Document Fragment View

Matching Fragments

By this petition, petitioner has questioned his automatic disqualification under the provisions of Section 16(1C)(B) of MMC Act. Division Bench of this Court of which I, (V.G. Palshikar, J.) was member, had taken a view that in order to attract provisions of Section 16(1C)(B), Caste Scrutiny Committee has imposed fine and stated that the certificate was false and the order was obtained by false claim or representation. Similar view is taken in reported decision in 2006 (Supp.) Bom. C.R. (A.B.) 618 : 2006 (1) Mh. L.J. 308 Surendra Hanmanloo Gandam v. State of Maharashtra. When both the matters were argued and decided, Full Bench judgment of this Court reported in 2004 (5) Bom. C.R. (F.B.) 497 : 2004 (3) Mh. L.J. 1109 Sujit Vasant Patil v. State of Maharashtra, was not brought to the notice of the Bench. Today, when this matter was heard for quite some time, Shri. Mendadkar, learned Counsel for the respondent, relied on this judgment for contending that the petition is liable to be dismissed. Reference was made by him to paragraphs 12A and 12B of the Full Bench judgment. From the perusal of the contents of the paragraphs, it appears that provisions contained in Section 16(1C) and similar provisions in other enactments were not brought to the notice of Full Bench. If those provisions are looked into; in our opinion, matter requires re-consideration. Hence, place the papers of this petition before My Lord. The Chief Justice for appropriate orders regarding hearing.

10. Section 10 makes a provision for withdrawal of the benefits secured by a person on the basis of false Caste Certificate. Sub-section (4) thereof reads thus:

10.(1) ...

(2) ...

(3) ...

(4) Notwithstanding anything contained in any law for the time being in force, a person shall be disqualified for being a member of any statutory body if he has contested the election for local authority, Co-operative Society or any statutory body on the seat reserved for any of Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category by procuring a false Caste Certificate as belonging to such Caste, Tribe or Class on such false Caste Certificate being cancelled by the Scrutiny Committee, and any benefits obtained by such person shall be recoverable as arrears of land revenue and the election of such person shall be deemed to have been terminated retrospectively.

18. In our view, if a claimant fails to substantiate and establish his caste claim because of insufficiency of evidence or lack of knowledge of traits or characteristics of his tribe, he cannot be termed as a person who has obtained and produced a false caste certificate. The phraseology 'false caste certificate' or 'a certificate obtained fraudulently' used in Section 7 of the Act cannot and does not cover bona fide cases where a claimant fails to establish his caste claim. To hold that a person has obtained a 'false caste certificate' or a 'certificate fraudulently', there need to exist an element of mens rea or a guilty mind and only on the establishment of the existence of said element, that a person could be branded as one who has obtained false caste certificate. It is in this sense, that we have observed in proposition "C" above, that a person can be denied the benefit of Government Resolution dated 15-6-1995, if he has procured the appointment on the basis of false caste certificate.
19. Ordinarily the proceedings before the Committee are for adjudication of the caste claim but in some cases, the Committee may prima facie find that the claim is false, on the ground that the certificate itself is forged or that the certificate is obtained fraudulently, etc. then in that situation, the claimant will have to be put on notice in that regard and afforded an opportunity of being heard to explain as to why the Committee should not hold the claimant guilty of producing a false, forged or fabricated certificate. Solely on the ground that the claim is invalidated, the Scrutiny Committee will not be justified in reaching a conclusion that the claimant has obtained a false certificate or he has produced a false caste certificate.