Gopal Namdeo Garud vs The State Of Maharashtra And ...
2023 Latest Caselaw 7876 Bom

2023:BHC-AUG:16512-DB

                                                  1                        WP / 9565 / 2021



                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                                       WRIT PETITION NO. 9565 OF 2021
                                                    AND
                                     CIVIL APPLICATION NO. 8979 OF 2021

              Gopal S/o Namdeo Garud
              Age major, Occ. Student
              R/o Village Karegaon,
              PO Sapadgaon, Tq. Sengaon
              District - Hingoli                                              .. Petitioner

                   Versus

              1] The State of Maharashtra
                 Through Secretary
                 Tribal Development Department
                 Mantralaya, Mumbai

              2] The Scheduled Tribe Certificate
                 Scrutiny Committee
                 Aurangabad Division
                 Plot No.10, Sector E-1,
                 Near Saint Lawrence High School,
                 Opp. CIDCO Bus Stand, Aurangabad

              3] The Sub Divisional Officer
                 Office of SDO, Hingoli
                 Dist. Hingoli

              4] The Senior Director
                 NEET (UG) - 2019
                 West Block-1, Wing No.6,
                 2nd Floor, R.K. Puram
                 New Delhi - 110 066

              5] The Director,
                 Directorate of Medical Education & Research
                 St. George's Hospital, Near CSMT,
                 Mumbai                                                       .. Respondents

                                                      ...
                                Advocate for petitioner : Mr. A.S. Golegaonkar
                               AGP for the respondent - State : Mr. S.G. Sangle
                                                      ...




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                                   2                        WP / 9565 / 2021


                        CORAM          : MANGESH S. PATIL &
                                         SHAILESH P. BRAHME, JJ.

                        RESERVED ON   : 25 JULY 2023
                        PRONOUNCED ON : 04 AUGUST 2023


ORDER (MANGESH S. PATIL, J.) :

The petitioner is challenging the order of the respondent -

scrutiny committee passed in a proceeding under section 6 of the

Maharashtra Act No. XXIII of 2001 (Act), thereby confiscating and

cancelling the petitioner's tribe certificate of Thakur scheduled tribe by

resorting to the provisions of section 7(1) of that Act.

2. We have heard both the sides finally at the stage of

admission.

3. The learned advocate for the petitioner would submit that

the whole approach of the committee is cynical and pedantic. It has

started with the assumption that the petitioner's claim is false and

bogus. In the process, it has conveniently discarded the validity

certificate of one Bhagwat Pandharinath Garud even though it was

issued in the year 2001 and he has filed a specific affidavit

corroborating the petitioner's version when he produced his validity

certificate in support of the claim describing Bhagwat as his second

degree cousin parental uncle. Bhagwat in his affidavit expressly stated

on oath about petitioner being his second degree nephew. There was

nothing before the committee to discard his validity merely by

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entertaining the suspicion that the genealogy furnished by the

petitioner did not demonstrate Bhagwat.

4. The learned advocate would further submit that the

committee has also, without any reason, discarded a vital document in

the form of revenue record called Khasra Pahani Patrak of his cousin

grandfather wherein he has been described as Thakur. This revenue

record is of the year 1953-54. Even if it was a post-constitutional era, it

is of the year soon after coming into force of the presidential order and

the entry having been made in the ordinary course of official business

of maintaining the revenue record, it could not have been discarded by

the committee.

5. The learned advocate would submit that in spite of removal

of area restriction and the limited scope for affinity test, in the teeth of

the documentary evidence, the committee has resorted to both while

discarding the petitioner's claim. The order is perverse, arbitrary and

capricious and is liable to be reversed.

6. The learned AGP would submit that merely because the

petitioner's family members are being described as Thakur, that would

not ipso facto bring them in the category of Thakur scheduled tribe

which is essentially a tribe having a place of abode in remote areas.

They would not have lands and would follow specific traits unlike the

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Thakurs from the upper caste. The committee has therefore rightly

applied the anthropological test and even observed that petitioner's

family does not seem to have been migrated from such tribal are. He

would then submit that even no fault can be found with the committee

when it discarded the validity certificate of Bhagwat who is

conspicuously absent from the genealogy furnished by the petitioner.

7. We have carefully considered the rival submissions and

perused the record.

8. At the outset, it is necessary to bear in mind that as has

been in the matter of Palaghat Jila Thandan Samuday Sanrakshan

Samiti and Anr. Vs. State of Kerala and Another;(1994) 1 SCC 359,

the concept of area restriction has been removed in the light of the

provisions of the Scheduled Castes and Scheduled Tribes Orders

(Amendment) Act, 1976. We, therefore, out-rightly disapprove the

approach of the committee in resorting to this test.

9. Again, in view of the judgment in the matter of

Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti Vs. State

of Maharashtra and others; 2023 SCC Online SC 326 though the

affinity test has not been out-rightly discarded, it has been emphasized

that it has very limited scope and can be resorted to only if the

5 WP / 9565 / 2021

documents in support of the case or tribe claim are either absent or not

reliable.

10. Bearing in mind this state-of-affair, if one examines the

material before the scrutiny committee, admittedly, rather the

committee has not disputed that the petitioner's cousin grandfather by

name Sakharam Narayan Thakur has been referred to in the Khasra

Pahani Patrak of the year 1953-54 as Thakur. This is the oldest

document produced by the petitioner in support of his claim. Though it

is of a period after the presidential order passed in the year 1950, it is

immediately thereafter and would carry greater probative value. There

is nothing before us to doubt about its genuineness.

11. The committee has proceeded to discard this piece of

evidence by applying the area restriction and affinity test. We are

afraid the approach is unsustainable in law in the light of the decisions

in the matter of Palaghat Jila Thandan Samuday Sanrakshan Samiti

and Anr. (supra) and Maharashtra Adiwasi Thakur Jamat

Swarakshan Samiti (supra).

12. True it is that merely by referring to word "Thakur", it

cannot be readily inferred that it has been used to describe the

scheduled tribe. However, it is to be noted that coupled with this

Khasra Pahani Patrak and description of cousin grandfather as

6 WP / 9565 / 2021

"Thakur" of the year 1953-54, the petitioner has also been relying upon

the validity of Bhagwat and it is not that it is a lopsided claim of the

petitioner. Bhagwat himself has filed affidavit expressly mentioning the

exact relationship with the petitioner. If the two of them are distant

cousins from the paternal side, obviously, the petitioner will have to be

extended its benefit. Merely because of the remoteness, the

genealogy furnished by him does not indicate Bhagwat, in our

considered view, that itself cannot be a ground to discard this validity

certificate.

13. It is to be borne in mind that the claim of belonging to a

scheduled tribe or scheduled caste under the Act and the burden to be

discharged by the claimant pursuant to section 8 of that Act can be

discharged on preponderance of probabilities and a strict proof is not

required.

14. We are, therefore, of the considered view that the

petitioner's claim of belonging to "Thakur" scheduled tribe has been

duly established by discharging the onus on the basis of the revenue

record and the validity certificate.

15. The observations and the conclusions of the committee

are perverse and arbitrary and are liable to be quashed and set aside.

16. The writ petition is allowed.

7 WP / 9565 / 2021

17. The impugned order is quashed and set aside.

18. The committee shall immediately issue the tribe validity

certificate to the petitioner as belonging to the "Thakur" scheduled tribe.

19. Pending civil application is disposed of.

  [ SHAILESH P. BRAHME ]                         [ MANGESH S. PATIL ]
         JUDGE                                         JUDGE

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