Bombay High Court
Ashvini Prakash Devre vs The State Of Maharashtra Through Its ... on 5 August, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:17105-DB
1 WP / 7545 / 2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7545 OF 2024
Ashwini Prakash Devre,
Age : 20 years, Occu. Student,
R/o. Barhali, Tq. Mukhed,
Dist. Nanded .. Petitioner
Versus
1] The State of Maharashtra,
Through its Secretary,
Tribal Department,
Mantralaya, Mumbai - 32.
2] The Scheduled Tribe Certificate Scrutiny
Committee, Kinwat, Head Quarter,
Ch. Sambhajinagar,
Tq. & Dist. Sambhajinagar,
Through its Deputy Director (R) .. Respondents
...
Advocate for petitioner : Mr. P.V. Jadhavar
AGP for the respondent - State : Mr. S.P. Joshi
...
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
DATE : 05 AUGUST 2024
JUDGMENT (MANGESH S. PATIL, J.) :
Rule. Rule is made returnable forthwith. Learned AGP
waives service.
2. By resorting to Article 226 of the Constitution of India read
with section 7(2) of the Maharashtra Act No. XXIII of 2001 ('Act') and
the rules framed thereunder, the petitioner is challenging the judgment
and order of respondent no. 2, which is a committee constituted under
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that Act for validation of the scheduled tribe certificates, refusing to
validate her 'Koli Mahadev' scheduled tribe certificate and directing its
confiscation and cancellation.
3. The learned advocate for the petitioner would vehemently
submit that in spite of conducting vigilance enquiry, no contrary record
could be traced and none has been referred to in the entire impugned
order. The record collected during vigilance enquiry, is only favourable
record wherein petitioner's blood relatives have been described as
'Mahadev Koli' or 'Koli Mahadev'. The conduct of the committee in
discarding this record only because it is of recent period and there is no
evidence of pre-constitutional period, is perverse and arbitrary. He
would submit that there could not have been insistence for producing
pre-constitutional record. The issue has been consistently addressed
by this Court wherein it has been held that there should not be
insistence to produce old record. He would cite decisions in the
matters of Vaijnath S/o Janardhan Zunjkar Vs. Scrutiny Committee
for Verification of Tribe Claims, Aurangabad and another; 2006(3)
Mh.L.J. 536 and Yogesh S/o Madhavrao Kakulte Vs. State of
Maharashtra and another; 2006(3) Mh.L.J. 691.
4. Learned advocate would further submit that the committee
has also illegally applied the area restriction and the affinity test. The
petitioner being the first person in the entire family seeking validation of
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tribe certificate, the record available before the committee was
sufficient to substantiate her claim and the impugned order being
perverse, arbitrary and capricious, be quashed and set aside.
5. The learned AGP would support the order under
challenge. He would submit that the committee has merely observed
that the favourable record produced by the petitioner is of recent period
between 1983 and 2020. The committee has merely observed that
such favourable record of recent period was not sufficient to
substantiate the tribe claim. The committee has also, therefore, rightly
resorted to the principle of area restriction and has even applied the
affinity test. She failed in both. By virtue of section 8 of the Act, the
burden is on a claimant to lead cogent evidence to substantiate the
claim. The observations and conclusions of the committee are
plausible and reasonable. In the absence of any convincing evidence,
the only option with the committee was to refuse to validate petitioner's
tribe certificate.
6. We have considered the rival submissions and perused
the papers.
7. At the outset, it is necessary to record that though by virtue
of section 8 of the Act, the burden is on the claimant to lead cogent and
convincing evidence to substantiate the tribe claim, there cannot be
insistence as to the nature of evidence that is required to discharge
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such burden. Since it is a matter of proof of a fact, any evidence
permissible under the Indian Evidence Act, would be admissible. This
Court has been consistently observing that there could not be any
insistence by the committee/s for producing pre-constitutional record
for substantiating the caste or tribe claim/s. Consequently, the stand of
the committee in the impugned order observing that the petitioner
having failed to lead evidence of the period prior to 1950, would not be
legally sustainable.
8. However, when, admittedly, the petitioner has tendered the
favourable record of recent origin, i.e. between 1983 and 2020, in our
considered view, no fault can be found with the committee in not
extending the weight to such record which would have inherent
limitations inasmuch as there would be every room to believe that all
these entries must have been taken with an obvious intention to derive
the benefit of reservation policy pronounced way back in the year
1950.
9. Precisely for this reason, though in the normal course,
affinity test is not to be resorted to, not being a litmus test, as laid down
in the matter of Anand V. Committee for Scrutiny and Verification of
Tribe Claims and others; (2012) 1 SCC 113, but it has its own
significance in an appropriate case, as observed in paragraph no. 25 of
Maharashtra Adiwasi Thakur Jamat Swarakshan Samiti Vs. State
5 WP / 7545 / 2024
of Maharashtra and others; 2023 SCC Online SC 326, which reads
as under:
"25. Now, we come to the controversy regarding the affinity test.
In clause (5) of Paragraph 13 of the decision in the case of
Kumari Madhuri Patil (1994) 6 SCC 241, it is held that in the case
of Scheduled Tribes, the Vigilance Cell will submit a report as
regards peculiar anthropological and ethnological traits, deities,
rituals, customs, mode of marriage, death ceremonies, methods
of burial of dead bodies etc. in respect of the particular caste or
tribe. Such particulars ascertained by the Vigilance Cell in respect
of a particular Scheduled Tribe are very relevant for the conduct
of the affinity test. The Vigilance Cell, while conducting an affinity
test, verifies the knowledge of the applicant about deities of the
community, customs, rituals, mode of marriage, death ceremonies
etc. in respect of that particular Scheduled Tribe. By its very
nature, such an affinity test can never be conclusive. If the
applicant has stayed in bigger urban areas along with his family
for decades or if his family has stayed in such urban areas for
decades, the applicant may not have knowledge of the aforesaid
facts. It is true that the Vigilance Cell can also question the
parents of the applicant. But in a given case, even the parents
may be unaware for the reason that for several years they have
been staying in bigger urban areas. On the other hand, a person
may not belong to the particular tribe, but he may have a good
knowledge about the aforesaid aspects. Therefore, Shri Shekhar
Naphade, the learned senior counsel, is right when he submitted
that the affinity test cannot be applied as a litmus test. We may
again note here that question of conduct of the affinity test arises
only in those cases where the Scrutiny Committee is not satisfied
with the material produced by the applicant."
In view of such observations, with the vulnerability of the record being
relied upon by the petitioner of recent origin, no fault can be found in
the committee undertaking and applying the affinity test. One need not
burden this judgment any more once we have reproduced the
observations of the Supreme Court.
10. As can be seen from the vigilance enquiry report, the
petitioner had failed to reply to several questions formulated for testing
6 WP / 7545 / 2024
her knowledge about the traits and characteristics of Koli Mahadev
scheduled tribe, some of which have been referred to in the impugned
judgment and order. Neither in the reply filed by the petitioner to the
vigilance cell report (Exhibit - D) nor in the petition memo, substantial
challenge has been put up to either the vigilance report to the extent of
affinity test or the observations of the committee regarding issue no. 2
pertaining to the affinity. In view of such state of affairs, when the
documentary evidence before the committee was of recent origin
having inherent limitations to substantiate the tribe claim, no fault can
be found with the committee in applying the affinity test and, based on
the vigilance report, in arriving at a conclusion about the petitioner
having failed in it.
11. In these peculiar circumstances, even if the committee has
erred in making an observation that the petitioner had failed to produce
pre-constitutional record, and in insisting therefor, the observations and
the conclusion of the committee in refusing to persuade itself on the
basis of the recent record and examining the petitioner's claim on the
touchstone of the affinity test and discarding it by observing that she
failed in it, is clearly a plausible view and by no stretch of imagination
can be said to be perverse, arbitrary or capricious.
12. Incidentally, in both the matters viz. Vaijnath Zunjkar and
Yogesh Kakulte (supra), division bench of this Court had similarly
7 WP / 7545 / 2024
observed that the committee could not have insisted for pre-
constitutional record and set aside its orders refusing to validate the
tribe claims, however, precisely noting that in both those matters, the
claimants had been successful in the affinity test.
13. Paragraph no. 13 from Vaijnath Zunjkar and paragraph
no. 11 from Yogesh Kakulte (supra) need to be looked into, which
read as under:
Vaijnath Zunjkar
"13. In the present case, the Committee has not considered
probative value of the documents produced by the petitioner
merely on the ground that they belong to Post-Presidential
Notification era. The report of home enquiry is also not properly
appreciated by the Committee. Considering the fact that right
from the Primary stage till the graduation the petitioner is shown
to belong to Mahadeo Koli Tribe and the fact that the petitioner
has given correct information in respect of some of the
important traits and characteristics, we cannot sustain
invalidation of the tribe claim of the petitioner by the Committee,
particularly when no contra material is brought on record during
the home enquiry conducted by the Vigilance Cell. In these
circumstances, interference with finding of the Committee is
justified. In this behalf reference can be made to the ruling of
the Supreme Court reported in 1996(2) Mh.L.J. (SC) 402 =
(1996) 3 SCC 685 in the matter of Gayatrilaxmi Baburao
Nagpure v. State of Maharashtra and Ors. While dealing with
similar circumstances, after referring to the principles laid down
in Ku. Madhuri Patil v. Additional Commissioner and Ors., AIR
1995 SC 94. Their Lordships have observed in para No. 17 of
the report that,
17. Applying the above test to the facts of the present
case, we are satisfied that the Committee failed to
consider all the relevant materials placed before it and
did not apply its mind to an important document "Sl. No.
9" which led the Committee to ultimately record a
finding against the appellant. By a wrongful denial of
the Caste certificate, the genuine candidate, he/she will
be deprived of the privileges conferred upon him/her by
the constitution. Therefore, greater care must be taken
8 WP / 7545 / 2024
before granting or rejecting any claim for caste
certificate."
.....
Yogesh Kakulte
"11. In the present case also, it can be seen that the petitioner
has produced documents substantiating his caste claim.
Though the documents are of the recent origin, the petitioner
has proved his affinity and ethnic linkage with Mahadeo Koli,
Tribe, by correctly giving information regarding peculiar traits,
characteristics, customs, usages etc. of his tribe. Therefore, in
the peculiar circumstances of this case where all the near blood
relatives of the petitioner are illiterate, the Committee ought to
have given due weightage to the documents produced by him
and after considering the probative value of the documents
produced and the fact that petitioner has established his affinity
to and ethnic linkage with 'Mahadeo Koli" Scheduled Tribe, the
Committee ought to have validated the tribe claim of the
petitioner. Since the Committee has utterly failed to give due
weightage to the material on record, decision of the Committee
cannot be upheld."
14. In view of above, we are unable to accept the submissions
on behalf of the petitioners putting up challenge to the impugned
judgment and order of the scrutiny committee.
15. The petition is devoid of merit and is liable to be dismissed.
16. The petition is dismissed.
17. Rule is discharged.
[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
