1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. WRIT PETITION NO.832 OF 2010 Aniruddha s/o Laxmanrao Khotkar & ors. ..PETITIONERS VERSUS The Caste Certificate Scrutiny Committee, Nashik & anr. ..RESPONDENTS Mr P.R. Katneshwarkar, Advocate for the petitioners; Mr S.K. Tambe, A.G.P. for respondent no.1; Mr V.D. Salunke, Advocate holding for Mr M.S. Deshmukh for respondent no.2. CORAM : P.V. HARDAS AND N.D. DESHPANDE,JJ. (Date of reserving the order : 11.6.2010 Date of pronouncing the order : 11.8.2010) ORDER (PER P.V. HARDAS, J.) By this petition under Article 226 of the Constitution of India the petitioners pray for quashing and setting aside the validity certificate issued by respondent no.1 Scrutiny Committee, Nashik Division, Nashik, dated 4.8.1997, certifying that the second respondent belongs to "Hindu Kunbi" caste, which is recognised as Other Backward Class. 2 2. According to the petitioners, the petitioners are social workers and are actively interested in politics of local bodies, such as Zilla Parishad, etc. Respondent no.2 on her marriage came to reside at Kumbhar Pimpalgaon, Taluka Ghansawangi and contested the elections of Zilla Parishad, Jalna and came to be elected from the Kumbhar Pimpalgaon constituency in 2007. Since the post of the President of Zilla Parishad, Jalna was reserved for Other Backward Class (woman) in the year 2009, respondent no.2 contested the said post and submitted her nomination contending that the second respondent belongs to Other Backward Class. Respondent no.2 annexed the necessary documents to substantiate her claim. The nomination of the second respondent came to be objected by the other contestants but the Returning Officer turned down the objections in respect of the validity certificate which was issued to second respondent. The second respondent came to be elected as the President of Zilla Parishad, Jalna. The petitioners thereafter sought various information under the Right to Information Act and after obtaining the necessary information have filed the present petition. 3. According to the petitioners the Scrutiny Committee did not follow the directives issued by the Supreme Court in the case of Kum. Madhuri Patil vs. State of Maharashtra, AIR 1995 S.C. 94, i.e. no report from the vigilance cell was obtained. The validity certificate came to be issued 3 to respondent no.2 on the same day without conducting any inquiry through the vigilance cell. According to the petitioners, father and grand- father of respondent no.2 belonged to "Hindu Maratha" and consequently how could the respondent no.2 claim to be belonging to "Hindu Kunbi" and, therefore, the validity certificate issued to respondent no.2 stands vitiated. 4. On notice of this petition being issued to the respondents, respondent no.2 has filed the affidavit in reply and in the affidavit in reply it is stated that this petition suffers from delay and laches. It is contended that the validity certificate came to be issued by the competent Scrutiny Committee on 4.8.1997 and the same is being challenged in this petition after more than 12 years. It is further stated that since the petitioners no.2 & 3 are not Councillors of Zilla Parishad, Jalna, they have no locus to challenge the certificate of validity issued in favour of respondent no.2. It is further stated that though this petition is ostensibly filed as a public interest litigation, no leave for filing the same as a public interest litigation was sought. It is further urged before us that respondent no.1 Scrutiny Committee had relied upon the document at Exhibit 4, which is an old document while validating the caste claim of respondent no.2. Respondent no.2 has denied the genuineness of the documents relating to her father and grand-father and contends that the document pertaining to the great grand-father of respondent no.2, namely Shri Dharma Laxman Dalvi, which pertains to the year 1909 4 shows his caste as "Kunbi". Respondent no.2 further contends that after the validity certificate came to be issued to respondent no.2, her sister namely, Nayana Shivaji Dalvi as well as the first paternal cousin named Bhushan Nanaji Dalvi and a second paternal cousin, namely Shri Kiran Kevalrao Dalvi have all been issued with the validity certificates by the competent Scrutiny Committee. Respondent no.2 further contends that on account of passage of time the original record was not available with the Scrutiny Committee and, therefore, the petitioners cannot contend that respondent no.2 had suppressed any documents or that the Scrutiny Committee had not given any reasons for issuing the validity certificate. The learned Counsel for the petitioners has placed reliance on the judgment of the Division Bench of this Court in Devendra Gurunath Khedgikar vs. Scheduled Tribe Certificate Scrutiny Committee & anr., 2009 (4) Bom. C.R. 805, to urge before us that the respondent no.2 has obtained the validity certificate by practising fraud and suppressing vital material from the Scrutiny Committee. It is next urged before us by the learned Counsel for the petitioners by relying on the judgment of the Division Bench of this Court, to which one of us (P.V. Hardas, J.) was a member, in Pashamiya Khajamiya Attar vs. State of Maharashtra & ors., 2008 (6) Bom. C.R. 248, that the validity certificate would stand vitiated in the event the Scrutiny Committee fails to give reasons for arriving at its conclusion. It is further urged before us by relying on the judgment of Supreme Court in Raju Ramsing Vasave vs. Mahesh Deorao Bhivapurkar & ors., 2008 (9) JT 445, that question of res 5 judicata would not apply where the certificate has been obtained by practising fraud on the Scrutiny Committee. It is urged before us that an order obtained by fraud is nullity. Reliance is also placed on the judgment of the Supreme Court in case of Kum. Madhuri Patil vs. Additional Commissioner, Tribal Development, AIR 1995 SC 94, to urge before us that the procedure as laid down in respect of the verification of the caste certificate has not been followed by the respondents. It is also urged before us by relying on the Full Bench judgment of this Court in Shilpa Vishnu Thakur vs. State of Maharashtra & ors., 2009 (3) Bom. C.R. 497, that the affinity test is an important test for determining the claim of caste set up by a candidate. 5. It would appear that a petition of this nature would certainly be maintainable on the ground that a validity certificate has been obtained by a candidate by practising fraud on the Scrutiny Committee and by suppressing vital information and misleading the Committee believing that the caste claim set up by the said candidate is a genuine caste claim. This petition, however, suffers on account of delay and laches. After 13 years of the Scrutiny Committee having issued the validity certificate this petition has been filed questioning the aforesaid validity certificate. On account of passage of time the original record which was before the Scrutiny Committee while issuing the validity certificate is not available and consequently this Court is unable to determine if the contra evidence which is sought to be produced by the petitioners in this petition 6 had been examined by the Scrutiny Committee. On account of the non- availability of the record also it appears that this Court is unable to arrive at a conclusion as to whether a judgment had been delivered by the Scrutiny Committee giving reasons for holding that respondent no. 2 belongs to "Kunbi" caste, which is recognised as Other Backward Class. Delay has virtually destroyed the case which is sought to be presented by the petitioners before us. This does not appear to be a petition in pure and simple public interest questioning the fraudulent order passed by the Scrutiny Committee. There is certainly an element of personal interest involved in the present petition. Political rivalry is apparent and appears to be a strong motive in filing the present petition. In the absence of the necessary record being available for the perusal of the Court, according to us it would be most inappropriate on our part to entertain a petition questioning the validity certificate issued about 12 to 13 years back on the specious plea that certain contra evidence may not have been considered by the Scrutiny Committee or that the Scrutiny Committee with a mala fide intention had issued the validity certificate without giving any reasons for arriving at its conclusion. Additionally, we find that the order of the Scrutiny Committee granting validity certificate to the respondent has attained finality as on the basis of the validity certificate issued to the respondent, other validity certificates have been issued to the relatives of the respondent. If that be the case, according to us the petition deserves to be dismissed. 7 6. After giving our anxious consideration to the rival submissions advanced before us by the learned Counsel for the parties, according to us no case for interference is made out by the petitioners and this petition, therefore, being sans merit is summarily dismissed with no order as to costs. (N.D. DESHPANDE, J.) ( P.V.HARDAS, J.) amj/wp832.10