Allowed

Farha Ashfaqali Shaha v. the Member Secretary and Research Officer, Caste Certificate Scrutiny Committee, Nashik Div. and or

Bombay HC16 Aug 2019WP/2613/2019

Case brief

AI extract

What is this about?

In a writ petition challenging a caste certificate used to contest municipal elections, the High Court dismissed an adjournment request. The court directed the Scrutiny Committee to re-enquire into alleged fraud and misrepresentation regarding the candidate's eligibility within three months, allowing the petition in these terms.

What did the court decide?

Directing the Scrutiny Committee to enquire into allegations of fraud and misrepresentation by the 3rd respondent and pass appropriate orders within three months.

Farha Ashfaqali Shaha Vs the Member Secretary and Research… — Election Law | Bombay HC (2019)

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904-ASWP2613-19.DOC

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Atul

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2613 OF 2019

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Farha Ashfaqali Shaha
Versus

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...Petitioner

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The Member Secretary & Research Officer, Caste...Respondent
Certificate Scrutiny Committee

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Mr SG Kudle, for the Petitioner.
MrBV Samant, AGP, for Respondents Nos. 1 & 2.
Mr Tejesh Dande, with Bharat Gadhavi, i/b Tejesh Dande &
Associates, for Respondent No. 3.

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CORAM:S. C. DHARMADHIKARI &
G.S. PATEL, JJ
DATED:16th August 2019

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PC:-

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1.When this matter was placed for passing final orders, Mr
Dande appears and says that he is representing the 3rd respondent.
He is filing his vakalatnama on her behalf. There is no doubt in our
mind that this respondent is duly served.

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2.There is a report of the bailiff attached to the competent
Court. When the notice issued by this Court was despatched to the
competent Court that Court assigned the task to the bailiff attached
to that Court to go and effect service of this Court’s notice. The
bailiff has not only visited the residential premises but has endorsed

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904-ASWP2613-19.DOC

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at the back of this Court’s notice that he personally visited the site.
When he visited and identified himself, the 3rd respondent was
present in the house. She has not only accepted notice but endorsed
her signature on the same. The acknowledgement is also hers and
we have satisfied ourselves from the original record that this service
is indeed in accordance with law.

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3.Mr Dande, therefore, could not have been instructed to say
that the 3rd respondent is not served and that he has been informed
on telephone by her that she came to know from the opponent/
petitioner before us about the pendency of this petition and that it is
placed today. Further we find that the petitioner has also served this
3rd respondent independently. The packet was delivered by speed
post. The endorsement on the on-line tracking report of the Postal
and Telegraph Department that this item/packet is delivered.

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4.We are, therefore, not adjourning the matter. We refuse the
request for adjournment. We have heard both sides.

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5. The writ petition is disposed of finally by this order.

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6.The petitioner before us is an Indian citizen and residing at
the address mentioned in the cause title whereas the 1st respondent
is Caste Certificate Scrutiny Committee, Nashik Division, Nashik.
The 2nd respondent is the State through the Urban Development
Department and the 3rd respondent before us is equally an Indian
citizen. She is a candidate from Ward No. 30A. She has been
successful at the Ward Election. The petitioner is her opponent.

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904-ASWP2613-19.DOC

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7.The elections were held in the year 2014-2015 but later on the
petitioner discovered that the 3rd respondent could never have
contested the reserved seat. She has procured the caste certificate by
misrepresentation. The glaring defects in the application made and
the certificate granted are pointed out from paragraphs 3 to 9 of this
writ petition. It is stated that there was a re-enquiry. But the re-
enquiry report of 6th March 2018 submitted on 9th March 2018
before the Committee was sought to be contested by the petitioner.
The petitioner/complainant points out that written arguments were
filed to show that the re-enquiry report is also unsatisfactory. The
petitioner pointed out that there are few entries of ancestors in the
genealogy but they were also not correct. The vigilance cell has
made vigilance enquiry but the petitioner challenged the same by
pointing out that the father of respondent No. 3 is stated to be one
Abdul Aziz Nazir Ahmad. The age of the father is shown 60 years.
The age of the sister of respondent No. 3 is 47 years and the age of
respondent No. 3 is 45 years. The person shown as father cannot be
the father of respondent No. 3 as the age difference between them is
only 15 years and the age difference between the sister of the
petitioner and her father is 13 years. It is in these circumstances that
Mr Kudle would submit that uncontroverted factual position
denotes that the certificate of validity was obtained on a bogus and
false caste certificate. The caste certificate could not have been
issued at all once there is no preliminary satisfaction. Apart
therefrom the scrutiny and verification by the Committee is
superfcal and perfunctory. The Committee has never delved deepi
into the matter by examining whether the details pertaining to the
members of the family are either vitiated by misrepresentation or
there is a systematic attempt to project some people as family

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904-ASWP2613-19.DOC

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members though these are not. They could not have been and
logically the father or parent of the 3rd respondent is the argument
of Mr Kudle.

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8.We have found that the 1st respondent-Committee has been
duly served and equally the State. There is no denial of the
assertions in the writ petition. Even the 3rd respondent has not,
despite receipt of the notice from this Court, taken steps to
controvert the factual allegations.

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9.If the Scrutiny Committee is indeed misled in to issuing the
Caste Validity Certificate enabling the respondent No. 3 to contest
the municipal elections form Ward No. 30A of the Thane Municipal
Corporation, then, this is a very serious matter. None can be a
benefcary of fraud or intentional misrepresentation of facts. Ai
product of such fraud stands vitiated from inception. Then the
election would have to go.

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10.Under these circumstances, we direct the Scrutiny
Committee to enquire into the serious allegations of fraud and
misrepresentation of facts by the 3rd respondent. The Scrutiny
Committee shall give an opportunity to both the petitioner as also
the 3rd respondent and pass appropriate orders in accordance with
law.

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11.It is no good saying that the Scrutiny Committee cannot
review its order. This is not a case of review but a request to recall
an order which is a product of fraud or misrepresentation of facts.

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Page 4 of 5 16th August 2019

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904-ASWP2613-19.DOC

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Surely such a power is inherent in the power to decide or adjudicate
a dispute and pass an order. If the initial order is a product of fraud,
then, equally there is a power to recall such order. Therefore, the
Scrutiny Committee shall not allow the parties to raise any technical
issues on its competence and jurisdiction to verify the complaint and
pass an order.

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12.The Committee while passing a fresh order, in pursuance of
our directions, should not be influenced by any findings and
observations in the impugned order.

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13.We clarify that we have not expressed any opinion on the rival
contentions.

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14.The Committee shall carry out the above exercise within a
period of three months from the date the parties first appear before
it.

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15.The writ petition is allowed in these terms.

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(S. C. DHARMADHIKARI, J)

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(G. S. PATEL, J)

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Page 5 of 5 16th August 2019

Farha Ashfaqali Shaha v. the Member Secretary and Research Officer, Caste Certificate Scrutiny Committee, Nashik Div. and or

Case brief

What is this about?

What did the court decide?

Farha Ashfaqali Shaha v. the Member Secretary and Research Officer, Caste Certificate Scrutiny Committee, Nashik Div. and or

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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