1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3129 OF 2009 Sandeep S/o.Manoharrao Waysal, Age-24 years, Occu-Social Work and Political Activist, R/o.G-2512, Sambhaji Colony, N-6, CIDCO, Aurangabad. PETITIONER VERSUS 1. The State of Maharashtra Through the Secretary, Department of Tribal Welfare, Mantralaya, Mumbai – 32 2. Scheduled Tribe Certificate Scrutiny Committee, Aurangabad Division, Aurangabad, Through its Joint Commissioner and Vice-Chairman, 3. The Aurangabad Municipal Corporation, Aurangabad, Through its Commissioner. 4. Mr.Ayaaubkhan Noorkhan Pathan, Age-Major, Occu-Service – Assistant Commissioner, Aurangabad Municipal Corporation, Aurangabad. 5. Mr.Rafik Fakira Tadvi, Age-36 years, Occu-Service, R/o.Thane, Dist : Thane, Room No.203,Kulgaon, Badlapur (East), Near Umiya Darshon, Jama Masjid, Dist. Thane RESPONDENTS Mr.B.L.Sagar Killarikar, learned counsel for petitioner. Mr.N.N.Jadhav, learned AGP for respondent no.1 Mr.U.S.Malte, learned counsel for respondent no.2 Mr.S.N.Pagare, learned counsel for respondent no.3 Mr.P.M.Shah with Mr.S.P.Shah, learned Senior Counsel for respondent no.4 Mr.S.P.Sonpawale, learned counsel for respondent no.5. 2 (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 22/09/2009 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. Rule. Rule made returnable forthwith. Considering the small issue involved in the present writ petition about sanctity of the order passed by the Scrutiny Committee the respondent no.2 dated 13/03/2009, by the consent of the parties, the writ petition is finally heard at the stage of admission itself. 2. By the present writ petition filed under Article 226 of The Constitution of India, the petitioner herein has prayed for issuance of writ of certiorari to quash and set aside the order passed by the Scrutiny Committee the respondent no.2 Aurangabad Division Aurangabad dated 13/03/2009. The petitioner has also prayed for issuance of writ of mandamus for direction to respondent no.2 Scrutiny Committee to initiate fresh de-novo inquiry to ascertain the correctness of the decision of the Scrutiny Committee, Pune dated 13/05/2000 thereby granting validity certificate confirming the social status of the respondent no.4 as belongs to “Tadvi Bhill” Scheduled Tribe. 3. The facts which gave rise to file the present writ petition can be summarized as follows : The petitioner claimed that he is a social worker and voter enrolled with 5th respondent Municipal Corporation, 3 Aurangabad. It appears according to the petitioner that the present petition is filed to check the growing tendency of certain unsurplus personalities from non reserved category to grab the posts and benefits which are specifically reserved for various backward class category persons, which is a social evil and a fraud on the concept of constitutional and statutory reservations. The 4th respondent has obtained the caste validity certificate issued by the Scrutiny Committee, Pune on 23/05/2000 as he belongs to Tadvi Bhill, Scheduled Tribe. It appears from the perusal of this certificate that the said certificate of validity was granted as one Shri.Rafik Fakira Tadvi (respondent no.5) is in his near relation and the same is confirmed and accordingly the certificate of validity of the caste as Tadvi Bhill, Scheduled Tribe is issued in favour of respondent no.4. It further appears that on inquiry it revealed that the said Rafik Tadvi is unaware that in his name, Ayubkhan, respondent no.4, Aurangabad had filed an affidavit claiming to be the relative of the said Rafik Tadvi and had obtained validity certificate. It is also alleged that on inquiry with the Tahsil Office at Parbhani, the no caste certificate is issued in favour of respondent no.4. Certain other inquiries were made with the office of the Committee at Nashik as well as Aurangabad which reveals that the 4th respondent had submitted an application somewhere in the year 1995 for issuance of caste validity certificate. Alongwith the said proposal, the documents which were produced, these documents claimed to be the false, forged and fabricated documents including the false affidavit of 5th respondent dated 07/09/1995. One more affidavit is also claimed to 4 be filed on 8th August 1998 which also alleged to be a false affidavit. It is also alleged that certain false record from the Village Panchayat of Satgaon (Dongri), Tq.Pachora, Dist. Jalgaon was produced by the 5th respondent alongwith his proposal for issuance of validity certificate. Thus according to the petitioner, the 4th respondent has obtained the caste validity certificate by committing the fraud and on the basis of false and forged documents placed before the Scrutiny Committee, Pune. In this background, an application cum complaint was moved by the petitioner before the Member Secretary and Deputy Director of Scheduled Tribe Certificate Scrutiny Committee, Aurangabad Division Aurangabad on 09/01/2009. Vide communication dated 13/03/2009, it was informed that the Scrutiny Committee has no power without the permission or direction from the Hon’ble High Court to look into the complaint/application filed by the petitioner and hence the application / complaint can not be entertained and the complaint was rejected as not tenable which communication is impugned in the present writ petition. 4. After presentation of the writ petition, notices were issued to the respondents. All respondents appeared before this Court and filed their detailed affidavit in reply. 5. Heard respective counsels for the parties. 6. During the course of submissions across the bar, our attention is drawn towards the communication dated 13/03/2009 as well as 5 the affidavit filed by the 5th respondent before this Court and the contents therein. By pointing out the contents of the affidavit of respondent no.5, and the communication dated 13/03/2009, it was urged across the bar that this is a case of fraud being committed by respondent no.4 on the Scrutiny Committee for issuance of caste validity certificate and hence if the complaint is lodged by the validity certificate holder whose affidavit and documents are used by the respondent no.4, the Committee is require to conduct an inquiry on the complaint/application filed by the concerned. In support of the submissions across the bar, learned advocate appearing for the petitioner placed reliance on the judgment of Division Bench of this Court in the matter of Sangita Sharad Kolse Versus State of Maharashtra, reported in 2006(5) All MR 565. One of us (Shri.P.V.Hardas, J.) is a party to this judgment. It is observed by the Division Bench in this ruling that “since the candidate had obtained an order validating her caste by suppressing the material information of her conversion to Christianity and the said order validating her caste claim had been obtained by practicing fraud on the respondent Scrutiny Committee, the respondent Scrutiny Committee was clothed with the inherent jurisdiction of exercise of powers of review.” 7. Further reliance is placed by the counsel for the petitioner on the ruling reported in 2009(3) Mh.L.J. 433 in the matter of Devendra Gurunath Khedgikar versus Scheduled Tribe Certificate Scrutiny Committee, Pune and another about the observations of the Division Bench that, “There is presumption of legality in favour of 6 statutory order. The order of respondent no.1 Scrutiny Committee validating the tribe claim of the petitioner is presumed to be valid unless proved to be vitiated by misrepresentation of fraud. If the order was obtained by fraud or misrepresentation by the party seeking it and if that comes to the notice of the judicial or quasi-judicial authority and if such authority prima facie forms an opinion that the process was abused then such order can always be interfered with and set at nought by the same authority exercising the very same power under which the original order was passed. Respondent no.1 while deciding the issue as to whether the certificate was obtained by misrepresentation or fraud will confine itself to the issue of misrepresentation and fraud alone and shall not review its order based on new material. Formation of an second opinion on the same material is not permissible. On merits, the order can not be interfered with because that would amount to exercising power of review. The order can only be interfered with and set at nought if respondent no.1 comes to the conclusion that the certificate was obtained by misrepresentation and/or fraud and/or in collusion with some other person or on the basis of the forged documents.” 8. It is urged across the bar that considering the ratio as laid down in above mentioned two decisions of Division Bench of our own High Court, the Scrutiny Committee is the only forum who has to make an inquiry in case the complaint is lodged with the Scrutiny Committee that the caste validity certificate is obtained by practicing fraud upon the Scrutiny Committee and considering all these 7 aspects, the matter be remanded back to the Scrutiny Committee for fresh inquiry in the matter of issuance of caste validity certificate in favour of the 4th respondent. 9. During the course of submissions across the bar advanced on behalf of the 4th respondent, learned counsel appearing for the 4th respondent challenged the locus of the petitioner to file the present writ petition as well as the earlier writ petition filed by the neighbour of the present petitioner. 10. Considering the rival submissions across the bar we are of the opinion that once the complaint is lodged before the Scheduled Tribe Caste Scrutiny Committee, then it is for the Divisional Scrutiny Committee to look into the matter whether the caste validity certificate is obtained by practicing fraud on the Scrutiny Committee or not. 11. In the premise, without touching to the merits of the matter, we hereby quash and set aside the communication dated 13/03/2009 and remit the matter back to the Scrutiny Committee to hear all the parties concerned in accordance with Law in the matter of complaint lodged by the petitioner about issuance of caste validity certificate to the respondent no.4. For the expedite hearing, we hereby direct the petitioner, the 4th respondent and 5th respondent to appear before the Scrutiny Committee on 06/10/2009, and the Scrutiny Committee to decide the claim or allegation in the complaint of the parties within 6 8 months thereafter. It is hereby made clear that the order passed in the present writ petition is passed without touching the merits of the matter and all the points are kept open to be raised before the Scrutiny Committee. 12. Rule is thus made absolute on the above terms with no order as to costs. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/SEP 2009/wp3129-09