Bombay High Court
Prakash Shivram Nikum And Others vs The State Of Maharashtra And Others on 19 January, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:1125-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.13605 OF 2019
1. Prakash s/o Shivram Nikumbh,
Age- 43 years, Occ. Agriculture,
R/o Shewade, Tq. Sindkheda,
Dist. Dhule.
2. Kum. Manasvi d/o Prakash Nikumbh
Age-Minor, Occ. Student,
Through her natural Guardian father i.e.,
Petitioner no.1-Prakash s/o Shivram Nikumbh,
Age- 43 years, Occ. Agriculture,
R/o Shewade, Tq. Sindkheda, Dist. Dhule.
3. Kum. Divya d/o Prakash Nikumbh
Age-Minor, Occ. Student,
Through her natural Guardian father i.e.,
Petitioner No.1-Prakash s/o Shivram Nikumbh,
Age- 43 years, Occ. Agriculture,
R/o Shewade, Tq. Sindkheda, Dist. Dhule. ..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.
3. The Sub Divisional Officer,
Shirpur Division, Shirpur.
Dist. Dhule. ..Respondents.
...
Mr. M. L. Paithane h/f Mr. M. A. Golegaonkar, Advocate for the
Petitioner.
Mr. S. K. Shirse, AGP for Respondent Nos.1 to 3.
...
CORAM : SMT. VIBHA KANKANWADI AND
S. G. CHAPALGAONKAR, JJ.
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JUDGMENT RESERVED ON :- 09th JANUARY 2024.
JUDGMENT PRONOUNCED ON :- 19th JANUARY 2024.
JUDGMENT (Per: S. G. Chapalgaonkar, J.):
-
1. Rule. Rule made returnable forthwith. With the consent of
the parties, matter is taken up for final hearing at the stage of
admission.
2. The petitioners have approached this Court under Article
226 of the Constitution of India, thereby assailing the order dated
23.07.2015 passed by respondent no.3-Sub Divisional Officer, Shirpur
rejecting the applications of the petitioners for issuance of caste
certificates, so also the order dated 21.06.2018 passed by Scheduled
Tribe Certificate Scrutiny Committee confirming the order of Sub
Divisional Officer.
3. Mr. Paithane, learned Advocate appearing for the
petitioners submits that the petitioners had submitted the proposal for
issuance of caste certificates with respondent no.3-Sub Divisional
Officer, Shirpur, who is the competent authority. The petitioners had
submitted supporting documents like school leaving certificates,
wherein caste is recorded as 'Tokre Koli', Scheduled Tribe, the caste
certificate issued in favour of petitioner no.1 as belonging to the 'Tokre
Koli', Scheduled Tribe dated 04.09.1980, the caste certificate issued by
Tahsildar, Sindkheda in favour of Shivram Nimba Nikumbh i.e. father
of petitioner no.1 and the genealogy in the form of affidavit alongwith
certificates issued by the Talathi and Sarpanch of village Shewade, Tq.
Sindkheda. All these documents clearly depict the caste status of the
petitioners as belonging to 'Tokre Koli', Scheduled Tribe. However,
respondent no.2 discarded the aforesaid evidence giving reason that the
documents are of recent past i.e. issued 1970 onwards. Similarly,
respondent no.3 entered into deeper enquiry and by referring to some
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contra entries, refused to entertain the applications of the petitioners.
The aggrieved petitioners had approached respondent no.2-Committee
in its appellate jurisdiction in terms of Section 5(2) of the Maharashtra
Act No.XXIII of 2001 (for short 'Act of 2001') challenging order of
respondent No.3. However, respondent-Committee exceeded the
appellate jurisdiction conferred under Section 5(2) of the Act of 2001
and called for the report of Vigilance Officer alongwith certain
documents and consequently rejected the Appeal relying upon report of
Vigilance Officer and documents appended thereto.
4. The learned Advocate appearing for the petitioners would
place reliance on the judgment of the Division Bench of this Court in
case of Samadhan Suryakant Akoskar Vs. State of Maharashtra
and Ors.1 to contend that once the competent authority finds that the
documents submitted by the applicant in support of his caste claim are
genuine, the caste certificate needs to be issued without entering into
deeper enquiry. The Committee in exercise of appellate powers cannot
enter into area of verification of the claim, but will have to limit its
enquiry to record prima facie conclusion as regards to the entitlement of
the claimants to receive caste certificates. The jurisdiction of the
Committee under Rule 8(2) of the Act of 2001 is different than the
jurisdiction under Section 6(2) of the Act of 2001 for considering validity
of the caste claim.
5. The learned AGP, however, supports the impugned order.
He would submit that on consideration of the petitioner's documents,
they are not found entitled for issuance of the caste certificates as
claimed. The respondent nos.2 and 3 have rightly rejected the proposal.
6. We have considered the submissions advanced on behalf of
the respective parties and also perused the documents tendered into
1 2013 (4) Bom.C.R. 457.
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service. The petitioner no.1- and his daughters-petitioner nos.2 and 3,
approached respondent no.3-Sub Divisional Officer, Shirpur for
issuance of caste certificates. They supported their claims by filing
school leaving certificate of petitioner no.1-Prakash, which records his
caste as 'Tokre Koli', Scheduled Tribe on 14.07.1981, caste certificate of
Shivram Nimba Nikumbh issued in the year 1980 by then Tahsildar
alongwith genealogy. Apparently, all these documents refer to the caste
as 'Tokre Koli', Scheduled Tribe. The Presidential order dated
06.09.1950 enlisted 'Tokre Koli' Tribe at serial no.28. Section 4 of the
Act of 2001 provides for issuance of caste certificate by the competent
authority. The respondent no.3 is designated as competent authority.
Section 4 prescribes jurisdiction and procedure to be followed by
competent Authority which reads thus:
"4. Caste Certificate to be issued by Competent
Authority:-
(1) The Competent Authority may, on an application made to it
under section 3, after satisfying itself about the genuineness of the
claim and following the procedure as prescribed, issue a Caste
Certificate within such time limit and in such form as may be
prescribed or reject the application for reasons to be recorded in
writing.
(2) A Caste Certificate issued by any perosn, officer or authority
other than the Competent Authority shall be invalid. The Caste
Certificate issued by the Competent Authority shall be valid only
subject to the verification and grant of validity certifiacte by the
Scrutiny Committee."
7. The order passed by the Competent Authority (S.D.O.) is
made appealable in terms of Section 5 before the Appellate Authority
(Caste Scrutiny Committee). The procedure is prescribed under
Maharashtra Scheduled Tribes (Regulation of Issuance and
Verification) of Certificate Rules, 2003. Clause nos.(1), (3), (4), (6), (11),
(12) and (13) of Rule 4 prescribe the procedure to be adopted by the
Competent Authority while dealing with the claim for issuance of
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Schedule Tribe Certificate. Any person who is applying in terms of Rule
3 is required to furnish the complete information in all respects
supported by the documents. The Competent Authority is then required
to verify such documents with original and on recording his satisfaction
about correctness of the information, documents and evidence furnished
by the applicant, he is bound to issue Scheduled Tribe Certificate in
Form C. However, if the Authority is not satisfied, he can reject the
application for the reasons recorded and also apprise the applicant
regarding his right to Appeal with specified Appellate Authority. The
Rule 8 deals with the powers of the Appellate Authority, who is under
obligation to examine the claim based on the documents submitted
before the Competent Authority and decide the same. The scheme
underlined under the provisions of the Rules nowhere prescribes any
vigilance or investigation at the stage of issuance of the caste certificate
either by the Competent Authority or the Appellate Authority.
8. The issue regarding the scope of the enquiry under Rules of
2000 has been considered in depth by the Division Bench of this Court
in case of Anand Dhananjay Nalawade Vs. State of Maharashtra
and Others2. It has been held that the scope of enquiry in the
application for grant of caste certificate is totally different and on
consideration of prima facie evidence, the caste certificate is required to
be granted. Further while dealing with the scope of Rule 8 regarding
procedure of Appeal, it has been observed that the Appellate Authority
is given power under Rule 8(2) of receiving evidence or calling for
additional evidence and calling for further record if such evidence is
necessary for effectively disposing of an Appeal. However, Appellate
Court shall not ignore the difference between an adjudication of caste
claim and grant of caste certificate. The determination of the validity of
a caste certificate issued under section 4(1) of the Act of 2001 requires
deeper inquiry including calling for Vigilance Cell report for recording
2 2014 (4) Mh.L.J. 77.
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satisfaction in respect of the documents produced by the applicant.
Such is not case when caste certificate is to be issued. It is apposite to
mention here that any caste certificate issued in terms of Section 4(1) of
the Act of 2001 is subject to the validity by the Caste Scrutiny
Committee. At that stage, the Caste Scrutiny Committee can order
vigilance enquiry and also subject the applicant to the affinity test.
The aforesaid legal position appears to be persistent and has been
asserted in case of Govind S/o. Sayanna Kamtamwad Vs. The State
of Maharashtra and Ors. (Writ Petition No.860/2011 dated
28.02.2011) and in case of Samadhan Suryakant Akoskar (supra).
9. Reverting back to the facts in the present case, it appears
that respondent no.3 while dealing with the claims of the petitioners for
issuance of caste certificates observed that the petitioners have
produced documents like school leaving certificate in respect of Nimba
Awaji Koli, who is grandfather of petitioner no.1. The said entry refers
to the year 1922 depicting date of birth as 1916. It is observed that the
grandfather of petitioner no.1 was resident of Taluka Sindkheda, Distict
Dhule since before 1916, which indicate that originally family of the
petitioners resides beyond specified area of 'Tokre Koli', Scheduled
Tribe. The other documents relied upon by the petitioners are post
Presidential Notification dated 06.09.1950. The respondent no.3 has
further observed that school record of Nimba Awaji Koli relied upon by
the petitioners refers his caste to be 'Malhar Koli' which is recognized as
Other Backward Class and inconsistent with the claim of the
petitioners for 'Tokre Koli', Scheduled Tribe.
10. In Appeal filed by the petitioners, Scrutiny Committee
obtained documents through Vigilance Officer regarding blood relations
of the petitioners for pre-Constitutional period depicting caste entries as
'Koli', 'Malhar Koli', 'Suryawanshi Koli' and 'Hindu Koli'. The school
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record of petitioner no.1-Prakash itself shows his caste entered as
'Hindu Koli' in the year 1981. The entry regarding paternal cousin
grandfather of the year 1916 shows caste as 'Koli'. The entry regarding
grandfather of petitioner no.1 in the year 1922 refers caste as 'Malhar
Koli'. The entry of father of petitioner no.1 recorded in the year 1945
shows caste as 'Suryawanshi Koli'. All aforesaid castes are included as
Special Backward Category. Previously they were categorized as Other
Backward Category.
11. We have given anxious consideration to the aforesaid
observations of the Committee as well as reasoning adopted by
respondent no.3-Sub Divisional Officer. We find that except oldest
record of 1922 in respect of Nimba Awaji Koli, no other pre
constitutional document was before respondent no.3-Competent
Authority indicating contra entry. The Competent Authority relied on
same being pre-Constitutional and oldest one. The subsequent entries
in the school record of the petitioners have been discarded on the basis
of oldest record that was placed into service.
12. It is apparent that even on prima facie consideration of the
aforesaid record, which is not disputed by the petitioners, it can be
inferred that the grandfather's caste was shown as 'Malhar Koli' in the
year 1922.
13. Although we find that the Scrutiny Committee has exceeded
his appellate jurisdiction and called for the report of the Vigilance
Officer and entered into unwarranted deeper inquiry as regards to the
caste of the petitioners at the level of issuance of caste certificates, even
on consideration of the record that was placed into service by the
petitioners themselves before the Competent Authority, it can be
concluded that the petitioners could not support their caste claims as
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'Tokre Koli', Scheduled Tribe. Particularly, when entry regarding
grandfather of petitioner no.1 in the year 1922 refers caste as 'Malhar
Koli'
14. For the aforesaid reasons, we find that there is no merit in
the Writ Petition, hence, dismissed.
15. Rule is discharged.
(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI)
JUDGE JUDGE
Devendra/January-2024
