Shilpa Santosh Salvi v. Pankaj Shobhnath Yadav & Ors.

14. Mr Patil then relies upon the findings of the Supreme Court in various decisions that held that pre-Constitutional entries have a very high probative value in the matter of determination of caste claims.[3] In this case too, he submits, the 1st Respondent’s father had

3 Gayatri Bapurao Nagpure v State of Maharashtra & Ors, (1996) 3 SCC 685; followed in Anand v Committee for Scrutiny and Verification of Tribe Claims & Ors, (2012) 1 SCC 113. produced a school leaving certificate dated 20th February 1952 (a pre-Constitutional entry at page 217 of the paper book) evincing his caste.

15. Mr Patil submits that the Additional Chief Judge of the Small Causes Court at Mumbai by his judgment dated 11th November 2021 dismissed the Election Petition filed by the Petitioner, in which the present Petitioner alleged fraud by the 1st Respondent in obtaining a Caste Certificate. Mr Patil submits that the order has attained finality as the same has never been challenged by the Petitioner. This Petition, Mr Patil submits, is another sidewind and is entirely politically motivated.

16. In view of the above, Mr Patil submits that the contention of the Petitioner has no merit. This Petition, he submits, is yet another attempt to air the grievances against the Petitioner and get him disqualified having lost the election and deserves to be dismissed with costs.

17. We have heard both counsel at length and have considered the record before us.

18. As can be seen from the record, it is amply clear that pursuant to a scrutiny by the 3rd Respondent as directed by this Court by its order dated 15th March 2018. the Deputy Collector Mumbai Suburban has granted a Caste Certificate to the 1st Respondent having considered all relevant material before it and in accordance with law prevalent at that time, viz., Niraj More’s case (supra). We find no perversity or any reason as such to set aside the Caste Certificate.

19. In our view, this Petition is yet another attempt of a disgruntled candidate losing an election to disqualify the 1st Respondent, the successful candidate.

20. It would be pertinent to consider Rule 3 and Rule 5 in their entirety to appreciate the controversy. The same are extracted hereunder for ready reference. “3. Conditions of residence, for issuance of Caste Certificate.— (1) The Competent Authority may issue a Caste Certificate to the applicant who is permanent president of the concerned area on deemed date for which the Competent Authority is designated or appointed, by the government, by notification published under clause (b) of section 2 of the Act, in the Official Gazette. (2) In case of the applicant, who is born after deemed date, the place of ordinary residence for the purpose of issuance of Caste Certificate shall be the place of permanent residence of his father or grandfather or great grandfather. (3) In case of migration within the State of Maharashtra, the applicant shall apply for Caste Certificate to the concerned Competent Authority, within whose jurisdiction therefore fathers are relative were residing.

5. Procedure to be followed by Competent Authority for issuance of Caste Certificate or rejection of application for Caste Certificate.— (1) The Competent Authority may issue Caste Certificate to an applicant who himself or whose father or grand father or great grand father was ordinarily residing within the area of territorial jurisdiction of that Competent Authority on deemed date. (2) In case the applicant or his father or grand father or great grand father was not ordinary resident of any place within the area of jurisdiction of that Competent Authority, temporary residence of applicant for the purpose of service, employment, education or confinement in jail etc. within such area shall not confer jurisdiction on that Competent Authority to issue the Caste Certificate. (3) On receipt of the application in FORM-1, the Competent Authority shall ensure that the applicant has furnished complete information in all respects and shall give the acknowledgement with the date of receipt of the application alongwith the list of documents furnished by the applicant with the application. (4) The Competent Authority shall maintain a register of such applications in FORM- 5. (5) The Competent Authority shall scrutinise the claim of the applicant and shall satisfy himself about the genuineness of the claim. (6) The Competent Authority shall verify the documents with the original documents, and if satisfied about the correctness of the information, documents and evidence furnished by the applicant he shall issue the Caste Certificate to the applicants belonging to Scheduled Caste in FORM-6, to Scheduled Caste converts to Buddhism in FORM-7; to De-notified Tribes (Vimukta Jatis), Nomadic Tribe, Other Backward Classes or Special Backward Category in FORM-8 and to the applicants belonging to Other Backward Class, De-notified Tribes, Nomadic Tribes, Special Backward Category, which have been included in the list of Other Backward Class by the Government of India for this State shall be issued in FORM-9, within forty five days from the date of receipt of the duly completed application. Provided that, if validity certificate of the father in blood relation or real uncle or any other relative of the applicant in blood relation from paternal side granted by the Scrutiny Committee has been submitted by the applicant, the Competent Authority shall issue Caste Certificate without asking for any other documents or proof by considering that validity certificate as an important evidence. (7) The Caste Certificates issued in any other FORM, than in sub-rule (6), shall be treated as null and void. (8) The lists of the applicants to whom the Caste Certificates have been issued or, as the case may be, rejected, during a month, shall be displayed on the notice board of the office of the Competent Authority by the 5th day of the next succeeding month and certificate to that effect shall be recorded in the register. (9) Each such Caste Certificate shall bear,— (a) serial number of the Scheduled Caste as mentioned in the Presidential Order and in case of De-notified Tribe (Vimukta Jatis), Nomadic Tribe, Other Backward Classes or Special Backward Category serial number as mentioned in the Government Resolution amended from time to time; (b) name, designation, signature and official seal of the Competent Authority;

(c) date and place of issuance of such Caste

Certificate. (10) The claim of caste certificate shall be decided by Competent Authority within forty- five days. (11) After considering the evidence produced by the applicant or any other person on his behalf, and the statement of the applicant and after taking into account the material gathered by the Competent Authority, if the Competent Authority is satisfied about the genuineness of the claim, he shall issue the Caste Certificate to the applicant within a period of forty five days from the date of the application after recording reason therefor. (12) After considering the evidence produced by the applicant or any other person on his behalf, and the statement of the applicant and after taking into account the material gathered by the Competent Authority, if the Competent Authority is not satisfied about the genuineness of the claim he may reject the claim of caste certificate of the applicant by stating reasons in his order. The Competent Authority shall give a copy of the order, free of cost, immediately, after passing of the order, to the applicant and obtain an acknowledgement thereof. The Competent Authority shall specifically state, below the operative part of the order, that the applicant has a right to appeal and shall also mention about the Appellate Authority and the period of limitation for appeal.”

21. A plain reading of Rule 3 suggests conditions of residence for issuance of Caste Certificate. While sub rule (1) deals with the applicant who is a permanent resident of a concerned area on the deemed date, sub rule (2) of Rule 3 deals with the applicant born after the deemed date. Then sub rule (3) deals with the applicant who has migrated within the state. Upon reading of Rule 5 it is amply clear that sub rule (1) indicates which competent authority would issue a caste certificate and sub rule (2) indicates which competent authority will not be authorised to issue a caste certificate. The rest of the sub rules are not relevant for the present controversy.

22. It is not in dispute that the 1st Respondent’s place of ordinary residence for the purpose of issuance of Caste Certificate could only be the permanent residence of his father. Admittedly, there was no bifurcation of the Mumbai City on the deemed date. Moreover, the Notification dated 6th February 2010[4] required an applicant to apply for a Caste Certificate to the Competent Authority where he, his father, or his grandfather resided. Therefore, the 1st Respondent had necessarily to apply to the Competent Authority at Mumbai Suburban.

23. If the 1st Respondent was not entitled to apply to the Mumbai Suburban, then that Competent Authority was required in law to have directed the 1st Respondent to apply for such Caste Certificate from Mumbai City. This was not done. The Competent Authority Mumbai Suburban never asked the Petitioner to apply before the Competent Authority at Mumbai City.

24. In Namdeo s/o Bapurao Ingale & Ors v Scheduled Tribe Caste Certificate Scrutiny Committee & Ors,[5] a Division Bench of this Court took a view exactly contrary to the one by the previous Division Bench in 2012 in Niraj More’s case. Namdeo Bapurao Ingale would have been a judgment rendered per incuriam but for the fact that its

4 G R No. CBC. 2009/C R No.727/BCW-5 dated 6th February 2010. 5 2014 SCC OnLine Bom 1872: (2015) 3 Bom CR 374 at page 711: (2015)

2 Mah LJ 707: (2015) 1 AIR Bom R 506. view was the one upheld by the Full Bench in Rajendra Shivram Thakur (supra), which consequently held that Niraj More did not correctly state the law. For this reason, we proceed to consider the Namdeo Bapurao Ingale decision in more detail. The Division Bench analysed the definitions and laid down guidelines for the Caste Scrutiny Committee. The relevant portion is extracted below.

8. The Preamble of the Act shows that it was enacted to provide for the regulation of the issuance and verification of the Caste Certificates. Section 2(a), (b) and (k) reads thus: — “2. In this Act, unless the context otherwise requires, — (a) “Caste Certificate” means the certificate issued by the Competent Authority to an applicant indicating therein the Scheduled Caste, Scheduled Tribe, De-notified Tribe (Vimukta Jatis), Nomadic Tribe, Other Backward Class or Special Backward Category, as the case may be, to which such applicant belongs; (b) “Competent Authority” means an officer or authority authorized by the Government, by notification in the Official Gazette, to issue a Caste Certificate, for such area or for such purposes as may be specified in the said notification and shall include all the Competent Authorities already designated by the Government before the coming into force of this Act, having jurisdiction over the area or place to which the applicant originally belongs, unless specified otherwise; (k) “Scrutiny Committee” means the Committee or committees constituted under sub-section (1) of section 6 for the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category for verification of the Caste Certificate and to perform the function of Scrutiny Committee under this Act.” From above provisions, it is clear that the Caste Certificate has to be issued and the authority doing so is the Competent Authority. The Competent Authority means such authority, and in the instant case, the Sub-Divisional Officer, Malkapur, having jurisdiction over the area or place to which the applicant originally belongs. This clearly shows that a person cannot apply for issuance of a Caste Certificate as per his choice and if he wants a Caste Certificate, he must apply to the concerned competent officer of the area or place to which such applicant originally belongs, means his father, forefathers belong to. Thus, a person, whose forefathers or he himself belong/belongs to a place, namely Malkapur, cannot apply for issuance of a Caste Certificate at a place other than Malkapur and the competent authority must first find out from the applicant as to the place or area where he originally belongs before entertaining the application for issuance of a Caste Certificate. In our opinion, this is one of the criteria or requirement to find out the genuineness of the claim of a candidate or the applicant claiming a Caste Certificate from the competent authority. It is, however, found that merely because father or parents of a student or the applicant are transferred and posted at a place other than to which the applicant or his forefathers belong, the application is made for issuance of a Caste Certificate at such a place of transfer and even the competent authority at such a place to which the applicant does not originally belong, issues a Caste Certificate. In our opinion, that is completely wrong and illegal. And, therefore, we lay down a guideline that when an application is received by Competent Authority for issuance of a Caste Certificate, the first thing, that should be done, is to make enquiry and verify the area or the place to which the applicant or his forefathers originally belong and after finding out the area or the place accordingly, to direct the applicant to go to the appropriate competent authority, as the case may be. We are fortified by the provision of section 4(2) of the Act, since it provides that a Caste Certificate issued by any authority other than the competent authority, shall be invalid, which clearly means that if a Caste Certificate is issued by the competent authority, in this case, other than the Sub-Divisional Officer, Malkapur, the same would be invalid.

25. Thus, in view of the guidelines laid down, the Competent Authority ought to have directed the 1st Respondent to go to the appropriate competent authority.

26. Peculiarly, in this case, though the 1st Respondent was residing in Kamathipura (Mumbai City) on the deemed date 13th October 1967, he was an ordinary resident of Jogeshwari since 1968. Even more peculiar, is the fact that the Competent Authority was only one and the bifurcation into Mumbai City and Mumbai Suburban only took place in the year 1990. The Competent Authority Mumbai Suburban may have taken a decision to issue the certificate considering the complexity. However, the Scrutiny Committee had apparently on the complaints received including that of the Petitioner rejected the application. This was the first round of disputes the Petitioner initiated. This decision was challenged in Writ Petition 144 of 2018 in this Court and the decision was set aside, since no reasons were afforded for cancellation in the order, with a direction to reconsider the matter afresh. This was done. The Scrutiny Committee having considered all matters afresh issued a Caste Certificate in accordance with law and procedure prescribed.

27. The fatal flaw in Mr Anturkar’s argument is to peg everything to the date of birth, despite the fact that at the time of his birth, the two divisions in Mumbai did not exist and the Petitioner was not even entitled to apply for a caste certificate since his caste had then not been notified. Mr Anturkar’s submission entirely overlooks the fact that the Petitioner’s caste was first included in the Backward Classes only on 5th October 1969 — by which time the Petitioner and his family were already permanently settled in Jogeshwari, in suburban Mumbai.

28. A Division Bench in Rajendra v State of Maharashtra & Ors[6] case observed that the Competent Authority was merely doing an administrative act. The specific object of insisting on obtaining a certificate from the Competent Authority of a particular area would be to find out various types of entries in public records of the place to which the candidate or his father, grandfather or forefathers belonged. The object was to find out spurious claims and restrict the social benefits to the persons of genuine cases. It is not the case of the Petitioner that Competent Authority was unable to verify the public records to which either the 1st Respondent or his father belonged.

29. In Kumari Madhuri Patil v Additional Commissioner, Tribal Development[7] the Apex Court observed that in case of migration to town or city, the place from which the candidate/applicant originally hailed from should be visited; the intention being that the vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent. The vigilance officer has to consider the peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of the dead bodies etc., and has to consider the genuineness of the documents produced and the affinity test.

30. In Niraj More’s case (supra), the Division Bench held that a Scrutiny Committee cannot refuse to exercise its power on the ground that the caste certificate produced before it for validation was issued by the competent authority having no territorial jurisdiction to issue the same. This was held not to be good law by the Full Bench in Rajendra Thakur’s case.

31. In 2019, the Full Bench in Rajendra Thakur (supra) reiterated the role of the Scrutiny Committee in paragraph 59 which reads thus:

59. Considering the fact that once the caste certificate is issued and while its validity proceeding is pending before the Scrutiny Committee, the holder of the certificate is protected and enjoys the benefits of the castes some times for too long periods. It is deemed necessary to issue directions to all the Scrutiny Committees that whenever 7 (1994) 6 SCC 241 = 1994 MH LJ Online (SC). any caste/tribe certificate is received by them for validation, the Scrutiny Committee should immediately consider what is the place of residence of the petitioner or his forefathers at the time of presidential order in respect of his castes/tribes and whether the certificate issued is by the Competent Authority of that particular area or not. If it is not so, the scrutiny committee shall immediately direct the applicants to approach appropriate competent authority and should not keep the proposals for validation pending for years together and then record finding that certificate is not issued by the Competent Authority. The State Government shall ensure that these instructions are communicated in writing to all the members of the Scrutiny Committees in the State and duly implemented.

32. Based on this, Mr Anturkar’s submission is that one must go back to the date of the Presidential Order in 1950 even though the Petitioner’s caste was not included as Backward Class until 5th October

1969. Self-evidently, such a submission cannot be accepted.

33. Further, this contention was neither raised before the Competent Authority or the Scrutiny Committee when the 1st Respondent first applied nor when his application was scrutinised afresh by the Scrutiny Committee pursuant to an order of the Court or in the Municipal Election Petition No. 71 of 2017 before the Court of Small Causes Mumbai. The contention is raised for the very first time in this Petition. It is clearly an afterthought.

34. Moreover, the Petitioner has not raised any contention to show that it was self-evident from the form that the 1st Respondent had to apply from Mumbai City and not from Mumbai Suburban. No objection has been raised by the Competent Authority or the 3rd Respondent with regard to the jurisdiction. There are no such particulars sought for in the form nor has the Petitioner drawn our attention to anything clearly evincing such requirement.

35. Consequently, we hold that the Collector, Mumbai Suburban did not lack inherent jurisdiction to validate the 1st Respondent’s caste certificate as belonging to a Backward Class. In fact, the Collector Suburban was the only authority that did have such jurisdiction at the relevant time.

36. Thus, in our view, the Petition has no merit and it is dismissed. Rule is discharged.

37. No order as to costs. (Kamal Khata, J) (G. S. Patel, J)