Roshan S/O Ratanlal Balbanshi vs The Committee For Scrutiny And ...
2021 Latest Caselaw 15520 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                        NAGPUR BENCH : NAGPUR.


                               WRIT PETITION NO.4809/2019


 Roshan S/o Ratanlal Balbanshi,
 aged 30 Yrs., Occ. Student,
 R/o at Post Asegaon Purna,
 Tah. Chandurbazar, Dist. Amravati.                                             ..Petitioner.

          ..Vs..

 1.       The Committee for Scrutiny and
          Verification of Tribe Claims, Amravati,
          Chaprashipura, Dist. Amravati.

 2.       The Government Medical College
          Akola, through its Dean, Collector Office
          Road, infront of Mungilal Bajoriya
          Mahavidyalaya, Akola.

 3.       Maharashtra Health University Nashik,
          Dindori Road, Nashik, through it's
          Registrar.                                                          ..Respondents.
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          Mr. N.S. Warulkar, Advocate for the petitioner.
          Ms Mayuri Deshmukh, A.G.P. for respondent Nos.1 and 2.
          Mr. Abhijit Deshpande, Advocate for respondent No.3.
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                           CORAM :- SUNIL B. SHUKRE AND
                                            ANIL L. PANSARE, JJ.

DATED :- 28.10.2021.

ORAL JUDGMENT (Per Sunil B. Shukre, J.)

Heard. Rule. Rule made returnable forthwith. Heard finally by

consent.

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2. It is seen, in this case, that there are two oldest

pre-constitutional documents which have the entries such as "Aarakh"

and "Arakh", the genuineness of which cannot be questioned nor has it

been by the Scrutiny Committee. One document of the date of

26.2.1931, a school leaving certificate issued to Wasudeo Beniprasad,

admittedly a blood relative of the petitioner from the paternal side,

discloses social status of Wasudeo Beniprasad as "Aarakh". The

second document is of the date 25.12.1934. This document is an

extract of Kotwal Register for recording entries regarding births and

deaths. There is an entry dated 25.12.1934 taken in this document

and this entry shows that the community of Ramkumar Gayodin,

admittedly a blood relative of the petitioner from the paternal side as

"Arakh".

3. Although said two documents show slightly different entries

but, the entries "Aarakh" and "Arakh" appear at serial No.18 of the

Constitution (Scheduled Tribe) Order, 1950 (C.O.22) as Scheduled

Tribe and they do not match with the said documents. As stated

earlier, there is no circumstance available on record which casts any

doubt about the genuineness of these two documents. The

relationship with the persons named in these two documents with the

petitioner is also not in dispute. Despite such circumstances favouring

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the petitioner being available on record, the Scrutiny Committee has

struck a different note. The Scrutiny Committee ignored these

documents and simply relied upon the documents most of which,

except for one document, related to a period which was post

Constitution Order 1950. There was just one document relating to

the date 26.8.1946, which was an extract of the register of birth and

death which showed the community of Wasudeo Beniprasad, a blood

relative of the petitioner from the paternal side as Pardeshi. The rest

of the documents having such entries as Ahir, Pardeshi, Thakur Arakh

were all of post Constitution Order period and, therefore, possessed

lesser probative value. These post Constitutional Order documents, it

is seen from the impugned order, however, have been given more

importance and treated as if they were having greater probative value

than the pre Constitution Order and this is in ignorance of the settled

position of law that such documents have higher probative value.

4. The pre Constitution Order documents are already referred to

earlier. If the documents which were post Constitution Order were to

be treated with greater respect and value, it was necessary for the

Scrutiny Committee to have rejected the pre-constitutional documents

or expressed doubt about the genuineness of the entries taken in these

documents first. But, that was not done by the Scrutiny Committee.

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The Scrutiny Committee, ignoring those documents, only opined that

since other documents particularly the documents pertaining to period

from 1946 to 1948 had different entries such as Pardeshi Thakur,

Pardeshi Ahir, the petitioner could not be said to have proved his claim

that he belonged to "Arakh Scheduled Tribe". Such appreciation

carried out by the Scrutiny Committee of the material available before

it, in our opinion, is perverse as it is in ignorance of relevant evidence

available on record and is the result of non-application of mind to the

relevant pieces of evidence available on record.

5. This would bring us to consideration of the oldest documents

containing entries of the dates of 26.2.1931 and 25.12.1934. We

must say that these documents being genuine and of the

pre-constitutional period, have greater probative value and there are

no circumstances nor any evidence available on record to reject or

discard these documents. Of course, there is an entry dated 26.8.1946

standing in the name of Wasudeo Beniprasad showing him to be

Pardeshi but, this entry being of the period which was much after the

period of 1931 and 1934 and also being of the period which witnessed

a great divide in the society on account of caste and communal

considerations, there is a possibility of this entry having been taken

deliberately in a misleading way only with a view to hoodwink the

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mischief mongers and protect the person from adverse impact of the

social hiatus in the society that was prevailing then and, therefore,

not much importance can be attached to the entry dated 26 th August,

1946. If this is not done, then we would have to reject entries of 1931

and 1934. But, that is not possible as we have already found that

there being no circumstances available on record throwing cover of

doubt on them, the documents would have to be treated as genuine

having high probative value, and which we have already done. We,

therefore, discard the entry dated 26th August 1946 and then what

remains are the entries dated 26.3.1934 and 25.12.1934, which

undoubtedly establish the claim of the petitioner as he belonging to

Arakh community which has been declared to be Scheduled Tribe as

per the Constitution (Scheduled Tribes) Order, 1950 (C.O. 22) at

Serial No.18.

6. In the result, we allow the writ petition partly.

7. The impugned order is hereby quashed and set aside.

8. It is declared that the social status of the petitioner is that of

"Arakh Scheduled Tribe".

9. Respondent No.1 is directed to issue Tribe Validity Certificate to

the petitioner as he belong to "Arakh Scheduled Tribe" within a period

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of one month from the date of receipt of the order.

10. Rule accordingly. No costs.

CIVIL APPLICATION (CA.W.) NO.938/2021

11. In view of disposal of main petition, this application does not

survive and is disposed of accordingly. No costs.

                               JUDGE                              JUDGE




 Tambaskar.