1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 652 OF 2010 Vishwanath s/o Vitthalrao Pawar (Chakkawar), Aged 37 years, Occ. Councilor, R/o Degaon Road, Degloor, Taluka Degloor, Dist. Nanded ..PETITIONER VERSUS 1. The State of Maharashtra, (Through its Secretary Social Welfare 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. The Collector, Nanded 4. The State Election Commission, (Through its Secretary), Mumbai 5. The Chief Officer, Municipal Council, Degloor, Taluka Degloor, District Nanded 6. The Tahasildar, Degloor, Dist. Nanded 2 7. Laxman Narsimlu Adiserlawar, Age Major, Occ. Business, R/o Sanket Niwas, Mahavir Society, Nanded 8. Digambar Piraji Chakkawar, Age : Major, Occ. Labour, R/o Degaon, Tq. Degloor, Dist. Nanded 9. Vikram s/o Kerba Chakkawar, Age : 20 years, Occu. Student, R/o Village Rui (Khurd), Tq. Naigaon, District Nanded ..RESPONDENTS Mr V.D. Salunke, Advocate holding for Mr A.S. Bayas for the petitioner; Mrs A.V. Gondhalekar, A.G.P. for respondents no.1 to 3 & 6; Mr S.T. Shelke, Advocate for respondent no.4; Mr S.B. Patil, Advocate for respondent no.5; Mr R.S. Deshmukh, Advocate for respondent no.7 & 9. CORAM : P.V. HARDAS AND S.V. GANGAPURWALA, JJ (Date of reserving the judgment : 6.4.2010 Date of pronouncing the judgment : 8.4.2010) JUDGMENT [ PER P.V.HARDAS , J ] 1. Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties this petition is heard finally at the stage of admission. 3 2. This petition has been filed under Article 226 of the Constitution of India praying therein for quashing and setting aside the impugned order dated 23/24.12.2009 passed by the Chairman and the Member of respondent no.2 Committee. The petitioner also prays for declaring that the petitioner belongs to "Od" Nomadic Tribe and also to declare that the order passed by the Research Officer and Member Secretary of the Committee is just and proper and, therefore, to direct respondent no.2 Committee to issue caste validity certificate to the petitioner as belonging to "Od" Nomadic Tribe. 3. Such of the facts as are necessary for the decision of this petition may briefly be stated thus :- The petitioner claims to have been born on 5.1.1972 and since his birth was residing with his mother Rajibai Vitthalrao Pawar. The petitioner claims that his mother was residing separate from her husband Vitthalrao as the relations between them were strained. On 22.4.1977 the petitioner was admitted in the primary school, Zilla Parishad, Degaon by his mother. The mother of the petitioner had recorded the surname of the petitioner as "Pawar" since that was her surname. The mother of 4 the petitioner belongs to Banjara and accordingly the caste of the petitioner was recorded as "Banjara". The mother of the petitioner had accordingly applied for issuance of a caste certificate as belonging to "Banjara" i.e. Vimukta Jati and the Tahsildar, Degloor had accordingly issued the caste certificate to the petitioner as belonging to "Banjara" (Vimukta Jati). On 18.7.2006 the petitioner had submitted an application to the Scrutiny Committee for verification of his caste claim as belonging to "Banjara" community. Meanwhile in January, 2007 the petitioner came to be elected from ward no.8 of Degloor Municipal Council on a reserved seat. The caste claim of the petitioner was referred to the vigilance cell for inquiry and the vigilance cell submitted its report. The vigilance cell, upon making the inquiry pointed out that the petitioner belongs to "Od" community and did not belong to "Banjara" community. Consequent to the submission of the report of the vigilance cell, the Scrutiny Committee by its order dated 3/4.4.2004 invalidated the caste claim of the petitioner by holding that the petitioner belongs to "Od" community and the petitioner could not claim the caste from his mother. The petitioner being aggrieved by the order of the Scrutiny Committee invalidating his caste claim as belonging to "Banjara" (Vimukta Jati), filed Writ Petition No.2181 of 2007 in this Court. The Division Bench of this Court by its order dated 17th August, 2009, while partly allowing the petition at 5 paragraph 9 has observed thus. At this juncture we may usefully reproduce the directions issued by this Court at paragraph 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. 6 (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. (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 7 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." 4. The petitioner applied to the Sub-Divisional Officer, Degloor for issuance of a caste certificate as belonging to "Od" community and accordingly the Sub-Divisional Officer, Degloor issued the requisite certificate to the petitioner. The claim of the petitioner came to be referred to the Scrutiny Committee for verification. The vigilance cell was directed to conduct an inquiry and the vigilance cell submitted its report along with its covering letter dated 8.12.2009. The report of the vigilance cell in terms states that the petitioner belongs to "Od" community and his father is Vitthalrao s/o Babarao. The Scrutiny Committee by its majority opinion invalidated the claim of the petitioner as belonging to "Od" (Other Backward Class) principally on the ground that the petitioner had failed to establish that his father was Vitthalrao s/o Babarao. The Committee also found that since the petitioner had earlier obtained a certificate as belonging to "Banjara" and the surname of the petitioner was shown as "Pawar", the petitioner could not claim and could not establish that he was son of 8 Vitthalrao. In the said proceedings before the Scrutiny Committee the objectors, who are respondents to the present petition, were also heard and had submitted documents. 5. Mr V.D. Salunke, learned Counsel for the petitioner has invited our attention to an old document which is annexed to the petition, which is the sale deed. The name of the seller in the said sale deed is shown as Vitthal s/o Baba and the caste which is recorded is "Od". The aforesaid document is dated 27th of October, 1964. The said document is a registered sale deed. Our attention has also been invited by Shri Salunke, learned Counsel for the petitioner to the affidavits and the genealogy submitted before the Committee. In addition to this, our attention has been invited to a document which according to the learned Counsel for the petitioner is of great weight and evidentiary value. The aforesaid document is a succession certificate issued to the petitioner and his brothers as sons of Vitthalrao. The Civil Judge Junior Division, Degloor by his order dated 20.7.2004 directed the issuance of the succession certificate to the petitioner and others as legal heirs of deceased Vitthalrao s/o Babarao Chakkawar. The document of some substance, to which our attention was invited by the learned Counsel for the petitioner, is a consent decree which was obtained in Civil Suit No.55 of 1978 in between the petitioner and his father Vitthalrao. The written 9 statement on behalf of Vitthalrao came to be filed in the said civil suit in which Vitthalrao had admitted that the petitioner was his son. On the basis of the aforesaid documents it is urged before us by the learned Counsel for the petitioner that the petitioner has successfully established that the petitioner is the son of Vitthalrao and it is not necessary in law for the petitioner to prove the paternity as it is for the party disputing his paternity to establish that he is not the son of Vitthalrao. 6. Mr R.S. Deshmukh, learned Counsel for the respondents and objectors has urged before us that the succession certificate, the subject-matter of challenge in a civil suit which is filed by the objectors and the said civil suit is pending before the Civil Court. It is also urged before us that the petitioner had earlier obtained a certificate as belonging to "Banjara" community and the caste which was recorded in the school records of the petitioner was "Banjara". In addition, it is urged before us that the surname of the petitioner was recorded as "Pawar" and, therefore, by no stretch of imagination could the petitioner urge before the Scrutiny Committee that he was son of Vitthalrao and, therefore, belonged to "Od" caste i.e. Other Backward Class. The learned Counsel for respondents has, therefore, urged for dismissal of the petition. The learned A.G.P. on behalf of the Scrutiny Committee has urged before us that the Scrutiny Committee by majority 10 opinion has held that the petitioner has been unsuccessful in establishing that he belongs to "Od" community and the Scrutiny Committee has appreciated all the documents and in the absence of any perversity in the reasoning of the Committee, no interference is called for in the exercise of the extraordinary jurisdiction of this Court. 7. We have reproduced in detail the observations of the Division Bench of this Court in Writ Petition No.2181 of 2007. The Division Bench has accepted that the petitioner had obtained a certificate as belonging to "Banjara" since he was residing with his mother and the surname of the petitioner came to be recorded as "Pawar" instead of the surname of Vitthalrao as the petitioner was residing with his mother. The Division Bench further came to the conclusion that the petitioner could not claim the caste of his mother but would derive the caste from his father. The Division Bench, therefore, permitted the petitioner to apply for certificate as belonging to "Od" community and the election of the petitioner was made subject to the decision of the Scrutiny Committee. Apart from the aforesaid observations of the Division Bench, we find that the documents, principally the succession certificate and the consent decree in no uncertain terms establishes that the petitioner is the son of Vitthalrao and consequently his caste would be the same as that of his father 11 Vitthalrao. The petitioner had earlier mistakenly obtained the certificate as belonging to "Banjara" community, which obviously was found to be incorrect by the Scrutiny Committee. The reports of the vigilance cell in both the inquiries in no uncertain terms establishes that the petitioner is the son of Vitthalrao and belongs to "Od" caste, which is recognised as Other Backward Class. These documents, therefore, prima facie establish that the petitioner is the son of Vitthalrao and consequently his caste is "Od" and could not claim to be belonging to "Banjara", which was the caste of his mother. Merely because a challenge at the behest of the respondents is pending in a Civil Court to the succession certificate obtained by the petitioner, that pending challenge would not eclipse either the evidentiary value or the legal effect of the succession certificate. Apart from it, as pointed out by us above, the consent decree establishes particularly the admission of Vitthalrao that the petitioner is his son. Affidavits of other residents or the statement of first wife of Vitthalrao that Vitthalrao had not married mother of the petitioner would not in any manner dilute the effect of the two documents adverted to above by us. 8. Thus, according to us the petitioner has been successful in establishing that he belongs to "Od" caste, which is recognised as Other Backward Class and is the son of Vitthalrao. It is not within 12 the domain of the Scrutiny Committee to examine whether a candidate who has applied to the Scrutiny Committee for verification of his caste is successful in establishing the paternity. In any event, if at all such a finding is required, the said finding can certainly be recorded on the basis of the documents tendered by the petitioner. Unless and until the succession certificate or the consent decree is set aside by the competent courts, the aforesaid two documents would have great evidentiary value and great weight to be considered. The petitioner, therefore, according to us is entitled to be issued with a validity certificate as belonging to "Od" caste, that is recognised as Other Backward Class. 9. Thus, giving our anxious consideration to the submissions advanced before us by the learned Counsel for the parties, according to us the petition deserves to be allowed and consequently we allow the petition and quash and set aside the majority view and restore the minority view and declare that the petitioner is entitled to be issued with the certificate as belonging to "Od" community. We accordingly, therefore, direct the Scrutiny Committee to forthwith issue a caste validity certificate to the petitioner as belonging to "Od" community. 10. It appears that during the pendency of the petition, namely 13 Writ Petition No.2181 of 2007 and even after its conclusion the Division Bench in the said order had directed that the vacancy arising on account of the invalidation of the caste claim of the petitioner need not be notified. Thereafter the Scrutiny Committee invalidated the caste claim of the petitioner as belonging to "Od" community and consequently it appears that the vacancy came to be notified and election in respect of the said vacancy is scheduled to be held. Since we have held that the petitioner belongs to "Od" caste and consequently we have directed the Scrutiny Committee to issue the caste validity certificate to the petitioner, the petitioner continues to hold the office of the elected representative. The legal consequences of the said order would follow. 11. Rule is thus made absolute on the above terms with no order as to costs. ( S.V. GANGAPURWALA ) ( P.V.HARDAS ) JUDGE JUDGE amj/wp652.10 14