AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4519 OF 2007 Shirish Chintaman Chogle, residing at Chogle Chawl, Room No.4, Devi Pada, Tata Power, Borivili (E), Mumbai – 400 066. ) ) ) ) ... Petitioner Versus 1. State of Maharashtra through its Secretary, Social Welfare Department, Mantralaya, Mumbai – 400 032. ) ) ) ) 2. Divisional Caste Certificate Scrutiny Committee, Konkan Bhuvan, 6th floor, Navi Mumbai. ) ) ) 3. Municipal Corporation of Greater Mumbai through its Commissioner, having its office Mahapalika Bhavan, 1, Mahapalika Marg, Mumbai - 1. ) ) ) ) ) 4. State Election Commissioner, having its office at New Administrative Building, Opp. Mantralaya, Mumbai – 400 021. ) ) ) ) 5. Sub Divisional Officer, umbai, Suburban District, Borivili. ) ) 6. Sunil Shripat Chavan, residing at 2/90, Jai Maharashtra Nagar, Near Tata Power House, Borivili (East), Mumbai – 400 066. ) ) ) ) ... Respondents AJN 2 Mr. Y.S. Jahagirdar, senior advocate with Mr. R.K. Mendadkar for the petitioner. Mr. P.P. Kakade, A.G.P. for the State. Mr. Tayshetye with Mr. D.B. Sawant for respondent 6. CORAM : SMT. RANJANA DESAI & SMT. ROSHAN DALVI, JJ. DATE ON WHICH THE JUDGMENT RESERVED : 11TH MARCH, 2008. DATE ON WHICH THE JUDGMENT PRONOUNCED : 28TH MARCH, 2008. JUDGMENT : (Per Smt. Ranjana Desai, J.) 1. The petitioner claims to belong to Sutar caste which is recognized as other backward class (for convenience “OBC”) in the State of Maharashtra. Respondent 1 is the Secretary of the Social Welfare Department. Respondent 2 is the Divisional Caste Certificate Scrutiny Committee (for convenience, “the Scrutiny Committee”) constituted under the provisions of section 6 of the Maharashtra Act No.XXIII of 2001 (for short, “the said Act”). Respondent 3 is the Municipal Corporation of Greater Bombay and Respondent No.4 is the State Election Commissioner. Respondent 5 is the Authority, who has issued caste certificate to the petitioner. AJN 3 Respondent 6 is the complainant. 2. In this petition filed under Article 226 of the Constitution of India, the petitioner has challenged order dated 4/5/2007 passed by the Scrutiny Committee invalidating his caste certificate issued by respondent 5. 3. The case of the petitioner is that he belongs to Somvanshi Kshatriya Pathare Samaj, which includes Panchkalsi, Sutar socially, anthropologically and ethnologically. Respondent 1 has listed Sutar caste which is a sub-caste of Panchkalsi at serial no.174 whereas, caste Panchkalsi has been listed differently. According to the petitioner, on this basis, the petitioner and his children were initially granted caste certificates by respondent 5 stating that they belong to Panchkalsi caste, which is recognized as OBC. 4. According to the petitioner, he moved the Scrutiny Committee for verification of his caste certificate certifying that he belongs to Panchkalsi, OBC on 7/9/2006. He, thereafter, realized that Panchkalsi and Sutar castes belong to same stock historically, AJN 4 anthropologically and ethnologically. The petitioner, therefore, surrendered his caste certificate dated 21/6/2006 to respondent 5 on 26/12/2006 and made a fresh application for grant of caste certificate stating that he belongs to Sutar caste. Respondent 5 issued caste certificate to the petitioner certifying that he belongs to Sutar caste on 28/12/2006. According to the petitioner, the Scrutiny Committee, after verifying the documents annexed to his application, acknowledged its receipt. On the basis of the said acknowledgment of the Scrutiny Committee, the petitioner filed his nomination form from Ward No.11, which was reserved for backward class to the membership of respondent 3-Corporation on 15/1/2007. The scrutiny of the nomination papers was held on 17/1/2007. The Returning Officer of respondent 3-Corporation accepted nomination form of the petitioner. The election was held on 1/2/2007 and the results were declared on 2/2/2007. The petitioner was declared elected. 5. Respondent 6 objected to the petitioner's caste validity certificate. He filed an application before the Scrutiny Committee principally on the ground that the petitioner belongs to Somvanshi Kshatriya Pathare Samaj, which does not come under the OBC AJN 5 category and, as such, he was not entitled to the certificate declaring him to be Sutar. The said application was served on the petitioner. The petitioner filed his affidavit in reply opposing the said application. The Scrutiny Committee after perusing the application and the affidavit in reply filed by the petitioner along with compilation of documents produced by the petitioner, called for the vigilance report. The concerned Inspector, after investigation, submitted the vigilance report to the Scrutiny Committee in which, he had recorded a conclusion that the petitioner belongs to Sutar caste. Respondent 6 objected to the report of the vigilance cell. By the impugned order, the Scrutiny Committee invalidated the petitioner's caste validity certificate acknowledging his status as Sutar. The Scrutiny Committee also invalidated the petitioner's claim to Panchkalsi caste. The petitioner has challenged the said order in this court. 6. We have heard Mr. Jahagirdar, learned senior counsel appearing for the petitioner. Mr. Jahagirdar submitted that the Scrutiny Committee erred in invalidating the petitioner's caste claim. He submitted that the Scrutiny Committee failed to note that the Somvanshi Kshatriya Pathare Samaj is a community. It is a AJN 6 broad nomenclature which includes Panchkalsi and Sutar castes. He submitted that in GR dated 13/10/1967 issued by the Government of Maharashtra notifying the list of OBC, the caste Sutar is shown at serial no.174. He submitted that by GR dated 1/1/2001, the Government of Maharashtra amended the list of OBC and added caste Panchkalsi in caste Mali, which is at serial no.182. Mr. Jahagirdar submitted that the petitioner had produced credible evidence to establish that he belongs to Sutar caste. He had submitted school leaving certificate of his sister late Shaila Chintaman Chogle, school leaving certificate of his cousin Ms. Archana Gopal Chogle and school leaving certificate of his cousin Mr. Mandar Ratnakar Chogle, which state that they belong to Sutar caste. Learned counsel contended that the petitioner had produced a copy of the Gazette issued by the State Government which contains history of Somvanshi Kshatriya Pathare Samaj. In the said history, a reference is made to Panchkalsi. It also mentions the caste Sutar as being part of Somvanshi Kshatriya Pathare Samaj. Learned counsel pointed out that this important piece of evidence has not been considered by the Scrutiny Committee. Merely because the petitioner surrendered his first caste certificate certifying that he belongs to Panchkalsi caste and AJN 7 obtained another caste certificate certifying that he belongs to Sutar caste, his case cannot be thrown overboard. He submitted that in fact, all the relevant documents which were produced by the petitioner have been merely mentioned in the impugned order. No reasons are stated as to why they were not accepted by the Scrutiny Committee. 7. Mr. Jahagirdar further submitted that the vigilance officer had recorded the statements of the petitioner's cousin Hemant Chogle, his neighbour Kishore J. Gujjar and another cousin of the petitioner viz. Gopal V. Chogle. After considering all the documents and the statements recorded by him and after considering other relevant aspects, the vigilance officer had submitted a report stating that the petitioner belongs to Sutar caste. Mr. Jahagirdar contended that the vigilance report is a very important document and should ordinarily be accepted. He submitted that the vigilance officer's report is of utmost importance and has been held to be so in Kum. Madhuri Patil v. Additional Commissioner, Tribal Development & Ors., (1994) 6 SCC 241. On the basis of the said judgment and the credible evidence submitted by the petitioner, the Scrutiny AJN 8 Committee should have validated the petitioner's claim. He submitted that the Scrutiny Committee cannot lightly brush aside the said report and dispose of the caste claim of the candidate. In case the Scrutiny Committee does not agree with the Vigilance Cell report, the Scrutiny Committee has to follow the procedure prescribed in paragraph 13(6) and (7) of the judgment of the Supreme Court in Maduri Patil' s case (supra). He submitted that the Scrutiny Committee should have issued a show cause notice supplying a copy of the report of the vigilance officer to the petitioner. After receipt of the notice, if the petitioner wanted an opportunity of hearing, the Scrutiny Committee should have convened a meeting of the Committee and chairperson of the Committee should have given an opportunity to the petitioner to adduce all the evidence in support of his claim. It is after following the entire procedure that the Scrutiny Committee has to pass appropriate order with brief reasons in support thereof. Mr. Jahagirdar submitted that this procedure is a mandatory procedure. It is not followed by the Scrutiny Committee and, therefore, the impugned order must be set aside. AJN 9 8. Mr. Jahagirdar further submitted that the documents submitted by the petitioner in support of his case ought to have been considered by the Scrutiny Committee in their proper perspective. If the Scrutiny Committee wanted to reject the said documents, it should have assigned reasons for the same. Merely mentioning the said documents in the order is not sufficient. The order must reflect application of mind of the authority to those documents. In this connection, Mr. Jahagirdar relied on the judgments of the Supreme Court in Institute of Chartered Accountants of India v. L.K. Ratna & Ors., AIR 1987 SC 71 and Cyril Lasrado (dead) by LRs & Ors. v. Juliana Maria Lasrado & Anr., (2004) 7 SCC 431. Mr. Jahagirdar submitted that in the circumstances, it is necessary to remand the case to the Scrutiny Committee with a direction to assign reasons for not accepting the documents. Mr. Jahagirdar also relied on two unreported judgments of the Division Bench of this court (D.K. Deshmukh & V.M. Kanade, JJ) in Balasaheb Ramdas Chandere v. State of Maharashtra & Ors. decided on 27/2/2008 in Writ Petition No.6192 of 2007 and in Chandrakant Nivrutti Bathe v. State of Maharashtra & Ors. decided on 5/3/2008 in Writ Petition AJN 10 No.6188 of 2007. 9. Mr. Jahagirdar submitted that the petitioner's membership has been suspended but the petitioner is concerned with the larger issue. The order invalidating his Sutar caste claim will have a wider repercussion on the lives of the members of his family. He submitted that, therefore, the petitioner's case requires to be handled properly and not in a slipshod manner in which the Scrutiny Committee has handled it. Mr. Jehagirdar concluded by saying that the impugned order be set aside and the matter be remanded to the Scrutiny Committee with direction to dispose it of in accordance with law. 10. On the other hand, Mr. Tayshetye, learned counsel appearing for respondent 6 submitted that the petitioner does not deserve any indulgence from this court. His conduct is totally fraudulent. He obtained caste certificate certifying that he belongs to Panchkalsi caste. He surrendered it and within two days he got another certificate certifying that he belongs to Sutar caste. Somvanshi Kshatriya Pathare Samaj does not fall in the category of OBC. He AJN 11 submitted that Sutar caste was added in the OBC category by GR dated 13/10/1967 and Panchkalsi caste was added in the Mali (OBC category) by GR dated 1/1/2001. Having realized that the petitioner will not be able to substantiate his claim that he belongs to Panchkalsi caste, the petitioner surrendered that certificate and within two days, he managed to get a certificate certifying that he belongs to Sutar caste. Mr. Tayshetye submitted that if the petitioner comes with a case that he belongs to a particular OBC category, which falls in a particular entry of the OBC list notified by the GR, he will have to establish that he belongs to that OBC caste even though Sutar and Panchkalsi may both fall in OBC category. It is not open to this court to enter into an inquiry and come to a conclusion that Panchkalsi and Sutar castes both fall in OBC category and, therefore, even if the claim of the petitioner that he belongs to Sutar caste is not substantiated, he could be considered as belonging to Panchkalsi caste and his certificate can be validated. He submitted that such a scrutiny or inquiry is prohibited and this is made amply clear by the Supreme Court in its judgment in State of Maharashtra v. Milind & Ors., (2001) 1 SCC 4. Mr. Tayshetye further contended that respondent 5-Sub Divisional AJN 12 Officer, Mumbai Suburban District, Borivli, could not have revoked or reviewed his earlier order issuing certificate to the petitioner that he belongs to Panchkalsi caste. Respondent 5 has no powers of review. Respondent 5 cannot even cancel his earlier order. He submitted that respondent 5's first order issuing certificate that the petitioner belongs to Panchkalsi caste is an appealable order. He submitted that being a quasi judicial authority, respondent 5 has no inherent power to revoke his own order. Learned counsel pointed out that by the impugned order, the Scrutiny Committee has invalidated both the certificates of the petitioner i.e. certificate certifying that he belongs to Panchkalsi caste and certificate certifying that he belongs to Sutar caste. In the petition, the petitioner has sought direction to the Committee to issue caste validity certificate in favour of the petitioner in respect of caste certificate dated 28/12/2006 issued by respondent 5 stating that the petitioner belongs to Sutar caste. He submitted that therefore, challenge is to the second caste certificate. Cancellation of first caste certificate has attained finality. Mr. Tayshetye further submitted that the conduct of the petitioner in surrendering his caste certificate, is suspect. He drew our attention to the affidavit filed by the petitioner while surrendering his first caste certificate. AJN 13 He pointed out that no reasons are given why the petitioner wanted to surrender his caste certificate. Obviously, the petitioner wanted to get the caste certificate to the effect that he belongs to Sutar caste for election purpose because he thought that he was on better footing so far as his claim to caste Sutar is concerned. 11. Mr. Tayshetye submitted that even on merits, the petitioner has no case. He submitted that the petitioner's paternal aunt – Neela Desai nee Mohini Chogle, who was a Member of the Legislative Assembly in the year 1997 was issued a caste certificate certifying that she belongs to Hindu Panchkalsi caste. His paternal aunt has also sworn affidavit dated 13/7/2004 confirming that she belongs to Hindu Panchkalsi caste. This certificate and the affidavit were suppressed by the petitioner in the vigilance inquiry. He pointed out that there is no reference to these two documents in the affidavits filed by the petitioner before the Scrutiny Committee and also in the present writ petition. Learned counsel pointed out that in the certificate issued by Mali Samaj, the petitioner is shown as belonging to Hindu Panchkalsi caste. There is no reference to Sutar caste. Learned counsel drew our attention AJN 14 to several documents such as certificate issued by the competent authority in favour of the petitioner's daughters and sons certifying that they belong to Panchkalsi caste. He also pointed out the entry of the school register pertaining to the petitioner and his sister late Shaila. These documents show the petitioner's caste as Hindu and the petitioner's sister's caste as Hindu Somvanshi Kshatriya. Learned counsel submitted that all these relevant documents were suppressed by the petitioner. They were brought on record by respondent 6. This indicates that the petitioner has not come to the court with clean hands. 12. Learned counsel pointed out that before the competent authority, while surrendering his first certificate, the petitioner has filed affidavit dated 2/2/2006 declaring that he and his family belong to Panchkalsi caste. However, before the Scrutiny Committee, he has not produced the said evidence. He has suppressed the said evidence. He has gone against the affidavit, which he had filed. Serious note needs to be taken about this conduct of the petitioner. 13. As regards argument of Mr. Jahagirdar that the Scrutiny AJN 15 Committee has not followed the proper procedure laid down by the Supreme Court in Maduri Patil' s case (supra) is concerned, Mr. Tayshetye submitted that no grievance, at all, was made before the Scrutiny Committee in this regard. The vigilance committee report was supplied to the petitioner. Objections were raised by respondent 6. That application was served on the petitioner. The petitioner filed his reply. The application was heard at length. Therefore, sufficient opportunity was given to the petitioner. The requirements of paragraph 13(6) and (7) of the judgment of the Supreme Court in Maduri Patil' s case (supra) have been complied with. It is, therefore, not necessary to remand the matter for that purpose. Learned counsel submitted that no case is made out for remand on the alleged ground that the documents supplied by the petitioner were not considered by the Scrutiny Committee. The order of the Scrutiny Committee is reasoned and it clearly indicates why the petitioner's documents have not been accepted by the Scrutiny Committee. Relying on the judgment of the Supreme Court in Punjab National Bank & Ors. v. Kunj Behari Misra, (1998) 7 SCC 84, learned counsel submitted that after such a long period, it would be improper to remand the matter to the Scrutiny AJN 16 Committee. Learned counsel submitted that the petitioner is seeking remand because he wants to tender certain more documents. Learned counsel submitted that the petitioner had sufficient opportunity to tender those documents before the Scrutiny Committee. He cannot be allowed to produce those documents in this court nor can he be allowed to produce the said documents before the Scrutiny Committee by seeking a remand. In this connection, learned counsel relied on the judgment of this court in Kishore R. Sonkusre v. Scheduled Tribe Caste Certificate Scrutiny Committee & Anr., 2000 (Supp.) Bom. CR 40. Learned counsel pointed out that it is absolutely clear that the petitioner has purposely withheld the relevant documentary evidence which was likely to adversely affect his case. That evidence must, therefore, be looked at to find out whether the vigilance report is procured or false. In this connection, he relied on the judgment of this court in Priyanka M. Jangam v. State of Maharashtra & Ors., 2007 (6) All.M.R. 807. 14. Learned counsel also relied on the judgment of the Division Bench of this court in Nutan Vidarbha Shikshan Mandal v. The AJN 17 Presiding Officer, 2007(2) All M.R. 60, where after considering the provisions of the said Act, this court has observed that it is absolutely necessary for the claimant to ensure that he makes a truthful claim, otherwise it is nothing but a deceit which should warrant consequences as contemplated under the statutory provisions. Mr. Tayshetye submitted that in the light of above judgments, the petition must be dismissed and action must be directed to be taken against the petitioner in accordance with law. 15. Before we proceed further, we must note certain provisions of the said Act. The said Act provides for regulation of the issuance and verification of the caste certificates to the persons belonging to the Scheduled Castes, Scheduled Tribes, De-notified Tribes, Nomadic Tribes, Other Backward Classes and Special Backward Category. Under section 3 thereof, a person belonging to any of the above categories is required to produce a caste certificate in order to claim the benefit of any reservation provided to such categories of people. Section 4 provides for issuance of caste certificate by the Competent Authority. The Competent Authority may grant the application or reject it for the reasons to be recorded AJN 18 in writing. The caste certificate so issued is valid subject to the verification by the Scrutiny Committee. A person aggrieved by an order of rejection of an application passed by the Authority has to appeal to the Appellate Authority under section 8. Under section 8 (2), the Appellate Authority has to give an opportunity of being heard to such person and then either confirm the rejection or set aside the order of the Competent Authority and direct it to issue the caste certificate. 16. Section 6 provides for verification of caste certificate by Scrutiny Committee. A person who wants to claim the benefit of any reservation as mentioned in section 3 has to make an application for the verification of such caste certificate to the Scrutiny Committee. The Scrutiny Committee has to then follow the necessary procedure and issue validity certificate. 17. Under section 7, the Scrutiny Committee may, suo moto, or otherwise call for the record and enquire into the correctness of the certificate obtained by a person and after giving opportunity of hearing to him, cancel the certificate. Order of the Scrutiny Committee can be challenged only in the High Court by invoking AJN 19 Article 226 of the Constitution of India. 18. Section 8 places burden of proof on the person claiming to belong to any such category. 19. Under section 9, the Competent Authority, Appellate Authority and Scrutiny Committee shall have all the powers of a civil court while trying a suit particularly in respect of summoning and enforcing attendance of a person and examine him on oath, requiring the discovery and production of any documents, receiving evidence on affidavits, requisitioning any public record or copy thereof from any court or office and issuing commissions for the examination of witnesses and documents. 20. Section 10 contains a very drastic provision. It provides for withdrawal of benefits secured by a person on the basis of false caste certificate. Under this provision, a person who produces false caste certificate is liable to be debarred from the concerned educational institution or discharged from the employment. Degrees or diplomas obtained on the basis of such certificate stand cancelled. Under sub-section (4) such a person is disqualified for AJN 20 being a member of any statutory body, if he has contested any election and any benefits obtained by such person shall be recoverable as arrears of land revenue. Section 11 provides for offences and penalties and section 12 states that offences under the said Act are cognizable and non-bailable. Section 13 provides that a person who issues a false caste certificate can be convicted. 21. The said Act, therefore, makes it clear that application for caste certificate is made for claiming the benefit of reservation in certain walks of life. In a given case, it could be for getting any public employment or in another case it could be for getting admission into any educational institution. In the present case, the petitioner wanted to contest Municipal Corporation election which was to be held in January, 2007 from Ward No.11 on the seat reserved for OBC candidate. He had applied to the Competent Authority i.e. respondent 5 for caste certificate certifying that he belongs to Panchkalsi, OBC. That certificate was issued to him on 21/6/2006. On 26/12/2006, he surrendered it and applied for another certificate certifying that he belongs to Sutar, OBC. The Competent Authority issued another certificate on 28/12/2006 certifying that the petitioner belongs to Sutar caste. It is rather AJN 21 surprising how this entire exercise was conducted within two days. It is stated that the Competent Authority conducted a detailed inquiry and issued this certificate. We really wonder what inquiry can be conducted in a day. Under section 4, the Competent Authority has to satisfy itself about the genuineness of the claim and after following the prescribed procedure, it has to issue caste certificate. It is difficult to understand how within two days, the Competent Authority concluded the exercise and was satisfied that the petitioner belongs to Sutar caste when it had just a few months back issued a certificate stating that the petitioner belongs to Panchkalsi caste. 22. Apart from this, there is a basic flaw in the entire exercise. We have already noted that under section 4 of the said Act, the Competent Authority may issue the certificate or may reject the application for reasons to be recorded in writing. The said Act nowhere provides that the Competent Authority can cancel the earlier