IMPORTANT POINT
The court clarified that the absence of pre-constitutional records does not invalidate a tribe claim if sufficient recent evidence is presented, but the claimant must still meet the burden of proof.

JUDGMENT :

(Mangesh S. Patil, J.) :

Rule. Rule is made returnable forthwith. Learned AGP waives service.

2. By resorting to Article 226 of the Constitution of India read with section 7(2) of the Maharashtra Act No. XXIII of 2001 (‘Act’) and the rules framed thereunder, the petitioner is challenging the judgment and order of respondent no. 2, which is a committee constituted under that Act for validation of the scheduled tribe certificates, refusing to validate her ‘Koli Mahadev’ scheduled tribe certificate and directing its confiscation and cancellation.

3. The learned advocate for the petitioner would vehemently submit that in spite of conducting vigilance enquiry, no contrary record could be traced and none has been referred to in the entire impugned order. The record collected during vigilance enquiry, is only favourable record wherein petitioner’s blood relatives have been described as ‘Mahadev Koli’ or ‘Koli Mahadev’. The conduct of the committee in discarding this record only because it is of recent period and there is no evidence of pre-constitutional period, is perverse and arbitrary. He would submit that there could not have been insistence for producing pre-constitutional record. The issue has been consistently addressed by this Court wherein it has been held that there should not be insistence to produce old record. He would cite decisions in the matters of Vaijnath S/o Janardhan Zunjkar Vs. Scrutiny Committee for Verification of Tribe Claims, Aurangabad and another; 2006(3) Mh.L.J. 536 and Yogesh S/o Madhavrao Kakulte Vs. State of Maharashtra and another; 2006(3) Mh.L.J. 691.

4. Learned advocate would further submit that the committee has also illegally applied the area restriction and the affinity test. The petitioner being the first person in the entire family seeking validation of tribe certificate, the record available before the committee was sufficient to substantiate her claim and the impugned order being perverse, arbitrary and capricious, be quashed and set aside.

5. The learned AGP would support the order under challenge. He would submit that the committee has merely observed that the favourable record produced by the petitioner is of recent period between 1983 and 2020. The committee has merely observed that such favourable record of recent period was not sufficient to substantiate the tribe claim. The committee has also, therefore, rightly resorted to the principle of area restriction and has even applied the affinity test. She failed in both. By virtue of section 8 of the Act, the burden is on a claimant to lead cogent evidence to substantiate the claim. The observations and conclusions of the committee are plausible and reasonable. In the absence of any convincing evidence, the only option with the committee was to refuse to validate petitioner’s tribe certificate.

6. We have considered the rival submissions and perused the papers.

7. At the outset, it is necessary to record that though by virtue of section 8 of the Act, the burden is on the claimant to lead cogent and convincing evidence to substantiate the tribe claim, there cannot be insistence as to the nature of evidence that is required to discharge such burden. Since it is a matter of proof of a fact, any evidence permissible under the Indian Evidence Act, would be admissible. This Court has been consistently observing that there could not be any insistence by the committee/s for producing pre-constitutional record for substantiating the caste or tribe claim/s. Consequently, the stand of the committee in the impugned order observing that the petitioner having failed to lead evidence of the period prior to 1950, would not be legally sustainable.

8. However, when, admittedly, the petitioner has tendered the favourable record of recent origin, i.e. between 1983 and 2020, in our considered view, no fault can be found with the committee in not extending the weight to such record which would have inherent limitations inasmuch as there would be every room to b