Bombay High Court
Harsha Narendra Thakur And Another vs The State Of Maharashtra And Another on 8 January, 2021
Equivalent citations: AIRONLINE 2021 BOM 232
Author: Shrikant D. Kulkarni
Bench: S.V. Gangapurwala, Shrikant D. Kulkarni
85-wp-8484-20 (Jt.)
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8484 OF 2020
1. Harsha D/o Narendra Thakur
Age - 19 years, Occu.: Student,
2. Tushar S/o Narendra Thakur
Age - Minor, Occu.: Student
Both R/o Plot No.24, Gat No.61/2 + 3/2
Kolhe Nagar (West), Jalgaon,
Tq. & Dist. Jalgaon. ... Petitioners.
Versus
1. The State of Maharashtra
Department of Tribal Development,
Mantralaya, Mumbai - 32
Through its Secretary
2. The Scheduled Tribe Certificate Scrutiny
Committee, Nandurbar Division,
Nandurbar,
Through its Member Secretary. ... Respondents.
....
Mr. Sushant C. Yeramwar, Advocate for the Petitioners.
M. P.S. Patil, Addl.Government Pleader for Respondent Nos.1 and 2.
....
CORAM : S.V. GANGAPURWALA AND
SHRIKANT D. KULKARNI, JJ.
Closed for Judgment on : 04.01.2021
Judgment Pronounced on : 08.01.2021
JUDGMENT (PER SHRIKANT D. KULKARNI, J.) :-
1. Rule. Rule made returnable forthwith. With the consent of learned counsel of both the sides, heard finally at admission stage.
1 of 9 ::: Uploaded on - 08/01/2021 ::: Downloaded on - 07/02/2021 05:19:31 ::: 85-wp-8484-20 (Jt.) 2
2. By invoking writ jurisdiction under Article 226 of the Constitution of India, the petitioners have assailed the impugned order passed by respondent No.2 / The Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Division, Nandurbar (hereinafter referred to as the "committee") thereby invalidating caste claim of the petitioners belong to "Thakur Scheduled Tribe".
3. According to the petitioners, their proposals for verification of tribe claim were referred to respondent No.2 / committee through their respective colleges along with documentary evidence. The vigilance officer has conducted an enquiry and submitted its report dated 04.12.2020 to the committee. The petitioners have submitted their reply in response to the show cause notice issued by the committee and also participated in the personal hearing. The committee has invalidated tribe claims of the petitioners on following three points.
(i) The petitioners have failed to prove their tribe claim on the basis of documentary evidence.
(ii) The petitioners are not entitled to get benefit of tribe validity certificate of blood relatives.
(iii) The petitioners have failed to prove their cultural affinity test.
2 of 9 ::: Uploaded on - 08/01/2021 ::: Downloaded on - 07/02/2021 05:19:31 ::: 85-wp-8484-20 (Jt.) 3
4. Mr. Yeramwar, learned counsel for the petitioners submitted that the school record of the petitioners' real grandfather namely Dharma Mango Thakur and cousin grandfather namely Santosh Mango Thakur dated 09.06.1954 and year 1958 respectively speaks their caste as 'Hindu Thakur'. The school record of the petitioners' real cousin great-grandfather namely Khandu Ramu Thakur also records the caste as 'Thakur' and date of birth is mentioned as 01.04.1925. The school record of the petitioners' great great-grandfather namely Ramu Gullu Thakur also recorded caste as 'Thakur' and that record is of pre- constitutional period. Mr. Yeramwar, submitted that the petitioners have produced old school record right from petitioners great- grandfather and established that they belong to 'Thakur' Scheduled Tribe. The school record of the pre-constitutional period is also placed on record, which has more probative value. The committee has overlooked the old documents by observing that in the school record of petitioners' father and two aunts, the caste is recorded as 'Hindu Thakur' (b-ek- - other backward). He submitted that when there is old record clearly establishing the caste of the petitioners' family as 'Thakur' Scheduled Tribe, no more weightage can be given to such few entries.
3 of 9 ::: Uploaded on - 08/01/2021 ::: Downloaded on - 07/02/2021 05:19:31 ::: 85-wp-8484-20 (Jt.) 4
5. Mr. Yeramwar submitted that the findings recorded by the committee are erroneous. The committee has arrived at incorrect conclusion that the petitioners have failed to prove the affinity test. The said finding is contrary to the decision of Apex Court in case of Anand Vs. Committee for Scrutiny and Verification of Tribe claim and ors. reported in (2012)1 SCC 113. The affinity test is not a litmus test. The committee has given undue importance to the report submitted by the Research officer and arrived at incorrect conclusion. Mr. Yeramwar submitted that the impugned order passed by the committee is bad in law and liable to be quashed and set aside. The petitioners are entitled to get tribe validity certificates of being 'Thakur' Scheduled Tribe.
6. Per contra, Mr. P.S. Patil, learned Addl. G.P. submitted that the impugned order passed by the committee is well reasoned. The findings are based upon evidence produced before the committee. The committee has also discussed various decisions of the Apex Court and the Bombay High Court while invalidating tribe claim of the petitioners. The petitioners have failed to prove their tribe claim as 'Thakur' Scheduled Tribe. The impugned order can not be said to be defective in eyes of law.
4 of 9 ::: Uploaded on - 08/01/2021 ::: Downloaded on - 07/02/2021 05:19:31 ::: 85-wp-8484-20 (Jt.) 5
7. We have considered the arguments advanced by the learned counsel for the petitioners and learned Additional Government Pleader.
8. On making scrutiny of the proceeding, it is found that the petitioners have placed on record their genealogy and details of family as well as old record in support of their tribe claim. The petitioners have produced their school record, school record of their grandfather, great-grandfather, great great-grandfather and cousin great- grandfather, wherein their caste has been recorded as 'Hindu Thakur' / 'Thakur'. The petitioners have produced the following stock of documentary evidence in support of their tribe claim.
v- nLr,sotkpk izdkj nLr,sot/kkjdkps uko vtZnkj Tkkrhph Ukkasn.kh
Ø- ;kaP;k'kh ukrs ukasn fnukad
1- 'kkys; iqjkok [kaMw jkew Bkdwj pqyr Bkdwj 01-04-1925
iatksck
2- xkao uequk ua- 14 jkew [kaMw Bkdwj [kkij iatksck Bkdwj 10-09-1944
e`R;w ukasn
3- xkao uequk ua- 14 >haxk [kaMw jkew Bkdwj pqyr Bkdwj 12-12-1946
TkUe ukasn vktksck
4- 'kkys; iqjkok /kekZ ekaxks Bkdwj vktksck fganw Bkdwj 09-06-1954
5- 'kkys; iqjkok Lakrks"k ekaxks Bkdwj pqyr fganw Bkdwj 06-06-1958
vktksck
6- 'kkys; iqjkok ujsanz /kekZ Bkdwj oMhy fganw Bkdwj 16-07-1984
b-ek-
7- e`R;q izek.ki= Ekkaxks jkew Bkdwj iatksck & 20-11-1986
8- e`R;q izek.ki= [kaMw jkew Bkdwj pqyr & 21-12-1992
iatksck
9- e`R;q izek.ki= /kekZ ekaxks Bkdwj vktksck & 05-01-2006
10- 'kkys; iqjkok g"kkZ ujsanz Bkdwj vtZnkj dz- 1 fganw Bkdwj 16-06-2008
5 of 9
::: Uploaded on - 08/01/2021 ::: Downloaded on - 07/02/2021 05:19:31 :::
85-wp-8484-20 (Jt.)
6
11- 'kkys; iqjkok rq"kkj ujsanz Bkdwj vtZnkj dz-2 fganw Bkdwj 15-06-2009
12- 'kkys; iqjkok g"kkZ ujsanz Bkdwj vtZnkj dz- 1 fganw Bkdwj 15-06-2012
13- 'kkys; iqjkok rq"kkj ujsanz Bkdwj vtZnkj dz-2 fganw Bkdwj 17-06-2013
14- uequk ua- 8 lqjs'k Ekkaxks Bkdwj pqyr & 20-08-2019
vktksck
9. During the course of vigilance enquiry, it is found in the school record of petitioners' two aunts namely Sarla Dharma Thakur and Vandana Dharma Thakur, their caste is recorded as 'Hindu Thakur' (b-ek- - other backward) as also in the school record of petitioners' father. These are the few entries on which the committee has invalidated the tribe claim of the petitioners.
10. It is material to note that the petitioners have placed on record old school record of his cousin great-grandfather, great great- grandfather and grandfather right from the year 1925, 1944 and 1946, wherein caste 'Thakur' / 'Hindu Thakur' is recorded. Hindu is a religion and not a caste. The school record of Khandu Ramu Thakur (cousin great-grandfather of the petitioners) of 01.04.1925, Ramu Gullu Thakur (great great-grandfather of the petitioners) of 10.09.1944 and Zinga Khandu Thakur (second degree cousin grandfather) of 12.12.1946. These are the old school records, wherein the caste has been recorded as 'Thakur', which is a Scheduled Tribe as per the Presidential Order. The above referred three documents are of the pre- independence era, which have more probative value. The committee 6 of 9 ::: Uploaded on - 08/01/2021 ::: Downloaded on - 07/02/2021 05:19:31 ::: 85-wp-8484-20 (Jt.) 7 can not overlook those documents. Certainly, the tribe claim of the petitioners can not be doubted in the background of few entries of 'Thakur' Magas caste. The old documentary evidence needs to be believed and acted upon since it has more probative value.
11. The vigilance officer has not collected any contrary evidence to disbelieve old documentary evidence produced by the petitioners. There is no justifiable reason to discard the documents of the pre- independence era in the absence of any contra evidence. There is no vigilance report casting doubt like manipulation in the school record relied upon by the petitioners. The committee has completely overlooked this legal aspect and invalidated the caste claim of the petitioners by holding that the petitioners have failed to prove their tribe claim for want of evidence.
12. Now coming to the another aspect of failure to pass the affinity test. We would like to place reliance in case of Anand (supra), wherein it is observed by the Hon'ble Supreme Court that the affinity test is not a litmus test. While dealing with documentary evidence, greater reliance may be placed on pre-independence documents because they furnish a higher degree of probative value to the declaration of status of a caste, as compared to post-independence documents. While applying the affinity test, which focuses on the ethnological 7 of 9 ::: Uploaded on - 08/01/2021 ::: Downloaded on - 07/02/2021 05:19:31 ::: 85-wp-8484-20 (Jt.) 8 connections with the Scheduled Tribe, a cautious approach has to be adopted. the affinity test may not be regarded as a litmus test for establishing the link of the petitioners with a Scheduled Tribe. Nevertheless, the claim by the petitioners 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 tribe's peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies, etc. Thus, the affinity test may be used to corroborate the documentary evidence and should not be the sole criteria to reject a claim.
13. On careful scrutiny of the genealogy coupled with the documentary evidence produced by the petitioners right from the pre- independence era make out a clear picture that the caste of the family of the petitioners is recorded as 'Thakur' since the year 1925. In the above background, no more weightage can be given to the affinity test and anthropological and ethnological traits.
14. In the light of 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 8 of 9 ::: Uploaded on - 08/01/2021 ::: Downloaded on - 07/02/2021 05:19:31 ::: 85-wp-8484-20 (Jt.) 9 conclusion. The impugned order passed by the committee invalidating tribe claim of the petitioners needs to be quashed and set aside. The petitioners are entitled to get the tribe validity certificate. With these reasons, we conclude and proceed to pass the following order.
ORDER
(i) The impugned order passed by respondent No.2 / Scrutiny Committee, Nandurbar dated 09.12.2020 is hereby quashed and set aside.
(ii) Respondent No.2 / Scrutiny Committee, Nandurbar shall issue validity certificate to the petitioners of being a member of 'Thakur' Scheduled Tribe' forthwith.
(iii) Rule is made absolute accordingly.
(iv) The writ petition is disposed of. No order as to costs.
( SHRIKANT D. KULKARNI ) ( S.V. GANGAPURWALA )
JUDGE JUDGE
S.P. Rane
9 of 9
::: Uploaded on - 08/01/2021 ::: Downloaded on - 07/02/2021 05:19:31 :::