1 Mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.175 OF 2009 Kokila Raghunath Dhodia, ) Age 43 years, residing at ) Janubhai Patel Chawl, Kol ) Dongari Galli No.1, Andheri ) Station Road, Andheri (East), ) Mumbai-400 069. )..Petitioner Vs. 1.State of Maharashtra ) Through its Secretary, ) Tribal Development ) Department, Mantralaya, ) Mumbai-32.` ) 2.Scheduled Tribe Certificate ) Scrutiny Committee, Kokan ) 2 Division through its Member ) Secretary, having its office ) at Vartak Nagar, Ward Office ) Oppsite Kores Company, ) Vartak Nagar, Wagle Estate, ) Thane(W). ) 3.Tahsildar, Vasai, Dist.Thane. ) 4.Mrs. Renuka Pandurang Dive ) @ Renuka Narayan Kakare, ) resident of Laxmi House, ) Mhaskaras Wadi, Yograshram ) Erangal Marve Madh Road, ) Malad (W), Mumbai-95 )..Respondents Mr.Nitin Jamdar with Mr. R.K. Mendadkar, for the petitioner. Mr. Sekhar Ingawale AGP for respondent Nos. 1 to 3. Mr. Jay K. Bhatia, for respondent No.4. CORAM : FERDINO I. REBELLO & J.H. BHATIA, JJ. DATED : 3RD MARCH, 2010 3 JUDGMENT (PER FERDINO I. REBELLO , J): Rule. Heard forthwith. 2. The petitioner by the present petition challenges the order dated 19 th November, 2008 whereby the Committee has upheld the claim of the holder of the caste certificate Smt. Renuka Narayan Kakare as belonging to Varli, Scheduled Tribe. 3. A few facts may now be set out. The respondent No.4 was issued a caste certificate dated 24 th August, 1996 as belonging to Scheduled Tribe, Varli. Based on the said certificate respondent No.4 contested the elections and was declared elected. The Committee had earlier validated the caste certificate . The same was challenged by the petitioner herein by filing Writ Petition No.2127 of 2007. A learned Bench of this Court by order dated 11 th September, 2008 set aside the order and remanded the matter to the Caste Scrutiny Committee to take a fresh decision in the matter of verification after following the procedure prescribed under the Act and the Rules which govern the subject. The learned Bench noted that the Caste Scrutiny Committee ought to have obtained report of the Police Vigilance Cell and examined the 4 claim of the respondent No.3 in accordance with the Caste Certificate Rules, 2003. Accordingly, the matter was handed over to the Vigilance Cell for conducting home, school and other enquiries. The Vigilance Officer conducted the enquiry after visiting the original and present place of residence of respondent No.4 and also obtained documentary evidence. A copy of the said report was made available to the petitioner. The remark of the Research Officer was that the traits, characteristics and customs, surnames of relatives traditional dress habits, traditional dances, deities, etc., does match with the Varli, Scheduled Tribe. The petitioner wAs also given a personal hearing and was asked to appear before the Committee along with her explanation on the enquiry report and any other documents other than the Vigilance Cell Report. 4. The order notes that the applicant and complainant were present at the time of personal hearing along with their learned Counsel. The Applicant was asked specific question pertaining to her affinity towards Varli, Scheduled Tribe. The order notes that the parties were heard fully and the matter was closed for orders. At the time of personal hearing the 5 complainant had submitted a reply to the Vigilance Cell Report. Advocate of the complainant also submitted an application to call for the original record of Village Gaon Namuna No.14. As the coloured zerox copy of the same had been brought by the Vigilance Officer by visiting Tahsil Officer, Vasai and confirmed the contents, the Committee thought that there is no need to call the original record. The Committee noted the various objections raised to the report and thereafter recorded its findings on the complaint. After considering the material on record the Committee noted that considering the totality of the matter the Committee was of the considered opinion that the Respondent No.4 belongs to Varli, Scheduled Tribe and hence validated the caste certificate. 5. At the hearing of this petition on behalf of the petitioner learned Counsel has challenged the certificate on various counts. It firstly sought to be contended that the documentary evidence on record was inconsistent and as such no reliance can be placed on the said documentary evidence. In so far as the traits, characteristics and customs is concerned, it is submitted that the issue was not correctly addressed. Though the respondent No.3 had 6 considered the certificate of Yogita Balu Kakare had not been established her genealogy had not been established and in these circumstances the petition ought to be allowed. 6. . We may firstly note that Rules have been framed known as Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of) Certificate Rules, 2003. We may quote the relevant Rule 12:- “”12. Procedure to be followed by Scrutiny Committee: (1) On receipt of the application, the Scrutiny Committee or a person authorised by it shall scrutinise the application, verify the information and documents furnished by the applicant, and shall acknowledge the receipt of the application. The Member Secretary shall register the application, received for verification, in the register prescribed by the Chairman. (2) If the Scrutiny Committee is not satisfied with the documentary evidence produced by the applicant the Scrutiny Committee shall forward the applications to the Vigilance Cell for conducting the school, home and other enquiry. 7 (3) The Vigilance Officer shall to to the local place of residence and original place from which the applicant hails and usually resides, or in case of migration, to the town or city or place from which he originally hailed from. (4)The Vigilance Officer shall personally verify and collect all the facts about the social status claimed by the applicant or his parents or the guardian, as the case may be. (5) The Vigilance Cell shall also examine the parents or guardian or the applicant for the purpose of verification of their Tribe, of the applicant. (6) After completion of the enquiry, the Vigilance Cell shall submit its report to the Scrutiny Committee who will in turn scrutnise the report submitted by the Vigilance Cell. (7) In case the report of Vigilance Cell is in favour of the applicant, and if the Scrutiny Committee is satisfied that the claim of the applicant is genuine and true, the Scrutiny Committee may issue the validity certificate. The validity certificate shall be issued in Form G. (8) If the Scrutiny Committee, on the basis of the Vigilance Cell report 8 and other documents available is not satisfied about the claim of the applicant, the Committee shall issue a show cause notice to the applicant and also serve a copy of the report of the Vigilance Officer by registered post with acknowledgment due. A copy shall also be sent to the Head of the Department concerned, if necessary. The notice shall indicate that the representation or reply, if any, should be made within fifteen days from the date of receipt of the notice and in any case not more than thirty days from the date of receipt of the notice. In case the applicant requests for adjournment or extension of the time-limit, reasonable time may be granted. (9) (a) After personal hearing if the Scrutiny Committee is satisfied regarding the genuiness of the claim, Validity Certificate shall be issued in Form G. (b) After personal hearing, if the Scrutiny Committee is not satisfied about the genuiness of the claim and correctness of the Scheduled Tribe Certificate, it shall pass an order of cancellation and of confiscation of the Certificate and communicate the same to the Competent Authority for taking necessary entries in the register and 9 for further necessary action. The Scheduled Tribe Certificate shall then be stamped as “cancelled and confiscated”.” 7. A perusal of the Rules would show that it is incumbent on the Committee to first verify the documentary evidence. If the Committee is not satisfied with the documentary evidence the Committee has then to forward the application to the Vigilance Cell for conducting school, home and other enquiry. It is not necessary for us to refer to the other Rules except to pont out that under sub-rule (5) the Vigilance Cell shall also examine the parents or guardian or the applicant who can be examined for the purpose of verification of their Tribe. Therefore, it is either the parents or the guardian of the applicant who can be examined. The report of the Vigilance Cell has to be submitted to the Scrutiny Committee, who in turn will scrutinise the report submitted by the Vigilance Cell. 8. In the instant case the genealogy was taken on record. Tanu Biku Kakare was the great grand father of the petitioner. He had two sons, Hira and Raghu. The petitioner comes from the line of Hira whose son Narayan is the father of the Respndent No.4. Yogita comes from the line of Raghu 10 whose son Balu was her father. Similarly, Lahanu is the son of Hira, who is the grand father of Respondent No.4. 9. The documentary evidence on record in the form of School Admission Register shows the Tribe of Balu Raghu Kakare as on the date of admission which is shown on 14 th July, 1977 as Hindu Varli and that of the petitioner also as Hindu Varli. Similarly, Balu whose date of admission is 6 th June, 1970 the date of birth is shown as 1 st October, 1962 and Tribe as Hindu Varli. The School Leaving Certificate of Lahanu Hira Kakare the date of admission is shown as 5 th July, 1971 and date of birth is shown as 16 th July, 1960 and the Tribe as Hindu Adivasi Malhar Koli Varli. The Committee notes that the remark of the Head Master issuing the School extract reveals that these changes have been made by the then Head Master and which has been signed by the Head Master. This doesl create some doubt as to the authenticity of the said record. There are some other relatives in whose cases the caste is shown as Malhar Kunbi, Hindu Malhar Kunbi. The Gaon Namuna No.14 shows the date of birth of the petitioner’s father as 16 th November, 1949 and Tribe as Varli. It also shows the date of birth of her 11 father as 22 nd November, 1949. Therefore, considering these documentary evidence in our opinion, it would not have been possible for the Committee to arrive at any definite finding as to the Tribe of the Respondent No.4. 10. In terms of the Rules, however, if the documentary evidence is not conclusive, the report of the Vigilance Cell has to be taken into consideration. The home enquiry was conducted. That report was made available to the Respondent. The Vigilance Officer after considering the trait and characteristics arrived at a conclusion that the Respondent No.4 belongs to the Tribe Varli. That report was made available to the petitioner. In so far as the report is concerned, we do not find that there has been any serious challenge to the report nor has the petitioner produced any evidence to the contrary. The Committee on considering the Vigilance Cell report and also the questioning the respondent No.4 has arrived at a conclusion that the respondent No.4 belongs to the Scheduled Tribe Varli. In our opinion, this is purely a finding of fact. The petitioner was given an opportunity. The petitioner did not seek to cross examine the Respondent No.4. In our opinion, therefore, considering the test in such matters being 12 preponderance of evidence, in our opinion, the order of the Committee does not suffer from any error of law apparent on the face of the record. 11. In the light of that we find no merits in this petition. Rule discharged. In the circumstances of the case no order as to costs. (J.H. BHATIA, J.) (FERDINO I. REBELLO ,J.) 13