1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.778/2008. Sandip Arjun Vazarkar, 37 years, married, Indian National, Member of Village Panchayat of Socorro, resident of House No.1032, Zoswado, Socorro, Bardez, Goa. ......... Petitioner. V/s 1) Scrutiny Committee for Verification of Caste Certificate, through its Chairman, Office of Social Welfare, Government of Goa, Porvorim, Goa. 2) Deputy Collector & Sub-Divisional Magistrate, Office of the Deputy Collector/ Sub-Divisional Magistrate, Mapusa Sub-Division, North Goa, Mapusa, Bardez, Goa. 3) Senior Superintendent of Police (Vigilance Officer), Office of the Vigilance Officer, Police Headquarters, Panaji, Goa. 2 4) Rajesh Madhukar Khautankar, major, married, Indian National, resident of House No.1057/4, Zoswado, Socorro, Bardez, Goa. ........ Respondents. Mr. S. G. Dessai, Senior Advocate with Mr. Shivan Dessai, Advocate for the Petitioner. Mr. S. R. Rivonkar, Government Advocate for Respondents No.1 and 3. Mr. A. N. S. Nadkarni, Senior Advocate with Mr. D. Lawande, Advocate for Respondent No.4. CORAM : B.P. DHARMADHIKARI & U.D. SALVI, JJ. Date of reserving the Judgment : 5th May, 2009. Date of pronouncing the Judgment : 15th June, 2009. J U D G M E N T : (Per B.P. DHARMADHIKARI, J.) 1. On 17.4.2009, the learned Senior Advocates, as also the government Advocate appearing for the parties have pointed out that as per Orders of this Court dated 11.2.2009, the matter is to be disposed of finally at the stage of admission. Accordingly, we have taken up the matter at the end of admission board by making Rule returnable forthwith. 3 2. Challenge in this writ petition filed under Article 226 of the constitution of India is to the order dated 26.11.2008 passed by the Scrutiny Committee invalidating the caste claim of the Petitioner as belonging to Bhandari Naik Community and also to the report of the Vigilance Cell dated 18.9.2008 submitted by the Sr. Superintendent of Police, to the Director of Social Welfare, Panaji, Goa. 3. This is the third writ petition filed by the Petitioner in same cause. The Petitioner has contested election from Ward No.8 of Socorro Village and has been elected as Member or Pancha of Village Panchayat. This Court has, on 18.12.2008, granted ad interim orders whereby the invalidation of his caste claim by Respondent no. 1 Scrutiny Committee for Verification of Caste Certificate, hereafter “Scrutiny Committee”, has been stayed . 4. These elections were held on 5.6.2007. The ward was declared as reserved for O.B.C. category on 5.4.2007, by way of corrigendum by the State Government. The Petitioner decided to contest said elections and approached Gomantak Bhandari Samaj (for short 4 “Samaj”), an organization of Bhandari Naik community and the said Samaj on 11.4.2007 issued him a certificate mentioning that he belongs to Bhandari Naik Community, notified as OBC vide Goa Government Notification No. 13/1/97-SWD dated 30th June, 2000 and of Government of India, Ministry of Social Justice & Empowerment dated 16/1/2006. On the basis of the said certificate, the Petitioner applied to the Dy. Collector and S.D.M. Mapusa i..e. Respondent No.2 in the present petition and the said authority granted him a certificate as belonging to OBC on 11.4.07 itself. It is not in dispute that Respondent no. 2 is the competent authority for Goa for issuing such status certificates. The Petitioner, then filed his nomination on 13.4.2007. Respondent No.4 who is opposing the present petition ,a candidate belonging to OBC in that election raised objection to the said nomination paper disputing the caste claim of the Petitioner. On 15.4.2007, the Returning Officer rejected that objection and the Petitioner came to be declared elected on 7.5.2007. 5. Respondent No.4 then approached the Samaj and on 8.5.2007, the Samaj withdrew the certificate and issued communication to Respondent No.2 stating that the certificate dated 11.4.2007 issued 5 by it was revoked and canceled. On 18.6.2007, Respondent No.2 issued a show cause notice to the Petitioner, mentioning these facts and requiring him to point out as to why action should not be taken for fraudulently obtaining OBC certificate from his office by misrepresenting and by suppressing the material facts. In this background, on 25.6.07, the Petitioner applied to the Scrutiny Committee i.e. Respondent No.1 for verification of his caste claim. On 3.7.3007, the Government of Goa issued a communication to all the Dy. Collectors and S.D.Os. mentioning that they were expected to issue certificates as per the guidelines of the Hon'ble Apex Court and not on the basis of the socials status certificate issued by any organization. It appears that some instructions to the contrary were earlier issued on 15.9.05 and by this communication, those were withdrawn. On 18.7.2007, the Vigilance Cell submitted the report to Respondent No.1 Scrutiny Committee and on 25.7.97, the Ex-Officio Joint Secretary & Director of Social Welfare issued a communication to the Petitioner mentioning that the certificate issued by Respondent No.2 in his favour was duly verified by the Scrutiny Committee and there were no “adverse remarks” against him. 6 6. On 6.8.07, Respondent No.4 then filed a complaint and raised objections against the certificate and verification. The complaint is addressed to Respondent No.1 and its Ex-Officio Joint Secretary, as also Respondent No.2. The Caste Scrutiny Committee then invited fresh report from the Vigilance Cell, and the Superintendent of Police (Headquarters) Panaji, Goa, forwarded the same vide communication dated 7.9.2007. In the said report, he mentioned that the inquiries with one section in the locality revealed the caste of Petitioner as Bhadari Naik, while with other section revealed the same to be Bane Develi. The said authority also made a mention that none of the parties produced any documentary evidence to establish the caste of the Petitioner. The inquiries before the SDM & Dy. Collector, Bardez and election petition before the Administrative Tribunal Court, Panaji are stated to be pending in it. 7. Respondent No.4 then approached this Court in Writ Petition No.460/07 and sought directions that the caste claim of the present Petitioner should be verified as expeditiously as possible. This Court, on 22.10.2007, while granting leave to Respondent No.4 to withdraw the petition, recorded statement of the Advocate General that 7 the Scrutiny Committee was re-verifying the claim of the Petitioner and re-verification would be done as expeditiously as possible after conducting inquiry. The Scrutiny Committee then vide its Order dated 29.1.2008, ordered cancellation of caste certificate observing that the caste certificate was obtained by the Petitioner by misrepresentation. The Petitioner challenged this order in Writ Petition No. 111/2008 and vide Order dated 16.7.2008 that writ petition was allowed after noticing that the Scrutiny Committee did not perform its duty as contemplated by the Hon'ble Apex Court in the Judgment reported in (1994) 6 SCC 241=AIR 1995 SC 94, Kumari Madhuri Patil and anr. vs. Addl. Commissioner, Tribal Development and ors. It was noticed that the verification of caste claim was not done independently and only because of cancellation of caste certificate by the Samaj, the scrutiny committee reached its conclusions. The matter was, therefore, remanded back to the Scrutiny Committee, keeping all the contentions open and directing it to complete the verification within a period of two months from the date of appearance of the parties. 8. On 26.8.08, the scrutiny committee called for fresh vigilance report. On 28.8.08, the PI i.e. Police Inspector, Porvorim 8 called upon the Petitioner to remain present before him to inquire into his caste certificate. On 30.8.08, Petitioner sent communication to the said authority and informed that the said Police Inspector was not part of the Vigilance Cell, constituted by the Government vide its Circular dated 6.9.99 and, therefore, that authority had no jurisdiction and any inquiry conducted by it would be invalid. 9. On 12.9.2008, the Petitioner raised similar objections before the Scrutiny Committee. The Vigilance Officer appears to have submitted the report on 8.9.08, and the Petitioner objected to it in writing on 6.10.2008. The inquiry then proceeded further. The Petitioner participated in it, cross examined the Officer who submitted the Report, filed about 36 documents and also examined 19 witnesses. He relied upon 1928 catalogue of Mahajans of Sri Rudreshwar Temple and a sale deed dated 2.12.1941, in support of his contentions. He also pointed out that the report of Police Inspector, Porvorim about contacting one Parshuram Shirodkar and said Parshuram allegedly disclosing the caste of the Petitioner as Devli (Bane) was not correct. He placed on record affidavit of said Parshuram, contradicting these facts. It is in this background that after hearing the respective parties 9 afresh, on 26.11.2008 Respondent No.1 scrutiny committee passed the impugned order. 10. We have heard the Senior Advocate Shri S. G. Dessai with Advocate Shivan Dessai for the Petitioner, Senior Advocate Shri A.N.S. Nadkarni with Advocate D. Lawande for Respondent No.4 and learned Govt. Advocate Rivonkar for Respondents No.1 to 3. 11. The learned Senior Advocate for the Petitioner has, at the outset, pointed out the purpose of constitution of Vigilance Cell by relying upon the Judgment of the Hon'ble Supreme Court in Kumari Madhuri Patil and anr. vs. Addl. Commissioner, Tribal Development and ors. (supra), particularly para 13 and the guidelines 4, 5 and 7 therein. It is his contention that the Hon'ble Apex Court has laid down that the scrutiny committee has to independently verify the caste claim of the applicant before it. According to him, merely because the Petitioner fails to substantiate (as alleged) his caste claim, the certificate cannot be invalidated by the scrutiny committee. He states that in the present facts, there is no such independent effort by the Vigilance Officer and the documents filed by the Petitioner have been scrutinized 10 only with a view to any how find out lacunae or mistakes. He had pointed out that the forefathers of the Petitioner were from Morlem in Bicholim Taluka and from there they migrated to Vazari in Pernem Taluka and lastly in Socorro in Bardez Taluka. It is his contention that these facts could have been verified by the Vigilance Cell and as that has not been done, there is failure to discharge the obligation cast upon the scrutiny committee and the Vigilance Cell in the matter. Advocate Dessai points out that the Samaj has an old temple by name Sri Rudreshwar Devasthan and grandfather of the Petitioner by name Mahadev Babani Naik was its mahajan. His name is recorded at Serial No.1364 in the List of Mahajans, prepared way back in 1928. He invites attention to bye-laws of the said temple as published in “Boletim Oficial”—gazette of the then Portuguese Government, dated 17.2.1928 and catalogue of Mahajans published with it. He points out the name of said grandfather written as Madeva Baboni Naique in the said catalogue. He further states that said document could not have been disbelieved only because after grandfather nobody else in the family is enroled as Mahajan of Lord Rudreshwar. He has pointed out that the family has migrated atleast twice thereafter and in these circumstances, the present status of family and its failure to have anybody recorded as 11 “Mahajn” cannot be relevant at all. He invited attention to excerpts from Anthropological Survey of India, Volume XXI (page no.124 to 131) which deal with Kshatriya Bhandari/Naik Community in Goa in order to buttress his contention that the Petitioner has brought on record the relevant anthropological and ethnological traits which identify his community as said Bhandari Naik community. He further states that the scrutiny committee has not accepted the said Mahadev Babani Naik as grandfather of the Petitioner only because name of grandfather is differently written. He points out that during the Portuguese regime, the names were spelt differently and when the Petitioner/his witnesses have stated on oath that the said person was his grandfather, there is nothing before the scrutiny committee to discard that claim. He also invited attention to the fact that in the said catalogue of mahajans, surname “Vazarkar” has also been included and he fairly states that this fact has not been pointed out to the scrutiny committee. He relies upon certain other surnames included in the said catalogue to show that the names of places where mahajans were residing after migration have been mentioned as surnames. He argues that backward class commission, has accepted that section of Bhandari Naik were also pulling carts and were cart owners. He invited attention to certificate of registration of birth 12 dated 12.12.1962, in which name of his father has been mentioned as “Arjuna Naique Ozarkar”. He points out that the birth of real brother of the Petitioner on 3.2.1954 has been recorded in it and occupation of his father has been mentioned as “cart owner”. Similarly, he places reliance upon sale deed dated 2.12.1941 in which his grandfather “Madeva Baboni Naique Ozarcar” has purchased immovable property. He points out that relationship of the Petitioner with the said Madeva is not in dispute at all. In view of this material, it is his contention that the scrutiny committee has failed to apply its mind properly to all the documents and there is failure to exercise the jurisdiction. 12. Without prejudice to his contention on merits about non- consideration of evidence of 19 witnesses and 36 documents filed by the petition on record, Adv. Dessai argues that as per bye-laws above mentioned, president of Samaj has no power to annul the certificate issued to Petitioner. He relies upon bye-law Nos. 4, and 44 to point out that once such certificate is granted, its revocation has to be only by general body. He points out that in present facts, the certificate has been given by the President of the said Samaj and its cancellation is also by the very same President and there is no resolution of general body & 13 hence, the withdrawal of certificate is invalid in law. 13. He further states that the Superintend of Police (Headquarters), for and on behalf of the Director General, Panaji constituted Vigilance Cell on 6.9.1999 which comprises of Deputy Superintendent of Police, Crime Branch, CID; Police Inspector, Crime Branch, CID and the Police Inspector (ACB), Panaji. He contends that then occupants of the said post are named in the said order dated 6.9.1999 and, thereafter, the Vigilance Cell has not been reconstituted at any point of time. Police Inspector, Porvorim who issued the communication dated 28.8.08 to the Petitioner and allegedly prepared the Vigilance Report is not part of this Vigilance Cell and hence the report of the said authroity dated 18.9.08 cannot be recognized as legal and valid Report prepared in pursuance of the Hon'ble Apex Court Judgment in Kumari Madhuri Patil (supra). 14. Communication dated 23.4.07 issued by the Deputy Inspector General of Police does not modify the above mentioned Government Order dated 6.9.99 and it does not reconstitute the Vigilance Cell. He points out that the said communication only mentions that the Vigilance 14 Officer has to visit the place of residence of applicant/claimant for verification of his caste claim and merely calling such applicant to the police station is not sufficient. He points out that in the present circumstances though the Police Inspector, Porvorim has stated that he had visited the place of the Petitioner, the Petitioner was not present at the relevant time and the fact of such visit is being denied by the neighbour Parshuram who filed affidavit before the Scrutiny Committee, denying such visit and any inquiry by the said Police Inspector with him. He has, therefore, contended that the said Vigilance Report dated 18.9.08 does not meet the requirements of the Judgment of the Hon'ble Apex Court and is liable to be quashed and set aside. It is his submission that once Vigilance Report dated 2.9.08 is quashed and set aside, it becomes essential to call for fresh vigilance report and the consequential order dated 26.11.08 by Respondent No.1 Scrutiny Committee must, therefore, automatically fall to ground. To substantiate his objections to the Vigilance Report, the learned Senior Advocate has invited attention to cross examination of the Police Inspector, Porvorim conducted on behalf of the Petitioner before the Scrutiny Committee. 15. Senior Adv. Shri S.G. Dessai invited attention to another 15 certificate of registration of birth dated 12.12.1962, in which name of Petitioner’s father has been mentioned as “Arjuna Naique Ozarkar”. He points out that the birth of real brother of the Petitioner by name Subhash on 5.5.1956 has been recorded in it. Certificate of registration of birth dated 12.12.1962, in which name of his father has been mentioned as “Arjuna Naique Ozarkar” shows the birth of his real sister Sunita on 13.8.1951 & in these two certificates, occupation of his father has been mentioned as “cart owner”. The three birth certificates issued by the then competent authority on the basis of these records on 12/12/1962 are also pointed out. Affidavit dated 3/7/2007 of Suresh Tukaram Naik son of Tukaram Babani Naik, paternal uncle of Petitioner Sandeep was pressed into service before the Scrutiny Committee to prove that family was using “Naik” or “Naik Vazarkar” or “Vazarkar” or “Ozarkar” as surname and it belonged to Gomantak Bhandari Samaj. Certificate dated 26/6/2007 issued by Samaj and dated 5/7/2007 issued by Dypt. Collector about caste of Suresh & birth certificate of Suresh dated 7/4/1993 showing Tukarama Babani Naique as his father were also pointed out to the Scrutiny Committee. Affidavit dated 25/10/2007 of one Madhukar Dhargalkar declaring that he belongs to Bhandari Naik caste and was secretary of Advisory Committee of said Samaj for 16 Bardez area, that father Arjun Naik of Petitioner Sandeep belonged to Bhandari caste, that Arjun had bullock-cart, cattle & earned mainly through agriculture was also filed before the Scrutiny Committee. Affidavit dated 20/7/2007 by one Digambar s/o Narayan Kauthankar belonging to Bhandari community and declaring that Petitioner Sandeep belongs to said caste and is resident of Socorro, Bardez-Goa for last 65 years and Petitioner's family is known as Naik Vazarkar in community has also been relied upon. It is argued that this Digambar is relative of present Respondent no. 4. On the basis of this material, learned Senior Adv. contends that surname became “Naique Ozarkar” after shifting to village Ozorium or Vazari and after shifting of family to village Soccorro, it became “Ozarkar”. Our attention has also been drawn to the fact that only Respondent no.4 objected to caste & nomination of the Petitioner & other contestants made no grievance. 16. Affidavit in evidence dated 21/10/2008 tendered by Anand Mandrekar declaring that he belongs to Samaj, that he was authorised as recommender for issuing Naik Bhandari caste certificates in Socorro area, that Petitioner Sandeep & his family belonged to said caste and people of said caste never go to eat food at Devli(Bane) community was 17 relied upon. Affidavit in evidence of Kartik Kudnekar dated 21/10/2008 declares that Petitioner belongs to Bhandari Samaj. He has stated that Petitioner's uncle by name Narayan Mahadev Naik Vazarkar & Harischandra Mahadev Naik Vazarkar used to come to his residence to meet his father & his father as also Vazarkars were having bullock- carts. He also declared that his father used to say that Vazarkar family was Gadekars i.e. Bullock-cart carriers. Affidavit in evidence of Subhash N. Kinalkar dated 21/10/2008 declaring that he was registered member/Mahjan of Shri Dev Rudreshwar temple at Harvelem-Goa, that he was vice-president of said Devstan, that family of Petitioner used to come to temple for Shivratri & Shrawana Somwara, that Petitioner's grandfather Shri Mahadev Baboni Naik Vazarkar was the registered founder member of Devsthan, that his father told him that said Mahadev used to reside earlier at Morlem in Bicholim Taluka was also filed before the Committee. Affidavit in evidence of Sangesh Suhas Kundaikar dated 21/10/2008 ex-Secretary of Shri Dev Rudreshwar temple at Harvelem-Goa, that he knew Petitioner Sandeep & his brother Subhash, that his grandfather Mahadev was founder member of the Temple, that brother-in-law of Petitioner by name Gurudas Krishna Naik from Camurlim was known to him and that father of Gurudas 18 Krishna Naik – late Krishna Bablo Naik Camulkar was registered Mahajan of Devsthan & Gurudas belonged to Bhandari samaj was also tendered to the Committee. It is stated that Respondent no. 4 could not conduct any cross-examination in so far these facts are concerned. Affidavit in evidence of Sadanand Sahnu Pednekar dated 21/10/2008 ex-ecretary of Shri Dev Rudreshwar temple at Harvelem-Goa staes that he also served as President & Secretary of Sattari Taluka Bhandari Samaj Committee. He knew late Mahadev Baboni Naik & his son late Arjun Mahadev Naik Vazarkar, that Mahadev was founder member at the time of registration of Temple under Mazania Act and name of Mahadev figured at sr. no. 1364 in list of Mahajans, that Mahadev used to come to temple with Arjun and that family of late Arjun Naik was also known as “Ozarkars” & often used surname “Vazarakar or Naik Vazarkar”. Affidavit in evidence of Digambar Narayan Kauthankar dated 21/10/2008 disclosed that he knew family of Petitioner for 45 years, that he had seen Mahadev Baboni Naik Vazarakar, that said family was agriculturist with main occupation as cart driving. Affidavits in evidence of Premand Vithu Kauthankar & Shyamsunder Vasant Kauthankar, both dated 21/10/2008 also mention that Petitioner Sandeep belongs to their caste i.e. Naik Bhandari Samaj. Learned 19 Senior Adv. Shri Desai argues that all these facts & affidavits have remained unshaken in searching cross-examination. It is pointed out that Respondent no. 4 came with specific case that Petitioner belonged to Devli (Bane) community and legal impact of this specific assertion on the controversy has been ignored by the Scrutiny Committee. 17. The learned Counsel has pointed out the cross examination of the witnesses to urge that it was conducted in a manner revealing no definite defence and that denial of caste of Petitioner by Respondent no. 4 was only for name-sake. The relationship of Petitioner with late Mahadev or Madeo Baboni Naik has been established through oral as also through 1941 sale-deed. It is urged that said land is still with the Petitioner & form no. I & XIV for year 1970 to 1972 are pointed out to show the name of Petitioner's grandfather recorded against it. Affidavit of real brother of Petitioner by name Subhash Arjun Naik Vazarkar is also pointed out to show that he named his first son as Rudresh after Shri Dev Rudreshwar as per desire of his late grandmother Parvoti Mahadev Naik Vazarkar. Said birth registered on 29/5/1982 reveals that Rudresh is born to Subhash on 24/5/1982. Sale deed dated 25/9/1992 is also relied upon to show that name of real brother of Petitioner is 20 written as Shivdas Arjun Vazarkar @ Shivdas Arzun Naique Ozarcar at Sr. no. 13 and name of Petitioner himself is also written in identical fashion at Sr. no. 17 in it. 18. In this background, findings of Goa bench of National Commission For Backward Classes recorded after public hearing, particularly paragraph 4(ii) & (v) are relied upon to show that bullock- cart driving is accepted source of livelihood and about 80% of the population was landless & earned by manual labour. It is contended that thus 20% of the caste people own lands and hence, ownership of land or financially sound condition of Petitioner's family could not have been relevant to invalidate his caste claim. Para 10 of said findings also refer to vol. 1 of the book titled “ Hindu Temples & Deities” by Shri Rui Gomes Pereira & notes mention therein of temple of Shri Rudreshwar at Bicholeim and that Bhandari Naik community is described in it as belonging to “Shudra Class”. 19. Adv. Deasai, the learned Sr. Adv. has heavily relied upon the judgment of learned Single Judge of this Court reported at 2003(1) All M.R. 1042—Shri Rambhau Diwakar Parkhedkar vs. State of 21 Maharashtra to show that if there is no report of vigilance cell, the exercise of verification of caste claim by the Scrutiny Committee can not be sustained. He points out that Hon. Apex Court has in (1995) 4 SCC 32- Director of Tribal Welfare, Govt. of A.P. vs. Laveti Giri and anr.,