Bombay High Court
Durvesh Sharad Tawar vs The State Of Maharashtra And Another on 15 December, 2023
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2023:BHC-AUG:27304-DB 1 WP12527.2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO. 12527 OF 2019
Durvesh Sharad Tawar,
Age : 19 years, Occu. Student,
R/o. 34, Satsang Colony, Deopur,
Tq. Dist. Dhule. ....Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
Tribal Development Department,
Mantralaya, Mumbai.
2. The Scheduled Tribe Certificaet
Scrutiny Committee, Nandurbar,
through its Member Secretary ...Respondents
.....
Mr. Mahesh S. Deshmukh - Advocate i/b Mr. Vasant S. Bholankar -
Advocate for the Petitioner
Mr. Govind A. Kulkarni - AGP for respondent nos. 1 and 2
.....
CORAM : MANGESH S. PATIL
AND
NEERAJ P. DHOTE, JJ.
DATED : 15TH DECEMBER 2023
JUDGMENT [ Per : Neeraj P. Dhote, J. ] : -
1. Rule. Rule made returnable forthwith. Heard finally with
the consent of the parties. Perused the papers.
2. The Petitioner by this petition challenges the order dated
31.07.2019 passed by Respondent No. 2 - Scrutiny Committee
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invalidating his tribe claim of belonging to 'Tokre Koli' Scheduled Tribe.
The Petitioner, who is a student, is pursuing education for which validity
certificate is required and, therefore, applied to the Respondent No. 2 -
Scrutiny Committee, which has invalidated the claim by the impugned
order.
3. It is submitted by the learned Advocate for the Petitioner
that though the Petitioner had tendered the copies of pre-independence
documents in respect of his blood relatives i.e. the cousin grandfather
and grand aunt supporting the claim, Respondent No. 2 - Committee has
not considered the same. He further submitted that though there are
several validities granted to the blood relatives of the Petitioner including
his father - Sharad Hilal Tawar, the Committee invalidated his tribe claim.
It is submitted that though the oldest entries are of 'Dhor Koli', those
cannot be the impediment to grant validity of 'Tokre Koli', since both the
tribes fall in the same Entry No. 28 in the Constitution (Scheduled
Tribes) Order, 1950. It is submitted that though the Vigilance
Committee has concluded that the documents of the blood relatives of
the Petitioner showing entry as 'Koli', they are of the subsequent period
and cannot override the pre-independence entries. He, therefore,
submits that the Petition be allowed.
4. Learned AGP submitted that the Scrutiny Committee has
properly invalidated the tribe claim of the Petitioner, as none of the
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documents support his claim. He submitted that the blood relatives of
the Petitioner have been granted validities in defiance of the procedure
under law. He also submitted that it was found during vigilance inquiry
that the documents and the affinity test did not support the petitioner's
claim. He, therefore, prays for dismissal of the petition.
5. The undisputed genealogy as shown in the impugned order
is as follows :
Hari
Khushal Gobaji Supdu Zaga Yadav
Gardu Tryambak Chandra Suraji Arjun
Madhav
Suraji Hiraji Prabhakar
Shivram Raman
Sakhubai Tanaji
Pandu Eknath
Zulal Hilal Ratilal Housabai Dupabai Saribai Shantabai
Suman Vimal Keshu Sushila Eknath
Pushpa
Dinkar
Bhavji
Shobha
Sundar Rajaram Bhoju Vinayak
Mitharam Kalpana
Bhamubai
Punamchand
Aastha
Daulatrao Bhagirathi Baburao Hiralal Vasant Bhagat Tarabai Yash
Archana Vijay Ashok
Pravin
Jagan
Sunil Madan Siddhi
Dipak Arti Suresh Devka
Sharad
Mukund Purushottam
Yashasvi
Suvarna Prasad Lata Kishor
Sarvadi
Shivaji
Dhananjay Rashmi Ganesh Prashant
Sushila Durvesh Anupama Dipali Lina
Tejasvini Trupti Mansi
Kisan
6. The impugned order shows that the Petitioner had tendered
the following documentary proof in support of his claim :
Sr. Name of Name of a person Caste Admission/ Remark
No. document on document entry Entry Date
1. Proof of Sari Tanaji Suraji Dho. Koli Date of birth The evidence could not
birth 06.11.1928 be certified as true
during the vigilance
2. Proof of Hilal Tanaji Suraji Dhor Koli Date of birth
inquiry because it was
birth 25.03.1935
not available in the
office.
4 WP12527.2019.odt
3. School proof Prabhakar Madhav Hindu Koli 09.06.1943 Prima facie it appears,
Tawar (Dhor) that the word 'Dhor'
was added in the main
entry 'Hindu Koli'.
6.1. From the above chart, if we see the genealogy and the
documents tendered by Petitioner in support of his claim, it clearly goes
BHC to show that Sari Tanaji Suraji and Hilal Tanaji Suraji are the blood
relatives being grand aunt and grandfather, respectively, of the
Petitioner. The caste entries against their names show 'Dho Koli' and
'Dhor Koli' of 06.11.1928 and 25.03.1935, respectively. The impugned
order shows that the Respondent No. 2 - Committee has not at all
considered and discussed about the said oldest entries, though it was
duty bound to do so.
7. The other aspect which falls for our consideration is that
the Petitioner claims to be belonging to 'Tokre Koli' tribe; whereas, the
said two entries of pre-constitution period are of 'Dhor Koli'. As per the
Constitution (Scheduled Tribes) Order, 1950, the entry no. 28 shows
castes such as Koli, Dhor, Tokre Koli, Kolcha, Kolgha. The order passed
by the Scrutiny Committee, Nashik in the matter of Satish Prabhakar
Tawar, who is blood relative, being uncle of the petitioner, is annexed as
'Exhibit P' to the Petition. Perusal of this order shows that Satish
Prabhakar Tawar claimed to be belonging to 'Koli Dhor' Scheduled Tribe
and was given benefit of the validities of his blood relatives, namely,
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Sharad Hilal Tawar, Mukund Hilal Tawar, Pravin Hilal Tawar and Diapli
Sharad Tawar by the then Scrutiny Committee of 'Tokre Koli' Scheduled
Tribe. That order further shows that the School Leaving Certificate of
his father mentioned caste as 'Hindu Koli (Dhor)'. This shows that 'Tokre
Koli' entry was considered and accepted for the claim towards 'Dhor Koli'
Scheduled Tribe. Further, this Court in Writ Petition No. 9654 of 2019
(Nilesh s/o Gulab Sonawane and another Versus The State of
Maharashtra & Ors, decided on 18.10.2023) dealt with a similar issue in
which the tribe claim was towards 'Tokre Koli' and the oldest documents
which were available / tendered were showing the Caste/Tribe as 'Koli
Dhor' / 'Tokre Koli' and by considering the entry no. 28 of the
Constitution (Scheduled Tribe) Order, 1950, this Court observed in
paragraph nos. 6 and 14 as under : -
"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 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.
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
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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 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."
7.1. The Writ Petition was allowed and the Scrutiny Committee
was directed to issue tribe validity certificate of 'Tokre Koli' Scheduled
Tribe to the Petitioners therein.
8. From the above discussion, it becomes clear that though
two oldest documents of Petitioner's blood relatives show the caste as
'Dhor Koli', they will not be an impediment for claim towards 'Tokre Koli'
Scheduled Tribe. Needless to state that the pre-constitutional entries
have a greater probative value. One of the judgments in that regard is in
the case of Anand .vrs. Committee for Scrutiny and Verification of
Tribe Claims and others reported at 2011 (6) Mh.L.J. 919. Thus, these
two entries would certainly come to the aid of the Petitioner.
9. There is no dispute that there are certain validities granted
to the blood relatives of the Petitioner. The papers show that, the
Scrutiny Committee at Nashik, vide order dated 24.11.1997 held the
caste certificate of Petitioner's father Sharad Hilal Tawar as valid.
Record further shows that Pravin Hilal Tawar, Ku. Anupama Sharad
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Tawar, Lina Sharad Tawar and Ku. Dipali Sharad Tawar have been issued
validities of 'Tokre Koli' Scheduled Tribe. Further the blood relatives,
namely, Aditi Tawar, Nikhil Sharadkumar Tawar, Rushikesh Rajendra
Tawar, Rutuja Tawar have also been granted the validites as 'Koli Dhor'
Scheduled Tribe, pursuant to the orders passed by this Court in Writ
Petition No. 810 of 2023 and 8651 of 2022, dated 08.08.2023 and
07.09.2023, respectively.
10. It is seen from the impugned order that during the vigilance
inquiry in the case of Petitioner, the documents of the blood relatives of
the Petitioner showing the caste as Koli / Hindu Koli / Hindu Mahadev
Koli / Hindu Suryawanshi Koli / Hindu Tokre Koli came to be collected.
However, all those entries are from the year 1941 and onwards which
are subsequent to the above referred two oldest entries. As observed
above, the pre-constitutional period entries would have more probative
value.
11. The impugned order shows that during the vigilance inquiry,
the said two entries of 1928 and 1935 could not be certified as a true
because the original record was not found in the concerned office. On
this aspect, it is submitted by the learned advocate for the Petitioner
that the said entries were issued from the concerned Tahsil Office and
there are communications in that regard at Exh. 'I' and 'J' in the petition.
8 WP12527.2019.odt
Perusal of the Exhibits shows that they were issued by the Tahsil Office,
Shirpur, Dist. Dhule and the said communications are dated 20.07.2019
addressed to the Petitioner's father - Sharad.
12. Perusal of the said documents show that the said Tahsil
Office of Shirpur has certified that the copies of the entries were issued
from their office under the signature and seal of that office. These two
communications are not disputed by the Respondent / State / Scrutiny
Committee. The two original letters issued by the Tahsil Office, Shripur,
find place in the record of the Respondent No. 2 - Scrutiny Committee
at page Nos. 65 and 66. It is nobody's case that the entries of Sari Tanaji
Suraji dated 06.11.1928 and Hilal Tanaji Suraji dated 25.03.1935 are
manipulated or fabricated.
13. Perusal of the order passed by the Scrutiny Committee in
the matter of Ku. Dipali Sharad Tawar, Lina Sharad Tawar, Ku. Anupama
Sharad Tawar and Pravin Hilal Tawar show that there is no reference to
the vigilance cell report. However, the vigilance inquiry in the case in
hand is done and even if the validities towards the blood relatives of the
Petitioner are discarded, the two oldest entries of 1928 and 1935
corroborate the Petitioner's claim. Under such circumstances, it can
conveniently be said that the Petitioner has made out a case for issuing
validity certificate, of course subject to the final outcome of the cases of
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his blood relatives which the Committee has decided to re-open.
14. In the backdrop of the above discussion, we pass the
following order : -
ORDER
[i] Writ Petition is partly allowed.
[ii] The impugned Judgment and Order dated 31.07.2019 passed by the Respondent No. 2 - Scrutiny Committee is set aside.
[iii] The Scrutiny Committee shall issue tribe validity certificate in favour of the Petitioner as 'Tokre Koli' Scheduled Tribe, within a period of two weeks from today, subject to the final outcome of the cases of the blood relatives of the Petitioner which the Committee has decided to reopen.
[iv] The petitioner shall not claim any equity.
[NEERAJ P. DHOTE] [MANGESH S. PATIL]
JUDGE JUDGE
SG Punde
Signed by: Sandeep Gulabrao Punde Designation: PS To Honourable Judge Date: 04/01/2024 18:51:32