High Court
Legal Reasoning
- 4 -all these pre-independence documents, which are submitted by thepetitioner and which are obtained by the Vigilance Cell, the caste of thepaternal side relatives of the Petitioner is shown as “Thakur”. There isno document showing any entry other than Thakur. The Vigilance Cellhas conducted enquiry and there is no dispute about the relationship ofthe Petitioner with the persons whose documents are submitted insupport of her caste claim.It is pertinent to note that the oldest document is of the year1918, which is an extract of village form No.14 of Mahadu MahipatDabali, who was grandfather of the petitioner. Apart from this, thereare documents of the year 1923, 1927, 1933 and 1942, which allconsistently show that the petitioner’s paternal uncle, paternalgrandfather belonged to Thakur caste. The documents submitted by thepetitioner and the documents obtained by the Vigilance Cell are in thenature of extracts of birth and death registers, revenue entries andschool leaving certificates. The Petitioner has also relied on castevalidity certificate of her cousin Dilip Pundalik Thakur, which wasgranted on the basis of the orders passed by this Court.7.It is interesting to note that as regards all these documentskhs/Nov.2024/8161 - 5 -submitted by the petitioner, the Committee has observed in theimpugned order that although there are entries of the caste “Thakur”,but there was nothing to conclude that the paternal side relatives of thepetitioner were belonging to a Scheduled Tribe. On this pretext, theCommittee has discarded all these documents. While deciding the issueas to whether the petitioner has established her caste claim on the basisof the documentary evidence, the Committee has ignored thedocuments filed by her, mentioning caste as “Thakur”, but has givenreference to the documents of other persons from Dhule Districtalleging that the persons belonging to the petitioner’s region have atsome point of time filed some documents showing their caste as Bhat,Bramhabhat etc. We are of the view that while deciding the casteclaim of a candidate, reference to the documents submitted by othercandidates, inspite of their independent caste claims, need not havebeen referred to much less relied upon. As regards the documentssubmitted by the petitioner, it is clear that in all the documents of pre-independence era, there is consistent entry of “Thakur”. TheCommittee has not assigned any reason for disbelieving thesedocuments and in view of the fact that the documents of pre-independence era have more probative value, the Committee ought tokhs/Nov.2024/8161 - 6 -have validated the caste claim on the basis of documentary evidence.The Committee has although referred to the validity certificate of hercousin Dilip Pundlik Thakur, it has wrongly discarded it by observingthat the validity was given long back and on the basis of thecircumstances existing at that time. We are of the view that thereasons to discard the validity certificate under this pretext iserroneous.8.So far as affinity test is concerned, the Committee hasobserved that the petitioner has failed in the test, however, it may beseen that there is no reason stated in the impugned order specificallypointing out as to why and how the petitioner failed in the affinity test.The Vigilance Cell report shows that the petitioner had narratedcustoms and traditions about her caste and there is no precise reason toconclude that she had failed in the affinity test. By now, the position ofLaw is settled that affinity test is not the litmus test as laid down inAnand Vs.Committee for Scrutiny and Verification of Tribe Claims andothers, reported at [(2012) 1 SCC 113]. So also the three Judge Benchof the Hon’ble Supreme Court has reiterated the position inMaharashtra Adiwasi Thakur Jamat Swarakshan Samiti Vs. The State ofkhs/Nov.2024/8161 - 7 -Maharashtra and others [2023 SCC Online 326], that affinity testcannot be considered to be conclusive. Thus, invalidation of casteclaim only on account of failure of affinity test is not appreciated. 9.Although the Committee has observed that the petitioner’sforefathers are not from scheduled areas, as regards the issue of arearestriction, it is to be noted that the area restriction has been removedby the Amendment Act, 1976. Further in view of the authoraritivepronouncements of the apex Court in Palghat Jilla Thandan SamudhayaSamrakshna Samithi and another Vs. State of Kerala [1994 SCC (1)359] and Jaywant Pawar Vs. The State of Maharashtra and others inCivil Appeal No.2336/2011, decided on 08.03.2017, the caste claimcould not have been invalidated on the ground of area restriction.10.On the basis of objective scrutiny of the entire matter, weare of the view that the impugned order ignores the pre-independencedocuments, and illegally applies affinity test and area restriction andtherefore, is not sustainable. For the reasons recorded above, theimpugned order deserves to be quashed and set aside. Hence followingorder :-khs/Nov.2024/8161
Arguments
- 1 -IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO.8161 OF 2020Ratna d/o Bhatu Thakur,Age-34 years, Occu-Village Panchayat Member,R/o Salve, Tq.Sindkheda, Dist.Dhule,presently residing at -Plot No.16, Gurukripa Colony,Sindkheda, Tq.Sindkheda, Dist. Dhule -- PETITIONER VERSUS1. The State of MaharashtraDepartment of Tribal Development,Mantralaya, Mumbai – 32,Through it’s Secretary2. The Scheduled Tribe Certificate ScrutinyCommittee, Nandurbar Division, Nandurbar,Through it’s Member Secretary,3. The Collector,Office of the Collectorate,Dhule, Dist.Dhule,4. The Tahsildar,Sindkheda, Dist.Dhule -- RESPONDENTSMr.S.C.Yeramwar, Advocate for the petitioner.Ms.V.N.Patil-Jadhav, AGP for respondent Nos. 1 to 4. ( CORAM : MANGESH S. PATIL AND PRAFULLA S. KHUBALKAR, JJ. ) DATE : NOVEMBER 26, 2024khs/Nov.2024/8161 - 2 - ORAL JUDGMENT : (Per Prafulla S.Khubalkar, J.)1.Rule. Rule made returnable forthwith. Heard finally byconsent of parties.2. The petitioner assails the order dated 09.11.2020 passedby respondent No.2 / Caste Scrutiny Committee thereby invalidatingher claim of “Thakur” Scheduled Tribe.3. The petitioner claims to be an elected Member of the GramPanhayat Salve, Tq.Sindkheda, Dist.Dhule from the Scheduled TribeCategory. Her caste claim was referred by respondent No.4, Talshildarto respondent No.2 / Scrutiny Committee. In support of her claim, thepetitioner submitted before the Caste Scrutiny Committee 33documents including various documents of pre-independence era. TheVigilance Enquiry was conducted and the Vigilance Cell submitted itsreport dated 07.10.2020. This report was served upon the petitionerwith a show cause notice dated 17.02.2020. In response she submittedreply on 12.10.2020.4.By order dated 09.11.2020, the Scrutiny Committeekhs/Nov.2024/8161 - 3 -invalidated the petitioner’s caste claim by concluding that she failed toestablish her claim on the basis of documentary evidence, affinity andalso on account of her residence being not from the scheduled area.5.The petitioner assails the order of the Scrutiny Committeebefore this Court by raising several grounds, including that theCommittee failed to consider the pre-independence documents from theyear 1918 onwards, which have high probative value and that theCommittee has wrongly concluded about failure of the petitioner inclearing the affinity test. 6.We have heard both the parties eraboratively and perusedthe entire record of the case. It is undisputed that in support of herclaim of “Thakur” Scheduled Tribe, the petitioner had submitted beforethe Committee total 33 documents, including 9 documents of pre-independence era. Thereafter, she again submitted 3 documents of pre-independence era. All these documents are with respect to the paternalside relatives of the petitioner. During the course of vigilance enquiry,the Vigilance Cell also obtained 10 documents related to her paternalside relative, which include 5 documents of pre-independence era. Inkhs/Nov.2024/8161
Decision
- 8 -[a]The Writ Petition is allowed. [b]The impugned order dated 09.11.2020, passed by respondentNo.2/Caste Scrutiny Committee is hereby quashed and set aside. [c]Respondent No.2 / The Scheduled Tribe Certificate ScrutinyCommittee, Nandurbar Division, Nandurbar is hereby directed toimmediately issue the validity certificate of “Thakur” Scheduled Tribe tothe Petitioner. [d]There shall be no order as to costs. [e]Rule is made absolute in above terms. ( PRAFULLA S. KHUBALKAR, J.) ( MANGESH S. PATIL, J.)khs/Nov.2024/8161