Bombay High Court
Shaikh Akhtar Jalalsab Mistri vs The State Of Maharashtra And ... on 10 August, 2016
Bench: S.V. Gangapurwala
1 W.P.No.4896/16
UNREPORTED
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.4896 OF 2016
WITH
C.A.NO.7019 OF 2016.
Shaikh Akhtar S/o Jalalsab Mistri,
Age 50 years, Occ.Mistri and
Corporater, R/o Miskinpura,
Latur, Taluka and District
Latur. ... Petitioner.
Versus
1. The State of Maharashtra,
through the Secretary,
Social Welfare Department,
Mantralaya, Mumbai.
2. The Scheduled Caste,
Vimukta Jati Nomadic
Tribe, Other Backward
Class & Special Other
Backward Class caste
Certificate Scrutiny
Committee No.2, Aurangabad
Division, Latur.
3. Gopal S/o Satrajeet
Burbure, Age 28 years,
Occ.Legal Practitioner
and Agriculture, R/o
Mali Galli, Ward No.2,
Latur, Dist.Latur.
4. The Commissioner,
Municipal Corporation,
::: Uploaded on - 16/08/2016 ::: Downloaded on - 17/08/2016 00:01:51 :::
2 W.P.No.4896/16
Latur. ... Respondents.
...
Mr.S.B.Talekar, advocate holding for
Mr.V.G.Sakolkar, advocate for the petitioner
Mr.B.V.Virdhe, A.G.P. for the State.
Mr.N.V.Gaware, advocate holding for
Mr.G.K.Sontakke(Patil), advocate for Respondent
No.3.
Mr.V.D.Hon, advocate for Respondent No.4.
Mr.Shivaji T.Shelke, advocate for Respondent
No.5.
ig ...
CORAM : S.V.GANGAPURWALA AND
K.K.SONAWANE,JJ.
Date : 10.08.2016.
ORAL JUDGMENT (Per S.V.Gangapurwala,J.)
1. Heard.
2. Rule. Rule returnable forthwith. With
the consent of parties taken up for final
hearing.
3. The caste certificate of the petitioner
as belonging to Mistri (OBC) has been
invalidated. Aggrieved thereby, the present
petition.
4. The petitioner had obtained the caste
certificate as belonging to Mistri from the Sub-
Divisional Office, Latur, on 17.3.2012. The
petitioner contested the election to the Latur
Municipal Corporation. The petitioner was
elected as a Corporator and later on as a Mayor
of the Latur Municipal Corporation. The caste
certificate of the petitioner was forwarded to
the Scrutiny
ig Committee for verification.
Initially the said certificate was validated.
The order of the Committee validating the caste
certificate of the petitioner as belonging to
Mistri (OBC) was assailed by the Respondent No.3
before this Court in W.P.No.301/2015. This Court
by its judgment and order dated 21.10.2015 set
aside the judgment of the Committee and remanded
the matter back to the Committee. Pursuant to
the remand after hearing the parties, the Caste
Scrutiny Committee invalidated the claim of the
petitioner.
5. Mr.Talekar, learned counsel for the
petitioner strenuously contends that the
petitioner had in fact, submitted 155 documents.
The Committee considered only 15 documents. The
other documents were not referred to nor
considered by the Committee. The learned counsel
submits that petitioner had filed the copies of
various documents and at the time of hearing
produced the originals of all those documents,
such as the LIC policy, Bank passbook, cheque
book, property tax receipts standing in the name
of his father
ig and fore-fathers, wherein the
petitioner's father and fore-fathers were
referred to as Mistri along with the name.
According to the learned counsel, it was
imperative for the Committee to consider all
these documents. As the fore-fathers of the
petitioner were doing the occupation of Mistri,
they were referred to as Mistri. This aspect has
not been considered. The learned counsel submits
that after the originals were shown to the
Committee, the originals were taken back and
photo copies of the same were retained in the
record.
6. The learned counsel further submits
that the occupation carried out by the person is
indicative of his caste. There is no caste
system in the Muslims, however, by virtue of the
occupation being carried out, they are referred
to belonging to the said caste. All the old
documents produced on record would go to show
that the petitioner's father and fore-fathers
were referred to as Mistri only because they were
doing the work of Mistri. The learned counsel to
substantiate his submission that the class has
been formed because of the occupation that they
were doing, relies on the judgment of the Apex
Court in the case of "Indra Sawhney Vs. Union of
India" reported in 1992 SCC (L & S) Supp.
7. According to the learned counsel, the
School record of the petitioner and the
petitioner's brother also substantiate the
contention of the petitioner. In the School
record of the eldest brother of the petitioner,
the occupation of the father is recorded as
Mistri. The brother has taken admission on
21.7.1965 and caste Mistri has been included in
OBC category in the year 1967. The said document
is prior to the inclusion of the said caste in
OBC category. The said document will have high
evidential and probative value. The learned
counsel further submits that in the School
Admission Register of the petitioner himself, the
caste is recorded as Sutar. The word Sutar is
referred to as synonym to Mistri. According to
the learned counsel, in villages these words and
occupations are interchangeable, as such the
Mistri is
ig loosely referred to as Sutar.
According to the learned counsel, the entry in
the School Register of the third brother of the
petitioner though shows the occupation as
business, the same can not be said to be contra
evidence and the isolated entry may not have any
effect. In the caste column of the petitioner and
the brothers, the caste is recorded as Muslim
because in Muslim, there is no caste system. In
fact, Muslim is religion. The learned counsel
further submits that thrice the Vigilance has
been conducted and all the three Vigilance report
are not against the petitioner. In fact, the
home inquiry conducted by the Vigilance supports
the case of the petitioner. The statements of
four elderly persons are recorded who have
categorically stated that the fore-fathers of the
petitioner were doing the work of Mistri. The
Committee has perversely observed in the order
that the home inquiry does not support the case
of the petitioner. The facts on record are
otherwise. The learned counsel further submits
that the Committee has not conducted the affinity
test nor the Vigilance has conducted the affinity
test. The learned counsel submits that affinity
test is relevant and material and is required to
be conducted.
8. The learned counsel submits that the
documents on record are sufficient to prove the
case of the petitioner as belonging to Mistri
(OBC). However, if the Committee has some doubt
then it ought to have conducted the affinity
test. The learned counsel submits that the
affinity test is not restricted to a particular
tribe but has to be conducted in respect of the
other caste also. The learned counsel relies on
the judgment of the Division Bench of this Court
in the case of "Sadeek Shaha Ramjan Shaha Vs.
State of Maharashtra" reported in 2009 (3)
Mh.L.J.372 and another judgment of the Division
Bench of this Court delivered at Nagpur in
W.P.No.2491/2011 dated 14.7.2911, so also the
judgment of the Division Bench delivered at
principal seat at Bombay in W.P.No.8044/2013
dated 17.2.2014. The learned counsel also relies
on the judgment of the Apex Court in the case of
"Anand Vs. Committee for Scrutiny and
Verification of Tribe Claims and others" reported
in AIR 2012 Supreme Court 314.
9. Learned counsel also relies on the
literature i.e. on the book the Tribes and
Castes, Bombay, Volume III authored by
R.E.Enthoven. According to the learned counsel,
the Committee failed in its duty in not referring
to all the documents placed before it, so also
not considering the report of the Vigilance
Committee with regard to the home inquiry.
10. Mr.Gaware, learned counsel for
Respondent No.3 vehemently submits that the
petitioner in the year 2001 had obtained caste
certificate as belonging to Chapparband V.J. The
said caste certificate was retained by him and
while he was holding the said caste certificate
considering that the post of Mayor for the
election of the Latur Municipal Corporation is
reserved for OBC, obtained caste certificate of
belonging to Mistri OBC in the year 2012 and
contested the election on the basis of caste
certificate of OBC. After getting elected and for
one year after obtaining the caste certificate of
Mistri, did not even surrender the caste
certificate obtained by him of Chapparband. It
is only after one year of obtaining the caste
certificate as belonging to Mistri and getting
elected, the petitioner surrendered his earlier
caste certificate as belonging to Chapparband.
The conduct of the petitioner is relevant. The
learned counsel submits that while obtaining the
caste certificate as belonging to Chapparband in
the year 2001, the petitioner had annexed the
various other documents of his relatives to show
that he belong to Chapparband caste. On oath the
petitioner stated that he belonged to Chapparband
caste. The said fact needs to be considered and
would negate the claim of the petitioner as
belonging to Mistri caste. The learned counsel
submits that the Vigilance had considered the
documents produced by him. After the Vigilance
was conducted for the first time again the
Vigilance was conducted after one month as
additional documents were submitted by the
petitioner and subsequently for the third time,
the Vigilance was conducted as the documents
which were relied by the petitioner at the time
of obtaining the caste certificate as Chapparband
were produced on record. The conduct of the
petitioner would disentitle the petitioner from
any relief. The learned counsel submits that the
surname as being synonymous with the name of a
caste and the occupation professed is not
sufficient to establish that the petitioner
belongs to the said OBC caste. For the said
purpose the learned counsel relies on the
judgment of the Full Bench of this Court in the
case of "Shilpa Vishnu Thakur Vs. State of
Maharashtra and others" reported in 2009 (3)
Mh.L.J.995, so also the judgment of the Division
Bench of this Court in the case of "Sagiruddin
Israiluddin Mistry and another Vs. State of
Maharashtra and others" reported in 2007 (1) ALL
MR 627. According to the learned counsel, the
documents placed on record by the petitioner are
contradictory. The document of the petitioner
bearing admission serial No.1253 shows the caste
of the petitioner as Sutar. The same is
interpolated and made as Mistri as per
endorsement of Vigilance on the said document.
When there is contradictory evidence on record,
no illegality has been committed by the Committee
in rejecting the caste claim of the petitioner.
According to the learned counsel the documents
which were submitted by the petitioner in respect
of tax record were not available with the
Corporation when the Vigilance visited the
Corporation. The petitioner being a Mayor, at
the relevant time had destroyed the said record.
The learned counsel submits that even the LIC
document which was produced could not be counter-
checked as the record with the LIC Office was
not available. Apart from the documents relied
by the Committee, the veracity of the other
documents produced could not be verified by the
Vigilance squad as the record with the said
Offices were not available or were destroyed.
The learned counsel submits that the affinity can
not be the sole ground for establishing the caste
claim. It can at the most be used as
corroborative evidence, however, the petitioner
has to first prove his caste. When there are
documents on record substantiating the fact that
the petitioner does not belong to the said caste
then no other evidence is necessary in the shape
of affinity or otherwise as the affinity test is
only corroborative in nature. The learned
counsel relies on the judgment of the Division
Bench of this Court in the case of "Madhuri Nitin
Jadhav and others Vs. State of Maharashtra and
others" reported in 2014 (3) Mh.L.J.900. The
learned counsel also relies on the judgment of
the Apex Court in the case of "Director of Tribal
Welfare, Government of A.P. Vs. Laveti Giri and
another" reported in (1995) 4 Supreme Court Cases
32 and submits that burden is upon the person
who propounds the said certificate. The learned
counsel relies on the unreported judgment in
W.P.No.2026/2013 of this Bench dated 24.12.2013
and submits that in the said case also the
petitioner therein had obtained two separate
certificates. The Court had considered the said
aspect of having obtained the earlier certificate
of belonging to a different caste and had held
that when the evidence produced while obtaining
both the certificates were different, the same
would be contradictory and inconsistent. The
learned counsel submits that the petitioner
herein isig taking chances and the same is not
permissible.
11. The learned counsel submits that no
error has been committed by the Committee while
rejecting the claim of the petitioner.
12. Learned A.G.P. submits that the
Committee has considered all the relevant
evidence on record. The contra evidence has been
considered and thereafter the Committee has
arrived at the correct conclusion. No error has
been committed by the Committee in invalidating
the caste claim of the petitioner.
13. Mr.Talekar, learned counsel further
submits that even if the petitioner had wrongly
obtained the caste certificate as belonging to
Chapparband caste earlier, the same would not
preclude the petitioner from obtaining the caste
certificate of the caste to which he belongs i.e.
Mistri and the said certificate is required to be
considered for validation on its own merits. The
petitioner had not taken any benefit of the caste
certificate ig of Chapparband V.J. The learned
counsel relies on the judgment of the Apex Court
in the case of "Varsha Vs. Divisional Caste
Certificate Scrutiny Committee and others"
delivered in Civil Appeal No.7325 of 2011 on
16.8.2011.
14. We have considered the submissions
canvassed by the learned counsel for respective
parties.
15. It is not disputed that the petitioner
had earlier obtained caste certificate as
belonging to Chapparband V.J. in the year 2001
and subsequently in the year 2012, had obtained
the caste certificate as belonging to Mistri
(OBC). The petitioner has surrendered the caste
certificate as belonging to Chapparband in the
year 2013. There is nothing on record to show
that the petitioner had obtained some benefit of
caste certificate of Chapparband. The petitioner
contested the election on the caste certificate
of Mistri.
16. Be that as it may, the petitioner had
submitted some documents purportedly of his
relatives to substantiate his claim for getting
caste certificate of Chapparband. The petitioner
has also submitted documents to substantiate his
caste as Mistri. The Committee has to weigh the
evidence before it while arriving at a particular
conclusion. The documents which were submitted by
the petitioner necessarily were required to be
verified by the Vigilance. The genuineness and
veracity of the said documents are required to be
verified by the Vigilance squad and thrice the
Vigilance has submitted its report. The
documents referred to by the Committee in its
judgment were verified. However, there are
other documents which were submitted by the
petitioner but the same were not verified as the
record was not available with the respective
Offices. The Vigilance had no opportunity to
test the genuineness or veracity of the said
documents. The Committee has also not considered
the said documents.
17. The copies of the said document which
according to the petitioner are old documents and
at the suffix of the name of the petitioner
Mistri appears. The photo copies are placed on
record and it was submitted that the petitioner
had produced the originals at the time of
hearing. In fact, the original should have
formed part of the record of the Committee as
at the time of delivery of the judgment the
original documents are required to be before the
Committee. The Committee could not have based
its judgment on the basis of photo copies.
According to the petitioner, in all the old
documents, such as property tax receipts, the
documents of LIC, Passbook, cheque books of the
petitioner's father and fore-fathers though the
surname is Shaikh, Mistri is at the suffix of the
name. According to the petitioner that shows
that the fore-fathers of the petitioner were
doing occupation of Mistri and the same would be
relevant consideration and the said documents are
required to be considered. However, as the
originals were not retained by the Committee, the
Committee could not have given his finding upon
those documents.
18.
The surname reflected in the documents
produced as being synonymous with the name of the
designated caste in itself may not be sufficient
to establish caste, as is observed by the Full
Bench of this Court in the case of "Shilpa Vishnu
Thakur Vs. State of Maharashtra and others".
Occupation carried out by the person may not be
the sole criteria to determine the caste as is
held the Division Bench of this Court in a case
of "Sagiruddin Israiluddin Mistry and another Vs.
State of Maharashtra and others" referred to
supra. In Muslim caste system did not exist. At
least in Muslims occupation carried out since
fore-fathers may be indicative to some extent as
a corroborative one of a caste. By occupation,
the person may be Mistri and Mistri as a class
is included in OBC irrespective of the religion
to which a person may belong. The particular
occupation carried on since fore-fathers of a
person if proved may be one of the circumstance
to prove the caste though not the sole criteria.
The same may also depend upon other factors
including the documents on record. If there are
documents showing contra evidence of caste, the
same will have to be considered as those
documents would have high probative and
evidential value.
19. The Vigilance has conducted the home
inquiry. In the home inquiry, the statements of
four persons are recorded. The same does not
appear to have been considered in the judgment.
It would also appear that the affinity test has
not been conducted either by the Vigilance or the
Committee. As observed by the Division Bench of
this Court in the case of "Mohd. Kumail S/o Nasir
Sheikh Vs. Divisional Caste Scrutiny Committee
No.3", Writ Petition No.2491/2011 dated 14.7.2011
referred to supra and in the case of "Sadeek
Shaha Ramjan Shaha Vs. State of Maharashtra"
referred to supra, the affinity test is required
to be applied to find out whether the petitioner
belongs to a particular caste. It is also
observed by the Division Bench of this Court in a
case of "Sadeek Shaha Ramjan Shaha Vs. State of
Maharashtra" referred to supra, that "it is
therefore, not impermissible in absence of any
documentary evidence for an applicant to prove by
evidence his affinity to a particular caste or
tribe which he belongs. As the oral evidence is
also permissible."
20. Considering the aforesaid aspects of
the matter and more particularly, that the
Committee has not considered the affinity test,
so also has not considered the efficacy of the
other documents produced such as the old
documents and also the documents produced by the
Respondent No.3, submitted by the petitioner at
the time of availing the certificate of
Chapparband, we deem it appropriate to remit
the matter back for the Committee to consider all
the documents submitted by the petitioner and
also by the Respondent No.3 and weigh the
evidence, conduct the affinity and decide the
matter afresh.
21. In light of the above, we pass the
following order :
a) The impugned judgment and order is
quashed and set aside. The parties are relegated
before the Committee to decide the matter afresh
in light of the observations made hereinabove.
The parties shall appear before the Committee on
6.9.2016. The petitioner and Respondent No.3 are
entitled to file additional documents.
b) Till the validation proceedings of the
petitioner in respect of his caste claim is
decided, the petitioner shall not claim benefit
of the said certificate. Considering the fact
that the matter is remitted back, the Committee
shall decide the said proceedings expeditiously
on its own merits after hearing all parties
concerned within three (3) months from the date
of appearance. The parties shall cooperate in
expeditious disposal of the proceedings.
c) Depending upon the judgment of the Scrutiny
Committee, the consequences would follow.
d) Rule accordingly made partly absolute. No
costs.
e) In view of disposal of Writ Petition, the
Civil Application also stands disposed of.
Sd/- Sd/-
(K.K.SONAWANE,J.) (S.V.GANGAPURWALA,J.)
asp/office/wp4896.16
