High Court
Facts
1 WP / 3939 / 2022+The judgment is corrected vide Speaking to Minutes Order dated 20-07-2024IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 3939 OF 2022Kunal S/o Bhagwan WaghAge – 23 years, Occu : Student,R/o 7, Indira Housing Society,Dattamandir Chowk, Deopur,Dhule, Tq. & Dist. Dhule.. Petitioner Versus1] The State of Maharashtra Department of Tribal Development, Mantralaya, Mumbai – 32 Through its Secretary2] The Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar, Through its Member Secretary3] North Maharashtra University, Jalgaon, Tq. & Dist. Jalgaon, Through its Registrar4] G.H. Raisoni Institute of Business Management-1, Gate No. 57/1, Shrisoli Road, Mohadi, Jalgaon, Tq. & Dist. Jalgaon Through its Principal.. RespondentsWITHWRIT PETITION NO. 1550 OF 20221] Rohit S/o Yuvraj Wagh, Age – 30 years, Occu. Student, R/o House No. 2680, Lane No. 5, Near Mirchya Maroti, Dhule, Tq. & Dist. Dhule2] Varsha D/o Yuvraj Wagh, Age – 27 years, Occu. Student, R/o House No. 2680, Lane No. 5, Near Mirchya Maroti, Dhule, Tq. & Dist. Dhule.. Petitioners 2 WP / 3939 / 2022+ Versus1] The State of Maharashtra Department of Tribal Development, Mantralaya, Mumbai – 32 Through its Secretary2] The Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar, Through its Member Secretary.. RespondentsWITHWRIT PETITION NO. 1652 OF 2022Ritesh S/o Shantaram Wagh,Age – 37 years, Occu. Service,R/o Plot No. 55, Bhivsen Nagar,Wadibhokar Road, Deopur,Dhule, Tq. & Dist. Dhule.. Petitioner Versus1] The State of Maharashtra Department of Tribal Development, Mantralaya, Mumbai – 32 Through its Secretary2] The Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar, Through its Member Secretary3] The Assistant General Manager (IR & HRD), Bank of Maharashtra, Personnel Department, Central Office, “Lokmangal”, 1501, Shivajinagar, Pune – 411 005, Tq. & Dist. Pune4] The Branch Manager, Bank of Maharashtra, Branch – Chalisgaon, In front of Post Office, Tq. Chalisgaon, Dist. Jalgaon.. Respondents
Legal Reasoning
8 WP / 3939 / 2022+6.It appears that co-ordinate division benches of this Court inthe matters of Rakesh Bhimashankar Umbarje Vs. State ofMaharashtra; 2023 SCC OnLine Bom 1013, Bharat Nagu Garud Vs.State of Maharashtra; 2023 SCC OnLine Bom 2597 and Anil ShivramBandawar Vs. District Caste Certificate Verification Committee andanother (writ petition no. 8107 of 2019 dated 26-07-2021) have held inthat the committee not to have any such power.7.It has been consistently laid down that since fraud vitiateseverything, in the matters of fraud, the committee can undertakerescrutiny. Consequently, in our considered view, independent ofsustainability of the view of the scrutiny committee about the validityholders to have actually practised fraud or otherwise, once committeehaving formed a view that indeed they had practised fraud, in ourconsidered view, it was always open for the committee to undertakeenquiry into such allegations about fraud. One can safely rely upon theobservations of the Supreme Court in the matters of RajeshwarBaburao Bone Vs. State of Maharashtra and others (SLP (C) No. 10430of 2014) and Raju Ramsing Vasave V. Mahesh Deorao Bhivapurkar;(2008) 9 SCC 54.8.Needless to state that fraud is a serious allegation, it isimperative that the person alleged to have resorted to fraud, must bedemonstrated to have intentionally or with knowledge suppressed the 9 WP / 3939 / 2022+material fact, which is the stand of the committee in the matter in hand.Though the committee has tried to demonstrate, by referring to certainentries of the blood relatives from the year 1928 on wards whichaccording to it were the contrary entries like, 'भाट', 'हिं(cid:5)दू ठाकूर', 'हिं(cid:5)दू ठाकूरइतर मागासलेला', 'हिं(cid:5)दू इतर मागासवग(cid:18)', except a bald statement in all theseimpugned orders, there is absolutely no material to demonstrate that allthese petitioners were aware about these so-called contrary orinconsistent entries and they had intentionally withheld those.9.In our considered view, fraud being a drastic allegationresulting in very serious consequences, the allegations of fraudinvariably have to be proved strictly and not merely on the basis ofpreponderance of probabilities. Therefore, mere perception of thecommittee that some contrary entries were suppressed by thepetitioners in itself, would not be sufficient to prove the alleged fraud.Over and above, it was expected that it would demonstrate that thepetitioners were aware about all these contrary entries and still theyhad held those back with an oblique or deliberate intention.10.Considering the fact that it is a matter of social status andthe claimants would rely upon some record of older times, it is butnatural that they would be able to produce only some of the oldrecords. Merely because they do not produce all the record / schoolrecord / birth record of all the blood relatives, that in itself would not be 10 WP / 3939 / 2022+sufficient to draw an inference about active suppression of the materialfact. It will have to be, additionally, demonstrable that suchsuppression was with active knowledge to avoid it being considered bythe committee. This is where according to us, the impugned orders fallshort in demonstrating that whatever the so-called adverse record, thecommittee could lay its hand subsequently, was intentionally held backby the petitioners.11.Hypothetically, in a given case, it is just possible that aclaimant may be able to discover some older record, older than the so-called contrary record allegedly suppressed, which is in their favour,would it mean that he had intentionally held back the older favourablerecord. This is precisely what we intend to demonstrate as hashappened in the matter of petitioner – Kunal.12.Kunal was granted certificate of validity after conducting afull-fledged enquiry, by order of the committee dated 24-12-2020. Allthese other petitioners were granted validity prior thereto. A carefulreading of the order of the then scrutiny committee would reveal thatalthough he was relying upon the validities of the rest of the petitioners,the committee had resorted to the vigilance enquiry. The vigilanceofficer had collected the school and birth record of 12 individuals asreproduced in paragraph no. 7 of the judgment. At serial no. 1, it wasschool record of one Brijlal Mahadu describing him to be cousin great 11 WP / 3939 / 2022+grandfather of Kunal who was admitted in school on 01-01-1922describing his caste in the school record as ‘Thakur’, though there wasbirth record of one Uttam Mahadu Bhat Lalingkar who is Kunal’s greatgrandfather of 26-11-1928 describing him to be 'भाट'. The older recordwould carry greater probative value as per the decision in the matter ofAnand Vs. Committee for Scrutiny and Verification of Tribe Claimsand others; (2012) 1 SCC 113. This older favourable entry havinggreater probative value had weighed with the committee while holdinghim entitled to a certificate of validity.13.Pertinently, this entry of Brijlal Mahadu, cousin greatgrandfather of Kunal dated 01-01-1922 which was collected by thevigilance officer while undertaking vigilance enquiry in his matter wasnot available and considered by the committee while passing all theseorders recalling the certificates of validity of all these petitioners whoare the blood relatives inter se. This we are demonstrating only for thepurpose that if a blood relative at a later point of time is able to discovera favourable entry which was not relied upon by the blood relativeswho approached the committee seeking validation of their tribe claimsearlier, would it mean that in such circumstances the blood relativescould have intentionally done it so. It is quite clear that even afavourable entry which was not available to them or they could nottrace it, was not produced / relied upon by these other petitioners in 12 WP / 3939 / 2022+their own matters. This would buttress our observation that if theycould not produce contrary record even they did not produce afavourable one also.14.Interestingly, even while passing the impugned orders, thecommittee has conveniently avoided to make a reference to this schoolrecord of Brijlal Mahadu. The impugned orders are based on theadverse entry of Kunal’s great grandfather - Uttam Mahadu BhatLalingkar of 26-11-1928 describing him as 'भाट'. Obviously, this recordbeing of subsequent period than the school record of Brijlal cousingreat grandfather of 01-01-1922, the latter would have greaterprobative value.15.The committee has then relied upon contrary school recordof petitioner – Yuvraj Dangal Wagh dated 06-06-1972 and ShivajiDangal Wagh dated 30-07-1973 describing them as 'हिं(cid:5)दू ठाकूर इतरमागासवग(cid:18)', 'हिं(cid:5)दू ठाकूर इतर मागासलेला'. We would only observe that ascompared to the earlier record which we have discussed herein-above,these two entries are of quite recent past and would carry lessevidentiary value.16.The committee has then referred to contrary record of fewindividuals i.e. Narayan Bhika Thakur of 02-01-1912 describing him'ठाकूर उर्फ(cid:18) भाट' stated to be cousin father in law of Saniket’s paternal 13 WP / 3939 / 2022+aunt. It is surprising that the committee is referring to such record of aperson who is not related to the claimants by blood from the paternalside. Same is the case in respect of the other contrary entries referredto by the committee in respect of Durgadas Barka Bhamre, YashwantBarka Bhamre, Tryambak Fulchand Thakur and Jamsing NarayanBhat. The committee itself in the table has expressly described them tobe related to these petitioners from marriage showing a relationshipwhich ex facie is not through the paternal side blood relatives.17.The committee in the impugned orders has also referred toone more circumstance. It appears that some contrary entries of theschool / birth record as 'भाट', 'हिं(cid:5)दू (ब्रह्मभट्ट)' and 'हिं(cid:5)दू ब्रह्मभट्ट ठाकूर' of theperiod between 1888 to 1932 could be traced in the matter ofYashwantrao Vasantrao Bagul with whom these petitioners and evenSaniket in their respective replies, denied to have any relationship.18.The committee has referred to a statement ofYashwantrao’s father Vasantrao Kisan Bagul recorded on 11-01-2018in Yashwantrao’s matter. It has reproduced relevant excerpts from thatstatement wherein Vasantrao has apparently stated that his familymigrated from Varshi to Laling and started residing with UttamMahadev Thakur (Wagh) stated to be his near relative. Conspicuously,the committee has referred to this statement, to demonstrate that thesepetitioners are falsely denying any relationship with Vasantrao Kisan 14 WP / 3939 / 2022+Bagul and Yashwantrao Vasantrao Bagul. Accepting this statement ofVasantrao to be true, he has merely stated that Uttam Mahadev Thakur(Wagh) who was great grandfather of Saniket was merely related toVasantrao, without further describing anything to demonstrate that theywere related by blood from the paternal side which is of utmostimportance. In any case, without demonstrating that these petitionersare related to Vasantrao Kisan Bagul by blood from paternal side, thecommittee could not have relied upon this circumstance to justify itsstand of the petitioners having intentionally suppressed thecontradictory record of the individuals from the family of VasantraoKisan Bagul.19.Thus, as we have demonstrated herein-above, thecircumstances which the committee has relied upon to justify its actionof undertaking an enquiry for recalling the certificates of validity issuedto these petitioners, by no stretch of imagination could be said to besufficient to prove fraud attributable to these petitioners which alonecould have enabled the committee to undertake the re-enquiry.20.Coming back to the decision of the committee dated24-12-2020 in the matter of petitioner – Kunal, independent vigilanceenquiry was conducted in his matter. His response was called for tothe vigilance report and after hearing him, the committee had, for thedetailed reasons, validated his claim. Obviously, he was relying upon 15 WP / 3939 / 2022+several validities in the family including that of other petitioners andpetitioner – Sambhaji’s son Saniket.21.Even the committee referred to 13 decisions in differentmatters to justify its decision to grant certificates of validity to him.However, conspicuously, as is pointed out earlier, even during thatvigilance enquiry, the oldest record of Brijlal Mahadu dated 01-01-1922as ‘Thakur’ was traced and was available to the scrutiny committee.22.We are pointing out this to demonstrate that Kunal wasgranted certificate of validity by the then committee by the order dated24-12-2020 after conducting vigilance enquiry and after considering allthe aspects and only additionally, he was also held entitled to derivethe benefit of the validities in the family. It was not that he was givencertificate of validity by default, simply relying upon the earlier validities.23. We are emphasizing this to demonstrate that thecommittee in its impugned order dated 02-03-2022 in the matter ofKunal, has not made any attempt to demonstrate about he havingpractised fraud upon the committee while obtaining an order wherebythe committee directed the certificate of validity to be issued to him. Ifsuch was the state-of-affairs, the committee could not have legallyundertaken any enquiry for recalling his certificate. The only reasonrecorded by the committee for passing the impugned order recalling 16 WP / 3939 / 2022+the certificate of validity of Kunal is that since Saniket who is son ofpetitioner – Sambhaji, was directed to be issued with a certificate ofvalidity subject to the final outcome of the matters which the committeehad decided to re-open, it was open for the committee to undertake anenquiry even for recalling the certificate of validity of Kunal. It would behazardous to interpret the order of this Court in the matter of Saniket inthis manner. It will have to be read in the context of the scope of thepowers of the committee to undertake such re-enquiry.24.The order cannot be understood to mean that irrespectiveof the fact whether there was any demonstrable fraud, the power andjurisdiction was conferred upon the committee to re-open each andevery validity. Even if the committee had decided to undertake anenquiry for recalling petitioner – Kunal’s certificate of validity, it wouldhave jurisdiction and power only if it was able to demonstrate about hehaving resorted to fraud while obtaining the order of validation.25.The impugned order do not even whisper anything aboutany fraud having been practised by him. As is pointed out earlier,though the committee had granted benefit of the validity of bloodrelatives to Kunal, that was not the sole reason. The vigilance enquirywas conducted. Record of Brijlal Mahadu of 01-01-1922 which wasolder than the alleged subsequent contrary record was revealedwherein he was described as ‘Thakur’ and the validity was granted. 17 WP / 3939 / 2022+26.Even the contrary record of Uttam Mahadu Bhat of26-11-1928 was examined and was expressly held to be of no valuebeing an isolated contrary entry, relying upon the decision of this Courtin writ petition no. 8921 of 2019 decided on 24-07-2019, byreproducing paragraphs nos. 10 and 13 therein. It was also expresslyobserved that the contrary entries which were revealed in the vigilanceenquiry were of the individuals who were not related to Kunal by bloodfrom paternal side. Therefore, when Kunal was held entitled to havecertificate of validity for variety of reasons mentioned herein-above,over and above the validities in the family, the committee had no powerand jurisdiction to undertake an enquiry for recalling his certificate thattoo without actively demonstrating any circumstance even borderingfraud.27.The upshot, as far as petitioner – Kunal is concerned, thecommittee had no power and jurisdiction to undertake any re-enquiryinto his validity. As far as the other petitioners are concerned, thecommittee has miserably failed to demonstrate about they havingpractised fraud while obtaining the certificates of validity andconsequently, even in those matters, the committee had no power andjurisdiction to undertake re-enquiry.28.All the petitions are allowed. 18 WP / 3939 / 2022+29.All the impugned judgments and orders are quashed andset aside.29A.The validity certificates of petitioners Kunal BhagwanWagh, Vijay Rajaram Wagh and Sambhaji Dangal Wagh are restored.29B.The respondent / Scrutiny Committee shall immediatelyissue certificates of validity to the petitioners - Rohit Yuvraj Wagh,Varsha Yuvraj Wagh, Ritesh Shantaram Wagh and Yuvraj DangalWagh. 30.Rule is made absolute. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/
Arguments
3 WP / 3939 / 2022+WITHWRIT PETITION NO. 1583 OF 2022Yuvraj S/o Dangal Wagh,Age – 59 years, Occu. Pensioner,R/o House No. 2680, Lane No. 5,Near Mirchya Maroti, Dhule,Tq. & Dist. Dhule.. Petitioner Versus1] The State of Maharashtra Department of Tribal Development, Mantralaya, Mumbai – 32 Through its Secretary2] The Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar, Through its Member Secretary3] The Commissioner, Dhule Municipal Corporation, Dhule, Tq. & Dist. Dhule.. RespondentsWITHWRIT PETITION NO. 2747 OF 2022Vijay S/o Rajaram Wagh,Age – 46 years, Occu. Service,Presently Residing at Flat No. 103,Shriji Palace Apartment,Omkar Colony, Behind City Care Hospital,Dwarka, Nashik, Tq. & Dist. Nashik.. Petitioner Versus1] The State of Maharashtra Department of Tribal Development, Mantralaya, Mumbai – 32 Through its Secretary2] The Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar, Through its Member Secretary3] The Sub Divisional Officer, Dindori, Tq. Dindori, Dist. Nashik.. Respondents 4 WP / 3939 / 2022+WITHWRIT PETITION NO. 2754 OF 2022Sambhaji S/o Dangal Wagh,Age – 52 years, Occu. Service,R/o House No. 2680, Gat No. 5,Mirchya Maruti Khunt,Dhule, Tq. & Dist. Dhule.. Petitioner Versus1] The State of Maharashtra Department of Tribal Development, Mantralaya, Mumbai – 32 Through its Secretary2] The Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar, Through its Member Secretary3] The Divisional Controller, Maharashtra State Road Transport Corporation Ltd., Dhule Division, Dhule, Tq. & Dist. Dhule.. Respondents…Advocate for petitioners in all WPs : Mr. Sushant C. YeramwarAGP for respondents no. 1 & 2 in all WPs: Mrs. Kalpalata Patil BharaswadkarAdvocate for the respondent no. 4 : Mr. Ajay S. Deshpande (WP/1652/2022)Advocate for respondent no. 3 : Mr. N.N. Desale (WP/1583/2022)Advocate for respondent no. 3 : Mr. D.S. Bagul (WP/2754/2022)... CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.RESERVED ON : 09 JULY 2024PRONOUNCED ON : 18 JULY 2024JUDGMENT (MANGESH S. PATIL, J.) :Rule. Rule is made returnable forthwith. AGP waivesservice. We have heard both the sides finally at the stage of admission. 5 WP / 3939 / 2022+2.These are six different writ petitions which have beenclubbed by the administrative order for being tried by the same Court,since all these petitioners are stated to be blood relatives throughpaternal side and are impugning the judgments and orders passed intheir respective matters by the respondent – scheduled tribe certificatescrutiny committee (hereinafter “committee”) whereby, in a proceedingunder section 7 of the Maharashtra Act No. XXIII of 2001, their tribecertificates of Thakur scheduled tribe have been confiscated andcancelled.3.Though the impugned judgments and orders are separate,all these petitioners being blood relatives and have been relying uponsame genealogy and evidence, at the joint request of the parties and inorder to avoid rigmarole, we propose to decide these petitions by thiscommon order.4.The chquered history leading to these petitions may besummarized as under:-(a) Petitioner Sambhaji Dangal Wagh was issued with acertificate of validity first in point of time amongst the entire familyrelated by blood inter se from the paternal side. Based on this validity,some of the blood relatives subsequently started getting the tribecertificates validated. Sambhaji’s son Saniket Sambhaji Wagh had 6 WP / 3939 / 2022+approached the committee for validation of his tribe certificate. Thecommittee had rejected it. He approached this Court in writ petition no.8830 of 2019. By the order dated 24-09-2019, he was directed to beissued with a certificate of validity. However, considering the stand thatwas being taken by the committee, it was expressly clarified that thecertificate of validity of Saniket would be subject to the decision thatwould be taken by the committee in the cases of the validity holderswhich the committee had decided to re-open. (b)Petitioner – Kunal Bhagwan Wagh who is the first degreecousin of Saniket Sambhaji Wagh also submitted his proposal forvalidation. By the judgment and order dated 24-12-2020, thecommittee directed a certificate of validity to be issued to him. (c)Pursuant to the observations of this Court in the matter ofSaniket, the committee issued notices to his father Sambhaji DangalWagh and two other blood relatives; petitioner - Vijay Rajaram Waghand one Smita Shantaram Wagh, who were possessing certificates ofvalidity. They appeared in the matter in response to the notice. By thejudgment and order dated 06-01-2022, the committee recalled theircertificates of validity inter alia holding that they had obtained thecertificates of validity by suppression of contrary record wherein theirancestors were described as 'भाट', 'हिं(cid:5)दू ठाकूर', 'हिं(cid:5)दू ठाकूर मागासलेला', 'हिं(cid:5)दूठाकूर मागासवग(cid:18)'. 7 WP / 3939 / 2022+(d)Taking aid of the condition imposed by this Court whiledirecting Saniket to be issued with certificate of validity, the committeeissued show cause notice to petitioner – Kunal dated 10-02-2022. Hesubmitted reply and by the order impugned in Kunal’s petition dated02-03-2022, the committee recalled the certificate of validity issued tohim and confiscated and cancelled it. (e)Incidentally, by a separate common order in the matter ofpetitioners - Rohit Yuvraj Wagh, Varsha Yuvraj Wagh, Yuvraj DangalWagh and Ritesh Shantaram Wagh, for the selfsame reasons,assigned by the committee in the matter of Sambhaji Dangal Wagh andothers dated 06-01-2022, the certificates of validity issued to eventhese four individuals were recalled, confiscated and cancelled. (f)By way of these separate writ petitions, except SmitaShantaram Wagh who seems to have died, all these individuals arechallenging the respective orders passed by the committeeconfiscating their certificates of validity. 5.At the outset, it is necessary to note that some argumentswere advanced before us touching the aspect of power of the scrutinycommittee to undertake the process for recalling of the certificates ofvalidity issued at some earlier point of time.