Mrs. Mandakani Kachru Kokane @ ... vs The State Of Maharashtra Through ...
2021 Latest Caselaw 7784 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CIVIL APPELLATE JURISDICTION


                       REVIEW PETITION NO.22 OF 2021
                                      IN
                      WRIT PETITION (ST) NO. 5573 OF 2020


      Mandakini K.Kokane @
      Mandakini Godse                                         ...Petitioner
                V/s.
      State of Maharashtra & Ors.                             ...Respondents


      Mr.Satyajeet P. Dighe for the Petitioner.

      Mr.Yuvraj D. Patil, AGP for the State - Respondent Nos.1 and 2.

      Mr.Sachin Gite for the Respondent No.3.

                                      CORAM : R.D. DHANUKA &
                                              MADHAV J. JAMDAR, JJ.

DATE : 11TH JUNE, 2021.

THROUGH VIDEO CONFERENCE)

P.C. :-

1. By the present review petition, the petitioner is seeking

review of our order dated 27th October, 2020 passed in Writ Petition

(Stamp) No.5573 of 2020. The review is sought only to the extent of

the rejection of prayer clause (a) of the Writ Petition and further

prayer is sought that Case No.3809 of 2019 be remanded to the

Caste Scrutiny Committee, Nashik for consideration of the same

afresh by considering additional documents produced by the

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petitioner. The said prayer clause (a) is reproduced hereinbelow for

ready reference:-

"(a) By issuing appropriate writ, order and direction the order dated 28/06/2020 passed by the District Caste Scrutiny Committee Nashik in Case No. 3809 of 2019 be quashed and set aside and further the said Respondent No.2 be directed to issue Caste Validity Certificate to the Petitioner for Kunbi Caste which comes under Other Backward Caste."

Mr. Satyajeet Dighe, the learned Advocate of the Petitioner clarified

that as far as other part of the operative portion of said order dated

27.10.2020, he is not seeking review.

2. We have heard Mr.Satyajeet Dighe, learned advocate for

the petitioner, Mr.Sachin Gite, learned advocate for the respondent

no.3 and Mr.Yuvraj Patil, learned AGP for the respondent nos.4 to 7.

3. It is the main contention of Mr.Dighe that this Court has

confirmed the order of the District Caste Scrutiny Committee, Nashik

dated 25th May, 2020 in case No.3809 of 2019 on the ground that the

petitioner has failed to establish that the surname Ghotikar and

Kokane are of the same family and therefore discarded certain

documentary evidence more particularly the document i.e. the entry

dated 09.07.1893 in the register recording birth and death in the

village mouje Sansari, Taluka Nashik, (village form - 14). The said

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document records that son was born on 09.07.1993 to Bhiva

Trimbaka Ghotikar and caste is shown as "Kunbi". The surname of

the family of the Petitioner is "Kokane". It is the contention of the

Petitioner that surname "Ghotikar" and "Kokane" are of the same

family and therefore the reliance is placed on said document dated

09.07.1893. We have by our order dated 27.10.2020 rejected the

said contention.

4. Mr. Dighe, the learned Counsel for the Petitioner

submitted that after perusal of the Judgment of this Court in the

captioned Writ Petition, Petitioner made further search with the

revenue office to obtain further material or 7/12 extract or Mutation

Entry by which the Petitioner would be in a position to precisely

establish that Bhiva Trambaka Ghotikar and Bhiva Trambaka Kokane

are one and the same person only. Accordingly, Petitioner made a

detailed search and after putting in considerable efforts and labour

have recently received several other revenue records which would

establish that Bhiva Trambaka Ghotikar and Bhiva Trambaka Kokane

are one and the same person. He submitted that the said family

having surname Ghotikar and Kokane are one and the same. The

petitioner has produced many documents which are mainly revenue

record from page nos.259 onwards. However Mr.Dighe,learned

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advocate for the petitioner at the time of argument relied only on two

documents which are at pages 261 and 305. It is the contention of

Mr.Dighe that the said documents clearly show that Kokane family is

also having surname Ghotikar and therefore, the said documents are

relevant documents required to be taken into consideration by this

Court as well as by the Caste Scrutiny Committee.

5. On the other hand, Mr.Gite, learned advocate for the

respondent no.3 pointed out Order 47 Rule 1 (c) and Order 47 Rule

4 (2) (b) of the Code of Civil Procedure, 1908. He submitted that the

documents on which Petitioner is relying on in the Review Petition

are revenue documents and therefore, available at any point of time

and thus would clearly shows that the petitioner was not diligent. He

submitted that the review petition itself is thus not maintainable. He

further submitted that the documents which are produced at pages

261 and 305 are also not credible and therefore, no interference is

warranted.

6. Mr.Patil, learned AGP submitted that there are no legal

reasons for review of the order and adopted the arguments advanced

by Mr. Sachin Gite.

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7. A perusal of the order dated 27 th October, 2020 passed by

us in Writ Petition (Stamp) No.5573 of 2020 clearly shows that

various reasons are given on merits of the case from paragraphs 22

to 37 regarding the claim of the Petitioner. It is to be noted that the

reasons given are not only regarding only one aspect that the

petitioner failed to establish that the surname Ghotikar and Kokane

are of the same family and therefore the petitioner belongs to said

family as submitted by the learned Advocate of the Petitioner but on

various other issues. We have inter alia given following reasons:-

(i) The document at serial no.2, which is school leaving certificate

dated 01.08.2003 issued by the Head Master of school mentions the

religion and caste of the petitioner as "Hindu Maratha".

(ii) As far as the main document at serial no.13 on which the

petitioner has mainly relied which is dated 09.07.1893, we have

found that the petitioner has failed to establish the authenticity of the

said document. In fact the Vigilance Cell Committee along with the

representative of the petitioner- Translator Mr. Peerjada had gone to

the office of Tahsildar, Taluka and District Nashik on 20.12.2019 and

took search of the record and upon search of the record found no

such document. The said aspect is recorded in the report of Vigilance

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Committee dated 03.01.2020 and we have relied on the said

circumstance. We have also observed that this aspect is not

controverted by the Petitioner.

(iii) Mr. Anil Vasant Daunde working as the Tahsildar Nashik had filed

an affidavit dated 28th July, 2020 stating that the record of the birth

and death of 1893 was in destroyed and damaged condition and

therefore it could not be stated that the document on which the

petitioner had relied upon was part of the record. We have found that

the petitioner has failed to establish the said document of 1893.

(iv) In the order under review, we have specifically pointed out that

three different genealogies were filed by the petitioner from time to

time and how the changes were made in the genealogy by the

petitioner. We have specifically observed that the petitioner had not

approached the Court with clean hands as he was changing the

genealogy to suit his case.

(v) We had also found that one more document on which the

petitioner had relied upon bearing Mutation Entry No.1210 dated 23 rd

March, 1937, there were certain additions made in the original

document. Therefore there is no substance in the contention raised

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by the learned Advocate of the petitioner that the only reason given

by this Court for rejecting the petitioner's caste claim and confirming

the claim of the Caste Scrutiny Committee was that the petitioner had

failed to establish that the surname Ghotikar and Kokane are of the

same family. It is also to be noted that in the Review Petition the

Petitioner has also stated that the other reason given by the Court

while rejecting prayer clause (a) is that this Court has concluded that

the existence of the 1893 document is not conclusively established

as the Petitioner had failed to produce original certified copy of the

same. Some of the reasons for rejection of the claim of the Petitioner

as set out hereinabove would clearly show that there is no substance

in the said contention.

8. The learned Advocate Satyajeet Dighe while arguing this

Review Petition relied only on two documents namely revenue record

pertaining to land bearing Survey No.136 (3-B) (page 261) and

revenue record pertaining to Survey No.145 (4-B) (page 305) of

village Sansari, Tal. Nashik. On the basis of these two documents, it

is the contention of Mr.Dighe that Govind Bhima Kokane @ Govind

Bhima Ghotikar are the names of same person. At the outset it is

significant to note that throughout the contention of the Petitioner is

that surname "Ghotikar" and "Kokane" is of the same family whereas

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the revenue record (page no.305) on which the petitioner is now

relying upon reflect the surname as "Ghotkar" and not "Ghotikar".

According to Mr.Dighe, by Mutation Entry no.4092, the names of the

legal heirs of Govind Bhima Ghotikar @ Govind Bhima Kokane were

included in the revenue record.

9. A bare perusal of the revenue record shows that the

revenue entry at serial no.4092 is mentioned in the different ink than

other entries in both the revenue records (page nos. 261 and 305).

The handwriting is also of different person than the person who has

written other entries on said page no. 261 and 305. The documents

at page nos.261 and 305 are photocopies of certified copies of the

revenue record and the same are obtained by the petitioner on 6 th

November,2020. The certified copies of the revenue record are

provided by making the handwriting entries in the format of revenue

record on the village Form No. 7, 7A and 12. Thus, the handwriting

on the said certified copies ought to have been of the same person.

In fact the name Govind Bhima Ghotikar @ Govind Bhima Kokane

mentioned at page 261 is also in some other handwriting than the

other contents on said page 261. It is clear that the documents which

are produced at pages 261 and 305 are not genuine documents and

is full of interpolation. Thus no reliance can be placed on the said

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documents for seeking review of the order dated 27th October,2020.

10. It is also significant to note that the basis of said document

at Sr. No. 261 and 305 is Mutation Entry No. 4092. However, the

Petitioner's Counsel is not relying on the same. The said Mutation

Entry No. 4092 dated 16.11.1969 is produced at Page No. 323.

However, the same is concerning changes in revenue record of the

entire village for giving effect to the new measurement methods and

has nothing to do with recording death of said Govind Bhiva Ghotikar

or Govinda Bhiva Kokane and bringing on record his legal heirs. The

said revenue entries are thus totally irrelevant.

11. Mr. Gite, the learned Advocate appearing for the

Respondent No.3 is right in his submission that the revenue record is

available at any point of time and therefore the petitioner has not

shown due diligence for producing the said revenue record. The

petitioner could have produced the revenue record not only in this

Court in the said Writ Petition (Stamp) No.5573/2020 but in fact could

have produced the said revenue record before the Caste Scrutiny

Committee. It is thus clear that the petitioner has not shown due

diligence as contemplated under Order 47. Further Order 47 Rule 4

(2)(b) of the Code of Civil Procedure, 1908 specifically provides that

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the application for review shall not be granted on the ground of

discovery of new matter or evidence, which the applicant alleges was

not within his knowledge or could not be adduced by him when the

order was passed, without strict proof of such allegation. The

Petitioner has failed to strictly prove that the newly obtained

documents could not be placed before this Court by the petitioner as

well as before the Caste Scrutiny Committee as the same were not

available with the petitioner at the relevant point of time and the

same were not known to the petitioner.

12. It is the case of the petitioner that the question that

Ghotikar and Kokane are same person was not in dispute before the

Caste Scrutiny Committee as the only objection raised by the

respondent no.3 was regarding incorrect family tree given by the

petitioner before the Caste Scrutiny Committee. It is the case of the

Petitioner that the petitioner genuinely believed that Mutation Entry

no.1210 dated 23rd March, 1937 would be sufficient enough to

establish the link between Govind Bhima Ghotikar @ Govind Bhima

Kokane and the legal heirs. However, a perusal of the order dated

25th June, 2020 passed by the Caste Scrutiny Committee recording

objections raised by the Respondent No.3 particularly point No.7

clearly shows that the surname Ghotikar and Kokane are of two

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different families and therefore the petitioner is not from the Ghotikar

family is specifically raised by the respondent no.3 and considered by

the Caste Scrutiny Committee. It is thus clear that the case put up by

the petitioner for filing the review petition that this point was not

raised before the Caste Scrutiny Committee and for the first time is

raised in the Writ Petition and rejected by the Court is totally

baseless.

13. In view of this, the review petition is dismissed with costs

quantified at at Rs.25,000/- which shall be paid by the review

petitioner to the Maharashtra Legal Services Authority within two

weeks from today.

(MADHAV J. JAMDAR, J.)                            (R.D. DHANUKA, J.)