Nilesh Jaykumar Desai vs State Of Maharashtra Through Its ...
2017 Latest Caselaw 1919 Bom

                                       1         WP.5637/2016-JUDGEMENT

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CIVIL APPELLATE JURISDICTION

                     WRIT PETITION NO. 5637 OF 2016


Nilesh Jaykumar Desai                                        ...Petitioner
Aged 44 years, residing at
Flat No.4, udra Apartment,
New Palace Area, Kolhapur-416003
Dist: Kolhapur.

        Vs.
1. The State of Maharashtra through
    its Secretary, Social Justice Dept., Mantralaya
    Urban Development Department,
    Mumbai-400032.

2.  Divisional Caste Certificate Scrutiny Committee No.2
     Through its Member Secretary
     Having its office at Dr. Babasaheb Ambedkar Samajik
     Nyay Bhavan, Vichare Mal, Kolhapur,
     District: Kolhapur. 

3.  Kolhapur Municipal Corporation,
     Kolhapur, through its Commissioner
     having its office at Kolhapur, Dist: Kolhapur. 

4.  Sub Divisional Officer
     Karveer Sub Division, Karveer,
     Dist: Kolhapur.

5.  Raj Babubhai Jadhav,
     Resident of 221, Ratnamangal Building,
     Tarabai Park, Kolhapur, Dist: Kolhapur.




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                                               2          WP.5637/2016-JUDGEMENT


6.  State Election Commission,
     Maharashtra State, Mumbai.                                   ...Respondents

Mr. R.K. Mendadkar, Advocate for the Petitioner 
Mr. Vikas Mali, AGP for the State 
Mr. A.M. Adagule, Advocate for Respondent No.3
Mr. Mayur Jadhav i/b. Mr. S.B. Shetye, Advocate for Respondent No.6
Mr. G.N. Salunkhe i/b. Mr. Umesh Kurund, Advocate for Rspdt.No.5

                                           CORAM : NARESH H. PATIL &
                                                           M.S. KARNIK, JJ.             

Reserved on 22nd March, 2017 Pronounced on 21st April, 2017

JUDGMENT [PER SHRI M.S. KARNIK, J]

Rule, returnable forthwith. Heard finally by consent of the

parties.

2. The Petitioner challenges the order dated 6th May, 2016 passed

by the Respondent No.2, the Divisional Caste Certificate Scrutiny

Committee No.2 Kolhapur (hereinafter referred to as the Committee

for short) whereby the Committee has invalidated and cancelled the

Caste certificate dated 4th July, 2005 issued to the Petitioner by

Respondent No.4 authority as belonging to Kunbi - Other Backward

Class (OBC).

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3. The Petitioner was issued the caste certificate dated 4th July,

2005 by the competent authority Respondent No.4 ie., Sub Divisional

Officer, Karveer, District: Kolhapur as belonging to Kunbi - OBC. The

Petitioner contested the election from Ward No.11 of the Respondent

No.3 Corporation and was elected as a Corporator.

4. Respondent No.5 is the complainant who objected to the caste

claim of the Petitioner. The Petitioner's caste claim was referred to

the Committee. The Vigilance Cell conducted an enquiry into the

caste claim of the Petitioner and submitted a report dated 6th April,

2016. Copy of the Vigilance Cell report was furnished to the

Petitioner.

5. According to the Petitioner he had engaged Shri S.D. Chogle

Advocate to represent his case. From the Roznama dated 2 nd May,

2016 it is revealed that the Petitioner's Advocate Shri Chogle

informed the Committee that he could not contact the Petitioner and

therefore, showed his unwillingness to proceed further in the matter.

In the application made by the Petitioner's Advocate he informed the

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Committee that he has to adopt the procedure for taking discharge.

According to the Petitioner instead of deciding the application made

by his Advocate Shri S.D. Chogle for discharge, the Committee closed

the matter for orders on 2nd May, 2016. By the impugned order dated

6th May, 2016 the caste claim of the Petitioner was invalidated. The

Petitioner was kept in dark by his Advocate.

6. Learned Counsel for the Petitioner urged that the impugned

order is completely in breach of the principles of the natural justice.

According to him he was not given a proper opportunity to represent

his case as the application for discharge filed by his Advocate Shri

S.D. Chogle was not decided. The Committee was not justified in

deciding the caste claim in these circumstances.

7. The learned Counsel for the Petitioner contended that in the

absence of there being any documentary evidence to prove the caste

claim of the Petitioner the Committee ought to have applied the

crucial affinity test to decide the caste claim. The Committee has

failed to apply this test and thus the impugned order stands vitiated

on this ground alone.

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8. The Petitioner placed reliance on the decision rendered by the

Full Bench of this Court in the case of Shilpa Vishnu Thakur Vs.

State of Maharashtra & Ors. 2009(3) Mh.L.J. 995 to support his

contention that as the inquiry cannot be confined to the examination

of the birth and the school records, but would involve an

investigation of the affinity of the candidate with a tribe or the tribal

community the affinity test was a must. According to the learned

Counsel for the Petitioner the Scheme of the Act and Rules clearly

underlines the application of the affinity test as an integral part of the

process of verification.

9. On the other hand, the A.G.P on behalf of the Respondents

supported the impugned order passed by the Committee. According

to him the Committee considered all the documents relied upon by

the Petitioner while examining his caste claim.

10. We have given out anxious consideration to the submissions

advanced by the respective Counsels.

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11. As regards the Petitioner's contention that the Petitioner was

not given reasonable opportunity to present his case, we find that the

said submission is without any basis. The Committee has recorded a

finding that the Petitioner was granted every possible opportunity to

present his case. In fact by the order dated 18 th November, 2015 this

Court in Writ Petition No. 10660 of 2015 had directed the Committee

to pass a final order within a period of six months. The Committee

has recorded that on the date of hearing on 2 nd May, 2016 the

Advocate for the Petitioner filed an application that as the Petitioner

had not met him, the Advocate is finding it difficult to conduct the

matter. In these circumstances it was requested that he may be

discharged. The same was objected to by the Complainant. We find

that the Committee had granted ample opportunity to the Petitioner

to present his case and in fact the Petitioner was heard on several

occasions. The Petitioner was represented by his Advocate. It is also

matter of record that the Petitioner had filed his written submissions.

If this Court had directed the Committee to take a final decision

within a period of six months and at the fag end of the hearing, if an

application was made by the Petitioner's Advocate for discharge on

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the ground that he had not met him, according to us the approach of

the Committee in proceeding to pass the impugned order cannot be

said to be unreasonable.

12. The Committee has also recorded a finding that the Petitioner

has not produced any documentary evidence to indicate that he

belongs to the Hindu Kunbi caste. In fact it is the Petitioner's case

that in the absence of there being any documentary evidence the

Scrutiny Committee ought to have applied the crucial affinity test,

which it has failed to do so.

13. We find that the Petitioner had submitted a detailed written

submission on 26th April, 2016. In the said submission the Petitioner

has made reference to the various rites, rituals, customs, worships,

ceremonies associated with birth, marriage and death and the

conventions followed for birth and death etc., in respect of the

Petitioner's caste.

14. The learned Tribunal on examining all these aspects observed

that the Petitioner's grandfather was a Teacher in the Government

8 WP.5637/2016-JUDGEMENT

School and from 1952 was a Member of Legislature Assembly. He has

failed to produce the school leaving certificate of his grandfather.

The Petitioner in his application has mentioned that his father's

educational qualifications are B.P.Ed. However, he has not produced

his father's school leaving certificate also.

15. The Committee has also taken into consideration that in the

local inquiry conducted none of the residents in their statements have

mentioned any thing about the caste of the Petitioner.

16. It is not the Petitioner's case that he has not relied upon any

documentary evidence in as much as, the documentary evidence

relied upon by the Petitioner of his relatives indicate the caste as

Hindu Maratha. In fact the Petitioner has failed to produce school

leaving certificate of his grandfather who became M.L.A in the year

1952 and also the school leaving certificate of his father who was B.P.

Ed. The Petitioner has filed detailed written submissions to show his

affinity to the said caste. In this view of the matter when out of the

several documents relied upon by the Petitioner none of the

documents indicate caste as Kunbi, on the contrary, the documents

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produced and relied upon by the Petitioner indicate the caste as

Hindu Maratha, we do not find any reason to interfere with the

finding recorded by the Committee that the Petitioner has failed to

prove his caste claim on the basis of the materials on record.

17. The order passed by the Committee is a well reasoned order

and after taking into consideration all the materials on record. The

Writ Petition, therefore, is devoid of any merits and is accordingly

dismissed with no orders as costs.

18. 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 16/05/2016. Learned Counsel appearing for

the respondents submits that lastly on 01/07/2016, ad-interim relief

was continued till the next date of hearing, but thereafter it is not

continued. Even otherwise, in view of dismissal of Petition on

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merits, we are not inclined to continue ad-interim relief. Request

made by learned Counsel appearing for the petitioner stands rejected.

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