Mrunalini Pradip Sonawane And ... vs The State Of Maharashtra And ...
2017 Latest Caselaw 8853 Bom

                                           1                       W.P.No.3140/16

                                        UNREPORTED

                      IN THE HIGH COURT OF JUDICATURE
                                  AT BOMBAY

                                   BENCH AT AURANGABAD.



                               WRIT PETITION NO.3140 OF 2016


          1. Ku.Mrunalini d/o Pradip
          Sonawane, Age 24 years,
          Occ.Student, R/o 144, Balaji
          Peth, Jalgaon,Dist.Jalgaon.

          2. Harshal S/o Pradip Sonawane,
          Age 23 years,Occ.Student,
          R/o 144, Balaji Peth,
          Jalgaon, District Jalgaon.

          3. Ku. Himani d/o Pradip
          Sonawane,
          Age 21 years, Occ.Student,
          R/o 144, Balaji Peth,
          Jalgaon,District Jalgaon.                   ... Petitioners.

                           Versus

          1. The State of Maharashtra,
          through its Secretary,
          Tribal Development Deptt.,
          Mantralaya, Mumbai-32.

          2. The Scheduled Tribe
          Certificate Scrutiny Committee,
          Nandurbar Region, Nandurbar.

          3. The North Maharashtra
          University, Jalgaon,
          through its Registrar.                      ... Respondents.


                                               ...

          Mr.S.R.Barlinge, advocate for the petitioners.
          Mr.S.W.Munde, A.G.P.for the State.




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                                                2                       W.P.No.3140/16

          Mr.A.B.Girase, advocate for Respondent No.3.
                              ...

                                     CORAM : S.V.GANGAPURWALA AND
                                             S.M.GAVHANE,JJ.

Date : 20.11.2017.

ORAL JUDGMENT (Per S.V.Gangapurwala,J.)

1. Rule. Rule returnable forthwith. With

the consent of the learned counsel for the

parties, the petition is taken up for final

hearing.

2. The tribe certificates of the

petitioners herein as Tokre-Koli Scheduled Tribe

were referred to the Committee. The Committee

invalidated the tribe certificates. Aggrieved

thereby, the present petition.

3. Mr.Barlinge, learned counsel for the

petitioners submits that the father of the

petitioner Pradip Sonwane, has been granted the

validity certificate of Tokre-Koli - Scheduled

Tribe on 3.10.2007. The learned counsel submits

that all the documents which are placed on record

in the present matter were before the Committee

which issued validity certificate in favour of

the father of the petitioner. The validity

certificate is issued to the father of the

petitioner by Scheduled Tribe Certificate

Scrutiny Committee, Nashik Division, whereas the

Committee for Scrutiny and Verification of Tribe

Claims, Nandurbar invalidated the tribe

certificates of the petitioner.

4. Learned counsel submits that majority

of the documents placed on record of the

petitioner and his father record the caste as

Tokre-Koli. Even the service book of the grand

father of the petitioner records the caste as

Tokre-Koli. According to the learned counsel,

only on the ground that in Namuna No.1 the caste

of the grand father of the petitioner Trimbak is

shown as Hindu Koli and that of his cousin grand

father as Hindu Koli, the Committee has given a

contrary finding to the one given by the

Committee at Nashik while validating the tribe

certificate of the father of the petitioner. In

some of the documents of the father the entry is

recorded as Hindu Magaslela. The same would not

be a contra entry. The area restriction is

removed. The same could not have been a ground

to invalidate the tribe claim.

5. Mr.Munde, learned A.G.P. strenuously

contends that the pre-independence record would

have more probative value. The namuna No.1 of

the year 1934 and 1929 records the caste as Hindu

Koli in respect of the grand father and cousin

grand father of the petitioner and the documents

of the father of the petitioner and the uncle of

the petitioner records caste as Hindu Magaslela

(backward). The same would be considered as a

contra evidence to the claim of petitioners of

belonging to Tokre-Koli - Scheduled Tribe. The

petitioners have also failed in the affinity

test. The said finding is recorded by the

Committee. Considering all these aspects of the

matter, the Committee has rightly invalidated the

tribe certificate of the petitioners though the

tribe claim of the father of the petitioners was

validated. The Committee at Nashik failed to

consider and give importance to pre-independence

documents.

6. With the assistance of the learned

counsel for the petitioners and the learned

A.G.P., we have gone through the judgment

delivered by the Committee and the record of the

petitioners' case. We had adjourned the matter

on many occasions at the request of the learned

A.G.P. for the record and proceedings of the

father of the petitioner but the same was not

received. We had asked for the said record only

to consider whether the documents which are

referred to in the judgment of the Committee,

Nandurbar while invalidating the tribe claim of

the petitioners were produced in the proceedings

before the Nashik Committee while validating the

tribe claim of the petitioners.

7. The impugned judgment records that the

Committee has gone through the record of the

validation proceedings of the tribe claim of the

petitioners' father. It would appear that as per

observations of the Committee in the impugned

judgment, these documents were subject matter of

the proceedings before the Committee, Nashik. In

the impugned judgment, it is observed that

inspite of the fact that there were entries of

Hindu Koli in the pre-independence documents,

still the validity was given to the father of the

petitioners on the basis of validity given to the

cousin grand father and cousin brother of the

petitioners' father.

8. Certainly, one Committee can not enter

into the rigmarole of finding fault of the other

Committee. Of-course if certain documents were

suppressed while getting the validity in case of

near relative, the said aspect would be

certainly considered by the Committee deciding

the validation proceedings. However, in the

present case, all these documents which are

relied in the validation proceedings of the

petitioners were subject matter of validation

proceedings of the father of the petitioners

also.

9. It would appear that the document Gao-

namuna No.1 of the grand father of the

petitioners records caste as Hindu Koli. At the

same time, the service book of the grand-father

of the petitioners record caste as Tokre-Koli.

School record of the father of the petitioners

records caste as Hindu Magaslela and Hindu

backward class, meaning thereby that be belongs

to a backward class. All the School record of

the petitioners record caste as Tokre-Koli.

Hindu Magaslela would only mean that he belongs

to backward class and no particular caste is

mentioned. All this record was considered while

granting validity in favour of the petitioners

father. The cousin grand father of the

petitioners'father is issued with the validity

certificate, so also the cousin brother of the

petitioners' father is issued with the validity

certificate of Tokre-Koli - Scheduled Tribe as is

observed in para 7 of the impugned judgment.

10. Even the service book of the real grand

father of the petitioners records caste as Tokre-

Koli. The same is also old document. The said

entry in the service book of Tokre-Koli -

Scheduled Tribe in case of grand father of the

petitioners is also an old entry. Isolated entry

as against the various entries of Tokre-Koli -

Scheduled Tribe may not be sufficient to

invalidate the tribe claim.

11. It has been held by the Apex Court in

the case of "Anand Vs. Committee for Scrutiny and

Verification of Tribe Claims and others" reported

in 2011 AIR SCW 6559, held that affinity test

may not be regarded as a litmus test for

establishing the link of the applicant with

Scheduled Tribe. It is observed by the Apex

Court that in 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.

12. In the present case the affinity test

is given by the father of the petitioners as

petitioners were minor and while validating the

tribe claim of the petitioners' father, the

affinity test was also given by the father of the

petitioners. The Committee at Nashik accepted

the affinity of the father, whereas in the

present case it rejected. The same affinity test

is considered in different manner by two

Committees.

13. Considering the overall documentary

evidence on record, so also considering the fact

that on the basis of same documents on record the

petitioners father has been issued the validity

certificate after undergoing vigilance and

affinity test, the present petitioners also

deserve to be granted the validity certificates

of Tokre-Koli - Scheduled Tribe.

14. In light of the above, the impugned

judgment is quashed and set aside. The

Respondent Committee shall issue validity

certificates to the petitioners of Tokre-Koli -

Scheduled Tribe, expeditiously, preferably within

one (1) month.

15. Rule accordingly made absolute in above

terms. No costs.

                           Sd/-                                      Sd/-

               (S.M.GAVHANE,J.)                          (S.V.GANGAPURWALA,J.)

          asp/office/wp3140.16