1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Writ Petition No. 316 of 2011 [Mohd. Hussain Sk. Hasan Vs. Caste Scrutiny Committee & others] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. R.L. Khapre, Adv., for the petitioner. Mr. V.A. Thakre, AGP for respondent nos. 2 and 4. Mr. S.V. Sohoni, Adv., for intervener. ----- CORAM : B.P. DHARMADHIKARI AND A.P. BHANGALE, JJ. DATE : 23rd August, 2011. 1. Heard finally by consent of parties. 2. Learned Adv. for petitioner – Mohd. Hussain Sk. Hasan has invited our attention to earlier orders passed by this Court in Writ Petition No. 189 of 2008 on 14th September, 2009, particular paragraph nos. 3 and 4 thereof, to urge that directions as issued by this Court then are still not implemented. Our attention has been invited to the Govt. Notifications issued in this respect from time to time, to contend that Julaha and Momin are not different, but same castes. A Judgment of Hon'ble Apex Court in the matter of Vasant Pandurang Narwade @ Narvde Vs. Subhash [2001 (10) JT 125] is relied upon to contend that Caste Scrutiny Committee ought to have concentrated on finding out the caste claim of petitioner, and when it 2 has itself recorded that petitioner appears to be belonging to the Momin caste, the caste claim ought to have been upheld. He contends that by invalidating the caste claim, Caste Scrutiny Committee has failed to exercise jurisdiction available to it in accordance with law. 3. Learned Adv. Shri Sohoni appearing for petitioner Sajeed Iqubal Sheikh Mehmood in Writ Petition No. 3388 of 2011 has opposed the contentions of Adv. Shri Khapre. He points out that after earlier invalidation of caste claim of the petitioner, elections were conducted and in those elections, Petitioner – Sajeed Iqubal Sk. Mehmood has contested the same. The results thereof could not be declared because of restraining orders and those restraining orders merged into Judgment dated 14th September, 2009 passed in Writ Petition No. 189 of 2008. Hence by following directions as contained in paragraph no. 11 thereof, when Caste Scrutiny Committee invalidated the caste claim of petitioner on 13th January, 2011, results of election ought to have been declared. He further contends that in such a situation, orders of status quo granted on 19th January, 2011 in Writ Petition No. 316 of 2011 are of no assistance. He has relied upon a Full Bench Judgment of this Court in case of Sujit Vasant Patil Vs. State of Maharashtra & ors. [2004 (4) ALL MR 537], to urge that because of invalidation of caste claim, the vacancy automatically arose and result ought to have been declared. Contentions to this effect of law cannot be done away with 3 by subsequent grant of status quo on 19th January, 2011. 4. Learned AGP Mr. Vinod Thakre supports the arguments of Adv. Shri Sohoni. In addition, it is pointed out that after remand by this Court, the petitioner was given an opportunity to substantiate his caste claim. He produced only one document which revealed that his caste was recorded as “Monin” and not as Julaha. Learned AGP states that said document was found to be an unregistered sale-deed and hence it was not accepted as a valid proof. Other documents are Certificates issued by a Co-operative Society, namely the Momin Weavers' Co-operative Society Ltd., and Caste Scrutiny Committee has found that said Society was issuing such certificates indiscriminately. Because of this, the documents were not accepted and caste claim of petitioner as belonging to caste Jullaha has been invalidated. He also attempts to distinguish the judgment of Hon'ble Apex Court by pointing out that same documents were produced by appellant before Apex Court to substantiate his claim, and those documents were were not then looked into. 5. With the assistance of learned counsel for the parties, we have perused the papers. 6. In para 3 of the order passed in Writ Petition No. 189 of 2008, this Court has noted the contentions of present petitioner, and at that time, it was shown to this Court that a 4 caste by name Ansari has been shown as synonyms for Julaha and Momin. It was also shown that Julaha and Momin are mentioned separately in Govt. Notification of Other Backward Classes. It was also then pointed out that at Serial No.2 of the Resolution dated 19th October, 1995, caste Julaha appeared and thereafter in bracket, the word “Momin” was also mentioned. At Sr. No. 3, caste Ansari appeared with a remark that people belonging to said caste are also engaged in weaving business as in case of Julaha [Momin caste]. As this situation was not looked into by the Caste Scrutiny Committee, matter was remanded back. 7. In the impugned order dated 13th January, 2011, after remand, Scrutiny Committee has given the petitioner adequate opportunity. Documents produced by him on 7th April, 2010 are then looked into. First document is a List of Members of Momin Weavers' Co-operative Society Ltd., while the other is the Certificate issued by said Society to petitioner whereby it is declared that he belongs to Julaha caste. The Scrutiny Committee has then relied upon the report of Police Vigilance Cell that said Society was issuing such Certificates frequently and indiscriminately and hence refused to rely upon the same. 8. A sale-deed dated 22nd September, 1934 produced is then looked into wherein caste of great grand-father of petitioner by name Sheikh Chand Fate Mohammad Momin is shown as “Momin” by 5 adding the word “Momin” at the end of his name in it. That was relied upon as oldest document. Scrutiny Committee has found that this documents, at the most, revealed that his caste was Momin. Said document has not been relied upon to accept the contention that petitioner belongs to Julaha caste. Learned AGP during arguments pointed out that said document is not registered one. 9. The judgment of Hon'ble Apex Court in case of Vasant Pandurang Narwade @ Narvde Vs. Subhash [cited supra], particularly para 3 thereof, reveals that there the Caste Scrutiny Committee found that the Certificate submitted to it for verification was not issued by the Competent Authority. Hon'ble Apex Court has noted that Tahsildar, who had issued that Certificate, had filed an affidavit, stating that he had, in fact, issued the same. The grievance in this background before Hon'ble Apex Court was documents, which supported caste claim of said appellant, were not looked into by Scrutiny Committee because of its finding that Certificate was not issued by Competent Authority. Here that is not the position. The documents produced on record by petitioner have been duly taken note of and a finding on it has been recorded. 10. In this view of the matter, as we do not see any illegality or perversity in the impugned order, Writ Petition No. 316 of 2011 is accordingly dismissed. 6 11. During arguments and when we were at a concluding stage, learned Adv. Shri Khapre has attempted to invite our attention to a document, to urge that the caste claim of real nephew of petitioner has been validated by the Scrutiny Committee. The other counsel objected to said document. 12. It is necessary to place on record that matter was heard today because of insistence of Adv. Shri Sohoni for petitioner in Writ Petition No. 3388 of 2011, that after obtaining interim orders, the petitioner was deliberately keeping the matter pending without supplying the copy of said document to respondent nos. 5 and 6. Because of this opposition, Adv. Shri Khapre expressed his readiness and willingness to argue the matter finally. In this situation, we are not inclined to look into the document, which has not been presented to us in accordance with law. Petition is accordingly dismissed. 13. Learned Adv. Mr. R.L. Khapre for petitioner seeks stay of fifteen days of this order. Respective learned counsel for parties are opposing the same in view of fact that on three occasions earlier, the caste claim of petitioner in this Writ Petition has been invalidated. 14. In the present situation, we are not 7 inclined to grant of request of Adv. Mr. Khapre and the same is rejected. Judge Judge |Hedau|