Bombay High Court
Ku. Arya D/O Mahendra Swami Guardian ... vs The State Of Maharashtra, Through Its ... on 23 September, 2019
Author: Vinay Joshi
Bench: R. K. Deshpande, Vinay Joshi
Judgment 1 73wp5728.19 .odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Writ Petition No. 5728/2019
Ku. Arya D/o Mahendra Swami,
Aged about 17 years, Occ. Student (Minor)
through her legal guardian/father Shri Mahendra
Pappanna Swami, aged about 50 yrs.,
Occ. Service, R/o. Kulswamini Vihar,
behind Unique Tower, Saturna, Sai
Nagar Road, Amravati - 444607.
.... PETITIONER
// VERSUS //
1. The State of Maharashtra,
Through its Secretary, Tribal Development Department,
Mantralaya, Mumbai - 32.
2. The Scheduled Tribe Certificate Scrutiny
Committee, Amravati Division, Amravati, through
its Deputy Director & Member Secretary having
office at Irwin Chowk, Morshi Road, Amravati.
.... RESPONDENTS
_________________________________________________________________
Shri A. I. Sheikh, Advocate for the petitioner.
Shri A. M. Joshi, Assistant Government Pleader for respondent Nos. 1 & 2.
___________________________________________________________________
CORAM: R. K. DESHPANDE AND
VINAY JOSHI, JJ.
DATE OF JUDGMENT :- 23.09.2019
JUDGMENT (PER VINAY JOSHI, J.)
Rule made returnable forthwith. Heard finally by consent of the learned counsel appearing for the parties. ::: Uploaded on - 26/09/2019 ::: Downloaded on - 19/04/2020 19:17:36 :::
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2. This petition is filed under Article 226 and 227 of the Constitution of India, praying to quash and set aside the order dated 05.07.2019, passed by respondent no.2 Scheduled Tribe Certificate Scrutiny Committee, Amravati Division, Amravati by which the caste claim of petitioner as belonging to 'Mannewar' Scheduled Tribe has been invalidated. The petitioner is also seeking a direction to the Scrutiny Committee to issue caste validity certificate.
3. The Sub-divisional Officer, Amravait has issued a caste certificate dated 11.08.2016 to the petitioner about 'Mannewar' caste which is an entry at Sr. No.18 of the Constitution (Scheduled Tribes) Order, 1950. The petitioner's tribal claim was submitted by her College to the respondent No. 2 - Committee for verification and issuance of validity certificate. The petitioner submitted various documents, including pre-constitutional documents in support of her caste claim. Petitioner's caste claim was inquired into by the Police Vigilance Cell. On receipt of the said report, the Scrutiny Committee has issued show cause notice to the petitioner and upon obtaining her explanation, expressed its dissatisfaction about genuineness of the caste claim and ultimately by the impugned order, invalidated her caste claim. ::: Uploaded on - 26/09/2019 ::: Downloaded on - 19/04/2020 19:17:36 :::
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4. Before the Committee, the petitioner filed 15 documents in support of her caste claim for 'Mannewar' Scheduled Tribe, whereas, the Police Vigilance Cell could secure 08 documents in relation to the blood relatives of the petitioner. The documents collected by the Vigilance Cell bears a caste as 'Telgu Mannewar', 'Telangi, etc. The petitioner's claim is rejected on the ground that the petitioner failed to substantiate her claim by adducing documentary evidence. Moreso, the documents collected by the Vigilance Cell, the caste is mentioned as 'Telgu Mannewar', 'Telangi'. The claim is also rejected by holding that the petitioner failed in affinity test.
5. We find that the petitioner has produced several pre- constitutional documents showing entry of 'Mannewar' caste. Particularly, petitioner has produced School Leaving Certificate of her cousin grandfather namely Mallanna Ramaiya dated 02.07.1926, School Leaving Certificate of her grandfather - Kumarswami @ Papanna dated 26.09.1935, birth date extract of her great-grandfather - Ramanna dated 22.10.1930. All these document bear the entry of 'Mannewar' caste. Though some of the old documents collected by the Vigilance Cell shows the entry of caste as 'Telangi', 'Telgu Mannewar'. These entry merely indicate the language and not caste. The said issue ::: Uploaded on - 26/09/2019 ::: Downloaded on - 19/04/2020 19:17:36 ::: Judgment 4 73wp5728.19 .odt is well covered by the decision of this Court in Writ Petition No. 4316/2017 (Shri Suresh Kumar Balkrishna Naidu Vs. The State of Maharashtra and another) decided on 04.04.2019. The documents therefore, have to be considered as it indicates that tribe name of 'Mannewar' which is entered right from the year 1916. Apart from this, there are other entries subsequent to the year 1950 indicating the caste of the blood relative as 'Mannewar'.
6. So far as the affinity test is concerned, the Hon'ble Supreme Court in case of Anand vrs. Committee for Scrutiny and Verification of Tribe Claims and others, [(2012) 1 SCC 113], held that, while dealing with the 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. In respect of affinity test, the Apex Court has laid down that a cautious approach has to be adopted and with the migration, modernization and contact with other communities, these communities tend to develop and adopt new traits which may not essentially match with the traditional characteristics of the tribe. It holds that the affinity test may not be recorded as litmus test for establishing the link of the applicant with the Scheduled Tribe. ::: Uploaded on - 26/09/2019 ::: Downloaded on - 19/04/2020 19:17:36 :::
Judgment 5 73wp5728.19 .odt The affinity test is to be used to corroborate the documentary evidence and it is not to be used as the sole criteria to reject a claim. The petitioner's case is covered by ratio of these decisions.
7. We therefore, find that the Committee erred in rejecting the claim of the petitioner for 'Mannewar' Scheduled Tribe. Thus, we hold that the petitioner has established her caste claim. In the result, we pass the following order:-
ORDER
(i) Writ Petition is allowed. Order dated 05.07.2019 passed by the Scheduled Tribe Certificate Scrutiny Committee, Amravati Division, Amravati is hereby quashed and set aside.
(ii) The claim of the petitioner for 'Mannewar' Scheduled Tribe which is an entry at Sr. No. 18 of the Constitution (Scheduled Tribes) Order, 1950 is held to be valid. The Committee is accordingly directed to issue Caste Validity Certificate in the name of the petitioner within a period of two months from the date of receipt of this order.
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8. Rule is made absolute in aforesaid terms. No order as to costs.
(Judge) (Judge)
Gohane.
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