High Court
Facts
wp9846.24-r-1- This order is corrected in view of the speaking to minutes of order dated 23.01.2025. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 9846 OF 20241.Manisha d/o Madhavrao WantekarAge 30 years, Occ. Student.2.Mahesh s/o Madhavrao Wantekar Age 31 years, Occ. Student, 3.Omkar s/o Rajkumar WantekarAge 21 years, Occ. Student, 4.Sanjeevani d/o Gangadhar WantekarAge 23 years, Occ. Student, All R/o. Ashoknagar, MukhedTq. Mukhed, District Nanded ...Petitioners Versus 1.The State of Maharashtra Through its Secretary,Rural and Tribal Development Department, Mumbai2.The Scheduled Tribe Certificate Scrutiny Committee, Kinwat Division at AurangabadAdd. Near Cidco Bus Stand N-2, CIDCO, AurangabadThrough its Joint Commissioner ...Respondents …..Mr. Mohanish V. Thorat, advocate for the petitioners Mr. P.S. Patil, A.G.P. for respondents ….. CORAM:MANGESH S. PATIL AND SHAILESH P. BRAHME, JJ.DATE OF RESERVING THE ORDER: 23.10.2024DATE OF PRONOUNCING ORDER: 11.11.2024
Legal Reasoning
wp9846.24-r-9- (criminal) forwarded by the concerned Court, in response to the queryraised by the committee pursuant to our directions, does not containentry of Sr. No.324, as is appearing in the certified copy of the extractof the same register obtained by the petitioners on 30.09.2024 andproduced along with the additional affidavit dated 22.10.2024 (sic).It would, therefore, have been appropriate for the committee to haveforwarded the extract of the certified copy relied upon by thepetitioners along with the correspondence made with the Court atKalburgi (Gulbarga). Without undertaking such exercise, theobservations and conclusion of the committee, to discard it, is clearlybased on the surmises and conjectures. 16. Be that as it may, since the certified copy of the extract ofcopying register issued recently on 30.09.2024, being a Court recordcoming from the proper custody and the certified copy of a publicrecord, it deserves to be accepted. 17.Consequently, though the original record of which thecertified copies were produced by the petitioners, could not havebeen verified as original record has been destroyed in the year 1999,we are satisfied that the petitioners had applied for and had receiveda certified copy of the original record in the year 1998, whichcircumstances can jointly would demonstrate that the petitioners’grand-father Hanamant, against whom an arrest warrant was issued wp9846.24-r-10- by Gulbarga Court, was described as ‘Koli Mahadev’ in the array ofaccused at Sr. No.5 and being a pre-constitutional record, it wouldcarry greatest probative value. 18.However, no exception can be taken to the observations ofthe committee on verification with the Head Master of the concernedschool, extract of the school register of which, purportedly recorded inthe caste column of Hanamant as ‘Koli Mahadev’ of 13.06.1937,since no such entry at Sr. No. 90 was found in either of the tworegisters and names of some different persons were appearingtherein. 19.But then the conduct of the committee in treating therevenue record wherein the petitioners’ forefathers were recorded as‘Koli’ and treating it to be contrary to the petitioners’ claim of being‘Koli Mahadev’, is clearly perverse and arbitrary. There is no castecolumn in the revenue record referred to by the committee and in allprobability, since the word ‘Koli’ appeared after first and middle namein the form of surname, the committee seems to have got swayedaway with it. To our query, as to if there is any practice of usingsurname as ‘Koli Mahadev’, learned A.G.P. could not give us anysatisfactory reply. Meaning thereby that merely because thepetitioners’ ancestors used ‘Koli’ as surname which appeared in therevenue record, the committee ought not to have treated it as wp9846.24-r-11- contrary entry albeit even it could not be treated as a favourablerecord as well. 20.So far as the mutation entry of the year 2018, whereby astipulation has been incorporated for the first time in the revenuerecord of petitioners’ land showing that those would be governed bythe restrictions under sections 36 and 36-A of the Code of 1966, evenif it is assumed that it has been done objectively, there is nothingbefore us and was not even before the committee, to demonstratethat such mutation was certified by the revenue officials without anyenquiry and merely for asking.21.One cannot proceed on the premise that the revenueofficials are unmindful of the fact that it is only in respect of triballands which are granted to the tribals, such a restriction is imposed,so that unscrupulous elements from forward communities cannot buysuch lands from tribals and require prior permission of the Collector.Incidentally, even the earlier record of some lands was describingthose as ‘Inam lands’ subject to restriction of transfer. It is in the lightof such state of affairs, the stand of the committee, in discarding theentry in the revenue record putting restrictions under Sections 36 and36-A of the Code of 1966, merely on the ground that those have beenincorporated by way of mutation in the year 2018, is clearly perverseand arbitrary.
Arguments
wp9846.24-r-2- O R D E R (MANGESH S. PATIL, J.) :- By invoking the powers under Article 226 of theConstitution of India, the petitioners are challenging the commonjudgment and order passed by respondent No.2 - scrtuiny committee,in a proceeding under section 7 of the Maharashtra Act No. XXIII of2001, dated 04.09.2024, refusing to validate their ‘Koli Mahadev’scheduled tribe certificates. 2.We have heard both the sides finally at the stage ofadmission, in the light of the urgency being demonstrated. 3.Mr. Thorat, the learned advocate for the petitioners wouldsubmit that the petitioners have been heavily relying upon the courtrecord in the form of CC No. 131 of second Maher 1356 Fasli oferstwhile Gulbarga Court from the State of Karnataka, wherein, thename of the petitioners’ grand-father - Hanamant Gyanoba Wantekarwas recorded in the array of accused at Sr. No.5, described thereinas belonging to the caste ‘Koli Mahadev’. They were also relyingupon the school record of their grand-father – Hanamant, whereinwhile admitting to the school on 16.06.1937, he was described as‘Koli Mahadev’ in the caste column. He would also submit that apartfrom these pre-constitutional documents, there was entry in therevenue record in respect of lands possessed by the family treatingthose as tribal lands and especially incorporating prohibition in wp9846.24-r-3- transfer of such lands under Sections 36 and 36-A of theMaharashtra Land Revenue Code, 1966 (for short “the Code of1966”). 4.Mr. Thorat would submit that the petitioners had alreadysuffered a similar invalidation and had approached this Court in writpetition No. 13162 of 2023. Since the Gulbarga Court’s record wasnot verified by the committee, by the judgment and order dated15.01.2024, the judgment and order of the committee was set asideand the matter was remanded back to it for verifying and consideringthe Gulbarga Court record. He would submit that after remand, thecommittee refused to believe the certified copy produced by thepetitioners issued in the ordinary course under the seal and signatureof Gulbarga Court official, only on the ground that the concernedCourt, in response to the communication made by the committeeinformed about 1356 Fasli record having been destroyed in the year1999, thereby overlooking the fact that the petitioners had obtainedthe certified copy in the year 1998. It could have cross-checked withthe concerned Court, as to if the certified copy produced by thepetitioners itself was a genuine document or not. Withoutundertaking such exercise, the committee has wrongly and illegallydiscarded the certified copy of a public record coming from propercustody. wp9846.24-r-4- 5.Mr. Thorat would further submit that the whole approach ofthe committee is demonstrative of utter prejudice against thepetitioners. It proceeded on the premise that reliance of thepetitioners on the pre-constitutional record of Gulbarga Court was acase similar to one in respect of Udgir Court record regarding whichthis Court had entertained a doubt in its order dated 19.12.2011 inwrit petition No. 7297 of 2007, wherein seal and stamp of the Court orthe police station itself was turned out to be forged one. This beingnot the case in the petitioners’ matter, the committee ought not tohave applied the analogy and ought not to have discarded thecertified copy of the court record issued in the ordinary course. 6.Mr. Thorat would then submit that ignoring specific denialby the petitioners about having any relationship, contrary record ofpersons stranger to the petitioners’ family has been relied upon whichthe committee could not have legally done. 7.Mr. Thorat would also submit that even census recordcould have been relied upon by the committee wherein thepetitioners’ ancestors from paternal side were described as belongingto ‘Koli Mahadev’ scheduled tribe. wp9846.24-r-5- 8.Lastly, Mr. Thorat would submit that the committee oughtnot to have discarded the revenue record incorporating prohibitionunder Sections 36 and 36-A of the Code of 1966 only on the groundthat it was incorporated by way of mutation in the year 2018. Thefact remains that the revenue officials must be regarded as havingbeen satisfied that the land was a tribal land and attracting theconditions stipulated in those provisions. He would thus submit thatthe order under challenge is perverse, arbitrary and capricious.Reliable and genuine record of pre-constitutional period has beendiscarded perfunctorily and the judgment and order be quashed andset aside and the petitioners may be held entitled to have certificatesof validity. 9.The learned A.G.P. would oppose the petition submittingthat pursuant to the directions of this Court in the earlier round, thecommittee undertook the exercise and contacted Gulbarga Court. Itwas informed that the original Urdu record which was of Fasli periodwas destroyed pursuant to the order of the Principal District andSessions Judge, dated 27.02.1999. Considering the observations ofthis Court in respect of similar Urdu Court record in the matter ofBalika Dagadu Pathakrao, no fault can be found with the stand of thecommittee in refusing to rely upon such dubious Gulbarga Courtrecord. wp9846.24-r-6- 10.Similarly, the committee could notice manipulation in theschool record of Madhav Hanamant Wantekar of 23.07.1970,wherein the word “Mahadev” was added subsequently in a differentink and handwriting. He would further submit that even 16.06.1937was shown as date of admission in the school record of HanamantGyanoba Wantekar at Sr. No.90 and the original school record wasexamined and it was found that there were two school registers andboth of them at Sr. No.90 contained names of some differentstudents and not that of Hanamant Gyanoba Wantekar. Even theschool itself was established in the year 1942 and the certified copyof the school register showing Hanamant to have been admitted inthat school in the year 1937, was clearly bogus. 11.The learned A.G.P. would further submit that thepetitioners’ great grand-father - Mahadu Tukaram Koli was describedin the revenue record as ‘Koli’ which was earlier an Other BackwardClass and is currently a Special Backward Category (SBC) and whichis contrary to the petitioners’ claim of ‘Koli Mahadev’. Even thepetitioners failed to conform to the affinity test and no fault can befound in the impugned judgment and order refusing to validate theirclaims. 12.We have carefully considered the rival submissions, wp9846.24-r-7- perused the impugned judgment and order and the original files.Admittedly, this is a second round of litigation. Since the petitionershave been heavily relying upon the certified copy of court record ofGulbarga of 1356 Fasli, in the earlier round this Court had remandedthe matter back to the scrutiny committee, with a direction toundertake verification of that record. Ignoring the fact that certifiedcopy, relied upon by the petitioners, was issued in the year 1998, thestand of the committee in readily accepting the response fromGulbarga Court that the old Urdu record of Fasli time was destroyedin the year 1999, to entertain the doubt about certified copy obtainedprior thereto, is clearly injudicious. Precisely, for this reason, by orderin this matter, dated 25.9.2024, we had observed that even thecommittee could have independently ascertained the genuineness ofcertified copy produced by the petitioners, since it was purportedlyissued in the ordinary course of business of that office and on therequest by learned A.G.P., we had allowed the committee toundertake such exercise and to submit a report. 13.It appears that pursuant to such directions, the committeeassigned the work to its vigilance cell alongwith covering letteraddressed to the concerned court soliciting the information regardinggenuineness of the certified copy. The concerned civil court bycommunication dated 04.10.2024 specifically informed that no such wp9846.24-r-8- certified copy was issued either on 20.12.1998 or 26.03.1998. Evena photocopy of the concerned register duly certified was annexed tothe reply. 14.To controvert such stand of the committee based on thereply of the concerned Court, learned advocate for the petitionersfiled additional affidavit together with the document and sought toproduce a certified extract of copying register for the year 1998 of theCourt of Principal Civil Judge and Judicial Magistrate, First Class,Kalburgi, to which the petitioners submitted an application on30.09.2024, as was expressed in the order dated 25.09.2024 andpurportedly showing entry at Sr. No. 324, about certified copyapplication having been submitted on 20.02.1998 in respect of CCNo. 131/1356 Fasli through advocate Mr. M.S. Shety and purportedlydelivered on 26.03.1998. Mr. Thorat would therefore, submit thatwhen the petitioners have been able to again obtain certified copy ofthe register of copying application duly issued under the seal andsignature with a certificate, in all probability, the concerned courtwhile responding to the scrutiny committee and even the committeewhile accepting the reply, have made a mistake and the replyforwarded by the concerned Court could be of some different register.15.Prima facie, photocopies of the extract of copying register
Decision
wp9846.24-r-12- 22. In the light of above state of affairs, the petitioners havedischarged burden cast on them under Section 8 of the MaharashtraAct No.XXIII of 2001. The impugned judgment and order is clearlyperverse, arbitrary and capricious and enables us to reverse it inexercise of limited jurisdiction under Article 226 of the Constitution ofIndia. 23.The writ petition is allowed. 24.The impugned judgment and order is quashed and setaside. 25.The committee shall issue tribe validity certificates to thepetitioners as belonging to ‘Koli Mahadev’ scheduled tribe. (SHAILESH P. BRAHME, J.) (MANGESH S. PATIL , J.) rlj/