AYAAUBKHAN NOORKHAN PATHAN Vs STATE OF MAHARASHTRA .
Bench: B.S. CHAUHAN,JAGDISH SINGH KHEHAR
Case number: C.A. No.-007728-007728 / 2012
Diary number: 32122 / 2009
Advocates: Vs
ANIRUDDHA P. MAYEE
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REPORTABLE
IN THE SUPREMECOURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7728 OF 2012
Ayaaubkhan Noorkhan Pathan … Appellant
Versus
The State of Maharashtra & Ors. … Respondents
J U D G M E N T
DR. B.S. CHAUHAN, J.:
1. This appeal has been preferred against the impugned judgment
and order dated 22.9.2009, passed by the High Court of Bombay
(Aurangabad Bench) in Writ Petition No.3129 of 2009, filed by
respondent no.5, challenging the caste certificate of the appellant.
2. The facts and circumstances giving rise to this appeal are as
follows:
A. The competent authority in the present case, issued a caste
certificate dated 19.10.1989, after following due procedure, in favour
of the appellant stating that he does in fact, belong to Bhil Tadvi
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(Scheduled Tribes). On the basis of the said certificate, the appellant
was appointed as Senior Clerk in the Municipal Corporation of
Aurangabad (hereinafter referred to as the, ‘Corporation’) on
6.2.1990, against the vacancy reserved for persons under the
Scheduled Tribes category. The Corporation referred the caste
certificate of the appellant for the purpose of verification, to the Caste
Certificate Scrutiny Committee (hereinafter referred to as the,
“Scrutiny Committee”). The Vigilance Cell attached to the Scrutiny
Committee, upon conducting vigilance enquiry, vide order dated
29.12.1998, found that the appellant did, in fact, belong to Bhil Tadvi
(Scheduled Tribes) and thus, the said certificate was verified. The
Scrutiny Committee, on the basis of the said report and also other
documents filed by the appellant in support of his case, issued a
validity certificate, dated 23.5.2000 to the appellant belonging to Bhil
Tadvi (Scheduled Tribes). After the lapse of a period of 9 years,
respondent no.5 filed complaint dated 9.1.2009, through an advocate
before the Scrutiny Committee, for the purpose of recalling the said
validity certificate, on the ground that the appellant had obtained
employment by way of misrepresentation, and that he does not
actually belong to the Scheduled Tribes category. In fact, the
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appellant professed the religion of Islam and therefore, could not be a
Scheduled Tribe.
B. The Scrutiny Committee rejected the said application vide order
dated 13.3.2009, observing that it had no power to recall or to review
a caste validity certificate, as there is no statutory provision that
provides for the same.
C. Aggrieved, respondent no.5 challenged the order dated
13.3.2009, by filing Writ Petition No.3129 of 2009 before the High
Court of Bombay (Aurangabad Bench), praying for quashing of the
order dated 13.3.2009, and directing the Scrutiny Committee to hold
de novo enquiry, with respect to the appellant’s caste certificate. The
appellant contested the said petition, denying all the allegations made
by respondent no.5. Vide its impugned judgment and order dated
22.9.2009, the High Court disposed of the said writ petition without
going into the merits of the case. However, while doing so, the High
Court set aside the order dated 13.3.2009, and remitted the matter to
the Scrutiny Committee, directing it to hear all the parties concerned
in accordance with law, as regards the allegations made by respondent
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no.5 in the complaint. It further directed the Committee to decide the
said matter within a period of 6 months.
Hence, this present appeal.
3. Before proceeding further, it may also be pertinent to refer to
certain subsequent developments.
During the pendency of this appeal, this Court vide order dated
20.11.2009, granted a stay with respect to the operation of the
aforementioned impugned judgment. Vide order dated 6.1.2012, the
said interim order was modified, to the extent that the Scrutiny
Committee would re-examine the case on merit, without being
influenced by earlier proceedings before it, and by giving adequate
opportunity to the parties to lead evidence in support of their
respective cases after which, the Scrutiny Committee would submit its
report to this Court within a period of 3 months.
4. Shri A.V. Savant, learned Senior counsel, appearing for the
appellant has submitted that respondent no.5 does not belong to any
reserved category, infact, he belongs to the General category, and
hence, he has no right or locus standi, to challenge the appellant’s
certificate. Thus, the High Court committed an error by directing the
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Scrutiny Committee to entertain the complaint filed by respondent
no.5. It has further been submitted that, despite the directions given
by this Court, the Scrutiny Committee failed to ensure compliance
with the principles of natural justice, as the appellant was denied the
opportunity to cross-examine witnesses, and no order was passed with
respect to his application for recalling such witnesses for the purpose
of cross-examination, which has no doubt, resulted in the grave
miscarriage of justice. The affidavit filed by the Scrutiny Committee
did not clarify, or make any specific statement with respect to whether
or not the appellant was permitted to cross-examine witnesses. It
further, did not clarify whether the application dated 28.2.2012, filed
by the appellant to re-call witnesses for the purpose of cross-
examination, has been disposed of. Moreover, the procedure adopted
by the Scrutiny Committee is in contravention of the statutory
requirements, as have been specified under the Maharashtra
Scheduled Castes, Scheduled Tribes, De-Notified Tribes, (Vimukta
Jatis), Nomadic Tribes, Other Backward Category (Regulation of
Issuance and Verification of) Caste Certificate Act, 2000
(Maharashtra Act No. XXIII of 2001 (hereinafter referred to as the,
`Act 2001’), and the Rules, 2003 which are framed under the Act
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2001 and therefore, all proceedings hereby stand vitiated. The
appellant placed reliance upon several documents which are all very
old and therefore, their authenticity should not have been doubted.
The earlier report submitted by the Vigilance Cell dated 29.12.1998,
clearly stated that the traits and characteristics of the appellant’s
family, matched with those of Bhil Tadvi (Scheduled Tribes). The
action of respondent no.5 is therefore, completely malifide and is
intended, solely to harass the appellant, and the High Court committed
grave error in not deciding the issue related to the locus standi of
respondent no.5 in relation to him filing a complaint in the first place,
as the said issue was specifically raised by the appellant. Therefore,
the present appeal deserves to be allowed.
5. Per contra, Shri Shankar Chillarge, learned counsel appearing
for the Scrutiny Committee, has made elaborate submissions, in
support of the impugned judgment and subsequent proceedings. Mr.
Udaya Kumar Sagar and Ms. Bina Madhavan, learned counsel
appearing for respondent no.5, have also supported the impugned
judgment of the High Court and has further submitted that even
though respondent no.5, does not belong to the Scheduled Tribes
category, he most certainly could file a complaint against the
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appellant, at such a belated stage, as the appellant had obtained
employment in 1989, by way of mis-representation and fraud.
Respondent no.5, being a public spirited person has espoused the
cause of the real persons who have been deprived of their right to be
considered for the said post occupied by the appellant. Respondent
No. 5 has also filed affidavits of relevant persons before the Scrutiny
Committee, to prove his allegations. Thus, the present appeal lacks
merit and is liable to be dismissed.
6. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
Person aggrieved :
7. It is a settled legal proposition that a stranger cannot be
permitted to meddle in any proceeding, unless he satisfies the
Authority/Court, that he falls within the category of aggrieved
persons.
Only a person who has suffered, or suffers from legal
injury can challenge the act/action/order etc. in a court of law. A writ
petition under Article 226 of the Constitution is maintainable either
for the purpose of enforcing a statutory or legal right, or when there is
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a complaint by the appellant that there has been a breach of statutory
duty on the part of the Authorities. Therefore, there must be a
judicially enforceable right available for enforcement, on the basis of
which writ jurisdiction is resorted to. The Court can of course, enforce
the performance of a statutory duty by a public body, using its writ
jurisdiction at the behest of a person, provided that such person
satisfies the Court that he has a legal right to insist on such
performance. The existence of such right is a condition precedent for
invoking the writ jurisdiction of the courts. It is implicit in the
exercise of such extraordinary jurisdiction that, the relief prayed for
must be one to enforce a legal right. Infact, the existence of such
right, is the foundation of the exercise of the said jurisdiction by
the Court. The legal right that can be enforced must ordinarily be
the right of the appellant himself, who complains of infraction of such
right and approaches the Court for relief as regards the same. (Vide :
State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12; Saghir
Ahmad & Anr. v. State of U.P., AIR 1954 SC 728; Calcutta Gas
Company (Proprietary) Ltd. v. State of West Bengal & Ors., AIR
1962 SC 1044; Rajendra Singh v. State of Madhya Pradesh, AIR
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1996 SC 2736; and Tamilnad Mercantile Bank Shareholders Welfare
Association (2) v. S.C. Sekar & Ors., (2009) 2 SCC 784).
8. A “legal right”, means an entitlement arising out of legal
rules. Thus, it may be defined as an advantage, or a benefit conferred
upon a person by the rule of law. The expression, “person aggrieved”
does not include a person who suffers from a psychological or an
imaginary injury; a person aggrieved must therefore, necessarily be
one, whose right or interest has been adversely affected or
jeopardised. (Vide: Shanti Kumar R. Chanji v. Home Insurance
Co. of New York, AIR 1974 SC 1719; and State of Rajasthan &
Ors. v. Union of India & Ors., AIR 1977 SC 1361).
9. In Anand Sharadchandra Oka v. University of
Mumbai, AIR 2008 SC 1289, a similar view was taken by this Court,
observing that, if a person claiming relief is not eligible as per
requirement, then he cannot be said to be a person aggrieved
regarding the election or the selection of other persons.
10. In A. Subhash Babu v. State of A. P. , AIR 2011 SC 3031, this
Court held:
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“The expression ‘aggrieved person’ denotes an elastic and an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of complainant's interest and the nature and the extent of the prejudice or injury suffered by the complainant.”
11. This Court, even as regards the filing of a habeas corpus
petition, has explained that the expression, ‘next friend’ means a
person who is not a total stranger. Such a petition cannot be filed by
one who is a complete stranger to the person who is in alleged illegal
custody. (Vide: Charanjit Lal Chowdhury v. The Union of India
& Ors., AIR 1951 SC 41; Sunil Batra (II) v. Delhi Administration,
AIR 1980 SC 1579; Mrs. Neelima Priyadarshini v. State of Bihar,
AIR 1987 SC 2021; Simranjit Singh Mann v. Union of India, AIR
1993 SC 280; Karamjeet Singh v. Union of India, AIR 1993 SC
284; and Kishore Samrite v. State of U.P. & Ors., JT (2012) 10 SC
393).
12. This Court has consistently cautioned the courts against
entertaining public interest litigation filed by unscrupulous persons, as
such meddlers do not hesitate to abuse the process of the court. The
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right of effective access to justice, which has emerged with the new
social rights regime, must be used to serve basic human rights, which
purport to guarantee legal rights and, therefore, a workable remedy
within the framework of the judicial system must be provided.
Whenever any public interest is invoked, the court must examine the
case to ensure that there is in fact, genuine public interest involved.
The court must maintain strict vigilance to ensure that there is no
abuse of the process of court and that, “ordinarily meddlesome
bystanders are not granted a Visa”. Many societal pollutants create
new problems of non-redressed grievances, and the court should make
an earnest endeavour to take up those cases, where the subjective
purpose of the lis justifies the need for it. (Vide: P.S.R.
Sadhanantham v. Arunachalam & Anr., AIR 1980 SC 856; Dalip
Singh v. State of U.P. & Ors., (2010) 2 SCC 114; State of
Uttaranchal v. Balwant Singh Chaufal & Ors., (2010) 3 SCC 402;
and Amar Singh v. Union of India & Ors., (2011) 7 SCC 69)
13. Even as regards the filing of a Public Interest Litigation,
this Court has consistently held that such a course of action is not
permissible so far as service matters are concerned. (Vide: Dr.
Duryodhan Sahu & Ors. v. Jitendra Kumar Mishra & Ors., AIR
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1999 SC 114; Dattaraj Natthuji Thaware v. State of Maharashtra,
AIR 2005 SC 540; and Neetu v. State of Punjab & Ors., AIR 2007 SC
758)
14. In Ghulam Qadir v. Special Tribunal & Ors., (2002) 1
SCC 33, this Court considered a similar issue and observed as under:–
“There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid article. The orthodox rule of interpretation regarding the locus standi of a person to reach the Court has undergone a sea change with the development of constitutional law in our country and the constitutional Courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hyper-technical grounds.--------In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi.” (Emphasis added)
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15. In view of the above, the law on the said point can be summarised
to the effect that a person who raises a grievance, must show how he has
suffered legal injury. Generally, a stranger having no right whatsoever to
any post or property, cannot be permitted to intervene in the affairs of
others.
Locus standi of respondent no.5 :
16. As respondent no.5 does not belong to the Scheduled Tribes
category, the garb adopted by him, of serving the cause of Scheduled
Tribes candidates who might have been deprived of their legitimate right
to be considered for the post, must be considered by this Court in order
to determine whether respondent no. 5, is in fact, in a legitimate position
to lay any claim before any forum, whatsoever.
17. This Court in Ravi Yashwant Bhoir v. District Collector,
Raigad & Ors., (2012) 4 SCC 407, held as under:
“Shri Chintaman Raghunath Gharat, ex- President was the complainant, thus, at the most, he could lead evidence as a witness. He could not claim the status of an adversarial litigant. The complainant cannot be the party to the lis. A legal right is an averment of entitlement arising out of law. In fact, it is a benefit conferred upon a person by the rule of law. Thus, a person who suffers from legal
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injury can only challenge the act or omission. There may be some harm or loss that may not be wrongful in the eye of the law because it may not result in injury to a legal right or legally protected interest of the complainant but juridically harm of this description is called damnum sine injuria. The complainant has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest. In case he has no legal peg for a justiciable claim to hang on, he cannot be heard as a party in a lis. A fanciful or sentimental grievance may not be sufficient to confer a locus standi to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro ratione voluntas reasons i.e. a claim devoid of reasons. Under the garb of being a necessary party, a person cannot be permitted to make a case as that of general public interest. A person having a remote interest cannot be permitted to become a party in the lis, as the person who wants to become a party in a case, has to establish that he has a proprietary right which has been or is threatened to be violated, for the reason that a legal injury creates a remedial right in the injured person. A person cannot be heard as a party unless he answers the description of aggrieved party.”
18. A similar view has been re-iterated by this Court in K.
Manjusree v. State of Andhra Pradesh & Anr., (2008) 3 SCC 512,
wherein it was held that, the applicant before the High Court could not
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challenge the appointment of a person as she was in no way aggrieved,
for she herself could not have been selected by adopting either method.
Morever, the appointment cannot be challenged at a belated stage and,
hence, the petition should have been rejected by the High Court, on the
grounds of delay and non-maintainability, alone.
19. In Balbir Kaur & Anr. v. Uttar Pradesh Secondary Education
Services Selection Board, Allahabad & Ors., (2008) 12 SCC 1, it has
been held that a violation of the equality clauses, enshrined in Articles
14 and 16 of the Constitution, or discrimination in any form, can be
alleged, provided that, the writ petitioner demonstrates a certain
appreciable disadvantage qua other similarly situated persons.
20. While dealing with the similar issue, this Court in Raju
Ramsingh Vasave v. Mahesh Deorao Bhiavapurkar & Ors., (2008)
9 SCC 54 held:
“We must now deal with the question of locus standi. A special leave petition ordinarily would not have been entertained at the instance of the appellant. Validity of appointment or otherwise on the basis of a caste certificate granted by a committee is ordinarily a matter between the employer and the employee. This Court, however, when a question is raised, can take cognizance of a matter of such grave importance suo motu. It may not treat the
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special leave petition as a public interest litigation, but, as a public law litigation. It is, in a proceeding of that nature, permissible for the court to make a detailed enquiry with regard to the broader aspects of the matter although it was initiated at the instance of a person having a private interest. A deeper scrutiny can be made so as to enable the court to find out as to whether a party to a lis is guilty of commission of fraud on the Constitution. If such an enquiry subserves the greater public interest and has a far-reaching effect on the society, in our opinion, this Court will not shirk its responsibilities from doing so.”
(See also: Manohar Joshi v. State of Maharashtra & Ors., (2012) 3
SCC 619)
21. In Vinoy Kumar v. State of U.P., AIR 2001 SC 1739, this Court
held:
“Even in cases filed in public interest, the court can exercise the writ jurisdiction at the instance of a third party only when it is shown that the legal wrong or legal injury or illegal burden is threatened and such person or determined class of person is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief.”
22. Thus, from the above it is evident that under ordinary
circumstances, a third person, having no concern with the case at hand,
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cannot claim to have any locus-standi to raise any grievance
whatsoever. However, in the exceptional circumstances as referred to
above, if the actual persons aggrieved, because of ignorance, illiteracy,
inarticulation or poverty, are unable to approach the court, and a person,
who has no personal agenda, or object, in relation to which, he can grind
his own axe, approaches the court, then the court may examine the issue
and in exceptional circumstances, even if his bonafides are doubted, but
the issue raised by him, in the opinion of the court, requires
consideration, the court may proceed suo-motu, in such respect.
Cross-examination is one part of the principles of natural justice:
23. A Constitution Bench of this Court in State of M.P. v.
Chintaman Sadashiva Vaishampayan, AIR 1961 SC 1623, held that
the rules of natural justice, require that a party must be given the
opportunity to adduce all relevant evidence upon which he relies, and
further that, the evidence of the opposite party should be taken in his
presence, and that he should be given the opportunity of cross-
examining the witnesses examined by that party. Not providing the said
opportunity to cross-examine witnesses, would violate the principles of
natural justice. (See also: Union of India v.T.R. Varma, AIR 1957 SC
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882; Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719; M/s.
Kesoram Cotton Mills Ltd. v. Gangadhar & Ors., AIR 1964 SC 708;
New India Assurance Company Ltd . v . Nusli Neville Wadia and
Anr., AIR 2008 SC 876; Rachpal Singh & Ors. v. Gurmit Singh &
Ors., AIR 2009 SC 2448; Biecco Lawrie & Anr. v. State of West
Bengal & Anr., AIR 2010 SC 142; and State of Uttar Pradesh v.
Saroj Kumar Sinha, AIR 2010 SC 3131).
24. In Lakshman Exports Ltd. v. Collector of Central Excise,
(2005) 10 SCC 634, this Court, while dealing with a case under the
Central Excise Act, 1944, considered a similar issue i.e. permission with
respect to the cross-examination of a witness. In the said case, the
assessee had specifically asked to be allowed to cross-examine the
representatives of the firms concern, to establish that the goods in
question had been accounted for in their books of accounts, and that
excise duty had been paid. The Court held that such a request could not
be turned down, as the denial of the right to cross-examine, would
amount to a denial of the right to be heard i.e. audi alteram partem.
25. In New India Assurance Company Ltd., v. Nusli Neville
Wadia & Anr., AIR 2008 SC 876; this Court considered a case under
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the Public Premises ( Eviction of Unauthorised Occupants) Act, 1971
and held as follows :-
“If some facts are to be proved by the landlord, indisputably the occupant should get an opportunity to cross-examine. The witness who intends to prove the said fact has the right to cross-examine the witness. This may not be provided by under the statute, but it being a part of the principle of natural justice should be held to be indefeasible right.” (Emphasis added)
In view of the above, we are of the considered opinion that the
right of cross-examination is an integral part of the principles of natural
justice.
26. In K.L. Tripathi v. State Bank of India & Ors., AIR 1984 SC
273, this Court held that, in order to sustain a complaint of the
violation of the principles of natural justice on the ground of absence
of opportunity of cross-examination, it must be established that some
prejudice has been caused to the appellant by the procedure followed.
A party, who does not want to controvert the veracity of the evidence
on record, or of the testimony gathered behind his back, cannot expect
to succeed in any subsequent grievance raised by him, stating that no
opportunity of cross-examination was provided to him, specially when
the same was not requested, and there was no dispute regarding the
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veracity of the statement. (See also: Union of India v. P.K. Roy, AIR
1968 SC 850; and Channabasappa Basappa Happali v. State of
Mysore, AIR 1972 SC 32).
27. In Transmission Corpn. of A.P. Ltd. v. Sri Rama Krishna
Rice Mill, AIR 2006 SC 1445, this Court held:
“In order to establish that the cross- examination is necessary, the consumer has to make out a case for the same. Merely stating that the statement of an officer is being utilised for the purpose of adjudication would not be sufficient in all cases. If an application is made requesting for grant of an opportunity to cross- examine any official, the same has to be considered by the adjudicating authority who shall have to either grant the request or pass a reasoned order if he chooses to reject the application. In that event an adjudication being concluded, it shall be certainly open to the consumer to establish before the Appellate Authority as to how he has been prejudiced by the refusal to grant an opportunity to cross- examine any official”.
28. The meaning of providing a reasonable opportunity to show
cause against an action proposed to be taken by the government, is
that the government servant is afforded a reasonable opportunity to
defend himself against the charges, on the basis of which an inquiry is
held. The government servant should be given an opportunity to deny
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his guilt and establish his innocence. He can do so only when he is
told what the charges against him are. He can therefore, do so by
cross-examining the witnesses produced against him. The object of
supplying statements is that, the government servant will be able to
refer to the previous statements of the witnesses proposed to be
examined against him. Unless the said statements are provided to the
government servant, he will not be able to conduct an effective and
useful cross-examination.
29. In Rajiv Arora v. Union of India & Ors., AIR 2009 SC 1100,
this Court held:
“Effective cross-examination could have been done as regards the correctness or otherwise of the report, if the contents of them were proved. The principles analogous to the provisions of the Indian Evidence Act as also the principles of natural justice demand that the maker of the report should be examined, save and except in cases where the facts are admitted or the witnesses are not available for cross-examination or similar situation. The High Court in its impugned judgment proceeded to consider the issue on a technical plea, namely, no prejudice has been caused to the appellant by such non-examination. If the basic principles of law have not been complied with or there has been a gross violation of the principles of natural justice, the High Court should have exercised its jurisdiction of judicial review.”
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30. The aforesaid discussion makes it evident that, not only should
the opportunity of cross-examination be made available, but it should be
one of effective cross-examination, so as to meet the requirement of the
principles of natural justice. In the absence of such an opportunity, it
cannot be held that the matter has been decided in accordance with law,
as cross-examination is an integral part and parcel of the principles of
natural justice.
31. Affidavit - whether evidence within the meaning of Section 3
of the Evidence Act, 1872:
It is a settled legal proposition that an affidavit is not evidence
within the meaning of Section 3 of the Indian Evidence Act, 1872
(hereinafter referred to as the ‘Evidence Act’).
Affidavits are therefore, not included within the purview of the
definition of "evidence" as has been given in Section 3 of the
Evidence Act, and the same can be used as "evidence" only if, for
sufficient reasons, the Court passes an order under Order XIX of the
Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’).
Thus, the filing of an affidavit of one’s own statement, in one’s own
favour, cannot be regarded as sufficient evidence for any Court or
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Tribunal, on the basis of which it can come to a conclusion as regards
a particular fact-situation. (Vide: Sudha Devi v. M.P. Narayanan &
Ors., AIR 1988 SC 1381; and Range Forest Officer v. S.T.
Hadimani, AIR 2002 SC 1147).
32. While examining a case under the provisions of the Industrial
Disputes Act, 1947, this Court, in M/s Bareilly Electricity Supply Co.
Ltd. v. The Workmen & Ors., AIR 1972 SC 330, considered the
application of Order XIX, Rules 1 and 2 CPC, and observed as under:-
"But the application of principles of natural justice does not imply that what is not evidence, can be acted upon. On the other hand, what it means is that no material can be relied upon to establish a contested fact which are not spoken to by the persons who are competent to speak about them and are subject to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal, the question that naturally arises is: is it a genuine document, what are its contents and are the statements contained therein true...... If a letter or other document is produced to establish some fact which is relevant to the inquiry, the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accordance with the principles of natural justice as also according to the procedure under O. 19 of the Code and the Evidence Act, both of which incorporate the general principles."
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33. In Needle Industries (India) Ltd. & Ors. v. N.I.N.I.H. Ltd. &
Ors., AIR 1981 SC 1298, this Court considered a case under the Indian
Companies Act, and observed that, “it is generally unsatisfactory to
record a finding involving grave consequences with respect to a person,
on the basis of affidavits and documents alone, without asking that
person to submit to cross-examination”. However, the conduct of the
parties may be an important factor, with regard to determining whether
they showed their willingness to get the said issue determined on the
basis of affidavits, correspondence and other documents, on the basis of
which proper and necessary inferences can safely and legitimately be
drawn.
34. In Ramesh Kumar v. Kesho Ram, AIR 1992 SC 700, this
Court considered the scope of application of the provisions of O. XIX,
Rr. 1 and 2 CPC in a Rent Control matter, observing as under:-
"The Court may also treat any affidavit filed in support of the pleadings itself as one under the said provisions and call upon the opposite side to traverse it. The Court, if it finds that having regard to the nature of the allegations, it is necessary to record oral evidence tested by oral cross-examination, may have recourse to that procedure."
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35. In Standard Chartered Bank v. Andhra Bank Financial
Services Ltd. & Ors., (2006) 6 SCC 94, this Court while dealing with a
case under the provisions of Companies Act, 1956, while considering
complex issues regarding the Markets, Exchanges and Securities, and
the procedure to be followed by special Tribunals, held as under :
“While it may be true that the Special Court has been given a certain amount of latitude in the matter of procedure, it surely cannot fly away from established legal principles while deciding the cases before it. As to what inference arises from a document, is always a matter of evidence unless the document is self-explanatory…….In the absence of any such explanation, it was not open to the Special Court to come up with its own explanations and decide the fate of the suit on the basis of its inference based on such assumed explanations.”
36. Therefore, affidavits in the light of the aforesaid discussion are
not considered to be evidence, within the meaning of Section 3 of the
Evidence Act. However, in a case where the deponent is available for
cross-examination, and opportunity is given to the other side to cross-
examine him, the same can be relied upon. Such view, stands fully
affirmed particularly, in view of the amended provisions of Order XVIII,
Rules 4 & 5 CPC. In certain other circumstances, in order to avoid
technicalities of procedure, the legislature, or a court/tribunal, can even
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lay down a procedure to meet the requirement of compliance with the
principles of natural justice, and thus, the case will be examined in the
light of those statutory rules etc. as framed by the aforementioned
authorities.
37. The instant case is required to be examined in the light of the
aforesaid legal propositions. This Court examined this matter in detail in
Km. Madhuri Patil v. Addl. Commissioner, Tribal Development,
(1994) 6 SCC 241, and upon realising that spurious tribes and persons
not belonging to the Scheduled Tribes category, were snatching away
the reservation benefits that have been made available to genuine tribals,
and that they were being wrongly deprived of their rights on the basis of
false caste certificates, and that further, at a subsequent stage such
unscrupulous persons, after getting admission/employment, were
adopting dilatory tactics, the court issued a large number of directions to
investigate such cases of false claims. The directions inter-alia included:
(1) 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.
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(2) 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 concerned
educational institution in which the candidate is studying or
employed........... 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.
(3) In case the report is in favour of the candidate and found to be
genuine and true, no further action need be taken except where the
report or the particulars given are procured or found to be false or
fraudulently obtained and in the latter event the same procedure as is
envisaged in para 6 be followed.
(4) The inquiry should be completed as expeditiously as possible
preferably by day-to-day proceedings within such period not
exceeding two months. If after inquiry, the caste Scrutiny Committee
finds the claim to be false or spurious, they should pass an order
cancelling the certificate issued and confiscate the same. It should
communicate within one month from the date of the conclusion of the
proceedings the result of enquiry to the parent/guardian and the
applicant.
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(5) In case, the certificate obtained or social status claimed is found
to be false, the parent/guardian/the candidate should be prosecuted for
making false claim. If the prosecution ends in a conviction and
sentence of the accused, it could be regarded as an offence involving
moral turpitude, disqualification for elective posts or offices under the
State or the Union or elections to any local body, legislature or the
Parliament.
(6) As soon as the finding is recorded by the Scrutiny Committee
holding that the certificate obtained was false, on its cancellation and
confiscation simultaneously, it should be communicated to the
concerned educational institution or the appointing authority by
registered post with acknowledgement due with a request to cancel the
admission or the appointment. The principal etc. of the educational
institution responsible for making the admission or the appointing
authority, should cancel the admission/appointment without any
further notice to the candidate and debar the candidate for further
study or continue in office in a post.
The court further issued directions to all States to give effect to
the aforesaid directions, in order to ensure that the constitutional
objectives that were intended for the benefit and the advancement of
persons genuinely belonging to the Scheduled Castes and Scheduled
Tribes category, are not defeated by such unscrupulous persons.
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The Act 2000 and the Rules 2003 are based on the directions
issued by this Court in Km. Madhuri Patil (supra) as the same have
been incorporated therein.
38. The correctness of the said judgment in Km. Madhuri Patil
(supra), was doubted, and the matter was referred to and decided by a
larger bench of this Court in Daya Ram v. Sudhir Batham & Ors.,
(2012) 1 SCC 333, wherein, while deciding the various issues involved,
including the competence of this Court to legislate in this regard, it was
held as under:
“The scrutiny committee is not an adjudicating authority like a Court or Tribunal, but an administrative body which verifies the facts, investigates into a specific claim (of caste status) and ascertains whether the caste/tribal status claimed is correct or not…...
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
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provides for verification only to avoid false and bogus claims…..”
(Emphasis added)
39. Thus, it is evident from the aforesaid judgment in Daya Ram
(supra), that the purpose of issuing directions in Km. Madhuri Patil
(supra), was only to examine those cases, where caste certificates had
been issued without conducting any prior enquiry, on the basis of self-
affidavits regarding one’s caste alone, and that the said directions
were not at all applicable, where a legislation governing or regulating
the grant of caste certificates exists, and where caste certificates are
issued after due and proper enquiry. Caste certificates issued by
holding proper enquiry, in accordance with duly prescribed procedure,
would not require any further verification by the scrutiny committee.
40. In pursuance of the said order issued by the High Court, the
Scrutiny Committee examined the case of the parties. However, with
respect to this, the appellant raised the grievance that, the evidence of
a large number of persons had been recorded by the Scrutiny
Committee behind his back, and that he had not been given an
opportunity to cross-examine the witnesses that were examined by the
other side and therefore, he was unable to lead a proper defence. The
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appellant filed an application dated 28.2.2012, for the purpose of
recalling 3 witnesses, namely, Sikandar Gulab Tadvi, Bhagchand
Ganpatsing Pardeshi and Bahadursing Mukhtarsing Patil, so that he
may cross-examine them. The appellant also filed another application
on the same day, seeking a period of 30 days time, to file his reply as
is required within the provisions of Rule 12(8) of the Rules 2003, and
also another application for the purpose of calling of records from the
office of the Tehsildar, to ascertain the genuineness of the certificate
impugned. None of the said applications have been decided till now.
41. In view thereof, this Court vide order dated 11.5.2012,
directed the learned counsel appearing for the Scrutiny Committee, to
produce the original record of the matter and to file an affidavit with
respect to whether the appellant had been given an opportunity to
cross-examine the witnesses that were examined by the other side, and
also with respect to whether the other applications filed by the
appellant, were decided upon.
42. In pursuance of the said order, the original record was
produced. However, the learned counsel remained unable to point out
from the original record, any proceeding or event, by way of which, it
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could be ascertained that the appellant was in fact, given an
opportunity to cross-examine the witnesses, or to show that all the
said witnesses were examined in the presence of the appellant.
Further, he was also unable to satisfy this Court, with respect to the
circumstances under which, the applications filed by the appellant on
28.2.2012, including the one to recall witnesses and permit him to
cross-examine them, have been kept pending, without passing any
order in relation to either one of them.
43. In order to determine the genuineness and sincerity of
respondent no. 5, this Court on 29.10.2012 adjourned the matter until
5.11.2012, directing respondent no. 5 to act as under:
“Meanwhile, respondent No. 5 may file the affidavit as on what date he appeared before the Scrutiny Committee and what was the material produced by him and as to whether on that petitioner had a notice of his appearance before the Scrutiny Committee and whether the Committee has allowed the petitioner to cross examine the respondent No. 5.”
In response to the said order, respondent no. 5 filed an affidavit
in Court on 5.11.2012. The contents of the affidavit reveal that
respondent no.5 claims that his occupation is that of a social worker.
The allegations against the appellant stating that he obtained the said
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caste certificate fraudulently, have been repeated. Respondent no. 5
has not mentioned in the affidavit, the date on which he appeared
before the Scrutiny Committee, nor has he responded to the query
raised with respect to whether he had produced any evidence to
support his allegations, or whether the appellant was allowed to cross-
examine any of the witnesses, or if in fact, he simply examined all of
them himself.
The relevant part of the abovementioned affidavit, has been re-
produced hereunder:
“That it is submitted that on 28.2.2012 the Respondent No. 5 submitted copy of Affidavit of Mr. Supdu Musa Tadvi and by way of an application prayed for personal presence of Mr. Supdu Musa Tadvi. Scrutiny Committee finding contradictions in the two statement of Mr. Supdu Musa Tadvi, issued notice to him requesting his personal presence on 17.3.2012. However, Mr. Supdu Musa Tadri never appeared before the Committee.”
44. The affidavit of Mr. Supdu Musa Tadri referred to hereinabove
cannot be relied upon, as the said deponent never appeared before the
Scrutiny Committee. The conduct of respondent no. 5, who has been
pursuing the said matter from one court to another, is found to be
reprehensible, and without any sense of responsibility whatsoever, as
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he could not submit any satisfactory response to the directions issued
by this Court on 29.10.2012. In view of the above, we are highly
doubtful as regards his bonafides. He has therefore, disentitled
himself from appearing either before this Court, or any other court, or
Committee, so far as the instant case is concerned.
45. The Scrutiny Committee in ordinary circumstances examined
the matter and after investigation through its Vigilance Cell and
considering all the documentary evidence on record and after being
satisfied, granted the caste verification certificate in 2000. Section
114 Ill.(e) of the Evidence Act provided for the court to pronounce
that the decision taken by the Scrutiny Committee has been done in
regular course and the caste certificate has been issued after due
verification. A very strong material/evidence is required to rebut the
presumption. In fact, respondent no. 5 has no legal peg for a
justifiable claim to hang upon. Once the respondent no. 5, for the
reasons best known to him, had challenged caste certificate under the
garb of acting as a public spirited person espousing the cause of
legitimate persons who had been deprived of their right of being
considered for appointment, the respondent no. 5 must have acted
seriously and brought the material before the Scrutiny Committee to
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show that the earlier decision was improbable or factually incorrect.
Such a view stands fortified by a catena of decisions rendered by this
Court where it has been held that presumption is based on legal
maxim “Omnia praesumuntur rite esse acta” i.e. all acts are
presumed to have rightly and regularly been done.
Such a presumption can be rebutted by adducing appropriate
evidence. Mere statement made in the written statement/petition is not
enough to rebut the presumption. The onus of rebuttal lies upon the
person who alleges that the act had not been regularly performed or
the procedure required under the law had not been followed. (Vide:
Gopal Narain v. State of U.P. & Anr., AIR 1964 SC 370; Narayan
Govind Gavate & Ors. v. State of Maharashtra & Ors., AIR 1977
SC 183; Karewwa & Ors.v. Hussensab Khansaheb Wajantri &
Ors., AIR 2002 SC 504; Engineering Kamgar Union v. Electro
Steels Castings Ltd. & Anr., (2004) 6 SCC 36; Mohd.
Shahabuddin v. State of Bihar, (2010) 4 SCC 653; Punjab State
Electricity Board & Anr. v. Ashwani Kumar, (2010) 7 SCC 569;
M. Chandra v. M. Thangmuthu & Anr., AIR 2011 SC 146; and R.
Ramachandran Nair v. Deputy Superintendent, Vigilance Police,
(2011) 4 SCC 395)
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46. In view of the above discussion and considering the seriousness
of the allegations, as the Scrutiny Committee has already conducted
an inquiry in relation to this matter, and the only grievance of the
appellant is that there has been non-compliance with the principles of
natural justice, and the fact that the applications filed by him, were not
decided upon, we direct that before the submission of any report by
the Scrutiny Committee, his application for calling the witnesses for
cross-examination must be disposed of, and appellant must be given a
fair opportunity to cross-examine the witnesses, who have been
examined before the Committee. We further direct the Scrutiny
Committee to pass appropriate orders in accordance with the law
thereafter. In case, the Scrutiny Committee has already taken a
decision, the same being violative of the principles of natural justice,
would stand vitiated.
47. The appeal is disposed of accordingly, however, considering
the fact that respondent no. 5 has not been pursuing the matter in a
bonafide manner, and has not raised any public interest, rather he
abused the process of the court only to harass the appellant, the
respondent no. 5 is restrained from intervening in the matter any
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further, and also from remaining a party to it, and he is also liable to
pay costs to the tune of Rs. one lakh, within a period of 4 weeks to
the District Collector, Aurangabad. The District Collector,
Aurangabad, would deposit the said amount in the account of the
Supreme Court Legal Services Committee. In the event that, the cost
imposed is not deposited by respondent no. 5 within the period
stipulated, we request the District Collector, Aurangabad, to recover
the same as arrears of land revenue and deposit the same, accordingly.
A copy of the judgment be sent by the Registry of this Court to
the District Collector, Aurangabad (Maharashtra) for compliance.
……………………………………J. (Dr. B.S. CHAUHAN)
……………………………………J. (JAGDISH SINGH KHEHAR)
New Delhi, November 8, 2012
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