Bombay High Court
Mansi Arun Nikam Under Guardian Arun ... vs The State Of Maharashtra And Another on 19 January, 2021
Equivalent citations: AIRONLINE 2021 BOM 310
Author: Shrikant D. Kulkarni
Bench: S.V. Gangapurwala, Shrikant D. Kulkarni
1058-wp-1020-21 (Jt.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1020 OF 2021
Mansi D/o Arun Nikam
Age : 17 years (Minor), Occu.: Student,
U/g of father, viz Arun S/o Jagannath Nikam
Age - 45 years, Occ. Service,
R/o. A/p. Wanegaon, Tq. Fulambri,
Dist. Aurangabad. ... Petitioner.
Versus
1. The State of Maharashtra
Department of Tribal Development,
Mantralaya, Mumbai - 32
Through its Secretary
3. The Scheduled Tribe Certificate
Scrutiny Committee,
Aurangabad Division, Aurangabad
Through its Member Secretary. ... Respondents.
....
Mr. Sushant C. Yeramwar, Advcocate for the Petitioner.
Mr. P.S. Patil, Addl. G.P. for Respondent Nos.1 and 2.
....
CORAM : S.V. GANGAPURWALA AND
SHRIKANT D. KULKARNI, JJ.
DATED : 19.01.2021.
JUDGMENT (PER SHRIKANT D. KULKARNI, J.) :-
1. Rule. Rule made returnable forthwith. With the consent of both the sides, heard finally at admission stage.
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2. Feeling aggrieved by the impugned order passed by respondent No.2 / Scheduled Tribe Certificate Scrutiny Committee, Aurangabad Division, Aurangabad (hereinafter referred to as the "committee") thereby invalidating caste claim of the petitioner as belonging to "Thakur Scheduled Tribe", the petitioner has approached this Court by invoking writ jurisdiction under Article 226 of the Constitution of India.
3. The factual matrix of the case is as under:
The petitioner is studying in college. While studying in the college, the tribe claim of the petitioner was referred to the committee for verification on 04.01.2020 along with the documentary evidence right from her grandfather of the year 1947. She has also produced the certificates of validity issued in favour of her father, real uncle and real cousin sister. The vigilance was conducted. She has filed reply to the vigilance report in response to the show cause notice. It is contended by the petitioner that the committee has invalidated her tribe claim as being "Thakur" Scheduled Tribe without considering the documentary evidence submitted by her since the year 1947 and tribe certificates issued in favour of her close blood relatives.
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4. Heard Mr. S.C. Yeramwar, learned counsel for the petitioner and Mr. P.S. Patil, learned Addl. G.P. for the respondent Nos. 1 and 2 / State.
5. Mr. Yeramwar, learned counsel for the petitioner vehemently submitted that though there is contra evidence in respect of blood relatives of the petitioner showing the caste status as Bhat and Maratha, the earlier old record of her close blood relatives show the caste as "Thakur" and as such, subsequent record showing contra evidence ought to have been discarded while decided the tribe claim of the petitioner. He invited our attention to the documentary evidence produced by the petitioner and submitted that the extract of birth register dated 1 Amrdad 1337 Fasli i.e. of the year 1927 in respect of petitioner's cousin great grandfather namely Shenfadu @ Shefad Trimbak shows the caste status as "Thakur". The vigilance officer has collected record of some other persons showing contra evidence, which should not have been considered by the committee. The petitioner has explained about the contra evidence by way of reply to the vigilance report and explained that school record of the petitioner's cousin great grandfather namely Murlidhar of the year 1935 (1345 Fasli) clearly shows caste status as "Thakur". By 3 of 13 ::: Uploaded on - 27/01/2021 ::: Downloaded on - 08/02/2021 06:50:08 ::: 1058-wp-1020-21 (Jt.) 4 considering the same, certificate of validity is granted to the sons of Murlidhar viz. Dadasaheb and Kiran.
6. According to Mr. Yeramwar, Validity certificates have been issued in favour of the father of the petitioner namely Arun Jagannath Nikam, her uncle Dilip Jagannath Nikam and her cousin sister Tanushri Dilip Nikam. The validity certificate issued to Tanushri in view of decision of this Court in writ petition No. 13417 of 2018 under order dated 08.11.2019. Mr. Yeramwar, submitted that in view of decision in case of Apoorva D/o Vinay Nichale Vs. Divisional Caste Certificate Scrutiny Committee No.1 and others reported in 2010 (6) Mh.L.J. 401, the petitioner is entitled to get caste validity certificate when there is no legal impediment. According to Mr. Yeramwar, the impugned order passed by the committee is bad in law and liable to be quashed and set aside.
7. Mr. P.S. Patil, learned Addl. G.P. per contra, submitted that the committee has taken into consideration old documentary evidence produced by the petitioner. The committee after examining the documentary evidence, vigilance report and report of the Research officer arrived at the conclusion that the petitioner has failed to prove her tribe claim as "Thakur" Scheduled Tribe. The findings recorded by 4 of 13 ::: Uploaded on - 27/01/2021 ::: Downloaded on - 08/02/2021 06:50:08 ::: 1058-wp-1020-21 (Jt.) 5 the committee are well reasoned. There are contra entries wherein the caste is recorded as Bhat / Maratha are in respect of close blood relatives. The petitioner has suppressed contra evidence from the committee, as such, the petitioner is not entitled to get benefit of those validity certificates. According to Mr. Patil, the order passed by the committee is not defective in the eye of law. The committee has recorded various decisions of the Hon'ble Supreme Court and Bombay High Court. It is not a fit case to interfere with the decision of the committee.
8. We have considered the arguments advanced by the learned counsel for the petitioner and the learned Addl.G.P.
9. On perusing the impugned order passed by the committee, it is found that the committee has invalidated the claim of the petitioner on the following three issues :
(i) The petitioner has failed to prove her tribe claim on the basis of documentary evidence.
(ii) The petitioner is not entitled to take benefit of validity certificate issued to her blood relatives.
(iii) The petitioner has failed to prove the affinity test.
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10. On making scrutiny of the impugned order, vigilance report, validity certificates issued in favour of petitioner's close relatives and other papers, it is noticed by us that the petitioner has placed on record the documentary evidence right from the year 1947, wherein the caste "Thakur" has been recorded.
The petitioner has placed on record the following documentary evidence before the committee.
v- nLr,sotkpk izdkj nLr,sot/kkjdkps uko vtZnkj Tkkrhph Ukkasn.kh
Ø- ;kaP;k'kh ukrs ukasn fnukad
1 tkr izek.ki«k ekulh v:.k fude vtZnkj Bkdwj 31-08-2016
2 vk/kkjdkMZ ekulh v:.k fude vtZnkj & & & &
3 CksukQkbZM izek.ki«k ekulh v:.k fude vtZnkj Bkdwj 2019&20
4 jfgoklh nk[kyk ekulh v:.k fude vtZnkj & & 07-05-2016
5 jfgoklh izek.ki«k ekulh v:.k fude vtZnkj & & 03-06-2016
6 'kkGk lksMY;kpk nk[kyk ekulh v:.k fude vtZnkj Bkdwj 15-06-2015
7 'kkys; izos'k o fuxZe ekulh v:.k fude vtZnkj Bkdwj 16-06-2008
mrkjk
8 tUe izek.ki«k ekulh v:.k fude vtZnkj & & 02-06-2003
9 vk/kkjdkMZ dYiuk v:.k fude vkbZ & & & &
10 vk/kkjdkMZ izFkes'k v:.k fude HkkÅ & & & &
11 'kiFki«k v:.k txUukFk fude oMhy & & 12-07-2019
12 'kiFki«k ¼oa'kkoG½ v:.k txUukFk fude oMhy & & 12-07-2019
13 'kiFki«k ¼uequk Q½ v:.k txUukFk fude oMhy & & 18-07-2019
14 'kkys; izos'k o fuxZe v:.k txUukFk fude oMhy Bkdwj 01-07-1986
mrkjk
15 'kkGk lksMY;kpk nk[kyk v:.k txUukFk fude oMhy Bkdwj 01-07-1986
16 tUe Ukkasn.kh jftLVj v:.k txUukFk fude oMhy & & 05-09-1975
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mrkjk
17 f'k/kkif«kdk v:.k txUukFk fude oMhy & & 09-07-2004
18 lsokiVkP;k izFke i`"Bkph v:.k txUukFk fude oMhy Bkdwj & &
izr
19 vk/kkjdkMZ v:.k txUukFk fude oMhy & & & &
20 tkr oS/krk izek.ki«k v:.k txUukFk fude oMhy Bkdwj 22-01-2001
21 tkr izek.ki«k v:.k txUukFk fude oMhy Bkdwj 14-08-1991
22 iksyhl n{krk iFkdkpk v:.k txUukFk fude oMhy & & 24-12-1998
pkSd'kh vgoky
23 'kiFki«k ¼oS/krk½ fnyhi txUukFk fude dkdk & & 25-11-2019
24 tkr oS/krk izek.ki«k fnyhi txUukFk fude dkdk Bkdwj 09-02-2011
25 tkr izek.ki«k fnyhi txUukFk fude dkdk Bkdwj 06-08-1984
26 lsokiVkP;k izFke i`"Bkph fnyhi txUukFk fude dkdk Bkdwj & &
izr
27 'kkys; izos'k o fuxZe fnyhi txUukFk fude dkdk Bkdwj 03-07-1973
mrkjk
28 tkr izek.ki«k txUukFk 'kkejko vktksck Bkdwj 24-07-1992
fude
29 f'k/kkif«kdk :[keuckbZ txUukFk vkth & & & &
fude
30 'kkGk lksMY;kpk nk[kyk txUukFk 'kkejko vktksck Bkdwj 01-08-1947
31 jfgoklh o tkrhps v:.k txUukFk fude oMhy Bkdwj 01-02-1997
izek.ki«k ¼xzkefodkl
vf/kdkjh o ljiap ½
32 jfgoklh nk[kyk txUukFk 'kkejko vktksck & & 18-06-2015
fude
33 vk/kkjdkMZ txUukFk 'kkejko vktksck & & & &
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34 fo|kFkhZ izos'k o fuxZe txUukFk 'kkejko vktksck Bkdwj 01-08-1947
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35 [kkljk i«kd 'kkejko iqatkth iatkck & & 1953-54
36 xkao uequk ua-8 txUukFk 'kkejko vktksck & & 21-01-2019
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37 7@12 mrkjk txUukFk 'kkejko vktksck & & 07-02-2019
¼xV ua- 25½ fude o brj
38 7@12 mrkjk txUukFk 'kkejko] vktksck o & & 07-02-2019
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39 ek- mPp U;k;ky;kps ruqJh fnyhi fude pqyr cfg.k Bkdwj 08-11-2019
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40 tkr oS/krk izek.ki«k ruqJh fnyhi fude pqyr cfg.k Bkdwj 20-11-2019
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11. At the outset, it is necessary to mention that genealogy given by the petitioner is not disputed by the committee. There are three validity certificates issued in the family of the petitioner.
(i) Arun Jagannath Nikam - father
(ii) Dilip Jagannath Nikam - real uncle
(iii) Tanushri Dilip Nikam - real cousin sister
As on today, the above said validity certificates issued in favour of close blood relatives of the petitioner are still hold the field. Though it is submitted during the argument that judgment delivered by this Court in case of Tanushri D/o Dilip Nikam in writ petition No.13747 of 2018 dated 08.11.20419 under consideration for review .
12. The committee has observed that the tribe claims of some of the paternal side relatives were invalidated by the committee and the petitioner has suppressed the said fact. At the time of submission of proposal by the petitioner before the committee, there was no validation, as such, the petitioner seems to have given correct genealogy with details. At the time of vigilance enquiry, the vigilance officer has added some of the names of distant paternal side relatives 8 of 13 ::: Uploaded on - 27/01/2021 ::: Downloaded on - 08/02/2021 06:50:08 ::: 1058-wp-1020-21 (Jt.) 9 whose claims came to be invalidated and it was not within the knowledge of the petitioner at the relevant point of time. Certainly, said observations made by the committee are erroneous. Even though there is contra evidence showing caste of the family of the petitioner as Bhat / Maratha, those entries were subject matter, while deciding the tribe validity certificate in favour of the petitioner's father. More ever, Tanushri D/o Dilip Nikam real cousin sister and Shubham Ashok Nikam have applied for tribe validity certificated to the committee and their tribe claim was invalidated by the committee by order dated 28.08.2018. The decision rendered by the committee in case of Tanushri was challenged before the Division Bench of this Court by filing writ petition No.13417 of 2018 (Tanushri D/o Dilip Nikam Vs. The State of Maharashtra and others). The Division Bench of this Court under order dated 08.11.2019 was pleased to quash and set aside the order passed by the committee invalidating the tribe claim of the petitioner and directed to the committee to issue tribe validity certificate to Tanushri as belonging to "Thakur" Scheduled Tribe. Admittedly, the said order still holds the field, though submitted that the committee has taken a decision to file a review petition.
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13. In view of ratio laid down in case of Apoorva (supra), the petitioner is entitled to get the benefit of tribe validity certificate issued in favour of her real cousin sister Tanushri when there is no legal impediment in view of above decision rendered by the Division Bench.
14. Only because there is some contra evidence, the tribe claim of the petitioner can not be turn down particularly when the caste of the petitioner's grandfather is recorded as "Thakur" in the school record dated 01.08.1947. The said old document is of the pre-independence era, which has more probative value. The committee has completely overlooked this aspect and invalidated the tribe claim of the petitioner.
15. The committee has also observed that the family of the petitioner is not migrated from tribal area. That observation made by the committee is again erroneous. The Parliament has enacted "The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976". It is precisely to over come the difficulties of the tribals. After that amendment, it is not permissible to rely on the area restrictions placed by the order of 1950. They are removed in order to enable the persons not residing in the five districts identified as permanently inhabited by Thakurs to claim benefits and concessions so also 10 of 13 ::: Uploaded on - 27/01/2021 ::: Downloaded on - 08/02/2021 06:50:08 ::: 1058-wp-1020-21 (Jt.) 11 relaxation in Government employment and elections. That view is expressed in the decision rendered by the Division Bench in case of Mayuri Sunil Thakur Vs. State of Maharashtra and Ors. (Writ Petition No.8738 of 2019 dated 09.08.2019 at principal seat Bombay). As such, the observations made by the committee regarding absence of migration of petitioner's family are certainly erroneous.
16. The committee has recorded negative finding on the issue of giving benefit to the petitioner on the basis of validity certificates issued to her real uncle namely Dilip Jagannath Nikam and cousin sister Tanushri Dilip Nikam. The reasons given by the committee to that effect are not sound. The petitioner is entitled to get the benefit of tribe validity certificate issued in favour of her close blood relatives in view of the ratio laid down in case of Apoorva (supra).
17. Now coming to the another finding recorded by the committee regarding failure to prove the affinity test. The genuineness of a caste claim needs to be considered not only by way of detail examination of the documents but also on the affinity test, which would include the anthropological and ethnological traits etc. of the petitioner. The affinity test is not a litmus test. We would like to place reliance in case of Anand Vs. Committee for Scrutiny and Verification of Tribe 11 of 13 ::: Uploaded on - 27/01/2021 ::: Downloaded on - 08/02/2021 06:50:08 ::: 1058-wp-1020-21 (Jt.) 12 claim and ors. reported in (2012)1 SCC 113, wherein it is observed by the Hon'ble Supreme Court that the affinity test is not a litmus test for establishing the link of the petitioner to be Scheduled Tribe. The affinity test may be used to corroborate the documentary evidence and should not be the sole criteria to reject a claim.
18. On careful scrutiny of the documentary evidence produced by the petitioner right from the pre-independence era i.e. right from the year 1947, make out a clear picture that the caste of the family of the petitioner is recorded as "Thakur".
19. In view of the above, the findings recorded by the committee are found erroneous. The committee has not properly considered the documents of the pre-independence era and arrived at incorrect conclusion. The committee has also not properly considered the validity certificates issued in favour of petitioner's father, real uncle and real cousin sister, which still hold the field. The impugned order passed by the committee invalidating tribe claim of the petitioner needs to be quashed and set aside. She is entitled to get the tribe validity certificate. With these reasons, we conclude and proceed to pass the following order.
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ORDER
(i) The writ petition is allowed.
(ii) The impugned judgment and order of the Committee is hereby
quashed and set aside.
(iii) The Committee shall issue validity certificate to the petitioner
of "Thakur Scheduled Tribe" immediately.
(iv) In case the orders passed by the High Court in the matter of Tanushri and other paternal relatives is reviewed, then present judgment would be subject to the same.
(v) Rule is made absolute accordingly.
(vi) The writ petition is disposed of. No order as to costs.
( SHRIKANT D. KULKARNI ) ( S.V. GANGAPURWALA )
JUDGE JUDGE
S.P. Rane
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