# 10 S.C.R. 994 AYMUBKHAN NOORKHAN PATHAN v. THE STATE OF MAHARASHTRA & ORS

- **Citation:** [2012] 10 S.C.R. 994
- **Court:** Supreme Court of India
- **Decided:** 2012-11-08
- **Case number:** Civil Appeal No. 7728 of 2012
- **Bench:** Dr. B.S. Chauhan, Jagdish Singh Khehar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/10-s-c-r-994-aymubkhan-noorkhan-pathan-v-the-state-of-maharashtra-ors-27962
- **Pages:** 42

## Headnote

Maharashtra Scheduled Castes, Scheduled Tribes, Dec Notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other
Backward Category (Regulation of Issuance and Verification
of) Caste Certificate Act, 2000:
Caste certificate - Appellant given employment on the
0 basis of a caste certificate showing that he belonged to Bhil
Tadvi (Scheduled Tribe) - Validity certificate issued by Caste
Scrutinity Committee - Complaint by respondent no. 5 that
appellant obtained employment by misrepresentation - High
Court, in writ petition, directing Scrutinity Committee to hold
E de novo inquiry with respect to appellant's caste certificate -
Held: Caste certificates issued by holding proper enquiry, in
accordance with duly prescribed procedure, would not require
any further verification by the Scrutiny Committee - However,
in the instant case, considering the seriousness of the
allegations, as the Scrutiny Committee has already
F conducted an inquiry and the only grievance of the appellant
is that there has been non-compliance with the principles of
natural justice, it is directed that before the submission of any
report by the Scrutiny Committee, application of appellant for
calling the witnesses for cross-examination must be disposed
G of, and he must be given a fair opportunity to cross-examine
the witnesses, who have been examined before the Committee
- Further, as respondent no. 5 has not been pursuing the
matter in a bonafide manner, and has not raised any public
H
994
AYAAUBKHAN NOORKHAN PATHAN v. STATE OF 995
MAHARASHTRA & ORS.
interest, rather he abused the process of the court only to
A
harass the appellant, he is restrained from intervening in the
matter any further, and also from remaining a party to it, and
he is also liable to pay costs to the tune of Rs. one lakh -
Evidence Act, 1872 - s.114, l/ustration(e) - Maxim "Omnia
praesumuntur rite esse actan.
B
Constitution of India, 1950:
Art. 226 - Writ petition in public interest - Maintainaility
of - Held: There must be a judicially enforceable right
available for enforcement, on the basis of which writ jurisdiction
C
is resorted to - The legal right that can be enforced must
ordinarily be the right of the petitioner himself, who complains
of infraction of such right and approaches the co,urt -
Whenever any public interest is invoked, the court must
examine the case to ensure that there is, in fact, genuine
D
public interest involved - Court must maintain strict vigHance
to ensure that there is no abuse of the process of court -
Supreme Court has consistently held that filing· of public
interest litigation is not permissible so far as service matters
are concerned - In the instant case, respondent no.5 does
E
not belong to Scheduled Tribes category, but he has been
pursuing the matter from one court to another - His conduct
is found to be reprehensible, and without any sense of
responsibility - Therefore, the Court is highly doubtful as
regards his bonafides - He has, therefore, disentitled himself
F
from appearing before any court, or Committee, so far as the
instant matter is concerned - Locus standi - Party - "Person
aggrieved"- Public interest litigation - Service law.
Evidence Act, 1872:
s.3 - 'Evidence' - Affidavit - Held: An affidavit is not
evidence within the meaning of s. 3 and the same can be used
G
as "evidence" only if, for sufficient reasons, court passes an
order undar 0. 19 CPC- Thus, the filing of an affidavit of one's
own statement, in one's own favour, cannot be regarded as
H
996
SUPREME COURT REPORTS
[2012) 10 S.C.R.
A sufficient evidence for any court or tribunal, on the basis of
which it can come to a conclusion as regards a particular factsituation - Code of Civil Procedure," 1908 - 0.19 and 0. 18,
n: 4 and 5 - Affidavits.
8
Natural Justice:
Cross-examination - Held: Is part of principles of natural
justice - Not only should the opportunity of cross-examination
be made available, but it should be one of effective crossexamination, so as to meet the requirement of p

## Text

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A
B
[2012) 10 S.C.R. 994
AYMUBKHAN NOORKHAN PATHAN
v.
THE STATE OF MAHARASHTRA & ORS.
(Civil Appeal No. 7728 of 2012)
NOVEMBER 8, 2012
[DR. B.S. CHAUHAN AND JAGDISH
SINGH KHEHAR, JJ.]
Maharashtra Scheduled Castes, Scheduled Tribes, Dec Notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other
Backward Category (Regulation of Issuance and Verification
of) Caste Certificate Act, 2000:
Caste certificate - Appellant given employment on the
0 basis of a caste certificate showing that he belonged to Bhil
Tadvi (Scheduled Tribe) - Validity certificate issued by Caste
Scrutinity Committee - Complaint by respondent no. 5 that
appellant obtained employment by misrepresentation - High
Court, in writ petition, directing Scrutinity Committee to hold
E de novo inquiry with respect to appellant's caste certificate -
Held: Caste certificates issued by holding proper enquiry, in
accordance with duly prescribed procedure, would not require
any further verification by the Scrutiny Committee - However,
in the instant case, considering the seriousness of the
allegations, as the Scrutiny Committee has already
F conducted an inquiry and the only grievance of the appellant
is that there has been non-compliance with the principles of
natural justice, it is directed that before the submission of any
report by the Scrutiny Committee, application of appellant for
calling the witnesses for cross-examination must be disposed
G of, and he must be given a fair opportunity to cross-examine
the witnesses, who have been examined before the Committee
- Further, as respondent no. 5 has not been pursuing the
matter in a bonafide manner, and has not raised any public
H
994
AYAAUBKHAN NOORKHAN PATHAN v. STATE OF 995
MAHARASHTRA & ORS.
interest, rather he abused the process of the court only to
A
harass the appellant, he is restrained from intervening in the
matter any further, and also from remaining a party to it, and
he is also liable to pay costs to the tune of Rs. one lakh -
Evidence Act, 1872 - s.114, l/ustration(e) - Maxim "Omnia
praesumuntur rite esse actan.
B
Constitution of India, 1950:
Art. 226 - Writ petition in public interest - Maintainaility
of - Held: There must be a judicially enforceable right
available for enforcement, on the basis of which writ jurisdiction
C
is resorted to - The legal right that can be enforced must
ordinarily be the right of the petitioner himself, who complains
of infraction of such right and approaches the co,urt -
Whenever any public interest is invoked, the court must
examine the case to ensure that there is, in fact, genuine
D
public interest involved - Court must maintain strict vigHance
to ensure that there is no abuse of the process of court -
Supreme Court has consistently held that filing· of public
interest litigation is not permissible so far as service matters
are concerned - In the instant case, respondent no.5 does
E
not belong to Scheduled Tribes category, but he has been
pursuing the matter from one court to another - His conduct
is found to be reprehensible, and without any sense of
responsibility - Therefore, the Court is highly doubtful as
regards his bonafides - He has, therefore, disentitled himself
F
from appearing before any court, or Committee, so far as the
instant matter is concerned - Locus standi - Party - "Person
aggrieved"- Public interest litigation - Service law.
Evidence Act, 1872:
s.3 - 'Evidence' - Affidavit - Held: An affidavit is not
evidence within the meaning of s. 3 and the same can be used
G
as "evidence" only if, for sufficient reasons, court passes an
order undar 0. 19 CPC- Thus, the filing of an affidavit of one's
own statement, in one's own favour, cannot be regarded as
H
996
SUPREME COURT REPORTS
[2012) 10 S.C.R.
A sufficient evidence for any court or tribunal, on the basis of
which it can come to a conclusion as regards a particular factsituation - Code of Civil Procedure," 1908 - 0.19 and 0. 18,
n: 4 and 5 - Affidavits.
8
Natural Justice:
Cross-examination - Held: Is part of principles of natural
justice - Not only should the opportunity of cross-examination
be made available, but it should be one of effective crossexamination, so as to meet the requirement of principles of
C natural justice.
The appellant was appointed in 1990 as a Senior
Clerk in the Municipal Corporation against the vacancy
reserved for Scheduled Tribes, on the basis of a caste
0 certificate issued by the competent authority in his favour
that he belonged to Bhil Tadvi (Scheduled Tribe). The sad
caste certificate was referred to the Caste Certificate
Scrutiny Committee, which issued a validity certificate
stating that the appellant belonged to Bhil Tadvi
E (Scheduled Tribe). In 2009, respondent no. 5 filed a
complaint before the Scrutiny Committee for recalling the
validity certificate on the ground that the appellant
professed the religion of Islam and, as such, he could not
be a Scheduled Tribe and he obtained the employment
by way of misrepresentation. The Scrutiny Committee
F rejected the application by order dated 13.3.2009
observing that it had no power to recall or review a caste
validity certificate. Respondent no. 5 filed a writ petition
before the High Court seeking to quash the order dated
13.3.2009 and to direct the Scrutiny Committee to hold de
G novo inquiry with respect to appellant's caste certificate.
H
The High Court set aside the order dated 13.3.2009
passed by Scrutiny Committee and remitted the matter to
it.
AYAAUBKHAN NOORKHAN PATHAN v. STATE OF
997
MAHARASHTRA & ORS.
In the instant appeal, it was contended for the
A
appellant that respondent no. 5, being member of General
category, had no locus to challenge appellant's caste
certificate and, therefore, the High Court erred in directing
the Scrutiny Committee to entertain the complaint of
respondent no. 5; that despite the directions given by the
B
Supreme Court, the Scrutiny Committee failed to comply
with the principles of natural justice, as the appellant was
denied the opportunity to cross-examine the witnesses
and no order was passed on his application for recalling
the witnesses for the purpose of cross-examination.
c
Disposing of the appeal, the Court
HELD:
'Person aggrieved:'
1.1. A writ petition under Art. 226 of the Constitution
is maintainable either for the purpose of enforcing a
statutory or legal right, or when there is a complaint by
D
the petitioner that there has been a breach of statutory
duty on the part of the Authorities. Therefore, there must
E
be a judicially enforceable right available for enforcement,
on the basis of which writ jurisdiction is resorted to.
Court can of course, enforce the performance of a
statutory duty by a public body, using its writ jurisdiction
at the behest of a person, provided that such person
F
satisfies the court that he has a legal right to insist on
such performance. The existence of such right is a
condition precedent for invoking the writ jurisdiction of
the courts. It is implicit in the exercise of such
extraordinary jurisdiction that the relief prayed for must G
be one to enforce a legal right. lnfact, the existence of
such right is the foundation of the exercise of the said
jurisdiction by the court. The legal right that can be
enforced must ordinarily be the right of the petitioner
himself, who complains of infraction of such right and
H
998
SUPREME COURT REPORTS
(2012) 10 S.C.R.
A approaches the court for relief as regards the same.
[para 7] [1013-A-E]
State of Orissa v. Madan Gopal Rungta, 1952 SCR 28 =
AIR 1952 SC 12; Saghir Ahmad & Anr. v. State of U.P., 1955
B
SCR 707 = AIR 1954 SC 728; Calcutta Gas Company
(Proprietary) Ltd. v. State of West Bengal & Ors., 1962 Suppl.
SCR 1 = AIR 1962 SC 1044; Rajendra Singh v. State of
Madhya Pradesh, 1996 (4) Suppl. SCR 393 =AIR 1996 SC
2736; and Tamilnad Mercantile Bank Shareholders Welfare
C Association (2) v. S.C. Sekar & Ors., 2008 (17 ) SCR 85 = '
(2009) 2 sec 784 - referred to.
1.2. The expression, "person aggrieved" does not
include a person who suffers from a psychological or an
imaginary injury; a person aggrieved must, therefore,
D necessarily be one, whose right or interest has been
adversely affected or jeopardised.
It is a settled legal
proposition that a stranger cannot be permitted to meddle
in any proceeding, unless he satisfies the Authority/Court
that he falls within the category of aggrieved persons.
E Only a person who has suffered, or suffers from legal
injury can challenge the act/action/order etc. in a court of
law. [para 7-8] [1012-G-H; 1013-G-HJ
Shanti Kumar R. Chanji v. Home Insurance Co. of New
York, 1975 (1) SCR 550 =AIR 1974 SC 1719; and State of
F Rajasthan & Ors. v. Union of India & Ors., 1978 (1) SCR 1 =
AIR 1977 SC 1361; Anand Sharadchandra Oka v. University
of Mumbai, 2008 (2) SCR 297 = AIR 2008 SC 1289;
Subhash Babu v. State of A. P. 2011 (9) SCR 453 =AIR
2011 SC 3031; Charanjit Lal Chowdhury v. The Union of India
G & Ors., 1950 SCR 869 =AIR 1951 SC 41; Sunil Batra (JI) v.
Delhi Administration, 1980 (2) SCR 557 = AIR 1980 SC
1579; Mn:-. Neelima Priyadarshini v. State of Bihar, AIR 1987
SC 2021; Simranjit Singh Mann v. Union of India, 1992
Suppl. SCR 592 = AIR 1993 SC 280; Karamjeet Singh v.
H Union of India, 1992 (1) Suppl. SCR 898 = AIR 1993 SC'
AYAAUBKHAN NOORKHAN PATHAN v. STATE OF 999
MAHARASHTRA & ORS.
284; and Kishore Samrite v. State of U.P. & Ors., JT (2012)
A
10 SC 393 - referred to.
1.3. Whenever any public interest is invoked, the
court must examine the case to ensure that there is, in
fact, genuine public interest involved. The court must 8
maintain strict vigilance to ensure that there is no abuse
of the process of court, and should make an earnest
endeavour to take up those cases, where the subjective
purpose of the lis justifies the need for it. Even as regards
the filing of a public interest litigation, this Court has
C
consistently held that such a course of action is not
permissible so far as service matters are concerned. In
view of the decisions of the Court, the law on the point
can be summarised to the effect that a person who raises
a grievance, must show how he has suffered legal injury.
Generally, a stranger having no right whatsoever to any
D
post or property, cannot be permitted to intervene in the
affairs of others.[para 12-13 and 15) (1015-B-E; 1016-D]
P.S.R. Sadhanantham v. Arunachalam & Anr., 2009 (16)
SCR 111 = AIR 1980 SC 856; Dafip Singh v. State of U.P. &
E
Ors., 2011 (6) SCR 403 = (2010) 2 SCC 114; State of
Uttarancha/ v. Ba/want Singh Chaufa/ & Ors., 2010 (1)
SCR 678 = (2010) 3 SCC 402; Amar Singh v. Union of India
& Ors. 2011 (6) SCR 403 = (2011) 7 SCC 69; Dr. Duryodhan
Sahu & Ors. v. Jitendra Kumar Mishra & Ors., 1998 (1) Suppl.
F
SCR 77 =AIR 1999 SC'114; Dattaraj Natthuji Thaware v.
State of Maharashtra, 2004 (6) Suppl. SCR 900 = AIR 2005 .
SC 540; Neetu v. State of Punjab & Ora., 2007 (1) SCR 223 =
AIR 2007 SC 758; and Ghulam Qadir v. Special Tribunal &
Ors., 2001 (3) Suppl. SCR 504 = (2002) 1 SCC 33 - referred
G
to.
Locus standi:
2.1. It is evident that under ordinary circumstances,
a third person, having no concern with the case _at hand,
H
1000
SUPREME COURT REPORTS
[2012) 10 S.C.R.
A cannot claim to have any /ocus-standi to raise any
grievance whatsoever. However, in the exceptional
circumstances if the actual persons aggrieved, because
of ignorance, illiteracy, inarticulation or poverty, are
unable to approach the court, and a public spirited
B person approaches the court, then the court may
examine the issue and even if his bonafides are doubted,
but the issue raised by him, in the opinion of the court,
requires consideration, the court may proceed suo-motu,
in such respect. [para 22] [1019-C-E]
c
D
Vinoy Kumar v. State of U.P., 2001 (2) SCR 1196 = AIR
2001 SC 1739; Ravi Yashwant Bhoir v. District Collector,
Raigad & Ors., (2012) 4 SCC 407; K. Manjusree v. State of
Andhra Pradesh & Anr., 2008 (2) SCR 1025 = (2008) 3 SCC
512 - relied on
Balbir Kaur & Anr. v. Uttar Pradesh Secondary Education
Services Selection Board, Allahabad & Ors., 2008 (9)
SCR 130 = (2008) 12 SCC 1; Raju Ramsingh Vasave v.
Mahesh Deorao Bhiavapurkar & Ors., 2008 (12 ) SCR 992
E = (2008) 9 SCC 54; and Manohar Joshi v. State of
Maharashtra & Ors., (2012) 3 SCC 619 - referred to.
2.2. In the instant case, as respondent no.5 does not
belong to the Scheduled Tribes category, the garb
adopted by him, of serving the cause of Scheduled Tribes
F candidates who might have been deprived of their
legitimate right to be considered for the post, must be
considered in order to oetermine whether he is, in fact,
in a legitimate position to lay any claim before any forum,
whatsoever. The conduct of respondent no. 5, who has
G been pursuing the said matter from one court to another,
is found to be reprehensible, and without any sense of
responsibility, as he could not submit any satisfactory
response to the directions issued by this Court on
29.10.2012. Therefore, this Court is highly doubtful as
H
AYAAUBKHAN NOORKHAN PATHAN v. STATE OF 1001
MAHARASHTRA & ORS.
re_gards his bonafides. He has, therefore, disentitled
A
himself from appearing either before this Court, or any
other court, or Committee, so far as the instant case is
concerned. [para 16. and 44] [1016-E-F; 1031-B-D]
Cross-examination as part of the principles of natural
8
justice:
3.1. A Constitution Bench of this Court in Chintaman
Sadashiva Vaishampayan's case, held that the rules of
natural justice, require that a party must be given the
opportunity to adduce all relevant evidence upon which
C
he relies and further that the evidence of the opposite
party should be taken in his presence, and that he should
be given the opportunity of cross-examining the
witnesses examined by that party. Not providing the said
opportunity to cross-examine witnesses, would violate
D
the principles of natural justice. This Court is of the
considered opinion that the right of cross-examination is
an integral part of the principles of natural justice. [para
23 and 25) [1019-G-H; 1020-A, HJ
E
State of M.P. v. Chintaman Sadashiva Vaishampayan,
AIR 1961 SC 1623; Union of India v. T.R. Varma,
1958 SCR 499 =AIR 1957 SC 882; Meenglas Tea Estate v.
Workmen, 1964 SCR 165 = AIR 1963 SC 1719; Mis.
Kesoram Cotton Mills Ltd. v. Gangadhar & Ors., 1964 SCR
809 =AIR 1964 SC 708; New India Assurance Company Ltd
F
. v. Nusli Neville Wadia and Anr., 2007 (13) SCR 598 =AIR
2008 SC 876; Rachpal Singh & Ors. v. Gurrnit Singh & Ors.,
AIR 2009 SC 2448; Biecco Lawrie & Anr. v. State of West
Bengal & Anr., 2009 (11) SCR 972 =AIR 2010 SC 142;
State of Uttar Pradesh v. Saroj Kumar Sinha, 2010 (2)
G
SCR 326 = AIR 2010 SC 3131; and Lakshman Exports Ltd.
v. Collector of Central Excise (2005) 10 SCC 634 - relied on
K.L. Tripathi v. State Bank of India & Ors., AIR 1984 SC
273; Union of India v. P.K. Roy AIR 1968 SC 850; and
H
1002
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A Channabasappa Basappa Happali v. State of Mysore, AIR
1972 SC 32; Transmission Corpn. of A.P. Ltd. v. Sri Rama
Krishna Rice Miff, AIR 2006 SC 1445 ; Rajiv Arora v. Union
of India & Ors., AIR 2009 SC 1100 - referred to.
8
3.2. In the instant case, the appellant raised the
grievance that, the evidence of a large number of persons
had been recorded by the Scrutiny Committee behind his
back, and that he had not been given an opportunity to
cross-examine the witnesses that were examined by the
C other side and, therefore, he was unable to lead a proper
defence. He filed an application for the purpose of
recalling 3 witnesses named therein so that he may
cross-examine them. He ·also filed another application on
the same day, seeking a period of 30 days time, to file his
reply as is required within the provisions of r.12(8) of the
D Rules 2003, and yet another application for the purpose
of calling of records from the office of the Tehsildar, to
ascertain the genuineness of the certificate impugned.
None of the said applications have been decided. In
pursuance of the order of this Court, the original record
E was produced, but it does not indicate that the appellant
was, in fact, given an opportunity to cross-examine the
witnesses, or that all the said witnesses were examined
in the presence of the appellant. [para 40 and 42] [1029B-E-G-H]
F Affidavit - whether evidence within the meaning of
Section 3 of the Evidence Act, 1872:
4.1. It is a settled legal proposition that an affidavit is
not evidence within the meaning of s. 3 of the Evidence
G Act, 1872. Affidavits are, therefore, not included within the
purview of the definition of "evidence" as has been given
in s.3 of the Evidence Act, and the same can be used as
"evidence" only if, for sufficient reasons, the court passes
an order under Order XIX of the Code of Civil Procedure,
H 1908. Thus, the filing of an affidavit.of one's own
AYAAUBKHAN NOORKHAN PATHAN v.'STATE OF 1003
MAHARASHTRA & ORS.
statement, in one's own favour, cannot be regarded as
A
sufficient evidence for any court or tribunal, on the basis
of which it can come to a conclusion as regards a
particular fact-situation. [para 31) [1023-B-D]
Sudha Devi v. M.P. Narayanan & Ors., 1988 ( 3) SCR
B
756 = AIR 1988 SC 1381; and Range Forest Officer v. S. T.
Hadimani, 2002 (1) SCR 1080 = AIR 2002 SC 1147; Mis
Bareilly Electricity Supply Co. Ltd. v. The Workmen & Ors.,
1972 (1) SCR 241 = AIR 1972 SC 330; Needle Industries
(India) Ltd. & Ors. v. N./.N.l.H. Ltd. & Ors., 1981 (3) SCR 698
C
=AIR 1981 SC 1298; Ramesh Kumar v. Kesho Ram, AIR
1992 SC 700; Standard Chartered Bank v. Andhra Bank
Financial Services Ltd. & Ors., 2006 (2) Suppl. SCR 1 =
(2006) 6 sec 94 - referred to
4.2. However, in a case where the deponent is D
available for cross-examination, and opp9rtunity is given
to the other side to cross-examine him, the affidavit can
be relied upon. Such view stands fully affirmed
particularly, in view of the amended provisions of Order
XVIII, Rules 4 and 5 CPC. In certain other circumstances,
E
in order to avoid technicalities of procedure, the
legislature, or a court/tribunal, can even lay down a
procedure to meet the requirement of compliance with
the principles of natural justice and, thus, the case will
be examined in the light of those statutory rules etc. [para
F
36) [1025-D-F]
5.1. It is evident from the judgment in Daya Ram, that
the purpose of issuing directions in Km. Madhuri Patil,
was only to examine those cases, where caste certificates
had been issued without conducting any prior enquiry,
G
on the basis of self- affidavits regarding one's caste
alone, and that the said directions were not at all
applicable where a legislation governing or regulating the
grant of caste certificates exists, and where caste
H
1004
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A certificates are issued after due and proper enquiry. Caste
certificates issued by holding proper enquiry, in
accordance with duly prescribed procedure, would not
require any further verification by the scrutiny committee.
[para 39] [1028-F-H; 1029-A]
8
Km. Madhuri Patil v. Addi. Commissioner, Tribal
Development, 1994 (3) Suppl. SCR 50 = (1994) 6 SCC
241; and Daya Ram v. Sudhir Batham & Ors., (2012) 1 SCC
333 - referred to.
C
5.2. In the instant case, the Scrutiny Committee in
ordinary circumstances examined the matter and after
investigation through its Vigilance Cell and considering
all the documentary evidence on record and after being
satisfied, granted the caste verification certificate in 2000.
D Section 114 111.(e) of the Evidence Act provided for the
court to pronounce that the decision taken by the
Scrutiny Committee has been done in regular course and
the caste certificate has been issued after due verification.
Such a presumption is based on legal maxim "Omnia
E praesumuntur rite esse acta" i.e. all acts are presumed to
have rightly and regularly been done, and it can be
rebutted by adducing appropriate evidence. Mere
statement made in the written statement/petition is not
enough to rebut the presumption. The onus of rebuttal
F
li~s upon the person who alleges that the act had not
been regularly performed or the procedure required
under the law had not been followed. A very strong
material/evidence is required to rebut the presumption.
Once respondent no. 5 had challenged the caste
G certificate, he must have acted seriously and brought the
material before the Scrutiny Committee to show that the
earlier decision was improbable or factually incorrect.
[para 45] [1031-D-H; 1032-A-B]
Gopa/ Narain v. State of UP. & Anr., 1964 SCR 869 =
H
AYAAUBKHAN NOORKHAN PATHAN v."STATE OF 1003
MAHARASHTRA & ORS.
statement, in one's own favour, cannot be regarded as
A
sufficient evidence for any court or tribunal, on the basis
of which it can come to a conclusion as regards a
particular fact-situation. [para 31] (1023-B-D]
Sudha Devi v. M.P. Narayanan & Ors., 1988 ( 3) SCR
8
756 =AIR 1988 SC 1381; and Range Forest Officer v. S. T.
Hadimani, 2002 (1) SCR 1080 = AIR 2002 SC 1147; Mis
Bareil/y Electricity Supply Co. Ltd. v. The Workmen & Ors.,
1972 (1) SCR 241 = AIR 1972 SC 330; Needle Industries
(India) Ltd. & Ors. v. N.l.N.l.H. Ltd. & Ors., 1981 (3) SCR 698
C
=AIR 1981 SC 1298; Ramesh Kumar v. Kesho Ram, AIR
1992 SC 700; Standard Chartered Bank v. Andhra Bank
Financial Services Ltd. & Ors., 2006 (2) Suppl. SCR 1 =
(2006) 6 sec 94 - referred to
4.2. However, in a case where the deponent is D
available for cross-examination, and opp9rtunity is given
to the other side to cross-examine him, the affidavit can
be relied upon. Such view stands fully affirmed
particularly, in view of the amended provisions of Order
XVIII, Rules 4 and 5 CPC. In certain other circumstances,
E
in order to avoid technicalities of procedure, the
legislature, or a court/tribunal, can even lay down a
procedure to meet the requirement of compliance with
the principles of natural justice and, thus, the case will
be examined In the light of those statutory rules etc. (para
F
36] [1025-D-F]
5.1. It is evident from the judgment in Daya Ram, that
the purpose of issuing directions in Km. Madhuri Patil,
was only to examine those cases, where caste certificates
had been issued without conducting any prior enquiry,
G
on the basis of self- affidavits regarding one's caste
alone, and that the said directions were not at all
applicable where a legislation governing or regulating the
grant of caste certificates exists, and where caste
H
1004
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A certificates are issued after due and proper enquiry. Caste
certificates issued by holding proper enquiry, in
accordance with duly prescribed procedure, would not
require any further verification by the scrutiny committee.
[para 39] [1028-F-H; 1029-A]
B
Km. Madhuri Patil v. Addi. Commissioner, Tribal
Development, 1994 (3) Suppl. SCR 50 = (1994) 6 SCC
241; and Daya Ram v. Sudhir Batham & Ors., (2012) 1 SCC
333 - referred to.
C
5.2. In the instant case, the Scrutiny Committee in
ordinary circumstances examined the matter and after
investigation through its Vigilance Cell and considering
all the documentary evidence on record and after being
satisfied, granted the caste verification certificate in 2000.
D Section 114 111.(e) of the Evidence Act provided for the
court to pronounce that the decision taken by the
Scrutiny Committee has been done in regular course and
the caste certificate has been issued after due verification.
Such a presumption is based on legal maxim "Omnia
E praesumuntur rite esse acta" i.e. all acts are presumed to
have rightly and regularly been done, and it can be
rebutted by adducing appropriate evidence. Mere
statement made in the written statement/petition is not
enough to rebut the presumption. The onus of rebuttal
F
li~s upon the person who alleges that the act had not
been regularly performed or the procedure required
under the law had not been followed. A very strong
material/evidence is required to rebut the presumption.
Once respondent no. 5 had challenged the caste
G certificate, he must have acted seriously and brought the
material before the Scrutiny Committee to show that the
earlier decision was improbable or factually incorrect.
[para 45] [1031-D-H; 1032-A-B]
Gopal Narain v. State of U.P. & Anr., 1964 SCR 869 =
H
AYAAUBKHAN NOORKHAN PATHAN v. STATE OF 1005
MAHARASHTRA & ORS.
AIR 1964 SC 370; Narayan Govind Gavate & Ors. v. State
A
of Maharashtra & Ors., 1977 (1) SCR 763 =AIR 1977 SC
183; Karewwa & Ors.v. Hussensab Khansaheb Wajantri &
Ors., AIR 2002 SC 504; Engineering Kamgar Union v.
Electro Steels Castings Ltd. & Anr., 2004 (1) Suppl.
SCR 301 = (2004) 6 SCC 36; Mohd. Shahabuddin v. State
B
of Bihar, 2010 (3) SCR 911 = (2010) 4 SCC 653; Punjab
State Electricity Board & Anr. v. Ashwani Kumar, 201 O (7)
SCR 1158 = (2010) 7 SCC 569; M. Chandra v. M.
Thangmuthu & Anr., AIR 2010 (11) SCR 38 = 2011 SC 146;
and R. Ramachandran Nair v. Deputy Superintendent, c
Vigilance Police 2011 (3) SCR 1054 = (2011) 4 SCC 395 -
referred to.
5.3. Considering the seriousness of the allegations,
as the Scrutiny Committee has already conducted an
inquiry in relation to this matter, and the only grievance
D
of the appellant is that there has been non-compliance
with the principles of natural justice, and the fact that the
applications filed by him, were not decided upon, it is
directed that before the submission of any report by the
Scrutiny Committee, the application filed by the appellant
E
for calling the witnesses for cross-examination must be
disposed of, and he must be given a fair opportunity to
cross-examine the witnesses, who have been examined
before the Committee. The Scrutiny Committee is further
directed to pass appropriate orders in accordance with
F
the law thereafter. In case, the Scrutiny Committee has
already taken a decision, the same being violative of the
principles of natural justice, would stand vitiated. [para
46] [1032-E-G]
5.4. However, considering the fact that respondent
G
no. 5 has not been pursuing the matter in a bonafide
manner, and has not raised any public interest, rather he
abused the process of the court only to harass the
appellant, he is restrained from intervening in the matter
H
1006
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A any further, and also from remaining a party to it, and he
is also liable to pay costs to the tune of Rs. one lakh, to
the District Collector, who would deposit the said amount
in the account of the Supreme Court Legal Services
Committee. [para 47] [1032-H; 1033-A-C]
B
Case Law Reference:
1952 SCR 28
referred to
para 7
1955 SCR 707
referred to
para 7
c
1962 Suppl. SCR 1
referred to
para 7
1996 (4) Suppl. SCR 393
referred to
para 7
2008 (17) SCR 85
referred to
para 7
D
1975 (1) SCR 550
referred to
para 8
1978 (1) SCR 1
referred to
para 8
2008 (2) SCR 297
referred to
para 9
2011 (9) SCR 453
referred to
para 10
E
1950 SCR 869
referred to
para 11
1980 (2) SCR 557
referred to
para 11
AIR 1987 SC 2021
referred to
para 11
F
1992 Suppl. SCR 592
referred to
para 11
1992 (1) Suppl. SCR 898
referred to
para 11
2012 (10) JT 393
referred to
para 11
G
AIR 1980 SC 856
referred to
para 12
2009 (16) SCR 111
referred to
para 12
2010 (1) SCR 678
referred to
para 12
H
2011 (6) SCR 403
referred to
para 12
AYAAUBKHAN NOORKHAN PATHAN v. STATE OF 1007
MAHARASHTRA & ORS.
1998 (1) Suppl. SCR77
referred to
para 13
A
2004 (6) Suppl. SCR900
referred to
para 13
2007 (1) SCR 223
referred to
para 13
2001 (3) Suppl. SCR 504
referred to
para 14
8
(2012) 4 sec 407
referred to
para 16
2008 (2) SCR 1025
relied on
para 18
2008 (9) SCR 130
referred to
para 19 c
2008 (12) SCR 992
referred to
para 20
(2012) 3 sec 619
referred to
para 20
2001 (2) SCR 1196
relied on
para 21
AIR 1961 SC 1623
relied on
para 23
D
1958 SCR 499
relied on
para 23
1964 SCR 809
relied on
para 23
1964SCR165
relied on
para 23
E
2009 AIR 2448
relied on
para 23
2009 (11) SCR 972
relied on
para23
2010 (2) SCR 326
relied on
para 23
F
2005 (1 O) sec 634
relied on
para 24
2007 (13) SCR 598
relied on
para 25
AIR 1984 SC 273
referred to
para 26
AIR 1968 SC 850
referred to
para 26
G
AIR 1972 SC 32
referred to
para 26
AIR 2006 SC 1445
referred to
para 27
AIR 2009 SC 1100
referred to
para 29
H
1008
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
1988 (3) SCR 756
2002 (1) SCR 1080
1972 (1) SCR 241
referred to
referred to
referred to
referred to
para 31
para 31
para 32
para 33
para 34
para 35
para 37
para 38
para 45
para 45
para 45
para 45
para 45
para 45
para 45
para 45
B
c
1981 (3) SCR 698
1992 AIR 700
referred to
2006 (2) Suppl. SCR 1
referred to
1994 (3) Suppl. SCR 50
referred to
(2012) 1 sec 333
1964 SCR 869
1977 (1) SCR 763
D
2002 AIR 504
referred to
referred to
referred to
referred to
2004 (1) Suppl. SCR 301
referred to
2010 (3) SCR 911
referred to
E
2010 (7) SCR 1158
2010 (11) SCR38
2011 (3) SCR 1054
referred to
referred to
referred to
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7728 of 2012.
G
H
From the Judgment & Order dated 22.09.2009 of the High
Court of Judicature of Bombay, Bench at Aurangabad in Writ
Petition No. 3129 of 2009.
A;V. Savant, Sudhanshu S. Choudhari, Mahesh
Deshmukh, Rajshri Dubey for the Appellant.
Anant Bhushan Kanade, Kailash Pandey, Dharam Bir Raj
Vohra, Shankar Chillarge, Asha Gopalan Nair, Aniruddha P.
AYAAUBKHAN NOORKHAN PATHAN v. STATE OF 1009
MAHARASHTRA & ORS.
Mayee, Charudatta M., Lawyer's Knit & Co. for the
A
Respondents.
The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. This appeal has been preferred
against the impugned judgment and order dated 22.9.2009,
B
passed by the High Court of Bombay (Aurangabad Bench) in
Writ Petition No.3129 of 2009, filed by respondent no.5,
challenging the caste certificate of the appellant.
2. The facts and circumstances giving rise to this appeal c
are as follows:
A. The competent authority in the present case, issued a
caste certificate dated 19.10.1989, after following due
procedure, in favour of the appellant stating that he does in fact,
0
belong to Bhil Tadvi (Scheduled Tribes). On the basis of the said
certificate, the appellant was appointed as Senior Clerk in the
Municipal Corporation of Aurangabad (hereinafter referred to
as the, 'Corporation') on 6.2.1990, against the vacancy
reserved for persons under the Scheduled Tribes category. The
Corporation referred the caste certificate of the appellant for
E
the purpose of verification, to the Caste Certificate Scrutiny
Committee (hereinafter referred to as the, "Scrutiny
Committee"). The Vigilance Cell attached to the Scrutiny
Committee, upon conducting vigilance enquiry, vide order
dated 29.12.1998, found that the appellant did, in fact, belong
F
to Bhil Tadvi (Scheduled Tribes) and thus, the said certificate
was verified. The Scrutiny Committee, on the basis of the said
report and also other documents filed by the appellant in
support of his case, issued a validity certificate, dated
23.5.2000 to the appellant belonging to Bhil Tadvi (Scheduled
G
Tribes). After the lapse of a period of 9 years, respondent no.5
filed complaint dated 9.1.2009, through an advocate before the
Scrutiny Committee, for the purpose of recalling the said validity
certificate, on the ground that the appellant had obtained
employment by way of misrepresentation, and that he does not
H
1010
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A actually belong to the Scheduled Tribes category. In fact, the
appellant professed the religion of Islam and therefore, could
not be a Scheduled Tribe.
B. The Scrutiny Committee rejected the said application
B vide order dated 13.3.2009, observing that it had no power to
recall or to review a caste validity certificate, as there is no
statutory provision that provides for the same.
C. Aggrieved, respondent no.5 challenged the order dated
13.3.2009, by filing Writ Petition No.3129 of 2009 before the
C High Court of Bombay (Aurangabad Bench), praying for
quashing of the order dated 13.3.2009, and directing the
Scrutiny Committee to hold de novo enquiry, with respect to
the appellant's caste certificate. The appellant contested the
said petition, denying all the allegations made by respondent
D no.5. Vide its impugned judgment and order dated 22.9.2009,
the High Court disposed of the said writ petition without going
into the merits of the case. However, while doing so, the High
Court set aside the order dated 13.3.2009, and remitted the
matter to the Scrutiny Committee, directing it to hear all the
E parties concerned in accordance with law, as regards the
allegations made by respondent no.5 in the complaint. It further
directed the Committee to decide the said matter within a
period of 6 months.
F
Hence, this present appeal.
3. Before proceeding further, it may also be pertinent to
refer to certain subsequent developments.
During the pendency of this appeal, this Court vide order
G dated 20.11.2009, granted a stay with respect to the operation
of the aforementioned impugned judgment. Vide order dated
6.1.2012, the said interim order was modifieq, to the extent that
the Scrutiny Committee would re-examine the case on merit,
without being influenced by earlier proceedings before it, and
H by giving adequate opportunity to the parties to lead evidence
AYAAUBKHAN NOORKHAN PATHAN v. STATE OF 1011
MAHARASHTRA & ORS. [DR. B.S. CHAUHAN, J.]
in support of their respective cases after which, the Scrutiny A
Committee would submit its report to this Court within a period
of 3 months.
4. Shri A.V. Savant, learned Senior counsel, appearing for
the appellant has submitted that respondent no.5 does not 8
belong to any reserved category, infact, he belongs to the
General category, and hence, he has no right or locus standi,
to challenge the appellant's certificate. Thus, the High Court
committed an error by directing the Scrutiny Committee to
entertain the complaint filed by respondent no.5. It has further
been submitted that, despite the directions given by this Court, C
the Scrutiny Committee failed to ensure compliance with the
principles of natural justice, as the appellant was denied the
opportunity to cross-examine witnesses, and no order was
passed with respect to his application for recalling such
witnesses for the purpose of cross-examination, which has no D
doubt, resulted in the grave miscarriage of justice. The affidavit
filed by the Scrutiny Committee did not clarify, or make any
specific statement with respect to whether or not the appellant
was permitted to cross-examine witnesses. It further, did not
clarify whether the application dated 28.2.2012, filed by the
E
appellant to re-call witnesses for the purpose of crossexamination, has been disposed of. Moreover, the procedure
adopted by the Scrutiny Committee is in contravention of the
statutory requirements, as have been specified under the
Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified
F
Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward
Category (Regulation of Issuance and Verification of) Caste
Certificate Act, 2000 (Maharashtra Act No. XXlll of 2001
(hereinafter referred to as the, 'Act 2001'), and the Rules, 2003
which are framed under the Act 2001 and therefore, all G
proceedings hereby stand vitiated. The appellant placed
reliance upon several documents which are all very old and
therefore, their authenticity should not have been doubted. The
earlier report submitted by the Vigilance Cell dated
29.12.1998, clearly stated that the traits and characteristics of H
1012
SUPREME COURT REPORTS
[2012) 10 S.C.R.
A
the appellant's family, matched with those of Bhil Tadvi
(Scheduled Tribes). The action of respondent no.5 is therefore,
completely malifide and is intended, solely to harass the
appellant, and the High Court committed grave error in not
deciding the issue related to the locus standi of respondent no.5
B
in relation to him filing a complaint in the first place, as the said
issue was specifically raised by the appellant. Therefore, the
present appeal deserves to be allowed.
5. Per contra, Shri Shankar Chillarge, learned counsel
appearing for the Scrutiny Committee, has made elaborate
C submissions, in support of the impugned judgment and
subsequent proceedings. Mr. Udaya Kumar Sagar and Ms.
Bina Madhavan, learned counsel appearing for respondent
no.5, have also supported the impugned judgment of the High
Court and has further submitted that even though respondent
D
no.5, does not belong to the Scheduled Tribes category, he
most certainly could file a complaint against the appellant, at
such a belated stage, as the appellant had obtained
employment in 1989, by way of mis-representation and fraud.
Respondent no.5, being a public spirited person has espoused
E
the cause of the real persons who have been deprived of their
right to be considered for the said post occupied by the
appellant. Respondent No. 5 has also filed affidavits of relevant
persons before the Scrutiny Committee, to prove his
allegations. Thus, the present appeal lacks merit and is liable
F
to be dismissed.
G
H
6. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
Person aggrieved :
7. It is a settled legal proposition that a stranger cannot
be permitted to meddle in any proceeding, unless he satisfies
the Authority/Court, that he falls within the category of aggrieved
persons.
AYAAUBKHAN NOORKHAN PATHAN v. STATE OF 1013
MAHARASHTRA & ORS. [DR. B.S. CHAUHAN, J.]
Only a person who has suffered, or suffers from legal
A
injury can challenge the acVaction/order etc. in a court of law.
B
A writ petition under Article 226 of the Constitution is
maintainable either for the purpose of enforcing a statutory or
legal right, or when there is a complaint by the appellant that
there has been a breach of statutory duty on the part of the
Authorities. Therefore, there must be a judicially enforceable
right available for enforcement, on the basis of which writ
jurisdiction is resorted to. The Court can of course, enforce the
performance of a statutory duty by a public body, using its writ
jurisdiction at the behest of a person, provided that such person c
satisfies the Court that he has a legal right to insist on such
performance. The existence of such right is a condition
precedent for invoking the writ jurisdiction of the courts. It is
implicit in the exercise of such extraordinary jurisdiction that,
the relief prayed for must be one to enforce a legal right.
0
lnfact, the existence of such right, is the foundation of the
exercise of the said jurisdiction by the Court. The legal
right that can be enforced must ordinarily be the right of the
appellant himself, who complains of infraction of such right and
approaches the Court for relief as regards the same. {Vide :
E
State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12;
Saghir Ahmad & Anr. v. State of U.P., AIR 1954 SC 728;
Calcutta Gas Company (Proprietary) Ltd. v. State of West
Bengal & Ors., AIR 1962 SC 1044; Rajendra Singh v. State
of Madhya Pradesh, AIR 1996 SC 2736; and Tami/nad
Mercantile Bank Shareholders Welfare Association (2) v. S. C.
F
Sekar & Ors., (2009) 2 SCC 784).
8. A "legal rig hf, means an entitlement arising out of legal
rules. Thus, it may be defined as an advantage, or a benefit
conferred upon a person by the rule of law. The expression,
G
"person aggrieved" does not include a person who suffers from
a psychological or an imaginary injury; a person aggrieved must
therefore, necessarily be one, whose right or interest has been
adversely affected or jeopardised. (Vide: Shanti Kumar R.
Chanji v. Home Insurance Co. of New York, AIR 1974 SC
H
1014 SUPREME COURT REPORTS
[2012] 10 S.C.R.
A 1719; and State of Rajasthan & Ors. v. Union of India & Ors.,
AIR 1977 SC 1361).
9. In Anand Sharadchandra Oka v. University of Mumbai,
AIR 2008 SC 1289, a similar view was taken by this Court,
8 observing that, if a person claiming relief is not eligible as per
requirement, then he cannot be said to be a person aggrieved
regarding the election or the selection of other persons.
c
10. In A. Subhash Babu v. State of A.