High Court · 2024
Facts
1 WP / 7454 / 2024 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 7454 OF 20241] Pankaj S/o Bharat Bhimbarwad, Age – 28 years, Occ – Student, R/o. Siranjani, Tq. Himayatnagar, Dist. Nanded.2] Shubham S/o. Bharat Bhimbarwad, Age – 24 years, Occ – Student, R/o. Siranjani, Tq. Himayatnagar, Dist. Nanded... Petitioners Versus1] The State of Maharashtra Through its Secretary, Tribal Development Department, (Social Justice Department), Mantralaya, Mumbai – 32.2] The Joint Commissioner, Scheduled Tribe Certificate Scrutiny Committee, Kinwat, Division Aurangabad, Add – beside CIDCO Bus Stand, CIDCO, Aurangabad .. Respondents...Advocate for petitioners : Mr. M.V. Thorat Addl. GP for the respondent – State : Mr. A.R. Kale... CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.RESERVED ON : 19 AUGUST 2024PRONOUNCED ON : 27 AUGUST 2024ORDER (MANGESH S. PATIL, J.) :By invoking powers under Article 226 of the Constitution ofIndia, read with sub section (2) of section (7) of the Maharashtra ActNo. XXIII of 2001 (‘Act’), the petitioners are taking exception to the 2 WP / 7454 / 2024 judgment and order of respondent no. 2 – Scrutiny Committeeconstituted under that Act, refusing to validate their ‘Koli Mahadev’scheduled tribe certificates. 2.The learned advocate for the petitioners would take usthrough the papers and would submit that the observations and theconclusions of the committee are perverse and arbitrary. Isolatedcontrary entries have been resorted to as against voluminousfavourable record. Even pre-constitutional record of petitioners’ greatgrandfather Kerba Mahadu of 1347 Fasli describing him as ‘KoliMahadev’ in the pahani patrak has been lightly discarded. There wasno sufficient and cogent reason for the committee to discard such pre-constitutional record. The original entry is in Modi script and has beenduly translated by a person who had also filed affidavit. The committeeitself did not call for the record and did not verify the original and hasclearly relied upon the perception of the vigilance officer. Even if hehad some reservations that could not have been the basis for thecommittee to reach any conclusion. This is abdication of the dutyparticularly in such serious matters. The committee has not disputedgenuineness of the record from the Tehsil office of Mudhol which is nowin Nirmal district of Telangana state. The inference of the committeebased on the perception of the vigilance officer regarding ‘KoliMahadev’ entry having been made at a later point of time and is bold 3 WP / 7454 / 2024 as compared to the other entries, is factually incorrect. Correctappreciation of this pre-constitutional record would outweigh any othersubsequent contrary record, even if the committee has referred tocouple of such entries of cousin grandfather Maroti Kerba Bhimbarwadand father Bharat Naga Bhimbarwad of the year 1964 and 1972,respectively. 3.Per contra, learned AGP would support the conclusiondrawn by the committee. He would submit that it is a matter ofappreciation of the evidence. Vigilance enquiry has been conductedwhich revealed the revenue record of 1347 Fasli to have beenmanipulated. The entry therein appears in bold ink, demonstrating thatit was a recent one and inserted at a later point of time and was notmade in the ordinary course of the business of that public office. Hewould, therefore, submit that the observation and the conclusion of thecommittee refusing to bank upon such dubious entry cannot bequestioned.4.Learned AGP would further submit that the petitioners hadfailed to discharge the burden cast on them under section 8 of the Act.The petitioners also could not get through the affinity test. Its efficacyhas not been discarded at all. In the light of the dubious documentrelied upon by the petitioners, no exception can be taken with the
Legal Reasoning
4 WP / 7454 / 2024 committee in even applying the affinity test. He would, therefore, prayto dismiss the petition.5.We have carefully gone through the papers, including theoriginal papers of the petitioners’ proposals with the scrutinycommittee.6.Obviously, this being a tribe claim, pre-constitutional recordwill have its own importance. Naturally, the petitioners are relying uponpahani patrak of 1347-48 Fasli which corresponds to the year 1937-38A.D. There is no dispute about the fact that the original pahani patrakfrom the office of Tehsildar, Mudhol, District – Nirmal of Telanganastate, was personally inspected by the vigilance officer by approachingthat office. Admittedly, the impugned judgment and order has beenpassed by the committee solely basing its conclusion on what wasreported by the vigilance officer after going through the original revenuerecord. Independently, the committee had not called upon the originalrecord for its own inspection. Admittedly, a coloured photocopy of therelevant page of the register was collected by the vigilance officer andthe committee had an occasion to peruse it.7.After going through this coloured photocopy of the pahanipatrak which was maintained in Modi script and about translation ofwhich there is no dispute, we have a strong reservation about the 5 WP / 7454 / 2024 observation of the vigilance officer and even that of respondent no. 2 –scrutiny committee in the order under challenge. We cannot and we donot subscribe to the inference and the observation of the vigilanceofficer as well as the committee. As against the relevant entry inrespect of survey no. 3, the word ‘Koli Mahadev’ is appearing below thename of the petitioners’ great grandfather Kerba wald Mahadu. By nostretch of imagination can it be said that these words ‘Koli Mahadev’,are in dark ink as compared to the remaining portion of this very entryin respect of survey no. 3 in different columns. The observation andconclusion of the committee in spite of the coloured photocopy beingavailable to it, clearly shows that it has blindly relied upon theobservation of the vigilance officer rather than forming its own opinionto verify it in juxtaposition to the photocopy of the original entry. Had itdone so, we have no manner of doubt that it would not havesubscribed to the observation of the vigilance officer.8.To repeat, this pre-constitutional record is coming forthfrom the concerned Tehsil office, genuineness of which comes with apresumption about having been maintained in the ordinary course ofthe official business. A perfunctory inference by the committee, readilysubscribing to the inference drawn by the vigilance officer, isunbecoming of the office which has been conferred with the powers insuch serious matters.
Decision
6 WP / 7454 / 2024 9.Be that as it may, we have no manner of doubt inaccepting this 1347-48 Fasli revenue record wherein the petitioners’great grandfather was described as ‘Koli Mahadev’. Naturally thisbeing a pre-constitutional record, would be of greatest relevance ascompared to the subsequent couple of entries wherein, as mentionedherein-above, the petitioners’ cousin grandfather and father weredescribed as ‘Koli Mahadev’ in the year 1964 and 1972, respectively.10. True it is that relevance of affinity test has not been out-rightly discarded in Maharashtra Adiwasi Thakur Jamat SwarakshanSamiti Vs. State of Maharashtra and others; 2023 SCC Online SC326. However, perusal of paragraph no. 25 of that judgment wouldclearly demonstrate that it cannot be resorted to, to dislodge thedocumentary evidence.11.In the light of above discussion, in our considered view, theimpugned judgment and order discarding the pre-constitutional recordof 1347-48 Fasli is clearly perverse, arbitrary and capricious. Since it isa favourable record which lends support to the petitioners’ claim ofbelonging to ‘Koli Mahadev’ scheduled tribe, the impugned judgmentand order is liable to be set aside.12.In the result, the writ petition is allowed. 7 WP / 7454 / 2024 13.The impugned order is quashed and set aside. 14.The respondent - committee shall immediately issue tribevalidity certificates to the petitioners as belonging to ‘Koli Mahadev’scheduled tribe. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEarp/