Marlapalle, J.
Heard. Rule. The learned A.G.P. waives service for respondents No.1 to 3 in Writ Petition No.1947/2003 and respondents No.1, 3, 4 and 6 in Writ Petition No.3195/2003. Shri S.T. Shelke, learned Advocate waives service for the State Election Commission. The Chief Executive Officer. Zilla Parishad, Nanded is a formal party. By consent of the parties, Rule is taken up for final hearing forthwith.
2.Both the petitioners came to be elected as members of the Zilla Parishad, Nanded from the reserved constituencies and their caste claim was referred to the Scrutiny Committee at Aurangabad. The said Committee directed the Tahsildar to enquire into the issuance of caste certificate to the respective petitioners and pass an appropriate order after hearing them. By the impugned orders, the Tahsildar held that the caste certificates, on the basis of which the petitioners had contested the election, were not issued from his office and, therefore. the certificates concerned, which were referred to the Scrutiny Committee, came to be cancelled and confiscated and hence, both these petitions are being decided by a common judgment as they involve common questions of law for our decision.
3.The first petitioner was issued a caste certificate dated 5.4.1995 by the Taluka Executive Magistrate, Kandhar, certifying that he belongs to "Pinjari" caste which is recognised as Other Backward Class by the State Government by resolution dated 13.10.1967 as amended from time to time, whereas the second petitioner was issued such a certificate on 14.7.1990 by the Taluka Executive Magistrate, Biloli, certifying that she belongs to "Ligder" - Scheduled Tribe, Consequently, the first petitioner came to be elected as a member of Zilla Parishad from Kandhar Taluka against the seat reserved for O.B.C. and the second petitioner came to be elected as a member of the Zilla Parishad from Biloli Taluka against the seat reserved for S C. in the elections held in February 2002, Their caste claims were referred for scrutiny to the Caste Scrutiny Committee. In the first petition, the Committee, by communication dated 27.2.2003, informed the Collector, Nanded that the caste certificate relied upon by the said petitioner was not issued by the Tahsildar, or any other competent authority and, therefore, as per the Government Resolution dated 1.1.2001, issued by the State Government, a show-cause notice was required to be issued to the petitioner and after hearing him appropriate order was required to be passed. The findings of the enquiry were that the certificate was obtained by unfair means or the same was not issued by a competent officer and, therefore, it would be required to be cancelled and confiscated. The Collector consequently directed the Tahsildar, Kandhar to issue a show-cause notice and hear the petitioner, which was accordingly done.
The petitioner submitted his reply on 28.4.2003 to the show-cause notice and finally, by the impugned order dated 29.4.2003, the Tahsildar, Kandhar held that the certificate dated 5.4.1995, as relied upon by the petitioner, was not issued from his officer and he, therefore, directed to cancel and confiscate the same. Whereas in the second case, the Scrutiny Committee, by letter dated 13.12.2002, addressed to the Collector, stated that the caste certificate dated 14.7.1990 was found to be suspicious and, therefore, an enquiry was required to be caused in the same. The Collector, by his letter dated 26.12.2002, directed the Tahsildar to conduct an enquiry. The Tahsildar issued a show-cause-notice on 24.2.2003 to the petitioner and she submitted her reply on 15.3.2003. By the impugned order dated 28.2.2003, the Tahsildar. Biloli recorded a finding that the caste certificate dated 14.7.1990 was not issued from his office and he. therefore, directed to cancel and confiscate the same.
4.Admittedly the caste certificates which were referred for scrutiny by the Committee were utilised by the petitioners in submitting their nominations against a reserved seat in Zilla Parishad elections held in February 2002 and they were elected against such seats. In case they were not elected, there was no occasion for referring the said certificates to the Committee. In the process of verification, the Committee called a report from the concerned Tahsildar's office regarding the issuance of the certificate and it received a communication that the subject certificate was not issued from that office. The Committee, on receipt of such a report, did not proceed further in scrutinising the social status claim by inviting any other evidence or by ordering a vigilance enquiry. It straightaway informed the Collector, Nanded to issue a show-cause notice to the petitioners and take further action for cancellation/confiscation of the caste certificate after hearing the petitioners. The Committee claims to have invoked its powers under Section 7 of the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Others Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (hereinafter referred to as the
"Caste verification Act"for short).
5.We are required to consider the following issues:
(a) Whether the Committee was justified in closing the caste verification proceedings on the basis of the report received from the Tahsildar stating that the subject caste certificate was not issued by his office and
(b) Whether the Committee could invoke its powers under Section 7 in the instant cases when the caste certificates were utilised and the petitioners were duly elected as members of Zilla Parishad against reserved seats.
6.The Caste Verification Act came into force with effect from 18.10.2001 and, therefore, verification proceedings in the instant cases were covered by the same The caste certificates were accepted by the Returning Officer when they had submitted their nomination forms and based on the same certificates they were allowed to contest the Zilla Parishad elections against the reserved seats. After they were duly elected, their social status claim was referred for verification to the Scrutiny Committee. The reference was made under Section 6(3) for verification of the caste certificate and issuance of a validity certificate. The Committee was required to follow the procedure as laid down by the Supreme Court in the case of Kum. Madhuri Patil vs. Additional Commissioner, Tribal Development & Others AIR 1995 SC 94 and if it came to the conclusion that the petitioners did not belong to the caste as stated in the respective caste certificates, it had powers to cancel and confiscate the same under Section 7 and they would consequently suffer an action under Section 10 in addition to facing prosecution under Section 11 of the Caste Verification Act. The State Government has admittedly issued resolutions making it compulsory to refer the caste claim of all elected representatives to the local bodies for verification to the Scrutiny Committee concerned and based on the same resolutions, the State Election Commission has issued instructions to the Returning Officers.
7.In the case of Subhash Dashrathe vs. Vasant Pandurang Narwade (Writ Petition No.2885/2000) etc. decided by this Court on 11.10.2000, caste certificate was referred for verification to the Scrutiny Committee at Aurangabad and in the process of verification, the Committee came to a conclusion that the caste certificate was bogus as it was not issued by the Tahsildar at Aurangabad. The Committee did not examine the social status claimed by the petitioner on merits, inasmuch as no further evidence was considered/ called for and without appointing vigilance enquiry, it passed an order holding that the claimant did not belong to caste "Kunbi" - O.B.C. This order was challenged by the claimant and a Division Bench of this Court (Coram: B.H. Marlapalle & N.V. Dabholkar, JJ) upheld the decision of the Committee. However, in Special Appeal (Civil) Nos. 4409-4410/2001, the Apex Court did not agree with the view taken by the Committee and the caste claim was remanded for de-novo enquiry by the following order:
"We are, however, of the opinion that the Scrutiny Committee did not act fairly and failed to comply with even the basic rules of natural justice. The appellant was called upon to establish his caste but the material produced by him was not considered by the Scrutiny Committee. It is only the validity of the certificate that was considered. The real issue was overlooked by the Committee. The Scrutiny Committee ought to have returned a finding as to whether or not the appellant belonged to "Kunbi" caste as claimed by him on the basis of the certificates and other documents produced by him and should not have stopped short of that determination merely by considering whether the earlier certificate was in fact issued by the Tahsildar or not. Since the High Court has mainly relied upon the finding of the Scrutiny Committee. We consider it appropriate to set aside the order of the High Court and remand the petition to the High Court with a direction that the High Court shall specifically require the Scrutiny Committee to determine the question of caste of the appellant and for doing so grant opportunity to the parties to produce all such evidence as they may wish in support of their respective claims. The Scrutiny Committee shall be made time bound to furnish its report and in doing so the Scrutiny Committee shall ignore its earlier report-cum-order dated 28.8.2000 and the findings recorded therein. The High Court may, after receipt of report, decide the petition afresh after hearing the parties."
8.It could be inferred from the above-stated order of the Apex Court, that the social status claim is required to be examined by considering the evidence on record even though the Committee reaches to the conclusion that the caste certificate referred for verification is bogus specially when the said certificate has been acted upon and the claimant is appointed/elected to a reserved post. In short, once the claimant has derived the constitutional benefit of reservation, it would not be proper for the scrutiny committee to close the verification proceedings on coming to a conclusion that the caste certificate referred was bogus. It has to proceed further even after recording such a finding and consider the evidence including the vigilance enquiry report, social and religious traits, ethnic practices etc. so as to finally decide the social status claim rather than confining its enquiry on the authenticity of the caste certificate. However, if on assessment of the evidence the Committee comes to the conclusion that the claimant does not belong to the caste mentioned in tho certificate and that the certificate was bogus, it has the powers to direct its confiscation/ cancellation and withdrawal of the benefits enjoyed by the claimant including directions to file criminal complaint by the competent authority.
9.It was submitted by Shri V.D. Sapkal, the learned A.G.P. that as per Section 4 of the Caste Verification Act, the caste certificate is required to be issued by a competent authority and if the same was never issued by such an authority, nothing further would remain in the verification proceedings as the very foundation of the same is found to be bogus/not existent. The Committee would be, therefore, justified in exercising its powers under Section 7 to direct the Collector concerned to issue a show-cause notice to the claimant and cancel/confiscate the caste certificate after hearing him. In short, the learned A.G.P. has supported the impugned orders passed the Tahsildar as well as the communications issued by Scrutiny Committee on the basis of which the impugned orders have been passed.
10.Section 4, 6, 7 to 9 of the Caste Verification Act are relevant for out considerations. Sub-section 1 of Section 4 provides that the competent authority may, on an application made to it under Section 3, after satisfying itself about genuineness of the claim, issue a caste certificate within such time limit and in such form as may be prescribed or reject the application for reasons to be recorded in writing, whereas sub-section 2 of the said section provides that a caste certificate issued by any person, officer or authority other than the competent authority, shall be invalid and the caste certificate issued by the competent authority shall be valid only subject to the verification and grant of validity certificate by the Scrutiny Committee. Thus, a caste certificate issued by a competent authority under Section 4(1) is only provisional and it can be treated to be valid only after the Scrutiny Committee validates the caste claim.
In case the application for caste certificate is rejected under Sub-section 2 of Section 4, the claimant has a remedy of appeal under Section 5 of the Caste Verification Act. After obtaining the caste certificate from the competent authority, any person desirous of availing the benefits or concessions provided to the reserved categories, may approach the Scrutiny Committee for verification of such caste certificates and issuance of a validity certificate as per Section 6(2). Whereas under Section 6(3), the appointing authority of the Central or State Government, local authority, public sector undertakings, educational institutions. cooperative societies or any other Government aided institutions shall make an application to the Scrutiny Committee for verification of the caste certificate and issuance of validity certificate in case a person selected for appointment. This would include the reference for scrutiny in respect of the caste claim of the elected representatives in view of the resolution issued by the State Government and as followed by the State Election Commission. Where before or after the commencement of the Act, a person not belonging to any of the reserved categories has obtained a false caste certificate, either for himself or for his children, the Scrutiny Committee may, suo-motu or otherwise, call for the record and enquire into the correctness of such certificate and if it is of an opinion that the certificate was obtained fraudulently, it shall, by an order, cancel or confiscate the certificate by following such procedure as prescribed after giving the person concerned on opportunity of being heard and communicate the same the concerned person/concerned authority, if any, as per Section 7(1) of the Caste Verification Act. Whereas under Section 7(2), the order passed by the Scrutiny Committee shall be final and shall not be challenged before any authority or Court except the High Court under Article 226 of the Constitution of India. Where the caste claim is referred for verification to the Scrutiny Committee under the Act, the burden of proving that the claimant belongs to such a caste, tribe or class, shall be on such claimant/ applicant under Section 8 of the Act and under Section 9, the Scrutiny Committee shall, while holding an enquiry, have all the powers of Civil Court while trying the suit under the Code of Civil Procedure, 1908 and in particular, in respect of the following matters namely:
(a) Summoning and enforcing the attendance of any person and examining him on oath:
(b) requiring the discovery and production of any document:
(c) receiving evidence on affidavits:
(d) requisitioning any public record or copy thereof from any Court or office: and
(e) issuing Commissions for the examination of witnesses or documents.
11.In the case of Annaji Maroti Raut vs. Scheduled Castes, Scheduled Tribes, Vimukta Jatis, Nomadic Tribes, Other Backward Class and Special Backward Tribes Caste Certificate Verification Committee, Nagpur and others 2003 (3) Mh.L.J. 612, this Court held that the provisions of the caste verification act confer sufficiently wide powers on the Scrutiny Committee to conduct investigation even with regard to bogus and fabricated caste certificates. The caste claim was invalidated on the basis of the enquiry report submitted by the District Magistrate, which had concluded that the caste certificate issued was bogus. This Court held that the Scrutiny Committee has power of verification in respect of any caste certificate which has been obtained either by furnishing false information or by filing false statement or documents or by any other fraudulent means. Powers conferred by Section 7 on the Committee are very wide and cover all caste certificates including bogus and fabricated certificates.
12.Once a claimant of social status as belonging to reserved castes has utilised the caste certificate, either for seeking appointment against a reserved post or got elected against a reserved seat in a local self-government body like Village Panchayat, Samiti, Zilla Parishad or Municipal Council/ Corporation, the benefit of reservation so obtained cannot be deprived solely on the ground that the caste certificate was found to be bogus or fabricated. When a person is elected as a Member of any of the self-government bodies, he/she can be unsitted only when it is found by the Committee that he/she does not belong to the reserved category claimed to be. Even if the caste certificate is found to be bogus or false, the social status claim is required to be scrutinised by the Committee by affording an opportunity of loading evidence and on the basis of the parameters set out for verification by the Caste Verification Act and/or the law laid down by the Apex Court. In the process of verification if the Committee reaches to a conclusion that the caste certificate was not issued by the competent authority, it cannot stop there itself specially when the caste certificate has been utilised either for appointment or for election against a reserved post/seat. The Committee will have to call upon the claimant to lead evidence in support of his/her social status notwithstanding the caste certificate and based on the evidence produced by him/her, the vigilance enquiry report and the social, religious practices and linguistic traits etc., the caste claim is required to be decided by the Committee. If finally the Committee comes to the conclusion that the claimant does not belong to the caste he/she claims to be, it has to invalidate the caste claim and it has powers to direct confiscation and cancellation of the said certificate. Section 7 of the Caste Verification Act reads thus:
"7. Confiscation and cancellation of false Caste Certificate :
(1) Where, before or after the commencement of this Act, a person not belonging to any of the Scheduled Castes, Scheduled Tribes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category has obtained a false caste certificate to the effect that either himself or his children belong to such Castes, Tribes or Classes, the Scrutiny Committee may, suo motu, or otherwise call for the record and enquire into the correctness of such certificate and if it is of the opinion that the certificate was obtained fraudulently, it shall, by an order cancel and confiscate the certificate by following such procedure as prescribed, after giving the person concerned an opportunity of being heard, and communicate the same to the concerned person and the concerned authority, if any."
13.In the instant case, the Committee has referred to an order passed by this Court in Writ Petition No.2146/2002, and we have noticed from the record that the said petition is still pending for final decision. The powers of confiscation of the caste certificate have been bestowed on the Committee by the Caste Verification Act and it cannot, therefore, delegate the powers to the Collector or Tahsildar for directing enquiry and confiscation of the caste certificate. If a particular function has been assigned to the Committee by the statute, it has to discharge the same function by itself and cannot delegate the same powers to any other authority unless the statute so specifically stated. The Committee, thus, fell in manifest error in concluding the scrutiny proceedings on the basis of the report received regarding the bogus caste certificate and it ought to have proceeded to verify the petitioner's caste claim on its own merits and by affording the claimants to lead evidence. The Committee further fell in error in asking the Collector for directing enquiry by the Tahsildar so as to confiscate the caste certificate which resulted into the impugned orders. Such a course has no sanctity in the scheme of the Caste Verification Act. If the caste certificate was not acted upon by the claimants, the situation would be different. But once the certificate has been utilised either for an appointment or for an election against a reserved post/ seat, the Committee is required to scrutinise the caste claim on its merits and the scrutiny proceedings cannot be stopped only on the basis that the competent authority never issued the caste certificate or the caste certificate was found to be fabricated/ false. The Committee is required to verify the social status claim and it cannot conclude the proceedings merely on the basis of the report received by it that the competent authority had not issued the caste certificate and this would be in keeping with the intention of the legislation in framing the Caste Verification Act and more so when the effect of invalidation of the caste claim results into vacating the office/ post as well as prosecution.
14.In the result, we allow the petitioners partly and quash and set aside the impugned orders. The caste claim of the petitioners is hereby remanded to the Scrutiny Committee for do-novo enquiry on the basis of the evidence on record available or to be produced by the claimants. The verification proceedings, on remand, shall be concluded as expeditiously as possible and in any case within a period of two months from the date of first appearance and the claimants shall appear before the Committee on or before 22.9.2003. Rule made absolute accordingly with no order as to costs.
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