-1- IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.4250 OF 2007 NO.4250 OF 2007 NO.4250 OF 2007 Pravin N. Devare ...Petitioner v/s Divisional Caste Scrutiny Committee, Mumbai and ors. ...Respondents Mr P.K. Dhakephalkar with Mr Shekhawat i/b Mr L.M. Acharya for Petitioner. Mr V.P. Malvankar, AGP for Respondent No.1. Mr Nitin Mulye for Respondent No.3. CORAM : D.K. DESHMUKH AND J.P. DEVADHAR JJ. DATE : 12TH AUGUST 2008. -2- P.C. :- 1. By this petition, the petitioner challenges the order passed by the Caste Certificate Verification Committee, Konkan Region, Mumbai, holding that the caste certificate secured by the petitioner that he belongs to ’Sutar’ caste, which is other backward class, is not valid. It appears that before the Committee, the petitioner was relying on entry in the school record of his grandfather viz. Gopinath Keshavrao Devare which shows that his caste is ’Sutar’. The Committee has declined to rely on that register because of the condition of the register. The submission of the petitioner is that pursuant to the directions issued by the Supreme Court in its judgment in the case of Kum Madhuri Patil and anr. v/s Additional Commissioner, Tribal Development, Thane and ors., reported in (1994) 6 SCC 241, a report from the Vigilance Cell was called by the Committee. The report has been submitted by the Vigilance Cell. In that report, the Vigilance Cell has referred to the entry in the school record in relation to the grandfather of the petitioner. As per the report, the Vigilance Cell did not hold any further enquiry, did not try to find out caste of other close relatives of the petitioner and no enquiry was made with -3- relatives and members of the community. It was also claimed that one Kum Shweta Vijaynath Devare, who is related to the petitioner by blood, has been granted Validity Certificate and that has also not been considered. But perusal of the record shows that copy of the Vigilance Cell report was given to the petitioner, the petitioner did make an application before the Committee that the Vigilance Cell report is not complete and they have not held enquiry in the manner they are supposed to do and therefore, a further report should be called from them. That application was made on 5th May 2007 but it appears that the Committee had already made the order on 27th April 2007. But it also appears that by the date on which the petitioner made the application i.e. on 5th May 2007, he was not aware that the Committee had made the order on 27th April 2007. From the record it also appears that though the petitioner made his claim on the basis of Validity Certificate issued in favour of Shweta Vijaynath Devare, before the Committee her affidavit was not filed. In our opinion, the petitioner should have made an application for further directions to the Vigilance Cell to hold further enquiry before the Committee before it made the order. The learned counsel appearing for petitioner, in this background, submits that as the petitioner has been elected as Councillor of the Bombay Municipal Corporation, the petitioner should be given an -4- opportunity before the Committee. The request is opposed on behalf of the respondents. According to the respondents, opportunity was available to the petitioner, but the petitioner did not take advantage of that opportunity. We find on perusal of the record that the report of the Vigilance Cell which has been relied on by the Committee shows that the Vigilance Cell did not make any enquiry from relatives of the petitioner, no attempt has been made to find out what are the entries made in the school record and other village record in relation to close relatives of the petitioner. In our opinion, considering the directions issued by the Supreme Court in its judgment in the case of Kum Madhuri Patil, the Vigilance Cell should have conducted full enquiry. But fact remains that a copy of the report was given to the petitioner and the petitioner could have made application before the Committee for directions to the Vigilance Cell immediately on receiving the report. Similarly, though the petitioner claimed before the Committee that he is entitled to rely on the Validity Certificate which is granted to Kum Shweta Vijaynath Devare who is his close relative, but her affidavit was not filed. An affidavit of Kum Shweta has been filed on the record of this petition alongwith genealogy. Perusal of the affidavit and genealogy at least prima facie shows that Kum Shweta is related by blood to the petitioner. In our opinion, in this situation and -5- considering the fact that the petitioner has been duly elected as Councillor of the Bombay Municipal Corporation, the petitioner deserves an opportunity of being reheard by the Committee. However, in our opinion, in the facts and circumstances of the case, it will be appropriate to impose substantial cost on the petitioner for the reasons which we have indicated above. In our opinion, therefore, following order would meet the ends of justice. 2. The order impugned in the petition is set aside, the matter is remitted back to the Caste Verification Committee for fresh decision in accordance with law. It is directed that the Committee shall consider the application filed by the petitioner before the Committee dated 5th May 2007. The petitioner shall be at liberty to produce additional documents before the Caste Verification Committee. The respondent No.3 shall also be entitled to an opportunity of being heard and he will also be entitled to produce evidence. The petitioner and the respondent No.3 shall appear before the Caste Verification Committee with a copy of this order on 1st September 2008. The Caste Verification Committee shall thereafter deal with the matter and decide it in accordance with law as expeditiously as possible and in any case within a period of eight weeks from 1st September 2008. The petitioner is directed to -6- pay as and by way of cost of this petition Rs.10,000/- to the respondent No.1 and Rs.10,000/- to the respondent No.3. While appearing before the Caste Verification Committee on 1st September 2008, the petitioner shall produce proof of having paid the cost as directed above. All contentions available to both the sides are kept open to be urged before the Caste Verification Committee. Rule is made absolute accordingly with no order as to costs. . Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of the Court. . Certified copy expedited. ( D.K. DESHMUKH J.) ( J.P. DEVADHAR J.)