Padmakar Babasaheb Vishve vs The State Of Mah And Ors
2017 Latest Caselaw 779 Bom

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                          WRIT PETITION NO. 15 OF 2009

Shri Padmakar s/o Babasaheb Vishve,
Age : 30 years, Occu.: Service as 
Assistant Inspector of Motor Vehicle at 
Regional Transport Office,
Nanded, R/o Padhegaon, Tq. Shrirampur,
District Ahmednagar                      .. PETITIONER 


       VERSUS


1.     The State of Maharashtra,
       Department of Tribal Development,
       Mantralaya, Mumbai-32
       Through its Secretary

2.     The Scheduled Tribe Certificate Scrutiny
       Committee, Nashik Division, 
       Nashik

3.     The Commissioner of Transport,
       State Transport Department,
       Maharashtra State, 
       Administrative Building, 
       4th Floor, Bandra (East),
       MUMBAI - 400051

4.     The Regional Transport Officer,
       Nanded                                                  .. RESPONDENTS

                          ----
Mr. A.S. Golegaonkar, Advocate for the Petitioner
Mr. M.B. Bharaswadkar, A.G.P. for the respondent/State 
Mr. M.S. Deshmukh, Advocate for respondent No.2 
                          ----

                                        CORAM :   S.V. GANGAPURWALA AND
                                                  SANGITRAO S. PATIL, JJ.

DATE : 16th MARCH, 2017

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ORAL JUDGMENT : (PER : S.V.GANGAPURWAL, J):

Rule. Rule made returnable forthwith. With the

consent of the learned counsel for the parties, heard

finally.

2. The tribe claim of the petitioner as belonging

to "Thakur Scheduled Tribe" has been invalidated by the

impugned order dated 21st November, 2008, passed by the

respondent No.2-Committee. Aggrieved by the same, the

present petition.

3. Mr.Golegaonkar, learned Counsel for the

petitioner submits that various documents are filed on

record to establish the claim of the petitioner as

belonging to Thakur Scheduled Tribe. No contra evidence

is on the record. All the documents establish the case

of the petitioner as that of Thakur Scheduled Tribe. The

learned counsel submits that real brother of the

petitioner has been issued with the tribe certificate of

Thakur Scheduled Tribe and his claim is validated on 31 st

May, 2004 by the Committee. Based on the validity of

tribe claim of the petitioner's real brother, first

paternal cousin of the petitioner has also been issued

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tribe validity certificate by the Committee. In the case

of the first paternal cousin of the petitioner's namely

Pravin Ganpat Vishve, the matter had gone to the Hon'ble

the Apex Court. The Hon'ble the Apex Court, it appears

remanded the matter to this Court. This Court considered

the validity granted to the real brother of the

petitioner and directed the Committee for deciding the

same favourably. Thereafter, said Pravin Ganpat Vishve

has also been issued the validity certificate by the

Committee. The learned Counsel submits that the aspect

of area restriction does not now survive. The petitioner

has also proved the affinity test.

4. The learned A.G.P. submits that 'Thakur' is

recognised in upper caste and in tribes also. The

petitioner could not succeed in the affinity test. Only

because the entry 'Thakur' is recorded as caste of the

petitioner, that does not necessarily mean that the

petitioner belongs to Scheduled Tribe.

5. We have considered the submissions canvassed by

the learned counsel for the respective parties. It

appears from the impugned judgment that the documents

relied upon by the petitioner consistently show that the

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caste of his family is recorded as 'Thakur'.

6. The real brother of the petitioner has been

issued with the validity certificate of Thakur Scheduled

Tribe on 31st May, 2004. Based on the said validity

certificate, the first paternal cousin of the petitioner

namely Pravin Ganpat Vishwe has also been issued

validity certificate on 30th March, 2015. So also another

paternal cousin of the petitioner namely Nilesh Ganpat

Vishwe has also been issued with validity certificate on

6th April, 2015. The case of Pravin Ganpat Vishwe and

Nilesh Ganpat Vishwe went upto the Hon'ble the Apex

Court. The Apex Court had remanded the matter to the

High Court. The High Court, on 11th December, 2014,

allowed the said writ petition partly and made following

observations:

"8. After having carefully perused the impugned order, we find that in the genealogy submitted by the Petitioners before the Vigilance Cell, it is set out that said Shri Ranjak Babasaheb Vishve is their first cousin. But, there is no finding recorded by the Caste Scrutiny Committee about the genuineness of the genealogy relied upon by the Petitioners. There is no finding recorded

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by the Caste Scrutiny Committee on relationship between the Petitioners and said Shri Ranjak Babasaheb Vishve. If the Petitioners establish their relationship with the said Ranjak by satisfying the Caste Scrutiny Committee that said Shri Ranjak Babasaheb Vishve is their first cousin as alleged, the Caste Scrutiny Committee will have to favourably consider the case of the Petitioners for the grant of caste validity certificate on the basis caste validity certificate granted to said Shri Ranjak Babasaheb Vishve. Only for that limited purpose, we propose to send back the matter to the Caste Scrutiny Committee. It will be open for the Petitioners to adduce evidence before the Caste Scrutiny Committee for establishing their relationship with said Shri Ranjak Babasaheb Vishve, if necessary by examining witnesses."

7. Considering the said observations of the High

Court in the Writ Petition filed by the first paternal

cousin of the petitioner i.e. Writ Petition No.6397 of

2007, the validity certificate is issued to Pravin

Ganpat Vishwe and Nilesh Ganpat Vishwe. The basis for

issuance of validity certificates to them, is the

validity granted to the real brother of the petitioner.

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8. Considering the said conspectus of the matter,

there are no grounds to take a different view than what

was already accepted by this Court in its decision

rendered on 11th December, 2014 in Writ Petition No. 6397

of 2007, pursuant to which the validity is issued to the

petitioners therein who are first paternal cousins of

the petitioner.

9. In the light of the above, the impugned

judgment and order dated 3rd October, 2008 passed by

respondent No.2 - Committee is quashed and set aside.

Respondent No.2 - Committee shall issue the validity

certificate to the petitioner as belonging to "Thakur

Scheduled Tribe" expeditiously and preferably within two

months from today. The Rule is made absolute in the

above terms. No costs.

                 Sd/-                                   Sd/-
       [SANGITRAO S. PATIL]                   [S.V. GANGAPURWALA]
              JUDGE                                   JUDGE


npj/wp15-2009