Bombay High Court
Pankaj Bharat Bhimbarwad And Another vs The State Of Maharashtra Through Its ... on 27 August, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:19618-DB
1 WP / 7454 / 2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7454 OF 2024
1] Pankaj S/o Bharat Bhimbarwad,
Age - 28 years, Occ - Student,
R/o. Siranjani, Tq. Himayatnagar,
Dist. Nanded.
2] Shubham S/o. Bharat Bhimbarwad,
Age - 24 years, Occ - Student,
R/o. Siranjani, Tq. Himayatnagar,
Dist. Nanded. .. Petitioners
Versus
1] The State of Maharashtra
Through its Secretary,
Tribal Development Department,
(Social Justice Department),
Mantralaya, Mumbai - 32.
2] The Joint Commissioner,
Scheduled Tribe Certificate Scrutiny
Committee, Kinwat, Division Aurangabad,
Add - beside CIDCO Bus Stand,
CIDCO, Aurangabad .. Respondents
...
Advocate for petitioners : Mr. M.V. Thorat
Addl. GP for the respondent - State : Mr. A.R. Kale
...
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 19 AUGUST 2024
PRONOUNCED ON : 27 AUGUST 2024
ORDER (MANGESH S. PATIL, J.) :
By invoking powers under Article 226 of the Constitution of
India, read with sub section (2) of section (7) of the Maharashtra Act
No. XXIII of 2001 ('Act'), the petitioners are taking exception to the
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judgment and order of respondent no. 2 - Scrutiny Committee
constituted under that Act, refusing to validate their 'Koli Mahadev'
scheduled tribe certificates.
2. The learned advocate for the petitioners would take us
through the papers and would submit that the observations and the
conclusions of the committee are perverse and arbitrary. Isolated
contrary entries have been resorted to as against voluminous
favourable record. Even pre-constitutional record of petitioners' great
grandfather Kerba Mahadu of 1347 Fasli describing him as 'Koli
Mahadev' in the pahani patrak has been lightly discarded. There was
no sufficient and cogent reason for the committee to discard such pre-
constitutional record. The original entry is in Modi script and has been
duly translated by a person who had also filed affidavit. The committee
itself did not call for the record and did not verify the original and has
clearly relied upon the perception of the vigilance officer. Even if he
had some reservations that could not have been the basis for the
committee to reach any conclusion. This is abdication of the duty
particularly in such serious matters. The committee has not disputed
genuineness of the record from the Tehsil office of Mudhol which is now
in Nirmal district of Telangana state. The inference of the committee
based on the perception of the vigilance officer regarding 'Koli
Mahadev' entry having been made at a later point of time and is bold
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as compared to the other entries, is factually incorrect. Correct
appreciation of this pre-constitutional record would outweigh any other
subsequent contrary record, even if the committee has referred to
couple of such entries of cousin grandfather Maroti Kerba Bhimbarwad
and father Bharat Naga Bhimbarwad of the year 1964 and 1972,
respectively.
3. Per contra, learned AGP would support the conclusion
drawn by the committee. He would submit that it is a matter of
appreciation of the evidence. Vigilance enquiry has been conducted
which revealed the revenue record of 1347 Fasli to have been
manipulated. The entry therein appears in bold ink, demonstrating that
it was a recent one and inserted at a later point of time and was not
made in the ordinary course of the business of that public office. He
would, therefore, submit that the observation and the conclusion of the
committee refusing to bank upon such dubious entry cannot be
questioned.
4. Learned AGP would further submit that the petitioners had
failed to discharge the burden cast on them under section 8 of the Act.
The petitioners also could not get through the affinity test. Its efficacy
has not been discarded at all. In the light of the dubious document
relied upon by the petitioners, no exception can be taken with the
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committee in even applying the affinity test. He would, therefore, pray
to dismiss the petition.
5. We have carefully gone through the papers, including the
original papers of the petitioners' proposals with the scrutiny
committee.
6. Obviously, this being a tribe claim, pre-constitutional record
will have its own importance. Naturally, the petitioners are relying upon
pahani patrak of 1347-48 Fasli which corresponds to the year 1937-38
A.D. There is no dispute about the fact that the original pahani patrak
from the office of Tehsildar, Mudhol, District - Nirmal of Telangana
state, was personally inspected by the vigilance officer by approaching
that office. Admittedly, the impugned judgment and order has been
passed by the committee solely basing its conclusion on what was
reported by the vigilance officer after going through the original revenue
record. Independently, the committee had not called upon the original
record for its own inspection. Admittedly, a coloured photocopy of the
relevant page of the register was collected by the vigilance officer and
the committee had an occasion to peruse it.
7. After going through this coloured photocopy of the pahani
patrak which was maintained in Modi script and about translation of
which there is no dispute, we have a strong reservation about the
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observation of the vigilance officer and even that of respondent no. 2 -
scrutiny committee in the order under challenge. We cannot and we do
not subscribe to the inference and the observation of the vigilance
officer as well as the committee. As against the relevant entry in
respect of survey no. 3, the word 'Koli Mahadev' is appearing below the
name of the petitioners' great grandfather Kerba wald Mahadu. By no
stretch of imagination can it be said that these words 'Koli Mahadev',
are in dark ink as compared to the remaining portion of this very entry
in respect of survey no. 3 in different columns. The observation and
conclusion of the committee in spite of the coloured photocopy being
available to it, clearly shows that it has blindly relied upon the
observation of the vigilance officer rather than forming its own opinion
to verify it in juxtaposition to the photocopy of the original entry. Had it
done so, we have no manner of doubt that it would not have
subscribed to the observation of the vigilance officer.
8. To repeat, this pre-constitutional record is coming forth
from the concerned Tehsil office, genuineness of which comes with a
presumption about having been maintained in the ordinary course of
the official business. A perfunctory inference by the committee, readily
subscribing to the inference drawn by the vigilance officer, is
unbecoming of the office which has been conferred with the powers in
such serious matters.
6 WP / 7454 / 2024
9. Be that as it may, we have no manner of doubt in
accepting this 1347-48 Fasli revenue record wherein the petitioners'
great grandfather was described as 'Koli Mahadev'. Naturally this
being a pre-constitutional record, would be of greatest relevance as
compared to the subsequent couple of entries wherein, as mentioned
herein-above, the petitioners' cousin grandfather and father were
described as 'Koli Mahadev' in the year 1964 and 1972, respectively.
10. True it is that relevance of affinity test has not been out-
rightly discarded in Maharashtra Adiwasi Thakur Jamat Swarakshan
Samiti Vs. State of Maharashtra and others; 2023 SCC Online SC
326. However, perusal of paragraph no. 25 of that judgment would
clearly demonstrate that it cannot be resorted to, to dislodge the
documentary evidence.
11. In the light of above discussion, in our considered view, the
impugned judgment and order discarding the pre-constitutional record
of 1347-48 Fasli is clearly perverse, arbitrary and capricious. Since it is
a favourable record which lends support to the petitioners' claim of
belonging to 'Koli Mahadev' scheduled tribe, the impugned judgment
and order is liable to be set aside.
12. In the result, the writ petition is allowed.
7 WP / 7454 / 2024
13. The impugned order is quashed and set aside.
14. The respondent - committee shall immediately issue tribe
validity certificates to the petitioners as belonging to 'Koli Mahadev'
scheduled tribe.
[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
