2013 Supreme(Bom) 580

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. OKA & K.K. TATED, JJ.
Ravindra Pralhadrao Khare
Vs.
State of Maharashtra & Ors.
Writ Petition No. 11241 of 2012
Decided On : 8th March, 2013

Headnote:Maharashtra Scheduled Castes, Scheduled Tribes, De- notified Tribes (Vimukta Jatis), Nomadic Tribes other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of Caste Certificate) Act, 2000 - Section 3 - Caste claim.

       Where petitioner, claiming to belong to "Thakur" Caste, produced pre-independence documents showing that in year 1947-48 caste of his father and grand-father was shown as "Thakur" therefore rejection of claim only on basis of affinity test, unjustified. - To understand as to how the Caste Scrutiny Committee expects the documents of the years 1947-1948 to mention as to whether the caste "Thakur" belongs to the category of Scheduled Tribe or the category of non-tribal. In the years 1947- 1948, such entries could not have been made. Another finding recorded by the Tribunal is that the petitioner could not establish his affinity to the caste and to the area. On this aspect, it will be necessary to make a reference to what is held by the Apex Court in the case of Anand v. Committee of Scrutiny and Verification of Tribe Claims, 2011 (6) All MR 929 (SC) in Paragraph 22. The Paragraph 22 of the said decision reads thus :

       "18. It is manifest from the afore-extracted paragraph that the genuineness of a caste claim has to be considered not only on a thorough examination of the documents submitted in support of the claim but also on the affinity test, which would include the anthropological and ethnological traits etc., of the applicant. However, it is neither feasible nor desirable to lay down an absolute rule, which could be applied mechanically to examine a caste claim. Nevertheless, we feel that the following broad parameters could be kept in view while dealing with a caste claim :

       (i) While dealing with documentary evidence, greater reliance may be placed on pre-Independence documents because they furnish a higher degree of probative value to the declaration of status of a caste, as compared to post-Independence documents. In case the applicant is the first generation ever to attend school, the availability of any documentary evidence becomes difficult, but that ipso facto does not call for the rejection of his claim. In fact the mere fact that he is the first generation ever to attend school, some benefit of doubt in favour of the applicant may be given. Needless to add that in the event of a doubt on the credibility of a document, its veracity has to be tested on the basis of oral evidence, for which an opportunity has to be afforded to the applicant;

       (ii) While applying the affinity test, which focuses on the ethnological connections with the scheduled tribe, a cautious approach has to be adopted. A few decades ago, when the tribes were somewhat immune to the cultural development happening around them, the affinity test could serve as a determinative factor. However, with the migrations, mode admiration and contact with other communities, these communities tend to develop and adopt new traits which may not essentially match with the traditional characteristics of the tribe. Hence, affinity test may not be regarded as a litmus test for establishing the link of the applicant with a Scheduled Tribe. Nevertheless, the claim by an applicant that he is a part of a scheduled tribe and is entitled to the benefit extended to that tribe, cannot per se be disregarded on the ground that his present traits do not match his tribes’ peculiar anthropological and ethnological traits, deity. rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. Thus, the affinity test may be used to corroborate the documentary evidence and should not be the sole criteria to reject a claim.’’

       In the present case, three material documents which have been brushed aside by the Scrutiny Committee by recording reasons which are not at all justified and thus, the claim is rejected primarily on the basis of the affinity test. In view of the law laid down by the Apex Court in the case of Anand v. Committee of Scrutiny and Verification of Tribe Claims, 2011 (6) All MR 929 (SC), only on the basis of the affinity test, the caste claim of the petitioner could not have been rejected.