1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7820 OF 2007 Mohd.Jamil Mohd.Yusuf Indrisi .. Petitioner Vs. State of Maharashtra & Ors. .. Respondents Mr.G.S.Godbole i/b Dr.M.Shah Alam Khan for the petitioner Mr.C.R.Sonawane, A.G.P. for respondent nos.1, 2, 4 and 5 Mr.R.S.Apte for respondent nos.3 Mr.P.M.Pradhan for respondent nos.6 CORAM : J.N.PATEL CORAM : J.N.PATEL CORAM : J.N.PATEL & & & SMT.NISHITA MHATRE, JJ. SMT.NISHITA MHATRE, JJ. SMT.NISHITA MHATRE, JJ. DATED : 11TH FEBRUARY, 2008 DATED : 11TH FEBRUARY, 2008 DATED : 11TH FEBRUARY, 2008 P.C.: 1. Heard the learned counsel for the parties. 2. We are disposing the petition at the stage of admission itself. This is a case where the petitioner got elected as a Councillor of Ward No.58 of the Bhiwandi Nizampur Municipal Corporation, Bhiwandi District, Thane for the seat 2 reserved for candidates from Other Backward Class category claiming that the petitioner belongs to caste ’Darji’ which is recognised as Other Backward Class and on the strength of the caste certificate issued by the Sub Divisional Officer, Bhiwandi, District Thane on 30.04.07, the caste claim of the petitioner was referred to the Caste Scrutiny Committee for verification and by the impugned judgment and order the Caste Scrutiny Committee invalidated the caste certificate of the petitioner which has been challenged before this court on various grounds. 3. The most important issue raised in the petition was relating to the manner in which the respondent Caste Scrutiny Committee have been passing orders in such matters. In the present case, though the decision invalidating the caste claim of the petitioner came to be taken by the Caste Scrutiny Committee, it was heard by two members of the committee but the decision was signed by three members and therefore, the claim of the petitioner was not properly dealt with by the Committee. 3 4. This court therefore, issued notice to the respondents, and particularly, directed the Additional Commissioner who is the Chairman of the Committee to file his affidavit in reply. In the first affidavit in reply filed by the Additional Commissioner, Mumbai Division, Mumbai, it was tried to be justified that the decision of the Caste Scrutiny Committee cannot be faulted on this count as at the time of last hearing, the Chairman and Member Secretary were present and one member was not available but the quorum was completed as per the Government Resolution dated 25.01.00. 5. It was also contended that the order invalidating the caste claim is required to be signed by all the three members of the Committee. The attention of the parties were drawn to the decision of this court rendered in the case of Vijay Kisan Karanjkar Vs. State of Maharashtra & Vijay Kisan Karanjkar Vs. State of Maharashtra & Vijay Kisan Karanjkar Vs. State of Maharashtra & Ors. reported in 2003 (4) ALL MR 691 Ors. reported in 2003 (4) ALL MR 691 Ors. reported in 2003 (4) ALL MR 691 which squarely covers the issue. In the case of Vijay Kisan Karanjkar Vs. State of Maharashtra (Supra), this court also examined the Government Resolution 4 dated 25.01.00 which is relied upon by the respondents and held that in view of the decision in the case of Kumari Madhuri Patil Vs. Additional Kumari Madhuri Patil Vs. Additional Kumari Madhuri Patil Vs. Additional Commissioner, Tribal Development, Thane reported in Commissioner, Tribal Development, Thane reported in Commissioner, Tribal Development, Thane reported in AIR 1994 (6) SCC 241 AIR 1994 (6) SCC 241 AIR 1994 (6) SCC 241 particularly referring to direction no.4, it has been clarified that when the committee is required to consist of three members then this court held that "when there were three members, and the order was passed by three members, all of them ought to have afforded hearing to the petitioner, Challenge to Government Resolution is, to us, immaterial in the light of the factual situation before us. Hence, the action taken by the Committee of affording hearing by two members cannot be upheld or approved and must be set aside" and this court quashed and set aside the order on the sole ground. 6. Shri Anil Dattatray Kale, Additional Commissioner, Divisional Caste Scrutiny Committee, Mumbai Division, Mumbai in his affidavit in reply filed before this court has stated that in the facts and circumstances of the case, the matter may be remanded back to the Scrutiny Committee for 5 giving personal hearing to the petitioner on the basis of the records/materials collected by the Vigilance Cell attached to the Scrutiny Committee and the reply filed by the Petitioner to the same and other documents etc. and that the Committee would take a decision in the matter in accordance with law. 7. We find that as the Additional Commissioner heads the Divisional Commissioner, the Scrutiny Committee has accepted the fault on their part. We do not advert to the lapses on the part of the committee. We expect that in future the Committee would not commit such errors and abide by the procedure provided for scrutiny of the caste certificate in the light of the decisions of this court. 8. We are required to make this observation for the reason that such lapses on the part of the Scrutiny Committed only results in miscarriage of justice and it may affect the status of a person vis-a-vis the purpose for which validity of the caste certificate is sought for. 6 9. We therefore, dispose of this petition by quashing and setting aside the impugned order and direct the petitioner to remain present before the Caste Scrutiny Committee on 25.02.2008 at 11.00 hours. The Caste Scrutiny Committee would proceed to hear the matter in accordance with law and take a decision within two weeks from the date of first appearance of the petitioner, of course, subject to the co-operation of the petitioner in the matter. We make it clear that if the petitioner does not cooperate with the Caste Scrutiny Committee, the Caste Scrutiny Committee may proceed exparte by recording reasons. 10. In the meantime, the order dated 29.9.07 passed by the Divisional Commissioner, Bhiwandi Nizampur City Municipal Corporation, Bhiwandi (Dist. Thane) stands quashed and set aside and the petitioner would continue to hold his office as Councillor till the Caste Scrutiny Committee decides the validity of his caste claim. Petition stands disposed of accordingly. 7 ( J.N. PATEL, J ) ( J.N. PATEL, J ) ( J.N. PATEL, J ) ( SMT.NISHITA MHATRE, J ) ( SMT.NISHITA MHATRE, J ) ( SMT.NISHITA MHATRE, J )