Smt. Sunanda Jagannath Ruikar Vs. State of Maharashtra Through Its Secretary, Tribal Development Department, - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - the committee considered the documents submitted by her, the vigilance enquiry report as well as the replies given by the petitioner during the course of personal hearing and invalidated her claim as belonging to mahadeo koli scheduled tribe as per the impugned order dated 23/8/1999. this petition was admitted on 21/9/2000 but there was no interim relief granted. 5. in her reply to the vigilance cell enquiry report the petitioner submitted some additional certificates and one of them was the certificate issued by shri khetade guruji who was claimed to be the head of mahadeo koli samaj as well as a copy of the caste certificate of shri ganesh shravan ghodegaonkar issued in his favour in the year 1961 and reiterated that on the basis of these certificates her tribes claim must be approved. mendadkar, the learned counsel for the petitioner, that the committee failed to consider the entire evidence placed before it in support of the petitioners tribe claim and the impugned order does not throw light on the affinity test. the petitioner has also relied upon the school leaving certificate of shri keru bhiru pawar issued in his favour by the mahanagarpalika shikshan mandal, nashik on 6/5/1995. firstly, the said certificate has been issued much after the petitioners caste certificate and the petitioner has failed to prove that the said shri keru pawar is her blood relation from her fathers side. the government of maharashtra relying upon the said judgment pronounced on 2/9/1994, issued grs on 26/10/1995, 7/3/1996, 14/7/1997 and 23/7/1997 so as to put in place a proper mechanism in the form of caste scrutiny committees to verify scheduled caste/scheduled tribes claim as well as the claims of the persons belonging to other backward classes, though caste verification mechanism by way of a single member committee was put in place as per the gr dated 23/1/1985 and subsequently the committees were made of multi members. in the school leaving certificate of her brother sunil, his caste has been shown as hindu m koli (backward). in the affidavit furnished by the petitioners father during the course of vigilance inquiry, he clearly stated that initially his caste was recorded as hindi koli. these replies by the petitioners father before the vigilance inquiry clearly indicated that he belongs to the koli caste which is a different social group from mahadeo koli scheduled tribe in the state of maharashtra. 28. dhor koli, tokre koli 29. mahadev koli, dongar koli 30. malhar koli it is well known that in the state of maharashtra different sub-groups of koli caste sought to get or obtain the benefit of belonging to scheduled tribes and the scrutiny committee invariably turned down such claims. 12. it is well settled that when a person claims to be a member of scheduled caste or scheduled tribe, the burden of proof that he or she belongs to such caste or tribe is on him/her and this position in law has been reiterated by the apex court in the case of lillykutty v.b.h. marlapalle, j.1. this petition filed under article 226 of the constitution of india impugns the decision of the scrutiny committee thereby invalidating the petitioners tribes claim as belonging to mahadeo koli scheduled tribe and cancellation and confiscation of the caste certificate dated 7/11/1988 issued in her favour by the executive magistrate, sinnar, dist. nashik. in response to the advertisement published by the secretary of the banking service regulation board, western group, mumbai the petitioner had submitted her application to the said board on 15/11/1986 and claimed that she belong to a scheduled tribe. she appeared for the written examination conducted by the board on 10/5/1987 and after having passed the same she was called for personal interview when she was called upon to submit her bio-data. on 11/10/1988 she was informed that she was provisionally selected for appointment to the post of clerk and her name was allotted to the syndicate bank (the bank for short). accordingly she reported for duty with said bank where she was called upon to submit a fresh caste certificate in the prescribed form and in response to the same she submitted the caste certificate on 7/11/1988 issued by the executive magistrate, sinnar, dist. nashik which stated that she belongs to mahadeo koli scheduled tribe. based on the said certificate she was appointed vide appointment order dated 26/12/1988 by the bank for the post of clerk and came to be confirmed in the said post with effect from 26/6/1989.2. the bank referred the petitioners tribes claim for verification and the scrutiny committee invalidated her tribes claim by its order dated 20/10/1995 and the said order came to be challenged before this court in writ petition no. 2464 of 1996. it was pointed out before this court that the caste claim of the petitioner was heard by only one member of the committee but it was signed by three members and, therefore, the order was vitiated on the grounds of principles of natural justice. it was also pointed out that investigation into the tribes claim of the petitioner was not done properly.the said petition was allowed by this court on 7/6/1996 and the order dated 20/1/1996 came to be quashed and set aside. pending decision of the scrutiny committee on remand the bank was directed not to give effect to the order passed by the scrutiny committee on 20/1/1996.3. on remand the petitioner appeared before the scrutiny committee along with the order and submitted the documents. the vigilance enquiry was ordered and the vigilance enquiry report dated 30/3/1998 was submitted to the committee. a copy of the said report was also made available to the petitioner vide the committees letter dated 1/4/1998 and she submitted her reply to the same on 9/7/1998 pointing out that many of her near relations caste claim was validated by the scrutiny committee. the committee considered the documents submitted by her, the vigilance enquiry report as well as the replies given by the petitioner during the course of personal hearing and invalidated her claim as belonging to mahadeo koli scheduled tribe as per the impugned order dated 23/8/1999. this petition was admitted on 21/9/2000 but there was no interim relief granted.4. before the scrutiny committee the petitioner submitted the following documents:(1) her school leaving certificate dated 23/7/1981 issued by shriram vidyalaya, panchvati, nashik.(2) caste certificate dated 7/11/1988 issued by the executive magistrate, sinnar, dist.nashik.(3)her fathers school leaving certificate issued by purna primary vidhya mandir, ruhi no. 1, tal. nifhad, dist. nashik.(4) her fathers service book extract (first page).(5) caste certificate of rajesh ranghnath ruikar issued by the sub-divisional magistrate, nashik in november 1992.(6) school leaving certificate of her brother sunil jagannath ruikar issued by shreeram vidhyalay, panchvati, nashik on 21/6/1982.(7) school leaving certificate of rajesh ranghnath ruikar issued by shreeram vidhyalay, panchvati, nashik on 27/7/1988.(8) school leaving certificate of keru bhiru pawar issued by mahanagarpalika shikshan mandal, nashik on 6/5/1995.(9) affidavit of shri kamlakar punja naik stating that his tribes claim of mahadeo koli scheduled tribe has been validated by the scrutiny committee.5. in her reply to the vigilance cell enquiry report the petitioner submitted some additional certificates and one of them was the certificate issued by shri khetade guruji who was claimed to be the head of mahadeo koli samaj as well as a copy of the caste certificate of shri ganesh shravan ghodegaonkar issued in his favour in the year 1961 and reiterated that on the basis of these certificates her tribes claim must be approved.6. it was submitted by mr. mendadkar, the learned counsel for the petitioner, that the committee failed to consider the entire evidence placed before it in support of the petitioners tribe claim and the impugned order does not throw light on the affinity test. the impugned order has been passed mechanically and has resulted in gross injustice to the petitioner. the research officer attached to the committee did not have intimate knowledge in identifying the tribes, tribal communities, parts / groups of tribes or their social and religious trades. the committee did not follow the law laid down by the supreme court in the case of kumari madhuri patil and anr. v. addl. commissioner, tribal development : (1994) 6 scc 241. the committee placed heavy reliance on the report submitted by the vigilance cell and the school leaving certificate of the petitioners father was the only document which came to be considered by the committee and based on the sole document in disregard to all other documentary evidence, the committee has invalidated the petitioners tribe claim. though the school leaving certificate of the petitioners father showed his caste as koli, the petitioner had submitted a copy of the service book of her father and in his service record his caste was shown as mahadeo koli and on the basis of the said record, her father was promoted to the post of headmaster against a post reserved for scheduled tribe. it was further submitted by the learned counsel for the petitioner that she is born in a scheduled tribe family and the validation certificate of shri kamlakar punja naik, who is her close relation, was discarded by the committee. it was necessary for the committee to consider the certificate of the blood relations and more so when her father has been accepted, treated and continued as a member of the scheduled tribe initially by the zilla parishad and subsequently by the municipal school board and, therefore, it was not permissible, in law, for the scrutiny committee to discard the same evidence. the committee has not considered the surname titles of the petitioners relations and the social, religious and ethnic traits which, in fact, is a mandatory requirement for the scrutiny committee to consider. the petitioner also claims that asper the book titled castes and tribes of h.e.h. the nizams dominion published in 1920 (vol.i) at page 334, the koli community is divided into several sub-tribes, two of which malhar koli and mahadeo koli are to be found in nizams dominion and, therefore, even if the petitioners fathers caste was shown as koli in his school record, the same ought to be read as mahadeo koli. the petitioner has also relied upon the maharashtriya dnyankosh part ii, and authored by dr. s.v. ketkar. the challenge on the jurisdiction of the scrutiny committee to scrutinize the caste claim of the petitioner has been given up during the course of oral arguments.7. in the case of state of maharashtra and ors. v. ravi prakash babulalsing parmar and anr. 2006 air scw 6093 the supreme court stated thus,the caste scrutiny committee is a quasi-judicial body. it has been set up for a specific purpose. it serves a social and constitutional purpose. it is constituted to prevent fraud on constitution. it may not be bound by the provisions of indian evidence act, but it would not be correct for the superior courts to issue directions as to how it should appreciate evidence. evidence to be adduced in a matter before a quasi-judicial body cannot be restricted to admission of documentary evidence only. it may of necessity have to take oral evidence....moreover the nature of evidence to be adduced would vary from case to case. the right of a party to adduce evidence cannot be curtailed. it is one thing to say how a quasi-judicial body should appreciate evidence adduced before it in law but it is another thing to say that it must not allow adduction of oral evidence at all.in the case of raju ramsing vasave v. mahesh deorao bhivapurkar and ors. : (2008) 9 scc 54 the supreme court stated,we do not mean to suggest that an opinion formed by the committee as regards the caste of the near relative of the applicant would be wholly irrelevant, but, at the same time, it must be pointed out that only because, by mistake or otherwise, a member of his family had been declared to be belonging to a member of the scheduled tribe, the same by itself would not be conclusive in nature so as to bind another committee while examining the case of other members of the family in some detail. if it is found that in granting a certificate in favour of a member of a family, vital evidence had been ignored, it would be open to the committee to arrive at a different finding.8. in the instant case, the record does not indicate that the petitioner or her father applied for leave to adduce oral evidence. on the other hand, written questionair format supplied to her has been filled in by giving replies wherever possible. this is more relevant when it comes to social religious and ethnic trades are concerned. if any oral evidence was led on such issues in support of the petitioners tribe claim and if the same was not considered by the committee, the petitioner could validly lay a challenge to the order of the committee on the ground that it would stand vitiated, but such a case is not made out by the petitioner. so far as the validation certificate of shri kamlakar punja naik is concerned, admittedly the said person is not a close relation of the petitioner from her fathers side. the petitioner has also relied upon the school leaving certificate of shri keru bhiru pawar issued in his favour by the mahanagarpalika shikshan mandal, nashik on 6/5/1995. firstly, the said certificate has been issued much after the petitioners caste certificate and the petitioner has failed to prove that the said shri keru pawar is her blood relation from her fathers side. the petitioners own caste certificate or school leaving certificate has no evidentiary value and same is the case of the certificates in respect of her brothers rajesh and sunil, unless, of course, any of them had received a validity certificate from the very same committee.9. the service book of the petitioners father has been called by us and we have perused the same. the petitioners father shri jagannath kashinath ruikar has also filed an affidavit before us. he joined the zilla parishad school at sarul, taluka and district nashik on 14/9/1959 in the post of assistant teacher and he came to be promoted to the post of headmaster against a post reserved for scheduled tribe on 1/1/1988 after the zilla parishad schools were taken over by the municipal corporation from 1/11/1982. on his tribal status, he unequivocally states that while joining the zilla parishad school, he was called upon to furnish his personal information in writing and while doing so, he disclosed his caste as mahadeo koli. this statement itself is an admission by the petitioners father that he did not submit any caste certificate as belonging to mahadeo koli scheduled tribe when he joined the zilla parishad school on 14/9/1959 and his caste as mahadeo koli was entered in his service record only on the basis of the written information furnished by him. his caste claim was never verified nor he had submitted a school leaving certificate to the zilla parishad in support of the information that he furnished in writing. on the basis of the said information in the service record his caste was shown as mahadeo koli and it went unchallenged. by the time he was promoted to the post of headmaster from 1/1/1988, the judgment of the supreme court in madhuri patils case was not in the field. the government of maharashtra relying upon the said judgment pronounced on 2/9/1994, issued grs on 26/10/1995, 7/3/1996, 14/7/1997 and 23/7/1997 so as to put in place a proper mechanism in the form of caste scrutiny committees to verify scheduled caste/scheduled tribes claim as well as the claims of the persons belonging to other backward classes, though caste verification mechanism by way of a single member committee was put in place as per the gr dated 23/1/1985 and subsequently the committees were made of multi members. the state legislature enacted the maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act, 2000 and it was published in the gazette on 23/5/2001 after it received an ascent of the president of india. the rules under the said act have also been framed in 2003.10. as noted in our order dated 16/10/2009 and as has been now reiterated in the affidavit filed by the petitioners father, his caste mahadeo koli came to be entered in the service record without any supporting caste certificate or school leaving certificate and the said entry was made in the service record only on the basis of the information furnished by him in writing and, therefore, despite the fact that the petitioners father derived the benefit of promotion as belonging to mahadeo koli scheduled tribe, the same cannot be relied upon to counter the school leaving certificate, which has been considered by the vigilance inquiry and relied upon by the scrutiny committee. in the school leaving certificate issued by purna primary vidhya mandir, ruhi no. 1, taluka nifhad, district nashik on 8/8/1995, the petitioners fathers caste is shown to be hindu koli. his date of birth is shown as 15/12/1932 whereas the date of joining his school is shown as 18/1/1938. he left the school on 1/5/1944 after passing the 4th standard. on the other hand, the first page of his service book, as relied upon by the petitioner, the first column is of name, the second column is of race and the third column is of residence. against second column i.e. race (in marathi caste), the service book entry shows hindu mahadeo koli. there is no entry about the religion in the said service book and, therefore, it has to be presumed that the petitioners father declared his caste as hindu mahadeo koli and such a caste does not exist in the constitution (scheduled tribes) order, 1950, pertaining to scheduled tribes and similar entry appears in the school leaving certificate issued in favour of the petitioner from time to time. again in the school leaving certificate, there is no column of religion and there is a column of caste with sub-caste and in all these certificates, the petitioners caste has been shown as hindu mahadeo koli. in the school leaving certificate of her brother sunil, his caste has been shown as hindu m koli (backward). in the affidavit furnished by the petitioners father during the course of vigilance inquiry, he clearly stated that initially his caste was recorded as hindi koli. in the said affidavit he also stated that his main caste was koli and sub-caste was mahadeo koli. he, however, stated in the affidavit that his ancestral occupation was agricultural and agricultural labour and they celebrated all hindu religion festivals. he also stated that in the wedding ceremony, koli dance was performed and valmiki rushi was an eminent saint of their caste. these replies by the petitioners father before the vigilance inquiry clearly indicated that he belongs to the koli caste which is a different social group from mahadeo koli scheduled tribe in the state of maharashtra. the full bench of this court in the case of shilpa vishnu thakur v. state of maharashtra and ors. 2009 (3) mh.l.j. 995 referred to the article by dr. robin d. tribhuwan on the anthropological perspective and more particularly to the similarities of nomenclatures between tribal and non-tribal communities. it would be appropriate to reproduce the following table of tribal and non-tribal communities:tribal communities non-tribal communities1. mahadeo koli, tokre koli 1. koli (including son koli, suryawanshimalhar koli koli, vaiti koli etc.);2. dhanwar 2. dhangar3. thakur/thakar 3. thakur (including bhat, brahmabhat,ka thakur/ka thakar thakur, kshatriya thakur, rajputma thakur/ma thakar thakur, sindhi thakur, marathathakur, pardeshi thakur);4. gond gowari 4. gowari5. mannerwarlu 5. munnurwar/mannerwar/ mannarwar6. halba/halbi 6. koshti/halba koshtithe scheduled tribes order 1950 as amended from time to time, gives at sr. nos. 28 to 30 different scheduled tribes with koli suffix, in the state of maharshtra.28. dhor koli, tokre koli29. mahadev koli, dongar koli30. malhar koliit is well known that in the state of maharashtra different sub-groups of koli caste sought to get or obtain the benefit of belonging to scheduled tribes and the scrutiny committee invariably turned down such claims. even this court in a number of cases came down heavily against such frauds.11. in the case of state of maharashtra v. ravi prakash babulalsing parmar (supra), the supreme court stated thus,the makers of the constitution laid emphasis on equality amongst citizens. constitution of india provides for protective discrimination and reservation so as to enable the disadvantaged group to come on the same platform as that of the forward community. if and when a person takes an undue advantage of the said beneficent provision of the constitution by obtaining the benefits of reservation and other benefits provided under the presidential order although he is not entitled thereto, he not only plays a fraud on the society but in effect and substance plays a fraud on the constitution. when, therefore, a certificate is granted to a person who is not otherwise entitled thereto, it is entirely incorrect to contend that the state shall be helpless spectator in the matter.12. it is well settled that when a person claims to be a member of scheduled caste or scheduled tribe, the burden of proof that he or she belongs to such caste or tribe is on him/her and this position in law has been reiterated by the apex court in the case of lillykutty v. scrutiny committee, sc & st and ors. : (2005) 8 scc 283. the record before the scrutiny committee does not indicate that the petitioner discharged this burden and whatever material was placed by her before the scrutiny committee has been considered by it along with the vigilance cell inquiry report and we do not find any error, leave alone an error apparent on the face of the record in the reasoning set out by the scrutiny committee invalidating the petitioners tribes claim. the reasons set out by the scrutiny committee are on the basis of the documents placed before it by the petitioner or by the vigilance cell. the view of the scrutiny committee to rely upon the school leaving certificate of the petitioners father to discard her claim cannot be termed as an error apparent on the face of the record and the scrutiny committee has given justifiable reasons not to rely upon the service record entry in the service book of her father. in our opinion the impugned decision of the scrutiny committee does not call for any interference under our supervisory powers.13. in the premises, the petition fails and the same is hereby dismissed, but without any order as to costs.