Reportable  IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3467 of 2005

WITH

CIVIL APPEAL NO.3468 of 2005

Dayaram … Appellant

Vs.

Sudhir Batham & Ors. … Respondents

J U D G M E N T

R.V. RAVEENDRAN, J.

Respondents  1 to 3 claimed that they belonged to ‘Dhobi’ caste, a  

scheduled  caste  in  Bhopal  district  of  Madhya  Pradesh,  and  secured  

appointment to posts reserved for Schedule Castes. The appellant, who was  

the  President  of  the  Schedule  Caste  Employees  Association,  made  a  

complaint to the Sub-Divisional Magistrate that respondents 1 to 3 did not  

belong  to  any  scheduled  caste  and  had  produced  false  caste  certificates.  

The Collector enquired into the matter and gave a report dated 20.1.2000

holding that the caste certificates produced by respondents 1 to 3 were false.  

Consequently,  the appointments  of  respondents  1 to 3 were cancelled on  

20.4.2000. Respondents 1 to 3 challenged the report of the Collector and  

their consequential termination in WP No. 2666/2000. The Madhya Pradesh  

High  Court  directed  that  the  caste  certificates  of  respondents  1  to  3  be  

verified  by the State  Level  Screening Committee  in  accordance with the  

decision of this court in Kumari Madhuri Patil v. Additional Commissioner,   

Tribal  Development  (1994)  6  SCC  241.  The  appellant,  who  had  also  

approached the High Court, was permitted by the High Court to pursue his  

complaint  against  respondents  1  to  3  before  the  State  Level  Screening  

Committee.  

2. The  State  Level  Screening  Committee  held  an  enquiry,  and  after  

hearing respondents 1 to 3  and the appellant, made an order dated 4.2.2002  

holding that respondents 1 to 3 did not belong to ‘Dhobi’ caste and directed  

cancellation of the caste certificates issued to them. Aggrieved by the order  

dated 4.2.2002 of the Committee, respondents 1 to 3 again approached the  

High Court, in WP No.2074/2002. A learned single Judge of the High Court,  

by order dated 9.3.2003, allowed the writ petition, quashed the order of the  

scrutiny committee and declared that the respondents 1 to 3 belonged to a  

scheduled  caste.  Consequently  he  quashed  the  orders  of  termination  of  

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service with a direction to reinstate respondents 1 to 3 with all consequential  

benefits. The said order was challenged by the appellants by filing a Letters  

Patent Appeal (LPA No.409/2003). The LPA was dismissed by a division  

bench of the High Court,  by order dated 4.8.2003 as not maintainable  in  

view of direction (13) of the caste verification procedure in Madhuri Patil,  

which directed  that  “in case  the  writ  petition  is  disposed of  by  a  single  

Judge,  then no further appeal would lie against  that order to the division  

bench, but subject to special leave under Article 136.” The said order of the  

division bench holding the appeal as not maintainable is challenged in Civil  

Appeal No.3467/2005. The appellant has also challenged the order of the  

learned Single Judge by filing a separate appeal in CA No.3468/2005, to  

avoid difficulties in the event of being unsuccessful in CA No.3467/2005.  

The Reference

3. These two appeals  have been referred by a  two Judge bench,  to  a  

larger bench by order of reference dated 31.3.2010 doubting the legality and  

validity  of  the directions  issued  in  Madhuri  Patil.  We extract  below the  

relevant portion of the order of reference:

“In  Kumari  Madhuri  Patit’s  case,  as  many  as  fifteen  directions  were  given, which, in our opinion, are all legislative in nature. In our opinion, if  a  Court  feels  that  some law should be made,  then it  can only make a  recommendation  to  that  effect  to  the  legislature  but  it  cannot  itself  legislate. It is upto the legislature to accept the recommendation or not.

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In  Kumari  Madhuri  Patil  case,  the  two Judge Bench  of  this  Court  in  direction No.13 observed as follows:  

“The  High  Court  would  dispose  of  these  cases  as  expeditiously as possible within a period of three months.  In case, as per its procedure, the writ petition/miscellaneous  petition/matter  is  disposed of by a single Judge,  then no  further appeal would lie against that order to the Division  Bench but subject to special leave under Article 136.”

In our  opinion,  the direction  that  no further  appeal  will  lie  against  the  decision  of  a  Single  Judge of the High Court to  a  division  bench was  clearly not valid. It is well settled that an appeal is a creature of the statute  and if the statute or the Letters Patent of the High Court or rules provide  for an appeal, then an appeal will lie. For instance, the Court cannot say  that no second appeal under section 100 CPC will be entertained in future  by the High Court. That will be really abolishing section 100 CPC and this  can only be done by the legislature and not by the courts. An appeal can  be created by the legislature and abolished by the legislature. The court   can neither creates an appeal nor abolish it.

Since the aforesaid direction in Kumari Madhuri Patil case (supra), are in  our  opinion  not  valid,  we  are  of  the  opinion  that  they  require  reconsideration by a larger bench.”

The directions in Madhuri Patil

4. In Madhuri Patil, a two Judge Bench of this Court found that spurious  

tribes and persons not belonging to scheduled tribes were snatching away  

the reservation benefits given to genuine tribals, by claiming to belong to  

scheduled tribes.  This Court  found that  the admission wrongly gained or  

appointment wrongly obtained on the basis of false caste certificates had the  

effect of depriving the genuine scheduled castes or scheduled tribes of the  

benefits conferred on them by the Constitution. It also found that genuine  

candidates  were  denied  admission  to  educational  institutions  or  

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appointments to posts under the State, for want of social status certificate;  

and that ineligible or spurious candidates who falsely gained entry resorted  

to dilatory tactics and created hurdles in completion of the inquiries by the  

Scrutiny Committee, regarding their caste status. It noticed that admissions  

to  educational  institutions  were  generally  made  by  the  parents,  as  the  

students will be minors, and they (parents or the guardians) played fraud in  

claiming false status certificate. This Court was therefore of the view that the  

caste  certificates issued should be scrutinised with utmost  expedition and  

promptitude. To streamline the procedure for the issuance of a caste (social  

status) certificates, their scrutiny and approval, this Court issued the fifteen  

directions, relevant portions of which are extracted below:  

1. The application for grant of social status certificate shall be made to  the Revenue-Sub-Divisional Officer and Deputy Collector or Deputy  Commissioner and the certificate shall be issued by such Officer rather  than at the Officer, Taluk or Mandal level.

2. The parent, guardian or the candidate, as the case may be, shall file  an affidavit duly sworn and attested by a competent gazetted officer or  non-gazetted  officer  with particulars  of castes  and sub-castes,  tribe,  tribal community, parts or groups of tribes or tribal communities, the  place from which he originally hails from and other particulars as may  be prescribed by the concerned Directorate.

3. Application for verification of the caste certificate by the Scrutiny  Committee shall be filed at least six months in advance before seeking  admission into educational institution or an appointment to a post.

4.  All  the State  Governments  shall  constitute  a Committee of three  officers,  namely,  (I) an Additional  or Joint Secretary or any officer  higher in rank of the Director of the concerned department,  (II) the  Director,  Social  Welfare/Tribal Welfare/Backward Class Welfare,  as  the case may, and (III) in the case of Scheduled Castes another officer  

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who has intimate knowledge in the verification and issuance of the  social status certificates. In the case of Scheduled Tribes, the Research  Officer who has intimated knowledge in identifying the tribes, tribal  communities, parts of or groups of tribes or tribal communities.

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.  ……………..

6. 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.

7.  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.

8.  Notice  contemplated  in  para  6  should  be  issued  to  the  parents/  guardian  also  in  case  candidate  is  minor  to  appear  before  the  Committee with all evidence in his or their support of the claim for the  social status certificates.

9.  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.

10.  In  case  of  any  delay  in  finalizing  the  proceedings,  and  in  the  meanwhile the last date for admission into an educational institution or  appointment  to  an  officer  post,  is  getting  expired,  the candidate  be  admitted by the Principal  or such other authority competent  in that  behalf or appointed on the basis of the social status certificate already  

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issued  or  an  affidavit  duly  sworn  by  the  parent/guardian/candidate  before  the  competent  officer  or  non-official  and such admission  or  appointment  should be only provisional,  subject to the result  of the  inquiry by the Scrutiny Committee.

11.  The  order  passed  by  the  Committee  shall  be  final  and  conclusive only subject to the proceedings under Article 226 of the  Constitution.

12. No suit or other proceedings before any other authority should  lie.

13. The High Court would dispose of these cases as expeditiously  as  possible  within a period of  three months.  In case,  as  per its  procedure,  the  writ  petition/Miscellaneous  petition/matter  is  disposed of by a Single Judge, then no further appeal would lie  against  that  order  to  the  Division  Bench  but  subject  to  special  leave under Article 136.

14. 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.

15.  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.

[emphasis supplied]

This Court also observed that as the aforesaid procedure by providing for a  

fair  and just verification, could shorten the undue delay and also prevent  

avoidable  expenditure  for  the  State  on  the  education  of  the  candidate  

admitted/appointed  on  false  social  status  or  further  continuance  therein,  

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every  State  should  endeavour  to  give  effect  to  it  and  see  that  the  

constitutional  objectives intended for  the benefit  and advancement  of  the  

genuine scheduled castes/scheduled tribes are not defeated by unscrupulous  

persons.

Questions for consideration  

5. In  view  of  the  reference  order,  the  following  questions  arise  for  

consideration:  

(i) Whether directions 1 to 15 in  Madhuri  Patil  are impermissible,  being legislative in nature?

(ii) Whether directions 11 and 12 in Madhuri Patil, which exclude the  jurisdiction  of  the  civil  court  to  entertain  suits  challenging  the  decisions of the Caste Scrutiny Committees, violate section 9 of the  Code of Civil Procedure?

(iii) Whether  direction  13  in  Madhuri  Patil  barring  intra-court  appeals against decisions of Single Judges in writ petitions, when such  appeals  are  specifically  provided  for  in  State  enactments/Letters  Patents, is valid and proper?  

Re: Question (i) directions (1) to (15) in   Kumari Madhuri Patil in general   

6. This Court has a constitutional duty to protect the fundamental rights  

of Indian citizens. Whenever this Court found that the socio-economic rights  

of citizens required to be enforced, but there was a vacuum on account of the  

absence  of  any  law  to  protect  and  enforce  such  rights,  this  Court  has  

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invariably stepped in and evolved new mechanisms to protect and enforce  

such rights,  to do complete  justice.  This  has been done by re-fashioning  

remedies  beyond  those  traditionally  available  under  writ  jurisdiction  by  

issuing appropriate directions or guidelines to protect the fundamental rights  

and make them meaningful.  

7. In S. P. Gupta v. Union of India (1981) Supp. SCC 87, this Court  

observed :  

“The judiciary has therefore a socio-economic destination and a creative  function. It has, to use the words of Glanville Austin, to become an arm of  the socio-economic revolution and perform an active role calculated to  bring social justice within the reach of the common man. It cannot remain  content to act merely as an umpire but it must be functionally involved in  the goal of socio-economic justice.”

Referring to the British concept of judging, that is, a Judge is only a neutral  

and passive umpire, who merely hears and determines issues of fact and law,  

this Court further observed thus :  

“Now this approach to the judicial function may be all right for a stable  and static  society  but  not  for  a  society pulsating  with urges  of  gender  justice,  worker justice,  minorities  justice,  dalit  justice and equal  justice  between chronic un-equals. Where the contest is between those who are  socially  or  economically  unequal,  the  judicial  process  may  prove  disastrous from the point of view of social justice, if the Judge adopts a  merely passive or negative role and does not adopt a positive and creative  approach. The judiciary cannot remain a mere bystander or spectator but it  must become an active participant in the judicial process ready to use law  in  the  service  of  social  justice  through  a  pro-active  goal  oriented  approach.”  

“What is necessary is to have Judges who are prepared to fashion new  tools,  forge  new  methods,  innovate  new  strategies  and  evolve  a  new  jurisprudence,  who  are  judicial  statesmen  with  a  social  vision  and  a  

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creative faculty and who have, above all, a deep sense of commitment to  the  Constitution  with  an  activist  approach  and  obligation  for  accountability, not to any party in power nor to the opposition nor to the  classes which are vociferous but to the half hungry millions of India who  are continually denied their basic human rights. We need Judges who are  alive to the socio-economic realities of Indian life,  who are anxious to  wipe every tear from every eye, who have faith in the constitutional values  and  who  are  ready  to  use  law  as  an  instrument  for  achieving  the  constitutional objectives.”  

In  Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161 expanded  

upon the role of this Court thus:  

“But  the  question  then  arises  as  to  what  is  the  power  which  may  be  exercised by the Supreme Court when it  is moved by an "appropriate"  proceeding for enforcement of a fundamental right. It is not only the high  prerogative writs of mandamus, habeas corpus, prohibition, quo warranto  and certiorari which can be issued by the Supreme Court but also writs in  the  nature  of  these  high  prerogative  writs  and  therefore  even  if  the  conditions for issue of any of these high prerogative writs are not fulfilled,  the Supreme Court would not be constrained to fold its hands in despair   and plead its  inability  to  help  the  citizen  who has  come before  it  for   judicial redress, but would have power to issue any direction, order or   writ  including  a writ  in  the  nature  of  any high  prerogative  writ.  This   provision  conferring  on  the  Supreme  Court  power  to  enforce  the   fundamental rights in the widest possible terms shows the anxiety of the   Constitution makers not to allow any procedural technicalities to stand in   the way of enforcement of fundamental rights. The Constitution makers  clearly intended that the Supreme Court should have the amplest power to  issue whatever direction, order or writ may be appropriate in a given case  for enforcement of a fundamental right.”

(emphasis supplied)

8. In Vishaka  v.  State  of  Rajasthan (1997)  6  SCC  241  this  court  

recognized its obligation under Article 32 to provide for the enforcement of  

fundamental  rights  in  areas  with  legislative  vacuum.  After  detailed  

consideration, this Court held:  

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“In view of the above, and the absence of enacted law to provide for the  effective  enforcement  of  the  basic  human  right  of  gender  equality  and  guarantee against sexual harassment and abuse, more particularly against  sexual harassment at work places, we lay down the guidelines and norms  specified  hereinafter  for  due  observance  at  all  work  places  or  other  institutions, until a legislation is enacted for the purpose. This is done in  exercise of the power available  under Article 32 of the Constitution for  enforcement of the fundamental rights and it is further emphasised that  this  would  be  treated  as  the  law  declared  by  this  Court  under  Article 141 of the Constitution.”

9. In Vineet Narain v. Union of India 1998 (1) SCC 226 this court took  

note of the fact that in exercise of the powers under Article 32 read with  

Article 142, guidelines and directions had been issued in a large number of  

cases;  and  that  issue  of  such  guidelines  and  directions  is  a  well  settled  

practice which has taken firm roots in our constitutional jurisprudence and  

that such exercise was essential to fill the void in the absence of suitable  

legislation  to  cover  the  field.  Consequently  this  Court  issued  various  

directions with the following preamble:  

“As pointed out in Vishakha (supra), it is the duty of the executive to fill   the vacuum by executive orders because its field is co-terminus with that  the  legislature,  and  where  there  is  inaction  even  by  the  executive  for   whatever  reason,  the  judiciary  must  step  in,  in  exercise  of  its   constitutional  obligations  under  the  aforesaid  provisions  to  provide  a   solution  till  such  time  as  the  legislature  acts  to  perform  its  role  by   enacting proper legislation to cover the field.

59.  On  this  basis,  we  now  proceed  to  give  the  directions  enumerated  hereafter for rigid compliance till such time as the legislature steps in to  substitute  them  by  proper  legislation.  These  directions  made  under  Article 32 read with Article 142 to implement the rule of law wherein the  concept of equality enshrined in Article 14 is embedded, have the force of  law under Article 141 and by virtue of Article 144 it  is  the  duty of  all  

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authorities, civil and judicial, in the territory of India to act in aid of this  Court.”

(emphasis supplied)

10. In  Kalyan Chandra Sarkar v. Rajesh Ranjan  (2005) 3 SCC 284 this  

Court held that Article 142 is an important constitutional power granted to  

this court to protect the citizens. In a given situation when laws are found to  

be inadequate for the purpose of grant of relief, the court can exercise its  

jurisdiction under Article 142 of the Constitution. This court reiterated that  

directions issued by this court under Article 142 from the law of the land in  

the absence of any substantive law covering the field and such directions  

“fill the vacuum” until the legislature enacts substantive law. This court has  

issued  guidelines  and  directions  in  several  cases  for  safeguarding,  

implementing  and  promoting  the  fundamental  rights,  in  the  absence  of  

legislative enactments.  By way of illustrations,  we may refer  to  Lakshmi  

Kant Pandey v. Union of India (1984) 2 SCC 244 [regulating inter-country  

adoptions], Common Cause v. Union of India (1996) 1 SCC 753 [regulating  

collection, storage and supply of blood for blood transfusions], M.C. Mehta  

v.  State  of  Tamilnadu (1996) 6 SCC 756 [enforcing prohibition on child  

labour].

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11. In Supreme Court Bar Association v.Union of India (1998) 4 SCC 409  

a Constitution Bench of this Court held:

“Indeed this Court is not a court of restricted jurisdiction of only dispute- settling. It is well recognized  and established that this court has always   been a law maker and its role travels beyond merely dispute settling. It is  a  “problem solver  in  the  nebulous  provisions  dealing  with  the  subject  matter of a given case cannot be altogether ignored by this Court, while  making an order under Article 142. Indeed, these constitutional powers  cannot, in any way, be controlled by any statutory provisions but at the  same time these powers are not meant to be exercised when their exercise  may come directly in conflict with what has been expressly provided for in  a statute dealing expressly with the subject.”

(emphasis supplied)

12. The directions issued in Madhuri Patil were towards furtherance of the  

constitutional  rights  of  scheduled  castes/scheduled  tribes.  As  the  rights  in  

favour of the scheduled castes and scheduled tribes are a part of legitimate and  

constitutionally accepted affirmative action, the directions given by this Court  

to ensure that only genuine members of the scheduled castes or scheduled  

tribes were afforded or extended the benefits, are necessarily inherent to the  

enforcement  of  fundamental  rights.  In  giving  such  directions,  this  court  

neither  re-wrote  the  Constitution  nor  resorted  to  ‘judicial  legislation’.  The  

Judicial  Power  was  exercised  to  interpret  the  Constitution  as  a  ‘living  

document’ and enforce fundamental rights in an area where the will of the  

elected legislatures have not expressed themselves.  Benjamin Cardozo in his  

inimitable  style  said that  the power,  to  declare  the law carries  with it  the  

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power and within limits the duty, to make law when none exists. (Nature of   

the Judicial Process, page 124).  Directions issued in the exercise of Judicial  

Power can fashion modalities out of existing executive apparatus, to ensure  

that eligible citizens entitled to affirmative action alone derive benefits of such  

affirmative action. The directions issued in Madhuri Patil are intrinsic to the  

fulfillment of fundamental rights of backward classes of citizens and are also  

intended to preclude denial of fundamental  rights to such persons who are  

truly entitled to affirmative action benefits.  

13. We may now deal with the two decisions relied upon in the reference  

order. The first is the decision in Divisional Manager, Aravali Golf Club vs.   

Chander Haas [2008 (1) SCC 683]. In that case it was observed that Judges  

should not unjustifiably try to perform executive or legislative functions and  

in the name of judicial activism, cannot cross their limits and try to take-over  

the functions which belong to another organ of the State. The court  also  

lamented upon the tendency of some Judges to interfere in matters of policy.  

These observations no doubt, deserve acceptance. These observations were  

made in the context of setting aside a direction of the High Court to create  

the posts of drivers and then regularize the services of respondents against  

such newly created posts. It was held that courts cannot direct creation of  

posts which is the prerogative of the executive or legislature. In fact in the  

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very decision this court further observed that its observations did not mean  

that Judges should never be activists  as many a time judicial activism is a   

useful adjunct to democracy and such activism should be resorted to only in   

exceptional circumstances where the situation forcefully demands it in the   

interest of the nation or the poorer or weaker sections of the society, keeping  

in mind that ordinarily the task of legislation or administrative decisions is  

for  the  legislature  and the  executive  and not  for  the  judiciary.  Thus  the  

decision in  Aravali Golf Club in effect supports the principle which is the  

basis  for  the  directions  in  Madhuri  Patil.  The  principle  is  wherever  the  

interests of weaker sections are adversely affected due to unscrupulous acts  

of persons attempting to usurp the benefits meant for such weaker sections,  

court can, and in fact should, step in, till a proper legislation is in place. It is  

not necessary to refer to the second case mentioned in the reference order,  

that  is  Common Cause  vs.  Union of  India -  2008 (5)  SCC 511,  for  two  

reasons. First is, it reiterates  Aravali Golf Club. Second is, on the relevant  

issue, the two learned Judges have differed and therefore the discussion is  

not of any assistance.   

14. Therefore we are of the view that directions 1 to 15 issued in exercise  

of  power  under  Articles  142  and  32  of  the  Constitution,  are  valid  and  

laudable,  as  they  were  made  to  fill  the  vacuum  in  the  absence  of  any  

15

legislation, to ensure that only genuine scheduled caste and scheduled tribe  

candidates secured the benefits of reservation and the bogus candidates were  

kept  out.  By  issuing  such  directions,  this  court  was  not  taking  over  the  

functions of the legislature but merely filling up the vacuum till legislature  

chose to make an appropriate law.

Re: Question (ii) : Whether civil courts jurisdiction could be barred?

15. Direction  (11)  in  Madhuri  Patil states  that  order  passed  by  the  

scrutiny committee shall be final and conclusive, subject only to challenge  

under  Article  226  of  the  Constitution.  Direction  (12)  states  that  no  suit  

(before a civil court) or other proceedings before any other authority should  

lie against the orders of the scrutiny committee. The appellant contends that  

the right to file a civil suit cannot be taken away by a judicial order and that  

a  suit  could  be  barred  only  by  a  statute,  either  expressly  or  impliedly.  

Section 9 of the Code of Civil Procedure (‘Code’ for short) provides that  

courts have to try all civil suits unless barred. The relevant portion of the  

said section is extracted below :  

“The  Courts  shall  (subject  to  the  provisions  herein  contained)  have  jurisdiction to try all suits of a civil nature excepting suits of which their  cognizance is either expressly or impliedly barred.”

16

16. In Vankamamidi Venkata Subba Rao vs. Chatlapalli Seetharamaratna   

Ranganayakamma  (1997)  5  SCC 460  this  Court  explained  the  scope  of  

section 9 thus :  

“When a legal  right is  infringed, a suit  would lie  unless there is  a bar  against  entertainment  of such civil  suit  and the civil  Court  would take  cognizance of it.  Therefore,  the normal rule of law is that Civil  Courts  have  jurisdiction  to  try  all  suits  of  civil  nature  except  those  of  which  cognizance is either  expressly or by necessary implication excluded…..  Courts generally construe the provisions strictly when jurisdiction of the  civil  courts is claimed to be excluded.  However, in the development  of   civil adjudication of civil disputes, due to pendency of adjudication and   abnormal  delay  at  hierarchical  stages,  statutes  intervene  and  provide   alternative  mode  of  resolution  of  disputes  with  less  expensive  but   expeditious  disposal…….It  is  also an equally settled  legal  position  that  where a statute gives finality to the orders of the special tribunal, the civil  court’s  jurisdiction  must  be  held  to  be  excluded,  if  there  is  adequate  remedy to do what the civil court would normally do in a suit.   Where  there is  no express exclusion,  the examination of the remedies  and the  scheme of the particular Act to find out the intendment becomes necessary  and  the  result  of  the  inquiry  may  be  decisive.  In  the  latter  case,  it  is  necessary that the statute creates a special right or liability and provides  procedure for the determination of the right or liability and further lays  down that all questions about the said right or liability shall be determined  by  the  Tribunal  so  constituted  and  whether  remedies  is  normally  associated with the action in civil Courts or prescribed by the statutes or  not.  Therefore,  each  case  requires  examination  whether  the  statute  provides right and remedies and whether the scheme of the Act is that the  procedure  provided  will  be  conclusive  and  thereby  excludes  the  jurisdiction of the civil Court in respect thereof.”

(emphasis supplied)

17. Scope of section 9 of the Code was again explained by this Court in  

Rajasthan  State  Road  Transport  Corporation  v.  Bal  Mukund  Bairwa  

(2009) 4 SCC 299 as under:

“Section 9 of the Code is in enforcement of the fundamental principles  of law laid down in the maxim Ubi jus ibi remedium. A litigant, thus,  having a grievance of a civil nature has a right to institute a civil suit in a  competent  civil  court  unless  its  cognizance  is  either  expressly  or  

17

impliedly barred by any statute. Ex facie, in terms of Section 9 of the  Code,  civil  courts  can  try  all  suits,  unless  barred  by  statute,  either   expressly or by necessary implication..”

(emphasis supplied)

18. In Dhulabai v. State of MP (1968) 3 SCR 662 this Court enumerated  

the  circumstances  wherein  civil  court  jurisdiction  could  be  held  to  be  

excluded. They are:  

“(1) Where the statute gives a finality to the orders of the special tribunals,  the  Civil  Court's  jurisdiction  must  be  held  to  be  excluded  if  there  is  adequate remedy to do what the Civil Courts would normally do in a suit.  Such  provision,  however,  does  not  exclude  those  cases  where  the  provisions  of  the  particular  Act  have  not  been  complied  with  or  the  statutory  tribunal  has  not  acted  in  conformity  with  the  fundamental  principles of judicial procedure.

(2)  Where  there  is  an  express  bar  of  the  jurisdiction  of  the  court,  an  examination of the scheme of the particular Act to find the adequacy or  the  sufficiency  of  the  remedies  provided  may  be  relevant  but  is  not  decisive to sustain the jurisdiction of the civil court.”

19. It is therefore clear that the jurisdiction of the civil court to entertain  

any suit of a civil nature arising under a statute can be excluded only when  

cognizance is expressly or impliedly barred by the statute which gives rise to  

such suits.  In  this  case,  the creation of  the scrutiny committee  is  by  the  

judgment  of  this  Court.  The  procedure  and  functioning  of  the  scrutiny  

committee is also in accordance with the scheme formulated by the said  

judgment. Thus if a suit is to be filed in a civil court in regard to the decision  

of the scrutiny committee, the cause of action for such suit would not arise  

18

under any statute, but with reference to an order of a committee constituted  

in pursuance of a scheme formulated by this court, by way of a stop-gap  

quasi  –legislative  action.  The  principle  underlying  section  9  is  that  

cognizance of any category of suits  arising under a statute, can be barred  

(either expressly or impliedly) by that Statute. But in regard to cognizance of  

the category of suits arising from the scheme formulated by a decision of  

this Court (and not under a statute), the scheme formulated by the decision  

of  the  court  is  the  ‘statute’,  and  therefore  the  scheme  can  expressly  or  

impliedly bar cognizance of such suits. This is because the ‘statute’ which  

gives rise to a cause of action referred to in the aforesaid decisions in  V.  

Venkata  Subha  Rao, Bal  Mukund  Bairwa and  Dhulabai, in  this  case  is  

substituted  by  the  ‘quasi-legislative’  stop-gap  scheme  created  by  the  

decision  of  this  Court.  As  the  scrutiny  committee  is  a  creature  of  the  

judgment in Madhuri Patil and the procedure for verification and passing of  

appropriate orders by the scrutiny committee is also provided for in the said  

judgment, there is nothing irregular or improper in this court directing that  

orders of the scrutiny committee should be challenged only in a proceeding  

under Article 226 of the Constitution and not by way of any suit or other  

proceedings.  Section  9  of  the  Code  and  plethora  of  decisions  which  

considered it, state that the civil court will have jurisdiction except where the  

cognizance of suits of civil nature is either expressly or impliedly barred.

19

20. One incidental  submission about  the nature and constitution of  the  

scrutiny committee requires to be dealt  with. It  is submitted that scrutiny  

committee, directed to be constituted by Madhuri Patil, is neither a court nor  

a tribunal, but a committee consisting of government officers, namely, (i) an  

officer of Additional or Joint Secretary level or other officer higher in rank  

than  the  Director  of  the  department  concerned;  (ii)  the  Director,  Social  

Welfare/Tribal Welfare/Backward Classes Welfare, as the case may be; and  

(iii)  an  officer,  who  has  an  intimate  knowledge  in  the  verification  and  

issuance of social status certificates in the case of scheduled castes and a  

Research  Officer  who  has  intimate  knowledge  in  identifying  tribes,  

communities etc., in the case of scheduled tribes. The scrutiny committee  

does not have any judicial member. It is submitted that in the event of caste  

status being erroneously decided by the scrutiny committee, which does not  

have any ‘judicial’ mind, the only remedy available for the aggrieved person  

would  be  a  writ  petition  under  Article  226  of  the  Constitution.  Such  a  

remedy cannot act as a efficacious substitute to the right to  file  a  civil  suit   

since  the  High  Court  exercising  writ  jurisdiction  will  not  re-appreciate  

evidence whereas a civil court could do so. It is contended that the High  

Court’s  writ  jurisdiction,  which  is  concerned  only  with  decision  making  

process, is further curtailed by paragraph 15 in Madhuri Patil which directs  

as under :  

20

“The question then is whether the approach adopted by the high court in  not elaborately considering the case is vitiated by an error of law. High  Court is not a court of appeal to appreciate the evidence. The Committee  which  is  empowered  to  evaluate  the  evidence  placed  before  it  when  records  a  finding  of  fact,  it  ought  to  prevail  unless  found  vitiated  by  judicial  review of any High Court subject to limitations  of interference  with findings of fact. The Committee when considers all the material facts  and records a finding, though another view, as a court of appeal may be  possible it is not a ground to reverse the findings. The court has to see  whether the committee considered all the relevant material placed before it  or has not applied its mind to relevant facts which have led the committee  ultimately  record  the  finding.  Each  case  must  be  considered  in  the  backdrop of its own facts.”

It  was  submitted  that  not  only the decision  of  the  scrutiny committee  is  

given finality on questions of fact, but even the power of judicial review is  

sought to be curtailed by the aforesaid observation in  Madhuri Patil.  It is  

pointed out that if the scrutiny committee wrongly holds a genuine caste  

certificate is to be a false certificate, and the certificate holder is prevented  

from approaching the  civil  court,  such erroneous findings  of  fact  by  the  

committee which is a non-judicial body would attain finality, without any  

remedy to the certificate holder. It was therefore submitted that denial of the  

right  to  approach  the  civil  court  and  restricting  the  remedy  to  only  writ  

proceedings, in the anxiety to provide speedy remedy, has the potential of  

causing severe miscarriage of justice.  

21. The assumption that para 15 of Madhuri Patil extracted above curtails  

the power of judicial review under Article 226 is not correct. It is  

21

inconceivable to even think that this Court, by a  judicial order would curtail  

or regulate the writ jurisdiction of the High Court under Article 226. All that  

para 15 of Madhuri Patil does is to draw attention to the settled parameters  

of judicial review and nothing more. We make it clear that nothing in para  

15 of the decision in Madhuri Patil shall be construed as placing any fetters  

upon  the  High  Court  in  dealing  with  writ  petitions  relating  to  caste  

certificates.  

22. Each  scrutiny  committee  has  a  vigilance  cell  which  acts  as  the  

investigating  wing  of  the  committee.  The  core  function  of  the  scrutiny  

committee, in verification of caste certificates, is the investigation carried on  

by  its  vigilance  cell.  When  an  application  for  verification  of  the  caste  

certificate  is  received  by  the  scrutiny  committee,  its  vigilance  cell  

investigates  into  the  claim,  collects  the  facts,  examines  the  records,  

examines the relations or friend and persons who have knowledge about the  

social status of the candidate and submits a report to the committee. If the  

report supports the claim for caste status, there is no hearing and the caste  

claim is confirmed. If the report of the vigilance cell discloses that the claim  

for the social status claimed by the candidate was doubtful or not genuine, a  

show-cause notice is issued by the committee to the candidate. After giving  

due  opportunity  to  the  candidate  to  place  any material  in  support  of  his  

22

claim, and after making such enquiry as it  deems expedient,  the scrutiny  

committee considers the claim for caste status and the vigilance cell report,  

as also any objections that may be raised by any opponent to the claim of the  

candidate  for  caste  status,  and  passes  appropriate  orders.  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. Like any other decisions of administrative authorities, the  

orders of the scrutiny committee are also open to challenge in proceedings  

under Article 226 of the Constitution. Permitting civil suits with provisions  

for  appeals  and  further  appeals  would  defeat  the  very  scheme  and  will  

encourage the very evils which this court wanted to eradicate. As this Court  

found that a large number of seats or posts reserved for scheduled castes and  

scheduled tribes were being taken away by bogus candidates claiming to  

belong  to  scheduled  castes  and  scheduled  tribes,  this  Court  directed  

constitution  of  such  scrutiny  committees,  to  provide  an  expeditious,  

effective and efficacious remedy, in the absence of any statute or a legal  

framework for proper verification of false claims regarding SCs/STs status.  

This entire scheme in  Madhuri Patil  will only continue till the concerned  

legislature makes appropriate legislation in regard to verification of claims  

for  caste  status  as  SC/ST and issue  of  caste  certificates,  or  in  regard  to  

23

verification of caste certificates already obtained by candidates who seek the  

benefit of reservation, relying upon such caste certificates.  

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.  

Re: Question (iii) : Whether a right of appeal can be taken away by way  of judicial order?

24

24. Direction  (13)  in  Madhuri  Patil directs  that  when  a  writ  petition  

challenging the decision of the scrutiny committee is decided by a Single  

Judge of the High Court, no further appeal would lie against that order to the  

division bench and the decision of the learned Single Judge would only be  

subjected to special leave under Article 136 of the Constitution.  

25. The  State  of  Madhya  Pradesh  enacted  the  ‘Uchcha  Nyayalaya  

(Khandpeeth Ko Appeal) Adhiniyam, 2005” which is deemed to have come  

into  force  from 1.7.1981.  The said  Adhiniyam confers  a  right  of  appeal  

before a division bench against the judgment of the single judge exercising  

jurisdiction  under  Article  226  of  the  Constitution  of  India.  The  relevant  

provision is as follows:  

“An appeal shall lie from a judgment or order passed by one Judge of the  High Court in exercise of original jurisdiction under Article 226 of the  Constitution of India, to a division bench comprising of two judges of the  same High Court.”

26. A remedy by way of appeal, provided expressly by a statute cannot be  

taken away by an executive fiat or a judicial order. In  Asia Industries (P)   

Ltd. v.S.B. Sarup Singh (1965) 2 SCR 756 this Court held:  

“Under  the  rules  made  by  the  High  Court  in  exercise  of  the  powers  conferred on it under section 108 of the Government of India Act, 1915,  an appeal under section 39 of the Act will be heard by a single Judge. Any  judgment made by the single Judge in the said appeal will, under Clause  10 of the Letters Patent, be subject to appeal to that Court.  If the order   made by a single Judge is a judgment and if the appropriate Legislature   has, expressly or by necessary implication, not taken away the right of   

25

appeal,  the  conclusion  is  inevitable  that  an  appeal  shall  lie  from the   judgment of a single Judge under Clause 10 of the Letters Patent to the   High Court.”

(emphasis supplied)

In  A.R.  Antulay  v.  R.S.  Nayak (1988)  2  SCC 602,  an  earlier  bench  had  

transferred the criminal trials pending before the Special Judge to the High  

Court  of  Bombay.  A bench  of  seven  judges  while  overruling  the  earlier  

decision held that section 7(1) of the Criminal Law Amendment Act, 1952  

created a condition that notwithstanding anything contained in the Code of  

Criminal Procedure or any other law, the offences under section 6(1) of the  

said Act to be tried by special judges only; and therefore the order dated  

16.2.1984 [reported in (1984) 2 SCC 183] transferring the cases to High  

Court was not authorized by law. It was also submitted that if the case was  

tried by a special judge, the accused had a right of appeal to the High Court  

and by transferring the trial to the High Court the said vested right of appeal  

was  taken  away  which  was  impermissible  in  law.  This  court  held  that  

Parliament alone can take away vested right of appeal and no court whether  

inferior  or  superior  can  take  away  the  said  vested  right.  The  following  

observations in that context are relevant:  

“The power to create or enlarge jurisdiction is legislative in character, so  also the power to  confer  a right of  appeal  or to take away a right of   appeal. Parliament alone can do it by law and no Court, whether superior   or inferior or both combined can enlarge the jurisdiction of a Court or   divest a person of his rights of revision and appeal.”

26

(emphasis supplied)

27. We may also refer to two other decisions dealing with the right of  

appeal vested in a litigant, on and from the date of commencement of the lis.  

Though in this case,  we are not immediately concerned with interference  

with the vested right of appeal of a litigant, after the commencement of a lis,  

the principle underlying these two decisions are useful in understanding the  

right to appeal. A Constitution Bench of this Court in Hoosein Kasam Dada  

(India) Ltd.vs. The State of Madhya Pradesh and Ors. – 1953 SCR 987 held  

that right of appeal is a vested substantive right. This Court held:  

“The above decisions quite firmly establish and our decisions in Janardan  Reddy  v.  The  State [1950]  S.C.R.  941 and  in  Ganpat  Rai  v.  Agarwal  Chamber of Commerce Ltd. (1952) S.C.J. 564, uphold the principle that a  right  of  appeal  is  not  merely  a  matter  of  procedure.  It  is  matter  of  substantive  right.  This  right  of  appeal  from the  decision  of  an inferior  tribunal to a superior tribunal becomes vested in a party when proceedings  are first initiated in, and before a decision is given by, the inferior court. In  the language of Jenkins C.J. in Nana bin Aba v. Shaikh bin Andu (1908)  ILR 32 Bom 337 to  disturb  an  existing  right  of  appeal  is  not  a  mere  alteration in procedure. Such a vested right cannot be taken away except  by express enactment or necessary intendment. An intention to interfere  with or to impair or imperil such a vested right cannot be presumed unless  such  intention  be  clearly  manifested  by  express  words  or  necessary  implication.”

In Garikapatti Veeraya v.N.Subbiah Choudhury (1957) SCR 488, this Court  

held that the vested right of appeal can be taken away only by a subsequent  

enactment. The following principles were enunciated:

27

(i) That the legal pursuit of a remedy, suit, appeal and second appeal are  really but steps in a series of proceedings all  connected by an intrinsic  unity and are to be regarded as one legal proceeding.

(ii)  The right of appeal is not a mere matter of procedure but is a  substantive right.

(iii) The institution of the suit carries with it the implication that all rights  of appeal then in force are preserved to the parties there to till the rest of  the carrier of the suit.

(iv)  The right  of appeal  is  a vested right and such a right to  enter  the  superior Court accrues to the litigant and exists as on and from the date the  lis commences and although it may be actually exercised when the adverse  judgment is pronounced such right is to be governed by the law prevailing  at the date of the institution of the suit of proceeding and not by the law  that prevails at the date of its decision or at the date of the filing of the  appeal.

(v)  This  vested  right  of  appeal  can  be  taken  away  only  by  a  subsequent  enactment,  if  it  so  provides  expressly  or  by  necessary  intendment and not otherwise.

(emphasis supplied)

28. The right to file a writ appeal under the Adhiniyam (State Act) is a  

‘vested right’, to any person filing a writ petition. That right can be taken  

away only by an express amendment to the Act or by repeal of that Act, or  

by necessary intendment,  that  is  where a clear  inference could be drawn  

from some legislation that  the legislature  intended to take away the said  

right.  The right of appeal to a division bench, made available to a party to a  

writ petition, either under a statute or Letters Patent, cannot be taken away  

by  a  judicial  order.  The  power  under  Article  142  is  not  intended  to  be  

exercised,  when  such  exercise  will  directly  conflict  with  the  express  

provisions of a statute.

28

Conclusion

29. In view of the above, we hold that the second sentence of clause 13  

providing that where the writ petition is disposed of by a single judge, no  

further appeal would lie against the order of the division bench (even when  

there is a vested right to file such intra-court appeal) and will only be subject  

to a special leave under Article 136, is not legally proper and therefore, to  

that extent, is held to be not a good law. The second sentence of direction  

No.(13)  stands  overruled.  As a  consequence,  wherever  the  writ  petitions  

against the orders of the scrutiny committee are heard by a single judge and  

the state law or Letters Patent permits an intra-court appeal, the same will be  

available.

Civil Appeal No.3467/2005

30. In the light of the above, we allow this appeal (CA No.3467/2005) and  

set aside the judgment of the Division Bench of the High Court holding the  

writ  appeal  as  not  maintainable.  Consequently,  the  writ  appeal  (earlier  

Letters Patent Appeal) will stand restored to the file of the High Court. We  

request the High Court to hear and dispose of the said appeal (against order  

dated 9.5.2003 in W.P.No.2074/2002) on merits, expeditiously.

Civil Appeal No.3468/2005 :

29

31. In  view  of  our  order  in  CA  No.3467/2005  as  above,  CA  

No.3468/2005 challenging the order dated 9.5.2003 of the learned Single  

Judge is dismissed as infructuous.         

We  record  our  appreciation  for  the  assistance  rendered  by  Mr.  Gopal  

Subramanian, as Amicus Curiae.

.........................................J. [ R.V. Raveendran ]

.........................................J. [ P. Sathasivam ]

New Delhi                   ..........................................J. October 11 , 2011 [ A.K. Patnaik ]   

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