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