1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.927 OF 2009 Dashrath s/o. Reshmaji Gaddamwad Age 30 years, Occu : Student, r/o. Dapshed, Post Sonkhed, Tq. Loha, Dist. Nanded ..Petitioner Versus 1. State of Maharashtra Through its Secretary Tribal Development Department, Mantralaya, Mumbai – 400 032. 2. Scheduled Tribe Caste Verification/Scrutiny Committee, Aurangabad Division, Aurangabad. 3. Dy.Collector/ Special Land Acquisition Officer, (B & C) Nanded, Dist. Nanded. ..Respondents Mr.S.B.Dastagir, Advocate for petitioner. Mr.N.B. Patil, A.G.P. for respondent 1 & 3. Mr. M.S.Deshmukh, Advocate for respondent No. 2/committee. CORAM :- V.C.DAGA & A.V.POTDAR,JJ. DATE : 16TH JULY, 2009 JUDGMENT (PER : VIJAY DAGA,J.) 1. This petition is directed against the order dated 30th June,2008 issued by respondent No.2–Scheduled Tribe Caste Verification/Scrutiny Committee, 2 Aurangabad Division, Aurangabad whereunder tribe claim of the petitioner was rejected. THE FACTS 2. In order to appreciate the bone of contention, it would be necessary to mention few facts relevant to the issues raised: 3. The petitioner claims to be a person belonging to “Koli Mahadev” Scheduled Tribe listed at serial number 29 in the list of Scheduled Tribe as applicable to the State of Maharashtra. The tribe claim of the petitioner was referred to the Scheduled Caste Verification Scrutiny Committee (“Caste Scrutiny Committee” for short) constituted for verification of the tribe claim of Scheduled Tribes, who are entitled to claim benefit of reservation. The petitioner had obtained caste certificate dated 17th June, 2002 duly issued by the Deputy Collector certifying that the petitioner belongs to the Koli Mahadev Scheduled Tribe. 4. The petitioner claims to have filed 23 documents before the committee for deciding his tribe claim. One of such oldest documents appearing in the list at Sr.No. 23 is an unregistered document alleged to have been executed by the grandfather of petitioner one Mr.Nagoji Shivram bearing No.BC 19845 wherein his caste is shown as Koli Mahadev. The petitioner has also produced caste validity certificate of his close relatives viz. Mr.Pralhad Hulajirao Sangam, Mr.Mudiraj Manoj Sayali, Mr.Vasant Ganpat Kotewar, Mr.Karampalle Umakant Mohanrao along with affidavits duly sworn by Shri Manoj Mudiraj and Shri Kalampalle Umakant wherein both of them have stated that the petitioner is closely related to them. 5. The petitioner has brought on record the enquiry report of the Vigilance Officer conducted on 23rd August, 2007 who had visited the native place of the petitioner and verified the school record including that of his family members. He has also brought on record that, the Vigilance Officer, during the home enquiry, has enquired from the petitioner and his family members regarding their social status, 3 ethnic linkage, anthropological and ethnological traits, deity, rituals, customs etc. which according to the petitioner were adequately disclosed. The petitioner has also stated in the petition that the Scrutiny Committee had invited the petitioner for interview along with his elder member of the family. Accordingly, he, appeared before the Committee on 24th June, 2008 and was interviewed. The Scrutiny Committee, after appreciating the evidence and other material including the material extracted during the course of personal interview of the petitioner, negatived his claim by the impugned order for the reasons recorded therein. The relevant part of which is reproduced hereinbelow : “The applicant has not produced any school record of his forefather as belonging to “Koli Mahadeo”, Scheduled Tribe. Therefore, the committee has come to the conclusion that: 1] In the school record of the applicant, applicant’s father and his relative caste clearly is recorded as “Koli”. 2] The applicant has not produced sufficient documentary evidence in support of his claim. 3] He has utterly failed to prove his affinity and ethnic linkage towards “Koli Mahadeo” Scheduled Tribe. 4] The applicant has not produced any valuable proof or record prior to 1950 sufficient documentary evidence in support of his claim. In brief whatever the information has been furnished by the applicant about traditional occupation, god/goddesses, surnames and customs culture, following etc. are not associated with the real Scheduled Tribe committee people. 6. Being aggrieved by the aforesaid order, the petitioner has invoked the writ jurisdiction of this Court under Article 226 and 227 of the Constitution of India. 7. The petitioner has raised two contentions, one leading to misappropriation of documents and other failure to give due importance to the tribe claim of the close relatives, whose claims were verified, certified and accepted by the Scrutiny Committee to be true and correct. The same are supported by their statement on oath. 4 CONSIDERATION 8. After brief narration of facts mentioned above, before going to the merits of the matter, it may be necessary to state the well established principles in the light of which we have to decide the conflicting claims of the parties. It appears that genealogy is the very fabric and foundation of the edifice on which the case of the petitioner is sought to be built. This is the sole important point on which the petition was argued. In such cases, as there is a tendancy on the part of the interested person or a party in order to grab, establish and prove an alleged claim, to concoct, fabricate or procure false genealogy to suit their ends, the Court in relying on the genealogy put forward must guard themselves against falling into the trap by a false or fabricated genealogy to support their rival claims. The experience shows, in majority of the cases arising out of caste or tribe claims, the attempt is always to put forward false genealogy to establish link with the persons holding a tribe or caste validity certificate. 9. It is well settled that when a case of party is based on a genealogy consisting of different links, it is incumbent on the party to prove every ling thereof and even if one link is found to be missing then in the eye of law the genealogy cannot be said to have been fully proved. 10. The law as to how the genealogy is to be proved is crystallized in the judgment of the Apex Court in the case of Dolgobinda Paricha Vs. Nimai Charan Misra and Ors. AIR 1959 SC 914(1), wherein the Apex Court ruled as under : “6. We proceed to consider the second question first. The Evidence Act states that the expression " facts in issue " means and includes any fact from which either by itself or in connection with other facts the existence, non- existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follow; "evidence" means and includes (1) all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry ; and (2) all documents produced for the inspection of the Court. It further states that one fact is said to be relevant to another when the one is connected with the other in any one of the ways referred to in the 5 provisions of the Evidence Act relating to the relevancy of facts. Section 5 of the Evidence Act lays down that evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and 'of such other facts as are declared to be relevant and of no others. It is in the context of these provisions of the Evidence Act that we have to consider s. 50 which occurs in Chapter 11, headed " Of the Relevancy of Facts Section 50, in so far as it is relevant for our purpose, is in these terms:- " S. 50. When the Court has to form an opinion as to the relationship of one personto another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact On a plain reading of the section it is quite clear that it deals with relevancy of a particular fact. It states in effect that when the Court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact. The two illustrations appended to the section clearly bring out the true scope and effect of the section. It appears to us that the essential requirements of the section are-(I) there, must be a case where the court has to form an opinion as to the 822 relationship of one person to another; (2) in such a,case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3)but the person whose opinion expressed by conduct is relevant must be a, person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship ; in other words,the person must fulfil the condition laid down in the latter part of thesection. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than more retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. Now, the " belief " or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved. We are of the view that the true scope and effect ofsection 50 of the Evidence Act has been correctly and succinctly put in the following observations made in Chandu Lal Agarwala v. Khalilar Rahman (1):- "It is only opinion as expressed by conduct which is made relevant. This is how -the conduct comes in. The offered item of evidence is the conduct', but what is made admissible inevidence is' the opinion', the opinion as expressed by such conduct)The offered item of evidence thus only moves the Court to an intermediate decision : its immediate effect is only to move the Court to see if this conduct establishes any I opinion' of the person, 6 whose conduct is in evidence, as to the relationship in question. In order to enable the Court to infer 'the opinion ', the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the opinion'. When the conduct is of such a tenor, the Court only gets to a relevant piece of evidence, namely, the opinion of a person. It still remains for the Court to weigh such evidence and come to its own opinion as to the factum probandum-as to the relationship in question." We also accept as. correct the view that s. 50 does not make evidence of mere general reputation (without conduct) admissible as proof of relationship: Lakshmi Reddi v. Venkata Reddi. 7. It is necessary to state here that how the conduct or external behaviour which expresses the opinion of a person coming within the meaning of s. 50 is to be proved is not stated in the section. The section merely says that such opinion is a relevant fact on the subject of relationship of one person to another in a case where the court has to form an opinion as to that relationship. Part 11 of the Evidence Act is headed " On Proof ". Chapter III thereof contains a fascicule of sections relating to facts which need not be proved. Then there is Chapter IV dealing with oral evidence and in it occurs s. 60 which says inter alia :- " S. 60. Oral evidence must, in all cases whatever, be direct; that is to say- if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense in that manner; if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds. " If we remember that the offered item of evidence under s. 50 is conduct in the sense explained above, then there is no difficulty in holding that such conduct or outward behaviour must be proved in the manner laid down in s. 60; if the conduct relates to something which can be seen, it must be proved by the person who saw it; if it is something which can be heard, then it must be proved by the person who heard it; and so on. The conduct must be of the person who fulfils the essential conditions of s. 50, and it must 7 be proved in the manner laid down in the provisions relating to proof. It appears to us that that portion of s. 60 which provides that the person who holds an opinion must be called to prove his Opinion does not necessarily delimit the scope of S. 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expresses the opinion. Conduct, as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under s. 50 or by some other person acquainted with the facts which express such opinion, and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case direct within the meaning of s. 60. This, in our opinion, is the true inter-relation between s. 50 and s. 60 of the Evidence Act. In Queen Empress v. Subbarayan ILR 9 Mad 9 at p.11 Hutchins, J., said :- " That proof of the opinion, as expressed by conduct, may be given, seems to imply that the person himself is not to be called to state his own opinion, but that, when he is dead or cannot be called, his conduct may be proved by others. The section appears to us to afford an exceptional way of proving a relationship, but by no means to prevent any person from stating a fact of which he or she has special means of knowledge. While we agree that s. 50 affords an exceptional way of proving a relationship and by no means prevents any person from stating a fact of which he or she has special. means of knowledge, we do not agree with Hutchins, J., when he says that the section seems to imply that the person whose opinion is a relevant fact cannot be called to state his own opinion as expressed by his conduct and that his conduct may be proved by others only when he is dead or cannot be called. We do not think that s.50 puts any such limitation. 11. The Apex Court also had an occasion to consider, what should be the approach of the Court in appreciating the evidence based on genealogy and the principles to be followed. The principles governing such cases are summarised by the Apex Court in the case of State of Bihar Vs. Radha Krishna Singh and Ors. (1983) 3 SCC 118. (Para 19) in following words; 19. The principles governing such cases may be summarised thus : (1) Genealogies admitted or proved to be old and relied on in previous cases are doubtless relevant and in some cases may even be conclusive of the facts proved but there are several consideration which must be kept in mind by the courts before accepting or relying on the genealogies: a. Source of the genealogy and its dependability. b. Admissibility of the genealogy under the Evidence Act. c. A proper use of the said genealogies in decisions or judgments on 8 which reliance is placed. d. Age of genealogies. e. Litigations where such genealogies have been accepted or rejected. (2) On the question of admissibility the following tests must be adopted: a. The genealogies of the families concerned must fall within the four corners of Section 32(5) or Section 13 of the Evidence Act. b. They must not be hit by the doctrine of post litem motam. c. The genealogies or the claims cannot be proved by recitals, depositions or facts narrated in the judgment which have been held by a long course of decisions to be inadmissible. d. Where genealogy is proved by oral evidence, the said evidence must clearly show special means of knowledge disclosing the exact source, time and the circumstances under which the knowledge is acquired, and this must be clearly and conclusively proved. 12. We shall now proceed to scan and analyse the evidence in the light of the principles adumbrated above referring to the important authorities on the question arising from the submissions made. 13. It is also well settled that statements or declarations before persons of competent knowledge made ante litem motam are receivable to prove ancient rights of a public or general nature. The admissibility of such declarations is, however, considerably weakened if it pertains not to public rights but to purely private rights. It is equally well settled that declarations or statements made post litem motam would not be admissible because in cases or proceedings taken or declarations made ante litem motam, the element of bias and concoction is eliminated. Before, however, the statements of the nature mentioned above can be admissible as being ante litem motam they must be not only before the actual existence of any controversy but they should be made even before the commencement of legal proceedings. Inthis connection, in para 562 at page 308 of Halsbury's Laws of England (supra) the following statement is made: 9 "To obviate bias, the declarations must have been made ante litem motam, which means not merely before the commencement of legal proceedings, but before even the existence of any actual controversy, concerning the subject matter of the declarations. So strictly has this requirement been enforced that the fact that such a dispute was unknown to the declarant, or was fraudulently begun with a view to shutting out his declarations, has been held immaterial." 14. This position however cannot hold good of statements made post litem motam which would be clearly inadmissible in evidence. The reason for this rule seems to be that after a dispute has begun or a legal proceeding is about to commence the possibility of bias, concoction or putting up false pleas cannot be ruled out. 15. In Kalka Prasad & Ors. v. Mathura Prasad (1) the Privy Council refused to accept a pedigree which was of the year 1892 because the controversy had originated in the year 1891, that is to say, a year before the pedigree was filed. In this connection, commenting on the genealogy relied upon by the plaintiff their Lordships observed as follows: "Taking them in the reverse order, the last is inadmissible, having been made post litem motam. .... ..... ... In order to make the statement inadmissible on thisground, the same thing must be in controversy before and after the statement is made." 16. In Dolgobinda Paricha v. Nimai Charan Misra & Ors.(1) the Apex Court held that the statement in question was admissible because it was made before the question in dispute had arisen. In other words, Court held that in the facts and circumstances of that case the statement and the pedigree relied upon were made ante litem motam and not post litem motam, for if the latter had been the case, the document would have become inadmissible and in this connection the Court observed thus: "That being the position, the statements as to pedigree contained in Ex.I were made before the precise question in dispute in the present litigation had arisen." 10 17. Turning to the facts of this case, the petitioner has filed two affidavits of his close relatives after the commencement of the litigation along with genealogy. The genealogy is produced by the petitioner along with affidavit of Manoj Sayalu Mudiraj to establish his blood relationship with the deponent. The same is being reproduced hereinbelow for immediate reference. Bhumanna Ramalu Mudiraj ----------------------------------------------------------------------- | | Ramalu Bhumanna Mudiraj Balram Bhumanna Mudiraj | | Sayalu Bhumanna Mudiraj Reshmaji Gaddamwad | (Name after marriage) | | Balram Manoj Mahesh Laxman Dashrath Kanupatra | (Umedwar i.e. candidate) | | | | Holder of validity certificate Petitioner | | ---------------------------- Cousin-------------------------------- 18. The genealogy produced along with another affidavit of one Shri Karampalle Umakant Mohanrao produced on record reads as under : Genealogy ----------------------------------------------------------------------- | | Laxman Renewad – (Daughter) Naguji Gadamwad - (Son) | | Naginbai Mohan Kadampalle - (son) Reshmaji Gadamwad - (Son) (Real cousin sister and brother) | | | Umakant Mohan Kadampalle Dashrath Reshmaji Gadamwad | | -----------------------(Real cousin brothers)------------------- 19. Learned Counsel for the petitioner placed heavy reliance on the above genealogy to contend that Mr.Manoj Sayalu Mudiraj whose tribe claim has been validated, is his cousin by blood relation and that Mr.Karampalle Umakant Mohanrao, 11 holder of the validity certificate is his real cousin by blood relation. 20. This Court has given anxious consideration to the contentions raised by the petitioner in this behalf and tried to trace the relationship of the petitioner with the aforesaid two persons whose tribe claims have already been validated by the Scrutiny Committee. 21. On scrutiny of the genealogy produced with the affidavit of Manoj Sayalu Mudiraj, it appears that Bhumanna Ramlu Mudiraj had a son Balram Bhumanna Mudiraj and his son is shown as Reshmaji surname appears to be “Mudiraj”. The genealogy produced by the petitioner himself during the home enquiry, Laxman and Dashrath are shown as a sons of Reshmaji and surname is shown as “Gaddamwad”. This Court fails to understand that how the surname got changed from “Mudiraj” to “Gaddamwad”. In the genealogy below the name of Reshmaji, it is mentioned “after the marriage”. It means surname got changed after marriage. If, Reshmaji was a male member, one does not know how his surname got changed after marriage. On being asked, learned Counsel appearing for the petitioner could not give any satisfactory explanation. Under these circumstances, the affidavit of Manoj sought to be relied upon to establish relationship with the petitioner has got to be rejected. 22. If one turns to second affidavit of one Mr.Karampalle Umakant Mohanrao, he has given altogether different genealogy, wherein, the Nagoji is shown to be a brother of Laxman, whereas in the earlier genealogy given by Manoj, none of these relatives are to be found. The name of Nagoji’s father is not to be found in the genealogy. If one genealogy is superimposed on another, we get altogether different picture. We do not get any clear picture of the family tree. Not a single link can be said to have been established. Number of doubts lurking in the mind of this Court about family composition could not be cleared by the petitioner. In the circumstances, the genealogies sought to be produced and relied upon cannot be accepted. 23. In the above backdrop, we have no hesitation to hold that the genealogy 12 produced is false and fabricated and the same has not been proved by the petitioner in accordance with law. 24. The petitioner has filed affidavits before Scrutiny Committee, copies of which are produced along with petition. None of the affidavits were verified. As a matter of fact, the affidavit is to be modelled on