1 WP1471.11 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1471 OF 2011 Madan Bandopant Chodankar ... Petitioner v/s The State of Maharashtra & ors. ... Respondents Mr.R.K.Mendadkar with Kuldeep Pawar and Ms.Helen Koli- Mandlik for the petitioner. Mr.V.A.Gangal, Spl. Counsel with Mr.C.R.Sonawane, A.G.P. for respondent Nos.1 to 3. Mr.S.S.Patwardhan for respondent No.4. Mr.Y.S.Jahagirdar, senior counsel i/by Rahul P. Walvekar for respondent No.5. CORAM: B.H.MARLAPALLE & SMT.NISHITA MHATRE, JJ. DATED: 30TH NOVEMBER, 2011 P.C.: 1. Heard Mr.Mendadkar, the learned counsel for the petitioner. 2. Rule. 2 WP1471.11 3. Respondents waive service. 4. The respondents have filed affidavit in reply and also photo-stat copies of some of the documents. Hence, by consent of the parties, the petition has been heard finally. 5. By this petition filed under Article 226 of the Constitution, the petitioner has brought in question the legality, validity and propriety of the order dated 19.5.2010 passed by respondent No.2 Committee, thereby validating the caste claim of respondent No.5 as “Kunabi – O.B.C.” and the caste validity certificate issued in favour of respondent No.5. 6. It appears that, on or about 14.5.2010 respondent No.5 submitted an application for verification of his caste claim based on the caste certificate issued in his favour by the Sub- Divisional Officer, Karveer Division, Karveer, on the same day and the application was received by the Committee on 15.5.2010. The Committee scrutinized his caste claim and on 19.5.2010 issued the validity certificate. The said order dated 19.5.2010 refers to the documents filed by the claimant including his caste certificate and by a cryptic reasoning, 3 WP1471.11 *v* dkxni=s o ‘ksrh O;olk;kps iqjkos o:u dquch tkrhpk nkok oS/k dj.;kr ;sr vkgs- 7. Though the petitioner was not complainant before the Committee, the challenge to the order passed by the Committee at the behest of the petitioner will have to be entertained in view of the law laid down by the Supreme Court in the case of Raju Ramsingh Vasave v/s Mahesh Deorao Bhivapurkar & ors., reported in (2008) 9 SCC 54. 8. It was contended by Mr.Mendadkar that the Committee did not follow the mandatory procedure as laid down by the Supreme Court in the case of Kumari Madhuri Patil & anr. v/s Addl. Commissioner, Tribal Development & ors., reported in (1994) 6 SCC 241, and more particularly, the vigilance cell enquiry was not ordered and carried out. He also submitted that the three documents relied upon by the Committee for the period from 1912 to 1920 did not state the caste “Kunbi” and the caste was shown as “dq-”. By referring to the Government Resolution dated 13.10.1967, Mr.Mendadkar pointed out that in the said list of 180 castes, the cast at Sr.No.80 to 84 and 171 start with “dq-” as under, 4 WP1471.11 80- dqpca/k 81- dqNkfj;k 82- dqaHkkj] dqEgkj 83- dq.kch 84- dqjekj 171- dqjghu ‘ksêh He submitted that the caste written as (dq-) cannot be just attributed to Kunbi and it could be of any of the above mentioned six castes. It is also urged that, admittedly, there was no vigilance enquiry ordered in the case of respondent No.5 before the impugned caste validity certificate was issued and such requirement is mandatory. Para 5 of the judgment in the case of Kumari Madhuri Patil (supra) reads 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 5 WP1471.11 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 traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc. 9. Our attention has also been invited to the following certificates in respect of the petitioner and his father, uncle so as to point out that he belongs to “Maratha”. (i) School Leaving Certificate issued by Sou.S.M.Lohia High School, Kolhapur, in favour of the petitioner. As per the said document, he was admitted in the said school on 19.6.1979 and the date of leaving was 31.5.1985 and his caste is shown as “Maratha”. (ii) Private High School of Private Education Society issued a school leaving certificate in favour of the petitioner’s father. The said certificate indicated that the petitioner’s father was admitted in the school on 13.6.1958 and he left the said school on 18.12.1961. The certificate indicated the petitioner’s father’s caste as “Maratha”. (iii) School admission register extract in respect of the petitioner’s uncle Shri Arun Bhauso Chavan, who was admitted to the school on 23.6.1953 and his caste was shown 6 WP1471.11 as “Maratha”. (iv) Petitioner’s father’s school admission register extract which indicated that he was admitted to the school on 7.12.1951 and his caste was shown as “Maratha”. Mr.Mendadkar relied upon the decision of this Court in the case of Jagannath Damodarhole v/s State of Maharashtra, reported in 2004-Mh.L.R.-2-667 in support of his contention that other person belonging to “Maratha” caste is not a Kunbi. Mr.Mendadkar, therefore, urged that the impugned order passed by the Scrutiny Committee be quashed and set aside and respondent No.5 has to be unseated as a Councillor. However, the learned counsel fairly conceded that the complainant or any other person has not filed any election petition challenging the election of respondent No.5 on the ground that he submitted/claimed the bogus status of belonging to O.B.C. and no such petition is presently pending. At the same time, this petition arises from an order passed by respondent No.2 Committee and in case his caste validity certificate is set aside, the caste certificate will still remain in force and the prayer for unseating the Councillor cannot be considered unless the caste claim itself is invalidated. Hence, we do not find any force in the prayer that the respondent No.5 has to be 7 WP1471.11 unseated. So far as the caste validity certificate based on the impugned order is concerned, we are not impressed by the argument advanced on behalf of respondent No.2 Committee by Mr.Gangal. In our considered opinion, vigilance enquiry is necessary in the instant case as well and the record indicates that within a period of four days the Committee completed the verification proceedings and validated the caste claim of respondent No.5. The documents relied upon by the Committee do not prove the caste claim of respondent No.5 as belonging to Kunbi caste and at the same time the documents relied upon by Mr.Mendadkar are required to be considered by the Committee. Hence, this is a fit case where the caste claim of respondent No.5 is required to be remanded for a de novo enquiry and decision. 10. Hence, the petition is partly allowed and the impugned order as well as the caste validity certificate dated 19.5.2010 is hereby quashed and set aside. The caste certificate dated 14.5.2010 issued in favour of the petitioner as belonging to Kunbi – O.B.C., is remanded for fresh scrutiny to respondent No.2 Committee with a further direction that the said certificate be verified by following due procedure and as expeditiously as possible but in any case before 31.3.2012. 8 WP1471.11 11. Rule is made absolute in the above terms. 12. Needless to mention, the Committee will consider the claim of respondent No.5 on its own merit by following the due procedure. 13. Original papers be returned. (SMT.NISHITA MHATRE, J.) (B.H.MARLAPALLE, J.) 9 WP1471.11