Bombay High Court
State Of Maharashtra And Ors. vs Ganpat Pandurang Sankhe And Anr. on 24 July, 1991
Equivalent citations: 1992(1)BOMCR409
Author: S.P. Bharucha
Bench: S.P. Bharucha
JUDGMENT S.P. Bharucha, J.
1. We have before us several writ petitions and appeals in which the principal question is : is Vanjari (an Other Backward Class) a synonym of Banjara (notified as a Vimukta Jati). As a matter of convenience, this appeal, though it is an appeal against the grant of interim relief in a writ petition, is, by consent of all concerned, heard and treated as determinative. We have heard Mr. Gursahani, who appears for the petitioners in all the matters; Mr. Saraf and Mr. Chogle, who appear for the State Government; and Ms. Madhyan, who appears in some matters for the Municipal Corporation of Greater Bombay. We have permitted Mr. S.C. Dharmadhikari, to intervene on behalf of the All India Banjara Sewa Sangh.
2. The petitioner was admitted in 1948-49 to the A.E.S. High School at Palghar in District Thane in the State of Maharashtra. In the School's record his caste was shown as Hindu Vanjari. In 1959 the petitioner came to Bombay for the purposes of employment. In February 1980 the petitioner applied to the Additional Chief Metropolitan Magistrate, Bandra, for the grant of a caste certificate. On 20th February, 1980 the said Magistrate issued to him a caste certificate which showed that he belonged to the Banjara community. On 5th May, 1980 the petitioner wrote a letter to his employer, the State Government, asking that he be shown as a Banjara in his service record. On 18th June, 1980 the State Government passed a resolution which directed that the community Hindu Banjara, which was recognised as a Vimukta Jati under the Government Resolution, Education and Social Welfare Department No. CBC-1361-M dated 21st November, 1961, should be entered in the service book of the petitioner.
3. On 19th November, 1983 the petitioner received a memorandum from the Under-Secretary in the Rural Development Department of the State Government. The memorandum noted that the petitioner's school certificate showed him to be a Hindu Vanjari whereas the said Magistrate's certificate showed him to be a Hindu Banjara. The Hindu Banjara community had been declared a Denotified Tribe by Government Resolution dated 12th November, 1961. The petitioner was called upon to produce the said Magistrate's certificate. On 16th December, 1983 the same Under-Secretary sent to the petitioner another memorandum which stated that the certificate of the Tahsildar of the Taluka in which he was born was an admissible certificate and not that of the said Magistrate. The petitioner was, therefore, required to submit a certificate from the Tahsildar concerned to the effect that he belonged to the Banjara community. The petitioner was told that action would be taken against him if he did not produce the certificate within 15 days. On 4th September, 1985 the petitioner received a memorandum from the Deputy Secretary in the Rural Development Department of the State Government which required the petitioner, if he wanted to claim that he belonged to the Banjara community, to obtain a certificate to that effect from the competent authority at Palghar before 20th September, 1985.
4. The petitioner was unable to produce a certificate from the Tahsildar, Palghar, whom he approached because, it is his case, the Tahsildar, Palghar, told him that he had specific instructions from his superiors not to issue a caste certificate to anyone who claimed to belong to the Banjara community. On 19th September, 1985 the petitioner wrote to the said Under Secretary accordingly.
It is the petitioner's case that on 14th January, 1986 he received a notice from the Chief Metropolitan Magistrate, Bombay, in regard to the caste certificate dated 20th February, 1980 which had been issued in his favour by the said Magistrate. He appeared as directed on 10th February, 1986 and was asked to file a written statement. On 15th March, 1986, the petitioner was informed that the powers of metropolitan Magistrates to issue caste certificates had been revoked with effect from 1st March, 1986 and he was asked to appear on 14th April, 1986 before the Collector of Bombay.
5. The petitioner thereupon filed the writ petition seeking a declaration that the refusal of the State Government to act upon the certificate dated 20th February, 1980 issued by the said Magistrate was bad in law and an order requiring the State Government to act upon it and not insist on a certificate from the Tahsildar, Palghar.
6. The admission of the writ petition was opposed by an affidavit made by one Besharkar, Assistant Secretary to the State Government in the Social Welfare, Cultural Affairs, Sports and Tourism Department. It submitted that Banjara and Vanjari were two different castes. Whereas Banjara was declared a Vimukta Jati by G.R. dated 21st November, 1961, Vanjari had been declared an "Other Backward Class" by G.R. dated 13th October, 1967. Since the petitioner had come to Bombay in 1959 he could not be called an ordinary resident of Bombay for the purpose of getting a caste certificate, and the caste certificate issued in his favour in the year 1980 by the said Magistrate was, therefore, invalid. The petitioner could not be treated as a Banjara unless he produced a certificate to that effect from the Taluka Executive Magistrate at Palghar. The learned Single Judge admitted the writ petition and restrained the State Government from reverting the petitioner from his post of Desk Officer pending the disposal of the writ petition.
7. The State Government preferred this appeal against the interim order and took out a notice of motion for stay thereof pending the disposal of the appeal. In reply to the notice of motion the petitioner, by an affidavit dated 12th November, 1986, set out Government Resolutions and extracts from authoritative works on the basis of which he submitted that "Banjara" was a synonym for "Vanjari". We shall refer in some detail to the material set out. No affidavit in rejoinder was filed.
8. This appeal is rendered infructuous because the petition itself has been heard with the consent of all concerned. In any event, the learned Single Judge was justified in passing the interim order for an important and highly arguable issue was raised in the petition.
9. Before we deal with the principal question as to the synonymity of Banjara and Vanjarai, we must advert to a submission made by Shri Gursahani, learned Counsel for the petitioner, to which there is no answer. Pursuant to the certificate issued to the petitioner by the said Magistrate, the State Government passed a resolution to which we have adverted. By reason thereof the State Government directed that the castle Hindu Banjara, which was recognised as a Vimukta Jati by the G.R. dated 21st November, 1961, should be entered in the petitioner's service book. That was done, and we have before us a xerox copy of the petitioner's service book that recognises that he belongs to the Hindu Banjara caste which is recognised as a Vimukta Jati under the G.R. dated 21st November, 1961. Our attention was drawn by Mr. Gursahani to the judgment in A.S. Writ Petition No. 2141 of 1987, Narayan Deoji Koli v. State of Maharashtra, delivered by Daud & Sindhakar, JJ., on 23rd November, 1989 . Here the State Government had taken a decision that the petitioner's caste should be altered in his service record, as shown by a Government Memorandum dated 9th July, 1976. The Commissioner, Konkan Division, however, held that the petitioner could not establish that he belonged to that caste. It was contended before the Division Bench that the Commissioner, Konkan Division, who was an inferior of the State Government, could not reverse a decision taken by the State Government. The Division Bench noted the words used in the G.R. which empowered the Divisional Commissioner to enquire into appeals in respect of caste certificates and found that it came into force with prospective effect. It held that, there being nothing to indicate that it had retrospective operation, the power exercised by the Commissioner was in pursuance of a non-existent jurisdiction. We agree.
10. Before us is a G.R. that recognises that the petitioner belongs to the Banjara community and this is entered in his service book. That G.R. holds the field and, while it holds the field, it is, in our view, not open to an officer of the State Government to hold to the contrary.
11. This brings us to the principal contention that "Banjara" in synonymous with "Vanjari". By G.R. dated 21st November, 1961 the State Government noted that the Study Group on Social Welfare appointed by the then Government of Bombay for formulation of an approach to the Third Five Year Plan had recommended that a common and single list of Vimukta Jatis and Nomadic and Semi-Nomadic Tribes should be prepared and that a common programme for their welfare should be implemented under the Third Five Year Plan. Having accepted the recommendation of the Study Group the then Government of Bombay had created the post of an Officer on Special Duty for the unification of the lists. He was directed to undertake an extensive survey of the areas inhabited by the Ex-Criminal Tribes and Nomadic and Semi- Nomadic Tribes throughout the State, study their living conditions, ascertain their felt needs and the ways and means of meeting these needs, and, on the basis of such a survey, make recommendations for a uniform list of these communities for the consideration of the State. There was a recognised list of Vimukta Jatis in Vidharbha and of the Nomadic Tribes and Semi-Nomadic Tribes in Vidharbha and Marathwada although persons belonging to these communities were found in all the regions of the State. The Vimukta Jatis and Nomadic Tribes and Semi-Nomadic Tribes, of which there were two separate lists in Western Maharashtra, were socially, culturally and ethnologically akin to each other. The Officer on Special Duty had submitted his final report. As a result of its consideration, the State Government directed that the communities shown in Schedules I and II to the G.R. should be treated as belonging to the Vimukta Jatis and the Nomadic Tribes respectively in the State for all purposes. At Item 7 of Schedule I, which was the list of Vimukta Jatis of Maharashtra, was named the community 'Laman' and its synonyms were stated to be Banjaras, Kachakiwale Banjaras, Laman Banjaras and Lambadas.
12. The next relevant G.R. is dated 18th February, 1985. It stated that the State Government had under consideration the question of treating certain groups of communities as synonyms of the main community Banjara. It is found that there are several such groups of Laman group which has been declared as Vimukta Jati in this State. It has, therefore, necessitated the list of Vimukta Jatis to be modified suitably. Government is accordingly pleased to direct that the following communities be treated as synonyms of the Banjara community and be included in the list of Vimukta Jatis in the State replacing the Entry No. 7 in the list of Vimukta Jatis....." The synonyms of Banjara included Lambada/Lambara, Laman Banjaras, Laman/Lamani, Shingawale Banjaris and Shingawale Vanjaris.
13. By G.R. dated 18th August, 1977 an additional synonyms was added and it was Banjari. Consequently, the synonyms Shingawale Banjaris and Shingwale Vanjaris were deleted.
14. It was submitted upon the basis of these G.Rs. that the State Government itself had recognised Banjari, or Vanjari, to be a synonyms of Banjara. In the affidavit made by the petitioner in reply to the State Government's notice of motion in the appeal, authoritative works have, as aforementioned, been extracted in support of this submission.
15. There is, first, an extract from a booklet entitled "Welfare of the Backward Classes" published by the Publications Division of the Ministry of Information and Broadcasting of the Government of India. In the Introductions it is stated that the third major group of backward classes consisted of 40 lakh people of the Denotified Tribes. These Tribes could be divided into a large number of sub-groups, each with its own local and traditional background and distinctive features. These communities were of two types, nomadic and settled. Gypsies were example of the first group. The second group consisted mostly of those who traced their descent to irregular fighting men who were uprooted from their original homes on account of invastions or political upheavals in the distant past. During the British period the denotified communities had been treated as criminal tribes and, with the enactment of the Criminal Tribes Act of 1871, kept under strict police vigilance. This being derogatory to the spirit of the Constitution, the Criminal Tribes Act was repealed in 1952 and the designation of these communities was changed from criminal or ex-criminal tribes to Denotified Tribes or Vimukta Jatis.
16. Annexed to the affidavit is an extract from the Report of the Criminal Tribes Act Enquiry Committee appointed by the Government of Bombay in October 1937, which was chaired by Mr. K.M. Munshi. The Committee was required to investigate and report on the changes necessary to be introduced in the policy and law relating to the criminal tribes and report on the grievance of the members thereof. The Committee recommended that declarations made treating, inter alia, the Vanjaris as criminal tribes should be cancelled at an early date as this tribe could no longer be considered criminal. The importance of this reference is that the criminal tribe to which the Committee adverted was Vanjari.
17. On 27th April, 1956 Mr. Rajwade, the then Joint Secretary to the Government of Bombay in the Rehabilitation, Housing and Backward Classes Department, addressed a letter to the Secretary to the Government of India in the Ministry of Home Affairs. He stated that in the list of backward classes maintained by the Government of Bombay there were 44 communities which were nomadic and 10 communities which were semi-nomadic. Those who were nomadic and semi-nomadic were listed in an accompaniment "D" to the letter. The accompaniment "E" showed the population of these communities. Brief descriptions and characteristics of these communities were to be found in Enthoven's volumes "Tribes and Castes in Bombay State". These communities could be divided, inter alia, into "small-scale businessmen like Lamanis, Vanjaras, who move from place to place". Statement "D", the annexure of nomadic and semi-nomadic tribes, listed (at Item 6) "Vanjaris (except Lad, Ravjin, Maratha, Kunbi and similar Vanjaris)". Annexure "E" gave the population, inter alia of the "Wanjari" community.
18. The affidavit also annexes an extract of Enthoven's "Tribes and Castes of Bombay". This may judicially be recognised, as was done by Mr. Rajwade, as being an authoritative work on the subject. Enthoven describes Banjara and Banjari to be synonyms of Vanjari.
19. The affidavit annexes an extract from the Maharashtra State Gazetteer of 1968 in the volume "Maharashtra, Land and its People". Under the sub-heading Vanjari is stated, "Vanjari or Banjari, also known as Lamans or Lambadis, is a very wide-spread tribe".
20. The affidavit also annexes relevant extracts from a publication made in 1908 by the Government Printing Press. It is entitled "Notes on Criminal Classes in the Bombay Presidency". With reference to Banjaras it states that they are also known in other parts of India and in various parts of this Presidency differently as Vanjaris, Brinjaris, Lamans, Lambanis, Lambadis, etc. It also states that "Banjaras must not be confused with Wanjaras or Wanjares, now altogether a distinct class or caste though descended no doubt from the same stock who are met with in Ahmednagar, Nasik, Poona and Khandesh".
21. With our permission, reference was made to two other publications. One is a Marathi book entitled "Bharatiya Sanskriti Kosh" published in 1974 with the assistance of the Ministry of Education of the Government of India and the State Board for Literature and Culture, Bombay. With reference to the word "Banjara" it says that people of the Vanjari caste are found everywhere in India. They are known by different names in different regions, such as Banjara, Brinjari, Lamani, Lambani, Lambadi, Laman, etc. Formerly they used to carry goods on bullocks, and some people of this caste used to maintain themselves by committing theft, burglary and waylaying. The other is a booklet published by the Directorate of Census Operations, Maharashtra. It is a Maharashtra Handicraft Survey Report on Banjara embroidery. It says that the word Banjara is considered to be derived from the original Sanskrit word "Vanijya", the meaning of which is trade. The Sanskrit word "Vanijya" is pronounced in Gujarati as "Vanajara", in Rajasthani as "Banjara", in Urdu as "Banjare", in Hindi as "Banzara" and in Marathi as "Banjari". Vanjaris and Banjaras could be one and the same community since Banjaras were referred to by different synonyms in different States. They were known by the synonyms Vanajara, Banjare, Banjari, Brinjari, Laman, Lamani, Lambada, Lambadi, etc.
22. Reliance was placed on behalf of the State Government upon a report made at the request of the State Government by the Tribal Research & Training Institute, Pune, in November 1982. The Institute was required to opine whether people in the Thane District, mainly the residents of the Palghar and Dahanu Tahsils, belonged to the Wanjari community or the Banjara community. The Institute collected information from 13 Vanjari villages in Palghar Tahsil. It considered the history of families and communities, their rituals and festivals, birth and marriage rites, mother tongue, present and hereditary occupation and criminal and nomadic tendencies. It came to the conclusion that "Wanjaris must not be confused with Banjaras. Wanjari and Banjara are altogether distinct classes or castes, though descended from the same stock". Wanjaris from Palghar and Dahanu Tahsils of Thane District could not claim to be Banjaras. However, the Institute stated that this view-point should be "examined in consultation with the enlightened Banjara persons for inclusion of Wanjari community into Banjara community before final decision is taken by Government".
23. We enquired whether the State Government had taken any action upon this report and we fairly were told that neither had enlightened Banjaras been consulted nor had the State Government accepted the Institute's view-point by passing an appropriate resolution.
24. What the State Government does appear to have done, however, is to issue a confidential circular in Marathi dated 5th March, 1986 signed by the Deputy Secretary in the Social Welfare, Cultural Activities, Sports and Tourism Department. The circular is addressed to the District Magistrate and the District Collector, Thane, the Chief Metropolitan Magistrate, Bombay, the Divisional Commissioner, Konkan Division, Bombay, the Director of Social Welfare of the State Government and the Adivasi Research and Training Institute, Pune. The circular is upon the subject of the "Banjara Community in Palghar and Dahanu Talukas in Thane district. Verification of Caste Certificates". It says that Vanjari and Banjara are two separate castes. The Vanjari community is mentioned in the list of Other Backward Classes and the Banjara community is mentioned in the list of Denotified Tribes. It had come to the notice of the State Government that persons belonging to the Banjara caste in Thane District, especially from Palghar and Dahanu Talukas, had taken the benefit of the similarity between the words "Banjara" and "Vanjari" and had created the impression that both castes were one and the same and had been successful in getting caste certificates as Banjaras to enable them to take advantage of the facilities available to the Denotified Tribes. The State Government had taken serious notice of this. The Circular gave directions to discount Banjara caste certificates submitted by employees of the State Government, to rate caste certificates as therein stated and to cancel certain caste certificates.
25. The authoritative works referred to above show that Banjara, Banjari and Vanjari are inter-changeable terms and that people of these communities are also known as Lamanis, Lambadis, etc. In the context of these authorities must be read the G.Rs dated 18th February, 1985 and 18th August, 1977. By the former, the following were treated as synonyms of Banjara: Lambada/ Lambera, Laman Banjaras, Laman/Lamani, Shingawala Banjarais and Shingawala Vanjaris. By the latter, Banjari was treated as a synonym of Banjara and, at the same time, the synonyms shingawala Banjaris and Shingawala Vanjaris were deleted. It is difficult to see how, in this background, it can be contended on behalf of the State Government that the terms Banjara and Vanjari are not synonymous. The report of the Tribal Research & Training Institute commissioned by the State Government opines that Wanjaris from the Palghar and Dahanu Talukas of Thane District cannot claim to be Banjaras, but it must also be noted that it states, echoing the "Notes on Criminal Classes in the Bombay Presidency" referred to above, that "Wanjari and Banjara are altogether distinct classes or castes though descended from the same stock" ; and also that the State Government should not treat this opinion as conclusive but should consult enlightened Banjaras, which has not been done.
26. Apart from authority, it is difficult to treat Vanjari as not being a synonym of Banjara, especially when Banjari is treated as being a synonym of Banjara. There is substantial identity in pronunciation. Written in English, the distinction between Banjari and Vanjari lies only in the first letter. Written in the Devnagri script, the distinction lies only in the oblique within the circle in the letter".
27. It is unfortunate that the State Government, having felt the need to get the matter sorted out, should have stopped short at the stage of the opinion given by the Tribal Research and Training Institute and not gone on to examine the question, as suggested by the Institute itself, in consultation with enlightened persons of the Banjara community. Mr. Dharmadhikari, who appears before us to intervene on behalf of the All India Banjara Sewa Sangh, states that there is authoritative material which shows that Banjara and Vanjari are different communities. It will be open to the All India Banjara Sewa Sangh to move the State Government to take further action upon the report of the Institute and may place before the State Government such material as it has. It is to be hoped that the State Government, before taking a final decision upon such representation, shall invite expert opinion as also that of the Banjara and Vanjari communities. Until such time as a representation is made and a final decision taken as aforesaid, Banjara and Vanjari shall be treated as synonyms of each other and the confidential circular dated 5th March, 1986 shall not be acted upon.
28. It is not disputed on behalf of the State Government that the powers of Metropolitan Magistrate to issue caste certificates were taken away only with effect from 1st March, 1986. We do not need to go into the question whether the petitioner was a resident of Bombay so as to be entitled to a caste certificate from the said Magistrate.
29. In the result, the appeal is dismissed. The petition, having been heard by consent, is made absolute in terms of prayers (a) & (c). No order as to costs throughout.