Sandip Arjun Vazarkar v. Scrutiny Committee for Verification of Caste Certificate

5th May, 2009. Date of pronouncing the Judgment : 15th June, 2009. J U D G M E N T : (Per B.P. DHARMADHIKARI, J.)

On 17.4.2009, the learned Senior Advocates, as also the government Advocate appearing for the parties have pointed out that as per Orders of this Court dated 11.2.2009, the matter is to be disposed of finally at the stage of admission. Accordingly, we have taken up the matter at the end of admission board by making Rule returnable forthwith. 3

Challenge in this writ petition filed under Article 226 of the constitution of India is to the order dated 26.11.2008 passed by the Scrutiny Committee invalidating the caste claim of the Petitioner as belonging to Bhandari Naik Community and also to the report of the Vigilance Cell dated 18.9.2008 submitted by the Sr. Superintendent of Police, to the Director of Social Welfare, Panaji, Goa.

This is the third writ petition filed by the Petitioner in same cause. The Petitioner has contested election from Ward No.8 of Socorro Village and has been elected as Member or Pancha of Village Panchayat. This Court has, on 18.12.2008, granted ad interim orders whereby the invalidation of his caste claim by Respondent no. 1 Scrutiny Committee for Verification of Caste Certificate, hereafter “Scrutiny Committee”, has been stayed .

These elections were held on 5.6.2007. The ward was declared as reserved for O.B.C. category on 5.4.2007, by way of corrigendum by the State Government. The Petitioner decided to contest said elections and approached Gomantak Bhandari Samaj (for short 4 “Samaj”), an organization of Bhandari Naik community and the said Samaj on 11.4.2007 issued him a certificate mentioning that he belongs to Bhandari Naik Community, notified as OBC vide Goa Government Notification No. 13/1/97-SWD dated 30th June, 2000 and of Government of India, Ministry of Social Justice & Empowerment dated 16/1/2006. On the basis of the said certificate, the Petitioner applied to the Dy. Collector and S.D.M. Mapusa i..e. Respondent No.2 in the present petition and the said authority granted him a certificate as belonging to OBC on 11.4.07 itself. It is not in dispute that Respondent no. 2 is the competent authority for Goa for issuing such status certificates. The Petitioner, then filed his nomination on 13.4.2007. Respondent No.4 who is opposing the present petition ,a candidate belonging to OBC in that election raised objection to the said nomination paper disputing the caste claim of the Petitioner. On

15.4.2007, the Returning Officer rejected that objection and the Petitioner came to be declared elected on 7.5.2007.

Respondent No.4 then approached the Samaj and on

8.5.2007, the Samaj withdrew the certificate and issued communication to Respondent No.2 stating that the certificate dated 11.4.2007 issued 5 by it was revoked and canceled. On 18.6.2007, Respondent No.2 issued a show cause notice to the Petitioner, mentioning these facts and requiring him to point out as to why action should not be taken for fraudulently obtaining OBC certificate from his office by misrepresenting and by suppressing the material facts. In this background, on 25.6.07, the Petitioner applied to the Scrutiny Committee i.e. Respondent No.1 for verification of his caste claim. On

3.7.3007, the Government of Goa issued a communication to all the Dy. Collectors and S.D.Os. mentioning that they were expected to issue certificates as per the guidelines of the Hon'ble Apex Court and not on the basis of the socials status certificate issued by any organization. It appears that some instructions to the contrary were earlier issued on

15.9.05 and by this communication, those were withdrawn. On

18.7.2007, the Vigilance Cell submitted the report to Respondent No.1 Scrutiny Committee and on 25.7.97, the Ex-Officio Joint Secretary & Director of Social Welfare issued a communication to the Petitioner mentioning that the certificate issued by Respondent No.2 in his favour was duly verified by the Scrutiny Committee and there were no “adverse remarks” against him. 6

On 6.8.07, Respondent No.4 then filed a complaint and raised objections against the certificate and verification. The complaint is addressed to Respondent No.1 and its Ex-Officio Joint Secretary, as also Respondent No.2. The Caste Scrutiny Committee then invited fresh report from the Vigilance Cell, and the Superintendent of Police (Headquarters) Panaji, Goa, forwarded the same vide communication dated 7.9.2007. In the said report, he mentioned that the inquiries with one section in the locality revealed the caste of Petitioner as Bhadari Naik, while with other section revealed the same to be Bane Develi. The said authority also made a mention that none of the parties produced any documentary evidence to establish the caste of the Petitioner. The inquiries before the SDM & Dy. Collector, Bardez and election petition before the Administrative Tribunal Court, Panaji are stated to be pending in it.

Respondent No.4 then approached this Court in Writ Petition No.460/07 and sought directions that the caste claim of the present Petitioner should be verified as expeditiously as possible. This Court, on 22.10.2007, while granting leave to Respondent No.4 to withdraw the petition, recorded statement of the Advocate General that 7 the Scrutiny Committee was re-verifying the claim of the Petitioner and re-verification would be done as expeditiously as possible after conducting inquiry. The Scrutiny Committee then vide its Order dated

29.1.2008, ordered cancellation of caste certificate observing that the caste certificate was obtained by the Petitioner by misrepresentation. The Petitioner challenged this order in Writ Petition No. 111/2008 and vide Order dated 16.7.2008 that writ petition was allowed after noticing that the Scrutiny Committee did not perform its duty as contemplated by the Hon'ble Apex Court in the Judgment reported in (1994) 6 SCC 241=AIR 1995 SC 94, Kumari Madhuri Patil and anr. vs. Addl. Commissioner, Tribal Development and ors. It was noticed that the verification of caste claim was not done independently and only because of cancellation of caste certificate by the Samaj, the scrutiny committee reached its conclusions. The matter was, therefore, remanded back to the Scrutiny Committee, keeping all the contentions open and directing it to complete the verification within a period of two months from the date of appearance of the parties.

On 26.8.08, the scrutiny committee called for fresh vigilance report. On 28.8.08, the PI i.e. Police Inspector, Porvorim 8 called upon the Petitioner to remain present before him to inquire into his caste certificate. On 30.8.08, Petitioner sent communication to the said authority and informed that the said Police Inspector was not part of the Vigilance Cell, constituted by the Government vide its Circular dated 6.9.99 and, therefore, that authority had no jurisdiction and any inquiry conducted by it would be invalid.

On 12.9.2008, the Petitioner raised similar objections before the Scrutiny Committee. The Vigilance Officer appears to have submitted the report on 8.9.08, and the Petitioner objected to it in writing on 6.10.2008. The inquiry then proceeded further. The Petitioner participated in it, cross examined the Officer who submitted the Report, filed about 36 documents and also examined 19 witnesses. He relied upon 1928 catalogue of Mahajans of Sri Rudreshwar Temple and a sale deed dated 2.12.1941, in support of his contentions. He also pointed out that the report of Police Inspector, Porvorim about contacting one Parshuram Shirodkar and said Parshuram allegedly disclosing the caste of the Petitioner as Devli (Bane) was not correct. He placed on record affidavit of said Parshuram, contradicting these facts. It is in this background that after hearing the respective parties 9 afresh, on 26.11.2008 Respondent No.1 scrutiny committee passed the impugned order.

We have heard the Senior Advocate Shri S. G. Dessai with Advocate Shivan Dessai for the Petitioner, Senior Advocate Shri A.N.S. Nadkarni with Advocate D. Lawande for Respondent No.4 and learned Govt. Advocate Rivonkar for Respondents No.1 to 3.

The learned Senior Advocate for the Petitioner has, at the outset, pointed out the purpose of constitution of Vigilance Cell by relying upon the Judgment of the Hon'ble Supreme Court in Kumari Madhuri Patil and anr. vs. Addl. Commissioner, Tribal Development and ors. (supra), particularly para 13 and the guidelines 4, 5 and 7 therein. It is his contention that the Hon'ble Apex Court has laid down that the scrutiny committee has to independently verify the caste claim of the applicant before it. According to him, merely because the Petitioner fails to substantiate (as alleged) his caste claim, the certificate cannot be invalidated by the scrutiny committee. He states that in the present facts, there is no such independent effort by the Vigilance Officer and the documents filed by the Petitioner have been scrutinized 10 only with a view to any how find out lacunae or mistakes. He had pointed out that the forefathers of the Petitioner were from Morlem in Bicholim Taluka and from there they migrated to Vazari in Pernem Taluka and lastly in Socorro in Bardez Taluka.

Without prejudice to his contention on merits about non- consideration of evidence of 19 witnesses and 36 documents filed by the petition on record, Adv. Dessai argues that as per bye-laws above mentioned, president of Samaj has no power to annul the certificate issued to Petitioner. He relies upon bye-law Nos. 4, and 44 to point out that once such certificate is granted, its revocation has to be only by general body. He points out that in present facts, the certificate has been given by the President of the said Samaj and its cancellation is also by the very same President and there is no resolution of general body & hence, the withdrawal of certificate is invalid in law. 13

He further states that the Superintend of Police (Headquarters), for and on behalf of the Director General, Panaji constituted Vigilance Cell on 6.9.1999 which comprises of Deputy Superintendent of Police, Crime Branch, CID; Police Inspector, Crime Branch, CID and the Police Inspector (ACB), Panaji. He contends that then occupants of the said post are named in the said order dated

6.9.1999 and, thereafter, the Vigilance Cell has not been reconstituted at any point of time. Police Inspector, Porvorim who issued the communication dated 28.8.08 to the Petitioner and allegedly prepared the Vigilance Report is not part of this Vigilance Cell and hence the report of the said authroity dated 18.9.08 cannot be recognized as legal and valid Report prepared in pursuance of the Hon'ble Apex Court Judgment in Kumari Madhuri Patil (supra).

Communication dated 23.4.07 issued by the Deputy Inspector General of Police does not modify the above mentioned Government Order dated 6.9.99 and it does not reconstitute the Vigilance Cell. He points out that the said communication only mentions that the Vigilance 14 Officer has to visit the place of residence of applicant/claimant for verification of his caste claim and merely calling such applicant to the police station is not sufficient. He points out that in the present circumstances though the Police Inspector, Porvorim has stated that he had visited the place of the Petitioner, the Petitioner was not present at the relevant time and the fact of such visit is being denied by the neighbour Parshuram who filed affidavit before the Scrutiny Committee, denying such visit and any inquiry by the said Police Inspector with him. He has, therefore, contended that the said Vigilance Report dated 18.9.08 does not meet the requirements of the Judgment of the Hon'ble Apex Court and is liable to be quashed and set aside. It is his submission that once Vigilance Report dated 2.9.08 is quashed and set aside, it becomes essential to call for fresh vigilance report and the consequential order dated 26.11.08 by Respondent No.1 Scrutiny Committee must, therefore, automatically fall to ground. To substantiate

his objections to the Vigilance Report, the learned Senior Advocate has invited attention to cross examination of the Police Inspector, Porvorim conducted on behalf of the Petitioner before the Scrutiny Committee.

Senior Adv. Shri S.G. Dessai invited attention to another 15 certificate of registration of birth dated 12.12.1962, in which name of Petitioner’s father has been mentioned as “Arjuna Naique Ozarkar”. He points out that the birth of real brother of the Petitioner by name Subhash on 5.5.1956 has been recorded in it. Certificate of registration of birth dated 12.12.1962, in which name of his father has been mentioned as “Arjuna Naique Ozarkar” shows the birth of his real sister Sunita on 13.8.1951 & in these two certificates, occupation of his father has been mentioned as “cart owner”. The three birth certificates issued by the then competent authority on the basis of these records on 12/12/1962 are also pointed out. Affidavit dated 3/7/2007 of Suresh Tukaram Naik son of Tukaram Babani Naik, paternal uncle of Petitioner Sandeep was pressed into service before the Scrutiny Committee to prove that family was using “Naik” or “Naik Vazarkar” or “Vazarkar” or “Ozarkar” as surname and it belonged to Gomantak Bhandari Samaj.

Affidavit in evidence dated 21/10/2008 tendered by Anand Mandrekar declaring that he belongs to Samaj, that he was authorised as recommender for issuing Naik Bhandari caste certificates in Socorro area, that Petitioner Sandeep & his family belonged to said caste and people of said caste never go to eat food at Devli(Bane) community was 17 relied upon. Affidavit in evidence of Kartik Kudnekar dated 21/10/2008 declares that Petitioner belongs to Bhandari Samaj. He has stated that Petitioner's uncle by name Narayan Mahadev Naik Vazarkar & Harischandra Mahadev Naik Vazarkar used to come to his residence to meet his father & his father as also Vazarkars were having bullock- carts. He also declared that his father used to say that Vazarkar family was Gadekars i.e. Bullock-cart carriers. Affidavit in evidence of Subhash N. Kinalkar dated 21/10/2008 declaring that he was registered member/Mahjan of Shri Dev Rudreshwar temple at Harvelem-Goa, that he was vice-president of said Devstan, that family of Petitioner used to come to temple for Shivratri & Shrawana Somwara, that Petitioner's grandfather Shri Mahadev Baboni Naik Vazarkar was the registered founder member of Devsthan, that his father told him that said Mahadev used to reside earlier at Morlem in Bicholim Taluka was also filed before the Committee.

The learned Counsel has pointed out the cross examination of the witnesses to urge that it was conducted in a manner revealing no definite defence and that denial of caste of Petitioner by Respondent no. 4 was only for name-sake. The relationship of Petitioner with late Mahadev or Madeo Baboni Naik has been established through oral as also through 1941 sale-deed. It is urged that said land is still with the Petitioner & form no. I & XIV for year 1970 to 1972 are pointed out to show the name of Petitioner's grandfather recorded against it. Affidavit of real brother of Petitioner by name Subhash Arjun Naik Vazarkar is also pointed out to show that he named his first son as Rudresh after Shri Dev Rudreshwar as per desire of his late grandmother Parvoti Mahadev Naik Vazarkar. Said birth registered on 29/5/1982 reveals that Rudresh is born to Subhash on 24/5/1982. Sale deed dated 25/9/1992 is also relied upon to show that name of real brother of Petitioner is 20 written as Shivdas Arjun Vazarkar @ Shivdas Arzun Naique Ozarcar at Sr. no. 13 and name of Petitioner himself is also written in identical fashion at Sr. no. 17 in it.

In this background, findings of Goa bench of National Commission For Backward Classes recorded after public hearing, particularly paragraph 4(ii) & (v) are relied upon to show that bullock- cart driving is accepted source of livelihood and about 80% of the population was landless & earned by manual labour. It is contended that thus 20% of the caste people own lands and hence, ownership of land or financially sound condition of Petitioner's family could not have been relevant to invalidate his caste claim. Para 10 of said findings also refer to vol. 1 of the book titled “ Hindu Temples & Deities” by Shri Rui Gomes Pereira & notes mention therein of temple of Shri Rudreshwar at Bicholeim and that Bhandari Naik community is described in it as belonging to “Shudra Class”.

Adv. Deasai, the learned Sr. Adv. has heavily relied upon the judgment of learned Single Judge of this Court reported at 2003(1) All M.R. 1042—Shri Rambhau Diwakar Parkhedkar vs. State of 21 Maharashtra to show that if there is no report of vigilance cell, the exercise of verification of caste claim by the Scrutiny Committee can not be sustained. He points out that Hon. Apex Court has in (1995) 4 SCC 32- Director of Tribal Welfare, Govt. of A.P. vs. Laveti Giri and anr., in para 6 made certain observations about the onus of proof but those observations do not form its ratio and in present facts when there is no report of duly constituted vigilance cell, the law as expounded by the learned Single Judge must hold good. Very fairly (2004) 2 All M.R. 884-- Mansaram s/o. Gangaram Wade vs. State of Maharashtra and ors.,, the subsequent Division Bench judgment is also pointed out to urge that it does not overrule the view of learned single judge and takes other view of the matter only because of subsequent enactment i.e. Act no. XXIII of 2001 i.e. Maharashtra Scheduled Castes, scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance & Verification of) Caste Certificates Act, 2000. It is pointed out that S. 8 of said Act no. XXIII of 2001 places burden upon claimant to prove his caste and hence. Division Bench has reached the other view but could not overrule the learned Single Judge. As such an enactment is not available in Goa state, the view of learned Single Judge still holds good 22 here and has persuasive value. Hon. Apex Court has in -- Director of Tribal Welfare, Govt. of A.P. vs. Laveti Giri and anr. (supra) in terms followed its earlier judgment in case of Kumari Madhuri Patil (supra) and hence, here when the Respondent no. 4 came up with case that Petitioner belonged to Devli(Bane) caste , burden was upon him to show that Petitioner belonged to that caste and therefore did not belong to Naik Bhandari caste. The impugned order of the Scrutiny Committee is assailed on these grounds as mechanical and arbitrary.

By inviting attention to letter dated 26.8.2008, Advocate Dessai has stated that the Scrutiny Committee has, in turn, referred the matter to Vigilance Cell by quoting the Judgment in the case of Kumari Madhuri Patil (supra). He points out that invalidity of inquiry undertaken by the Police Inspector Porvorim was pointed out to the said P.I. himself and also to the Scrutiny Committee by raising specific objections and in cross examination, the said P.I. accepted that he had no knowledge of the Judgment in Kumari Madhuri Patil's case. In this background, reliance has been placed on the case of Prabhu s/o. Narayan Survase vs. State of Maharashtra & Ors., reported at 2004(4) All MR 815 to urge that obtaining vigilance report is mandatory 23 requirement and the burden is not completely upon the claimant. Importance of role of Vigilance Cell in the process is being pointed out with obligation of scrutiny committee in the matter by placing reliance upon the judgment in the case of Gayatrilaxmi Bapurao Nagpure vs.

Our attention has been invited to specific assertions contained in the affidavits dated 1.8.08, 18.8.08 and 21.10.2008 which have been treated as his affidavits of examination-in-chief and through 25 which the Petitioner has connected the documents produced on record. It is urged that there is no cross examination in relation to material facts brought on record by the petitioner and there is no cross examination about 1941 Sale Deed or then the name of grandfather Mahadeo as appearing in these documents. Only cross examination is in relation to the fact of mahajanship of Mahadev Babal Naik. He states that suggestion made to the petitioner has been denied by him and the question put by the Presiding Officer to the Petitioner again shows ignorance of the Circular dated 3.7.07. Our attention has been invited to the documents like ration card issued to cousin brother of the petitioner Mohan H. Naik, birth certificate of Babuso Mahadeo Naik in which Mahadeo Naik and Parvati Mahadeo Naik are shown as grandparents. Said Babuso and Mohan are sons of Harishchandra Naik, brother of petitioner's father. Attention is also invited to the birth certificate issued to Keshav Harischandra Naik, another son of Harishchandra where along with surname “Naik” surname “Vazarkar” has also been used as part of surname and names of grandparents are also mentioned, as Mahadeo Naik Vazarkar and Parvati Mahadeo Naik Vazarkar. Attention is also invited to the affidavit of Suresh Tukaram Naik, paternal cousin uncle of the petitioner who has stated that Babani Naik Vazarkar was 26 paternal great grandfather of Sandip Vazarkar and the family has been using this surname like “Naik” or “Naik Vazarkar”. But he has stated that the family belongs to Gomantak Bhandari Samaj. Certificate dated

26.6.07 issued to said Suresh by the Samaj, certificate dated 5.7.07 issued to him by the Dy. Collector and S.D.O. Mapusa, Goa, as also his certificate of birth wherein name of his grandfather has been recorded as Baboni Naique, death certificate of Mahadeo Naik Vazarkar which mentioned the name of his father as Babani Vazarkar, certifying that death occurred on 9.7.1980 and registered on 8.8.1980 is also pointed out. It is contended that these documents and certificates sufficiently established the truth in the claim of the petitioner and in any case, necessitated further verification through the Vigilance Cell. Our attention has also been invited to the evidence tendered on affidavits by the Ex-Secretary, Ex-Vice President and Ex-President of Rudreshwar Temple pointing out that the petitioner is lineal descendant on record of Mahajan Mahadev Babani Naik and it is argued that no reason has been given to discard this independent material which has come on record.

Senior Advocate Shri Nadkarni for respondent No.4 has contended that the Scrutiny Committee has perused the Vigilance Cell 27 report and the documents on record. Its findings are based upon material and, therefore, in writ jurisdiction this Court cannot interfere in the matter. He points out that the caste certificate was first obtained by the petitioner without completing procedure therefor in one day only and he also obtained validity therefor from the Scrutiny Committee similarly. He contends that the very same PI whose vigilance report is being objected to now had then submitted a report in favour of the Petitioner and the Petitioner, in fact, attempted to obtain the relief that the said verification should also be held good in the re-verification exercise/matter. He contends that there never was any independent inquiry undertaken either by the Talathi or Mamlatdar and because of the influence of the Petitioner, even the Scrutiny Committee mechanically issued him the validity certificate. In this background, he contends that the learned Advocate General, after realizing the difficulties, accepted to re-verify the certificate and accordingly, the Scrutiny Committee had undertaken the work of re-verification. According to him, the validity already issued was being re-looked and hence, the parameters laid down by the Hon'ble Apex Court in Kumari Madhuri Patil (supra) were and are not relevant. He invites our attention to the findings recorded by the Scrutiny Committee to contend that the 28 petitioner could not connect himself with Mahadeo Babal Naik, a person recorded as mahajan way back in 1928.

He invited our attention to initial application for grant of caste certificate moved by the petitioner to show that their caste or sub- caste in relation to which certificate was sought, was not mentioned and even the details of properties were not furnished. No details of income or wealth were given and it was mentioned that the petitioner did not belong to creamy layer. He further stated that the form itself carried a warning that if the information furnished was found to be incorrect, the certificate was liable to be cancelled and the applicant was liable to further action as provided under the law and/or Rules and still material columns were left blank. Inspite of this, Talathi issued the necessary clearance and it is pointed out that the Talathi has mentioned the occupation of the Petitioner to be service, which is contrary to the application moved. The Talathi has also certified that the Petitioner did not belong to creamy layer and did not furnish any other information to verify the place of origin of the applicant's family.

Advocate Shri Nadkarni states that in the meanwhile, on

22.7.07, the Petitioner corrected the name of his great grandfather from Babal to Babani in death certificate of his grandfather and when this 31 correction was put to him, he admitted it in his cross examination. He has then invited our attention to various replies and statements made by the Petitioner to point out how there was no plea of family being originally from Morlem or then of any mahajnship of Rudreshwar Temple or migration. The said story has been for the first time evolved and brought on record in oral statement given to PI, Porvorim on

29.8.08 and though the period during which the family migrated from one place to other place was disclosed in reply, it was not given to the Vigilance Cell to avoid any verification. The concerned PI, therefore, could not verify those facts. Our attention has been invited to the fact that 3 birth certificates of children of Arjun brought on record show that Arjun was born either in 1922 or in 1932 at Socorro itself, and as per the statement of Narayan i.e. brother of Arjun, aged 80 years, the family was residing at Socorro since his birth i.e. since 1927. In these circumstances, it is contended that these documents clearly show that story of migration of family from one place to another is false. Attention has been also invited to 1941 sale deed to show that name of Mahadeo has been recorded as landlord and from Village Socorro itself with contention that if Mahadeo had arrived at Socorro in 1940-41 itself, he would not have been mentioned either as landlord or as native of 32 Socorro and it did not support any story about migration. Affidavit of one Digamber Kauthankar is also pointed out to urge that he was claiming to know the family since last 65 years and they were residing at Socorro only. Learned Sr. Adv. has pointed out that the deponent Digamber himself was only 54 years old.

It is urged that the Petitioner himself sought leave from the Scrutiny Committee to lead additional evidence and even filed 3 affidavits. All the affidavits are of general nature and documents placed on record were also very general i.e. not relevant for determining the caste as such. Attention has been invited to list of documents and it is contended that those 36 documents filed along with the reply dated

1.8.08 mostly pertained to the period after verification was undertaken. Paragraph 11 of this affidavit is pressed into service to urge that for the first time before the Scrutiny Committee the place of original residence or Mahadeo being Mahajan of Lord Rudreshwar and fact of his name appearing at serial no. 1364 was pointed out . It is contended that again no details of shifting of family from one place to other place were given. In these circumstances, cross examination of petitioner has been pointed out to show how he admitted his income to be above 18.00 33 lakhs or 20.00 lakhs and how income certificate issued to him by the Panchayat was incorrect. It is stated that though the Petitioner relied upon people at Morlem to support his contention and also promised to place on record property documents in relation to alleged property at Ozrim, no people from Morlem were named or examined at any point of time or no documents of property at Ozrim were placed on record.

It is contended that in the police statement dated 29.8.08, no reliance has been placed upon any people from Morlem or any property at Ozrim only with a view to avoid verification. It is vociferously argued that if the Petitioner was regularly visiting with his father or brother the Lord Rudreshwar Temple and it was their family deity, when question of caste cropped up the Petitioner ought to have pleaded these facts in his first reply or then in his first application for its procurement. It is contended that the explanation given by the Petitioner that as he was not possessing necessary documents, the said facts were not pleaded, cannot be accepted as several other facts were already pleaded without any documents by him. He contends that the Petitioner accepted that there was no inquiry conducted by the Talathi when he was given the caste certificate on 11.4.07. Learned Counsel contends that when the Petitioner became aware of existence of name of one Mahadeo Babani 34 Naik in the catalogue of Mahajans, the story of migration was developed and the death certificate of Mahadeo was corrected.

The learned Counsel contends that as this conduct has been proved from records and the Petitioner obtained the caste certificate though he belongs to creamy layer, this Court should not interfere and the writ petition should be dismissed. The learned Senior Advocate has, thereafter, taken us through the examination-in-chief and cross of witnesses examined in support of his case by the Petitioner to point out that these witnesses have not brought on record any relevant facts except mentioning that the Petitioner was belonging to their caste. It is contended that the Scrutiny Committee has rightly appreciated the entire controversy and invalidated the caste claim.

Senior Advocate Shri Nadkarni has pointed out that PI Porvorim who conducted spot inquiry at the request of Vigilance Cell was cross examined by the Petitioner and also by the complainant. The fact that said PI received the communication for carrying out the inquiry from the Vigilance Cell attached to the Scrutiny Committee has been established on record and the PI, therefore, was acting as part and parcel of the said Vigilance Cell. Very high Police Officers constituting 35 Vigilance Cell are not supposed to personally verify such details and verification through PI has been duly considered by the Vigilance Cell while submitting the report. He also invited attention to the deposition of Chartered Accountant to point out how the Chartered Accountant has given evasive answers while disclosing annual income of the petitioner for past three relevant years i.e. 2004-05, 2005-06, and 2006-07. He attempts to point out that the petitioner in his cross examination accepted that his income from the business was more than Rs.15.00 lakhs and still the Chartered Accountant has tried to bring on record, position to the contrary. He invites attention to certificate procured by the petitioner from the Panchayat showing that his joint income was Rs.3,30,000/- for 3 years. He argues that the said certificate is also demonstrated to be incorrect. The Petitioner belongs to creamy layer and, therefore, he could not have used the OBC certificate for securing any benefits. The Scrutiny Committee has properly appreciated this position on record.

He has also attempted to point out that arguments of the Petitioner that certificate dated 11.4.2007 issued by the Samaj could not have been cancelled except by resolution of General Body, is incorrect. 36 He contends that the Petitioner has not brought on record the fact of his enrollment at all and hence, the provisions of bye-law No.44 which deals with cancellation of membership or expulsion of member are not relevant here. He has invited attention to bye-law No.4 to point out how membership can be acquired. He has contended that if really great grandfather of the Petitioner was mahajan of Rudreshwar Temple, it was very easy for the Petitioner to approach the temple authorities and procure the certificate in support of the said fact. He invited attention to provisions of Article 4 of the Bye-laws of said Devasthan to show that membership is hereditary, untransferable and unprescriptible.

He has invited attention to written arguments filed before the Scrutiny Committee to show how the Petitioner has mischievously mentioned number of documents to be 12, but only 10 documents have 38 been relied upon. He contends that out of 10 documents, relevant one on record has been appreciated by the Scrutiny Committee. To substantiate his contention that the Petitioner belongs to creamy layer, he could not have been given such certificate and he could not have used it as reserved category candidate to contest election, he has relied upon a Judgment of the Hon'ble Apex Court in the case of Indra Sawhney v. Union of India., reported at AIR 2000 SC 498, and has taken us extensively through various paragraphs to point out importance of concept of creamy layer and how the efforts made by Kerala Government to do away with it, have been dealt with in it. He contends that if the Petitioner is permitted to contest election as OBC candidate, it would amount to treating unequals equally. He has also pointed out how similar attempt made by the Central Government has been dealt with by the Constitutional Bench of the Hon'ble Apex Court in the case of Ashoka Kumar Thakur vs. Union of India and others., reported at (2008) 6 SCC 1 and how creamy layer has been excluded from OBC category. In this connection, he has invited attention to Notifications dated 4.10.95, 13.10.06, 14.10.08 and 21.3.09 relevant for determination of creamy layer. He points out that the Government has prescribed income test and at the relevant time it was Rs.2,50,000/-. As 39 income of the petitioner was in excess of Rs.2,50,000/-, he could not have been treated as OBC at all.

The learned Counsel has then pointed out how various Judgments relied upon by the Petitioner are not relevant. He has contended that the Judgments in which Vigilance Report is held to be essential were mostly dealing with cases of scheduled tribes where no documents were available and no inquiry into anthropology or ethnological traits was undertaken. He contends that the Hon'ble Apex Court also has in para 13.5 of its Judgment in the case of Kumari Madhuri Patil (supra) prescribed special procedure only for tribes because tribes do not possess any documentary evidence in relation to their caste. He relied upon Judgment of Division Bench of this Court in the case of Mansaram s/o. Gangaram Wade vs. State of Maharashtra and ors., reported at 2004(2) All MR 884, where Division Bench of this Court considers the situation prior to constitution of Vigilance Cell to contend that case of present Petitioner is more or less similar to it.

In reply to the arguments, Senior Advocate Shri Dessai for the petitioner has contended that creamy layer concept, as evolved, is only in relation to appointment to any post in public employment or for admission to educational institution and is not germane for the purposes of elective office. He has invited our attention to the provisions of Article 243D(6) and Article 243F(1)(a) of the Constitution of India to point out as to how the constitution envisages reservation for Other Backward Classes by the State Governments and how separate law of elections for that purpose has been evolved. The provisions of Section 7 of the Goa Panchayat Raj Act have been pointed out to show that its sub-section (5) again contemplates reservation for various categories. The notification for reserving the seat in Ward No.8 published on

5.4.2007 is pointed out and then provisions of Section 16 of the Goa Panchayat Raj Act are shown along with its Sections 20 and 21 to contend that elected candidate belonging to creamy layer is not a 43 ground stipulated therein for declaring the elections to be vitiated. Form of nomination prescribed under the Goa Panchayat and Zilla Panchayats Rules, 1996 is shown to the Court to show that it only contemplates submission of caste certificate of the competent authority i.e. by the Dy. Collector and S.D.O. in terms of paragraph 13.3(i) of the Judgment of the Hon'ble Apex Court in the case of Kumari Madhuri Patil (supra) and the procedure prescribed by Goa Government in that respect. It is contended that Respondent No.4 has filed election petition under Section 16 and, therefore, onus is upon him to show that the petitioner belongs to Devli Bane community and does not belong to Bhandari Naik caste. Our attention has been invited to copy of statements of residents of Village Socorro recorded by the Mamlatdar of Bardez in support complaint of Respondent No.4, in which though the said residents have stated that the Petitioner does not belong to Bhandari Naik community, they have stated that he migrated from Ozrim to Socorro. The learned Senior Advocate has contended that thus, there is material on record to show substance and truth in story of migration as pleaded by the Petitioner, and Vigilance Cell therefore ought to have verified it. 44

In this background, our attention has been invited to first judgment of the Hon'ble Apex Court in case of Indra Sawhney and ors., vs. Union of India and ors., reported at 1992 Supp. (3) SCC 217, particularly page 222 of the report & question No.3 to urge that the Hon'ble Apex Court has considered the aspect of public employment and admission to educational institutions only. Paragraphs 792 and 793 are again pressed into service to buttress the same contention with submission that because of higher income and improvement in standard of living, the person belonging to OBC has been excluded from it as he belongs to so called creamy layer. Judgment in the case of Indra Sawhney and ors., vs. Union of India and ors., reported at reported at AIR 2000 SC 498 heavily relied upon by Respondent No.4 is sought to be explained by arguing that exclusion of OBC candidate because he belongs to creamy layer, is for limited purposes and not for elections. Judgment in the case of Ashoka Kumar Thakur vs. Union of India and ors., reported at 2008(6)SCC 1 is also stated to be delivered in this backdrop only.

The charge of falsification of accounts by the Petitioner is stated to be misconceived with argument that when creamy layer 45 concept itself is not applicable, there was no reason for the Petitioner to tamper with his income documents. Affidavit of the Petitioner is shown to state that he disclosed his income as Rs.5,88,000/- for 3 years, but then the Secretary of Village Panchayat issued certificate that it was Rs.3,30,000/- for 3 years, as the said Secretary was under impression that the Petitioner was trying to obtain some employment. Attention is also invited to cross examination of the Chartered Account Shri Dalvi to show that he has deposed about total turn over or then about gross income and not about net income.

It is contended that argument about Petitioner obtaining certificate from Rudreshwar Temple is misconceived, because the said temple has no such authority in law and the Petitioner never opted to apply for its membership or for his enrollment as mahajan. It is contended that Article 23 of the Devasthan Regulation is, therefore, not relevant and merely because the Petitioner is not a member or not mahajan, he does not cease to be Bhandari Naik. Similar arguments are advanced in relation to alleged manipulation with regard to Mahadeo Babani Naik to point out provisions of Registration of Births and Deaths Act, 1969, particularly Sections 7 and 10. It is alleged that an 46 employee of a Panchayat like its Secretary can be appointed as Registrar and said Registrar has power to correct erroneous entries. Learned Senior Advocate has contended that S. S. Pednekar examined as witness was resident of Tulsi Mala Parye, Sattari, Goa which is adjacent to Morlem and he was 54 years old.

In his sur-reply, Senior Advocate Shri Nadkarni has stated that coming into force 93rd Constitutional Amendment, after first Judgment of Hon'ble Apex Court in Indra Sawhney and ors., vs. Union of India and ors. (supra), has got no bearing on question to be considered and logic given in both the Judgments in Indra Sawhney and ors., vs. Union of India and ors. (supra), by Hon'ble Apex Court has to be extended even to Article 243(6), as said provision is pari materia with Article 16(4). It is argued that the norms which violate Article 14 for the purposes of employment and admission, must also be held 48 invalid for the purposes of elections. To show that such analogy under Articles 15(4) and 16(4) has been applied by Hon'ble Apex Court also to elections under Article 332, the learned Counsel has placed reliance upon Judgment of Hon'ble Apex Court in the case of Sobha Hymavathi Devi vs. Setti Gangadhara Swamy and ors., reported at (2005) 2 SCC 244 and in the case of Meera Kanwaria vs. Sunita and ors., reported at (2006) 1 SCC 344. In this background, our attention has been invited to Judgment of Hon'ble Apex Court in the case of Ashoka Kumar Thakur vs. Union of India and others (supra) to show that Hon'ble Apex Court has found it necessary to maintain creamy layer in so far as reservations to OBC are concerned.

It is pointed out that witness S.S. Pednekar produced by the Petitioner before the scrutiny committee was not resident of Morlem and whether his residence was in the vicinity of Morlem or otherwise, is a question of fact and as there is no finding about it on record, contention of Advocate Dessai that said witness had personal knowledge about residence of grandfather of the Petitioner cannot be accepted. It is contended that this witness has deposed things which the Petitioner himself has not affirmed. Lastly, a Judgment of Division 49 Bench of this Court in the case of Mansaram s/o. Gangaram Wade vs. State of Maharashtra and ors., reported at 2004(2) All MR 884, particularly head note B and paragraph 8 are pointed out to state that unverified certificate issued by the Dy. Collector and S.D.O. cannot be relied upon by either Scrutiny Committee or by any Court.

Senior Adv. Shri S.G. Desai has relied on :--