Bombay High Court
Laxman Subhash Koli vs The State Of Maharashtra Through Its … on 27 November, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:27962-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11376 OF 2022
Laxman s/o Subhash Koli,
Age 34 years, Occ. Service,
R/o. At- Purushottam Nagar,
Tq. Shahada, Dist. Nandurbar. ... Petitioner.
VERSUS
1) The State of Maharashtrta
Department of Tribal Development,
Mantralaya, Mumba-32
Through its Secretary.
2) The Scheduled Tribe Certificate Scrutiny
Committee, Nandurbar Division,
Nandurbar, Tq. & Dist. Nandurbar,
Through its Member Secretary.
3) The Collector,
Office of the Collectorate,
Nandurbar, Tq. & Dist. Nandurbar.
4) The Sub Divisional Officer Shahada
Division, Shahada, Tq. Shahada,
Dist. Nandurbar. ... Respondents
...
Advocate for Petitioner : Mr. Sushant C. Yeramwar
A.G.P. for Respondent nos. 1 to 4 : Ms. S.S. Joshi
CORAM : MANGESH S. PATIL &
PRAFULLA S. KHUBALKAR , JJ.
RESERVED ON : 18.11.2024
PRONOUNCED ON : 27.11.2024
JUDGMENT :
( MANGESH S. PATIL, J.)
By way of this petition under Article 226 of the Constitution of India,
read with the provisions of the Maharashtra Scheduled Castes, Scheduled
Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward
Classes and Special Backward Category (Regulation of Issuance and
Verification of) Caste Certificate Act, 2000 (the Maharashtra Act XXIII of
2001), the petitioner is taking exception to the judgment and order of the
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caste scrutiny committee (hereinafter ‘the committee’), whereby it has
refused to validate his ‘Tokre Koli’ scheduled tribe certificate issued under
Section 4 of the Act of 2001 and directing its confiscation and cancellation.
2. The learned advocate Mr. Yeramwar for the petitioner would submit
that the impugned judgment is perverse and arbitrary. Pre-constitutional
entries of the petitioner’s ancestors from the paternal side right from the
year 1919 have been discarded treating those to be contrary to the claim of
‘Tokre Koli’ being ‘Koli Dhor’ entries. In the matter of Samriddhi Yogesh
Savale Vs. The State of Maharashtra and others in Writ Petition No.
1209/2022 decided on 20.07.2024, this Court has already demonstrated by
sound reasons as to how both these scheduled tribes ‘Tokre Koli and ‘Koli
Dhor’ form part of the same entry at serial no. 28. No doubt has been
expressed about the genuineness of the pre-constitutional record, wherein
the petitioner’s ancestors were described as ‘Koli Dhor’ or ‘Dhor Koli’.
3. Mr. Yeramwar would also refer to the Government resolution
dated 24.04.1985, wherein both these tribes find place at the same serial no.
28. It is issued by Tribal Development Department. He would refer to the
orders issued by the erstwhile Government of Bombay and the extracts from
tribes (Tribes and Castes of Bombay, Volume II, written by R.E. Enthoven).
He would also refer to “an Index to the Castes and Tribes of the Bombay
Presidency (Provisional)”. He also referred to a broacher published in a
workshop held by the Tribal Development Department of the State of
Maharashtra at Tribal Research and Training Institute, Pune, on 24.06.2009,
at Nashik, wherein it was categorically observed that ‘Tokre Koli’ was
commonly known as ‘Dhor Koli’ earlier due to similar occupations of both
the tribes. He also referred to the extracts of “People of India-Maharashtra,
Volume XXX, Part II, published by Anthropological Survey of India”, wherein
it is categorically observed that ‘Dhor Kolis’ are also referred as ‘Tokre Kolis’.
Again, he referred to the report of the Advisory Committee on the revision of
the lists of the scheduled castes and scheduled tribes published by the
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Department of Social Security, Government of India, wherein list of all the
tribes throughout India has been given. So far as to the State of
Maharashtra, it enlists ‘Dhor Koli’ and ‘Tokre Koli’ at the same serial no. 13.
He would also refer to a publication “Maharashtra : Land and its People”
expressly having description of ‘Dhor Koli’ by making observation that it was
known by various names as ‘Koli Dhor’ and ‘Tokre Koli’. He would submit
that even in Gazetteer of the Bombay Presidency Volumn XIII, wherein
Government Orders of 1882 in respect of Thana mentions that ‘Dhor Koli’ is
generally known as ‘Tokre Koli’.
4. Mr. Yeramwar, would, therefore, submit that such enormous
record would be evidence to demonstrate that anthropologically ‘Tokre Koli’
tribe was earlier also commonly known as ‘Dhor Koli’ and finding the pre-
constitutional record of the petitioner’s ancestors as ‘Dhor Koli’ or ‘Koli Dhor’
could not have been legally treated by the committee as contrary to the
petitioner’s ‘Tokre Koli’ claim.
5. Mr. Yeramwar, would, therefore, submit that once having seen such
evidence, existence of pre-constitutional record, petitioner’s ancestors
describing them as ‘Koli Dhor’ coupled with a specific record right from the
year 1952 of petitioner’s grandfather, wherein in the school record he was
described as ‘Hindu Tokre Koli’, ‘Hindu’ being not a caste but a religion, was
sufficient to substantiate petitioner’s claim. But, the committee has fallen in
error in appreciation of the aforementioned facts and circumstances and the
observations be discarded, being perverse and arbitrary.
6. Mr. Yeramwar would submit that division benches of this Court have
consistently taken a similar view and have consciously refused to regard
‘Dhor Koli’ or ‘Koli Dhor’ entries as contrary to the claim of ‘Tokre Koli’. He
would refer to the decisions in the matter of Nilesh Gulab Sonawane and
another Vs. The State of Maharashtra and others ( in Writ Petition Non.
9654/2019) (Aurangabad Bench), dated 18.10.2023, which was followed by3/13
WP 11376 22 N.odtanother division bench in Shanabhau s/o Rambhau Sonawane Vs. The State
of Maharashtra and others (in Writ Petition No. 1890/2009) (Aurangabad
bench) decided on 07.02.2024, and Samriddhi Yogesh Savale Vs. The State
of Maharashtra and others (in Writ Petition No. 1209/2022) (Aurangabad
bench) decided on 20.07.2024.
7. He would further submit that the committee without indicating
anything to the petitioner has made certain observations in respect of some
decision of the High Court in an unrelated matter, which sustained up to the
Supreme Court, without there being any similarity in the facts and
circumstances. He would submit that even the committee has illegally
applied affinity test, contrary to the principles laid down by the Supreme
Court in the matter of Maharashtra Adiwasi Thakur Jamat Swarakshan
Samiti Vs. State of Maharashtra and others; 2023 SCC Online SC 326, when
it has discarded a favourable record, may be of post-independence period,
simply by referring to some alleged manipulation, only in respect of two
school entries of petitioner’s cousin grandfather and father of the year 1958
and 1967 respectively. He would, therefore, submit that the impugned
judgment being perverse and arbitrary be quashed, set aside and reversed.
8. The learned A.G.P., Ms. Joshi, would at the outset discard the
submission of Mr. Yeramwar seeking to draw parallel between the
anthropological characteristics and traits of ‘Koli Dhor’ and ‘Tokre Koli’ being
same or similar. She would submit that no such extraneous evidence as has
been cited by Mr. Yeramwar can be legally resorted to, to understand this.
Rather, such a course cannot be resorted to in light of the observations of the
Supreme Court in the matter of State of Maharashtra Vs. Milind and others;
(2001) 1 Supreme Court Cases 4, which has been consistently followed
thereafter by a division bench of this Court in the matter of Mana Adim
Jamat Mandal Vs. State of Maharashtra and others, 2004(2) Bom.C.R. 295,
which has been upheld by the Supreme Court in the matter of State of
Maharashtra and others Vs. Mana Adim Jamat Mandal; (2006) 4 Supreme
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Court Cases 98. She would submit that this Court in exercise of the powers
under Article 226 of the Constitution of India cannot indulge into any
enquiry on the lines submitted by Mr. Yeramwar, merely because both the
tribes, ‘Koli Dhor’ and ‘Tokre Koli’ appear at the same serial number of the
notification issued, namely the Constitution (Scheduled Tribes) Order, 1950,
in exercise of the powers conferred by Clause 1 of Article 342 of the
Constitution. She would particularly refer to para 36 from Milind and para
No. 30 from Mana Adim Jamat Mandal (supra).
9. Ms. Joshi, would submit that the decisions in the matter of Milind and
Mana Adim Jamat Mandal (supra) were not cited before the division
benches, which decided the matters of Nilesh Gulab Sonawane and
Shanabhau s/o Rambhau Sonawane Samriddhi Yogesh Savale (supra).
10. Ms. Joshi, would further submit that no fault can be found with the
committee in discarding ‘Koli Dhor’ or ‘Dhor Koli’ entries of pre-
constitutional period as contrary to the petitioner’s claim of ‘Tokre Koli’. The
observations of the committee are based on correct and plausible
appreciation of evidence before it and this Court cannot sit in appeal and
substitute its views. She prayed to dismiss the petition.
11. We have considered the rival submissions and perused the original
record. It is necessary to note that except couple of school entries, regarding
which committee has sought to discard them on the ground that those were
manipulated, it has not entertained any doubt about genuineness of the rest
of the record, which, based on the vigilance report and the evidence
furnished by the petitioner, has been collated by the committee in the
impugned judgment as under:
Sr. Name of the Name of the Relationship Caste Admission/ Remark
No. Document person on the with the entry Registratio
document applicant n date
1) Birth Daga s/o Great Koli Dhor 08.11.1919
registration Shamji Gokul grandfather
evidence
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2) Birth Gajmal s/o Grandfather Koli Dhor 04.01.1943
registration Daga Shamji
evidence
3) Birth Rukhma s/o Grandmother Koli Dhor 09.11.1944
registration Daga Shamji
evidence
4) Birth Pundlik s/o Cousin Koli Dhor 14.04.1948
registration Daga Shamji grandfather
evidence
5) School Gajmal Daga Grandfather Hindu 09.01.1952
evidence Koli Tokre Koli
6) School Pundlik Daga Cousin Hindu To 06.06.1958 In the
evidence Koli grandfather Koli column of
caste and
sub-caste
letter ‘To’ ¼Vks½
appears in a
different ink
7) Death Father Daga Great To. Ko. 05.07.1960
registration Shamji Koli grandfather
evidence
8) School Subhash Father Hindu To. 23.06.1967 In the
evidence Gajmal Koli Koli column of
caste and
sub-caste
letter ‘To’ ¼Vks½
appears in a
different ink
9) School Laxman Applicant Hindu 02.07.1993
evidence Subhash Koli Tokre Koli
10) School Sandip Brother Hindu 01.06.1995
evidence Subhash Koli Tokre KoliAs can be noticed, all the pre-constitutional record from the birth and
death registers of petitioner’s great grandfather, grandfather, grandmother
and cousin grandfather were ‘Koli Dhor’. In the post-constitutional period
the record of his grandfather of 1952, death record of great grandfather of
1960, and the school record of the petitioner himself and his brother was
‘Hindu Tokre Koli’ of the year 1993 and 1995, respectively. It is, therefore,
abundantly clear that the petitioner’s claim is not without there being any
evidence, albeit it is trite as laid down in the matter of Anand Vs. Committee
for Scrutiny and Verification of Tribe Claims and Ors; (2012) 1 SCC 113, a6/13
WP 11376 22 N.odtpre-constitutional record would carry a greater probative value as compared
to the post-constitutional record for the obvious reasons that there could be
a possibility of the entries having been made consciously after the
notifications were issued under Article 343 of the Constitution of India, for
deriving the benefit of reservation.
12. However, it has to be borne in mind that the caste claims under the
Maharashtra Act XXIII of 2001 are to be proved on the principle of
preponderance of probability and no strict proof is required, though the
burden lies on the claimants under Section 8 to substantiate their claims
based on evidence which is legally acceptable.
13. Bearing in mind this trite principle and assuming for the sake of
arguments for the time being that ‘Koli Dhor’ entries of the pre-
constitutional period would be contrary to the petitioner’s claim of being
‘Tokre Koli’, to which we are adverting to latter, admittedly, the father’s
school record of 1952, described him as ‘Hindu Tokre Koli’ and the death
record of great grandfather of 1960, described him as ‘To. Ko.’, obviously as
an abbreviation of ‘Tokre Koli’, substantiate the petitioner’s claim. Even
though two intermittent entries in the school record of 1958 and 1967 have
been discarded by the committee by making a subjective assessment of the
record on the ground that letter ‘Vks’ , in the form of abbreviation of ‘Tokre’
appeared in different ink, since it is a matter of preponderance of
probabilities, the alleged manipulation in the school record after 1952
would not dislodge the school record of 1952 of petitioner’s grandfather,
wherein he was described as ‘Hindu Tokre Koli’. ‘Hindu’ not being a tribe or
caste, but a religion, appearance of word ‘Hindu’ prefixing ‘Tokre Koli’, in
our considered view, was also sufficient for the committee and substantiated
the petitioner’s claim on probability. No reasons have been assigned by the
committee to discard this 1952 favourable record of petitioner’s grandfather
except on the ground that there was contrary record of ‘Koli Dhor’ of the
pre-constitutional period.
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14. Precisely for this reason, in a slightly different context, by referring to
Milind (supra), following observations were made in the matter of
Samriddhi Yogesh Savale (supra), by a division bench of this Court, to which
one of us (Mangesh S. Patil, J.) was a party :
“17. One need not delve deep to observe that every entry in
the constitutional order / schedule has its own sanctity and has
to be understood and applied strictly as laid down in Milind
Sharad Katware and others Vs. State of Maharashtra and others;
1987 Mh.L.J. 572. Admittedly, the tribe ‘Koli’ which was initially
included in other backward class, subsequently, was included in
special backward class. As against this, ‘Tokre Koli’ or ‘Dhor Koli’
are included in entry at serial no. 28 of scheduled tribes.
Obviously, therefore, Koli entries would be inconsistent with the
claim of ‘Dhor Koli’ or ‘Tokre Koli’.
18. As can be seen, the school record or birth record of 1913,
1922, 1928 and 1935 describe the petitioner’s forefathers as
‘Koli’. However, school record and birth record of 1906, 1923,
1925, two entries of Bhila Ragho and Guman Budha of the year
1930, 1932, 1937, 1942, 2 entries of Mohan Ragho and
Motiram Bhila of 1948, describe petitioner’s forefathers as ‘Dhor
Koli’ or ‘Tokre Koli’ or ‘Koli Dhor’ or ‘Hindu To. Koli’. Though the
committee had plausible reasons to discard some of this record
on the ground of the entries being suspicious and looked
manipulated, or else the original record of the school was not
tallying with the loose pages containing some of these entries,
even if the committee is justified in discarding these dubious
entries, it is abundantly clear that these pre-constitutional
entries which have been doubted by the committee and even by
the vigilance cell, petitioner’s forefathers were interchangeably
described as ‘Koli’, ‘Dhor Koli’ ‘Tokre Koli’ or ‘Koli Dhor’. It is thus
quite clear that the entries were made ex facie interchangeably,
without intending to describe these individuals bearing in mind
the future consequences. In other words, the persons who must
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school record or in the birth and death register in Form no. 14
must have loosely described the caste as per their own
understanding. At times, the entries were made as ‘Koli’ which
could have been used colloquially as a generic name. If such is
the state of affairs, the forefathers of the petitioner though at
times were described as Koli, but were also number of times
described as ‘Dhor Koli’ or ‘Tokre Koli’ or ‘Koli Dhor’, one needs
to appreciate these entries pragmatically.
19. It is just possible that the person providing the
information may describe the caste as ‘Koli’ even without what
he meant was to describe that it with an adjective, ‘Dhor’ or
‘Tokre’. While recording the entries ‘Dhor Koli’ or ‘Tokre Koli’ or
‘Koli Dhor’ he or they would do it consciously emphasizing the
adjective having a different connotation. Therefore, though per
se, the entry ‘Koli’ is inconsistent with the claim of being ‘Tokre
Koli’ or ‘Dhor Koli’, when there are plentiful entries of ‘Dhor Koli’
or ‘Tokre Koli’ of the pre-constitutional period, in our considered
view, the principle of preponderance of probabilities would
apply and would substantiate the petitioner’s claim. It is not
merely a question of mathematical calculation as to how many
are the favourable entries as against the contrary entries of
‘Koli’. It would be a matter of appreciation of the circumstances
while making those entries, that too in pre-constitutional era.
Obviously, when many of the pre-constitutional entries are of
first quarter of the 20th century when the rate of literacy must
have been drastically low, even if there are few contrary entries
of ‘Koli’, in our considered view, not much weight can be
attached to it when simultaneously there are plentiful
favourable entries as well, of the same period.
20. True it is that there seems to be some attempt at
manipulation for the obvious purpose. However, we have
expressly ignored such entries which are dubious in nature as
described by the committee. We have considered only those
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WP 11376 22 N.odtentries regarding which the committee has not entertained any
doubt about their genuineness. Still, we have found that there
are number of favourable entries describing the forefathers as
‘Dhor Koli’ or ‘Koli Dhor’.”
21. True it is that there is no clear entry of ‘Tokre Koli’
which is the claim of the petitioner of the pre-constitutional
period and the word ‘To’ seems to have been added at a later
point of time. However, we have already considered the aspect
as to whether claim of ‘Tokre Koli’ and that of ‘Dhore Koli’ or
‘Koli Dhor’ could be treated as inconsistent, in the matter of
Nilesh Sonawane (supra). We pointed out that entry no. 28 of
schedule of Tribe Order, 1950 mentioned four tribes – ‘Koli
Dhor’, Tokre Koli’, ‘Kolcha’ and ‘Kolgha’. If the legislature in its
wisdom has put ‘Koli Dhor’ and ‘Tokre Koli’ in the same entry,
the claim of ‘Tokre Koli’ cannot be treated as inconsistent with
that of ‘Koli Dhor’.
22. There is one more aspect which needs to be emphasized
in this context. A person would not derive any additional
advantage or benefit by being described as ‘Tokre Koli’ instead of
‘Koli Dhor’ or vice versa. This would be another reason not to
treat such claims to be inconsistent. Therefore, when, as is
mentioned herein-abvove, there is acceptable documentary
evidence of pre-constitutional period wherein the petitioner’s
forefathers were described as ‘Dhor Koli’ or ‘Koli Dhor’, the
committee could not have refused to extend its benefits to her
when she has been claiming to be a ‘Tokre Koli’.
15. These reasons with the observations, particularly in paragraph nos. 19
to 22, in our considered view, are sufficient even for the matter in hand to
substantiate the petitioner’s claim.
16. With respect, the observations of the Supreme Court in the matter of
Milind and Mana Adim Jamat Mandal (supra) will have to be followed.
However, it is not a fact, as has been submitted by the learned A.G.P., Ms.
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Joshi that the decision in the matter of Samriddhi Yogesh Savale (supra) was
decided without any reference to Milind (supra), when paragraph no. 17 of
that judgment demonstrates that it was cited before the division bench and
was specifically referred to.
17. With utmost respect, the observations (supra) in the matter of
Samriddhi Yogesh Savale would clearly demonstrate that the documentary
evidence was analyzed and inter alia it was observed that a person would
not derive any additional advantage or benefit by being described as ‘Tokre
Koli’ instead of ‘Koli Dhor’ or vice versa, obviously, as both these tribes find
place at the same serial No. 28 of the Schedule of the Constitutional
notification, 1950. Since it is a matter of appreciation of evidence, the
observations in the matter of Samriddhi Yogesh Savale (supra), as we have
reiterated herein above, is a matter of proof on the principle of
preponderance of probability and it is in that context it was observed by the
division bench in Samriddhi Yogesh Savale (supra), which course we seek to
follow, when there are favourable entries may be of 1952, onwards wherein
the petitioner’s grandfather and father were described as ‘Tokre Koli’ in the
school record. It is not a matter that there is absolutely no evidence to
substantiate petitioner’s claim. To repeat, even though the petitioner’s
forefathers were described in the birth record, right from 1919, during the
pre-constitutional era as ‘Dhor Koli’, the petitioner’s family was not to derive
any additional advantage by seeking to change the description in the post-
constitutional period as ‘Tokre Koli’ when the notification issued under
Articles 341 and 342, enlisted both these tribes at the same serial number
28. In these peculiar circumstances, as was done in the matter of Samriddhi
Yogesh Savale (supra), according to us rightly so, the observation and
conclusion of the committee in treating ‘Dhor Koli’ entries of the pre-
constitutional period as contrary to the petitioner’s claim of ‘Tokre Koli’
would not be a correct appreciation of the facts and circumstances. A man
would indulge in such manipulation if he would want to derive some
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advantage, which otherwise would not have been available to him. Even if
the petitioner’s ancestors were subsequently described in the post-
constitutional period as ‘Tokre Koli’, they could have been alleged to have
done so consciously had it been a fact that only ‘Tokre Koli’ was notified as a
scheduled tribe and not ‘Koli Dhor’. If they were to derive the benefit of
constitutional notification enlisting the tribes, they would have happily
continued to describe them as ‘Koli Dhor’ for deriving the benefit of
reservation. It is in such peculiar state of affairs that according to us, the
decisions of the Supreme Court in the matter of Milind and Mana Adim
Jamat Mandal (supra) would not be applicable to the fact situation of the
matter.
18. In the matter of Milind (supra), the principle laid down is to the effect
that in light of the Articles 341 and 342 of the Constitution, a scheduled
tribes order can be amended only by the Parliament and the High Court in
exercise of a limited jurisdiction under Article 227 of the Constitution,
cannot deal with the question whether a particular caste or tribe would
come within the purview of the notified Presidential Order. The claimant
therein, who was the respondent before the Supreme Court was claiming to
be belonging to ‘Halba/Halbi’, which is the scheduled tribe under entry 19
of the Presidential Order relating to the State of Maharashtra, when he was
proved to be belonging to ‘Koshti’. The High Court in that matter had
allowed the writ petition and quashed and set aside the order of the
committee, and had held that it was permissible to enquire whether any sub-
division of a tribe was a part of the tribe mentioned in the Presidential Order
holding that ‘Halba-Koshti’ is a sub-division of main tribe ‘Halba/Halbi’ at
entry 19 in the schedule tribe order applicable to Maharashtra. It is such
exercise undertaken by the High Court was held by the Supreme Court to be
impermissible. Indeed, the conclusion is binding as a ratio. However, with
respect, in the matter in hand the facts are peculiar. The petitioner is not
belonging to any different caste or even tribe, but the record demonstrates
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that his forefathers in the pre-constitutional period were described as ‘Dhor
Koli’ whereas in the post-constitutional record they were described as ‘Tokre
Koli’, both of which entries find place at the same serial number 28 of the
Constitutional Order, which was not the case before the Supreme Court even
in the matter of Mana Adim Jamat Mandal (supra).
19. We, therefore, find no force in the submission of the learned A.G.P.
Ms. Joshi to the effect that firstly the decision in Samriddhi Yogesh Savale
(supra) was in ignorance of the principle laid down in Milind (supra), when
it was specifically referred to in paragraph no. 17 of the judgment of the
division bench, and secondly, on the ground that the decisions in Milind and
Mana Adim Jamat Mandal (supra), are applicable to the matter in hand is
not sustainable for the peculiar facts and circumstances obtaining herein as
compared to the ones which were before the Supreme Court.
20. Resultantly, the pre-constitutional record of petitioner’s forefather,
wherein they were described as ‘Koli Dhor’ could not have been treated as
contrary to the petitioner’s claim of ‘Tokre Koli’ and the observations of the
committee to that effect are not legally sustainable, being perverse and
arbitrary.
21. In light of above, the petition deserves to be allowed as prayed for.
22. The Writ Petition is allowed.
23. The impugned order is quashed and set aside.
24. The respondent-committee shall immediately issue tribe validity
certificate to the petitioner as belonging to ‘Tokre Koli’ scheduled tribe in the
prescribed format.
( PRAFULLA S. KHUBALKAR J.) (MANGESH S. PATIL, J.)
mkd/-
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