Sandhya D/O Gulabrao Sonkusare vs State Of Mah., Through Its ...
2017 Latest Caselaw 8719 Bom

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   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             NAGPUR BENCH, NAGPUR

                  Writ Petition No.720 of 2015
                               And
                  Writ Petition No.1338 of 2015

                   Writ Petition No.720 of 2015

  Sandhya d/o Gulabrao Sonkusare,
  Aged 34 years,
  Occupation - Service,
  Residing at C/o Gulabrao Govindrao
  Sonkusare, Vishwanath Penting Galli,
  Near Shri Eknathrao Bhivapure 
  House, Gadnegar, Amravati,
  Dist. Amravati.                                 ... Petitioner


       Versus


  1. State of Maharashtra,
     through its Secretary,
     Tribal Development Department,
     Mantralaya, Mumbai - 400 032.

  2. Scheduled Tribe Certificate
     Scrutiny Committee,
     Amravati Division, Amravati,
     through its Member Secretary,
     having its Office at Irwin Chowk,
     Amravati, Dist. Amravati.

  2. Zilla Parishad, Amravati,
     through its Chief Executive
     Officer, Amravati,
     Dist. Amravati.




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  4. Education Officer (Primary),
     Zilla Parishad, Amravati.                     ... Respondents


  Shri G.G. Mishra, Advocate for Petitioner.
  Ms   M.H.   Deshmukh,   Assistant   Government   Pleader   for 
  Respondent Nos.1 and 2.



                          Writ Petition No.1338 of 2015


  Sunil Gulabrao Sonkusare,
  Aged about 42 years,
  Occupation - Service as
  District Seed Certification Officer,
  Akola,
  Resident of Watika No.4,
  Malkapur Road, Akola,
  Dist. Akola.                                     ... Petitioner

       Versus

  1. State of Maharashtra,
     through its Secretary,
     Ministry of Agriculture Department,
     Mantralaya,
     Mumbai - 400 032.

  2. Scheduled Tribe Caste Certificate
     Scrutiny Committee, Amravati Division,
     through its Chairman, Tiwsa Gin
     Compound, Morshi Road, 
     Amravati.




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  3. Commissionerate of Agriculture,
     Pune.


  4. Joint Director of Agriculture,
     Amravati Division, Amravati.                   ... Respondents


  Shri N.C. Phadnis, Advocate for Petitioner.
  Ms   M.H.   Deshmukh,   Assistant   Government   Pleader   for 
  Respondents.


               Coram : R.K. Deshpande & M.G. Giratkar, JJ.

Date : 15th November, 2017

Oral Judgment (Per R.K. Deshpande, J.) :

1. The challenge in both these petitions is to the orders of

invalidation of the caste claim of the petitioners, who are the real

brother and sister, for 'Halba'/'Halbi', Scheduled Tribe Category,

which is an entry at Serial No.19 in the Constitution (Scheduled

Tribes) Order, 1950.

2. Before the Committee, total 21 documents were

produced on record, which included two conditional validity

certificates issued in the name of Pradip Gulabrao Sonkusare and

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Sunil Gulabrao Sonkusare, and one order cancelling the

conditional certificate issued to Sunil Gulabrao Sonkusare. All

these three documents were issued pending the decision of the

Apex Court in the case of State of Maharashtra v. Milind and

others, reported in 2001(1) Mh.L.J. 1, showing that the claim of

these persons for 'Halba-Koshti' is held to be valid subject to the

decision of the Apex Court.

3. The other eighteen documents produced on record

consistently show the caste of the petitioners or their blood

relatives as well as maternal relatives as 'Halbi'. The oldest

document is in the name of one Gulabrao Govindrao Sonkusare,

the father of the petitioners, in which the entry 'Halbi' is

recorded in the caste column on 10-4-1943. The another

document is of 20-9-1944, which is the registered

purchase-deed in the name of Gulab Govinda.

4. The Committee has taken into consideration the extract

of birth register in the name of one Govinda Sawaipura, in which

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the caste is recorded as 'Koshti' on 19/23-3-1920. The another

document is in the name of one Madhukar Govinda, the uncle of

the petitioners, and it is the extract of school admission register,

in which the caste is recorded as 'Koshti' on 13-4-1955. The

third document is in the name of Bapurao Govind, said to be the

uncle of the petitioners, and it is the extract of school admission

register, in which the entry 'Koshti' is recorded on 8-4-1942. The

Committee has applied the affinity test and the finding is

recorded that the petitioners have failed to establish the affinity

test. Hence, the orders impugned are passed rejecting the claim

of the petitioners for 'Halba'/'Halbi', Scheduled Tribe Category.

5. We have gone through the orders passed by the

Committee and also the documents placed on record. We have

also noted that after the third remand by this Court, the

Committee has passed the orders, which are the subject-matter

of challenge in these petitioners. The important finding to be

considered by this Court is in respect of the extract of birth

register in the name of one Govinda Sawaipura, in which the

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caste is recorded as 'Koshti' on 19/23-6-1920. The petitioner in

Writ Petition No.1338 of 2015 was not supplied with the copy of

the said extract along with the police vigilance cell report and

there is no reference to it. The petitioner in Writ Petition No.720

of 2015 was served with the copy of the said extract, which we

found to be totally ineligible. The petitioners have denied that

they are in any manner related to Govind, whose full name is not

shown. Hence, the said entry cannot be relied upon for two

reasons - (a) that the copy of entry was not served upon the

petitioners and no explanation was called from them, and

(b) that there is nothing to show that the petitioners are in any

way in blood relation with 'Govind Koshti, Sawaipura'.

6. We, therefore, passed an order on 8-11-2017 directing

the Committee to produce the original record, more particularly

this extract in the name of Govinda Sawaipura. We find the

name of 'Govind Koshti Sawaipura' handwritten in the said

document along with the date '19/23-6-1920'. The entry in the

original record produced before us is certified to be a true copy

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by the Deputy Registrar, Birth and Death, Municipal Council,

Achalpur, and the name 'Govinda Koshti, Sawaipura' is not found

in it.

7. In the remaining documents, the oldest document is of

10-4-1943, which is the school leaving certificate and the extract

of the school admission register in the name of Gulabrao. The

another document is the purchase-deed dated 20-9-1944 in the

name of the father of the petitioners. In respect of the entry

'Koshti' dated 13-4-1945 in the name of Madhukar Govinda in

the extract of the school admission register, the explanation of

the petitioners was that the oldest entry of 10-4-1943 shows the

caste 'Halbi' and in the light of that, the caste of Madhukar

Govinda could not have been registered as 'Koshti' and the

document being in subsequent in point of time, will have to be

ignored. Though the orders refer to the entry 'Koshti' made in

the name of Bapurao Govind on 8-4-1942, neither the police

vigilance cell report makes any reference to that entry, nor the

petitioners were called upon to furnish an explanation in respect

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of it.

8. In view of the fact that the oldest valid document in the

name of the father of the petitioners being of 10-4-1943 showing

the caste as 'Halbi', the Committee could not have rejected it by

applying the affinity test. In view of the decision of the Apex

Court in the case of Anand v. Committee for Scrutiny and

Verification of Tribe Claims and others, reported in

(2012) 1 SCC 113, the primacy is required to be given to the

documents of pre-Independence period and the affinity test has

to be used merely as a corroborative evidence. We, therefore,

find that the Committee could not have rejected the claim of the

petitioner as 'Halbi', Scheduled Tribe Category.

9. In view of above, we allow both these petitions and

quash and set aside the orders dated 9-1-2015 passed by the

Scheduled Tribe Certificate Scrutiny Committee, Amravati

Division, Amravati, and hold that the petitioners have

established their claim for 'Halbi'/'Halbi', Scheduled Tribe

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Category, which is Entry No.19 in the Constitution (Scheduled

Tribes) Order, 1950. The Committee is directed to issue a caste

validity certificate in the name of the petitioners within a period

of one month from the date of producing the copy of this

judgment by the petitioners before it.

10. Rule is made absolute in above terms. No order as to

costs.

            (M.G. Giratkar, J.)                     (R.K. Deshpande, J.)


   Jalit, PA/Lanjewar, PS