Bombay High Court
Pathan Javeriya Afroz Mohsin Khan vs The State Of Maharashtra Through Its ... on 7 August, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:17203-DB
1 WP / 7381 / 2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7381 OF 2024
Kum. Pathan Javeriya Afroz Mohsin Khan
Age : 21 years, Occu : Education,
R/o. Gangakhed, Tq. Gangakhed,
Dist. Parbhani .. Petitioner
Versus
1] The State of Maharashtra,
Tribal Development Department,
Through its Secretary,
Mantralaya, Mumbai - 400 001
2] Scheduled Tribe Certificate
Scrutiny Committee, Aurangabad,
Office at Aurangabad,
Through its Member Secretary .. Respondent
...
Advocate for petitioner : Mr. S.S. Phatale
Addl.GP for the respondent - State : Mr. P.S. Patil
...
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 01 AUGUST 2024
PRONOUNCED ON : 07 AUGUST 2024
JUDGMENT (MANGESH S. PATIL, J.) :
Heard. Rule. Rule is made returnable forthwith.
2. By this petition under Article 226 of the Constitution of
India read with section 7 (2) of the Maharashtra Act No. XXIII of 2001
('Act'), the petitioner is taking exception to the judgment and order of
the respondent - scheduled tribe certificate scrutiny committee
('Committee'), constituted under the provisions of that Act, refusing to
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validate her Tadvi scheduled tribe certificate and directing its
confiscation and cancellation.
3. The learned advocate for the petitioner would submit that
this is a second round of litigation. The petitioner had tried to
substantiate her claim by leading cogent and reliable evidence but it
was discarded for no valid reason. She relied upon the genealogy and
even filed affidavit of one Ahmedkhan Burhankhan Pathan. She was
relying upon the school record of that Ahmedkhan's father Burhankhan
Pathan of 1920, wherein he was described in the caste column as
'Tadvi'. However, during vigilance enquiry, Ahmedkhan Burhankhan
Pathan stated before the vigilance officer not being related to the
petitioner and his affidavit was obtained by coercion. He also gave a
separate genealogy. However, during the course of enquiry, the
petitioner had kept present Ahmedkhan Burhankhan Pathan. An
application was submitted to the committee to record his statement
which he had earlier resiled. However, the opportunity was not
extended and the claim was decided against the petitioner. In writ
petition no. 10693 of 2023, this Court remanded the matter precisely to
verify correctness of either of the stands of Ahmedkhan Burhankhan
Pathan. Additionally, a Nikahnama in Urdu of 1376 Fasli (1966 A.D.)
was also produced in the writ petition. It was also stated that it was
also produced before the committee but it had not undertaken any
verification of that Urdu document and that claim was decided.
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Considering such lack of opportunity to the petitioner and impropriety in
the procedure adopted by the scrutiny committee, this Court had
remanded the matter to the committee for decision afresh.
4. The learned advocate further submitted that after remand,
pursuant to additional enquiry, the committee has again dismissed
petitioner's claim ignoring to adopt the stand of Ahmedkhan
Burhankhan Pathan. There was no reason for the committee to
discard his direct version when he had expressly stated the genealogy
and the fact that the then vigilance officer had recorded his submission
under duress and the petitioner, in fact, is related to him by blood from
the paternal side. No sufficient and cogent reasons have been
assigned by the committee. The decision to discard his version is
clearly perverse, arbitrary and capricious.
5. Mr. Phatale would submit that sofar as the Urdu document
of 1376 Fasli, the vigilance officer had visited the office of the
Maharashtra State Wakf Board at Gangakhed. The stand of the
committee to discard this old document is also perverse and arbitrary. It
has resorted to drawing some inference without any substance. It was
clearly showing that his grandfather was Tadvi and the committee
ought to have accepted this.
6. Mr. Phatale would submit that it is not necessary that there
has to be pre-constitutional record without which no claim can be
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validated. Even if the petitioner was unable to produce any pre-
constitutional record, apart from the school record of Ahmedkhan
Burhankhan Pathan and that of cousin great grandfather - Burhan
Gulzar Tadvi, the claim could not have been discarded. He would
submit that the impugned judgment and order being perverse and
arbitrary, be reversed.
7. Per contra, the learned AGP would submit that the
petitioner has miserably failed to substantiate her claim. She had failed
to demonstrate by leading some positive evidence about Ahmedkhan
Burhankhan Pathan being related to her by blood. No plausible
explanation is coming forth why he had initially tried to resile from the
affidavit. He had even prepared a genealogy wherein the branch of the
petitioner's forefathers was not traceable. She has resorted to fraud
and manipulation and even Ahmedkhan Burhankhan Pathan has now
connived with her. He ought to have given some explanation as to why
the branch of petitioner's forefathers was not revealed by him. No fault
can be found in the impugned order whereby the committee has
refused to give credence to his changed stand.
8. The learned AGP would submit that in fact the petitioner's
family is resident of Gangakhed which is in Parbhani district whereas
this Ahmedkhan Burhankhan Pathan hails from Amode, Taluka -
Yawal, District - Jalgaon bordering Madhya Pradesh. There is nothing
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to demonstrate as to how the two families started residing at such
distant places which are more than 300 km apart. He would submit
that even this had weighed with the committee in discarding the stand
of the petitioner and that of Ahmedkhan Burhankhan Pathan.
9. The learned AGP would further submit that even attempt
has been made by the petitioner to resort to fraud and manipulation in
connivance with Ahmedkhan Burhankhan Pathan. Though they have
been relying upon the extract of the school record showing that
Ahmedkhan Burhankhan Pathan's grandfather - Gulzarkhan stated to
be admitted in the school on 01-09-1920, mentioned in book no. 6,
register no. 365 of Zilla Parishad Primary School, Amode, Taluka -
Yawal, during vigilance enquiry when the vigilance officer visited the
school, name of Burhan Gulzar Tadvi was not traceable at that serial
number. Similar was the case in respect of the school record of
Ahmedkhan Burhankhan Pathan stated to be admitted in school on
27-04-1950 at serial no. 1063 but even that was not traceable with the
school.
10. The learned AGP would submit that even the Urdu
document of 1376 Fasli is a Nikahnama of 01-04-1957 purportedly that
of petitioner's grandfather - Babukhan Dadekhan Tadvi. However,
caste of the petitioner's grandfather was stated as Tadvi whereas that
of her grandmother (bridegroom) was described in the caste column as
6 WP / 7381 / 2024
Sayed. No fault can be found with the inference drawn by the
committee that Tadvi and Sayed are distinct castes and no intercaste
marriages take place. Even this was rightly discarded by the
committee.
11. The learned AGP would thus submit that apart from the
above, other documents produced by the petitioner and sought to be
relied upon by her, were found to be manipulated showing that the
petitioner and her family members have no regard to truth. By virtue of
section 8 of the Act, the burden lies on the petitioner to substantiate her
claim. The observations and the conclusions of the committee are
based on plausible appreciation of the material and no exception can
be taken. He prays to dismiss the petition.
12. We have considered the rival submissions and perused
the papers.
13. It is a matter of record that when the petitioner had initially
put up a proposal for validation of her 'Tadvi' scheduled tribe certificate,
she had filed an affidavit of Ahmedkhan Burhankhan Pathan together
with a genealogy, wherein, she was shown to be his niece. She also
sought to rely upon the school record of Burhankhan Pathan of the
year 1920, wherein, he was described as 'Tadvi'. However, during
vigilance inquiry, Ahmedkhan Burhankhan Pathan stated before the
vigilance officer that he had sworn that affidavit under duress and also
7 WP / 7381 / 2024
denied having any blood relationship with her and also submitted a
separate genealogy. The committee refused to consider such school
record of Burhankhan, based on such a changed stand of Ahmedkhan
Burhankhan Pathan and overlooked his affidavit filed by the petitioner
and discarded her claim. In writ petition No.10693 of 2023, the
petitioner had submitted that an application of Ahmedkhan Burhankhan
Pathan on 24-08-2022 resiling from what was reported by the vigilance
officer and stating that whatever he had stated in the affidavit produced
by her was the true state of affairs, the Committee had failed to
consider it. This Court quashed and set aside the order of invalidation
and the matter was remanded back to the scrutiny committee for taking
a decision afresh in light of the stand that was being taken by
Ahmedkhan Burhankhan Pathan and even for considering the worth of
the Nikahnama in Urdu of 1376 Fasli.
14. Accordingly, the Committee once again resorted to the
vigilance inquiry and by the impugned judgment and order refused to
validate petitioner's tribe certificate disbelieving Ahmedkhan
Burhankhan Pathan and discarding the Nikahnama of 1376 Fasli.
15. It is a matter of record that Ahmedkhan Burhankhan
Pathan, for whatever reason, has not been consistent. Though he had
filed initially an affidavit supporting the petitioner, before the vigilance
officer he retracted it and again has resiled from the stand taken before
8 WP / 7381 / 2024
the vigilance officer and now supports the petitioner. Considering the
fact that he is a resident of Amode, Taluka - Yawal, District Jalgaon,
whereas, the petitioner's family hails from Gangakhed, District
Parbhani which are the places more than 300 km apart, in the absence
of any other corroborative material, one cannot find fault with the
inference drawn by the Committee refusing to believe Ahmedkhan
Burhankhan Pathan.
16. It is not the issue as to if he and his forefathers are 'Tadvi'
by caste. The issue is, as to if there exist any blood relationship
between the petitioner and him. It was, therefore, imperative for the
petitioner to have led evidence corroborating her such stand, more so
in light of the fact that the native of both these families is about 300 km
apart. Even if it is trite that the burden to be discharged under Section
8 of the Act, to substantiate the claim of belonging to a particular
scheduled tribe or scheduled caste, can be discharged by
preponderance of probabilities and a strict proof is not necessary, the
aforementioned circumstances of Ahmedkhan Burhankhan Pathan
changing the stand from time to time coupled with the fact of distance
between the natives of these two families, no fault can be found with
the Committee in discarding the stand of the petitioner seeking to
derive benefit from the pre-constitutional school record of ancestors of
Ahmedkhan Burhankhan Pathan.
9 WP / 7381 / 2024
17. Again, as far as Nikahnama of 1376 Fasli is concerned,
since it is of post-independece period, it would have an inherent
limitation in substantiating the petitioner's tribe claim, more so when
her grandfather has been described therein as 'Tadvi' but the
bridegroom is shown to be 'Sayed'. No argument has also been
advanced on the observations of the Committee in the impugned
judgment and order pointing out such discrepancy in the Nikahnama
and more importantly when it is not the petitioner's case about her
grandfather having solemnized inter caste marriage. We, therefore,
are unable to appreciate the submission of the learned advocate for the
petitioner that even this Nikahnama would be relevant and acceptable
piece of evidence to substantiate the caste claim. The observation of
the Committee, therefore, refusing to give credence to this piece of
evidence, also cannot be faulted with.
18. Coupled with the aforementioned aspects, even the fact
that as indicated by the Committee in the impugned judgment and
order, even the petitioner's family seems to have indulged in rampant
manipulation of the school record obviously for substantiating the caste
claim puts everyone on guard. The Committee has reproduced such
dubious school record in the impugned order, in a chart, which reads
as under :
10 WP / 7381 / 2024
Sr. Admission Name of the Student Relation Caste Recorded Admission Remark
No. Sr. No. with the Date
applicant
1. 166 Pathan Khurshid Babu Uncle Musalman Tadvi 15/10/1969 Tadvi has been added in
a different ink and
handwriting
2 1181 Shahbas Khan Babukah Uncle Musalman Tadvi 29/06/1976 Tadvi has been added in
a different ink and
handwriting
3 799 Pathan Moinkha Uncle Islam Tadvi 23/07/1980 Tadvi has been added in
Babukha a different ink and
handwriting
4 798 Pathan Nayumkha Uncle Islam Tadvi 23/07/1980 Tadvi has been added in
Babukha a different ink and
handwriting
5 429 Khan Mohsinkha Father Tadvi Pathan 29/06/1982 Tadvi has been added in
Babukha a different ink and
handwriting
19. Even if it is a matter of record that initially, when the
petitioner's claim was decided for the first time, such alleged
manipulated school record was used by the Committee without
extending an opportunity to the petitioner to explain the allegations and
contrary to the decision in the matter of Sayanna Vs. State of
Maharashtra and Ors.; (2009) 10 SCC 268. However, when
admittedly, the matter was remanded, the petitioner is not entitled to
again bank upon Sayanna (supra). It was, therefore, imperative for her
to respond to such school record stated to have been manipulated.
Failure of the petitioner to deal with and explain away such
manipulated school record is demonstrative of the fact and sufficient to
substantiate the inference of the Committee that the petitioner and her
family have indulged in manipulation and attempted to practise fraud.
This would be an additional circumstance which would lend support to
the inference drawn by the Committee while discarding her 'Tadvi'
scheduled tribe claim.
11 WP / 7381 / 2024
20. In light of above, in our considered view, the impugned
judgment and order cannot be said to be perverse or arbitrary.
21. The writ petition is dismissed.
22. Rule is discharged.
[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
