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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
R.M. Borde, A.I.S. Cheema and Ravindra V. Ghuge, JJ.
Ku. Yogita d/o Anil Sonawane - Petitioner
Versus
The State of Maharashtra, through its Secretary, Tribal Development Department, Mantralaya, Mumbai - Respondent
Writ Petition No. 6103 of 2010
Decided On : 15-09-2016
The decision rendered by the Division Bench in the matter of Dinesh Thakur, interpreting Full Bench judgment in the matter of Shilpa Vishnu Thakur, lays down correct proposition. In such matters, one of the important factors, for Tribe Scrutiny Committee to consider would be to find if or not applicant proves that he or his ancestors resided or migrated from earlier scheduled area. In view of discussion as recorded above, no further elaboration is needed on the issue referred for Court`s consideration.
Maharashtra Scheduled Castes Scheduled Tribe Denotified Tribes (Vimukta Jatis) Nomadic Tribes Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of Caste Certificate) Act, 2000 - Section 6-Constitution of India, Article 141-Caste/tribe claim.- Apex Court`s decision in Dattu v. State of Maharashtra, 2012 (1) SCC 549, would operate as law of land under Article 141 of Constitution.
The Supreme Court while deciding Dattu v. State of Maharashtra, (2012) 1 SCC 549, did not advert to the merits of the matter and proceeded to dispose of the SLPs by protecting the benefits which were availed of by the petitioners during the intervening period. The said decision would therefore be covered by conclusion recorded in paragraph 44(v) of the judgment in Kunhaimmed v. State of Kerala, 2000 (6) SCC 359 and would operate as law of the land under Article 141 of the Constitution of India.
Maharashtra Scheduled Castes Scheduled Tribe Denotified Tribes (Vimukta Jatis) Nomadic Tribes Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of Caste Certificate) Act, 2000 - Section 6-Maharashtra Restoration of Lands to Schedules Tribes Act, 1974, Section 2(j)-Maharashtra Land Revenue Code, 1966, Section 36(4)-Caste/tribe claim.-Definition of "Tribal" in Restoration Act or in Mh LR Code is applicable for claiming relief of restoration of land by a tribal.
While answering the question under reference to the Full Bench as to whether even after removal of area restrictions, a person belonging to the Scheduled Tribe has to demonstrate that he hails from the area originally recognised as scheduled area in the light of the judgment in Kashibai Sanga Pawar and others v. State of Maharashtra, 1993 (2) Mh LJ 1168, the Full Bench held.
On reading the judgment in the matter of Kashibai, it is clear that the expression "tribal" has been defined independently in the Maharashtra Land Revenue Code.
The expression "Scheduled Tribes" defined in Explanation to Section 36 of the Code does have applicability so far as provisions of Restoration Act are concerned in view of Section 2(j) of the said Act. The tribal residing anywhere in the State of Maharashtra, whether his origin finds place in the Scheduled area or not, irrespective of the place of his residence, he i.e. the tribal is entitled to claim protection and benefits under the Restoration Act as well as the beneficial provisions contained in Sections 36 and 36-A of the Code. The amendments to the Code have been enforced prior to removal of area restrictions in Para VII-A of the Scheduled Tribes Order, 1950 by virtue of Amending Act of 1976.
The definition of "tribal" in the Restoration Act or in the Maharashtra Land Revenue Code is applicable for claiming relief of restoration of land by a tribal while claiming enforcement of the provisions under the Restoration Act or while taking recourse to the remedies, as provided under Sections 36 and 36-A of the Land Revenue Code. The judgment delivered in Kashibai`s matter does not have any relevance so far as the issues relating to verification of tribe claim under the provisions of Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes and Other Backward Classes and Special Backward Classes Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000. 1993 (2) Mh LJ 1168-Referred.
R.M. Borde, J.
The question, that has been referred for consideration by the Division Bench is:
"Whether judgment of the Hon'ble Apex Court in the S.L.P.'s (Dattu s/o Namdev Thakur v. State of Maharashtra & others), reported in (2012) 1 SCC 549 (SLP (C) Nos. 3314 of 2010, 3370 of 2010 and 3365 of 2010, decided on 7th December, 2011), will operate as res judicata only between the parties or it will be the law of land under Article 141 of the Constitution of India?"
2. The referring order, passed by the Division Bench on 19th October, 2013, reads thus:
"Per Court:
1. Matter was heard for quite some time on 17/10/2013 and came to be adjourned to today.
2. Adv. Mr. Kulkarni h/f Adv. Mr. Barlinge has invited our attention to the Division Bench Judgment in case of Kashibai W/o Sanga Pawar v. State of Maharashtra, reported at 1993 (2) Mh.L.J. 1168 to urge that effect of 1976 Area Restriction removal is as if there never was area restriction. He submits that this judgment was not pointed out to the Division Bench of this Court when it decided Writ Petition No. 7813/2009 with connected matters on 14/12/2009. According to him, in this matter, caste claim of the petitioners have been invalidated only on the ground that they do not hail from the area, which prior to 1976 was recognised as Scheduled Area.
3. Learned A.G.P. For respondent No. 1 as also Adv. Mr. Bhange for respondent No. 2 oppose the petition. They state that various judgments have been examined on 14.12.2009, when Writ Petition No. 7813/2009 was decided. They also point out that said judgment has been maintained and S.L.P. No. 3314/2010 filed in the matter has been dismissed on 07/12/2011 as reported in Dattu v. State of Maharashtra 2012 (1) SCC 549.
4. The judgment of the Larger Bench of Hon'ble Apex Court in S.L.P. No. 3314/2010, 3370/2010 as also 3365/2010 does not show that Hon'ble Apex Court had granted any leave to file appeal and thus S.L.P. was admitted. Various questions arise in this background. We do not wish to go into that controversy at this stage. However, judgment of Hon'ble Apex Court in case of Kunhaimmed v. State of Kerala, reported at 2000(3) R.C.R.(Civil) 671 : 2000 (6) SCC 359 can be conveniently referred to for the said purpose. Precise question will be, "Whether judgment of the Hon'ble Apex Court in said S.L.P.'s will operate as res judicata only between the parties or then it will be the law of land under Article 141 of the Constitution of India ?"
5. As we are satisfied that attention of the Division Bench of this Court was not invited to the judgment of Kashibai Sanga Pawar (supra) on 14/12/2009, impact of that judgment on view taken by later Division Bench needs evaluation. Observations of the Hon'ble Apex Court in judgment in S.L.P. will also have importance while considering this controversy. The later Division Bench has held that even if area restriction is removed, a person in order to claim status as a member belonging to Scheduled Tribe, has to demonstrate that he hails from the area originally recognised as scheduled area i.e. recognised as such prior to 1976. Very same argument has been turned down by the Division Bench of this Court in Kashibai Sanga Pawar (supra).
6. In this situation, we find that matter needs to be looked into by the Larger Bench for further appropriate consideration. Registry to process accordingly and place matter before the Hon'ble the Chief Justice for necessary orders.
7. The petitioner has already appeared for final year examination. Hence her result shall be communicated to her only to enable her to appear for examination again or in remaining subjects again, if she has failed in it. However, no degree certificate shall be issued until further order of this Court in the matter."
3. The petitioner claims to belong to "Thakur" Scheduled Tribe and was possessed of the caste certificate issued by the competent authority, c
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