Fakir Alamshah Ahmedshah vs The State Of Maharashtra And ...
2016 Latest Caselaw 2014 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                         
                      BENCH AT AURANGABAD

                      WRIT PETITION NO. 10461 OF 2015




                                                 
     Fakir Alamshah Ahmedshah,
     age : Major Occ.: Labour,
     R/o.: Chambhar Colony,




                                                
     Ward No.4, Muktai nagar,
     Tal. Muktai Nagar,
     Dist. Jalgaon                                            .. Petitioner

                   Vs.




                                      
     1.       State of Maharashtra,
                             
              Through its Secretary,
              Caste Claim Department, Mantralaya,
              Mumbai
                            
     2.       The Caste Certificate
              Scrutiny Committee,
              Nashik Division, Committee No.2,
              Dhule. Dist. Dhule
      


     3.       The Collector, Jalgaon
   



              Tal.: Jalgaon,
              Dist. Jalgaon

     4.       Deputy Commissioner, Nashik





              Division, Nashik
              Dist. : Nashik

     5.    Sayyed Tarik Sayyed Liyakat,
           Age : Major Occu. Nil,
           R/o.: House No. 142, Shani Peth,





           Jalgaon,
           Tal and Dist. Jalgaon                 .. Respondents
                                    ----
     Mr. Girish Nagori, Advocate for the petitioner
     Mr. S.N. Kendre, A.G.P. for respondent nos. 1 to 4
     Mr. S.G. Rudrawar, Advocate for the respondent no. 5
                                   -----




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                               CORAM   : SUNIL P. DESHMUKH, J.

                               DATE    : 28-04-2016




                                                
     ORAL JUDGMENT :




                                               

1. Rule. Rule made returnable forthwith and heard finally by

consent of the parties.

2.

Aggrieved by decision dated 21-09-2015 by the Additional

Commissioner, Nashik in Appeal No.11 of 2015 arising out of the

order dated 20-02-2015 passed by the Additional Collector,

Jalgaon, in Application Case No.69 of 2014, the petitioner is

before this court, whereunder petitioner stands disqualified from

continuing as member of Muktainagar gram panchayat.

3. The facts, as would emerge are that the petitioner was

elected from O.B.C. category on 24-12-2012 as a member of the

Muktainagar gram panchayat and, thereafter, about two years

down, a notice appears to have been issued to the petitioner,

upon a complaint by respondent no.5, that the petitioner having

incurred disqualification to continue as member of the gram

panchayat, having not submitted requisite caste/ class validity

certificate within the stipulated period, as referred to in section

10(1-A) of the Maharashtra Village Panchayats Act (for short

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"the MVP Act"), prescribing furnishing of the same either

alongwith the nomination paper or in the absence of such

furnishing, within a period of six months from the date of

election wherever an application to the scrutiny committee for

verification of the caste before the date of filing of nomination

paper had been pending.

4. The factual position, which does not appear to be in

dispute is, petitioner was elected as member of Muktainagar

gram panchayat on 24-12-2012 as a candidate belonging to

O.B.C. category. While filling up the nomination, the petitioner

along with the same had annexed a receipt depicting that

certificate of his caste/tribe has been submitted for validation of

his claim of belonging to O.B.C. category. Said claim appears to

have been decided on 20-08-2013 finding the certificate/claim of

petitioner to be valid and accordingly the tribe/caste validity

certificate had been issued to the petitioner in August 2013. The

petitioner has stated that the declaration validating his claim to

be belonging to O.B.C. category and the certificate depicting the

same had been intimated and communicated by presenting

copies of validity certificate to the Tahsildar Muktainagar, Block

Development Officer, Muktainagar and Village Development

Officer, Gram Panchayat, Muktainagar, around December, 2013.

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     5.       Therefore,           petitioner's    continuance      as     member          of




                                                                                     

Muktainagar gram panchayat purportedly has been questioned

by respondent No.5 on account of non furnishing of validity

certificate within a period of six months from the date of election

with reference to Section 10(1-A) of the MVP Act. The petitioner

had explained that a bogus complaint in the name of one

Prashant Ashok Tonge had been filed before the scrutiny

committee and quite a lot of time had been consumed in making

communications

to him and producing him before the

committee. Ultimately, it turned out that Prashant Ashok Tonge

had not complained to the committee suspecting the claim of

the petitioner and as a matter of fact, it was respondent No.5,

who had been behind making such bogus complaint in the name

of Prashant Tonge. Accordingly, said Prashant Tonge had filed an

affidavit before the committee stating that he had never filed

any complaint in respect of the O.B.C. claim of the petitioner. As

such, committee took some time to decide the claim of the

petitioner and has decided the same in August, 2013 and

thereafter, had communicated the same to the petitioner and

accordingly, copies of the validity certificate had been furnished

to the authorities referred to hereinabove.

6. Learned counsel for the parties are not at loggerheads as

far as these facts are concerned. The only ground for

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disqualification is, there is non-submission of the validity

certificate during the stipulated period under section 10(1-A) of

the MVP Act.

7. It further appears that the person who had lodged the

proceedings for disqualification had never attended to the same.

8. The Additional Collector under his order dated 20-2-2015

allowed the complaint considering that although the validity

certificate has been furnished, yet it has been furnished beyond

the period prescribed under section 10(1-A) of the MVP Act, and

the order of Additional Collector is endorsed by his decision

under the impugned order dated 21-09-2015 passed by the

learned Additional Commissioner, Nashik.

9. Learned counsel Mr. Nagori appearing for the petitioner

contends that the matter has been dealt with very technically by

the authorities. The object and purpose underlying making the

provision for submitting the validity certificate has been

overlooked and had not been realized. It has been submitted

that the requirement is to see that the persons genuinely

belonging to reserved categories are only getting elected and

spurious claimants are kept at away from such election or are

disabled to continue to be member of gram panchayat. In the

petitioner's case it can be said that all along his claim has been

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genuine and it stands proved to be so. He further submits that

the authorities have been oblivious of the prevailing legal

provision, wherein in the case of application for scrutiny of the

caste certificate has been filed, even before the nomination

paper has been submitted, and validity certificate is not received

within the stipulated period, it has been considered by the courts

that the disqualification in given case would not be incurred for

the reason that the scrutiny process for validity is not within the

control of the petitioner. For said purpose, reliance is placed on

a judgment of this Court in the case of Alka Keshav Tayade @ Alka

Namdeo Shirsat Vs. Kailash Pandurang Pawar and others dated

26-3-2014.

10. In the present case, there is no dispute that the

petitioner's caste/tribe certificate had been sent for scrutiny for

validating the same even before the nomination had been filed

by him contesting the election to the gram panchayat and that

validity certificate has been issued in August, 2013. The same

has also been furnished to authorities around December, 2013

itself in the proceedings.

11. In the present matter, it will have to be considered that

the scrutiny of the caste certificate issued in favour of petitioner

had been pending with the scrutiny committee for quite a while,

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which consumed time more than six months after the date of

election. The petitioner had explained the delay caused in

decision by the committee which has been allegedly at the

instance of respondent No.5. The petitioner has annexed certain

documents in respect of the same. It further appears that the

validity certificate had been issued in August, 2013 and the

same has been submitted to quite a few offices, is also not in

dispute. The petitioner cannot be imputed of causing deliberate

delay in furnishing requisite document i.e. validity certificate. It

may be considered in the facts and circumstances of this case,

the delay caused, had been beyond his control. The genuinity of

the claim or for that matter of the validity certificate does not

appear to be disputed any further. The purpose underlying the

provisions will have to be objectively looked at and technical and

pedantic approach in the facts and the circumstances of the case

would be required to be eschewed.

12. The situation arising in the present matter, to a

considerable extent, is similar to one obtaining in a decision

relied on behalf of petitioner in the case of Alka Keshav Tayade @

Alka Namdeo Shirsat Vs. Kailash pandurang Pawar and others, decision of

Hon'ble Single Judge in Writ Petition No. 8762 of 2013 on

26-03-2014, in which, the Hon'ble Judge has considered that

petitioner therein having been issued the caste validity

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certificate, the matter has been rendered purely academic.

13. In this case, having regard to aforesaid judgment, the

decisions rendered by the Additional Collector as well as

Additional Commissioner appear to be too pedantic and

technical. The major requirement of genuineness of the category

claimed and it being evidenced by validity certificate has been

satisfied. In the circumstances, as stated herein above a

pedantic approach requires to be eschewed and justice needs to

be done to the petitioner.

14. In the circumstances, the order dated 20-2-2015 passed

by the learned additional collector, Jalgaon in application case

no. 69 of 2014 and order passed by additional commissioner in

appeal no. 11 of 2015 dated 21-9-2015 have been rendered

unsustainable. The same are accordingly quashed and set aside.

15. Rule is made absolute in terms of prayer clause (B) and

writ petition is disposed of accordingly.

[SUNIL P. DESHMUKH] JUDGE

arp/sms