TANISHA SURENDRA PATEL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The petitioner has challenged the action of the respondents- authorities in not issuing caste certificate / validity certificate to the petitioner as per the relevant form under the Maharashtra Scheduled Tribes (Regulation of Issuance of Verification of) Certificate Rules, 2003 (hereinafter referred to as 'the Rules of 2003'). The petitioner's consequential prayer is for direction to the authorities to issue such a certificate by accepting the evidence produced by the petitioner of belonging to a family which was resident of the areas which constituted the erstwhile larger State of Bombay and which after re-organisation of the State, forms part of the State of Gujarat.

(2.) The petitioner claims to be belonging to Dhodia community hailing from a region which presently forms part of the State of Gujarat but which was a part of the Bombay State prior to re- organisation in the year 1960. The State authorities had earlier refused to grant caste certificate to the petitioner as the person belonging to scheduled tribe community of State of Maharashtra. The petitioner had, therefore, approached this Court by filing Writ Petition No.2556 of 2012. The petition came to be dismissed by order dated 29.4.2013. The order reads thus:

(3.) For several years thereafter, the petitioner took no further steps. The present petition was filed in 2017, with the prayers noted above. In order to sustain these prayers, the petitioner has also challenged the vires of Rule 3(b), 4(1) and 5(1) of the Rules of 2003 contending that the same are ultra vires the Article 342 of the Constitution of India. The learned Counsel for the petitioner contended that in the previous petition, the challenge to the Rules was missing. This was necessary on account of the decision of the Supreme Court in the case of Puducherry Scheduled Caste People Welfare Association vs. Chief Secretary to Government, Union Territory of Pondicherry and Others; (2014) 9 SCC 236 holding that any change in a Presidential Order is impermissible by an Executive Order. In this context, she relied on the decision of the Supreme Court in the case of Puducherry Scheduled Caste People Welfare Association (supra), and on the later decision in the case of Director, Transport Department, Union Territory Administration of Dadra and Nagar Haveli, Silvassa and others vs. Abhinav Dipakbhai Patel,(2019) 6 SCC 434 . The Counsel contended that this is not a case of res judicata since the fresh petition is based on a fresh cause of action and in such circumstances, principle of res judicata or constructive res judicata would not apply. In this context, she relied on the decisions in Jaswant Singh and another vs. Custodian of Evacuee Property,(1985) 3 SCC 648 New Delhi and Nagabhushanammal (dead) by Legal representatives vs. C. Chandikeshwaralingam,(2016) 4 SCC 434.