Mr. Akhtar Kadar Jamadar vs State Of Maharashtra Through Its ...
2021 Latest Caselaw 15157 Bom

                                      1       Judgment-WP 1401-18.odt


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION

                  WRIT PETITION NO.1401 OF 2018

Mr. Akhtar Kadar Jamadar
Aged 19 years, residing at Malbhag,
Near Post Office, Herle,
Tal. Hatkanangle, Dist. Kolhapur.                 ... Petitioner

       Vs.
1. State of Maharashtra
Through its Secretary,
Social Justice Department,
Mantralaya, Mumbai - 32.

2. District Caste Certificate Scrutiny
Committee, Kolhapur.
Through its Member Secretary,
having its office at Dr. Babasaheb Ambedkar
Samajik Nyay Bhavan, 2nd Floor, Kavla Naka,
Kolhapur.

3. Directorate of Technical Education
and Competent Authority,
Maharashtra State, 3, Mahapalika Marg,
Dhobi Talao, Mumbai-1.

4. The Principal,
Kolhapur Institute of Technology's,
College of Engineering and Technology,
Kolhapur, having its office at 1-3, Gokul,
Shirgaon, Kolhapur, Dist. Kolhapur.             ... Respondents
                                  -------
Mr.C.K. Bhangoji alongwith Ms. Suvarna S. Yadav, advocates for
Petitioner.
Ms. Sushma S. Bhende, Asst. GP for Respondents No.1 to 3-State.
                                  -------




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                              CORAM : R.D. DHANUKA AND
                                      ABHAY AHUJA, JJ.

RESERVED ON : 30TH SEPTEMBER, 2021.

PRONOUNCED ON : 21ST OCTOBER, 2021.

JUDGMENT : (PER ABHAY AHUJA, J.)

1. Rule. With consent of the counsel for the parties, rule made

returnable forthwith and heard finally.

2. By this petition, filed under Article 226 of the Constitution of

India, petitioner is challenging the legality and validity of the

judgment and order dated 14th December 2017 passed by the

District Caste Certificate Scrutiny Committee, Kolhapur viz.

Respondent No.2, rejecting/invalidating the caste claim of the

petitioner as Gavali, Nomadic Tribe (B).

3. Brief facts leading upto this petition are that, petitioner who

claims to belong to the Gavali community by birth applied to the

Sub-Divisional Officer, Ichalkaranji for grant of caste certificate and

was granted the same on 9 th June 2010. Thereafter, petitioner

intending to seek higher education, made an application before the

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second respondent-committee for verification of his caste certificate

through his junior college alongwith the necessary documents,

evidence in support of his claim to the Gavali, N. T. (B). It is stated

that at the time of filing this petition, petitioner was pursuing bio-

technology degree course in a reserved category seat in N. T. (B) in

respondent no. 4-college viz. Kolhapur Institute of Technologys

College of Engineering and Technology, Kolhapur.

4. Respondent No.2-Committee handed over the case of

petitioner to the Vigilance Cell for conducting the caste certificate

and home inquiry after which the police inspector of Vigilance Cell

conducted inquiry and recorded statements of local persons at the

petitioner's place of residence and submitted report to respondent

no. 2- Committee. The Committee issued a show cause notice to

petitioner based on the said vigilance cell report which was replied

to by the petitioner. Thereafter, without considering the vigilance

cell report, the affinity test, the evidence of agreements for milk

supply by petitioner's cousin grandfather, the respondent no. 2-

committee rejected petitioner's claim to Gavali, NT (B).

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5. It is the case of petitioner that petitioner belongs to Gavali

caste and that the family of the petitioner was engaged in the

traditional occupation of selling milk. It is submitted that reputed

local persons around petitioner's place of residence testified

petitioner's family carrying on the traditional occupation of selling

milk as well as the traits rituals, rites and traditions of petitioner's

family resembling those of Gavali Nomadic tribe. Petitioner also

submitted documentary evidence, in the nature of agreement in

respect of petitioner's cousin grand-father supplying milk to certain

hotels from the year 1958 was submitted to the caste scrutiny

committee.

6. Learned counsel for petitioner submits that all these vital

pieces of evidence have been rejected by the caste scrutiny

committee primarily on the ground that no reference to caste

entries was found in the documents except description as Muslim or

Musalmaan. Learned counsel for petitioner submits that it is settled

law as held by this Court in Writ Petition No. 10577 of 2013 that in

the case of Muslims, the affinity test is necessary as there is no

likelihood to be found in caste entries in their documents and

therefore, affinity to Gavali community as testified in the

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statements recorded in the inquiry report dated 22 nd February 2017

submitted by the Vigilance Cell to the respondent no.2- committee

as well as the agreements dated 21st September 1959 and 17th April

1958 was conclusive to show that the petitioner's cousin

grandfather was selling milk to the hotels etc. and ought to have

been considered by the Scrutiny Committee. Learned counsel

further submits that as per law laid down by the Hon'ble Supreme

Court in the case of Madhuri Patil Vs. Additional Commissioner,

Tribal, (1994 SCC (6) 241), the respondent no.2- Committee ought

to have directed the vigilance officer to record statement of

petitioner or his family members with respect to the affinity

towards the Gavali community as is required when there are no

documents to show caste.

7. Learned counsel for petitioner draws attention of this Court to

the vigilance cell report dated 22nd February 2017 regarding home

inquiry in petitioner's case at pages 43 and 44, relevant portions

whereof are quoted as under:-

"mesnokjkps [kkyhy izek.ks 'kkys; nk[kys gtj dsysys vkgsr-

 mesnokjkps      'kkGsps uko       izos'k fnukad       tUe fnukad        tkr      tUeLFkG
    uko



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xqykc dknj nslkbZ fo|k eafnj] [email protected]@1949 [email protected]@1937                    eqlyeku     mnxkao is
teknkj     mnxkao] rk- f'kjksG]                                                     f'kjksG
           ft- dksYgkiwj

v[rj dknj gsysZ gk;Ldwy] gsysZ [email protected]@2008 [email protected]@1998                   eqlyeku      dksYgkiwj
teknkj

teknkj     gsysZ gk;Ldwy] gsysZ [email protected]@1979 [email protected]@1964                  eqlyeku      dksYgkiwj
dknj xqykc

n{krk iFkdkus ojhy v- dz- 1 rs 3 e/khy 'kkGsP;k nk[kY;kP;k tujy jftLVj mrk&;kaph Nk;kafdr lR;izrh miyC/k d#u ?ksrys vkgsr- 'kkGse/;s tkrhph uksan mesnokjkus lknj dsysY;k 'kkys; nk[kY;kizek.ks vkgs- 'kkGsP;k jftLVj e/;s [kkMk[kksM] 'kkbZcny fdaok v{kjcny fnlqu ;sr ukgh-

3½ x`gpkSd'kh & mesnokj gs eqGps jkg.kkj eq- iks- gsysZ rk- gkrd.kaxys ft- dksYgkiwj ;sFkhy vkgsr- n{krk iFkdkus lnj xkokrhy [kkyhy jfgok';kdMs mesnokjkaP;k dqVqackph tkr] O;olk; o okLrO;kckcr rlsp R;kaP;k pkyh&fjrh] :<h&ijaijk o jksVh&csVh O;ogkjkckcr pkSd'kh d#u R;kaps tckc uksanfoysys vkgsr-

     1-       ckcklkgsc jfgeku unkQ                    o; o"ksZ 60
     2-       xkSl dk'khe uk;doMh                      o; o"ksZ 64

ojhy lk{khnkj gs ueqn iR;koj R;kaP;k tUekiklqu jkgr vlqu mesnokjkl rlsp mesnokjkP;k dqVqackrhy lnL;kauk lq/nk vksG[krkr- mesnokjkps vktksck xqykc teknkj ;kapk o dqVqach;kapk ikjaikfjd O;olk; gk nq/k fodzh dj.;kpk vlY;kps rs lkaxrkr- rlsp R;kaP;k loZ :<h ijaijk ;k eqLyhe /kekZ izek.ks ikj ikMY;k tkrkr- rlsp R;kaps oSokfgd laca/k gs teknkj] eqYyk] uk;doMh] nslkbZ o ckjxhj ;kapsr gksr vlY;kps o rs tkrhus xoGh vlysps R;kauh lkafxrysys vkgs-

4½ oa'kkoGhps izfrKki= & mesnokjkP;k oMhykauh foghr ueqU;ke/;s oa'kkoGhps izfrKki= lknj dsys vkgs- lnj izfrKki=ke/;s ueqn vlysys mesnokjkps ukrslaca/k gs brj iqjkO;ko#u Li"V gksr vkgsr-

pkSd'khpk xks"kokjk mesnokj ;kaP;k xoGh tkrhnkO;k izdj.kh dsysY;k pkSd'khpk xks"kokjk iq<hyizek.ks & 1- xqykc dknj teknkj ;kaP;k 'kkys; nk[kY;kojrh tkrhph uksan eqlyeku vkgs- 2- v[rj dknj teknkj ;kaP;k 'kkys; nk[kY;kojrh tkrhph uksan eqlyeku vkgs- 3- teknkj dknj xqykc ;kaP;k 'kkys; nk[kY;kojrh tkrhph uksan eqlyeku vkgs- 4- mesnokj ;kaps jkgrs xkoke/;s lk{khnkjkadMhy x`g pkSd'khe/;s R;kauh mesnokj ;kauk o R;kaps oMhy] vktksck ;kauk vksG[kr vlY;kps rlsp mesnokjkps

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vktksck ;kapk ijaijkxr O;olk; gk nq/k fodzh djr vlY;kps lkafxrys vkgs- R;kaps oSokfgd laca/k gs teknkj] eqYyk] uk;doMh] nslkbZ o ckjxhj ;kapsr gksr vlY;kps o rs tkrhus xoGh vlysps lkafxrysys vkgs- ,danjhr mijksDr ueqn dsysY;k mesnokj ;kaP;k xoGh tkrh nkO;kP;k iMrkG.kh lanHkkZr pkSd'kh dj.;kr vkyh vlqu pkSd'khph dkxni=s vuqdzes voyksdukFkZ ;k lkscr vxzsf"kr dj.;kr ;sr vkgsr-"

8. Learned counsel submits that in the case of Muslim

Community, in the school records only "Musalmaan" is mentioned

and there is no reference to their caste or tribe. Referring to

paragraph 3 above, regarding Home Enquiry he submits that the

two persons referred to therein claimed to know the petitioner as

well as petitioner's family members positively asserted that

petitioner's grandfather's and their family ancestral business was of

selling milk. Their traditions and rituals are followed as per Muslim

religion. Similarly, their marriage relations are with Jamadar,

Mulla, Nayakvadi, Desai and Bargir communities and therefore they

are belonging to Gavali tribe. Drawing attention to the conclusion

no.4, as quoted above, learned counsel reiterated that petitioner

therefore belongs to the Gavali Nomadic tribe.

9. Learned counsel submits that despite the clear findings by the

Vigilance Cell, in favour of petitioner's claim to Gavali Nomadic

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Tribe, the respondent no.2 issued a show cause notice dated 5 th

April, 2017 to petitioner seeking explanation to the enquiry report,

which he submits was appropriately responded to by letter dated

25th April 2017. Learned counsel takes us through the said letter

and submits that the entire focus of the letter was on the absence of

documentary evidence and not on the successful affinity test.

10. Learned counsel at this stage tenders a communication dated

22nd July, 1996 from Additional Secretary, Social Welfare, Cultural

and Sports Department to Director, Social Welfare containing

directions highlighting the necessity and importance of home

enquiry etc. in the case of Muslim Community as there is no

description of caste in their documents and there is less likelihood

of finding caste description therein. In support learned counsel

takes us to various exhibits to the petition which only show

"Musalmaan" in the column for caste.

11. Learned counsel submits that the caste scrutiny committee

has simply rejected petitioner's documents on the ground that only

Musalmaan is mentioned in the school admission records and other

documentary evidence and no where Gavali is mentioned or that

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the petitioner has not produced any caste validity certificate

previously granted to any blood relation showing Gavali tribe. With

respect to the cousin grandfather's milk supply contracts, it is

submitted that the same has been rejected on the ground that the

same had not been registered and is not a public document but only

a private one.

12. The scrutiny committee has rejected the vigilance cell report

without even considering the basic principle of determining caste

validity in the case of Muslim community and only on the basis that

the vigilance cell report is based only on oral evidence.

13. Learned counsel for petitioner has taken us through the two

agreements entered into between petitioner's cousin grandfather in

the years 1958-1959, exhibited from pages 31 to 39 of the petition.

14. In support his contentions, learned counsel has relied upon

the following decisions:-

i) Smt. Bismilla Mohammedsab Sayyed (Mujawar) @ Bismilla Alabaksh Shikkalgar Vs. Divisional Caste Certificate Committee No. 1, Solapur through its Member Secretary and others in Writ Petition No. 10577 of 2013 decided on 21st February 2014.

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ii) Shri Shahjahur Aminullah Momin Vs. State of Maharashtra through its Secretary and Others in Writ Petition No. 8687 of 2015 decided on 26th February 2019.

iii) Miss Swaliha B. Sanadi Vs. State of Maharashtra and others in Writ Petition No. 11414 of 2019 decided on 22 nd December 2020.

15. Per Contra, learned AGP, Ms Bhende, relies upon the order of

scrutiny committee dated 14th December 2017 and reiterates that

the school admission documents of petitioner as well as his relatives

refer to the caste as "Musalman" and not Gavali. Referring to the

vigilance cell report, she submits that the statements of the persons

named therein were only oral and therefore cannot be relied upon.

With respect to the agreements, learned AGP submits that the same

were not registered and therefore deserve to be rejected. Learned

AGP, therefore, urges this Court to dismiss the petition and uphold

the order of the scrutiny committee rejecting the petitioner's claim

to the Gavali Nomadic Tribe.

16. We have heard Mr. Bhangoji, Learned Counsel, on behalf of

Petitioner and Ms. Bhende, Learned Assistant Government Pleader

for Respondents No. 1 to 3- State and with their able assistance, we

have perused the papers and proceedings in the matter.

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17. Let us first come to the decisions cited by learned counsel for

petitioners in support of his contentions. With respect to the

decision in the case of Smt. Bismilla Mohammedsab Sayyed

(Mujawar) (supra), this Court while considering the claim of

petitioner therein belonging to other backward classes (OBC) had

the occasion to examine the claim of petitioner, who was Mujawar

caste amongst Mohameddans, which is recognised as other

backward class. It was held therein that on the basis of

recommendation of the Mandal Commission certain castes in

Mohameddans were recognized as reserved caste and the

notification was issued by the State Government in this regard on

9th August 1995. This Court while holding that since in the case of

Mohameddans, there was no recognised castes or sub-castes as in

the case of Hindus, there was no likelihood of finding any entry of

the caste of a person of Mohameddan religion in the old records.

18. This Court, therefore, highlighted the necessity of recording of

statements of respected and responsible persons from the

concerned area under Rule 13 (1) of the Maharashtra Scheduled

Caste, Scheduled Tribes, De-notified Tribes (Vimukta Jatis),

Nomadic Tribes, Other Backward Classes and Special Backward

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Category (Regulation of Issuance and Verification of) Caste

Certificate Rules, 2012 as well as the affinity test. This Court also

highlighted the importance of the vigilance cell and affinity test in

the case of Muslims in contradistinction to the entries in the

records as in the case of Hindus. Paragraphs 5 and 6 of the said

decision are usefully quoted as under:-

"5. It cannot be disputed that in case of the Mohameddans, there were no recognised castes or sub castes and therefore, as in the case of Hindus, there is no likelihood of finding any entry of the caste of a person of Mohameddans religion in old records.

6. In the present case, the petitioner is claiming to be belonging to caste Mujawar. Our attention is invited to 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 Rules, 2012 (hereinafter referred to as 'the said Rules'). Rule 12 provided for the constitution of Vigilance Cell. Rule 13 deals with contents of the report upon investigation made by the Vigilance Cell. Sub Rule (1) of Rule 13 reads thus :

" 13 Report of Vigilance Cell and Issues to be dealt with-

(1) Vigilance Cell Officer(s) shall submit report upon investigating into the Scheduled Caste, Scheduled Caste converts to Buddhism, De- notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category claim referred to it-

(a) by visiting permanent place of residence and conducting domestic inquiry, or

(b) by recording statements of respected

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and responsible persons from concerned area, including representatives of Local Self Government, Police, Patil, etc; or (c) by collecting information, as part of recording statement, as regards to name, age, educational qualification, occupation, existing place of residence and information regarding properties (existing and disposed) of family members of applicant or claimant; or

(d) by collecting information including the sociological, anthropological and ethnological (anthropological moorings and ethological kinship), genetical traits of the Scheduled Caste, Scheduled Caste converts to Buddism, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category, if any,; or

(e) by personally visiting Office of the Competent Authority or revenue or school or other concerned offices."

In the present case, the Vigilance Cell report is on record. Clause (d) of sub Rule 1 of Rule 13 provides that the Vigilance Cell should collect information including sociological, anthropological,ethnological and genetical traits of the relevant Caste. In the present case, this exercise was necessary as we have already observed earlier that there is no likelihood of any entry of caste recorded in old record in the case of Mohameddans. It was necessary for the Vigilance Cell to make an enquiry in terms of clause (d). An enquiry should have been made to ascertain the traditional occupation of the Mujawars. We have perused the Vigilance Cell report. We find that no such exercise has been made. Perusal of the impugned order shows that even the Caste Scrutiny Committee has not applied the affinity test. Therefore, we find that the entire approach of the Caste Scrutiny Committee is erroneous as in the facts of the case, the Caste Scrutiny Committee should

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have directed the Vigilance Cell to do the exercise under the provisions of Clause (d) of Sub Rule 1 of Rule 13 the said Rules. The Caste Scrutiny Committee ought to have held the appropriate enquiry in the present case. Earlier, the petitioner had obtained caste certificate of the caste Shikalgar. A caste certificate is not conclusive evidence of caste. It is not the case made out that any adjudication was made on the basis of the said certificate by the Caste Scrutiny Committee. In the present case, the enquiry as contemplated by the Rules has not been held. Only on the basis of the impugned order, the petitioner, who was elected Councilor of Municipal Corporation has been unseated. Now, the notification dated 15th February 2014 issued by the first respondent State Election Commission records that the election will be held to fill in the vacancy caused by the petitioner. The election programme is to start from 25th February 2014 and the election is scheduled to be held on 23rd March 2014. If the petitioner succeeds after the order of remand, the order unseating the petitioner will not survive and therefore, to avoid any complications, it will be necessary for the State Election Commission to postpone the election for filling up the vacancy caused by the petitioner."

19. Coming to the decision of this Court in the case of Shahjahur

Aminullah Momin (supra), this court while considering the claim of

petitioner being member of Musim Momin community as OBC has

reiterated that as there is no practice of mentioning the caste/sub-

caste amongst the Muslims, the report of vigilance cell assumes

significance. Paragraphs 7 to 9 of the said decision are pertinent

and are quoted as under:-

"7] Evidently there are no pre-constitutional documents,

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which record the caste of the forefathers of the Petitioner as "Muslim Momin". However, this factor does not seem to be decisive as even Respondent No.2 - Committee expressly observed that there was no practice of mentioning the caste/sub caste amongst the Muslims. The fact that the school leaving certificates of the paternal relations of the Petitioner simply record Muslim and do not find mention of 'Momin', does not detract materially from the Petitioner's claim. The Respondent No.2- Committee was of the view that the claimant was required to place material indicating the occupation, and the Petitioner failed to do so.

8] In this context, the report of the Vigilance Cell assumes significance. It is pertinent to note that the Vigilance Cell report refers to the local inquiry made with the witnesses and explicitly records that the grandfather and father of the Petitioner were handloom weavers and their traditional occupation was handloom weaving. It further records that the persons who were in the know of the things recognized the Petitioner and his ancestors as the members of the Momin caste. The Vigilance Cell report also refers to a certificate issued by the Momin Jamat Trust to the effect that the Petitioner is a member of the Momin community. Conversely, the vigilance inquiry did not find any contra material.

9] In the backdrop of the aforesaid Vigilance Cell report, it is necessary to note as to how the Respondent No.2 - Committee dealt with the said report. In the impugned order, the Respondent No.2 - Committee simply observed that it does not agree with the report of the Vigilance Cell. No reason was assigned by the Respondent No.2-

Committee to indicate as to why it found itself unable to agree with the Vigilance Cell report. This factor is of material significance for the reason that the Respondent No.2 - Committee was alive to the position that the insistence upon entries of the caste in the documents was not expected as the Petitioner professed Muslim religion. The report of the Vigilance Cell which lent requisite support to the claim of the Petitioner could not have been

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thus brushed aside without assigning any justifiable reason."

20. Also the decision of this Court in the case of Miss Swaliha B.

Sanadi (supra), (where one of us R. D. Dhanuka, J. was a member)

assumes significance in the light of the present discussion as this

Court in this decision as well has highlighted the significance of

affinity test as amongst Muslims there is no practice of mentioning

caste in the records. Paragraphs no. 9 to 11 are relevant and are

quoted as under:-

"9. Mr. Sutar is right in relying on the judgment in the matter of Jamadar Mehaboob Ghudubai (supra). He placed reliance on paragraph 13 of the said judgment. The said paragraph 13 is reproduced herein below.

"13. We also find that Vigilance Cell has not carried out enquiry as required by clause (d) of Sub- Rule 1 of Rule 13 which provides that the Vigilance Cell should include information including sociological, anthropological, ethnological and genetical traits of the relevant Caste. In the present case, this exercise was necessary as there is no likelihood of any entry of caste recorded in old record in case of Mohameddans. It was necessary for the Vigilance Cell to make an enquiry in terms of clause (d).

Perusal of the impugned order shows that the Committee has not applied the affinity test. This Court has already considered the provisions of Rule 13 of the said Rules in case of Smt.Bismilla Mohammedsab Sayyed (Mujawar) @ Bismilla Allabaksh Shikkalgar (supra). In this case also we find that entire approach of the Caste Scrutiny Committee is erroneous as in the facts of this case, the Caste Scrutiny Committee should have directed

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the Vigilance Cell to do the exercise under the provisions of clause (d) of Sub-Rule 1 of Rule 13 of the said Rules. The Caste Scrutiny Committee ought to have held appropriate enquiry in the present case."

10. As the Vigilance Cell Report is not in accordance with the Rules and therefore, the impugned order suffers from illegality and irregularity.

11. As far as the second contention that none of the documents show that the petitioner belongs to caste "Kasai", it is well settled that in case of Muslims, there was no practice of mentioning the castes in the record."

21. What emerges from the above exposition is that:

(i) The committee should be alive to the position that insistence

upon entries of the caste in the documents is not be expected in a

case where the applicant professes Muslim religion,

(ii) As held in the decisions cited herein, this Court has repeatedly

highlighted the significance of affinity test as amongst Muslims

there is no practice of mentioning caste in the records except

mentioning the "Muslim", "Musalman" or "Mohameddan" as can be

seen from the documents annexed to the petition,

(iii) particularly in the case of Muslims, under Rules 12 and 13 of

the said Rules, vigilance cell officer is to submit report by recording

statements of respected and responsible persons from the

concerned area as well as by collecting information including the

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sociological, anthropological and ethnological, genetical traits in

respect of the concerned caste/tribe, which in our view, the

vigilance officer has scrupulously and meticulously done as can be

seen from the submissions above,

(iv) as in the case of the Muslim community there is no

practice of mentioning the caste/sub-caste and evidently in this case

neither there are any pre-constitutional documents nor records

indicating the said caste therefore, the report of vigilance cell

assumes significance. The local inquiry made with the witnesses

regarding the traditional occupation would also come out in the

vigilance cell report. The same in our view been erroneously

rejected by the committee on the flimsy ground that the same was

based on oral statements. Where an inquiry is made pursuant to the

said Rules by the vigilance cell officer naming the persons who gave

the information, in our view rejection by the committee was

completely unwarranted. There is also no also allegation by the

committee as to the veracity of this information but simply on the

basis that the vigilance cell report is based on oral evidence, the

same has been rejected. This in our view is not acceptable.

(v) Further the rejection of the milk supply agreements entered

into by cousin grand-father of petitioner is also erroneous. A

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perusal of the said agreements indicates that these agreements are

on stamp papers and are entered into between one of C. B.

Mohammad Malbari and Yashin Kadar Jamadar of Kolhapur

(cousin grandfather of petitioner) and the other one is between H.

Manjunath Shivdev Shetty and Yashin Kadar Kamadar. Both the

agreements are for supply of milk. True that these documents are

not registered but we observe that the same are on stamp paper and

in any event agreements for selling/supply of movables are not

compulsory registrable documents under law. For the caste scrutiny

committee to raise such an objection for rejecting claim of petitioner

is completely misplaced in our view.

22. A perusal of the impugned order shows that the committee

has not applied the affinity test nor considered the vigilance cell

report. The caste scrutiny committee ought to have considered the

conclusions in the vigilance cell report. It has miserably failed in its

duty to do so.

23. We also agree with the submissions made on behalf of

petitioner with respect to the communication dated 22nd July 1996

from the Additional Secretary, Social Welfare to the Director, Social

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Welfare which contains directions highlighting the necessity and

importance of the home inquiry etc. in the case of Muslim

community as there is no description of caste in their documents

and there is a less likelihood of finding caste description therein,

which is clearly borne out from the various exhibits annexed to the

petition.

24. Having observed as above, it will also not be out of place to

refer to the decision of this Court in the case of Kum. Fehmi

Mushtak Mukadam (supra), where this Court, based on the report

of the vigilance cell was persuaded to uphold the claim of petitioner

belong to Gavali Nomadic Tribe-B, who professed Muslim religion.

Paragraph 7 of the said decision is usefully quoted as under:-

"7. In the present case, the report of vigilance cell shows that the grand-father of the petitioner was in the business of grazing the cattle and selling the milk. He had cattle shed and maintaining 15-20 cows and buffaloes. Not only this but upon examination of the witnesses and vigilance cell further found that the relatives of the petitioner are having surnames which are normally found in Gavali Tribe. In that view of the matter, we are inclined to allow the Petition"

Nikita Gadgil                                                     20 of 22
                                      21          Judgment-WP 1401-18.odt

25. We are not impressed with the learned AGP's arguments. The

learned AGP has not been able to distinguish the above referred

judgments.

26. We, therefore, have no doubt that respondent no. 2 scrutiny

committee having completely failed in its duty to apply settled basic

principles based on which caste validity claims in case of Muslims

are to be determined and having completely ignored the

overwhelming and uncontroverted findings of the vigilance cell as

well as the two agreements entered into by petitioner's cousin

grandfather for supply of milk in the years 1958 and 1959. The

impugned judgment and order dated 14th December 2017 thus

deserves to be quashed and set aside. We hereby quash and set aside

the judgment and order dated 14th December 2017 passed by

respondent no. 2 viz. District Caste Certificate Scrutiny Committee,

Kolhapur.

27. We further direct the respondent no.2-committee to issue

caste validity certificate to petitioner as belonging to Gavali,

Nomadic Tribe (B), within a period of two weeks from today.

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                                       22           Judgment-WP 1401-18.odt

28. Rule is made absolute in the above terms. Writ petition is

accordingly allowed. There shall however be no order as to costs.

29. Parties to act upon an authenticated copy of this order.

(ABHAY AHUJA, J.)                              (R.D. DHANUKA, J.)


         Digitally signed
         by NIKITA
NIKITA   YOGESH
YOGESH   GADGIL
         Date:
GADGIL   2021.10.21
         17:21:31 +0530




Nikita Gadgil                                                      22 of 22