Roshan Dabi S/O Shri Anil Dabi ... vs The State Of Madhya Pradesh
2023 Latest Caselaw 3610 MP

                                                             1
                           IN     THE        HIGH COURT OF MADHYA PRADESH
                                                   AT INDORE
                                                       BEFORE
                                         HON'BLE SHRI JUSTICE PRANAY VERMA
                                                 ON THE 1 st OF MARCH, 2023
                                               WRIT PETITION No. 4730 of 2023

                          BETWEEN:-
                          ROSHAN DABI S/O SHRI ANIL DABI (MINOR) THROUGH
                          GUARDIAN   FATHER     ANIL    DABI   S/O   SHRI
                          SARDARSINGH     DABI R/O GRAM KOND TEHSIL
                          BADNAWAR DISTT. DHAR (MADHYA PRADESH)

                                                                                          .....PETITIONER
                          (BY SHRI ASHISH JOSHI - ADVOCATE)

                          AND
                          1.    THE STATE OF MADHYA PRADESH PRINCIPAL
                                SECRETARY VALLABH    BHAWAN,  BHOPAL
                                (MADHYA PRADESH)

                          2.    SHRIMAN COLLECTOR MAHODAY COLLECTOR
                                OFFICE COLLECTOR OFFICE DHAR (MADHYA
                                PRADESH)

                          3.    SHRIMAN ANUVIBHAGIYA ADHIKARI (REVENUE)
                                BADANAWAR, DIST. DHAR (MADHYA PRADESH)

                                                                                       .....RESPONDENTS
                          ( BY SHRI AMAY BAJAJ - PANEL LAWYER)

                                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 aggrieved by order dated 07.01.2020 (Annexure - P/1) by which the Sub Divisional Officer, Revenue, Badnawar, District Dhar, respondent No.3, has refused to issue Caste Certificate in favour of the petitioner by treating him to

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be belonging to Schedule Tribe and also by order dated 01.02.2020 (Annexure P/2) 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 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 Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 02-Mar-23 11:18:49 AM

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 Krashnapalsingh 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.

4. A reply was filed by the State Government to the writ petition and it 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

Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 02-Mar-23 11:18:49 AM

Pradesh  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 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 Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 02-Mar-23 11:18:49 AM

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 Tarana District 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 (See Section 20) AMENDMENT OF THE CONSTITUTION (SCHEDULED TRIBES), ORDER, 1950 In the constitution (Schedule Tribes) Order,1950-

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(a) In paragraph 2, for the figures ÂÂ​ the figures XIX 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 Matia, Bhatola, Bhimma, Bhata, Koilalashuta, Koliabhuti, Bhar, Bisonhorn maria, Chota Mrai, Dandami Maria, Dhuru, Dhurwam Dhoba, Dhulia, Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 02-Mar-23 11:18:49 AM

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 :-

Âœvkfne tkfr vuqla/kku ,oa fodkl laLFkku] e-iz- 'kklu 35] ';keyk fgYl] Hkksiky e0iz0 462002

[email protected]&[email protected]&[email protected]@9291 Hkksiky fnukad [email protected]@02

izfr] vuqfoHkkxh; vf/kdkjh] jktLo rjkuk] ftyk mTtSu fo"k;%& eksfx;k tkfr dk vuqlkafxd vuqla/kku dj tkWap djus ds laca/k eas A lanHkZ%& vkidk i= dzekad] D;[email protected]@[email protected] fnukad 26-10-07 d`i;k lanfHkZr i= dk voyksdu djsa A izdj.k ds lEcU/k eas mYys[k gS fd eksfx;k tkfr ds izdj.k ij laLFkku Lrj ls vusdksa [email protected]@vfHker 'kklu dks Hkstk tk pqdk gS A vuqlwfpr tutkfr lwph ds dzekad

Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 02-Mar-23 11:18:49 AM

16 ij xksaM tutkfr ds lkFk **eksfx;k** vafdr gS] ftls fufoZokn :i ls vuqlwfpr tutkfr izek.k i= ikus dh ik=rk gS A vuqlwfpr tkfr dh lwph eas dzekad 39 ij **eksf?k;k** tkfr vafdr gS] ftls vuqlwfpr tkfr dk izek.k i= ikus dh ik=rk gS A bl izdkj e-iz- eas nks rjg ds eksfx;[email protected]?k;k leqnk; fuokljr gS A ftUgsa fu;ekuqlkj ;FkkfLFkfr vuqlkj tkfr izek.k i= o vU; ykHk ikus dh ik=rk gS A izdj.k 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 fd;k tk pqdk gS A v/;;u izfrosnu le;¢ ij izdj.k ds lanHkZ esa 'kklu dks Hkstk tk pqdk gS ftleas eksfx;k ‚¼vuqlwfpr tutkfrý rFkk eksf?k;k ¼vuqlwfpr tkfr½ dh fLFkfr Li"V dh xbZ gS A vr% eksfx;k vuqlwfpr tutkfr ,oa eksf?k;k vuqlwfpr tkfr ds lEcU/k eas dksbZ lansg u gksus ds dkj.k laLFkku }kjk iqu% vuqla/kku djus dh vko';drk izrhr ugha gksrh gS A v/;;u ds fu"d"kZ layXu izf"kr A

lapkyd] vkfne tkfr vuqla/kku ,oa fodkl laLFkku] Hkksiky A

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. A detailed and exhaustive enquiry took place in the matter and the revenue Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 02-Mar-23 11:18:49 AM

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 the case may be. He should also examine the school records, birth registration, if any.

Signature Not Verified He should also examine the parent, guardian or the candidate in relation to their Signed by: RASHMI PRASHANT Signing time: 02-Mar-23 11:18:49 AM

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:

(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 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 Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 02-Mar-23 11:18:49 AM

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 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 Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 02-Mar-23 11:18:49 AM

by any particular order passed against him, he may move the appropriate authority.

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 07.01.2020 (Annexure P/1) and 01.02.2020 (Annexure P/2) 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.4730/2023 stand allowed.

Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 02-Mar-23 11:18:49 AM

(PRANAY VERMA) JUDGE rashmi

Signature Not Verified Signed by: RASHMI PRASHANT Signing time: 02-Mar-23 11:18:49 AM