Vijaykumar Alias Vijaysingh Vasantrao Desai vs The State Of Maharashtra & Ors.

(Per Neeraj P. Dhote, J.)

By consent of both the sides heard inally at the admission stage.

Impugned in this petition is the order dated 25^th June 2016 passed by the Respondent No.5 - Scrutiny Committee, invalidating the Petitioner's claim as belonging to 'Kunbi’ - Other Backward Class (OBC). The Petitioner applied for the caste certiicate as belonging to the 'Kunbi' to the competent authority. The caste certiicate was accordingly issued to the Petitioner as belonging to 'Kunbi'. The Petitioner contested the elections dated 15^th January 2026 to the Kolhapur Municipal Corporation from the ward reserved for OBC. The Petitioner was declared elected from Ward No. 9A. The Respondent No.6 got defeated in the said elections against the Petitioner. The Respondent No. 6 raised the objection to the caste claim of the Petitioner. The Respondent No.5 - Scrutiny Committee initiated the proceedings for veriication of the caste claim of the Petitioner and referred the matter to the Vigilance Cell for necessary inquiry. The Vigilance Cell conducted the inquiry and submitted its report. The Respondent No.5 - Scrutiny Committee issued notice to the Petitioner with the copy of the vigilance report, to which the Petitioner iled his reply along with the supporting documents. The Respondent No.5 -Scrutiny Committee invalidated the caste claim of the Petitioner by the impugned order.

It is submitted by learned counsel for the Petitioner that the Petitioner relied on the pre-Constitution era document of Anusaya, who was the paternal aunt of the Petitioner's father showing her caste as 'Kunbi'. The genealogy was submitted to the Respondent No.5 - Scrutiny Committee. The Vigilance Cell during inquiry found the said pre-Constitution era document as genuine. During the home inquiry, the persons with whom the inquiry was made stated that, the Petitioner belonged to ‘Kunbi’ caste. The statements of the persons recorded during the vigilance inquiry are consistent. Without any basis, the Respondent No. 6 - Complainant, disputed the relation between the Petitioner and Anusaya. The Petitioner iled his detailed reply to the notice issued by the Respondent No.5 - Scrutiny Committee. After hearing, the case was closed and thereafter some documents were collected by the Respondent No.5 - Scrutiny Committee and the impugned order was passed. The document in the name of Kisna, showing the caste as Maratha/Marathi, was not related to the Petitioner. On the basis of the entry of Kisna, which was also of the pre-Constitution era, the Petitioner's claim came to be invalidated. The school leaving certiicate in the name of Dinkar Atmaram Desai showed that, many relevant columns were left blank and therefore the caste mentioned therein as ‘Maratha’ will not be suicient to invalidate the Petitioner's claim. The Respondent No.5 - Scrutiny Committee discarded the Vigilance Cell report without any reasons. He submitted that, considering the documents on record, the impugned order be set aside and the petition be allowed.

It is submitted by learned AGP and learned counsel for Respondent No. 6-Complainant, that the pre-Constitution era document of Dinkar, who was related to the Petitioner from father's side, showed the caste as Maratha. The documents showing the caste as Kunbi were of recent period. They submitted that, the Respondent No.5 - Scrutiny Committee has properly passed the impugned order on the basis of the documents on record and no interference was called for, and the petition be dismissed.

We had called the record of the Petitioner's caste claim from Respondent No.5 - Scrutiny Committee. We perused the same.

The Petitioner's claim is for ‘Kunbi’ caste, which comes in OBC category. The Petitioner submitted the aidavit in Form-3 (Code of Civil Procedure, 1908, Order XVIII Rule 4) showing the following genealogy:

The Petitioner primarily based his claim on the pre-Constitution era document in the name of Anusaya, which is the birth entry dated 16^th August 1921 in the revenue record. The said entry was in the revenue record of the Tahsildar, Karveer, and the extract in Village Form No. 14 was issued to that efect. The certiied copy of the same is on record at page No. 365. The said entry is the birth entry of the girl child Anusaya to Atma Babu Desai and the caste is mentioned as 'Kunbi'. The record shows that, the Vigilance Cell inquired about the said entry with the Tahsil oice, Karveer, and got the photocopy of the same. The Vigilance Cell records in its report that, there was no interpolation of any nature in the said entry. The vigilance report shows that, the said entry was genuine.

The Vigilance Cell report shows that, during the home inquiry, they recorded the statements of ive (5) persons. Out of them, three (3) were not related to the Petitioner, two (2) were related to the Petitioner, and one (1) was Respondent No. 6, complainant. The statements of the three (3) witnesses, who were not related to the Petitioner, shows that, they supported the Petitioner's claim as belonging to Kunbi caste. Their statements show that, they knew the forefathers of the Petitioner. The statement of the other two witnesses, who were related to the Petitioner, also supports the Petitioner's claim. It becomes clear from the Vigilance Cell report that, except the statement of Respondent No. 6 – Complainant, nothing adverse to the caste claim of the Petitioner has been recorded.

It appears that, the Respondent No. 6 – Complainant had submitted the birth entry showing that, a son Kisna was born to Atma Babu Desai on 2^nd September 1919, wherein the caste is mentioned as ‘Marathi’. The certiied copy of the said entry of 2^nd September 1919 in the name of Kisna is at page No. 219. It shows that, son Kisna was born to Atma Babu Desai on the said date and the caste is mentioned as 'Marathi'. There cannot be any dispute that ‘Marathi’ is a language widely used in the State of Maharashtra and not a caste. It would be too technical and also impermissible to presume that ‘Marathi’ means ‘Maratha’. Therefore, the said entry by itself will not prevail over the entry dated 16^th August 1921 of Anusaya wherein the caste is mentioned as 'Kunbi'. Except bare contention, nothing concrete is brought on record by the Respondent No. 6 - Complainant to support his contention that Kisna was related to the Petitioner from the paternal side. It is worth to note that, the Vigilance Cell report is silent in respect of Kisna.

The Page No. 367 of the record shows that, the Respondent No.5 -Scrutiny Committee, by communication dated 19^th June 2023 addressed to the Headmaster, Vidya Mandir, Kasba Beed, Taluka Karveer, District Kolhapur, sought the information in respect of Dinkar Atmaram Desai to verify the school leaving certiicate of Dinkar Atmaram Desai submitted by the Petitioner. At Page No.369 of the record, is the information supplied by the Headmaster of the said Vidya Mandir School that, in the school register of the year 1915-27, the name of Dinkar Atmaram Desai was mentioned in Register No. 5, wherein his caste is shown as ‘Maratha’ and the date of birth is mentioned as 1^st April 1919. The information in respect of the admission in the school is kept blank. If we see the dates of birth of Krishna and Dinkar, the diference is of ive (5) months and two (2) days. Both of them are shown as the sons of Atmaram. We ind substance in the contention of learned counsel for the Petitioner that, it is impossible that after the birth of Dinkar in April 1919, Kisna was born on 2^nd September 1919 to wife of Atmaram.

The Respondent No.6-Complainant further relied on the birth entry dated 17^th March 1924 showing that, a son Mahadev was born to Atma Babu Desai. The certiied copy of the said entry is at Page No. 221. The said entry shows that, the caste mentioned therein is 'Marathi'. Undisputedly, the entry of 1924 is later than the entry of the year 1921 of Anusaya. Further, the record shows that, the Respondent No.6 - Complainant supplied the certiied copies of the entries dated 20^th June 1922 showing that son-Rajaram was born to Dattu Babu Desai and birth entry dated 29^th September 1925 in respect of birth of Bapu to Dattu Babu Desai. The certiied copies of the said birth entries are at page 223 and 225. In both the said entries, the caste is mentioned as 'Marathi', which, as observed above, is the language and not the caste.

The record shows that both the sides argued the matter before the Respondent No.5 – Scrutiny Committee on 16^th June 2026 and the ile was closed for order. The record shows that the Respondent No.5 – Scrutiny Committee, thereafter, addressed a letter dated 19^th June 2026 written to the Headmaster of Vidya Mandir, Kasba Beed, Taluka Karveer, District Kolhapur and sought the opinion in respect of Dinkar Atmaram Desai and, thereafter, the information was provided by the Headmaster of the said school, which is at page No.369 of the record. The same shows that, the caste of Dinkar was mentioned as ‘Maratha’ in the school record. However, the information at Page No.369 did not give the details as to when Dinkar was admitted to the said school. At Page No.269 of the record, there is the certiied xerox copy of the school leaving certiicate issued by the Headmaster, Vidya Mandir, Kasba Beed, Taluka Karveer, showing the name of the student as ‘Dinkar Atmaram Desai’, caste as ‘Maratha’ and the date of birth as 1^st April 1919. However, the columns from Nos.7 to 13 in respect of the name of previous school, the date of admission to the school, academic performance, the behavior in the school, the date of leaving the school, studying in which class and reason for leaving the school are kept blank. The remarks at Sr. No. 14 shows that, as the register was soiled, only one part of information was available. This being so, the said ‘Maratha’ entry will not be suicient to discard the Petitioner's claim in absence of any material to show as to when the said information was entered in the school record. The possibility of entering the said information of ‘Dinkar’ in the school record is most likely after 16^th August, 1921, which is the birth entry of Anusaya, as the admission in the school can be made after certain age. Had there been material on record to show that, the caste entry of Dinkar as ‘Maratha’ in the school record was prior to the said birth entrty of Anusaya, it would have had more probative value.

The other documents showing the caste as ‘Maratha’ in the school leaving certiicate of Vasant Dinkar Desai, who is the father of Petitioner and of the Petitioner shows that the said entry was subsequent to the birth entry of Anusaya. The Petitioner gave detailed response to the show cause notice issued by the Scrutiny Committee. The Petitioner had also submitted the aidavit of Pandurang Dinkar Desai, which is at Page No.157 to 159 of the record, showing the following genealogy :

There is the aidavit by one Siddhappa alias Siddhu Annappa Helvi stating that, his hereditary work was to maintain the genealogies of the families by visiting the villages. It states that they had the information/genealogy in respect of the Desai family residing at Kasba Beed, Taluka Karveer, District Kolhapur. To the aidavit, the following genealogy is submitted under the signature of the said Aiant:

The above two genealogies are not challenged. They support the Petitioner’s case. The above discussion shows that, it is established that the oldest entry is that of Anusaya, wherein the caste is mentioned as ‘Kunbi’. It is nowhere disputed either by the Respondent No. 5 - Scrutiny Committee or the Respondent No. 6 – Complainant that, Anusaya was not related to the Petitioner from his father's side. The Committee observed that, there was only one (1) entry showing the caste as ‘Kunbi’ and there were nine (9) documents, wherein the caste was mentioned as ‘Maratha’/’Marathi’/’Marathe’ and the oldest entry was showing the caste as ‘Maratha’/’Marathi’. We have dealt with the said entries of 1919, 1922 and 1924. The oldest relevant and acceptable caste entry is that of Anusaya and it will have more probative value. The Respondent No.5 – Scrutiny Committee failed to properly evaluate the documents on record. Thus, the order impugned is liable to be quashed and set aside and the petition deserves to be allowed. Hence, the following order.