Bombay High Court
Shubham Kishor Suryawanshi And Another vs The State Of Maharashtra Through Its ... on 14 August, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:17901-DB
35.WP.4350.24.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4350 OF 2024
1. Shubham s/o Kishor Suryawanshi,
2. Aniket s/o Gajanan Suryawanshi ... PETITIONERS
VERSUS
1. The State of Maharashtra
Department of Tribal Development
Mantralaya, Mumbai - 32
through its Secretary
2. The Scheduled Tribe Certificate Scrutiny
Committee, Kinwat
(Headquarter - Chh. Sambhajinagar)
Tq. & Dist. Chh. Sambhajinagar
through its Member Secretary ... RESPONDENTS
...
Advocate for petitioner : Mr. S.C. Yeramwar
A.G.P. for respondent/State : Mr. N.D. Batule
...
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
Reserved on : 05.08.2024
Pronounced on : 14.08.2024
ORDER (MANGESH S. PATIL, J.) :
We have heard both the sides finally with the consent.
2. Rule. Rule is made returnable forthwith.
3. By way of this writ petition under Article 226 of the
Constitution of India read with Section 7(2) of the Maharashtra Act
No.XXIII of 2001, the petitioners are challenging the common judgment
and order of the respondent No.2 which is a Scheduled Tribe Certificate
Scrutiny Committee, Kinwat (hereinafter the Scrutiny Committee),
constituted under that Act refusing to validate their 'Koli Mahadev'
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scheduled tribe certificates and directing confiscation and cancellation.
4. Learned advocate for the petitioners would submit that the
petitioners are cousins inter se. Vigilance inquiry was conducted. Several
documents was collected, wherein, the petitioners and their family
members were described in the school record and birth record as 'Koli
Mahadev' or 'Mahadev Koli'. The oldest document was of the year 1979.
Genuineness of this record was not doubted and therefore committee
could have accepted it. He would submit that the stand of the Committee
refusing to consider this favourable record merely on the ground that it is
of recent origin and expecting a pre-constitutional record is perverse and
arbitrary. Legally there could not have been any insistence for production
of pre-constitutional record. The tribal communities cannot be expected
to have undertaken any education during pre-constitutional period. If
they have migrated and are able to take education obviously, they cannot
be said to be non-tribals merely for failure to produce the old record. This
is against the action of removal of area restriction by Amendment Act of
1976 and applying it circuitously. He would also refer to the decision of
the division benches in the matter of Vaijnath s/o Janardhan Zunjkar Vs.
Scrutiny Committee for Verification of Tribe Claims, Aurangabad and
Anr.; 2006(3) Mh.L.J. 536 and Yogesh s/o Madhavrao Kakulte Vs. State
of Maharashtra and Anr.; 2006(3) Mh.L.J. 691.
5. Learned advocate Mr. Yeramwar would further submit that
there is not a single contrary entry and the Committee ought to have
35.WP.4350.24.odt
accepted the claims as was done in the matter of Vishal s/o Bhagwanrao
Chandel Vs. The State of Maharashtra and Ors.; Writ Petition
No.10389/2016 (Aurangabad Bench) dated 17.01.2017.
6. Mr. Yerumwar would further submit that contrary to the law
laid down in the matter of Maharashtra Adiwasi Thakur Jamat
Swarakshan Samiti Vs. State of Maharashtra and Ors.; 2023 SCC Online
SC 326, the Committee has illegally resorted to affinity test. He would
submit that the Committee in the impugned order has tried to discard the
response given during the vigilance inquiry that some of the families of
'Koli Mahadev' from their village Vasarni Tq. and Dist. Nanded have
surnames like Mokle, More, Bhange, Mamde and Patait. The petitioners
have filed affidavit in this petition expressly giving the details and a list of
the residents from his village who have been issued with certificates of
validity of Koli Mahadev scheduled tribe having surnames More, Patait,
Mamde, Bhange, Mokle. He would, therefore, submit that the impugned
order refusing to consider the favourable record for no valid reason is
illegal, and be reversed.
7. Learned AGP Mr. Patil would submit that though pre-
constitutional record cannot be insisted for, the post constitutional
favourable record will have inherent limitations. There is every possibility
of such subsequent favourable record having been prepared with an
ulterior motive to derive benefit of reservation and no fault can be found
with the Committee on being guard and expecting the petitioners to lead
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corroborative evidence.
8. Mr. Patil would submit that it is in this context even
Maharashtra Adiwasi Thakur Jamat (supra) does not clearly discard
application of affinity test. It merely cautions that it is not a litmus test
and even expects it to be applied in the absence of documentary evidence
or when the Committee is not ready to believe the documents produce in
support of the caste or tribe claim.
9 Mr. Patil would further submit that in response to the
affidavit filed by the petitioners, though it could be noticed that some
villagers from the petitioners' village Vasarni have been issued with
certificates of validity, on scrutiny, it was found that they were not related
to the petitioners and even found that they had obtained certificates of
validity by practising fraud and the show cause notices have been issued
to them for recalling the validities. He would, therefore, submit that the
reply given during the vigilance inquiry by the petitioners, referring to
the validities possessed by individuals from the village having these
surnames is inconsistent with the claim of 'Koli Mahadev'. He would,
therefore, pray to reject the petition.
10. We have carefully considered the rival submissions and
perused the papers. Obviously, there cannot be any insistence for proving
a fact that it should be proved by a particular mode only, more so when a
fact is to be proved, like in the matters of caste claims, on the basis of
preponderance of probabilities. The very purpose and avowed
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constitutional object of bringing the tribals to the main stream by
providing reservation is demonstrative of the fact that these tribals had
no opportunity to undertake education. Expecting such scheduled caste
and scheduled tribes to produce school record or even birth record of the
pre-constitutional period is a dangerous approach and is grossly illegal.
The first generation tribal who has access to education only after the
independence, cannot be denied the benefits of reservation merely
because their ancestors had no access to education. We, therefore,
strongly deprecate the conduct of the Committee in insisting for a pre-
constitutional record for corroborating a tribe claim. Even same was the
case in the matter of Vaijnath s/o Janardhan Zunjkar and Yogesh s/o
Madhavrao Kakulte (supra).
11. However, incidentally, this is where the affinity test would
come into play. Though it is trite that it is not a litmus test, its efficacy
has not been out rightly discarded. It will have its own place as has been
indicated in Maharashtra Adiwasi Thakur Jamat (supra). Paragraph
No.25 of the judgment reads as under:
"AFFINITY TEST
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 & Anr. Vs. ADD1. Commr., Tribal
Development, Thane & ORS.; 1997 (5) SCC 437 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
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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."
From these observations it is evident that in an appropriate
case even affinity test will have to be resorted to.
12. If the entire favourable record produced by the petitioners is
of recent period, from the year 1979 onwards, obviously, it will have
inherent limitation in substantiating a caste or tribe claim, inasmuch as
there is every possibility of such entries having been made objectively to
derive the benefit. Therefore, although merely because this is a post
independent record it cannot be out-rightly rejected, application of
affinity test would become imperative. We, therefore, are of a firm view
that no fault can be found with respondent No.2 - Scrutiny Committee in
applying the affinity test.
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13. Though by virtue of Amendment Act, 1976 and in the light
of Palaghat Jila Thandan Samuday Sanrakshan Samiti and Anr. Vs. State
of Kerala and Anr.; (1994) 1 SCC 359, the area restriction having been
removed, no inference can be deduced by referring to and deciding the
claims on the touch stone of the actual place of residence of a claimant
and the original place of the tribe or the caste cannot be resorted to,
similar is not the case in respect of the affinity test in light of the
observations in Maharashtra Adiwasi Thakur Jamat (supra).
14. As per the vigilance inquiry report and particularly the
endorsement of the research officer in the context of responses given by
the petitioners to various traits and characteristics peculiar to 'Koli
Mahadev' scheduled tribe, the petitioners could not succeed.
15. Even in their reply to the Vigilance Cell Report they have not
taken any exception to such observation and conclusion of the research
officer much less, on any specific point with reference to a particular trait
or characteristics. No fault, therefore, can be found even in the
conclusion of the scrutiny committee in the impugned order in observing
that the petitioners' family does not follow and fit in the specific traits
and characteristics of 'Koli Mahadev' scheduled tribe.
16. Consequently, as laid down in the matter of Maharashtra
Adiwasi Thakur Jamat (supra) when the favourable record produced by
the petitioners, was not being accepted by the Committee readily for the
acceptable reason that this record was of recent origin and had applied
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the affinity test to ascertain whether the petitioners are able to withstand
and demonstrate the specific anthropological and ethnological traits
which are peculiar to 'Koli Mahadev' scheduled tribe, the decision of the
Committee in refusing to validate their 'Koli Mahadev' certificates cannot
be said to be perverse or arbitrary.
17. It is important to note that even in the matter of Vaijnath s/o
Janardhan Zunjkar and Yogesh s/o Madhavrao Kakulte (supra), while
holding that the caste or tribe claims cannot be discarded on the ground
of inability of the claimants to produce pre-constitutional record, in both
these matters, the claimants therein on application of affinity test were
found to be belonging to 'Koli Mahadev' scheduled tribe. For the sake of
convenience, we reproduce relevant paragraphs from both these
judgments:
Paragraph No.12 of Vaijnath s/o Janardhan Zunjkar (supra)
reads as under :
"12. Observations of the Committee in Para No. 7 of the impugned
order are that, "on going through the statements recorded by
the Vigilance Officer, the Committee observed that the
applicant does not have even the basic knowledge of traits,
characteristics and customs, culture etc. of "Koli Mahadeo"
Scheduled Tribe community. It can thus be seen that approach
to the affinity test is perfunctory. In this view of the matter
original record was called. We have scrutinised the answers
given by the petitioner in the questionnaire. The petitioner
has correctly answered most of the questions in respect of
peculiar traits and characteristics of his tribe. According to the
learned counsel for respondent No. 1 the petitioner could not
correctly answer some of the questions including questions
relating to the place of residence of the members of the tribe.
Therefore, no exception can be taken to the observations of
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the Committee that he does not have knowledge about the
traits and characteristics of the Tribe. From the questionnaire,
it can be seen that the petitioner has knowledge about the
petitioner's traits characteristics and customs. Thus, the
contention of learned counsel for respondent No.1 cannot be
sustained."
Paragraph No.11 Yogesh s/o Madhavrao Kakulte (supra)
reads as under :
"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."
18. A bare look at these observations would substantiate our
conclusions regarding efficacy of the affinity test. True it is, in the matter
of Vishal s/o Bhagwanrao Chandel Vs. The State of Maharashtra and
Ors.; (W.P. No.10389/2016) dated 17.01.2017 the petitioner was held to
be entitled to a certificate of validity in the absence of even a single
contrary evidence and in the absence of any allegations regarding
manipulation in the favourable record. However, conspicuously, contrary
to what has been laid down in the matter of Maharashtra Adiwasi Thakur
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Jamat (supra) the affinity test was not even considered or applied.
Therefore, the petitioners cannot be extended the benefit of the decision
in the matter of Vishal Bhagwanrao Chandel.
19. True it is that the petitioners precisely seek to question the
observation of the Committee with reference to the individuals from the
same village possessing certificates of validity of 'Koli Mahadev' by
producing the details, by way of affidavit and even the fact has been
expressly admitted in the affidavit-in-reply filed on behalf of the
respondents. Therefore, irrespective of the stand of the respondent -
Committee now as mentioned in the affidavit-in-reply of its intention to
revisit these validities by undertaking fresh inquiries, this would only
demonstrate that the Committee in the impugned judgment and order
has erred in emphasizing on the reply given by the petitioners in the
vigilance inquiry. However, such isolated circumstance would not be
sufficient to discard the conclusion of the research officer accepted by the
committee on the other aspects of the affinity test, on several other
parameters like dialect, Gods, festivals, form of marriage, occupation and
last rites etc. which replies were found to be incompatible with the
petitioners' claim.
20. In the result, the observations and conclusion of the
committee in refusing to validate petitioners 'Koli Mahadev' scheduled
tribe certificates cannot be said to be perverse, arbitrary and capricious.
The conclusions are based on plausible appreciation of all the attending
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circumstances and evidence. There is no merit in the petition.
21. The writ petition is dismissed. Rule is discharged.
[ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ]
JUDGE JUDGE
habeeb
