1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 4614 OF 2009. WITH CIVIL APPLICATION No. 503 of 2010 Smt. Tarabai Deoram Koli, Age about 68 years, Occu. House hold, residing at Kalikanagar, Shirdi, Tq. Rahata, Dist. Ahmednagar .. PETITIONER. VERSUS 1) The State of Maharashtra, Through Secretary, Department of Forest & Revenue, Mantralaya, Mumbai-32. 2) The Schedule Tribes Certificate Scrutiny Committee, Aurangabad Division, Aurangabad. 3) Prakash Jayram Shelke, Age 39 years, Occu. Business, Residing at Pimpalwadi Road, Shirdi, Tq. Rahata, Dist. Ahmednagar. 4) Sampat Nivruti Gondkar, Age 61 years, Occu. Agriculture, residing at Shirdi, Tq. Rahata, Dist. Ahmedngar . RESPONDENTS. ... Shri P.V. Barde Advocate h/f S.P. Shah, Advocate for Petitioner. Mrs. A.V. Gondhalekar, Assistant Government Pleader, for respondent No. 1. Shri R.P. Phatke, Advocate for respondent No. 2. Shri R.N. Dhorde, Advocate h/f for respondent No. 4. 2 CORAM : A.M. KHANWILKAR AND S.S. SHINDE, JJ. DATE : 11th FEBRUARY 2010. PER COURT: (S.S. Shinde,J.) 1. This Writ Petition takes exception to the decision dated 10-02-2009 passed by the Schedule Tribes Certificate Scrutiny Committee, Aurangabad Division, Aurangabad in case No. DD/TCSC/Aur/Case No. ABD/Takar/37/2008. Heard Learned Counsel appearing for the respective parties. Rule, returnable forthwith. With the consent of the parties, heard finally at the stage of admission. 2. The main grievance of the petitioner in this petition is, petitioner’s caste claim is invalidated by the respondent Committee without giving sufficient opportunity and reasonable time to establish her case . The counsel appearing for the petitioner has restricted the prayer to the extent the 3 respondent No. 2-Committee should give proper opportunity of hearing to the petitioner and then only pass appropriate decision afresh in respect of validation of the caste claim of the petitioner. Therefore, we do not think it necessary to advert to the detailed facts or other contentions raised in the petition. 3. It is the case of the petitioner that, the respondent No.3 made complaint before the respondent No. 2-Committee against the petitioner alleging that, the petitioner does not belong to ‘Mahadeo Koli’ Schedule Tribe. On said complaint, proceedings are initiated by Scrutiny Committee. The respondent No. 4 joined the said proceeding as intervenor supporting the case of the complainant. On 12-12-2008 the petitioner filed her detailed say along with all necessary documents to prove that, the petitioner belongs to ‘Mahadeo Koli’ (Schedule Tribe). It is further case of the petitioner that, though the petitioner herself was present through Advocate before the Committee on 10-02-2009 and requested for adjournment, the respondent No.2-Committee 4 rejected her request for adjournment. It is the case of the petitioner that, the Vigilance Cell Report was forwarded to the petitioner by forwarding letter dated 04-02-2009 by the respondent No.2-Committee and same had been received by the petitioner on 05-02-2009 and on this back drop, when matter was fixed for hearing on 10-02-2009,the petitioner sought adjournment to respond to the Vigilance Cell report. According to the petitioner the respondent No. 2- Committee has not properly appreciated the prayer for adjournment in particular on the ground that having regard to the advanced age of the petitioner and the intricate questions of facts and law involved, she desires to take assistance of an Advocate to espouse her cause, but the respondent No.2 hurriedly proceeded to hear the matter on the said date. Therefore, the learned counsel appearing for the petitioner would vehemently submit that, no sufficient opportunity and reasonable time was given to the petitioner by the respondent No. 2-Committee to put-forth her case, and to produce documents on record in support of her contention. Therefore, learned 5 counsel for the petitioner would submit that, the matter may be remitted back to the Scrutiny Committee for fresh hearing and Committee may be directed to afford proper opportunity of hearing to the petitioner and take the decision afresh. 4. Learned counsel appearing for the respondent Nos. 3 & 4 vehemently opposed the prayer of the petitioner and submitted that, the petitioner is making desperate attempts to prolong the proceedings so as to defeat the interest of the respondent Nos. 3 & 4. According to the learned counsel for the respondent No. 4, this is second round of litigation for same purpose, and therefore, this Court may not interfere in the impugned decision since same was taken after affording proper opportunity of hearing to the respective parties. The learned counsel appearing for the respondent No. 2- Committee has invited our attention to the points framed by the respondent No. 2-Committee and submitted that,the Committee has properly appreciated the rival contentions and has taken proper decision, therefore, this Court may not 6 interfere in Writ jurisdiction. The learned counsel further submitted that, the Vigilance Cell report was forwarded to the petitioner by forwarding letter dated 04-02-2009 and same has been received by the petitioner on 05-02-2009, and therefore, there was no reason for the petitioner to ask for further adjournment. The learned counsel appearing for the respondent Committee has made available the original record of the proceeding for our perusal. 5. We have heard the learned counsel appearing for the respective parties at length, and also perused decision of the respondent No. 2-Committee. The respondent No. 2-Committee framed as many as 14 issues for its consideration and determination. Out of 14 issues framed by the Committee for adjudication, it would be relevant to refer to Issue Nos. 4 & 9 respectively. The issue No. 4 reads thus :- “ Whether the respondent was given adequate opportunity for representing her case?” 7 The said issue is answered in the affirmative. The respondent No. 2-Committee has recorded following reason for answering the said issue in the affirmative. “ i) The land dispute between the parties took place from the year 1978. The present proceedings before the Committee were initiated on the basis of an application made by the complainant on 21-06-2008. The Vigilance Officer of the Committee have visited the respondent twice. Her Statement was obtained by the Vigilance Officer on 01-11-2008. The Commissioner, Nashik Division, has made a reference to this Committee from 13-06-2008 and thereafter he written six reminders to this Committee for early decision in the case. From the proceedings of Maharashtra Legislative Council the First Session 2007, it is revealed that the starred Question No. 26374 was discussed in the House in the First Session of 2007 i.e. March 2007. The parties to the present proceedings had appeared before the Committee on 16-10-2008, 10-11-2008, 12-12-2008, 16-12-2008, 03-02-2009 and 10-02-2009. ii) It is also fact that they were called before this Committee by issuing Telegrams thereby asking them to remain present before the Committee on 03-02-2009 8 and interim order came to be passed on 03-02-2009 in presence of complainant, the intervenor and a representative of respondent. Tarabai which clearly stated that the matter was fixed for final hearing on 10-02-2009. iii) The respondent, Tarabai has submitted her reply before the Committee on 10-11-2008. Her representative Shri Ayyapan Pillai was present before the Committee on 03-02-2009. Thus all the parties to the present proceedings are aware of the proceedings and they were duly served the notices for final hearing to be taken place on 10-02-2009. For the aforesaid reasons, we answer the Issue No. 4 in the affirmative.” The perusal of the reasons recorded by the Committee in deciding issue No. 4 is self-explanatory. On reading the reasons extracted above, it is clear that, the Committee has not referred to the fact that Vigilance Cell report was forwarded to the petitioner by forwarding letter dated 04-02-2009 and same was received by the petitioner only on 05-02-2009, as is revealed from the perusal of original file 9 submitted by the counsel for the respondent No. 2-Committee for our perusal. On reading aforesaid reasons, it appears that there was starred Question No. 26374 for discussion in the Assembly connected with the pending proceedings. In that backdrop the respondent No.2 hastened the hearing of the matter. The respondent No. 2-Committee has observed that, the parties to the proceedings had appeared before Committee on 16-10-2008, 10-11-2008, 12-12-2008, 16-12-2008,10-02-2009 and on 03-02-2009 some interim order came to be passed. Therefore, the perusal of the reasons recorded by the Committee would indicate that, the petitioner promptly appeared before the Committee on respective dates and also filed her reply along with documents on 12-12-2008. Thereafter, it appears that, Vigilance Cell report came to be prepared on 19-01-2009 as stated by the learned counsel appearing for the respondent No. 2-Committee. On perusal of the original file it clearly appears that, Vigilance Cell report was forwarded to the petitioner by forwarding letter dated 04-02-2009 and same was received by the petitioner on 05-02-2009. In our 10 opinion, since the latest Vigilance Cell report was received by the petitioner on 05-02-2009, it was incumbent upon the respondent No. 2- Committee to grant sufficient time to the petitioner to respond to the said Vigilance Cell report. 6. While considering the issue No. 9 i.e. “ Whether the vigilance enquiry report is in favour of the resondent?” the respondent No. 2- Committee has answered the said issue in the negative. The reasons recorded by the Committee while answering the said issues are as follows. “ i) The documents obtained by the Vigilance Officer, during vigilance inquiry in respect of two real brothers of the respondent. Tarabai shows their caste as Koli only and not as Mahadeo Koli. Similarly, the information given by the respondent. Tarabai regarding traits, characteristics, festivals, deities etc. do not resemble those of Mahadeo Koli Scheduled Tribe. For the aforesaid reason, we 11 answer the issue No. 9 in the negative.” Once the Vigilance Cell report is not in favour of the candidate the respondent No. 2-Committee is obliged to give sufficient time and full opportunity of hearing to the candidate. The Hon’ble Supreme Court in case of “Kumari Madhuri Patil V Addl. Commissioner [reported in 1996, SCC, 241]” in para No. 13(6) has held ; “ The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be “not genuine” or doubtful’ or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgment due or through the head of the 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 receipt of the notice and in no case 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 12 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-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.” Therefore, what follows from the observations in aforesaid para is that, if the Vigilance Cell report is adverse to the candidate, notice should be given to the candidate and he/she should file reply within two weeks from the date of the receipt of the notice and in any case on request not more than 30 days from 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 13 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. In the present case, the petitioner received the latest Vigilance Cell report on 05-02-2009 and date of hearing was fixed on 10-02-2009. Therefore, in our opinion, the respondent No. 2-Committee in utter disregard to the procedure stated by the Hon’ble Supreme Court in aforesaid decision, hurriedly proceeded with the hearing of the matter on 10-02-2009. In our considered opinion, no proper opportunity of hearing or producing documents on record in reply to Vigilance Cell report was afforded to the petitioner. Therefore, the impugned decision of the respondent No. 2-Committee is hereby quashed and set aside, the matter is remitted back to the respondent No. 2-Committee for fresh hearing and for taking appropriate decision afresh. The petitioner is directed to appear before the respondent No. 2-Committee on 02-03-2010 at 11.00 14 AM in the office of Committee. If petitioner wishes to file further reply or documents, she can do so on 02-03-2010 itself and should not ask for further time. The respondents to the petition and also intervenor are at liberty to appear before the respondent No. 2-Committee to put- forth their grievance. The Committee shall proceed with the hearing and give its final decision within three months from today. All questions are left open The Rule is made absolute to the above extent. Civil Application, disposed of in view of the disposal of the main Writ Petition. [ S.S. SHINDE, J ] [ A.M. KHANWILKAR, J ] SDM* WP4614.09