being adversely affected is a sine qua non for the invocation of the audi alteram partem rule. This submission was supported by observations in Rain Gopal, Col. Sinha. Of course, we agree that if only spiritual censure is the penalty, temporal laws may not take cognizance of such consequences since human law operates in the material field although its vitality vicariously depends on its morality. But what is a civil consequence, let us ask ourselves,; by passing verbal booby-traps ? 'Civil consequence' undoubtedly cover infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence. 'Civil' is defined by Black (Law Dictionary 4th Edn.) at p.311.
Ordinarily, pertaining or appropriate to a member of a civitas of free political community; natural or proper to a citizen. Also, relating to the community, or to the policy and government of the citizens and subjects of a state.
The word is derived from the Latin civilie, a citizen. In law, it has various significations.
'Civil Rights' are such as belong to every citizen of the State or country, or, in a wider sense, to all 83 its inhabitants, and are not connected with the organisation or administration of government. They include the rights of property, marriage protection by the laws, freedom of contract, trial by jury, etc. Or, as otherwise defined, civil rights are rights appertaining to a person in virtue of his citizenship in a state or community. Rights capable or being enforced or redressed in a civil action. Also a term applied to certain rights secured to citizens of the United States by the thirteenth and fourteenth amendments to the constitution, and by various act,-, of congress made in pursuance thereof.
The interest of a candidate at an election to Parliament regulated by the Constitution and the laws comes within this gravitational orbit. The most valuable right in a democratic policy is the 'little man's' little pencil-marking, assenting or dissenting, called his vote. A democratic right, if denied, inflicts civil consequences. Likewise, the little man's right, in a representative, system of government, to rise to Prime Ministership or Presidentship by use of the right to be candidate, cannot be wished away by calling it of no civil moment. If civics mean anything to a self-
governing citizenry, if participatory democracy is not to be scuttled by the law, we shall not be, captivated by catchwords. The straightforward conclusion is that every Indian has a right to elect and be elected and this is a constitutional as distinguished from a common law right and is entitled to cognizance by courts subject to statutory regulation. We may also notice the further refinement urged that a right accrues to a candidate only when he is declared returned and until then it is incipient inchoate and intangible for legal assertion-in the twilight zone of expectancy, as it were.. This too, in our view, is legicidal sophistry. Our system of 'ordered' rights cannot disclaim cognizance of orderly processes as the right means to a right end. Our jurisprudence is not so jejune as to ignore the concern with the means as with the end with the journey as with the 84 destination. Every candidate, to put it cryptically, has an interest or right to fair and free and legally run election. To draw lots and decide who wins, if announced as the electoral methodology, affects his right, apart from his luckless rejection at the end. A vested interest in the prescribed process is a processual right, actionable if breached, the Constitution permitting. What is inchoate, viewed from the end, may be complete, viewed midstream. It is a subtle fallacy to confuse between the two. Victory is still an expectation qua mado is a right to the statutory procedure. The appellant has a right to have the election conducted nor according to humour or hubris but according to lay and justice. And so natural justice cannot be stumped out on this score. In the region of public law locus standi and person aggrieved, right and interest have a broader import. But, in the present case, the Election Commission contends that a hearing has been given although the appellant retorts that a vacuous meeting where nothing was disclosed and he was summarily told off would be strange electoral justice. We express no opinion on the factum or adequacy of the hearing but hold that where a candidate has reached the end of the battle and the whole poll is upset, he has a right to notice and to be heard, the quantum and quality being conditioned by the concatenation of circumstances.
70. In Subhash Chander Sinha (supra) Hidayatullah, CJ, speaking for the Court repelled the plea of natural justice when a whole examination was cancelled by the concerned university authorities. The reasons given are instructive. The learned Judge said that "the mention of fairplay does not come very well from the respondents who were grossly guilty of breach of fairplay themselves at the examinations." The court examined the grounds for cancellation of examinations and satisfied 85 itself that there was undoubted abundance of evidence that students generally had outside assistance in answering questions. The learned Judge went on further to say:
"This is not a case of any particular individual who is being charged with, adoption of unfair means but of the conduct of all the examinees or at least a vast majority of them at a particular centre. If it is not a question of charging anyone individually with unfair means but to condemn the examination as ineffective for the purpose it was held, must the Board give an opportunity to all the candidates to represent their cases? We think not. It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had not charged any one with unfair means so that he could claim to defend himself. The examination was vitiated by adoption of unfair means on a mass scale. In these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means. The examination as a whole had to, go.
If at a centre the whole body of students receive assistance and manage to secure success in the neighbourhood of 100% when others at other centres are successful only at an average of 50%, it is obvious that the university or the Board must do something in the matter. It cannot hold a detailed quasi-judicial inquiry with, a right to its alumni to plead and lead evidence etc. before the results are withheld or the examinations cancelled. If there is sufficient material on which it can be demonstrated that the university was right in its conclusion that the examinations ought to be cancelled then academic standards require that the university's appreciation of the problem must be 86 respected. It would not do for the Court to say that he should have examined all the candidates or even their representatives with a view to ascertaining whether they had received assistance or not. To do this would encourage, indiscipline if not also perjury."
These propositions are relied on by the learned Additional Solicitor General who seeks to approximate the present situation of cancellation of the poll to the cancellation of an examination. His argument is that one has to launch on a public enquiry allowing a large number of people to participate in the hearing if the cancellation of the poll itself is to be subjected to natural justice. He further said that no candidate was condemned but the poll process was condemned. He continued to find a parallel by stating that like the university being responsible for the good conduct of examinations, the Election Commission was responsible for the proper holding of the poll. We do not consider the ratio in Subhash Chander (supra) as applicable. In fact, the candidates concerned stand on a different footing from the electorate in general. They have acquired a very vital stake in polling going on properly to a prompt conclusion. And when that is upset there may be a vicarious concern for the constituency, why, for that matter, for the entire country, since the success of democracy depends on country-wide elections being held periodically and properly. Such interest is too remote and recondite, too feeble and attenuated, to be taken note of in a 87 cancellation proceeding. What really marks the difference is the diffusion and dilution. The candidates, on the other hand, are the spearheads, the combatants, the claimants to victory. They have set themselves up as nominated candidate organised the campaign and galvanised the electorate for the crown in event of polling and counting. Their interest and claim are not indifferent but immediate, not weak but vital. They are more than the members of the public. They are parties to the electoral dispute. In this sense, they stand on a better footing and cannot be denied the right to be heard or noticed. Even in the case of university examinations it is not a universal rule that notice need not be given. Ghanshyam Das Gupta's case illustrates this aspect. Even there, when an examination result of three candidates was cancelled, the Court imported natural justice. It was said that even if the enquiry involved a large number of persons, the committee should frame proper regulations for the conduct of such enquiries but not deny the opportunity. That case was distinguished in Subhash Chander the differentia being that in one case the right exercised was of the examining body to cancel its own examinations since it was satisfied that the examination was not properly conducted. It may be a parallel in electoral situations if the Election Commission cancels a poll because it is satisfied that the procedure adopted has gone away on a wholesale basis. Supposing wrong ballot papers in large numbers have been supplied or it has come to the notice of the Commission that in the 88 constituency counterfeit ballots had been copiously current and used on a large scale, then without reference to who among the candidates was more prejudiced, the poll might have been set aside. It all depends on the circumstances and is incapable of generalisation. In a situation like the present, it is a far cry from natural justice to argue that the whole constituency must be given a hearing. That is an ineffectual over-kill.
76. Fair hearing is thus a postulate of decision- making cancelling a poll, although fair abridgement of that process is permissible. It can be fair without the rules of evidence or forms of trial. It cannot be fair if apprising the affected and appraising the representations is absent. The philosophy behind natural justice is, in one sense, participatory justice in the process of democratic rule of law.
130. Being not altogether certain of all the facts and circumstances that may be made available, in the appropriate forum, it may be a premature exercise by this Court even to lay down guidelines when there is no hide- bound formula of rules of natural justice to operate in all cases and at all times when a decision has to be made. Justice and fairplay have often to be harmonised with exigencies of situations in the light of accumulated totality of circumstances in a given case having regard to the question of prejudice not to the mere combatants in an electoral contest but to the real and larger issue of completion of free and fair election with rigorous 89 promptitude. Not being adequately informed of all the facts and circumstances, this Court will not make the task of the election court difficult and embarrassing by suggesting guidelines in a rather twilight zone."
Referring to the above paragraphs in the case of M.S. GILL (supra) is relevant to the facts of the case, which postulates the principles to be followed by the respondent-authorities while adjudicating the matter provided under the Statute.
52. In the case of BHARAT SEWAK SAMAJ v.
LIEUTENANT GOVERNOR AND OTHERS reported in (2012)12 SCC 675, at paragraphs 12, 14 and 15, the Hon'ble Supreme Court observed thus:
"12. The amplitude, ambit and width of the rule of audi alteram partem was lucidly stated by the three- Judge Bench in Sayeedur Rehman Vs. The State of Bihar and Others, in the following words:
"...This unwritten right of hearing is fundamental to a just decision by any authority which decides a controversial issue affecting the rights of the rival contestants. This right has its roots in the notion of fair procedure. It draws the attention of the party concerned to the imperative necessity of not overlooking the other side of the case before coming to its decision, for nothing is more likely to conduce to just and right decision 90 than the practice of giving hearing to the affected parties."
13. xxx xxx xxx
14. In Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, Bhagwati, J. speaking for himself and Untwalia and Fazal Ali, Court. Observed:
"...The audi alteram partem rule is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law 'lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation'. Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would, by the experiential test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands. But at the same time it must be remembered that this is a rule of vital importance in the field of administrative law and it must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. It is a wholesome rule designed to secure the rule of law and the Court should not be too ready to eschew it in its application to a given case. True it is that in questions of this kind a fanatical or doctrinaire approach should be avoided, but that does not mean that merely because the traditional methodology of a formalised hearing may have the effect of stultifying the exercise of the statutory power, the audi alteram partem should be wholly excluded. The Court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that natural justice is pragmatically flexible and is amenable to capsulation under the 91 compulsive pressure of circumstances'. The audi alteram partem rule is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications. The core of it must, however, remain, namely, that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise."
15. In Swadeshi Cotton Mills Vs. Union of India (UOI), the majority of the three-Judge Bench held that the rule of audi alteram partem must be complied with even when the Government exercises power u/s 18AA of the Industries (Development and Regulation) Act, 1951 which empowers the Central Government to authorise taking over of the management of industrial undertaking. Sarkaria, J. speaking for himself and Desai, J. referred to the development of law relating to applicability of the rule of audi alteram partem to administrative actions, noticed the judgments in Ridge v. Baldwin 1964 AC 40, A.K. Kraipak and Others Vs. Union of India (UOI) and Others, , Mohinder Singh Gill v. Chief Election Commr. (supra), Maneka Gandhi v. Union of India (supra) and State of Orissa Vs. Court. (Miss) Binapani Dei and Others, and quashed the order passed by the Central Government for taking over the management of the industrial undertaking of the Appellant on the ground that opportunity of hearing had not been given to the owner of the undertaking and remanded the matter for fresh consideration and compliance with the rule of audi alteram partem."
(emphasis supplied) 92
53. It is also useful to refer to the dictum of the Hon'ble Apex Court, in the case of R.S.DASS v. UNION OF INDIA reported in AIR 1987 SC 593, wherein it is observed thus:
"It is well established that rules of natural justice are not rigid rules, they are flexible and their application depends upon the setting and background of statutory provisions, nature of the right which may be effected and the consequences which may entail, its application depends upon the facts and circumstances of each case. "
(emphasis supplied)
54. The aforementioned dictum of Hon'ble Apex Court, reminds that, the public authorities are required to maintain fairness in their action and fairness is the hallmark of the functioning of the Government. Absence of fairness, amounts to violation of Article 14 of the Constitution of India and invites the interference of this Court under Article 226 of Constitution of India. Whenever genuine public approach the Court with their grievance, the Court must examine the petition carefully to ensure that the grievance of the petitioner be met within the parameters of Constitution of India and same is the footnote of 93 the Constitution. It is the duty the Court to secure justice to the parties and to prevent miscarriage of justice. Compliance or non-compliance of the procedure, based on the fairness, has to be examined on the totality of the facts and circumstances in each case. In the case on hand, since the contesting respondent was in-charge Minister of Bidar District, though notice was issued by the Deputy Commissioner, however, same was not served on the contesting respondent and the appeal preferred before the appellate authority challenging the order passed by Caste Verification Committee came to be withdrawn at the fag end of the proceedings. That apart, there is no detailed discussion by the Caste Verification Committee relating to the grievance of the complainant therein and documents produced by him to counter the issuance of caste certificate by the Tahsildar. It is also relevant that withdrawal of the appeal, would substantiate the fact that a detailed enquiry is required in this matter by an independent Caste Verification Committee to remove a suspicion or likelihood of bias inter alia following the principles of natural justice (see. A.K.KRAIPAK v. UNION OF INDIA reported in AIR 1970 SC 150). In A.K. KRAIPAK, the Hon'ble Apex Court held 94 that the doctrine of natural justice is not only to secure justice but also to prevent miscarriage of justice. In this connection, it is pertinent to refer to the observation made by the Hon'ble Apex Court in the case of KUMAON MANDAL VIKAS NIGAM LTD. v.
GIRJA SHANKAR PANT AND OTHERS reported in (2001)1 SCC 182, wherein at paragraphs 26 to 35 of the judgment, the Hon'ble Supreme Court observed thus:
"26. Bias in common English parlance mean and imply pre-disposition or prejudice. The Managing Director admittedly, was not well disposed of towards the respondent herein by reason wherefor, the respondent was denuded of the financial power as also the administrative management of the department. It is the selfsame Managing Director who levels thirteen charges against respondent and is the person who appoints the Inquiry Officer, but affords a pretended hearing himself late in the afternoon on 26.11.93 and communicates the order of termination consisting of eighteen pages by early evening, the chain is complete: Prejudice apparent: Bias as stated stands proved.
27. The concept of "Bias" however has had a steady refinement with the changing structure of the society: Modernisation of the society, with the passage of time, has its due impact on the concept of Bias as well.95
Three decades ago this Court in S. Parthasarathi v. State of Andhra Pradesh (1974 (3) SCC 459) proceeded on the footing of real likelihood of bias and there was in fact a total unanimity on this score between the English and the Indian Courts.
28. Mathew, J. in Parthasarthi's case observed:
"16. The tests of 'real likelihood' and 'reasonable suspicion' are really inconsistent with each other. We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The Court must look at the impression which other people have. This follows from the principle that justice must not only be done but seen to be done. If right minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the enquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The Court will not inquire whether he was really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision (see per Lord Denning, H.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon and Others, etc. : (1968) 3 WLR 694 at 707). We should not, however, be understood to deny that the Court might with greater propriety apply the reasonable suspicion test in criminal or in proceedings analogous to criminal proceedings."96
29. Lord Thankerton however in Franklin v. Minister of Town and Country Planning [(1948) AC 87] had this to state:
"I could wish that the use of the word bias should be confined to its proper sphere. Its proper significance, in my opinion, is to denote a departure from the standard of even-handed justice which the law requires for those who occupy judicial office, or those who are commonly regarded as holding a quasi-judicial office, such as an arbitrator. The reason for this clearly is that, having to adjudicate as between two or more parties, he must come to his adjudication with an independent mind, without any inclination or bias towards one side or other in the dispute."
30. Recently however, the English Courts have sounded a different note, though may not be substantial but the automatic disqualification theory rule stands to some extent diluted. The affirmation of this dilution however is dependent upon the facts and circumstances of the matter in issue. The House of Lords in the case of Reg. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No.2) [2000 (1) A.C. 119] observed:
"..In civil litigation the matters in issue will normally have an economic impact; therefore a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter at issue does not relate to money or economic advantage but is concerned with the promotion of the cause, the rationale disqualifying a judge applies just as much if the judges decision 97 will lead to the promotion of a cause in which the judge is involved together with one of the parties."
31. Lord Brown Wilkinson at page 136 of the report stated:
"It is important not to overstate what is being decided. It was suggested in argument that a decision setting aside the order of 25 November 1998 would lead to a position where judges would be unable to sit on cases involving charities in whose work they are involved. It is suggested that, because of such involvement, a judge would be disqualified. That is not correct, The facts of this present case are exceptional, The critical elements are (1) that A.I. was a party to the appeal; (2) that A.I. was joined in order to argue for a particular result; (3) the judge was a director of a charity closely allied to A.I. and sharing, in this respect, A.I.'s objects. Only in cases where a judge is taking an active role as trustee or director of a charity which is closely allied to and acting with a party to the litigation should a judge normally be concerned either to recuse himself or disclose the position to the parties. However, there may well be other exceptional cases in which the judge would be well advised to disclose a possible interest."
32. Lord Hutton also in Pinochet case (supra) observed:
"there could be cases where the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation."98
33. Incidentally in Locabail (Locabail (U.K.) Ltd. v. Bayfield Properties Ltd.: 2000 Q.B. 451), the Court of Appeal upon a detail analysis of the oft cited decision in Reg. v. Gough [(1993) A.C. 646] together with the Dimes case, (3 House of Lords Cases 759): Pinochet case (supra), Australian High Courts decision in the case of re J.R.L., Ex parte C.J.L.: (1986 (161) CLR 342) as also the Federal Court in re Ebner (1999 (161) A.L.R. 557) and on the decision of the Constitutional Court of Sourth Africa in President of the Republic of South Africa v. South African Rugby Football Union (1999 (4) S.A. 147) stated that it would be rather dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. The Court of Appeal continued to the effect that everything will depend upon facts which may include the nature of the issue to be decided. It further observed:
"By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such persons evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the 99 hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakuta v. Kelly (1989) 167 C.L.R. 568); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party witness , or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be."
34. The Court of Appeal judgment in Locabail (supra) though apparently as noticed above sounded a different note but in fact, in more occasions than one in the judgment itself, it has been clarified that conceptually the issue of bias ought to be decided on the facts and circumstances of the individual case a slight shift undoubtedly from the original thinking pertaining to the concept of bias to the effect that a mere apprehension of bias could otherwise be sufficient.
35. The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances 100 must and ought to be collated and necessary conclusion drawn therefrom - In the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained: If on the other hand, the allegations pertaining to bias is rather fanciful and otherwise to avoid a particular court, tribunal or authority, question of declaring them to be unsustainable would not arise. The requirement is availability of positive and cogent evidence and it is in this context that we do record our concurrence with the view expressed by the Court of Appeal in Locabail case. "
55. In the case of UNION OF INDIA v. NAMBOODARI, reported in AIR 1991 SC 1216, it is held that, emphasis has to be made to avoid arbitrariness by administrative authority even in spheres where the relevant statute does not lay down any quasi judicial application. The Apex Court further stated that, writ of certiorari would be available even against administrative bodies, not having any quasi judicial obligation, if they affect rights of individuals without conforming to principles of "fair play". It is well established law that, when there is error of law, it is apparent that writ of certiorari will be issued even though the quasi judicial body has not transgressed its jurisdiction in any way.101
56. In the case of UNION OF INDIA v. AMRIK, reported in (1991)1 SCC 654, the Hon'ble Supreme Court held that even an administrative order must be made in conformity with the principles of nature justice, if it involves civil consequence, or if it affects any right of citizen which is capable of being enforced by a legal action, including even procedural rights.
57. In the case of UTTAR PRADESH STATE ROAD TRANSPORT CORPORATION v. MOHAMMED ISMAIL reported in 1991(3) SCC 239, it is held that the exercise of statutory power must not be ultra virus. The discretion must be exercised in furtherance of accomplishment of the purpose for which it had been conferred. It is further held that the writ of mandamus could be issued to command a statutory authority to perform its duty to exercise its discretion according to law, but not to exercise its discretion in a particular manner unless that is expressly required by the law. In the case of Public Utility domain, it must be exercised having regard to the consideration of the efficiency of the public service, within the limits of its resources and conform to the constitutional ethos.102
58. As I have already pointed out, "Fairness" is hallmark of the Indian Constitution. The Hon'ble Apex Court in the case of NALLY v. STATE OF BIHAR reported in (1990)2 SCC 48 held that the requirement of fairness implies that even an administrative authority must not act arbitrarily or capriciously and must not come to a conclusion which is perverse or is such that no reasonable body of persons properly informed could arrive at.
Where a administrative function is statutory, the Court must read into statute the requirement of fairness, which means the minimum principles of natural justice (see NAMBOODARI case).
59. In the case of FOOD CORPORATION OF INDIA v.
JAGDISH BALARAM BAHIRA reported in (2017)8 SCC 670, the Hon'ble Apex Court had an occasion to consider the entire gamut of law pertaining to the object underlying the issuance of caste certificate and power and function of the competent authorities to regulate such acts and the precedent relating to issuance of the caste certificate. At paragraphs 48 to 56 of the judgment, it is observed thus:103
"48. The regime postulated in the judgment of this Court in Madhuri Patil (supra) took effect from 2 September 1994, which was the date of the judgment. Eventually in the State of Maharashtra these directions received legislative recognition upon the enactment of the Maharashtra Act XXIII of 2001 which came into force in the State on 18 October 2001. However, it is important to notice that even before the State Legislature stepped in to confer a statutory form to the directions which were issued by this Court in Madhuri Patil (supra) the regime, as it then obtained prior to the enactment of the law, also envisaged consequences upon a caste or tribe claim being found to be false upon a verification by the Scrutiny Committee. The cancellation of a certificate would, as a necessary consequence, involve the invalidation of the appointment to a post or admission to an educational institution. Where a candidate had been appointed to a reserved post on the basis of the claim that he or she was a member of the group for which the reservation is intended, the invalidation of the claim to belong to that group would, as a necessary consequence, render the appointment void ab initio. The rationale for this is that a candidate who would otherwise have to compete for a post in the general pool of unreserved seats had secured appointment in a more restricted competition confined to the reserved category and usurped a benefit meant for a designated caste, tribe or class. Once it was found that the candidate had obtained admission upon a false 104 representation to belong to the reserved category, the appointment would be vitiated by fraud and would be void ab initio. The falsity of the claim lies in a representation that the candidate belongs to a category of persons for whom the reservation is intended whereas in fact the candidate does not so belong. The reason for depriving the candidate of the benefit which she or he has obtained on the strength of such a claim, is that a person cannot retain the fruits of a false claim on the basis of which a scarce public resource is obtained. The same principle would apply where a candidate secures admission to an educational institution on the basis of a false claim to belong to a reserved category. A candidate who does so causes detriment to a genuine candidate who actually belongs to the reserved category who is deprived of the seat. For that matter a detriment is caused to the entire class of persons for whom reservations are intended, the members of which are excluded as a result of an admission granted to an imposter who does not belong to the class. The withdrawal of benefits, either in terms of the revocation of employment or the termination of an admission was hence a necessary corollary of the invalidation of the claim on the basis of which the appointment or admission was obtained. The withdrawal of the benefit was not based on mens rea or the intent underlying the assertion of a false claim. In the case of a criminal prosecution, intent would be necessary. On the other hand, the withdrawal of civil benefits flowed as a logical result of the invalidation of a claim to belong to a 105 group or category for whom the reservation is intended. This was the position under the regime which prevailed following the decision in Madhuri Patil.
49. The Constitution Bench of this Court which decided Milind (supra) was on a reference whether it is permissible to hold an enquiry and let in evidence to decide or declare that any tribe or tribal community or a part or group within the tribe or community is included in the general name, even though it is not so specifically mentioned in the entry contained in the Constitution (Scheduled Tribes) Order, 1950. The Constitution Bench held that it was not permissible either to hold an enquiry or to allow evidence to decide that though a tribe (or its sub group) is not specifically included in the Scheduled Tribes Order, 1950 it must, nonetheless, be treated or deemed to be included in the general name. The view of this Court is that an entry in the Order has to be read as it stands. However, the Constitution Bench in paragraph 38 of its decision, having due regard to the circumstances of the individual cases before the Court, protected the degree obtained by the candidate concerned. This Court also provided that having regard to the passage of time including interim orders which were passed, the admissions and appointments that have become final would remain unaffected by the judgment.
50. The observations in paragraph 38 of the decision of the Constitution Bench have been construed in 106 at least the following judgments of this Court as directions referable to Article 142 of the Constitution :
(i) Bank of India Vs. Avinash D.Mandivikar;
(ii) Additional General Manager- Human Resource, Bharat Heavy Electricals Ltd. Vs. Suresh Ramkrishna Burde;
(iii) Union of India Vs. Dattatray, S/o. Namdeo Mendhekar ; and
(iv) Yogesh Ramchandra Naikwadi Vs. State of Maharashtra.
51. Since the decision of the Bench of three judges in R. Vishwanatha Pillai Vs. State of Kerala (supra) the position of law which has been laid down by this Court is that where an appointment to a post or admission to an educational institution is made against a vacancy which is reserved for a Scheduled Caste or Tribe or a socially and educationally backward class, the invalidation of the claim of the candidate would result in the appointment or, as the case may be, the admission being void and non est. This principle has been followed by another judgment of three Judges in Dattatray (supra). The same position has been propounded by a two judge bench in Bank of India Vs. Avinash Mandivikar (supra). The formal termination of an employment or the withdrawal of admission is a necessary consequence which flows out of the invalidation 107 of the caste or tribe claim. The only exception to this principle consists of those cases where, in exercise of the power conferred by Article 142, the Court considered it appropriate and proper to protect the admission which was granted or, as the case may be, the appointment to the post.
52. In Kavita Solunke (supra) the appellant had been appointed on the strength of a claim to belong to the Halba Scheduled Tribe in August 1995. After the tribe claim was verified by the Scrutiny Committee it was found that the appellant was in fact a Koshti and not a member of the Halba Scheduled Tribe following which an order of termination was issued. The sole ground on which the termination was challenged and which was accepted by the bench of two judges was that since the appointment of the appellant had attained finality, it could not have been set aside on the ground that the appellant did not belong to a Scheduled Tribe. Maharashtra Act XXIII of 2001 was evidently not placed before the court in Kavita Solunke (supra) and has not been noticed. Upon the enactment of the Act, the invalidation of a caste certificate by the Scrutiny Committee would as a statutory mandate result in the withdrawal of the benefits which had accrued on the strength of the claim and where a candidate had been appointed to a reserved post, termination would follow the finding that the candidate did not belong to the category for whom the post was reserved. If the provisions of Maharashtra Act XXIII of 108 2001 were to be considered by the bench of two judges, it would be apparent that under the provisions of Section 7 the Scrutiny Committee is empowered to verify a caste certificate whether issued before or after the commencement of the Act and if it comes to the conclusion that the caste certificate is false and is obtained fraudulently it is empowered to order its cancellation and confiscation. Section 10 provides for the withdrawal of benefits secured when a caste certificate is concerned for its falsity. Falsity is adjudicated upon when an order of cancellation is passed under Section 7. Once a caste certificate is cancelled by the Scrutiny Committee under Section 7, the individual affected by the order has a remedy to challenge its cancellation before the High Court under Article 226. If the challenge fails or if the challenge is given up, and the only relief sought is of the protection of service, or of the admission to the course, the grant of such protective relief simpliciter would be impermissible. The withdrawal of the benefit under Section 10 follows an order of cancellation under Section 7. Once the conditions for cancellation are fulfilled and an order of cancellation is passed under Section 7 withdrawal of all benefits which have accrued on the basis of the claim (which stands invalidated) cannot be opposed on a theory that there was an absence of dishonest intent.
53. The rationale which weighed with the Bench of two Judges which decided Kavita Solunke (supra) was that if 109 the Halba Koshti had been treated as Halba even before the appellant had joined the service and if the only ground for ouster was the law declared in Milind (supra), there was no reason why protection against ouster to appointees whose applications had become final be not also extended to the appellant. Placing reliance on the decision in Kavita Solunke (supra) another Bench of two Judges of this Court in Shalini (supra) propounded a test of dishonest intent for the grant or denial of protection to persons whose caste claims had been invalidated. The view of the Court emerges from the following extract contained in para 9 of the decision which reads thus :
"9. It is not the intent of law to punish an innocent person and subject him to extremely harsh treatment. That is why this Court has devised and consistently followed that taxation statutes, which almost always work to the pecuniary detriment of the assessee, must be interpreted in favour of the assessee. Therefore, as we see it, on one bank of the Rubicon are the cases of dishonest and mendacious persons who have deliberately claimed consanguinity with the Scheduled Castes or Scheduled Tribes, etc. whereas on the other bank are those marooned persons who honestly and correctly claimed to belong to a particular Scheduled Caste/Scheduled Tribe but were later on found by the relevant authority not to fall within the particular group envisaged for protected treatment. In the former group, persons would justifiably deserve the immediate cessation of all benefits, including termination of services. In the latter, after the removal of the nebulousness and uncertainty, while the services or benefits already enjoyed would not be negated, they would be disentitled to claim any further or continuing benefit on the predication of 110 belonging to the said Scheduled Caste/Scheduled Tribe."
The above observations must be read together with those in paragraph 11 (extracted earlier) where the Court held that a dishonest intent requires legal retribution. In Shalini (supra) the Court noticed the provisions of Section 10 of Maharashtra Act XXIII of 2001 (which the earlier decision in Kavita Solunke (supra) had not noticed) but nonetheless held that in order to attract the provisions of Section 10 a dishonest intent for the purpose of claiming a benefit reserved for the Scheduled Castes or Tribes or a designated backward class is necessary. The expression "false" contained in Section 10 of the Maharashtra Act XXIII of 2001 is construed to necessarily require the presence of mens rea or a dishonest intent.
54. The object and purpose underlying the enactment of the state legislation is to regulate the issuance of caste certificates and to deal with instances which had come to light where persons who did not belong to the Scheduled Castes or Tribes or reserved categories were seeking appointments or admissions to the detriment of genuine candidates. The basic purpose and rationale for the legislation is to secure the just entitlements of legitimate claimants. The judgment in Shalini (supra) is with respect in error in imputing the requirement of a dishonest intent into the provisions of Section 10. Sections 7 and 10 have to be construed in harmony. Section 7 provides for the cancellation of a caste certificate where before or after 111 commencement of the Act, a person who does not belong to a reserved category has obtained a false caste certificate and the Scrutiny Committee, after enquiry, is of the opinion that the certificate was obtained fraudulently. These requirements have to be fulfilled before the certificate is cancelled. The falsity of the caste certificate and the opinion of the Scrutiny Committee of its being fraudulently obtained form the basis of a cancellation under Section 7. Section 10 prescribes that a person who does not belong to a reserved category and secures admission or obtains appointment against a reserved post by producing a false caste certificate shall upon its cancellation by the Scrutiny Committee be debarred from the institution or as the case may be discharged from employment and the benefits derived shall be withdrawn. Sub-section (2) provided for the recovery of all financial benefits while sub-section (3) provides for the cancellation of a degree, diploma or educational qualification. Sub-section (4) provides for disqualification from electoral office. The falsity of the certificate is the basis of an order under Section 7. Section 10 provides the consequence. The challenge to an order of the Scrutiny Committee (invalidating a caste or tribe certificate) may fail or succeeds. If the challenge before the High Court succeeds, no question of the consequence under Section 10 arises. If the challenge fails, the consequence under Section 10 follows the finding in the order under Section 7 that the certificate is false. Similarly, if the order under Section 7 is not 112 challenged, or if the challenge is given up, there is no occasion to protect the benefits secured on the basis of a certificate which is invalidated. The expression "false" must be construed in contra-distinction to that which is true, genuine or authentic. Falsity in this sense means the setting up of a claim to belong to a reserved category.
55. Section 10, it must be noted, provides for the withdrawal of civil benefits which have accrued to an individual on the strength of a claim to belong to a reserved category, when the claim upon due enquiry and verification is invalidated. Section 10, as its marginal note indicates, provides for the withdrawal of benefits secured on the basis of a false caste certificate. Section 11 provides for offences and penalties. The invalidation of a caste certificate may result in two consequences : (i) immediate cancellation or withdrawal of the benefits received by the candidate on the basis of a false caste certificate; (ii) prosecution of a claimant who procures a certificate which is found to be false by the Scrutiny Committee. The intent of a candidate may be of relevance only if there is a prosecution for a criminal offence. However, where a civil consequence of withdrawing the benefits which have accrued on the basis of a false caste claim is in issue, it would be contrary to the legislative intent to import the requirement of a dishonest intent. In importing such a requirement, the bench of two Judges in Shalini (supra) has, with great respect, fallen into error. The judgment in Shalini (supra) 113 must, therefore, be held not to lay down the correct principle. In the very nature of things it would be casting an impossible burden to delve into the mental processes of an applicant for a caste certificate. As the provisions of the Act indicate, a person, who claims to belong to a reserved category and who seeks the benefit of an appointment to a reserved post or of admission to an educational institution against a reserved seat or any other benefit provided by the provisions of Article 15(4), has to apply for the grant of a caste certificate. The burden of proof that he or she belongs to such a caste, tribe or class lies with the claimant. The legislature has legitimately assumed that a person who seeks a caste certificate must surely be aware of the caste, tribe or class to which he or she belongs and must establish the claim. If the claim to belong to the reserved category is found to be untrue, the caste certificate has to be cancelled on the ground that it has been obtained falsely. The grant of the benefit to the candidate is fraudulent because the candidate has obtained a benefit reserved exclusively for a specified caste, tribe or class to which he or she is not entitled. The decision in Shalini (supra) would result in serious consequences and would eviscerate the statutory provision. The interpretation which has been placed on the provisions of Section 10 by the judgment in Shalini (supra) is evidently incorrect.
56. Service under the Union and the States, or for that matter under the instrumentalities of the State 114 subserves a public purpose. These services are instruments of governance. Where the State embarks upon public employment, it is under the mandate of Articles 14 and 16 to follow the principle of equal opportunity. Affirmative action in our Constitution is part of the quest for substantive equality. Available resources and the opportunities provided in the form of public employment are in contemporary times short of demands and needs. Hence the procedure for selection, and the prescription of eligibility criteria has a significant public element in enabling the State to make a choice amongst competing claims. The selection of ineligible persons is a manifestation of a systemic failure and has a deleterious effect on good governance. Firstly, selection of a person who is not eligible allows someone who is ineligible to gain access to scarce public resources. Secondly, the rights of eligible persons are violated since a person who is not eligible for the post is selected. Thirdly, an illegality is perpetrated by bestowing benefits upon an imposter undeservingly. These effects upon good governance find a similar echo when a person who does not belong to a reserved category passes of as a member of that category and obtains admission to an educational institution. Those for whom the Constitution has made special provisions are as a result ousted when an imposter who does not belong to a reserved category is selected. The fraud on the constitution precisely lies in this. Such a consequence must be avoided and stringent steps be taken by the Court to ensure that unjust claims 115 of imposters are not protected in the exercise of the jurisdiction under Article 142. The nation cannot live on a lie. Courts play a vital institutional role in preserving the rule of law. The judicial process should not be allowed to be utilised to protect the unscrupulous and to preserve the benefits which have accrued to an imposter on the specious plea of equity. Once the legislature has stepped in, by enacting Maharashtra Act XXIII of 2001, the power under Article 142 should not be exercised to defeat legislative prescription. The Constitution Bench in Milind spoke on 28 November 2000. The state law has been enforced from 18 October 2001. Judicial directions must be consistent with law. Several decisions of two judge benches noticed earlier, failed to take note of Maharashtra Act XXIII of 2001. The directions which were issued under Article 142 were on the erroneous inarticulate premise that the area was unregulated by statute. Shalini noted the statute but misconstrued it."
(emphasis supplied)
60. After having considered the entire documents on record coupled with the arguments advanced by the learned counsel appearing for the parties, the core questions to be answered in these writ petitions by following the principles laid down by the Hon'ble Supreme Court, the act that is complained of against the contesting respondent that he has practiced fraud 116 on the respondent authorities by producing documents which according to the petitioners, prima facie, appears to be genuine, and the allegation made by the petitioners that the documents produced by the contesting respondent to prove his residential status and caste, are created for electioneering purpose, which cannot be ruled out. The contesting respondent, being a representative of the people, cannot shirk his responsibility to prove the same, before the Caste Verification Committee and to remove such suspicion in the minds of the voters of the constituency, especially, petitioners herein, who have approached the Court that, their valuable right to contest in the reserved constituency, is deprived of. Voters of the constituency must know the antecedents of their representatives.
61. In the case of UNION OF INDIA v. ASSOCIATION FOR DEMOCRATIC REFORMS AND ANOTHER reported in (2002)5 SCC 294 at paragraphs 22, 44, 46 and 48, it is observed thus:
"22. For health of democracy and fair election, whether the disclosure of assets by a candidate, his/her qualification and particulars regarding involvement in criminal cases are necessary for informing voters, may be 117 illiterate, so that they can decide intelligently, whom to vote? In our opinion, the decision of even illiterate voter, if properly educated and informed about the contesting candidate, would be based on his own relevant criteria of selecting a candidate. In democracy, periodical elections are conducted for having efficient governance for the country and for the benefit of citizens voters. In a democratic form of government, voters are of utmost importance. They have right to elect or re-elect on the basis of the antecedents and past performance of the candidate. He has choice of deciding whether holding of educational qualification or holding of property is relevant for electing or re-electing a person to be his representative. Voter has to decide whether he should cast vote in favour of a candidate who is involved in criminal case. For maintaining purity of elections and healthy democracy, voters are required to be educated and well informed about the contesting candidates. Such information would include assets held by the candidate, his qualification including educational qualification and antecedents of his life including whether he was involved in a criminal case and if the case is decided its result, if pending whether charge is framed or cognizance is taken by the Court? There is no necessity of suppressing the relevant facts from the voters.
23 to 43. xxx xxx xxx 118
44. It is also submitted that even the gazetted officers in all government services are required to disclose their assets and thereafter to furnish details of any acquisition of property annually. In our view, it is rightly submitted that in a democratic form of government, MP or MLA is having higher status and duty to the public. In P.V. Narasimha Rao v. State (CBI/SPE), the Court inter alia considered whether Member of Parliament is a public servant? The Court held thus:
"162. A public servant is 'any person who holds an office by virtue of which he is authorised or required to perform any public duty'. Not only, therefore, must the person hold an office but he must be authorised or required by virtue of that office to perform a public duty. Public duty is defined by Section 2(b) of the said Act to mean 'a duty in the discharge of which the State, the public or that community at large has an interest'. In a democratic form of government it is the Member of Parliament or a State Legislature who represents the people of his constituency in the highest lawmaking bodies at the Centre and the State respectively. Not only is he the representative of the people in the process of making the laws that will regulate their society, he is their representative in deciding how the funds of the Centre and the State shall be spent and in exercising control over the executive. It is difficult to conceive of a duty more public than this or of a duty in which the State, the public and the community at large would have greater interest."
(emphasis supplied) The aforesaid underlined portion highlights the important status of MP or MLA.
11946. To sum up the legal and constitutional position which emerges from the aforesaid discussion, it can be stated that:
1. The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word 'elections' is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps.
2. The limitation on plenary character of power is when the Parliament or State Legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with the said provisions. In case where law is silent, Article 324 is a reservoir of power to act for the avowed purpose of having free and fair election. Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary directions, Commission can fill the vacuum till there is legislation on the subject. In Kanhiya Lal Omar case, the Court construed the expressions "superintendence, direction and control" in Article 324(1) and held that a direction may mean an order issued to a particular individual or a precept which may have to follow and it may be a specific or a general order and such phrase should be construed liberally empowering the election commission to issue such orders.
3. The word "elections" includes the entire process of election which consists of several stages and it embraces many steps, some of which may have an important bearing on the process of choosing a candidate. Fair election contemplates 120 disclosure by the candidate of his past including the assets held by him so as to give a proper choice to the candidate according to his thinking and opinion.
As stated earlier, in Common Cause case the Court dealt with a contention that elections in the country are fought with the help of money power which is gathered from black sources and once elected to power, it becomes easy to collect tons of black money, which is used for retaining power and for re-election. If on affidavit a candidate is required to disclose the assets held by him at the time of election, voter can decide whether he could be re- elected even in case where he has collected tons of money.
Presuming, as contended by the learned senior counsel Mr. Ashwani Kumar, that this condition may not be much effective for breaking a vicious circle which has polluted the basic democracy in the country as the amount would be unaccounted. Maybe true, still this would have its own effect as a step-in-aid and voters may not elect law-breakers as law-makers and some flowers of democracy may blossom.
4. To maintain the purity of elections and in particular to bring transparency in the process of election, the Commission can ask the candidates about the expenditure incurred by the political parties and this transparency in the process of election would include transparency of a candidate who seeks election or re- election. In a democracy, the electoral process has a strategic role. The little man of this country would have basic elementary right to know full particulars of a candidate who is to represent him in Parliament where laws to bind his liberty and property may be enacted.
5. The right to get information in democracy is recognised all throughout and it is natural right flowing from the concept of democracy. At this stage, we would refer to Article 19(1) and (2) of 121 the International Covenant on Civil and Political Rights which is as under: -
"(1) Everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."
6. Cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the Executive to subserve public interest.
7. Under our Constitution, Article 19(1)(a) provides for freedom of speech and expression. Voters' speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is must. Voter's (little mancitizen's) right to know antecedents including criminal past of his candidate contesting election for MP or MLA is much more fundamental and basic for survival of democracy. The little man may think over before making his choice of electing law breakers as law makers.
48. The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a State Legislature as a necessary part of 122 his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature:
(1) Whether the candidate is convicted/acquitted/ discharged of any criminal offence in the past--if any, whether he is punished with imprisonment or fine?
(2) Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the Court of law. If so, the details thereof.
(3) The assets (immovable, movable, bank balances etc.) of a candidate and of his/her spouse and that of dependants.
(4) Liabilities, if any, particularly whether there are any over dues of any public financial institution or government dues.
(5) The educational qualifications of the candidate."
62. In a catena of decisions, the Hon'ble Apex Court has held that, the jurisdiction under Article 226 of the Constitution of India is to avoid arbitrariness by the Administrative and quasi-
judicial authorities, as discussed supra.
63. It is also useful to cite the law declared by the Hon'ble Apex Court in the case of STATE OF MAHARASHTRA AND OTHERS v. RAVI PRAKASH BABULALSING PARMAR AND 123 ANOTHER reported in (2007)1 SCC 80, wherein it is held that the Caste Scrutiny Committee is a quasi judicial body set up to prevent fraud on the constitution and it serves both social and constitutional purposes. It is relevant to extract the observations made in paragraphs 12 and 23 of the judgment.
The same read thus:
"12. The Caste Scrutiny Committee is a quasi- judicial body. It has been set up for a specific purpose. It serves a social and constitutional purposes. It is constituted to prevent fraud on Constitution. It may not be bound by the provisions of Indian Evidence Act, but it would not be correct for the superior courts to issue directions as to how it should appreciate evidence. Evidence to be adduced in a matter before a quasi-judicial body cannot be restricted to admission of documentary evidence only. It may of necessity have to take oral evidence.
23. The makers of the Constitution laid emphasis on equality amongst citizens. Constitution of India provides for protective discrimination and reservation so as to enable the disadvantaged group to come on the same platform as that of the forward community. If and when a person takes an undue advantage of the said beneficent provision of the Constitution by obtaining the benefits of reservation and other benefits provided under 124 the Presidential Order although he is not entitled thereto, he not only plays a fraud on the society but in effect and substance plays a fraud on the Constitution. When, therefore, a certificate is granted to a person who is not otherwise entitled thereto, it is entirely incorrect to contend that the State shall be helpless spectator in the matter."
64. In the case of M. CHANDRA (supra), at paragraphs 24 to 27 of the judgment, the Hon'ble Supreme Court observed thus:
"24. We may begin to discuss this issue firstly by referring to weighty observations made by this Court in the case of Ganpat vs. Returning Officer, 1975 (1) SCC
589.:
"The monstrous course of untouchability has got to be eradicated. It has got be eradicated not merely by making constitutional provisions or laws but also by eradicating it from the minds and hearts of men. For that it is even more important that members of communities who are untouchables should assert their self-respect and fight for their dignity than that members of the other communities should forget about it.
25. In order to bring the lower castes on par with the upper castes, there are special provisions in the Constitution to ensure that equal opportunity was not just in word but also in deed.
12526. "Scheduled Castes" means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purpose of the Constitution. For easy reference the said provision is extracted:
"341. Scheduled Castes. - (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."
27. Article 341(1) of the Constitution was considered by this Court in the case of S. Swvigaradoss Vs. Zonal Manager, F.C.I. (1996) 3 SCC 100. In that case, this Court held as under :-
"Article 341(1) empowers the President of India to specify, in consultation with the Governor of the State, with respect to the State or Union Territory, or for a part of the State, District or region by public notification specify castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of the Constitution be deemed to be "Scheduled Castes"
in relation to the State or Union Territory as the case may be. Clause (2) of Article 341 empowers 126 Parliament by law to include in or exclude from the list of Scheduled Castes specified in the notification issued under Clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. In other words, the constitutional mandate is that it is the President who is empowered, in consultation with the Governor of the State, to specify by a public notification the caste, race or tribe or parts or groups within castes, races or tribes which shall for the purposes of the Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory."
65. Further, the Hon'ble Supreme Court, in the case of ANAND SINGH KUNWAR AND OTHERS v. ELECTION COMMISSION OF INDIA THROUGH CHIEF ELECTION COMMISSIONER, NEW DELHI AND OTHERS reported in (2007)7 SCC 234, has observed that "It should be made clear that the mandate of Article 332 (3) of the Constitution of India should always be kept in mind. Article 332 (3) mandated that the reservation must be made in proportion to the population of the Scheduled Castes and Scheduled Tribes of the State. This should be the paramount consideration of the Election Commission and not any other consideration. We need not make any observation but the consideration for increasing the seats of Scheduled 127 Tribes from two (2) to three (3) was not at all warranted as it is in violation of Article 332 (3) of the Constitution of India. The mandate of the Constitution is supreme and the Election Commission has no scope to go beyond the Constitution. "
66. Undisputedly, the contesting respondent is an in-
charge Minister of Bidar District at the relevant period and same was not countered by the learned counsel for the respondents.
It is well settled principle that an act of fraud vitiates every solemn act and in order to put an end to stigma attached to the contesting respondent, re-look by the Caste Verification Committee is imperative. I also find force in the submission made by the learned counsel for the petitioners that there is likelihood of interference by the contesting respondent insofar as the enquiry conducted by the respondent-authorities. The contesting respondent has to prove before the Caste Verification Committee that the earlier caste certificate issued by the Tahasildar, Aurad-B Taluk is genuine and legal and he must remove stigma attached to him personally as well as to work transparently in the public office. From the facts on record, 128 unless the documents produced by the petitioners and the respondents are considered by the Caste Verification Committee and in the absence of providing opportunity to the petitioners, it cannot be held that the matter has been decided in accordance with law and therefore, I am of the opinion that the Writ Petition No.225917/2020 is maintainable for the forgoing reasons that, the constitutional mandate under Article 332 of the Constitution of India requires that the contesting respondent is the legal representative of the reserved constituency.
67. The Hon'ble Supreme Court, in the case of MARIA MARGARDIA SEQUEIRA FERNANDES AND OTHERS V. ERASMO JACK DE SEQUEIRA (DEAD) THROUGH LRS. reported in (2012) 5 SCC 370, at paragraphs 32 to 52 of the judgment, observed thus:
"Truth as guiding star in the judicial process.
"32. In this unfortunate litigation, the Court's serious endeavour has to be to find out where in fact the truth lies.
33. The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges 129 at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth.
34. In Mohanlal Shamji Soni v. Union of India, this Court observed that in such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well-accepted and settled principle that a Court must discharge its statutory functions--whether discretionary or obligatory-according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done.
35. What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.
36. In Ritesh Tewari and Another v. State of U.P. this Court reproduced an oft-quoted quotation which reads as under: (SCC p.687, para 37) "37....... Every trial is voyage of discovery in which truth is the quest."
(emphasis in original) This Court observed that the 130 "power is to be exercised with an object to subserve the cause of justice and public interest and for getting the evidence in aid of a just decision and to uphold the truth."
37. Lord Denning, in the case of Jones v. National Coal Board has observed that: (QB p.63) ".....In the system of trial that we evolved in this country, the Judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of [the] society at large, as happens, we believe, in some foreign countries."
38. Certainly, the above, is not true of the Indian Judicial system. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that "every trial is a voyage of discovery in which truth is the quest". In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.
39. Lord Denning further observed in the said case of Jones (supra) that: (QB p.64) ".....It's all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth:"
40. World over, modern procedural Codes are increasingly relying on full disclosure by the parties.
131Managerial powers of the Judge are being deployed to ensure that the scope of the factual controversy is minimized.
41. In civil cases, adherence to Section 30 CPC would also help in ascertaining the truth. It seems that this provision which ought to be frequently used is rarely pressed in service by our judicial officers and judges.
42. Section 30 CPC reads as under:-
"30. Power to order discovery and the like. - Subject to such conditions and limitations as may be prescribed, the Court may, at any time either of its own motion or on the application of any party, -
(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;
(b) issue summons to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit."
43. "Satyameva Jayate" (literally: "truth stands invincible") is a mantra from the ancient scripture Mundaka Upanishad. Upon independence of India, it was adopted as the national motto of India. It is inscribed in 132 Devanagari script at the base of the national emblem. The meaning of full mantra is as follows:
"Truth alone triumphs; not falsehood. Through truth the divine path is spread out by which the sages whose desires have been completely fulfilled, reach where that supreme treasure of Truth resides."
(emphasis supplied)
44. Malimath Committee on Judicial Reforms heavily relied on the fact that in discovering truth, the judges of all Courts need to play an active role. The Committee observed thus:
"2.2.......... In the adversarial system truth is supposed to emerge from the respective versions of the facts presented by the prosecution and the defence before a neutral judge. The judge acts like an umpire to see whether the prosecution has been able to prove the case beyond reasonable doubt. [The State discharges the obligation to protect life, liberty and property of the citizens by taking suitable preventive and punitive measures which also serve the object of preventing private retribution so essential for maintenance of peace and law and order in the society] and gives the benefit of doubt to the accused. It is the parties that determine the scope of dispute and decide largely, autonomously and in a selective manner on the evidence that they decide to present to the court. The trial is oral, continuous and confrontational. The parties use cross-examination of witnesses to undermine the opposing case and to discover information the other side has not brought out. The judge in his anxiety to maintain his position of neutrality never takes any initiative to discover truth. He does not correct the 133 aberrations in the investigation or in the matter of production of evidence before court........"
xxx xxx xxx 2.15 The Adversarial System lacks dynamism because it has no lofty ideal to inspire. It has not been entrusted with a positive duty to discover truth as in the Inquisitorial System. When the investigation is perfunctory or ineffective, Judges seldom take any initiative to remedy the situation. During the trial, the Judges do not bother if relevant evidence is not produced and plays a passive role as he has no duty to search for truth...
xxx xxx xxx 2.16.9. Truth being the cherished ideal and ethos of India, pursuit of truth should be the guiding star of the Criminal Justice System. For justice to be done truth must prevail. It is truth that must protect the innocent and it is truth that must be the basis to punish the guilty. Truth is the very soul of justice. Therefore truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the courts to become active seekers of truth. It is of seminal importance to inject vitality into our system if we have to regain the lost confidence of the people. Concern for and duty to seek truth should not become the limited concern of the courts. It should become the paramount duty of everyone to assist the court in its quest for truth."
45. In Chandra Shashi v. Anil Kumar Verma to enable the Courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, pre-variation and motivated falsehoods have to be appropriately dealt with, without which it would not be possible for any Court to administer justice in the true sense and to the satisfaction of those who approach it in 134 the hope that truth would ultimately prevail. People would have faith in Courts when they would find that truth alone triumphs in Courts.
46. Truth has been foundation of other judicial systems, such as, the United States of America, the United Kingdom and other countries.
47. In Giles v. Maryland, the US Supreme Court, in ruling on the conduct of prosecution in suppressing evidence favourable to the defendants and use of perjured testimony held that such rules existed for a purpose as a necessary component of the search for truth and justice that judges, like prosecutors must undertake. It further held that the State's obligation under the due process clause "is not to convict, but to see that so far as possible, truth emerges."
48. The obligation to pursue truth has been carried to extremes. Thus, in United States v. Havens, it was held that the government may use illegally obtained evidence to impeach a defendant's fraudulent statements during cross-examination for the purpose of seeking justice, for the purpose of "arriving at the truth, which is a fundamental goal of our legal system".
49. Justice Cardozo in his widely read and appreciated book The Nature of the Judicial Process discusses the role of the judges. The relevant part is reproduced as under:-
135"There has been a certain lack of candour," "in much of the discussion of the theme [of judges' humanity], or rather perhaps in the refusal to discuss it, as if judges must lose respect and confidence by the reminder that they are subject to human limitations." I do not doubt the grandeur of conception which lifts them into the realm of pure reason, above and beyond the sweep of perturbing and deflecting forces. None the less, if there is anything of reality in my analysis of the judicial process, they do not stand aloof on these chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do."
50. Aharon Barak, President of Israeli Supreme Court from 1995 to 2006 takes the position that:
"For issues in which stability is actually more important than the substance of the solution - and there are many such case - I will join the majority, without restating my dissent each time. Only when my dissenting opinion reflects an issue that is central for me - that goes to the core of my role as a judge - will I not capitulate, and will I continue to restate my dissenting opinion: "Truth or stability - truth is preferable."
On the contrary, public confidence means ruling according to the law and according to the judge's conscience, whatever the attitude of the public may be. Public confidence means giving expression to history, not to hysteria. Public confidence is ensured by the recognition that the judge is doing justice within the framework of the law and its provisions. Judges must act - inside and outside the court - in a manner that preserves public confidence in them. They must understand that judging is not merely a job but a way of life. It is a way of life that does not include the pursuit of material wealth or publicity; it is a way of life based 136 on spiritual wealth; it is a way of life that includes an objective and impartial search for truth.
51. In the administration of justice, judges and lawyers play equal roles. Like judges, lawyers also must ensure that truth triumphs in the administration of justice.
52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth."
68. it is also pertinent to mention the dictum of the Hon'ble Apex Court in the case of ELECTION COMMISSION OF INDIA v. ASHOK KUMAR AND OTHERS reported in (2000)8 SCC
216. The observation made at paragraphs 15 and 16 of the judgment is relevant. The same read thus:
"15. The constitutional status of the High Courts and the nature of the jurisdiction exercised by them came up for the consideration of this Court in M.V. Elisabeth and Ors. Vs. Harwan Investment and Trading Pvt.Ltd., Goa - 1993 Supp (2) SCC 433. It was held that the High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and supplementary powers. Unless expressly or impliedly 137 barred and subject to the appellate or discretionary jurisdiction of Supreme Court, the High Courts have unlimited jurisdiction including the jurisdiction to determine their own powers. The following statement of law from Halsburys Laws of England, [4th Edn., Vol.10, para 713] was quoted with approval:-
'Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court.'
16. This Court observed that the jurisdiction of courts is carved out of sovereign power of the State.
People of free India are the sovereign and the exercise of judicial power is articulated in the provisions of the Constitution to be exercised by courts under the Constitution and the laws thereunder. It cannot be confined to the provisions of imperial statutes of a bygone age. Access to court which is an important right vested in every citizen implies the existence of the power of the Court to render justice according to law. Where Statute is silent and judicial intervention is required, Courts strive to redress grievances according to what is perceived to be principles of justice, equity and good conscience. "
69. Having discussed the jurisdiction of this Court under Article 226 of the Constitution of India and applying the same to 138 the facts of the case and in view of the finding recorded above, I am of the opinion that a "fair" enquiry is required to be conducted to unearth the truth whether the contesting respondent (respondent No.5 in WP No.225917/2020) is entitled for caste certificate as required under the provisions of the Act, 1990 and Rules made therein. The aforesaid narration of facts and findings, prompted me to remand the matter to the Caste Verification Committee to consider the entire material on record, without being influenced by the observation made in this writ petition. In the result, I pass the following:
ORDER
i) Writ petitions are allowed;
ii) Order dated 20.11.2017 passed by the Caste Verification Committee, Bidar and order dated 31.03/10.04.2020 passed by the Deputy Commissioner, Bidar are quashed;
iii) Matter is remanded to the Caste Verification Committee with a direction to adjudicate the Case No.C&V/CR- 98/2016-17 afresh, after affording reasonable opportunity to all the parties;
139iv) The said exercise shall be completed within an outer limit of six months from the date of receipt of certified copy of this order;
v) No order as to costs.
Sd/-
JUDGE BL/SB/lnn