Bombay High Court
Nilesh Gulab Sonawane And Others vs The State Of Maharashtra And Others on 18 October, 2023
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2023:BHC-AUG:22411-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 9654 / 2019
1. Nilesh s/o Gulab Sonawane,
Age : 19 years, Occu. Education
2. Miss Priyanka d/o Gulab Sonawane,
Age : 18 years, Occ. Education
Both are r/o Sahur, Post Tavkheda,
Taluka Sindkheda, District Dhule. ...Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
Tribal Development Department,
Mantralaya, Mumbai.
2. The Scheduled Tribe Certificate Scrutiny Committee,
Nandurbar, through its Member Secretary.
3. Maharashtra State Council of Agricultural
Education and Research,
132/B, Bhamburda, Pune
Through its Director General.
4. Vasantrao Naik Marathwada
Krishi Vidyapeeth, Parbhani,
Through its Registrar.
5. Kavayitri Bahinabai Chaudhari
North Maharashtra University, Jalgaon
Through its Registrar.
6. R.C. Patel College of Pharmacy,
Sirpur, Taluka Sirpur,
District Dhule,
Through its Principal. ...Respondents
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___
Mr. Barlinge S.R., Advocate for the Petitioners.
Mr. A. S. Shinde, AGP for Respondent No.1 & 2/State.
___
CORAM : MANGESH S. PATIL &
SHAILESH P. BRAHME, JJ.
RESERVED ON : 11 OCTOBER 2023.
PRONOUNCED ON : 18 OCTOBER 2023.
FINAL ORDER [ SHAILESH P. BRAHME, J. ] :
. Heard both the sides finally at the admission stage.
2. The petitioners are challenging judgment and order dated
29.07.2019 passed by the respondent no.2/Scrutiny Committee
invalidating their tribe certificates of 'Tokre Koli' scheduled tribe and
confiscating the same.
3. The petitioners are relying upon the school record and the birth
registration record. According to them following are the clinching
documents to support their claim.
Sr. Name Relation Record Caste Date
No.
1 Avachit Kalu Great School Koli Dhor 01.03.1909
grandfather record
2 Daulat Kalu Jugru Cousin great School Dhor Koli 30.08.1913
grandfather record
3 Kesari Avachit Kalu Father's Birth Koli 30.05.1929
aunt registration Tokre
4 Rupi Avachit Father's Birth Koli 12.05.1931
aunt registration Tokre
5 Tanbhau Avachit Grandfather School Hindu 04.04.1941
record Tokre
6 Nanbhau Avachit Cousin School Tokre 15.06.1947
grandfather record Koli
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. The above record is of pre-independence period and has greater
probative value.
4. The learned Counsel for the petitioners would submit that the
record indicating contrary entries is comparatively of the recent period.
The record which is sought to be relied upon by the petitioners would
prevail being older one. However the Scrutiny Committee committed
perversity in preferring the contrary entries. The learned Counsel for the
petitioners has emphatically insisted upon oldest record of Avachit Kalu
indicating the caste Koli Dhor which is of 01.03.1909.
5. The learned Counsel for the petitioners has placed on record the
vigilance report which is conducted in the matters of the petitioners. The
old record was verified and vigilance officer found that the school record
of Daulat Kalu Jugru of 1913 indicates caste as Dhor Koli, record of
Kesari of 1929 and record of Rupi of 1931 indicate caste as Koli Tokre.
This aspect of the matter according to the learned Counsel is lost sight of
by the Committee which amounts to perversity.
6. The learned Counsel for the petitioners would submit that the
entry no. 28 of Scheduled Tribe Order 1950 shows following caste :
Koli Dhor; Tokre Koli; Kolcha; Kolgha.
. There is no difference in the caste Tokre Koli or Dhor Koli.
Therefore the finding recorded by the Committee for rejecting the caste
claim of the petitioners that few entries would show caste as Koli Dhor
whereas the claim of the petitioners of Tokre Koli is unsustainable. As
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both the castes are at entry no.28, the record showing Koli Dhor can be
said to be compatible with the tribe claim of the petitioners.
7. The learned AGP would oppose the claim of the petitioners. He
would submit that the Committee has rightly considered the contrary
entries of the close relatives of the petitioners indicating caste as Koli.
According to him, following are the pre-constitutional entries which are
incompatible with the claim of the petitioners:
Sr. Name Relation Record Caste Date
No.
1 Avachit Kalu Great grandfather Revenue Koli
record
2 Dagdu Kalu Cousin great Revenue Koli 15.10.1915
grandfather record
3 Tanbhau Avachit Grandfather Revenue Koli 04.04.1941
record
8. The learned AGP submits that both the castes Tokre Koli and Koli
Dhor are different and the claim of the petitioners is inconsistent which is
correctly appreciated by the Committee. He would submit that the
Scrutiny Committee has rightly relied upon the report of the vigilance
officer in the matter of petitioner no.2/Priyanka. According to him, the
record of Tanbhau Avachit is suspicious. Considering the record secured
during the vigilance report, the caste of the petitioners is Koli which is
non-tribal. He submits that the record of Nanbhau Avachit and
Tanbhau Avachit is doubtful.
9. The learned AGP would support the findings recorded by the
Committee that there is no linkage between the members of Tokre Koli
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and Dhor Koli. The learned AGP supports the findings of the affinity
test recorded against the petitioners. According to him, the petitioners
have not produced satisfactory evidence to support their tribe claim. He
would urge to dismiss the petition.
10. We have considered the rival submissions canvassed by the learned
Counsel for both the sides. The learned AGP has produced on record the
original file of the petitioners to show the entries from the record
produced before the Committee.
11. The learned Counsel for the petitioners has referred to genealogy
which is relevant to appreciate the relationship of the petitioners with the
persons whose record is sought to be relied. The respondents have not
disputed the relationship. The petitioners have relied upon the pre-
constitutional entries indicating the caste of their paternal side relatives
as Koli Dhor and Koli Tokre. Such entries are shown in the tabular form
in paragraph no.3. As against this, learned AGP has also relied upon the
contrary entries of pre-constitutional period which is reflected in above
paragraph no.7.
12. We have compared the entries and the period. It transpires that
entry of Avachit Kalu of 01.03.1909 is of Koli Dhor which is the oldest
entry relied upon by the petitioners. Entry of Daulat Kalu indicating
Dhor Koli is of 30.08.1913. These entries are prior in time than the entry
of Dagdu Koli indicating caste as Koli of 15.10.1915, which is the
contrary entry. The school leaving certificate of oldest entry of
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01.03.1909 of Avachit Kalu is produced on record at Page No.49. The
said entry was part of the vigilance enquiry and it is castigated being
entry of Koli Dhor and not Tokre Koli. Except that we do not find any
adverse remark for it. We are of the considered view that entry of
Avachit Kalu would prevail which has greater probative value.
13. So far as the entry of Daulat Kalu is concerned of 30.08.1913, this is
also prior to the contrary entry of Dagdu Kalu of 15.10.1915. The
vigilance report placed on record by the learned Counsel for the
petitioners during the course of argument shows due verification of entry
of Daulat Kalu of 1913. There is absolutely no adverse remarks for it.
This entry corroborates the claim of the petitioners. We are of the
considered view that entries of Avachit and Daulat are clinching and
decisive. In view of such entries, the contrary entries pressed into service
by the learned AGP are inconsequential. We find that the Scrutiny
Committee has committed perversity in discarding the entries of Daulat
and Avachit. These two entries are not at all dealt with by the
Committee.
14. The learned Counsel for the petitioners has invited our attention to
entry no.28 of the Constitution (Scheduled Tribe) Order, 1950. Tokre
Koli and Koli Dhor are included in the entry. There is combined record
showing the caste of the relatives of the petitioners as Tokre Koli and
Koli Dhor. Those were recorded during the period of pre-independence.
It cannot be inferred that there was any oblique motive to record the
caste. The reference of Koli Dhor or Tokre Koli cannot be treated to be
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contrary entry. Both are scheduled tribes. The difference in nomenclature
may not change social status as both the caste are included in one entry.
The finding of the Scrutiny Committee is not sustainable.
15. We find that the record of Kesari and Rupi which is of 1929 and
1931 respectively shows caste as Koli Tokre. This record is also verified
by the vigilance officer and there is no adverse remarks or any suspicion
about these entries. The Committee has also not doubted the entries.
We find that this is a pre-constitutional record and it corroborates the
claim of the petitioners. We have no hesitation to record that the
petitioners have made out a case for issuing validity certificates.
16. The petitioners have relied upon the pre-constitutional record
which is verified during the vigilance enquiry and there are no adverse
remarks against the entries. These entries are decisive and should enure
to the benefit to the petitioners. A useful reference can be made to the
decision of the Supreme Court in the matter of Anand Versus
Committee for Scrutiny and Verification of Tribe Claims and
Others, reported in (2012) 1 SCC 113. The findings of the affinity test
may not assist the learned AGP. The Supreme Court in the matter of
Maharashtra Adavasi Thakur Jamat Swarakshak Samiti vs.
State of Maharashtra & others reported in 2023(2) Mh.L.J.785, has
confirmed that the affinity test is not a litmus test and decisive.
17. We hold that the impugned judgment and order is unsustainable.
We, therefore, pass the following order.
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ORDER
(i) The judgment and order dated 29.07.2019 passed by the Scrutiny Committee is quashed and set aside.
(ii) The Scrutiny Committee shall issue tribe validity certificates of 'Tokre Koli scheduled tribe' to the petitioners forthwith.
(iii) The writ petition is allowed in the above terms.
[SHAILESH P. BRAHME, J.] [MANGESH S. PATIL, J.] NAJEEB...
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