Bombay High Court
Krushnaprasad Bhanudas Gore vs The State Of Maharashtra And Others on 13 December, 2023
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2023:BHC-AUG:26084-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2091 OF 2017
WITH CA/13231/2023 IN WP/2091/2017
Krushnaprasad s/o Bhanudas Gore,
Age 20 years, Occ. Student,
R/o. Mahsul Colony, Behind B&C Colony,
Ausa Road, Latur, Tq. & Dist. Latur. ... Petitioner
VERSUS
1) The State of Maharashtra
Through its Secretary,
Tribal Development Department,
Mantralaya, Mumbai-32.
2) The Scheduled Tribe Certificate
Scrutiny Committee, Aurangabad
Aurangabad Division, Aruangabad.
3) The Sub-Divisional Magistrate,
Latur.
4) The Maharashtra University of
Health Sciences, Nashik,
Through its Registrar.
5) The Dean,
Government Medical College,
Latur. ... Respondents.
...
Advocate for Petitioner : Ms. P.S. Talekar i/b Talekar and Associates.
A.G.P. for Respondent Nos. 1 to 3 & 5 : Mr. M.M. Nerlikar
Advocate for Respondent No. 4 : Mr. S.B. Pulkundwar
...
WITH
WRIT PETITION NO. 7701 OF 2018
Shradha d/o Bhanudas Gore,
Age 32 years, Occ. Nil,
R/o. C/o. Shri. S.N. Kaware,
Flat No. A-302, Sai Saraswati,
Saraswati Colony, Old Ausa Road,
1/12
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Latur, Tq. & Dist. Latur. ... Petitioner
VERSUS
1) The State of Maharashtra
Through its Secretary,
Tribal Development Department,
Mantralaya Mumbai-32.
2) The Scheduled Tribe Certificate
Scrutiny Committee,
Aurangabad Division,
Aurangabad.
3) The Tahsildar and Executive Magistrate,
Latur.
4) The Deputy Secretary,
General Administration Department,
Mantralaya, Mumbai. ... Respondents
...
Advocate for Petitioner : Ms. P.S. Talekar i/b Talekar and Associates.
A.G.P. for Respondent Nos. 1 to 4 : Mr. M.M. Nerlikar
CORAM : MANGESH S. PATIL &
NEERAJ P. DHOTE, JJ.
RESERVED ON : 07.12.2023
PRONOUNCED ON : 13.12.2023
JUDGMENT :
(PER : MANGESH S. PATIL, J.)
These are the petitions by the siblings invoking the powers of this
Court under Article 226 of the Constitution of India in putting up a
challenge to the separate orders of the respondents-scrutiny committee
constituted under Maharashtra Act XXIII of 2001, thereby confiscating and
cancelling their 'Koli Mahadev' scheduled tribe certificates. The petitioners
are siblings and though their claims have been considered by the committee
separately and disposed of by separate orders, the evidence considered by
the committee being common, at the joint request of both the sides, both
these matters are heard together and are being disposed of by this common
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judgment to avoid rigmarole.
2. Rule. Rule is made returnable forthwith.
3. Learned advocate Ms. Talekar for the petitioners would submit that
the petitioners' real sister Pooja possesses a certificate of validity which was
issued after conducting due process of law. A vigilance enquiry was
conducted. The record of the Court of Judicial Magistrate Udgir, which the
present committee has refused to rely upon, was also considered by scrutiny
committee which decided Pooja's claim. A successor committee could not
have taken a different view by resorting to a fresh scrutiny of same piece of
evidence.
4. Ms. Talekar would further submit that even one Priyanka Jayprakash
Gore, a distant cousin from the paternal side, also possesses a certificate of
validity, based on which Pooja was granted certificate of validity and still the
present committee has refused to extend the benefit of even Priyanka's
validity to the petitioners. The learned advocate would submit that even if
the committee has now formed an opinion that Priyanka is not related to the
petitioners and that even Pooja had obtained certificate of validity by
resorting to concealment of material fact, till the time the certificate of
validity of Pooja is not confiscated and cancelled, by undertaking
independent scrutiny and a full fledged hearing, the petitioners could not
have been denied the benefit of having certificates of validity which could
have been issued subject to the decision to be taken in the matter of Pooja,
which is the course being followed by this Court consistently.
5. Ms. Talekar would then submit that the committee has appreciated
the evidence in pick and choose manner and its approach is arbitrary.
Favourable record has been ignored and only contrary record has been
resorted to, to disbelieve the petitioners.
6. Ms. Talekar would then submit that the committee has also given
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weightage to the fact that the petitioner Shradha's claim was earlier rejected
as a ground to discard validity of Pooja stating that the fact was not
disclosed by Pooja. The committee overlooked the fact that she had
challenged that order before this Court in Writ Petition No. 4468/2015 and
by the order dated 30.04.2015 her petition was allowed and the matter was
remitted back to the scrutiny committee for decision afresh by extending
opportunity to her. Ms. Talekar would submit that when Shradha's case was
remanded to the scrutiny committee even before the impugned orders were
passed, it could not have based its inference on the fact that Pooja had not
disclosed the order of invalidation. Ms. Talekar, would, therefore, submit
that the decision of the committee is perverse and arbitrary and the
petitioners may be directed to be issued with certificates of validity.
7. Per contra, the learned A.G.P. Mr. Nerlikar would submit that this is
yet another instance demonstrating as to how a family which does not
belong to Koli Mahadev scheduled tribe has been able to put up a claim for
deriving the benefits which are only available to tribals. He would submit
that though it is a fact that the petitioners' sister Pooja possesses a certificate
of validity, he would submit that she was successful in getting it by
concealing the material contradictory evidence which was having greater
probative value. She had also falsely claimed that validity holder Priyanka
was her cousin when the genealogy furnished by Priyanka in her own matter
was inconsistent with the genealogy that was furnished by Pooja and even
relied upon by the petitioners.
8. The learned A.G.P. would then submit that Pooja was granted
certificate of validity labouring under the circumstances which constitute
fraud and the committee has decided to undertake a fresh scrutiny of her
validity. She was issued certificate of validity based on the validity of
Priyanka who was not related to her and one Kaware Sanjiv Nagorao who
was stated to be related to Pooja and the petitioners, not from the paternal
side. The certificate of validity was issued to her without assigning cogent
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and convincing reasons by a committee headed by one Mr. V.S. Patil whose
functioning was found by the State Government to be dubious and it had
decided to undertake scrutiny of the orders passed by that committee.
9. The learned A.G.P. would then submit that Pooja had produced the
certified copies of the record of the Court of Judicial Magistrate, Udgir. The
committee had considered it as well. He would submit that the record of
Udgir Court being relied upon by the petitioners was rightly refused to be
relied upon by the committees even in petitioners matters. It has assigned
cogent reasons for refusing to treat that record as genuine. In the matter of
Kum. Balika Dagdu Patakrao Vs. The State of Maharashtra and others (Writ
Petition No. 4297/2007) by passing an order in Civil Application by
4943/2010 this Court had directed an enquiry to be conducted into similar
record in the form of certified copy issued to few other individuals and had
ordered inquiry in respect of the record of 1356 Fasli (1946 A.D.). The
Principal District Judge was directed to conduct an enquiry and it was found
that those certified copies were not genuine. This Court in number of
matters has consistently refused to rely upon similar certified copies issued
by Udgir Court of 1356 Fasli (1946 A.D.). Even an action was initiated
against the court staff. In view of such peculiar state of affairs, the
petitioners could not have been extended benefit of the record of Udgir
Court relied upon by them.
10. The learned A.G.P. would submit that in the light of decision in the
matter of Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti Vs. State
of Maharashtra and others; 2023(2) Mh.L.J.785, merely because the
petitioners' real sister Pooja was issued with certificate of validity, the
petitioners are not entitled to derive the benefit ipso facto.
11. Lastly, the learned A.G.P. would submit that the committee has
considered the other evidence in proper perspective. Though the petitioners
have been relying upon several favourable entries either in the school record
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or the birth and death registers, the committee has been able to trace older
contrary entries wherein the petitioners' father, uncle and paternal aunt
were described as 'Koli' and not 'Koli Mahadev'. The former is a 'Special
Backward Class' whereas the latter is a 'tribe'. Older evidence carries greater
probative value and no fault is committed by the committee in basing its
decision on the older contrary record rather than the recent favourable one.
12. The rival submissions now fall for our consideration. We have
carefully gone through the record and particularly the original files, not only
of the petitioners but also of their sister Pooja and one Rupendra Vyankatrao
Gore.
13. Indeed, in the normal course, the petitioners' real sister Pooja being
holder of a certificate of validity, irrespective of the observations of the
committee about she having obtained certificate of validity by resorting to
concealment of contrary record and misrepresentation, we would have
considered the aspect of issuing certificates of validity to both these
petitioners subject to the final outcome of the matter of Pooja, which the
committee has now decided to reopen. Whether the committee indeed has
any such power and jurisdiction is a matter which we do not intend to go
into. That could be a subject matter which would be directly and
substantially in issue if and when her case is reopened by the committee. We
are only concerned with the fact that the petitioners are seeking to derive
the benefit of Pooja's validity. Obviously, it is imperative for this Court to
follow the ratio laid down by the Supreme Court in the matter of
Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti (supra) and
particularly the observations in paragraph no. 22 to 25 and more
importantly para no. 22, which reads as under :
"22. We can also contemplate one more scenario which is
found in many cases. These are the cases where the
applicant relies upon caste validity certificates issued to his
blood relatives. Obviously, such a validity certificate has to
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be issued either by the Scrutiny Committee constituted in
terms of the directions issued in Kumari Madhuri Patil or
constituted under the Rules framed under the 2000 Act. In
such a case, firstly, the Scrutiny Committee must ascertain
whether the certificate is genuine. Secondly, the Scrutiny
Committee will have to decide whether the applicant has
established that the person to whom the validity certificate
relied upon by him has been issued is his blood relative.
For that purpose, the applicant must establish his precise
and exact relationship with the person to whom the
validity certificate has been granted. Moreover, an enquiry
will have to be made by the Scrutiny Committee whether
the validity certificate has been granted to the blood
relative of the applicant by the concerned Scrutiny
Committee after holding due enquiry and following due
procedure. Therefore, if the Scrutiny Committee has issued
a validity certificate contemplated in terms of the decision
in the case of Kumari Madhuri Patil, the examination will
be whether the enquiry contemplated by the said decision
has been held. If the certificate relied upon is issued after
coming into force of the 2000 Act, the Scrutiny Committee
will have to ascertain whether the concerned Scrutiny
Committee had followed the procedure laid down therein
as well as in the ST Rules or the SC Rules, as the case may
be. For this verification, the Scrutiny Committee can
exercise powers conferred on it by Section 9(d) by
requisitioning the record of the concerned Caste Scrutiny
Committee, which has issued the validity certificate to the
blood relative of the applicant. If the record has been
destroyed, the Scrutiny Committee can ascertain whether a
due enquiry has been held on the basis of the decision of
the Caste Scrutiny Committee by which caste validity has
been granted to the blood relative of the applicant. If it is
established that the validity certificate has been granted
without holding a proper inquiry or without recording
reasons, obviously, the caste scrutiny committee cannot
validate the caste certificate only on the basis of such
validity certificate of the blood relative."
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In the light of these observations, it becomes necessary for this Court
to ascertain as to if the petitioners can be extended benefit of Pooja's
validity.
14. True it is that vigilance enquiry was undertaken before granting
certificate of validity to Pooja. The record reveals that even the certified copy
of the Udgir Court was a part of the vigilance enquiry.
15. In number of matters this Court had an occasion to consider a similar
record purportedly issued by the Court of Judicial Magistrate Udgir of 1356
Fasli (1946 A.D.) but had found it to be forged one, pursuant to the enquiry
conducted by the Principal District Judge, Latur on the directions of this
Court in the matter of Kum. Balika Dagdu Patakrao (supra). No exception
can be taken to the observations of the committee in the impugned orders
that this was one of the pieces of evidence relied upon by the committee
which held Pooja to be entitled to have a certificate of validity, in spite of the
record being forged one.
16. The other pieces of evidence which were relied upon by the
committee which granted validity to Pooja were the certificates of validity of
one Priyanka Jayprakash Gore and Kaware Sanjiv Nagorao. The original
file of the committee in Pooja's matter contains affidavit dated 22.02.2011
purportedly sworn by Priyanka. Whereas it was noticed by the committee
that in fact one Rupendra Vyankatrao Gore who happens to be the real uncle
of Priyanka had stated that they were residents of Hingoli district whereas
the petitioners' family is from Latur and there was no evidence to
demonstrate that Pooja was related to Priyanka in any manner, still Pooja
was allowed to rely upon her validity. Having gone through the file of
Rupendra made available to us, it does appear that he is native of Hingoli
district. Obviously, by virtue of Section 8 of Maharashtra Act XXIII, the
burden has been on the petitioners to substantiate their claims. The
committee, has observed in the impugned orders that there was no
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relationship between Priyanka and the present petitioners, as a reason for
refusing to extend benefit of Pooja's validity since she had relied upon it. Not
even an attempt has been made by the petitioners to demonstrate before us
that indeed the observations of the committee are factually incorrect.
17. Similar is the fact situation in respect of the observations of the
committee in pointing out that a forged Udgir Court record was relied upon
by Pooja, however, no attempt has been made by the petitioners in this
regard to demonstrate as to how this observation is not sustainable.
18. The third piece of evidence relied upon by the committee which
granted validity to Pooja was a certificate of validity possessed by Sanjay.
The order passed in that matter clearly shows that Sanjay was her aunt's
son, meaning thereby that he was not related to Pooja by blood from the
paternal side.
19. Taking into account the fact that Pooja was held entitled to have a
certificate, primarily based on three pieces of evidence which could not have
been relied upon by the then committee being inadmissible, it cannot be
said that she was granted certificate of validity by following due process
and for plausible reasons. Udgir court record was forged one, validity
holder Priyanka was not related to her whereas, validity holder Sanjay was
the son of aunt and was not related to her by blood. Consequently, applying
the parameters laid down in the matter of Maharashtra Adiwasi Thakur
Jamat Swarakshan Samiti (supra), no fault can be found with the
observation and conclusion of the committee in the impugned orders
refusing to extend the benefit of Pooja's validity to the petitioners.
20. Keeping aside the aforementioned circumstance if one examines the
impugned orders and the evidence before the committees, it is apparent that
the favourable record wherein the petitioners and their family members
were described as 'Koli Mahadev' are of recent period, of 1970 onwards.
Whereas, the contrary school record of petitioners' father of 1964, the
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petitioners' real paternal uncle of 1957 and even father's school record of
1971 described them to be 'Koli'. In fact, the school record of Zilla Parishad
Central Primary School Gangapur Tq. & District Latur of petitioners' father
Bhanudas wherein he was admitted on 05.06.1964 was noticed to have been
manipulated by inserting word 'Mahadev' at a later point of time.
21. The learned advocate Ms. Talekar would vehemently submit that the
committee has not independently undertaken and examined the school
register to verify this fact and has simply drawn the inference on the basis of
the observations of the vigilance officer which it could not have. When even
the subsequent school record of petitioners' father Bhanudas of 1971 of Shri.
Marwadi Rajasthan Vidyalaya Latur, a photo copy of which register is
available in the original file clearly demonstrates that in the caste column he
was described as 'Koli', the inference drawn by the committee, based on the
observations in the vigilance report, cannot be said to be perverse or
arbitrary. More importantly, in spite of the fact that this was a clear
observation in the vigilance report, for the reasons best known to the
petitioner Shradha no reply was filed to this vigilance report and even
Krushnaprasad failed to file any reply to the vigilance enquiry report.
22. In addition to some contrary entries which were expressly discussed
herein above, in the matter of Shradha, contrary school record of petitioners'
paternal aunt Kanchan Yashwantrao Gore of 1965 wherein her caste was
described as 'Koli', was revealed during the similar enquiry in the matter of
Krushnaprasad. He has failed to explain such contrary entries. The fact that
in the school record of his father Bhanudas word 'Mahadev' was written in
different handwriting and ink was not specifically denied by him in the reply
and he merely objected that no such inference could be drawn. If Section 8
of the Act casts burden on the claimants to lead cogent evidence to
substantiate the caste or tribe claims, such evasive denial would not be
sufficient. The petitioners themselves could have attempted to bring on
record the photo copies of the school register if they were to demonstrate
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that the inference of the vigilance officer and the one drawn by the
committee are perverse in castigating this school record of petitioners' father
as manipulated.
23. Ms. Talekar made an attempt to salvage some ground in this regard by
referring to the decision of a division bench at Nagpur in the matter of Asra
Fatema d/o Zakir Ali Ahmed Vs. State of Maharashtra in Writ Petition No.
920/2021 decided on 13.10.2022 and particularly a similar circumstance
wherein there were allegations about manipulation in the school record. It
is pointed out that the alleged manipulation could not have been treated as
proved.
24. We have carefully gone through the decision and it reveals that the
fact situation in the matter was conspicuously different in material
particulars. There was allegation of interpolation in the school register of
grandfather of petitioner therein who was not alive. The scrutiny committee
recorded statement of the headmaster who was not the author of the
document. The author of the document was not examined, and relying
upon the decision in the matter of Sayanna Vs. State of Maharashtra and
ors. (2009) 10 SCC 268, the allegations regarding interpolation were
discarded. More importantly, the police inspector who had undertaken
vigilance enquiry had also not recorded any opinion about the alleged
interpolation. This is not a fact situation in the matter in hand. There is a
specific observation in the vigilance reports in the matters of both the
petitioners about word 'Mahadev' having been added in a different ink and
handwriting in the caste column of the school register of petitioners' father
Bhanudas, who is not stated to be no more. Besides, as observed herein
above Shradha has failed to file any response to the vigilance report whereas
petitioner Krushnaprasad has not disputed the fact that the entry is in a
different ink, rather has given an evasive reply by saying that mere
difference in ink could not be sufficient to drawn the inference. Therefore,
the petitioners are not entitled to derive any benefit from the decision in the
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matter of Asra Fatema d/o Zakir Ali Ahmed (supra).
25. In nutshell, the observations and the conclusions of the committee are
clearly based on plausible appreciation of the evidence before it and in
exercise of limited powers under Article 226, this Court cannot substitute its
views.
26. There is no merit in both the petitions and those are liable to be
dismissed.
27. The Writ Petitions are dismissed.
28. Rule is discharged.
29. Pending Civil Application is disposed of.
( NEERAJ P. DHOTE, J.) (MANGESH S. PATIL, J.)
mkd/-
Signed by: Mukesh K Deshmukh
Designation: PA To Honourable Judge
