IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4165 OF 2007 WRIT PETITION NO. 4165 OF 2007 WRIT PETITION NO. 4165 OF 2007 Shri Narayan Janu Pawar ...Petitioner V/s. The Caste Certificate Scrutiny Committee, Navi Mumbai & Ors. ...Respondents Mr.P.K. Dhakephalkar, Sr.Counsel with Mr.L.M. Acharya for the Petitioner. Mr.C.R. Sonawane, AGP for Respondent Nos.1 & 3. Mr.A.J. Bhor for Respondent No.2. Ms.Anjali Iyer for Respondent No.4. CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & V.M. KANADE, JJ. V.M. KANADE, JJ. V.M. KANADE, JJ. DATED : MARCH 5, 2008 DATED : MARCH 5, 2008 DATED : MARCH 5, 2008 P.C. :- P.C. :- P.C. :- 1. By this petition, the petitioner is challenging judgment and order dated 4th May, 2007 passed by the Caste Scrutiny Committee, Konkan Region, Mumbai. He is also seeking a direction that he should not be disqualified under Section 16(1)(B) of the Mumbai Municipal Corporation Act, on the basis of the judgment and order dated 4th May, 2007 passed by the Caste Scrutiny Committee, Konkan Region, Mumbai. 2. Brief facts which are necessary for the purpose of deciding this petition are as under :- - 2 - . Ward No.158 of Mumbai Municipal Council was reserved for Other Backward Class. The petitioner claimed that he belongs to Makadwale caste which is recognised as ’Vimukta Jati’. Elections were held on 1st February, 2007 in respect of said Ward No.158 of Mumbai Municipal Council and the petitioner was elected as the Municipal Councillor in the said ward. The petitioner was directed to produce Caste Validity Certificate to the Municipal Council within three months from 1st February, 2007. This period was further extended by one month. The petitioner applied before the Caste Scrutiny Committee. After the reference was made to the Committee through the Collector, Mumbai Suburban District, the Committee held inquiry in respect of the petitioner’s caste claim and on two occasions, the committee called for the report from the Vigilance Cell. The Vigilance Cell submitted the report on 22nd March, 2007 and also on 19th April, 2007. On 4th May, 2007, the Committee was pleased to invalidate the petitioner’s caste certificate. - 3 - 3. Mr.Dhakephalkar, learned Senior Counsel appearing for the petitioner submitted that though the Vigilance Cell had given a report in favour of the petitioner, the Caste Scrutiny Committee deferred from the view taken by the Vigilance Cell without giving Show Cause Notice to the petitioner that it intended to defer from the report submitted by the Vigilance Cell and therefore, an opportunity was to be given to the petitioner to tender his explanation on the said Show Cause Notice. He relied on the judgment of the Supreme Court in the case of Kumari Madhuri Patil and Another Kumari Madhuri Patil and Another Kumari Madhuri Patil and Another V/s. Addl.Commissioner, Tribal Development and others, V/s. Addl.Commissioner, Tribal Development and others, V/s. Addl.Commissioner, Tribal Development and others, reported in (1994) 6 SCC 241. reported in (1994) 6 SCC 241. reported in (1994) 6 SCC 241. 4. Ms.Iyer, learned Counsel appearing on behalf of respondent no.4, on the other hand, submitted that in respect of the second report viz. report dated 19th April, 2007, sufficient opportunity was given to the petitioner to submit his written explanation in respect of the said report and that a copy of the report had been given to the petitioner and that he has submitted his reply on the said report, dated 24th April, 2007. - 4 - 5. The submissions made by the learned Senior Counsel for the petitioner will have to be accepted. Perusal of the first report clearly indicates that the Vigilance Cell had held that the petitioner belongs to Makadwale caste. In the said report, it has been clearly observed as under :- "From the aforesaid house inquiry of the witnesses, they stated that Shri Narayan Janu Pawar and his family members carry on business like performing monkey plays, weaving baskets, manufacturing brooms and as such, they belong to Makadwale caste." 6. The second Vigilance report was called for since the allegation was made by the respondent no.5 that the petitioner is a impostor and that his name was Gangaram and he was posing himself as Narayan Janu Pawar. An inquiry was held. In the said inquiry also, the Vigilance Cell submitted its report dated 19th April, 2007 and in the concluding paragraph, the Police Inspector, Vigilance Cell, has observed as under :- - 5 - "The person i.e. the Applicant is being known by the name Shri Narayan Janu Pawar from 13.5.1992 onwards and his dealings are also carried out under the same name. His Election Identity Card, Pan Card, Driving Licence, Pass-port bear the same name and he has also paid the Income Tax under the same name besides, this he has contested the election under the name of Shri Narayan Janu Pawar and is elected under the same name." Thus, the report which was submitted by the Police Inspector, Vigilance Squad, clearly was in favour of the petitioner. 7. In the case of Kumari Madhuri Patil (supra), Kumari Madhuri Patil (supra), Kumari Madhuri Patil (supra), the Supreme Court has laid down the procedure as required to be followed by the Scrutiny Committee. The Apex Court directed the Scrutiny Committee to refer the caste claim to the Vigilance Cell which is required to tender its report. The Apex Court has further laid down that if a favourable report is given by the Police Inspector, Vigilance Squad, then the Scrutiny Committee has to issue a caste certificate in favour of the applicant. However, if the Scrutiny Committee deferred with the view taken by the Vigilance Cell, then alongwith copy of - 6 - the report of the Vigilance Cell, a Show Cause Notice was to be issued to the applicant asking him to tender his explanation. In the Show Cause Notice, the Scrutiny Committee was to specifically inform the applicant that it deferred with the view taken by the Vigilance Committee on A,B,C, ground and it intended to take a different view. The Apex Court in the case of Kumar Kumar Kumar Madhuri Patil (supra) Madhuri Patil (supra) Madhuri Patil (supra) in sub-paras 5, 6, 7 and 8 of paragraph 13 has observed as under :- "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. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological - 7 - traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the caste or tribes or tribal communities concerned etc. 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 though the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. 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 - 8 - 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 be 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." 8. On perusal of the said observations of the Apex Court, it is clear that the Caste Scrutiny Committee was under obligation to issue a Show Cause Notice to the applicant further giving him an opportunity to offer his explanation, otherwise it was not sufficient for the Scrutiny Committee to merely tender a copy of the report of the Vigilance Cell to the applicant but a separate Show Cause Notice had to be issued. Admittedly, this procedure has not been followed by the Caste Scrutiny Committee. 9. The learned Counsel appearing for the respondent no.4 invited my attention to the report i.e. the order passed by the Scrutiny Committee, more particularly, wherein it was recorded that though the applicant was - 9 - asked to tender documentary evidence in respect of the period prior to 1961 and inspite of that, the said information was not tendered by the applicant. She submitted that copy of the Vigilance Committee report was given to the applicant and he had tendered his say on 27th April, 2007 and therefore, there was sufficient compliance of the ratio laid down by the Apex Court in Kumari Madhuri Patil Kumari Madhuri Patil Kumari Madhuri Patil. She further submitted that the applicant had tendered a false document viz. the School Leaving Certificate and therefore, on that very ground, the validity certificate was liable to be quashed and set aside. It is submitted that therefore, there was no reason to interfere with the order passed by the Caste Scrutiny Committee. 10. We are unable to accept the submission made by the learned Counsel appearing for the respondent no.5. In the present case, the record clearly indicates that no Show Cause Notice was issued to the applicant though the Vigilance Cell had given the report in favour of the petitioner and therefore, the procedure which was required to be followed by the Caste Scrutiny Committee - 10 - was not followed and on that ground alone, the impugned judgment and order is liable to be quashed and set aside. 11. The impugned order dated 4th May, 2007 is quashed and set aside. Matter is remanded back to the Caste Scrutiny Committee. The Caste Scrutiny Committee shall issue a Show Cause Notice to the petitioner. If it intends to defer from the report which was tendered by the Vigilance Cell in favour of the petitioner for the Show Cause Notice, the Scrutiny Committee should mention why it would like to take a different view than the view taken by the Vigilance Cell and give reasonable opportunity to the petitioner to tender his explanation and after the explanation is received, the Caste Scrutiny Committee shall then decide the application after hearing both the sides. 12. All contentions of all the parties are kept open. 13. Petition is, accordingly, allowed in the above - 11 - terms. Rule is, accordingly, made absolute in the above terms. Interim order passed by this Court shall continue pending the hearing and final disposal of the application by the Caste Scrutiny Committee. Under the circumstances, there shall be no order as to costs. (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)