Rajaram Pralhad Adbane vs Madansing Shivlal Ghusinge And ...
2017 Latest Caselaw 5930 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD


                       WRIT PETITION NO. 2629 OF 2017

Rajaram s/o. Pralhad Adbane                           ..       Petitioner
Age. 37 years, Occ. Agri.,
R/o. At/Po. Panchanwadgaon,
Tq. & Dist. Jalna.

                                    Versus

1.    Madansing s/o. Shivlal Ghusinge                 ..       Respondents
      Age. Major, Occ. Agri.,
      R/o. At/Po. Panchanwadgaon,
      Tq. & Dist. Jalna.

2.    Badalsing s/o. Bhausing Ghusinge
      Age. Major, Occ. Agri.,
      R/o. At/Po. Panchanwadgaon,
      Tq. & Dist. Jalna.

3.    The Additional Collector of district,
      Collector Office, Jalna.

4.    The Divisional Commissioner,
      Divisional Commissioner Office,
      Aurangabad.

5.    The Sub-Divisional Officer,
      Jalna, Dist. Jalna.

6.    The Tahsildar, Jalna,
      District - Jalna.

7.    District Caste Scrutiny Committee, Jalna,
      Through its Member Secretary




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Mr.Abhineet P. Avhad, Advocate for the petitioner.
Mr.S.K. Chavan, Advocate for respondent Nos. 1 and 2.
Mr.P.A. Bhosale, Advocate for respondent Nos. 5 & 6.
Mr.A.V. Deshmukh, A.G.P. for respondent/State.

                                    CORAM :  R.M. BORDE &
                                             S.M.GAVHANE,JJ.

DATED : 14.08.2017

ORAL JUDGMENT : [PER : R.M. BORDE,J.] :-

1. Heard.

2. Rule. Rule made returnable forthwith and with

the consent of the parties the petition is taken up for

final disposal at this stage.

3. The petitioner is objecting to the order passed

by the Collector holding him disqualified to continue as

a Member of the Village Panchayat on the ground that the

petitioner while tendering nomination papers for

contesting election has relied upon a tribe certificate

issued by the Executive Magistrate, Jalna, on 27.02.1998,

who according to the Collector was not authorized to

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issue such certificate. It is held by the Collector that

on 27.02.1998, the Executive Magistrate was not

authorized to issue caste certificate certifying that the

petitioner belongs to scheduled tribe category. The

decision has been rendered by the Collector under section

14-k read with section 16(2) of the Maharashtra Village

Panchayat Act, 1958. The Collector, in order to conclude

that the Executive Magistrate is not invested with the

jurisdiction to issue tribe certificate, has placed

reliance on the Government Resolution bearing No. lhchlh

1096/iz-dz-48/ekoG-5 dated 03.06.1996. The Government

Resolution referred to above bears the same number as has

been recorded in the title except for the date 9th July,

1996. Both the Resolutions allegedly are issued on

03.06.1996 and 09.07.1996 relating to the procedure for

issuance of the caste certificate to the reserved

category candidates belonging to the schedule castes, VJ,

OBC and special backward category. The Government

Resolution referred to above does not relate to scheduled

tribes category. The petitioner belongs to scheduled

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tribe category and as such reliance placed by the

Collector on the Government Resolution dated 09.07.1996

is misplaced. The Collector has proceeded to pass order

without application of mind to the record of the case and

as such order deserves to be quashed and set aside.

4. Apart from this, it is informed by the Counsel

appearing for the petitioner that the caste certificate

issued to him is referred to the scrutiny committee and

the proposal is stated to be pending. The Division Bench

of this Court to which one of us [R.M.Borde,J.] was

party, while dealing with identical issue in the matter

of Shivling Umrao Jadhav Vs. State of Maharashtra,

reported in 2008(1) Bom.C.R.622 has held in Para 20 of

the judgment as under :-

"21. We are supported in our view by the reported judgments cited (supra) by the learned Counsel for the petitioner. We are therefore convinced that the Caste Scrutiny Committee is empowered to enquire into the genuineness of the caste certificates. At the same time the Collector is not empowered and entitled under the provisions of sections 14 and 16 of the Act,

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1958 to disqualify an elected candidate and unseat him by declaring his seat as fallen vacant on the ground that the caste certificate was not issued by the competent authority or the caste certificate was a forged and bogus one."

5. The exercise of jurisdiction by the Collector is

beyond powers vested in him under section 16 of the Act.

Even otherwise reliance placed by the Collector on the

Government Resolution dated 09.07.1996 is misplaced. It

is not even factually clear as to whether on the given

date the Executive Magistrate was empowered to issue

caste certificate or not. Since the issue is pending

with the Scrutiny Committee, it would be open for the

Scrutiny Committee to deal with the said issue.

6. In the circumstances, the writ petition is

allowed. The order passed by the Collector on 28.12.2016

impugned in this petition is quashed and set aside. The

Scrutiny Committee is directed to decide the caste

certificate verification proposal of the petitioner

pending with it as expeditiously as possible, preferably

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within a period of six months from today and it is

accordingly directed.

7. Rule is made absolute accordingly. There shall

be no order as to costs.

       [S.M.GAVHANE,J.]                       [R.M.BORDE,J.]



snk/2017/AUG17/wp2629.17