AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6814 OF 2008 Kumar Hirgappa Koli. ... Petitioner Vs. The State of Maharashtra & Anr. ... Respondents Mr. Sarang S. Aradhye for the petitioner. Ms. M.P. Thakur, A.G.P. for the State. CORAM : SMT. RANJANA DESAI & A.A. SAYED, JJ. DATED : 24TH JULY, 2009. P.C.:- 1. It is the case of the petitioner that he was granted a caste certificate by the Tahsildar Jath on 13/7/1990 to the effect that he belongs to Mahadeo-Koli, Scheduled Tribe. In September, 2007, respondent 3 i.e. the Collector, Sangli referred the case of the petitioner to respondent 2 i.e. the Scheduled Tribe Certificate Scrutiny Committee, Pune Region, Pune, for verification of his tribe claim. On AJN 2 7/10/2007, the elections of the Gram Panchayat Jath were held. The petitioner claiming to be Mahadeo-Koli contested from Ward No.6, which was reserved for Scheduled Tribe. On 9/10/2007, the petitioner was declared as elected from the said ward. The petitioner is aggrieved by order dated 29/7/2008 passed by the Caste Scrutiny Committee invalidating his claim that he belongs to Mahadeo-Koli, Scheduled Tribe. The petitioner has challenged the said order in this petition. 2. We have heard, at some length, Mr. Aradhye, learned counsel for the petitioner. Mr. Aradhye strenuously contended that the impugned order deserves to be set aside because it is an ex-parte order. He submitted that the petitioner was not served with the notice of hearing. He submitted that he was only served with one notice dated 3/5/2008. Thereafter, no notice was served on him. He submitted that therefore he could not point out the relevant documents indicating that he belongs to Mahadeo-Koli, Scheduled Tribe to the Caste Scrutiny AJN 3 Committee. He drew our attention to the Vigilance Committee Report dated 7/6/2005 and pointed out that in this report, names of several persons have been noted and it is clearly stated that they are related to the petitioner only by name. He submitted that it was, therefore, not open to the Scrutiny Committee to come to a conclusion that the petitioner is not a Mahadeo-Koli merely because certain people who have the same surname as that of the petitioner, are shown to belong to Koli caste. In this connection, he relied on the judgment of this court to which one of us (Smt. Ranjana Desai, J.) is a party, in Deepika Yogeshwar Nandanwar v. State of Maharashtra & Ors. 2008 (3) Bom.C.R. 630 where after relying on the judgment of the Supreme Court in State of Maharashtra v. Ravi Prakash Babulalsing Parmar 2007 (1) SCC 80, this court has taken a view that surname by itself is not indicative of the caste. Learned counsel submitted that the petitioner can prove that the said persons are not related to him. He submitted that inasmuch as the impugned order is ex- AJN 4 parte order, it may be set aside and he may be given a chance to appear before the Scrutiny Committee and prove that he is Mahadeo-Koli. 3. As against that, Ms. Thakur, learned A.G.P. urged that the impugned order is well reasoned. The Scrutiny Committee has taken into consideration the relevant factors and passed a correct order which does not deserve to be disturbed by this court. She submitted that though the petitioner was served with the notice, he purposely evaded appearing before the Scrutiny Committee and, therefore, this court should not show any indulgence to him. 4. With the assistance of learned counsel, we have perused the record of the case. In our opinion, the petitioner’s case that he was not served with a notice must be rejected without any hesitation. It is pertinent to note that as far back as on 13/9/2005, the Scrutiny Committee had sent a copy of the inquiry report to the AJN 5 petitioner and he was asked to submit his say on or before 30/9/2005 but the petitioner failed to submit his say. The Scrutiny Committee vide its letter dated 3/5/2008 called the petitioner for hearing on 16/5/2008. Copy of the enquiry report dated 7/6/2005 on which arguments are being advanced was sent to the petitioner along with this letter and the petitioner was asked to submit his say on or before 16/5/2008 but the petitioner did not appear for hearing. The petitioner did not submit his say on the findings of the inquiry report. The petitioner was again called for hearing on 11/6/2008 vide Scrutiny Committee’s registered letter dated 30/5/2008 but he did not appear for hearing. He did not submit his say on the findings of the inquiry report. The Scrutiny Committee has stated that the receipt of the registered letter is on record. The petitioner was again called for hearing vide Scrutiny Committee’s telegram dated 25/6/2008 but he did not appear for hearing nor did he submit his say on the findings of the inquiry report. It is in these circumstances, that the Scrutiny Committee had no option but to peruse AJN 6 the inquiry report and the other available documents and pass the order. We cannot fault the Scrutiny Committee for this. A person who willfully abstains from hearing before the Scrutiny Committee cannot turn around and say that the order passed against him be set aside because it was ex-parte. It was open to the petitioner to submit a detailed reply. It was open to the petitioner to go and ask for time. He did not do either. The Scrutiny Committee has stated that the case of the petitioner was referred to it by the Collector, Sangli (Election Branch) and being election matter it had time limit and hence the Scrutiny Committee had to decide it within time limit. The petitioner’s proposal was earlier sent by his employer - MSRTC. The petitioner obviously did not participate in the inquiry because he wanted to buy time. 5. We have carefully perused the original file which was produced before us and we are satisfied that indeed notices were served on the petitioner and despite service of notices, he did not remain present before the Scrutiny AJN 7 Committee at the time of hearing. In fact, learned counsel has fairly admitted that at least one notice dated 30/5/2008 was served on him. A faint grievance was made that impugned order was also not served on the petitioner. But that is not true. The impugned order was sent to the petitioner at the address given in the cause title of the petition. It was also sent to him at Achakanhali, Taluka Jat, Dist Sangli. 6. It is also significant to note that the petition was filed on 13/8/2008 and was first moved before this court on 21/11/2008. We were requested to take up this petition urgently because we were told that the by-election of the Gram Panchayat is to be held on Sunday i.e. on 25/7/2009. We fail to understand why the petition filed on 13/8/2008 was moved before this court as late as on 21/11/2008. 7. In any case, the nominations have been filed long back and the last date has expired. We do not see how AJN 8 there is at all any urgency. In any case, since the urgency was pleaded in the interest of justice we have taken up this matter for final hearing. 8. In spite of the conduct of the petitioner, we would have set aside the impugned order it being ex-parte and remanded the matter if we were to come to a conclusion that it is erroneous or that any injustice is caused to the petitioner. But, even on the merits, in our opinion, the petitioner does not have a good case. We have carefully perused the vigilance report dated 7/6/2005. To this report is annexed statement dated 3/2/2005 of Laxman Koli, brother of the petitioner. Laxman Koli has stated that his father’s name is Hirgappa Koli and his brother’s name is Kumar i.e. the present petitioner. Laxman Koli has stated that his grandfather was Bhimanna Tamanna Koli and his uncle is Sidraya Bhimanna Koli. The report shows that in his uncle Sidraya Koli’s school record of 1943, his caste is stated as Koli. In the school record of Balu Tamanna Koli who is stated to be a relative of the AJN 9 petitioner, his caste is shown as Koli as on 17/12/1948. Vithal Tamanna Koli is shown as relative of the petitioner. In his school record as in 1952 he is shown as Hindu-Koli. Even if for a moment we leave aside all other names, who appear to be distant relatives of the petitioner and who are also shown to belong to Koli caste, the school record of Bhimanna and Sidraya who are the petitioner’s relatives is of a period prior to the Presidential Order and has great probative value. In this connection, reference may be made to the judgment of the Supreme Court in Kumari Madhuri Patil & Anr. v. Addl. Commissioner, Tribal Development, Thane & Ors. (1997) 5 SCC 437. It is pertinent to note that the Scrutiny Committee has also observed that at the time of home inquiry, the petitioner’s brother was unaware of most of the characteristics and customs of Mahadeo-Koli, Scheduled Tribe. Hence, the affinity towards Mahadeo- Koli Scheduled Tribe, is not proved. Therefore, in our opinion, the Scrutiny Committee cannot be faulted for having concluded that the petitioner is a Koli and does not AJN 10 belong to Mahadeo-Koli, Scheduled Tribe. In the view that we have taken, in our opinion, no interference is necessary with the impugned order. The petition is, therefore, dismissed. [SMT. RANJANA DESAI, J.] [A.A. SAYED, J.]