Shankar Road vs The State Of Maharashtra
2009 Latest Caselaw 156 Bom

                                              1


     mgn
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                             
                         APPELLATE CIVIL JURISDICTION




                                                     
                         WRIT PETITION NO.9879 OF 2009


     Shri Pravin Narayan Devare           )




                                                    
     Age 59 years, Occ. Agriculturist     )

     R/o.20-C, Devare House, Bhavani      )




                                             
     Shankar Road, Dadar, Mumbai-28. )..Petitioner
                         
                        
            Vs.
      

     1.The State of Maharashtra           )

      Cultural & Social Welfare           )
   



      Department, Mantralaya,             )

      Mumbai-32. Through its Secretary )





     2.The Divisional Caste Certificate   )

      Scrutiny Committee No.3,Bombay)

      Suburban Administrative             )





      Building, 3rd Floor, R.C. Road,     )

      Chembur East, Mumbai                )

      through its Chairman/Secretary      )

     3.The Deputy Collector, Mumbai       )




                                                     ::: Downloaded on - 09/06/2013 15:27:00 :::
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      City.                               )




                                                                               
     4.Brihan Mumbai Municipal            )

      Corporation, Mahapalika Marg,       )




                                                       
      Opp. C.S.T., Mumbai-1               )

      through its Commissioner            )




                                                      
     5.The Election Officer for           )

      Mumbai Municipal Corporation        )

      Old Building, Ground Floor,         )




                                             
      Mumbai -3            ig             )

     6.Shri Prakash Baban Patankar        )
                         
      Age Major, R/o.Room No.2,           )

      Dr. Antonia Desilva Compound        )

      Road, Dadar West, Mumbai-28         )..Respondents
      
   



     Mr.A.S. Golegaonkar with Mr. J.G. Reddy for the Petitioner.

     Mr. V.S. Masurkar, Govt. Pleader with Mr. S.N. Patil, AGP for respondent Nos.
     1 to 3.





     Mr. M.M. Malwankar, for respondent Nos. 4 and 5.
     Mr. Y.S. Jahagirdar, with Mr. G.S. Godbole and Mr. Nitin Mulye, for respondent
     No.6.


                            CORAM : F.I. REBELLO &





                                    K.K. TATED, JJ.
                            DATED : 19TH DECEMBER, 2009.



     JUDGMENT (PER FERDINO I. REBELLO, J.)

Rule. By consent heard forthwith.

2. The petitioner by the present petition seeks to impugn the order of the

Divisional Caste Certificate Verification Committee No.3, Mumbai Suburban

and the order dated 24th August, 2009 . By the said order the learned Committee

cancelled the certificate issued in favour of the petitioner as belonging to Caste

"Sutar" as he was not able to establish the same. It is this order which is the

subject matter of the present Petition.

3. The State of Maharashtra had issued a Notification listing the Other

Backward Class. Under Entry No.174 is the Entry of 'Sutar' and under Entry

No.182 is shown the caste 'Mali' with various sub-castes including

'Panchkalsi'. The law of reading the entries in such Notification is settled by

the judgment of the Constitution Bench of the Supreme Court in State of

Maharashtra vs. Milind & Ors., (2001) 1 S.C.C. 4, where the Constitution

Bench reiterated the view earlier taken that it is not possible to amend the order

issued under Articles 341 and 342 of the Constitution by the State Government

and further it is not possible to adduce evidence nor an enquiry can be made that

the particular caste or part or group within tribes or tribe is included in

Presidential Order if they are not expressly included in the Orders. Though the

said Constitution Bench judgment is in the context of orders issued pursuant to

the powers to be exercised under Article 341 and 342 of the Constitution of

India, in our opinion the same would also apply to a Notification issued by the

State Government setting out the caste or sub-caste which is entitled to

reservation amongst others . It is for the State Government to include or

exclude caste or sub-caste or Tribes from the list of Other Backward Class

notified by it. In other words it will not be possible for a Court to make an

enquiry or permit leading of evidence to show that a caste or sub-caste not

referred to in the Notification forms part of the caste not already shown in the

Notification. We may only refer to the following observation in Milind & Ors.

(supra):-

"Whether a particular caste or a tribe is Scheduled Caste or

Scheduled Tribe as the case may be, within the meaning of the

entries contained in the Presidential Orders issued under clause (1) of

Articles 341 and 342, is to be determined looking to them as they

are. Clause (2) of the said articles does not permit any one to seek

modification of the said orders by leading evidence that the

caste/Tribe (A) alone is mentioned in the Order but caste/Tribe (B) is

also a part of caste/Tribe (A) and as such caste/Tribe (B) should be

deemed to be a Scheduled Caste/Scheduled Tribe as the case may

be. It is only Parliament that is competent to amend the Orders

issued under Articles 341 and 342. As can be seen from the entries

in the schedules pertaining to each State whenever one caste/tribe

has another name it is so mentioned in the brackets after it in the

schedules. In this view it serves no purpose to look at gazetteers or

glossaries for establishing that a particular caste/tribe is a Scheduled

Caste/Scheduled Tribe for the purpose of Constitution, even though

it is not specifically mentioned as such in the Presidential Orders.

Orders once issued under clause (1) of the said articles, cannot be

varied by subsequent order or notification even by the President

except by law made by Parliament. Hence it is not possible to say

that State Government or any other authority or courts or Tribunals

are vested with any power to modify or vary the said Orders. If that

be so, no inquiry is permissible and no evidence can be let in for

establishing that a particular caste or part or group within tribes or

tribe is included in Presidential Order if they are not expressly

included in the Orders. Since any exercise or attempt to amend the

Presidential Order except as provided in clause (2) of Articles 341

and 342 would be futile, holding any inquiry or letting in any

evidence in that regard is neither permissible nor useful."

4. With the above background let us now consider the facts in issue. The

petitioner was elected as Councillor of the Municipal Corporation of Greater

Mumbai against a seat reserved for O.B.C. The election of the petitioner was

contested by Respondent No.6 Shri Prakash Baban Patankar amongst others on

the ground that the caste certificate issued to the petitioner based on which he

had contested the election was false. As the dispute arose about validity of the

caste certificate the matter was referred to the respondent No.2 for validation of

the caste certificate. According to the petitioner he belongs to 'Sutar'

Community which is known by general nomenclature as Somwanshi Kshatriya

Pathare (Panchakalshi Sutar). The Committee after considering the material

before it by its order dated 27th April, 2007 invalidated the caste certificate

issued in favour of the petitioner on 27th October, 2006 by the Deputy Collector,

Mumbai. The petitioner aggrieved preferred a Writ Petition before this Court

being Writ Petition No.4250 of 2007. A learned Bench of this Court by order

dated 12th August, 2008 set aside the above decision of the Committee dated 27th

April, 2007 and remitted the matter back to the Committee for fresh decision

according to law. The Committee thereafter again by the impugned order dated

24th August, 2009 invalidated the caste certificate of the petitioner.

5. At the hearing of this petition on behalf of the petitioner it is submitted

that in the school leaving certificate of his grand father Shri Gopinath Keshavrao

Devare the caste is recorded as Sutar. The document is of 1890 AD. The

petitioner also relied on the domicile certificate of his cousin brother Shri

Bhupendra Gajanan Devare issued on 1st June, 1946 by the Chief Presidency

Magistrate, Bombay, where the caste is mentioned as Sutar. The petitioner also

relied on the caste validity certificate of his niece Smt. Sweta d/o. Vijaynath

Devare where it is held that she belongs to Hindu - Sutar and placed reliance on

the affidavit dated 19th March, 2008 showing relationship with the petitioner.

The petitioner also relied upon various other documents including the certificate

issued by Kshatriya Union Club that the petitioner belongs to Sutar community.

The petitioner also relied on a lease deed of the year 1934 of a house property

at village Changatpuri, Taluka Paithan given to his grand father Shri Gopinath

Keshavrao Devare by one Gangubai Bhagwansing Rajput on rent of Re.1/-

wherein the caste of Gopinath Keshavrao Devare has been referred as

Somwanshi Sutar and occupation as carpenter. At the outset we may point out

that this document of lease entered into in 1934 shows the age of the person

listed therein Gopinath s/o. Keshavrao Devare as 32 years. The School Leaving

Certificate of the petitioner's grand father would show that his date of birth as

27th November, 1877. In other words on the date of the document the

petitioner's grand father if he is the same person would have been 65 years

years and not 32 years as set out in the document. That document really,

therefore, would be of no consequences. The petitioner then also relied upon the

Bombay Gazettor and various other literature to contend that the Sutar caste is

known as Panchakalshi and and they fall in widely known category as

Somwanshi Kshatriya Pathare. It is, therefore, set out that Somwanshi

Kshatriya Pathare is a wider class of community which includes Panchakalshi

Sutar and Vadval. In the Bombay Gazetteer of the Bombay Presidency as

produced by the petitioner we find the following extract:-

"Pachkalshis are returned as numbering 15,367 souls and as found

in small numbers over most of the district and in strength

along the coast. Besides by the name of Pachkalshis, they are

known as Sutars, Malis, Vadvals, Chankalshis, Somvanshi

Kshatris and Pathares, all of whom except the Chankalshis eat

together and intermarry. The name Pachkalshi is said to come from

their using in their marriage ceremonies five earthen pots, kalas."

In our opinion, even assuming that this material could be relied upon in so far

as the Government Notification is concerned Pachkalshis is shown under Entry

182 beginning with Malis. Sutar on the other hand is entry 174 and shows

only Sutar and no other sub caste. In the Notification, therefore, Sutar and Mali

are shown under two distinct entries.

6. The next submission on behalf of the petitioner is that considering the

documentary evidence and the other material the learned Committee

misdirected itself in law in holding that the petitioner does not belong to the

caste Sutar.

7. Reply has been filed on behalf of the Respondent No.6. It is mentione3d

therein that the death certificate dated 6th January, 1955 of the petitioner's grand

father shows that he expired on 30th November, 1945 and the date of registration

is 2nd December, 1945. The caste is shown as Pathare Kshatriya and at the time

of his death he was aged 72 years and his occupation was Photographer. This is

based on the certificate of death registry of the Greater Bombay Municipal

Corporation. Reference is next made to a sale deed dated 29th January, 1957

executed by the grand mother of the petitioner Smt. Radhabai Gopinath Devhare

in favour of one Dr. Bhalchandra Keshav Joshi in which the name of the

petitioner's brothers and sisters were mentioned as Somvanshi Kshatriya.

Referring to the school leaving certificate of the grand father of the petitioner it

is pointed out that in the column of date of admission, only 20th December is

mentioned and there is no year mentioned. It is further pointed out that the

School Register produced starts from Sr. No.774 by which the name of the

grand father of the petitioner and date of admission is shown without the year.

The prior entries are blank. The next entry 775 shows the month January but the

year has not been mentioned. Entry No.776 shows the year January 6 but date

is mentioned as 8-7-15. Entry No.779 shows the date as 8th January but the

date has been mentioned as 5-6-1913. The then Principal of the School had

brought the old Register before the Committee but due to worn condition of the

said Register the Committee was unable to verify the said entry. It is also

pointed out that the domicile certificate of Bhupendra Gajanan Devhare shows

caste as "Pathare Kshatriya (Pach Kalshi Sutar). From this document it would be

clear that Pach Kalshi Sutar has been added subsequently. It is, therefore,

pointed out that except for the school leaving certificate of the grand father

which mentioned Caste Sutar which has not been proved no other documents

have been produced to show that the petitioner belongs to caste Sutar. In the

Passport of the petitioner's father the caste is not shown. In the School Leaving

Certificate of the petitioner dated 31st May, 2005 the caste is not mentioned. It

is also set out that Mr. Dwarkanath Thakur gave statement before the Vigilance

Committee that the petitioner does not belong to caste Sutar, but belongs to

Somavanshi Kshatriya. The petitioner had also not taken objection to the

Vigilance Committee Report dated 24th October, 2008 which was submitted after

making home enquiry. The only other document where the caste validity

certificate issued to Shweta Devhare who is his cousin sister, who is much

younger to the petitioner.

8. The question before us is whether the of the Committee in deciding the

caste validity of the petitioner in the order suffers from any error of law

apparent on the face of the record or for that matter suffers from any

jurisdictional error. The Committee directed the vigilance enquiry to be made

which report was made available to the petitioner. Three persons had filed

affidavits of which one stated tht the petitioner's caste is Sutar but belongs to

Somavanshi Kshatriya Pathare whereas two witnesses stated that the petitioner's

caste is Sutar. Two other witnesses including niece Shweta has stated that she

belongs to Sutar whereas his cousin Bhupendra Gajanan Devhare has stated that

he is Pathare Kshatriya (Pach Kalshi Sutar). The Committee noted that

Vigilance Cell's reports are dated 30th March, 2007 and 24th October, 2008. In

the report of 30th March, 2007 it has been mentioned that the school record of

the applicant's grand father is prepared afresh. Dealing with the certificate

issued by the Kshatriya Samaj and Articles of Association the Committee noted

that these are private documents.

9. We may note here that the earliest document is the school leaving

certificate of the petitioner's grand father. From the Vigilance Cell's Report it

has come on record that it was freshly prepared. It has also come on record that

the other entries are blank in so far as the year is concerned. The petitioner's

grand father's death is recorded in the records of the Bombay Municipal

Corporation wherein his caste is shown as Phatare Kshatriya. The next older

document is of Bhupendra Gajanan Devare. There also the origiginal entry is

Phatare Kshatriya and there is an entry of Phatare Kshatriya - Sutar. The

passport of the petitioner's father which is relied upon does not show his caste.

The birth certificate also does not show the caste nor the School Leaving

Certificate. In other words there is no documentary evidence to show in

unequivocal terms that the petitioner belongs to caste Sutar which falls under

Entry No.174 or for that matter by applying the principles of preponderance of

evidence. The entire case of the petitioner is to contend that he belongs to what

is known as Panchkalshi and Panchkalshis are Sutar. We have noted that Entry

184 includes Panchkalshi under Mali. It is, therefore, not possible to hold that

the order of the Tribunal suffers from any error of law apparent on the face of

the record. We may again reiterate that independent evidence in respect of

caste or sub-caste cannot be led to contend that the sub-caste belongs to a

particular caste or sub-caste. That exercise is beyond the jurisdiction of either

of the Caste Scrutiny Committee or of this Court exercising jurisdiction under

Articles 226 and 227 of the Constitution of India. The ratio of the Judgment in

Miland & Ors. (Supra) has been reiterated in Subhas Chandra vs. Delhi

Subordinate Services Selection Board, 2009 (11) Scale 263.

10. In our opinion, the Scrutiny Committee applied all the tests as set out in

the judgment in Madhuri Patil. in as much as (1) the report of the Vigilance Cell

was called for; (2) the report was made available to the petitioner; (3) the

petitioner was given a hearing and (4) documentary evidence produced has

been considered. In our opinion, therefore, the Committee having given an

opportunity to the petitioner and having considered the evidence on record the

fiding of fact which is recorded by it cannot be said to be based on no reasons or

on inadmissible material or on material extraneous to the issue.

11. In the light of that we are clearly of the opinion that there is no merit in

this petition, which is accordingly dismissed. In the circumstances of the case

there shall be no order as to costs.

     (K.K. TATED, J.)                                             (F,I. REBELLO,J.)