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1999(1) Supreme 281
Supreme Court of India
(From Bombay High Court)
S.P. Bharucha & N. Santosh Hegde, JJ.
The State of Maharashtra & Ors. -Appellants
versus
Kumari Tanuja -Respondent
Civil Appeal No. 2308 of 1989
(With C.A. No. 2696 of 1989)
Decided on 2-2-1999
Counsel for the Parties :
For the Appellants : V.A. Mohta, Sr. Advocate, S.S. Shinde, D.M. Nagolkar, Advocates.
For the Respondent : Arun K. Sinha, Advocate for R.N. Keshwani, Advocate.
Held : As noticed by the High Court, the various Resolutions and Notifications issued by the Government of the then State of Bombay and also the present State of Maharashtra, from time to time, showed that Bawa community without reference to any region, was included as a synonyms of Bairagi/Gosavi which, in turn, was notified as a Nomadic tribe. This was the position even in the Resolution of the State dated 21.11.1961. It is to be noted that when Sindh was part of Bombay Presidency, admittedly the Bawas of that region were also treated as belonging to the Nomadic tribe in the entire Presidency of the then Bombay even when Sindh got separated from Bombay Presidency, the subsequent Resolutions of the Bombay Government continued to show Bairagi and Gosavi communities with their synoyms as Nomadic tribes without there being any regional restrictions. This is obviously because by then many members of the Bawa community from Sindh region had migrated to various parts of Bombay Presidency. Therefore, we are of the considered opinion that the view taken by the Bombay High Court that the Bawa community from Sindh are entitled to the benefits reserved for Nomadic tribe vide Government Resolution dated 21.11.1961 does not require any interference from us. (Para 8)
If the Executive or the Legislature wants to render a judicial decision ineffective, it can only do so by removing or altering or neutralising the legal basis of the judgment which is sought to be made ineffective and that neither the Legislature nor the Executive has the power of simply declaring the earlier decisions of the courts as invalid or not binding. In the instant case, judgment in Vijay Daulatani’s case was rendered after considering all the existing Government Resolutions and Circulars. It is by interpreting these Resolutions and Circulars, the Division Bench of the Bombay High Court came to the conclusion that the community ‘Bawa’ which migrated from the State of Sindh, was included in the list of Nomadic tribes. This finding was affirmed by this Court while dismissing the special leave petition filed by the State against the said judgment. A perusal of the Resolution dated 1.4.1987 shows that the said Resolution merely reiterates the various Resolutions passed earlier by the Government which were considered and rejected in Vijay Daulatani’s case. The State has not considered any fresh material nor has it received any fresh report from competent bodies other than the one that was placed before the Division Bench in Vijay Daulatani’s case to declare by way of clarification that the ‘Bawa’ community of Sindhi Samaj are not entitled to be included in the list of Vimukta Jati and Nomadic tribes. As stated by the Full Bench of the High Court, a perusal of the Resolution dated 1.4.1987 shows that, in effect, it was merely overruling the judgment of the High Court in Vijay Daulatani’s case, which is not permissible in law. The State has not altered or neutralised the legal basis of the judgment of the High Court in Daulatani’s case by producing relevant additional material or by applying its mind to the reasons given by the Bombay High Court in Daulatani’s case. Therefore, we are of the opinion that the Full Bench of the Bombay High Court was right in coming to the conclusion that the Government Resolution dated 1.4.1987, read as a whole, shows that it came to be issued to set at naught or to get over the decision of the Bombay High Court in Vijay Daulatani’s case. (Para 11)
The State has every right to recognise a particular community in a particular manner but the same should be done for good reasons and after application of mind to all the relevant factors. Such a decision of the State must be specific and cannot be left to be interfered from surrounding circumstances. Nor can such a decision be based on irrelevant materials. In the instant case, having included the community ‘Gosavis’ in the category of Nomadic tribe of which ‘Bawas’ claim to be a synonym, it cannot be left to the Executive to contend such reservation benefit is available only to the members of the ‘Gosavi’ or ‘Bawa’ community who are originally from the State of Maharashtra and not to Gosavis or Bawas who had migrated from Sindh. Such classification of excluding the Gosavis or Bawas who migrated from Sindh, from the benefit of reservation available to Nomadic tribe is wholly arbitrary and not based on any relevant consideration. The State in the instant case has not done any exercise which was open to it while passing the Resolution dated 1.4.1987 to assess the social and ethnical background of the members of the Bawa community who migrated from Sindh. It merely persisted on reiterating its stand taken by it in Daulatani’s case which stand was negatived by the High Court as well as by the Supreme Court. If the State, for cogent reasons and based on relevant materials, had come to the conclusion that Bawas from Sindh region had lost their disadvantages in the society after their migration from Sindh, the validity of such a Resolution might have been upheld by the High Court. The State having failed to make any such enquiry cannot assert its right to recognise or derecognise a community by merely passing a Resolution like the one dated 1.4.1987. (Para 12)
Judgment
N. Santosh Hegde, J.-The respondent in C.A. No. 2308/89 filed a writ petition in the High Court of Bombay, being W.P. No. 1317/88. In the said writ petition, the respondent herein challenged the order of the Caste Scrutiny Committee (for short ‘the Committee’) dated 27.10.1996 and the order of the Additional Commissioner, Konkan Division, Bombay, dated 12-11-1987 wherein the said authorities had held that the respondent was not entitled to claim the benefit of reservation for the Nomadic tribe in the State of Maharashtra. The respondent further challenged the vires of the Government Resolution dated 1.4.1987 on the ground that it was beyond the executive powers of the State.
2. The said writ petition was initially heard by a Division Bench of the Bombay High Court which referred the same to a larger Bench for disposal in view of some conflicting judgments on the questions involved. The petitioner thereafter came to be heard by a Full Bench of the Bombay High Court where it was contended on behalf of the respondent herein that she belonged to the Hindu Bawa Nomadic tribe which, according to her, was originally recognised as an Other Backward Class in Sindh, West Pakistan. It is stated that prior to the Partition of India, Sindh was a part of the then Bombay Presidency and as per the various Government orders of then Bombay Presidency, Hindu Bawa community of Sindh was recognised as a Nomadic tribe in the entire Presidency. It is further contended that after Partition of the country, a number of members of Sindhi community migrated to India and settled down in various parts of India, including the then Presidency of Bombay. It is further contended that these migrants continued to practice their original traditions and that they socially and ethnically belonged to the same community as ‘Gosavi’ or ‘Bawa’ community notified by the Government of Maharashtra as a Nomadic tribe. Strong reliance was placed on an earlier case decided by a Division Bench of the Bombay High Court in the case of Vijay Shrichand Daulatani v. State of Maharashtra & Ors.1. In the said case, the Division Bench had held irrespective of the fact that at a particular point of time, Sindh ceased to be a part of the Bombay Presidency, the Bawa community which migrated from Sindh had acquired the synonym of the community known as ‘Gosavi’ which was notified as a Nomadic tribe in the Presidency of Bombay and, thereafter, continued to be as such even in the successor State of Maharashtra.
3. On behalf of the State of Maharashtra, it was contended before the High Court that after the Report submitted by a Committee chaired by Mr. Starte in the year 1928, the benefit of various reservations in the State of Bombay was not given to the community of ‘Bawas’ who had migrated from the State of Sindh. It was also contended that whenever the State had intended to grant any reservation benefits to such of those communities which had migrated from the State of Sindh, it was specifically stated so in the Government notifications. It was contended that since the Government notifications did not specifically state that either ‘Bairagis’ or ‘Gosavis’ of the State of Sindh were also treated as Nomadic tribe, it was not open to the petitioner who was a migrant belonging to Bawa community which is claimed to be a synonym of Bairagi community, to claim the benefit of reservation made available to Nomadic tribes. It was also generally contended that the Bawa community which migrated from Sindh, were not socially or ethnically connected with the Bairagis or Gosavis or their synonym community ‘Bawas’ who were the original residents of the State of Bombay. The Full Bench of the Bombay High Court which heard the said writ petition, framed the following questions for its consideration:
“(a) Whether `Bawas’ from Sindh can claim the benefit of entry Gosavi or its synonym as included in the list of Nomadic Tribe vide Government Resolution dated 21st November, 1961
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