Writ Petition No.6144 of 2007

21st June, 2010

Petitioner Counsel: Shri. M. D. JOSHI
Respondent Counsel: Shri. V. H. DIGHE,Shri. PRAVIN S. PATIL

JUDGMENT

K. K. TATED, J. :- Rule. Rule made returnable forthwith. With the consent of the parties, this petition is taken up for final hearing at admission stage.

2. The petitioners, under Articles 226 and 227 of the Constitution of India approaches this Court, contending that the decision of the Caste Scrutiny Committee rejecting their appeal against the order dated 29th May, 2001 passed by the Sub-Divisional Officer, Bhusawal suffers from an error of law apparent on the face of the record.

3. The learned Counsel for the petitioners has framed his challenges as under.

(a) The Scrutiny Committee failed to consider the important documents and material filed by them.

(b) The order of respondent No.2 i.e. Scrutiny Committee suffers from non application of mind and the decision has been given without following procedure.

4. On the other hand, learned Counsel appearing on behalf of the respondents submits that the Scrutiny Committee considered all the documents produced by the petitioners on record. Not only that, the Committee also heard the petitioners in person. The Committee considered the school leaving certificates of the petitioners wherein caste is mentioned as "Hindu Koli" and "Hindu Koli (Suryawanshi Koli)". These documents pertain to the period 1913 and 1947 respectively. These documents are having more probative value of evidence to decide the caste claim of the petitioner's son. Therefore, the order passed by the Committee dated 31-12-2002 is according to law. He further submitted that the petitioner No.2 challenges the same order by preferring Writ Petition No.2012 of 2003 in this Court and the same was withdrawn by him on 16th September, 2003 without seeking any liberty. Therefore, the present petition is not maintainable for the same cause of action.

5. We heard both the sides at length. It is the case of the petitioners that they belong to "Tokare Koli" caste, which is included as Scheduled Tribe. The petitioner No.1 had applied for caste certificate for his son Kishor Pandurang Mahale i.e. petitioner No.2 to the Sub-Divisional Officer, Bhusawal on 25th September, 2001. The Sub-Divisional Officer, Bhusawal refused to give certificate as "Tokare Koli" on the ground that petitioner No.1 had not submitted authentic certificate of blood relatives and other documents.

6. Being aggrieved by the order passed by the Sub-Divisional Office, Bhusawal, the petitioners preferred appeal before respondent No.2 Scrutiny Committee, challenging the order passed by the Sub-Divisional Officer, Bhusawal. Thereafter, the petitioners received notice from respondent No.2 calling to submit their documents and evidence,if any. Pursuant to the said notice, petitioner No.1 on 21-09-2002 filed additional say, information and documents. The petitioner No.1 in support of his tribe claim, submitted the following documents before the Committee.

(1) Xerox copy of the school leaving certificate of appellant namely Pandurang Rupchand Mahale issued by the Head Master, Marathi Mulanchi Shala, Nimbore Bk, Tq. Raver on 7-9-89 where in the caste is mentioned as Hindu Koli (Suryawanshi Koli). This document pertains to the period 1947.

(2) Xerox copy of 1st page of service book in respect of appellant wherein caste are mentioned Hindu Suryawanshi Koli O.B.C., as per caste certificate dated 16-1-79 and Hindu (Tokare Koli) dated 15-2-80 and Hindu Koli.

(3) Xerox copy of the school leaving certificate of appellant issued by the Head Master, Marathi Mulanchi Shala No.1, Nimbore Bk., Tq. Raver on 30-07-2001 wherein the caste is mentioned as Hindu Koli. This document pertains to period 1947.

(4) Xerox copy of the caste certificate of appellant issued by Executive Magistrate, Raver on 1-2-80.

(5) Xerox copy of land record village Namuna No. 6 in respect of appellants father Shri. Rupchand Bhikari Koli.

(6) Xerox copy of the school leaving certificate of Shri. Rupchand Bhikari Koli issued by the Head Master, Marathi Mulanchi Shala No.1 Nimbore, Tq. Raver on 29-6-77 where in caste is mentioned as Koli. This document pertains to period 1913.

(7) Xerox copy of the school leaving certificate of appellant's son namely Shri. Kishor issued by Head Master, Marathi Mulanchi Shala, Yawal on 25-04-2001 wherein caste is mentioned as Hindu (Tokare Koli). This document pertains to period 1978.

(8) Xerox copy of the Hon'ble High Court decision in respect Shaligram Dhango Koli regarding issuance of caste certificate.

(9) Xerox copy of the inheritance in respect of Rupchand Bhikari Koli issued by Talathi Nimbora Bk, Tq. Raver on 3501.

(10) Xerox copy of caste certificate of Shri. Subhash Genda Salunke, appeal decision of Shri. Ramchandra Shrawan Koli, affidavit of Shri. Narayan Zipru Sapkale, school leaving certificate and Seema Laxman Mahale.

7. The learned Counsel appearing on behalf of the petitioners also relied on the order of the Apex Court in the matter of Vasant Pandurang Narwade @ Narvde Vs. Subhash & others, in Civil Appeal Nos.4409-4410 of 2001. He submits that it is the duty of respondent No.2 to decide caste/tribe claim of the petitioner,once the appeal is filed before them. He relied on following observations of the Apex Court in this order :-

"We are, however, of the opinion that the Scrutiny Committee did not act fairly and failed to comply with even the basic rules of natural justice. The appellant was called upon to establish his caste but the material produced by him was not considered by the Scrutiny Committee. It is only the validity of the certificate that was considered. The real issue was overlooked by the Committee. The Scrutiny Committee ought to have returned a finding as to whether or not the appellant belonged to 'Kunbi' caste, as claimed by him on the basis of the certificates and other documents produced by him and should not have stopped short of that determination merely by considering whether the earlier certificate was in fact issued by Tahsildar or not".

8. It is admitted fact that the burden of proving that the person belongs to a particular caste, tribe or class lies on the claimant-applicant. This burden can be discharged by the applicant by producing the documents as set out in Rule 11 of the Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of) Caste Certificate Rules, 2003 which include:

(i) Primary School leaving certificate.

(ii) An extract of school admission register.

(iii) An extract of birth register, and also documents in respect of his father :

(i) An extract of birth register.

(ii) Primary school leaving certificate.

(iii) Extract of school admission register.

(iv) Scheduled Tribe Certificate.

(v) If a father is in service, the extract of the pages of the service record (book) which contain religion and tribe entries.

(vi) If a father is illiterate, the primary school leaving certificate of the real elderly blood relatives of the paternal side of the applicant and extract of school admission register and other documents :

(i) Revenue record like, birth register, extract of 7/12, Sale Deed etc.

(ii) Any other relevant documents in support of his Scheduled Tribe claim.

(iii) Affidavits of the near relatives whose Validity Certificates are submitted in support of the Scheduled Tribe claim of the applicant.

9. In the present case, in the school leaving certificates of the petitioner Nos.1 and 2, caste mentioned is "Hindu Koli" and "Hindu Koli (Suryawanshi Koli)". These documents pertain to the period 1913 and 1947 respectively. The Scrutiny Committee though called upon the petitioners to produce any other documents in support of their contention, they failed to do so. The burden of proof is cast on the applicant, who applies for the caste certificate or caste validity certificate as the case may be. The Scrutiny Committee considered all the documents on record and found that the petitioners failed to substantiate their claim and therefore rejected the petitioners appeal. We do not find any fault or illegalities in the consideration of the documentary evidence on record by the Sub-Divisional Magistrate, Bhusawal and Scrutiny Commitee in passing the impugned order rejecting the petitioners application.

10. In support of their contention, the petitioners relied on the order of the Apex Court in the matter of Vasant Pandurang Narwade @ Narvde Vs. Subhash and others (supra), was in respect of the matter in which the Scrutiny Committee, without giving any opportunity to the parties to produce all evidence, passed order and therefore, the Apex Court remanded the matter back to the Committee to decide the issue, after giving opportunity to the parties. In the present case, the petitioner himself admitted and same is recorded in the order also that the Committee issued notice dated 28-12-2001 and 09-01-2002 calling upon the petitioners to submit their say. Pursuant to the such notice, petitioner No.1 on 21-09-2002 filed additional say and documents. They also appeared before the Committee and were heard. Considering all these facts, the order of the Apex Court, relied upon by the petitioners is not applicable to the facts of the present case and as such and it is distinguishable on facts.

11. It may be mentioned that the petitioner challenged the impugned order by preferring Writ Petition No.2012/2003 in this Court, wherein the petitioner claimed following reliefs:-

(A) To hold and declare that the petitioner belongs to "Tokre Koli" Scheduled Tribe.

(B) To quash and set aside the impugned order dated 31-12-2002 invalidating tribe claim of the petitioner passed by the respondent No.2-Committee.

(C) To grant interim stay to the operation, execution and implementation of the impugned order dated 31-12-2002 invalidating tribe claim of the petitioner passed by the respondent No.2-Committee, pending hearing and final disposal of this Petition.

(D) To grant any other relief to which the petitioner is entitled to.

The said Writ Petition was on board before Division Bench on 16-09-2003 and at that time, the following order was passed by this Court.

"Learned Counsel for the petitioner seeks leave to withdraw the petition. Leave granted. Petition is displosed as withdrawn."

Despite the aforesaid order, the petitioners preferred present Writ Petition challenging the same order. Though the impugned order is passed on 31-12-2002 by the Committee, present Writ Petition is filed by the petitioner on 27-06-2007 i.e. after more than five years. There is no explanation in the entire petition for the delay of five years.

12. In view of the above mentioned facts and circumstances, we do not find any substance in the present petition and the same is dismissed, with no order as to costs.

13. Rule discharged.

Petition dismissed.