1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.10833 OF 2009 1. Smt.Chandrabhagabai Pandurang ) Shevare ) 2. Smt.Hirabai Deoram Shevare ) 3. Shri Nandu Deoram Shevare ) 4. Smt.Latabai Madhukar Gaikwad ) 5. Sau.Sarswati Yadav Kadali ) 6. Sau Jeejabai Subhash Chaudhari ) .. Petitioners Versus 1. Manoj Gangadhar Burkule ) 2. Sau. Sunita Narendra Aghav ) 3. Smt.Nirmalabai Jairam Shevare ) 4. Kum.Ashwini Jairam Shevare ) 5. The State of Maharashtra ) .. Respondents --- Mr.M.M.Sathaye for the petitioners. Mr.S.S.Bhende,A.G.P for State. Mr.S.R.Ronghe for respondent Nos.1 and 2 --- CORAM : A.S.OKA, J. DATE ON WHICH SUBMISSIONS ARE HEARD : 25th March 2010. DATE ON WHICH JUDGMENT IS PRONOUNCED: 6th May 2010. JUDGMENT: . The petitioners are the original plaintiffs. The 1st and 2nd respondents are the original defendants. The State of Maharashtra has been added as a party to this Writ Petition. The petitioners and 3rd and 4th respondents filed a suit for declaration and injunction against the 1st and 2nd respondents. The declaration sought is that the agreement for sale dated 9th October 2007 and sale deed dated 11th December 2007 allegedly obtained by the 1st and 2nd respondents from the plaintiffs are illegal and 2 the same are not binding on the plaintiffs. A prayer for perpetual injunction was made as a consequential relief. In paragraph 8 of the plaint it is asserted that the plaintiffs belong to Scheduled Tribe and therefore, there is exemption granted under section 46 of the Bombay Court Fees Act, 1959 (hereinafter referred to as the said Act of 1959) from the payment of Court fees. 2. The 1st and 2nd respondents made an application under Rule 11 of Order VII of the Code of Civil Procedure,1908 (hereinafter referred to as the said Code) praying for rejection of the plaint on the ground that the Court fee payable on the plaint was not paid. An application was made by the plaintiffs at Exh.32 contending that the caste certificate issued to the 3rd Plaintiff by the Competent Authority has been produced on record. It was contended that the caste certificate issued by the Competent Authority was sufficient to prove the caste of the plaintiffs. In the said application at Exh. 32 it was prayed that the report of the superintendent of the Court be called for. Another application was made by the plaintiffs at Exh.35 on 14th October 2009 contending that the caste certificate issued by the Competent Authority in respect of the 2nd plaintiff was produced which shows that the 2nd plaintiff was belonging to Mahadeo Koli which is a scheduled tribe. A prayer was made for making a reference to the Caste Scrutiny Committee. 3. The application made by the 1st and 2nd defendants at Exh.15-A for rejection of the plaint was taken up for hearing. By the impugned Judgment and Order dated 25th November 2009, the petitioners were directed to pay requisite stamp duty within the period of one month failing which the plaint shall stand rejected. The said order has been impugned in this petition. 4. The learned counsel for the petitioners invited my attention to the impugned order and pointed out that the caste claim of the petitioner has 3 been decided by the Civil Court in the impugned order by holding that the petitioners/plaintiffs belong to Hindu Koli community. He submitted that the Civil Court has no jurisdiction to adjudicate upon the caste claim of the plaintiffs in view of bar created by the Maharashtra Scheduled Caste, Scheduled Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000. He submitted that in view of law laid down by the Apex Court and in view of express provisions of the said Act of 2000, Civil Court had no jurisdiction to give a finding on the caste of the plaintiffs. He submitted that the petitioners were entitled to claim exemption from payment of Court fees on the basis of caste certificate issued by the Competent Authority which is valid till the same is invalidated or cancelled by the appropriate authority under the said Act of 2000. He submitted that the caste claim of the petitioner is pending before the statutory Scrutiny Committee and till such time, the caste claim is not invalided, exemption ought to have been granted to the petitioners. He submitted that in a case like this, the principles governing the Order XXXIII of the said Code should be taken as a guideline. He submitted that if ultimately it is found that the petitioners are not entitled for exemption as a result of the Scrutiny Committee invalidating their claim, the Court fees can be always recovered. He submitted that intention of exercising power under section 46 of the said Act of 1959 is to protect the persons belonging to Scheduled Tribes and therefore, only because caste validity certificate is not issued by the Caste Scrutiny Committee, the plaintiffs should not be compelled to pay the Court fees especially when the caste certificate issued by the Competent Authority is produced on record. He submitted that the caste certificate issued by the Competent Authority in favour of the 3rd petitioner(Nandu) has been produced on record showing that he belongs to a Scheduled Tribe. He pointed out that the caste certificate of husband of the 8th plaintiff is also placed on record. He made detailed submissions as regards the procedure which can be followed by the Civil Court in such a contingency. 4 5. The learned counsel for the 1st and 2nd respondents submitted that the caste certificate of one of only petitioners has been produced which is not yet verified. He invited my attention to various provisions of the said Act of 2000 and submitted that the caste claim can be established only on production of caste validity certificate of the Scrutiny Committee. He submitted that in absence of any material to show that the petitioners belong to Scheduled Tribe, the petitioners will have to pay Court fees and after producing the caste validity certificate they can always claim refund. He submitted that in any case, the order impugned is of rejection of plaint and remedy of preferring a First Appeal is available. 6. The learned A.G.P submitted that unless caste validity certificate issued by the Scrutiny Committee is produced at the time of institution of suit, the plaintiff is disentitled to claim exemption in accordance with notification issued under section 46 of the said Act of 1959. 7. The learned counsel for the petitioner relied upon the decision of Kerala High Court in case of Koongaran Mukundan Vs.Thamaravalappil Nalini (AIR 1971 Kerala 183). He placed reliance on the decision of the Apex Court in case of R.Kandasamy Vs. Chief Engineer, Madrast Port Trust [(1997) 7 SCC 505]. He placed reliance on the decision of the Apex Court in case of Union of India and others vs. M/s.Wood Papers Ltd. And another (AIR 1991 SC 2049) which lays down the law regarding interpretation of provisions of exemption in a taxing statute. Lastly, he placed reliance on the decision of Division Bench in case of Umabai Shankar Borgaonkar Vs. Shankar Borgaonkar (AIR 1940 Bombay 44). He submitted that in such a case procedure contemplated by Order XXXIII of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code) can be followed. He submitted that if the said procedure is followed, there are safeguards provided by which Court fee can be recovered if ultimately it is found that the plaintiff is not entitled to exemption. He 5 submitted that this Court is dealing with a taxing Statute and therefore , it has to be interpreted in favour of a taxpayer. He submitted that the impugned order will have to be quashed and set aside and the exemption will have to be granted in favour of the petitioners. 8. This Court has extended the time to deposit the court fees and hence, the order of rejection of the plaint has not become operative. There is no decree. Remedy of preferring appeal is not available. Hence, the petition is entertained. 9. It is not in dispute that in exercise of powers conferred by the section 46 of the said Act of 1959, the State Government has remitted the Court fees payable by members of the scheduled tribe. Under section 46 of the said Act of 1959, the State Government has power to reduce or to remit all or any of the fees mentioned in the first and second schedules. The said power is to be exercised by issuing notification in official Gazette. There is no dispute that the state government has issued a notification in the official Gazette by which the Court fee payable by the members of scheduled tribes has been remitted. Under Order XXXIII of the said Code an indigent person is permitted to file a suit without paying the Court fees payable on the plaint. The scheme of the said Order XXXIII is that in case of such litigant, the payment of Court fees is postponed. If there is a notification issued under section 46 of the said Act of 1959 thereby completely remitting the Court fees payable on plaint, it amounts to grant of complete exemption inasmuch as the payment of Court fee is not postponed, but the requirement of payment of Court fees stands dispensed with. Therefore, the procedure followed under Order XXXIII cannot be applied in the present case. 10. If a litigant wants to take benefit of the aforesaid notification under section 46 of the said Act of 1959, he will have to prove that he belongs to a scheduled tribe. The State enactment which is operating in the field is the 6 Maharashtra Scheduled Caste, Scheduled Tribes, De-notified Tribes (Vimukta Jati), Nomadic Tribes and Special Backward category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (hereinafter referred to as the said Act of 2000). In exercise of the rule making power under the said Act of 2000, the Maharashtra and Scheduled Tribes (Regulation of Issuance and Verification of) Certificate Rules, 2003 (hereinafter referred to as the said Rules) have been framed. The Section 4 of the said Act of 2000 reads thus: “4. Caste Certificate to be issued by Competent Authority. (1) The Competent Authority may, on an application made to it under section 3, after satisfying itself about the genuineness of the claim and the following the procedure as prescribed, 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. (2) A Caste Certificate issued by any person, officer or authority other than the Competent Authority shall be invalid. 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.” Rule 4 of the said rules provides that a Competent Authority is required to issue the Scheduled Tribes Certificate within a period of 15 days from the date of receipt of duly completed application. Thus, there is a provision which requires that the caste certificate should be issued expeditiously. Considering the scheme of the said Act of 2000, the caste certificate issued in accordance with section 4 issued by the Competent Authority can be said to be a prima facie evidence to show that the person holding such caste certificate belongs to scheduled tribe. If such caste certificate is already held as invalid or is cancelled by Scrutiny Committee, such caste certificate is of no value at all. For claiming exemption under the 7 notification issued under section 46 of the said Act of 1959, normally along with the suit, a certificate issued under section 4(1) of the said Act of 2000 issued by the Competent Authority will have to be produced. The said certificate can be accepted as a prima facie evidence of the fact that the plaintiff belongs to a scheduled tribe. It must be made clear that such caste certificate will be treated as a prima facie evidence of the caste for the purposes of claiming exemption, provided the certificate has not been cancelled or invalidated by the concerned Scrutiny Committee. If Such Caste Certificate which is not either invalidated or cancelled is produced along with the suit, the Court will to allow the plaintiff to avail of the exemption. If there is a grave urgency involved in filing the suit, and if the plaintiff is not possessing caste certificate issued in accordance with section 4(1) of the said Act of 2000, the Court can grant a reasonable time to produce such caste certificate. Such grave urgency can arise in a case where a plaintiff wants to seek urgent ad-interim relief or where the limitation provided for filing the suit is likely to expire. In such cases , the Court may permit the plaintiff to avail of the exemption subject to condition of producing such caste certificate within a time specified in the order of the Court. If within the time specified, the plaintiff fails to produce such caste certificate, the Court is always empowered to follow clause (c) of Rule 11 of Order VII of the said Code. 11. As provided in sub-section 2 of section 4 of the said Act of 2000, the caste certificate is valid only subject to verification and grant of validity certificate by the Scrutiny Committee. Therefore, though on production of caste certificate issued under section 4(1) of the said Act of 2000, the plaintiff may be initially permitted to avail of exemption, before the suit is disposed of, such plaintiff will have to produce validity certificate issued by the Scrutiny Committee. If such plaintiff desires to withdraw the suit or compromise the suit before the validity certificate is produced, before granting permission to withdraw or compromise the suit, the Court will have to direct such plaintiff to deposit the Court fees. However, the argument 8 that without production of validity certificate issued by the Scrutiny Committee a plaintiff cannot avail of exemption will have to be rejected in as much as such approach will frustrate the very object of granting exemption to members of scheduled tribe. For various reasons , scrutiny committees take long time to complete the verification. 12. Neither under the provisions of the said Act of 2000 nor under the provisions of the said Rules there is a provision by which a Civil Court can issue directions to a Scrutiny Committee to decide the caste claim within a specified time. However, rule 7 of the said Rules provides that any complaint or allegation that a person to whom a scheduled tribes certificate has been issued, is not belonging to a scheduled tribe shall be inquired into by the concerned Scrutiny Committee. It is provided in that such complaints shall be decided within a period of six months from the date of receipt. In case of a suit where plaintiff has filed scheduled tribe certificate issued by the Competent Authority, if the Court has any doubt as to whether plaintiff belongs to a scheduled tribe, the Court can always direct one of its officers to lodge a complaint under rule 7. Even on an objection being raised by a defendant, the Court can direct one of its officers to file such a complaint. If the complaint is decided against the plaintiff and his caste claim is held to be invalid, the Court can follow the procedure under clause (c) of rule 11 of order VII of the said Code. 13. Now turning to the present case, the trial Court has recorded a finding on the caste claim of the petitioners. The jurisdiction of a Civil Court to decide such issue of caste claim has been ousted by necessary implication in as much as under the said Act of 2000, exclusive jurisdiction to decide a caste claim is conferred on the Caste Scrutiny Committee. Therefore , the impugned order will have to be set aside. A reasonable time will have to be granted to the petitioners to produce caste certificates issued by the Competent Authority. The petitioners have filed on record a caste certificate issued to one of the plaintiffs. The other plaintiffs will have 9 to produce their respective caste certificates within a period of eight weeks from today. If compliance is not made within stipulated period, the order of rejection of the plaint will stand. 14. Hence the petition is disposed of by passing following order: : O R D E R : (i) The impugned order is quashed and set aside subject to condition of all the plaintiffs producing scheduled tribe certificates issued in accordance with section 4 (1) of the said Act of 2000 within a period of eight weeks from today. The plaintiffs shall file a true copy of the order passed by the Scrutiny Committee on record of the trial Court within two weeks from the date on which the same is received by them. (ii) If the plaintiffs fail to comply with the aforesaid directions within the time stipulated by this Court, the trial Court shall invoke clause (c) of rule 11 of order VII of the said Code. (iii) The Petition is partly allowed on above terms with no orders as to costs. (A.S.OKA, J)