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APEX COURT OVERRULED THE CLAUSE 13 OF KUMARI MADHURI PATILS CASE WHEREIN THE THEN APEX COURT GAVE NEARLY 15 DIRECTIONS IN UPHOLDING CASTE CERTIFICATES = Respondents 1 to 3 claimed that they belonged to `Dhobi’ caste, a scheduled caste in Bhopal district of Madhya Pradesh, and secured appointment to posts reserved for Schedule Castes. The appellant, who was the President of the Schedule Caste Employees Association, made a complaint to the Sub-Divisional Magistrate that respondents 1 to 3 did not belong to any scheduled caste and had produced false caste certificates. = These two appeals have been referred by a two Judge bench, to a larger bench by order of reference dated 31.3.2010 doubting the legality and validity of the directions issued in Madhuri Patil. We extract below the relevant portion of the order of reference: “In Kumari Madhuri Patit’s case, as many as fifteen directions were given, which, in our opinion, are all legislative in nature. In our opinion, if a Court feels that some law should be made, then it can only make a recommendation to that effect to the legislature but it cannot itself legislate. It is upto the legislature to accept the recommendation or not. =we hold that the second sentence of clause 13 providing that where the writ petition is disposed of by a single judge, no further appeal would lie against the order of the division bench (even when there is a vested right to file such intra-court appeal) and will only be subject to a special leave under Article 136, is not legally proper and therefore, to that extent, is held to be not a good law. The second sentence of direction No.(13) stands overruled.

Baiga tribe family in Balaghat district Madhya...

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 Reportable 

 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO.3467 of 2005

 WITH

 CIVIL APPEAL NO.3468 of 2005

Dayaram ... Appellant

Vs.

Sudhir Batham & Ors. ... Respondents

 J U D G M E N T

R.V. RAVEENDRAN, J.

 Respondents 1 to 3 claimed that they belonged to `Dhobi' caste, a 

scheduled caste in Bhopal district of Madhya Pradesh, and secured 

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

the President of the Schedule Caste Employees Association, made a 

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

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

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

 2

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

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

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

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

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

verified by the State Level Screening Committee in accordance with the 

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

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

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

complaint against respondents 1 to 3 before the State Level Screening 

Committee. 

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

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

holding that respondents 1 to 3 did not belong to `Dhobi' caste and directed 

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

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

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

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

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

scheduled caste. Consequently he quashed the orders of termination of 

 3

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

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

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

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

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

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

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

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

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

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

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

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

The Reference

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

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

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

relevant portion of the order of reference:

 "In Kumari Madhuri Patit's case, as many as fifteen directions were 

 given, which, in our opinion, are all legislative in nature. In our opinion, if 

 a Court feels that some law should be made, then it can only make a 

 recommendation to that effect to the legislature but it cannot itself 

 legislate. It is upto the legislature to accept the recommendation or not.

 4

 In Kumari Madhuri Patil case, the two Judge Bench of this Court in 

 direction No.13 observed as follows: 

 "The High Court would dispose of these cases as 

 expeditiously as possible within a period of three months. 

 In case, as per its procedure, the writ petition/miscellaneous 

 petition/matter is disposed of by a single Judge, then no 

 further appeal would lie against that order to the Division 

 Bench but subject to special leave under Article 136."

 In our opinion, the direction that no further appeal will lie against the 

 decision of a Single Judge of the High Court to a division bench was 

 clearly not valid. It is well settled that an appeal is a creature of the statute 

 and if the statute or the Letters Patent of the High Court or rules provide 

 for an appeal, then an appeal will lie. For instance, the Court cannot say 

 that no second appeal under section 100 CPC will be entertained in future 

 by the High Court. That will be really abolishing section 100 CPC and this 

 can only be done by the legislature and not by the courts. An appeal can 

 be created by the legislature and abolished by the legislature. The court 

 can neither creates an appeal nor abolish it.

 Since the aforesaid direction in Kumari Madhuri Patil case (supra), are in 

 our opinion not valid, we are of the opinion that they require 

 reconsideration by a larger bench."

The directions in Madhuri Patil

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

tribes and persons not belonging to scheduled tribes were snatching away 

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

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

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

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

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

candidates were denied admission to educational institutions or 

 5

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

and that ineligible or spurious candidates who falsely gained entry resorted 

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

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

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

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

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

caste certificates issued should be scrutinised with utmost expedition and 

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

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

directions, relevant portions of which are extracted below: 

 1. The application for grant of social status certificate shall be made to 

 the Revenue-Sub-Divisional Officer and Deputy Collector or Deputy 

 Commissioner and the certificate shall be issued by such Officer rather 

 than at the Officer, Taluk or Mandal level.

 2. The parent, guardian or the candidate, as the case may be, shall file 

 an affidavit duly sworn and attested by a competent gazetted officer or 

 non-gazetted officer with particulars of castes and sub-castes, tribe, 

 tribal community, parts or groups of tribes or tribal communities, the 

 place from which he originally hails from and other particulars as may 

 be prescribed by the concerned Directorate.

 3. Application for verification of the caste certificate by the Scrutiny 

 Committee shall be filed at least six months in advance before seeking 

 admission into educational institution or an appointment to a post.

 4. All the State Governments shall constitute a Committee of three 

 officers, namely, (I) an Additional or Joint Secretary or any officer 

 higher in rank of the Director of the concerned department, (II) the 

 Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as 

 the case may, and (III) in the case of Scheduled Castes another officer 

 6

who has intimate knowledge in the verification and issuance of the 

social status certificates. In the case of Scheduled Tribes, the Research 

Officer who has intimated knowledge in identifying the tribes, tribal 

communities, parts of or groups of tribes or tribal communities.

5. Each Directorate should constitute a vigilance cell consisting of 

Senior Deputy Superintendent of Police in over all charge and such 

number of Police Inspectors to investigate into the social status claims. 

.................

6. The Director concerned, on receipt of the report from the vigilance 

officer if he found the claim for social status to be "not genuine" or 

"doubtful" or spurious or falsely or wrongly claimed, the Director 

concerned should issue show cause notice supplying a copy of the 

report of the vigilance officer to the candidate by a registered post with 

acknowledgement due or through the head of the concerned 

educational institution in which the candidate is studying or 

employed........... After giving such opportunity either in person or 

through counsel, the Committee may make such inquiry as it deems 

expedient and consider the claims vis-a-vis the objections raised by the 

candidate or opponent and pass an appropriate order with brief reasons 

in support thereof.

7. In case the report is in favour of the candidate and found to be 

genuine and true, no further action need be taken except where the 

report or the particulars given are procured or found to be false or 

fraudulently obtained and in the latter event the same procedure as is 

envisaged in para 6 be followed.

8. Notice contemplated in para 6 should be issued to the parents/ 

guardian also in case candidate is minor to appear before the 

Committee with all evidence in his or their support of the claim for the 

social status certificates.

9. The inquiry should be completed as expeditiously as possible 

preferably by day-to-day proceedings within such period not 

exceeding two months. If after inquiry, the caste Scrutiny Committee 

finds the claim to be false or spurious, they should pass an order 

cancelling the certificate issued and confiscate the same. It should 

communicate within one month from the date of the conclusion of the 

proceedings the result of enquiry to the parent/guardian and the 

applicant.

10. In case of any delay in finalizing the proceedings, and in the 

meanwhile the last date for admission into an educational institution or 

appointment to an officer post, is getting expired, the candidate be 

admitted by the Principal or such other authority competent in that 

behalf or appointed on the basis of the social status certificate already 

 7

 issued or an affidavit duly sworn by the parent/guardian/candidate 

 before the competent officer or non-official and such admission or 

 appointment should be only provisional, subject to the result of the 

 inquiry by the Scrutiny Committee.

 11. The order passed by the Committee shall be final and 

 conclusive only subject to the proceedings under Article 226 of the 

 Constitution.

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

 lie.

 13. The High Court would dispose of these cases as expeditiously 

 as possible within a period of three months. In case, as per its 

 procedure, the writ petition/Miscellaneous petition/matter is 

 disposed of by a Single Judge, then no further appeal would lie 

 against that order to the Division Bench but subject to special 

 leave under Article 136.

 14. In case, the certificate obtained or social status claimed is found to 

 be false, the parent/guardian/the candidate should be prosecuted for 

 making false claim. If the prosecution ends in a conviction and 

 sentence of the accused, it could be regarded as an offence involving 

 moral turpitude, disqualification for elective posts or offices under the 

 State or the Union or elections to any local body, legislature or the 

 Parliament.

 15. As soon as the finding is recorded by the Scrutiny Committee 

 holding that the certificate obtained was false, on its cancellation and 

 confiscation simultaneously, it should be communicated to the 

 concerned educational institution or the appointing authority by 

 registered post with acknowledgement due with a request to cancel the 

 admission or the appointment. The principal etc. of the educational 

 institution responsible for making the admission or the appointing 

 authority, should cancel the admission/appointment without any 

 further notice to the candidate and debar the candidate for further 

 study or continue in office in a post.

 [emphasis supplied]

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

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

avoidable expenditure for the State on the education of the candidate 

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

 8

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

constitutional objectives intended for the benefit and advancement of the 

genuine scheduled castes/scheduled tribes are not defeated by unscrupulous 

persons.

Questions for consideration 

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

consideration: 

 (i) Whether directions 1 to 15 in Madhuri Patil are impermissible, 

 being legislative in nature?

 (ii) Whether directions 11 and 12 in Madhuri Patil, which exclude the 

 jurisdiction of the civil court to entertain suits challenging the 

 decisions of the Caste Scrutiny Committees, violate section 9 of the 

 Code of Civil Procedure?

 (iii) Whether direction 13 in Madhuri Patil barring intra-court 

 appeals against decisions of Single Judges in writ petitions, when such 

 appeals are specifically provided for in State enactments/Letters 

 Patents, is valid and proper? 

R
 e: Question (i) directions (1) to (15) in K
 umari Madhuri Patil in general 

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

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

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

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

 9

invariably stepped in and evolved new mechanisms to protect and enforce 

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

remedies beyond those traditionally available under writ jurisdiction by 

issuing appropriate directions or guidelines to protect the fundamental rights 

and make them meaningful. 

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

observed : 

 "The judiciary has therefore a socio-economic destination and a creative 

 function. It has, to use the words of Glanville Austin, to become an arm of 

 the socio-economic revolution and perform an active role calculated to 

 bring social justice within the reach of the common man. It cannot remain 

 content to act merely as an umpire but it must be functionally involved in 

 the goal of socio-economic justice."

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

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

this Court further observed thus : 

 "Now this approach to the judicial function may be all right for a stable 

 and static society but not for a society pulsating with urges of gender 

 justice, worker justice, minorities justice, dalit justice and equal justice 

 between chronic un-equals. Where the contest is between those who are 

 socially or economically unequal, the judicial process may prove 

 disastrous from the point of view of social justice, if the Judge adopts a 

 merely passive or negative role and does not adopt a positive and creative 

 approach. The judiciary cannot remain a mere bystander or spectator but it 

 must become an active participant in the judicial process ready to use law 

 in the service of social justice through a pro-active goal oriented 

 approach." 

 "What is necessary is to have Judges who are prepared to fashion new 

 tools, forge new methods, innovate new strategies and evolve a new 

 jurisprudence, who are judicial statesmen with a social vision and a 

 10

 creative faculty and who have, above all, a deep sense of commitment to 

 the Constitution with an activist approach and obligation for 

 accountability, not to any party in power nor to the opposition nor to the 

 classes which are vociferous but to the half hungry millions of India who 

 are continually denied their basic human rights. We need Judges who are 

 alive to the socio-economic realities of Indian life, who are anxious to 

 wipe every tear from every eye, who have faith in the constitutional values 

 and who are ready to use law as an instrument for achieving the 

 constitutional objectives." 

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

upon the role of this Court thus: 

 "But the question then arises as to what is the power which may be 

 exercised by the Supreme Court when it is moved by an "appropriate" 

 proceeding for enforcement of a fundamental right. It is not only the high 

 prerogative writs of mandamus, habeas corpus, prohibition, quo warranto 

 and certiorari which can be issued by the Supreme Court but also writs in 

 the nature of these high prerogative writs and therefore even if the 

 conditions for issue of any of these high prerogative writs are not fulfilled, 

 the Supreme Court would not be constrained to fold its hands in despair 

 and plead its inability to help the citizen who has come before it for 

 judicial redress, but would have power to issue any direction, order or 

 writ including a writ in the nature of any high prerogative writ. This 

 provision conferring on the Supreme Court power to enforce the 

 fundamental rights in the widest possible terms shows the anxiety of the 

 Constitution makers not to allow any procedural technicalities to stand in 

 the way of enforcement of fundamental rights. The Constitution makers 

 clearly intended that the Supreme Court should have the amplest power to 

 issue whatever direction, order or writ may be appropriate in a given case 

 for enforcement of a fundamental right."

 (emphasis supplied)

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

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

fundamental rights in areas with legislative vacuum. After detailed 

consideration, this Court held: 

 11

 "In view of the above, and the absence of enacted law to provide for the 

 effective enforcement of the basic human right of gender equality and 

 guarantee against sexual harassment and abuse, more particularly against 

 sexual harassment at work places, we lay down the guidelines and norms 

 specified hereinafter for due observance at all work places or other 

 institutions, until a legislation is enacted for the purpose. This is done in 

 exercise of the power available under Article 32 of the Constitution for 

 enforcement of the fundamental rights and it is further emphasised that 

 this would be treated as the law declared by this Court under 

 Article 141 of the Constitution."

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

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

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

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

practice which has taken firm roots in our constitutional jurisprudence and 

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

legislation to cover the field. Consequently this Court issued various 

directions with the following preamble: 

 "As pointed out in Vishakha (supra), it is the duty of the executive to fill 

 the vacuum by executive orders because its field is co-terminus with that 

 the legislature, and where there is inaction even by the executive for 

 whatever reason, the judiciary must step in, in exercise of its 

 constitutional obligations under the aforesaid provisions to provide a 

 solution till such time as the legislature acts to perform its role by 

 enacting proper legislation to cover the field.

 59. On this basis, we now proceed to give the directions enumerated 

 hereafter for rigid compliance till such time as the legislature steps in to 

 substitute them by proper legislation. These directions made under 

 Article 32 read with Article 142 to implement the rule of law wherein the 

 concept of equality enshrined in Article 14 is embedded, have the force of 

 law under Article 141 and by virtue of Article 144 it is the duty of all 

 12

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

 Court."

 (emphasis supplied)

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

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

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

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

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

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

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

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

issued guidelines and directions in several cases for safeguarding, 

implementing and promoting the fundamental rights, in the absence of 

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

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

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

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

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

labour].

 13

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

a Constitution Bench of this Court held:

 "Indeed this Court is not a court of restricted jurisdiction of only dispute-

 settling. It is well recognized and established that this court has always 

 been a law maker and its role travels beyond merely dispute settling. It is 

 a "problem solver in the nebulous provisions dealing with the subject 

 matter of a given case cannot be altogether ignored by this Court, while 

 making an order under Article 142. Indeed, these constitutional powers 

 cannot, in any way, be controlled by any statutory provisions but at the 

 same time these powers are not meant to be exercised when their exercise 

 may come directly in conflict with what has been expressly provided for in 

 a statute dealing expressly with the subject."

 (emphasis supplied)

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

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

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

constitutionally accepted affirmative action, the directions given by this Court 

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

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

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

neither re-wrote the Constitution nor resorted to `judicial legislation'. The 

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

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

elected legislatures have not expressed themselves. Benjamin Cardozo in his 

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

 14

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

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

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

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

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

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

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

truly entitled to affirmative action benefits. 

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

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

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

should not unjustifiably try to perform executive or legislative functions and 

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

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

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

These observations no doubt, deserve acceptance. These observations were 

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

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

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

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

 15

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

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

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

exceptional circumstances where the situation forcefully demands it in the 

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

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

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

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

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

interests of weaker sections are adversely affected due to unscrupulous acts 

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

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

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

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

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

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

not of any assistance. 

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

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

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

 16

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

candidates secured the benefits of reservation and the bogus candidates were 

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

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

chose to make an appropriate law.

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

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

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

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

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

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

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

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

Section 9 of the Code of Civil Procedure (`Code' for short) provides that 

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

said section is extracted below : 

 "The Courts shall (subject to the provisions herein contained) have 

 jurisdiction to try all suits of a civil nature excepting suits of which their 

 cognizance is either expressly or impliedly barred."

 17

16. In Vankamamidi Venkata Subba Rao vs. Chatlapalli Seetharamaratna 

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

section 9 thus : 

 "When a legal right is infringed, a suit would lie unless there is a bar 

 against entertainment of such civil suit and the civil Court would take 

 cognizance of it. Therefore, the normal rule of law is that Civil Courts 

 have jurisdiction to try all suits of civil nature except those of which 

 cognizance is either expressly or by necessary implication excluded..... 

 Courts generally construe the provisions strictly when jurisdiction of the 

 civil courts is claimed to be excluded. However, in the development of 

 civil adjudication of civil disputes, due to pendency of adjudication and 

 abnormal delay at hierarchical stages, statutes intervene and provide 

 alternative mode of resolution of disputes with less expensive but 

 expeditious disposal.......It is also an equally settled legal position that 

 where a statute gives finality to the orders of the special tribunal, the civil 

 court's jurisdiction must be held to be excluded, if there is adequate 

 remedy to do what the civil court would normally do in a suit. Where 

 there is no express exclusion, the examination of the remedies and the 

 scheme of the particular Act to find out the intendment becomes necessary 

 and the result of the inquiry may be decisive. In the latter case, it is 

 necessary that the statute creates a special right or liability and provides 

 procedure for the determination of the right or liability and further lays 

 down that all questions about the said right or liability shall be determined 

 by the Tribunal so constituted and whether remedies is normally 

 associated with the action in civil Courts or prescribed by the statutes or 

 not. Therefore, each case requires examination whether the statute 

 provides right and remedies and whether the scheme of the Act is that the 

 procedure provided will be conclusive and thereby excludes the 

 jurisdiction of the civil Court in respect thereof."

 (emphasis supplied)

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

Rajasthan State Road Transport Corporation v. Bal Mukund Bairwa 

(2009) 4 SCC 299 as under:

 "Section 9 of the Code is in enforcement of the fundamental principles 

 of law laid down in the maxim Ubi jus ibi remedium. A litigant, thus, 

 having a grievance of a civil nature has a right to institute a civil suit in a 

 competent civil court unless its cognizance is either expressly or 

 18

 impliedly barred by any statute. Ex facie, in terms of Section 9 of the 

 Code, civil courts can try all suits, unless barred by statute, either 

 expressly or by necessary implication.."

 (emphasis supplied)

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

the circumstances wherein civil court jurisdiction could be held to be 

excluded. They are: 

 "(1) Where the statute gives a finality to the orders of the special tribunals, 

 the Civil Court's jurisdiction must be held to be excluded if there is 

 adequate remedy to do what the Civil Courts would normally do in a suit. 

 Such provision, however, does not exclude those cases where the 

 provisions of the particular Act have not been complied with or the 

 statutory tribunal has not acted in conformity with the fundamental 

 principles of judicial procedure.

 (2) Where there is an express bar of the jurisdiction of the court, an 

 examination of the scheme of the particular Act to find the adequacy or 

 the sufficiency of the remedies provided may be relevant but is not 

 decisive to sustain the jurisdiction of the civil court."

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

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

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

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

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

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

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

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

 19

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

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

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

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

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

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

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

of the court is the `statute', and therefore the scheme can expressly or 

impliedly bar cognizance of such suits. This is because the `statute' which 

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

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

substituted by the `quasi-legislative' stop-gap scheme created by the 

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

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

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

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

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

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

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

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

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

 20

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

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

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

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

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

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

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

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

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

Research Officer who has intimate knowledge in identifying tribes, 

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

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

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

have any `judicial' mind, the only remedy available for the aggrieved person 

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

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

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

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

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

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

as under : 

 21

 "The question then is whether the approach adopted by the high court in 

 not elaborately considering the case is vitiated by an error of law. High 

 Court is not a court of appeal to appreciate the evidence. The Committee 

 which is empowered to evaluate the evidence placed before it when 

 records a finding of fact, it ought to prevail unless found vitiated by 

 judicial review of any High Court subject to limitations of interference 

 with findings of fact. The Committee when considers all the material facts 

 and records a finding, though another view, as a court of appeal may be 

 possible it is not a ground to reverse the findings. The court has to see 

 whether the committee considered all the relevant material placed before it 

 or has not applied its mind to relevant facts which have led the committee 

 ultimately record the finding. Each case must be considered in the 

 backdrop of its own facts."

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

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

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

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

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

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

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

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

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

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

causing severe miscarriage of justice. 

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

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

 22

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

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

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

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

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

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

certificates. 

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

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

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

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

certificate is received by the scrutiny committee, its vigilance cell 

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

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

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

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

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

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

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

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

 23

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

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

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

candidate for caste status, and passes appropriate orders. The scrutiny 

committee is not an adjudicating authority like a Court or Tribunal, but an 

administrative body which verifies the facts, investigates into a specific 

claim (of caste status) and ascertains whether the caste/tribal status claimed 

is correct or not. Like any other decisions of administrative authorities, the 

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

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

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

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

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

scheduled tribes were being taken away by bogus candidates claiming to 

belong to scheduled castes and scheduled tribes, this Court directed 

constitution of such scrutiny committees, to provide an expeditious, 

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

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

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

legislature makes appropriate legislation in regard to verification of claims 

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

 24

verification of caste certificates already obtained by candidates who seek the 

benefit of reservation, relying upon such caste certificates. 

23. Having regard to the scheme for verification formulated by this Court 

in Madhuri Patil, the scrutiny committees carry out verification of caste 

certificates issued without prior enquiry, as for example the caste certificates 

issued by Tehsildars or other officers of the departments of Revenue/Social 

Welfare/Tribal Welfare, without any enquiry or on the basis of self-

affidavits about caste. If there were to be a legislation governing or 

regulating grant of caste certificates, and if caste certificates are issued after 

due and proper inquiry, such caste certificates will not call for verification 

by the scrutiny committees. Madhuri Patil provides for verification only to 

avoid false and bogus claims. The said scheme and the directions therein 

have been satisfactorily functioning for the last one and a half decades. If 

there are any shortcomings, the Government can always come up with an 

appropriate legislation to substitute the said scheme. We see no reason why 

the procedure laid down in Madhuri Patil should not continue in the absence 

of any legislation governing the matter. 

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

of judicial order?

 25

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

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

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

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

subjected to special leave under Article 136 of the Constitution. 

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

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

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

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

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

provision is as follows: 

 "An appeal shall lie from a judgment or order passed by one Judge of the 

 High Court in exercise of original jurisdiction under Article 226 of the 

 Constitution of India, to a division bench comprising of two judges of the 

 same High Court."

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

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

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

 "Under the rules made by the High Court in exercise of the powers 

 conferred on it under section 108 of the Government of India Act, 1915, 

 an appeal under section 39 of the Act will be heard by a single Judge. Any 

 judgment made by the single Judge in the said appeal will, under Clause 

 10 of the Letters Patent, be subject to appeal to that Court. If the order 

 made by a single Judge is a judgment and if the appropriate Legislature 

 has, expressly or by necessary implication, not taken away the right of 

 26

 appeal, the conclusion is inevitable that an appeal shall lie from the 

 judgment of a single Judge under Clause 10 of the Letters Patent to the 

 High Court."

 (emphasis supplied)

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

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

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

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

created a condition that notwithstanding anything contained in the Code of 

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

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

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

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

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

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

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

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

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

observations in that context are relevant: 

 "The power to create or enlarge jurisdiction is legislative in character, so 

 also the power to confer a right of appeal or to take away a right of 

 appeal. Parliament alone can do it by law and no Court, whether superior 

 or inferior or both combined can enlarge the jurisdiction of a Court or 

 divest a person of his rights of revision and appeal."

 27

 (emphasis supplied)

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

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

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

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

the principle underlying these two decisions are useful in understanding the 

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

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

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

 "The above decisions quite firmly establish and our decisions in Janardan 

 Reddy v. The State [1950] S.C.R. 941 and in Ganpat Rai v. Agarwal 

 Chamber of Commerce Ltd. (1952) S.C.J. 564, uphold the principle that a 

 right of appeal is not merely a matter of procedure. It is matter of 

 substantive right. This right of appeal from the decision of an inferior 

 tribunal to a superior tribunal becomes vested in a party when proceedings 

 are first initiated in, and before a decision is given by, the inferior court. In 

 the language of Jenkins C.J. in Nana bin Aba v. Shaikh bin Andu (1908) 

 ILR 32 Bom 337 to disturb an existing right of appeal is not a mere 

 alteration in procedure. Such a vested right cannot be taken away except 

 by express enactment or necessary intendment. An intention to interfere 

 with or to impair or imperil such a vested right cannot be presumed unless 

 such intention be clearly manifested by express words or necessary 

 implication."

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

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

enactment. The following principles were enunciated:

 28

 (i) That the legal pursuit of a remedy, suit, appeal and second appeal are 

 really but steps in a series of proceedings all connected by an intrinsic 

 unity and are to be regarded as one legal proceeding.

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

 substantive right.

 (iii) The institution of the suit carries with it the implication that all rights 

 of appeal then in force are preserved to the parties there to till the rest of 

 the carrier of the suit.

 (iv) The right of appeal is a vested right and such a right to enter the 

 superior Court accrues to the litigant and exists as on and from the date the 

 lis commences and although it may be actually exercised when the adverse 

 judgment is pronounced such right is to be governed by the law prevailing 

 at the date of the institution of the suit of proceeding and not by the law 

 that prevails at the date of its decision or at the date of the filing of the 

 appeal.

 (v) This vested right of appeal can be taken away only by a 

 subsequent enactment, if it so provides expressly or by necessary 

 intendment and not otherwise.

 (emphasis supplied)

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

`vested right', to any person filing a writ petition. That right can be taken 

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

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

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

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

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

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

exercised, when such exercise will directly conflict with the express 

provisions of a statute.

 29

Conclusion

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

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

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

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

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

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

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

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

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

available.

Civil Appeal No.3467/2005

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

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

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

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

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

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

Civil Appeal No.3468/2005 :

 30

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

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

Judge is dismissed as infructuous. 

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

Subramanian, as Amicus Curiae.

 .........................................J.

 [ R.V. Raveendran ]

 .........................................J.

 [ P. Sathasivam ]

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

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