1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.2103 OF 2010 WITH CIVIL APPLICATION STAMP NO.7885 OF 2010 Patel Shaikh Yunus s/o Patel Shaikh Sikandar, Age 37 years, Occu.Business, r/o Yasim Chowk, Village Harsool, Post Harsool, Taluka and District Aurangabad .. PETITIONER VERSUS 1. The State of Maharashtra through the Secretary, 2. The Collector, Aurangabad 3. The Deputy Collector (Setu), Aurangabad 4. The Tahsildar, Aurangabad 5. The Regional Caste Scrutiny Committee, No.1, Aurangabad Region, Aurangabad 6. The State Election Commission of Maharashtra through the Chief Election Commissioner, Mumbai 7. The Authorised/Returning Officer for General Elections of the Aurangabad Municipal Corporation, Aurangabad. .. RESPONDENTS Shri Rajendra Deshmukh, Advocate for the petitioner Shri K.G.Patil, Assistant Govt.Pleader for respondents 1 to 5 Shri S.T.Shelke, Advocate for respondent No.6 and 7 2 CORAM : P.V. HARDAS AND S.V.GANGAPURWALA, JJ DATE : 22nd March 2010 ORAL JUDGMENT (PER P.V.HARDAS, J.) 1. An application has been tendered by Shri Deshmukh, learned Counsel for the petitioner which is unregistered. In the light of the urgency which is expressed at the Bar, we have accepted the filing of this application. We direct Registry to register this application. 2. By this Civil Application, the applicant/petitioner has prayed that he may be permitted to add additional respondents, i.e. the State Election Commission of Maharashtra through the Chief Election Commissioner, Mumbai and the Authorised/Returning Officer for General Elections of the Aurangabad Municipal Corporation, Aurangabad. We see no reason for not allowing the application and accordingly, this application insofar as it relates to prayer clause (B) is concerned is allowed. Amendment to be carried out forthwith. Shri Shelke, learned Counsel accepts notice on behalf of the newly added respondents. Additional prayer at prayer clause (C) in this application is for amendment of the petition by incorporating prayer clause (C-1). We accordingly allow this application and permit the petitioner to amend the prayer clause. Application is thus allowed and petitioner is 3 permitted to add the additional respondents to the petition and amend the prayer clause. Amendment to be carried out forthwith. 3. Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties, this petition is heard finally at the stage of admission. 4. This petition under Article 226 of the Constitution of India impugns the order passed by the respondent – scrutiny committee dated 24th/26th February 2010, invalidating the caste claim of the petitioner as belonging to Chapparband (Vimukta Jati). The petitioner who was desirous of contesting the election of the forthcoming elections of the Aurangabad Municipal Corporation submitted a necessary letter of request for referring his caste certificate to the scrutiny committee for verification. Accordingly, the certificate of the petitioner came to be referred to the scrutiny committee for verification. The petitioner, in order to substantiate his claim as belonging to Chapparband (Vimukta Jati), submitted various documents. The pivot of the case of the petitioner was the document dated 27.7.1955 relating to the caste of the father of the petitioner by name Shaikh Sikandar Magan Patel. According to the petitioner the caste of the father of the petitioner was recorded as Chapparband at the time of 4 seeking admission in the then Zilla Parishad Primary School, Harsool at Aurangabad. The scrutiny committee referred the documents to the Vigilance Cell for inquiry and the Vigilance Cell had submitted its report. The scrutiny committee upon appreciation of the documents, particularly document No.3 which was the extract of the school register relating to the admission of the father of the petitioner chose not to rely on the said document for the reason that the page of the original register appeared to have been torn and, therefore, scrutiny committee could not verify the said entry. 5. We have heard Shri R.S.Deshmukh, learned Counsel for the petitioner and the learned Assistant Government Pleader who appears on behalf of respondents 1 to 5 and Shri S.T.Shelke, learned Counsel who appears on behalf of the newly added respondents. The learned Assistant Government Pleader has produced before us the original school register. We have perused the original school register and the original school register appeared to be in a tattered condition. The pages of the register are brittled and the pages break into pieces on mere touching or turning of the page. It is, therefore, no surprise that certain portions from the pages of the register are missing as the torn portion has virtually crumbled into tiny pieces and is collected in a receptacle in which the register is carried. 5 6. Learned Counsel for the petitioner has invited our attention to the xerox copy of the original register which had been obtained by the petitioner when the register was in an immaculate condition. Apart from the xerox copy of the original register, the petitioner had obtained a copy of the certificate of the father of the petitioner i.e. the school leaving certificate. This certificate had been obtained in the year 2002 and the extract of the school register had been obtained by the petitioner in 2006. Obviously, these certificates have been issued by the Head Master when the register must have been in proper condition. Perusal of the xerox copy of the register certainly reveals that at Sr.No.206 in the first column name of the father of the petitioner is entered and in the second column the name of the grandfather of the petitioner is entered. The other columns which are small in size relate to the recording of the occupation and other columns. The last but one column on the right hand side of the page relates to the recording of the caste. Since the column is extremely small the word “Chapparband” and the other entries in the other columns have been written in a cramp. According to the petitioner, the small column is identical to each other. We have not noticed any difference whatsoever in the hand writing. Merely torn pages is no ground to reject the document of the year 1955 which has great probative value. The petitioner cannot be attributed to either fault or mala fide as the piece of page being torn. The 6 aforesaid document was not in the custody of the petitioner. No mala fides are alleged against the petitioner for having deliberately torn the page relating to the father of the petitioner. We have found that from apart the torn page relating to the torn page of the caste of the father of the petitioner, other pages are not in a proper condition. The pages are brittled and crumble in a touch. In that light of the matter, therefore, according to us since there is no other contra evidence indicating that the caste of the father of the petitioner was recorded different in some other school, the scrutiny committee ought to have allowed the claim of the petitioner as belonging to Chapparband (Vimukta Jati). 7. Resultantly, we allow this petition and quash and set aside the impugned order of the committee and direct the committee to forthwith issue validity certificate to the petitioner as belonging to Chapparband (Vimukta Jati). 8. Shri Deshmukh, learned Counsel for the petitioner urges before us that today is the last day for submission of the nomination form. The dead line for submission of nomination would expire at 3.00 p.m. Since we have allowed the petition, it would take some time for reaching the order passed by this Court to the scrutiny committee and it would be impossible for the petitioner to obtain the validity certificate before 3.00 p.m. today. 7 In that light of the matter and particularly in the light of the fact that we have allowed the petition and have directed the scrutiny committee to issue validity certificate to the petitioner as belonging to Chapparband (Vimukta Jati), we direct the Authorised/Returning Officer for General Elections of the Aurangabad Municipal Corporation, Aurangabad to accept the nomination form of the petitioner though the petitioner may not be in a position to submit the validity certificate. We, however, direct the petitioner to immediately tender the validity certificate to the Authorised/Returning Officer as soon as the petitioner receives it. Meanwhile, we also direct the learned Assistant Government Pleader to communicate our order to the scrutiny committee. Certified Copy expedited. 9. Copy of this order duly authenticated by the Court Sheristedar be handed over to the parties to act upon. 10. Rule is thus made absolute on the above terms with no order as to costs. ( S.V.GANGAPURWALA ) ( P.V.HARDAS ) JUDGE JUDGE (vvr/2103.10wp) 8