Partly allowed

Kacharu Hiralal Bahure v. the State of Mah and Ors.

Bombay HC4 Sept 2013WP/592/2013

Case brief

AI extract

What is this about?

This writ petition challenges an order rejecting the petitioner's SC/ST/OBC caste certificate application. The High Court held the Scrutiny Committee failed to apply anthropological traits and the affinity test mandated by Apex Court precedent and remitted the matter for fresh consideration.

What did the court decide?

Impugned order dated 29.12.2012 was quashed and set aside; matter remitted to Scrutiny Committee for fresh decision within 8 months.

Kacharu Hiralal Bahure Vs the State of Mah… — Pension and Retirement Benefits | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 592 OF 2013

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Kacharu s/o. Hiralal Bahure Age 58 years, Occ. Agriculture, R/o. Nihalsing Wadi, Tq. Ambad, Dist. Jalna.

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.. PETITIONER/S

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VERSUS

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1] The State of Maharashtra through Principal Secretary, Social Justice Department, Mantralaya, Mumbai- 400 32.

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2] Divisional Caste Scrutiny Committee No.1 Aurangabad Division, Aurangabad.

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3] The Maharashtra State Election Commission, Mumbai.

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4] The Collector, Jalna.

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5] The Tahsildar, Ambad

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.. RESPONDENT/S

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Mr. P.R. Patil, Advocate h/f. Mr. D.K. Rajput , Advocate for petitioner.

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Mr. S.T. Tambe , AGP for respondent Nos.1 ,2, 4 and 5. Mr. S.T. Shelke, Advocate for respondent No.3.

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CORAM :- B.P. DHARMADHIKARI & RAVINDRA V. GHUGE, JJ.

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DATE :- 4TH SEPTEMBER, 2013.

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JUDGMENT [ PER B.P. DHARMADHIKARI, J] :-

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1] Rule. Rule made returnable forthwith. Heard finally by consent of parties.

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2] Advocate Shri Patil for the petitioner submits that the impugned order dated 29.12.2012 passed by the respondent No.2 committee is unsustainable inasmuch as, it overlooks the inclusion of Pardesh Bhamta or Pardeshi Bhamti, as part of Rajput Bhamta Vimukta Jatis, by the State of Maharashtra. He further contends that Vigilance Cell Report, dated 4.10.2011, is in favour of the petitioner. Petitioner also claims validity to one of his relatives on paternal side, namely, Harisingh Dhyansingh Bahure, with affidavit of that person and the same has not been properly dealt with. Lastly, by placing reliance on the judgment of the Apex Court in the case of “ Anand Vs. Committee for Scrutiny” reported in (2012) 1 SCC 113 , para,18, learned counsel for petitioner submits that affinity test ought to have been applied.

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3] Learned AGP appearing for the respondent Nos. 1,2,4 and 5, is strongly opposing the petition. He contends that the old documents show caste recorded as “Pardeshi” and family tree submitted by the petitioner does not include Harisingh as relative. Section 8 of the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis) Nomadic Tribes, Other Backward Castes and Special Backward Category (Regulation of Issuance and Verification of ) Caste Certificate Act, 2000 (Act No.XXIII of 2001) places burden upon the petitioner, to prove his caste claim. Hence, old documents have been found to be decisive and caste claim has been rightly rejected.

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4] During hearing, we gathered that the petitioner wanted validity for contesting the elections. Because of the impugned order, he is already removed from the post of Sarpanch. This court has not passed any interim orders.

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5] Perusal of the judgment of the Honourable Apex Court in the case of Anand (supra) reveals that the Scrutiny Committee has to independently apply its mind qua the documents, as also apply anthropological trait, customs and rights and before taking any decision about the caste claim it is not that only documents can be relied upon or then, the affinity test is decisive.

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6] The petitioner has produced validity certificate issued by the committee to one Harisingh. His claim is that, Harisingh is his relative on the paternal side. Harisingh has also affirmed this factor by submitting an affidavit. In this situation, the said validity needed appropriate consideration.

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7] Mere inclusion on the part of the petitioner to include Harisingh as a relative on paternal side can not be fatal if otherwise relationship with Harisingh is established. Perusal of the Vigilance Cell Report dated 4.10.2011 does not reveal any adverse finding against the petitioner as in 3 old documents, caste is reported as Pardeshi. In absence of such adverse finding, a proper show cause notice needed to be issued to the present petitioner. Show cause notice served upon the petitioner on 9.7.2012 refers to two aspects and does not call upon him to explain why caste Pardeshi has been mentioned in old documents. Whether this omission is inadvertent, or then, there is no omission is a debatable issue.

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8] The State of Maharashtra appears to have noted that Pardeshi Bhamta or Bhamti are also entitled to be treated as part of Rajput Bhamta caste. If this impression is correct, the scrutiny committee appears to be justified in not extending an opportunity to the petitioner to explain, as to why in old documents, caste Pardeshi was recorded. If our conclusion drawn on these lines is incorrect, it was necessary for the Scrutiny Committee to expressly call upon the petitioner to explain as to why different caste is recorded in old documents.

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9] In any case, in the light of the judgment of the Apex court, it was also essential for the committee to note anthropological traits, customs and rights in the family. That exercise is absent.

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10] We, therefore, quash and set aside the impugned order dated 29.12.2012. The matter is remitted back to the Scrutiny Committee for taking fresh decision. The petitioner is directed to appear before the respondent No.2 committee on 21^st October, 2013 and abide by its further instructions in the matter. The committee shall decide the caste claim of the petitioner, in accordance with law, as expeditiously as possible and in any case within a further period of 8 months.

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11] Writ petition is partly allowed and disposed of. Rule made absolute accordingly. No costs.

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[RAVINDRA V. GHUGE,J] [B.P. DHARMADHIKARI,J]

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grt/-.

Kacharu Hiralal Bahure v. the State of Mah and Ors.

Case brief

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Kacharu Hiralal Bahure v. the State of Mah and Ors.

Case brief

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