Bombay High Court
Ajay Gunwant Malu vs The State Of Maharashtra Through Its ... on 1 August, 2024
Author: Mangesh S.Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:16542-DB
1 WP / 7161 / 2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
998 WRIT PETITION NO. 7161 OF 2024
AJAY GUNWANT MALU
VERSUS
THE STATE OF MAHARASHTRA THROUGH
ITS SECRETARY AND ANOTHER
...
Advocate for petitioner : Mr .S. M. Vibhute
AGP for the respondent - State : Mr. R.S. Wani
...
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
DATE : 01 AUGUST 2024
ORAL ORDER (MANGESH S.PATIL,J.) :
The petitioner is challenging the order of invalidation,
refusing to recognize 'Koli Mahadev' scheduled tribe certificate.
2. We have heard both the sides and perused the record
including that of one Subhash Ganpati Malu.
3. Learned advocate for the petitioner submits that though
the petitioner had initially claimed to derive the benefit of the validity
possessed by one Govind Kerba Malu and had submitted the
genealogy, it was incorrect. A fresh genealogy was prepared by the
vigilance officer which was subsequently produced by the petitioner
along with his reply to the vigilance cell report. He would submit that
though the petitioner could not have derived the benefit of the validity
2 WP / 7161 / 2024
of Govind Kerba Malu since he was not related to him by blood, the
petitioner's cousin paternal uncle - Subhash Ganpati Malu and his
daughter Shital possess certificates of validities. She was directed to
be issued with certificate of validity by the order of this Court. Neither
the vigilance officer nor the committee has disputed petitioner's
relationship with Subhash and Shital. The petitioner is running the risk
as contemplated in Shweta Balaji Isankar Vs. State of Maharashtra
and others (writ petition no. 6320 of 2017) and he may be issued
with a certificate of validity conditionally.
4. Learned AGP would strenuously oppose the petition. He
would submit that the committee has made precise observations
demonstrating as to how Govind was not related to the petitioner and
had filed affidavits and an incorrect genealogy.
5. Learned AGP would also submit that affidavits of the
validity holders - Subhash and Shital were not submitted under rule
11(2)(d)(iii) of the Maharashtra Scheduled Tribes (Regulation of
Issuance and Verification of) Certificate Rules, 2003 ("Rules, 2003").
He would also point out that Subhash himself had come out with a
genealogy similar to which was presented by the present applicant -
petitioner admittedly incorrect, showing Govind Kerba Malu as related
to him (Subhash) based on which he had obtained certificates of
3 WP / 7161 / 2024
validity. He would submit that Shital was granted certificate of validity
conditionally by this Court.
6. It is a matter of record admittedly the petitioner had filed a
genealogy which even now is being admitted to be incorrect. However,
simultaneously one cannot overlook the fact that the vigilance officer
had prepared a genealogy by enquiring with the father of the petitioner.
Petitioner, during the course of hearing, also submitted the same
genealogy before the committee. The impugned order does not refer
to and make comment in respect of such genealogy prepared by the
vigilance officer and the one furnished by the petitioner. Rather, even
in the vigilance report as also in the impugned order, Subhash has
been described as cousin paternal uncle of petitioner.
7. Admittedly, Subhash possesses the validity certificate so
does his daughter - Shital. The committee has refused to extend the
benefit of their validities only on the ground that their affidavits were not
filed as required by rule 11(2(d)(iii) of the Rules, 2003. Pertinently, the
committee has not gone into and examined sustainability of Subhash's
and Shital's validities. However, while granting certificate of validity to
Shital, this Court had expressly made it co-terminus with the enquiry
into Subhash's and Shital's matters which were decided to be
re-opened.
4 WP / 7161 / 2024
8. In the absence of any dispute regarding petitioner's blood
relationship with Subhash and Shital, even the petitioner deserves to
be extended benefit of having a certificate of validity with similar
conditions.
9. Absence of affidavit of the validity holder, as is
contemplated in rule 11(2)(d)(iii) of the Rules, 2003, in our considered
view, cannot be a ground to discard the claim irrespective of the fact
that it uses the word 'shall'. If it is a matter of proving a fact, like claim
regarding social status, a particular kind of proof cannot be insisted,
more so, when the facts are to be proved on the basis of
preponderance of probability.
10. The writ petition is allowed partly.
11. Impugned judgment and order is quashed and set aside.
12. The respondent - committee shall immediately issue tribe
validity certificate to the petitioner as belonging to 'Koli Mahadev'
scheduled tribe in the prescribed format without adding anything. The
validity shall be subject to the final outcome of the matters which the
committee has decided to re-open.
13. The petitioner shall not be entitled to claim equities.
[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
