(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 2181 OF 2007 Vishwanath s/o. Vitthalrao Pawar, Aged : 34 years, Occupation : Councillor, R/o. Degaon Road, Degloor, Taluka : Degloor, District : Nanded. .. Petitioner. versus 1. The State of Maharashtra (Through its Secretary, Urban Development Department, Mantralaya, Mumbai. ). 2. Scheduled Castes, Vimukta Jatis, Nomadic Tribe, Other Backward Classes and Special Backward Category Classes Divisional Caste Certificates Scrutiny Aurangabad Committee No.3, Latur. 3. Collector, Nanded. 4. The State Election Commission (Through its Secretary), Mumbai. 5. The Chief Officer, Municipal Council, Degloor, Taluka : Degloor, District : Nanded. 6. The Tahsildar, Degloor. (2) 7. Laxman s/o. Narsimullu Adsiralewar, Age : 46 years, .. Respondents Occupation : Business, (No.5 - R/o. Devgaon Road, Degloor, Intervener) Taluka : Degloor, District : Nanded. .......................... Mr. A.S. Bayas, Advocate, for the petitioner. Mr. S.K. Tambe, Assistant Government Pleader, for respondent nos.1, 3 and 6. Mr. B.L. Sagar Killarikar, Advocate, for respondent no.2. Mr. S.T. Shelke, Advocate, for respondent no.4. Mr. P.D. Bachate, Advocate, for respondent no.7 / Intervener. .......................... CORAM : B.R. GAVAI & N.D. DESHPANDE, JJ. DATE : 17TH AUGUST 2009. COURT'S ORDER : 1. Rule. Rule made returnable forthwith. Heard by consent. (3) 2. Since no order prejudicial to the interest of respondent no.5 is being passed, notice of rule on the said respondent is waived. 3. The petition arises out of peculiar circumstances. The petitioner is born to one Rajabai and Vitthalrao Pawar. It is the contention of the petitioner, that his mother Rajabai was the second wife of deceased Vitthalrao. It is his specific contention, that after the birth of the petitioner, there was no relation between his mother and the deceased Vitthalrao and the petitioner was throughout residing with his mother. The mother Rajabai belongs to "Banjara" which is notified as Vimukta Jati. The father of the petitioner belonged to "Vad" caste which is notified as Other Backward Class. It is the specific contention of the petitioner, that since his birth, he was residing with his mother. Even in the school record, caste of the mother came to be recorded as "Banjara". It is his contention that the petitioner's mother Rajabai applied for the caste certificate of the petitioner, which was granted as "Banjara". 4. The question of validity of the caste of the petitioner arose after the petitioner was elected as a Municipal Councillor in a seat reserved for Other Backward Class. After the case was referred for validity to the respondent Committee, the claim came to be invalidated on the ground that the petitioner was claiming to be "Banjara". However, since the caste comes from the father, the petitioner could not be validated as belonging to "Banjara" caste i.e. the caste of his mother. 5. Undoubtedly, in so far as the election to the Municipal Council is concerned, both, "Banjara" as well as "Vad", are notified as Other Backward Classes and entitled to contest from the said reserved (4) seat. 6. In the present case, we find that it is not on account of any mistake on the part of the petitioner, that his caste is referred as "Banjara", but it is due to the peculiar circumstances that he was residing after his birth with his mother and has no concern with his father, he was treated as "Banjara" and a certificate to that effect was obtained by his mother. We do not find that any fraud could be attributed to the act of the petitioner. The mistake appears to be bona fide. Though there is no doubt that a person gets his caste from his father, it appears in the peculiar facts of the case, that since the petitioner was residing with his mother, his caste came to be recorded as "Banjara". 7. Normally, we would not have interfered in the present matter. However, in the peculiar facts and circumstances, and particularly when the persons belonging to "Banjara" as well as "Vad" are entitled to contest from the seat reserved for Other Backward Class category and that due to no fault of the petitioner, he would be deprived of his electoral office, we are inclined to allow the present petition in exercise of extraordinary jurisdiction of this court. 8. While we do not find any error with the order of the Scrutiny Committee in invalidating the claim of the petitioner as belonging to "Banjara", we find that it would be in the interest of justice that the petitioner is permitted to get his caste claim, as belonging to "Vad", Other Backward Class, i.e. caste of his father, decided by the Scrutiny Committee. (5) 9. Hence, the petition is partly allowed. (i) The impugned order dated 3rd April 2007, passed by the respondent no.2, thereby invalidating the caste claim of the petitioner, as belonging to "Banjara", Vimukta Jati, is maintained, except the order in so far as it directs criminal prosecution to be launched against the petitioner. It is made clear that the direction to launch criminal prosecution is quashed and set aside since we have come to a finding that it is not on account of any act on the part of the petitioner, that he has obtained a certificate as belonging to "Banjara" caste. (ii) The petitioner shall apply to the competent authority i.e. Sub- Divisional Officer, Degloor, for obtaining the caste certificate as belonging to "Vad" caste i.e. caste of his father. The petitioner to make application within a period of one week from today. On the application being made, the Sub-Divisional Officer, Degloor, shall decide the same within a period of three weeks from today. (iii) In case, a caste certificate, as belonging to "Vad" caste is issued to the petitioner, the petitioner shall immediately apply to the respondent no.2 Committee for scrutiny of his claim as belonging to "Vad" caste. The said application shall be made, in any case, within a period of two weeks, after the receipt of caste certificate from the Sub-Divisional Officer, in the event, it is granted. (iv) The Scrutiny Committee shall decide the caste claim of the petitioner within a period of three months from the date of receipt of the application. (6) (v) It is made clear that till the decision of the application filed by the petitioner, for grant of caste certificate and for validity of his caste claim, the vacancy to which he was elected, shall not be notified. (vi) It is further made clear that in the event, claim of the petitioner as belonging to "Vad" caste is validated, the petitioner shall be entitled to continue as a Municipal Councilor from the seat on which he is elected. (vii) In the event, the petitioner is denied a certificate as belonging to "Vad", Other Backward Class, or his claim as belonging to Other Backward Class is invalidated, the respondent nos.3 and 4 shall proceed in accordance with law, treating that a vacancy has arisen on the petitioner being disqualified to hold a post reserved for Other Backward Class category. 10. Rule is made absolute in the aforesaid terms. There shall be no order as to costs. 11. Authenticated copy be supplied to the parties to act upon. ( N.D. DESHPANDE ) ( B.R. GAVAI ) JUDGE JUDGE ......................... bgp/wp2181