Allowed

Kapil Tanajirao Khindiwale v. the State of Mah and Ors.

Bombay HC25 Jun 2014WP/2750/2012

Case brief

AI extract

What is this about?

The High Court allowed writ petitions challenging the refusal to issue Scheduled Tribe caste certificates to Petitioners belonging to Gond community. The Court quashed impugned orders and directed the Sub-Divisional Officer to issue the certificate, relying on precedents regarding residents of disputed areas and the need for prima-facie satisfaction at the inquiry stage.

What did the court decide?

Impugned orders of Sub-Divisional Officer and Appellate Authority quashed. Petitioners entitled to Scheduled Tribe caste certificate. Order to issue certificate expeditiously within six weeks.

Kapil Tanajirao Khindiwale Vs the State of Mah and Ors. — Caste Atrocities | Bombay HC (2014)

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THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. APPELLATE SIDE JURISDICTION

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WRIT PETITION NO. 2750 OF 2012

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Kapil S/o Tanajirao Khindiwale, Age:- 20 years, Occupation: Education, R/o :- Navnathnagar, New Mondha, Majalgaon, Tq. Majalgaon, Dist. Beed. ... PETITIONER

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V E R S U S

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The State of Maharashtra, Through Secretary to Tribal Development Department, Mantralaya, Mumbai. [ Copy to be served through Government Pleader, High Court of Judicature of Bombay, Bench at Aurangabad.] 2) The Scheduled Tribe Caste Certificate Verification Committee, Aurangabad, Through its Dy. Director, Aurangabad. 3) The Sub Divisional Officer, Ambajogai, Dist. Beed. ... RESPONDENTS

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A N D

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WITH PETITION NO. 2760 OF 2012

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Kiran S/o Tanajirao Khindiwale, Age:- 18 years, Occupation: Education, R/o :- Navnathnagar, New Mondha, Majalgaon, Tq. Majalgaon, Dist. Beed. ... PETITIONER

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V E R S U S

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1. The State of Maharashtra, Through Secretary to Tribal Development Department, Mantralaya, Mumbai. [ Copy to be served through Government Pleader, High Court of Judicature of Bombay, Bench at Aurangabad.]

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1. The Scheduled Tribe Caste Certificate Verification Committee, Aurangabad, Through its Dy. Director, Aurangabad.

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1. The Sub Divisional Officer, Ambajogai, Dist. Beed. ... RESPONDENTS

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Mr. Gajanan P. Mapari, Advocate for the Petitioner in both the petitions. Mr. S.G.Karlekar, AGP for Respondent Nos.1 and 3 in both the petitions. Mr. K.D. Bade Patil, Advocate for Respondent No.2 in both the petitions.

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CORAM : R. M. BORDE and V. L. ACHLIYA, JJ. DATE : 25^th June, 2014.

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ORAL JUDGMENT:

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1 Rule.

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2 Rule made returnable forthwith. With the consent of the

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parties, the petitions are taken up for final disposal at admission stage.

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3 The Petitioners claim themselves to be belonging to Gond

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Scheduled Tribe category. An application came to be tendered for issuance of caste certificate to the Sub-Divisional Officer, Ambajogai, which has been turned down by the said Authority by order dated 25^th November, 2010 and the order of refusal to issue caste certificate has been confirmed by the Scrutiny Committee in an appeal presented by the Petitioners by an order dated 9^th November, 2011. The reason for refusal to issue caste certificate that has been recorded by both the Authorities, is that the father of the Petitioner was resident of village Muraki, Taluka Aurad, District Bidar which at present forms part of the State of Karnataka. The Authorities found that since the family has migrated from the State of Karnataka, the Petitioners are not entitled to secure benefits of the concerned Tribe in the State of migration i.e. in the Maharashtra State. The Petitioners, in order to substantiate their claim, have placed reliance on various affidavits as well as the entries in the school record, wherein the Tribe of the Petitioners has been recorded as Gond. The Circle Inspector on the basis of local inquiry has reported that the family of the Petitioners appear to belong to Gond Scheduled Tribe.

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4 The issue raised in the matter as to whether the

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Petitioners, who originally belong to the State of Karnataka, which area prior to State Reorganization, formed part of State of Hyderabad and the part of the area has now been allotted to the State of Maharashtra, are entitled to receive benefits in the State of migration in view of the decision of the Supreme Court in the matter of

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Sudhakar Vithal Kumbhare Vs. State of Maharashtra and

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another , reported in, [ 2004 (4) Mh.L.J. 784 ] . Apart from this aspect, the part of the area, which is place of origin of the family, is part of the disputed area, in respect of which the State of Maharashtra has lodged a claim. There are 865 villages declared as disputed area, which is a Marathi speaking region and the State of Maharashtra claims the aforesaid villages liable for inclusion in the State of Maharashtra. The village of origin of the family, which forms part of Aurad Taluka, District Bidar, is recorded at serial No.33 in the Government Resolution issued by the State on 10^th July, 2008. The residents of aforesaid disputed villages are entitled to claim benefits in respect of employment and eduction in the State of Maharashtra in view of the decision taken by the Government referred to above.

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5 So far as the decision of the Supreme Court in the matter

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of Marri Chandra Shekhar Rao Vs. Dean, Seth G.S. Medical College and others , reported in [ (1990) 3 Supreme Court Cases 130 ] , is distinguished in the matter of Sudhakar Vithal Kumbhare (supra), wherein the Supreme Court has observed in paragraph No.5 of the judgment as quoted below:

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“5. But the question which arises for consideration herein appears to have not been raised in any other case. It is not in dispute that the Scheduled Castes and Scheduled Tribes have suffered disadvantages and denied facilities for development and growth in several States. They are required protective preferences, facilities and benefits inter alia in the form of reservation, so as to enable them to compete on equal terms with the more advantageous and developed sections of the community. The question is as to whether the appellant being a Scheduled Tribe known as Halba/Halbi which stands recognized both in the State of Madhya Pradesh as well as in the State of Maharashtra having their origin in the Chhindwara region, a part of which, on States' reorganization, has come to State of Maharashtra, was entitled to the benefit of reservation? It is one thing to say that

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the expression “in relation to that State” occurring in Article 342 of the Constitution of India should be given as effective or proper meaning so as to exclude the possibility that a tribe which has been included as a Scheduled Tribe in one State after consultation with the Governor for the purpose of the Constitution may not get the same benefit in other State whose Governor has not been consulted; but it is another thing to say that when an area dominated by members of the same tribe belonging to the same region which has been bifurcated, the members would not continue to get the same benefit when the said tribe is recognized in both the States. In other words, the question that is required to be posed and answered would be as to whether the members of the Scheduled Tribe belonging to one region would continue to get the same benefits despite bifurcation thereof in terms of States' Reorganization Act. With a view to find out as to whether any particular area of the country was required to be given protection is a matter which requires detailed investigation having regard to the fact that both Pandhurna in the District of Chhindwara and the part of area of Chandrapur at one point of time belonged to the same region and under the Constitutional Scheduled Tribes Order, 1950 as it originally stood the Tribe Halba/Halbi of that region may be given the same protection. In a case of this nature the degree of disadvantages of

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various elements which constitute the input for specification may not be totally different and the State of Maharashtra even after reorganization might have agreed for inclusion of the said Tribe Halba/Halbi as a Scheduled Tribe in the State of Maharashtra having regard to the said fact in mind.”

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6 This Court has followed the precedents and extended the benefits applicable to the residents of the disputed villages listed in the Government Resolution dated 10^th July, 2008, in the matter of

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Preeti Gopalrao Kamble Vs. State of Maharashtra and others ,

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reported in, [ 2013 (2) Mh.L.J. 317 ] . In view of decision referred as above, we are of the opinion that the Authorities below ought not to have refused to issue tribe certificate in favour of the Petitioners.

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7 It is well established that the Tribe Certificate is required to be issued on prima-facie satisfaction of the Authority as regards entitlement of applicant to claim such certificate. The tribe certificate issued, is always subjected to scrutiny and the benefits are accruable only after receipt of validation certificate. At the stage of issuance of

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the validation certificate, an in depth inquiry is not expected and detailed inquiry is contemplated only a the stage of issuance of

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validation certificate by the competent scrutiny committee. In our opinion, the Petitioners have made out prima-facie case for issuance of certificate and the Authorities below ought not to have refused to issue certificates certifying that the Petitioners belong to Scheduled Tribe category.

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8 For the reasons recorded above, the writ petitions deserve to be allowed and the same are accordingly allowed.

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9 The orders passed by the Sub-Divisional Officer, Ambajogai as well as the Appellate Authority, are quashed and set aside and the Sub-Divisional Officer, Ambajogai is directed to issue caste certificate certifying that the Petitioners belong to Gond Scheduled Tribe as expeditiously as possible, preferable within a period of six weeks from today.

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10 It is hereby clarified that the observations made in the judgment in respect of entitlement of the Petitioners to receive caste certificate, are of prima-facie nature and the Scrutiny Committee while considering the claim for issuance of validation certification, shall not be influenced by these observations.

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11 Rule is accordingly made absolute. There shall be no

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order as to costs.

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[ V. L. ACHLIYA, J. ] [ R. M. BORDE, J. ]

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ndm