Bombay High Court
Nitin S/O Mahadeorao Choudhary vs The State Of Maha., Thr. Its Chief ... on 11 October, 2023
Bench: A.S. Chandurkar, Vrushali V. Joshi
2023:BHC-NAG:14923-DB
1 WP6693-23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 6693/2023
(NITIN MAHADEORAO CHOUDHARY VERSUS THE STATE OF MAHARASHTRA & OTHERS)
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's order
and Registrar's orders.
Shri B.W. Patil, counsel for the petitioner.
Dr. Birendra Saraf, Advocate General with Shri A.M. Deshpande, In-Charge
Government Pleader for the respondents.
CORAM : A. S. CHANDURKAR AND MRS.VRUSHALI V. JOSHI, JJ.
DATE : OCTOBER 11, 2023.
P. C.
This writ petition filed under Article 226 of the Constitution of India by
the petitioner who claims to be the National Convener of O.B.C. Mukti
Morcha raises a challenge to the Government Resolution dated 07.09.2023
issued by the General Administration Department of the State of
Maharashtra. By the said Government Resolution, the Department of General
Administration has been pleased to constitute a five member Committee that
is required to indicate and recommend the manner in which documentary
material is to be examined while issuing caste certificates to the persons from
Maratha-Kunbi or Kunbi-Maratha community.
2. Shri B.W. Patil, learned counsel for the petitioner submits that by
Government Resolution dated 01.06.2004 the list of Other Backward Class
categories came to be modified and against Serial Number 83 that had the
entry Kunbi (sub-caste - Lewa Kunbi, Lewa Patil and Lewa Patidar) was
modified by including Maratha-Kunbi and Kunbi-Maratha therein. Having
thus modified Entry No.83 it was submitted that there was no reason
whatsoever for the General Administration Department to further step in and
constitute a Committee to examine the manner in which documentary
material should be examined and considered while issuing caste certificates
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to the members of Maratha-Kunbi and Kunbi-Maratha community. Reference
was made to the provisions of Article 342(A)(3) of the Constitution of India
to submit that the State Government having undertaken the exercise of
including Maratha-Kunbi and Kunbi-Maratha community in Entry No.83 it
had no further obligation to undertake the exercise of determining the
modality to be followed while issuing caste certificates to such persons.
Referring to the provisions of Section 8 of the Maharashtra Scheduled Castes
and 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, 2001, it was submitted
that the burden to prove one's caste was on the concerned applicant and that
burden could not be taken up by the State Government as is sought to be
done by issuing the impugned Government Resolution. Referring to the
judgment of the Division Bench in Prasad Pralhad Ingle Versus State of
Maharashtra & Another [Writ Petition No. 5705 of 2009] decided at the
Aurangabad Bench on 13.11.2009, it was submitted that after considering the
documents submitted by the petitioner therein with the caste entry as
Maratha, it was observed that if such cases were accepted and the claim of
belonging to Kunbi - Other Backward Class category was upheld then this
would result in social absurdity. He also referred to similar observations
made in the case of Suhas Anantrao Dashrathe & Others Versus State of
Maharashtra & Another [2002(2) BCR 211]. It was thus submitted that the
General Administration Department had no authority in law to constitute
such Committee as was done under the impugned Government Resolution. It
was also urged that if the Committee was permitted to undertake this
exercise and its report was published, the same would have various
consequences that could affect the rights of members from the Other
Backward Class category community. It was thus submitted that the
Government Resolution dated 07.09.2023 was liable to be set aside.
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3. Dr. Birendra Saraf, learned Advocate General appearing for the
respondents opposed the writ petition. He submitted that the challenge as
raised to the Government Resolution dated 07.09.2023 was premature since
the only exercise that was contemplated to be undertaken under the
impugned Government Resolution was to indicate the manner in which
documentary material should be looked into and examined while issuing
caste certificates to the persons from Maratha-Kunbi and Kunbi-Maratha
community. The General Administration Department was merely seeking a
report in the said matter and there was no question of any exercise of
collecting evidence being undertaken by the State Government. Referring to
the said Government Resolution it was submitted that the object behind
issuing the same was to bring in consistency in the matter of issuance of caste
certificates. The power to undertake such exercise inheres with the
Department and there was no need of any statutory provision for undertaking
such exercise. The Committee was required merely to make its
recommendations in the matter which would then be considered by the
Department. Hence at this stage in absence of any illegality on the part of
the respondents, there was no locus whatsoever for the petitioner to
challenge the said Government Resolution.
4. Having heard the learned counsel for the parties and having perused
the material on record, we do not find any legal basis whatsoever to hold that
the Government Resolution dated 07.09.2023 is either unconstitutional or
unreasonable as urged by the petitioner. It is seen that in the list of Other
Backward Class category Entry No.83 identifies Kunbi with sub-caste of Lewa
Kunbi, Lewa Patil and Lewa Patidar. That entry has been modified on
01.06.2004 to include Maratha-Kunbi and Kunbi-Maratha community at
Entry No.83. With the issuance of this Government Resolution Entry No.83
stands duly modified recognizing Maratha-Kunbi and Kunbi-Maratha
community to be a part of Entry No.83. This Government Resolution is not
under challenge. The Government Resolution dated 07.09.2023 refers to the
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reasons that have led to the constitution of the five member Committee. It
has been stated therein that in the Marathwada region, various difficulties
were being faced while issuing caste certificates to the persons from Maratha-
Kunbi and Kunbi-Maratha community. With a view to streamline such
process and bring a consistency therein a study was undertaken. On the basis
of such study and the recommendation made by a Committee headed by the
Additional Chief Secretary (Revenue) on 29.05.2023 the General
Administration Department proceeded to constitute a five member
Committee in this regard. This was with a view to formulate the manner in
which caste certificates to the members from the Maratha-Kunbi and Kunbi-
Maratha community should be issued keeping in mind the administrative as
well as constitutional requirements. As per the decision taken, if in the old
documents including the revenue records from the Nizam period, old school
records and other records a reference to 'Kunbi' was found, then after
examining all relevant documents in detail a caste certificate in that regard
could be issued. With a view to decide the modalities in the aforesaid context
the said five member Committee was constituted. It was required to indicate
the procedure to be followed while issuing caste certificates to eligible
persons claiming to belong to Maratha-Kunbi and Kunbi-Maratha
community.
5. It can thus be seen that on the basis of an earlier study conducted and
the material available with the General Administration Department the
decision to constitute a five Member Committee has been taken. The object
behind constituting the said Committee being merely to streamline the
manner in which relevant documents are to be examined prior to issuance of
a caste certificate, we do not find that such exercise is beyond the authority
and jurisdiction of the General Administration Department. The Executive
has the necessary power to determine the manner in which relevant
material prior to the issuance of a caste certificate has to be considered.
The apprehension expressed by the learned counsel for the petitioner that the
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State Government was undertaking an exercise of collecting evidence for the
members of the said community is unfounded in view of the plain meaning as
well as the intent behind issuing the Government Resolution dated
07.09.2023. To reiterate, the Committee has been tasked to suggest the
mode and manner of examining old records relating to Kunbi community
while issuing caste certificates to the claimants from Maratha-Kunbi and
Kunbi-Maratha community.
6. For aforesaid reasons, we do not find that there is any case made out
to intervene in writ jurisdiction. The writ petition is thus dismissed. No
costs.
(MRS. VRUSHALI V. JOSHI, J.) (A. S. CHANDURKAR, J.)
APTE
Signed by: Apte
Designation: PS To Honourable Judge
Date: 11/10/2023 14:42:48
