Full Judgment Text
:1:
2006:BHC-AS:23760-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3989 OF 2005 WRIT PETITION NO. 3989 OF 2005 WRIT PETITION NO. 3989 OF 2005
1. Sagiruddin Israiluddin ]
Mistry ]
Age about 65 years, Occ: ]
Blacksmith, R/o. Nav Bharat ]
Co-op. Hsg. Soc., Wireless ]
Road, Juhu Lane, Andheri (W) ]
Mumbai 400 058 ]
2. Mrs. Shaheen Ara Salim Baig ]
Age about 34 years, Occ: ]
Corporator, R/o. Baig Manzil ]
Gulmohar Road No.7, Opp: ]
Wazida House, Andheri (W), ]
Mumbai 400 058 ]..Petitioners
versus
1. The State of Maharashtra ]
through its Secretary, ]
Social Justice & Cultural ]
Department, Mantralaya, ]
Mumbai 400 032 ]
2. Divisional Caste Certificate ]
Scrutiny Committee, ]
through its Member Secretary ]
Pune Division, Pune, having ]
its office at Sugandha ]
Chambers, Pangul Lane, ]
Ganesh Peth, Pune ]
3. Divisional Caste Certificate ]
Scrutiny Committee, Konkan ]
Division, Mumbai, having its ]
office at Konkan Bhavan, ]
5th floor, C.B.D. Belapur ]
Navi Mumbai ]
4. Municipal Corporation of ]
Greater Mumbai, through its ]
Commissioner, having its ]
office at Mahapalika Marg, ]
Mumbai 400 001 ]
5. Bharati Balkrishna Dhongade ]
Age adult, R/o. Old Ashok Kunj]
::: Downloaded on - 01/04/2024 15:46:47 :::
:2:
V. S. Khandekar Marg, ]
Vile Parle(E), Mumbai 400057 ]
6. Tahasildar & Executive ]
Magistrate, North Solapur ]
District : Solapur ]
7. The Deputy Collector, ]
Mumbai Suburban District, ]
Bandra (E), Mumbai ]..Respondents
Mr. Y. S. Jahagirdar, Sr. Counsel with Mr. R.
K. Mendadkar for the Petitioners.
Mr. R. V. Govilkar for the Respondent No.5.
Mr. A. J. Bhor with Ms. N. Dabhade for the
Respondent No.4.
CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, &
Smt. R. S. DALVI, JJ. Smt. R. S. DALVI, JJ. Smt. R. S. DALVI, JJ.
DATE : 15TH DECEMBER, 2006 DATE : 15TH DECEMBER, 2006 DATE : 15TH DECEMBER, 2006
ORAL JUDGMENT : (Per : D. G. Deshpande, J) : ORAL JUDGMENT : (Per : D. G. Deshpande, J) : ORAL JUDGMENT : (Per : D. G. Deshpande, J) :
1. Heard Mr. Mendadkar for the Petitioners.
Mr. R. V. Govilkar for the Respondent No.5 - who
is main contesting respondent.
2. By this petition, the petitioners have
challenged the impugned order dated 10th June 2005
passed by the Respondent No.2 i.e. Divisional Caste
Certificate Scrutiny Committee, Pune, Exhibit ’A’ to
the petition. They have also further prayed to
::: Downloaded on - 01/04/2024 15:46:47 :::
:3:
prohibit Respondent Nos. 3 and 4 in relying upon
the impugned order dated 10th June, 2005 and further
claim declaration that the caste certificate dated
20th November, 1991 issued to the Petitioner No.1 by
the respondent No. 6 Tahsildar & Executive
Magistrate, North Solapur, District Solapur, be
declared valid, legal and subsisting.
3. This petition which is filed on 5.6.2005
came for hearing earlier before the Division Bench
on 21.6.2005, on that day ad interim stay was
granted and it was adjourned to 23.6.2005. Then on
23.6.2005 Rule was issued and hearing was expedited
and interim stay in terms of prayers (e) and (f) was
granted. Then before the another Division Bench on
16.6.2006 grievance was made that even though the
petition is expedited it has not been heard so far,
and, therefore, application was taken out by the
respondent No.5 for fixing the date of hearing.
Division Bench directed that the matter should be
placed high on board on 20.11.2006. Matter did not
appear on that day, and, therefore, again on
4.12.2006 the respondent No.5 moved this court for
fixing the date of hearing because the municipal
elections were to be held in the near future.
::: Downloaded on - 01/04/2024 15:46:47 :::
:4:
Accordingly, we fixed the date of hearing on
7.12.2006 (as the next municipal elections are now
declared to be held in the near future i.e.
February, 2007). The matter was heard on that day
and it was posted on 12.12.2006 for judgment at 3
p.m. Our judgment was ready to be delivered on
12.12.2006 at 3.00 p.m. However, an attempt was
made to see that we do not deliver the judgment and
the matter is posted for hearing after vacation and
if this attempt was successful then the petitioner
No.2 would have continued as Corporator of the BMC
till the next elections. We have taken note of that
development and passed separate order today i.e. on
15.12.2006, before pronouncing this Judgment.
4. There are two petitioners in this petition.
Petitioner No.2 is the daughter of petitioner No.1.
Petitioner No. 2 is declared as an elected member /
Corporater from the Constituency reserved for Ward
No. 108 of BMC. It was the Ward reserved for OBC
ladies for the general election of BMC. Petitioner
No.2 filed a nomination under the reserved category
of OBC ladies. Two other ladies Smt. Smt. Geeta
Laxman Gore, not a party to this petition and
Respondent No.5 - Bharati Dhongade filed nomination
::: Downloaded on - 01/04/2024 15:46:47 :::
:5:
from the said Ward under the reserved category of
OBC. During the election Smt. Geeta Laxman Gore
was elected from that Ward. Petitioner No.2 has the
second highest vote and respondent No.5 had the
third highest vote. Petitioner No.2 filed Election
Petition before the Small Causes Court, Mumbai,
challenging the election of Smt. Geeta Gore. In
the meantime the respondent No.2 had invalidated the
caste certificate issued to Smt. Geeta Gore. She
therefore approached this Court but this Court
declined to interfere with the order passed by the
Respondent No.3 against the said Smt. Geeta Gore.
Then, petitioner No.2 took out application for
declaration that she be declared as an elected
candidate from Ward No. 108 under the provisions of
the Mumbai Municipal Corporation Act.
5. In the meantime, on 28.10.2002 respondent
No. 5 made complaint to respondent No.2 about the
caste certificate dated 28.12.2001 issued to
Petitioner No.2 on the basis of the caste
certificate issued to the petitioner No.1 on
20.11.1991. Therefore, respondent No. 2 issued
letters to the petitioners to submit applications
and documents for verification of caste certificate.
::: Downloaded on - 01/04/2024 15:46:47 :::
:6:
Petitioners accordingly submitted number of
documents to the respondent No.2. Enquiry was made
by the respondent No.2.
6. On 8.3.2004 Respondent No.2 passed an order
invalidating the caste certificate of the petitioner
No.1. Petitioners thereafter filed Writ Petition
No. 3505 of 2004 before this Court and the Division
Bench remanded the matter back to the respondent
No.2. The petitioners appeared before the Committee
again submitted documents, made submissions.
Vigilance cell submitted his written enquiry report
dated 14.7.2003. The respondent No.2 then passed an
order on 6.12.2004 against the petitioners, which
was received by the petitioners by post on
9.12.2004.
7. Thereafter, the petitioners again challenged
the said order dated 6.12.2004 by filing Writ
Petition No. 9984 of 2004 and the Division Bench on
3.3.2005 remanded the matter with the following
observations:
"3. It may be pertinent to mention that the "3. It may be pertinent to mention that the "3. It may be pertinent to mention that the
::: Downloaded on - 01/04/2024 15:46:47 :::
:7:
vigilance report was earlier submitted by
vigilance report was earlier submitted by vigilance report was earlier submitted by
one Mr. Mahesh M. Joshi. In that report, one Mr. Mahesh M. Joshi. In that report, one Mr. Mahesh M. Joshi. In that report,
he has not examined the Tahsildar, North he has not examined the Tahsildar, North he has not examined the Tahsildar, North
Solapur, P. T. Bhandari. Solapur, P. T. Bhandari. Solapur, P. T. Bhandari.
"4. In our considered opinion, it would be "4. In our considered opinion, it would be "4. In our considered opinion, it would be
appropriate to examine both the Tahsildars appropriate to examine both the Tahsildars appropriate to examine both the Tahsildars
referred to in the original report, referred to in the original report, referred to in the original report,
reconsider the entire case and submit the reconsider the entire case and submit the
reconsider the entire case and submit the
report to this court as expeditiously as report to this court as expeditiously as report to this court as expeditiously as
possible, and in any event, within two possible, and in any event, within two possible, and in any event, within two
months from the date of receipt of this months from the date of receipt of this months from the date of receipt of this
order. The concerned parties are directed order. The concerned parties are directed order. The concerned parties are directed
to appear before the Committee on 14th to appear before the Committee on 14th to appear before the Committee on 14th
March, 2005 at 11 a.m." March, 2005 at 11 a.m." March, 2005 at 11 a.m."
8. Thereafter, the petitioners appeared before
the Committee. The Tahsildar was examined and
cross-examined and then the committee passed its
order on 10.6.2005. It is this order dated
10.6.2005 which has been challenged in this petition
and prayers of the petitioners are in respect of
that order only. The said order dated 10.6.2005 is
at Exhibit ’A’ of the petition.
9. Counsel for the petitioners contended that
the petitioners had submitted number of documents in
support of their contentions that they belong to
Lohar Caste Community coming under the category of
OBC but they were not considered by the committee in
the impugned order. The documents so relied upon by
::: Downloaded on - 01/04/2024 15:46:47 :::
:8:
the petitioners are :
1. School leaving Certificate dated
4.1.2003.
2. Caste Certificate dated 20.11.1991
issued by the Tahsildar, North Solapur.
3. Certificate of Talathi dated 18.12.2001.
4. Certificate dated 16.11.2001 issued by
All India Muslim Organisation.
5. Certificate dated 15.11.2001 issued by
the Solapur City and District Lohar Ghisadi
Multipurpose Social Service, Solapur.
6. Application dated 21.6.1974 made by the
Petitioner No.1 to the Ward Officer, K-West
Ward of BMC to grant permission to carry on
occupation of Lohar.
7. Permission dated 3.10.1974 granted by
the Ward Officer, ’K’ West Ward of BMC.
8. Letter of the Ward Officer, BMC dated
29.7.1971.
9. Order dated 16.12.1972 addressed to the
brother of the petitioner No.1 by the Ward
Officer, K Ward, BMC.
10. Notice dated 25.5.1986 issued by the
Tahsildar dated 25.5.1986.
11. Marriage certificate of the petitioner
No.2.
12. Certificate dated 29.4.2003 issued by
the Secretary of Co-operative Housing
Society Ltd.
13. Affidavit dated 13.5.2003 along with
genealogy tree of the family of the
petitioners.
14. Affidavit dated 4.8.2003 of Pandurang
Tatyaba Bhandari confirming the issuance of
::: Downloaded on - 01/04/2024 15:46:47 :::
:9:
certificate dated 20.11.1991.
15. Photographs, and
16. Agreement dated 25.9.1958 about the
place of business where the black smith
business is carried on.
10. Counsel for the petitioners also contended
that when the Tahsildar North, Solapur, filed an
application to the effect that he has issued
certificate of caste dated 20.11.1991 to the
petitioners, then it should have been accepted by
the committee as a final proof as a caste of the
petitioners. Counsel for the petitioners also
contended that in the impugned order the respondent
No.2 has not taken into consideration documents,
circulars and various Government Resolutions.
11. On the other hand, counsel for the
Respondent No.5 contended that out of the documents
relied upon by the petitioners in support of their
caste claim and the documents referred to above,
most of them were of recent origin and could not be
taken as a proof of the caste of the petitioners.
Only document that was of some importance was the
caste certificate dated 20.11.1991 issued by
Tahsildar, North, Solapur but since the Committee
::: Downloaded on - 01/04/2024 15:46:47 :::
:10:
after order of remand by this Court in the second
writ petition examined the Tahsildar and also
scrutinised the other evidence produced and had come
to the conclusions which are all against the
petitioners. There is absolutely no necessity to
intervene with the impugned order. He also
contended that none of the Government Resolutions
help the petitioners in the sense that they do not
dispense with the proof, that is, required very
proof for proving the claim.
12. Since the caste certificate issued by the
Tahsildar, North, Solapur on 20.11.1991 (page 77 of
the petition) is important, it is reproduced as
under, by us.
"This is to certify that Smt. Mistri "This is to certify that Smt. Mistri "This is to certify that Smt. Mistri
Sagiruddin Israiluddin Residence of Solapur Sagiruddin Israiluddin Residence of Solapur Sagiruddin Israiluddin Residence of Solapur
belong to Lohar (O.B.C.92) Caste / Tribe belong to Lohar (O.B.C.92) Caste / Tribe
belong to Lohar (O.B.C.92) Caste / Tribe
Community which is recognized as Other Community which is recognized as Other Community which is recognized as Other
Backward community under the Scheduled Caste Backward community under the Scheduled Caste Backward community under the Scheduled Caste
and Scheduled Tribes Amendment Act, 1976. and Scheduled Tribes Amendment Act, 1976. and Scheduled Tribes Amendment Act, 1976.
Government of Maharashtra’s Resolution No. Government of Maharashtra’s Resolution No. Government of Maharashtra’s Resolution No.
Education and Welfare Departmnet, O.B.C. Education and Welfare Departmnet, O.B.C. Education and Welfare Departmnet, O.B.C.
1467 dated 13.10.1967. 1467 dated 13.10.1967. 1467 dated 13.10.1967.
Smt. Mistri S.S. her family resides in the Smt. Mistri S.S. her family resides in the Smt. Mistri S.S. her family resides in the
Town Solapur Tahasil North Solapur in the Town Solapur Tahasil North Solapur in the Town Solapur Tahasil North Solapur in the
State of Maharashtra State of Maharashtra State of Maharashtra
NO. MAG-CASTE-SR.367. NO. MAG-CASTE-SR.367. NO. MAG-CASTE-SR.367.
Solapur 20.11.1991 Solapur 20.11.1991 Solapur 20.11.1991
::: Downloaded on - 01/04/2024 15:46:47 :::
:11:
sd/- sd/- sd/-
Tahsildar & Executive Tahsildar & Executive Tahsildar & Executive
Magistrate, North Solapur" Magistrate, North Solapur" Magistrate, North Solapur"
13. Documents which were relied upon by the
Tahsildar while issuing this caste certificate are
referred in the certificate,itself, they are:
1. School Leaving Certificate of Applicant.
2. Extract issued by the Head Master of
S.M.C. School No. 10, Solapur.
3. Affidavit Declaration executed by the
Applicant on 14.11.1991 before Executive
Magistrate, North Solapur.
4. Community Certificate of the Applicants
issued by President Lohar Samaj, Solapur.
14. It is necessary to see and find out at this
juncture what the respondent No.2 committee found in
their enquiry in respect of this caste certificate
of 20.11.1991. It is necessary to note here that
this enquiry is pursuant to the directions, given by
this court in second writ petition, dt. 3.3.2005.
In the impugned order the Committee has written that
Ex Tahsildar P.T. Bhandari who has issued
certificate and who has given certificate in support
of the petitioners and the then Tahsildar R.G. Mane
were examined and cross-examined before the
::: Downloaded on - 01/04/2024 15:46:47 :::
:12:
committee through their respective advocates on
2.5.2005 and 10.5.2005. The impugned order further
notes that at that time committee before it had only
a zerox copy of the caste certificate. At that time
the petitioners could not produce the original caste
certificate issued to them by the Tahsildar. The
committee noted that even though the Tahsildar in
his evidence had admitted that the signature on the
zerox copy of the caste certificate is his, there
were reasons to suspect that other things in the
certificate were changed by manipulation.
15. When any such certificate is issued by the
officer like Tahsildar, there has to be an entry in
the outward register along with the date to verify
whether this certificate of the Tahsildar dated
20.11.1991 was really issued on any particular date.
The committee made a thorough probe. They found
that outward number given to the certificate is 367
and the date is 20.11.1991. However, in outward
register of the Tahsildar, the committee did not
find any outward No. 367 with reference to
certificate dated 20.11.1991. It was noted that
this register was written datewise and no
certificate was issued at all on 20.11.1991. They
::: Downloaded on - 01/04/2024 15:46:47 :::
:13:
also found from the examination of the register that
certificates bearing No. 1300 to 1303 have been
issued on 15.11.1991, those documents having outward
entry No. 1304 onwards were issued on 22.11.1991.
Therefore, they concluded that the caste certificate
bearing outward No. 367 of the petitioners dated
20.11.1991 was not issued on that day and this
outward number is totally wrong.
16. The Committee further found that the
document having outward No. 367 appeared to have
been issued on 7.6.1991 to 10.6.1991. They also
found from the outward register a page showing
outward entries from 366 to 384 was found torn out
and outward No. 367 was given to a document issued
to one Upadhya S. R. but it was found that no such
person by name Upadhya had obtained any caste
certificate. The committee also found that the Ex
Tahsildar could not give any satisfactory
explanation about discrepancy in the outward
register and the outward number given to the
certificate of the petitioners.
17. Apart from this the committee concluded that
the petitioners had failed to produce any
::: Downloaded on - 01/04/2024 15:46:47 :::
:14:
documentary evidence that any of their relatives at
Solapur were of Lohar caste. Committee also took
note of G.R. dated 19.11.1995 but came to the
conclusion that merely because the petitioners have
started fabrication business in Bombay, it cannot be
said that all their ancestors were Lohar by caste.
Committee referred to its orders dated 8.3.2004 and
6.12.2004 wherein they have come to the conclusion
that the lease agreement regarding stay at Solapur
produced by the petitioners was also a bogus
document. Therefore, committee rejected the claim
of the petitioners that they are residents of
Solapur.
18. In this background the committee affirmed
its earlier order and rejected the claim of the
petitioners.
19. G.R. dated 4.10.2001, is annexed at Exhibit
’K’ to the petition, which says that certificate
issued by the Organisation under the presidence of
National Presidence Shabbir Mohammed, Ansari, All
India Muslim Organisation and the certificate issued
by OBC Registered Samaj or community in muslim
community shall be considered as one of the evidence
::: Downloaded on - 01/04/2024 15:46:47 :::
:15:
among other evidence.
20. There is one more G.R. dated 19.10.1995
annexed at Exhibit A-4 to the petition. In this
G.R. certain instructions are given about issuing
caste certificate to the muslims. In the Annexure
to this GR (page 379 of the petition, which is one
page document) there is a list of certain caste
amongst muslims. Therein following castes are
mentioned in that :
(i) Bagwan
(ii) Julaha i.e. Momin (Weaver)
(iii) Ansari
(iv) Pinjara, Pinjari, Mansoori, Nadaf
(v) Fakir Bandarwale
(vi) Tamboli; and
(vii) Uttar
In this GR of 19.10.1995 there is a specific
reference to this Annexure. Admittedly, the caste
Lohar is not included in this. It will be clear
that even if the G.Rs. are considered, they do not
fortify the contention of the petitioners.
21. Counsel for the petitioners repeatedly tried
::: Downloaded on - 01/04/2024 15:46:47 :::
:16:
to urge that this matter has history of three
petitions, but that does not make any difference.
When by last order of this court dated 3.3.2005 the
matter was remanded to the committee with a specific
direction to examine both the Tahsildars and
reconsider the entire case, then that has been
rightly, correctly and properly done by the
committee and the committee has come to the
conclusion, about which the Petitioners have no
explanation.
22. From the findings of the committee as
recorded above, it is clear that the contention of
the petitioners regarding caste certificate dated
20.11.1991 is totally false and bogus. He managed
to get that certificate from whatever resources
available. Outward register does not support his
contention; even Ex. Tahsildar who has given that
certificate and who has filed his affidavit could
not satisfy the committee regarding the anomaly
recommended by the committee, and, therefore
impugned order cannot be faulted with.
23. Counsel for the petitioners also contended
that G.Rs. of the Government dated 29.1.1983 and
::: Downloaded on - 01/04/2024 15:46:47 :::
:17:
circular dated 22.7.1996 of the Government have not
been considered by the Committee. Circular of 1996
is reproduced in the petition at page 35. It is
mentioned there :
".. In so far as Muslim castes are ".. In so far as Muslim castes are
".. In so far as Muslim castes are
concerned, despite detailed scrutiny, concerned, despite detailed scrutiny, concerned, despite detailed scrutiny,
particular caste is not found recorded in particular caste is not found recorded in particular caste is not found recorded in
Muslim community. Many times word like Muslim community. Many times word like Muslim community. Many times word like
Muslim or Musalman is found. Therefore, Muslim or Musalman is found. Therefore, Muslim or Musalman is found. Therefore,
while verification of caste certificate of while verification of caste certificate of while verification of caste certificate of
Muslim community, this factor should be Muslim community, this factor should be Muslim community, this factor should be
borne in mind. However, it is necessary to borne in mind. However, it is necessary to borne in mind. However, it is necessary to
confirm that said person is of that caste by confirm that said person is of that caste by confirm that said person is of that caste by
conducting Home inquiry and other facts." conducting Home inquiry and other facts." conducting Home inquiry and other facts."
It will be clear from this GR that it does not
dispense with the proof at all. In fact none of the
G.Rs. relied upon by the petitioners dispense with
the proof to be tendered before the committee in
support of assertion of a person belonging to a
particular caste, tribe or community. The most
important observation in the impugned order dated
10.6.2005 is that the petitioners could not produce
any documentary evidence to show that any of his
relatives at Solapur were Lohar.
24. It is pertinent to note that the petitioners
are claiming to be Lohar mainly because they are
doing fabrication business at Bombay but in the
impugned order, Committee rightly disagreed with
::: Downloaded on - 01/04/2024 15:46:47 :::
:18:
this submission that merely because the petitioner
is doing fabrication business in Bombay, it cannot
be concluded that they are Lohar by caste.
25. Next contention of the petitioners was that
in the impugned order committee did not consider the
vigilance cell report. This is called enquiry
report, annexed at Exhibit ’G’ to the petition, and
there is one more vigilance report or enquiry report
at Exhibit A-1 to the petition. It is dated 21st
/24th March, 2005. This enquiry report has
considered the statement of Tahsildar R. G. Mane,
the present Tahsildar and the statement of a person
or the then Tahsildar P. T. Bhandare, findings
regarding the outward register and ultimately
conclusions. It is clear from this Exhibit A-1 that
it has been fully and totally considered by the
committee in the impugned order.
26. So far as Exhibit ’G’ - Report of Vigilance
Cell is considered, each and every document tendered
and submitted by the petitioners was verified.
Names and occupation of all the relatives of the
petitioners were taken into consideration. The
genealogical tree of the family history was also
::: Downloaded on - 01/04/2024 15:46:47 :::
:19:
considered. They also enquired into the
authenticity of the caste certificate dated
20.11.1991 and the enquiry is done minutely and in
detail as is done by the CID. All these aspects
have been considered in the impugned order.
27. It will be therefore clear that the impugned
order has been passed by the Respondent No.2 in
pursuance of the specific directions given by this
court. Out of all the documents tendered by the
petitioners and referred in the petition at
different places, most of the documents are of
recent origin and are of no use in determining the
caste of the ancestors of the petitioners. The
basic document is caste certificate of 20.11.1991 of
the petitioner No.1 has got to be rejected and has
been rightly done by the committee in the impugned
order. Petitioners could not successfully assail
the findings in the Vigilance Cell Report,
particularly, in respect of the manipulation done in
the caste certificate dated 20.11.1991. G.Rs.
relied upon by the petitioners do not dispense with
the proof, and, therefore, ultimately the petition
is required to be dismissed as there is no merit in
it. Even the affidavit of Ex. Tahsildar given in
::: Downloaded on - 01/04/2024 15:46:47 :::
:20:
support of the petitioners should have been labelled
as a false affidavit because of the specific finding
of the committee in the impugned order.
28. Counsel for the respondent No.5 contended
that if the petition is to be dismissed, then under
Section 33(2) of the Mumbai Municipal Corporation
Act, 1888, the respondent No.5 will have to be
declared as an elected. The petitioner No.2 has
contested elections from Ward No. 108 from the
category of OBC ladies, came to be declared elected
in place of Geeta Gore under the same provisions of
the Mumbai Municipal Corporation Act, as has been
reiterated by the petitioners in paragraph 6 of the
petition and therefore consequence must follow.
Section 33(2) of The Mumbai Municipal Corporation is
as under:
"If the said Chief Judge, after making such "If the said Chief Judge, after making such "If the said Chief Judge, after making such
inquiry as he deems necessary, finds that inquiry as he deems necessary, finds that inquiry as he deems necessary, finds that
the election was valid election and that the the election was valid election and that the the election was valid election and that the
person whose election is objected to is not person whose election is objected to is not person whose election is objected to is not
disqualified he shall confirm the declared disqualified he shall confirm the declared disqualified he shall confirm the declared
result of the election. [If he finds that result of the election. [If he finds that result of the election. [If he finds that
the person whose election is objected to is the person whose election is objected to is the person whose election is objected to is
disqualified for being a councillor be shall disqualified for being a councillor be shall disqualified for being a councillor be shall
declare such person’s election null and declare such person’s election null and declare such person’s election null and
void. If he finds that the election is not void. If he finds that the election is not void. If he finds that the election is not
a valid election he shall set it aside. In a valid election he shall set it aside. In a valid election he shall set it aside. In
either case he shall direct that the either case he shall direct that the either case he shall direct that the
candidate, if any, in whose favour the next candidate, if any, in whose favour the next candidate, if any, in whose favour the next
highest number of valid votes is recorded highest number of valid votes is recorded highest number of valid votes is recorded
::: Downloaded on - 01/04/2024 15:46:47 :::
:21:
after the said person ..., and against whose
after the said person ..., and against whose after the said person ..., and against whose
election no cause of objection is found, election no cause of objection is found, election no cause of objection is found,
shall be deemed to have been elected]". shall be deemed to have been elected]". shall be deemed to have been elected]".
It will be clear that if the court finds that the
petitioner No.2 was disqualified, the said election
has to be declared null and void. If the court
finds that the election is not a valid election he
shall set it aside.
29. Considering therefore all the circumstances
and submissions, we have no hesitation to hold that
the claim of the petitioners that they belong to
Lohar caste is false and bogus and it is based on
manipulation of Government record obviously done at
the instance of the petitioners. Therefore, order :
ORDER ORDER ORDER
. Petition is dismissed with costs of
Rs.5,000/-
::: Downloaded on - 01/04/2024 15:46:47 :::
:22:
. Petitioner No.2 is disqualified for being
elected as a Corporator, and therefore, her election
is null and void. Respondent No.5 has contested
election from the said Ward No. 108 from the
category of OBC ladies and as has secured next
highest number of valid votes, therefore respondent
No.5 is declared elected as Corporator from the said
Ward No.108.
(D.G. DESHPANDE, J.) (D.G. DESHPANDE, J.) (D.G. DESHPANDE, J.)
(Smt. R.S. DALVI, J.) (Smt. R.S. DALVI, J.) (Smt. R.S. DALVI, J.)
After this order was pronounced, counsel for the
Petitioners prayed for continuation of the stay.
Prayer was opposed by the counsel for the Respondent
No.5 on the ground that the elections are going to
be held in February, 2007. Even otherwise this is
not a case for granting any stay or for continuing
the stay already granted, because we have upheld the
findings of the Scrutiny Committee and found that
there is manipulation in the Government record.
::: Downloaded on - 01/04/2024 15:46:47 :::
:23:
Therefore prayer rejected.
(D. G. DESHPANDE, J.) (D. G. DESHPANDE, J.) (D. G. DESHPANDE, J.)
(Smt. R.S. DALVI, J.) (Smt. R.S. DALVI, J.) (Smt. R.S. DALVI, J.)
::: Downloaded on - 01/04/2024 15:46:47 :::
2006:BHC-AS:23760-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3989 OF 2005 WRIT PETITION NO. 3989 OF 2005 WRIT PETITION NO. 3989 OF 2005
1. Sagiruddin Israiluddin ]
Mistry ]
Age about 65 years, Occ: ]
Blacksmith, R/o. Nav Bharat ]
Co-op. Hsg. Soc., Wireless ]
Road, Juhu Lane, Andheri (W) ]
Mumbai 400 058 ]
2. Mrs. Shaheen Ara Salim Baig ]
Age about 34 years, Occ: ]
Corporator, R/o. Baig Manzil ]
Gulmohar Road No.7, Opp: ]
Wazida House, Andheri (W), ]
Mumbai 400 058 ]..Petitioners
versus
1. The State of Maharashtra ]
through its Secretary, ]
Social Justice & Cultural ]
Department, Mantralaya, ]
Mumbai 400 032 ]
2. Divisional Caste Certificate ]
Scrutiny Committee, ]
through its Member Secretary ]
Pune Division, Pune, having ]
its office at Sugandha ]
Chambers, Pangul Lane, ]
Ganesh Peth, Pune ]
3. Divisional Caste Certificate ]
Scrutiny Committee, Konkan ]
Division, Mumbai, having its ]
office at Konkan Bhavan, ]
5th floor, C.B.D. Belapur ]
Navi Mumbai ]
4. Municipal Corporation of ]
Greater Mumbai, through its ]
Commissioner, having its ]
office at Mahapalika Marg, ]
Mumbai 400 001 ]
5. Bharati Balkrishna Dhongade ]
Age adult, R/o. Old Ashok Kunj]
::: Downloaded on - 01/04/2024 15:46:47 :::
:2:
V. S. Khandekar Marg, ]
Vile Parle(E), Mumbai 400057 ]
6. Tahasildar & Executive ]
Magistrate, North Solapur ]
District : Solapur ]
7. The Deputy Collector, ]
Mumbai Suburban District, ]
Bandra (E), Mumbai ]..Respondents
Mr. Y. S. Jahagirdar, Sr. Counsel with Mr. R.
K. Mendadkar for the Petitioners.
Mr. R. V. Govilkar for the Respondent No.5.
Mr. A. J. Bhor with Ms. N. Dabhade for the
Respondent No.4.
CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, & CORAM : D. G. DESHPANDE, &
Smt. R. S. DALVI, JJ. Smt. R. S. DALVI, JJ. Smt. R. S. DALVI, JJ.
DATE : 15TH DECEMBER, 2006 DATE : 15TH DECEMBER, 2006 DATE : 15TH DECEMBER, 2006
ORAL JUDGMENT : (Per : D. G. Deshpande, J) : ORAL JUDGMENT : (Per : D. G. Deshpande, J) : ORAL JUDGMENT : (Per : D. G. Deshpande, J) :
1. Heard Mr. Mendadkar for the Petitioners.
Mr. R. V. Govilkar for the Respondent No.5 - who
is main contesting respondent.
2. By this petition, the petitioners have
challenged the impugned order dated 10th June 2005
passed by the Respondent No.2 i.e. Divisional Caste
Certificate Scrutiny Committee, Pune, Exhibit ’A’ to
the petition. They have also further prayed to
::: Downloaded on - 01/04/2024 15:46:47 :::
:3:
prohibit Respondent Nos. 3 and 4 in relying upon
the impugned order dated 10th June, 2005 and further
claim declaration that the caste certificate dated
20th November, 1991 issued to the Petitioner No.1 by
the respondent No. 6 Tahsildar & Executive
Magistrate, North Solapur, District Solapur, be
declared valid, legal and subsisting.
3. This petition which is filed on 5.6.2005
came for hearing earlier before the Division Bench
on 21.6.2005, on that day ad interim stay was
granted and it was adjourned to 23.6.2005. Then on
23.6.2005 Rule was issued and hearing was expedited
and interim stay in terms of prayers (e) and (f) was
granted. Then before the another Division Bench on
16.6.2006 grievance was made that even though the
petition is expedited it has not been heard so far,
and, therefore, application was taken out by the
respondent No.5 for fixing the date of hearing.
Division Bench directed that the matter should be
placed high on board on 20.11.2006. Matter did not
appear on that day, and, therefore, again on
4.12.2006 the respondent No.5 moved this court for
fixing the date of hearing because the municipal
elections were to be held in the near future.
::: Downloaded on - 01/04/2024 15:46:47 :::
:4:
Accordingly, we fixed the date of hearing on
7.12.2006 (as the next municipal elections are now
declared to be held in the near future i.e.
February, 2007). The matter was heard on that day
and it was posted on 12.12.2006 for judgment at 3
p.m. Our judgment was ready to be delivered on
12.12.2006 at 3.00 p.m. However, an attempt was
made to see that we do not deliver the judgment and
the matter is posted for hearing after vacation and
if this attempt was successful then the petitioner
No.2 would have continued as Corporator of the BMC
till the next elections. We have taken note of that
development and passed separate order today i.e. on
15.12.2006, before pronouncing this Judgment.
4. There are two petitioners in this petition.
Petitioner No.2 is the daughter of petitioner No.1.
Petitioner No. 2 is declared as an elected member /
Corporater from the Constituency reserved for Ward
No. 108 of BMC. It was the Ward reserved for OBC
ladies for the general election of BMC. Petitioner
No.2 filed a nomination under the reserved category
of OBC ladies. Two other ladies Smt. Smt. Geeta
Laxman Gore, not a party to this petition and
Respondent No.5 - Bharati Dhongade filed nomination
::: Downloaded on - 01/04/2024 15:46:47 :::
:5:
from the said Ward under the reserved category of
OBC. During the election Smt. Geeta Laxman Gore
was elected from that Ward. Petitioner No.2 has the
second highest vote and respondent No.5 had the
third highest vote. Petitioner No.2 filed Election
Petition before the Small Causes Court, Mumbai,
challenging the election of Smt. Geeta Gore. In
the meantime the respondent No.2 had invalidated the
caste certificate issued to Smt. Geeta Gore. She
therefore approached this Court but this Court
declined to interfere with the order passed by the
Respondent No.3 against the said Smt. Geeta Gore.
Then, petitioner No.2 took out application for
declaration that she be declared as an elected
candidate from Ward No. 108 under the provisions of
the Mumbai Municipal Corporation Act.
5. In the meantime, on 28.10.2002 respondent
No. 5 made complaint to respondent No.2 about the
caste certificate dated 28.12.2001 issued to
Petitioner No.2 on the basis of the caste
certificate issued to the petitioner No.1 on
20.11.1991. Therefore, respondent No. 2 issued
letters to the petitioners to submit applications
and documents for verification of caste certificate.
::: Downloaded on - 01/04/2024 15:46:47 :::
:6:
Petitioners accordingly submitted number of
documents to the respondent No.2. Enquiry was made
by the respondent No.2.
6. On 8.3.2004 Respondent No.2 passed an order
invalidating the caste certificate of the petitioner
No.1. Petitioners thereafter filed Writ Petition
No. 3505 of 2004 before this Court and the Division
Bench remanded the matter back to the respondent
No.2. The petitioners appeared before the Committee
again submitted documents, made submissions.
Vigilance cell submitted his written enquiry report
dated 14.7.2003. The respondent No.2 then passed an
order on 6.12.2004 against the petitioners, which
was received by the petitioners by post on
9.12.2004.
7. Thereafter, the petitioners again challenged
the said order dated 6.12.2004 by filing Writ
Petition No. 9984 of 2004 and the Division Bench on
3.3.2005 remanded the matter with the following
observations:
"3. It may be pertinent to mention that the "3. It may be pertinent to mention that the "3. It may be pertinent to mention that the
::: Downloaded on - 01/04/2024 15:46:47 :::
:7:
vigilance report was earlier submitted by
vigilance report was earlier submitted by vigilance report was earlier submitted by
one Mr. Mahesh M. Joshi. In that report, one Mr. Mahesh M. Joshi. In that report, one Mr. Mahesh M. Joshi. In that report,
he has not examined the Tahsildar, North he has not examined the Tahsildar, North he has not examined the Tahsildar, North
Solapur, P. T. Bhandari. Solapur, P. T. Bhandari. Solapur, P. T. Bhandari.
"4. In our considered opinion, it would be "4. In our considered opinion, it would be "4. In our considered opinion, it would be
appropriate to examine both the Tahsildars appropriate to examine both the Tahsildars appropriate to examine both the Tahsildars
referred to in the original report, referred to in the original report, referred to in the original report,
reconsider the entire case and submit the reconsider the entire case and submit the
reconsider the entire case and submit the
report to this court as expeditiously as report to this court as expeditiously as report to this court as expeditiously as
possible, and in any event, within two possible, and in any event, within two possible, and in any event, within two
months from the date of receipt of this months from the date of receipt of this months from the date of receipt of this
order. The concerned parties are directed order. The concerned parties are directed order. The concerned parties are directed
to appear before the Committee on 14th to appear before the Committee on 14th to appear before the Committee on 14th
March, 2005 at 11 a.m." March, 2005 at 11 a.m." March, 2005 at 11 a.m."
8. Thereafter, the petitioners appeared before
the Committee. The Tahsildar was examined and
cross-examined and then the committee passed its
order on 10.6.2005. It is this order dated
10.6.2005 which has been challenged in this petition
and prayers of the petitioners are in respect of
that order only. The said order dated 10.6.2005 is
at Exhibit ’A’ of the petition.
9. Counsel for the petitioners contended that
the petitioners had submitted number of documents in
support of their contentions that they belong to
Lohar Caste Community coming under the category of
OBC but they were not considered by the committee in
the impugned order. The documents so relied upon by
::: Downloaded on - 01/04/2024 15:46:47 :::
:8:
the petitioners are :
1. School leaving Certificate dated
4.1.2003.
2. Caste Certificate dated 20.11.1991
issued by the Tahsildar, North Solapur.
3. Certificate of Talathi dated 18.12.2001.
4. Certificate dated 16.11.2001 issued by
All India Muslim Organisation.
5. Certificate dated 15.11.2001 issued by
the Solapur City and District Lohar Ghisadi
Multipurpose Social Service, Solapur.
6. Application dated 21.6.1974 made by the
Petitioner No.1 to the Ward Officer, K-West
Ward of BMC to grant permission to carry on
occupation of Lohar.
7. Permission dated 3.10.1974 granted by
the Ward Officer, ’K’ West Ward of BMC.
8. Letter of the Ward Officer, BMC dated
29.7.1971.
9. Order dated 16.12.1972 addressed to the
brother of the petitioner No.1 by the Ward
Officer, K Ward, BMC.
10. Notice dated 25.5.1986 issued by the
Tahsildar dated 25.5.1986.
11. Marriage certificate of the petitioner
No.2.
12. Certificate dated 29.4.2003 issued by
the Secretary of Co-operative Housing
Society Ltd.
13. Affidavit dated 13.5.2003 along with
genealogy tree of the family of the
petitioners.
14. Affidavit dated 4.8.2003 of Pandurang
Tatyaba Bhandari confirming the issuance of
::: Downloaded on - 01/04/2024 15:46:47 :::
:9:
certificate dated 20.11.1991.
15. Photographs, and
16. Agreement dated 25.9.1958 about the
place of business where the black smith
business is carried on.
10. Counsel for the petitioners also contended
that when the Tahsildar North, Solapur, filed an
application to the effect that he has issued
certificate of caste dated 20.11.1991 to the
petitioners, then it should have been accepted by
the committee as a final proof as a caste of the
petitioners. Counsel for the petitioners also
contended that in the impugned order the respondent
No.2 has not taken into consideration documents,
circulars and various Government Resolutions.
11. On the other hand, counsel for the
Respondent No.5 contended that out of the documents
relied upon by the petitioners in support of their
caste claim and the documents referred to above,
most of them were of recent origin and could not be
taken as a proof of the caste of the petitioners.
Only document that was of some importance was the
caste certificate dated 20.11.1991 issued by
Tahsildar, North, Solapur but since the Committee
::: Downloaded on - 01/04/2024 15:46:47 :::
:10:
after order of remand by this Court in the second
writ petition examined the Tahsildar and also
scrutinised the other evidence produced and had come
to the conclusions which are all against the
petitioners. There is absolutely no necessity to
intervene with the impugned order. He also
contended that none of the Government Resolutions
help the petitioners in the sense that they do not
dispense with the proof, that is, required very
proof for proving the claim.
12. Since the caste certificate issued by the
Tahsildar, North, Solapur on 20.11.1991 (page 77 of
the petition) is important, it is reproduced as
under, by us.
"This is to certify that Smt. Mistri "This is to certify that Smt. Mistri "This is to certify that Smt. Mistri
Sagiruddin Israiluddin Residence of Solapur Sagiruddin Israiluddin Residence of Solapur Sagiruddin Israiluddin Residence of Solapur
belong to Lohar (O.B.C.92) Caste / Tribe belong to Lohar (O.B.C.92) Caste / Tribe
belong to Lohar (O.B.C.92) Caste / Tribe
Community which is recognized as Other Community which is recognized as Other Community which is recognized as Other
Backward community under the Scheduled Caste Backward community under the Scheduled Caste Backward community under the Scheduled Caste
and Scheduled Tribes Amendment Act, 1976. and Scheduled Tribes Amendment Act, 1976. and Scheduled Tribes Amendment Act, 1976.
Government of Maharashtra’s Resolution No. Government of Maharashtra’s Resolution No. Government of Maharashtra’s Resolution No.
Education and Welfare Departmnet, O.B.C. Education and Welfare Departmnet, O.B.C. Education and Welfare Departmnet, O.B.C.
1467 dated 13.10.1967. 1467 dated 13.10.1967. 1467 dated 13.10.1967.
Smt. Mistri S.S. her family resides in the Smt. Mistri S.S. her family resides in the Smt. Mistri S.S. her family resides in the
Town Solapur Tahasil North Solapur in the Town Solapur Tahasil North Solapur in the Town Solapur Tahasil North Solapur in the
State of Maharashtra State of Maharashtra State of Maharashtra
NO. MAG-CASTE-SR.367. NO. MAG-CASTE-SR.367. NO. MAG-CASTE-SR.367.
Solapur 20.11.1991 Solapur 20.11.1991 Solapur 20.11.1991
::: Downloaded on - 01/04/2024 15:46:47 :::
:11:
sd/- sd/- sd/-
Tahsildar & Executive Tahsildar & Executive Tahsildar & Executive
Magistrate, North Solapur" Magistrate, North Solapur" Magistrate, North Solapur"
13. Documents which were relied upon by the
Tahsildar while issuing this caste certificate are
referred in the certificate,itself, they are:
1. School Leaving Certificate of Applicant.
2. Extract issued by the Head Master of
S.M.C. School No. 10, Solapur.
3. Affidavit Declaration executed by the
Applicant on 14.11.1991 before Executive
Magistrate, North Solapur.
4. Community Certificate of the Applicants
issued by President Lohar Samaj, Solapur.
14. It is necessary to see and find out at this
juncture what the respondent No.2 committee found in
their enquiry in respect of this caste certificate
of 20.11.1991. It is necessary to note here that
this enquiry is pursuant to the directions, given by
this court in second writ petition, dt. 3.3.2005.
In the impugned order the Committee has written that
Ex Tahsildar P.T. Bhandari who has issued
certificate and who has given certificate in support
of the petitioners and the then Tahsildar R.G. Mane
were examined and cross-examined before the
::: Downloaded on - 01/04/2024 15:46:47 :::
:12:
committee through their respective advocates on
2.5.2005 and 10.5.2005. The impugned order further
notes that at that time committee before it had only
a zerox copy of the caste certificate. At that time
the petitioners could not produce the original caste
certificate issued to them by the Tahsildar. The
committee noted that even though the Tahsildar in
his evidence had admitted that the signature on the
zerox copy of the caste certificate is his, there
were reasons to suspect that other things in the
certificate were changed by manipulation.
15. When any such certificate is issued by the
officer like Tahsildar, there has to be an entry in
the outward register along with the date to verify
whether this certificate of the Tahsildar dated
20.11.1991 was really issued on any particular date.
The committee made a thorough probe. They found
that outward number given to the certificate is 367
and the date is 20.11.1991. However, in outward
register of the Tahsildar, the committee did not
find any outward No. 367 with reference to
certificate dated 20.11.1991. It was noted that
this register was written datewise and no
certificate was issued at all on 20.11.1991. They
::: Downloaded on - 01/04/2024 15:46:47 :::
:13:
also found from the examination of the register that
certificates bearing No. 1300 to 1303 have been
issued on 15.11.1991, those documents having outward
entry No. 1304 onwards were issued on 22.11.1991.
Therefore, they concluded that the caste certificate
bearing outward No. 367 of the petitioners dated
20.11.1991 was not issued on that day and this
outward number is totally wrong.
16. The Committee further found that the
document having outward No. 367 appeared to have
been issued on 7.6.1991 to 10.6.1991. They also
found from the outward register a page showing
outward entries from 366 to 384 was found torn out
and outward No. 367 was given to a document issued
to one Upadhya S. R. but it was found that no such
person by name Upadhya had obtained any caste
certificate. The committee also found that the Ex
Tahsildar could not give any satisfactory
explanation about discrepancy in the outward
register and the outward number given to the
certificate of the petitioners.
17. Apart from this the committee concluded that
the petitioners had failed to produce any
::: Downloaded on - 01/04/2024 15:46:47 :::
:14:
documentary evidence that any of their relatives at
Solapur were of Lohar caste. Committee also took
note of G.R. dated 19.11.1995 but came to the
conclusion that merely because the petitioners have
started fabrication business in Bombay, it cannot be
said that all their ancestors were Lohar by caste.
Committee referred to its orders dated 8.3.2004 and
6.12.2004 wherein they have come to the conclusion
that the lease agreement regarding stay at Solapur
produced by the petitioners was also a bogus
document. Therefore, committee rejected the claim
of the petitioners that they are residents of
Solapur.
18. In this background the committee affirmed
its earlier order and rejected the claim of the
petitioners.
19. G.R. dated 4.10.2001, is annexed at Exhibit
’K’ to the petition, which says that certificate
issued by the Organisation under the presidence of
National Presidence Shabbir Mohammed, Ansari, All
India Muslim Organisation and the certificate issued
by OBC Registered Samaj or community in muslim
community shall be considered as one of the evidence
::: Downloaded on - 01/04/2024 15:46:47 :::
:15:
among other evidence.
20. There is one more G.R. dated 19.10.1995
annexed at Exhibit A-4 to the petition. In this
G.R. certain instructions are given about issuing
caste certificate to the muslims. In the Annexure
to this GR (page 379 of the petition, which is one
page document) there is a list of certain caste
amongst muslims. Therein following castes are
mentioned in that :
(i) Bagwan
(ii) Julaha i.e. Momin (Weaver)
(iii) Ansari
(iv) Pinjara, Pinjari, Mansoori, Nadaf
(v) Fakir Bandarwale
(vi) Tamboli; and
(vii) Uttar
In this GR of 19.10.1995 there is a specific
reference to this Annexure. Admittedly, the caste
Lohar is not included in this. It will be clear
that even if the G.Rs. are considered, they do not
fortify the contention of the petitioners.
21. Counsel for the petitioners repeatedly tried
::: Downloaded on - 01/04/2024 15:46:47 :::
:16:
to urge that this matter has history of three
petitions, but that does not make any difference.
When by last order of this court dated 3.3.2005 the
matter was remanded to the committee with a specific
direction to examine both the Tahsildars and
reconsider the entire case, then that has been
rightly, correctly and properly done by the
committee and the committee has come to the
conclusion, about which the Petitioners have no
explanation.
22. From the findings of the committee as
recorded above, it is clear that the contention of
the petitioners regarding caste certificate dated
20.11.1991 is totally false and bogus. He managed
to get that certificate from whatever resources
available. Outward register does not support his
contention; even Ex. Tahsildar who has given that
certificate and who has filed his affidavit could
not satisfy the committee regarding the anomaly
recommended by the committee, and, therefore
impugned order cannot be faulted with.
23. Counsel for the petitioners also contended
that G.Rs. of the Government dated 29.1.1983 and
::: Downloaded on - 01/04/2024 15:46:47 :::
:17:
circular dated 22.7.1996 of the Government have not
been considered by the Committee. Circular of 1996
is reproduced in the petition at page 35. It is
mentioned there :
".. In so far as Muslim castes are ".. In so far as Muslim castes are
".. In so far as Muslim castes are
concerned, despite detailed scrutiny, concerned, despite detailed scrutiny, concerned, despite detailed scrutiny,
particular caste is not found recorded in particular caste is not found recorded in particular caste is not found recorded in
Muslim community. Many times word like Muslim community. Many times word like Muslim community. Many times word like
Muslim or Musalman is found. Therefore, Muslim or Musalman is found. Therefore, Muslim or Musalman is found. Therefore,
while verification of caste certificate of while verification of caste certificate of while verification of caste certificate of
Muslim community, this factor should be Muslim community, this factor should be Muslim community, this factor should be
borne in mind. However, it is necessary to borne in mind. However, it is necessary to borne in mind. However, it is necessary to
confirm that said person is of that caste by confirm that said person is of that caste by confirm that said person is of that caste by
conducting Home inquiry and other facts." conducting Home inquiry and other facts." conducting Home inquiry and other facts."
It will be clear from this GR that it does not
dispense with the proof at all. In fact none of the
G.Rs. relied upon by the petitioners dispense with
the proof to be tendered before the committee in
support of assertion of a person belonging to a
particular caste, tribe or community. The most
important observation in the impugned order dated
10.6.2005 is that the petitioners could not produce
any documentary evidence to show that any of his
relatives at Solapur were Lohar.
24. It is pertinent to note that the petitioners
are claiming to be Lohar mainly because they are
doing fabrication business at Bombay but in the
impugned order, Committee rightly disagreed with
::: Downloaded on - 01/04/2024 15:46:47 :::
:18:
this submission that merely because the petitioner
is doing fabrication business in Bombay, it cannot
be concluded that they are Lohar by caste.
25. Next contention of the petitioners was that
in the impugned order committee did not consider the
vigilance cell report. This is called enquiry
report, annexed at Exhibit ’G’ to the petition, and
there is one more vigilance report or enquiry report
at Exhibit A-1 to the petition. It is dated 21st
/24th March, 2005. This enquiry report has
considered the statement of Tahsildar R. G. Mane,
the present Tahsildar and the statement of a person
or the then Tahsildar P. T. Bhandare, findings
regarding the outward register and ultimately
conclusions. It is clear from this Exhibit A-1 that
it has been fully and totally considered by the
committee in the impugned order.
26. So far as Exhibit ’G’ - Report of Vigilance
Cell is considered, each and every document tendered
and submitted by the petitioners was verified.
Names and occupation of all the relatives of the
petitioners were taken into consideration. The
genealogical tree of the family history was also
::: Downloaded on - 01/04/2024 15:46:47 :::
:19:
considered. They also enquired into the
authenticity of the caste certificate dated
20.11.1991 and the enquiry is done minutely and in
detail as is done by the CID. All these aspects
have been considered in the impugned order.
27. It will be therefore clear that the impugned
order has been passed by the Respondent No.2 in
pursuance of the specific directions given by this
court. Out of all the documents tendered by the
petitioners and referred in the petition at
different places, most of the documents are of
recent origin and are of no use in determining the
caste of the ancestors of the petitioners. The
basic document is caste certificate of 20.11.1991 of
the petitioner No.1 has got to be rejected and has
been rightly done by the committee in the impugned
order. Petitioners could not successfully assail
the findings in the Vigilance Cell Report,
particularly, in respect of the manipulation done in
the caste certificate dated 20.11.1991. G.Rs.
relied upon by the petitioners do not dispense with
the proof, and, therefore, ultimately the petition
is required to be dismissed as there is no merit in
it. Even the affidavit of Ex. Tahsildar given in
::: Downloaded on - 01/04/2024 15:46:47 :::
:20:
support of the petitioners should have been labelled
as a false affidavit because of the specific finding
of the committee in the impugned order.
28. Counsel for the respondent No.5 contended
that if the petition is to be dismissed, then under
Section 33(2) of the Mumbai Municipal Corporation
Act, 1888, the respondent No.5 will have to be
declared as an elected. The petitioner No.2 has
contested elections from Ward No. 108 from the
category of OBC ladies, came to be declared elected
in place of Geeta Gore under the same provisions of
the Mumbai Municipal Corporation Act, as has been
reiterated by the petitioners in paragraph 6 of the
petition and therefore consequence must follow.
Section 33(2) of The Mumbai Municipal Corporation is
as under:
"If the said Chief Judge, after making such "If the said Chief Judge, after making such "If the said Chief Judge, after making such
inquiry as he deems necessary, finds that inquiry as he deems necessary, finds that inquiry as he deems necessary, finds that
the election was valid election and that the the election was valid election and that the the election was valid election and that the
person whose election is objected to is not person whose election is objected to is not person whose election is objected to is not
disqualified he shall confirm the declared disqualified he shall confirm the declared disqualified he shall confirm the declared
result of the election. [If he finds that result of the election. [If he finds that result of the election. [If he finds that
the person whose election is objected to is the person whose election is objected to is the person whose election is objected to is
disqualified for being a councillor be shall disqualified for being a councillor be shall disqualified for being a councillor be shall
declare such person’s election null and declare such person’s election null and declare such person’s election null and
void. If he finds that the election is not void. If he finds that the election is not void. If he finds that the election is not
a valid election he shall set it aside. In a valid election he shall set it aside. In a valid election he shall set it aside. In
either case he shall direct that the either case he shall direct that the either case he shall direct that the
candidate, if any, in whose favour the next candidate, if any, in whose favour the next candidate, if any, in whose favour the next
highest number of valid votes is recorded highest number of valid votes is recorded highest number of valid votes is recorded
::: Downloaded on - 01/04/2024 15:46:47 :::
:21:
after the said person ..., and against whose
after the said person ..., and against whose after the said person ..., and against whose
election no cause of objection is found, election no cause of objection is found, election no cause of objection is found,
shall be deemed to have been elected]". shall be deemed to have been elected]". shall be deemed to have been elected]".
It will be clear that if the court finds that the
petitioner No.2 was disqualified, the said election
has to be declared null and void. If the court
finds that the election is not a valid election he
shall set it aside.
29. Considering therefore all the circumstances
and submissions, we have no hesitation to hold that
the claim of the petitioners that they belong to
Lohar caste is false and bogus and it is based on
manipulation of Government record obviously done at
the instance of the petitioners. Therefore, order :
ORDER ORDER ORDER
. Petition is dismissed with costs of
Rs.5,000/-
::: Downloaded on - 01/04/2024 15:46:47 :::
:22:
. Petitioner No.2 is disqualified for being
elected as a Corporator, and therefore, her election
is null and void. Respondent No.5 has contested
election from the said Ward No. 108 from the
category of OBC ladies and as has secured next
highest number of valid votes, therefore respondent
No.5 is declared elected as Corporator from the said
Ward No.108.
(D.G. DESHPANDE, J.) (D.G. DESHPANDE, J.) (D.G. DESHPANDE, J.)
(Smt. R.S. DALVI, J.) (Smt. R.S. DALVI, J.) (Smt. R.S. DALVI, J.)
After this order was pronounced, counsel for the
Petitioners prayed for continuation of the stay.
Prayer was opposed by the counsel for the Respondent
No.5 on the ground that the elections are going to
be held in February, 2007. Even otherwise this is
not a case for granting any stay or for continuing
the stay already granted, because we have upheld the
findings of the Scrutiny Committee and found that
there is manipulation in the Government record.
::: Downloaded on - 01/04/2024 15:46:47 :::
:23:
Therefore prayer rejected.
(D. G. DESHPANDE, J.) (D. G. DESHPANDE, J.) (D. G. DESHPANDE, J.)
(Smt. R.S. DALVI, J.) (Smt. R.S. DALVI, J.) (Smt. R.S. DALVI, J.)
::: Downloaded on - 01/04/2024 15:46:47 :::