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2009 DIGILAW 1788 (BOM)

PRAVIN NARAYAN DEVARE v. STATE OF MAHARASHTRA

2009-12-19

F.I.REBELLO, K.K.TATED

body2009
FERDINO I. REBELLO, J. ( 1 ) RULE. By consent heard forthwith. ( 2 ) THE petitioner by the present petition seeks to impugn the order of the divisional Caste Certificate Verification Committee No. 3, Mumbai Suburban and the order dated 24th August, 2009. By the said order the learned Committee cancelled the certificate issued in favour of the petitioner as belonging to Caste "sutar" as he was not able to establish the same. It is this order which is the subject matter of the present Petition. ( 3 ) THE State of Maharashtra had issued a Notification listing the Other backward Class. Under Entry No. 174 is the Entry of 'sutar' and under Entry no. 182 is shown the caste 'mali' with various sub-castes including 'panchkalsi'. The law of reading the entries in such Notification is settled by the judgment of the Constitution Bench of the Supreme Court in State of Maharashtra vs. Milind and ors. , 2001 (1) Mh. LJ. (SC) 1 = (2001) 1 SCC 4 , where the Constitution bench reiterated the view earlier taken that it is not possible to amend the order issued under Articles 341 and 342 of the Constitution by the State Government and further it is not possible to adduce evidence nor an enquiry can be made that the particular caste or part or group within tribes or tribe is included in presidential Order if they are not expressly included in the Orders. Though the said Constitution Bench judgment is in the context of orders issued pursuant to the powers to be exercised under Article 341 and 342 of the Constitution of india, in our opinion the same would also apply to a Notification issued by the state Government setting out the caste or sub-caste which is entitled to reservation amongst others. It is for the State Government to include or exclude caste or sub-caste or Tribes from the list of Other Backward Class notified by it. In other words it will not be possible for a Court to make an enquiry or permit leading of evidence to show that a caste or sub-caste not referred to in the notification forms part of the caste not already shown in the Notification. We may only refer to the following observation in Milind and ors. In other words it will not be possible for a Court to make an enquiry or permit leading of evidence to show that a caste or sub-caste not referred to in the notification forms part of the caste not already shown in the Notification. We may only refer to the following observation in Milind and ors. (supra):-"whether a particular caste or a tribe is Scheduled Caste or Scheduled tribe as the case may be, within the meaning of the entries contained in the Presidential Orders issued under clause (1) of Articles 341 and 342, is to be determined looking to them as they are. Clause (2) of the said articles does not permit any one to seek modification of the said orders by leading evidence that the caste/tribe (A) alone is mentioned in the order but caste/tribe (B) is also a part of caste/tribe (A) and as such caste/tribe (B) should be deemed to be a Scheduled Caste/scheduled tribe as the case may be. It is only Parliament that is competent to amend the Orders issued under Articles 341 and 342. As can be seen from the entries in the schedules pertaining to each State whenever one caste/tribe has another name it is so mentioned in the brackets after it in the schedules. In this view it serves no purpose to look at gazetteers or glossaries for establishing that a particular caste/tribe is a Scheduled caste/scheduled Tribe for the purpose of Constitution, even though it is not specifically mentioned as such in the Presidential Orders. Orders once issued under clause (1) of the said articles, cannot be varied by subsequent order or notification even by the President except by law made by Parliament. Hence it is not possible to say that State government or any other authority or courts or Tribunals are vested with any power to modify or vary the said Orders. If that be so, no inquiry is permissible and no evidence can be let in for establishing that a particular caste or part or group within tribes or tribe is included in Presidential order if they are not expressly included in the Orders. Since any exercise or attempt to amend the Presidential Order except as provided in clause (2) of Articles 341 and 342 would be futile, holding any inquiry or letting in any evidence in that regard is neither permissible nor useful. Since any exercise or attempt to amend the Presidential Order except as provided in clause (2) of Articles 341 and 342 would be futile, holding any inquiry or letting in any evidence in that regard is neither permissible nor useful. " ( 4 ) WITH the above background let us now consider the facts in issue. The petitioner was elected as Councillor of the Municipal Corporation of Greater mumbai against a seat reserved for O. B. C. The election of the petitioner was contested by Respondent No. 6 Shri Prakash Baban Patankar amongst others on the ground that the caste certificate issued to the petitioner based on which he had contested the election was false. As the dispute arose about validity of the caste certificate the matter was referred to the respondent No. 2 for validation of the caste certificate. According to the petitioner he belongs to 'sutar' Community which is known by general nomenclature as Somwanshi Kshatriya Pathare (Panchakalshi Sutar ). The Committee after considering the material before it by its order dated 27th April, 2007 invalidated the caste certificate issued in favour of the petitioner on 27th October, 2006 by the Deputy Collector, Mumbai. The petitioner aggrieved preferred a Writ Petition before this Court being Writ petition No. 4250 of 2007. A learned Bench of this Court by order dated 12th august, 2008 set aside the above decision of the Committee dated 27th April, 2007 and remitted the matter back to the Committee for fresh decision according to law. The Committee thereafter again by the impugned order dated 24th august, 2009 invalidated the caste certificate of the petitioner. ( 5 ) AT the hearing of this petition on behalf of the petitioner it is submitted that in the school leaving certificate of his grand father Shri Gopinath Keshavrao devare the caste is recorded as Sutar. The document is of 1890 AD. The petitioner also relied on the domicile certificate of his cousin brother Shri bhupendra Gajanan Devare issued on 1st June, 1946 by the Chief Presidency magistrate, Bombay, where the caste is mentioned as Sutar. The petitioner also relied on the caste validity certificate of his niece Smt. Sweta d/o. Vijaynath devare where it is held that she belongs to Hindu - Sutar and placed reliance on the affidavit dated 19th March, 2008 showing relationship with the petitioner. The petitioner also relied on the caste validity certificate of his niece Smt. Sweta d/o. Vijaynath devare where it is held that she belongs to Hindu - Sutar and placed reliance on the affidavit dated 19th March, 2008 showing relationship with the petitioner. The petitioner also relied upon various other documents including the certificate issued by Kshatriya Union Club that the petitioner belongs to Sutar community. The petitioner also relied on a lease deed of the year 1934 of a house property at village Changatpuri, Taluka Paithan given to his grand father Shri Gopinath keshavrao Devare by one Gangubai Bhagwansing Rajput on rent of Re. 1/-wherein the caste of Gopinath Keshavrao Devare has been referred as somwanshi Sutar and occupation as carpenter. At the outset we may point out that this document of lease entered into in 1934 shows the age of the person listed therein Gopinath s/o Keshavrao Devare as 32 years. The School Leaving certificate of the petitioner's grand father would show that his date of birth as 27th November, 1877. In other words on the date of the document the petitioner's grand father if he is the same person would have been 65 years and not 32 years as set out in the document. That document really, therefore, would be of no consequence. The petitioner then also relied upon the Bombay Gazetteer and various other literature to contend that the Sutar caste is known as panchakalshi and and they fall in widely known category as Somwanshi kshatriya Pathare. It is, therefore, set out that Somwanshi Kshatriya Pathare is a wider class of community which includes Panchakalshi Sutar and Vadval. In the bombay Gazetteer of the Bombay Presidency as produced by the petitioner we find the following extract:- "pachkalshis are returned as numbering 15,367 souls and as found in small numbers over most of the district and in strength along the coast. Besides by the name of Pachkalshis, they are known as Sutars, Malis, vadvals, Chankalshis, Somvanshi Kshatris and Pathares, all of whom except the Chankalshis eat together and intermarry. The name Pachkalshi is said to come from their using in their marriage ceremonies five earthen pots, kalas. " In our opinion, even assuming that this material could be relied upon insofar as the Government Notification is concerned Pachkalshis is shown under entry 182 beginning with Malis. The name Pachkalshi is said to come from their using in their marriage ceremonies five earthen pots, kalas. " In our opinion, even assuming that this material could be relied upon insofar as the Government Notification is concerned Pachkalshis is shown under entry 182 beginning with Malis. Sutar on the other hand is entry 174 and shows only Sutar and no other sub-caste. In the Notification, therefore, Sutar and Mali are shown under two distinct entries. ( 6 ) THE next submission on behalf of the petitioner is that considering the documentary evidence and the other material the learned Committee misdirected itself in law in holding that the petitioner does not belong to the caste Sutar. ( 7 ) REPLY has been filed on behalf of the Respondent No. 6. It is mentioned therein that the death certificate dated 6th January, 1955 of the petitioner's grand father shows that he expired on 30th November, 1945 and the, date of registration is 2nd December, 1945. The caste is shown as Pathare Kshatriya and at the time of his death he was aged 72 years and his occupation was Photographer. This is based on the certificate of death registry of the Greater, Bombay Municipal corporation. Reference is next made to a sale deed dated 29th January, 1957 executed by the grand mother of the petitioner Smt. Radhabai Gopinath Devhare in favour of one Dr. Bhalchandra Keshav Joshi in which the name of the petitioner's brothers and sisters were mentioned as Somvanshi Kshatriya. Referring to the school leaving certificate of the grand father of the petitioner it is pointed out that in the column of date of admission, only 20th December is mentioned and there is no year mentioned. It is further pointed out that the school Register produced starts from Sr. No. 774 by which the name of the grand father of the petitioner and date of admission is shown without the year. The prior entries are blank. The next Entry 775 shows the month January but the year has not been mentioned. Entry No. 776 shows the year January 6 but date is mentioned as 8-7-15. Entry No. 779 shows the date as 8th January but the date has been mentioned as 5-6-1913. The prior entries are blank. The next Entry 775 shows the month January but the year has not been mentioned. Entry No. 776 shows the year January 6 but date is mentioned as 8-7-15. Entry No. 779 shows the date as 8th January but the date has been mentioned as 5-6-1913. The then Principal of the School had brought the old Register before the Committee but due to worn condition of the said register the Committee was unable to verify the said entry. It is also pointed out that the domicile certificate of Bhupendra Gajanan Devhare shows caste as "pathare Kshatriya (Pach Kalshi Sutar ). From this document it would be clear that Pach Kalshi Sutar has been added subsequently. It is, therefore, pointed out that except for the school leaving certificate of the grand father which mentioned caste Sutar which has not been proved no other documents have been produced to show that the petitioner belongs to caste Sutar. In the Passport of the petitioner's father the caste is not shown. In the School Leaving Certificate of the petitioner dated 31st May, 2005 the caste is not mentioned. It is also set out that mr. Dwarkanath Thakur gave statement before the Vigilance Committee that the petitioner does not belong to caste Sutar, but belongs to Somavanshi Kshatriya. The petitioner had also not taken objection to the Vigilance Committee Report dated 24th October, 2008 which was submitted after making home enquiry. The only other document where the caste validity certificate issued to Shweta devhare who is his cousin sister, who is much younger to the petitioner. ( 8 ) THE question before us is whether the of the Committee in deciding the caste validity of the petitioner in the order suffers from any error of law apparent on the face of the record or for that matter suffers from any jurisdictional error. The Committee directed the vigilance enquiry to be made which report was made available to the petitioner. Three persons had filed affidavits of which one stated that the petitioner's caste is Sutar but belongs to Somavanshi Kshatriya Pathare whereas two witnesses stated that the petitioner's caste is Sutar. Two other witnesses including niece Shweta has stated that she belongs to Sutar whereas his cousin Bhupendra Gajanan Devhare has stated that he is Pathare Kshatriya (Pach kalshi Sutar ). Two other witnesses including niece Shweta has stated that she belongs to Sutar whereas his cousin Bhupendra Gajanan Devhare has stated that he is Pathare Kshatriya (Pach kalshi Sutar ). The Committee noted that Vigilance Cell's reports are dated 30th march, 2007 and 24th October, 2008. In the report of 30th March, 2007 it has been mentioned that the school record of the applicant's grand father is prepared afresh. Dealing with the certificate issued by the Kshatriya Samaj and Articles of association the Committee noted that these are private documents. ( 9 ) WE may note here that the earliest document is the school leaving certificate of the petitioner's grand father. From the Vigilance Cell's Report it has come on record that it was freshly prepared. It has also come on record that the other entries are blank insofar as the year is concerned. The petitioner's grandfather's death is recorded in the records of the Bombay Municipal corporation wherein his caste is shown as Phatare Kshatriya. The next older document is of Bhupendra Gajanan Devare. There also the original entry is phatare Kshatriya and there is an entry of Phatare Kshatriya - Sutar. The passport of the petitioner's father which is relied upon does not show his caste. The birth certificate also does not show the caste nor the School Leaving Certificate. In other words there is no documentary evidence to show in unequivocal terms that the petitioner belongs to caste Sutar which falls under Entry No. 174 or for that matter by applying the principles of preponderance of evidence. The entire case of the petitioner is to contend that he belongs to what is known as Panchkalshi and Panchkalshis are Sutar. We have noted that Entry 184 includes Panchkalshi under Mali. It is, therefore, not possible to hold that the order of the Tribunal suffers from any error of law apparent on the face of the record. We may again reiterate that independent evidence in respect of caste or sub-caste cannot be led to contend that the sub-caste belongs to a particular caste or sub-caste. That exercise is beyond the jurisdiction of either of the Caste Scrutiny Committee or of this Court exercising jurisdiction under Articles 226 and 227 of the constitution of India. The ratio of the Judgment in Milind and ors. (supra)[2001 (1) Mh. LJ. That exercise is beyond the jurisdiction of either of the Caste Scrutiny Committee or of this Court exercising jurisdiction under Articles 226 and 227 of the constitution of India. The ratio of the Judgment in Milind and ors. (supra)[2001 (1) Mh. LJ. (SC) 1] has been reiterated in Subhas Chandra vs. Delhi subordinate Services Selection Board, 2009 (11) SCALE 263. ( 10 ) IN our opinion, the Scrutiny Committee applied all the tests as set out in the judgment in Madhuri Patil inasmuch as (1) the report of the Vigilance Cell was called for; (2) the report was made available to the petitioner; (3) the petitioner was given a hearing and (4) documentary evidence produced has been considered. In our opinion, therefore, the Committee having given an opportunity to the petitioner and having considered the evidence on record the finding of fact which is recorded by it cannot be said to be based on no reasons or on inadmissible material or on material extraneous to the issue. ( 11 ) IN the light of that we are clearly of the opinion that there is no merit in this petition, which is accordingly dismissed. In the circumstances of the case there shall be no order as to costs. Petition dismissed.