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2012 DIGILAW 354 (BOM)

Harshal Gulab Sonawane v. State of Maharashtra

2012-02-16

D.G.KARNIK, S.B.DESHMUKH

body2012
JUDGMENT D.G. KARNIK, J. :- By this petition, the petitioner challenges the order dated 23.8.2009 passed by Scheduled Tribe Certificate Scrutiny Committee (hereinafter referred to as "the Scrutiny Committee"), rejecting the claim of the petitioner as belonging to Tokre Koli tribe. 2. With the help of leaned counsel for the petitioner, we have gone through entire order of the Scrutiny Committee as also copies of records which are annexed with the petition. In our view, the view taken by the Scrutiny Committee needs no interference for the reasons indicated below. 3. The documents at Sr. Nos.19 and 20 before the Scrutiny Committee were the school leaving certificate and extract of the birth register of the petitioner's father. The caste of the petitioner's father was recorded as "Suryawanshi Koli" in the school leaving certificate and his caste was recorded as "Koli" in the birth register dated 27.6.1957. It is true that these documents are post Presidential notification. However, it may be noted that despite the fact that "Koli" or "Suryawanshi Koli" tribes were not included in the list of Scheduled Tribes and though tribe "Tokre Koli" was included as a scheduled tribe, the petitioner's grand-father did not choose to record the caste of the petitioner's father as "Tokre Koli" either at the time of his birth or at the time of his entry in the school. An entry of a caste, though made after the Presidential notification and which excludes a person from the list of scheduled tribes cannot be regarded as irrelevant. Therefore, the submission of the learned counsel for the petitioner that these documents ought not have been taken into consideration by the Scrutiny Committee, cannot be accepted. 4. Shri Talekar, learned counsel for the petitioner then submitted that grandfather of the petitioner might have recorded the caste of the petitioner's father as "Koli" or "Suryawanshi Koli" in order to avoid the social stigma, which was attached to the person belonging to "Tokare Koli" tribe. We are unable to accept this submission, which is based on mere surmises. 5. Shri Talekar, learned counsel for the petitioner strongly relied upon the validity certificate in respect of Sanjay Amrut Sonawane, cousin of the petitioner as belonging to Tokare Koli tribe. The Scrutiny Committee perused the original records regarding the issuance of certificate to Sanjay Amrut Sonawane. We are unable to accept this submission, which is based on mere surmises. 5. Shri Talekar, learned counsel for the petitioner strongly relied upon the validity certificate in respect of Sanjay Amrut Sonawane, cousin of the petitioner as belonging to Tokare Koli tribe. The Scrutiny Committee perused the original records regarding the issuance of certificate to Sanjay Amrut Sonawane. The Scrutiny Committee noticed that in the school record father of Sanjay i.e. Amrut Budho Sonawane, his caste was recorded as Hindu Koli on 23.6.1941. This entry showing that father of Sanjay Amrut Sonawane belonged to "Hindu Kolin caste and not to "Tokare Kolin tribe relates to the period prior to Presidential notification. In view of this finding and the material showing the caste of the father of Sanjay Amrut Sonawane to be "Hindu Koli", it cannot be said that the Scrutiny Committee erred in not relying upon the tribe certificate of Sanjay Amrut Sonawane. 6. Shri Talekar, learned counsel, then referred to a decision of this Court Jagdish Shamrao Sonawane Vs. The State of Maharashtra (Writ Petition No.1704 of 1993, decided on 16.12.2002), in which this Court declined to set aside the tribe certificate issued to Jagdish Shamrao Sonawane, alleged to be a distant cousin of the petitioner. The petitioner had submitted to the Scrutiny Committee an affidavit of Hina Vijay Sonawane, alleged to be the first cousin of Jagdish. She had annexed a genealogy tree to her affidavit. Said genealogy does not show the name of Jagdish at all. He is not shown to be a cousin, not even a distant cousin of the petitioner in the genealogy. We have a great doubt whether Jagdish at all is a distant cousin of the petitioner. Even if we look to the genealogy relied upon by the petitioner and annexed to the affidavit of Jagdish, it is seen that Jagdish and the petitioner claim to be descendants of a common ancestor Sayaji. Sayaji is removed from the petitioner by five generations i.e. he is great great great great great grand-father of petitioner. He also stated to be separated from Jagdish by five generations i.e. he is great great great great great grandfather of Jagdish. The genealogy is not proved. Sayaji is removed from the petitioner by five generations i.e. he is great great great great great grand-father of petitioner. He also stated to be separated from Jagdish by five generations i.e. he is great great great great great grandfather of Jagdish. The genealogy is not proved. It is very difficult to believe that a person remembers name of a common ancestor which is removed from him by five generations and also remembers names of all the descendants of the alleged common ancestors. Another distant cousin of petitioner namely Hina, does not disclose the name of Jagdish in her affidavit. In the circumstances, we arc not inclined to accept the submission of Shri Talekar, learned counsel for the petitioner that Jagdish is a distant cousin (removed by five generations) of the petitioner. 7. The Scrutiny Committee has not relied upon the caste certificate of Jagdish Sonawane. Shri Talekar, learned counsel submitted that the Scrutiny Committee ought to have relied upon the tribe certificate of Jagdish Sonawane as this Court in Writ Petition No.1704 of 1993 (supra) had declined to interfere in the tribe certificate and further declined to set aside the certificate and quash the notice issued by the Additional Commissioner. In our view, the Scrutiny Committee has given good reasons for not relying upon the tribe certificate of Jagdish. The Scrutiny Committee has referred to the decision of the Division Bench of this Court in Writ Petition No.2773 of 1990, dated 3.7.2003, wherein it is observed; "10. ..... decision of the apex Court in the case of Kumari Madhuri Patil and another Vs. Addl. Commissioner, Tribal Development and Others ( AIR 1995 SC 94 ), wherein it has been emphasized that each claimant has to stand on his/her own legs and merely because of one of the family member's caste claim has been verified, would not by itself be the foundation for validation of the candidate's claim....." The Scrutiny Committee had also relied upon another decision of another Division Bench of this Court in Writ Petition No.2175 of 2008 (Kum. Seem a S. Bhadekar Vs State of Maharashtra) dated 16.6.2008, wherein it was observed; ".... The second contention that the sister of the petitioner was granted the certificate, which was approved by this Scrutiny Committee, cannot become a precedent for the Petitioner to get certificate. Seem a S. Bhadekar Vs State of Maharashtra) dated 16.6.2008, wherein it was observed; ".... The second contention that the sister of the petitioner was granted the certificate, which was approved by this Scrutiny Committee, cannot become a precedent for the Petitioner to get certificate. If the certificate has been granted to the Petitioner's sister that must have been granted in the immediate past and cannot become a reason for granting the certificate to the Petitioner." 8. It is true that a caste / tribe certificate issued to a brother, sister or close relative of the petitioner is relevant for considering his caste / tribe claim. However, when there is other material on record which indicates to the contrary the Scrutiny Committee is required to weigh the entire evidence i.e. the material produced by the claimant (including the certificates of validities granted to his alleged close relatives) and the evidence / material which is adverse to the claimant's claim. As stated by the Supreme Court in the case of Dr. N.G Dastane Vs. Mrs. S. Dastane 1(19752 SCC 3261: 12007 ALL SCR (O.C.C.) 65), the test of preponderance of probabilities must be applied in considering the evidence. At the first stage impossible is weeded out and at the second stage improbables are weeded out. After considering the totality of the circumstances, it is open to the Scrutiny Committee to come to a conclusion, whether a claim of a person that he belongs to a particular caste / tribe can be accepted or not. A caste / tribe certificate issued to a relative of the claimant cannot be regarded as a conclusive evidence of his caste / tribe. What is required to be weighed is totality of evidence. The probative value of caste certificate of a relative would become weaker and weaker as the relationship becomes distant and distant. In the present case, firstly, we have doubt whether Jagdish at all is a blood relation of the petitioner. On the petitioner's own saying he is separated from the petitioner by five generations. We are not inclined to accept the genealogy. There is a strong evidence about the caste / tribe of the petitioner's father not being a "Tokare Koli". In the present case, firstly, we have doubt whether Jagdish at all is a blood relation of the petitioner. On the petitioner's own saying he is separated from the petitioner by five generations. We are not inclined to accept the genealogy. There is a strong evidence about the caste / tribe of the petitioner's father not being a "Tokare Koli". In our view, the Scrutiny Committee did not commit any error in relying upon the evidence of the caste / tribe of the petitioner's father than relying upon the caste / tribe claim of the far far distant cousins of the petitioner. So far caste certificate of Hina is concerned, her claim was on even weaker basis and not approved by the Court at any time. Our attention has not been drawn to any material which has a better probative value than the probative value which is to be attached to the caste / tribe of the petitioner's father which is not "Tokare Koli". 9. For these reasons, we find no error in the decision of the Scrutiny Committee. Writ Petition is accordingly dismissed. Interim relief, which has been granted, is however, continued for the period of four weeks. Admission of the petitioner shall not be cancelled for a period of four weeks. Petition dismissed.