Bombay High Court
Daivashala Nagnath Bhalerao vs The State Of Maharashtra And ... on 20 December, 2022
Bench: V. V. Kankanwadi, Y. G. Khobragade
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.8845 OF 2019
Daivashala Nagnath Bhalerao,
Age 38 yrs., Occ. Household and Social Work,
R/o Islampura, Kinwat, Tq. Kinwat,
Dist. Nanded.
... Petitioner
... Versus ...
1 The State of Maharashtra,
Through Secretary,
Social Welfare Department,
Mantralaya, Mumbai - 32.
2 The District Caste Scrutiny Committee,
(SC/ST, Nomadic Tribe)
Through it's President,
Nanded.
3 The Chief Officer,
Municipal Council, Kinwat,
Tq. Kinwat, Dist. Nanded.
4 Anusaya Bapurao Barkuntiwar,
Age 38 yrs., Occ. Household,
R/o Sathe Nagar, Kinwat,
Tq. Kinwat, Dist. Nanded.
... Respondents
...
Mr. N.L. Jadhav, Advocate for petitioner
Mr. A.S. Shinde, AGP for respondent Nos.1 and 2
Mr. B.A. Darak, Advocate for respondent No.3
::: Uploaded on - 20/12/2022 ::: Downloaded on - 21/12/2022 22:00:48 :::
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Mr. N.B. Garje, Advocate h/f Mr. V.D. Salunke, Advocate for respondent No.4
...
CORAM : SMT. VIBHA KANKANWADI AND
Y.G. KHOBRAGADE, JJ.
RESERVED ON : 10th OCTOBER, 2022
PRONOUNCED ON : 20th DECEMBER, 2022
ORDER : [PER : SMT. VIBHA KANKANWADI, J.]
1 Petitioner was the unsuccessful candidate in election from Ward
No.2-A of Nagar Panchayat, Kinwat, which was reserved for women from
Scheduled Caste category. Respondent No.4 is the successful candidate and
now by this petition the petitioner is objecting to the caste validity certificate
issued in favour of respondent No.4 on 31.03.2018. The petitioner has
invoked the constitutional powers of this Court under Article 226 of the
Constitution of India to challenge the said order granting validity by
respondent No.2 in favour of respondent No.4 and she has also sought
declaration about disqualification of respondent No.4 on the post of
Councilor of the Nagar Parishad. The petitioner has further sought directions
to be issued to respondent No.2 for taking action against respondent No.4
under Section 10 and 11 of the Maharashtra Scheduled Castes, Schedule
Tribes, De-notified Tribes (Vimukta Jatis) Nomadic Tribes and Other
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Backward Classes and Special Backward Class Category (Regulation of
Issuance and Verification) Caste Certificate Act, 2000.
2 Heard learned Advocate Mr. N.L. Jadhav for petitioner, learned
AGP Mr. A.S. Shinde for respondent Nos.1 and 2, learned Advocate Mr. B.A.
Darak for respondent No.3 and learned Advocate Mr. N.B. Garje holding for
learned Advocate Mr. V.D. Salunke for respondent No.4.
3 It has been vehemently submitted on behalf of the petitioner that
the petitioner has received validity certificate issued by the competent
committee holding that she is member of Scheduled Caste. She has
contested the election. Though respondent No.4 was declared as elected, it
has been transpired that respondent No.4 has obtained the caste certificate
by defrauding the various authorities and producing false documents.
Respondent No.4 is falsely contending that she is an illiterate lady. She has
also obtained school admission document of her real brother alleging that
their caste is 'Matang'. According to the petitioner, respondent No.4 has
given wrong genealogy. Though documents, which were filed by respondent
No.4 along with her nomination form, are false. In fact, the school admission
document of respondent No.4 in Zilla Parishad Primary School, Bellori, Tq.
Kinwat, Dist. Nanded shows that her caste is 'Madgi' and the date of birth is
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18.08.1971. The proposal submitted by Tahsildar to Caste Scrutiny
Committee No.2, Nanded on 16.11.2017 along with other documents of
which copies have been given along with the petition would show that they
are false. In fact, her caste is 'Madgi', but she has obtained the caste
certificate of 'Matang'. The petitioner had submitted her objection on
16.01.2018 to the Caste Scrutiny Committee, Nanded and has also produced
documents to support her objection. Sub Divisional Officer, Kinwat had also
conducted inquiry about the caste of respondent No.4, however, respondent
No.4 had taken a stand that her date of birth is 01.01.1981 and she is
illiterate. It was then the Sub Divisional Officer disposed of the complaint on
the ground that he has no jurisdiction to decide the same. Before the Caste
Scrutiny Committee respondent No.4 has submitted her birth certificate
showing her birth date as 01.01.1981 appears to be a false document, in view
of the letter given by the Chief Officer, Municipal Council, Kinwat stating that
the record itself is not available. The petitioner was a poor lady and though
the Caste Scrutiny Committee had passed the order in favour of respondent
No.4 on 31.03.2018 she could not approach this Court challenging the said
order. In fact, when the caste validity certificate was not submitted within six
months, the action ought to have been taken by the respective authorities.
During the pendency of the petition the further facts those were revealed
were that the Assistant Collector, Kinwat informed the Block Education
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Officer, Kinwat on 29.08.2018 that the complaint dated 17.01.2018
submitted by the petitioner has been received by him and, therefore, inquiry
should be made. The Block Education Officer has submitted the report on
03.03.2018 to Sub Divisional Officer, which will reveal that the caste of the
respondent No.4 is 'Madgi' and the mother tongue is 'Telgu'. The petitioner
has then submitted an application on 16.09.2019 to the Headmaster of Zilla
Parishad Primary School, Bellori (Kinwat), however, the Headmaster refused
to give information. The notice that was filed by respondent No.4 shows that
she is illiterate, married and also her father was illiterate, but at the time of
affidavit she has made signature. These are the facts which would disclose
that the caste certificate was obtained fraudulently and the validity has also
been issued on the basis of false documents. Therefore, the petition deserves
to be allowed.
4 The learned Advocate for the petition has relied on the decision
in State of Maharashtra and others vs. Ravi Prakash Babulalsing Parmar and
another, AIR 2007 SC 295, wherein it has been held that Caste Scrutiny
Committee could go into the validity or otherwise of the certificate granted
by the authorities while making an inquiry . The Hon'ble Supreme Court on
the basis of facts and scrutiny of the same held that the caste certificate
issued by Executive Magistrate cannot be taken as evidence to prove the
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caste of the respondent.
5 Per contra, the learned AGP representing respondent Nos.1 and
2, learned Advocate Mr. B.A. Darak for respondent No.3 and learned
Advocate Mr. N.B. Garje holding for learned Advocate Mr. V.D. Salunke for
respondent No.4 all have strongly opposed the petition. It has been
submitted on behalf of respondent Nos.1 and 2 i.e. by learned AGP that the
Caste Scrutiny Committee has extensively considered the evidence that was
adduced. The original file before the Caste Scrutiny Committee has been
produced for the perusal of this Court, which shows that the maiden name of
respondent No.4 was Anusaya Bapurao Barkuntiwar, Shrihari Bapurao
Barkuntiwar is her brother and the admission document of Shrihari with
Cosmopolitan Vidyalaya, Kinwat would show that he had taken admission on
27.06.1991 in 5th standard. His caste is shown as 'Matang'. Even before the
admission to this school he had taken admission in the 1st standard with Zilla
Parishad School, Bellori (Kinwat). At that time also his caste has been stated
as 'Matang'. Caste certificate of her brother shows the same caste. Various
affidavits are filed. The genealogy has also been given on oath. It appears
that everything is moving around the admission document of Zilla Parishad
school, Bellori (Kinwat) in the name of Anusaya Bapurao Barkuntiwar, in
which her caste has been shown as 'Madgi'. However, as regards the said
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document is concerned, respondent No.4 submits that she never went to
school, she can only sign precisely, that is, the affidavit-in-reply that has been
given by respondent No.4.
6 Learned Advocate for respondent No.4 has taken us through the
affidavit-in-reply, wherein the same facts have been reiterated and the similar
documents have been produced. Important point to be noted is that
Secretary, Government of Maharashtra has issued letter to all the
departments of the Government on 26.09.2008 and in that letter it has been
stated that the list of the caste which have been included in Scheduled Caste,
Nomedic Tribe etc. have been updated on 25.06.2008 and that list should be
perused. In that list at Sr.No.35 for Anusuchit Jati i.e. Scheduled Caste, caste
by name Madgi has been included and therefore, the learned Advocate
appearing for respondent No.4 submits that even if it is considered that she is
Madgi by caste; yet it would come under Scheduled Caste and she was
eligible to contest the said election from the reserved post of Scheduled
Caste.
7 At the outset, it is to be noted that the Judgment and order has
been passed by respondent No.2 on 31.08.2018 and the present petition has
been filed on 17.07.2019. Therefore, there is considerable delay and the
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petition deserves to be dismissed on the ground of delay and laches. When it
comes to challenge to the caste of an elected candidate and some order is
passed by a competent authority, then, the unsuccessful candidate cannot
afford to sit idle for a long period. Under these circumstances, this will not
be the fit case where the constitutional powers of this Court under Article
226 of the Constitution of India should be exercised.
8 For the sake of argument if it is considered that the ground that
has been taken in the petition that due to the financial constraints the
petitioner could not approach this Court within a reasonable time, then, we
will have to consider the other documents. The ratio laid down in the
decisions relied by the learned Advocate appearing for the petitioner cannot
be denied, however, whether those are applicable to the facts of the case are
required to be considered. The document, on the basis of which the
petitioner is contending that respondent No.4 is Madgi by caste, shows that
her date of birth is 18.08.1978. It is the document of admission in school i.e.
Zilla Parishad School (Primary) at Bellori (Kinwat), Tq. Kinwat, Dist. Nanded.
However, respondent No.2 has filed birth certificate issued by Kinwat
Municipal Council on 23.07.2012 showing that date of birth of respondent
No.4 is 01.01.1981. The birth certificate issued under Section 12/17 of the
Registration of Birth and Deaths Act, 1969 and Rule 8/13 of the Maharashtra
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Registration of Birth and Deaths Rule, 2000 will have to be given more
evidentiary value than the admission register maintained at a school.
Further, it is to be noted that the date of issuance of the birth certificate is
23.07.2012, when respondent No.4 had not even filed the nomination form.
Now, the petitioner is again stating that when she had made inquiry with the
Municipal Council on 09.04.2018 and asked for the documents regarding
birth certificate of respondent No.4, she has received letter on 24.04.2018
stating that no such record is available. Here, it can be seen that it might not
be available on 24.04.2018, but when such certificate has been issued on
23.07.2012 the document was available and, therefore, it has been issued.
We cannot go further deep into this aspect, taking into consideration the
evidentiary value i.e. attached to the birth certificate.
9 Certainly, respondent No.2, who is having authority to make
inquiry and it can be presumed that the said authority has conducted a
proper inquiry and has arrived at the conclusion, then, the documents or the
material that has been relied by the petitioner cannot be said to be sufficient
to discard the claim of respondent No.4. We are only taking note of the fact
that even caste Madgi has been recognized in 2008 itself by the Government
as a caste under the list of Scheduled Caste and all the concerned
departments were directed to take the note of the same.
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10 For the above discussion, we do not find any merit in the present
petition. It deserves to be rejected. Accordingly, it is rejected.
( Y.G. Khobragade, J. ) ( Smt. Vibha Kankanwadi, J. )
agd
