Martha Devidas Rathod vs Scheduled Caste Denotified Tribe ...
2017 Latest Caselaw 9784 Bom

                                           1                  W.P.No.836/2016

                                      UNREPORTED

                      IN THE HIGH COURT OF JUDICATURE
                                  AT BOMBAY

                                   BENCH AT AURANGABAD.


                               WRIT PETITION NO.836 OF 2016


          Smt.Martha W/o Devidas Rathod,
          Alias Martha D/o Chintaman
          Mhankale, Age 45 years,
          Occ.Police Patil, Wadala
          Mahadev, Taluka Shrirampur,
          Dist.Ahmednagar.              ... Petitioner.

                           Versus

          1. Scheduled Caste, De-notified
          Tribe (Vimukta Jaati), Nomadic
          Tribes, Other Backward Classes
          and Special Backward Category
          Divisional Caste Certificate
          Scrutiny Committee, Committee
          No.1, Nashik Division, Nashik,
          through its Member Secretary.

          2. Sub-Divisional Magistrate,
          Shrirampur Division,
          Taluka Shrirampur, Dist.
          Ahmednagar.                   ... Respondents.

                                   ...
          Mr.Amit A.Yadkikar, advocate for the petitioner.
          Mr.P.S.Patil, Additional Government Pleader for
          the State.
                                   ...


                                    CORAM : S.V.GANGAPURWALA AND
                                            S.M.GAVHANE,JJ.

                          Reserved on : 07.12.2017.
                        Pronounced on : 19.12.2017.




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                                                 2                       W.P.No.836/2016

          JUDGMENT (Per S.V.Gangapurwala,J.)

1. Rule. Rule returnable forthwith. With

the consent of the learned counsel for parties,

the petition is taken for final hearing.

2. The caste claim of the petitioner as

belonging to Mahar - Scheduled Caste is

invalidated by the Committee. Aggrieved thereby,

the present Writ Petition.

3. Mr.Yadkikar, learned counsel for the

petitioner submits that entire record of the

petitioner and his relatives records caste as

Hindu Mahar. The School record of the petitioner

records caste as Hindu Mahar. The School record

of the petitioner's paternal aunt of the year

1952 records caste as Hindu Mahar. The learned

counsel submits that even the vigilance is

conducted. The School record has been found to

be genuine and correct. It has also come on

record that the parents of the petitioner nor the

petitioner has undergone Baptism. The marriage

of the petitioner is performed as per Hindu

tradition. The marriage of the brother of the

petitioner has also been performed as per Hindu

custom. Only because the ancestors of the

petitioner were buried and photo of Lord Jesus

was found on the wall of the petitioner's house

would not be sufficient to brand the petitioner

as Christian or having converted to Christianity.

Learned counsel relies on the judgment of the

Division Bench of this Court in the case of

"Dipak S/o Yohan Shinde Vs. State of Maharashtra

and others" reported in 2014 (5) Mh.L.J.252, in

case of "Sudam Ankush Randive Vs. State of

Maharashtra and others" Writ Petition No.615/2012

(Coram : R.M.Borde and V.L.Achliya,JJ.) decided

on 2.7.2014, in case of "Chaturbhuj Vithaldas

Jasani Vs. Moreshwar Parashram and others"

reported in AIR 1954 Supreme Court 236, in case

of "C.M.Arumugam Vs. S.Rajgopal and others"

reported in AIR 1976 Supreme Court 969, in case

of "K.P.Manu Vs. Chairman, Scrutiny Committee for

Verification of Community Certificate" reported

in AIR 2015 Supreme Court 1402.

4. Mr.Patil, learned Additional Government

Pleader submits that even the name of the

petitioner and her relatives shows that

petitioner is Christian. The parents of the

petitioner were following Christianity. The

statement of the uncle of the petitioner is

recorded and he admits visiting the Church and

having faith in Christian religion. The ancestors

of the petitioners are buried in Christian

Crematorium. In the house also the photo of Lord

Jesus is found. All these facts show that

petitioner and her parents professed Christian

religion. The bare statement of the petitioner

and her uncle that the marriage of the petitioner

is performed as per Hindu custom has no

supporting evidence. The learned Additional

Government Pleader submits that the petitioner

profess Christian religion and as such can not be

said to belong to Mahar caste. The learned

Additional Government Pleader relies on the

judgment of this Court in the case of "Aman

Santosh Shirsath Vs. State of Maharashtra and

others" (Coram : B.P.Dharmadhikari and Ravindra

V.Ghuge,JJ.) dated 10.9.2013 in Writ Petition

No.5105/2013, so also the judgment of the Apex

Court in the case of "Kailash Sonkar Vs. Smt.Maya

Devi" reported in (1984) 2 Supreme Court Cases 91

and another judgment of the Apex Court in the

case of "C.M.Arumugam Vs. S.Rajgopal and others"

reported in (1976) 1 Supreme Court Cases 863.

5. With the assistance of learned counsel

for respective parties, we have gone through the

judgment delivered by the Committee and the

documents.

6. The documents produced on record by the

petitioner depicts caste recorded as Mahar. The

documents include School record of the petitioner

and old School record of the year 1952 of the

real paternal aunt. No contra documentary

evidence is produced.

7. The vigilance is conducted. The

statement of uncle of petitioner is recorded.

Uncle of the petitioner states that grand father

of the petitioner died in 1971 and he was buried.

So also his brother was buried. He further

states that the marriage of the petitioner's

parents and petitioner is performed as per Hindu

custom. The vigilance also found the photo of

Lord Jesus in the house of the petitioner.

8. The vigilance has not found any record

to show that the petitioner or her parents has

undergone Baptism or that they are members of the

Church. Mere photo of Lord Jesus on the wall in

the house may not be sufficient to come to the

conclusion that the petitioner professes

Christian religion. However, further it has been

found that ancestors of the petitioners on their

death are buried and the same is not as per the

Mahar custom. In such cases the Committee ought

to have probed into detail by conducting

extensive affinity test. They should have

enquired about the traits and ethnic linkage of

Mahar caste from the petitioner. The Committee

has not conducted such exercise. At least in

such cases as in the present matter, it was

necessary for the Committee to extensively probe

and conduct the affinity test. The Committee has

failed to do so. In view of that we feel it

appropriate to remit the matter to the Committee.

9. In the result, the impugned judgment

and order is quashed and set aside. The parties

are relegated before the Committee. The

Committee shall conduct extensive affinity test

and decide the claim of the petitioner of Mahar -

Scheduled Caste afresh on its own merits after

hearing the petitioner.

10. The petitioner shall appear before the

Committee on 10.1.2018. The Committee shall

thereafter decide the proceedings expeditiously,

preferably within six (6) months.

11. Till the proceedings are decided by the

Committee, the Respondents shall not take any

coercive action against the petitioner. The

Respondents may take further course of action

depending upon the judgment that would be

delivered by the Committee in the validation

proceedings.

12. Rule accordingly disposed of in above

terms. No costs.

                           Sd/-                     Sd/-

               (S.M.GAVHANE,J.)           (S.V.GANGAPURWALA,J.)



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