Mr S. R. Barlinge, Advocate for petitionerMr v. M. Kagne, A.G.P. for
Facts
5321.09wp(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5321 OF 2009WITHCIVIL APPLICATION NO.9690 OF 2015INWRIT PETITION NO.5321 OF 2009Bhalchandra s/o Nathu Thakur,Age: 59 years, Occu: Pensioner,R/o. Plot No.2/1, Mayur Housing Society,Nimkhedi Shivar, Dhule Road, Jalgaon,Tq. & Dist. Jalgaon ….PETITIONERVERSUS1.The State of Maharashtra,Through Police Commissioner,Pune2.Schedule Tribes CertificateSecurity Committee,Nandurbar, Through itsMember Secretary3.The Executive Magistrate,Dhule, Tq. & Dist. Dhule4.The Account General-1,Maharashtra State,Near Church Gate Railway Station,Madam Kama Road, Mumbai5.The Director General of PoliceMaharashtra State, State PoliceHead Quarter, Mumbai ….RESPONDENTS ….Mr S. R. Barlinge, Advocate for petitionerMr V. M. Kagne, A.G.P. for respondents/State 5321.09wp(2) CORAM : MANGESH S. PATILAND PRAFULLA S. KHUBALKAR, JJ. DATE : 6th January, 2025JUDGMENT (Per : Prafulla S. Khubalkar, J.)1.Heard.2.Rule. Rule made returnable forthwith. By consent, heardthe parties for final hearing.3.The petitioner is taking exception to the judgment andorder dated 06/05/2009, passed by respondent No.2/scrutinycommittee invalidating the petitioner’s claim for ‘Thakur’ ScheduledTribe and instead issuing direction to initiate action against thepetitioner under Section 10(1)(2) of the Maharashtra Scheduled Castes,and Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), NomadicTribes, Other Backward Classes and Special Backward Category(Regulation of Issuance and Verification of) Caste Certificate Act,2000 (Maharashtra Act No.XXIII of 2001).4.The committee has invalidated the petitioner’s claimobserving that the petitioner has failed to establish his claim on thebasis of the documents as well as on account of failure in affinity test.
Legal Reasoning
5321.09wp(4) Mahesh Bhalchandra Thakur, dated 14/10/1999 and certificate ofvalidity dated 20/04/2004 in favour of his another son MukeshBhalchandra Thakur. Apart from the reliance on validity certificates ofthe children of the petitioner, it is argued that, in support of thepetitioner’s tribe claim, pre-independence era documents in the natureof School Leaving Certificates of the year 1935, 1938 and 1941, soalso the extracts of birth and death registers of the year 1924, 1930 and1939 were relied upon, which mentioned the caste of the forefathers ofthe petitioner as ‘Thakur’. By referring to these documents, it issubmitted that, in view of these documents of pre-independence era,which have high probative value and in absence of any contra entry inany other document, the petitioner’s claim ought to have beenvalidated on the strength of the documentary evidence.6.Per contra, Advocate V. M. Kagne, the learned A.G.P. forrespondent Nos.1 to 5 has opposed the petition and justified theimpugned order by contending that the validity certificates in favour ofthe children of the petitioner, cannot be made the sole basis. It issubmitted that, although the validity to the sons of the petitioner wasgranted on the basis of the orders passed by this Court in Writ PetitionNos.2746/1998 and 5454/1998, the legal position on the basis of which 5321.09wp(5) these writ petitions were decided was not subsequently maintained. Itis argued that the validity certificates of sons of the petitioner cannotbe sole basis to decide petitioner’s claim. It is submitted that the otherdocuments relied upon by the petitioner are rightly discarded in viewof the residence of the petitioner’s forefathers being not from thescheduled area.7.We have heard the parties, considered the rivalcontentions and perused the papers.8.It is to be noted that there is no challenge to thecertificates of validity in favour of the petitioner’s son Mahesh andMukesh. In view of the fact that the validities of the children of thepetitioner are granted by the competent authority and the same are notbeing questioned, the petitioner’s claim will have to be decided bygiving due weightage to these validity certificates. The reasoning ofthe committee while discarding these validity certificates is not at allappealing and the same demonstrates erroneous approach on the partof the caste scrutiny committee. Although the judgment in the matterof Kumari Madhuri Patil and anr. Vs. Addl. Commissioner, TribalDevelopment and others, [(1994) 6 Supreme Court Cases 241], laysdown that each and every case needs to be considered in the 5321.09wp(6) backdrop of its facts, it will be an anomalous situation to hold that thechildren and father belong to different castes. Apart from thesevalidity certificates, the other documentary evidence relied upon by thepetitioner being of pre-independence era, as referred above, cannot bediscarded only for the reason of area restriction. It view of undisputedposition about removal of area restriction, the reasons stated by thescrutiny committee for discarding the pre-independence documents arenot sustainable.9.In view of the position of law as laid down in the matterof Jaywant Dilip Pawar vs. State of Maharashtra and others, [2018(5) ALL MR 975] and Palghat Jilla Thandan SamudhayaSamrakshana Samithi and another Vs. State of Kerala andanother, [1994 (1) SCC 359], the rejection of caste claim bydiscarding documents only on account of residence of the candidatenot from scheduled area, cannot be sustained.10.Further, in view of the validity certificates in favour of thechildren of the petitioner, the petitioner is entitled to take benefit of thelaw laid down in the matter of Maharashtra Adiwasi Thakur JamatSwarakshan Samiti Vs. State of Maharashtra and others, [AIR2023 Supreme Court 1657] and Apoorva Vinay Nichale Vs.
Arguments
5321.09wp(3) The committee has, although considered the validity certificates infavour of sons of the petitioner, has opined that the petitioner’s claimcannot be conclusively decided on the basis of those validitycertificates since each and every case needs to be consideredindependently and in view of the legal position existing on the date ofpassing of the impugned order, the claim of the petitioner needs to beconsidered independently. The committee has thus refused to rely onthe validity certificates of the children of the petitioner. As regards thedocuments of pre-independence era, relied upon by the petitioner, thecommittee has discarded the documents by observing that, since theforefathers of the petitioner were residing in a place at TalukaSindkheda, District Dhule, which is not in the scheduled area for the‘Thakur’ Scheduled Tribe community, the documents cannot be of anyassistance in proving the petitioner’s tribe claim. Apart from giving itsfinding on the documents, the committee independently observed thatthe petitioner has failed in affinity test and with these observations, thepetitioner’s claim is invalidated.5.Assailing the order of the committee, Advocate S. R.Barlinge, the learned counsel for the petitioner invited our attention tothe certificate of validity granted in favour of the petitioner’s son
Decision
5321.09wp(7) Divisional Caste Certificate Scrutiny Committee No.1 and others;[2010 (6) Mh. L.J. 401]. 11.In view of the entire conspectus of the matter, thepetitioner is entitled for grant of validity certificate and the petitionneeds to be allowed. Hence, the following order :-(a)The writ petition is allowed.(b)The impugned order dated 06/05/2009, passed byrespondent No.2/caste scrutiny committee is quashed and setaside.(c)Respondent No.2/committee is directed to immediatelyissue the tribe validity certificate of ‘Thakur’ Scheduled Tribe tothe petitioner in the prescribed format.(d)Pending civil application also stands disposed of.(e)Rule is made absolute.(f)No order as to costs.(PRAFULLA S. KHUBALKAR, J.) (MANGESH S. PATIL, J.)sjk