Bombay
High Court
Indian
Kanoon - http://indiankanoon.org/doc/108364/
Bombay
High Court
Kum.
Tanuja D/O Maganlal Rajpal vs State Of Maharashtra on 3 November,
1988
Equivalent
citations: (1988) 90 BOMLR 541, 1989 MhLJ 99
Author:
C Dharmadhikari
Bench:
C Dharmadhikari, S Kurdukar, V Kotwal
JUDGMENT
C.S.
Dharmadhikari, J.
1.
In this petition the petitioner has challenged the decision of the
Caste Scrutiny Committee holding that the petitioner has failed to
prove that she belongs to Bawa tribe which is notified as a Nomadic
Tribe in the State of Maharashtra. The petitioner has also challenged
the order passed by the Additional Commissioner, Konkan Division,
Bombay, the appellate authority, confirming the order of the Caste
Scrutiny Committee.
2.
Initially this writ petition was placed for hearing before the
Division Bench. But in view of an apparent conflict in the decisions
of this Court and a contention raised that the decision in Vijay
Shrichand Daulatnni v. State of Maharashtra requires
reconsideration, the matter came to be referred to a larger Bench.
This is how this petition came to be placed before this Full Bench.
3.
On the basis of the arguments advanced before the Division Bench as
well as before us, the following questions arise for our
consideration :
(a)
Whether 'Bawas' from Sindh can claim the benefit of entry Gosavi or
its synonyms as included in the list of Nomadic Tribes vide
Government Resolution dated 21st November 1961 as amended from time
to time?
(b)
Whether the Government Resolution dated 1st April 1987 which directs
that Sindhi Community is not covered by the said entry, is illegal as
by the said resolution Government has sought to set at nought the
decision of this Court in Vijay Daulatani's case?
(c)
What should be the nature of evidence to be adduced before the
Scrutiny Committee for establishing the fact that a particular person
belongs to Nomadic Tribe?
(d)
Whether it is necessary to establish mutual affinity amongst the
tribal communities specified in the schedule?
4.
It was contended by Shri Gursahani, learned Counsel appearing for the
petitioner, that the petitioner belongs to Hindu Bawa Nomadic Tribe,
which was originally recognised as Other Backward Class in Sindh,
West Pakistan. Prior to the partition of India, Sindh was part of the
then Bombay Presidency. After partition members of the Sindhi
Community migrated to India. They migrated with their traditions and
castes and, therefore, it will not be correct to say that Bawas from
Sindh have socially or ethnically nothing in common with the
community of Gosavi or Bawa notified by the Government of Maharashtra
as Nomadic Tribe. In Vijay Daulatani's case the Division Bench of
this Court has rightly come to the conclusion that even after
migration the caste remained unchanged and, therefore. Bawas from
Sindh were entitled to the benefits meant for the Nomadic Tribes.
5.
On the other hand it is contended by the learned Advocate General
that reservations qua Other Backward Classes or Vimukta Jati and
Nomadic Tribes are provided under Article 15(4) of the Constitution
of India. When in 1928, the then Government of Bombay appointed a
Committee under the Chairmanship of Mr. Starte to enquire into the
educational, economic and social conditions of depressed classes,
'Sindh' was excluded from the purview of the said Committee. The said
Committee had submitted its report to the Government in 1930. Further
from the Government resolutions issued from time to time, it is clear
that whenever the Government wanted to include any caste or tribe
from Sindh, a specific, mention has been made in that behalf. The
Bawa caste from Sindh is not any way socially or ethnically connected
with the Communities known as Bawas, Bairagis or Gosavis from
Maharashtra. Therefore, Bawa caste from Sindh was never included in
the list of Nomadic Tribes as applicable to the State of Maharashtra.
It is also contended by him that the Division Bench of this Court in
Vijay Daulatani's case did not consider various aspects of the matter
and erred in coming to the conclusion that Bawas from Sindh are also
included in the schedule relating to the Nomadic Tribe.
6.
In support of their rival contentions learned Counsel have placed
strong reliance upon the following decisions :
(2) Prakash
Ghanshamdas Nathani v. The State of Maharashtra (1982)
W.P. No. 2388 of 1981 decided, April 7, 1982 by Deshpande C.J. and
Lentin, J. (Unrep.)
(5)
Mukesh Thakur v. State of Maharashtra (1983) O.S. Appeal No. 44 of
1983 in W.P. No. 2177 of 1982 decided, October 21, 1983 by Kania &
Mehta, JJ. (Unrep.).
(6) Subhash
G. Kabade v. State of Maharashtra (1986)
W.P. No. 438 of 1983 decided, June 19/20, 1986 by Jamdar &
Ratnaparkhi, JJ. (Unrep)
(7) Kum.
Sunita Shamrao Pimprelker v. State of Maharashtra (1980)
W.P. No. 2282 of 1980 decided, September 5, 1980 by Deshpande C.J.
and Bhonsale, J.
(8)
Vijayalaxmi K. Ambolkar v. State of Maharashtra (1985) W.P. No. 471
of 1985 with W.P. 537 of 1985 decided, October 15, 1985 by Khatri &
V.P. Salve. JJ. (Unrep.)
(9)
Miss Ashlesha A. Sankhe v. State of Maharashtra (1986) O.S. Appeal
No. 1008 of 1986 in W.P. No. 2704 of 1986 (Bom. Original Side)
decided, November 14, 1986 by Kania C.J. and Parekh, J. (Unrep).
(10)
Milind S. Katware and Ors. v. State of Maharashtra [1984] Mah. L.J.
289
(12)
Sunil N. Umbordekar v. Dr. V.G. Ranade (1980) W.P. No. 2404 of 1980
decided on September 24, 1980 (Unrep.).
(13)
Uttam Bidessingh Rajput v. State of Maharashtra (1983) W.P. No. 1915
of 1983 decided on July 16, 1983 (Unrep.).
(14) Madhavrao
Rajput v. State of Maharashtra (1983)
W.P. No. 1914 of 1983 decided on July 16, 1983 (Unrep.).
(15)
Bijendra Pratap Patel v. S.L. Dipali (1983) W.P. No. 2749 of 1982
decided on June 23, 1983 (Unrep.).
(16)
Baban V. Choudhary v. State of Maharashtra (1986) W.P. No. 1197 of
1986 decided on July 21, 1986 by Qazi & Deshpande, JJ.
(18)
Bhiwaji Eknathrao Kavale v. State of Maharashtra (1982) W.P. No. 1572
of 1980 decided on February 3, 1982 by Kanade and D.B. Deshpande, JJ.
(Unrep.).
(19)
Miss Anupama d/o Niranjan Chawla v. State of Maharashtra (1984) W.P.
No. 2195 of 1984 decided on July 9, 1984 by S.K. Desai and Kurdukar,
JJ. (Unrep.).
(20) Yeshwant
Maharu Pawar v. State of Maharashtra (1988)
W.P. No. 4681 of 1987 with W.P. No. 703 of 1988 decided on February
15, 1988 by Sawant and Kolse-Patil, JJ. (Unrep.).
7.
With the assistance of the learned Counsel appearing for both sides
we have gone through the entire material placed before us. It is not
disputed that initially 'Sindh' was part of Bombay Presidency. In the
census report of India (for Bombay Presidency) 1911, in column
relating to Caste or Tribe 'Bairagi' is included, and it is clarified
that it is found in Karachi, Hyderabad, Shikarpur. In the column
dealing with 'principal occupations' it is mentioned that they are
devotees and religious beggars. In column synonyms 'Gosain' is
referred to. In census report of 1921 for Bombay Presidency, Bawa
Caste is included in the list of Backward Classes. In Appendix F to
the census report of 1931 for Bombay Presidency, it is specifically
stated that Bawa, A tit, Bairagi, Gosavi, or Gussain and Sadhu castes
cover the whole presidency. Their traditional or habitual occupation
was beggars or devotees. It was also clarified in the Remarks Column
that the terms enumerated are not really synonymous but are mostly
occupational character. It is no doubt true that by a Government
Resolution dated May 29, 1933 it was made clear that the orders
passed under the said resolution, do not apply to Sindh. This was
obvious since Sindh was excluded from the purview of the Starte
Committee. By Government of India Act, 1935, Sindh was made a
separate province and, therefore, separate notifications were issued
for the State of Bombay and State of Sindh. By a resolution dated
September 7, 1942 issued by the Government of Sindh 'Bawa' was
included in the list of Other Backward Classes. In the list of Other
Backward Communities 'Bawa' was included by the then Government of
Bombay, vide resolution dated April 23, 1942. On partition of India,
refugees from Sindh migrated and settled in the various parts of the
country, including State of Bombay. Vide Government of Bombay
resolution dated November 1, 1950 'Bawa' was included in Other
Backward Communities. Then by a Government resolution dated November
21, 1961, issued by the Government of Maharashtra, a list of Nomadic
Tribes was notified. As per schedule II to this resolution, which
deals with the Nomadic Tribes in Maharashtra, the community 'Bawa' is
included with its synonym 'Bairagi'. In the accompaniment to the
Government circular, Education and Social Welfare Department dated
October 1, 1962, also the said entry is continued. The entry
thereafter came to be amended from time to time and the entry as
corrected vide Government resolution dated December 9, 1977 read with
corrigendum dated April 10, 1978, reads as under :
Synonyms
Community.
(1) Bawa, (2) Bairagi, (3) Bharati, (4) Girigosavi, (5) Bharati
Gosavi,
"Gosavi"
(6) Saraswati Parbat, (7) Sagar, (8) Ban or Van, (9) Teerth Ashram,
(10)
Aranya Gharbhari, (11) Sanyasi, (12) Nathpanthi Gosavi.
8.
Thus as the entry stands today main community is 'Gosavi' and others
are synonyms. If all these Government Resolutions are read together
with the historical background, it is clear that Sindh being a part
of Bombay Presidency. Bawa Caste also came to be included in the
resolutions issued by the then Government of Bombay.
9.
After the Government of India Act, 1935, separate lists were prepared
for Bombay Presidency and for the State of Sindh and in both these
lists Bawa Caste is included. It is no doubt true that in the lists
prepared vide Government Resolution dated November 1, 1950 relating
to Other Backward Communities at item No. 54 Jagiasi, 55 Jajuk, 73
Khati, 83 Kori, 86 Kucchria and 138 Suthria, a specific expression
i.e. 'from Sindh' is used. This position continued in the modified
list of 1956 and 1961 also. It is pertinent to note that Bawa was
included in the list of Nomadic tribes for Maharashtra as well as
Other Backward Classes qua Old Bombay territory. On the basis of this
it was contended by the learned Advocate General that whenever a
particular caste from Sindh was sought to be included in the list of
backward class, a specific, mention in that behalf is made in the
entry itself. In the entry relating to Bawa Caste or tribe such a
mention is not made, which clearly indicates that Bawas from Sindh
are not included in the said entry.
10.
We find it difficult to accept this contention. Once it is held that
historically Sindh was a part and parcel of the Bombay Presidency and
even from the census reports of the years 1911, 1921 and 1931 it is
clear that this caste covered the whole of the presidency, then only
because qua certain caste a specific mention is made, an inference
cannot be drawn that qua others the persons from Sindh are excluded
by necessary implication. On the other hand, it appears that whenever
it was intended that a particular entry should be restricted to a
particular area, a specific reference is made in that behalf.
Whenever, it was intended that the entry should cover the whole area,
the restrictive expression is not used. Therefore, a person belonging
to Bawa Community or tribe from Sindh which was in existence in
Bombay presidency will be entitled to the benefits meant for Nomadic
Tribes, if he satisfies other conditions, including that of mutual
affinity.
11.
It appears that after the decision of this Court in Vijay Daulatani's
case, on April 1, 1987, the Government of Maharashtra issued a
notification stating that except for the entry Nos. 49, 50, 65, 81
and 146 in the list, from other entries of the list (which includes
the list relating to Nomadic Tribes) Sindht Community stands
excluded. This Government Resolution itself is challenged before us
as being ultra vires and illegal. If the Government resolution dated
April 1, 1987 is read as a whole then it is obvious that it came to
be issued to set at nought or to get over the decision of this Court
in Vijay Daulatani's case. It is well settled that the State while
purporting to clarify the position cannot enter upon judicial power
and set aside the binding judgment of this Court by issuing such an
executive fiat. The executive cannot by mere declaration directly or
indirectly overrule or reverse a judicial decision. This position is
not disputed by the learned Advocate General. However, it was
contended by him that this was not a case of directly or indirectly
encroaching upon the judicial power of the court or of setting aside
the binding judgment of this Court in Vijay Daulatani's case, as
Bawas from Sindh were never included in the list. According to him
the said resolution is merely explanatory or declaratory. Since we
have already held that Bawas from Sindh were included within the
purview of the Government Resolution of November 21, 1961, it will
have to be held that the subsequent Government resolution dated April
1, 1987. to the extent it seeks to set at nought or overrule the
binding judgment of this Court in Vijay Daulatani's case is obviously
illegal and ultra vires, being beyond the scope of Executive power of
the State Government. In the view which we have taken the questions
(a) and (6) are answered in the affirmative.
12.
So far as the question relating to the nature of evidence to be
adduced before the Scrutiny Committee, for establishing the fact that
a particular person belongs to the Nomadic Tribe, is concerned, from
the various decisions referred to above, it is clear that in none of
these decisions any general principle or rule has been laid down. All
these cases have been decided by the various Division Benches having
regard to the facts and circumstances of each case. Variety of
circumstances and peculier features of each case cannot be identical
with those in another. There are no legal litmus tests to determine
the question. Therefore, the judgment of a court as to why certain
claims are accepted or rejected can hardly serve as binding decision.
For this reason we are not referring to the various decisions cited
at the Bar. It is equally true that so far, no satisfactory criteria
has been laid down to determine the question and the courts have been
following case to case approach, resulting in no satisfactory
solution. However, in our view, it is not possible to lay down any
general criteria which will apply to all cases since no singular test
could be laid down. As observed by the Supreme Court in K.C.
Vasantkumar v. State of Karna-taka and particularly in para 77 (at p.
1528):--
Poverty,
Caste, Occupation and Habitation are the principal factors which
contribute to brand a class as socially backward. The customs which
they honour and observe, the rituals which they fear and practice,
the habits to which they adapt and conform, the festivals which they
enjoy and celebrate and even the Gods that they revere and worship
are enlightening elements in recognising their social gradation and
backwardness.
13.
Therefore, it cannot be said that the questionaire prepared by the
Scrutiny Committee is based on irrelevant or extraneous
considerations. The questions relating to origin, old traditions,
customs, festivals, god and godesses, language, mother tongue, racial
features, traits and characteristics of community, surnames,
occupation, names and surnames of near relatives, treatment meted out
by the tribal community and others are all relevant for identifying
the person and his caste. Similarly duly verified and scrutinised
caste certificates of close relatives or validly accepted caste
claims of blood relations, entries in public records or the fact that
the concessions meant for the tribe were either availed of or not,
are relevant though none of them by themselves may be decisive. As
rightly contended by the learned Advocate General, occupational
traits of family both present and past, treatment meted out by others
and the evidence relating to migration etc. are also relevant for
determining the question as to whether a particular person belongs to
Nomadic Tribe referred to in the schedule. However, weightage to be
attached to any one of these factors must depend upon the facts and
circumstances of each case, which can only be evolved by thoughtful
penetrating investigation and analysis. It cannot be determined by
means of a mathematical formula but must depend upon the totality of
the circumstances brought on record. For deciding the said question
reports of the various Commissions and the Research Papers of the
experts are also relevent. It is true that the younger generation may
not be able to answer all these questions; but in that case elders
from the family or community, could be examined. In this context a
reference could usefully be made to the latest decision of the
Supreme Court in State
of Andhra Pradesh v. Nagam Chandrasekhara Lingam .
14.
Any contrary observations in the earlier Division Bench decisions
obviously do not lay down the correct law. Hence ultimately; the
concerned authorities will have to decide the matter on the basis of
the evidence adduced before them in each case. Therefore Question No.
(c) is answered accordingly.
15.
So far as the question as to the mutual affinity among tribes
included in an entry is concerned, in our view the law laid down by
the Supreme Court in Dadaji v. Sukhdeo Babu will apply to the present
schedule also. If all the Government Resolutions are read together,
it is clear that certain communities have been grouped together and
therefore, it is reasonable to hold that the communities named
against a specific entry are those which have mutual affinity amongst
them. Hence Bow a community included in the entry can only be that
which has affinity with Gosavi. Other Castes or Communities which
also bear the same name but do not have such affinity cannot be
deemed to fall within the scope of the said entry.
16.
It is no doubt true that it was contended by Shri Gursahani that
since in the schedule the main community and its synonyms are
included, which has been done on the basis of the mutual affinity
itself, it is not necessary to independently establish such an
affinity. We find it difficult to accept this contention. It appears
that the Government of Maharashtra has been extending the Welfare
scheme to four depressed or backward classes i.e. Scheduled Caste,
Scheduled Tribe, Vimukta Jati -- Nomadic Tribes, and Other Backward
Classes. It appears to be the case of the State Government that
benefits under the resolution are made available to Vimukta Jati
and/or Nomadic Tribes which mainly include all castes covered by the
Old Criminal Tribes Act, 1924, or Tribes which are in fact Nomadic.
It is also experienced by the Government that attempts are being made
by persons not belonging to any of these communities to rob the
benefits meant for the genuine persons. In Maharashtra Adivasi Thakur
Jamat Seva Mandal's case (supra) a note was taken by this Court of
the fact that there is also a caste known by name 'Thakur' which is
the amalgamation of certain sub-castes and the people belonging to
the said caste were taking advantage of the benefits meant for the
tribes known as Thakur etc. It appears that in one of the cases
before us i.e. Miss Ashlesha A. Sankhe's case on the basis of some
similarity in the nomenclature of caste Vanjari and Tribe Banjara
some debate has been raised. Similar is the case with Rajput,
Pardeshi, joshi, Koli and Kunbi etc. Therefore, it is absolutely
necessary to find out in each case as to whether a claimant belongs
to a tribe notified or a caste carrying similar name. By creating
some confusion or raising a cloud nobody should be permitted to rob
the benefits meant for the genuine tribals. It is experienced that
the benefits are snatched away by vocal classes by creating confusion
or by taking advantage of similarity in the name, thereby keeping the
weaker among the weak always weak. Therefore, in our view a thorough
enquiry as to the mutual affinity amongst the main tribe and the
tribes referred to as synonyms or sub-tribes is absolutely necessary.
Though the list of Nomadic Tribes is referrable to Article 15(4) of
the Constitution, from the various Government Resolutions, it is
clear that the principle followed for preparing the list is akin to
the one followed for preparing the list under Article 342 of the
Constitution. It is obvious that these communities have been grouped
together and therefore it is reasonable to hold that the communities
mentioned in the entry are those which have mutual affinity amongst
them. Such a mutual affinity test will have to be satisfied before a
person belonging to a particular caste or a tribe can claim the
benefit of the Government Resolution. The list is meant for the State
of Maharashtra and it will have to be established that the claimant
belongs to Bawa tribe existing in Erstwhile Bombay Presidency, which
has affinity with Gosavi, the main tribe. Therefore, we answer the
question No. (d) in the affirmative.
17.
So far as the merits of the case are concerned it is obvious that in
view of our aforesaid findings the matter will have to be scrutinised
over again by the authorities below. Hence the orders passed by the
Scrutiny Committee as well as the Additional Commissioner, are set
aside and the matter is remitted back to the Caste Scrutiny Committee
for deciding it afresh in accordance with law, obviously after giving
a reasonable opportunity of being heard to the petitioner. Hence Rule
is made partly absolute with no order as to costs.
18.
Before parting with this judgment we would like to draw the attention
of the Government towards the judgment of the Supreme Court in K.C.
Vasant Kumar v. State of Maharashtra(supra).
To say the least the ultimate goal is of assimilation of these tribes
with the main society and to bring them in the main stream. The
social and Constitutional policy is to integrate tribals with larger
society and not to preserve them as human specimen. Therefore, it is
now high time that a fresh survey or scrutiny in this behalf is
undertaken. We hope that the Government will take necessary steps for
revision of the lists or schedules, in tune with the observations of
the Supreme Court in the aforesaid decision. Government should also
take such steps as are necessary to ensure that the persons not
belonging to tribes will not be able to rob the benefits, thereby
depriving the genuine tribals of their rights.
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