High Court
Legal Reasoning
9(1).WP.9563.24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.9563 OF 20241.Pradip s/o Ramesh Shinde2.Sandip s/o Ramesh Shide … PETITIONERS VERSUS 1.The State of MaharashtraDevelopment of Tribal Development Mantralaya, Mumbai – 32through its Secretary2.The Scheduled Tribe CertificateScrutiny Committee, Kinwat (Headquarter - Chh. Sambhajinagar)Tq. & Dist. Chh. Sambhajinagarthrough its Member Secretary… RESPONDENTS …Advocate for petitioner : Mr. S.C. YeramwarAddl.G.P. for respondent/State : Mr. P.S. Patil… CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.DATE: 18.09.2024ORDER (MANGESH S. PATIL, J.) :Heard. Rule. Rule is made returnable forthwith. At the jointrequest of the parties, the matter is heard finally at the stage ofadmission.2.The petitioners are real brothers inter se and are challengingthe common judgment and order of the respondent No.2 – ScrutinyCommittee rendered in a proceeding under Section 7 of the MaharashtraAct No.XXIII of 2001 dated 12.08.2024 refusing to validate their ‘Thakar’scheduled tribe certificates and instead directing those to be confiscatedand cancelled. 1/10 9(1).WP.9563.24.odt3.The learned advocate Mr. Yeramwar for the petitioners wouldtake us through the papers and would submit that the older favourablerecord has been discarded by the Committee and the claims have beenrejected by referring to record of the subsequent period. He wouldsubmit that the school record of petitioners’ cousin uncle AmbadasRajaram of 1951 mentioned in the caste column that he was ‘Thakar’.Even if there was certain contrary record of the subsequent period, theolder record would prevail in the light of Anand Vs. Committee forScrutiny and Verification of Tribe Claims and Ors.; (2012) 1 SCC 113,Veena Ashok Godse @ Veena Hemant Sonawane Vs. State of Maharashtraand Ors.; (Civil Appeal No.19968/2017 arising out of SLP (C)No.25113/2017 dated 29.11.2017 and Chandrashekhar s/o BalajiraoShinde Vs. The State of Maharashtra and Anr.; (Writ PetitionNo.13390/2021) dated 08.08.2023. The learned advocate would furthersubmit that the Committee has not appreciated these aspects and hastaken a perverse and arbitrary decision to discard the claims, by referringto the subsequent contrary record.4.The learned advocate would also submit that even theobservation of the Committee to substantiate its inference by relyingupon some statements appearing in the sale deeds executed by thepetitioners’ blood relatives expressly mentioning that they were notAdiwasis would estoppe the petitioners’ from staking a tribe claim, is alsoperverse and arbitrary and unsustainable in law. In the matter of Nikhil2/10 9(1).WP.9563.24.odtSuryakant Padalwar Vs. State of Maharashtra and Ors.; (WPNo.5349/2019 order dated 03.03.2022) a similar stand of the scrutinycommittee was discarded by this Court.5.Per contra, the learned AGP would support the order underchallenge. He would submit that the Committee has taken a plausibleview on correct appreciation of evidence. He would submit that thepetitioners had made an attempt at fraud. They had submitted theextracts of the school record of his cousin uncle Ambadas Rajaram of theZilla Parishad School, Savana, Taluka Sengaon, District Hingoli of serialNo.182 of the school register mentioning in the caste column that he was‘Thakar’. However, during vigilance inquiry it was found that the originalrecord contained entry in the caste column as ‘Hindu’. He would,therefore, submit that even when Ambadas Rajaram’s school record wasnot containing any entry in the caste column as ‘Thakar’, they managedto obtain certified copies of the school register having no such entry. Hewould, therefore, submit that the petitioners are not entitled to rely uponany non-existent record to substantiate their claim.6.The learned AGP would then submit that leaving aside thisunreliable school record of Ambadas Rajaram, the Committee could findout that the school record of petitioners’ uncle Sanjab, aunt Rajmati andeven father Mesh @ Ramesh of the period between 1969 and 1972 wasdescribing them as ‘Hindu’, ‘Itar Magas’ (other backward), and ‘Maratha’.Though ‘Hindu’ cannot be treated as a contrary entry being a religion and3/10
Legal Reasoning
9(1).WP.9563.24.odtnot a caste, the oldest record of 1971 and 1972 was contrary to thepetitioners’ claim. Even the school record of petitioners’ uncle Datta Baba(Thakur) Shinde of 1959, that of a cousin uncle of 1954 and 1964 weredescribing them as ‘Maratha’ in the caste column. The Committee alsocould, pursuant to the vigilance inquiry, noticed that the petitioners hadattempted to manipulate the school record of Devidas Ambadas hissecond degree cousin, of 15.09.1972, wherein, in the caste column, theinitial word ‘Maratha’ was scored and word ‘Thakar’ was written. Thelearned AGP would, therefore, submit that when there was a contraryrecord in abundance of the earlier period, reliance of the petitioners tolay claim only on the basis of subsequent favourable record would not besustainable as the older record would prevail. He would also rely uponthe decision in the matter of Pournima Suryakant Pawar (supra).7.The learned AGP would further submit that the Committeebeing not satisfied with the documents relied upon by the petitioners’ wasright even in applying the affinity test in the light of observations inparagraph No.25 of the Maharashtra Adiwasi Thakur Jamat SwarakshanSamiti Vs. State of Maharashtra and Ors.; 2023 SCC Online SC 326. Thepetitioners having even failed to withstand the affinity test, the decisionof the Committee to refuse to validate their tribe certificates being aplausible one cannot be interfered with in exercise of writ jurisdictionunder Article 226 and the petition be dismissed.8.As can be gathered, there is no dispute about the trite legal4/10 9(1).WP.9563.24.odtposition that the record of the older time would have a greater probativevalue as compared to that of latter period, as has been laid down in thematter of Anand Vs. Committee, Pournima Suryakant Pawar and VeenaAshok Godse (supra).9.In the light of above legal position, it is necessary toascertain what was the older record before the Committee and what wasthe record of the latter period. The Committee in the impugned order hasenlisted following contrary record:Sr.No.Name of School EntryNo.Name of the Students Relation withapplicantCaste recorded Date ofAdmission 1Zilla Parishad PrimarySchool, Savana, Tq.Sengaon, Dist. Hingoli282Sitaram ShindeCousinuncleMara.---2- do -182Ambadas Rajaram ThakarCousinuncleHindu27.06.19523- do -7/249Datta Baba ShindeUncle Maratha21.11.19594- do ---Ashok Ramchandra ShindeUncle Hindu19.07.19695- do -894Rajamati Baba ShindeAunt OtherBackward29.07.19716- do -1022Shankar Sitaram ThakurCousinuncleMaratha 02.07.19737- do -1034Bhagwat Sitaram ThakurCousinuncleMaratha04.07.19738- do -1117Umesh Baba ThakurUncle Maratha06.07.19749- do -1223Ashok Babarao ShindeUncle Maratha (Thakar)11.07.197510.As compared to this, the favourable record being relied uponby the petitioners is as follows:Sr.No.Name of document Name of document holder Relation withapplicant No.1Caste recordedEntry date 10Student’s admission andleaving extract Das Ambadas ShindeCousin Thakar15.09.197211-do-Ashok Babarao ShindeUncleThakar11.07.197512-do-Subhash Sitaram Shinde Cousin uncle Thakar 11.07.198013-do-Devidas AmbadasShindeCousin Thakar15.09.197214School leaving certificateSubhash Sitaram Shinde Cousin uncle Thakar10.06.199115-do-Sandip Ramesh ShindeApplicant No.2Thakar 26.06.200116-do-Sandip Ramesh ShindeApplicant No.2Thakar 22.06.200717Student’s admission andleaving extract Pradip Ramesh Shinde Applicant No.1Thakar26.06.200718School leaving certificate Ashwni Ramesh ShindeSister Thakar20.06.200819Student’s admission andleaving extract Pradip Ramesh ShindeApplicant No.1Thakar26.06.201120School leaving certificateSandip Ramesh ShindeBrotherThakar26.06.201221-do-Pradip Ramesh ShindeApplicant No.1Thakar19.06.201422School leaving certificate Pradip Ramesh ShindeApplicant no.1Thakar03.07.201723-do-Pradip Ramesh ShindeApplicant no.1Thakar08.08.20175/10 9(1).WP.9563.24.odt11.If one compares the above chart, the oldest record ofAmbadas Rajaram at serial No.182 of the school record described him as‘Hindu’ and the date of admission being shown as 27.06.1952 cannot beregarded as a contrary record in asmuch as ‘Hindu’ is a religion and not acaste. But conversely, even it will not substantiate petitioners’ claim of‘Thakar’.12.The petitioners had produced certified extract of the schoolregister of entry at serial No.182 of Ambadas Rajaram Thakar, copies ofwhich are annexed at page Nos.39 and 40 purportedly describing him inthe caste column as ‘Thakar’. Interestingly, one of this, page No.39,mentions in column No.9 that he was admitted in the school on27.06.1951, whereas, in the copy at page No.40 column No.9 does notmention the date of admission. Though both are purportedly copies ofthe same school record of the entries at same serial No.182, many of thecolumns at page No.39 giving particulars, are completely missing andhave not been given in the copy at page no.40. Since it is a matter ofschool record of the same school of same individual of the same serialnumber, the vigilance officer on inquiry could merely discover that theoriginal entry in the school register in the caste column was ‘Hindu’ andnot ‘Thakar’. This is what has been precisely pointed out by theCommittee and we have no manner of doubt in subscribing to theobservation of the Committee that the entry at serial no.182 of the ZillaParishad, Primary School Savana, Taluka Sengaon, District Hingoli in6/10 9(1).WP.9563.24.odtrespect of petitioners cousin uncle Ambadas Rajaram Thakar of27.06.1952 was ‘Hindu’ and not ‘Thakar’ and the petitioners havesomehow managed to procure such apparently false certified extracts ofthe school register. Suffice for the purpose to observe that though thiscannot be treated as contrary record since ‘Hindu’ is a religion and not acaste, the fact remains that the petitioners have indulged in some kind ofattempt at fraud.13.Be that as it may, this record cannot be treated as afavourable one. Consequently what remains is the contrary school recordof petitioners first degree uncle Datta Baba Shinde of 1959, Aunt RajmatiBaba Shinde of 29.07.1971 and even that of his father of 15.09.1972which are of the oldest time, describing them in the school record as‘Maratha’, ‘Iter Magas’ (other backward) and ‘Maratha’ respectively.14.So far as another school record of petitioners’ cousin DevidasAmbadas Shinde of 15.09.1972, the original entry in the caste column of‘Maratha’ was found to be scored of and word ‘Thakar’ was written. 15.In spite of the fact that all these aforementioned aspects anddetails were expressly mentioned in the vigilance report, there is nospecific denial in the reply filed by the petitioners to the vigilance reportin respect of the school record of serial no.182 of Ambadas RajaramThakar and scoring of original entry ‘Maratha’ and writing of word‘Thakar’ in the caste column of serial No.973 of the school register ofDevidas Ambadas Shinde.7/10 9(1).WP.9563.24.odt16.It is thus evident that the oldest record was contrary to thepetitioners’ claim of being ‘Thakar’. All the favourable record is of asubsequent period and obviously would have a lesser probative value.Even accepting the argument of the learned advocate for the petitionersthat the oldest record would prevail, being the trite legal position, noexception can be taken to the observations and conclusions of theCommittee in discarding the petitioners’ claim on the basis of the oldestcontrary record of petitioners’ father and other near blood relatives fromthe paternal side.17.True it is that as far as the stand of the Committee tosubstantiate its conclusion by referring to some declaration made in thesale deed by the petitioners’ blood relatives that they were not Adiwasis,would not be legally sustainable in the light of the decision of this Courtin the matter of Nikhil Suryakant Padalwar (supra). Suffice for thepurpose to reproduce paragraph no.9 from that order:“9. The learned AGP submitted that in the sale deed, which isproduced on record at page no.119, it is clearly seen that thegrandfather of the Petitioner has relinquished hiscaste/scheduled tribe status. It is pertinent to note that this saledeed is required to be considered in juxtaposition with the castevalidity certificates issued in favour of the above three persons.If so done, in our opinion, it cannot be given much weightage.It is further pertinent to note that the relinquishment ofCaste/Tribe status made by one of the blood relatives, by nostretch of imagination could be said to be a ground to reject thevalidity certificate in respect of the Scheduled Tribe claim of aperson, if it is supported by other documents. In this view of thematter, we are not inclined to accept the submissions based onthis sale deed.”8/10 9(1).WP.9563.24.odtThe Committee’s observation to substantiate its inferencerelying upon the declaration made in the sale deed would not be legallysustainable.18.Though it is trite that affinity test is not a litmus test, as hasbeen held in the Maharashtra Adiwasi Thakur Jamat (supra) its efficacycannot be outrightly rejected. It would be relevant to reproduce theobservations. Paragraph No.25 of the judgment reads as under :“25.Now, we come to the controversy regarding the affinitytest. In clause (5) of Paragraph 13 of the decision in the case ofKumari Madhuri Patil Vs. Addl. Commissioner, TribalDevelopment (1994) 6 SCC 241, it is held that in the case ofScheduled Tribes, the Vigilance Cell will submit a report asregards peculiar anthropological and ethnological traits, deities,rituals, customs, mode of marriage, death ceremonies, methodsof burial of dead bodies etc. in respect of the particular caste ortribe. Such particulars ascertained by the Vigilance Cell inrespect of a particular Scheduled Tribe are very relevant for theconduct of the affinity test. The Vigilance Cell, while conductingan affinity test, verifies the knowledge of the applicant aboutdeities of the community, customs, rituals, mode of marriage,death ceremonies etc. in respect of that particular ScheduledTribe. By its very nature, such an affinity test can never beconclusive. If the applicant has stayed in bigger urban areasalong with his family for decades or if his family has stayed insuch urban areas for decades, the applicant may not haveknowledge of the aforesaid facts. It is true that the Vigilance Cellcan also question the parents of the applicant. But in a givencase, even the parents may be unaware for the reason that forseveral years they have been staying in bigger urban areas. Onthe other hand, a person may not belong to the particular tribe,but he may have a good knowledge about the aforesaid aspects.Therefore, Shri Shekhar Naphade, the learned senior counsel, isright when he submitted that the affinity test cannot be appliedas a litmus test. We may again note here that question ofconduct of the affinity test arises only in those cases where theScrutiny Committee is not satisfied with the material producedby the applicant.” 9/10
Decision
9(1).WP.9563.24.odt19.When the analysis of the aforementioned circumstancesdemonstrates that the documents relied upon by the petitioners were notsufficient to substantiate their claims, it was imperative for theCommittee even to resort to the affinity test, which it has done. Noexception has been taken to the observations and conclusions of theCommittee precisely referring to the various replies given by thepetitioners during affinity test. This apart, it would be beyond the powerof judicial review to examine the conclusion of the Committee in thatregard.20.Resultantly, the Committee has taken a plausible decisionbased on reasonable appreciation of the evidence and by applying affinitytest. We do not find any perversity or arbitrariness. The petition is liableto be dismissed.21.The writ petition is dismissed. Rule is discharged. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEhabeeb10/10