Gulam Husain Ashraf Khan v. State Of Maharashtra Thr Its Secretary Tribal Development Dept And ANR

Digitally signed by VIDYA SURESH AMIN Date:

2022.10.21 17:25:42 +0530 VIDYA SURESH AMIN

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7017 OF 2022 Gulam Husain Ashraf Khan ..Petitioner Vs.

The State of Maharashtra & Anr.

..Respondents Mr. R. K. Mendadkar for the petitioner.

Mr. P. J. Gavhane, AGP for the State.

CORAM : S.V. GANGAPURWALA & R.N. LADDHA, JJ.

DATE : OCTOBER 20, 2022.

P.C.:

1.

The caste claim of the petitioner as belonging to Tadvi is invalidated.

2.

Learned counsel for the petitioner submits that right from the year 1924, the documents of the petitioner's grandfather and father' s record caste as Tadvi.

3.

Learned counsel submits that not a single contra entry exists but still the claim of the petitioner is invalidated only on the ground that affinity test is not proved. Learned counsel relies on the judgment of the Supreme Court in Anand vs. Committee for Scrutiny and Verification of Tribe Claims & Ors., (2012) 1 SCC 113 to contend that affinity test is not the litmus test.

4.

Learned AGP submits that in fact the surname of the petitioner' s father was Momin, the same was changed to Khan in a Gazette, however, the petitioner's grandfather and great grandfather's surname is shown as Khan. The learned counsel further submits that in some of the school record and birth record, the caste is recorded as Musalman. The petitioner has failed in the affinity test.

5.

The petitioner has placed reliance on the following documents: Sr.

No.

Nature of document Name of document holder Relation with the Applicant Entry of caste Date of Registration Caste certificate Ghulam Hussain Ashraf Khan Self Tadvi 14/08/2020 Affidavit Ghulam Hussain Ashraf Khan Self -- 12/11/2020 Transfer Certificate Momin Ghulam Hussain Ashraf Self -- 10/12/2020 Gazette Ghulam Hussain Ashraf Momin Self -- 9-15/7/2020 Caste Certificate Ashraf Fakir Mohammad Khan Father Tadvi 30/01/2020 Birth Certificate Ashraf Father - 27/11/2020 Birth Certificate Ashraf Father Muslim Tadvi 01/03/1946 School Leaving Certificate Ashraf Khan Father Muslim Sunni 01/04/1952 Birth Certificate Fakir Mohammed Grandfather - 18/01/2020 Birth Certificate Fakir Mohammed Ladale Saheb Khan Grandfather Muslim Tadvi 09/06/1924 Death Certificate Ladale Saheb Gufur Khan Great Grandfather - 29/10/2020 Death Register Ladale Saheb Gufur Khan Great Grandfather Muslim Tadvi 11/10/1934 6.

The entry Musalman cannot be construed as contra entry, as the same depicts the religion. The birth record of the petitioner' s grandfather of the year 1924 records caste as Tadvi. The birth record of the petitioner's father in the year 1946 records the caste as Tadvi. There is not a single contra entry on record. The Apex Court in Anand (supra) had held that the affinity test is not a litmus test. The record of preconstitutional era would have more probative value. Considering the

consistent documentary evidence on record, the petitioner has proved that he belongs to Tadvi S.T.. The impugned order is quashed and set aside. The Committee shall issue the certificate of Tadvi schedule tribe immediately.

7.

Writ Petition is disposed of. No costs.

(R.N. LADDHA,J) (S.V. GANGAPURWALA, J.)