Bombay High Court
Vishnudas S/O Jetram Mehalde vs The Scheduled Tribes Caste ... on 17 November, 2016
Bench: B.R. Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.5668/2005
Vishnudas s/o Jetram Mehalde,
aged 47 Yrs., Occu. Service,
R/o Marolgaon, Post Waraf,
Tq. Kalyan, Distt. Thane. ..Petitioner.
..Vs..
1. The Scheduled Tribes Caste Certificate
Scrutiny Committee, through its Member
Secretary, Near Irwin Square, Amravati.
2. The State of Maharashtra,
through Secretary, Tribal Development
Department, Mantralaya, Mumbai - 32.
3. The Project Officer, ITDP,
Pandharkawda, Distt. Yavatmal.
4. The Divisional Controller,
Maharashtra State Road Transport Corporation,
Thane. ..Respondents.
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Mr. J.B. Kasat, counsel for the petitioner.
Mr. N.S. Rao, A.G.P. for respondent Nos.1 to 3.
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CORAM : B.R. GAVAI AND V.M. DESHPANDE, JJ.
DATED : 17.11.2016.
ORAL JUDGMENT ( Per V.M. Deshpande, J.)
1. By the present petition the petitioner is challenging the order passed
by the respondent No.1 - The Scheduled Tribes Caste Certificate Scrutiny
Committee, Amravati (hereinafter referred to as "Committee" for the sake of
brevity) dated 4th July, 2005 by which the Committee rejected the claim of the
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petitioner that he belongs to caste Naikda which is a Scheduled Tribe.
2. Heard Mr. J.B. Kasat, learned counsel for the petitioner and Mr. N.S.
Rao, A.G.P. for respondent Nos.1 to 3. The counsel for the respondent No.4
chose to remain absent at the time when the matter was called for final
hearing.
3. The submission of learned counsel for the petitioner is that the claim
of petitioner is negatived by the Committee only on the basis of vigilance cell
report and the affinity test. He submitted that the pre-constitutional
documents in respect of his two real uncle which pertain to the year of 1915
are not at all considered by the Committee. He, therefore, submitted that the
caste claim of the petitioner is not correctly decided by the Committee.
4. Per contra, learned A.G.P. has submitted that the Committee while
deciding the claim of the petitioner has considered one entry in a kotwal book
dated 22nd January, 1963 which shows the name of Jetram Pachu which
according to the learned A.G.P. pertains to the name of father of petitioner and
against that caste is shown Mathure Banjari and, therefore, the order need not
be interfered with.
5. The learned A.G.P. fairly conceded to the fact that the Committee
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has not considered the documents which are pre-independence and
pre-constitutional in respect of Ganya and Prasha who are the real uncle of the
petitioner and in the kotwal book entry in respect of these two persons shows
that the caste is Naikda.
6. Here it would be useful to reproduce paragraph No.22 of judgment
of Hon'ble Apex Court in the case of Anand V/s. Committee for Scrutiny and
Verification of Tribe Clams and others reported in (2012) 1 SCC 113.
22. It is manifest from the aforeextracted 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 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
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around them, the affinity test could serve as a determinative factor.
However, with the migrations, modernisation 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 a
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 tribe's peculiar anthropological and
ethnological traits, deity, rituals, customs, mode of marriage, 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 a claim.
7. Admittedly, in this case, the aforesaid two documents in respect of
real uncle of the petitioner are not at all considered by the Committee and has
decided the claim of the petitioner only on the basis of the affinity test.
8. Therefore, In view of law laid down by Hon'ble Apex Court in
Anand V/s. Committee for Scrutiny and Verification of Tribe Clams and others
(cited supra) this matter needs to be remanded back to respondent No.1
Committee to decide the claim of the petitioner afresh more particularly in
respect of the documents pertaining to the real uncle of the petitioner as
mentioned in the preceding paragraphs of the judgment.
(i) In the result, the petition is allowed.
(ii) The order passed by the Caste Scrutiny Committee dated 4 th July,
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2005 is hereby quashed and set aside.
(iii) The matter is remanded to respondent No.1 Committee for taking
the decision afresh in accordance with law.
(iv) The petitioner shall appear before the Committee on 20 th December,
2016 and shall abide by the further directions to him by respondent No.1
Committee.
(v) The respondent No.1 Committee is further directed to decide the
claim of the petitioner within a period of one year from the date of appearance
of the petitioner before it.
(vi) Needless to mention that the interim order dated 27 th October,
2005 shall remain in operation during the pendency of the caste claim of the
petitioner before respondent No.1 Committee and in case the fresh decision of
the Committee goes against the petitioner, such decision shall not be given
effect for a period of three weeks from the date receipt of such communication
by the petitioner.
With these observations rule is made absolute, however, there shall be no
orders as to costs.
JUDGE JUDGE
Tambaskar.
