1 wp2642.92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2642 OF 1992 1. Dhana Mohan Talele, 2. Smt. Radhabai w/o Dhana Narkhede, 3. Pandurang s/o Ramu Waghudade, 4. Nimba Shrawan Ingale, (Since deceased through his legal heirs : Chindhu Nimba Ingale), All Residing at and Post Nhavi, Taluka Yawal, Dist. Jalgaon. ...PETITIONERS VERSUS 1. Nabab Saraj Tadvi, 2. Sitru Bahadur Tadvi-since deceased through his legal heirs : a) Navsabai Sitru Tadvi, Residing at and Post Humbardi, Taluka Yawal, Dist. Jalgaon. b) Deobai w/o Usman Tadvi, Residing at and Post Borkhede, Taluka Yawal, Dist. Jalgaon. c) Nurjabai w/o Nurkha Tadvi, since deceased no heirs. 3. Sherkha Dalpat Tadvi (deceased), 4. Vajirkha Rahimkha Tadvi, (Since deceased through his 2 wp2642.92 legal heirs : i) Najir Vajir Tadvi, Residing at Marul, Tal. Yawal, Dist.Jalgaon. ii) Bismilla Vajir Tadvi, Residing at Pal, Tal. Raver, District Jalgaon. 5. Supadu Sahadur Tadvi, 6. Dagadu Shahadu Tadvi, 7. Ughadu Sardar Tadvi (deceased). 8. Alimat Imam Tadvi (Since deceased) through his legal heirs : Bhikabai Alimat Tadvi, Nos.1,5,6 and 8 all residing at and post Humbardi, Taluka Yawal, District Jalgaon. 9. Fauskha Mithu Tadvi (since deceased) through his legal heirs : a) Chandkha Maru Tadvi (deceased), b) Kulsam w/o Ismail (deceased), c) Mayaram w/o Nashirkha (deceased). 10. The State of Maharashtra. 11. The Scrutiny Committee, Director of Tribal Research and Training Institute, Pune. 12. Tahasildar, Yawal, District Jalgaon. 13. Circle Officer, Faijpur, Tal. Yawal, Dist. Jalgaon. ...RESPONDENTS 3 wp2642.92 ... Mr. V.T. Choudhari, Advocate for petitioner. Mr. D.R. Kale, A.G.P. for respondents. ... CORAM: S.S. SHINDE, J. RESERVED ON : 09-03-2011 PRONOUNCED ON: 11-03-2011 JUDGMENT : This Writ Petition takes exception to the judgment and order dated 05-06-1992 passed by the Maharashtra Revenue Tribunal in Appeal No. REV.TRB.82 of 1985 at Exhibit-B to the petition and also to the judgment and order dated 13-04-1978 passed by the Assistant Collector, Jalgaon, Division Jalgaon, in Adivasi Case No. 179 of 1975. 2. Learned Counsel appearing for the petitioners submitted that, the Member of the Maharashtra Revenue Tribunal has failed to consider the ratio laid down by the Hon'ble High Court, in many case, that if there is dispute 4 wp2642.92 about the status of the persons, who are claiming themselves to be tribals then in that case, the issue whether the persons claiming themselves to be tribals or not, has to be decided by the scrutiny authority. Learned Counsel further submitted that the learned Member of the Maharashtra Revenue Tribunal failed to see that, the respondents belong to Muslim Pathan Tadvi communities, which is not recognised as a Tribal community under Section 38 of the Maharashtra Land Revenue Code. Counsel further submitted that the authorities below, failed to see that, the respondents have embraced Islam Religion and that being position, the advantage under this Act are not available to them, as due to this conversion to Muslim Religion. They can not claim themselves as Tribals, and the said position is very clear by a Government Resolution Adivasi Vikas Vibhag at Survey No. 5(13). Learned Counsel also submitted that the Government Resolution No. CBC-1680/43669/D-V, 5 wp2642.92 dated 28-10-1980 then Circular No. Vati/0/482/KA-4, dated 08-02-1988 and order No.CBC-1684/309/No.11, dated 24th April, 1985 are totally ignored, while issuing certificate and hence, the caste certificates are illegal and bad in law and should be ignored completely. Learned Counsel also submitted that the respondents have not given undertaking as required under Section 3(3), that they will cultivate the suit land personally and that they will pay the amount, as will be decided under Section 3, sub section (3), under these circumstances the suit land cannot be restored to the respondents. 3. On the other hand, learned A.G.P. for the respondents submitted that possible view has been taken by the Maharashtra Revenue Tribunal and therefore, this Court may not interfere in the impugned judgment and order. 4. Upon hearing Counsel for the petitioner, none of the argument advanced by the Counsel for 6 wp2642.92 the petitioner is convincing so as to interfere in the impugned judgment and order. However, the contention of the petitioner that caste/tribe claim of respondent Nos.1 to 9 should have been referred to the Caste Scrutiny Committee for verification/scrutiny, is required to be accepted in view of the various pronouncements of this Court. The petitioners have specifically stated that respondent Nos.1 to 9 are not Tadvis but they are Muslims. They have further stated that caste certificates produced by the respondents are false. It is further contended that their caste/tribe certificates should have been sent to the appropriate and competent authority i.e. Caste Scrutiny Committee for verification/validation and thereafter only Maharashtra Revenue Tribunal or Tahasildar should have proceeded further to decide the controversy before them. Therefore, the argument of the learned Counsel for the petitioners that the caste/tribe claim of respondent Nos. 1 to 9 should have been referred to the Caste Scrutiny/Verification Committee, 7 wp2642.92 should have been accepted by the Tahsildar and Maharashtra Revenue Tribunal and Tahasildar should have referred caste/tribe claim of the claimants/respondent Nos.1 to 9 to the Caste Scrutiny Committee. This Court in the cases of Raju s/o Pundlikrao Burde vs. Esrtablishment Officer (III- B) MSEB and another, reported in 2003(4) Mh.L.J. 780, Ulhas Bimba Choudhari and Anr, vs. Burhan Samsa Tadvi (deceased heirs) Abbaskhan Burhan Tadvi and others, reported in 2007 (1) Mh.L.J. 165 and Writ Petition No.1636 of 1994 on 17th June, 2010 (Aurangabad Bench), has taken a view that in such cases, like the case in hand, the authority i.e. Tahasildar should refer the caste claim of the claimants/Adivashi to the Caste Scrutiny Committee for verification/scrutiny. Therefore, in my opinion, the caste claim of the respondent Nos.1 to 9 should have been referred to the Scrutiny Committee by the Tahasildar. This Court, 8 wp2642.92 while considering the various judgments on the subject, has taken a view in Writ Petition No. 1634 of 1994 that the findings recorded by the authority i.e. Additional Commissioner, that the respondents therein are belonging to Tadvi S.T. category cannot be accepted since the said finding was without jurisdiction. Therefore, this Court in that matter has taken view to refer matter to the Scrutiny Committee for verification and scrutiny of tribe claim of the respondent therein. Therefore, in my opinion, the facts of this case are similar to the facts of this case referred above and which are decided by this Court holding that Tahasildar should have referred caste / tribe claim of the claimants to the Caste Scrutiny Committee. In the result, the Tahasildar, Yawal, District Jalgaon is directed to refer the caste/tribe claim of respondent Nos. 1 to 9 to the Caste Scrutiny Committee within one month from the date of receipt of copy of this order. 9 wp2642.92 Thereafter, the Caste Scrutiny Committee to take final decision within six months from the date of receipt of the caste / tribe claim. If the decision of the Caste Scrutiny Committee becomes final in favour of the contesting respondents or petitioners herein, the concerned authority shall ensure that the possession of land should be with the appropriate party under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. 5. With the above observations, Writ Petition stands disposed of. Rule made absolute on the above terms. [ S.S. SHINDE, J.] sut/Mar11/wp2642.92