Purushottam S/O. Bhagwan Gaikwad vs Scheduled Tribes Certificate ...
2016 Latest Caselaw 66 Bom

     WP4645.15 (J).odt                              1

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                  
                                   NAGPUR BENCH : NAGPUR




                                                          
                              WRIT PETITION NO.4645 OF 2015

     Purushottam s/o Bhagwan Gaikwad,
     Aged about 32 years,




                                                         
     Occupation - Agriculturist,
     R/o. Palasgaon (Jat),  Tah. Shindewahi,
     District - Chandrapur.                                ..             Petitioner




                                                  
                                    .. Versus ..

     1]
                             
            Scheduled Tribes Certificate Scrutiny Committee,
            through its Member Secretary,
            Gadchiroli Division, Gadchiroli.
                            
     2]     Sub-Divisional Officer, Chimur,
            District - Chandrapur.

     3]     Ishwar s/o Zitu Randaye,
      

            Aged about Major,
            Occupation - Agriculturist,
   



            R/o. Palasgaon (Jat),
            Tahsil - Shindewahi,
            District - Chandrapur.

     4]     Gopichand s/o Zitu Randaye,





            Aged about Major,
            Occupation - Agriculturist,
            R/o. Palasgaon (Jat),
            Tahsil - Shindewahi,
            District - Chandrapur.                         ..             Respondents





                             ..........
     Shri S.B. Tiwari, counsel for the petitioner,
     Shri P.S. Tembhare, A.G.P. for the respondent nos.1 and 2,
     Shri S.M. Bahirwar, counsel for the respondent nos. 3 and 4.
                             ..........

                                    CORAM :  SMT. VASANTI  A. NAIK  AND
                                             A.S. CHANDURKAR, JJ.

DATED : FEBRUARY 25, 2016.

ORAL JUDGMENT : (Per : SMT. VASANTI A. NAIK, J.)

Rule. Rule made returnable forthwith. The petition is heard

finally with the consent of the learned counsel for the parties.

By this petition, the petitioner impugns the caste validity certificate

issued in favour of the respondent no.3 by the Scrutiny Committee on

28.12.2007, validating the claim of the respondent No.3 of belonging to 'Mana'

Scheduled Tribe.

Inter alia, the petitioner has challenged the order of the Scrutiny

Committee on the ground that the order is not a reasoned one and the same

has been passed by the Scrutiny Committee without conducting the vigilance

enquiry and the affinity test. It is stated that in similar set of facts, this Court

has allowed Writ Petition Nos.1435/2012, 242/2013 and 5260/2015 by the

judgment and orders dated 12-10-2012, 26-8-2013 and 23.2.2016

respectively. It is further stated that the Scrutiny Committee has illegally

granted a caste validity certificate in favour of the respondent No.2 by

referring to the decision of the Hon'ble Supreme Court in Civil Appeal

No.5270/2004, though the Hon'ble Supreme Court had not passed a blanket

order directing the Scrutiny Committee to grant validity certificates to the

persons belonging to 'Mana' Scheduled Tribe. It is stated that the Hon'ble

Supreme Court had decided C.A. No.5270/2004 on merits and had held that

'Mana' is not a special tribe of Gond, but it is a separate Scheduled Tribe. It is

stated that there is nothing in the judgment in C.A. No.5270/2004 that

warrants the issuance of the caste validity certificate in favour of the persons

claiming to belong to 'Mana' Scheduled Tribe without holding a vigilance

enquiry and affinity test and without properly verifying their claim.

Shri Tembhare, the learned Assistant Government Pleader

appearing on behalf of the Scrutiny Committee fairly states, by referring to the

submission made by the learned Government Pleader in the case of Sau. Gauri

w/o Ramesh Gedam .vs. Scheduled Tribe Certificate Scrutiny Committee,

Gadchiroli in Writ Petition No.5260/2015, that there is nothing in the

judgment of the Hon'ble Supreme Court in C.A. No.5270/2004 that directs the

Scrutiny Committee to grant validity certificates in favour of the persons

claiming to belong to 'Mana' Scheduled Tribe without conducting the vigilance

enquiry and the affinity test. It is admitted by the learned Assistant

Government Pleader, after reading the judgment in Writ Petition

No.5260/2015, that a statement was made by the learned Government Pleader

that a general order directing the Scrutiny Committee to grant validity

certificates to all the claimants who claim to belong to 'Mana' Scheduled Tribe

was not passed by the Hon'ble Supreme Court in C.A. No.5270/2004. It is

admitted that the vigilance enquiry and affinity test was not conducted in the

caste claim of the respondent no.3 and the validity certificate was issued in

favour of the respondent no.3 on the basis of some old documents and the

judgment of the Hon'ble Supreme Court, dated 8-3-2006 in C.A.

No.5270/2004.

Shri Bahirwar, the learned counsel for the respondent nos.3 and 4,

supported the order of the Scrutiny Committee. It is submitted that the caste

validity certificate was issued in favour of the respondent no.3 on the basis of

some old documents produced by the respondent no.3 before the Scrutiny

Committee. It is stated that since the Scrutiny Committee was satisfied with

the documents submitted by the respondent no.3, a vigilance enquiry was not

conducted in the matter of the caste claim of the respondent no.3. It is stated

that a vigilance enquiry may not be necessary while verifying the caste claim.

It is submitted that the Scrutiny Committee rightly relied on the judgment of

the Hon'ble Supreme Court in C. A. No.5270/2004 and the old documents to

grant a validity certificate in favour of the respondent no.3. It is stated that if

this court is inclined to remand the matter, the Scrutiny Committee may be

directed to decide the caste claim of the respondent no.3 within a time frame,

as the respondent no.3 is seeking the restoration of the land from the

petitioner in view of the provisions of the Maharashtra Land Revenue Code

relating to restoration of the lands to the tribals.

Admittedly, in the instant case, the caste validity certificate has

been issued in favour of the respondent No.3 on the basis of some old

documents and the judgment of the Hon'ble Supreme Court in C.A.

No.5270/2004. It was necessary for the Scrutiny Committee to have

conducted a vigilance enquiry in the caste claim of the respondent No.3,

specially when the respondent No.3 claimed to belong to 'Mana' Scheduled

Tribe. It would be necessary in the matter of verification of the caste claims of

the Scheduled Tribes to conduct a vigilance enquiry and affinity test. Specially

in the case of the Tribes, it would be necessary to conduct an affinity test for

considering whether the claimant has affinity towards the Tribe to which he or

she claims to belong. In the instant case, the Committee has relied only on the

documents produced by the respondent no.3 before the Committee. The

documents seem to be old and may have great probative value. However,

before considering whether the documents would help the case of the

respondent No.3 or not, it was necessary for the Scrutiny Committee to have

conducted a vigilance enquiry to ensure that the documents are genuine and

were not fabricated by the respondent No.3 to wrongfully claim the benefits

meant for the 'Mana' Scheduled Tribe. The Scrutiny Committee may not grant

a validity certificate solely by relying on the documents, on an assumption that

the documents are genuine and not fabricated. It would be necessary for the

Scrutiny Committee to conduct a vigilance enquiry so as to ensure that the

documents are genuine and are not manufactured by the claimant to falsely

prove his claim. In the instant case, without conducting the vigilance enquiry,

the Scrutiny Committee blindly relied on the documents produced by the

respondent No.3 before the Scrutiny Committee to grant a caste validity

certificate in his favour.

The Scrutiny Committee also erroneously relied on the judgment

of the Hon'ble Supreme Court in C.A. No.5270/2004 though the said judgment

was not helpful for granting a validity certificate in favour of the respondent

No.3. In C.A. No.5270/2004, the Hon'ble Supreme Court had only considered

whether 'Mana' community in the State of Maharashtra is a special tribe of

Gond and is a Scheduled Tribe or not. The Hon'ble Supreme Court held that

'Mana' is not a special tribe of Gond, but a separate Scheduled Tribe. In the

circumstances of the case, as they existed in the case before the Hon'ble

Supreme Court, the Supreme Court held that no interference was warranted in

the decision of the High Court. We do not find anything in the judgment of

the Hon'ble Supreme Court in C.A. No.5270/2004 that directs the Scrutiny

Committee to grant caste validity certificates in favour of the persons claiming

to belong to 'Mana' Scheduled Tribe without holding a vigilance enquiry

and/or the affinity test. We find that the Scrutiny Committee was not justified

in granting a caste validity certificate in favour of the respondent no.3 without

conducting a vigilance enquiry and affinity test.

Hence, for the reasons aforesaid, the writ petition is allowed. The

validity certificate issued in favour of the respondent No.3 on 28.12.2007 is

quashed and set aside. The matter is remanded to the Scrutiny Committee for

a denovo enquiry in the caste claim of the respondent No.3. We direct the

Scrutiny Committee to decide the caste claim of the respondent No.3 as early

as possible and positively within a period of one year from the date of the

appearance of the parties before the Scrutiny Committee. The parties

undertake to appear before the Scrutiny Committee on 7-3-2016.

Rule is made absolute in the aforesaid terms with no order as to

costs.

                              JUDGE                                          JUDGE





     Gulande