Atmaram Babulal Jadhav Vs the State of Maharashtra and Others

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8-wp-8133-2013

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 8 WRIT PETITION NO. 8133 OF 2013

Atmaram s/o Babulal Jadhav
Age 56 years, Occu. Service, working
As Naib Tahsildar, in Collector office
at Jalgaon, Dist. Jalgaon ..PETITIONER

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VERSUS

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1.The State of Maharashtra
Through its Secretary,
Revenue and Forest Department,
Mantralaya, Mumbai-32.

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2. The Scheduled Tribe Certificate Scrutiny Committee, Nandurbar Region, Nandurbar.

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3. The Collector, Jalgaon. ..RESPONDENTS

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Mr. S. R. Barlinge, Advocate for the Petitioner.
Mr. K. S. Patil, AGP for Respondent-State.

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… CORAM : S. V. GANGAPURWALA & R. G. AVACHAT, JJ. DATED : 03^rd DECEMBER, 2018.

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ORAL JUDGMENT (Per S. V. Gangapurwala, J.) :-

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1.Rule. Rule made returnable forthwith.
With consent of the parties, matter is taken up for
hearing at admission stage.

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2.The caste claim of the petitioner as
belonging to 'Tokare Koli', Scheduled Tribe was
referred to the committee. The committee
invalidated the caste claim of the petitioner.
Aggrieved thereby the present petition.

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3.Mr. Barlinge, learned counsel for the
petitioner submits that the committee failed to
consider the old documents of pre-independence era.
The copy of the purchase deed made by Dhangu in
Modi language and translated in Marathi of the year
1908 records caste of Dhangu as 'Tokare Koli'. That
Dhangu is the great grandfather of the petitioner.
The learned counsel further submits that the caste
on the death extract of the grandfather of the
petitioner Gangaram records caste as 'Tokare Koli'.
The said document is dated 21.11.1949. The learned
counsel submits that the birth extract of the real
paternal aunt of the petitioner Narmada of the year
1931 records caste as 'Tokare Koli'. The school
record of the petitioner in the caste column
records magasalela. The learned counsel submits
that the same cannot be said to be a contra entry.
The committee on the basis of these isolated entry
has invalidated the tribe claim of the petitioner.
The learned counsel submits that even answers are
rightly given by the petitioner. More over, when
there are pre-independence documents having more
probative value, the affinity test would loose its
significance. The affinity test is not the litmus
test to arrive at the conclusion of a particular
caste. The same can only be a corroborative one.
The learned counsel relies on the judgment of the
Apex Court in a case of Anand Vs. Committee for
Scrutiny and Verification of Tribe Claims and Ors.
reported in AIR 2012 SC 314.

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4.The learned counsel further submits that
the Government has issued circular dated 18.10.1968
to the effect that when admission is taken in the
school, the particular caste should not be
recorded, however, only magasalela or bigar
magasalela ought to be recorded.

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5.The learned A.G.P. submits that in the
death extract of Gangaram the word 'Tokare' appears
to be inserted subsequently, as the entry is 'Koli
Tokare' and not 'Tokare Koli'. The learned counsel
submits that the school record of the petitioner
records magasalela in the caste column. The caste
is not specifically recorded. The same would be a
contra entry. The said entry is in both the school
record of the petitioner. The learned A.G.P.
further submits that the validity certificates
relied by the petitioner of the cousin are distant
one separated by four generations. The learned
A.G.P. further submits that the petitioner could
not prove the affinity test.

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6.We have considered the submissions
canvassed by the learned counsel for the respective
parties. We have also gone through the record and
the judgment of the committee.

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7.After the matter was referred to the
committee, the committee directed vigilance to be
conducted. The vigilance was conducted. The
vigilance did not find any suspicion in the
genealogy submitted by the petitioner. On perusal

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of the genealogy, it appears that Dhangu is the
great grandfather of the petitioner. Gangaram is
his son that is grandfather of the petitioner and
the father of the petitioner is Babulal. Whereas,
Narmada is the real paternal aunt of the
petitioner. We have gone through the evidence
produced by the petitioner. The vigilance did not
find any discrepancy in the documents such as the
birth extract of Narmada Gangaram dated 04.03.1931
recording caste as 'Tokare Koli'. The vigilance
also did not find any suspicion with the documents
by virtue of which Dhangu the great grandfather of
the petitioner and the father of Gangaram had
purchased the property and the said purchase deed
of the year 1908 records caste of Dahngu as 'Tokare
Koli'. The death extract of Gangaram the
grandfather of the petitioner dated 21.11.1949
records caste as 'Koli Tokare'. Only because
Tokare is written after word Koli, it cannot be
presumed that the word Tokare is added subsequently
nor the same has been found by the vigilance in the
enquiry.

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8.It is well settled that the pre-
independence documents will have more evidential
and probative value. All these documents are old
documents from year 1908 to 1949. Certainly, they
will have more probative value. The school record
of the petitioner does not record a particular
caste, but in the caste column it is recorded as
Hindu Magasalela meaning backward. The same cannot

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be ipso facto considered as a contra evidence. We could have understood, if in the caste column some other caste of the petitioner is recorded, however, that is not the fact.

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9.It has been held by the Apex Court that
the affinity test is not the litmus test. With the
passage of time and urbanization, the persons may
not follow the traits as has been held by the Apex
Court in the case of Anand Vs. Committee for
Scrutiny and Verification of Tribe Claims and Ors.
(supra). The affinity test at the most can be
considered to be a corroborative one, when the
evidence is shaky. However, in view of the old
documents having more probative value and no contra
evidence on record, the committee committed an
error in negativing the caste claim of the
petitioner.

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10.In light of the above, the impugned
judgment and order is quashed and set aside. The
committee shall issue validity certificate to the
petitioner of 'Tokare Koli' within a period of six
(06) weeks.

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11.Rule accordingly made absolute in above
terms. No costs.

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Devendra/December-18

Atmaram Babulal Jadhav v. the State of Maharashtra and Others

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Atmaram Babulal Jadhav v. the State of Maharashtra and Others

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