WP 5361/2007 1 IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 5361 OF 2007 Subhash s/o. Lotan Koli, Age 40 yrs., Occu. Agriculture, R/o. Vitner, Taluka Chopda, District Jalgaon. ....Petitioner. Versus 1. The State of Maharashtra, Through its Secretary, Rural Development Department, Mantralaya, Mumbai. 2. The Committee for Scrutiny and Verification of Tribe Claims, Nasik Division, Nasik. 3. The Collector, Jalgaon. 4. The Tahsildar, Chopda, Taluka Chopda, Dist. Jalgaon. ....Respondents. Mr. A.B. Kale, Advocate for petitioner. Mr. S.K. Kadam, A.G.P. for respondent Nos. 1, 3 & 4. Mr. A.R. Salve, Advocate for respondent No. 2. CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. Reserved on : 8th December, 2011. Pronounced on: 17th December 2011. ORDER : [ PER T. V. NALAWADE, J. ] 1. The petition is filed under Article 226 of Constitution of India to challenge the order made by Caste Scrutiny WP 5361/2007 2 Committee, Nasik on 4.6.2007. The Caste Scrutiny Committee has invalidated the caste claim of petitioner. Due to this decision, the election of petitioner to Panchayat Samiti, Chopda, District Jalgaon is set aside. The original record of the proceedings was called and this Court has perused the same. Both the sides are heard. 2. Section 8 of Maharashtra Scheduled Castes, Scheduled Tribes etc. (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (hereinafter referred to as "the Act" for short) provides that the burden of proving that the person belongs to such caste, tribe etc. shall be on such claimant/applicant. The petitioner had obtained the caste certificate on 1.8.1977 from Executive Magistrate, Chopda on the basis of affidavit filed by his father. Before the Caste Scrutiny Committee, the petitioner produced documents like caste certificate issued to his father, brothers and issues. The petitioner relied on zerox copy of first page of service record of his real brother. He relied on judgment delivered in one petition filed before the District Judge in respect of acceptance of nomination paper in a local election. He relied on some affidavits of his so called relatives. He produced a copy of order made in favour of his alleged relatives on maternal side in respect of the caste claim. WP 5361/2007 3 3. The Caste Scrutiny Committee referred the matter to Vigilance Cell for enquiry. Vigilance Cell collected record in respect of petitioner, father and brothers of the petitioner. The school record of the petitioner, his issues was also collected. The Vigilance Cell collected information in respect of practices and customs of the family and forefathers of the petitioner. As this report was adverse, copy of the report was supplied to the petitioner. The petitioner gave explanation in respect of Vigilance Cell's report. Personal hearing was then given to petitioner by the Committee. The Committee has rejected the claim as the school record of the petitioner, his father and his brother is to the effect that they belong to caste "Koli", sub-caste "Suryawanshi Koli". This record is as old as 1936 in respect of the father of the petitioner. The Committee has also held that the petitioner has failed to establish his association, affinity towards schedule tribe "Tokare Koli", to which he allegedly belongs. 4. Admittedly, the petitioner relied only on the record which was created after 1977, the year of obtaining caste certificate from Executive Magistrate. The petitioner did not produce old record before the Committee. The Vigilance Cell was required to collect the aforesaid school record in respect of the petitioner, his father and brothers. The record shows that they WP 5361/2007 4 were admitted in Zilla Parishad Primary School Vitne, Tahsil Chopda, District Jalgaon. It can be inferred that the religion and the caste of father of petitioner was given as "Hindu", sub-caste "Koli" by the grandfather of petitioner. The father of the petitioner studied in the same school up to 6th standard. The school record shows that eldest brother of petitioner namely Bhagwan was admitted in the same school in the year 1966 and his caste was described as "Hindu Suryawanshi Koli". Similar information was given in respect of other elder brother in 1970 and also in respect of the petitioner, who was admitted in Zilla Parishad School in 1972. This information must have been given by the father of the petitioner, who was educated atleast up to 6th standard at the relevant time. Sixth standard education was treated as sufficient even for getting employment in Government at the relevant time. In birth register of village Vitne, the caste of petitioner was recorded as "Koli" in the year 1966. This record cannot be ignored and it was necessary for the petitioner to offer explanation in respect of this adverse record. 5. In reply to the Vigilance Cell Report, the petitioner has contended that his father was illiterate and so the name of the caste was wrongly given. This contention cannot be accepted in view of the aforesaid record. Thus, before the Presidential Order, WP 5361/2007 5 1950, the caste of the petitioner was recorded as "Suryawanshi Koli" in birth register and in school register also. 6. In Maharashtra, as per Government Resolution dated 7.12.1994 caste "Koli" and sub-caste "Suryawanshi Koli" are declared as "Special Backward Class". By Government Resolution dated 15.6.1995 the State Government has declared that all other sub-castes of "Koli" which are notified as scheduled tribes are also to be treated as "Special Backward Class". The Constitution (Scheduled Tribes) Order, 1950 shows that "Tokare Koli" community is declared as Scheduled Tribe. The Committee or the Court cannot presume or infer that the caste described as "Suryawanshi Koli" is included in Scheduled Tribe community "Tokare Koli" or it is a sub-caste of "Tokare Koli" - Tribe. 7. The record on which the petitioner has relied shows that the petitioner, his father and his brother had obtained the caste certificates from the same Executive Magistrate on 1.8.1977. The father of the petitioner had relied on the certificate issued by Village Sarpanch and affidavit of father of petitioner for getting the caste certificate. In view of these circumstances, it needs to be presumed that all the subsequent record created in favour of petitioner, his brothers, issues or even the father of the WP 5361/2007 6 petitioner, was created after 1.8.1977 and on the basis of this caste certificate. Caste certificate also shows that the aforesaid old record in respect of petitioner or his father was not produced before the Executive Magistrate when the caste certificates were obtained. In view of this circumstance, not much weight can be given to the record created after 1977. 8. The information regarding practices and customs of the family of the petitioner was collected by Vigilance Cell and this information is considered by Research Officer and by the Committee. There is the endorsement of Research Officer on the report prepared by Police Inspector, who did the home enquiry, the school inquiry etc. This endorsement shows that the petitioner has failed to establish his association/linkage with "Tokare Koli" community. 9. For petitioner following cases were cited in support of contentions made in his favour. (i) 2004 (4) ALL MR 815 [Prabhu s/o. Narayan Survase Vs. State of Maharashtra and Ors.], (ii) AIR 1985 BOMBAY 45 [Abhay Shrawanji Parate Vs. State of Maharashtra and Ors.], (iii) 1990 (1) Bom. C.R. 557 [Narayan WP 5361/2007 7 Deoji Koli Vs. State of Maharashtra & Ors.], (iv) 2003 (4) ALL MR 621 [Mr. Yatin Nilkanth Bastav Vs. Executive Magistrate & Ors.], (v) 1996 (3) SCC 685 [Gayatrilaxmi Bapurao Nagpure Vs. State of Maharashtra], and (vi) a copy of judgment delivered by this Court in Writ Petition No. 3599/2006, dated 11.9.2007 [Coram : N. V. Dabholkar & M.G. Gaikwad, JJ.]. This Court has perused all these cases. 10. In the case of Mr. Yatin cited supra, this Court has observed that, "General description of genus Caste (Koli) does not exclude any particular specie such as 'Mahadev Koli'." In the case of Prabhu Survase cited supra, this Court has laid down that, "High Court cannot go beyond entry in notification". In the present case, the old record created prior to the Presidential Order and prior to 1977 shows that the petitioner and his forefathers were using their caste as "Suryawanshi Koli". The relevant notification and Government Resolutions already mentioned show that castes "Koli" and "Suryawanshi Koli" are Special Backward Class for Maharashtra. In view of these circumstances, the cases cited supra are of no help to the petitioner. WP 5361/2007 8 11. Section 6 of the Act shows that Caste Scrutiny Committee is expected to verify each caste certificate which comes before it before it issues validity certificate. The procedure to be followed by the Committee is laid down in the Maharashtra Scheduled Tribe (Regulation of Issuance and Verification of) Certificate Rules, 2003 (hereinafter referred to as "the Rules" for short). The Committee is expected to apply its mind to facts of each and every individual case in view of the provisions of the Act and the Rules. As more material may become available to the Committee than was made available to the previous Committee when the validity certificate was issued by the previous Committee in favour of relatives of the petitioner, such enquiry needs to be made. Rule 3 (3) of the Rules gives list of documents which applicant is expected to produce. The Rules also show that more importance needs to be given to the record in respect of the relatives on the side of the father of the applicant. The facts of this case show that petitioner avoided to produce such pre-1977 record and that old record is collected by Vigilance Cell. That record is totally inconsistent with the case of the petitioner. On the basis of aforesaid material, the Committee has taken a decision which is under challenge. This Court has no hesitation to hold that the view taken by the Committee is a possible view. It WP 5361/2007 9 cannot be said that the finding of the Committee is not based on evidence or there is perverse appreciation. 12. For the petitioner it was submitted that the matter needs to be remanded back as Research Officer did not visit the home, school etc. for making the enquiry. There is no force in this submission. In the case reported as 2007 (2) Mh. L. J. 760 [Prajakta Sahebrao Birhare Vs. State of Maharashtra & Ors.], this Court has interpreted Rule 10 and it is observed that if the Vigilance Cell consists of police personal and Research Officer, it is not necessary that the said Research Officer shall accompany the police officer to conduct the field enquiry and it is not the requirement of Rule 10. Most of the Rules are in consonance with the guidelines given by the Apex Court in landmark case of Kumari Madhuri Patil and Anr. Vs. Addl. Commissioner, Tribal Development and Ors. reported in (1994) 6 SCC 241. At para 13 (clause 5 of the procedure suggested by the Apex Court), it is mentioned that the Inspector would go to the local place of the candidate for enquiry. The Inspector is described as Vigilance Officer. Accordingly, in Rule 10, it is mentioned that the police personal is expected to visit the relevant places to collect material and to make enquiry. In the present case also Police Inspector made such enquiry and on the report prepared by the WP 5361/2007 10 Police Inspector, there is endorsement of Research Officer to show that the Research Officer considered the material and he gave his own opinion. Thus, no material irregularity is there in the procedure followed either by the Committee or the Vigilance Cell. 13. The petitioner is relying on judgment delivered by District Judge, Jalgaon in Election Appeal No. 3/1979. The acceptance of nomination form of father of petitioner and some other persons in reserved constituency, Zilla Parishad, Jalgaon was challenged in the appeal. In view of the Rules, which were prevailing in this regard in the year 1979, it was held by the District Judge that the certificate of caste which was issued by Executive Magistrate was produced before the Election Officer and on that basis that nomination form was accepted and so interference was not possible. This decision of the District Judge cannot be taken as the decision of validation of the caste of the father of the petitioner. So, this document is of no use to the petitioner. The other record is in respect of some alleged distant relatives like Rajendra and Atmaram in the form of caste certificate and decision of Additional Commissioner in a challenge made to caste certificate. This record is also of no use as it is not of recent period and the names of these persons do not appear in the family tree given by the petitioner in the affidavit. WP 5361/2007 11 14. In view of the aforesaid record and circumstances, this Court holds that no case is made out for interference in the decision of the Caste Scrutiny Committee. So the writ petition stands rejected. [ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.] ssc/