Yogesh Bansi Shinde vs State Of Maharashtra Through ...
2017 Latest Caselaw 1918 Bom

                                                                   902. WP 9276.16.final doc

Urmila Ingale

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CIVIL APPELLATE JURISDICTION
                                        WRIT PETITION NO.9276 OF 2016

                 Yogesh Bansi Shinde
                 Aged 36 years, resident of Nere,
                 Tal. Mulashi, Dist. Pune - 411 033.                   .. Petitioner
                       Vs.
                 1.    State of Maharashtra
                 Through its Secretary, Social Justice
                 Department, Mantralaya, Mumbai - 32.

                 2.  Divisional Caste Certificate Scrutiny
                 Committee No.3, Pune Division, Pune
                 Through its Member Secretary, having
                 Its office at Jail Road, Commer Zone,
                 Behind IT Park, Yerwada, Pune 411 006.

                 3.   Collector, Pune, Dist. Pune.

                 4.  Sub Divisional Officer, Maval-Mulashi
                      Sub Division, Maval, Dist. Pune.

                 5.  Rahul Balu Jadhav,
                 Resident of Nere, Tal. Mulashi,
                 Dist. Pune.                                         .. Respondents

                 Mr.R.K.Mendadkar, for the Petitioner.
                 Mr.Vikas Mali,  AGP for State.
                 Mr.A.B. Patil, for Respondent No.5.

                                             CORAM : NARESH H. PATIL &
                                                            M.S.KARNIK, JJ.
                                               
                                        RESERVED ON :  16th MARCH, 2017
                                  PRONOUNCED ON :  21ST APRIL, 2017

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                                                           902. WP 9276.16.final doc

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

. Rule, returnable forthwith. Heard finally by consent

of the parties.

2. The petitioner by this Petition is challenging the

order dated 03/08/2016 passed by respondent No.2 -

Committee thereby invalidating, cancelling and confiscating the

caste certificate of the petitioner dated 27/03/2015 issued by

the respondent No.4 as belonging to Kunbi caste which is

notified as Other Backward Class (for short 'OBC') in the State of

Maharashtra.

2. According to the petitioner, ward No.3 of

Grampanchayat Nere, Tal. Mulashi, Dist. Pune was reserved for

backward class of citizens. As the petitioner was desirous of

contesting election from the said ward, he moved respondent

No. 2 - Committee on 06/07/2015 through Tahsildar Mulashi.

The petitioner's application was forwarded for verification of his

caste claim along with the documents. Respondent No.2 -

902. WP 9276.16.final doc

Committee referred the matter to the Vigilance Cell. The

enquiry was conducted by the Vigilance Cell. The birth and

death extracts in relation to three children born to the great

grandfather of the petitioner were enquired by the Vigilance

Cell. According to the petitioner, the enquiry conducted is not

in conformity with Rule 13 of the Caste Certificate Act in as

much as there is complete departure from following Rule 13(1)

(a) to (d). The grievance of the petitioner is that while

conducting the Vigilance Cell enquiry, the investigation as

regards the collecting of information with regard to socio-

cultural, anthropological moorings and ethnological kinship,

genetical traits of OBC was not carried out.

3. The show cause notice dated 03/12/2015 came to

be issued to the petitioner alleging that in the original records

relating to the relatives of the petitioner which he relied in

support of his caste claim, there is difference in ink and

handwriting. The petitioner pointed out to the the Committee

in the hearing held on 22/12/2015 that original records are

902. WP 9276.16.final doc

always kept in the custody of Tahsildar, Mulshi and unless and

until the custodian of said record is examined, mere allegations

made in the enquiry report cannot be sustained.

4. The petitioner also filed 2 more documents in

relation to his relatives namely Eknath Bhiva Maruti Shinde and

the death extract in relation to Dagadi Bhiva Shinde showing

caste in abbreviated form in Marathi as "Ma.Ku". meaning

Maratha Kunbi. Again the vigilance enquiry was conducted and

report was submitted on 16/02/2016 wherein it has been clearly

mentioned that caste of these persons namely Eknath and

Dagadi is shown as Kunbi. The police inspector of vigilance cell

reported that he has examined the records and found that there

is no tampering or difference in ink and handwriting in respect

of these entries.

5. Respondent No.2 - Committee was not satisfied with

the said enquiry report and again issued a show cause notice

dated 18/02/2016 to the petitioner pointing out that the

902. WP 9276.16.final doc

petitioner has not submitted evidence of blood relatives in

support of his caste claim. The petitioner appeared before the

Committee for hearing on 08/03/2016 and pointed out that the

Vigilance Cell has confirmed genuineness and authenticity of

original documents and did not doubt the relationship.

6. The petitioner also relied on the death extract of

Maruti Bhiva Govinda which dates back to 01/05/1912 who is

the great grandfather of the petitioner from paternal side to

show that they are related by blood. The petitioner has also

placed reliance on three affidavits along with genealogical tree.

The petitioner was heard on 22/03/2016. Thereafter, the

impugned order came to be passed by respondent No.2 -

Committee.

7. The petitioner has challenged the order on various

grounds. According to the learned Counsel for the petitioner,

the document at serial No. 8 is the death extract in relation to

Maruti who is the agnate great grandfather of the petitioner

902. WP 9276.16.final doc

from paternal side. The document dates back to 1912 showing

caste as Kunbi. The said entry is discarded by the respondent

No.2 - Committee on the ground that there is difference in ink

and handwriting. According to the learned Counsel for the

petitioner discarding this entry is against the principles of

natural justice and the same should not have been done without

issuing a show cause notice to the petitioner in relation to the

alleged tampering.

8. Learned Counsel for the petitioner next contended

that the Committee has committed an error in not referring to

the death extract dated 01/05/1912 in relation to Maruti Bin

Govinda Shinde for verification to the Vigilance Cell and

therefore, has acted contrary to the mandate of Rule 13(1)(e) of

the Caste Certificate Rules, 2012. Learned Counsel for the

petitioner submitted that various documents have been

discarded without examining the custodian of the records.

According to him, the Committee has committed an error in not

considering the efficacy of second enquiry report of the Vigilance

902. WP 9276.16.final doc

Cell which is in favour of the petitioner. According to him, the

Committee did not apply its mind to the genealogical tree and

thereby committed an error in discarding the birth extract in

relation to Eknath Shinde and Dagadi Shinde on the ground

that petitioner's relationship with them is not proved.

9. Learned Counsel for the petitioner next contended

that crucial affinity test is not conducted and therefore, also the

decision calls for interference.

10. The learned AGP on the other hand supported the

order passed by the Committee. He invited our attention to the

findings recorded by the Committee. He also produced the

original record for our perusal.

11. We have perused the record. The Scrutiny

Committee has discarded the documents at serial Nos. 3, 4 & 5

on the ground that there is tampering and overwriting as also

there is difference in ink and handwriting as reported by the

902. WP 9276.16.final doc

Vigilance Cell. In so far as the documents at serial No. 6 which

relate to the birth extract of son born to Bhiva Maruti Shinde

and document at serial No. 7 which is birth extract of Bhiva

Maruti Shinde's daughter are discarded by the Committee on the

ground of change of ink, overwriting and the same being of

different type. The Committee has found that the petitioner

was not able to establish his relationship with Eknath Bhiva

Maruti Shinde and Dagadi Bhiva Maruti Shinde. In fact the

complainant has proved that the said Eknath Bhiva Maruti

Shinde and Dagadi Bhiva Maruti Shinde are not in blood

relation of the petitioner.

12. The Committee also took into consideration the

document produced by the petitioner pertaining to Shri Maruti

Bin Govinda Shinde. The said document is of the year 1912 is a

birth- death extract. In fact even after the Committee had closed

the matter for orders on 22/03/2016, the Committee considered

the said document after hearing the petitioner afresh. The

Committee upon examination of the original register found that

902. WP 9276.16.final doc

there is tampering and the same is written in different

handwriting. The Committee, therefore, did not take into

consideration the said document.

13. The Committee while considering the revenue

entries and mutation entries produced by the petitioner opined

that the same did not contain any entry as regards the caste,

therefore, did not take into consideration those entries in

support of the petitioner's caste claim. The Committee has given

cogent reasons why it has not considered the Vigilance Cell

report dated 16/02/2016.

14. Learned Counsel for the petitioner has relied upon

the decision of the Apex Court in the case of Anand Vs.

Committee for Scrutiny and Verification of Tribe Claims and

ors., (2012) 1 Supreme Court Cases 113 to contend that the

vigilance enquiry is not restricted to the verification of

documents but also includes conducting the affinity test in

accordance with the scheme of the Act and Rules which is

902. WP 9276.16.final doc

relevant and germane to determination of social status of

claimant.

15. In our opinion, the Committee has arrived at a

finding that the documents relied upon by the petitioner are

found to be tampered and over written. The said finding is

supported by the materials on record. We do not find any

perversity in the view taken by the Committee. The petitioner

heavily relied upon the documentary evidence produced by him

in support of his claim. As held by the Apex Court in the case of

Anand (supra), the burden to prove the caste claim lies upon

the applicant and in case the materials produced by the

applicant does not prove his caste claim, the Committee cannot

gather evidence on its own to prove or disprove his caste claim.

The first report of the Vigilance Officer clearly reports that the

documents relied upon by the petitioner in support of his caste

claim are over written and tampered with. In our opinion, if the

petitioner has based his claim on the basis of documents which

are tampered and over written and in these circumstances, if the

902. WP 9276.16.final doc

Committee has come to the conclusion that the petitioner has

failed to prove his caste claim, we do not find that the view of

the Committee is perverse or unreasonable. The view taken by

the Committee does not warrant any interference only on the

ground that affinity test is not conducted in the facts of this case.

16. In this view of the matter, we do not find any merit

in the Petition. The Petition is therefore, rejected with no order

as to costs.

17. Rule is discharged in the above terms.

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

After pronouncement of judgment, learned Counsel

appearing for petitioner requests for continuation of ad-interim

relief which was granted on 08/08/2016. Learned Counsel

appearing for the respondents submits that record does not

reflect that ad-interim relief was continued by this Court on the

successive dates. Even otherwise, in view of order passed today,

902. WP 9276.16.final doc

we are not inclined to continue ad-interim relief as prayed for.

Request made by learned Counsel appearing for the petitioner

stands rejected.

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