Writ Petition No. 3432 of 1987

18th February, 2002

Petitioner Counsel: Mrs. LATA B. PATNE (Swipuje) Mr. M.V.SALI

Cases Cited:
Kumari Madhuri Patil Vs. Addl. Commissioner, Tribal Development (1994) 6 SCC 241 [Para 6]

JUDGMENT

JUDGMENT:- The Respondents are absent. None present for them though served. The matter pertains to the year 1987. It has been mentioned in the Board as the matter listed for final hearing. Therefore, this Court is hearing this writ petition and deciding it treating the Respondents ex-parte.

2. The petitioner is hereby assailing of the correctness, propriety and legality of the judgment and order passed by the Additional Commissioner, Nashik Division, Nashik Road in Caste Appeal No.1/9/1984 dated 31.3.1987 whereby the complaint made by the Petitioner challenging the caste certificate which was issued in favour of Respondent Nos. 1 and 2 by Tahasildar, Baglan dated 18.12.1979 declaring that both the Respondents are belonging to Scheduled Tribe known as "Mahadev Koli", was dismissed. For unfolding the controversy, some facts need to be stated.

3. A complaint was submitted before the Revenue Commissioner, Nasik at Nasik Road by the present Petitioner which was treated by the Commissioner, Nasik Division, Nasik Road as appeal in terms of provisions of clause 10 of the Appendix 'A' in context with Government Resolution, Social Welfare, Cultural Affair, Sports & Tourism Department No. CBC-1680/43669/V-D-V dated 29.10.1980 (hereinafter referred to as concerned G.R. for convenience). A complaint was made that Respondent Nos. 1 and 2 applied to Tahasildar - Executive Magistrate Baglan for getting a caste certificate certifying that they belonged to caste "Mahadev Koli" which has been notified as Scheduled Tribe residing in Maharashtra. Caste certificates were issued in their favour on 18.12.1979 by the said Tahasildar - Executive Magistrate Baglan. On the basis of these certificates which were issued in their favour,they submitted an application in the Court of Tahasildar, Dindori and claimed restoration of lands comprised in Gat No.239 of village Ambewani, Taluka Dindori under the provisions of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 (hereinafter referred to as the Act for convenience). In the said proceedings, the present Petitioner contended that those two persons, present Respondent Nos. 1 and2, were not belonging to tribe "Mahadev Koli". Tahasildar, Dindori by his judgment and order dated 23.7.1984 directed that the land in question should be restored to the present respondents in view of provisions of the Act.

4. In the said judgment, Commissioner Nasik Division Nasik Road, formed the opinion that the only point which was to be decided was whether the opponents in the said matter and respondents nos. 1 and 2 in the present petition were belonging to "Mahadev Koli" community which has been notified to be scheduled tribe. The parties were heard through their lawyers on 17.10.1984. Advocate appearing for the present petitioner produced 18 school leaving certificates issued in favour of the relatives of respondents nos. 1 and 2 which showed that those relatives were not shown to be belonging to "Mahadev Koli" tribe. They were shown to have been belonging to "Koli" or Junnaie Koli" or "Jundare Koli". Respondent Nos. 1 and 2's counsel placed reliance on the school leaving certificates issued in respect of the present respondents as well as the caste certificate issued by Tahasildar - Executive Magistrate, Baglan. The learned Commissioner held that Birth Register form No.XIV pertaining to the year 1928 disclosed that the Opponent No. 1 in the said proceedings i.e. Kashinath Nathu Ghode was born on 21.9.1928 and he belonged to "Koli" community. He placed reliance on the affidavit filed by the present petitioner in which he stated on oath that Eknath Dada Gode, etc.18 belonged to "Koli" community. A school leaving certificate was pointed out to the learned Commissioner dated 17-12-1979 which was issued by Prathamik Vidyamandir Kolkhede in favour of Chiman Kashiram Gode, the son of the Opponent No.1 in which the caste of Chiman Kashiram Gode was shown to be "Hindu Mahadev Koli". The learned Commissioner discarded this evidence by holding that the said entry in school register of Prathamik Vidyamandir Kolkhede was effected after the Act came in force. Therefore it did not have the credibility sufficient enough to dislodge the complaint made by the present petitioners. The learned Commissioner placed reliance on the birth register which was showing that the respondent no.1 was born in the year 1928 and was belonging to caste "Koli". Thus, he held that the complaint was true and was fit to be acted on. Therefore, he directed that the caste certificate issued by the Tahasildar -Executive Magistrate, Baglan in favour of respondent nos. 1 and 2 declaring that they were belonging to cast "Mahadev Koli" was treated to have been cancelled.

5. The said judgment and order was challenged by the respondent nos. 1 and 2 by filing Writ Petition bearing No.4533 of 1985. While deciding the said writ petition, the Division Court of this Court passed a judgment and order on 28.1.1986 by which it was held that the Divisional Commissioner Nasik without giving an opportunity to present Respondent Nos.1 and 2 to present those 18 certificates passed the said judgment and order and while doing so infringed the rule of natural justice. By the said judgment and order, the rule issued was made absolute and the matter was remanded back to the Commissioner for fresh enquiry and decision. In view of the order, the Additional Commissioner, Revenue, Nasik Road, held the enquiry and passed the judgment and order which has been assailed by the present petitioner by this writ petition.

6. Mrs. Patne submitted that the Additional Commissioner did not decide the said matter properly and ignored the necessary facets which were involved and declared that the said caste certificates which were issued in favour of respondent nos. 1 and 2 by Tahasildar - Executive Magistrate, Beglan, were correct and legal which justified the said order of restoration of the land in question. She submitted that the said judgment and order happens to be incorrect and illegal and needs to be set aside by issuing the writ of certiorari. While justifying her submissions she placed reliance on the judgment of the Supreme Court in the matter of Kumari Madhuri Patil and Another vs. Addl. Commissioner. Tribal Development and Others. (1994) 6 Supreme Court Cases 241, wherein the Supreme Court has held that when the question in respect of caste or tribe - status of a person is to be decided, the evidence should include the entries in school register showing his or her father's caste, particularly of pre-Constitution period, because it-is of great evidentiary value. The Supreme Court also held that anthropological and ethnological perspective is relevant for determining caste of the person. The Supreme Court laid down the procedure for issuance of social status certificate and indicated the need of early scrutiny and approval thereof. It pointed out in the said matter that the caste certificate which was issued by the Judicial Magistrate of Greater Bombay which was on the basis of school leaving certificate, ration card, etc., was not valid because the said Magistrate had no jurisdiction to issue such certificate.

7. In the said matter, the Supreme Court held that despite the cultural advancement, the genetic traits pass on from generation to generation and no one could escape or forget or get them over. The tribal customs are peculiar to each tribe or tribal communities and are still being maintained and preserved. Their cultural advancement to some extent may have modernised and progressed but they would not be oblivious to or ignorant of their customary and cultural past to establish their affinity to the membership of a particular tribe. The Mahadeo Koli, a Scheduled Tribe declared in the Presidential Notification 1950, itself is a tribe and is not a sub-caste. It is a hill tribe, may be like 'Koya' in Andhra Pradesh. Kolis, a backward class,are fishermen by caste and profession and reside mostly in Maharashtra coastal area. Kolis have different sub-castes. Mahadeo Kolis reside in hill regions; agriculture, agricultural labour and gathering of minor forest produce and sale thereof is their avocation. Therefore, the cancellation of the social certificate issued by the Executive Magistrates concerned by the Scrutiny Committee was legal. The Supreme Court further held in the said matter that Presidential declaration, subject to amendment by Parliament being conclusive, no addition to it or declaration of castes/tribes or sub/castes/parts of or groups of tribes or tribal communities is permissible. The entries in the school register preceding the Constitution do furnish great probative value to the declaration of the status of a caste. Hierarchical caste stratification of Hindu social order has its reflection in all entries in the public records. The Supreme Court in the same matter further held:

"There is no estoppel as no promise of the social status is made by the State when false plea was put forth for the social status recognised and declared by the Presidential Order under the Constitution as amended by the SC & ST Amendment Act, 1976, which is later found to be false. Therefore, the plea of promissory estoppel or equity have no application. When it is found to be a case of fraud played by the person concerned, no sympathy and equitable considerations can come to his rescue. Nor the plea of estoppel is germane to the beneficial constitutional concessions and opportunities given to the genuine tribes or castes. Courts would be circumspect and wary in considering such cases."

8. Mahadeo Koli was declared to be a Scheduled Tribe by Bombay Province as early as 1933 and the President of India declared in 1950 under Article 342, in consultation with the Government of Bombay (Maharashtra) and as amended from time to time. While giving caste certificate the competent authority has to be circumspect and has to apply its mind by testing the contention made by the person concerned before the caste certificate is given. Number of factors are to be considered in that context. Some of them can be quoted, for example (1) the birth registration certificate, (2) school leaving certificate not of that person only but of his parents, and of his kiths and kins, (3) the documents in respect of the social status of such person in context with the caste contended, (4) the customs and traditions followed in the said community - caste - tribe as well as in the family of the person. The enquiry in this context would allow such competent authority to come to the conclusion whether the person's family follows the customs and traditions of that particular community -caste -tribe.

9. Before giving such caste social status certificate, the competent authority should call the said person, his parents, if alive, his kiths and kins as well as the old persons from his family or the families of his kiths and kins. They should be interrogated in respect of the customs and traditions prevalent in such community, caste or tribe. Interrogation should be also made in respect of the profession or occupation carried by such person and his family and his kiths and kins and their families. By this time, sufficient information is available that tribe "Mahadeo Koli" is generally found in Nasik district,Dhule district, Jalgaon district, Thane district and Pune district. This community is, as the information available shows, generally resides in hilly areas and generally engages in agricultural activities like agricultural cultivation or agriculture labour. Caste "Koli" or "Junnaie Koli" or "Jundare Koli" has to be differentiated from"Mahadeo Koli" in view of Presidential Notification of 1950 which declares that "Mahadeo Koli" is a Scheduled Tribe and not a sub caste. It also indicates that it is a hilly tribe and as it has been pointed out in the judgment of the Supreme Court in the matter of Kumari Madhuri Patil and Another (supra) it may be like "Koya" in Andhra Pradesh. In that judgment "Mahadeo Koli" were differentiated from "Kolis" residing mostly in Maharashtra coastal area. Said Presidential notification has also differentiated it from "Junnaie Koli" or "Jundare Koli".

10. On account of the false certificates claimed and issued, the facilities provided by the Constitution to Scheduled Castes and Scheduled Tribes does not come to them to whom they should go. The false claim of caste -caste certificates derive such down troddens from their legitimate entitlements guaranteed by constitutional notifications and government orders and notifications. It generally happens on account of the slip shot enquiries made, casual enquiries made and on account of omissions of the probes essential for finding the truth. Therefore, this Court has elaborated the point for avoiding such repetitions of the tricks or mistakes in future.

11. The Additional Commissioner, Revenue, Nasik, failed in focussing his attention on important aspects of the matter and landed in error in passing the judgment and order which has been assailed by this writ petition. The Tahasildar - Executive Magistrate, Baglan committed the legal error of issuing the caste certificate to Respondent Nos. 1 and 2 without making due and necessary enquiry. The learned Additional Commissioner, Revenue, Nasik should have cancelled, annulled such caste certificate issued to respondent Nos. 1 and 2. As it has not been done by him, this Court orders it to be cancelled. What is illegal cannot be permitted to survive and has to be quashed and, therefore the said judgment and order passed by Additional Commissioner Revenue Nasik and the caste certificate issued by Tahasildar - Executive Magistrate, Baglan, stands quashed by writ of certiorari issued in favour of the Petitioner. The writ petition stands allowed with costs. Rule stands made absolute.

12. The Additional Commissioner, Revenue, is hereby directed to take necessary steps for the purpose of punishing respondent nos. 1 and 2 as law permits for claiming such false caste certificates in view of the judgment of the Supreme Court in the matter of Kumari Madhuri Patil and Another (supra).

Petition allowed.