Bombay High Court
Sou. Priya vs Scheduled Tribes Caste ... on 4 October, 2012
Bench: S.A. Bobde, B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION Nos. 2571/2001, 2260/2007 & 4225/2001.
......
WRIT PETITION No. 2571 OF 2001.
Sou. Priya w/o Pravin Parate,
aged about 28 years, resident of
Shegaon-Naka Road, Amravati,
Tq. and District Amravati. ...PETITIONER.
VERSUS
1. Scheduled Tribes Caste Certificates Scrutiny
Committee, "Adivasi Vikas Bhavan"
Giripeth, Amravati Road, Nagpur.
2. The Principal, Shri Sant Gajanan
Maharaj College of Engineering,
Shegaon, District Buldhana.
3. State of Maharashtra,
through Secretary, Social Welfare
Department, Mantralaya, Mumbai - 32. .. RESPONDENTS
.
WITH
WRIT PETITION No. 2260 OF 2007.
Anup Sureshrao Bende,
aged about 19 years, 2nd M.B.B.S.
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Student, Lokmanya Medical College,
Sion, Bombay. ...PETITIONER.
VERSUS
1. Committee for Scrutiny and Verification
of Tribe Claims, Amravati.
2. Principal, Lokmanya Tilak Medical
College, Sion, Bombay.
3. State of Maharashtra,
through Secretary, Social Welfare
Department, Mantralaya, Mumbai - 32
4. Vice Chancellor, Maharashtra University
of Health Sciences, Nashik. .. RESPONDENTS
.
WITH
WRIT PETITION No. 4225 OF 2001.
Pawan Sureshrao Bende,
aged about 19 years, resident of
Nandura District Buldhana, Occ -
3rd Year Student of Sant Gajanan
Maharaj Engineering College,
Shegoan. ...PETITIONER.
VERSUS
1. Scheduled Tribes Caste Certificates
Scrutiny Committee, "Adivasi Vikas Bhavan"
Giripeth, Amravati Road, Nagpur.
2. The Principal, Shri Sant Gajanan
Maharaj College of Engineering,
Shegaon, District Buldhana.
3. State of Maharashtra,
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through Secretary, Social Welfare
Department, Mantralaya, Mumbai - 32.
4. The Registrar, Amraoti University,
Amraoti. .. RESPONDENTS
.
--------------------------
Mr. K.H. Deshpande, Senior Advocate with Shri A.M. Sudame,
Advocate for the Applicant/Petitioners.
Mr. N.W. Sambre, Advocate for Respondent No.1 in W.P.Nos.2571 &
4225 of 2001 & Mrs. S.W. Deshpande, Advocate for Respondent No.1 in
W.P.No. 2260/2001.
Mrs. Joshi, A.G.P. for Respondent - State.
Mr. A.L. Deshpande, Advocate for Respondent No.4
(W.P.No.2260/2001).
Mr. A.R. Patil, Advocate for Respondent No.2 (W.P.No. 2571/2001.)
-----------------------
CORAM : S.A. BOBDE AND
B.R. GAVAI, JJ.
DATED : OCTOBER 04, 2012.
ORAL JUDGMENT ( PER B.R.GAVAI, J)
Rule. Rule made returnable forthwith. By consent of the
parties the petitions are taken up for final disposal.
2. All the petitioners are real sister and brothers, who have
approached this Court being aggrieved by the decision rendered by the
respondent no.1 Committee for Scrutiny and Verification of Tribe
Claims, thereby rejecting the claim of the petitioners of belonging to
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Halba Scheduled Tribe.
3. We have heard the learned Counsel appearing on behalf of
the respective parties at length.
Shri K.H. Deshpande, learned Senior Counsel appearing on
behalf of the petitioners submits that the rejection of the claim of
petitioners of tribal status is, only on the ground that the petitioners
have failed to prove the affinity test. The learned Senior Counsel
submits that the Hon'ble Apex Court in judgment delivered in case of
Anand .vrs. Committee for Scrutiny and Verification of Tribe Claims and
others reported at 2011 (6) Mh.L.J. 919 has held that an affinity test
cannot be considered as a litmus test. He submits that it is further held
that if there are pre-Independence documents, the same are to be given
more probative value and the affinity test would only act as an
corroboration or otherwise to the documentary evidence. The learned
Senior Counsel submits that though the petitioners have produced
voluminous documents from their paternal side prior to 1950 showing
caste of their forefathers to be Halbi, erroneously by applying the
affinity test, the claim has been invalidated. The learned Senior
Counsel further submits that the finding that the profession of weaving
is Taboo in Halbi Tribe is also not correct. Learned Senior Counsel
relying upon paragraph no.231 of the Amravati District Gazette submits
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that even from the said paragraph it would reveal that the tribals
belonging to Halbi have taken up profession of weaving in Ellichpur
City, Anjangaon Surji in Daryapur Taluq. The learned Senior Counsel
therefore, submits that the impugned orders are not sustainable in law.
4. Mrs. S.W. Deshpande, learned Counsel appearing on behalf
of respondent no.1 Committee, on the contrary submits that the Fareira
Committee, which was appointed by the State Government during the
pendency of the case of Milind Katware, has given a specific finding that
the profession of weaving is Taboo, in so far as Halbi tribe is concerned.
The learned Counsel further submits that in the vigilance cell inquiry
conducted in case of one of the petitioner i.e., Priya, in some of the
documents, caste of forefathers of petitioner is written as 'Koshti'. The
learned Counsel submits that in view of a specific entry showing
petitioner's forefathers caste to be Koshti, the Committee had rightly
rejected the claim of the petitioners.
5. The Hon'ble Apex Court recently in case of Anand vrs.
Committee for Scrutiny (supra), had an occasion to consider the
importance of affinity test, while determining the claim of a person
belonging to Scheduled tribe. The Hon'ble Apex Court in paragraph
no.18 has observed thus -
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"18. It is manifest from the afore-extracted
paragraph that the genuineness of a caste claim has to
be considered not only on a thorough examination of
the documents submitted in support of the claim but
also on the affinity test, which would include the
anthropological and ethnological traits etc., of the
applicant. However, it is neither feasible nor desirable
to lay down an absolute rule, which could be applied
mechanically to examine a caste claim. Nevertheless,
we feel that the following broad parameters could be
kept in view while dealing with a caste claim.
(i) While dealing with documentary evidence,
greater reliance may be placed on pre-
Independence documents because they
furnish a higher degree of probative value to
the declaration of status of a caste, as
compared to post-Independence documents.
In case the applicant is the first generation
ever to attend school, the availability of any
documentary evidence becomes difficult, but,
that ipso facto does not call for the rejection
of his claim. In fact the mere fact that he is
the first generation ever to attend school,
some benefit of doubt in favour of the
applicant may be given. Needless to add
that in the event of a doubt on the credibility
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of a document, its veracity has to be tested
on the basis of oral evidence, for which an
opportunity has to be afforded to the
applicant.
(ii) While applying the affinity test, which
focuses on the ethnological connections with
the Scheduled tribe, a cautious approach has
to be adopted. A few decades ago, when the
tribes were somewhat immune to the
cultural development happening around
them, the affinity test could serve as a
determinative factor. However, with the
migrations, modernization and contact with
other communities, these communities tend
to develop and adopt new traits which may
not essentially match with the traditional
characteristics of the tribe. Hence, affinity
test may not be regarded as a litmus test for
establishing the link of the applicant with
the scheduled tribe. Nevertheless, the claim
by an applicant that he is a part of a
scheduled tribe and is entitled to the benefit
extended to that tribe, cannot per se be
disregarded on the ground that his present
traits do not match his tribes peculiar
anthropological and ethnological traits,
deity, rituals, customs, mode of marriage,
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death ceremonies, method of burial of dead
bodies, etc. Thus, the affinity test may be
used to corroborate the documentary
evidence and should not be the sole criteria
to reject the claim."
It can thus, clearly be seen from the aforesaid judgment that the
genuineness of the caste claim has to be considered not only on through
examination of the documents submitted in support of the claim, but
also on the basis of affinity test, which would include the
anthropological and ethnological traits etc. However, it has been held
that the said test cannot be applied mechanically. It has further been
held that the affinity test cannot be applied as a litmus test while
determining the claim of a candidate.
6. Perusal of the aforesaid judgment would clearly reveal that
while dealing with the documentary evidence, a greater reliance has to
be placed on pre-Independence documents, because they furnish higher
degree of probative value to the declaration of status of a tribe.
7. While considering the affinity test, it has been held by the
Hon'ble Apex Court that it has also to be considered that the present
traits of a claimant may not match his tribe, particularly
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anthropological and ethnological traits, deity, rituals, customs, mode of
marriage, death ceremonies, method of burial of dead bodies etc., on
account of migrations, modernization and contact with other
communities.
8. In the facts of the present case, it would reveal that the
petitioner in Writ Petition No. 2571/2001 has placed the following
documents which are prior to 1950 i.e. prior to coming into force of the
Constitution.
(1) Transfer certificate of Nandeo Nagoji (Paternal great-grand
father of the petitioner) issued by Achalpur Municipal
Council certifying that he was studying in the School from
05.03.1930 to 12.06.1934;
(2) A Certificate issued by the Achalpur Municipal Council
certifying that Shriram Nago (Brother of petitioners paternal
great-grand father), certifying that he was studying in the
School from 28.06.1934 to 30.04.1941 and that he belongs
to Halbi Tribe;
(3) A Certificate issued by the Achalpur Municipal Council
certifying that Tukaram Nago (Paternal great-grand father
of the petitioner) certifying that he was studying in the
Municipal School from August, 1931 to 25.04.1938 and
that he belongs to Halbi Tribe;
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(4) A Certificate issued by the Achalpur Municipal Council in
favour of Mahadeo Nagoji (Paternal great-grand father of
the petitioner) certifying that he was studying in the School
from 01.06.1926 to 01.03.1930 and that he belongs to Halbi
Tribe;
9. It can thus clearly be seen from the material placed on
record that there are at least 4 documents of pre-Constitutional era,
which clearly go to show that the petitioners great-grand father and his
brothers belong to Halbi Tribe.
10. In so far as the reliance on some of the entries pertaining to
petitioners relatives from paternal side showing caste to be 'Koshti' on
which Mrs. Deshpande, learned Counsel relies, are concerned, perusal
of the said document would reveal that though the caste of the said
person is written as Koshti, the profession is also shown as weaving. As
can be seen from the Gazetteer of Amravati District, that Halbi's in
erstwhile Ellichpur and Anjangaon Surji in Daryapur Taluq in Amravati
District were also engaged in the profession of weaving. It is common
knowledge that persons engaged in the profession of weaving were
called as "Koshti". A possibility cannot be ruled out that due to this,
said entries might have recorded. It is also relevant to refer to some
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portion from the authority of R.V. Russell on Tribes and Casts of the
Central Provinces of India, published in 1916, wherein while dealing
with the Halba Tribe, it has been stated that "Some of these soldiers may
have migrated west and taken service under the Gond Kings of Chanda,
and their descendants may now be represented by the Bhandara
Zamindars, who, however, if this theory be correct, have entirely forgotten
their origin. Others took up weaving and have become amalgamated with
the Koshti caste in Bhandara and Berar."
From the aforesaid authority, it would reveal that persons
belonging to Halba Tribe had migrated to west and taken service taken
service under the Gond Kings of Chanda. It can also be seen that some
of them had taken to weaving and had amalgamated with the Koshti
caste in Bhandara and Berar. Merely because some stray entries as
"Koshti" are recorded in respect of caste of some of the relative of
petitioners from their paternal side; the voluminous documentary
evidence of pre-Constitution era which clearly certify the petitioners
great-grand father and his brothers to be Halbi, could not have been
lightly brushed aside by the Scrutiny Committee. As discussed herein
above, the Hon'ble Apex Court in case of Anand (supra), found that the
pre-Independence documents have a greater probative value and they
should be given due consideration while considering the claim of a
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tribal.
11. As already discussed herein above, merely because it was
found that the petitioners forefathers were involved in the profession of
weaving, could not have been a ground to reject their tribal claim,
particularly in view of the observations contained in the Amravati
District Gazetteer, so also in the authority of R.V. Russell, cited above.
12. In that view of the matter, we find that the Committee has
grossly erred in rejecting the caste claim of the petitioners. In view of
the voluminous documentary evidence of pre-Constitution era, not only
in case of one grand father of petitioner, but also three of his siblings,
which consistently go to show that in the school record maintained by
the Achalpur Municipal Council, wherein the caste is recorded as Halbi,
we find that the impugned orders are unsustainable.
13. It is nobody's case that the aforesaid documents are either
fraudulent or fabricated one. In the report of the vigilance cell
committee, veracity and genuineness of these documents have not been
doubted. In that view of the matter, in view of the documents of pre-
Constitution era, which according to the judgment of the Hon'ble Apex
Court have a greater probative value, the claim of petitioners could not
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have been rejected.
14. In that view of the matter, we find that the petitions deserve
to be allowed. The impugned orders passed by the respondent no.1
Committee for Scrutiny of Tribe Claims, are quashed and set aside. The
respondent Scrutiny Committee is directed to forthwith issue a
certificate of validity in favour of the petitioners certifying them to be
belonging to Halbi Scheduled tribe.
15. The learned Senior Counsel at this stage states that since one
of the petitioner is desirous of prosecuting further studies on the basis
of the claim as belonging to Scheduled tribe. The concerned Authority
would act on the authenticated copy of this order while considering the
candidature of the said petitioner.
16. Writ Petitions are accordingly allowed. Rule is made
absolute in all the petitions in the aforesaid terms, with no order as to
costs.
JUDGE JUDGE
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Rgd
