Karishma Imraan Khan Mujawar v. The State of Maharashtra

2. The Petitioner by way of the present petition challenges the order passed by the Respondent No.2-District Caste Certificate Scrutiny Committee, Kolhapur (hereinafter referred to as ‘Scrutiny Committee’ for the sake of brevity) dated 30th September 2021 whereby claim of the Petitioner is invalidated. Few facts giving rise to the present petition are summarized as follows.

3. Election of Gram Panchayat, Village Rui, Taluka Hatkanangle, District Kolhapur was declared for the tenure of 2021 to 2026. The Petitioner contested the election for the post reserved for OBC women category. The Petitioner was elected from Ward No.1 and necessary certificate dated 18th January 2021 was issued by the Election Officer. Copy of the same is placed on record as Exhibit-B on Page-21of the paper-book. As the Petitioner had contested election as a candidate belonging to reserved category, the claim of the Petitioner was needed to be referred for validation. It seems that apart from these requirements as there was a complaint raised by Respondent No.5 Dipak Sathe, the claim of the Petitioner was submitted to the Committee for validation. In support of the claim the Petitioner submitted certain documents as per the provisions of the Act. On receipt of the claim the Respondent No.2-Scrutiny Committee called for the Vigilance Cell report by conducting the home enquiry. The copy of the Vigilance Cell report was made available to the Petitioner. Notice was also issued on the backdrop of Vigilance Cell report. The Petitioner in response to the notice submitted written submission to the Committee and the Scrutiny Committee on the basis of written submission as well as after hearing the Petitioner invalidated the claim of the Petitioner. The reason assigned for the invalidation was two fold. Firstly, the documents submitted by the Petitioner were post independence era and they were not reflecting clearly that the Petitioner belongs to ‘Kasai’ community. The second ground for invalidation was that only on the basis of the Vigilance Cell report, the Petitioner cannot substantially prove his claim. It is also observed by the Committee that the findings of the Vigilance Cell are not binding on the Scrutiny Committee.

4. Learned Counsel for the Petitioner vehemently submitted that the order passed by the Scrutiny Committee impugned in the Petition is not only mechanical order but it also suffers from non-application of mind. The learned Counsel for the Petitioner vehemently submitted that most of the family members of the Petitioner were illiterate and it is also the generation of the father who was admitted in school. The learned Counsel submitted that in view of these facts, the Petitioner could only submit certain documents of post independence era in support of her claim. It is also submitted by the learned Counsel for the Petitioner that as the Petitioner and her family is professing muslim/mohmedian religion, there is no question of referring to sect or caste in muslim community and resultantly, the documents are also not showing such caste or sect and documents only refer to a religion. The learned Counsel for the Petitioner then submitted that the Vigilance Cell report clearly supports the claim of Petitioner and on erroneous appreciation of this report, the Committee recorded a negative finding. The learned Counsel for the Petitioner submitted that in identical set of circumstances, the Division Bench of this Court was pleased to set aside the order of the Scrutiny Committee invalidated the caste claim and directed the Committee to issue Caste Validity Certificate in favour of Petitioner. Heavy reliance was placed by the learned Counsel for the Petitioner on the Judgment and order of this Court dated 4th February 2021 in Writ Petition No.145/2021 in the matter of Aasiya Mahamadyunnus Gavandi @ Aasiya Usmangani Bujruk. Learned Counsel also placed reliance on the case of Ayaaubkhan Noorkhan Pathan v/s. State of Maharashtra & ors.[1] and judgment and order of this Court in the case of Haseena Babu Sanadi vs. State of Maharashtra in Writ Petition No.12387/2015 dated 4th March 2020.

5. Per contra, the learned AGP supports the order of the Scrutiny Committee. Learned Counsel appearing for Respondent No.5 vehemently opposes the petition. It is the submission of the learned Counsel appearing for Respondent No.5 that the Scrutiny Committee committed no error in recording its two fold findings. Firstly, the document submitted by the Petitioner are not supporting the claim of the Petitioner. The Vigilance Cell report only refers to statement of such witnesses who are Sarpanch and Police Patil of the village. Learned Counsel for Respondent No.5 then submitted that the Vigilance Cell report ought to have been indicative of the fact that the Petitioner was successful in showing the caste. Thus, the Counsel made his submission that the Petitioner in a way failed to prove an affinity test.

6. On hearing the learned Counsel appearing for the respective parties and on perusal of the material placed on record, we are of the 1 (2013) 4 Supreme Court Cases 465 opinion that the Counsel for the Petitioner was justified in making his submission before this Court that the Committee erroneously invalidated the caste claim of the Petitioner. The Scrutiny Committee referred to the documents submitted before it by the Petitioner and list of documents is referred to in the order. Admittedly, these documents are of post independence era. The first document is the caste certificate issued by the Sub-divisional officer, Icchalkaranji and other documents at Sr. No.2 to 6 refer to the religion of the Petitioner as Muslim. Sr. No.2 is the school leaving certificate issued in favour of the Petitioner dated 18th June 2002 and this document refers to the birth date of the Petitioner as 3rd April 1992 and date of admission in the School is 18th June 2002. Then 3rd document is the school leaving certificate of the father of the Petitioner wherein birth date of father of Petitioner is mentioned as 1st June 1963. Then there is the State Government gazette notification dated 28th June to 4th July 2012 which refers to change of name of father of Petitioner. Father of the Petitioner changed his name from Askarali Ismail Hazari to Jahangir Ismail Hazari. Even in this document, reference is made to the religion of the father of the Petitioner. Another document is the death certificate dated 24th August 1995 issued by the Village Development Officer of Village Mauje, Vadgaon and date of death of the grand father of the Petitioner Ismail Hazari is mentioned as 7th August 1995. Then lastly, a document in the form of school leaving certificate issued to the uncle of the Petitioner through Headmaster of Herle High School, Tal. Hatkanangle, Dist. Kolhapur is referred to. In the said school leaving certificate is of 12th June 1972 and date of birth of uncle of Petitioner is shown as 1st June 1958. The Scrutiny Committee in its order refers to this document and records finding that these documents are showing the entry of the religion as Muslim. Then the Scrutiny Committee records a finding that the Petitioner failed to submit document before the deemed date i.e. 13th October 1967 of any revenue entry. Now the failure of Petitioner to submit any document post independence era by itself cannot be a negating factor against the Petitioner. The Scrutiny Committee is expected to assess the material whichever available and it is not the case that the Petitioner made an erroneous statement before the Committee such as though the Petitioner is possessing certain documents of pre-independence era and then failed to submit these documents before the Scrutiny Committee.

7. Then the Scrutiny Committee in his findings observed that the Vigilance Cell report is not of any help to the Petitioner. The copy of the Vigilance Cell report is placed on record. Perusal of the Vigilance Cell report shows that home enquiry was conducted by the Vigilance Cell. It is stated that statements of Kashinath S. Kamble, Sarpanch and Amir Dagadu Hazari, Police Patil were recorded by the Vigilance Cell. The learned Counsel appearing for Respondent No.5 vehemently submitted that these two persons are not the relatives of the Petitioner and their statement cannot be accepted as a material in respect of the Petitioner. The learned Counsel appearing for Respondent No.5 also submitted that the Vigilance Cell Report clearly states that the primary occupation of the Petitioner’s family is agriculture. The Counsel for Respondent No.5 then submitted that in the Vigilance Cell, a statement is made that the family members of the Petitioner carry out the activity of butchering on certain festival occasions. Though the learned Counsel for Respondent No.5 vehemently submitted that the Vigilance Cell report is not supporting the claim of the Petitioner and made his submissions, on Perusal of Vigilance Cell report, we find that submissions of the learned Counsel for Respondent No.5 are based on an incomplete reading of the Vigilance Cell Report. In its report, the Vigilance Cell clearly states that it is not only the two statements of the Sarpanch and Police Patil on which the Vigilance Cell forms its opinion but there are other statements of the witnesses and that it is stated in the Vigilance Cell report that though the father of the Petitioner owns 30 gunthas of the agriculture land, alongwith agriculture, Petitioner’s family carried out the occupation as Kasai. For better appreciation, we refer to the statements of following two witnesses. 1- dkf’kukFk lqczko dkacGs ¼ljiap½ o; o"ksZ 61 2- vfej nxMw gtkjh ¼iksyhl ikVhy½ o; o"ksZ 51 ojhy vuq-Øa-1 e/khy tckc gs iku Øa-87 oj vkgsojhy lk{khnkj gs mesnokj o R;kaps dqaVqach;kauk vksG[krkrmesnokj;kaps oMhy tWagkxhj gtkjh;kapk ikajikfjd O;olk; ‘'ksrh vlqu] ‘'ksrhps {ks= deh vlY;kus rs o R;kaps dqaVqackrhy eqys fg uksdjh o vU; O;olk; djhr vkgsr- tWagkxhj gtkjh gs tkrhus dlkbZ vlwu] R;kapk,d eqyxk lqjt gk xkokrhyp Jh- lyhe gtkjh;kaps fpduP;k nqdkukr dlkbZ Eg.kwu etqjhl vkgs- gtkjh dqaVqach; gs xkokrhy t=k rlsp fofo/k /kkfeZd dk;ZØekae/;s cksdM] dksacM;k dki.;kps dke djrkrxkokrhy gtjr ohj pkWancq[kkjh lkgsc gs R;kaps nsoLFkku vkgs- R;kaps jksVhcsVhps O;ogkj ckjxhj] eqyk.kh] teknkj] eqtkoj;k dqaVqackr gksrkr- rj e`R;wuarj nQufo/kh dsys tkr vlysckcr tckckr lkafxrys vkgsojhy vuq-Øa-2 e/khy tckc gs iku Øa-89 oj vkgsojhy lk{khnkj gs mesnokj o R;kaps dqaVqach;kauk tUekiklqu vksG[krkr- tWagkxhj gtkjh;kaps dqaVqach; ekÖ;k Hkkodhrhyp vkgs- ek= vkepk cqM[kk osxGk vkgsxkokrhy gtkjh dqaVqac gh tkrhus dlkbZ vkgsr- JhtWagkxhj gtkjh;kaP;k ekydhph xkokr lk/kkj.k 30 xqaBs ’ksrh vkgs- ek= ’ksrh cjkscjp dlkbZ O;olk; gk ns[khy R;kapk izeq[k O;olk; vkgs- xkokrhy t=k] fofo/k /kkfeZd dk;ZØekae/;s cksdM] dksacM;k dki.;kps dke gtkjh dqaVqach; djrkr- R;kaps jksVh csVhps O;ogkj ckjxhj] eqyk.kh] teknkj] eqtkoj;kapse/;s dsys tkrkr- xkokrhy gtjr ohj pkWancq[kkjh lkgsc gs R;kaps nsoLFkku vkgs- rj e`R;wuarj nQufo/kh dsys tkr vlysckcr tckckr lkafxrys vkgs- Thus, the statements will have to be read in its composite form. Then in the Summary, Divisional Cell reiterates that in the enquiry with the residents of the village, it revealed that the family of the Petitioner is carrying out the occupation of Kasai alongwith the agriculture activities. True it is that the Scrutiny Committee in its order observed that the findings of the Vigilance Cell are not binding on the Scrutiny Committee. The Counsel for the Petitioner is justified in submitting before this Court that in similar set of circumstances, this Court was pleased to set aside the order of Scrutiny Committee. Reliance was placed on the judgment and order of the Division Bench in the matter of Aasiya Gavandi (supra). In the matter of Aasiya also the Petitioner in support of her claim submitted the documents which were of post independence era and the Vigilance Cell report was in support of the Petitioner. The Vigilance Cell recorded no negative finding insofar as the genuineness of documents is concerned. In the matter of Aasiya Gavandi, the Petitioner claimed that she belongs to ‘Momin’ community. On the backdrop of these facts, the Division Bench was pleased to observe as follows: “7. We have gone through the Vigilance Cell report dated 6th June, 2020. It is pertinent to note that during Vigilance inquiry, the genuineness of all these documents were investigated and they were found to be correct. During Home Study inquiry, the statements of two persons were recorded from which it was found that Petitioner’s forefathers were carrying on weaving business and they belong to Momin caste. In other words, in local inquiry the Vigilance Cell found that the Petitioner’s forefathers’ traditional occupation was weaving and they were known and recognised as members of Momin caste. Contextually, it is to be noted that the Scrutiny Committee has simply observed that it does not agree with the report of the Vigilance Cell. It is pertinent to note that no reasons were assigned by the Respondent No. 1 Committee to indicate as to why they are unable to agree with the Vigilance Cell report. True, the Vigilance report cannot be held as a decisive factor. However, in the above context and as parties are Muslims, unless contrary is shown, the Committee ought to have given proper weightage to the Vigilance report. It is not the case that during Vigilance inquiry it was found that either documents were tainted or they have collected some adverse documents to disprove the Petitioner’s claim.

8. The Petitioner’s learned counsel to substantiate his stand that Vigilance Cell report has to be weighed properly, has placed reliance on the decision of this Court in the case of Shahjahur Momin Vs. State of Maharashtra & Ors. in Writ Petition No. 8687 of 2015, dated 26th February, 2019. In the said case also, this Court has taken into account that in Muslim community, there is no practice of mentioning caste and in that context insistence for pre-constitutional documents is improper. Moreover, this Court has emphasised that in such a background proper weightage has to be given to the Vigilance Cell report.” In the present petition also though the Committee made observation that Vigilance Cell report findings are not binding on the Committee, the Scrutiny Committee failed to assign any reason as to why the findings of Vigilance Cell should be discarded. Secondly, the Committee failed to appreciate the Vigilance Cell report in its proper perspective and seems to be swayed away with only one fact that the documents submitted by the Petitioner are of post independence era. It may not be out of place to refer to certain observations of the Division Bench in the matter of Hasina Sanadi. In the matter of Hasina Sanadi also the Scrutiny Committee while negating the claim of the Petitioner assigned two reasons. Firstly, the documents are of post independence era and secondly, the Vigilance Cell report is not binding on the Scrutiny Committee. The Division Bench of this Court found that the approach of the Scrutiny Committee was not proper and the matter was remitted back to the Scrutiny Committee. In the present matter also learned Counsel for Respondent No.5 submitted before this Court for remand of the matter back to the Scrutiny Committee. The Respondent No.5 admittedly did not contest the election of Gram Panchayat and only submitted a complaint to the Scrutiny Committee.

8. Apart from this fact, considering the order of the Division Bench in the matter of Asia Gavandi we see no reason for remitting the matter back to the Scrutiny Committee as we are of the opinion that the Scrutiny Committee on a mechanical appreciation of the Vigilance Cell Report, rejected the claim of the Petitioner and the Vigilance Cell Report was clearly supporting the case of the Petitioner. The Committee also erred in keeping the document out of consideration only on the ground that documents were of post independence era.

9. Resultantly, the Petition is allowed. The order passed by the Scrutiny Committee dated 30th September 2021 is quashed and set aside. It is declared that the Petitioner belongs to Muslim Kasai community which is OBC. Respondent No.2-Scrutiny Committee is directed to issue caste validity Certificate to the Petitioner within six weeks from the date of receipt of order of this Court.

10. Rule is made absolute in the above terms. (SHRIKANT D. KULKARNI, J) (PRASANNA B. VARALE,J) L.S. Panjwani, P.S.