Jagadish Suresh Kedare vs The State Of Maharashtra And Ors
2021 Latest Caselaw 10418 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION

                           WRIT PETITION NO. 7406 OF 2017

Jagdish Suresh Kedare
(Age- 40 years, residing at 572-Sarpan
Galli, Ahmednagar, Dist. Ahmednagar.)         }     ...Petitioner

        Versus

1. State of Maharashtra, Through its     }
Secretary, Tribal Development Department }
Mantralaya, Mumbai & Ors.                }

2. Scheduled Tribe Certifcate Scrutiny         }
Committee, Nasik Division, Nasik.              }

3. Sub Divisional Ofcer, Nasik                 }
Sub Division, Nasik.                           }    ...Respondents

                                           ------

Mr. R. K. Mendadkar, for the Petitioner.
Mr. V. M. Mali, AGP for the State.


CORAM: SMT. SADHANA S. JADHAV AND SURENDRA P. TAVADE, JJ.
DATE ON WHICH JUDGMENT IS RESERVED: 12th JULY, 2021.
DATE ON WHICH JUDGMENT IS PRONOUNCED: 05 AUGUST, 2021.

JUDGMENT (PER SURENDRA P. TAVADE, J.) :

1. Rule taken up for hearing with consent of both the parties.

2. By this Petition under Section 226 of the Constitution of India, the Petitioner

seeks the following reliefs as under:

"(a) This Hon'ble Court be pleased to issue Writ of Certiorari and or any other Writ, Order of Direction in the nature of Certiorari thereby quashing and setting aside the impugned Judgment and Order dated 15-2-2017 passed by the Respondent No. 2 Committee with further 1 / 10 R.V.Patil

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direction to Respondent No. 2 Committee to issue certifcate of validity in respect of cast certifcate dated 30-12-1991 issued by the Respondent No. 3.

(b) That this Hon'ble Court be pleased to hold and declare that the cast certifcate dated 30-12-1991 issued by the Respondent No. 3 as belonging to Halba, Scheduled Tribe is valid, legal and subsisting."

3. The facts of the petition can be summarized as under :

The Petitioner was granted caste certifcate on 30th December, 1991 as

belonging to "Halba" Scheduled Tribe. The Petitioner moved to the Respondent

No. 2 - Committee seeking verifcation of his Tribe Certifcate for the service

purpose along with his application. He submitted pre-constitutional documents of

his paternal relatives in relation to belonging to "Halba", Scheduled Tribe granted in

favour of his parental relatives. The Petitioner has placed on record basic

documentary evidence which are fundamental in nature in relation to his parental

relatives as under:

1) Laxman Mithaji Kedare

2) Ramadas Mithaji Kedare

3) Arvind Baliram Kedare

All of them are shown as belonging to "Halbi" Caste. The Petitioner has also

produced on record School Leaving Certifcates of Prabhakar Kedare and Pralhad

Sitaram Kedare, wherein, their caste is shown as "Halbi". The Petitioner has also

produced on record Sale Deed dated 13 th December, 1947 in relation to Prabhakar

Baliram Kedare showing his caste as "Halbi". All these persons are relatives of the

Petitioner by blood from paternal side. The Petitioner also placed on record Caste

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Validity Certifcate issued to Pandurang Kedare by the competent authority. It is

contended that the Respondent No. 2 in spite of overwhelming documentary

evidence, has caused inquiry through its vigilance cell, the said report is also in

favour of the Petitioner.

4. It is contended that the inquiry report was forwarded to the Petitioner by the

Respondent No. 2 - Committee on 28th January, 2012 and he was asked to fle

reply. Accordingly, the Petitioner has fled reply along with the documentary

evidence of pre-constitution period. It is contended that the Respondent No. 2 -

Committee decided the case of the Petitioner and invalidated the caste certifcate of

the Petitioner by its impugned order dated 24th February, 2012 mainly contending

that the Petitioner has to produce Caste Certifcate from his original State of

residence as on 6th September, 1950.

5. Being aggrieved by the said order, the Petitioner fled Writ Petition No. 1729

of 2013 before this Court. On hearing both the sides, this Court was pleased to set

aside the impugned order dated 24th February, 2012 passed by the Respondent No.

2 - Committee and remanded the matter to the Respondent No. 2 - Committee to

decide the caste claim afresh. Thereafter, the Petitioner appeared before the

Respondent No. 2 - Committee but the Committee did not decide the caste claim

of the Petitioner in spite of direction given by this Court. Hence, he fled Contempt

Petition No. 227 of 2015 in this Court. The said Contempt Petition was disposed of

on 10th June, 2015 with direction to decide the caste claim of the Petitioner within

two months on its own merits.

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6. In spite of the aforesaid direction given by this Court, the Committee did not

decide the claim of the Petitioner. Hence, the Petitioner again fled Contempt

Petition No. 445 of 2016 before this Court and show cause notice was issued to the

members of the Respondent No. 2 - Committee. Before the appearance of

Respondent No. 2 in the Contempt Petition, the Petitioner was called for inquiry on

25th January, 2017. The Respondent No. 2 - Committee examined the Petitioner on

the point of afnity test. The Petitioner requested the Respondent No. 2 to take his

hearing in "Halbi" dialect/language but the Respondent No. 2 - Committee refused

to do so on the ground that they themselves do not know "Halbi" dialect/language.

The Petitioner has given all germane and relevant information to the Respondent

No. 2 - Committee. The Petitioner categorically pointed out that the caste of his

father and other blood relatives from parental side has been described as plain as

"Halba" / "Halbi". In the month of March, 2017, the Committee invalidated caste

certifcate of the Petitioner, the said order is impugned in this Petition.

7. In the course of argument before us, learned Counsel for the Petitioner

submitted that in the light of voluminous documentary evidence produced by the

Petitioner, the Respondent No. 2 - Committee ought to have accepted the caste

claim of the Petitioner. He has pointed out various documents produced by the

Petitioner before the Respondent No. 2 - Committee. It is contended that some of

these documents were preceding Presidential Notifcation but those documents were

erroneously discarded on the ground that the occupation of relatives of the

Petitioner is shown as weaver (Vinkar) and weaving is taboo "Halba" Tribe. It is

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contended that the Committee erroneously held that "Halbi" is sub-caste entry of

"Koshti". It is also contended that the Committee has wrongly held that the

occupation of the Petitioner and his family members is weaving and there is a caste

"Halba", "Koshti" in the area of Achalpur City from where the Petitioner hails.

Hence, it is contended that the order of the Respondent No. 2 is not legal and

proper and it may be set aside.

8. On the other hand, learned Counsel appearing on behalf of the Respondent

Nos. 1 and 2 supported the order of the Respondent No. 2 - Committee. It is

submitted that, in view of the Judgment of the Supreme Court in the case of Kum.

Madhuri Patil V/s. Additional Commissioner Tribal Development {Reported in

1994 (6) S.C.C 241} and in view of the matter of Director of Tribe Welfare Govt.

of A. P. V/s. Laveti Giri {1995 (4) S.C.C. 32}, the conclusion recorded by the

Respondent No. 2, it does not call for any interference.

9. The Petitioner has produced on record the following school record in relation

to his relatives read as under :

(1) Laxman Mithaji Kedare showing caste as "Halbi" as on 14th April, 1937.

(2) Ramadas Mithaji Kedare showing caste as "Halbi" as on 2nd April, 1940.

(3) Prabhakar Kedare showing caste as "Halbi" as on 2nd August, 1940.

(4) Arvind Baliram Kedare showing caste as "Halbi" as on 30th June, 1948.

(5) Pralhad Sitaram Kedare showing caste as "Halbi" as on 1 April, 1949.

(6) Sale Deed dated 13 th December, 1947 in relation to Prabhakar Baliram

Kedare showing Caste as "Halbi".

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10. The caste of the aforesaid persons is shown as "Halbi". The said documents

are having high probative value. However, the Respondent No. 2 observed that

these documents submitted by the candidate himself and though caste recorded as

"Halbi" in these documents, the occupation is shown as 'weaving' which means

"Koshti" in vernacular. From these documents, it is clear that entry "Halbi" is sub-

caste entry of "Koshti".

11. It is noted by the Respondent No. 2 - Committee in its report that the school

record of the relatives of the Petitioner is pertaining to period 1937, 1940, 1947,

1949, wherein, caste is recorded as "Halba" and "Halbi" while in general register

the occupation recorded as 'Weaving'. These documents of old period including pre-

independence era, though shows caste "Halbi", but anthropological as well as

historical research including read as below:

(i) N. S. Hajari Report, 1965.

(ii) Tribal Research Training Institute Report 1970.

(iii) People of India-Maharashtra by Anthropological Survey of India.

(iv) Dr. R. K. Mutatkar Research Report.

(v) Bhartiya Sanskruti Kosh (by Bhartiya Sanskruti Kosh Mandal).

(vi) Government Resolution dated 13th June, 1995.

As well as information collected by committee by contacting several old

peoples belonging to "Halba" / "Halbi" Scheduled Tribe, make it very clear that

apart from "Halba" / "Halbi" Scheduled Tribe, sub caste "Halba Koshti" of "Koshti"

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caste, which is Special Backward Class in Maharashtra and there is similarity in

nomenclature between these two groups.

12. So far as Amravati District in Maharashtra is concerned, ancestral primitive

area of residence of genuine "Halba" / "Halbi" Scheduled Tribe was confned to the

followings:

(a) Wagholi, Karla, Amduri, Shirajgaon-Korde, Kawathkadu in Chandur-

Rly Tahasil.

(b) Wadhona, Virul-Ronghe, Ramgaon in Dhamangaon Rly. Tahasil.

(c) Varha, Veergavhan in Tiwasa. Tahasil.

(d) Chausala, Anjangaon Surji in Anjangaon Surji Tahasil.

(e) Parsapur, Eklaspur, Dhamangaon Gadhi in Achalpur Tahasil.

(f) Karla, in Warud Tahasil.

(g) Gullarghat, Diya in Dharni Tahasil.

On the contrary sub-caste "Halba", sub-caste "Halbi", sub-caste "Halba

Koshti" of "Koshti Caste" were earlier residing at Abbaspura, Patvipura, Raipura,

Sultanpura, Vilayatpura, Sarmaspura, Anwarpura, Jeevanpura, Sawaipura,

Ramtekpura, Bilanpura and Begampura in Achalpur City.

13. It is also noted that all above mentioned documents of pre-independence era

from 1937 to 1949 are from Sarmaspura, Achalpur (Tahasil - Achalpur) and prior

to independence, in above place there were only people belonging to various sub-

caste of "Koshti" Caste and same was not primitive belt of residence of genuine

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"Halba" / "Halbi" Scheduled Tribe. Therefore, Committee has not considered those

documents of pre-independence era. The Committee has also observed in the

impugned order that the document on which Committee relied upon shows that

occupation as "Vinkari" (Weaving), which is traditional occupation of "Halbi" sub-

caste of "Koshti" caste and rather "Vinkari" (Weaving) is taboo in "Halbi"

Scheduled Tribe, whereas traditional occupation in "Halbi" Scheduled Tribe is

"preparation of poha". The caste claim of the Petitioner was rejected on the ground

that the documents produced by the Petitioner for a period 1937, 1940, 1947 and

1949 are also from Sarmaspura area of Achalpur City and same shows occupation is

"Vinkari" (Weaving).

14. The view taken by the Respondent No. 2- Committee inasmuch as it is now

settled position of law that it is not permissible for the Courts or any other

authorities to interpret entries in the Presidential Notifcation and the entries are

required to be taken as a stand. In this connection, a reference may be made to the

decision of the Constitution Bench of the Apex Court in the case of State of

Maharashtra V/s. Milind & Others. {(2001) 1 SCC. 4, Civil Appeal No. 2294 of

1986}. The relevant observations of the Supreme Court in Paragraph No. 36, are

reproduced as below:

" It is not at all permissible to hold any inquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifcally mentioned in the entry concerned in the Constitutional (Scheduled Tribes) Order, 1950.

2. The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or 8 / 10 R.V.Patil

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tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifcally mentioned in it.

3. A notifcation issued under Clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under Clause (1) of Article 342 only by Parliament by law and by no other authority.

4. It is not open to State Governments or Courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specifed in the notifcation issued under Clause (1) of Article 342.

15. It is not disputed before us that the documents referred above related to the

relation of the Petitioner as already indicated that some of the documents preceding

the Presidential Notifcation. Under the circumstances, the documents undoubtedly

are having high probative value and should be given due weight particularly having

regard to the fact that these entries date back to 1937. It appears that the

Respondent No. 2 - Committee has solely relied on the basis of vigilance

commission report wherein it was recorded that the occupation of the relatives of

the Petitioner has been recorded as "Weaver". These said entries are seriously

disputed by the Petitioner. The Caste of the Petitioner and his parental relatives is

shown in ancient documents as "Halbi", which is Scheduled Tribe as per

Presidential Notifcation. In the light of the voluminous documentary evidence

submitted by the Petitioner, it is not possible to disregard his caste claim on the

basis of vigilance report.

16. In the case of Madhuri Patil (SCC P.257) the Supreme Court has observed

in Paragraph No. 15 which is reproduced as below:

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"The Committee which is empowered to evaluate the evidence placed before it when records a fnding of fact, it ought to prevail unless found vitiated by judicial review of any High Court subject to limitations of interference with fndings of fact. The Committee when considers all the material facts and records a fnding, though another view, as a court of appeal may be possible, it is not a ground to revers the fndings. The Court has to see whether the Committee considered all the relevant material placed before it or has not applied its mind to relevant facts which have led the Committee ultimately to record the fnding. Eaach case must be considered in the bacddrop of its own facts".

The same view has been reiterated in the case of Director of Tribal

Welfare, Govt. of A. P. V/s. Laveti Giri' {1995 (4) S.C.C. 32,}

17. Applying the above test to the facts of the present case, we are satisfed that

the Respondent No. 2 - Committee failed to consider all the relevant material

placed before it and did not apply its mind and erroneously brushed aside the

documents of pre-independence era which led the Committee ultimately to record a

fnding against the Petitioner. We therefore, set aside the order of the Respondent

No. 2 - Scrutiny Committee. Rule is made absolute in terms of prayer Clauses (a)

and (b), the Respondents are given two weeks time to comply with the order.

(SURENDRA P. TAVADE, J) (SMT. SADHANA S. JADHAV, J.)

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