1 WRIT PETITION NO.158 OF 2009 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 158 OF 2009 1 Roshan Uttam Rai ] 24, Lam Road, Deolali Camp ] Nasik 422 401 ] ] 2 Mahesh C Kadakia, ] ] 3 Amar M Kadakia ] ] 4 Mrs. Vaishali A Kadakia ] ] Petitioners Nos.2 to 4 residing at ] Shivani Apartment, Parijat Nagar, ] Nasik 422005 ]... Petitioners. Versus 1 Somnath Shivnath Badade ] residing at Koliwada, Govardhan ] Near Govardan GPO, ] Gangapur Dist. Nasik ] ] 2 Schedule Tribe Cast Scrutiny ] Committee, Nasik, Dist. Nasik ] ] 3 The State of Maharashtra, ] Secretary, Tribal Welfare, ] Mantralaya, Mumbai ]... Respondents. Mr. V A Thorat, Senior Advocate i/by Mr. V A Sugdare for the Petitioners. Mr. S K Shinde i/by Mr. Sagar Kasar for the Respondent No.1. Mr. V S Gokhale, AGP for the Respondents/State. CORAM : P B MAJMUDAR & R M SAVANT, JJ. DATE : 22nd July 2010 ORAL JUDGMENT [PER R M SAVANT, J] 1 The above Petition takes exception to the order 4th August 2008 passed by the Respondent No.2-Caste Scrutiny Committee, Nasik by 2 WRIT PETITION NO.158 OF 2009 which order the caste claim of the Respondent No.1 as belonging to Mahadev Koli Scheduled Tribe has been validated. The said order has been challenged inter alia on various grounds as mentioned in the above Petition but principally on the ground that certain documents which were pre-constitutional relating back to the year 1920 and there abouts have not been considered in the proper perspective as well as on the ground that the affinity test has not been conducted in the manner as enunciated by the Full Bench of this Court in the judgment reported in 2009(3) Mh.L.J. 995 in the matter of Shilpa Vishnu Thakur v/s. State of Maharashtra and ors. Para-40 thereof is relevant and the same is reproduced herein under :- “THE CONCLUSIONS : 40. Our answers to the questions referred are as follows: (i) The burden of establishing that the applicant belongs to a tribe notified as a Scheduled Tribe is on the applicant under Section 8 of the State Act. The Competent Authority which issues the caste certificate, the Appellate Authority and the Scrutiny Committee have powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908, particularly in summoning and enforcing the attendance of persons; requiring the discovery and production of documents; receiving evidence on affidavit, requisitioning any public record and issuing commissions for the examination of witnesses or for the production of documents under Section 9 of the Act. The Competent Authority before whom an application for a caste certificate is filed has to be satisfied about the genuineness of the claim under Section 4(1). The Caste Scrutiny Committee is required by Section 6 to verify each caste certificate before it issues a certificate of validity. Under the Rules, an application for grant of a certificate has to be accompanied by a full disclosure on affidavit containing information stipulated in subrule (2) of Rule 3 and documents referred to in subrule (3). Under subrule (9) of Rule 4, the Competent Authority, if it is not satisfied with the claim of the applicant on a scrutiny of the evidence produced, is empowered to order a further inquiry as it deems fit. After considering the evidence produced by the 3 WRIT PETITION NO.158 OF 2009 applicant or any other person on his behalf and the statement of the applicant and after taking into account the material gathered by the Competent Authority, the Competent Authority has to issue a certificate if it is satisfied about the genuineness of the claim. In an appeal against the decision of the Competent Authority, the Appellate Authority is empowered under Rule 8 to receive or call for further documents before passing such further orders as it deems fit. Once the caste certificate is issued, an applicant has to submit documents for verification by the Scrutiny Committee under Rule 12(2) and an affidavit in Form-F containing full disclosure of the information relevant to the determination of the tribal status. Under Rule 12(2), the Scrutiny Committee, if it is not satisfied with the documentary evidence produced, has to forward the application to the Vigilance Cell for a school, home and other inquiry. Under subrule (4) the Vigilance Officer has to personally verify and collect all the facts about the social status claimed by the applicant. If the Scrutiny Committee is not satisfied about the claim of the applicant on the basis of the report of the Vigilance Cell and other documents available, a notice to show cause is issued to the candidate for a personal hearing. The Scrutiny Committee must be satisfied about the genuineness of the claim and the correctness of the Scheduled Tribe certificate. If it is not satisfied, it has to pass an order of cancellation and of the confiscation of the certificate. The Competent Authority, the Appellate Authority and the Scrutiny Committee exercise quasi-judicial powers in arriving at a determination with reference to a claim to belong to a Scheduled Tribe. These Authorities must have regard to the entire body of evidence, including the documentary and oral evidence. The affinity test is an integral part of the determination of the correctness of the claim. As quasi- judicial authorities, each of these Authorities must apply settled principles of law in the evaluation of evidence. A claim can be allowed only where the Authority is satisfied about the genuineness and the correctness of the claim on the basis of the entire evidence on the record. (ii)(a) The mere fact that the documents produced by a person reflect his surname as being synonymous with the name of a designated tribe, is not sufficient to establish that the applicant belongs to a Scheduled Tribe. Before a person can be regarded as belonging to a Scheduled Tribe, that person must demonstrably be a member of the tribe. Allowing claims merely on the basis of an overlap between the surname of the person as reflected in the documents produced and the name of a designated tribe may result in a grave miscarriage of justice and lead to the grant of benefits to persons who are not genuinely members of a designated tribe. In order to determine whether a person genuinely belongs to a 4 WRIT PETITION NO.158 OF 2009 designated Scheduled Tribe, the Scrutiny Committee must have regard to the entire body of evidence including on the question as to whether the applicant has satisfied the affinity test. (b) Where a person is not in possession of documentary evidence to meet the requirement of belonging to a particular tribe, he or she must make a disclosure to that effect in the application form to be submitted to the Competent Authority in the first instance and before the Scrutiny Committee subsequently. The absence of documentary evidence does not ipso facto result in the invalidation of the caste claim. The claim will have to be scrutinized by the authority concerned on the basis of all the material available, including the affinity established by the applicant to a tribe. The Competent Authority or, as the case may be, Scrutiny Committee shall apply established norms in the evaluation of evidence. The applicant has to discharge the burden of establishing his or her caste claim under Section 8 of the Act. Whether the burden has been discharged is for the Competent Authority/Scrutiny Committee to decide on the facts of each case. The quasi-judicial function must focus on all relevant aspects such as whether the absence of documentary evidence is due to poverty, illiteracy and isolation or whether it is a plea in the nature of suppression to prevent the real status of the applicant from emerging before the authority. (c) Where a person has some documents in his or her favour and/or partially satisfies the crucial affinity test, the question as to whether certification should be granted would depend upon the overall view which is formed by the Competent Authority in the first instance and by the Scrutiny Committee subsequently on the preponderating weight of the evidence. The nature of the documents that have been produced, the genuineness and authenticity of the documentary evidence and the weight to be ascribed to the documents produced, are matters which must be decided by the authority concerned. If a candidate has satisfied the crucial affinity test in part, it is for the Competent Authority and the Scrutiny Committee to determine in each case as to whether, on considering the entire material on the record, the caste claim is correct and genuine. An answer in the abstract cannot be furnished. It is for the quasi-judicial authority in each case to arrive at its finding on the basis of the material on the record.” (Emphasis supplied) 2 We have with the assistance of the learned counsel for the Petitioner and the learned counsel for the Respondent No.1 perused the 5 WRIT PETITION NO.158 OF 2009 impugned order. We are satisfied that the matter requires to be remanded back for a de novo consideration in view of the fact that certain vital material produced by the Petitioner has not been considered in its proper perspective as well as the affinity test has not been conducted in the manner as contemplated in the judgment (supra). Since both the learned counsel for the Petitioner and the Respondent No.1 on instructions of their respective clients are agreeable for de novo consideration of the matter on a remand made to Caste Scrutiny Committee, we are not required to give detailed reasons for remanding the matter back to the Caste Scrutiny Committee. 3 We, therefore, quash and set aside the impugned order dated 4th August 2008 and remand the matter back to the Caste Scrutiny Committee for a de novo consideration in terms of the directions as contained herein below :- (i) The Caste Scrutiny Committee to give proper opportunity to the Petitioner as well as to the Respondent No.1 to substantiate their respective cases. (ii) The Petitioner as well as the Respondent No.1 would be at liberty to produce such documents as they deem fit in support of their respective cases. (iii) The Caste Scrutiny Committee to consider and 6 WRIT PETITION NO.158 OF 2009 evaluate the documentary evidence on record in the light of the pronouncements of this Court as well as the Apex Court especially the documents of the pre-constitutional period. In case the Caste Scrutiny Committee is of the opinion that a particular document cannot be relied upon or can be relied upon, the reasons for the same should be mentioned by the Caste Scrutiny Committee in its order. (iv) The affinity test to be conducted by the Caste Scrutiny Committee in terms of the judgment of the Full Bench of this Court (supra). (v) In case the Petitioner seeks to rely upon validity certificate granted to any of his relations, the Respondent No.1 would be obliged to substantiate the same by giving a genealogy and documents in support of the relationship. (vi) The Caste Scrutiny Committee whilst considering the validity certificate in respect of a person whom the Respondent No.1 claims to be his relation/ancestor, the Caste Scrutiny Committee to deal with the said relationship specifically whilst recording a finding in respect of that particular document. 4 The opinion expressed by us is only prima facie and it would 7 WRIT PETITION NO.158 OF 2009 be for the Caste Scrutiny Committee to consider the material on record and after conducting affinity test in the manner as mentioned in the judgment (supra), pass appropriate orders in accordance with law. 5 On such remand, the Caste Scrutiny Committee to dispose of the matter within a period of four months of the parties appearing before it. The parties to appear before the Caste Scrutiny Committee on 9th August 2010. 6 It is clarified that no fresh vigilance cell inquiry will be conducted and the vigilance cell report already available in respect of the above case, should be considered by the Caste Scrutiny Committee. 7 The above Petition is disposed of by making the Rule absolute to the aforesaid extent. [R.M.SAVANT, J] [P B.MAJMUDAR, J]