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Judgment
By consent of both the sides heard finally at the admission stage.
By the present writ petition, the Petitioner, who is the elected member of the Respondent No.3-Municipal Council, challenges the order dated 18th July 2026 passed by the Respondent No. 2-Scrutiny Committee invalidating the claim of the Petitioner towards the 'Nhavi' caste, which comes in the Other Backward Class category ('OBC').
As the Petitioner got elected from the seat reserved for the OBC, her caste certificate showing her caste as 'Nhavi' came to be referred to the Respondent No.2-Scrutiny Committee for verification. In support of her claim, the Petitioner submitted several documents, including the validity certificate issued to one of her blood relatives from the paternal side. The Respondent No.2-Scrutiny Committee referred the Petitioner's claim to the Vigilance Cell. The Vigilance Cell conducted the inquiry and submitted the report. The copy of the report was given to the Petitioner and she submitted her say to the same. The Respondent No.2-Scrutiny Committee, after considering the documents on record, passed the impugned order invalidating the claim of the Petitioner.
It is submitted by learned counsel for the Petitioner that, the Respondent No.2-Scrutiny Committee invalidated the Petitioner's claim mainly on the ground that, the profession of the blood relatives of the Petitioner was found to be agriculture, service, etc. There is no dispute in respect of the genealogy submitted by the Petitioner before the Respondent No.2-Scrutiny Committee. The blood relative of the Petitioner from the paternal side, by name Jameer Nizam Khalife is having the validity certificate of 'Nhavi' caste. The said validity certificate was challenged by one Ramakant Shantaram Malpekar before this Court in Writ Petition No. 484 of 2015, which came to be dismissed. Nowhere it is the case of the Respondent No.2-Scrutiny Committee that, there was misrepresentation or fraud by the Petitioner. The Petitioner had given detailed reply to the show cause notice issued by the Respondent No.2-Scrutiny Committee with the Vigilance Cell report. As the blood relative of the Petitioner from the parental side is holding the validity certificate, the Petitioner is entitled for the validity certificate as per the Maharashtra Caste Certificate Rules, 2012 ('Rules of 2012'), which provides that if the applicant produces the validity certificate of the blood relative from paternal side, the Scrutiny Committee is required to issue the validity certificate, without asking for any other document or proof. He submits that, the petition be allowed by setting aside the impugned order.
It is submitted by the learned AGP for the Respondent Nos.1, 2, 5 and 6 that, the Petitioner failed to prove that she belonged to the 'Nhavi' caste. During the Vigilance Cell inquiry, the Vigilance Cell recorded the statements of several persons, who stated that the ancestors of the Petitioner were engaged in the profession of agriculture and some were in the services. The Respondent No.2-Scrutiny Committee passed the impugned order on the basis of the documents available on record. She further submitted that, the Respondent No.2-Scrutiny Committee have issued the show cause notice to the said Jameer Nizam Khalife for cancellation of his validity certificate issued by the concerned Scrutiny Committee. She submitted that, in the light of these facts and circumstances of the case, the writ petition be dismissed.
The learned counsel for the Respondent No. 7, who filed the complaint before the Respondent No.2-Scrutiny Committee submits that, the Petitioner did not belong to the 'Nhavi' caste and supported the contention made by the learned AGP. He submitted that, one Mr. Sharfuddin Zafar Khalife had submitted the affidavit in the above referred Writ Petition No.484 of 2015 stating that Jameer Nizam Khalife and his ancestors did not belong to the 'Nhavi' caste. No fault can be found with the impugned order and the petition was liable to be dismissed.
With the assistance of both the sides, we have gone through the records. The genealogy of the Petitioner, which was submitted before the Scrutiny Committee, is as follows:
Perusal of the impugned order goes to show that, the claim is invalidated mainly on the ground that, the ancestors and blood relatives of the Petitioner were not found to be in the work of hair cutting, i.e., were not barber. The impugned order further shows that, the validity issued to Jameer Nizam Khalife was discarded on the ground that, the pre-Constitution era documents, as submitted by the complainant, do not support the Petitioner's claim and the said documents were not before the Scrutiny Committee, when the validity certificate was issued to Jameer Nizam Khalife. While considering the point as to whether the Petitioner proved that, she belonged to the 'Nhavi' caste, which comes under OBC category, there is categoric observation in the impugned order that, generally the mention of caste is not found in the school or the revenue documents of the people belonging to the Muslim religion.
There is no dispute about the aforesaid genealogy, which shows that Jameer Nizam Khalife is the blood relative of the Petitioner from the paternal side. It is also not in dispute that the said Jameer Nizam Khalife is having validity certificate, as belonging to the 'Nhavi' caste. Undisputedly, one Ramakant Shantaram Malpekar had filed Writ Petition No.484 of 2015 challenging the validity certificate issued to Jameer Nizam Khalife and the said writ petition was dismissed by this Court by judgment and order dated 13th June 2019. The copy of the said judgment is placed on record. It would not be out of place to reproduce the relevant observations from the said judgment :
13.Having dealt with the preliminary challenge to the tenability of the petition, we proceed to dealt with the merits of the matter. As observed earlier, the thrust of the submission of the learned counsel for the petitioner is that the respondent No.3's claim is fraudulent. The discrepancy in the entry regarding the religion/caste, "in the admission register" and "the School Leaving Certificate" of the father of the respondent No.3, is the substratum on which the edifice of submission of fraud is rested.
14.Shri Mendadkar, further submitted that once there is material to indicate that the impugned order is obtained by practicing fraud, then the respondent No.2-Committee could not have lent its approval to such conduct on the part of the respondent No.3 and the order is thus vitiated in its entirety. A strong reliance was placed on the observations of the Supreme Court in the case of A.V. Papayya Sastry & Ors. Vs. Govt. of A.P. & Ors.1, wherein, after adverting to the numerous authorities on vitiating effects of fraud on the judicial proceedings, the following observations were made :-
'22 It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings."
15.It is indubitable that fraud vitiates every act. However, the material on record does not indicate that the aforesaid proposition would govern the facts of the instant case with equal force. In the impugned order, the respondent No.2-Committee has considered the challenge based on the allegations of fraud in the context of discrepancy in the "admission register" and "school leaving certificate". The Committee found that during the course of vigilance enquiry, the vigilance officer recorded the statement of one Mr. Arif Merchant, the chairman of Dawoodbhoy Fazalbhoy Education
---1 (2007) 4 SCC 221 Trust to the effect that the grandfather of the respondent No.3 had made an application subsequently to correct the entries in the school register and on the basis of the said application, the school leaving certificate came to be issued. However, the original application was untraceable. It is pertinent to note that the school leaving certificate of the father of the respondent No.3 came to be issued in the year 1971. The respondent No.3 was born in 1981 and the aforesaid school leaving certificate was sought to be used by the respondent No.3 in 1999. In the circumstances, in the opinion of the Committee, no fraud can be attributed to the act and conduct of the respondent No.3.
16.The aforesaid approach of the respondent No.2-Committee appears justifiable. It is not the case that the respondent No.3 in the wake of the controversy subsequently got the entries in the school leaving certificate corrected. The application was made in the year 1971 and the school leaving certificate came to be issued thereafter. The respondent No.3 was born in 1981. It might not have been even in the contemplation of the grandfather of the respondent No.3 that the said entry would enure for the benefit of the respondent No.3.
17.Even otherwise, we are of the view that, even if we eschew the said entry in the school leaving certificate of Muslim-Nhavi, entered against the name of the father of the respondent No.3, from consideration, there is adequate material to justify the claim of the respondent No.3 that he is a Muslim-Nhavi. In the detail vigilance enquiry, the vigilance cell found that the grandfather of the petitioner used to work as a Barber at Paramount Hair Dressing Hall, Raheman Building, Fort, Mumbai-1 from 1959 to 1961. A statement of the owner of the said saloon came to be recorded. During the enquiry, the vigilance officer had also recorded statements of number of persons who have asserted that the respondent No.3 is a member of Muslim-Nhavi caste. It is not the case that there are no persons who pursue occupation of barber in Muslim religion.
18.We are impelled to record that the respondent No.2-Committee was also justified in placing reliance upon, and giving weightage to, the report of the vigilance cell in the backdrop of a judicially recognized fact that in the case of the Muslims, the caste and sub-caste is generally not mentioned in the birth certificate and other school records. In this context, a profitable reference can be made to a judgment of this Court in the case of Shri Imram A. Ajij Shaikh Vs. State of Maharashtra & Ors.,2 wherein the following observations were made :-
“5 In the present case, after hearing both the parties even considering the impugned order, we have noted that the Respondent-Committee failed to consider the facts and circumstances of the present case specifically when it refers to matters that the Petitioner belongs to “Muslim Julaha” caste. The requirement of documents of the community in question as insisted, in our view, is uncalled for. The very Vigilance Cell report, so prepared based on the material collected by the concerned Officer, at the relevant time, by recording reasons and/or statements of the people of the locality as well as community, unless a case of fraud and/or mis-representation is made out, can only be required to be interfered with. There is no such reason and/or justification given. The justification given is by overlooking the findings of the Committee’s report as recorded above. It is quite settled in Madhuri Patil’s case (supra) that once the report is in favour of candidate found to be genuine and true, no further action needs be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained or serious doubts are raised.
6.There is nothing on record to show any contra material and/or any objection by any one on record. The inquiry report itself supports the case of the Petitioner based on all the traits, traditions, characteristics and customs of his caste. There is nothing to disbelieve the inquiry conducted by the Vigilance Cell. Respondent no.2 wrongly rejected the documents placed by the Petitioner as caste is mentioned only as Musalman. In the Muslim community, there are few cases in which the caste is recorded regularly and/or properly in any Government record. Therefore, the Committee ought to have considered the Vigilance Cell report instead of relying solely upon the documents placed on record by treating it to be unreliable. The Committee must consider in such situation that unless contrary material is placed on record and other documents are not clear as not available in the particular community, the Vigilance Cell report needs to be respected. There is no question of discarding the Vigilance Cell report, the purpose for which is well reconsidered and even recorded by the Apex Court in Madhuri Patil's case and Dayaram's case (supra)."
(Emphasis supplied)
In the light of the aforesaid legal position, and the facts of the case at hand, in our view, the respondent No.2-Committee was within its rights in granting caste validity certificate to the respondent No.3. The circumstances of the case do not warrant exercise of extra-ordinary jurisdiction under Article 226 of the Constitution of India to interfere with the findings of fact recorded by the respondent No.2-Committee, which cannot be said to be either perverse or unreasonable. For the foregoing reasons, the petition deserves to be dismissed.
10.The Rules of 2012, as pointed out by the learned counsel for the Petitioner, provides for issuance of validity certificate to the applicant, if the validity certificate is issued to the blood relative, without asking for any other documents or proof, by considering the validity certificate as an important evidence. It appears from the submissions made by learned AGP that, the Respondent No.2-Scrutiny Committee has started the process of cancelling the validity certificate issued to said Jameer Nizam Khalife, that is the blood relative of the Petitioner. As on date, the validity certificate issued to said Jameer Nizam Khalife, who is the blood relative of the Petitioner, is not cancelled and stands valid. Therefore, in the light of the above discussion, the Petitioner cannot be denied the validity certificate as belonging to the 'Nhavi' caste on the basis of the validity certificate issued to one of the blood relatives, i.e., Jameer Nizam Khalife. However, the issuance of the validity certificate to the Petitioner shall be subject to the outcome of the process of cancellation of the validity certificate of Jameer Nizam Khalife. In this view of the matter, the following order is passed:
ORDER
The Writ Petition is partly allowed.
ii) The impugned order dated 18th July 2026 passed by the Respondent No.2-Scrutiny Committee invalidating the Petitioner's claim towards the 'Nhavi' caste is quashed and set aside.
iii) The Respondent No.2-Scrutiny Committee is directed to issue the validity certificate to the Petitioner as belonging to the 'Nhavi' caste (OBC) within a period of one (1) week from today, which shall be subject to the outcome of the process of cancellation of the validity certificate of Jameer Nizam Khalife, i.e., coterminus with validity certificate of Jameer Nizam Khalife
iv) The consequential order passed by the Respondent No.4 cancelling the membership of the Petitioner from the post of the elected Corporator of the Rajapur Municipal Council is quashed and set aside.
The Writ Petition is disposed of accordingly.
Footnotes
- 2.2015(4) Mh.L.J. 901