TaxTMI 
TaxTMI 
2008 (8) TMI 796
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....cle of the respondent No. 1, was also granted a certificate as belonging to the "Halba" community. 4. An intricate question as to whether "Koshti" is a sub-caste of "Halba" or "Halbi" came up for consideration before a Division Bench of the Bombay High Court in Milind Sharad Katware and others v. State of Maharashtra and others [1987 Mh. L.J. 572]. In the said judgment, the Division Bench inter alia referred to the report of a Joint Committee headed by Dr. A.K. Chandra which had been submitted to the Parliament on 17.11.1969 to opine: "...It does appear from the report that representation sent to the Joint Committee by Halba Koshti Samaj was circulated to the members and that the Committee had visited Nagpur. However, it does not appear that either evidence is taken on the matter as has been done in the cases of several representations about other Committees or that even without that a conclusion is reached that Halba - Koshti does not form part and parcel of Tribe "Halba' Halbi". It is thus clear that the enquiries undertaken by several authorities and Courts so far and the enquiry which we are making now in these petitions do not amount to amending the list in any manner whatso....
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....tted its report in the year 1985. In its report, the Expert Committee stated: "The Halba/ Halbi Tribe, as per the Constitution (Scheduled Tribes) Order, (1950) read with Part - IX of the second schedule to the Scheduled Castes, Scheduled Tribes Order (Amendment) Act (1976) has been declared a scheduled Tribe in the State of Maharashtra and has appeared at Sr. No. 19 in the schedule. The members of the caste known as Koshti/ Halba -Koshti, residing in particular in the Vidarbha areas, claim that they belong to the said Halba/ Halbi tribe and are entitled to obtain caste certificates as belonging to the Halba/ Halbi scheduled Tribe. Their contention is that the word "Koshti" is indicative of their traditional occupation, namely, weaving and it is not connected with the caste. Therefore, they should get all the facilities and concessions extended to the Scheduled Tribes. On the other hand, the Halba/ Halbi tribals, particularly of the Bhandara and Gadchiroli districts and their tribal representatives in the Legislative Assembly, Maharashtra, represented to the Government that persons belonging to the Halba/ Koshti/ Koshti caste from the Vidarbha region claim to belong to the Halba/ H....
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....galwari Prathmik Shala, Umrer, District Nagpur. In the enquiry with the school it was revealed that the father of the candidate had studied in this school from 1946 to 1950 and his caste has been recorded as Koshti, at Sr. No. 3100. This shows that the caste of the candidate's father was recorded as Koshti. This is pretty old record pertaining to period prior to the passing of the Constitution Scheduled Tribe Order 1950 and obviously carries more evidential value than any other subsequent evidence because there was no provocation at that time for noting wrong caste claims. Thus, from an important documentary evidence it has been established that the caste of the candidate's father is Koshti. The caste of the father determines the caste of his progency in Hindu society. When it has proved that caste of the candidate's father is Koshti, the caste of the candidate is bound to be Koshti and he cannot claim to be belonging to Halba, Scheduled Tribe." The Committee considered all the documents including the school registers. It went into the question as to whether the respondent No. 1 followed the traits of the members of the Scheduled Tribe to hold: "After considering all the aforesai....
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....duled Tribes Order if they are not so specifically mentioned in it. 3. A notification issued under clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under clause (1) of Article 342 only by Parliament by law and by no other authority." However, it was directed: "38. Respondent 1 joined the medical course for the year 1985-86. Almost 15 years have passed by now. We are told he has already completed the course and may be he is practising as a doctor. In this view and at this length of time it is for nobody's benefit to annul his admission. Huge amount is spent on each candidate for completion of medical course. No doubt, one Scheduled Tribe candidate was deprived of joining medical course by the admission given to Respondent 1. If any action is taken against Respondent 1, it may lead to depriving the service of a doctor to the society on whom public money has already been spent. In these circumstances, this judgment shall not affect the degree obtained by him and his practi....
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....ertificate. And those officers/ employees who are not having caste validity certificate their record pertaining to Caste Certificate is to be sent to verification committee. But the office heads has not looked into the matter specifically and acted accordingly. You are communicated once again vide this letter that those officer/ employee in your office which are ST there caste validity certificate is to be submitted to establishment branch without fail or regarding his submission and validity certificate the report of action taken at your level is to be communicated immediately. Thereafter officer/ employee (Backward class) Scheduled Caste, Scheduled Tribe, Vimukta Jati, Nomadic Tribe, Other Backward Special Backward etc. in the cadre such officer/ employee are required to submit their caste validity certificate to this office immediately. The officer/ employee who has not submitted validity certificate or not having validity certificate is required to submit the record through office to the caste scrutiny committee and the report of the same should be furnished so that all the backward class officer/ employee's validity certificate can be attached to their service book. In this ....
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....other relatives had been declared as such, no exception to the impugned judgment can be taken and for the aforementioned purpose, the caste certificates granted to the father of the respondent No. 1, his uncle and the cousin could be relied upon. The learned counsel would urge that it would be incorrect to contend that this Court in Milind had overturned the decision of the High Court that the test of scrutiny as regards the traits of a member of the Scheduled Tribe should not be on the premise that his other near relatives had been granted the certificates. In support of the said contention, our attention has been drawn to the following questions framed by this Court in Milind : "(1) Whether at all, it is permissible to hold inquiry and let in evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the entry concerned in the Constitution (Scheduled Tribes) Order, 1950? (2) Whether "Halba-Koshti" caste is a subtribe within the meaning of Entry 19 (Halba/Halbi) of the said Scheduled Tribes Order relating to the State of Maharashtra, eve....
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....ied in a large number of cases. Some of the judgments had been accepted by the Government. It is in the aforementioned backdrop, this Court in Milind opined: "31. The High Court applied the doctrine of stare decisis on the grounds that the decisions referred to above were considered judgments; even the Government accepted their correctness in the courts; the State Government independently took the same view after repeated deliberations for a number of years; taking a contrary view would lead to chaos, absurd contradictions resulting in great public mischief. In our view, the High Court was again wrong in this regard. The learned Senior Counsel for Respondent 1 was not in a position to support this reasoning of the High Court and rightly so in our opinion. Among the decisions listed above except the first two decisions, all other decisions were rendered subsequent to two Constitution Bench judgments (supra) of this Court. The first two judgments were delivered in 1956 and 1957. In this view, the High Court was not right in stating that the decisions were rendered during a long span of over 34 years by different Benches of different ....
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....ircular dated 31-7-1981 that the School Leaving Certificate was conclusive of the caste. This interpretation was plainly inconsistent with the instructions and resolutions stated above. Further, it may be also noticed here that the Joint Parliamentary Committee did not make any recommendation to include "Halba-Koshti" in the Scheduled Tribes Order. At any rate the Scheduled Tribes Order must be read as it is until it is amended under clause (2) of Article 342. In this view also, the circulars/resolutions/instructions will not help Respondent 1 in any way. Even otherwise, as already stated above, on facts found and established the authorities have rejected the claim of Respondent 1 as to the caste certificate. The power of the High Court under Article 227 of the Constitution of India, while exercising the power of judicial review against an order of inferior Tribunal being supervisory and not appellate, the High Court would be justified in interfering with the conclusion of the Tribunal, only when it records a finding that the inferior Tribunal's conclusion is based upon exclusion of some admissible evidence or consideration of some inadmissible evidence or the inferior Tribunal ha....
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....a statutory committee, proceeded to enquire into the matter, the truth came out. 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 at some details. If it is found that in granting a certificate in favour of a member of a family, vital evidences had been ignored, it would be open to the Committee to arrive at a different finding. 21. We reiterate that to fulfill the constitutional norms, a person must belong to a tribe before he can stake his claim to be a member of a notified Scheduled Tribe. When an advantage is obtained by a person in violation of the constitutional scheme, a constitutional fraud is committed. 22. Contention of Mr. Savant must be tested on the premise as to whether the principle of res judicata applies in a case of this nature. Principle of....
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....rocedural principles like, estoppel, waiver or res judicata." [See also Dwarka Prasad Agarwal (D) By LRs. and Anr. v. B.D. Agarwal and Ors. ( 2003 ) 6 SCC 230, Union of India v. Pramod Gupta (2005) 12 SCC 1 and National Institute of Technology and Ors. v. Niraj Kumar Singh (2007) 2 SCC 481] 25. So far as the second principle, noticed by us, is concerned, there is no dearth of authority. Fraud vitiates all solemn acts. When an order has been obtained by practising fraud on the court, it would be a nullity. In Ganpatbhai Mahijibhai Solanki v. State of Gujarat and Ors. [(2008) 3 SCC 556], this Court held: "It is now a well settled principle that fraud vitiates all solemn acts. If an order is obtained by reason of commission of fraud, even the principles of natural justice are not required to be complied with for setting aside the same." It was further observed: "In T. Vijendradas and Anr. v. M. Subramanian and Ors., this Court held; 21. ...When a fraud is practiced on a court, the same is rendered a nullity. In a case of nullity, even the principles of natural justice are not required to be c....
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....eneficent 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. 24. We, with respect, fail to appreciate the approach of the High Court as it proceeded on the premise that once the surname of the respondent tallied with the name of the tribe, which finds mention in one or the other entries of the Schedule appended to the 1976 Order, the same must be treated to be sacrosanct and no enquiry in relation to the correctness of the said certificate can be gone into by any committee. The observations and directions of the High Court, in our considered opinion, were not only contrary to the judgments of the Court but also fall short of the ground realities. 25. Mr Arvind Savant, the learned Senior Counsel, would place strong reliance on a decision of this Court in Palghat Jilla Thandan Samudha....
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....We are unable to accept the said contention. Apart from the fact that the petition for leave against the order dated 11.08.1988 was dismissed on the ground of delay alone, the appellant herein is affected by the impugned judgment of the High Court dated 26.06.2006. When the order dated 11.08.1988 was passed, the judgment of the Bombay High Court was prevailing. Appellant was not in picture at that point of time. A question, furthermore, arises as to whether in a disposed of writ petition, a separate application was maintainable although cause of action therefor arose subsequently. It is urged that the said application was filed for implementing the earlier order of the court. It could not be so as in the meantime the Caste Scrutiny Committee had already taken a decision. Subsequent events of grave importance had taken place which could not be ignored. The Central Government had issued circulars. The Maharashtra Pollution Control Board had also issued circulars. Appellant's claim for grant of certificate was rejected in the year 1997. If the respondent No. 1 was aggrieved thereby, he could have filed an appropriate writ petition before the High Court immediately thereafter. He did....
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....d that the appellant has no locus standi. We did not do so because as a constitutional court we felt it to be our duty to lay down the law correctly so that similar mistakes are not committed in future. Apart from the general power of the superior courts vested in it under Article 226 or Article 32 of the Constitution of India, this Court is bestowed with a greater responsibility by the makers of the Constitution in terms of Articles 141 and 142 of the Constitution. Decisions are galore wherein this Court unhesitatingly exercised such jurisdiction to resort to the creative interpretation to arrive at a just result in regard to the societal and/ or public interest. We thought that it is a case of that nature. 32. We may notice that recently such a legal principle has been considered by this court in Indian Bank v. Godhara Nagrik Cooperative Credit Society Ltd. and Another [2008 (7) SCALE 363]. This Court, however, while laying down the law suitably mould the relief so as to do complete justice between the parties. 33. In Sandeep Subhash Parate v. State of Maharashtra and Others [(2006) 7 SCC 501], this Court in the matter of grant of relief applied the doctrine of proportionality....