Bombay High Court
Vijay Ramchandra Harpale vs State Of Maharashtra Through Principal ... on 13 December, 2016
Author: Prakash D. Naik
Bench: Prakash D. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1094 OF 2016
Vijay Ramchandra Harpale
R/o. Mauje Fursungi, Taluka Haveli,
Dist. Pune. ... Petitioner
V/s
1. State of Maharashtra
(Through Principal Secretary,
Social Justice & Special Assistance
Department, Mantralaya,
Mumbai - 400032.
2. Member Secretary,
Divisional Caste Scrutiny Committee No.3,
office at Jail Road, Behind Commar Zone,
IT Park, Yervada, Pune-6.
3. The Collector, Pune,
office at Collectorate, Pune.
4. Dy. Collector ( Land Acquisition No.4)
Sub Divisional Officer,
office at Pune, Dist. Pune.
5. Shri Dattatray Gulab Kamthe,
R/o Mauje Fursungi, Taluka Haveli,
Dist. Pune.
6. Shri Sandeep Namdeo Harpale,
R/o. Mauje Fursungi, Taluka Haveli,
Dist. Pune. ... Respondents
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...
Mr.Y. S. Jahagirdar, Senior Advocate i/b. Mr. J. G. Reddy for the
petitioner.
Mr. V. M. Mali, Asstt. Govt.Pleader for respondent nos.1 to 4.
Mr.Uday Warunjikar a/w. Mr. Satyavrat Joshi i/b. Mr. Laxmikant
Shrimangale for respondent nos.5 & 6.
...
CORAM : SHANTANU S. KEMKAR &
PRAKASH D. NAIK, JJ.
RESERVED ON : 24 NOVEMBER, 2016
PRONOUNCED ON :
ig 13 DECEMBER, 2016
P.C. : (per Prakash D. Naik, J.)
. Rule. Rule made returnable forthwith.
2. Mr. V. M. Mali, Asstt. Govt. Pleader waives service for respondent
nos.1 to 4. Mr. Satyavrat Joshi waives service for respondent nos.5 & 6.
By consent of counsel for the respective parties, the matter is taken up
for final disposal forthwith.
3. The petitioner has invoked the writ jurisdiction of this court
under Article 226 of Constitution of India and sought to challenge the
order dated 20 January, 2016 passed by the Divisional Caste Scrutiny
Committee No.3, Pune, thereby invalidating the Caste Certificate of the
petitioner dated 9 January, 2015 issued by respondent no.4 (Deputy
Collector (Land acquisition No.4), Sub Divisional Officer, Pune)).
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4. The factual matrix of the issues which are required to be
adjudicated in the present petition is as follows;
i) The petitioner claims to be a person belonging to Kunbi caste
which is recognized as Other Backward Class ("OBC" for short). On the
basis of caste claim made by the petitioner, respondent no.4 had issued
Caste Certificate dated 9 January, 2015 certifying that the petitioner
belongs to Kunbi Caste which is recognized as OBC under Government
Resolution dated 13 October, 1967. Respondent no.4 while issuing the
said certificate had placed reliance upon several documents put forth by
the petitioner. While issuing the said certificate, respondent no.4 had
assigned reasons by placing reliance upon the said documents.
ii) The petitioner had contested election at Village Panchayat of
Village Fursungi from the Ward reserved for OBC category and he was
declared elected on 6 August, 2015 as Village Panchayat Member of
Village Fursungi, Taluka Haveli, Dist. Pune. In pursuant to the said
election, the caste certificate of the petitioner was sent to the Divisional
Caste Scrutiny Committee - respondent no.2 for verification of his
caste claim.
iii) The petitioner submitted before the aforesaid Authority the
documents viz. school leaving certificate, the school leaving certificate
of his father, extract of Birth and Death Register maintained in Village
Fursungi in respect of Gulab Shivaj Harpale who is cousin grandfather
of the petitioner showing his caste as Kunbi and date of his death as 9
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May 1914, extract of Birth and Death register maintained by Fursungi
Gram Panchayat in respect of Sahu daughter of Shivram Harpale who
was sister of petitioner cousin grandfather. He also placed reliance
upon 7/12 extract in respect of ancestral property of the petitioner
bearing survey no.29, Village Fursungi which was partitioned amongst
the ancestors'.
iv) Respondent no.6 submitted a complaint before respondent no.2
alleging that the petitioner does not belong to Kunbi (OBC caste). The
complainant sought to rely upon certain documents to falsify the claim
of the petitioner and to disapprove the documents of relatives relied
upon by the petitioner.
v ) The petitioner further submitted documents to counter the
objections of respondent no.6. The respondent no.2 forwarded the
matter to Vigilance Cell. Pursuant to that the Vigilance Cell conducted
thorough enquiry and after going through the documents and record
the Vigilance Cell submitted its report to the Committee on 20 October,
2015 confirming the caste claim of the petitioner.
vi) The respondent no.2, issued a show cause notice dated 1
December, 2015 to the petitioner stating that the school records of the
petitioner and his father show that the caste of the petitioner as "Hindu
Maratha" . The said show cause notice was served upon the petitioner
on 6 December, 2015. He was called for an enquiry by respondent no.2
on 15 December, 2015.
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vii) The petitioner submitted his written reply to the aforesaid show
cause notice and tendered detailed explanation in respect to the
objections raised in show cause notice. The said reply was tendered on
29 December, 2015. Alongwith reply the petitioner also submitted
certain documents in support of his claim. The matter was kept for
hearing on 4 January, 2016 before the Committee. On that day,
respondent no.6 tendered documents before the Committee. He also
tendered written submissions.
viii) Considering the voluminous documents filed by respondent no.6
before the Committee. The petitioner sought time to go through the
documents submitted by respondent no.6 for giving appropriate
clarification / reply. The committee did not grant time to the petitioner
to peruse the documents and the case was closed for orders. The
petitioner then submitted his written submissions and additional
documents on 29 December, 2015.
ix) After going through the documents and written submissions
tendered by the complainant, the petitioner made an application before
the committee on 19 January, 2016 with the request to allow the
petitioner to submit important documents in support of his claim.
According to petitioner the documents were not accepted on 19
January 2016. On 20 January, 2016, the petitioner submitted an
application alongwith number of documents before the committee. He
placed reliance upon the several documents. He submitted about 22
school leaving certificates of his family members such as his cousin,
cousin uncle, cousin grandfather, cousin great grandfather etc. to show
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that his family belongs to Kunbi caste and that those certificates are of
pre-independence era. He also tendered 7/12 extract in respect of his
ancestral property. He submitted the said documents on 20 January
2016 in addition to the various documents submitted by him earlier.
The said documents are annexed to this petition. On the same day i.e.
20 January, 2016, respondent no.2 passed an order, rejecting the
petitioner caste claim that he belongs to Kunbi (OBC Caste) and had
invalidated the caste certificate issued to him on 9 January 2015.
5. The petitioner has therefore moved this Court challenging order
dated 20 January 2016, passed by respondent no.2 invalidating the
caste certificate of the petitioner.
6. Learned Senior advocate Shri Jahagirdar appearing for the
petitioner has submitted that there is total non application of mind on
the part of the Caste Scrutiny Committee while passing the impugned
order. He submitted that the Scrutiny Committee has not taken into
consideration the Vigilance report supporting the claim of the petitioner
in proper perspective. He submitted that the Vigilance Cell has verified
the authenticity of the documents relied upon by the petitioner and had
opined that the claim of the petitioner is genuine. He submitted that
the authority has not considered the voluminous documents relied
upon by the petitioner which establishes his claim that he belongs to
Kunbi (OBC Caste). He submitted that the impugned order was passed
by violating the principle of natural justice. The petitioner is not
afforded proper opportunity of hearing and the authority has proceeded
to pass the impugned order. He submitted that the complainant had
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filed documents on record while objecting to the caste claim of the
petitioner. The petitioner had sought time to scrutinize the said
documents. However, the Committee without accepting the request
closed the case for orders. He further submitted that after going
through the documents placed on record by the complainant, the
petitioner submitted his application dated 20 January 2016 and
tendered voluminous documents which established his caste claim.
According to him surprisingly the committee proceeded to pass order
on 20 January 2016 itself, by overlooking the said documents. He
submitted that the petitioner is not afforded opportunity to put forth
his case qua the said documents. He, therefore, submitted that the
impugned order deserves to be set aside. He submitted that the
documents on record which were placed before this Scrutiny committee
which are part of the petition are sufficient to establish that the
petitioner belongs to Kunbi (OBC Caste). He, however, alternatively
submitted that this court may remand the case back to the Scrutiny
Committee, for a fresh consideration by setting aside the impugned
order.
7. Shri Warunjikar, learned counsel appearing for respondent nos. 5
and 6 had opposed the submission made by the petitioner's counsel.
He has placed reliance upon an affidavit-in-reply filed on behalf of
respondent no.6 wherein he had relied upon documents which
according to him, falsify the claim of the petitioner. He also tendered
the compilation consisting of several documents which were relied
upon by respondent no.6 before the Scrutiny Committee which counter
the claim of the petitioner. He submitted that the report of the
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Vigilance Cell is not final approval for establishing the claim of the
caste certificate. He submitted that the report is not binding on the
Scrutiny Committee. He submitted that the Vigilance Cell's enquiry is
meant for assisting the Scrutiny Committee. He submitted that the
Scrutiny Committee had analysed the material on record and had given
cogent reasons which are reflected in the impugned order. He
submitted that the petitioner has failed to prove that he belongs to a
Kunbi caste. The school leaving certificate produced by him show that
he belongs to 'Hindu Maratha caste". He submitted that other
documents filed by him do not fortify the claim of the petitioner. He
placed reliance on the documents which falsify the documents relied
upon by the petitioner. He further submitted that this court may
scrutinize the material on record which would show that the petitioner
has not made out his case that he belong to Kunabi (OBC Caste). He
submitted that the documents relied upon by the petitioner in support
of his caste claim and purportedly establishing his relationship with the
persons whose documents are related are doubtful which is established
by respondent no.6 by producing documents. He relied upon the
decision delivered by this court in writ petition no.8537 of 2015 in
Atul Tukaram Patil vs. State of Maharashtra and others. He
submitted that in said decision, this court has rejected the claim of the
petitioner therein, which was based on similar facts as in the present
case.
8. Learned Asstt. Govt. Pleader, supported the impugned order, he
submitted that the Committee has analysed the material on record and
has arrived at conclusion which does not warrant any interference.
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9. We have perused the documents on record. We have given our
anxious consideration to the submission made by both the parties.
However, we are of the opinion that the case requires to be remanded
back to the Scrutiny Committee for a fresh consideration. We are,
therefore, not expressing any opinion on the merits of the case. It
would be appropriate not to give any findings whether the documents
relied by either parties are genuine or support their case. The reason
for remanding the case back to the Scrutiny Committee is to give an
opportunity to the petitioner to put up his case by relying upon the
documents which are referred to hereinabove. From the facts narrated
hereinabove, it is apparent that the Vigilance Cell has supported the
claim of the petitioner. We have also noticed that the complainant had
tendered the documents which were required to be countered by the
petitioner. The Scrutiny Committee however instead of granting time,
closed the case for orders. However, thereafter the petitioner had
tendered voluminous documents in the nature of 22 school leaving
certificates of his relations and extracts of properties in support of his
claim. The said documents were tendered on 20 January 2016.
However, on the same day, respondent no.2 passed the impugned
order. The said documents were apparently not considered. Obviously,
there was no opportunity to the petitioner to put forth his case qua the
said documents. The Committee ought to have given proper
opportunity to the petitioner to prove his relationship with his
ancestors whose extracts of Birth and Death Registers of pre-
independence era were produced by the petitioner in the form of school
leaving certificates etc. We are, therefore, of the opinion that in
consonance with the principles of natural justice an opportunity ought
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to be given to the petitioner to put up his case in proper perspective by
relying upon the material in the form of the documents which are
stated hereinabove before the Scrutiny Committee. It is true that
Vigilance report is not binding on the Scrutiny Committee. However,
the Committee may consider the opinion of the Vigilance Celll in the
light of the documents relied upon by the petitioner. We are making it
clear that it may not be construed that this court has accepted the
report of the Vigilance Cell and/or the genuineness of the documents
tendered by either side. The Committee may take appropriate decision,
on its own merits.
10.
We are, therefore, inclined to quash and set aside the impugned
order dated 20 January, 2016 passed by respondent no.2 and remand
the matter back to the said respondent/Committee for a fresh
consideration of the caste claim of the petitioner. The Committee may
look into the submissions of both sides alongwith the documents
referred to by the petitioner and the respondent in this petition as well
as before the Scrutiny Committee, and may pass a fresh order on its
own merits. We may not be understood to have expressed any opinion
on the merits of the order passed by respondent no.2 as we are setting
aside the impugned order only on the ground that proper opportunity
of hearing is not given to the petitioner. The Committee will decide the
matter a fresh on its own merits in accordance with law without being
influenced by any observations made in this order. Hence, we pass the
following order:
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O R D E R
1. The petition is partly allowed.
2. The impugned order dated 20 January 2016 passed by respondent no.2 invalidating the caste claim of the petitioner and his caste certificate dated 9 January 2015 is quashed and set aside.
3. The matter is remanded to respondent no.2 for passing a fresh order in accordance with law and in consonance with observations made hereinabove, after hearing the petitioner as well as respondent nos.5 and 6 within a period of three months from 16 December, 2016
4. The parties are directed to appear before respondent no.2 Committee on 16 December, 2016 at 11.00 am
5. The interim order passed by this Court on 25th January, 2016 shall continue till the decision of the Scrutiny Committee.
6. It is clarified that this court has not expressed any opinion on the merits of the petitioner's claim.
7. With aforesaid directions, the petition is disposed of.
(PRAKASH D. NAIK, J.) (SHANTANU S. KEMKAR, J.) ::: Uploaded on - 13/12/2016 ::: Downloaded on - 14/12/2016 01:09:13 :::