Bombay High Court
Sakshi Rajendra Tahakur vs The State Of Maharashtra Thr Its ... on 11 January, 2021
Bench: S.V. Gangapurwala, Shrikant Dattatray Kulkarni
77-wpst-337-21 (Jt.)
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 398 OF 2021
Sakshi D/o Rajendra Thakur
Age : 19 years, Occu.: Student,
R/o. Shivaji Road, Adawad
Tq. Chopda, Dist. Jalgaon ... Petitioner.
Versus
1. The State of Maharashtra
Department of Tribal Development,
Mantralaya, Mumbai - 32
Through its Secretary
3. The Scheduled Tribe Certificate
Scrutiny Committee,
Nandurbar Division Nandurbar
Through its Member Secretary. ... Respondents.
....
Mr. Sushant C. Yeramwar, Advcocate for the Petitioner.
Mr. S.K. Tambe, A.G.P. for Respondent Nos.1 and 2.
....
CORAM : S.V. GANGAPURWALA AND
SHRIKANT D. KULKARNI, JJ.
DATED : 11.01.2021.
JUDGMENT (PER SHRIKANT D. KULKARNI, J.) :-
1. Rule. Rule made returnable forthwith. With the consent of
learned counsel for both the sides, heard finally at admission stage.
2. Being aggrieved by the impugned order passed by respondent
No.2 / Scheduled Tribe Certificate Scrutiny Committee, Nandurbar
Division, Nandurbar (hereinafter referred to as the "committee")
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thereby invalidating caste claim of the petitioner as belonging to
"Thakur Scheduled Tribe", the petitioner has approached this Court by
invoking writ jurisdiction under Article 226 of the Constitution of
India.
3. The factual matrix of the case is as under:
The petitioner is studying in college. Her proposal for
verification of tribe certificate was referred by the college to the
committee along with documentary evidence. The committee has
referred the case to the vigilance officer for enquiry. The vigilance
officer has submitted his report to the committee. The committee has
issued show cause notice to the petitioner, and in response to the show
cause notice, the petitioner has filed her say. It is contended by the
petitioner that the committee has invalidated her tribe claim as being
"Thakur" Scheduled Tribe without considering the documentary
evidence submitted by her since the year 1914 and certificate of
validity issued in favour of her cousin uncle.
4. Mr. Yeramwar, learned counsel for the petitioner vehemently
submitted that the petitioner has produced old record right from the
year 1914 in order to show that she belongs to "Thakur" Scheduled
Tribe. She has also placed on record the validity certificate issued in
favour of her cousin uncle. The genealogy is not disputed. The
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committee has discarded the old record and that too of the
pre-independence era without assigning the reasons. The findings
recorded by the committee are contrary to the decisions of the Hon'ble
Supreme Court and the Bombay High Court. He further invited our
attention to the impugned order passed by the committee and pointed
out that there are no contra entries to take doubt about the caste claim
of the petitioner. The area restriction is removed even then the
committee has considered that aspect and turn down the tribe claim of
the petitioner. He submitted that observations made by the committee
are erroneous. The affinity test is not a litmus test. To support his
argument, Mr. Yeramwar has placed on record 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. He submitted that
the impugned order passed by the committee is bad in law and liable
to be quashed and set aside.
5. Mr. S.K. Tambe, learned A.G.P. for State / respondent Nos. 1
and 2 submitted that the committee has taken into consideration old
documents produced by the petitioner. The committee after examining
all the documentary evidence, vigilance report and report of the
Research officer arrived at the conclusion that the petitioner has failed
to prove her tribe claim as "Thakur" Scheduled Tribe. The findings
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recorded by the committee are well reasoned. Those are supported by
various decisions of the Bombay High Court, which are referred by the
committee. The decision rendered by the committee is not defective in
the eye of law. It is not a fit case to interfere with the decision of the
committee.
6. We have considered the arguments advanced by the learned
counsel for the petitioner and the learned A.G.P.
7. On perusing the impugned order passed by the committee, it is
found that the committee has invalidated the claim of the petitioner on
the following three issues :
(i) The petitioner has failed to prove her tribe claim on
the basis of documentary evidence.
(ii) The petitioner is not entitled to take benefit of
validity certificate issued to her blood relative.
(iii) The petitioner has failed to prove the affinity test.
8. On making scrutiny of the impugned order, vigilance report and
other papers, it is noticed by us that the petitioner has placed on record
the documentary evidence in the form of school record, copy of the
service book extract, extract of birth and death register right from the
year 1914, wherein the caste "Thakur" has been recorded.
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The following documentary evidence was produced by the petitioner
before the committee.
v- nLr,sotkpk izdkj nLr,sot/kkjdkps uko vtZnkj Tkkrhph Ukkasn.kh
Ø- ;kaP;k'kh ukrs ukasn fnukad
1- TkUekpk nk[kyk lk{kh jktsan Bkdqj vtZnkj & & 20-11-2002
2- 'kkys; iqjkok lk{kh jktsan Bkdqj vtZnkj fganw Bkdwj 16-06-2008
¼,l-Vh-½
3- Tkekr izek.ki«k jktsanz jes'kjko Bkdqj oMahy Bkdwj 10-04-2000
4- 'kkys; iqjkok jktsanz jes'k Bkdqj oMahy fganw brj 10-07-1975
ekxkysyk
Bkdwj
5- lsok iqLrd jktsanz jes'k Bkdqj oMahy fganw & &
¼vkschlh½
¼Bkdwj½
¼,l-Vh-½
Bkdwj
'ksMwy
Vªkbc
6- tekrh izek.ki«k jes'k fcgkjh Bkdqj vktksck Bkdwj 10-04-2000
7- TkUe ukasn iqjkok & C;kgjh Jhir vktksck Bkdwj 10-10-1943
8- 'kkys; iqjkok jes'k fcgkjh Bkdqj vktksck fganw Bkdwj 01-04-1949
9- xkao uequk ua- [email protected] jes'k fcgkjhyky vktksck & & 2019&20
Bkdqj
10- tekrh izek.ki«k fcgkjh Jhir Bkdqj iatksck Bkdwj 30-09-1977
11- 'kkys; iqjkok fcgkjhyky Jhir iatksck Bkdwj 15-12-1921
Bkdqj
12 lsok iqLrdkph izr fcgkjh Jhir pOgk.k iatksck Bkdwj 19-09-1937
13- e`R;q nk[kyk fcgkjh Jhir Bkdqj iatksck Bkdwj 18-09-1991
14- 'kkys; iqjkok cUlh Jhir Bkdqj pqyr Bkdwj 07-10-1914
iatksck
15- xkao uequk ua- 14 dUg;kyky Jhir pqyr Bkdwj 13-10-1918
lkn;kjke iatksck
16- 'kkys; iqjkok dUg;kyky Jhir pqyr fganw Bkdwj 05-01-1924
Bkdwj iatksck
17- 'kkys; iqjkok enuyky Jhir Bkdwj pqyr fganw Bkdwj TkUe rkjh[k
iatksck 21-12-1921
e`R;q rkjh[k
07-06-1937
18- tekrh izek.ki«k Jhjax vejukFk Bkdwj pqyr dkdk Bkdwj 30-11-2000
19- oS/krk izek.ki«k Jhjax vejukFk Bkdwj pqyr dkdk Bkdwj 31-01-2003
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77-wpst-337-21 (Jt.)
9. Having regard to the above referred documentary evidence, it is
seen that the petitioner has produced documentary evidence pertaining
to her cousin great-grandfather namely Bansi Shripat Thakur in the
form of school record dated 07.10.1914, wherein his caste has been
recorded as "Thakur". Kanhaiyalal Shripat Thakur happened to be
another cousin great-grandfather of the petitioner his caste, his caste is
recorded as "Hindu Thakur" as per school record dated 05.01.1924. In
the Gaon Namuna No.14 extract dated 13.10.1918 of said Kanhaiyalal,
his caste is recorded as "Thakur" The same is the case of the another
cousin great-grandfather Madanlal Shripat Thakur, wherein his caste is
recorded as "Hindu Thakur".
10. Hindu is a religion and not a caste. Therefore, the entry of
"Hindu Thakur" can not be said to be contra evidence. Having regard
to the stock of the above referred documents right from the year 1914,
1918 and the year 1937, which are pre-independence documents,
wherein the entry of the caste as "Thakur" is recorded. It is important
to note that vigilance is conducted in respect of above said
documentary evidence and during the enquiry, no contra evidence was
found. There is no documentary evidence collected by the vigilance
officer to disbelieve the documentary evidence placed on record by the
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petitioner in support of her tribe claim. There is no justifiable reason to
discard the documents of the pre-independence era in absence of any
contra evidence. The documentary evidence of the pre-independence
era has more probative value and it needs to be believed when there
are no contra entries on record. The committee has completely
overlooked this aspect and invalidated the tribe claim of the petitioner.
The committee has unnecessarily referred the entries of caste as
Kshatriya, Nagvanshi Brahmabhat, Bhat by placing reliance on the
earlier record available with the committee pertaining to other Taluka
places, which according to us unnecessary exercise of the committee.
11. The committee has also observed that the family of the
petitioner is not migrated from tribal area. That observation made by
the committee is erroneous. The Parliament has enacted "The
Scheduled Castes and Scheduled Tribes Orders (Amendment) Act,
1976". It is precisely to over come the difficulties of the tribals. After
that amendment, it is not permissible to rely on the area restrictions
placed by the order of 1950. They are removed in order to enable the
persons not residing in the five districts identified as permanently
inhabited by Thakurs to claim benefits and concessions so also
relaxation in Government employment and elections. That view is
expressed in the decision rendered by the Division Bench in case of
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77-wpst-337-21 (Jt.)
Mayuri Sunil Thakur Vs. State of Maharashtra and Ors. (Writ Petition
No.8738 of 2019 dated 09.08.2019 at principal seat Bombay). As
such, the observations made by the committee regarding absence of
migration of petitioner's family are certainly erroneous.
12. The committee has recorded negative finding on the issue of
giving benefit to the petitioner on the basis of validity certificate
issued to her cousin uncle namely Shrirang Amarnath Thakur. It is
observed by the committee that there is a change in the legal position
after the efflux of time, and as such, the benefit of validity certificate
of Shrirang Amarnath Thakur can not be extended to the petitioner.
The reasons given by the committee are not sustainable in the eyes of
law. The validity certificate issued in favour of cousin uncle of the
petitioner still holds the field. As such, the benefit needs to be
extended to the petitioner when there is no dispute about relationship
and genealogy.
13. Now coming to the another finding recorded by the committee
regarding failure to prove the affinity test. The genuineness of a caste
claim needs to be considered not only by way of detail examination of
the documents but also on the affinity test, which would include the
anthropological and ethnological traits etc. of the petitioner. The
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affinity test is not a litmus test. We would like to place reliance in case
of Anand (supra), wherein it is observed by the Hon'ble Supreme
Court, which read thus:-
"The genuineness of a caste claim has to be considered not
only on a thorough examination of the documents
submitted in support of the claim but also on the affinity
test, which would include the anthropological and
ethnological traits, etc. of the applicant. However, it is
neither feasible nor desirable to lay down an absolute rule,
which could be applied mechanically to examine a caste
claim. Nevertheless, the following broad parameters could
be kept in view while dealing with a caste claim:
(i) 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. In case the applicant is the first
generation ever to attend school, the availability of any
documentary evidence becomes difficult, but that ipso facto
does not call for the rejection of his claim. In fact, the mere
fact that he is the first generation ever to attend school,
some benefit of doubt in favour of the applicant may be
given. Needless to add that in the event of a doubt on the
credibility of a document, its veracity has to be tested on
the basis of oral evidence, for which an opportunity has to
be afforded to the applicant.
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(ii) While applying the affinity test, which focuses on the
ethnological connections with the Scheduled Tribe, a
cautious approach has to be adopted. A few decades ago,
when the tribes were somewhat immune to the cultural
development happening around them, the affinity test
could serve as a determinative factor. However, with the
migrations, modernisation 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. Hence, the affinity
test may not be regarded as a litmus test for establishing
the link of the applicant with a Scheduled Tribe.
Nevertheless, the claim by an applicant 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. Burden to prove
lies upon applicant - In case material produced by
applicant does not prove his claim, Committee cannot
gather evidence on its own to prove or disprove his claim."
14. On careful scrutiny of the documentary evidence produced by
the petitioner right from the pre-independence era i.e. right from the
years 1914, 1918 and 1937, make out a clear picture that the caste of
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the family of the petitioner is recorded as "Thakur". No contra entries
are found during the vigilance enquiry. The committee has given
unnecessary weightage to the report submitted by the Research officer.
In view of decision of this Court in case of Apoorva D/o Vinay Nichale
Vs. Divisional Caste Certificate Scrutiny Committee No. 1 and others
reported in 2010 (6) Mh.L.J. 401, the petitioner is entitled to get
benefit of tribe validity certificate issued in favour of her cousin uncle
when there is no dispute about relationship and no other impediment.
15. In view of the 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
conclusion. There are no contra entries to throw away the tribe claim
of the petitioner. The impugned order passed by the committee
invalidating tribe claim of the petitioner needs to be quashed and set
aside. She is entitled to get the tribe validity certificate. With these
reasons, we conclude and proceed to pass the following order.
ORDER
(i) The order / decision rendered by respondent No.2 / Scrutiny
Committee, Nandurbar dated 17.12.2020 is hereby quashed and set
aside.
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(ii) Respondent No.2 / Scrutiny Committee, Nandurbar shall issue
validity certificate to the petitioner 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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