Bombay High Court
Balasaheb Jaywantrao Patil vs State Of Maha. Thr. Secretary, Ministry ... on 20 December, 2019
Author: Milind N. Jadhav
Bench: R. K. Deshpande, Milind N. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 7034 OF 2019
PETITIONER :- Balasaheb Jaywantrao Patil,
Aged about 45 years, Occ. Agricultirist,
R/o. At Asoli, Post Gaul (Khurd),
Tah. Pusad, Dist. Yavatmal.
...V E R S U S..
RESPONDENTS :- 1. State of Maharashtra through its
Secretary, Ministry of Tribal Development
and Social Justice, Mantralaya,
Mumbai-400 032.
2. District Caste Certificate Scrutiny
Committee, Yavatmal through its
Chairman.
3. Collector, Yavatmal, Dist. Yavatmal.
4. Election Officer, Zilla Parishad,
Yavatmal/Sub Divisional Officer,
Pusad.
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Shri N. C. Phadnis, Advocate for petitioner.
Shri A. A. Madiwale, A.G.P. for respondent nos. 1 to 3.
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CORAM :- R. K. DESHPANDE AND
MILIND N. JADHAV, JJ.
RESERVED ON :- 18.12.2019
DELIVERED ON :- 20.12.2019
JUDGMENT (PER : MILIND N. JADHAV, J.):
1. Rule. Rule, made returnable forthwith. Heard finally by ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 05:25:25 ::: 2 wp7034j.19.odt consent of learned counsel appearing for the parties.
2. The present petition takes exception to the order dated 31.08.2019 passed by the District Caste Certificate Scrutiny Committee, Yavatmal (in short 'the Scrutiny Committee) i.e. Respondent no. 2, inter alia, invalidating the Caste Claim of the Petitioner as belonging to "Kunbi" Other Backward Class (in short 'O.B.C.') and cancelling the Caste Validity Certificate dated 27.07.2006 issued to the Petitioner earlier. The genesis of the order impugned is found in the order dated 21.03.2018 passed in Writ Petition No. 6801/2017 by this Court directing the Scrutiny Committee to conduct Vigilance Enquiry for verifying genuineness of the old documents tendered by the Petitioner (Respondent no. 4 therein) and decide the Caste claim of the Petitioner afresh, in accordance with law.
3. The brief facts required for appreciation of the present case are as under:-
(a) Petitioner claimed to be belonging to "Kunbi" O.B.C. which is classified and listed at Sr. No. 83 of the Other Backward Class list as Other Backward Class. The Petitioner's original name was Kranti Jayawantrao Kamarkar. In the year 2002, the Petitioner ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 05:25:25 ::: 3 wp7034j.19.odt changed his name to Balasaheb Jaywantrao Patil and the change was published in the Government of Maharashtra Gazette dated 04.04.2002.
(b) Petitioner attended Zilla Parishad's Shri Vasantrao Vidya Niketan School at Umarsara (Yavatmal) from I st standard to IVth standard and his caste was recorded as "Kunbi" in the Transfer Certificate dated 03.05.1985 issued by the said School.
(c) The Petitioner was issued Caste Certificate dated 27.07.2006 as belonging to "Kunbi" by Sub Divisional Officer, Pusad.
(d) In January/February-2017, the Petitioner contested election of Zilla Parishad, Yavatmal from electoral college of Shelu (No. 49) which was reserved for O.B.C.
(e) Since the Petitioner had contested the election as an "O.B.C." candidate, he submitted his caste certificate to the Scrutiny Committee along with documents for validation. Respondent no.2- Scrutiny Committee issued validity certificate no. 014497 dated 07.06.2017 validating the caste claim of the Petitioner as belonging to "Kunbi" O.B.C.
(f) One Pralhad Shinde, an unsuccessful candidate in the Zilla ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 05:25:25 ::: 4 wp7034j.19.odt Parishad election, filed Writ Petition No. 6801/2017 in this Court, inter alia, challenging the grant of validity to the caste claim of the Petitioner on the ground that no Vigilance Cell enquiry was conducted.
(g) This Court disposed of the Writ Petition by order dated 21.03.2018 directing Respondent no. 2-Scrutiny Committee to conduct Vigilance Enquiry for verifying genuineness of the old documents tendered by the Petitioner and decide the caste claim in accordance with law within one year. By the said order, the office of the Petitioner as elected Councillor of Zilla Parishad was protected till his caste claim was decided by the Scrutiny Committee.
(h) Respondent no. 2- Scrutiny Committee thereafter forwarded the case to the Vigilance Cell. Accordingly, Vigilance Cell conducted a detailed enquiry and presented its report dated 07.12.2018 to the Scrutiny Committee.
(i) Copy of Vigilance Cell report was given to the Petitioner as well as Pralhad Tukaram Shinde and Prakash Ganeshrao Mashke (the complainants) for their perusal and reply.
(j) All concerned parties were heard on their respective say ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 05:25:25 ::: 5 wp7034j.19.odt and after hearing the parties, Respondent no. 2- Scrutiny Committee passed the impugned order dated 31.08.2019 invalidating the caste claim of the Petitioner as belonging to "Kunbi" O.B.C. on the ground that the Petitioner had failed to produce documentary evidence to support his claim that he belonged to "Kunbi" O.B.C. and the documents produced on record pertaining to his great-grandfather, grandfather and father of the Petitioner had recorded the caste as "Marathi/Marati/Marathe" in some of the pre-constitution documents.
4. Shri N. C. Phadnis, learned counsel appearing for the Petitioner submitted that before passing the impugned order dated 31.03.2019, Petitioner had submitted one pre-constitution document dated 17.03.1930 in respect of Renuki i.e. the real sister of the Petitioner's grandfather being the birth entry of the Kotwal book of Mouza Unchvadad, Tah. Umarkhed, Dist. Yavatmal recording the caste as "Kunbi".
5. He submitted that the Vigilance Report dated 07.12.2018 unearthed the following nine documents in respect of which Vigilance Enquiry was conducted and all nine documents were found to be true and correct in the respective Revenue Records.
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S. Name of the Name of Caste Description of the document
N. Petitioner's relative Village mentioned
in document
1. Bhujanga Kamarkar Asoli - Copy of Kotwal Register dated
04.07.2011
2. Bhujanga Marathi Asoli Marathi Copy of Kotwal Register dated
Kamarkar illegible.07.2013
3. Bhujanga Unchvadad Kunbi Copy of Kotwal Register dated
17.03.1930
4. Piraji Bhujanga Asoli Marati Copy of Kotwal Register dated
10.04.1943
5. Piraji Bhujanga Asoli Marati Copy of Kotwal Register dated
08.11.1947
6. Piraji Bhujanga Asoli Marathe Copy of Kotwal Register dated
03.11.1950
7. Piraji Bhujanga Asoli Marati Copy of Kotwal Register dated
05.06.1942
8. Piraji Bhujanga Chatari -- Hakka Nodani 1970
9. Piraji Bhujanga Asoli -- Hakka Nodani dated
20.06.1958
6. He submitted that the document at Item No. 3 dated 17.03.1930 was the document which was relied upon by the Petitioner in support of his claim. He submitted that out of the nine documents, three documents obtained by the Vigilance Cell did not have any recording of Caste. The remaining five documents namely documents at Item Nos. 2 and 4 to 7 had recorded the Caste as "Marathi/Marati/Marathe". He submitted that the conclusion drawn by Respondent no. 2- Scrutiny Committee on the basis of the above recording of Caste as "Marathi/Marati/Marathe" in the said documents leading to invalidating of claim of the Petitioner was arbitrary and highhanded in as much as the Scrutiny Committee had failed to consider the pre-constitution document dated 17.03.1930 ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 05:25:25 ::: 7 wp7034j.19.odt which had recorded the caste of Renuki (blood relative) as "Kunbi". He submitted that Renuki was the blood relative of Petitioner on his paternal side and the document dated 17.03.1930 was issued by Naib Tahsildar, Umarkhed being the birth entry record in the Kotwal Register certifying that daughter Renuki was born to Bhujanga Kunbi (the great-grandfather of Petitioner). He relied upon the genealogy of the Petitioner for consideration of his case as under :-
Bhujanga ____________________________________________ Piraji Renuka (Renuki) _____________________________________________ Hanvata Vithalrao Jaywantrao Anusaya ______________________________ Jayshree Balasaheb Vanashree (Petitioner)
7. He submitted that none of the documents placed on record in the Vigilance Report, save and except the document dated 17.03.1930 had recorded the caste of the respective persons/family members of the Petitioner as "Maratha". He submitted that perusal of the said documents which have been annexed as Annexures- D to F collectively to the petition would show that the word "Maratha" has not been stated in any of the said documents, instead the word ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 05:25:25 :::
8 wp7034j.19.odt "Marathi/Marati/Marathe" has been stated. He therefore submitted that the alleged claim of the original complainant which had been taking cognizance of in the impugned order that the Petitioner belong to "Maratha" caste and on the said basis negating and invalidating the claim of the Petitioner as belonging to "Kunbi" O.B.C. caste was completely unsustainable. He submitted that the principal finding of the Scrutiny Committee that the Petitioner failed to furnish strong evidence in support of his claim to be declared as "Kunbi" O.B.C. is prima facie incorrect in view of the fact that the Petitioner had already submitted the pre-consitution document dated 17.03.1930 in support of his claim and the same was confirmed by the Vigilance Cell by visiting the Tahsil Office, Umarkhed and examining the original Kotwal Register of village Unchvadad and certifying that the said entry dated 17.03.1930 was true and correct. He finally submitted that "Marathi/Marati/Marathe" was not a caste or was not considered as caste at the then time and therefore, the reliance and conclusion placed on the same by the respondent no. 2-Scrutiny Committee is unsustainable in law and deserved to be rejected.
8. PER CONTRA, Shri A. A. Madiwale, learned A.G.P. made the following submissions in support of the order dated 31.08.2019
(a) At the outset he fairly submitted that in so far as the pre- ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 05:25:25 :::
9 wp7034j.19.odt constitution document dated 17.03.1930 was concerned, there was no dispute whatsoever, with respect to the acceptability and admissibility of the said document. He fairly submitted that the said document was taken cognizance of by the Vigilance Cell Report for the purpose of enquiry and it found mentioned in the evidence collected by the Vigilance Cell as being available in the original Kotwal Register.
(b) He submitted that the documents considered by the Scrutiny Committee other than the above document dated 17.03.1930, did not record the caste of the said relatives/blood relative of the Petitioner as "Kunbi".
(c) He submitted that Vigilance Report dated 07.12.2018 was taken into cognizance the Scrutiny Committee while analyzing the pre-constitution document and the same has been reproduced as evidence received from Revenue at internal page no. 4 and 5 of the impugned order.
(d) However, he submitted that the original complainant, who was the unsuccessful candidate in the Zilla Parishad election had on the basis of pre-constitution documents submitted before the Committee that the Petitioner belonged to "Maratha" caste on the ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 05:25:25 ::: 10 wp7034j.19.odt basis entries in the documents which were recorded as "Marathi".
9. After hearing the learned counsel and perusing the impugned order and documentary evidence produced at Annexure- D to F to the petition (being the pre-constitution document) it is found that out of the nine documents referred to by the Vigilance Cell in its report and reproduced on internal page no. 10 of the impugned order, none of the documents have stated the caste of the Petitioner's predecessor as "Maratha". Further, the document dated 17.03.1930 has categorically stated the caste of Renuki i.e. Real sister of the Petitioner's grandfather at the time of her birth entry in Kotwal Book at Mouza Unchvadad as "Kunbi". The impugned order dated 31.08.2019 does not challenge the genealogy of the Petitioner extending back upto Bhujanga who is the great-grandfather of the Petitioner.
10. It is manifest that the claim of the Petitioner has been rejected mainly on the ground that he has failed to give adequate proof as belonging to "Kunbi" O.B.C. in respect of the documents on record. The findings given by the Scrutiny Committee are entirely dependant upon the Vigilance Cell report which has conducted the enquiry in terms of directions passed by this Court and pursuant thereto, determined the genuineness of the pre-constitution ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 05:25:25 ::: 11 wp7034j.19.odt documents. The principal document referred to and relied upon by the Petitioner as well as by the Vigilance Cell is document dated 17.03.1930 and the same has been found to be true and correct by the Vigilance Cell in its enquiry. Therefore, the question that falls for consideration is whether the Petitioner can be determined to be belonging to "Kunbi" O.B.C. on the basis of the said pre-constitution document dated 17.03.1930 as against the five other documents which have also been placed on record by the Vigilance Cell, which record the caste as "Marathi/Marati/Marathe" . It is significant to note that "Maratha" has recently been included by the State Government in the list of O.B.C. in the State of Maharashtra. In none of the five documents which have been considered against the claim of the Petitioner, the caste has been recorded as "Maratha". It has either been recorded as "Marathi/Marati/Marathe" (as pronounced in Marathi language). Therefore, it is clearly concluded that the recording of the caste of the Petitioner's predecessors/blood relatives has never been "Maratha". In contradistinction to this, the pre- constitution document dated 17.03.1930 has been placed on record by the Petitioner since inception. The genuineness of the said document has been verified by inspecting the original record in the Kotwal Register maintained in the Office of Naib Tahsildar at Mouza Unchvadad. The correctness of this document is not disputed by the ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 05:25:25 ::: 12 wp7034j.19.odt any of the party. Therefore, the veracity, validity and genuineness of this particular document viz. the birth entry of Renuki ie. real sister of the Petitioner's grandfather in the Kotwal Book of Mouza Unchvadad, Tal. Umarkhed, Dist. Yavatmal recording the caste as "Kunbi" has been proved beyond any reasonable doubt, in the facts and circumstances of the present case. This document dated 17.03.1930, is the oldest pre-constitution document and is admitted by the Scrutiny Committee.
11. The Vigilance Officer has personally verified and collected information about the genuineness and correctness of the pre- constitution dated 17.03.1930 and the Vigilance Enquiry and finding in the Vigilance Report dated 07.12.2018 is relevant and germane to the determination of caste of the Petitioner. It has been held by the Hon'ble Apex Court in the case of Anand Vs. Committee for Scrutiny and Verification of the Tribe Claims reported in 2012 (1) SCC 113 that while dealing with documentary evidence, greater reliance be placed on pre-independence documents because they furnish a higher degree of probative value to the declaration of status of a caste as compared to post-independence documents. It has also been held therein that in the event of any doubt about the credibility of any document, its veracity has to be tested on the basis of oral evidence for which an opportunity is to be given to the applicant. In the ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 05:25:25 ::: 13 wp7034j.19.odt present case, the Vigilance Report, has certified the pre-constitution document dated 17.03.1930, which records the entry as "Kunbi". The Vigilance Report was given to the Petitioner as also the original complainant on 22.02.2019. In response to the same, it was the contention of the Petitioner that the aforesaid document dated 17.03.1930 was birth entry of the Petitioner's grand aunt viz. Renuki and that was the oldest evidence available with the Petitioner, which was presented before the Scrutiny Committee. The Vigilance Report as well as the impugned order did not find any fault with either the genealogy of the Petitioner and the fact that the oldest pre- constitution document proven by the Petitioner is in respect of the blood relation of the Petitioner is required to be accepted. Therefore, the aforesaid document dated 17.03.1930 is required to be given due importance in ascertainment of the Petitioner's claim as belonging to "Kunbi" O.B.C..
12. In the case at hand, though the Scrutiny Committee has rejected the claim of the Petitioner as belonging to "Kunbi" O.B.C. and invalidated the caste claim of the Petitioner, there is no finding in the order dated 31.08.2019 rejecting the pre-constitution document dated 17.03.1930.
13. The Petitioner has placed on record the pre-constitution ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 05:25:25 ::: 14 wp7034j.19.odt document that the Petitioner's grandfathers' sister belonging to "Kunbi" caste and the date of the said document is 17.03.1930. The said document is the entry of birth record in the Kotwal Register maintained by the Office of Naib Tahsildar, Mouza Unchvadad, Tah. Umarkhed, Dist. Yavatmal. On perusal of the pre-constitution document, we find that the Petitioner's claim deserves to be validated. The pre-constitution document unequivocally denotes that the Petitioner's blood relative belonged to "Kunbi" caste. The Scrutiny Committee in its order dated 31.08.2019 has not considered this aspect and the document, while arriving at its conclusion. The approach of the Scrutiny Committee is quit erroneous. In this regard, we may refer to the decision of Gajanan Pandurang Shende Vs. Headmaster, Government Ashram School and others reported in 2018 (2) Mh. L.J. 460 , wherein the Court has held that the entry is to be read as it stand. The conclusion of the Scrutiny Committee in the impugned order that, the Petitioner has failed to provide adequate proof and evidence as belonging to "Kunbi" O.B.C., is therefore not sustainable. The Scrutiny Committee is required to ascertain the same on the basis of documentary evidence as to whether the Petitioner belong to "Kunbi" O.B.C. or otherwise. The reasoning adopted by the Scrutiny Committee is completely fallacious and questions the genuineness of the pre-constitution dcoument ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 05:25:25 ::: 15 wp7034j.19.odt dated 17.03.1930 thereby disentitling the claim of the Petitioner. In short, the Committee has failed in giving weightage to the proven pre-constitution document in the present case. The said document is prior to 1950, is in respect of the blood relative of the Petitioner and has thus withstood the claim of the Petitioner. There is no valid reason to ignore and neglect such a document, particularly when it is an old record which records the caste of the blood relative of the Petitioner as "Kunbi". In such a situation, we do not find that any other view is possible in the matter, except to validate the claim of the Petitioner.
14. In the result we pass the following order:-
(i) Writ Petition is allowed. (ii) The order passed by the Respondent no. 2-District Caste
Certificate Scrutiny Committee, Yavatmal on 31.08.2019, and impugned in this petition, is hereby quashed and set aside.
(iii) It is declared that the Petitioner Shri Balasaheb Jaywantrao Patil has established his claim for "Kunbi" listed at the Sr. No. 83 of O.B.C. List. The Respondent no. 2-Scrutiny Committee is accordingly directed to issue validity certificate in his name ::: Uploaded on - 20/12/2019 ::: Downloaded on - 21/12/2019 05:25:25 ::: 16 wp7034j.19.odt immediately or restore the Caste Validity Certificate dated 27.07.2006, which was cancelled by the Scrutiny Committee in favour of the Petitioner, as deemed fit appropriately.
(iv) The Petitioner would be entitled to all benefits available to the O.B.C. Candidate.
15. Rule is made absolute in the aforesaid terms with no order as to costs.
JUDGE JUDGE
RR Jaiswal
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