Sayyada Khatoon W/O Nijamuddin ... vs Mohd. Kamil Ansari And Others
2021 Latest Caselaw 5796 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR

           MISC. CIVIL APPLICATION (REVIEW) NO. 269 OF 2020
                                  IN
                   WRIT PETITION NO. 566 OF 2019 (D)

  Sayyada Khatoon W/o. Nijamuddin Ansari,
  Aged about 40 years, Occ. Household,
  R/o.C/o. House No. 1206/N, Nijam Leader
  House, Dhobi Nagar, Mominpura, Nagpur.                                   . . . APPLICANT

                         ...V E R S U S..

  1. Mohd. Kamil Ansari,
     Aged about 67 years, Occ. Business,
     R/o. 397, Bhankheda, Mominpura,
     Nagpur.

  2. State of Maharashtra through its
     Secretary, Social Justice and Special
     Assistance Department, Mantralaya,
     Mumbai-32.

  3. State Election Commission through
     its Commissioner, Madam Cama Road,
     Nariman Point, Mumbai-32.

  4. Municipal Commissioner, Nagpur
     Municipal Corporation, Civil Lines,
     Nagpur.

  5. Divisional Caste Scrutiny Committee,
     Nagpur Division, Nagpur through its
     Member-Secretary.

  6. The Collector, Nagpur,
     Civil Lines, Nagpur.                                          . . NON-APPLICANTS
 ------------------------------------------------------------------------------------------------
 Shri A. S. Siddiqui, Advocate for applicant.
 Shri N. C. Phadnis, Advocate for non-applicant no. 1.
 Shri T. A. Mirza, A.P. P. for non-applicant nos. 2, 5 & 6/State.
 Shri J. B. Kasat, Advocate for non-applicant no. 3.
 -----------------------------------------------------------------------------------------------

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                               CORAM :- Z. A. HAQ AND
                                        AMIT B. BORKAR, JJ.

DATED :- 31.03.2021

JUDGMENT (PER : AMIT B. BORKAR, J.) :-

1. Heard.

2. Rule. Rule made returnable forthwith.

3. By this application, the review applicant has sought review

of the judgment and order passed by the Division Bench of this Court

in Writ Petition No. 566/2019 on 04.03.2020.

4. The review applicant was the respondent no. 6 in Writ

Petition No. 566/2019. The Writ Petition was filed challenging the

order validating the claim of the respondent no. 6 as a person

belonging to "Jullah" (Other Backward Class). The Division Bench, by

the judgment dated 04.03.2020 allowed the Writ Petition and set aside

the order dated 12.09.2018 passed by the Caste Scrutiny Committee

and also quashed the caste certificate dated 08.06.2011 issued by

Deputy Collector, Nagpur. By the said judgment the respondent no. 6

was disqualified from holding post of Corporator and the seat occupied

by her was declared as vacant.

5. The original respondent no. 6 has filed the present review

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petition raising ground that certificate dated 08.06.2011 is divided into

Part-A and Part-B. Part-A is in relation to the issuance of caste

certificate to the applicant and Part-B is in relation to issuance of non-

creamy layer certificate. It is further alleged that Part-A and Part-B

being integral parts of the single document, when the Collector

admitted the genuineness of Part-B, it was not upon for the Collector,

Nagpur to dispute authenticity of Part-A of the document (Caste

Certificate) issued by him.

6. When the review application came up for consideration

before us, this Court on 12.03.2021 issued notices to the respondents

and in para no. 3 of the said order observed as under :-

"3. The submission made by learned Advocate for the review applicant that the Non-cremy Layer Certificate is issued only if the claim of the candidate that he belongs to other backward class is accepted and not otherwise, requires consideration. Hence, issue notice to the respondents, returnable on 23rd March 2021."

7. Shri Ashish S/o. Ratnakar Bijwal, Deputy Collector, who has

been authorized by the Collector, Nagpur has filed affidavit contesting

the review application stating in para no. 8 of his affidavit that though

the certificate dated 08.06.2011 issued in favour of the review

applicant contains Part-A regarding caste certificate but, that does not

mean that it is a caste certificate.

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8. The original petitioner has also filed affidavit contesting the

review application stating that caste certificate is issued in Form-8 and

since the review applicant does not posses caste certificate in Form-8,

the order passed by the Division Bench, which is subject matter of the

review application is perfectly legal.

9. We have carefully scrutinized the judgment and order dated

04.03.2020 and replies filed by the original petitioner and the

Collector, Nagpur. On careful scrutiny of the material available on

record it appears that neither the original petitioner nor the Collector/

Sub-Divisional Officer is in a position to explain as to how Part-A of the

certificate dated 08.06.2011 has not been issued by the Sub-Divisional

Officer particularly when the collector does not dispute issuance of

Part-B of the said certificate. There is no serious dispute amongst the

parties about the position of law that unless and until a person belongs

to Other Backward Class, non-creamy layer certificate cannot be issued

in his favour. Once the Sub-Divisional Officer accepts the issuance of

Part-B of the certificate dated 08.06.2011, which is non-creamy layer

certificate, prima-facie entire document including Part-A of it needs to

be considered as genuine document. The Collector in para no. 8 of the

affidavit-in-reply has stated that though Part-A of the certificate relied

upon by the review applicant is a caste certificate, that does not mean

that it is a caste certificate. We fail to understand significance of the

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stand adopted by the Collector. The Division Bench, while allowing

Writ Petition No. 566/2019 has recorded the statement on oath made

on behalf of the Collector stating that there is no caste certificate

issued in favour of the petitioner. It was therefore necessary,

particularly in view of para no. 3 of the order passed by this Court on

12.03.2021 in review application to explain as to why Part-A of the

certificate issued by the Sub-Divisional Officer cannot be taken into

consideration when it is undisputed position of law that unless a

person belongs to Other Backward Class, non-creamy layer certificate

cannot be issued in his favour.

10. In absence of explanation from the Collector regarding Part-

A of the certificate dated 08.06.2011, thereby certifying that the

petitioner belongs to Other Backward Class community (Jullah) and

genuineness of Part-B which is an integral part of the document, being

not in dispute, there is no basis for setting aside the caste validity

certificate. With the result, error apparent on the face of record has

crept in while passing judgment and order dated 04.03.2020. We are,

therefore, satisfied that the review application needs to be allowed and

Writ Petition No. 566/2019 is required to be restored to its original

file.

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              11.            We, therefore, pass the following order :-


              (i)            The judgment passed by this Court on 04.03.2020 in Writ

              Petition No. 566/2019 is recalled.

              (ii)           As the applicant- Sayyada Khatoon W/o. Nijamuddin Ansari

(original respondent No. 6) came to be disqualified pursuant to the

judgment passed by this Court, which is now recalled, it is directed

that the applicant- Sayyada Khatoon W/o. Nijamuddin Ansari stands

reinstated in the office/post of Corporator from Prabhag 8-B of Nagpur

Municipal Corporation forthwith.

(iii) Misc. Civil Application No. 269/2020 seeking review of the

judgment is allowed in the above terms.

(iv) Place the Writ Petition before appropriate Bench for

consideration on merits.

Rule is made absolute in the above terms.

                             JUDGE                                            JUDGE

RR Jaiswal