Ms. Harshada Motilal Kamble And ... vs State Of Maharashtra And Ors
2021 Latest Caselaw 3487 Bom

                                                 WP-ST-5930-2020-J.doc


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION

                WRIT PETITION (STAMP) NO.5930 OF 2020

1) MS.HARSHADA MOTILAL KAMBLE                )
   AGE : 18 YEARS, OCC: STUDENT,             )


2) MS.ASHWINI MOTILAL KAMBLE        )
   AGE : 12 YEARS, OCC: STUDENT     )
   (MINOR, REPRESENTED BY HER MOTHER)
    NEETA MOTILAL KAMBLE)           )
    BOTH PETITIONERS 1 AND 2        )
    HAVING THEIR ADDRESS AT :       )
    GALLI NO.1, KUPWAD ROAD,        )
    NEAR NAGOBA MANDIR,             )
    PRAKASH NAGAR, MADHAVNAGAR,     )
    MIRAJ, SANGLI- 416 406          ) ...PETITIONERS

         V/s.

1) STATE OF MAHARASHTRA,                    )
   THROUGH ITS SECRETARY, SOCIAL            )
   JUSTICE AND SPECIAL ASSISTANCE           )
   DEPARTMENT, MANTRALAYA,                  )
   MUMBAI - 400 032                         )

2) DISTRICT CASTE CERTIFICATE SCRUTINY )
   COMMITTEE, SANGLI                   )
   (THROUGH ITS MEMBER/ CHAIRMAN) )
   HAVING ITS ADDRESS AT :             )
   DR. BABASAHEB AMBEDKAR SOCIAL       )
   JUSTICE BHAVAN, OLD BUDHGAON ROAD)
   SANGLI - 416 416                    )




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3) SUB-DIVISIONAL OFFICER                       )
   SUB-DIVISION OFFICE, MIRAJ, SANGLI           )...RESPONDENTS


Mr.Tanveer Khan, Advocate for the Petitioners.
Mr.Yuvraj D. Patil, AGP for the Respondent Nos.1 and 2.
Ms.Prerna Ramdas Sabale, Law Officer, District Caste Certificate
Scrutiny Committee, Sangli, is present in the Court.


                   CORAM : R. D. DHANUKA &
                           V. G. BISHT, JJ.

                   DATE      : 24TH FEBRUARY 2021


JUDGMENT : (PER : V.G.BISHT, J.)


1            Rule. Rule made returnable forthwith. By consent of

parties, heard finally at the stage of admission.

2 By this petition under Article 226 of the Constitution

of India, the petitioners have approached this court with following

prayer :

"That this Hon'ble Court be pleased to issue a Writ of Certiorari or any appropriate writ thereby calling for the records which led to the passing of the impugned order bearing no.DCCSCSangli/Order/ 2019-20/149 dated 4th January, 2020 from the files

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of Respondent No.2 and after examining the validity and propriety thereof, be pleased to quash and set aside the same."

3 The mother of petitioners had filed two applications

along with necessary documents under Section 3 of the

Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified

Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes

and Special Backward Category (Regulation of Issuance and

Verification of) Caste Certificate Act, 2000 (hereinafter referred to

as "the Act") before respondent no.3 for issuance of Caste

Certificates in favour of the petitioners. However, respondent No.3

refused to decide the aforesaid applications by giving perverse and

erroneous reasons. According to the petitioners, aggrieved by the

orders passed by respondent No.3, the petitioners preferred an

appeal before respondent No.2 under Section 5 of the Act. But

instead of simply examining whether there was sufficient prima

facie material produced before respondent No.3 to enable it to

issue a Caste Certificate, the Appellate Authority directed the

Vigilance Cell to conduct an enquiry into the case and after

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hearing the parties, passed impugned order on 4th January, 2020

dismissing the appeal filed by the petitioners.

4 Respondent No.2 by way of his affidavit in reply

submitted that he followed the procedure in accordance with

Section 5 (2) of the Act and as the petitioners had failed to prove

their caste claim according to Section 8 of the Act, therefore the

appeal was dismissed. There being no merits in the appeal, the

same is liable to be dismissed with heavy costs, urged respondent

No.2.

5 Mr. Khan, learned Counsel for the petitioners, at the

very outset, raised preliminary objection in respect of the

approach adopted by respondent No.2 while disposing of the

appeal. According to learned Counsel, at the very first instance,

respondent No.3 committed grave jurisdictional error by not

examining the case of petitioners on merits and rather under the

guise of pending Scrutiny Committee Enquiry pursuant to the

order passed in Writ Petition No. 3425 of 2015 refused to exercise

the jurisdiction. In fact, the petitioners' case and the subject

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matter of Writ Petition No. 3425 of 2015 are entirely different and

therefore, respondent No.3 ought to have exercised his jurisdiction

under Section 3 of the Act.

6 The learned Counsel then assailed the impugned order of

respondent No.2 which was passed in the appeal pursuant to the

grievances raised by petitioners against the order dated 17 th July,

2019 whereby the applications under Section 3 of the Act were

rejected by respondent No.3.

7 According to learned Counsel, instead of examining

the order of respondent No.3 in proper perspective and whether

there has been sufficient material on record or not produced by

petitioners, respondent No.2 ought to have set aside the order

passed by respondent No.3 and have remanded the matter back to

respondent No.3 for deciding the same in accordance with law.

8 Per contra, Mr.Patil, learned AGP for respondent Nos.

1 and 2, vehemently opposed the submission by justifying the

impugned order and then submitted that the petitioners' appeal

rightly came to be rejected as the petitioners had failed to produce

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the document of Mahar Caste to prove their caste claim. Since

the petitioners had failed to discharge the burden as contemplated

under Section 8 of the Act, the appeal rightly came to be

dismissed, argued learned AGP.

9 We have carefully gone through the record with the

assistance of learned Counsel and AGP. Ex-facie we are of the

prima-facie view that respondent No.3, namely, Sub-Divisional

Officer failed to exercise the jurisdiction in consonance with the

provisions of the Act. There is no dispute to the fact that the

petitioners had moved applications under Section 3 of the Act.

10 Section 4 of the Act provides that,

"The Competent Authority may, on an application made to it under Section 3, after satisfying itself about the genuineness of the claim and following the procedure as prescribed, issue a caste certificate within such time limit and in such form as may be prescribed or reject the application for reasons to be recorded in writing"

11 We are aghast to note that there was total failure on

the part of respondent No.3 to exercise its jurisdiction in letter and

spirit.

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12          We have also carefully perused the order dated 17th

July, 2019 passed by respondent No.3 and we are at a loss to

understand how the case of the petitioners and the order passed

in Writ Petition No. 3425 of 2015 by this Court (Coram: B.R.Gavai

and N.J.Jamadar, JJ.) had similarity. The order in the said Writ

Petition was passed on the basis of entirely different set of facts

and therefore, there was no reason much less the satisfactory

reason for respondent No.3 to wait the outcome of the Scrutiny

Committee pursuant to the direction given in the said Writ Petition

by this Court.

13 What was expected of respondent No.3 was to

examine the case of petitioners on the basis of material placed

before him by them and then after satisfying itself about the

genuineness of the claim, he could have issued or rejected the

applications. Unfortunately, that was not done.

14 It is also disturbing to note that when the matter was

taken into appeal under Section 5 of the Act before respondent

No.2, respondent No.2 ventured and misdirected itself and

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ordered an enquiry to be conducted by the Vigilance Cell. It

appears that respondent No.2 also overlooked the fact that

respondent No.3 had not decided the applications of petitioners in

accordance and requirement with Section 4 of the Act.

Respondent No.2 ought to have given a serious thought and

consideration to the case of the petitioners and as also the nature

of order passed by the Competent Authority. But respondent No.2

also lost sight of fact and perpetuated the illegality by taking unto

himself and went on to conduct an in-depth enquiry.

15 The very foundation of the appeal was the illegal and

perverse order which could not have been a go-bye by respondent

No.2 and could not have converted the appeal into a full-fledged

adjudication of the caste claim of the petitioners.

16. There being apparent jurisdictional error in not

exercising the jurisdiction by respondent No.3, we are satisfied

that the present matter deserves to be remanded back to

respondent No.3 for its adjudication in consonance and

requirement with Section 4 of the Act.

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17             We propose to direct respondent No.3, namely, Sub

Divisional Officer, Miraj to look into the documents and relevant

material produced by the petitioners before him and additional

documents which may be produced before it. If the said

documents make out a strong prima -facie case in support of the

caste claim of the petitioners, respondent No.3 will have to allow

the applications in compliance with Section 4 of the Act.

18 We, accordingly, pass the following order :

ORDER

(a) The impugned order dated 4th January, 2020 is

hereby quashed and set aside;

(b) Applications (Two) of the petitioners upon which the

orders dated 17th July, 2019 bearing Nos. MAG/ Scheduled

Caste Certificate/ 1853/19 and MAG/ Scheduled Caste

Certificate/ 1857/19 came to be passed stand restored to

the file of respondent No.3- Sub Divisional Officer, Sub-

Division Office, Miraj;

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            (c)     We direct the petitioners to appear before

respondent No.3 on 8th March, 2021 at 11.00 a.m.;

(d) Respondent No.3 shall decide the above said

applications afresh in the light of the observations and

directions issued in this judgment and order;

(e) Appropriate order shall be passed by respondent

No.3 within a period of two months from 8th March, 2021;

(f) Writ Petition is disposed of on above terms.

(g) All concerned to act upon an authenticated copy of

this order.

            (V. G. BISHT, J.)                   (R. D. DHANUKA, J.)


              Digitally signed
              by Trupti
Trupti        Bhamne

Bhamne        Date:
              2021.02.26
              19:59:01 +0530




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