R.SHAH
(OFFICE STAFF)
06 May 2014
hi
pls refer this judgemnt,
Bombay High Court
Bombay High Court
Devendra Gurunath Khedgikar vs The Scheduled Tribe Certificate on 12 February, 2009
Bench: V.C. Daga, Mridula Bhatkar
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bgp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT
PETITION NO.3739 OF 2008 Devendra Gurunath Khedgikar Age 23 yrs., Occu : Service, R/o..Akshay
Society, Plot No.23, S.No.328/1B, Mhada, Jule Solpaur, Solapur - 413 004 ..Petitioner Vs.
1. The Scheduled Tribe Certificate Scrutiny Committee, Pune Region, Pune.
2. The State of Maharashtra ..Respondents WITH
WRIT PETITION NO.4840 OF 2008
1. Sidram Sayabanna Khedgikar Age 54 yrs., Occu : Service, Residing at 157, Vishal Nagar, Jule Solpaur,
Vijapur Road, Solapur - 413 004
2. Vishal Sidram Khedgikar Age Adult, Occu : Service, Residing at 157, Vishal Nagar, Jule Solpaur, Vijapur
Road, Solapur - 413 004
3. Vinayak Sidram Khedgikar Age Adult, Occu : Education, Residing at 157, Vishal Nagar, Jule Solpaur,
Vijapur Road, Solapur - 413 004. ..Petitioners Vs.
1. The State of Maharashtra Through the Secretary to Government, Tribal Development Department,
Mantralaya, Mumbai - 32.
2. The Deputy Director (R) and Member Secretary, Committee For Scrutiny and Verification of Tribal
Claims, Pune Division 28, Queens Garden, Pune. ..Respondents :2:
Mr.Y.S.Jahagirdar, Senior Advocate with Mr.Sarang Aradhye and Mr.A.B.Avhad for petitioners.
Mr.V.A.Gangal, Special Counsel with Mr.S.S.Deshmukh for respondents. AND
WRIT PETITION NO.4094 OF 2008 Miss.Jagdevi Gurunath Khedgikar Age 21 yrs., Occu : Student,
R/o..Akshay Society, Plot No.23, S.No.328/1B, Mhada, Jule Solpaur, Solapur - 413 004 ..Petitioner Vs.
1. The Scheduled Tribe Certificate Scrutiny Committee, Pune Region, Pune.
2. The State of Maharashtra ..Respondents WITH
WRIT PETITION NO.4095 OF 2008 Vijaykumar Gurunath Khedgikar Age 26 yrs., Occu : Service,
R/o..Akshay Society, Plot No.23, S.No.328/1B, Mhada, Jule Solpaur, Solapur - 413 004 ..Petitioner Vs.
1. The Scheduled Tribe Certificate Scrutiny Committee, Pune Region, Pune.
2. The State of Maharashtra ..Respondents Mr.A.B.Avhad with Ms.Rachita Dhuru for petitioners.
Mr.V.A.Gangal, Special Counsel with Mr.S.S.Deshmukh for respodents. CORAM :- V.C.DAGA &
Devendra Gurunath Khedgikar vs The Scheduled Tribe Certificate on 12 February, 2009
Indian Kanoon - https://indiankanoon.org/doc/140546/ 1MRS.MRIDULA BHATKAR,JJ.
DATE : 12TH FEBRUARY,2009
JUDGMENT ( PER : V.C.DAGA,J.)
1. Perused petition. Rule returnable forthwith.
Learned counsel for respondents waives service. Heard
finally by consent of parties.
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2. The Petition, filed under Article 226 of the
Constitution of India, is directed against the order dated 25th April, 2008 passed by the Schedule Tribe
Certificate Scrutiny Committee, Pune Region, Pune, prima facie; finding that the caste certificate was
obtained by practicing misrepresentation and concealing true and material facts amounting to fraud on the
authority issuing certificate and calling upon the petitioner to submit his explanation within 15 days as to why
the certificate validating his tribe
claim should not be cancelled and confiscated.
3. Parties are different but the issue is
identical, so a single judgment will dispose of all
these writ petitions.
4. For the sake of convenience facts are drawn
from Writ Petition No.3739 of 200.
FACTUAL BACKGROUND :
5. The factual background leading to the petition
is that the Petitioner intended to take admission for the course in Bachelor of Engineering in the year 2002
against the seat reserved for scheduled tribe category
candidates.
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6. The petitioner claiming to be scheduled tribe
belonging to Mahadev Koli tribe, applied for issuance of tribe certificate and submitted it to the respondent
No.1 for its scrutiny. The respondent No.1, the Enquiry Committee validated the tribe claim of the petitioner
on 10th June,2005 and certified that the petitioner is scheduled tribe being "Mahadev
Koli".
Devendra Gurunath Khedgikar vs The Scheduled Tribe Certificate on 12 February, 2009
Indian Kanoon - https://indiankanoon.org/doc/140546/ 27. On the basis of the aforesaid certificate,
petitioner's sister and another brother also applied for certificate of validity on 15th June,2005. Their cases
were referred to the Vigilance Cell. The Vigilance Cell, during the course of enquiry found that one Mr.Vishal
Sidram Khedgikar had obtained tribe certificate by playing fraud on the committee which was the basis of the
order in the case of the petitioner and the alleged fraud was not noticed by them while relying upon that
certificate in the enquiry when the tribe claim of the petitioner was
enquired into.
8. The Scrutiny Committee, prima facie; finding
case of misrepresentation amounting to fraud on the committee passed an order communicating the present
petitioner that the Scrutiny Committee was misled while obtaining tribe claim validity certificate and called
upon the petitioner to show cause as to why his certificate should not be cancelled. This order is :5:
the subject matter of challenge in this petition filed
under Article 226 of the Constitution of India.
SUBMISSIONS :
9. Mr.Jahagirdar learned Senior Counsel appearing
for petitioner submits that respondent No.1 Scrutiny Committee has no power to review its own order being
quasi judicial authority not bestowed with the power of review in the statute. In other words, no such power of
review exists in the statute as such the impugned order and show cause notice seeking to review earlier order
dated 10th June, 2005 is bad in law and
liable to be quashed and set aside.
10. Mr.Jahagirdar, further submits that the tenor
of the impugned order dated 25th April,2008 would unequivocally goes to show that respondent No.1
Scrutiny Committee has already formed its opinion that the validity of certificate has been obtained by
practicing fraud on the Committee by the petitioner, as such no useful purpose would be served by answering
show cause notice. In his submission, show cause notice is in breach of principles of natural justice since the
subject issue has already been prejudged by
the Committee.
11. Per contra, Mr.V.A.Gangal, Special Counsel
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appearing for respondents urged that in the event the validity of certificate is found to be obtained by
fraudulent means and concealment of true facts, then Scrutiny Committee certainly has power and jurisdiction
to set at nought the said certificate. He further submits that said exercise of power cannot be termed as
exercise of power of review. In his submission, fraud vitiates every thing including judicial or quasi judicial
order. He further submits that it is no doubt true that the impugned order calling upon the petitioner to show
cause is not very happily worded, as it gives an indication of prejudging the issue. He, thus, submits that the
said order be treated as a prima facie; opinion of the committee and show cause notice to the petitioner and
Devendra Gurunath Khedgikar vs The Scheduled Tribe Certificate on 12 February, 2009
Indian Kanoon - https://indiankanoon.org/doc/140546/ 3further enquiry be ordered by any other independent Scrutiny Committee other than the Committee issuing
notice. He, thus, submits that the petition can be conveniently worked out on the line of submissions
made by him.
12. In rejoinder, Mr.Jahagirdar urged that this
Court should clarify the extent of the power to be exercised by the Scrutiny Committee and that the matter
should be allowed to be adjudicated by an independent Scrutiny Committee on its own merits
leaving the remedies of the rival parties open.
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CONSIDERATION :
13. Having heard rival contentions, it is beyond
doubt and now well established that the quasi judicial authority cannot review its own order unless the power
of review is expressly conferred by the Statute under which it drives its power. The power of review is not an
inherent power. It must be conferred by law either specifically or by necessary implications. No such
provision, in fact, is brought to our notice, from which it can be gathered that the Scrutiny Committee has
power to review its own order. (See The District Collector of Hyderabad and Ors. Vs. M/s.Ibrahim and Co.
AIR 1970 SC 1275 Para-4 and Dr.Smt.Kuntesh Gupta vs. Management of Hindu Kanya Mahavidyalaya,
Sitapur AIR 1987 SC 2186). In view of the law laid down by the Apex Court, we accept the contention of
Mr.Jahagirdar that the Scrutiny Committee has no power
to review its own order.
14. The question whether the impugned order is
correct or valid in law does not arise for consideration in the present petition so long as the order granting the
certificate is not set aside or
declared void by the competent authority.
15. Having said so, one thing is absolutely clear
in law that the law does not protect either of the parties whose actions are tainted by fraud. Any :8:
person obtaining validity certificate must satisfy that he has strictly complied with the provisions of law and
approached respondent No.1 Scrutiny Committee with clean hands disclosing all his cards without
suppressing material facts.
16. The principle of "finality of litigation"
cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of
dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to
the Court, must come with clean hands. A person, whose case is based on falsehood, has no right to approach
the court. He can be summarily thrown out at any stage of the litigation. A judgment or decree obtained by
playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court
Devendra Gurunath Khedgikar vs The Scheduled Tribe Certificate on 12 February, 2009
Indian Kanoon - https://indiankanoon.org/doc/140546/ 4or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be
challenged in
any court even in collateral proceedings.
. A fraud is an act of deliberate deception with
the design of securing something by taking unfair advantage of another. It is a deception in order to gain by
another's loss. It is a cheating intended to get an advantage. A litigant, who approaches the court, is bound to
produce all the documents executed by him which are relevant to the litigation. If he :9:
withholds a vital document in order to gain advantage on the other side then he would be guilty of playing
fraud on the court as well as on the opposite party. (See S.P.Chengalvaraya Naidu (Dead) By Lrs. Vs.
Jagannath (Dead) By Lrs. and others (1994) 1 SCC
(Para 5 & 6).
6)
17. The fraud is, essentially a question of fact,
the burden of proof is upon him who alleges it. He who alleges fraud, must do so promptly. There is
presumption of legality in favour of 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 or fraud.
18. 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. This power is always retained by the authority or Court passing the
order.
19. On the above canvass, it is clear that
respondent No.1 while deciding the issue as to whether :10:
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 cannot be interfered with because that would amount to
exercising power of review.
20. 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. The
respondent No.1 shall bear in mind the above distinction between the power of review and exercise of the
power to set aside the certificate obtained by
Devendra Gurunath Khedgikar vs The Scheduled Tribe Certificate on 12 February, 2009
Indian Kanoon - https://indiankanoon.org/doc/140546/ 5praying falsehood and/or fraud.
21. Taking over all view of the matter, looking to
the consensus between the parties to the petition, the impugned order dated 25th April, 2008 shall be treated
as a prima facie; formation of opinion by the Scrutiny Committee, a basis for issuing a show cause notice to
the petitioner, which the petitioner shall reply within 30 days from today and that the matter should be heard
and decided by the Committee other than respondent No.1 Scrutiny Committee meant for Pune Region. As
suggested by Mr.V.A.Gangal, Special :11:
Counsel the show cause notice shall be adjudicated upon by the Scrutiny Committee meant for Nashik
Region, Nashik having its office at Nashik without getting influenced by either of the orders, referred
to hereinabove.
22. Needless to mention that after receipt of the
reply to the show cause notice, the Committee shall adjudicate upon the show cause notice by a reasoned
order following principles of natural justice within eight weeks thereafter. All rival contentions on
merits are kept open.
23. Rule in all these petitions is made absolute
in terms of this order. No order as to costs.
(MRIDULA BHATKAR,J.) (V.C.DAGA,J.)
Devendra Gurunath Khedgikar vs The Scheduled Tribe Certificate on 12 February, 2009
