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2018 Supreme(Bom) 1193
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
R.K. DESHPANDE, ARUN D. UPADHYE, JJ.
Adim Gowari Samaj Vikas Mandal & Ors. - Petitioners
Versus
State of Maharashtra, through the Ministry of Tribal Welfare Department & Anr. - Respondents
Writ Petition Nos. 4032 of 2009; 1680 of 2012; 4779 of 2008 & 1742 of 2007
Decided On : 14-08-2018
Advocate Appeared:
For the Petitioners: Shri N.C. Phadnis
For the Respondents: Shri M.J. Khan
Headnote:
Public Trusts Act, 1950 - Societies Registration Act, 1860 – Constitution of India,1950 - Articles 341(2) and 342(2) - Challenging the validity - Vigilance Cell report - Challenging the Gazette - Tribes and Castes of Central Provinces of India - Writ Petition is filed by Mandal which is a Trust registered under Public Trusts Act 1950 and Society registered under Societies Registration Act 1860 challenging Gazette Notification issued by Government of India including rein community as Or Backward Class category from common Central list in respect of State of- Initially after Independence and bringing into force of Constitution of India President issued Constitution (Scheduled Tribes) Order 1950 in exercise of power conferred by clause (2) of Article 342 of Constitution of India - By clause (2) of said Order it was provided that Tribes or tribal community or part of or group within tribes or tribal communities specified in Parts COURT to XXII of Schedule to Order shall in relation to States to which those parts respectively relate be deemed to be Scheduled Tribes so far as regards members thereof residents in localities specified in relation to m respectively in those Parts of that Schedule – Held, Perusal of record of Committee shows that claimants produced documents which are in nature of entries in revenue record pertaining to period - However it is specifically admitted in chart produced by Scrutiny Committee that no vigilance enquiry was made to find out whether such entries existed in old records- Perusal of orders passed validating claims for does not show any discussion about all such documents in orders passed recording reasons in verbatim - Court direct Registry of this Court to get entire old record of Census Reports Parliamentary Debate Gazetteers etc - called for purposes of se petitions from Library scanned within a period of six weeks as it has worn out - Record is very important and it needs to be preserved as it is also not available on Net – Order accordingly
R.K. Deshpande, J.
1. Adim Gowari Samaj Vikas Mandal and Adim Gowari Vikas Samaj Mandal, the two separate Trusts registered under the Maharashtra Public Trusts Act, 1950, and an individual Smt. Vaishali Prakash Raut have filed Writ Petition No.4032 of 2009 challenging the validity of the Government Resolution dated 24-4-1985 prescribing the guidelines by way of affinity test to judge the claims of the Gowari community and the direction is sought to restore the position prevailing prior to 24-4-1985.
2. Writ Petition No.1680 of 2012 is filed by Adivasi Gond Gowari (Gowari) Seva Mandal, which is a Trust registered under the Maharashtra Public Trusts Act, 1950 and the Society registered under the Societies Registration Act, 1860 challenging the Gazette Notification dated 16-6-2011 issued by the Government of India including therein Gowari community as the Other Backward Class category from the common Central list in respect of the State of Maharashtra. It claims a declaration that the Gowari community and its members have been included in Entry No.18 of the Scheduled Tribes Order in relation to the State of Maharashtra. It also seeks a direction to the State Government to instruct the Sub-Divisional Officer/Magistrate to issue the caste certificates to the persons belonging to Gowari community as Scheduled Tribes. This petition also challenges the Government Resolutions dated 24-4-1985, 13-6-1995 and 15-6-1995.
3. Writ Petition No.4779 of 2008 is filed by Adivasi Gond Govari (Gowari) Seva Mandal, which is a Society registered under the Societies Registration Act, 1860 and the challenge is to the caste validity certificates issued in the name of the respondent Nos.4 to 19 as Gond Gowari. The ground of challenge is that the Vigilance Cell report in respect of the respondent Nos.4 to 19 reveals that the entries in the documents of the period prior to 1950 clearly show them as Gowari and merely on the basis of affinity test, they have been granted validity as 'Gond Gowari Scheduled Tribe'. The only affinity test applied is of the surnames and the Gond Gowaris are identified only by surnames as Salame, Naitam, Holi, Gota, Madavi, etc.
4. In Writ Petition No.1742 of 2007 filed by Keshav s/o Vishwanath Sonone, the challenge is to the order passed by the Scheduled Tribes Certificate Scrutiny Committee, Amravati on 13-1-2007 invalidating the claim of the petitioner for 'Gond Gowari Scheduled Tribe'. The documents produced by the petitioner record the caste of his blood relatives as Gowari. The Committee applied the affinity test and it holds that the petitioner has failed to establish that he belongs to Gond Gowari community. It further holds that the letter dated 20-5-1984 issued by the Government of India stating that Gowari was a sub-tribe/synonym of Gond community and, therefore, the certificate will have to be issued in the name of the community, as given in the Presidential Order, cannot be treated as an amendment to the Presidential Order. Such decision, according to the Committee, is contrary to the decision of the Apex Court in the case of State of Maharashtra v. Milind and others, reported in 2001(1) MhLJ 1.
5. In the above petition, the instances are quoted and the validity certificates issued to certain persons as Gond Gowari are produced. It is alleged that though all the documents produced by such persons indicate the caste Gowari and also the Police Vigilance Cell report indicates that affinity with Gond Gowari is not established, the validity certificates are issued. Along with the petition, the Police Vigilance Cell reports evidencing it, have been annexed. A list of such 23 candidates belonging to Gowari caste, to whom the Committee has issued the validity certificates as Gond Gowari.
6. In the aforesaid background, the rival contentions raised before us need to be seen.
Rival contentions :
