Harsha Narendra Thakur And ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 399 Bom

                                                           85-wp-8484-20 (Jt.)
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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD
                        WRIT PETITION NO. 8484 OF 2020

 1. Harsha D/o Narendra Thakur
    Age - 19 years, Occu.: Student,

 2. Tushar S/o Narendra Thakur
    Age - Minor, Occu.: Student

      Both R/o Plot No.24, Gat No.61/2 + 3/2
      Kolhe Nagar (West), Jalgaon,
      Tq. & Dist. Jalgaon.                             ... Petitioners.
                  Versus
 1. The State of Maharashtra
    Department of Tribal Development,
    Mantralaya, Mumbai - 32
    Through its Secretary
 2. The Scheduled Tribe Certificate Scrutiny
    Committee, Nandurbar Division,
    Nandurbar,
    Through its Member Secretary.                      ... Respondents.
                                      ....
 Mr. Sushant C. Yeramwar, Advocate for the Petitioners.
 M. P.S. Patil, Addl.Government Pleader for Respondent Nos.1 and 2.
                                      ....

                               CORAM : S.V. GANGAPURWALA AND
                                       SHRIKANT D. KULKARNI, JJ.

Closed for Judgment on : 04.01.2021

Judgment Pronounced on : 08.01.2021

JUDGMENT (PER SHRIKANT D. KULKARNI, J.) :-

1. Rule. Rule made returnable forthwith. With the consent of

learned counsel of both the sides, heard finally at admission stage.

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2. By invoking writ jurisdiction under Article 226 of the

Constitution of India, the petitioners have assailed the impugned order

passed by respondent No.2 / The Scheduled Tribe Certificate Scrutiny

Committee, Nandurbar Division, Nandurbar (hereinafter referred to as

the "committee") thereby invalidating caste claim of the petitioners

belong to "Thakur Scheduled Tribe".

3. According to the petitioners, their proposals for verification of

tribe claim were referred to respondent No.2 / committee through

their respective colleges along with documentary evidence. The

vigilance officer has conducted an enquiry and submitted its report

dated 04.12.2020 to the committee. The petitioners have submitted

their reply in response to the show cause notice issued by the

committee and also participated in the personal hearing. The

committee has invalidated tribe claims of the petitioners on following

three points.

(i) The petitioners have failed to prove their tribe claim on the basis of documentary evidence.

(ii) The petitioners are not entitled to get benefit of tribe validity certificate of blood relatives.

(iii) The petitioners have failed to prove their cultural affinity test.

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4. Mr. Yeramwar, learned counsel for the petitioners submitted

that the school record of the petitioners' real grandfather namely

Dharma Mango Thakur and cousin grandfather namely Santosh Mango

Thakur dated 09.06.1954 and year 1958 respectively speaks their caste

as 'Hindu Thakur'. The school record of the petitioners' real cousin

great-grandfather namely Khandu Ramu Thakur also records the caste

as 'Thakur' and date of birth is mentioned as 01.04.1925. The school

record of the petitioners' great great-grandfather namely Ramu Gullu

Thakur also recorded caste as 'Thakur' and that record is of pre-

constitutional period. Mr. Yeramwar, submitted that the petitioners

have produced old school record right from petitioners great-

grandfather and established that they belong to 'Thakur' Scheduled

Tribe. The school record of the pre-constitutional period is also placed

on record, which has more probative value. The committee has

overlooked the old documents by observing that in the school record of

petitioners' father and two aunts, the caste is recorded as 'Hindu

Thakur' (b-ek- - other backward). He submitted that when there is old

record clearly establishing the caste of the petitioners' family as

'Thakur' Scheduled Tribe, no more weightage can be given to such few

entries.

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5. Mr. Yeramwar submitted that the findings recorded by the

committee are erroneous. The committee has arrived at incorrect

conclusion that the petitioners have failed to prove the affinity test.

The said finding is contrary to the decision of Apex Court in case of

Anand Vs. Committee for Scrutiny and Verification of Tribe claim and

ors. reported in (2012)1 SCC 113. The affinity test is not a litmus test.

The committee has given undue importance to the report submitted by

the Research officer and arrived at incorrect conclusion. Mr. Yeramwar

submitted that the impugned order passed by the committee is bad in

law and liable to be quashed and set aside. The petitioners are entitled

to get tribe validity certificates of being 'Thakur' Scheduled Tribe.

6. Per contra, Mr. P.S. Patil, learned Addl. G.P. submitted that the

impugned order passed by the committee is well reasoned. The

findings are based upon evidence produced before the committee. The

committee has also discussed various decisions of the Apex Court and

the Bombay High Court while invalidating tribe claim of the

petitioners. The petitioners have failed to prove their tribe claim as

'Thakur' Scheduled Tribe. The impugned order can not be said to be

defective in eyes of law.

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7. We have considered the arguments advanced by the learned

counsel for the petitioners and learned Additional Government

Pleader.

8. On making scrutiny of the proceeding, it is found that the

petitioners have placed on record their genealogy and details of family

as well as old record in support of their tribe claim. The petitioners

have produced their school record, school record of their grandfather,

great-grandfather, great great-grandfather and cousin great-

grandfather, wherein their caste has been recorded as 'Hindu Thakur' /

'Thakur'. The petitioners have produced the following stock of

documentary evidence in support of their tribe claim.

  v-       nLr,sotkpk izdkj       nLr,sot/kkjdkps uko          vtZnkj         Tkkrhph        Ukkasn.kh
  Ø-                                                        ;kaP;k'kh ukrs      ukasn        fnukad
   1-         'kkys; iqjkok            [kaMw jkew Bkdwj        pqyr           Bkdwj     01-04-1925
                                                               iatksck
   2-      xkao uequk ua- 14        jkew [kaMw Bkdwj        [kkij iatksck     Bkdwj     10-09-1944
                e`R;w ukasn
   3-      xkao uequk ua- 14      >haxk [kaMw jkew Bkdwj        pqyr          Bkdwj     12-12-1946
                TkUe ukasn                                     vktksck
   4-         'kkys; iqjkok         /kekZ ekaxks Bkdwj        vktksck        fganw Bkdwj 09-06-1954
   5-         'kkys; iqjkok        Lakrks"k ekaxks Bkdwj       pqyr          fganw Bkdwj 06-06-1958
                                                              vktksck
   6-         'kkys; iqjkok            ujsanz /kekZ Bkdwj      oMhy          fganw Bkdwj 16-07-1984
                                                                                b-ek-
   7-        e`R;q izek.ki=            Ekkaxks jkew Bkdwj      iatksck          &       20-11-1986
   8-        e`R;q izek.ki=            [kaMw jkew Bkdwj        pqyr             &       21-12-1992
                                                               iatksck
   9-        e`R;q izek.ki=         /kekZ ekaxks Bkdwj        vktksck           &       05-01-2006
  10-         'kkys; iqjkok            g"kkZ ujsanz Bkdwj   vtZnkj dz- 1 fganw Bkdwj 16-06-2008


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  11-         'kkys; iqjkok    rq"kkj ujsanz Bkdwj    vtZnkj dz-2 fganw Bkdwj 15-06-2009
  12-         'kkys; iqjkok     g"kkZ ujsanz Bkdwj    vtZnkj dz- 1 fganw Bkdwj   15-06-2012
  13-         'kkys; iqjkok    rq"kkj ujsanz Bkdwj    vtZnkj dz-2 fganw Bkdwj    17-06-2013
  14-         uequk ua- 8      lqjs'k Ekkaxks Bkdwj      pqyr           &        20-08-2019
                                                        vktksck

9. During the course of vigilance enquiry, it is found in the school

record of petitioners' two aunts namely Sarla Dharma Thakur and

Vandana Dharma Thakur, their caste is recorded as 'Hindu Thakur'

(b-ek- - other backward) as also in the school record of petitioners'

father. These are the few entries on which the committee has

invalidated the tribe claim of the petitioners.

10. It is material to note that the petitioners have placed on record

old school record of his cousin great-grandfather, great great-

grandfather and grandfather right from the year 1925, 1944 and 1946,

wherein caste 'Thakur' / 'Hindu Thakur' is recorded. Hindu is a religion

and not a caste. The school record of Khandu Ramu Thakur (cousin

great-grandfather of the petitioners) of 01.04.1925, Ramu Gullu

Thakur (great great-grandfather of the petitioners) of 10.09.1944 and

Zinga Khandu Thakur (second degree cousin grandfather) of

12.12.1946. These are the old school records, wherein the caste has

been recorded as 'Thakur', which is a Scheduled Tribe as per the

Presidential Order. The above referred three documents are of the pre-

independence era, which have more probative value. The committee

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can not overlook those documents. Certainly, the tribe claim of the

petitioners can not be doubted in the background of few entries of

'Thakur' Magas caste. The old documentary evidence needs to be

believed and acted upon since it has more probative value.

11. The vigilance officer has not collected any contrary evidence to

disbelieve old documentary evidence produced by the petitioners.

There is no justifiable reason to discard the documents of the pre-

independence era in the absence of any contra evidence. There is no

vigilance report casting doubt like manipulation in the school record

relied upon by the petitioners. The committee has completely

overlooked this legal aspect and invalidated the caste claim of the

petitioners by holding that the petitioners have failed to prove their

tribe claim for want of evidence.

12. Now coming to the another aspect of failure to pass the affinity

test. We would like to place reliance in case of Anand (supra), wherein

it is observed by the Hon'ble Supreme Court that the affinity test is not

a litmus test. While dealing with documentary evidence, greater

reliance may be placed on pre-independence documents because they

furnish a higher degree of probative value to the declaration of status

of a caste, as compared to post-independence documents. While

applying the affinity test, which focuses on the ethnological

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connections with the Scheduled Tribe, a cautious approach has to be

adopted. the affinity test may not be regarded as a litmus test for

establishing the link of the petitioners with a Scheduled Tribe.

Nevertheless, the claim by the petitioners that he is a part of a

Scheduled Tribe and is entitled to the benefit extended to that Tribe,

cannot per se be disregarded on the ground that his present traits do

not match his tribe's peculiar anthropological and ethnological traits,

deity, rituals, customs, mode of marriage, death ceremonies, method of

burial of dead bodies, etc. Thus, the affinity test may be used to

corroborate the documentary evidence and should not be the sole

criteria to reject a claim.

13. On careful scrutiny of the genealogy coupled with the

documentary evidence produced by the petitioners right from the pre-

independence era make out a clear picture that the caste of the family

of the petitioners is recorded as 'Thakur' since the year 1925. In the

above background, no more weightage can be given to the affinity test

and anthropological and ethnological traits.

14. In the light of above, the findings recorded by the committee are

found erroneous. The committee has not properly considered the

documents of the pre-independence era and arrived at incorrect

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conclusion. The impugned order passed by the committee invalidating

tribe claim of the petitioners needs to be quashed and set aside. The

petitioners are entitled to get the tribe validity certificate. With these

reasons, we conclude and proceed to pass the following order.

ORDER

(i) The impugned order passed by respondent No.2 / Scrutiny

Committee, Nandurbar dated 09.12.2020 is hereby quashed and set

aside.

(ii) Respondent No.2 / Scrutiny Committee, Nandurbar shall issue

validity certificate to the petitioners of being a member of 'Thakur'

Scheduled Tribe' forthwith.

 (iii)    Rule is made absolute accordingly.


 (iv)     The writ petition is disposed of. No order as to costs.




 ( SHRIKANT D. KULKARNI )                       ( S.V. GANGAPURWALA )
         JUDGE                                           JUDGE


 S.P. Rane




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