Disposed

The State of Maharashtra v. Mangesh Nivrutti Kashid

Bombay HC1 Feb 2012CAW/288/2012

Case brief

AI extract

What is this about?

The High Court refused the State's request to keep aside an observation deeming caste certificates issued without a Vigilance Report as nullity. Relying on Supreme Court precedents, the court held the procedure is mandatory for all cases to prevent false claims, and rejected prayers to stay the existing directions.

What did the court decide?

Prayer to keep the observation regarding nullity of caste certificates without Vigilance Report in abeyance was rejected; prayers to stay the order were dismissed.

The State of Maharashtra Vs Mangesh Nivrutti Kashid — Bombay HC (2012) — LawSathi Research

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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vgm

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CIVIL APPELLATE JURISDICTION

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CIVIL APPLICATION NO. 288 OF 2012 IN WRIT PETITION NO. 853 OF 2012

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The State of Maharashtra ...Applicants

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V/s.

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Mangesh Nivrutti Kashid ...Respondent

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And

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District Collector, Satara, & Ors. ...Non-Applicants

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AND CIVIL APPLICATION NO. ______ OF 2012 IN WRIT PETITION NO. 853 OF 2012

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Mangesh Nivrutti Kashid ...Petitioner

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V/s.

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District Collector, Satara, & Ors. ...Respondents

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And

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Indian National Congress ...Applicants/Interveners

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Mr. Ravi Kadam, Advocate General, with Mr. S.R. Nargolkar, Addl. G.P., for the Applicant in Civil Application No. 288 of 2012

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Mr. S.B. Shetye for the State Election Commission

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Mr. A.Y. Sakhare, Senior Advocate, with Mr. C.G. Gavnekar with

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Mr. Rajiv Chavan, Mr. L.T. Satelkar i/by Mr. G.S. Hiranandani for the Interveners in Civil Application No. Nil of 2012

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Mr. A.V. Anturkar with Mr. S.B. Deshmukh for the Petitioner in Writ Petition No.853 of 2012

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Mr. C.R. Sonawane, A.G.P., for the State in Writ Petition No. 853 of 2012

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CORAM: A.M. KHANWILKAR AND N.M. JAMDAR, JJ. DATE: FEBRUARY 1, 2012

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P.C .:-

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The applicant in Civil Application No. Nil of 2012 has prayed for allowing him to intervene in the leading Civil Application No. 288 of 2012.

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The leading Civil Application was got produced by the learned Advocate General for the State of Maharashtra upon mentioning with the permission of the Court.

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We permitted all the counsel appearing before us to address us, keeping in mind the issue raised in the leading Civil Application No. 288 of 2012. The leading Civil Application has been filed by the State praying for keeping the directions / observations made in order dated 31^st

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January, 2012 passed by us yesterday in group of petitions in abeyance, in particular appearing in paragraphs 10 and 16 of the said order, which

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read thus:-

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“10. ...The Returning Officer/Election Commission ought to examine at the time of scrutiny of nomination as to whether the caste validity certificate accompanying the nomination form of the concerned candidate has been issued by the Scrutiny Committee after following the procedure prescribed by the Apex Court in Madhuri Patil's case and requirements of the Act of 2000 and in particular whether it has been issued after obtaining vigilance report about the caste claim. In absence thereof, concerned validity certificate(s) will be of no legal value and cannot be acted upon in law being nullity.”

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“16. Counsel appearing for the Election commission assures that instructions will be issued to all the Returning Officers forthwith to ensure that caste validity certificate accompanied with nomination form and which are not issued after following procedure under the Act of 2000 and the norms specified in Madhuri Patil's case in particular of obtaining vigilance report those caste validity certificate will have to be discarded being nullity.”

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It is submitted on behalf of the applicant that these directions would result in insurmountable problems not only for the Election Commission during the scrutiny of the nomination papers, which has to be done within stipulated time; but it may so happen that some of the reserved seats of the local Government will remain uncontested because of the rejection of nomination papers of the concerned candidates, who aspire to contest against the concerned reserved seats. It was argued that the observation made in our order that

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the Validity Certificate issued by the Caste Scrutiny Committee without obtaining Vigilance Report is nullity, is not consistent with the decision of the Apex Court. It is submitted that the question of nullity cannot be examined by the Returning Officer at the stage of scrutiny of the nomination papers, moreso keeping in mind the legal position that the Validity Certificate issued by the Scrutiny Committee is required to be treated as final and conclusive and can be challenged only by way of proceedings under Article 226 of the Constitution of India, coupled with the sweep of Rule 12 of the Maharashtra Scheduled Tribes (Regulation of Issuance of Verification of Certificate) Rules, 2003. It is argued that Rule 12(2) reveals that it is only when the Scrutiny Committee is not satisfied with the documentary evidence produced by the applicant, it may forward the application to the Vigilance Cell for conducting the school / home, other enquiry. In other words, referring the matter to Vigilance Cell is the discretion of the Scrutiny Committee and is not imperative, as has been noted by us in our order dated 31^st January, 2012. Even for this reason, the abovesaid observation appearing in our order dated 31^st January, 2012 will have to be kept in abeyance, if not recalled until the next date of hearing of the Writ Petition.

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Before we deal with the abovesaid contentions, we may like to re-state the position mentioned in our order passed yesterday, i.e., 31^st January, 2012. The crux of the observation is that the Election Commission / Returning Officer will have to examine the objection taken in respect of any Validity Certificate accompanying the nomination form of the concerned candidate, if taken before him by the other contesting candidates and during the scrutiny of such objection, if it is noticed that the Validity Certificate relied upon by the concerned candidate has been issued without obtaining Vigilance Cell Report, that may have to be treated as nullity, as it is not a certificate issued in accordance with the provisions of the Act of 2000 and the direction of the Apex Court in Madhuri Patil ’s case, to which we have already adverted to in our order yesterday.

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Reverting to the argument of the State, we have no hesitation in rejecting the same, as, in our opinion, the decision in Madhuri Patil of the Apex Court makes it amply clear that the Directorate should constitute a Vigilance Cell consisting of specified officers and the said Vigilance Cell is expected to undertake enquiry and submit report to the Directorate, on the basis of which, Validity Certificate can be issued by the Scrutiny Committee. This can

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be discerned from clauses 5 and 6 of paragraph 13 of the decision in

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Madhuri Patil ’s case, which clauses read thus:-

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“5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the caste or tribes or tribal communities concerned etc.

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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 acknowledgement 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 the receipt of the notice and in no case on 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 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

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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.”

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If there is any doubt, the same has been clarified in the recent decision of the Apex Court of Three Judges Bench in Dayaram v. Sudhir Batham & Ors. reported in 2011 (6) Mh.L.J. 414. In paragraph 12 of this decision, the Apex Court has held that the directions issued in Madhuri Patil are intrinsic to the fullfilment of fundamental rights of backward classes of citizens and are intended to preclude denial of fundamental rights to such persons who are truly entitled to affirmative action benefits. In paragraph 22 of the same decision, the Court has expounded that the core function of the Scrutiny Committee, in verification of Caste Certificates, is the investigation carried on by its Vigilance Cell.

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In spite of this consistent opinion of the Apex Court, it is too late in the day for the State to contend that it is open to the Scrutiny Committee to direct enquiry by the Vigilance Cell only in selected cases as per its discretion. There can be no discretion in the Scrutiny Committee to dispense with the procedure for enquiry by the Vigilance Cell before issuance of Validity Caste Certificate. That has been amply

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spelt out in Madhuri Patil’ s case, referred to above, as also in Dayaram ’s case (supra) of the Apex Court.

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It will be useful to advert to observations made in paragraph

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23 of Dayaram ’s case where the Apex Court observed thus:-

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“23. Having regard to the scheme for verification formulated by this Court in Madhuri Patil, the scrutiny committees carry out verification of caste certificates issued without prior enquiry, as for example the caste certificates issued by Tehsildars or other officers of the departments of Revenue/Social Welfare/Tribal Welfare, without any enquiry or on the basis of self-affidavits about caste. If there were to be a legislation governing or regulating grant of caste certificates, and if caste certificates are issued after due and proper inquiry, such caste certificates will not call for verification by the scrutiny committees. Madhuri Patil provides for verification only to avoid false and bogus claims. The said scheme and the directions therein have been satisfactorily functioning for the last one and a half decades. If there are any shortcomings, the Government can always come up with an appropriate legislation to substitute the said scheme. We see no reason why the procedure laid down in Madhuri Patil should not continue in the absence of any legislation governing the matter.” (emphasis supplied)

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The emphasised observation makes it amply clear that the procedure to be prescribed under the Rules to be framed by the State should be in conformity with the procedure spelt out in the decision of Madhuri Patil , referred to above, as well as the subsequent decisions of the Apex Court. The law to be enacted or the statutory rule to be framed by the State cannot and ought not to supplant the mechanism specified in Madhuri

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Patil ’s case. It can only supplement that procedure and in furtherance thereof, to the extent of any shortcomings, as may be desirable. Understood thus, the provision contained in Rule 12(2) of the Rules of 2003 will have to be read as mandating the Scrutiny Committee to forward the applications to the Vigilance Cell for conducting requisite enquiry.

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The learned Advocate General urged that, in cases where nearest relative is already issued Validity Certificate, it may not be necessary to have Vigilance Report before issuance of Validity Certificate to the applicant, who relies on the Validity Certificate of the nearest relative. We may only mention that any number of such cases have come before this Court and even in those cases, full-fledged enquiry has been undertaken and insisted upon, as is required to be done in terms of guidelines specified in Madhuri Patil ’s case and the subsequent decisions of the Apex Court.

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In our opinion, therefore, there is no good reason to keep the observation made by us in our order dated 31^st January, 2012, in particular, in paragraphs 10 and 16 in abeyance, as is requested. In any case, the request made by the State for keeping observation in paragraph

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16 of our order is completely misplaced. Inasmuch as the contents of paragraph 16 are not observation of the Court, but statement of the Election Commission placed on record. In the context of the said statement, the counsel for the Election Commission wanted certain clarification to be issued within the framework of the said statement. There is no difficulty in accepting the submission that the Election Commission and its officers may have to process the nomination at the stage of scrutiny of nomination forms of the concerned Reserved Constituencies in accordance with law. While doing so, in cases where it may not be possible for the candidate whose Validity Certificate has been questioned by the competing candidate on the ground that it has been issued without complying the procedure of Vigilance Report by the Scrutiny Committee; and if it may not be possible for the said candidate to produce any contemporaneous document to refute the said challenge, the Returning Officer may permit the said candidate to declare that position by way of affidavit of the candidate or his election agent that the Validity Certificate in question was issued only after the enquiry by the Vigilance Cell. We have no difficulty if the Election Commission were to issue such instructions to the concerned Returning Officer(s). Indeed, whether the affidavit obtained by the concerned candidate is true or otherwise can be gone into in appropriate proceedings. It is not

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necessary for us to elaborate on this matter any further. The fact remains that, during the process of scrutiny of nomination forms, the Returning Officer is obliged to consider the objection taken by the competing candidate and record his opinion as to why he has accepted the objection or rejected the same.

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In our opinion, except this, nothing more requires to be said in the present order.

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While parting, we may place on record a fair stand taken by the learned Advocate General appearing for the State that the Appropriate Authority of the State would forthwith issue instructions / circular to all concerned that the Validity Certificates issued by the Specially constituted 35 District Committees under Notification dated 30^th July, 2011 without obtaining Vigilance Report shall not be allowed to be used till 29^th February, 2012 for any other purpose. This statement is made in the background of disturbing facts which have been placed on record.

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It is noticed that, in the 10 Districts where elections are likely to be held to constitute local Government, in all, 7,334 applications

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were received for issuance of Validity Certificates by the concerned Committees. Out of the said applications, in staggering number of cases which are more than 96 per cent, the concerned Scrutiny Committees have issued Validity Certificates without following the procedure of obtaining Vigilance Report. Inasmuch as in 6,336 cases, Validity Certificates have been issued without Vigilance Report. It is only in minuscule number of 249 cases, the procedure of obtaining Vigilance Report has been followed. Even the State Government is now concerned about this serious issue, as it is well-known that Validity Certificates will not get exhausted with the following elections, but will be used in perpetuity by the concerned persons as well as their family members. It is possible that most of these cases may not deserve issuance of Validity Certificates after due enquiry. Considering the magnitude of this situation, the above statement has been made by the learned Advocate General, which we place on record, and appreciate the fair stand taken by the State in that behalf.

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This order has been passed after giving fair opportunity to all the counsel appearing for the respective parties. Accordingly, we dispose of both the applications.

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At this stage, the learned Advocate General submits that the operation of the order passed yesterday as well as today, in particular, regarding the observations contained in paragraphs 10 and 16 of our order dated 31^st January, 2012, be stayed, as the State may consider of carrying the matter in appeal. We fail to understand as to how the State is concerned with the said observations. The learned Advocate General submits that it is the constitutional obligation of the State to ensure that the reservation of seats is not unrepresented during the ensuing elections of the concerned local Governments. In the first place, we may invite attention to the provision, such as Section 5B of the Mumbai Municipal Corporation Act, 2000 and similar provision in the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961, which mandates that the nomination papers of candidates interested in contesting against reserved seats should be accompanied by Validity Certificate issued by the Scrutiny Committee in accordance with the provisions of the Act of 2000. The State cannot and ought not to countenance the position that undeserving persons obtaining Validity Certificate in great haste, that too, in short span of one day in most of the cases, as was demonstrated to us during the course of arguments by counsel appearing for the parties.

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Hence, request for stay of the orders passed by us is rejected.

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The counsel appearing for the interveners in this application joins the request of the learned Advocate General and prays that the operation of our order passed yesterday as well as today be stayed. However, we reject this prayer of the counsel for the same reason.

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N.M. JAMDAR, J. A.M. KHANWILKAR, J.

The State of Maharashtra v. Mangesh Nivrutti Kashid

Case brief

What is this about?

What did the court decide?

The State of Maharashtra v. Mangesh Nivrutti Kashid

Case brief

What is this about?

What did the court decide?

What the court decided

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