Bombay High Court
Adivasi Samaj Kruti Samitee Thr Its ... vs State Of Maharashtra Thr Chief ... on 12 April, 2023
Bench: G.S. Patel, Neela Gokhale
903-ASWP-4919-2017+.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4919 OF 2017
WITH
CIVIL APPLICATION NO. 865 OF 2019
WITH
CIVIL APPLICATION NO. 812 OF 2019
WITH
CIVIL APPLICATION NO. 864 OF 2019
IN
WRIT PETITION NO. 4919 OF 2017
WITH
REVIEW PETITION (ST) NO. 2211 OF 2023
IN
WRIT PETITION NO. 4919 OF 2017
Maharani Ahilyadevi Samaj Prabodhan Manch ...Petitioners
Maharashtra Rajya & Ors
Versus
The Union of India & Ors ...Respondents
WITH
WRIT PETITION NO. 1694 OF 2018
WITH
CIVIL APPLICATION NO. 886 OF 2019
IN
WRIT PETITION NO. 1694 OF 2018
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Ishwar Bapurao Thombare-Dhangar ...Petitioner
Versus
The Union of India through its Secretary, ...Respondents
Ministry of Tribal Affairs & Ors
WITH
WRIT PETITION NO. 1699 OF 2018
WITH
CIVIL APPLICATION NO. 867 OF 2019
IN
WRIT PETITION NO. 1699 OF 2018
Purushottam Madhukarrao Dakhole ...Petitioner
Versus
The Union of India through its Secretary, India ...Respondents
Ministry of Tribal Affairs & Ors
WITH
WRIT PETITION NO. 3945 OF 2023
Tribal Rights Protection Committee, Maharashtra ...Petitioner
State Through its Secretary Suhas Vehya Naik
Versus
State of Maharashtra Through Chief Secretary & ...Respondents
Ors
WITH
WRIT PETITION NO. 2239 OF 2023
Adivasi Samaj Kruti Samitee Through its ...Petitioner
Secretary & Ors
Versus
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State of Maharashtra Through Chief Secretary & ...Respondents
Ors
WITH
PUBLIC INTEREST LITIGATION NO. 135 OF 2018
WITH
CIVIL APPLICATION NO. 31 OF 2019
IN
PUBLIC INTEREST LITIGATION NO. 135 OF 2018
Hemant B Patil, National President, Bharat ...Petitioner
Against Corruption
Versus
State of Maharashtra Through GP High Court & ...Respondents
Ors
WITH
WRIT PETITION NO. 5356 OF 2023
(Not on board. Transferred from Nagpur Bench)
Aditya S/o Dayanand Dhore ...Petitioner
Versus
Union of India & Ors ...Respondents
WITH
WRIT PETITION NO. 5357 OF 2023
(Not on board. Transferred from Nagpur Bench)
Rushiraj S/o Govindrao Taske ...Petitioner
Versus
Union of India & Ors ...Respondents
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903-ASWP-4919-2017+.DOC
Mr Darius Khambata, Senior Advocate (appeared online), Dr
Abhinav Chandrachud, with Kavisha Shah, Datta Mane, Minal
Pawar, Hamza Lakhani, Hrutvik Patil & Mehali Mehta, i/b
India Law Alliance, for the Petitioner in WP/4919/2017.
Mr Nitin V Gangal, with Ravindra K Adsure, Sidheshwar Namdev
Biradar, Yash Prashant Sonavane, Goval K Padvi, Bhagatsingh
Padvi & Dinesh Shinde, for Petitioner in WP/3945/2023 and
WPST/21389/2014 and for Applicant in CA/865/2019,
CA/866/2019, CA/867/2019 and CA/31/2019.
Mr AA Kumbhakoni, Senior Advocate, with PP Kakade, GP,
Akshay Shinde, 'B' Panel Counsel & BV Samant, AGP, for the
Respondent-State.
Dr Uday Warunjikar, with Siddhesh Pilankar & Sumit Kate, for the
Applicant/ Intervenor in CAW/864/2019 & for Petitioner in
WP/2239/2023.
Ms Sonal Sontakke, i/b GK Sontakke for Petitioner in PIL/135/2018.
Mr Ram Apte, Senior Advocate, with Gargi Warunjikar, for
Intervenor in CA/812/2019.
Mr Anil Singh, Additional Solicitor General, with Sandesh Patil,
Savita Ganoo, Aditya Thakkar, DP Singh, Smita Thakur,
Abhishek Bhadang & Darshita Rai, for Respondent No. 1-Union
of India in all matters.
Mr Amit A Karande, with Abhiman Patil, i/b Prashant Kokane, for
the Petitioners in WP/5356/2023 & WP/5357/2023.
CORAM G.S. Patel &
Neela Gokhale, JJ.
DATED: 12th April 2023 PC:-
1. On 10th April 2023, we commenced final hearing of a large group of Petitions. The question is of some public importance relating to a Presidential Order of 1956 and a subsequent Government Order. The contest is between the entry of 'Dhangad' Page 4 of 7 12th April 2023 ::: Uploaded on - 15/04/2023 ::: Downloaded on - 16/04/2023 03:49:02 ::: 903-ASWP-4919-2017+.DOC and whether the community (we refrain from saying either caste or tribe) known as 'Dhangar' is indistinguishable from the entry in the Presidential Order and the subsequent Government Order. There is a previous decision of a Bench of coordinate strength. Questions of binding precedents and jurisprudence arise.
2. In the meantime, there is another question that has arisen about the claim of privilege under Section 123 of the Evidence Act once made in a formal application by the State Government to withhold disclosure of a particular report of a study group commission by the State Government. That report is referred to in the two Affidavits that have been filed on behalf of the Government in the Writ Petition No. 4919 of 2017 (Maharani Ahilyadevi Samaj Prabodhan Manch Maharashtra Rajya & Ors v The Union of India & Ors). That application was allowed without a reference to the Affidavits and without contest because the Petitioner did not oppose the privilege application by the State Government for non- disclosure of the report in question.
3. We have asked Mr Kumbhakoni to take instructions since, on the one hand, the State Government affidavits not only refer to the report but also purport to summarize some of its contents. At the same time there was this application to withhold disclosure. The two seem to us prima facie to be incompatible, even incongruous. Mr Kumbhakoni correctly points out that while he will seek instructions, these will need to be in writing and taken at the highest level. We agree. We also agree that these instructions will not be easily made available to him within a span of a few days and will require some deliberation.
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4. There are also in parallel two Petitions that have been transferred here from the Nagpur Bench. In these Petitions, the Petitioners sought a Scheduled Tribe validity certificate. They are both Dhangars but they claim that this was indistinguishable from the Scheduled Tribe 'Dhangad' (as per the Presidential Order and Government Order). Their applications were rejected and hence these Petitions. These are Writ Petition No. 5356 of 2023 and Writ Petition No. 5357 of 2023. Copies of these Petitions are to be privately served on the State Government and the Government Pleader. The State Government's Affidavits in Reply are to be filed and served within two weeks from today.
5. We have heard Mr Khambata and Dr Chandrachud quite extensively for two days already. Dr Chandrachud submits that he will require time for a further study of the material and case laws on the jurisprudential question that arises.
6. There is not sufficient time to complete the hearing then before the summer vacation. Before us, all consent that the matter may be retained as part-heard either before this Bench (or before a Bench presided over by one of us GS Patel J as the Hon'ble the Acting Chief Justice deems fit). A praecipe to that effect may be filed in Writ Petition No. 4919 of 2017 as being a praecipe covering all tagged matters and Public Interest Litigations.
7. We stand over the entire group initially for directions to 7th June 2023. On that date, and subject to administrative roster permissions, we will fix a schedule for final disposal. Should it be Page 6 of 7 12th April 2023 ::: Uploaded on - 15/04/2023 ::: Downloaded on - 16/04/2023 03:49:02 ::: 903-ASWP-4919-2017+.DOC necessary for the present Bench to assemble, then a schedule will be fixed accordingly, and we will pass necessary directions for written submissions etc to compress the time required for arguments. It will not be possible to seek longer adjournments after June 2023 especially if this Bench is being specifically constituted for this hearing. All concerned should bear that in mind while preparing for the further arguments in the matter.
8. Mr Kumbhakoni states that the praecipe filed by the Petitioners in Writ Petition No. 4919 of 2017 should be directed to be processed by the Registry without waiting for a formal consent of the parties. The parties before us readily give their consent to the matter being retained as part-heard. So ordered.
9. As far as the Interim Application No. 812 of 2019 for intervention is concerned, we have previously already indicated that we will be hearing the Interventionist in the Interim Application itself, irrespective of the fact that we believe this to be not in their interest.
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