Madhya Pradesh High Court
Apurva Kumbhare vs The State Of Madhya Pradesh on 21 December, 2023
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 21ST OF DECEMBER, 2023
WRIT PETITION NO. 6039 OF 2023
BETWEEN:-
APURVA KUMBHARE, D/O SHRI YASHWANT RAO
KUMBHARE, AGED ABOUT 26 YEARS,
OCCUPATION NIL, R/O 1078, HOUSE NO. 704,
JAGDAMBA COLONY, MAHARAJA AGRASEN
WARD NO. 35, JABALPUR (M.P.).
. .....PETITIONER
(BY SHRI D.K. DIXIT - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH, THROUGH
THE SECRETARY, DEPARTMENT OF SC, ST
& OBC WELFARE, MANTRALAYA, BHOPAL.
2. COMMISSIONER, TRIBAL DEVELOPMENT,
GOVERNMENT OF MADHYA PRADESH,
BHOPAL.
3. COMMISSIONER (REVENUE) JABALPUR
DIVISION, JABALPUR.
4. COLLECTOR, BALAGHAT (M.P.).
5. SUB DIVISIONAL OFFICER (REVENUE)
WARASEONI, TAHSIL - WARASEONI,
DISTRICT BALAGHAT (M.P.).
.....RESPONDENTS
(BY SHRI B.K. UPADHYAY - DEPUTY GOVERNMENT ADVOCATE )
................................................................................................................................................
2
This petition coming on for admission this day, the Court passed
the following:
ORDER
Pleadings are complete.
Looking to the facts and circumstances of the case, the matter can
be decided finally as counsel for the parties are also agree to argue it
finally. Accordingly, heard finally.
2. In this petition, the petitioner has impugned the order dated
02.02.2021 (Annexure P/3) passed by the Sub Divisional Officer,
Varaseoni, District Balaghat whereby the application submitted by the
petitioner for issuance of digital caste certificate of 'Halbi' caste has
been rejected.
3. Learned counsel for the petitioner submits that in pursuance to the
circular issued by the State Government on 13.08.2018 (Annexure P/1)
the petitioner has applied for getting digital caste certificate as she had a
caste certificate of 'Halbi', which comes within the category of
Scheduled Tribe. The certificate is also available on record showing that
the same got issued in favour of the petitioner on 06.01.2005. He also
submits that not only the petitioner but her father, brother and sister had
also the same type of certificate certifying them to be of 'Halbi' caste,
which comes under the category of Scheduled Tribe. He further submits
that when the petitioner applied for digital caste certificate, the
respondents started enquiry about the correctness of the said certificate
and thereafter the Sub Divisional Officer vide order dated 02.02.2021
(Annexure P/3) rejected the application of the petitioner. This order was
further assailed by the petitioner before the Collector and the Collector
vide order dated 10.12.2021 (Annexure P/6) affirmed the order of Sub
Divisional Officer. Thereafter, an appeal was preferred before the
Commissioner and Commissioner in its order dated 10.01.2023
(Annexure P/8) also affirmed the order of Sub Divisional Officer and
the Collector. Hence, this petition.
4. Learned counsel for the petitioner submits that all the orders of
authorities are liable to be set aside because as per the circular issued by
the State Government, the authorities had no right to make any enquiry
or scrutiny of the said caste certificate to ascertain the correctness of the
said certificate. The circular itself provides that there is no requirement
of special scrutiny because certificate against which the digital
certificate is sought had already been issued after making enquiry and
complete scrutiny. Clause-5 of the circular dated 13.08.2018 reads as
under:
"5. dafMdk&3 ,oa 4 esa of.kZr tkfr izek.k i«k tkjh
djus esa inkfHkfgr vf/kdkjh dks fo'ks"k Nku&chu djus
dh vko';drk ugha gksxh D;kasfd iwoZ esa vkosnd ds ,oa
mlds ifjokj ds laca/k esa ,d ckj Nku&chu dj tkfr
,oa fuokl dh iqf"V dh tk pqdh gSA blfy;s bu tkfr
izek.k i«kksa dks tYnh tkjh fd;k tk ldrk gSA"
5. Learned counsel for the petitioner submits that in view of the
provision of aforesaid clause, the enquiry or scrutiny done by the Sub
Divisional Officer to ascertain the correctness of the caste certificate is
not justifiable. He has also submitted that even otherwise once the caste
certificate has been issued by the authority, that cannot be cancelled by
the same authority because it is the prerogative of the State Level Caste
Scrutiny Committee to ascertain whether that caste certificate is genuine
or not. He submits that under such a circumstance, the impugned orders
are liable to be set aside.
6. Per contra, learned counsel for the respondents has opposed the
submission made by the learned counsel for the petitioner and relied
upon the reply submitted by the respondents and submitted that in view
of the reasoning given by the authority while rejecting the application of
the petitioner, it is clear that the petitioner does not belong to 'Halbi'
community and her certificate is not proper and therefore, the authority
has not done anything wrong in not issuing the digital caste certificate in
favour of the petitioner. He has further submitted that no prejudice is
caused to the petitioner if the authority demanded the relevant
documents to ascertain whether petitioner belongs to a particular
community or a community for which caste certificate has been issued
in his favour. Therefore, he submits that the petition is without any
substance and the action of the authority in not issuing the digital caste
certificate or holding that the petitioner does not belong to Halbi
community does not suffer from any irregularity. The petition is without
any substance and deserves to be dismissed.
7. Rejoinder has also been filed by the petitioner reiterating the same
averments which have been made in the petition and in addition to that it
is also mentioned that the petitioner has produced the documents
showing as to how the caste certificate earlier issued in her favour.
Counsel has also submitted that even otherwise the petitioner is entitled
to get digital caste certificate of 'Halbi' community as after getting
complete scrutiny done, the caste certificate had already been issued to
the petitioner that too on the basis of documents submitted by her for the
period relating to pre-independence i.e. of 1902 and 1935. He has also
placed reliance upon a judgment of Supreme Court rendered in the case
of Anand vs. Committee for Scrutiny & Verification of Tribe Claim
& others - Civil Appeal No. 6340/2004 decided on 08.11.2011.
8. Considering the rival submission made by the learned counsel for
the parties and after perusal of record, I am also of the opinion that the
claim of the petitioner before the respondents was very limited that too
on the basis of circular issued by the State Government on 13 th August,
2018 (Annexure P/1) for converting the caste certificate into digital
caste certificate. Clause 5 of the circular, which has already been quoted
hereinabove, provides very limited power to the authority and there is a
rider that the authority will not make any special enquiry to ascertain the
correctness of the certificate. Despite that, the authorities entered into
the field, which was not open for them, and made special enquiry re-
scrutinizing the documents and other material relating to the petitioner
and finally observed that the petitioner does not belong to 'Halbi'
community and the caste certificate which has already been issued and
in possession of the petitioner was not correct. I find that this part of the
authority is nothing but a colourable exercise of power. The authority
has exceeded its jurisdiction and given erroneous finding, which is not
sustainable in the eyes of law in the light of the judgment of the
Supreme Court, on which learned counsel for the petitioner has placed
reliance, rendered in the case of Anand (supra) in which the Court
observed as under:-
"(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;
(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,
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 tribes' 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."
9. Thus in view of the aforesaid, in my opinion, the orders of the
authorities, which are impugned in this petition, are liable to be and are
hereby set aside for the reason that the authorities have exceeded their
jurisdiction and acted contrary to the provisions of circular dated
13.08.2018 (Annexure P/1). Petition is accordingly allowed directing
respondents to issue digital caste certificate in pursuance to the
certificate and is in possession of the petitioner issued by the competent
authority. The aforesaid exercise be completed within 60 days from the
date of submitting copy of the order. However, looking to the facts and
circumstances of the case, there shall be no order as to costs.
(SANJAY DWIVEDI)
JUDGE
Raghvendra
RAGHVENDRA
SHARAN
SHUKLA
2023.12.22
19:21:29 +05'30'
