1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 2146 OF 2002 Vithal s/o Ramji Kolhe ...Petitioner Versus State of Maharashtra and others ...Respondents ..... Mr. V.D. Gunale, advocate for the petitioner Mr. G.D. Kale, advocate for respondent No.5 Mr. J.S. Gavane, AGP for the respondents 1 to 4 ..... CORAM: S. S. SHINDE, J. DATED: 23RD JULY, 2009 PER COURT:- 1 Heard learned counsel for the respective parties. 2 This petition takes exception to the judgment and order dated 28.2.2002 passed by the Additional Commissioner in appeal No. 2001/BVP/Appeal-Cell/64. The background facts, as narrated in the writ petition, are as under:- Respondent No.5 herein contested the election of Gram Panchayat of village Jamb (Bk), Tq. Mukhed, District Nanded in the year 2 2000 for the post reserved for O.B.C. The present petitioner submitted an application on 3.11.2000 to respondent No.2 Tahsildar, requesting him to issue certified copy of the caste certificate of respondent No.5. On receipt of the said application, respondent No.4 Tahsildar, Mukhed issued letter on 18.11.2000 informing the petitioner that from the record available with Tahsil office Mukhed, there is no entry showing of any caste certificate issued in favour of respondent No.5. Respondent No.5 herein while contesting the election of the Gram Panchayat submitted a copy of certificate dated 2.11.1976 by letter dated 2.6.2001. The Tahsildar Mukhed, informed the Collector, Nanded that entry of caste certificate of respondent No.5 is not available in the office of Tahsildar, Mukhed. It is the further case of the petitioner that Tahsil office Mukhed has made detailed enquiry in the matter by issuing notice to the concerned persons and in the said enquiry it has been found that respondent No.5 has prepared false caste certificate by making false signature and seal of Tahsil Officer Mukhed and he has used the said certificate in the Gram Panchayat election of village Gram Panchayat Jamb (Bk). On the basis of the said report, Additional Collector, issued notice to the concerned parties for appearing and taking necessary action against respondent No.5 under Section 14 sub-section 1 and 2 and Section 16 Sub Section 2 of the Bombay Village Panchayat Act, 1958. Respondent No.5 appeared before the Additional Collector and 3 filed his written statement. The petitioner and respondent No.5 appeared before the Additional Collector, Nanded. The Additional Collector, by order dated 12.11.2001 has held that respondent No.5 is disqualified as member of the said Gram Panchayat as per the provisions of Section 14 Sub-section 1 and 2 and Section 16 Sub section 2 of the Bombay Village Panchayat Act, 1958. 3 Being aggrieved by the said order of the Additional Collector, respondent No.5 herein filed Appeal before the Additional Commissioner, Aurangabad. The Additional Commissioner by judgment and order dated 20.2.2002, was pleased to allow the appeal filed by respondent No.5 herein and set aside the judgment and order passed by the Additional Collector. Hence, this petition. 4 This Court, by order dated 18.10.2002 issued Rule in the matter. It appears from the order that no interim relief was granted in favour of the petitioner. In this matter, it may not be necessary to enter into the merits of the matter and it would be relevant at this juncture to refer to the reported judgment of this Court in the case of Shivling Umrao Jadhav Vs. State of Maharashtra and others, reported in 2008(1) Bom. C.R. 622. The Division Bench of this Court, while dealing with the similar issue involved in this petition, considered two points viz (1) Whether Collector was empowered under sections 14 and 16 of Bombay Village Act to disqualify the member of village Panchayat on the ground that the caste certificate was not issued by the competent authority in favour of such member and (2) Whether the scrutiny committee under the 4 provisions of Maharashtra Scheduled Castes, Scheduled Tribes, De- notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 has jurisdiction to inquire into the genuineness of the caste certificate and investigated to the allegations of forged and bogus certificates and decide issue of verification and validity of the caste claim. 5 The Division Bench after hearing the respective parties and after adjudicating the above mentioned two points, reached to the conclusion that the Collector is not empowered to exercise the powers under Section 16 of the Act of 1958 to decide the verification of the caste certificate and disqualify the elected person on the ground that caste certificate was forged and bogus on the ground of validity of the caste claim. The Division Bench further held that the Collector is not empowered and entitled under the provisions of Section 14 and 16 of the Act 1958 to disqualify an elected candidate and unseat him by declaring his seat as fallen vacant on the ground that the caste certificate was not issued by the competent authority or the caste certificate was forged and bogus one. 6 While answering the second point the learned Division Bench in para 21 held that in the matter of verification of caste claim, the scrutiny committee has jurisdiction to inquire into the genuineness of the caste certificate and after holding investigation and inquiry into the allegations of forged/bogus caste certificate, committee is empowered to decide the 5 caste claim. In the case in hand, the Additional Collector, exercised power under Section 14 sub Section 1 and 2 and Section 16 sub-Section 2 of the Bombay Village Panchayat Act 1958 and disqualify and respondent No.5 as Gram Panchayat Member. 7 The Additional Commissioner, Aurangabad in appeal filed by respondent No.5 herein has set aside the judgment and order passed by the Additional Collector on 12.11.2001. In view of the judgment of the Division Bench (cited supra) the Additional Collector was not empowered to adjudicate the issue involved. The Division Bench has taken view that the Collector is not empowered and entitled under the provisions of Section 14 and 16 of the Act 1958 to disqualify an elected candidate and unseat him by declaring his seat as fallen vacant on the ground that caste certificate is not issued by the competent authority and the caste certificate is forged and bogus one. I am bound by the judgment delivered by the Division Bench since the Collector was not empowered and entitled under the provision of Section 14 and 16 of the Act 1958 to disqualify the respondent No.5. In my view, further adjudication of this matter, on merits, is not necessary. 8 Apart from this, the Additional Commissioner has considered the rival submissions and set aside the judgment and order passed by the Additional Collector. In concluding para, the Additional Commissioner has observed that, “this judgment would not preclude the authorities for enquiry into the genuineness of the caste certificate”. 6 It is needless to mention that if the petitioner wants to approach the Collector to refer certificate issued in favour of respondent No.5, he is at liberty to do so. 9 In the result, the order dated 28.2.2002 passed by the Additional Commissioner, Aurangabad in Appeal No.2001/BVP/Appeal-Cell/64 is confirmed. Writ petition is dismissed. Rule discharged. Interim relief, if any, stands vacated. 10. Civil application, if any, in this petition, stands dismissed. ***** IN THE HIGH COURT OF JUDICATURE AT BOMBAY 7 APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7571 OF 2008 Kamlakar Baburao Kokil ...Petitioner Versus Kailas Vasantrao Panchal and others ...Respondent ..... Mr. M.L. Dharashive h/f Mr. B.R Sontakke Patil, advocate for the petitioner Mr. M.D. Gutte, advocate for respondent Nos. 1 and 2. ..... CORAM: S. S. SHINDE, J. DATED: 23RD JULY, 2009 PER COURT:- 1 Heard Mr. Dharashive, learned counsel h/f Mr. Sontakke Patil, learned counsel for the petitioner and Mr. M.D. Gutte, learned counsel for respondent Nos.1 and 2. 2. This petition takes exception to the order dated 02.07.2008 passed by the learned District Judge-1, Osmanabad in Misc. application No. 24 of 2008. The said application was filed by the present petitioner for condonation of delay alongwith the appeal. There was delay of about 27 days in filing the appeal. The learned District Judge, Osmanabad framed necessary points for his consideration and came to the conclusion that no sufficient cause was shown to condone the delay and therefore, the 8 application for condonation of delay was rejected. 3 The petitioner has placed on record a copy of application, which was filed for condonation of delay, at Exh. “C”. On perusal of the contents of the said application, it appears that the applicant has contended that that due to some personal work, he was compelled to go to other places i.e. Pune, Bombay, Aurangabad and occasionally to Nagpur. In addition to that, it is also further stated that the applicant did not receive the requisite information about delivery of judgment and order by the lower court and therefore, he prayed for condonation of delay in filing the appeal. 4 Viewed from any angle, right of appeal is a substantive right of the parties. There is hardly 27 days delay in filing the appeal. In my considered view, the reasons given in the application for condonation of delay are sufficient reasons, keeping in mind the fact that there was only 27 days, delay in filing the appeal. Hence, the impugned order dated 2.7.2008 passed by the learned District Judge-1, Osmanabad is hereby quashed and set aside. Delay in filing appeal is condoned. Writ petition is allowed in the above terms with no order as to costs. ***** 9