Madhuri Dhananjay Nalawade vs State Of Maharashtra Through Its ...
2016 Latest Caselaw 7372 Bom

                                               1      WP.6925/2016-CAW.2158/2016

    mnm




                                                                                    
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION




                                                            
                       WRIT PETITION NO. 6925 OF 2016
                                    WITH
                     CIVIL APPLICATION NO. 2158 OF 2016




                                                           
    Madhuri Dhananjay Nalawade                                    ...Petitioner
          Vs.
    State of Maharashtra & Ors.                                   ...Respondents




                                                  
    Mr. R.K. Mendadkar, Advocate for the Petitioner 
                                    
    Mr. A.M. Kulkarni i/b. Mr. V.R. Gaikwad, Advocate for 
    the Applicant in CAW No.2158 of 2016
    Mr. P. P. Kakade, AGP for the State
                                   
                                           CORAM : NARESH H. PATIL &
                                                           M.S. KARNIK, JJ. 

Reserved for Orders on 30 th November, 2016

Pronounced on : 16th December, 2016

JUDGMENT: (PER SHRI M.S. KARNIK, J.).

. Rule, returnable forthwith. Heard finally by consent of

the parties.

2. The Petitioner challenges the order dated 20 th May,

2016 passed by the Scheduled Tribe Certificate Scrutiny Committee,

Pune Region, Pune (herein referred to as the Committee for short)

invalidating the caste claim of the Petitioner as belonging to the

2 WP.6925/2016-CAW.2158/2016

Thakar - Scheduled Tribe.

3. It is the Petitioner's case that she was granted a caste

certificate as belonging to Thakar - Scheduled Tribe by the

Competent Authority on 15th July, 2013. As the Petitioner intended

to contest election of Gram Panchayat, Kanheri in the Scheduled

Tribe category, by a letter dated 16th October, 2015 she requested

the Committee to decide her tribe claim expeditiously. The

Petitioner filled her nomination form from Mahatma Gandhi Ward

No.1 on 17th October, 2015. The Petitioner undertook to produce

her Caste Validity Certificate within six months failing which, she

will be disqualified retrospectively. The Petitioner who was elected

as a member of Gram Panchayat, Kanheri from Scheduled Tribe

category on 4th October, 2011 was elected as a Sarpanch on 10 th

December, 2015.

4. The Petitioner's caste claim was referred to the Vigilance

Cell Department for inquiry. The Vigilance Cell Department

recorded the statement of the Petitioner as well as the statement of

one Shri Dattatray Bhausaheb Shinde an elderly person in the

3 WP.6925/2016-CAW.2158/2016

village where the Petitioner claim to be the native. The Vigilance

Cell Department also verified genuineness of the various documents

submitted by the Petitioner as well as the other documents obtained

during the course of inquiry. The Vigilance Officer was of the

opinion that the Petitioner does not belong to the Thakar -

Scheduled Tribe. The Committee upon considering the material

record invalidated the caste claim of the Petitioner as belonging to

Thakar - Scheduled Tribe.

5. Learned Counsel for the Petitioner assailed the order

passed by the Committee on the ground that the Committee has not

considered as many as twelve pre-constitutional documents relied

upon by the Petitioner in support of her caste claim in its proper

perspective. According to him the documents of Shri. Balwanta

Ravji Thakar dated back to 15 th July, 1910. The document of Shri

Babu Ravji Thakar indicating his caste as Thakar dates back to 15 th

March, 1913. The document pertaining to Shri Ramchandra

Tukaram Thakar is dated 15th June, 1914. These documents are

discarded by the Committee on the ground that in the School

records in the remarks column the date on which they are admitted

4 WP.6925/2016-CAW.2158/2016

in the School does not appear. The learned Counsel, therefore,

contends that the old documents of the year 1910, in respect of the

cousin great grandfather of the Petitioner have great probative

value. He relied upon the decision in the case of Desh Raj Vs.

Bodh Raj (2008) 2 SCC 186 to contend that the documents more

than 30 years old attracts the presumption under Section 90 of the

Evidence Act. These documents clearly indicate the caste of her

blood relatives, the caste of her ancestors as Thakar - Scheduled

Tribe and therefore, the same should be treated as clinching

evidence having great probative value.

6. Learned Counsel for the Petitioner would further

contend that the affinity test has not been correctly applied in the

present case. More over the Committee has completely erred in

applying the area restrictions as the same has been removed by the

Act No.108 of 1976 passed by the Parliament. According to the

learned Counsel for the Petitioner after the removal of area

restrictions with effect from 17 th July, 1977 it cannot be legally

insisted that the claimant must come from specified area so as to

make available facility and concession meant for scheduled tribe in

5 WP.6925/2016-CAW.2158/2016

the State of Maharashtra.

7. The learned Counsel further contends that the

Committee has committed an error in overlooking caste certificate

of the cousin uncle of the Petitioner viz. Rajendra Ramchandra

Nalawade. The finding of the Committee that the caste validity

certificate granted to Rajendra was on the basis of the legal position

then prevailing is an erroneous approach adopted by the

Committee. According to the learned Counsel for the Petitioner the

same runs counter to the law laid down by this Court in the case of

Apoorva d/o Vinay Nichale Vs. Divisional Caste Certificate

Scrutiny Committee 2010(6) Mh. L.J. 401.

8. On the other hand learned AGP appearing on behalf of

the Respondent Committee supported the impugned order.

According to him the Committee has considered the entire

materials on record and has given cogent reasons for discarding the

documents relied by the Petitioner. According to him the old

documents pertaining to Shri Balwanta Ravjee Thakar, Babu Ravjee

Thakar and Ramchandra Tukaram Thakar are rightly discarded on

6 WP.6925/2016-CAW.2158/2016

the ground that the school records do not indicate the date on

which they are admitted. He also submitted that the document

pertaining to Shankar Maruti Thakar is tampered by scoring the

word "Maratha" and instead "Thakar" has been written in different

ink and handwriting. The learned AGP further submitted that the

Committee has after taking into consideration the statement of the

Petitioner rightly concluded that the Petitioner has failed to prove

the affinity test.

9. The learned AGP submits that even prior to the removal

of area restrictions the Petitioner and her ancestors are admittedly

living at village Kanheri, Tal: Khandala, District: Satara. The native

place of the Petitioner, therefore, is not even remotely connected

with the areas where persons belonging to the Thakar - Scheduled

Tribe were residing. It is in this light, so the learned AGP submits,

that the Committee rightly arrived at the finding that the area

restriction as regards the Petitioner would be applicable.

10. The learned AGP further submits that in respect of the

caste validity certificate of the Petitioner's blood relatives Rajendra

7 WP.6925/2016-CAW.2158/2016

Ramchandra Nalawade was issued in the year 2002 and the same

was issued as per the legal position then prevailing. The learned

AGP submits that the Committee is, therefore, justified in not giving

any weightage to caste validity certificate of Rajendra Ramchandra

Nalawade in view of the changed legal position presently. The

learned AGP submits that no infirmity can be found in the order

passed by the Committee.

11. The learned Counsel appearing for the Interveners

generally adopted the submissions made by the learned AGP and

contends that this Court may not intervene with the well reasoned

order passed by the Committee. He also submits that the real uncle

of the Petitioner whose caste is shown as Hindu Thakar - Other

Backward Class is not shown in the genealogy and therefore, the

Petitioner is guilty of material suppression also.

12. Having considered the submissions advanced on behalf

of the learned Counsel for the respective parties, we are of the view

that the matter needs to be remanded back to the Committee for a

fresh consideration.

8 WP.6925/2016-CAW.2158/2016

13. The Petitioner has relied upon the caste validity

certificate issued to her cousin uncle Rajendra Ramchandra

Nalawade. The reasoning of the Committee that the said caste

validity certificate cannot be considered in favour of the Petitioner

as the same was granted on the basis of the legal position then

prevailing cannot be countenanced. In our opinion once the caste

validity certificate has been validly issued in accordance with the

rules and regulations prevailing at the time of the issuance of the

caste validity certificate, the same cannot be discarded merely

because the rules for issuance of the caste validity certificate have

subsequently undergone a change. Once the blood relation of the

Petitioner viz: Rajendra Ramchandra Nalawade has been granted a

caste validity certificate, the Committee ought to give due

weightage to the same while considering the issuance of validity

certificate to the Petitioner in accordance with the law laid down in

the case of Apoorva (supra). The Petitioner's caste claim thus calls

for reconsideration.

14. Further more, in our view, the Committee has

committed an error in applying the area restrictions to the

9 WP.6925/2016-CAW.2158/2016

Petitioner after the removal of the same and according to us,

therefore, the decision of the Committee is contrary to the law laid

down in the case of Pandurang Rangnath Chavan Vs. State of

Maharashtra & Ors. 1998(2)Mh.L.J. 806. The case of the

Petitioner, therefore, will have to be considered on its own merits

without applying the area restrictions.

15.

The Petitioner has relied upon various documents which

have been discarded by the Committee on the ground that in the

School records the date on which the student was admitted in the

School is not found. The documents which have been relied upon

by the Petitioner being old documents have great probative value.

More over as observed by the Apex Court in the case of Desh Raj

(supra) wherein it has been held that the document more than 30

years old attracts the presumption under Section 90 of the Evidence

Act, 1872, the Committee before discarding these documents must

adopt a cautious approach. The Committee before discarding old

documents should give cogent reasons.

16. In this view of the matter we have no hesitation in

10 WP.6925/2016-CAW.2158/2016

setting aside the impugned order passed by the Committee and

remanding back to the Committee for fresh consideration.

17. We may hasten to add that we have not expressed any

opinion on the merits of the matter and the Committee is free to

decide the caste claim of the Petitioner on its own merits and in

accordance with law.

18. In view of the various contentions raised by the

Petitioner over and above the contentions dealt with by us in this

order, it is necessary that the Committee rehear the Petitioner and

the applicant intervenor as well before passing a fresh order.

Hence, the following order:

1. The impugned order dated 20th May, 2016 passed

by the Respondent Committee is quashed and set aside.

2. The caste claim of the Petitioner is remanded back

to the Respondent No.2 Committee for a fresh

consideration on its own merits and in accordance with

law.

11 WP.6925/2016-CAW.2158/2016

3. The Committee shall give an opportunity of

hearing to the Petitioner as well as the Applicant

intervenor and pass a reasoned order within a period of

3 months from today. The petitioner and the intervenor

to appear before the Committee on 23/12/2016 at

11.00 a.m.

4.

No order as to costs.

19. Rule is made absolute in the above terms.

                  (M.S. KARNIK, J.)                     (NARESH H. PATIL, J.)