Ku.Shweta D/O Sunil Kusare vs The Schedule Tribe Certificate ...
2017 Latest Caselaw 7502 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                       WRIT PETITION NO.10425 OF 2017

Shweta Sunil Kusare                                                ...Petitioner
          vs.
The Schedule Tribe Caste Certificate
Scrutiny Committee, Amravati                                       ...Respondent

Mr. Ashwin Deshpande a/w. Mr. Piyush Pande, for the Petitioner.
Mr. A.A. Kumbhakoni, Advocate General a/w. Mr. Shardul Singh, 
Special Counsel, for the Respondent.

                         CORAM :  SHANTANU KEMKAR &
                                  G. S. KULKARNI, JJ.

DATE : SEPTEMBER 25, 2017

ORAL JUDGMENT: (Per G.S. Kulkarni, J.)

1. Rule returnable forthwith. Heard finally by consent of

the learned Counsel for the parties.

2. This Petition under Article 226 of the Constitution of

India challenges the order dated 2 nd September, 2017 passed by the

Schedule Tribe Caste Scrutiny Committee, Amravati (for short the

"Scrutiny Committee"). By the impugned order the Scrutiny

Committee has rejected the claim of the Petitioner for validity of the

caste certificate belonging to the "Halbi", Scheduled Tribe.

3. The petitioner in supporting the claim for grant of a

validity to the caste certificate of the Petitioner supported his

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application with about 33 documents which are listed in para 2 of

the impugned order. The documents at Item Nos. 20 to 23 are the

birth extract and death extract of the great great grandfather and

sister of the great grandfather of the Petitioner. These documents

are dated 18th June, 1912, 14th February, 1914, 21st November, 1919

and 4th November, 1918 respectively.

4. It is not in dispute that the Scrutiny Committee thought

it appropriate to initiate a Vigilance Inquiry. The Report of the

Vigilance Inquiry was placed on record of the Scrutiny Committee.

A perusal of the report of the Vigilance Inquiry indicates that the

Vigilance Officer considered seven pre-constitution documents as

relied upon by the petitioner as under:

 Sr.       Nature of           Name           Caste       Date of          Relation        Remarks
 No.      Documents                          Recorded   Admission/         with the
                                                as      birth/death        applicant
 11    Birth extract     A female child is   Halbi      02.12.1937       Great
                         shown to have                                   grandfather
                         born to Sonba
                         Nagoba Halbi
 12    Birth extract     Sonaba Nagoba       Halbi      02.12.1937       Great
                                                                         grandfather
 20    Birth extract     A female child is   Halbi      18.6.1912        Great great
                         shown to have                                   grandfather
                         born to Nago
                         Halbi
 21    Birth extract     A female child is   Halbi      14.2.1914        Great great
                         shown to have                                   grandfather
                         born to Nago
                         Halbi
 22    Birth extract     A male child is     Halbi      21.11.1919       Great great
                         shown to have                                   grandfather
                         born to Nago
                         Halbi

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 23    Death extract     Kondi Nago   Halbi     4.11.1918        Great
                         Halbi                                   grandfather's
                                                                 sister

The report states that on verification it is noticed that Nagoji is the

father of Anusaya (grandfather's sister). Her name was recorded in

the School register on 24th July, 1934 showing the caste as

"Koshti". It further records that when the inspection was taken in

the Tahasildar office, Mahagaon from the record pertaining to

village Dhanoda, it was revealed that between the period 17

October 1935 to 17 October 1940 there are entries showing that

children were born to the petitioner's great grandfather Sonba

Nagoji and the entry against this birth extract shows the caste as

"Koshti". It further records that children were born to the

petitioner's great-great grandfather- Nago and to that effect birth

extract dated 18 June 1912, 14 February 1914 and 21 November

1915 were available showing the caste as "Halbi". It is however

recorded that in the genealogy as presented by the petitioner, it is

indicated that Nago had one son Sonaba. However, the record

indicates that Nago had four to five children and therefore, the

person Nago as referred by the petitioner may not be from the very

petitioner's family.

5. In rejecting the claim of the Petitioner though the

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Scrutiny Committee has taken into consideration different

documents, however, the Scrutiny Committee accepting the

observation in the Vigilance report has recorded that as there are

inconsistencies in the documents and more particularly the

reference to caste "Koshti" in the 1934 to 1940 documents of

Anusaya and Nagoji, would dis-entitle the Petitioner of a validity to

the caste certificate.

6. We have heard learned counsel for the parties. With

their assistance, we have perused the impugned order as also

various documents placed on record on behalf of the Respondent.

7. The grievance of the Petitioner is that the pre

constitution documents which would have a probative value as

referred and appearing at Serial Nos. 20 to 23 in para 2 of the

impugned order, are totally discarded by the Scrutiny Committee.

From a perusal of the impguned order, it may be observed that

there is much substance in the contention as urged on behalf of

the petitioner as the impugned order is silent about these

documents. There is no discussion as to how these documents

could be discarded or would loose their relevancy, even if the

documents of the year 1934 and 1940 indicating that two issues

are born to Sonba Nagoji and the caste of these two issues is

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referred as "Koshti" in the record of the Tahsildar. It is not in

dispute that the documents which are the birth and death extracts

of the great-great grandfather of the petitioner of the year 1914 and

1919 respectively, which refer the caste of the great-great

grandfather as "Halbi", being pre constitution documents would

have a high probative value. The Scrutiny Committee in para 1 of

its order has recorded that though these documents which are pre

constitution documents show the caste as "Halbi", yet as there

exits a caste of a similar nomenclature as "Halbi" and which is a

sub caste of "Koshti", and thus on the basis of these documents, it

cannot be said that the Petitioner belongs to the "Halbi" - Schedule

Tribe. This observation is made only on the ground that the said

1934 to 1940 documents as noted above indicate the caste as

"Koshti" of the two issues born to Sonba.

8. In our opinion these reasons which are accorded in

para 2 of the impugned order are insufficient to dis-entitle the

Petitioner to reject the caste validity claim as made by the

Petitioner. The Scrutiny Committee ought to have given

appropriate reasons to discard these documents. Merely, because

1934 to 1940 documents reflect a different caste, this by itself

would not mean that the Committee would disbelieve the said

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documents of the year 1912, 1914 and 1919 at Sr. Nos. 20 to 23 as

referred above, more particularly when there is no material to

disbelieve these documents. We therefore find much substance in

the contention as urged on behalf of the Petitioner that the

impugned order which does not take into consideration the pre

constitution documents, would vitiate the impugned order.

9. It is significant that on behalf of the Respondent, it is

not disputed that apart from the fact that the impugned order

records no finding in regard to the documents of the year 1914,

1918 and the 1919, as referred and relied by the petitioner, even

the Vigilance inquiry does not disbelieve these documents.

10. In the circumstances, it would be in the interest of

justice that the impugned order dated 2nd September, 2017 is

quashed and set aside and the matter is remanded back to the

Caste Scrutiny Committee to decide the validity claim of the

Petitioner afresh by taking into consideration all the necessary

documents after undertaking an appropriate inquiry as per law.

Ordered accordingly.

11. The Petitioner shall appear before the Caste Scrutiny

Committee along with a copy of this order initially on 29 th

September, 2017 at 11.00 am and thereafter the Caste Scrutiny

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Committee shall endeavor to denovo consider the matter and

decide the tribe claim of the petitioner in accordance with law,

within a period of two weeks from the first hearing to be held on

29th September,2017.

12. The learned counsel for the Petitioner submits that as

the Petitioner would approach the Committee for a de novo exercise

to be undertaken, the Petitioner would not insist for a fresh show

cause notice and or the compliance or any other requirement under

Rule 12 (8) of the Maharashtra Scheduled Tribes (Regulation of

Issuance and verification of) Certificate Rules, 2003.

13. All contentions of the parties on the merits of the

matter are expressly kept open.

14. The Petition stands disposed of in the above terms.

                     



           (G.S.Kulkarni, J.)                      (Shantanu Kemkar, J.)




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