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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
Marlapalle B.H. Patil N.H., JJ.
Dattatraya Ramrao Thorat .... Petitioner.
Versus
State of Maharashtra others.... Respondents.
Writ Petition No. 5345 of 2001, decided on 24-4-2002.
Advocates appeared :
A.S. Golegaonkar, for petitioner.
E.P. Sawant, G.P., for respondent Nos. 1 to 3 6.
D.V. Soman, for respondent No. 5.
S.T. Shelkar, for respondent No. 4.
Maharashtra Restoration of Lands to Scheduled Tribes Act, 1975 - Section 9 - Constitution of India, 1950, Articles 226 and 14 - Constitutional validity of powers of caste verification committee - Power available under Section 9 - It gives the committee powers of a civil Court - Committee being a quasi- judicial body and duly empowered to adjudicate social status claim - Such powers under Section 9 not ultra vires. - It is of common knowledge that in some cases before the verification committee the caste certificates which were under scrutiny, were alleged either not issued by the competent officer or the record to be maintained in the office of such officer was missing. Under such circumstances, it was necessary to have the committee vested with the powers of recording evidence both oral as well as documentary. It is for these reasons that Section 9 of the Act equips the committee with the powers of civil Court under CPC in certain matters.
Constitution of India, 1950 - Articles 226 and 14 - Constitutional validity of statute challenged - Burden to prove unconstitutionality lies on person who challenges the statute - Release of burden necessary to prove unconstitutionality. - In holding the provisions of the statute to be ultra vires it becomes necessary to take into consideration the purpose of such enactment as a whole starting from the preamble to the last provisions thereto and if entire enactment, read as a whole indicates to achieve that purpose there could be no case to hold the enactment as ultra vires the constitution. Though the State cannot escape its liability to show its actions to be fair, reasonable and in accordance with law, yet whenever challenge is thrown to any of such actions, initial burden of showing the prima facie existence of violation of the mandate of the constitution lies upon person approaching Court.
Bombay Provincial Municipal Corporation Act, 1949 - - Sections 16(1) and 16(2-A) - Election matter - Claim for caste - Benefits reserved for a cate- gory enjoyed by filing a false certificate - It amounts to be a serious offence in election cases. - The petitioner has failed to discharge his burden and nothing has been pointed out in the Act to show that it lays down unguided discretion in favour of any of the competent authority, appellate authority or the scrutiny committee. Obtaining benefits of reservation by submitting false caste certificate has become a social menace and in fact it is as serious an offence as the election offence. The preamble of the Act sets out clearly the purpose and the provisions of the Act aimed at achieving the said objects in consonance with the law laid down by the apex Court in case of Madhuri Patil, AIR 1995 SC 94.
Bombay Provincial Municipal Corporation Act, 1949 - - Sections 16(1) and 16(2-A) - Election matter - Claim for caste - Benefits reserved for a cate- gory enjoyed by filing a false certificate - It amounts to be a serious offence in election cases. - The petitioner has failed to discharge his burden and nothing has been pointed out in the Act to show that it lays down unguided discretion in favour of any of the competent authority, appellate authority or the scrutiny committee. Obtaining benefits of reservation by submitting false caste certificate has become a social menace and in fact it is as serious an offence as the election offence. The preamble of the Act sets out clearly the purpose and the provisions of the Act aimed at achieving the said objects in consonance with the law laid down by the apex Court in case of Madhuri Patil, AIR 1995 SC 94.
Bombay Provincial Municipal Corporation Act, 1949 - - Sections 16(1), 16(2-A) - Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of Caste Certificate) Act, 2001, Section 10 - Constitution of India, 1950, Articles 243-ZG-243-V(i) - Election matter - Claim for being from a particular caste - Disqualification narrated in Section 10 and Section 11 specifying consequences of disqualification - There are independent of remedial provisions of election petition - As available under Section 16(1) of Corporation Act. - Provision of Section 10(4) of the Act do not run counter to the provision of either Section 16(2-A) or Section 12 of the Corporation Act when a person was disqualified to contest the election on a seat reserved right at the threshold, he cannot be allowed to continue to hold the elected office even after his social status claim has been invalidated or found to be bogus merely by taking the support of Section 16(1) or 16(2-A) of Corporation Act. The bar of Article 243-ZG is for interference in the election process already set in motion Article 243-V(i) does not provide for disqualification of being a member of Municipal Corporation.
Bombay Provincial Municipal Corporation Act, 1949 - - Sections 16(1), 16(2-A) - Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of Caste Certificate) Act, 2001, Section 10 - Constitution of India, 1950, Articles 243-ZG-243-V(i) - Election matter - Claim for being from a particular caste - Disqualification narrated in Section 10 and Section 11 specifying consequences of disqualification - There are independent of remedial provisions of election petition - As available under Section 16(1) of Corporation Act. - Provision of Section 10(4) of the Act do not run counter to the provision of either Section 16(2-A) or Section 12 of the Corporation Act when a person was disqualified to contest the election on a seat reserved right at the threshold, he cannot be allowed to continue to hold the elected office even after his social status claim has been invalidated or found to be bogus merely by taking the support of Section 16(1) or 16(2-A) of Corporation Act. The bar of Article 243-ZG is for interference in the election process already set in motion Article 243-V(i) does not provide for disqualification of being a member of Municipal Corporation.
Constitution of India, 1950 - Article 226 - Caste claim - Evidence to establish caste - Evidence from side of father have more evidentiary value - While evidence from mother s side are not so strong in present caste system - Proof of pedigree/genealogy necessary - To extinguish claim. - While dealing with the claims of social status a claimant has to stand on his/her own feet and prove such a claim by submitting evidence which has probative value and the evidence from the maternal side or other than parental side, does not weigh in support of such claim as much as the evidence from the paternal side has more evidentiary value. If a claimant fails to prove the pedigree/ genealogy. Undoubtedly the committee is not bound to accept each and every document as relevant qua such a genealogy.
MARLAPALLE B.H., J.:---Heard Shri Golegaonkar, the learned Counsel for the petitioner.
2. The petition was heard by us on 27th and 28th of March, 2002 as well as on 1st April, 2002.
3. Rule. Shri. Sawant, learned Government Pleader waives service for respondent Nos. 1 to 3 and 6. Shri Shelke, learned Advocate waives service for respondent No. 4 and Shri Soman, learned Advocate waives service for respondent No. 5. Rule made returnable forthwith.
4. The petitioner claims that he belongs to the "Kunbi" caste which is listed in Other Backward Classes at Serial No. 83 in the list, as published by the State Government, and the Taluka Executive Magistrate, Aurangabad had issued to him a caste certificate to that effect on 15th June, 1996/2nd July, 1996. On the basis of the said caste certificate he contested the elections of the Aurangabad Municipal Corporation from Ward No. 42 which was reserved for the Other Backward Classes. He was declared elected sometimes in April, 2000. The Commissioner of Aurangabad Municipal Corporation, vide his order dated 26th of April, 2000, referred the petitioners caste claim for verification to the respondent No. 2 Committee on the basis of a complaint filed by the rival defeated candidates. Thus, the caste certificate dated 2nd July, 1996 issued by respondent No. 3, became a subject matter of verification by the respondent No. 2 Committee.
5. Before the Scrutiny Committee the petitioner submitted as many as 50 documents in support of his caste claim and these were the certificates in respect of the petitioners family members (grand father, father, brothers, sisters and cousin brothers/sisters) from the paternal side and other relations from the paternal as well as maternal side. Vigilance inquiry, as required, was directed and the Vigilance Cell submitted its report on 11th October, 2001 to the respondent No. 2-Committee. A copy of the said report was made available to the petitioner and he was called upon to file his say. By our order dated 24th October, 2001, passed in (Writ Petition No. 916 of 2001)1, the respondent No. 2 Committee was directed to complete the caste verification proceedings in respect of the five Corporators as they were pending for more than one year. While the verification of petitioners caste claim was in progress, the Maharashtra Legislature enacted 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) Act, 2000 (for short, the Act). The State Government issued a notification dated 17th of October, 2001 under section 1(2) of the Act and appointed 18th of October, 2001 as the date on which the Act came into force. The respondent No. 2 invoked powers under section 9 of the Act and called upon the Gram Sevak, Village Panchayat, Dongargaon Kada, Taluka and District Aurangabad as well as the Head Master of Zilla Parishad Primary School, Bhoigaon, Taluka and District: Aurangabad for recording evidence in support of the documents at Serial Nos. 48 and 49 as well as 50 respectively and the evidence of these two persons was recorded before the Committee on 28th November, 2001. Finally, by order dated 1st December, 2001 the respondent No. 2 Committee has rejected the petitioners caste claim and held the caste certificate dated 15th June, 1996/2nd July, 1996 as invalid. The Committee directed for confiscation of the said certificate. Hence, this petition.
6. The substantial relief prayed for in this petition is in terms of prayer Clauses (B) to (E) and hence the same are reproduced herein below:
"(B) To quash and set aside the decision of the Committee dated 1-12-2001 and declare that the petitioner belongs to Kunbi Other Backward Caste, by issuing appropriate writ, order or directives, as the case may be.
(C) To quash and set aside the decision of the Committee dated 1-12-2001 and declare that the caste certificate issued
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