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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NARESH H. PATIL & M.S. KARNIK, JJ.
Madhuri Dhananjay Nalawade – Petitioner
Versus
State of Maharashtra & Others – Respondents
Writ Petition No. 6925 of 2016 with Civil Application No. 2158 of 2016
Decided On : 16-12-2016
The petitioner has relied upon the caste validity certificate issued to her cousin uncle "R". The reasoning of the Committee that the said caste validity certificate cannot be considered in favour of the petitioner as the same was granted on the basis of the legal position then prevailing cannot be countenanced.
Once the caste validity certificate has been validly issued in accordance with the rules and regulations prevailing at the time of the issuance of the caste validity certificate, the same cannot be discarded merely because the rules for issuance of the caste validity certificate have subsequently undergone a change. Once the blood relation of the petitioner viz. "R" has been granted a caste validity certificate, the Committee ought to give due weightage to the same while considering the issuance of validity certificate to the petitioner in accordance with the law laid down in the case of Apporva. The petitioner`s caste claim thus calls for reconsideration. 2010 (6) Mh LJ 401-Relied.
Maharashtra Scheduled Castes Scheduled Tribe Denotified Tribes (Vimukta Jatis) Nomadic Tribes Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of Caste Certificate) Act, 2000 - Section 6-Evidence Act, 1872, Section 90-Validity of caste certificate.-Caste certificate more than 30 years old attracts presumption under Section 90 of Evidence Act.
The petitioner has relied upon various documents which have been discarded by the Committee on the ground that in the School records the date on which the student was admitted in the School is not found. The documents which have been relied upon by the petitioner being old documents have great probative value. Moreover as observed by the Apex Court in the case of Desh Raj (supra) wherein it has been held that the document more than 30 years old attracts the presumption under Section 90 of the Evidence Act, 1872, the Committee before discarding these documents must adopt a cautious approach. The Committee before discarding old documents should give cogent reasons.
Key Points: - The court held that a caste validity certificate validly issued under the rules at the time of issuance cannot be discarded merely because rules have changed subsequently (!) . - The matter was remanded back to the Committee for fresh consideration with direction to consider old pre-constitutional documents and probative value, applying cautious approach per Section 90 of the Evidence Act, and give cogent reasons for discarding them (!) (!) (!) . - The impugned order was quashed and set aside, with remand for a fresh hearing on merits and in accordance with law, including hearing the petitioner and intervenor, and to pass a reasoned order within 3 months from the date of the judgment (!) (!) (!) (!) . - The Committee’s application of area restrictions prior to their removal was criticized and remanded for reconsideration in light of applicable legal precedents (Apoorva; Pandurang Rangnath Chavan) as noted by the court (!) (!) (!) . - The decision acknowledges the weight to be given to a cousin’s caste validity certificate when issued under the law then prevailing and considers it in light of Apoorva (Supra) (!) .
M.S. KARNIK, J.
1. Rule, returnable forthwith. Heard finally by consent of the parties.
2. The Petitioner challenges the order dated 20th May, 2016 passed by the Scheduled Tribe Certificate Scrutiny Committee, Pune Region, Pune (herein referred to as the Committee for short) invalidating the caste claim of the Petitioner as belonging to the Thakar- Scheduled Tribe.
3. It is the Petitioner's case that she was granted a caste certificate as belonging to Thakar- Scheduled Tribe by the Competent Authority on 15th July, 2013. As the Petitioner intended to contest election of Gram Panchayat, Kanheri in the Scheduled Tribe category, by a letter dated 16th October, 2015 she requested the Committee to decide her tribe claim expeditiously. The Petitioner filled her nomination form from Mahatma Gandhi Ward No. 1 on 17th October, 2015. The Petitioner undertook to produce her Caste Validity Certificate within six months failing which, she will be disqualified retrospectively. The Petitioner who was elected as a member of Gram Panchayat, Kanheri from Scheduled Tribe category on 4th October, 2011 was elected as a Sarpanch on 10th December, 2015.
4. The Petitioner's caste claim was referred to the Vigilance Cell Department for inquiry. The Vigilance Cell Department recorded the statement of the Petitioner as well as the statement of one Shri Dattatray Bhausaheb Shinde an elderly person in the village where the Petitioner claim to be the native. The Vigilance Cell Department also verified genuineness of the various documents submitted by the Petitioner as well as the other documents obtained during the course of inquiry. The Vigilance Officer was of the opinion that the Petitioner does not belong to the Thakar-Scheduled Tribe. The Committee upon considering the material record invalidated the caste claim of the Petitioner as belonging to Thakar-Scheduled Tribe.
5. Learned Counsel for the Petitioner assailed the order passed by the Committee on the ground that the Committee has not considered as many as twelve pre-constitutional documents relied upon by the Petitioner in support of her caste claim in its proper perspective. According to him the documents of Shri. Balwanta Ravji Thakar dated back to 15th July, 1910. The document of Shri Babu Ravji Thakar indicating his caste as Thakar dates back to 15th March, 1913. The document pertaining to Shri Ramchandra Tukaram Thakar is dated 15th June, 1914. These documents are discarded by the Committee on the ground that in the School records in the remarks column the date on which they are admitted in the School does not appear. The learned Counsel, therefore, contends that the old documents of the year 1910, in respect of the cousin great grandfather of the Petitioner have great probative value. He relied upon the decision in the case of Desh Raj vs. Bodh Raj, (2008) 2 SCC 186 to contend that the documents more than 30 years old attracts the presumption under Section 90 of the Evidence Act. These documents clearly indicate the caste of her blood relatives, the caste of her ancestors as Thakar-Scheduled Tribe and therefore, the same should be treated as clinching evidence having great probative value.
6. Learned Counsel for the Petitioner would further contend that the affinity test has not been correctly applied in the present case. More over the Committee has completely erred in applying the area restrictions as the same has been removed by the Act No. 108 of 1976 passed by the Parliament. According to the learned Counsel for the Petitioner after the removal of area restrictions with effect from 17th July, 1977 it cannot be legally insisted that the claimant must come from specified area so as to make available facility and concession meant for scheduled tribe in the State of Maharashtra.
7. The learned Counsel further contends that the Committee has committed an error in overlooking caste certificate of the cousin uncle of the Petitioner viz. Rajendra Ramchandra Nalawade. The finding of the Commi
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