Chhaya D/o Jasvantsingh Hajari vs Committee For Scrutiny And Verification Of Tribe Claims, Amravati, Tq And District Amravati

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2018 Supreme(Bom) 2416

IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT NAGPUR BENCH
B.P. Dharmadhikari, Z.A. Haq, JJ.
Chhaya D/o Jasvantsingh Hajari - Appellant
Versus
Committee For Scrutiny And Verification Of Tribe Claims, Amravati, Tq And District Amravati - Respondent
Writ Petition No. 446 of 2002, 447 of 2002, 564 of 2009, 619 of 2005, 620 of 2005, 726 of 2004, 804 of 2002, 957 of 2002, 1000 of 2010, 1494 of 2004, 1553 of 2004, 1838 of 2002, 2054 of 2004, 2341 of 2005, 2352 of 2002, 2432 of 2010, 2489 of 2004, 2516 of 2004, 2595 of 2004, 2596 of 2004, 2889 of 2002, 2890 of 2002, 2912 of 2004, 2918 of 2004, 2959 of 2002, 2960 of 2002, 3024 of 2002, 3121 of 2002, 3185 of 2004, 3216 of 2004, 3227 of 2004, 3287 of 2002, 3387 of 2002, 3389 of 2002, 3605 of 2004, 4069 of 2004, 4099 of 2005, 4105 of 2002, 4186 of 2007, 4198 of 2005, 4714 of 2004, 4751 of 2004, 4875 of 2004, 5718 of 2004, 5817 of 2004, 6026 of 2005, 6104 of 2004, 6457 of 2006
Decided On : 01-08-2018

Advocates Appeared:
A.M. Gordey, Adv., Raskar, Adv., N.P. Mehta, Adv., S.A. Chaudhari, Adv., R.S. Parsodkar, Adv., Indira Bodade, Adv., A.J. Gilda, Adv., P. Rane, Adv., S.C. Mehadia, Adv., P.D. Rane, Adv., R.M. Ahirrao, Adv., M.K. Pathan, Adv., T.D. Khade, Adv., M.I. Dhatrak, Adv., S.P. Palshikar, Adv., N.C. Phadnis, Adv., R.V. Sirpurkar, Adv., Gopal Mishra, Adv., S.V. Sohoni, Adv., N.R. Saboo, Adv., H.D. Dangre, Adv., R.S. Sundram, Adv., A.P. Kalmegh, Adv., V.R. Choudhari, Adv., V.R. Choudhary, Adv., P.S. Jaiswal, Adv., Anand Parchure, Adv., A.M. Ahirrao, Adv., S.M. Puranik, Adv., P.D. Meghe, Adv., N. Phadnis, Adv., M.V. Samarth, Adv., S.G. Joshi, Adv., Kiran Malokar, Adv., A. Parchure, Adv., Paliwal, Adv., R.P. Dhanwat, Adv., A.Y. Kapgate, Adv., A.M. Kukday, Adv., S.A. Gordey, Adv., D.K. Dubey, Adv., S.Z. Sonbhadre, Adv., S.V. Purohit, Adv.

Headnote:
Impugned order - Documents record - Question involved is When pre-constitution documents record the Caste as "Thakur" and those documents are genuine, whether recourse to affinity test is open? They rely upon the judgment of Honble Supreme Court in case of Anand .vrs. Committee for Scrutiny and Verification of Tribe Claims and others , to buttress their submissions - On other hand, respondents contend that a Caste by name "Thakur" exists and said Caste is not a Tribe, and is also not recognized as Scheduled Caste. It is an Upper Caste and hence, old documents or relevance of and reliance upon mention of Caste therein is not decisive - Tribe and Caste have same name, only way left out is to apply affinity test. AGPs appearing on behalf of respondent State, state that judgment of Honble Supreme Court in case of Anand , does not rule out relevance and use of affinity test in such facts - Held, Order of the Scrutiny Committee, impugned therein by petitioner shows that she has not given those documents to Scrutiny Committee and has not disclosed the details of education of grand father or great grand father. In paragraph no.5, the Scrutiny Committee points out how word Thakur cannot be determinative and caste with similar names exists in Kshtriya, Rajput, Vaishya, Pardeshi and Sindhi communities. It again points out that Thakurs in different communities is Balutedar caste, These findings are not shown to be perverse - Hearing after service of vigilance cell report, was attended to by father of the petitioner and there again he did not bother to point out details of education of his father or of his grand father. In this situation, in the light of the findings recorded by the Scrutiny Committee, the effort to introduce alleged old documents at this stage cannot further the case of the petitioner at all. On the contrary, the same cannot be countenanced – Petition is Dismissed

JUDGMENT

B.P. Dharmadhikari, J. - All these matters are placed together jointly for consideration, as according to all petitioners, question involved is When pre-constitution documents record the Caste as "Thakur" and those documents are genuine, whether the recourse to affinity test is open? They rely upon the judgment of Hon''ble Supreme Court in case of Anand .vrs. Committee for Scrutiny and Verification of Tribe Claims and others , (2011) 6 MhLJ 919, to buttress their submissions. On the other hand, respondents contend that a Caste by name "Thakur" exists and said Caste is not a Tribe, and is also not recognized as Scheduled Caste. It is an Upper Caste and hence, the old documents or relevance of and reliance upon mention of Caste as Thakur, therein is not decisive. As the Tribe and Caste have same name, only way left out is to apply affinity test. AGP''s appearing on behalf of respondent State, state that the judgment of Hon''ble Supreme Court in case of Anand , does not rule out relevance and use of affinity test in such facts.

2. In Writ Petition No. 4198/2018, Senior Counsel Shri A.M. Gordey, appearing on behalf of the petitioner by inviting attention to the impugned order dated 15.07.2005, submits that in paragraph no.2 it has looked into old documents like dated 25.06.1928, 03.07.1968 and few other documents. None of these documents are found to be interpolated. In this situation, recourse to affinity test was not warranted and validity ought to have been given. He has also placed reliance upon observations contained in judgment in case of Kumari Madhuri Patil and another .vrs. Addl. Commissioner, , (Paragraph nos. 13[5] and [6]). According to him, the Vigilance Cell/Research Officer and the Scrutiny Committee in present matter have breached these directions of Hon''ble Supreme Court. Vigilance Cell Authorities recorded statement of neighbours/tenants who allegedly deposed that the petitioner belong to Rajput caste. A statement of aunt and a friend also came to be recorded, but, then the Research Officer did not accompany the Vigilance Cell Squad at that juncture. Traits needed to be ascertained from some elderly member from the family. Aunt Krantidevi does not have cordial relations due to a dispute and therefore, has deliberately deposed against the petitioner. In any case, old customs like Ghungat, etc., are not decisive in modern times. Petitioners'' say on police vigilance clarified these aspects, but, it has been ignored. The home enquiry is, therefore, alleged to be incomplete.

3. It is contended that though traits and customs which have come on record are rejected by the Scrutiny Committee, material looked into by it does not show why it could not have been accepted. The standard traits of Thakur Scheduled Tribe, if any, are absent on record. Our attention is also invited to the fact that son of Aunt Krantidevi by name Vikrant has recorded his caste as Thakur only on 10.07.1989. The caste of aunt Krantidevi is also recorded as Thakur on 30.06.2003. Observations of the Hon''ble Supreme Court in Anand .vrs. Scrutiny Committee , in paragraph nos. 18 to 20, are relied upon to demonstrate how Vigilance Cell report and traits in this situation needs to be discarded.

4. Ms. Mehta, learned A.G.P. appearing for respondent has submitted that the petitioner Ku. Chhaya, is upper caste Thakur and as such mention of caste in her old documents or documents of her ancestors, is not decisive. Hence, affinity test was must. Chhaya, was given sufficient opportunity and her reply after show cause notice on vigilance cell report has been considered. She relies upon judgment delivered at Aurangabad in case of Monika d/o Satish Thakur .vrs. State of Maharashtra and others , to urge that contentions raised by learned Senior Counsel are erroneous and unsustainable.

5. Shri N.C. Phadnis, learned counsel appearing for petitioner in Writ Petition No. 7/2014 had read out the judgment delivered at Bombay on 22.12.2017 (22.11.2017) in case

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2018 Supreme(Bom) 2416

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