Madhya Pradesh High Court
Kushal Dabi vs General Administration ... on 16 February, 2023
Author: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 16 th OF FEBRUARY, 2023
WRIT PETITION No. 18964 of 2019
BETWEEN:-
KUSHAL DABI S/O SHRI RAMESH CHANDRA DABI,
AGED ABOUT 21 YEARS, OCCUPATION: STUDENT
NAYAGAON, KOD, TEHSIL BADNAWAR (MADHYA
PRADESH)
.....PETITIONER
(MS NEERJA PATNE - ADVOCATE)
AND
1. GENERAL ADMINISTRATION DEPARTMENT
PRINCIPAL SECRETARY VALLABH BHAWAN
MANTRALAYA BHOPAL (MADHYA PRADESH)
2. THE COMMISSIONER(REVENUE) REVENUE
D EPARTM EN T INDORE DIVISION , MOTI
BUNGLOW CAMPUS , INDORE (MADHYA
PRADESH)
3. THE COLLECTOR COLLECTOR DHAR DIST DHAR
(MADHYA PRADESH)
4. THE SUB DIVISIONAL OFFICER(REVENUE)
REVENUE DEPARTMENT BADNAWAR , TEHSIL
BADNAWAR , DISTRICT DHAR (MADHYA
PRADESH)
.....RESPONDENTS
This petition coming on for admission this day, th e court passed the
following:
ORDER
1. The petitioner before this Court has filed present petition being
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Signed by: RASHMI
PRASHANT
Signing time: 17-Feb-23
3:14:37 PM
aggrieved by order dated 20.08.2018 (Annexure - P/20) by which the Sub
Divisional Officer, Revenue, Badnawar, District Dhar, respondent No.4, has
refused to issue Caste Certificate in favour of the petitioner by treating him to
be belonging to Schedule Tribe and also by order dated 10.10.2018 (Annexure
P/22 ) passed by the appellate authority, who affirmed the aforesaid impugned
order.
2. The petitioner is undoubtedly a member of 'Mogia' caste and 'Mogia'
caste has been included in Scheduled Tribe Category at Entry No.16 in the
Presidential Notification issued by the State of Madhya Pradesh under the
provisions of Constitution (Scheduled Tribes) Order, 1950. The respondents in
fact are treating the petitioner as a member belonging to Scheduled Caste.
3. Shri L.C.Patne has drawn the attention of this Court towards a
judgment delivered in the case of State of M.P. & Others Vs. Dule Singh
Solanki & Others reported in 2014(1) MPHT 331 (DB). In the aforesaid case,
there was a similar controversy involved and the persons belonging to 'Mogia'
caste were not being treated as Scheduled Tribe. The Division Bench of this
Court in the aforesaid case in paragraphs No.3 to 9 has held as under:-
"3. Sole respondent Dule Singh Solanki claiming himself to be a member
of Mogia Caste, submitted an application dated 24.11.11 before the Sub
Divisional Officer, Revenue Tehsil Tarana District Ujjain for issuance of a caste
certificate. It was stated in the application that Mogia Caste has been included
as a Scheduled Tribe as per the Presidential Notification issued under the
provisions of Constitution (Schedule Tribe) Order 1950. The application of the
sole respondent was processed and a report was obtained from Patwari of the
village. The Patwari has submitted his report after due enquiry to the Naib
Tehsildar, Tarana on 18.12.11 duly certifying that the sole respondent Dule
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PRASHANT
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3:14:37 PM
Singh Solanki is a member of Mogia Tribe. It was also reflected in the Patwari's
report that based upon the pre-independence land record documents, the caste
of the sole respondent is Mogia and statement of villagers was also recorded as
well as a Panchnama was also prepared. The Naib Tehsildar forwarded the
report of the Patwari to the Sub-Divisional Officer with a recommendation for
issuing a caste certificate treating Dule Singh Solanki as a member of Scheduled
Tribe category. The Sub Divisional Officer, however has rejected the
petitioner's claim for issuance of a caste certificate of schedule tribe category
vide order dated 4.1.12. The sole respondent being aggrieved by the order
dated 4.1.12 preferred a revision petition under Section 50 of M.P. Land
Revenue Code, 1959, however the same was dismissed by the Collector,
District Ujjain and being aggrieved by the order passed by the Sub Divisional
Officer dated 4.1.12 and the order passed by the Collector dated 30th April,
2012, a writ petition preferred before this Court. A ground was raised by the
petitioner therein i.e. in WP No.9296/12 that as per Constitution (Scheduled
Tribe) Order 1950 'Mogia Caste' in the State of Madhya Pradesh at item
number 16 finds place and its a Scheduled Tribe. It was also argued that in a
similar case, the Division Bench of this Court i.e. in the case of Krashnapalsing
and Ors. Vs. State of Madhya Pradesh and Ors [WP No.6762/2007 (PIL)]
decided on 23.1.2008 has held that the Mogia is a Scheduled Tribe in the entire
State of Madhya Pradesh. It was also brought to the notice of the learned Single
Judge that all the relatives of the sole respondent Dule Singh Solanki have been
issued a caste certificate certifying them as a member of Scheduled Tribe
ÂœMogia.
4. A reply was filed by the State Government to the writ petition and it
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Signed by: RASHMI
PRASHANT
Signing time: 17-Feb-23
3:14:37 PM
was stated in the reply and based upon some studies conducted by Schedule
Tribe Research Centre, Madhya Pradesh, Mogia and Moghiya are two different
castes and Moghiya has to be treated as Scheduled Caste and not Scheduled
Tribe. It was also stated in the return that in certain districts of State of Madhya
Pradesh Mogia is a Scheduled Caste and not a Scheduled Tribe and based
upon the research conducted by the Schedule Tribe Research Centre, Madhya
Pradesh, the Sub Divisional Officer was justified in rejecting the claim. Another
document has been filed by the State Government as Annexure-R/1, wherein it
was stated that Mogia is a Scheduled Tribe and Moghiya is a Scheduled Caste
and certificate be issued accordingly. Learned Single Judge based upon the
documents on record and the undisputed fact that the sole respondent-Dule
Singh Solanki is a member of Mogia Tribe, has disposed of the writ petition by
quashing the order passed by the Sub Divisional Officer on 4.1.12 and has
directed the Sub Divisional Officer to decide the representation of the sole
respondent by passing a reasoned order.
5. Learned counsel appearing for the State Government and its
functionaries has vehemently argued before this Court that Moghiya is not
covered under the category of Scheduled Tribe and it is included in the
category of Scheduled Caste and therefore, the Sub Divisional Officer was
justified in rejecting the application of Dule Singh Solanki. The respondents
before this Court have placed heavy reliance upon the Executive Instructions
issued by the Scheduled Tribe Institute dated 26.11.2007 and the contention of
the learned counsel is that Moghiya is a Schedule Caste and Mogia is a
Schedule Tribe and therefore, persons belonging to the Moghiya cannot be
issued a caste certificate certifying them to be a member of Scheduled Tribe
category. Heavy reliance has been placed upon the research conducted by the
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Signed by: RASHMI
PRASHANT
Signing time: 17-Feb-23
3:14:37 PM
Tribal Research Institute.
6. Heard the learned learned Dy. GA and Shri L.C. Patne learned counsel
appearing on behalf of the respondents and perused the record.
7. In the present case, the sole respondent-Dule Singh Solanki has
preferred an application before the Sub Divisional Officer Revenue, Tarana for
issuance of a Scheduled Tribe (ST) Category certificate in terms of the
Constitution (Scheduled Tribes) Orders, 1950 as amended from time to time
and a case was registered as Case No.394-B-121/2011-12 by the Sub Divisional
Officer. The Sub Divisional Officer directed the Patwari, Halka No.26, Village
Makron, Tehsil TaranaDistrict Ujjain to submit a report about the residential and
social status of the sole respondent-Dule Singh Solanki. The Patwari after
recording the statement of witnesses/villagers, prepared a Panchnama dated
18.12.2011 and also verified the pre-independence land records. The Patwari
submitted a detailed and exhaustive report on 18.12.11 certifying the sole
respondent Dule Singh Solanki to be a member of Mogia Tribe. The report of
the Patwari was forwarded by the Naib Tehsildar, Tehsil Tarana District Ujjain
to the Sub Divisional Officer and the Sub Divisional Officer vide impugned
order dated 4.1.12 has rejected the claim of the sole respondent for issuance of
a Scheduled Tribe category caste certificate. A revision petition was preferred
before the Collector under Section 50 of M.P. Land Revenue Code, 1959 and
the same has also been rejected vide order dated 30.4.12. The Amendment of
the Constitution (Scheduled Tribes) Order 1950 in respect of Madhya Pradesh
includes Mogia as a Scheduled Tribe. The relevant extract of the Presidential
Order is reproduced as under :-
THE FOURTH SCHEDULE
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Signed by: RASHMI
PRASHANT
Signing time: 17-Feb-23
3:14:37 PM
(See Section 20)
AMENDMENT OF THE CONSTITUTION (SCHEDULED
TRIBES), ORDER, 1950
In the constitution (Schedule Tribes) Order,1950-
(a) In paragraph 2, for the figures the figures shall be substituted:
(b) In the Schedule:-
(i)for Part VIII, the following Part shall be substituted
,namely:-
PART VIII- MADHYA PRADESH
1. Agariya
2. Andh
3. Baiga
4. Bhaina
5. Bharia Bhumia, Bhunhar Bhumia,
Bhumiya, Bharia, Paliha, Pando
6. Bhattra
7. Bhil, Bhilala, Barcla, patelia
8. Bhil Mina
9. Bhanjia
10. Bir, Biyar
11. Binjhwar
12. Birhul,Birhor
13. Damor, Damaria
14. Dhanwar
15. Gadaba, Gadba
16. Gond, Arakh, Agaria, Asur,, Badi Maraia, Bada
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Signed by: RASHMI
PRASHANT
Signing time: 17-Feb-23
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Matia, Bhatola, Bhimma, Bhata, Koilalashuta,
Koliabhuti, Bhar, Bisonhorn maria, Chota Mrai,
Dandami Maria, Dhuru, Dhurwam Dhoba, Dhulia,
Dorla, Gaiki, Gutta, Gatti,Gaita, Gond, Gowari, Hill
Marai,Kandra, Kalanga, Khatola, Koitr,m Koya,
Khirwar,Khirwara, Kucha Maria, Kuchki Maria, Madia,
maria, Mana, Mannewar, Moghya, Mogia, Monghya,
Mudoia, Muria, Nagarchi, Nagwanshi, Ojha, Raj Gond,
Sonjhari Jhareka, Thatoa, Thotya, Wade Mrai, Vade
Maria, Daroi.
17. Haiba, Halbi.
8. Contention of the appellants is that Mogia is a Scheduled Caste and
therefore, the Sub Divisional Officer has rightly passed the order dated 4.1.12
rejecting the claim of Dule Singh Solanki. The appellants have placed heavy
reliance upon a document dated 26.11.2007 (Annexure-R/1) enclosed alongwith
the reply to the writ petition,which reads as under :-
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lanHkZ%& vkidk i= dzekad] D;[email protected]@[email protected] fnukad 26-10-07
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Signed by: RASHMI
PRASHANT
Signing time: 17-Feb-23
3:14:37 PM
izdj.k ij laLFkku Lrj ls vusdksa [email protected]@vfHker 'kklu dks Hkstk tk pqdk gS A
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bl izdkj e-iz- eas nks rjg ds eksfx;[email protected]?k;k leqnk; fuokljr gS A ftUgsa
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ds laca/k eas v/;;[email protected]/kku dj Li"V funsZ'k nsus ds fy;s 'kklu dks voxr djkus
dk vuqjks/k ds lEcU/k eas mYys[k gS fd bl fo"k; ij laLFkku }kjk iwoZ eas v/;;u
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dksbZ lansg u gksus ds dkj.k laLFkku }kjk iqu% vuqla/kku djus dh vko';drk
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9. This court has carefully gone through the Presidential Order as well as
the letter issued by the Scheduled Tribe Research Development Institute,
Bhopal and the aforesaid letter dated 26.11.2007 also makes it very clear that
persons belong to Mogia are members of Scheduled Tribe as in Presidential
Order Mogia is mentioned at Sr. No.16. Heavy reliance has been placed upon
some research conducted by the Tribal Development Institute and this Court is
of the considered opinion that the research conducted by the Tribal
Development Institute will certainly not supersede the Presidential Order 1950.
Signature Not Verified
Signed by: RASHMI
PRASHANT
Signing time: 17-Feb-23
3:14:37 PM
A detailed and exhaustive enquiry took place in the matter and the revenue
authorities have arrived at a conclusion that the sole respondent is a member of
Mogia Tribe. The affinity test conducted in the matter establishes that the sole
respondent Dule Singh Solanki is a member of Mogia Tribe. A similar situation
has been dealt with in the case of Anand Vs. Committee for Scrutiny and
Verification of Tribes Claims and Ors., (2012) 1 SCC (L&S) 43 and the Apex
Court in paragraphs 20 to 26 has held under under :-
20. The rules further stipulate that the Vigilance Officer shall personally
verify and collect all the facts about the social status claimed by the applicant or
his parents or guardians, as the case may be. He is also required to examine the
parents or the guardians or the applicant for the purpose of verification of their
tribe. It is evident that the scope of enquiry by the Vigilance Officer is broad-
based and is not confined only to the verification of documents filed by the
applicant with the application or the disclosures made therein. Obviously, the
enquiry, supposed to be conducted by the Vigilance Officer, would include the
affinity test of the applicant to a particular tribe to which he claims to belong. In
other words, an enquiry into the kinship and affinity of the applicant to a
particular Scheduled Tribe is not alien to the scheme of the Act and the Rules.
In fact, it is relevant and germane to the determination of social status of an
applicant.
21. We are of the view that for the purpose of examining the caste claim
under the Rules, the following observations of this Court in Kumari Madhuri
Patil (supra), still hold the field:-
"13....The vigilance officer should personally verify and collect all the
facts of the social status claimed by the candidate or the parent or guardian, as
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the case may be. He should also examine the school records, birth registration,
Signed by: RASHMI
PRASHANT
Signing time: 17-Feb-23
3:14:37 PM
if any. He should also examine the parent, guardian or the candidate in relation
to their caste etc. or such other persons who have knowledge of the social
status of the candidate and then submit a report to the Directorate together with
all particulars as envisaged in the pro forma, in particular, of the Scheduled
Tribes relating to their peculiar anthropological and ethnological traits, deity,
rituals,customs, mode of marriage, death ceremonies, method of burial
of dead bodies etc. by the castes or tribes or tribal communities concerned
etc."
22. It is manifest from the afore-extracted paragraph that the genuineness
of a caste claim has to be considered not only on a thorough examination of the
documents submitted in support of the claim but also on the affinity test, which
would include the anthropological and ethnological traits etc., of the applicant.
However, it is neither feasible nor desirable to lay down an absolute rule,
which could be applied mechanically to examine a caste claim. Nevertheless, we
feel that the following broad parameters could be kept in view while dealing with
a caste claim:
œ(i) While dealing with documentary evidence, greater reliance may be
placed on pre- Independence documents because they furnis 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
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PRASHANT
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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 alitmus 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.
23. Needless to add that the burden of proving the caste claim is upon
the applicant. He has to produce all the requisite documents in support of his
claim. The Caste Scrutiny Committee merely performs the role of verification of
the claim and therefore, can only scrutinise the documents and material
produced by the applicant. In case, the material produced by the applicant does
not prove his claim, the Committee cannot gather evidence on its own to prove
or disprove his claim.
24. Having examined the present case on the touchstone of the aforesaid
broad parameters, we are of the opinion that the claim of the appellant has not
been examined properly. We feel that the documentary evidence produced by
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PRASHANT
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3:14:37 PM
the appellant in support of his claim had been lightly brushed aside by the
Vigilance Officer as also by the Caste Scrutiny Committee. In so far as the High
Court is concerned, it has rejected the claim solely on the basis of the affinity
test. It is pertinent to note that some of these documents date back to the pre-
Independence era, issued to appellant's grandfather and thus, hold great
probative value as there can be no reason for suppression of facts to claim a
non-existent benefit to the `Halbi' Scheduled Tribe at that point of time.
25. From the documents produced by the appellant, it appears that his
near paternal relatives had been regarded as belonging to the `Halbi' Scheduled
Tribe. The Vigilance Officer's report does not indicate that the documents
produced by the appellant in support of his claim are false. It merely refers to
the comments made by the Head Master with reference to the school records of
appellant's father's maternal brother and his aunt, which had been alleged to be
tampered with, to change the entry from Koshti Halba to Halba and nothing
more.Neither the Head Master was examined, nor any further enquiry
was conducted to verify the veracity of Head Master's statement. It is of some
importance to note at this juncture that in similar cases, involving appellant's
first cousin and his paternal uncle, the High Court, while observing non-
application of mind by the Caste Scrutiny Committee, had decided a similar
claim in their favour
26. We are convinced that the documentary evidence produced by the
appellant was not examined and appreciated in its proper perspective and the
High Court laid undue stress on the affinity test. Thus, the decision of the Caste
Scrutiny Committee to cancel and confiscate the caste certificate as well as the
decision of the High Court, affirming the said decision is untenable. We are,
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Signed by: RASHMI
PRASHANT
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therefore, of the opinion that the claim of the appellant deserves to be re-
examined by the Caste Scrutiny Committee. For the view we have taken on
facts in hand, we deem it unnecessary to refer to the decisions cited at the bar.
10. In the present case, keeping in view the judgment delivered by the
apex court, the revenue authorities have verified the genuineness of the caste
claim on the basis of documents and affinity test, and the claim has been turned
down in a mechanical manner by the Sub Divisional Officer based upon some
research conducted by the Tribal Development Institute and therefore, in light
of the judgment delivered
by the Apex Court as the revenue authorities have held that the petitioner is a
member of Mogia Tribe, this Court does not find any reason to interfere with
the order passed by the learned Single Judge. Not only this, a similar situation
arose earlier also and the caste certificates were being denied to the member of
Mogia Tribe certifying
them to be a member of Scheduled Tribe. A circular was issued by the
Naib Tehsildar, Rajgarh on 9.8.2007 stating therein that Mogia Community
should be treated as Scheduled Caste and not as Scheduled
Tribe. The Division Bench of this Court vide order dated 23.1.2008 has
disposed of the writ petition by holding that Mogia Community in the
State of Madhya Pradesh will be treated as Scheduled Tribe. The order
passed by the Division Bench of this Court on 23.1.2008 in the case of
Krishanpal Singh & Ors. Vs. State of M.P. & Ors. {WP No.6762/2007 (PIL)}
reads as under :-
The petitioner who claims to be member of Mogia community has filed
this writ petition as a Public Interest Litigation contending that by the
Constitution( Scheduled Tribes ) Order, 1950, Mogia community has been
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PRASHANT
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3:14:37 PM
included in the entry '16' of the list relating to Madhya Pradesh as a Scheduled
Tribe but by a circular dated 09.08.2007 issued by the Naib Tahsiladar,
Pachore, District Rajgarh, all concerned authorities under him have been
informed that 'Mogia' community has been treated as a Schedule Caste and not
a Scheduled Tribe. The petitioner has accordingly prayed that the said circular
dated 09.08.2007 issued by the Naib Tahsiladar, Pachore, District, Rajgarh be
quashed.
We find that the in the Constitution ( Scheduled Castes) Order, 1950, as
amended, in the list relating to Madhya Pradesh, in entry '39' the community
'Moghia' has been included as a Schedule Cast and it is perhaps for this reason
that the Naib Tahsildar, Pachore has issued the circular dated 09.08.2007 saying
that 'Mogia' community should be treated as Scheduled Caste and not
Scheduled Tribe. But the circular has led to some confusion because of the fact
that while 'Mogia' community has been included as Scheduled Tribe in the list
of Madhya Pradesh appended to Constitution( Scheduled Tribes) Order, 1950,
the community 'Moghia' has been included as a Scheduled Cast in the list
relating to Madhya Pradesh appended to Constitution (Scheduled Castes)
Order, 1950.
We dispose of this writ petition with a direction that the Naib Tahsiladar,
Pachore, District, Rajgarh will clarify that it is the 'Moghia' community in
Madhya Pradesh which will be treated as Scheduled Caste, whereas the 'Mogia'
community in Madhya Pradesh will be treated as Scheduled Tribe.
With the aforesaid direction, the writ petition is disposed of. If the
petitioner is aggrieved by any particular order passed against him, he may move
the appropriate authority.
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Signed by: RASHMI
PRASHANT
Signing time: 17-Feb-23
3:14:37 PM
"11. The aforesaid order of the Division Bench has been passed after
dealing with the Constitution (Scheduled Tribes) Order, 1950 and
it has held that Mogia community be treated as Scheduled Tribe and therefore,
once it has been established that that petitioner is a member of Mogia
community and is a resident of Madhya Pradesh, he has to be treated as a
Scheduled Tribe and not as a Scheduled Caste, and therefore, this Court is of
the considered opinion that no illegality/irregularity or legal infirmity is in
existence in the order passed by the learned Single Judge dated 24.7.13, hence,
the writ appeal preferred by the appellants (State of Madhya Pradesh) being
devoid of merits and substance, is accordingly dismissed.
9. The other connected writ appeal i.e. WA No. and WA No. is
also dismissed."
4. In the aforesaid, the Division Bench has held that the persons
belonging to 'Mogia' caste are to be treated as Scheduled Tribe in light
of Entry No.16 of the Presidential order, 1950. There is no geographical
limitation in respect of Entry No.16.
5. In light of the aforesaid, impugned orders passed by the respondents
dated 20.08.2018 (Annexure P/20) and 10.10.2018 (Annexure P/22) are hereby
quashed and the respondents are directed to issue a proper caste certificate to
the petitioner in light of the judgment delivered by the Division Bench. The
exercise of issuing proper caste certificate be concluded within a period of three
months from the date of receipt of certified copy of this order.
6. With the aforesaid, Writ Petition No.18964 of 2019 stand allowed.
Certified Copy as per rules.
Signature Not Verified
Signed by: RASHMI
PRASHANT
Signing time: 17-Feb-23
3:14:37 PM
(PRANAY VERMA)
JUDGE
rashmi
Signature Not Verified
Signed by: RASHMI
PRASHANT
Signing time: 17-Feb-23
3:14:37 PM
