FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4386 OF 2012 “Someshwar Waman Thakur Vs. The State of Maharashtra and others” Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 1 Mr. A.H. Koralkar, Advocate for the petitioner, Mr. V.D. Godbharle, AGP for respondent Nos. 1,3 and 4. Mr. S.S. Tope, Advocate for respondent No.2. CORAM :- NARESH H. PATIL & A.B. CHAUDHARI, JJ. DATE OF RESERVING ORDER :- 3rd OCTOBER, 2012. DATE OF PRONOUNCING ORDER :-23rd OCTOBER,2012 ORAL ORDER [PER A.B. CHAUDHARI,J]:- 1] By the present petition, the petitioner has put to challenge the order dated 17th April, 2012, passed by respondent No.2 – Scrutiny Committee, invalidating the caste claim of the petitioner as “Thakur Schedule Tribe”. 2] In support of the writ petition, learned counsel for petitioner submitted that the Committee committed an error in not giving effect to the removal of area restriction in the case of the petitioner. He further argued that the documents at Sr. Nos. 19 and 20, pertained to the grandfather of the petitioner – Dadulal Himta Thakur, in which his caste is recorded at “Thakur” on 6th March, 1932, so also , extract of admission register of the same person. He also argued that the finding recorded by the Committee that mere mention of entry as Thakur is not sufficient, FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4386 OF 2012 “Someshwar Waman Thakur Vs. The State of Maharashtra and others” Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 2 is vague and without any basis. According to the learned counsel, documents at Sr. Nos. 16 and 17 are the validity certificates of close blood relatives which could not have been ignored as these documents have high evidentiary value. The learned counsel relied upon the following decisions. 1] Judgment dated 14th October, 2010 in W.P. No.4533 of 2010 2] Judgment dated 14th October, 2010 in W.P. No. 4526 of 2006 3] Judgment dated 24th January, 2011 in W.P. No. 9026 of 2010 4] “Ashwini Anil Chavan Vs. State of Maharashtra and others” reported in 2006(4) MLJ 415. 5] Judgment dated 5th January, 2012 in W.P. No. 2533 of 2011 2] Per contra, learned counsel for the Committee supported the impugned order passed by the Committee and argued that the decision taken by the Committee is just and proper and the committee has given detailed reasons for arriving at its conclusions. The findings recorded by the Committee cannot be said to be perverse or contrary to record. He tendered the original record of the committee for our perusal He has relied upon the following decisions :- [i] Judgment dated 20th December, 2005 in WP No. 657 of 1997 [ii] Judgment dated 22nd March, 2002 in WP No. 1953of 2007 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4386 OF 2012 “Someshwar Waman Thakur Vs. The State of Maharashtra and others” Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 3 [iii] Judgment dated 19th October, 2012 in W.P. No. 4363 of 2000 iv] “Raju Ramsing Vasave Vs. Mahesh Deorao Bhivapurkar and others” reported in 2009(supp.)Bom.C.R. 342.（SC). CONSIDERATION :- 3] We have gone through the impugned order passed by the Committee. We have heard the learned counsel for the rival parties. We have also gone through the documents and record of the committee. The committee has recorded a finding that the petitioner's father and grandfather originally come from village Amalthe, Taluka Sindkheda, District Dhule and they admittedly do not belong to, or are not the native of one of the Districts, in which Thakur Scheduled Tribes are found. The burden to prove that they are migrants from area of the said District where Thakur Scheduled Tribes are found, was on the petitioner and the petitioner failed to discharge the said burden. On perusal of the record, we find that the above-said finding is correct and there is no evidence placed on record whatsoever by the petitioner to show that the father, grandfather of the petitioners were migrants from any District where Thakur Scheduled Tribes are found. Therefore, merely because Thakur Caste is mentioned in some certificates, namely, certificates at Sr. No.19 and 20, in respect of his grandfather, Dadulal Himta Thakur, a conclusion cannot be drawn that the petitioner belongs to Thakur Scheduled Tribe. We FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4386 OF 2012 “Someshwar Waman Thakur Vs. The State of Maharashtra and others” Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 4 concur with the said finding recorded by the committee. 4] In so far as documents at Sr.Nos. 16 and 17 are concerned, what we find is that the document at Sr.No.16 is not the validity certificate as stated before us. Document at Sr. No.16 is an affidavit sworn by one Narendra Yuvraj Mahale (Thakur), dated 7.7.2010, about the validity certificate and his relationship with the applicant. The document at Sr.No.17, is an order of validity dated 1/11/2001 issued to the said person Narendra Mahale. Perusal of the said document shows that it is a conditional order, without mentioning any reasons for issuing the validity certificate in favour of said Narendra and said conditional order has been issued subject to the decision of the writ petition, remitted to this Court by the Apex Court in Civil Appeal No. 4088 of 1998, in respect of “ State of Maharashtra and others Vs. Sunil Murlidhar Thakur and others”. We quote the relevant portion of the said order, which reads thus :- “However, the Committee has to consider the various orders passed by the Hon'ble High Court in Writ Petition NO. 2746 of 98 “Asmitha Dhage Vs. State of Maharashtra and others, W.P. No. 5454/98, “Suraj Prakash Thakur Vs. State of Maharashtra and others” , W.P. No. 855/98 “Shobha Mahesh Jadhav and in W.P. No. 1961 of 1991 in case of “Pandurang Rangth Chavan. And therefore, the Scrutiny FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4386 OF 2012 “Someshwar Waman Thakur Vs. The State of Maharashtra and others” Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 5 Committee has no alternative but to state that the applicant be treated as belonging to Thakur, Scheduled Tribe. . In the meanwhile the Hon'ble Supreme Court of India has passed order in Civil Appeal No. 4088/98 in respect of State of Maharashtra and others Vs. Sunil Murlidhar Thakur and others and has set aside the order of the High Court and remitted the petition to the High Court for disposal afresh in accordance with law. . In view of the above, the caste certificate of Narendra Yuvraj Mahale as belonging to Thakur, Scheduled Tribe bearing No.240/85 dated 19.6.1985 issued by the Executive Magistrate, Dhule Taluka, Dhule is held valid, but it is made subject to the condition of the decision of Hon'ble High Court in the remitted Civil Appeal No. 4088/98 in respect of Sunil Murlidhar Thakur.” 5] Thus, the certificate of validity in our opinion, is of no consequence in so far as the case of the petitioner is concerned and he was required to prove his claim independently, since the burden of proof was on him. However, the petitioner failed to do so. The decisions cited before us by learned counsel for the FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4386 OF 2012 “Someshwar Waman Thakur Vs. The State of Maharashtra and others” Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 6 petitioner are distinguishable on facts and have no relevance to the present petition which we have decided in the facts of the present case. No other evidence was brought on record by the petitioner to claim to be belonging to Thakur Scheduled Tribe. 6] Now coming to the submissions about removal of area restrictions and about the concentration of Thakur Scheduled Tribe, we, instead of repeating the historical background would quote the following observations made by the Committee in its impugned order :- “The Constitution Scheduled Tribes Order 1950 was first issued on 6.9.1950, subsequently, the Scheduled Castes and Scheduled Tribes Order (Amendment) Act 1956 (Act No. 63 of 1956) was issued on 25.9.1956. Thereafter, in part 7A of the 8th Schedule of the Bombay Reorganization Act 1960 the Scheduled Tries list of Maharashtra was published. In the aforesaid orders of 1956 and 1960 of scheduling the list of Scheduled Tribes in then State of Bombay the Thakur Scheduled Tribe was scheduled mainly in respect of 25 Tahsils of 5 Districts i.e. Ahmednagar, Kulaba (Raigad), Nasik, Poona and Thane. The details of which are as follows :- 1] In the order of 1956 at Sr. No.6 as :- FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4386 OF 2012 “Someshwar Waman Thakur Vs. The State of Maharashtra and others” Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 7 (a) in Ahmednagar District ) Thakur of Akola, Rahuri &Sangamner Talukas ) Thakar (b) In Kolaba district Karjat, Khalapur ) including Pen, Panvel and Sudhagad talukas ) Ka Thakur and Matheran ) Ma Thakar (c) In Nasik District ) Ma Thakur Igatpuri, Nasik and Sinnar Talukas ) Ma thakar (d ) in Poona District Ambegaon, Junnar, Khed & Mawal talukas (e) In Thane District Thane, Kalyan, Murbad, Bivandi, Bassein, Wada Shahapur, Palghar, Jawhar and Mokhada Talukas In the order of 1960 at Sr.No.4 entries were as : ((a) in Ahmednagar District ) Thakur of Akola, Rahuri &Sangamner Talukas ) Thakar (b) In Kolaba district Karjat, Khalapur ) including Pen, Panvel and Sudhagad talukas ) Ka Thakur and Matheran ) Ma Thakar (c) In Nasik District ) Ma Thakur Igatpuri, Nasik and Sinnar Talukas ) Ma thakar (d ) in Poona District Ambegaon, Junnar, Khed & Mawal talukas FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4386 OF 2012 “Someshwar Waman Thakur Vs. The State of Maharashtra and others” Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 8 (e) In Thane District Thane, Kalyan, Murbad, Bivandi, Bassein, Wada Shahapur, Palghar, Jawhar and Mokhada Talukas In 1976 the scheduled caste and scheduled tribes orders (Amendment) Act, 1976 ( Act No.108 of 1976) was published on 18th September, 1976 whereby the areas restriction is removed. The background of the removal of said area restriction was basically for the election purpose, in as much as a person coming from a particular area in which a particular tribal community was found to be inhabited. There was always a possibility of such tribes having migrated from that area and inhabiting in an area outside the said restricted area ( as shown by the Presidential Order prior to the year 1976 ). This clearly means that even after the migration, if a person is a tribal and by his/her migration, he/she should not be ceased to be a tribal and should not be deprived from getting the advantages of his/her being tribal. The area restriction however did not mean that any person who claims to be a tribal outside the said area where a particular community was not found earlier, his claim to be accepted merely on the face of it. In fact, what is required to be done is that if FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4386 OF 2012 “Someshwar Waman Thakur Vs. The State of Maharashtra and others” Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 9 any person who is at the relevant time residing in an area where there is no original inhabitation of that Scheduled Tribe. If he/she desires to make good of his/her claim about a person belonging to that particular tribe, for example, persons coming from “Thakur” community will have to establish that they or their predecessors have migrated from such an area and at present are residing in an area where they were not residing prior to area restriction removal notification of the Presidential Order. . As a result of removal of area restriction for certain tribal communities, many non tribal communities having similar nomenclature staying outside the tribal area and also the communities, which belong to entirely different ethnic stocks but having similarity of nomenclature, started claiming the status of those Scheduled Tribes which were confined to their original habitat in tribal pockets. This trend has come more serious and cognizable as sizeable numbers of such claimants are making endeavor to claim the benefits of constitutional reservations. . it is an admitted fact that before lifting area restriction in 1976, certain areas were restricted for certain communities. IN the course of time when the inhabitants of FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4386 OF 2012 “Someshwar Waman Thakur Vs. The State of Maharashtra and others” Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 10 this area come into contact with civilized society, they settled in civil area for the purpose of service, education, business etc. even they are linked with their original place of residence. They have their own agricultural land, houses, etc. in the said area. Thus, they can prove that before lifting area restriction they and their forefathers were residing in the area earmarked for certain tribes. . The Hon'ble High Court of Bombay while deciding the Writ Petition NO. 2748 of 2000 filed by Murlidhar Ramkrishna Ghate Vs. State of Maharashtra, has made following important observations regarding the area restrictions and abnormal growth of the population of certain communities. “5. The third submission was that the documentary evidence on record by itself was sufficient to hold that the petitioner belongs to Thakur S.T. We have noted earlier and we may repeat that the documents on which the petitioner relied upon and which are annexed to this petition did not indicate that the petitioner belongs to Thakur S.T. These documents either showed that the petitioner is Thakur or Hindu Thakur. That by itself would not mean that the petitioner belongs to Thakur S.T. On the FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4386 OF 2012 “Someshwar Waman Thakur Vs. The State of Maharashtra and others” Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 11 contrary, as noted earlier, the school leaving certificate issued on 30.4.1983 and obtained in the vigilance enquiry would clearly go against the petitioner. It is not possible to accept that the petitioner who joined a secondary school, if he genuinely belonged to S.T. Would omit to give such vital information about his status as Thakur S.T. While giving details which were required to be given. Another aspect of the matter as pointed out in the affidavit in reply of the Research Officer is that the petitioner hails from Amalathe Tal. Sindhkheda in Dhule District. It is pointed out that in Amalathe Tal. Sindkheda in Dhule District, there were no families of Scheduled Caste or Schduled Tribes. Also, before the Area Restriction Removal Order of 1976 came in to force, the tribe Thakur S.T. Was restricted only to five Districts nakely in (A) Ahmednagar District, in Akola, Rahuri and Sangamner Taluka ( b) In Kolaba District ( Now Raigad) Karjat, Khalapur, Pen, Panwvel and Sudhagad Talukas and Matheran (c) in Nasik District, Igatpuri, Nashik and Sinnar Talukas (d) In Thane District, Thane, Kalyan, Murbad, Bhiwandi, Vasai, Wada, Shahapur, Palghar, Jawhar and Mokhada talukas. It is not the case of the petitioner that his family migrated to Amalathe Tal. Sindkheda In Dhule from any of those areas. It is his contention that the family hails from Amalathe Talu. Sindkheda in Dhule district. The reply FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4386 OF 2012 “Someshwar Waman Thakur Vs. The State of Maharashtra and others” Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 12 filed also discloses following information about population of some of the scheduled tribes in the State as on 17.12.1981 after the removal of area restrictions. We may reproduce the same. Population of Scheduled Tribes in Maharashtra (As per 1971, 1981 Census) Sr. No . Scheduled tribe Population 18 Gond, Rajgond, Arakh 1971 1981 19 Halba, Halbi 3,31,798 11,62,735 27 Kolam, Mannervarlu 56,061 1,17, 074 29 Koli Mahadeo, Dongar Koli 3,39.855 7,47,448 35 Naikda Nayaka 9315 35,053 44 Thakar, Thakur 1,78,805 3,23,191 From the above figures, it is very clear that the population of Thakur S.T. rose from 1,78,805 in the year 1971 to 3,23,191 in the year 1981. This canot be explained as a normal reproduction process leading to the increase in the population of Scheduled Tribe within 10 years. Scheduled Tribes by their very nature stay close to their original habitat unless have migrated for work or education which FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4386 OF 2012 “Someshwar Waman Thakur Vs. The State of Maharashtra and others” Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 13 very few still do. This sudden spurt, can reasonably be explained, that persons who did not belong to Thakur, S.T. because they also bore a surname Thakur could raise claims as belonging to Thakur S.T. Though they did not belong to Thakur S.T. We are clearly of the opinion that the omission by the petitioner in not claiming that he belonged to Thakur S.T. In his school records would be a very strong factor against the petitioner. There is otherwise no other material to hold that the petitioner belongs to Thakur S.T. On that count also, that contention must be rejected.” Such similar issue has also been discussed by Hon'ble High Court of Judicature of Bombay Bench at Aurangabad in W.P. No. 7813 of 2009 in the case of Dattu Namdev Thakur Vs. State of Maharashtra and others”. 15] The Thakur community, belonging to Scheduled Tribe, indeed was restricted to 25 tahsils of five districts, i.e. Ahmednagar, Kolaba, Nasik, Pune and Thane of State of Maharashtra. However, the said area restriction, which was in operation from 1.11.1956 to 26.7.1977 is no more in force. The consequence flowing from such removal of area restriction by itself would not allow a person to stake claim to be belonging to Thakur, Scheduled Tribe, unless such FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4386 OF 2012 “Someshwar Waman Thakur Vs. The State of Maharashtra and others” Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 14 person established that his forefathers have migrated from hilly area/tribal area or that they form group of tribals in the particular area.” . The Hon'ble Supreme Court has also recently observed this issued in the case of Shri Chetan Yuvaraja Thakur Vs. State of Maharashtra and others in Special Leave to Appeal (Civil) No(s) 14193/2011. “It was further concluded on the basis of settled principle of law in this regard that removal of area restriction would not mean that any person who claims to be Tribal outside the area where a particular Community was not found earlier, his claim to be accepted merely on the face of it. It was further concluded that a person from Thakur Community will have to establish that he or his predecessors have migrated from such an area and are residing in an area where they were not residing prior to the date of notification of the Presidential Order in respect of removal of area restriction. Admittedly, in the present case the petitioner could not establish that he himself or his forefathers had migrated from the said area.” FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4386 OF 2012 “Someshwar Waman Thakur Vs. The State of Maharashtra and others” Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 15 The committee has thus taken into consideration the entire data and the legal position set out by this Court. We concur with the above findings. 4] In that view of the matter, we do not find any merit in the present writ petition. Hence, we pass the following order :- -: O R D E R :- “Writ petition No. 4386 of 2012 is dismissed. No orders as to costs.” [A.B. CHAUDHARI, J.] [NARESH H. PATIL, J.] grt/- FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4386 OF 2012 “Someshwar Waman Thakur Vs. The State of Maharashtra and others” Office Notes, Office Memoranda of Coram appearances, Court's Orders Court's or Judge's orders or directions and Registrar's orders. 16 23RD OCTOBER, 2012. 5] After pronouncement of the order, learned counsel for petitioner prays for continuation of interim relief. We are not inclined to continue interim relief. The request is rejected. [A.B. CHAUDHARI,J] [NARESH H. PATIL,J] grt/-4386.12wp