High Court
Legal Reasoning
1 919-WP-12410-24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 12410 OF 2024RUSHIKESH DAGADU KALKUTE UNDER GUARDIANSHIP OF NATURALGUARDIAN AND FATHER DAGADU SHAHAJI KALKUTEVERSUSTHE STATE OF MAHARASHTRA THROUGH ITS SECRETARY AND ANOTHER...Advocate for Petitioner : Mr. Omgashad B. BoinwadAGP for Respondents : Mr. A. S. Shinde... CORAM : S. G. MEHARE & SHAILESH P. BRAHME, JJ. DATE : 28-02-2025PER COURT:-1.Heard both sides finally at the admission stage consideringthe exigency in the matter.2. The petitioner is assailing the judgment and order dated18.10.2024 passed by respondent No.2/scrutiny committeeinvalidating his tribe certificate. 3.There is no validity to support the petitioner. He is relying onrevenue record of the great grandfather Laxman Mahadu inrespect of Survey No.217/1 and birth record of Shahaji Laxmanshowing the caste as Koli Mahadev. Both these entries are per-constitutional having greater probative value.
Legal Reasoning
2 919-WP-12410-24.odt4.The learned counsel for the petitioner submits that vigilanceinquiry was conducted and old record was verified by thecommittee and no doubt was expressed by the Vigilance Cell. TheVigilance Cell has not taken into consideration school record whichhe placed before it and the tribe claim was rejected, which wassubsequent in time. As the old entries are having greaterprobative value, he would submit that the petitioner is entitled tovalidity certificate.5.The learned counsel for the petitioner has placed on recordthe order of the Co-ordinate Bench in the matter of Pankaj s/o.Bharat Bhimbarwad and another vs. The State ofMaharashtra and another, Writ Petition No.7454 of 2024,dated 27.08.2024. The following observations paragraph Nos. 6and 8 are relevant;“6. Obviously, this being a tribe claim, pre-constitutional record will have its own importance.Naturally, the petitioners are relying upon pahanipatrak of 1347-48 Fasli which corresponds to the year1937-38 A.D. There is no dispute about the fact thatthe original pahani patrak from the office of Tehsildar,Mudhol, District – Nirmal of Telangana state, waspersonally inspected by the vigilance officer byapproaching that office. Admittedly, the impugnedjudgment and order has been passed by the committeesolely basing its conclusion on what was reported bythe vigilance officer after going through the originalrevenue record. Independently, the committee had not 3 919-WP-12410-24.odtcalled upon the original record for its own inspection.Admittedly, a coloured photocopy of the relevant pageof the register was collected by the vigilance officerand the committee had an occasion to peruse it. Wefind that the learned counsel for the petitioner isjustified in referring the judgment. ….8. To repeat, this per-constitutional record is comingforth from the concerned Tehsil office, genuineness ofwhich comes with a presumption about having beenmaintained in the ordinary course of the officialbusiness. A perfunctory inference by the committee,readily subscribing to the inference drawn by thevigilance officer, is unbecoming of the office which hasbeen conferred with the powers in such seriousmatters.”6.Mr. Shinde, learned A.G.P. supports the impugned judgmentand order. He tenders on record the original record of thepetitioner. He would point out that the committee has dealt withthe incompatible revenue record of petitioner’s great grandfatherLaxman and great grandmother Raubai Rama indicating caste asKoli. It is vehemently submitted that these two entries are per-constitutional and, therefore, the tribe claim is rightly rejected bythe committee.Our attention is also adverted to the school record ofVishwambhar Eknath Kalkute, who is cousin uncle of the petitioner.His school record of 29.07.1970 is found to have been tampered; 4 919-WP-12410-24.odtAs it is before imposition of area restriction, it would carrysignificance. 7.The learned A.G.P. would further submit that the petitionerwould not withstand affinity test. There is consistent incompatibleschool record since 1964, and therefore, the petitioner’s claim isdoubtful and no validity can be granted. He would submit that thecommittee has dealt with the material in proper perspective. Inthe alternative, he would also submit that if the matter isremanded, then fresh verification can be conducted in respect ofthe revenue record of great grandfather and birth record of thegrandfather of the petitioner. 8.We have considered the rival submissions and gone throughthe relevant papers. There is no validity in the family of thepetitioner. We have gone through the vigilance report. The per-constitutional record of grandfather Shahaji is of 1355 Fasli 1945AD, indicating caste as Koli Mahadev and the revenue record ofpetitioner’s great grandfather is of 1951. 9.The revenue record of great grandfather Laxman of 1951and birth record of Shahaji of 1945 were verified by the vigilancecell and in the vigilance report, no doubt was raised against thoseentries. It is clearly mentioned that the caste is mentioned as KoliMahadev. The birth record of grandfather is of pre-constituionalperiod. It has greater probative value. The pre-constituional record 5 919-WP-12410-24.odthaving greater probative value corroborates the tribe claim.Interestingly, though there is vigilance report in favour of thoseentries, the scrutiny committee did not dealt with these twoentries. There is no reason assigned by the committee for notconsidering those entries. The learned A.G.P. is also unable tosatisfy us as to why there is no comment by the committee inrespect these two entries. 10.It is pertinent to note that the relationship of the personswhose names are in the entries have also not been disputed in theentire judgment. We are of considered view that it is abdication ofpower. The committee should have independently verified thoseentries or atleast remark given by the vigilance cell should havebeen dealt with. 11.The learned A.G.P. adverted our attention to the school entryof the Vishambhar which is of 1970 found to have been tamperedbased on the report of Headmaster disclosing tampering of entry.However, we do not find coloured copy. Normally, in such a case itis possible to place on record a coloured photocopy. No reason isforthcoming as to why that exercise has not been done.12.The learned A.G.P. would rely on the old revenue entry ofgreat grandfather Laxman Mahadu and great grandmother RaubaiRama indicating caste as “Koli”. Those pertain to revenue recordof Survey Nos.127/A and 127/B. The committee dealt with those 6 919-WP-12410-24.odttwo entries, but surprisingly the other revenue entries of self-samegrandfather in respect of Survey No.270/1 was not dealt with. Wefind that the committee is selective in exercising the power to dealwith the record. This is not expected from quasi-judicialcommittee which is fact finding forum. When the committee isarmed with vigilance cell and the competent officer to verify therecord, all entries should have been considered and dealt with inthe impugned judgment. We find that there is a grave error ofjurisdiction of the committee. 13.So far as the entry of birth extract of great grandfatherShahaji is concerned, there is presumptive value under Section 30of the Evidence Act. This aspect has not been dealt with by thecommittee. When there is clinching evidence, the findingsrecorded by the committee on the affinity does not carrysignificance. The argument in respect of area restriction also doesnot convince us. The submission of the learned A.G.P. to remandthe matter to the scrutiny committee cannot be accepted. Thelearned A.G.P. is unable to satisfy us as to why the committeecould not conduct the verification in respect of the entries whichwere before it.14.We find that the learned counsel for the petitioner is justifiedin referring the judgment in the matter of Pankaj s/o. BharatBhimbarwad (supra).
Decision
7 919-WP-12410-24.odt15.In that view of the matter, we are of the considered viewthat the petitioner has made out a case. The impugned judgmentand order are unsustainable. We, therefore, pass the followingorder :ORDER(i) The writ petition is allowed.(ii) The impugned judgment and order is quashed and set aside.(iii) Respondent No.2/Scrutiny Committee shall forthwith issuetribe validity certificates of “Koli Mahadev” - Scheduled Tribeto the petitioner.(iv) The petitioner shall not claim equities. [ SHAILESH P. BRAHME ] [ S. G. MEHARE ] JUDGE JUDGErrd