1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4370 OF 2007 Gyanmurti Ramchandra Sharma, ] Age: 36 yrs. Occ: Advocate ] R/o. R.No. 5, Latif Shah Compound, ] Pathanwadi, Malad (East), Mumbai 400 097 ] ...Petitioner Versus 1. The State of Maharashtra, ] Through its Secretary, ] Social Welfare Department, Mantralaya, ] Mumbai 400 032 ] 2. Divisional Caste Certificate Verification ] Committee, Mumbai Division, Mumbai, ] through its member-Secretary having its office ] at 5th Floor, Konkan Bhavan, CBD Belapur, ] Navi Mumbai 400614 ] 3. Municipal Corporation of Greater Mumbai, ] through its Commissioner having its office ] at M.C.G.M., Head Office, Mumbai 400 001 ] 4. Office of the Dy.Collector, ] having its office at Old Custom House, ] Shahid Bhagat Singh Road, Mumbai 400 001 ] 5. Kamala Prasad Dhaniram Yadav ] Room No.9, Milan Seva Sangh ] Bachani Nagar, Cross Road, Malad (East), ] Mumbai 400 097. ] ...Respondents 2 Mr. Y.S. Jagahirdar, Senior Advocate, with Mr. G.S. Godbole and Mr. Mehendra Kumthekar i/by M/s. K.P. Tiwari & Co. for the Petitioner Mr. C.R. Sonawane, Assistant Government Pleader, for Respondents No. 1, 2 and 4 Mr. M.P. Vashi, Senior Advocate, with Mr. S.B. Narwade for Respondent No. 5. CORAM: B ILAL NAZKI and SMT. V.K. TAHILRAMANI, JJ. RESERVED ON: 12-6-2009 PRONOUNCED ON: 15-9-2009 JUDGMENT (Per Bilal Nazki, J.) :- 1. The petitioner claims that he belongs to ‘Nhavi’ Caste. This is also known as ‘Nai’ or ‘Barbar’ Caste and is recognised as Other Backward Class in State of Maharashtra. The petitioner contested the General Election of Municipal Corporation of Mumbai against a seat, which was reserved for OBC General Category. He secured the highest number of votes, and was declared as an elected candidate on 2nd February, 2007. He was required to produce Caste Validity Certificate issued by 3 respondent No. 2 within three months. Therefore, he submitted his Caste Certificate before the Registration Committee for validation. 2. In the meantime, respondent No. 5 lodged a complaint before the Caste Certificate Verification Committee, alleging that the same was obtained by the petitioner by forging and fabricating documents. Thereafter, the matter was considered by the Caste Verification Committee, which is respondent No. 2, and passed an order invalidating the Caste Certificate of the Petitioner on 1st June, 2007. This certificate is challenged in this Writ Petition. 3. The petitioner contends that his father, Shri Ramchandra Bachcharam Sharma, came to Bombay in year 1964 with his wife, and started residing at Mazgaon, Bombay. On 16th April, 1965, his eldest brother was born at Cama Hospital, Bombay. He also contends that his father’s name was incorporated in the Electoral Roll dated 1st January, 1966. This Electoral Roll shows his caste as ‘Nhavi’. Two years after migrating to 4 Maharashtra, the father of the petitioner was appointed at the General Post Office, and he joined service on 20th June, 1966. He completed his entire service in Mumbai, and superannuated in 2004, and, after retiring, stayed permanently in Mumbai. The petitioner states that his father was enrolled as a member of the Mumbai Postal Co-operative Society Ltd., and his residential address on record is of Malad, Mumbai. His sister was also born in Mumbai. His father took admission in Bharati Vidya Mandir Hindi Night High School in 1968. He left the school in 1969. The School Leaving Certificate also shows that his father’s caste is ‘Nai’. He changed his name in 1968, and a Gazette Notification was issued to the effect that his name would read as “Ramchandra Bachcharam Sharma”, instead of “Ramchandra Bachcharam Barbar”. 4. The petitioner was born in 1971 at Malad. He was educated from K.G. to LL.B. In the City of Mumbai. His marriage was solemnised in the City of Mumbai, and his two children were 5 born in Mumbai. The petitioner is an advocate by profession. A ration card was issued in his name in 1973. 5. The order of the Caste Verification Committee is challenged on the following grounds:- (1) That the impugned order passed is contrary to the evidence on record. (2) That the petitioner would be treated as only resident of Maharashtra as per Government Resolution dated 1st November, 1985. 6. All other grounds mentioned in this writ petition and argued before this Court relate to certificates which have been scrutinised by the Caste Certificate Verification Committee. The Committee, while considering the report, which it sought, came to the following conclusions:- (1)That the father of the petitioner was born and got his education up to year 1960 in Jounpur, 6 Uttar Pradesh. Thereafter, he came to Mumbai for employment in year 1964. He secured job in Postal Department in Mumbai. His permanent address in the Service Book had been shown as Village Bandipur, P.O. Shirkoni, Jaunpur, U.P. Besides, the address in the Caste Certificate of 10th May, 2001 by the then Tehsildar is of Village Bandipur, U.P. Inclusion of ‘Navi’ Caste in the list of Other Backward Classes had been made on 13th October, 1967. (2) According to the Committee, the petitioner had to show that his father had permanently come to Maharashtra before 1967. The Committee felt that, according to the Government decision dated 1st November, 1985, the petitioner could not be treated as permanent resident of Maharashtra State. 7 His father’s permanent address in the Service Book was Uttar Pradesh, and the Committee was of the view that the petitioner was a permanent resident of U.P. and his domicile in Maharashtra was not proved. 7. The facts are not in dispute, but it is the application of certain circulars which has to be considered. The most important Circular is the Circular dated August 9, 1995 issued by the Maharashtra Government. Entry No. 276 in this shows that Hajam, Kalseru, Navliga, Kanshi Nabhik, Nai are Backward. This circular came to be issued for including the castes in the list of Backward Classes, as they were mentioned in the Mandal Commission’s Report, but not in the State List. 8. Another circular is of 24th August, 1995. This circular was necessitated in view of a judgment of the Supreme Court, and it held certain classes of persons, who were not born in Maharashtra, to be entitled to Backward Status. However, it stated 8 that it is being again clarified “that those who have migrated to Maharashtra State shall not be entitled to the benefits granted by the State”. Then, there is a 1993 Circular. 9. The question is: Whether the petitioner can be treated to be a permanent resident of Maharashtra State? If the answer to that question is yes, then he will be entitled to the relief he claims, but if it is otherwise, then he may not succeed. 10. In this connection, there is a judgment of the Supreme Court in Union of India & Ors. v. Dudh Nath Prasad, reported in (2000) 2 Supreme Court Cases 20, where, while interpreting Section 20 of the Representation of the People Act, 1950, it held: “that permanent resident does not include a casual stay in, or a flying visit to, particular place. In short, the meaning of the word would, in the ultimate analysis, depend upon the context and the purpose of a particular statute. In this case the context and purpose of the present statute certainly do not compel the importation of the concept of domicile in its technical sense.” 9 In paragraph 26, it said: “Etymologically, ‘residence’ and ‘domicile’ carry the same meaning, inasmuch as both refer to the ‘permanent home’, but under private international law, ‘domicile’ carries a little different sense and exhibits many facets. In spite of having a permanent home, a person may have a commercial, a political or forensic domicile. ‘Domicile’ may also take many colours; it may be the domicile of origin, domicile of choice, domicile by operation of law or domicile of dependence. In private international law, ‘domicile’ jurisprudentially has a different concept altogether. It plays an important role in the conflict of laws. The subject has been elaborately considered by Dicey in his book Conflict of Laws (6th Edn.) as also in another book by Phillimore on domicil. An equally valuable discussion is to be found in Private International Juridprudence by Foote and by Westlake on private international law.” 11. Verification Committee was of the view that the father of the petitioner had shifted to the State of Maharashtra in 1964, and, therefore, if he was permanent resident of Maharashtra, then the petitioner would be entitled to the benefit, because Nai was included in the Other Backward Class on 13th October, 1967, but the Committee found that the father of the petitioner had not permanently shifted to Maharashtra for the reason that he gave his permanent address in the Service Book; but it is not disputed that right from 1966 till date, i.e., for more than 40 years, the 10 petitioner’s father and petitioner have lived in Maharashtra. Therefore, even according to the Government decision of 1st January, 1985, the petitioner, in our view, was eligible, but on evidence, we have not found whether the petitioner really belongs to the ‘Nai’ Caste or not because, according to the petitioner, his father’s original surname was ‘Nai’, but he got it subsequently changed to ‘Sharma’ through a Gazette Notification in 1968. This creates doubt. If the petitioner’s father was originally ‘Nai’, how could he become ‘Sharma’? ‘Sharma’, admittedly, is a high caste. What were the reasons for the father of the petitioner, in 1968, to get his caste changed from ‘Nai’ to ‘Sharma’? Therefore, while we hold that if the petitioner proves that he was ‘Nai’ by birth, he will be entitled to verification, but there is nothing on record to show that he had proved before the Caste Verification Committee that he was a ‘Nai’, and this question has not been considered by the Committee. 12. We, therefore, allow the Writ Petition, set aside the impugned order of respondent No. 2-Committee, and remand the 11 matter back to the Committee for fresh disposal in accordance with our observations. The Committee shall try to expedite the matter, and decide it within a period of 6 months. The Rule is made absolute to the above extent. BILAL NAZKI, J. SMT. V.K. TAHILRAMANI, J.