MR. HEMANT B. PATIL,NATIONAL PRESIDENT, BHARAT AGAINST CORRUPTION vs. STATE OF MAHARASHTRA THROUGH GP HIGH COURT , AND ORS

2024:BHC-AS:13094-DB
Maharani Ahilyadevi Samaj Prabodhan Manch, Maharashtra Rajya, Mumbai & Ors
v the Union of India & Ors
906-ASWP-4919-2017-J++F1.doc



Shephali

REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4919 OF 2017



1. Maharani Ahilyadevi Samaj
Prabodhan Manch
Maharashtra Rajya Mumbai,
Registered under the Public Trusts Act
1950, Mumbai No F-18219 (Mumbai)
having its address at B/1104,
Siddhivinayak Horizon, Veer Nariman
Road, Prabhadevi, Mumbai 400 025
through its President, Mr Madhukar
Babarao Shinde.



2. Murarji Arjun Panchpol-

SHEPHALI
SANJAY
MORMARE
Dhangar,
H/19/404, Press Enclave CHS,
Pratiksha Nagar, Sion (East),Mumbai
400 022.
General Secretary of:
Maharani Ahilyadevi Samaj Prabodhan
Manch Maharashtra Rajya Mumbai,
Registered under the Public Trusts Act
1950, Mumbai No F-18219 (Mumbai)
having its address at B/1104,
Siddhivinayak Horizon, Veer Nariman
Road, Prabhadevi, Mumbai 400 025.


Digitally signed
by SHEPHALI
SANJAY
MORMARE
Date: 2024.03.19
10:27:11 +0530

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v the Union of India & Ors
906-ASWP-4919-2017-J++F1.doc




3. Dr Jagannath Prasad
Baghel-Dhangar,
D 204, Pleasant Park, Near Dahisar
Bridge, Dahisar (West),
Mumbai 400 068.
Executive Member, National Co-
ordinator of Maharani Ahilyadevi Samaj
Prabodhan Manch Maharashtra Rajya
Mumbai, Registered under Public
Trusts Act 1950, Mumbai No F-18219
(Mumbai) having its address at B/1104,
Siddhivinayak Horizon, Veer Nariman
Road, Prabhadevi, Mumbai 400 025. …Petitioners



~ versus ~



1. The Union of India,
through its Secretary, Ministry of
Tribal Affairs having its office at
Ground floor, ‘D’ Wing, Shastri
Bhawan, New Delhi 110 001.
Telephone Nos: 011-23389779,
23074467
FAX: 011-23070351
Email: prao.hrd@nic.in.



2. The Chairperson,

National Commissions for Scheduled
Tribes, having its office at: 6th Floor, B-
Wing, Loknayak Bhavan, Khan Market,
New Delhi 110 003
Telephone No 011-24646954.


3. The Secretary,

Ministry of Law & Justice,
Govt of India, having its office at 4th
Floor, A-Wing, Shastri Bhawan,
New Delhi 110 001.

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v the Union of India & Ors
906-ASWP-4919-2017-J++F1.doc




4. The Registrar General and

Census Commissioner of
India,
(Ministry of Home Affairs),
2/A Man Singh Road,
New Delhi 110 011. Tel Nos: +91-11-
23070629, 23381623, 23381917,
23384816, Email: rgoffice.rgi@nic.in.


5. The State of Maharashtra,

through its Chief Secretary,
Government of Maharashtra,
Mantralaya, Madam Cama Road,
Hutatma Rajguru Square,
Nariman Point, Mumbai 400 032.


6. The Principal Secretary,

Tribal Development Department,
Government of Maharashtra,
1st Floor, Mantralaya (Extension
Building), Madam Cama Road,
Hutatma Rajguru Chock,
Mumbai 400 032.
Phone – 022-22833665, 22048790
Email: tribal.info@maharashtra.gov.in.


The Chairman,
7.

Maharashtra State Scheduled Castes &
Scheduled Tribes Commission, Admn.
I Building, AG Khan Road, Worli Sea
Face, Mumbai 400 018.


8. The Commissioner,
Tribal Research & Training Institute,
28, Queen’s Garden, Pune 411 001.
Phone: 020-26332380, 020-26360941,
020-26332380
Fax: 020-26360026
Email: trti.mah@nic.in. …Respondents

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v the Union of India & Ors
906-ASWP-4919-2017-J++F1.doc




WITH
CIVIL APPLICATION NO. 864 OF 2019
IN
WRIT PETITION NO. 4919 OF 2017



1. Adivasi Samaj Kruti Samiti,
A trust registered under the provisions
of Maharashtra Public Trusts Act 1950,
through its Secretary, Satish
Chandrakant Lembhe, having its office
at 53/1-B, Vinayak Nagar, Ganpati
Chowk, Navi Sangvi, Pune 61.



2. Sahyadri Adivasi Jeshta

Nagrik Sangh, Pune,
having office at Survey No. 80/2/1,
Sudarshan Nagar, Pimple Gurav,
Pune 61.


3. Tribal Doctors Forum,
Sai Prasad, Flat No. 1, Survey No. 70/1,
Samata Nagar, Navi Sangvi,
Pune 27. …Applicants



~ in the matter between~



1. Maharani Ahilyadevi Samaj
Prabodhan Manch
Maharashtra Rajya Mumbai,
Registered under Public Trusts Act
1950 Mumbai No F-18219 (Mumbai)
having its address at B/1104,
Siddhivinayak Horizon, Veer Nariman
Road, Prabhadevi, Mumbai 400 025
through its President, Mr Madhukar
Babarao Shinde

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v the Union of India & Ors
906-ASWP-4919-2017-J++F1.doc





2. Murarji Arjun Panchpol-

Dhangar,
H/19/404, Press Enclave CHS,
Pratiksha Nagar, Sion (East),
Mumbai 400 022.
General Secretary of: Maharani
Ahilyadevi Samaj Prabodhan Manch
Maharashtra Rajya Mumbai, Registered
under Public Trusts Act 1950, Mumbai
No F-18219 (Mumbai) having its
address at B/1104, Siddhivinayak
Horizon, Veer Nariman Road,
Prabhadevi, Mumbai 400 025.


3. Dr Jagannath Prasad
Baghel-Dhangar,
D 204, Pleasant Park, Near Dahisar
Bridge, Dahisar (West),
Mumbai 400 068.
Executive member, National Co-
ordinator of Maharani Ahilyadevi Samaj
Prabodhan Manch Maharashtra Rajya
Mumbai, Registered under Public
Trusts Act 1950, Mumbai No F-18219
(Mumbai) having its address at B/1104,
Siddhivinayak Horizon, Veer Nariman
Road, Prabhadevi, Mumbai 400 025. …Petitioners



~ versus ~



1. The Union of India,
through its Secretary, Ministry of
Tribal Affairs having its office at
Ground floor, ‘D’ Wing, Shastri
Bhawan, New Delhi 110 001.
Telephone Nos: 011-23389779,
23074467, Fax: 011-23070351
Email: prao.hrd@nic.in.

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v the Union of India & Ors
906-ASWP-4919-2017-J++F1.doc





2. The Chairperson,

National Commissions for Scheduled
Tribes having its office at: 6th Floor, B-
Wing, Loknayak Bhavan, Khan Market,
New Delhi 110 003
Telephone No: 011-24646954.


3. The Secretary,

Ministry of Law & Justice,
Govt of India, having its office at 4th
Floor, A-Wing, Shastri Bhawan,
New Delhi 110 001.


4. The Registrar General and

Census Commissioner of
India,
(Ministry of Home Affairs),
2/A Man Singh Road,
New Delhi 110 011.
Tel Nos: +91-11-23070629, 23381623,
23381917, 23384816.


5. The State of Maharashtra,

through its Chief Secretary,
Government of Maharashtra,
Mantralaya, Madam Cama Road,
Hutatma Rajguru Square,
Nariman Point, Mumbai 400 032.


6. The Principal Secretary,

Tribal Development Department,
Government of Maharashtra,
1st Floor, Mantralaya (Extension
Building), Madam Cama Road,
Hutatma Rajguru Shock,
Mumbai 400 032.
Phone – 022-22833665, 22048790.



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v the Union of India & Ors
906-ASWP-4919-2017-J++F1.doc




7. The Chairman,

Maharashtra State Scheduled Caste &
Scheduled Tribes Commission, Admn.
Building, AG Khan Road, Worli Sea
Face, Mumbai 400 018.


8. The Commissioner,
Tribal Research & Training Institute,
28, Queen’s Garden, Pune 411 001.
Phone: 020-26332380, 020-6360941,
020-26332380. …Respondents


WITH
CIVIL APPLICATION NO. 865 OF 2019
IN
WRIT PETITION NO. 4919 OF 2017


Tribal Rights Protection
Committee,
Maharashtra State, through its Secretary,
Suhas Vechya Naik Age 45 years, Occ. Social
Worker, R/o Rampur, Post Modalpada,
Tehsil-Taloda, District Nandurbar.
…Intervener
Applicant



~ in the matter between~



1. Maharani Ahilyadevi Samaj
Prabodhan Manch
Maharashtra Rajya Mumbai,
Registered under Public Trusts Act 1950,
Mumbai No F-18219 (Mumbai) having
its address at B/1104, Siddhivinayak
Horizon, Veer Nariman Road, Prabha
devi, Mumbai 400 025 through its
President Mr Madhukar Babarao Shinde


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v the Union of India & Ors
906-ASWP-4919-2017-J++F1.doc




2. Murarji Arjun Panchpol-

Dhangar,
H/19/404, Press Enclave CHS, Pratiksha
Nagar, Sion (East),
Mumbai 400 022.
General Secretary of:
Maharani Ahilyadevi Samaj Prabodhan
Manch Maharashtra Rajya Mumbai,
Registered under Public Trusts Act 1950,
Mumbai No F-18219 (Mumbai) having
its address at B/1104, Siddhivinayak
Horizon, Veer Nariman Road,
Prabhadevi, Mumbai 400 025.


3. Dr Jagannath Prasad Baghel-
Dhangar,
D 204, Pleasant Park, Near Dahisar
Bridge, Dahisar (West),
Mumbai 400 068.
Executive member, National Co-
ordinator of Maharani Ahilyadevi Samaj
Prabodhan Manch Maharashtra Rajya
Mumbai,
Registered under Public Trusts Act 1950,
Mumbai No. F-18219 (Mumbai) having
its address at B/1104, Siddhivinayak
Horizon, Veer Nariman Road,
Prabhadevi, Mumbai 400 025. …Petitioners



~ versus ~



1. The Union of India,
through its Secretary, Ministry of
Tribal Affairs having its office at
Ground floor, ‘D’ wing, Shastri
Bhawan, New Delhi.




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v the Union of India & Ors
906-ASWP-4919-2017-J++F1.doc




2. The Chairperson,

National Commissions for Scheduled
Tribes having its office at: 6th Floor, B-
Wing, Loknayak Bhavan, Khan Market,
New Delhi 110 003.


3. The Secretary,

Ministry of Law & Justice,
Govt of India, having its office at 4th
Floor, A-Wing, Shastri Bhawan,
New Delhi 110 001.


4. The Registrar General and

Census Commissioner of
India,
(Ministry of Home Affairs),
2/A Man Singh Road,
New Delhi 110 011.


The State of Maharashtra,
5.

through its Chief Secretary,
Government of Maharashtra,
Mantralaya, Madam Cama Road,
Hutatma Rajguru Square,
Nariman Point, Mumbai 400 032.


6. The Principal Secretary,

Tribal Development Department,
Government of Maharashtra,
1st Floor, Mantralaya (Extension
Building), Madam Cama Road,
Hutatma Rajguru Shock,
Mumbai 400 032.


The Chairman,
7.

Maharashtra State Scheduled Caste &
Scheduled Tribes Commission, Admn.
Building, AG Khan Road, Worli Sea
Face, Mumbai 400 018.


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v the Union of India & Ors
906-ASWP-4919-2017-J++F1.doc




8. The Commissioner,
Tribal Research & Training Institute,
28, Queen’s Garden, Pune 411 001. …Respondents


WITH
CIVIL APPLICATION NO. 812 OF 2019
IN
WRIT PETITION NO. 4919 OF 2017


Vanvasi Kalyan Ashram,
Registered under the Bombay Public Trusts
Act 1950 through its Authorized
Representative, Mr Sandip Sabale,
Age 39, Occupation: Service, having its
registered office at 15, Krushi Nagar,
College Road, Nashik. …Applicant



~ in the matter between~



1. Maharani Ahilyadevi Samaj
Prabodhan Manch
Maharashtra Rajya Mumbai,
Registered under Public Trusts Act
1950, Mumbai No F-18219 (Mumbai)
having its address at B/1104,
Siddhivinayak Horizon, Veer Nariman
Road, Prabhadevi, Mumbai 400 025
through its President Mr Madhukar
Babarao Shinde.



2. Murarji Arjun Panchpol-

Dhangar,
H/19/404, Press Enclave CHS,
Pratiksha Nagar, Sion (East), Mumbai
400 022.
General Secretary of: Maharani
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v the Union of India & Ors
906-ASWP-4919-2017-J++F1.doc



Ahilyadevi Samaj Prabodhan Manch
Maharashtra Rajya Mumbai, Registered
under Public Trusts Act 1950, Mumbai
No F-18219 (Mumbai) having its
address at B/1104, Siddhivinayak
Horizon, Veer Nariman Road,
Prabhadevi, Mumbai 400 025.


3. Dr Jagannath Prasad
Baghel-Dhangar,
D 204, Pleasant Park, Near Dahisar
Bridge, Dahisar (West),
Mumbai 400 068. Executive member,
National Co-ordinator of Maharani
Ahilyadevi Samaj Prabodhan Manch
Maharashtra Rajya Mumbai,
Registered under Public Trusts Act
1950, Mumbai No. F-18219 (Mumbai)
having its address at B/1104,
Siddhivinayak Horizon, Veer Nariman
Road, Prabhadevi, Mumbai 400 025. …Petitioners



~ versus ~



1. The Union of India,
through its Secretary, Ministry of
Tribal Affairs having its office at
Ground floor, ‘D’ Wing, Shastri
Bhawan, New Delhi 110 001.
Telephone Nos: 011-23389779,
23074467, Fax: 011-23070351
Email: prao.hrd@nic.in.



2. The Chairperson,

National Commissions for Scheduled
Tribes having its office at: 6th Floor, B-
Wing, Loknayak Bhavan, Khan Market,
New Delhi 110 003.
Telephone No: 011-24646954.
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v the Union of India & Ors
906-ASWP-4919-2017-J++F1.doc





3. The Secretary,

Ministry of Law & Justice,
Govt of India, having its office at 4th
Floor, A-Wing, Shastri Bhawan,
New Delhi 110 001.


4. The Registrar General and

Census Commissioner of
India,
(Ministry of Home Affairs),
2/A Man Singh Road,
New Delhi 110 011.
Tel. Nos. +91-11-23070629, 23381623,
23381917, 23384816
Email: rgoffice.rgi@nic.in.


5. The State of Maharashtra,

through its Chief Secretary,
Government of Maharashtra,
Mantralaya, Madam Cama Road,
Hutatma Rajguru Square,
Nariman Point, Mumbai 400 032.


6. The Principal Secretary,

Tribal Development Department,
Government of Maharashtra,
1st Floor, Mantralaya (Extension
Building), Madam Cama Road,
Hutatma Rajguru Shock,
Mumbai 400 032.
Phone: 022-22833665, 22048790
Email: tribal.info@maharashtra.gov.in.


The Chairman,
7.

Maharashtra State Scheduled Caste &
Scheduled Tribes Commission, Admn.
Building, AG Khan Road, Worli Sea
Face, Mumbai 400 018.


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v the Union of India & Ors
906-ASWP-4919-2017-J++F1.doc




8. The Commissioner,
Tribal Research & Training Institute,
28, Queen’s Garden, Pune 411 001.
Phone: 020-26332380, 020-26360941
Fax: 020-26360026,
Email: trti.mah@nic.in . …Respondents


WITH
REVIEW PETITION (ST) NO. 2210 OF 2023
IN
CIVIL APPLICATION NO. 864 OF 2019
IN
WRIT PETITION NO. 4919 OF 2017



1. Adivasi Samaj Kruti Samiti,
A trust registered under the provisions
of Maharashtra Public Trusts Act 1950,
through its Secretary, Satish
Chandrakant Lembhe, having its office
at 53/1-B, Vinayak Nagar, Ganpati
Chowk, Navi Sangvi, Pune 61.



2. Sahyadri Adivasi Jeshta

Nagrik Sangh, Pune,
having office at Survey No. 80/2/1,
Sudarshan Nagar, Pimple Gurav,
Pune 61.


3. Tribal Doctors Forum,
Sai Prasad, Flat No. 1, Survey No. 70/1,
Samata Nagar, Navi Sangvi,
Pune 27. …Petitioners


~ in the matter between~



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v the Union of India & Ors
906-ASWP-4919-2017-J++F1.doc





Maharani Ahilyadevi Samaj
1.
Prabodhan Manch
Maharashtra Rajya Mumbai,
Registered under Public Trusts Act
1950, Mumbai No F-18219 (Mumbai)
having its address at B/1104,
Siddhivinayak Horizon, Veer Nariman
Road, Prabhadevi, Mumbai 400 025
through its President Mr Madhukar
Babarao Shinde.



2. Murarji Arjun Panchpol-

Dhangar,
H/19/404, Press Enclave CHS,
Pratiksha Nagar, Sion (East),
Mumbai 400 022.
General Secretary of: Maharani
Ahilyadevi Samaj Prabodhan Manch
Maharashtra Rajya Mumbai, Registered
under Public Trusts Act 1950, Mumbai
No. F-18219 (Mumbai) having its
address at B/1104, Siddhivinayak
Horizon, Veer Nariman Road,
Prabhadevi, Mumbai 400 025.


3. Jagannath Prasad Baghel-
Dhangar,
D 204, Pleasant Park, Near Dahisar
Bridge, Dahisar (West),
Mumbai 400 068.
Executive Member, National Co-
ordinator of Maharani Ahilyadevi Samaj
Prabodhan Manch Maharashtra Rajya
Mumbai, Registered under Public
Trusts Act 1950, Mumbai No F-18219
(Mumbai) having its address at B/1104,
Siddhivinayak Horizon, Veer Nariman
Road, Prabhadevi, Mumbai 400 025. …Petitioners

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v the Union of India & Ors
906-ASWP-4919-2017-J++F1.doc





~ versus ~



1. The Union of India,
through its Secretary, Ministry of
Tribal Affairs having its office at
Ground floor, ‘D’ Wing, Shastri
Bhawan, New Delhi 110 001.
Telephone Nos: 011-23389779,
23074467
Fax: 011-23070351.



2. The Chairperson,

National Commissions for Scheduled
Tribes having its office at: 6th Floor, B-
Wing, Loknayak Bhavan, Khan Market,
New Delhi 110 003
Telephone No: 011-24646954.


3. The Secretary,

Ministry of Law & Justice,
Govt of India, having its office at 4th
Floor, A-Wing, Shastri Bhawan,
New Delhi 110 001.


4. The Registrar General and

Census Commissioner of
India,
(Ministry of Home Affairs),
2/A Man Singh Road,
New Delhi 110 011.
Tel Nos: +91-11-23070629, 23381623,
23381917, 23384816.


5. The State of Maharashtra,

through its Chief Secretary,
Government of Maharashtra,
Mantralaya, Madam Cama Road,
Hutatma Rajguru Square,
Nariman Point, Mumbai 400 032.

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v the Union of India & Ors
906-ASWP-4919-2017-J++F1.doc




6. The Principal Secretary,

Tribal Development Department,
Government of Maharashtra,
1st Floor, Mantralaya (Extension
Building), Madam Cama Road,
Hutatma Rajguru Chock,
Mumbai 400 032.
Phone – 022-22833665, 22048790


7. The Chairman,

Maharashtra State Scheduled Castes &
Scheduled Tribes Commission, Adam.
1 Building, AG Khan Road, Worli Sea
Face.


8. The Commissioner,
Tribal Research & Training Institute,
28, Queen’s Garden, Pune 411 001.
Phone: 020-26332380, 020-26360941,
020-2633236. …Respondents


WITH
REVIEW PETITION (ST) NO. 2211 OF 2023
IN
WRIT PETITION NO. 4919 OF 2017


Tribal Rights Protection
Committee,
Maharashtra State, having its contact office
at – Kashinath Nagar, Taloda, Tq. Taloda,
Dist. Nandurbar 425 413
through its Treasurer,
Mr Prakash Mirya Thakare,
Age-58 years, Occu: Social Worker
…Review
Petitioner



~ in the matter between~

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v the Union of India & Ors
906-ASWP-4919-2017-J++F1.doc





1. Maharani Ahilyadevi Samaj
Prabodhan Manch
Maharashtra Rajya Mumbai,
Registered under Public Trusts Act
1950, Mumbai No F-18219 (Mumbai)
having its address at B/1104,
Siddhivinayak Horizon, Veer Nariman
Road, Prabhadevi, Mumbai 400 025
through its President Mr Madhukar
Babarao Shinde.


Murarji Arjun Panchpol-
2.

Dhangar,
H/19/404, Press Enclave CHS,
Pratiksha Nagar, Sion (East),
Mumbai 400 022.
General Secretary of: Maharani
Ahilyadevi Samaj Prabodhan Manch
Maharashtra Rajya Mumbai, Registered
under Public Trusts Act 1950, Mumbai
No F-18219 (Mumbai) having its
address at B/1104, Siddhivinayak
Horizon, Veer Nariman Road,
Prabhadevi, Mumbai 400 025.


3. Dr Jagannath Prasad
Baghel-Dhangar,
D 204, Pleasant Park, Near Dahisar
Bridge, Dahisar (West),
Mumbai 400 068.
Executive member, National Co-
ordinator of Maharani Ahilyadevi Samaj
Prabodhan Manch Maharashtra Rajya
Mumbai, Registered under Public
Trusts Act 1950, Mumbai No F-18219
(Mumbai) having its address at B/1104,
Siddhivinayak Horizon, Veer Nariman
Road, Prabhadevi, Mumbai 400 025. …Petitioners


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v the Union of India & Ors
906-ASWP-4919-2017-J++F1.doc




~ versus ~



1. The Union of India,
through its Secretary, Ministry of
Tribal Affairs having its office at
Ground floor, ‘D’ Wing, Shastri
Bhawan, New Delhi.



2. The Chairperson,

National Commissions for Scheduled
Tribes having its office at: 6th Floor, B-
Wing, Loknayak Bhavan, Khan Market,
New Delhi 110 003.


3. The Secretary,
Ministry of Law & Justice,
Govt of India, having its office at 4th
Floor, A-Wing, Shastri Bhawan,
New Delhi 110 001.



4. The Registrar General and

Census Commissioner of
India,
(Ministry of Home Affairs),
2/A Man Singh Road, New Delhi 110
011.


5. The State of Maharashtra,

through its Chief Secretary,
Government of Maharashtra,
Mantralaya, Madam Cama Road,
Hutatma Rajguru Square,
Nariman Point, Mumbai 400 032.


The Principal Secretary,
6.

Tribal Development Department,
Government of Maharashtra,
1st Floor, Mantralaya (Extension
Building), Madam Cama Road, Hutatma
Rajguru Shock, Mumbai 400 032.

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7. The Chairman,

Maharashtra State Scheduled Castes &
Scheduled Tribes Commission, Admn.
Building, AG Khan Road, Worli Sea
Face, Mumbai 400 018.


8. The Commissioner,
Tribal Research & Training Institute,
28, Queen’s Garden, Pune 411 001. …Respondents


WITH
WRIT PETITION NO. 1694 OF 2018


Ishwar Bapurao Thombare-
“DHANGAR”,
S/o Bapu Savlaram Thombare-
“DHANGAR”
Presently residing at WW1/4, Bajaj Vihar
Colony, Bajaj Auto Limited, Old Mumbai –
Pune Highway, Akurdi, Opp. Akurdi Post
Office, Akurdi,
Pune 411 035
also residing at R/o Khed BK,
Tal. Khandala, Dist. Satara, Maharashra …Petitioner



~ versus ~



1. The Union Of India,
Through its Secretary, Ministry of
Tribal Affairs having its office at
Ground Floor, ‘D’ Wing, Shastri
Bhawan, New Delhi 110 001
Telephone Nos: 011-23389779,
23074467
Fax: 011-23070351
Email: prao.hrd@nic.in.

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2. The Chairperson,

National Commissions for Scheduled
Tribes having its office at: 6th Floor, B-
Wing, Loknayak Bhavan, Khan Market,
New Delhi 110 003
Telephone No: 011-24646954.


3. The State of Maharashtra,

through Principal Secretary, Tribal
Development Department,
Government of Maharashtra,
1st Floor, Mantralaya, (Extension
Building), Madam Cama Road,
Hutatma Rajguru Chowk,
Mumbai 400 032.
Phone: 022-22833665, 22048790
email: tribal.info@maharashtra.gov.in


The District Magistrate-
4.
Satara,
through its Sub-Divisional Officer- WAI
& Maan, Office of Sub-Divisional
Officer-WAI & Maan, District – Satara,
Maharashtra. …Respondents


WITH
CIVIL APPLICATION NO. 866 OF 2019
IN
WRIT PETITION NO. 1694 OF 2018


Tribal Rights Protection
Committee,
Maharashtra State through its Secretary Suhas
Vechya Naik, Age 45 years, Occu.: Social
Worker, R/o Rampur, Post Modalpada, Tehsil
Taloda, District- Nandurbar
…Intervener
applicant

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~ in the matter between~


Ishwar Bapurao Thombare-
“DHANGAR”,
S/o Bapu Savlaram Thombare-
“DHANGAR”
Presently residing at WW1/4, Bajaj Vihar
Colony, Bajaj Auto Limited, Old Mumbai –
Pune Highway, Akurdi, Opp. Akurdi Post
Office, Akurdi,
Pune 411 035
also residing at R/O Khed BK,
Tal. Khandal, Dist. Satara, Maharashra …Petitioner



~ versus ~



1. The Union Of India,
Through its Secretary, Ministry of
Tribal Affairs having its office at
Ground Floor, ‘D’ wing, Shastri
Bhawan, New Delhi.



2. The Chairperson,

National Commissions for Scheduled
Tribes having its office at: 6th Floor, B-
Wing, Loknayak Bhavan, Khan Market,
New Delhi 110 003.
Telephone No. 011-24646954


3. The State of Maharashtra,
through Principal Secretary, Tribal
Development Department,
Government of Maharashtra,
1st Floor, Mantralaya, (Extension
Building), Madam Cama Road,
Hutatma Rajguru Chowk,
Mumbai 400 032. …Respondents


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WITH
WRIT PETITION NO. 1699 OF 2018


Purushottam Madhukar
Dakhole,
S/o Shri Madhukarrao Dakhole
R/At Post Rohana, Tal Narkhed, District
Nagpur (Maharashtra), presently residing
at: C/o Mr Pandurang Maruti Dhaigude
Room No. 8 Satguru, Saibaba Society,
Church Road, Singh Estate, Kandivali East,
Mumbai 400101. …Petitioner



~ versus ~



1. The Union of India,
through its Secretary, Ministry of
Tribal Affairs having its office at
Ground floor, ‘D’ Wing, Shastri
Bhawan, New Delhi 110 001.
Telephone Nos: 011-23389779,
23074467,
FAX: 011-23070351
Email Address: prao.hrd@nic.in



2. The Chairperson,

National Commissions for Scheduled
Tribes having its office at: 6th Floor, B-
Wing, Loknayak Bhavan, Khan Market,
New Delhi 110 003
Telephone No. 011-24646954


3. The State of Maharashtra,

through Principal Secretary, Tribal
Development Department,
Government of Maharashtra,
1st Floor, Mantralaya (Extension
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Building), Madam Cama Road,
Hutatma Rajguru Square,
Mumbai 400 032.
Phone: 022-22833665, 22048790
Email: tribal.info@Maharashtra.gov.in


4. The Joint Commissioner,
Scheduled Tribe Certificate Scrutiny
Committee, Tribal Development
Bhavan, Giri Peth, Nagpur
(Maharashtra) …Respondents


WITH
CIVIL APPLICATION NO. 867 OF 2019
IN
WRIT PETITION NO. 1699 OF 2018


Tribal Rights Protection
Committee,
Maharashtra State, through its Secretary,
Suhas Vechya Naik,
Age 45 years, Occu.-Social Worker,
R/o- Rampur, Post – Modalpada,
Tehsil-Taloda, District-Nandurbar
…Intervener
Applicant



~ in the matter between~


Purushottam Madhukarrao
Dakhole,
S/o Shri Madhukarrao Dakhole
R/At Post Rohana, Tal Narkhed, District
Nagpur (Maharashtra), presently residing at:
C/o Mr Pandurang Maruti Dhaigude
Room No. 8 Satguru, Saibaba Society, Church
Road, Singh Estate, Kandivali East,
Mumbai 400101. …Petitioner

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~ versus ~



1. The Union of India,
through its Secretary, India, Ministry of
Tribal Affairs having its office at
Ground floor, ‘D’ Wing, Shastri
Bhawan, New Delhi 110 001.



2. The Chairperson,

National Commissions for Scheduled
Tribes having its office at: 6th Floor, B-
Wing, Loknayak Bhavan, Khan Market,
New Delhi 110 003.


3. The State of Maharashtra,

through Principal Secretary, Tribal
Development Department,
Government of Maharashtra,
1st Floor, Mantralaya (Extension
Building), Madam Cama Road,
Hutatma Rajguru Square,
Mumbai 400 032.


4. The Joint Commissioner,
Scheduled Tribe Certificate Scrutiny
Committee, Tribal Development
Bhavan, Giri Peth, Nagpur
(Maharashtra) …Respondents


WITH
WRIT PETITION NO. 3945 OF 2023


Tribal Rights Protection
Committee,
Maharashtra State, having its contact office at –
Kashinath Nagar, Taloda, Tq. Taloda, Dist.
Nandurbar 425 413 through its Secretary, Mr
Suhas Vechya Naik …Petitioner

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~ versus ~



1. State of Maharashtra,
through Chief Secretary, Mantralaya,
Mumbai 400 032.



2. Tribal Development

Department,
through its Addl. Chief Secretary,
Government of Maharashtra,
Mantralaya, Mumbai 400 032.


3. Tribal Advisory Council,

Maharashtra State, through its
Chairman (Chief Minister of
Maharashtra), Mantralaya,
Mumbai 400 032.


Tribal Research and
4.

Training Institute, MS,
through its Commissioner, 28, Queens
Garden, Pune 411 001.


Union of India,
5.

through its Secretary, Ministry of
Tribal Affairs, Shastri Bhavan,
New Delhi 110 001.


6. National Commission for

Scheduled Tribes,
through its Chairperson,
Loknayak Bhavan, Khan Market,
New Delhi 110 003.


7. Registrar General & Census
Commissioner of India,
2/A Man Singh Road,
New Delhi 110 001. …Respondents



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WITH
WRIT PETITION NO. 2239 OF 2023



1. Adivasi Samaj Kruti Samiti,
A trust under the provision of
Maharashtra Public Trusts Act 1950,
through its Secretary, Satish
Chandrakant Lembhe, having office at:
53/1-B, Vinayak Nagar, Ganpati
Chowk, Navi Sangvi, Pune 61.



2. Sahyadri Adivasi Jeshta

Nagrik Sangh Pune,
A Society registered under Maharashtra
Co-operative Societies Act 1960,
through its Secretary, Sudam Yashwant
Marade, having office at: Survey No.
80/2/2, Sudarshaan Nagar, Pimple
Gurav, Pune 61.


3. Tribal Doctors Forum,
A Society registered under Maharashtra
Co-operative Societies Act, through its
President, Ramkrushna Digambar
Pedhekar, having office: Sai Prasad, Flat
No. 1, Survey No. 70/1, Samata Nagar,
Navi Sangvi, Pune 27. …Petitioners



~ versus ~



1. State of Maharashtra,
through Chief Secretary/ Cabinet
Secretary, Mantralaya,
Mumbai 400 032.



2. Tribal Advisory Council,

Maharashtra State, through its
Chairman (Chief Minister of
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Maharashtra), Mantralaya,
Mumbai 400 032.


3. Tribal Development

Department,

through its Principal Secretary,
Government of Maharashtra,
Mantralaya, Mumbai 400 032.


4. Union of India,

through its Secretary, Ministry of
Tribal Affairs, Shastri Bhavan,
New Delhi 110 001.


5. National Commission for
Scheduled Tribes,
through its Chairperson,
Loknayak Bhavan, Khan Market,
New Delhi 110 003.


6. Registrar General & Census
Commissioner of India,
2/A Man Singh Road,
New Delhi 110 001. …Respondents


WITH
PUBLIC INTEREST LITIGATION NO. 135 OF 2018


Hemant B Patil,
Age: 47 years, Occ: Business,
National President, Bharat Against
Corruption, residing at Prahar Residence,
Flat No. 10, Vidyanagar, Tingre Nagar,
Vishrantwadi, Pune 411 015.
Email: hemantpatil778@gmail.com
Mob. No. 9096812597
Aadhar Card No. 724270859622 …Petitioner

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~ versus ~



1. State of Maharashtra,
through Govt. Pleader,
High Court, Mumbai



2. Principal Secretary, State
of Maharashtra ,
Mantralaya, Mumbai 400 032.


3. Secretary of Department of
Social Justice & Welfare
for State of Maharashtra
Manayalaya, Mumbai.


4. Secretary of Department of
Welfare of Scheduled Tribe
for State of Maharashtra. …Respondents


WITH
CIVIL APPLICATION NO. 31 OF 2019
IN
PUBLIC INTEREST LITIGATION NO. 135 OF 2018


Tribal Rights Protection
Committee,
Maharashtra State, through its its Secretary,
Suhas Vechya Naik
Age 45 years, Occu.- Social Worker,
R/o Rampur, Post-Modalpada, Tehsil-
Taloda, District-Nandurbar
…Intervener
Applicant



~ in the matter between~







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Hemant B Patil,
Age: 47 years, Occ: Business,
National President, Bharat Against
Corruption, residing at Prahar Residence,
Flat No. 10, Vidyanagar, Tingre Nagar,
Vishrantwadi, Pune 411 015. …Petitioner



~ versus ~



1. State of Maharashtra,
through Govt. Pleader,
High Court, Mumbai



2. Principal Secretary, State
of Maharashtra ,
Mantralaya, Mumbai 400 032.


3. Secretary of Department of
Social Justice & Welfare
for State of Maharashtra
Mantralaya, Mumbai.


4. Secretary of Department of
Welfare of Scheduled Tribe
for State of Maharashtra. …Respondents


WITH
INTERIM APPLICATION NO. 18224 OF 2022
IN
REJECTED CASE NO. 1704 OF 2016



1. Adivasi Samaj Kruti Samiti,
through its President Mr Sitaram
Rakhma Joshi, 53/1B, Vinayak Nagar,
New Sangvi, Pune 411 061.



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2. Konkana-Konkani Adivasi

Samaj Seva Sangh,
through its President Mr Namdev Valu
Bagul, Flat No. 1, Rajmauli Apartment,
Age – 54, Mhasrul, Makhmalabad Link
Road, Nashik 422 004.


3. Adivasi Vikas V Surksha
Association,
through its President Mr Ravindra
Umakant Talpe, 38/1/1-3-4, Jai Madati
Raj Park, Pimpale Gurav,
Pune – 411 061.


4. Tribal Rights Protection
Committee, Maharashtra
State,
through its Secretary Mr Suhas Vechya
Naik, Ro. - Rampur, Post – Modalpada,
Tehsil – Taloda, District-Nandurbar. …Applicants



~ in the matter between~



1. Adivasi Samaj Kruti Samiti,
through its President Mr Sitaram
Rakhma Joshi, 53/1B, Vinayak Nagar,
New Sangvi, Pune 411 061.



2. Konkana-Konkani Adivasi

Samaj Seva Sangh,
through its President Mr Namdev Valu
Bagul, Flat No. 1, Rajmauli Apartment,
Age – 54, Mhasrul, Makhmalabad Link
Road, Nashik 422 004.


3. Adivasi Vikas V Surksha

Association,
through its President Mr Ravindra
Umakant Talpe, 38/1/1-3-4, Jai Madati
Raj Park, Pimpale Gurav, Pune 411 061.
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4. Tribal Rights Protection
Committee, Maharashtra
State,
through its Secretary Mr Suhas Vechya
Naik, R/o. - Rampur, Post –
Modalpada, Tehsil – Taloda,
District-Nandurbar. …Petitioners



~ versus ~



1. State of Maharashtra,
through Chief Secretary, Mantralaya,
Mumbai 400 032.
Maharashtra.



2. Tribal Development

Department,
through its Addl. Chief Secretary,
Government of Maharashtra,
Mantralaya, Mumbai 400 032,
Maharashtra.


3. Tribal Advisory Council,

Maharashtra State, through its
Chairman (Chief Minister of
Maharashtra), Mantralaya,
Mumbai 400 032, Maharashtra.


4. Tribal Research and

Training Institute, MS,
through its Commissioner, 28, Queens
Garden, Pune 411 001, Maharashtra.


5. Union of India,

through its Secretary, Ministry of
Tribal Affairs, Shastri Bhavan,
New Delhi 110 001.


6. National Commission for
Scheduled Tribes,

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through its Chairperson,
Loknayak Bhavan, Khan Market,
New Delhi 110 003.


Registrar General & Census
7.
Commissioner of India,
2/A Man Singh Road,
New Delhi 110 001. …Respondents


WITH
TRANSFER MATTER (ST) NO. 30637 OF 2023
IN
REVIEW APPLICATION (ST) NO. 20784 OF 2023
IN
WRIT PETITION NO. 2086 OF 1997
(AURANGABAD)


Rushikesh Vasant Shelke,
Age 18 years, Occu: Student,
R/o Village Kille Dharur, Tal. - Dharur,
Dist-Beed, presently residing at Govt ITI
Hostel, Pandharpur, Tal-Pandharpur,
District-Solapur …Petitioner



~ in the matter between~


Govind s/o Nilkantrao Kukade,
Age: 25 Yrs, Occ: Engineer,
R/o Malewadi, Tal-Gangakhed,
District – Parbhani
…Original
Petitioner



~ versus ~





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The State of Maharashtra,
1.
Copy to be served on Govt. Pleader,
High Court Bench, Aurangabad.



2. Maharashtra Public
Service Commission,
Bank of India Building, Fort, Mumbai,
through it’s Secretary.


3. The Maharashtra
Electricity Board,
Prakashgad, Bandra, through its
Member Secretary.


4. The Taluka Executive
Magistrate and Tehsildar,
Gangakhed, District – Parbhani. …Respondents


WITH
INTERIM APPLICATION NO. 17021 OF 2023
IN
TRANSFER MATTER (ST) NO. 30637 OF 2023
IN
REVIEW APPLICATION (ST) NO. 20784 OF 2023
IN

WRIT PETITION NO. 2086 OF 1997
(AURANGABAD)


Rushikesh Vasant Shelke,
Age 18 years, Occu: Student,
R/o Village Kille Dharur, Tal. - Dharur,
Dist-Beed, presently residing at Govt ITI
Hostel, Pandharpur, Tal-Pandharpur,
District-Solapur …Applicant

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~ in the matter between~


Govind s/o Nilkantrao Kukade,
Age: 25 Yrs, Occ: Engineer,
R/o Malewadi, Tal-Gangakhed,
District – Parbhani
…Original
Petitioner



~ versus ~



1. The State of Maharashtra,
Copy to be served on Govt. Pleader,
High Court Bench, Aurangabad.



2. Maharashtra Public
Service Commission,
Bank of India Building, Fort, Mumbai,
through it’s Secretary.


3. The Maharashtra
Electricity Board,
Prakashgad, Bandra, through its
Member Secretary.


4. The Taluka Executive
Magistrate and Tehsildar,
Gangakhed, District – Parbhani. …Respondents


WITH
TRANSFER MATTER (ST) NO. 30642 OF 2023
IN
REVIEW APPLICATION (ST) NO. 20795 OF 2023
IN
WRIT PETITION NO. 1071 OF 1987
(AURANGABAD)

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Rushikesh Vasant Shelke,
Age 18 years, Occu: Student,
R/o Village Kille Dharur, Tal. - Dharur,
Dist-Beed, presently residing at Govt ITI
Hostel, Pandharpur, Tal-Pandharpur,
District-Solapur …Petitioner



~ in the matter between~


Prakash Prabhurao alias
Prabhakarrao Kokane,
Age 25 years, Occu: Service,
R/o Aurangabad
…Original
Petitioner



~ versus ~



1. The State of Maharashtra,
through its Secretary, Social Welfare,
Cultural, Sports and Tourism
Department, Mantralaya, Mumbai



2. The Union of India,
through it’s Secretary, Social Welfare
Department, Street-3, Church Road,
Pune.


3. The Director of Social
Welfare Department,
Maharashtra State, 3, Churcha Road,
Pune.


4. The Executive Magistrate,
Degloor, District – Nanded. …Respondents




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WITH
INTERIM APPLICATION NO. 17022 OF 2023
IN
TRANSFER MATTER (ST) NO. 30642 OF 2023
IN
REVIEW APPLICATION (ST) NO. 20795 OF 2023
IN
WRIT PETITION NO. 1071 OF 1987
(AURANGABAD)


Rushikesh Vasant Shelke,
Age 18 years, Occu: Student,
R/o Village Kille Dharur, Tal. - Dharur,
Dist-Beed, presently residing at Govt ITI
Hostel, Pandharpur, Tal-Pandharpur,
District-Solapur …Applicant



~ in the matter between~


Prakash Prabhurao alias
Prabhakarrao Kokane,
Age 25 years, Occu: Service, R/o
Aurangabad
…Original
Petitioner



~ versus ~



1. The State of Maharashtra,
through its Secretary, Social Welfare,
Cultural, Sports and Tourism
Department, Mantralaya, Mumbai



2. The Union of India,
through it’s Secretary, Social Welfare
Department, Street-3, Church Road,
Pune.
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3. The Director of Social
Welfare Department,
Maharashtra State, 3, Church Road,
Pune.


4. The Executive Magistrate,
Degloor, District – Nanded. …Respondents


WITH
WRIT PETITION NO. 15423 OF 2023


Prasahant s/o Prabhu Kokane,
Age- 40 years, Occupation: Advocate &
Education, R/o. Flat No. 104, Suman
Heights, Farande Nagar, Nanded,
District – Nanded,
Mb. 9421304868. …Petitioner



~ versus ~



1. The Union of India,
through its Secretary, Ministry of
Tribal Affairs having its office at
Ground floor, ‘D’ wing, Shastri
Bhawan, New Delhi 110 001.
Telephone Nos: 011-23389779,
23074467,
FAX: 011-23070351
Email Address: prao.hrd@nic.in



2. The Chairperson,

National Commissions for Scheduled
Tribes having its office at: 6th Floor, B-
Wing, Loknayak Bhavan, Khan Market,
New Delhi 110 003
Telephone No. 011-24646854

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3. The Registrar General and

Census Commissioner of
India,
(Ministry of Home Affairs),
2/A Man Singh Road,
New Delhi 110 011.
Tel. Nos. +91-11-230706229, 23381623.
E-mail-rgoffice.rgi@nic.in


4. The State of Maharashtra,

through its Chief Secretary,
Government of Maharashtra,
Mantralaya, Madam Cama Road,
Hutatma Rajgur Squar,
Nariman Point, Mumbai 400 032.


5. The Principal Secretary,

Tribal Development Department,
1st Floor, Mantralaya (Extension
Building), Mumbai 400 032.
Phone – 022-22833665, 22048790
Email-tribal.info@Maharashtra.gov.in


6. The Chairman,

Maharashtra State Scheduled Tribes
Commission, Admn. Building, AG
Khan Road, Worli Sea Face, Mumbai
400 018.


7. The Sub-Divisional Officer,
Sub-Division Office at Biloli,
District – Nanded.


8. Scheduled Tribe
Certificate Scrutiny
Committee for Canought
Place CIDCO,
Aurangabad
Email: tcscamr.mah@nic.in …Respondents


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A PPEARANCES

for the petitioner in
wp/4919/2017,caw/865/2
019, caw/812/2019,
caw/864/2019,
wp/1694/2018,
caw/866/2019,
wp/1699/2018,
caw/867/2019,
wp/3945/2023,
wp/2239/2023,
pil/135/2018,
xferst/30637/2023 &
xferst/30642/203
Mr Darius Khambata, Senior
Advocate , with Dr Abhinav
Chandrachud, Kavisha Shah,
Datta Mane, Anupam Dighe,
Minal Pawar, Hrutvik Patil,
Hamza Lakhani, Mehali
Mehta, Udita Saxsena, Nikhat
Chaudhary, Riz Khan, Sauresh
Shetye & Jayesh Bhosle i/b
India Law Alliance.

for the applicant/
petitioner in
wp/1071/1997,
xferst/30642/2023,
cast/17022/2023 &
rpst/20795/2023.
Mr Darius Khambata, Senior
, with Dr Abhinav
Advocate
Chandrachud, Kavisha Shah,
Datta Mane, Anupam Dighe,
Minal Pawar, Hamza
Lakhani, Mehali Mehta,
Hrutvik Patil, Udita Saxena,
Nikhat Chaudhary, Riz Khan,
Sauresh Shetye & Jayesh
Bhosle, i/b India Law Alliance.

for the applicant/
petitioner in
wp/1071/1997,
xferst/30642/2023,
cast/17022/2023 &
rpst/20795/2023.
Mr Darius Khambata, Senior
Advocate , with Dr Abhinav
Chandrachud, Kavisha Shah,
Datta Mane, Hamza Lakhani,
Hrutvik Patil,Nikhat
Chaudhary & Riz Khan, i/b
Jitendra Patil.


for the petitioner in
wp/3945/2023
Mr Anil Anturkar, Senior
Advocate , with Nitin V
Gangal, Siddheshwar Biradar,
Prerna Shukla, Atharva D, D
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Shinde & Prapti K.

for intervenor in
ca/812/2019
Mr Ram Apte, Senior Advocate ,
with Sudhama Bedekar &
Apurva Kulkarni, i/b Gargi
Uday Warunjikar.

for the petitioner in
pil/135/2018.
Mrs Priyandra Patil Sontakke ,
with Siddheshwar A Patil .

for the applicant/
petitioner in
ia/18224/2022 in
rc/1704/2018
Mr Ravindra Adsure , with Yash
Sonavane & Anuj Tiwari, i/b
Vivek Salunke.

for the petitioner in
wp/2239/2023,
rpiast/2210/2023 &
applicant in
caw/864/2019.
Mr Uday Warunjikar , with Sumit
Kate, Siddhesh Pilankar,
Sonali Chavan, Aditya
Khurkar & Jenish Jain.

petitioner in person
in wp/15423/2023
Mr Prashant P Konane.

for the respondent
UoI in all matters
Mr Devang Vyas, Additional
Solicitor General , with
Savita Ganoo, Parag Vyas &
Karuna Yadav, i/b DP Singh.

for the respondent
state in wp/4919/2017,
caw/865/2019,
caw/812/2019,
caw/864/2019,
rpwst/2211/2023,
wp/1694/2018,
caw/866/2019,
wp/1699/2018,
caw/867/2019,
rpiast/2210/2023,
wp/3945/2023,
wp/2239/2023,
Mr AA Kumbhakoni, Senior
Advocate (Special
Counsel) , with Mr PP
Kakade, GP, Mr Akshay Sinde,
B Panel Counsel, Mr BV
Samant, Addl. GP & Mr YD
Patil, AGP & Jitendra P Patil,
AGP.
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pil/135/2018,
rc/1704/2016,
xferst/30637/2023,
ia/17021/2023,
xferst/30642/2023,
ia/17022/2023,
cai/31/2019,
pil/135/2018 &
ia/18224/2022.



CORAM : G.S.Patel &
Kamal Khata, JJ.

DATED : 16th February 2024

ORAL JUDGMENT ( Per GS Patel J) :-


1. The public law question in these matters goes beyond
jurisprudence and constitutional principles, although the question is
certainly rooted in those. As we shall presently see, the question has
a wide social and undeniable political impact.

2. The lead Petition before us is Writ Petition No 4919 of 2017.
The 1st Petitioner is the Maharani Ahilyadevi Samaj Prabodhan
Manch Maharashtra Rajya, Mumbai a public charitable trust. The
other two Petitioners are individuals. The Respondents to this
Petition are the Union of India, the National Commission for
Scheduled Tribes, the Ministry of Law and Justice of the Union of
India, the Ministry of Home Affairs through the Census
Department, the State of Maharashtra, the Tribal Development
Department of the State of Maharashtra, the Maharashtra State
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Scheduled Casts and Scheduled Tribe Commission and the
Commissioner of the Tribal Research and Training Institute in
Pune. Even in this Writ Petition, there are Civil Applications. One
of these is by the Adivasi Samaj Kruti Samiti. Another is by the
Tribal Rights Protection Committee. A third is by the Vanvasi
Kalyan Ashram based in Nashik.

3. Then there is a Review Petition filed by the Adivasi Samaj
Kruti Samiti and the Sahyadri Adivasi Jeshta Nagrik Sangh, Pune
along with the Tribal Doctors Forum. Another Review Petition is
filed by the Tribal Rights Protection Committee.

4. Writ Petition No 1694 of 2018 is by an individual, Ishwar
Bapurao Thombare. In this too, there is a Civil Application for
intervention by the Tribal Rights Protection Committee. Another
Writ Petition No 1699 of 2018 is by another individual in which too
the Tribal Rights Protection Committee has sought to intervene.
Writ Petition No 3945 of 2023 is by the Tribal Rights Protection
Committee and Writ Petition No 2239 of 2023 is by the Adivasi
Samaj Kruti Samiti. There is also a Public Interest Litigation No 135
of 2018 filed by an individual, one Hemant Patil. In this as well there
is an Interim Application with four Applicants, viz., the Adivasi
Samaj Kruti Samiti, the Konkana-Konkani Adivasi Samaj Seva
Sangh, the Adivasi Vikas va Suraksha Association and the Tribal
Rights Protection Committee. There are transferred matters from
Aurangabad such as Writ Petition No 2086 of 1997 and Transfer
Matter (St) No 30637 of 2023 in a Review Petition filed by
Rushikesh Vasant Shelke. The original Writ Petitioner was one
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Prakash Kokane. There is an Interim Application there filed by
Rushikesh and finally, there is Writ Petition No 15423 of 2023 filed
by Prashant Kokane.

5. The individual reliefs in each of these matters will be briefly
summarised a little later. But the essence of the controversy relates
to a Presidential Order of 1956 and an Entry at Item 36. There is also
a reference to Item 36 in an amendment of 1976.

6. The 1956 Entry includes the community ‘Dhangad’. The case
of the Petitioner (that is the Maharani Ahilyadevi Samaj Prabodhan
Manch and others who support it) is that the community ‘Dhangad’
was not in existence in Maharashtra or even in India in 1956. The
Entry was intended to be a reference to ‘Dhangar’. The immediate
question would therefore be whether there was ever a tribe known as
Dhangad at the relevant time and, if so, was it distinct from
Dhangar .

7. Now this is by no means the first case of its kind, as we shall
presently see. The reason this assumes importance is that in
Maharashtra, the Dhangar community enjoys affirmative action
protection as a Nomadic Tribe (C) or NT(C) with a percentage
reservation of 3.5%. The Dhangad community (and we use this as a
more neutral term rather than caste or tribe because, as the record
shows us, Dhangad is sometimes called a tribe and sometimes a
caste in various parts of the country) is wrapped into a 7% Scheduled
Tribe (“ ST ”) reservation.
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8. Statistically, the absolute numbers, though they may not be
immediately relevant, will tell their own story. The Dhangar NT (C)
population is estimated at about approximately 1.5 crores capita.
This means that the 3.5% reservation as NT (C) is applicable to this
population. If included in the ST reservation (of which the Dhangad
community is a component), that affirmative action benefit
immediately doubles to 7%. This has obvious ramifications in almost
every segment of public life from education to employment and,
importantly for our purposes in 2024, elections.

9. Mr Khambata and Dr Chandrachud have canvassed an
argument that the Presidential Order of 1956 can legitimately be, as
they say, “interpreted” by a Court in exercise of its jurisdiction
under Article 226 of the Constitution of India. To be sure, it is not
open to judicial review. That is not their submission. The argument
is that such a Presidential Order is a special species of legislation. It
cannot admit of ambiguity. It cannot also be left in a state of
uncertainty or in a vacuum. Some meaning must be given to every
entry in such a Presidential Order.

10. The fundamental premise is contested by their opponents.
The lead opposition is by Mr Anturkar. He is joined in his
submission by Dr Warunjikar and Mr Gangal. Their argument is
that except in one extremely exceptional case that lies at the very
margins of our jurisprudence, it is entirely impermissible for a Court
to embark on any such exercise, whether it is termed as
interpretation or otherwise.
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11. Perhaps the most interesting role in all this is that of the State
Government. Over the course of three or four Affidavits, it has said
quite a lot without saying very much at all. This is perhaps the
reason why in oral arguments, Mr Kumbhakoni was persuaded
simply to wish each side ‘the very best of luck’ but was unable to
take an unequivocal position himself.

12. To avoid all controversy, we first proceed to the reliefs in each
application and petition.

13. Writ Petition No 4919 of 2017 by the Maharani Ahilyadevi
Samaj Prabodhan Manch and others seeks the following reliefs:

(a) for a Writ of Mandamus or an appropriate direction
commending the Respondents not to infringe the
Constitutional rights of the Dhangar Tribe which, the
prayer says, “ought to be enshrined in the Presidential
Order on account of error and mistake of facts apparent
on the face of the record” pertaining to the non-
existing Dhangad Tribe in the State of Maharashtra.
This prayer actually encapsulates almost the entirety of
the controversy before us.

(b) The second prayer is in inconsequential because it asks
for a direction to investigate the issue of a non existent
Dhangad Tribe. This will not survive because no
question of an investigation arises whatever the
outcome of the Petition.

(c) The third relief is to decide pending representations of
2015 and 2016. This prayer is now infructuous.
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14. Civil Application No 865 of 2019 by the Tribal Rights
Protection Committee seeks intervention in the Maharani
Ahilyadevi Samaj Prabodhan Manch Writ Petition. The Interim
Application proceeds on the basis that the Writ Petition ought to be
dismissed because the two communities (again using the word
neutrally) Dhangar and Dhangad are indeed distinct. There have
been previous several attempts to conflate the two. This is yet
another attempt in the same direction.

15. Civil Application No 812 of 2019 by the Vanvasi Kalyan
Ashram is also for intervention. It also opposes the claim by the
Maharani Ahilyadevi Samaj Prabodhan Manch.

16. Review Petition (Stamp) No 2210 of 2023 is filed in Civil
Application No 864 of 2019. That Civil Application was by the
Adivasi Samaj Kruti Samiti. This group also opposes the Writ
Petitioner, viz., the Maharani Ahilyadevi Samaj Prabodhan Manch.
Review Petition No 2210 of 2023 is akin to Review Petition No 2211
of 2023 filed by the Tribal Rights Protection Committee in the
Maharani Ahilyadevi Samaj Prabodhan Manch Writ Petition. The
reviews arise in a very interesting set of circumstances.

17. The review sought is of an order of 9th January 2023. To cut a
very long story short, what happened was that the State
Government commissioned the Tata Institute of Social Sciences
(“ TISS ”) to make a report on the existence or non-existence of the
Dhangad community in Maharashtra. That report was made and
was submitted to the State Government. That report was not
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disclosed in these proceedings. Instead, the State Government filed
an Interim Application claiming ‘privilege’ and seeking exemption
from disclosure. In an utterly bizarre turn of events, the Petitioners,
i.e., the Maharani Ahilyadevi Samaj Prabodhan Manch and others
accepted that application for privilege and, without a reasoned order,
the State Government was afforded the relief that it sought, viz., an
exemption from disclosure. What the State Government did
thereafter was even more curious. Having claimed and obtained
exemption from disclosure on the ground of privilege, it then
proceeded in its Affidavits to selectively refer to portions of that
privileged report on Affidavit. This has come in for criticism from
all quarters. The Review Petition thus seeks, on grounds that we are
unable to discern, that the 9th January 2023 consent order granting
privilege should be reversed. We are doing nothing of the kind and
that will be the end of both Review Petitions at the forefront. This is
of course not the only assault on the 9th January 2023 order, but all
will suffer the same fate.

18. Writ Petition No 1694 of 2018 by Ishwar Bapurao Thombare
is one that on various grounds seeks substantially the same relief as
the main Writ Petition by the Maharani Ahilyadevi Samaj
Prabodhan Manch. Here the challenge is to a particular order dated
26th December 2017. The directions sought are to correct the caste
certificate so that the Dhangar entry is read as Dhangad. This
Petition is of course of tangential consequences. The Tribal Rights
Committee has filed Civil Application No 866 of 2019 for
intervention in Ishwar Bapurao Thombare’s Petition, opposing it.
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19. Writ Petition No 1699 of 2018 is by Purushottam Madhukar
Dakhole. Here the Petitioner claims to have been victimised due to
non-issuance of a Dhangad Tribe caste certificate. The prayer is in
relation to an impugned order of 31st March 2017 and seeks the
issuance of a caste certificate of the Dhangad Scheduled Tribe by
correcting what is described as a “spelling mistake”. The Tribal
Rights Protection Committee again opposes this with a Civil
Application No 867 of 2019.

20. This takes us to Writ Petition No 3945 of 2023. This is the
principal Petition argued by Mr Anturkar. Prayer clause (b) of this
Writ Petition seeks an appropriate order to the authorities
concerned to “strictly interpret” Entry No 36 of the Constitution
(Scheduled Tribes) Order 1950 without, and we are now quoting,
“any tinkering, addition, alteration, substitution” and to not treat
the Dhangar community in Maharashtra as covered by Entry No 36
(Dhangad). The next prayer is for an injunction prohibiting the
authorities from treating the Dhangar community as covered by
Entry No 36 which includes the word Dhangad. Then there is a
prayer for disclosure of the TISS report followed by interim reliefs.

21. Public Interest Litigation No 135 of 2018 is by an individual,
one Hemant Patil. His prayer at page 10 of the Petition though
worded as a certiorari is apparently for a mandamus to direct
Respondents Nos 1 to 4, viz., the State of Maharashtra through its
various departments to “take a decision” in respect of reservation of
Dhangar community in the ST category instead of the NT category.
This representation by Patil is of 12th July 2016 and he claims that it
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is in the public interest that be done. The next prayer in the Public
Interest Litigation is somewhat difficult to understand because a
direction is sought to the Respondents to issue caste certificates to
the Dhangar community (generally) in the ST category rather than
the NT category. Nobody questions the locus of Hemant Patil in
seeking such a relief. We have therefore not addressed that aspect of
the matter. We will take the Public Interest Litigation, one that is
tagged with the other matters and is assigned to this Court, on
merits.

22. Thus, the three main contested Petitions are the ones by the
Maharani Ahilyadevi Samaj Prabodhan Manch Petition, the Tribal
Rights Protection Committee Petition and the Public Interest
Litigation.

23. Writ Petition No 2239 of 2023 by the Adivasi Samaj Kruti
Samiti and others is, broadly stated, also apparently in opposition to
the case of the Maharani Ahilyadevi Samaj Prabodhan Manch and
the Public Interest Litigation Petitioner. This is apparent from
prayer clause (d) of Writ Petition No 2239 of 2023 which seeks a
direction prohibiting the Respondents from including the Dhangar
community in Maharashtra as a Scheduled Tribe in the Schedule to
the Constitution (Scheduled Tribes) Order of 1950.

24. The redoubtable Tribal Rights Protection Committee has
filed a Civil Application No 31 of 2019 in the Public Interest
Litigation. Its stand is now known. Interim Application No 18224 of
2022 is in a Rejected Case No 1074 of 2016. This is for restoration of
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a Writ Petition. That may be entirely unnecessary. It is included
here for completeness.

25. We come to the two transferred matters from Aurangabad.
Transfer Matter (Stamp) No 30637 of 2023 is actually a Review
Petition seeking a review of an order dated 27th June 1997 in Writ
Petition No 2086 of 1997. A copy of that judgment is at page 21. It is
1
Govind Nilkanthrao Kukade v State of the Maharashtra
in the case of .
The canvass of this Petition is fully covered by the principal Petition
argued by Mr Khambata. No additional grounds are necessary. If the
main Petition succeeds, then obviously the Review Petition will also
succeed. Similarly, Transferred Matter (Stamp) No 30642 of 2023
by one Rushikesh Vasant Shelke seeks a review of an order of 15th
March 2000 in Writ Petition No 1071 of 1987. A copy of that order
is at page 22. This is in fact the judgment of Prakash Prabhurao
2
Kokane v State of Maharashtra & Ors . This judgment also has been
discussed before us and we will be considering it shortly.

26. Interim Application No 17022 of 2023 in the Shelke Petition
need not detain us much further.

27. Finally, there is Writ Petition No 15423 of 2023 also
transferred from Aurangabad. This seeks a writ against the
Respondents to issue a certificate to the Petitioner, and now this is
exceedingly peculiar, of a Scheduled Tribe called
/kuxj
“Dhangad/Dhangar/ ” community as listed in Sr No 36 of the

1 WP 2086 of 1997, decided on 27th June 1997.
2 2000 SCC OnLine Bom 158.
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Constitution (Scheduled Tribes) Order 1950 as amended in 1976.
The second prayer sought is for a declaration that the inclusion of
Dhangar in the Nomadic Tribe category is unconstitutional as it is
not applicable to persons such as the Petitioner belonging to the
/kuxj
“Dhangad/Dhangar/ ” community.

28. Thus are the battle lines drawn. For convenience, we will
refer to Petitioners in the Maharani Ahilyadevi Samaj Prabodhan
Manch and the PIL Petitioner compendiously as ‘Petitioners’ along
with others who are seeking similar reliefs and to everybody else as
the Respondents.

29. To better appreciate the constitutional underpinnings of the
dispute, we turn first to Articles 341 and 342 of the Constitution of
India. These two Articles are specially placed in Part XVI of the
Constitution. This Part deals with special provisions relating to
certain classes. To put this at the broadest level, Part III of the
Constitution allows the state to take what is often called affirmative
action. Certain communities (again we are using the word neutrally)
are granted special protections, advantages, and entitlements. These
take many forms. The most commonly known is ‘reservation’, but
there may be other manifestations as well. For instance, allowing for
a lower bar of required marks or percentages for passing
examinations, relaxed age limits, and so on. There is a vast body of
learning about reservations that are, as they say, horizontal and
vertical and what happens to the intersectionality of these., That is
not our immediate concern today.
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30. An even broader principle is that to meaningfully afford a
constitutional Part III protection to any particular class, community
or societal segment, it is undoubtedly necessary that the class be
identified. Otherwise, it would be impossible to know to whom these
privileges are to be afforded. This is why Part XVI speaks of ‘special
provisions’ and ‘certain classes’. Article 330 for instance speaks of
reservation of seats for Scheduled Caste and Scheduled Tribes in
the House of the People.

31. Scheduled Castes and Scheduled Tribes are, respectively, the
subjects of Articles 341 and 342 of the Constitution of India. The
two Articles read:
“ 341. Scheduled Castes —
(1) The President may with respect to any State or
Union territory, and where it is a State, after consultation
with the Governor thereof, by public notification, specify
the castes, races or tribes or parts of or groups within
castes, races or tribes which shall for the purposes of
this Constitution be deemed to be Scheduled Castes in
relation to that State or Union territory, as the case may
be .
(2) Parliament may by law include in or exclude from
the list of Scheduled Castes specified in a notification
issued under clause (1) any caste, race or tribe or part of
or group within any caste, race or tribe, but save as
aforesaid a notification issued under the said clause
shall not be varied by any subsequent notification .
342. Scheduled Tribes —
(1) The President may with respect to any State or
Union territory, and where it is a State, after
consultation with the Governor, thereof, by public
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notification, specify the tribes or tribal communities or
parts of or groups within tribes or tribal communities
which shall for the purposes of this Constitution be
deemed to be Scheduled Tribes in relation to that State or
Union territory, as the case may be.
(2) Parliament may by law include in or exclude from
the list of Scheduled Tribes specified in a notification
issued under clause (1) any tribe or tribal community or
part of or group within any tribe or tribal community,
but save as aforesaid a notification issued under the said
clause shall not be varied by any subsequent
notification .
( Emphasis added )

32. There is also Article 342-A added in 2018 by the 102nd
Amendment to the Constitution. That will not concern us.

33. Any reading of Articles 341 and 342 of the Constitution
reveals two fundamental precepts. The first is that the legislative
power is vested exclusively in the President. No other entity has the
Constitutional power to make any such list. The second is that it is
only Parliament that can include or exclude an entry from the
Presidential list.

34. But let us consider for the moment the nature of this
legislation under Articles 341 and 342. That there is a consultative
process with the State or the Union Territory and consultation with
the Governor is not contentious. That a public notification is
required is equally beyond controversy. But the notification that is
spoken of will, under Article 341, specify the caste, races or tribes or
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parts of groups within caste races or tribes; and these for the
purposes of the Constitution of India are to be Scheduled Castes in
relation to that State or Union Territory. Articles 341(2) then says
that Parliament may by law include or exclude from this list of
Scheduled Castes, i.e., the one specified in Notification under
Article 341(1), any caste, race or tribe or part of or group within
caste, race, or tribe. But the important words are, that except as
aforesaid, that Notification by the President cannot be varied by any
subsequent Notification. Identical provisions are made for
Scheduled Tribes in Article 342.

35. These are, by their very nature, an extremely unusual species
of legislation. That it is legislation is not in doubt. But most
legislations will, of necessity, prescribe obligations, duties, rights,
offences, punishments, and so on. Such everyday legislations do not
necessarily confine themselves to a factual scenario as currently
exists but endeavour to regulate and control societal actions for the
present and in future. These legislations range across a range of
fields from crime to corporate securities law to motor vehicles and
almost everything in between.

36. The legislation under Articles 341 and 342 is not prescriptive
of permissible actions, obligations, or duties. What the Presidential
Notification or Order does is to state a factual situation as it stands on
that date . It is for this reason that the Presidential Order has a
consultative provision. There is embedded within the Articles the
incontrovertible position that the Presidential Notification or Order
sets out what, according to that Order was the precise factual
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situation regarding caste, race, tribes, or groups as on the date of
that Order. This is not a matter of defining societal entitlements
and obligations. It is a matter of defining and stating what exists.
Consequently, there is no question of a Presidential Order under
Articles 341 or 342 being susceptible to any form of judicial review
or being assessed against Article 14 or having its vires challenged.
There is simply no vires to challenge. They never can be. There is
no question of arbitrariness, proportionality, fairness in action or
anything of the kind regarding a Presidential Order under Articles
341 or 342. It is, very peculiarly, a non-prescriptive law that simply
states an existing position.

37. We are concerned first here with the Constitution (Scheduled
Tribes) Order of 6th September 1950. In the Ahilyadevi Petition,
there is a passing reference to this 1950 Presidential Order. In the
Petition that was filed by the Tribal Rights Protection Committee, a
copy of this Order is at page 66. Typically, the Order runs into
several pages and has different parts. At that time, the State of
Maharashtra had not yet been formed and there was the far more
expansive State of Bombay. The Order lists tribes, area by area.

38. Mr Khambata for the Petitioner puts the case like this. On
29th October 1956 there was a Notification called the ‘Scheduled
Castes and Scheduled Tribes Lists (Modification) Order 1956’. This
was just about the time or just after the States Reorganisation Act of
1956. Parliament modified the Constitution (Scheduled Castes)
Order 1950 to the extent specified in Schedule I of the 1956
Modification Order. This Notification has not only several
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schedules but several parts in every schedule with geographical
distributions. At page 338, as part of Schedule III and specifically in
Part IV we find entries for the erstwhile State of Bombay. The first
entry states that it is applicable throughout the State of Bombay
except certain districts such as Buldhana, Akola, Amravati,
Yavatmal, Wardha, Nagpur, Bhandara, Chanda, Aurangabad,
Parbhani, Nanded, Beed, Osmanabad, Madhya Saurashtra and so
on. Then, the entry in Sr No 7 is in regard to the Melghat Tehsil of
Amravati District, Gadchiroli and Sironcha Tehsils of Chanda
District and the Kelapur, Wani and Yavatmal Tahsils of Yavatmal
District. There are sub-entries 1 to 31. Entry 27 says “ Oraon
including Dhanka or Dhangad ”.

39. Mr Khambata’s next port of call is several decades later. It is
the Scheduled Caste and Scheduled Tribes Order (Amendment)
Act of 1976. This again had similar Schedules. By this time, the
State of Maharashtra had been formed and Part IX of the Second
Schedule to the 1976 Order dealt with the now-formed State of
Maharashtra. Item 36 of this part had the following entry: “ Oraon,
Dhangad ”.

40. What is the Petitioners’ case? It is simply this: that from 1950
through 1956 and to 1976, there was in what is now the State of
Maharashtra, not a single Dhangad . There were only Dhangars.
There is one solitary family of which the Petitioners are obviously
acutely aware. This is the Khillare family (and some associates of
that Khillare family) all of whom obtained certificates as Dhangads
but which they have now disavowed. We will turn to that disavowal
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shortly. It will prove to be pivotal. But, and this is the jurisprudential
point, the submission by Mr Khambata and Dr Chandrachud is that
if there was never a single Dhangad in the Presidential Orders or the
amending notifications, that is to say, statistically and factually there
was not a single person who was a Dhangad, then the Presidential
Order by this very nature would remain an empty vessel, something
in vacuo , referring to a nothingness. That, they submit, is impossible
and no Writ Court could ever countenance legislation under
Articles 341 or 342 being even in the slightest part an emptiness. In
that situation, Mr Khambata submits, it is not only permissible, but
it is indeed the duty of the Writ Court to step in and to, as it were,
fill the void so that the Presidential Order receives its legitimate
meaning and weight.

41. Mr Khambata states that this is by no means the first time
that the judiciary has encountered such a problem. There is a direct
answer for such a situation, he submits, and we should find this in
the Constitutional five Judge Bench decision of the Supreme Court
itself in the celebrated case of B Basavalingappa v D Munichinnappa
3
& Ors. This decision is crucial to an assessment of Mr Khambata’s
case. We must ensure that there is no misunderstanding about the
circumstances in which this case came to the Supreme Court or the
considerations on which it is came to be decided in the manner in
which it was decided.

42. We say this because it is common ground between the two
sides that the kind of enquiry that Mr Khambata proposes is only

3 AIR 1965 SC 1269 : (1965) 1 SCR 316 : 1964 SCC OnLine SC 68.
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permissible if the class is indeed zero, i.e., if there is no member of
the class covered by the entry. To put it more specifically, Mr
Khambata has, as it were, a foot in the jurisprudential door if he is
able to show — and only if he is able to show — that there did not
exist a single Dhangad at the time when the first Dhangad entry
came to be made by the legislation in question; and that this position
is undisputed. A single entry to the contrary, i.e., anything which
would render it a non-zero class, would put the Petitioners out of
Court.

43. Why would this be so? After all, it is perfectly legitimate to
ask that a Court or some authority should surely be able to identify
precisely which community was or was not included in a
Presidential Order. The reason this is not permissible, apart from
pronouncements of the Supreme Court, is suggested by Articles 341
and 342 themselves, because they limit the power to include or
exclude communities by amendment solely to Parliament. As we
have seen every single amendment is Parliamentary. Only
Parliament has this right and sub-Article (2) of Articles 341 and 342
both make this abundantly clear. The structure therefore is that the
Presidential Order sets out a non-prescriptive factual scenario
regarding castes, tribes, races and groups and it is only Parliament
that has the sovereign, non-justiciable power to include or exclude
castes, tribes, etc., from this list.

44. Basavalingappa came before a Constitution Bench of the
Supreme Court in exceedingly peculiar circumstances. Some of
these will parallel the discussion before us today. But it requires to
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be understood in context. Basavalingappa came up to the Supreme
Court as an appeal by special leave against a judgment of the Mysore
High Court in an election matter. That election was to the Bangalore
South (Scheduled Castes) Constituency in February 1962. Four
persons contested the election including the appellant,
Basavalingappa, and the 1st respondent, Munichinnappa.
Munichinnappa was declared elected having obtained the highest
number of votes. Basavalingappa filed an election petition
challenging Munichinnappa’s election on diverse grounds. Before
the Supreme Court only one ground was canvassed: that
Munichinnappa was not a member of any of the Scheduled Castes
mentioned in the Constitution (Scheduled Castes) Order 1950,
which is, as we have seen, the principal originating order.
Munichinnappa said that he belonged to a Scheduled Caste listed in
the Presidential Order as ‘Bhovi’. Basavalingappa disagreed. He said
that Munichinnappa was a Voddar by caste, and Voddar was not a
Scheduled Caste specified in the 1950 Order. Consequently,
Munichinnappa was not eligible to stand for election from a
Scheduled Caste constituency. The Election Tribunal held that
Bhovi was a sub-caste within the Voddars but that only the sub-caste
was included in the 1950 Presidential Order and not the entirety of
the Voddar Caste. But the Tribunal also held that Munichinnappa
did not in fact belong to the sub-caste of Bhovi. He was therefore
held to be ineligible to offer himself for election from the Scheduled
Caste Constituency. The Election Tribunal set aside the election
and ordered a re-election. Munichinnappa appealed to the Mysore
High Court. He claimed that he belonged to Scheduled Caste Bhovi
mentioned in the Order and was therefore not ineligible. The High
Court held that although the Voddar caste as such not included in
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the 1950 Presidential Order, having regard to the facts and
circumstances in existence of the time when the Order was passed,
the Bhovi caste mentioned was none other than the Voddar caste . In
other words, the Mysore High Court examined the ambit of the
entry. On that basis, the High Court allowed Munichinnappa’s
appeal. It held that being a Voddar he “must be held” to be a
member of the Bhovi caste. It dismissed the Election Petition.
Basavalingappa obtained special leave and that is how the matter
came before the Supreme Court.

45. Paragraph 3 of the decision notes the main contention on
behalf of Basavalingappa. It ran like this: That a person was only
entitled to offer himself election from the Scheduled Caste
Constituency if he was a member of the caste specified in the
Presidential Order. It was not open to anyone to say that, though not
a member of a caste specified in the Order, he was a member of
some other caste, and that other caste was included in the castes
mentioned or specified in the Presidential Order. The submission
went on that where a caste had more than one name, the
Presidential Order specified the other names in brackets. Even
where there were multiple spellings, various spellings were
included. Since the caste Bhovi did not mention the caste Voddar in
brackets, the Election Tribunal could not have taken evidence to test
whether the Voddar caste was subsumed within or was none other
than the Bhovi caste. Basavalingappa therefore said that the High
Court was in error in looking into evidence that was led before the
Election Tribunal and then concluding that the Bhovi caste
mentioned in the Order was “meant for the caste Voddar”. That
evidence ought not to have been allowed by the Election Tribunal in
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the first place. Had that evidence been excluded, Munichinnappa —
a Voddar by caste — would have been rendered ineligible since
Voddar was not mentioned in the 1950 Order.

46. The judgment then analysed Article 341 (since the issue
related to a caste, not a tribe). The Supreme Court held that the
object of Article 341(1) was obviously to avoid all disputes as to
whether a particular caste was or was not a Scheduled Caste. Only
those castes notified in the Presidential Order could be said to be
Scheduled Castes. Sub-Article (2) then gave power to Parliament to
include or exclude any caste, race or tribe or part of or group within
any such caste, race or tribe in or from the list in the Presidential
Order. Parliament thus had the power to modify the Presidential
Order’s listing — but only Parliament had that power. Further, the
Supreme Court explained, a Presidential Order could not be varied
by any subsequent notification except by a permissible
Parliamentary modification. Subject to this legislative power of
Parliament, the Presidential Order, once issued, was final.

47. The Supreme Court clearly held that Article 341 provides for
a Presidential notification and for its finality except when altered by
Parliament in law. This was Basavalingappa’s submission: that the
notification once made was final. It could not be revised even by the
President. It could only be modified by Parliament by inclusion or
exclusion. It was therefore contended that the Tribunal was entirely
in error in letting in evidence to show that the Voddar caste was the
same as the Bhovi caste, only the latter being mentioned in the
Order and not the former; and the High Court was equally in error
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when it proceeded on that evidence to hold that the two were the
same.

48. We note for our purposes that there is no material distinction
between Articles 341 and 342 although Article 341 when it speaks of
Scheduled Castes also has a reference to a specification of the
castes, races, tribes, or parts of these. Article 342 is a reference to
tribes or tribal communities. The general principle however
remains.

49. This brings us to the fulcrum of the Basavalingappa decision
in paragraphs 6 and 7 of the AIR report. The Supreme Court said in
paragraph 6 in the clearest possible terms that:
“ 6. It may be accepted that it is not open to make any
modification in the Order by producing evidence to
show (for example) that though caste A alone is
mentioned in the Order, caste B is also a part of caste A
and, therefore, must be deemed to be included in caste
A . It may also be accepted that wherever one caste has
another name it has been mentioned in brackets after it in
the Order: [See Aray (Mala), Dakkal (Dokkalwar) etc.]
Therefore, generally speaking, it would not be open to
any person to lead evidence to establish that caste B (in
the example quoted above) is part of caste A notified in
the Order. Ordinarily , therefore, it would not have been
open in the present case to give evidence that the
Voddar caste was the same as the Bhovi caste specified
in the Order for Voddar caste is not mentioned in
brackets after the Bhovi caste in the Order. ”
( Emphasis added )
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50. As the emphasized portion shows, the two propositions
accepted by the Supreme Court cannot lend themselves to further
discourse. The Supreme Court set out the general proposition that
it is not open to any person to lead evidence that caste (or tribe) B is
part of caste (or tribe) A notified in the Order. It is for this reason
that the Supreme Court said that ordinarily it would not have been
open to give evidence that the Voddar caste was the same as the
Bhovi caste specified in the Order because Voddar was not
mentioned in brackets after the Bhovi caste in the Order.

51. As a thought experiment, let us substitute the word Bhovi
with Dhangad and Voddar with Dhangar . The result from the
Supreme Court decision in Basavalinggappa is clear: it would not be
possible to examine evidence to show that the two are the same.

52. But this immediately raised a logical problem. For there was
one remaining possibility. Certainly, it was an outlier of a possibility,
but it had to be addressed anyway. What would happen if there was no
caste known as Bhovi at all? In other words: the only caste mentioned
in the Presidential Order was literally a reference to nothing and to
no one. In that situation (but only in that situation), was the taking
of evidence possible?

53. It is to this that the Supreme Court directed its attention in
paragraph 7 of Basavalingappa . It said that general observations in
paragraph 6 did not and could not conclude the matter in the
peculiar circumstances of the case before it. What were those
peculiar circumstances? The Supreme Court explained:
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“ The difficulty in the present case arises from the fact
(which was not disputed before the High Court) that in
the Mysore State as it was before the re-organisation of
1956 there was no caste known as Bhovi at all. ”
( Emphasis added )

54. This passage now sets out an exceedingly unique situation.
These are the “peculiar” circumstances. First , that there was no
caste known as Bhovi at all . A parallel to our case, for example,
would be that there is no tribe or community known as Dhangad at all
(which is the Petitioners’ construct). Second , that this zero-member
situation existed before the States Reorganisation Act of 1956. The
Supreme Court said in paragraph 7 that the Order refers to a
Scheduled Caste known as Bhovi in Mysore State as it was before
1956 . Consequently, it would have to be accepted that there was
some caste that the President intended to include (after consultation,
etc) when the Order mentioned the caste Bhovi as a Scheduled
Caste. The Supreme Caste specifically said that it could not be
accepted that the President included the caste Bhovi although there was no
such caste at all in the State of Mysore as it existed before the States
Reorganisation Act 1956 . In the same paragraph, the Supreme Court
noted that it was undisputed that there was indeed no caste
specifically known as Bhovi in the Mysore State before 1956 .
Therefore, the Supreme Court said, the only course open to courts
was to ‘find out’ which caste the ‘entry Bhovi was intended to refer
to’ and this could only be done by taking evidence.

55. To put this beyond the realm of all controversy, the Supreme
Court noted in paragraph 7:
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“ If there was a caste known as Bhovi as such in Mysore
State as it existed before 1956 evidence could not be
given to prove that any other caste was included in the
Bhovi caste but when the undisputed fact is that there
was no caste specifically known as Bhovi in the Mysore
State as it existed before 1956 and one finds a caste
mentioned as Bhovi in the order one has to determine
which was the caste which was meant by that word on
its inclusion in the Order .”
( Emphasis added )

56. The Supreme Court stated that this was the peculiar
circumstance which necessitated the taking of evidence to
determine which was the caste which was meant by the word Bhovi
used in the Order when no caste was specifically known as Bhovi in
the Mysore State before its Reorganisation of 1956. Consequently,
and after a further discussion, the Supreme Court dismissed
Basavalingappa’s appeal.

57. For our purposes, the task before the Petitioners is clearly to
show that their case lies within the limited confines of
Basavalingappa . To make this abundantly clear, what must the
Petitioners show? It is this: that as on date of the Presidential Order
there was no community known as Dhangad at the time of the
Presidential Order or the Amendment Order of 1956; in other
words, that at least in the context of what is now the State of
Maharashtra, that class from 1956 was a zero-member class. Only in
those circumstances could a court enquire into the legislative intent
behind the Presidential Order (without undertaking any form of
judicial review).
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58. Our discussion on Basavalingappa ends here; on the rest of it,
there is the discussion of the evidence, the Supreme Court having
held that it is in peculiar facts that evidence was indeed permissible.

59. How do the Petitioners go about establishing this? There is,
as we shall presently see, and based on a very useful summary
prepared by Dr Warunjikar, sufficient case law to indicate that
arguments about the synonymity of words in a Presidential Order
cannot be examined by a Writ Court. That part of the law is also not
contentious. We can only express our profound admiration for the
nimble footedness with which Mr Khambata sidesteps this by saying
that he is not dealing with ‘synonymity’ but only a matter of
pronunciation , or something that is lost if not in translation, then
possibly in transliteration. But, as Mr Anturkar says, forensic
dexterity and linguistic felicity apart, there is no substance to this
submission, for it really amounts to saying that Dhangar and
Dhangad are one and the same — and the reference to the latter was
‘intended’ (on evidence) to be a reference to the former. Many of
the prayers we have set out above show that Mr Anturkar is correct,
and that this is precisely the canvass of those who support the
principal Petitioners.

60. There is before us an enormous amount of historical material.
It is on both sides. We have repeatedly been invited by both sides to
delve into this material. But that is precisely the course of action
that seems to us to be prohibited unless the Basavalingappa test is
first met. Only if the Petitioners pass through the Basavalingappa
door can we possibly enter into an examination of the relative weight
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and merits of contesting material including anthropological studies,
old treatises, technical and scientific data and so on. The Petitioners
must establish that they have the right to lead such evidence. That
right must flow from their being able to establish that, in fact, there is
not and at the relevant time never was even a single member of the
Dhangad community , that being the entry in the Presidential Order
and in the Amendment Order of 1956.

61. We note also for completeness Mr Khambata’s other
argument which goes “respondents, respondents everywhere but
not a Dhangad among them.” That is hardly a reason to allow the
Petitioners through this jurisprudential portal.

62. What the Petitioners then do is to turn to the Affidavits filed
by the State Government. There are altogether three such
Affidavits. Both sides have roundly criticized these Affidavits. We
reserve further comment. The sum and substance of these
Affidavits, and we are not concerned with what impelled the
fashioning of these Affidavits in this manner, is that ‘there is not a
single noted instance of a Dhangad in the State of Maharashtra’. We
have put this as compactly as possible because any other discussion
would lead us into directions we cannot go. There is a reference to,
for example, a response to an RTI query of 2010 where the Public
Information Officer of the Scheduled Tribes Certificate Scrutiny
Committee Nagpur said that the Scheduled Tribes Certificate
Scrutiny Committee Nagpur has not validated nor issued any
validity certificate to a Dhangad Tribe candidate until today. This is
read with a 5th May 2010 communication also from the Public
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Information Office and Research Officer of the Scheduled Tribes
Certificate Scrutiny Committee saying that from 2001 to December
2009 the Scheduled Tribes Caste Scrutiny Committee Nashik did
not validate or issue any Validity Certificate to the Dhangad Tribe.
At pages 478/526 is yet another communication, this time from the
Scheduled Tribes Scrutiny Committee Thane’s Information Officer.
It is of 21st April 2010, and it says that the Dhangad Tribe is not
within the jurisdiction of that community.

63. It is with the Government’s assertion of a zero-member class
of Dhangad that we turn to averments in the Affidavit in Rejoinder
filed in the Maharani Ahilyadevi Samaj Prabodhan Manch Petition.
At page 512 in paragraph 3C is the assertion that the Dhangad Tribe
does not exist in the State of Maharashtra and hence the
“substitution” of Dhangar for Dhangad ought to be done in the
Presidential Order. It mentions that the population of the Dhangars
is around 1.5 crores. There is an averment in sub-paragraph (D) that
there is no categorical assertion about the existence or non existence
of the Dhangar Tribe by the 7th Respondent, and then there is a
reference to the information collected under the RTI Act.

64. But this takes us to one particular family. This is the Khillare
family. In a separate compilation of documents of the Khillare
family, seven persons have filed Affidavits. These Affidavits are
most interesting. We will take one of them. It is by one Bhausaheb
Namdeo Khillare from District Aurangabad. He says in paragraph 1
that there are many Khillare families who reside in his village. All
are from the Dhangar community. There is a family tree or a
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genealogy showing legal heirs. In parts of this tabulation, the claim
is that the individuals are Dhangars with an “R”, i.e., in the NT(C)
category. But there are also entries here that show that individuals
have obtained validity certificates as Dhangad . Paragraph 3 of this
Affidavit then asserts that all Khillare family members going back
three generations used to stay in the same village. They had
common farmland. Their main occupation is farming and goat-
herding. It is then claimed that at the time of the deponent’s
father’s education and admission into school, the deponent’s
grandfather was illiterate. He mentioned the caste as Dhangad . This
was prior to 1950. When Bhausaheb’s father admitted Bhausaheb to
a primary school in the village, Bhausaheb’s father put Bhausaheb’s
caste as Dhangad in the school records. Bhausaheb says he was
‘under the impression’ that Dhangar and Dhangad are ‘one and the
same’. Therefore, he applied for a Scheduled Tribe Certificate to the
authority in question. He received such a certificate on 26th
November 1985. He has annexed a copy of that certificate.

65. But his story does not end there. Bhausaheb then applied for a
caste validity certificate of none other than the Dhangad Tribe to the
Scheduled Tribe Certificate Scrutiny Committee, Nashik Division.
He was granted this certificate of validity on 22nd January 2001 by
the Scheduled Tribe Scrutiny Committee, Nashik Division. That is
annexed as Exhibit “2”. In paragraph 6, he says that his is by no
means a solitary case. Other members of his family may also have
obtained such validity certificates, and they may indeed have done
so using Bhausaheb’s own validity certificate.
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66. Paragraph 7 then says that Bhausaheb was under the “strong”
(not wrong) impression that Dhangad and Dhangar are one and the
same; that there is a spelling mistake in the two words. Therefore,
on the basis of Bhausaheb’s father’s school certificate, he obtained a
Scheduled Tribe certificate and then a certificate of validity.

67. Finally, he says that he belongs to the Dhangar community
and that his grandfather who was illiterate erroneously mentioned
his father’s caste as Dhangad, and that his father also mentioned
Bhausaheb’s own caste as Dhangad, all being under the same
‘strong’ impression. He claims that this is true too of all his
brothers. In fact, he goes on to say that all Khillare family members
are from the Dhangar community. He says he has executed this
Affidavit (in March 2023) of his own free will and without coercion,
duress, or fraud.

68. There are almost identical Affidavits by other family
members.

69. These Affidavits raise more questions than they answer, and
this is putting it mildly. Some things are noteworthy about these
March 2023 Affidavits. As we have seen, these Petitions have been
pending since 2017. The Khillare Affidavits and disavowals did not
come for another six years. What is interesting about these
Affidavits is not what they disclaim, but what they fail to disclaim.
One of Mr Anturkar’s arguments is that the validity certificates
were granted to the Khillares based on documents that are part of
this Court’s records and all of which are prior to or
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contemporaneous with 1950/1956. These documents are not
disclaimed or disavowed in the Affidavits that the Khillares have
filed. They are there in the compilation prepared by Mr Anturkar in
the Tribal Rights Protection Commission Petition. Specifically, Mr
Anturkar points to the documents in Volume II of the multi-part
compilation presented by Mr Anturkar. Let us consider just three of
these documents. Not all of them are in the best condition. Page 367
of DecembeDecemberme II shows a sch
eavingving certificate in the
name of Namdeo Tanaji Khillare. The entire document is in
Devnagari but the second entry says Dhangad (Hindu). This is not
the only document. Page 369 is another document. A typed copy is
at page 370. It i
eavinh
eavingving certificate of 6th May 1955. The
entry here is Dhangad (Bhartiya). Then at page 400, we find a
vigilance report. We unfortunately do not have a typed copy of this.
It is of 17th August 2001 in the context of an application for a
validity certificate and it is one that examines the much older,
vintage supporting documents. This vigilance report is in respect of
a validity claim in regard to a Subhash Namdeo Khillare. It notes the
entries of Dhangad.

70. The Khillare story is, therefore, that all of them had
documents showing their community as Dhangad . Some documents
pre-date the Constitution and evidently the Presidential Order.
They obtained caste certificates on this basis. They also sought and
obtained caste validity certificates. Now, in late 2023, they disclaim
all this and say they were never Dhangads. They ‘strongly believed’
that they were Dhangars and equally ‘strongly’ believed that the two
were the same. In other words, despite their having obtained these
certificates — and presumably benefits based on these certificates
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— they now claim that all this that was done at their instance and on
their applications was wrong, can be disclaimed and disavowed, that
their certificates should read Dhangar, and that Dhangar should be
treated as Dhangad. Why are they doing this? The answer is plain:
to empty the Dhangad class, and to turn it into a zero-member class
so that the Basavalingappa zero-member solitary exception test is
met. For, if there is even a single Dhangad at the time of the
Presidential Order, the Petitions must fail.

71. What is the answer to all this material from Mr Anturkar?
How do the Petitioners deal with these documents, some of great
antiquity? The answer from Mr Khambata was that these
documents of 1952, 1953 and the vigilance report of 2001 have all
been now found to be ‘defective, forged, bogus and overwritten’. But
when was this discovery? Mr Khambata took us to a supplementary
compilation. The compilation mentions a show cause notice issued
by the Scrutiny Committee, Aurangabad to Subhash Khillare and an
order in Sachin Palhal’s case, with replies by Khillare and an
Affidavit of Ashok Palhal.

72. This compilation is less than impressive. There is now
apparently a second vigilance report, but this is of 5th December
2023 even while hearings were going on before us. The allegation
now is that the school leaving certificates of the 1950s are apparently
in ‘different ink’ with ‘overwriting’. In regard to Palhal at page 51 of
this compilation, there is a reference to Laxman Rangnath Palhal
ßMÞ
saying that the ‘Dhangad’ word is in different ink. The letter is
allegedly overwritten. We can hardly treat this finding as conclusive.
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We note for example that there is in this revised compilation and
this subsequent latter-day epiphany by the authorities some attempt
ßjÞ
to say that school entries are overwritten and that a has been
ßMÞ
changed to a . That makes no sense whatsoever. It is not even
Khillare’s case in the Affidavits that he filed in March 2023 that
anybody tampered with those school leaving documents. In fact,
those very documents were relied on in support of the claim for
validity. The photocopies that are shown to us (for example page
397) do not in our view show unequivocally that there was any such
overwriting. We are not required to return a finding on this. Our
court has conclusively held that these validity committees do not
have inherent powers of review; that absent a specific conferment of
a review power, these validity scrutiny committees are not entitled
4
to reopen issues long settled.

73. What does this tell us? It means that these grounds of review
and these actions by the scrutiny committee are, following the
decision of the Division Bench, completely without legal basis. It is
not possible to accept as the unvarnished position that the 1952 and
1953 documents have been tampered with. Since then and until
today, nobody ever suggested this. Those who obtained benefit
never said this. That they obtained benefit is not in dispute. It is
only now, well after these Petitions were filed, that these disavowals
come to be made — and they are made for one solitary purpose,
viz., to empty the jurisprudential bucket and turn the Dhangad into
a zero-member class to meet the Basavalingappa test.

4 Bharat Nagu Garud v State of Maharashtra & Ors , and connected
matters, 2023 SCC OnLine Bom 2537, per GS Kulkarni J.
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74. Clearly, this poses possibly the single biggest problem for the
Petitioners. It means that the class of Dhangad in 1956 was not a
zero-member class, even on the material that is before us today.
Later disavowals are infinitely problematic. They would mean that
on the basis of some caste scrutiny committee’s impermissible
review jurisdiction the entire Presidential Order and every entry in it
would be open to reinterpretation and re-examination 75 years down
the road. We do not think Basavalingappa contemplated any such
situation at all.

75. This is one aspect of the matter. A different argument is
whether the kind of inquiry that Mr Khambata proposes is at all
permissible on the Basavalingappa frame.

76. There is another aspect and it has a direct linkage to the
Supreme Court decision in Basavalingappa . As we noted, the
Basavalingappa decision mentioned the States Reorganisation Act
1956 in regard to State of Mysore. The present Petitions however
have proceeded on the basis of the 6th September 1950 Presidential
Order, then the 25th September 1956 Scheduled Caste and
Scheduled Tribe (Amendment) Act and then jumped directly to the
1976 Amendment Act. But there are certain intervening factors that
must be noted. These equally apply to the factual aspects of the
matter, namely, whether it can safely or fairly be said that the
Dhangad entry in 1950 or in 1956 was indubitably and without
dispute a zero-member class.
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77. Part III of the 6th September 1950 Presidential Order dealt
with the State of Bombay as it then existed. There was no entry for
either Oraon or Dhangad in 1950 for the State of Bombay. Part IV
dealt with the then State of Madhya Pradesh. In particular, it dealt
with Melghat Taluka of Amravati District and the Sironcha and
Gadchiroli Tehsils of Chanda District. Entry 26 in Part IV for the
then State of Madhya Pradesh was Oraon .

78. Following this, on 30th March 1955, came the report of what
is known as the Kaka Kalelkar Commission, the Backward Classes
Commission, with its recommendations. For the State of Bombay in
the category of Other Backward Classes at Sr No 82 was the entry of
Dhangar said to be traditionally cattle herders, cultivators, forest
labourers and sheep rearing people. For Madhya Pradesh, the
recommendation in Sr No 26 was of an existing list excluding
localities and it mentioned Oraon and that throughout the State of
Madhya Pradesh the sub-tribes of Oraon were Dhanka and Dhangad .

79. Then came the States Reorganisation Act of 31st August
1956. The appointed date was 1st November 1956. Section 8 had the
formation of a new State of Bombay. It comprised inter alia the
territories of Buldhana, Akola, Amravati, Yavatmal, Wardha,
Nagpur, Bhandara and Chanda Districts, which were till then in the
State of Madhya Pradesh. Correspondingly, Section 9 said that the
new State of Madhya Pradesh on the reorganisation would include
the territories of the existing State of Madhya Pradesh except those
mentioned in Section 8(1)(c), namely the districts we have
mentioned above.
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80. This was 31st August 1956. About a month later, on 25th
September 1956 there came the Scheduled Castes and Scheduled
Tribes Orders (Amendment) Act of 1956. Part III dealt with the
State of Bombay. Part IV dealt with the State of Madhya Pradesh. It
mentioned for the territories of Melghat Tehsil of Amravati district
and Gadchiroli and Sironcha Tehsils of Chandar Districts and also
the Kelapur, Wani and Yavatmal Tehsils of Yavatmal District in
entry 26 ‘Oraon including Dhanka and Dhangad’. There was no
entry in Part III of either Oraon or Dhangad for the State of Bombay.
On 19th October 1956, there came the Constitution (Seventh
Amendment) Act 1956. Article 1 was amended, and the States and
territories were specified as further first set out in the schedule.
This included the territories of Bombay as specified in Section 8(1)
of the States Reorganisation Act 1956 and for Madhya Pradesh those
in Section 9(1).

81. It is after this that there came the 29th October 1956
Scheduled Caste and Scheduled Tribe Lists (Modification) Order of
1956 under Section 41 of the States Reorganisation Act. Schedule III
of this Modification Order substituted paragraph 3 of the 1950
Presidential Order. It said that any reference to the Order or to a
State or District or other territorial division would be construed as
constituted from 1st November 1956, i.e., from the appointed date of
the States Reorganisation Act. Now the Schedule in Part IV had
Entry 7. This meant that Melghat Tehsil of Amravati, Gadchiroli
and Sironcha Tehsils of Chanda Districts and Kelapur Wani and
Yavatmal Tehsils of Yavatmal District were now included in the
State of Bombay. Entry 27 of the 29th October 1956Modification
Order now had an entry for Oraon including Dhanka and Dhangad.
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1st November 1956 was the date on which the States Reorganisation
Act came into force.

82. Leaving aside the subsequent creation in 1962 of the State of
Maharashtra, what this tells us is that there were districts in Madhya
Pradesh that on account of the States Reorganisation Act 1956 came
to be taken out of Madhya Pradesh and included in the State of
Bombay. At that time, that is to say between August 1956 and before
29th October 1956, the entries of Oraon and Dhangad existed in the
very districts in Madhya Pradesh that were being brought into the
State of Bombay.

83. Necessarily and logically, this would mean that any Dhangads
in those Madhya Pradesh districts would therefore automatically
become Dhangads in the reconstituted or reorganised State of
Bombay.

84. Nobody has ever challenged the entries in relation to Madhya
Pradesh in regard to Oraon or Dhangad or suggested that those
entries were an empty class. That is not a presumption or an
assumption that we can make. The mistake in the Petitioners’ entire
argument is to move directly from 6th September 1950 to 29th
October 1956 without taking into account the geographical
delimitation and reorganisation of the states by which certain
districts in the erstwhile State of Madhya Pradesh were absorbed
into and made part of the State of Bombay. Logically it would follow,
therefore, that if there were indeed any Dhangads in Madhya
Pradesh (and this is not under challenge before us at the cost of
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repetition), then what we began to call during arguments these
‘Madhya Pradeshi Dhangads’ would necessarily become ‘Bombay
Dhangads’.

85. This is important because as we have seen there was a three-
fold basis for the Supreme Court decision in Basavalingappa . First ,
that there was no caste such as Bhovi at all; second , that this was
undisputed; and third , this was pegged to the situation as it existed
before the States Reorganisation Act of 1956.

86. The differentiation in our case is clearly that there is very
much a dispute about whether Dhangad was a non-existent
community prior to the States Reorganisation Act 1956 and, in any
event, before the 29th October 1956 Scheduled Caste and Scheduled
Tribe Lists (Modification) Order.

87. What the Petitioners apparently ask us to do is to conflate the
concepts of the State of Bombay in 1950 with the then State of
Bombay after the States Reorganisation Act and both with the State
of Maharashtra as it stands today. That is an exceedingly difficult
proposition to accept. Those boundaries have in fact altered over
time, not once but twice. We are concerned with the first of these
delimitations in 1956.

88. In the course of arguments, there was a mention that the
record shows that there was only one claimant, and that this
claimant was nowhere near the north western parts of Maharashtra
which would have come to it from Madhya Pradesh but was in the
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Aurangabad area and that too was finally found to be an Oraon. That
will not carry the Petitioners’ case much further given what is before
us.

89. As a result, on these two determinants running in parallel,
viz., the entire Khillare family disavowing their tribe claims and
doing so very recently in 2023, and the failure to explain the
consequence of the States Reorganisation Act, it is not possible to
hold that this case meets the Basavalingappa test of an undisputed
zero-member class prior to the States Reorganization Act.

90. Instead, what we have been asked to do is to take evidence
whether the class was empty or not; or worse, yet, whether it should
now be deemed or held to have been empty in 1950 or just prior to
1956. That is not an endeavour that is permissible in our reading of
the decision in Basavalingappa .

91. On an objective understanding, Mr Khambata’s argument
really is that if the Presidential Order mentions a tribe but there is
not a single tribal, the Court is surely not helpless. We are being
asked to ‘construe’ an entry not to include or exclude it; we must
find the tribe which is, in his words, ‘most likely to have been the
reference intended in the Presidential Order’. Absolute numbers
may not be dispositive, but it is certainly true that the existence of
even a single element in the Dhangad community would render the
class non-empty.
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92. Mr Khambata was at some pains to take us through various
entries for Bihar and other areas and to say this was not a question
of transliteration. There was also a reference to the 1976
Amendment Act which mentioned “Oraon, Dhangad” and the
suggestion was the differentiating comma, meaning that these were
two separate classes. It is difficult to see how this could take the
matter much further. The submission really is that in 1956 there was
‘no Dhangad at all in the State of Bombay and there is no material to
show there was’. Mr Khambata would have us look at what he
describes as ‘mountainous’ evidence to show that the intended
reference was to Dhangad. The written submission says that
between 1837 and 1956 there is not a single official document or
record published by any official body referred to Dhangad tribe as
being in existence in Bombay State. That is the submission in
paragraph 21 at page 11 of the written submissions. The submission
goes on to refer to a note on exhibits where various official sources
have been documented, census reports are considered and there is a
reference to what is said to be an authoritative text in regard to the
Dhangad community.

93. But this is nothing but an invitation to enter forbidden
territory. Mr Anturkar’s argument is precisely this: that no matter
how voluminous or mountainous the evidence, this Court cannot
possibly examine it, except in that one exceptional and peculiar
circumstance outlined in Basavalingappa itself.

94. This is not the end of the difficulties by any means in the
Petitioners’ way. Mr Khambata endeavours to get over the next
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immediately obvious problem, that of a binding judgment of a
Division Bench of this Court by taking us to the Supreme Court
5
decision in State of Orissa v Dasarathi Meher. Now this is a
judgment that undoubtedly looked at the earlier decision in
Basavalingappa . Dasarathi Meher is a judgment of a two-judge bench
of the Supreme Court. It was clearly bound by the five-judge
Basavalingappa
Constitution Bench decision in . If it is Mr
Khambata’s submission that despite Basavalingappa , the Dasarathi
Meher Court proceeded to enquire into the appropriateness of a
query, then that submission would have to be rejected because it
would amount to saying, in effect, that Dasarathi Meher was per
incuriam . But that is not what the Dasarathi Meher Court did at all,
as a very brief discussion will demonstrate. In paragraph 10 of
Dasarathi Meher , the Supreme Court considered the decision in
Basavalingappa . It also considered the Constitution Bench judgment
6
in Bhaiya Lal v Harikisan Singh , where the claim was that the
Dohar Caste was a sub-caste of a Chamar Caste. The Bhaiya Lal
Constitution Bench held that no such enquiry was possible. Then
there is a third Constitution Bench judgment well known to us in
7
this state in the State of Maharashtra v Milind & Ors , where the
Scheduled Tribe was Halba/Halbi and the High Court held on some
material that Halba-Koshti was ‘included in Halba or Halbi’. The
Supreme Court in Milind held that this was impermissible. It culled
out five propositions. These are reproduced in Dasarathi Meher in

5 (2018) 18 SCC 176.
6 AIR 1965 SC 1557.
7 (2001) 1 SCC 4.
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paragraph 12, being the findings of the Supreme Court in paragraph
36 of Milind ’s case:
“36. In the light of what is stated above, the following
positions emerge:
1. It is not at all permissible to hold any inquiry or
let in any evidence to decide or declare that any tribe or
tribal community or part of or group within any tribe or
tribal community is included in the general name even
though it is not specifically mentioned in the entry
concerned in the Constitution (Scheduled Tribes)
Order, 1950 .
2. The Scheduled Tribes Order must be read as it is.
It is not even permissible to say that a tribe, sub-tribe,
part of or group of any tribe or tribal community is
synonymous to the one mentioned in the Scheduled
Tribes Order if they are not so specifically mentioned in
it .
3. A notification issued under clause (1) of Article 342,
specifying Scheduled Tribes, can be amended only by law
to be made by Parliament. In other words, any tribe or tribal
community or part of or group within any tribe can be
included or excluded from the list of Scheduled Tribes
issued under clause (1) of Article 342 only by Parliament by
law and by no other authority.
4. It is not open to State Governments or courts or
tribunals or any other authority to modify, amend or alter
the list of Scheduled Tribes specified in the notification
issued under clause (1) of Article 342.
5. Decisions of the Division Benches of this Court in
8
Bhaiya Ram Munda v Anirudh Patar 4 and Dina v Narain

8 (1970) 2 SCC 825.
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9
Singh did not lay down law correctly in stating that the
inquiry was permissible and the evidence was admissible
within the limitations indicated for the purpose of showing
what an entry in the Presidential Order was intended to be.
As stated in Position (1) above no inquiry at all is
permissible and no evidence can be let in, in the
matter. ”
( Emphasis added )

95. As we have seen, the Milind decision clearly held the Division
Bench judgments of the Supreme Court in Bhaiya Ram Munda v
10 11
Anirudh Patar & Ors and Dina v Narain Singh did not lay down
the correct law. Dasarathi Meher noted that in Milind , the
Constitution Bench of the Supreme Court reaffirmed both
Basavalingappa and Bhaiya Lal .

96. In paragraph 14 of Dasarathi Meher , the Court held that the
power of a court is limited in such cases. A Court cannot modify,
alter, add to, or subtract from the Presidential Order or a
Parliamentary Notification. It went to say that at the same time the
Court has to ensure that the Order in such a manner that no caste or
tribe intended by the President or Parliament to be included is
actually excluded.

97. But that is precisely what Basavalingappa itself says.

9 (1971) 38 ELR 212.
10 (1970) 2 SCC 825.
11 (1971) 38 ELR 212.
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98. The discussion in Dasarathi Meher was about two other
Scheduled Tribes namely Kuli and Kulis. The concern of the Court
is reflected in what is said in paragraph 27 of Dasarathi Meher. This
again is a phrasing that traces back to paragraph 7 of Basavalingappa
for the Dasarathi Meher Court noted that the State had failed to
show that there was any community, caste or tribe known as Kulis.
The only community known was Kuli. Then in paragraph 28, the
Dasarathi Meher Court referred to Basavalingappa again and held
that the case before it was very similar because the State had failed
to place any material on record to show that there was any caste or
tribe by the name Kulis. The Court therefore concluded that the
word Kulis was simply a plural for the term Kuli.

99. Correctly read, Dasarathi Meher is not at odds with
Basavalingappa . It does not break ranks with Basavalingappa . It
could not. It proceeds on an identical footing that the entry is a zero-
member class and therefore some meaning and heft must be given to
entry in the Presidential Order.

100. It would be a mistake to believe that the evidence of a zero-
member class must necessarily come from (and only from) the State
Government. That is not a requirement. Once there is material
before a Court, and this material is adequate to dislodge the case
that the entry in the Presidential Order or the Amending Act is
empty or a zero-member class, then the Basavalingappa door must
be held to be firmly shut.
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101. The fact that there is not a single Dhangad petitioner makes
no difference. That is not a test either.

102. This takes us to the next question: the Division Bench
judgment of this Court sitting at Aurangabad in Prakash Prabhurao
12
Kokane v State of Maharashtra & Ors. The judgment is clearly in
the Petitioners’ way. If the same issue was canvassed there and was
decided against the present Petitioners submissions, then these
Petitioner before us would have to show us that the Kokane
judgment is per incuriam. We made it clear at the outset that even we
were persuaded to disagree, that would not necessarily allow us on
any sound principle of stare decisis to simply hold that Kokane was
per incuriam. We would have had to refer specific questions of
disagreement to a larger bench. Perhaps by way of abundant caution
the Petitioners have also sought a review of the Kokane judgment.

103. Before we consider these matters, we must see what was
before the Kokane Court and how it came to be decided. To put it
bluntly, this very issue of Dhangar v Dhangad was directly before the
Kokane Court. The petitioner, Prakash, passed his 12th standard
examination in 1986. He wanted to take admission to a veterinary
college in Parbhani. His marks were insufficient. He joined the
Devgiri Science College in Aurangabad in the first year BSc course.
He still desired to join the veterinary college. He contended that his
caste was Dhangad. He also said that Dhangad was one of the oldest
original tribes in India. He went on to say that Dhangad is known by
different names in different parts of the country — and Dhangad is

12 2000 SCC OnLine Bom 158 : 2001 Supp (1) Bom CR 195.
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often known as Dhangar. He claimed that the Government of India
assumes this difference in spelling. He therefore contended that the
two words are used ‘interchangeably’ and that they are the same. He
also argued that the earlier State of Bombay included parts of the
previous states of Hyderabad, Central Provinces, Madhya Pradesh
and even the Mysore State. He accepted that the original
Presidential Order of 1950 did not include Dhangar/Dhangad in the
list of the Scheduled Tribes in any state except Madhya Pradesh.
Oraon was one of the listed Scheduled Tribes. After the 1956
Scheduled Caste Scheduled Tribe Amendment Act, in Madhya
Pradesh there was the entry of ‘Oraon including Dhanka and
Dhangad’. His entire case was that when these districts from
Madhya Pradesh were merged into (what is now) Maharashtra,
‘Oraon including Dhanka and Dhangad’ were shown in certain
Tehsils that were formerly in Madhya Pradesh. But no census report
of 1961 or 1971 ever mentioned a population of Dhangad in
Maharashtra at all.

104. Kokane therefore contended that the Dhangad Scheduled
Tribe does not and never existed in the State of Maharashtra or if at
all it is nothing but Dhangar. He reiterated that the two are the
same.

105. This is precisely the case of the Petitioners before us today.

106. The judgment notes that the Government of Maharashtra
recognised Dhangar as a Backward Class early in 1967. It was
therefore treated differently. This also was brought into question
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before the Division Bench. The judgment of the Division Bench
refers to the Entry 36 of the 1976 Act and mentions the phrase
‘Oraon Dhangad’ — without the separating comma. To the
reasoning that follows, this makes very little difference and we do
not believe that this is a reason to disagree with the judgment nor to
hold that it is per incuriam.

107. Interestingly, an affidavit in reply was filed by Dr Gare, the
then director of Tribal Research and Training Institute Maharashtra.
He was undoubtedly an authority. Much has been said about Dr
Gare’s work and how the Division Bench has apparently misread or
misconstrued Dr Gare’s views. But yet again that is a matter of
evidence , something that is only possible if one is allowed to look at
the evidence in the first place. Contrary to the somewhat remarkable
stand by the State Government before us today, in Kokane, the
government denied that there was no population of Dhangad in the
censuses of 1961 and 1971. It claimed that there was one recorded
Dhangad person in a census report. The State denied that the two
are the same. Even more interestingly, the State went on to say,
‘even assuming that no certificate was issued in Maharashtra to a
Dhangad Tribal’, that itself would show that the Dhangad Tribe was
distinct from the Dhangar caste.

108. This is curious because there is nothing at all from the State
Government to explain how between 2000 and 2017 it has
successfully achieved this quite remarkable U-turn on Affidavit. In
17 years, it has gone from denying that there was no Dhangad
population to asserting that there was no Dhangad population.
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109. Inevitably, the stand of the State Government is unreliable, at
least for the purposes of one part of the Basavalingappa trifecta of
tests, viz., whether the zero-member class is an undisputed position.
Just under two decades ago, the State Government said the class
was not empty. Now it claims it was empty. It is pointless to rely
upon either assertion of the State Government — that there once
existed a Dhangad or that there never existed a single Dhangad.

110. Both statements relate back to the same period, viz., 1956.
Both statements cannot co-exist.

111. Reference is made in the Kokane judgment to material from
Dr Gare. If we have any reservation, it is whether the Division
Bench could even look at this material to begin with. But we
understand that this was perhaps necessary to accurately set out the
arguments before the Court. We find these in paragraphs 24 to 28 of
the judgment (SCC Report) which read thus:
“24. From these respective stands of the Petitioner and
the respondents, it appears that the Petitioner wants to
contend that :
(1) the community Dhangar is nothing but Scheduled
Tribe Dhangad;
(2) the 1950 Order, the 1956 Act and the 1976 Act,
wherever Dhangad is mentioned, it should be
considered including Dhangar.
25. Thus, the Petitioner wants that the Court should
interpret the term “Dhangad” in such a way as to
include the term “Dhangar” in it.
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26 . The other stand taken by the Petitioner is that
there is no tribe by name Dhangad in the State of
Maharashtra. However, the tribe Dhangad is mentioned
in the 1950 Order, the 1956 Act and the 1976 Act for the
State of Maharashtra; and to give proper meaning to
that, the community Dhangar should be considered as
Tribe Dhangad; otherwise, the very declaration would
be meaningless .
27. The third stand of the Petitioner is that there is
no difference between Dhangar and Dhangad. They are
one and the same; and only because of method of
pronunciation, they are being shown different.
28. The question thus put before the court is to be
considered from two aspects:
(1) How far the Court has jurisdiction to
interpret the words used in the 1950 Order,
the 1956 Act and the 1976 Act to include
Dhangar in place of Dhangad or to say that
Dhangar is Dhangad?
(2) Whether the Petitioner has proved that
Dhangar is Dhangad? ”
( Emphasis added )

112. These are precisely the questions we are asked to examine
today. Perhaps the only difference is that we do not believe, on our
reading of Basavalingappa , that the second question in paragraph 28
was at all a course of action open to the writ court. But our
disagreement with the permissibility of posing that question is
against the Petitioners before us, not in their favour.
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113. Inevitably, there is the reference to Basavalingappa in Kokane .
The findings in paragraphs 36, 37, 38 and finally 42 read:
“36. In the present case, it is true that in Bombay
State, Oraon Dhangad was not the tribe existing in the
year 1950. But, that tribal community was in existence
in the Central Provinces. In 1956 and 1960, when
reorganisations of the States took place, certain parts of
the Central Provinces and State of Madhya Pradesh
were included in the State of Maharashtra. Those parts,
which were adjacent to Chota Nagpur area of the State
of Madhya Pradesh, where Oraon Dhangad Tribe was in
existence, are merged in the State of Maharashtra; and
naturally, not because of migration of the community,
but because of the change in the borders of the States,
the persons of Oraon Dhangad tribe happened to come
in the State of Maharashtra; and to meet this exigency,
in the 1956 Act and the 1976 Act, Oraon Dhangad are
shown as Scheduled Tribe in the State of Maharashtra.
The Oraon Dhangad Tribe was clearly identified in the
State of Madhya Pradesh and Central Provinces, and
that came in the State of Maharashtra because of
reorganisation of the States. There is no reason to find
out which community is included in the Tribe Oraon
Dhangad. That Tribe is well-identified and, therefore,
the Court need not go into the question as to whether
some other community, which is in Maharashtra, can be
accepted as Oraon - Dhangad community, because that
was not in the erstwhile State of Bombay in 1950. The
problem in B.Basavalingappa’s case was quite different and,
therefore, it was answered accordingly by the Supreme
Court.
37. The principle laid down in B.Basavalingappa’s case is
followed by the Apex court in Bhaiya Lal’s case, which is
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again a decision of the Constitutional Bench; and it is
observed (para 8, page 1559 of the Report):
“ . . . It is thus clear that, in order to
determine whether or not a particular caste is
a scheduled caste within the meaning of
Art.341, one has to look at the public
notification issued by the President in that
behalf. . . .”
38. Therefore, the Apex Court had held that it was
not open to the court to find out whether Dhor caste was
sub-caste of Chamar, because Dhor was not included in
the Presidential Notification as sub-caste of Chamar.
42. So, in the present matter, the Court cannot take up
the enquiry as to whether Dhangars are Dhangads, or,
whether Dhangar is synonym of Dhangad, or, whether
Dhangad includes Dhangar, or, so far as the State of
Maharashtra is concerned, Dhangad and Dhangar are
one and the same. ”
( Emphasis added )

114. That is our finding too.

115. The Kokane Division Bench then went on to consider the
submissions based on the 1971 census report. It rejected the
argument of two words being used interchangeably. It held as a
finding that in Maharashtra Dhangad and Dhangar are never used
interchangeably. Dhangad, the Division Bench said, is a community
well known in the State from the historical times with a specific
occupation and with its own place in the caste system. There was
some discussion on material in this regard, but we do not think it is
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important or necessary to look at this. The conclusion in paragraphs
65, 66 and 68 is this:
“65. So, by no stretch of imagination, it can be said
that Dhangar in Maharashtra are same as Oraon
Dhangad in Central Provinces, part of which is merged
in the State of Maharashtra after reorganisation of
States.
66. The Petitioner is trying to take advantage only of
one circumstances that there is some similarity in the
name of these communities, Dhangar and Dhangad; but
that is a very thin thread for the Petitioner to claim that
Dhangars are Dhangads, a Scheduled Tribe described in
the 1950 Order, or, the 1956 Act, or, the 1976 Act. On
facts also, the Petitioner has failed to prove that Dhangar means
Dhangad, or, Dhangar is synonym of Dhangad, or, as there is
no community Dhangad found in the State of Maharashtra,
Dhangar should be considered as Dhangad for the proper
interpretation of the 1950 Order, or, the 1956 Act, or, the
1976 Act.
68. If the contention of the Petitioner is accepted that
Dhangar is Scheduled Tribe, which is described as
Dhangad in the 1950 Order, then, not only the persons of
Scheduled Tribe of Dhangad Tribe will suffer; but, all the
persons from other Scheduled Tribes will also suffer to a
great extent. The population of Dhangar is sizeable in the
State of Maharashtra. No doubt, they are somewhat
backward as compared to other castes in the State of
Maharashtra; but they are far better than the Scheduled
Tribe communities, economically, socially and
educationally. For centuries, they are considering
themselves a caste in Hindu community equivalent to
Marathas and Kunbis. If such a community is allowed to
be notified as Scheduled Tribe, then the very purpose of
giving Constitutional protection to real Scheduled
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Tribes people will be lost. The benefits of reservations,
which are provided for the Scheduled Tribes, will be
usurped by Dhangar community, if they are styled as
Scheduled Tribe, because of their superiority over the real
Scheduled Tribes. So, from this point of view also, the
relief, which is being sought by the Petitioner, cannot be
granted, especially when there is nothing to indicate that
Dhangars are Scheduled Tribe, or, that, Dhangar and
Dhangad are the same.”
( Emphasis added )

116. Consequently, what is being attempted here is a full-fledged
‘review’ on the basis of later facts, viz., the Khillare family
disavowals. It cannot be otherwise; for, all prior material — material
from a time before Kokane — cannot now be considered.

117. In the context of what we have just said about the Khillare
family, the observations in paragraph 73 are important and directly
relevant to two transferred Writ Petitions from Aurangabad. We
have already seen the prayers there. In paragraph 73 the Division
Bench in Kokane’s case held:
“73. The two Petitioners in this Petition had obtained the
certificates that they belong to Dhangad, Scheduled Tribe
community. Their certificates were referred for verification
to the Scheduled Tribes Caste Certificate Scrutiny
committee (hereinafter referred to as “the Scrutiny
Committee”). The Scrutiny Committee, by its order dated
27-3-1996, rejected both the certificates, holding that the
Petitioners do not belong to Dhangad, Scheduled Tribe.
This rejection is challenged by the Petitioners, on the
grounds that (1) Dhangar is Dhangad in the state of
Maharashtra; and (2) the Scrutiny Committee has wrongly
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rejected the evidence, which was produced by the
Petitioners, on the ground that all the certificates were of
the period subsequent to the 1950 Order and, therefore,
they had no probative value. Therefore, the Petitioners
contend that they ought to have been considered as
Dhangad, Scheduled Tribe.”

118. This is exactly the basis of the two transferred Petitions.

119. It is difficult to see on what basis it can now be urged or
argued that Kokane is incorrect or is per incuriam .

120. From our perspective perhaps there is one aspect that was not
spelt out as clearly in the Kokane judgment as we have done today,
which is to define narrowly the set of circumstances in which an
enquiry is permissible following Basavalingappa and Bhaiya Lal .
That circumstance is that such an enquiry is permissible only when
there is a zero-member class. The reason is, as we have said, that no
Presidential Order and no entry in a Presidential Order can be
meaningless or without at least one member of that class. This
aspect of the matter is to our mind dispositive so far as a review is
sought of the judgment in Kokane ; and, equally, of the submission
that Kokane must be held not to be binding on us as a judgment
rendered per incuriam .

121. But there is more. Equally damaging to the Petitioners’ case is
the decision of the Supreme Court in S tate of Maharashtra v Keshao
13
Vishwanath Sonone & Anr. Here, a three-Judge Bench of the

13 2020 SCC OnLine SC 1040.
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Supreme Court had before it a set of appeals against a judgment of a
Division Bench of this Court. The issue pertained to a Scheduled
Tribe Gond Gowari in Maharashtra, included in the 1950 Order as
amended by the SC ST Orders (Amendment) Act 1976. The High
Court had allowed four Writ Petitions. Sonone claimed to be a
Gowari. He said this was a Scheduled Tribe. There was no “Gond
Gowari” in existence. The issue was in regard to a Caste Certificate
which was sent for verification, and which came to be invalidated.
There were other Writ Petitions as well. The judgment noted that in
2011 the Gowari community was included in the Other Backward
Class category from the common central list in respect of State of
Maharashtra. The High Court had declared that the Gond Gowari
Tribe was completely extinct before 1911 and no trace of it was
found either in the Maratha empire of the Central Provinces in
Bihar or in the State of Madhya Pradesh prior to 1956. It went on to
hold and declare that there did not exist any tribe known as Gond
Gowari on 29th October 1956, the date of the Constitution
(Scheduled Tribes) Order 1950 in relation to the then State of
Bombay. It held that the tribe Gond Gowari in the Order was not a
sub-tribe of Gowari. Those belonging to the Gowari community
could not be denied the benefits due to Scheduled Tribes only
because the Gowari community was shown in the list of Other or
Special Backward Classes. The submission on behalf of the
appellants was that the High Court was in error in ‘tinkering’ with
the entries under the Presidential Order of 1950. This could only be
done by an act of Parliament under Article 342(2). The submission
was that the Scheduled Tribe Gond Gowari included in the 1950
Presidential Order did indeed exist and was distinct from the caste
Gowari. The respondents submitted that it was open to the High
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Court to ascertain the “true meaning and content of the entry Gond
Gowari as included in the Presidential Order 1950”. Another
submission was that the ratio of the Constitution Bench in Milind’s
case was not in consonance with the ratio in Basavalingappa .
Therefore there was a submission that everything needed to be
referred to an even larger Bench.

122. The Supreme Court considered the relevant provisions of the
States Reorganisation Act. It went on to note the six different
questions that arose for consideration in paragraph 42:
“42. From the submissions of the learned counsel for the
parties and materials on record, following questions arise
for consideration:
42.1.(1) Whether the High Court in the writ petition giving
rise to these appeals could have entertained the claim of the
caste “Gowari”, which is not included as Scheduled Tribe
in the Constitution (Scheduled Tribes) Order, 1950, that it
be declared a Scheduled Tribe as “Gond Govari” which is
included at Item 18 of the Constitution (Scheduled Tribes)
Order, 1950 applicable in the State of Maharashtra and
further to take evidence to adjudicate such claim?
42.2.(2) Whether the ratio of the judgment of the
Constitution Bench of this Court in B. Basavalingappa v. D.
Munichinnappa [B. Basavalingappa v. D. Munichinnappa ,
AIR 1965 SC 1269] permits the High Court to take evidence
to find out whether “Gowari” are “Gond Gowari” and is
there any conflict in the ratio of the judgment of the
Constitution Bench in B.Basavalingappa [ B. Basavalingappa
v. D. Munichinnappa , AIR 1965 SC 1269] and subsequent
Constitution Bench judgment of this Court in State of
Maharashtra v. Milind [ State of Maharashtra v. Milind ,
(2001) 1 SCC 4 : 2001 SCC (L&S) 117] ?
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42.3.(3) Whether the High Court could have entered into
the adjudication of the issue that “Gond Gowari” which is
a Scheduled Tribe mentioned in the Scheduled Tribes
Order, 1950, as amended up to date is no more in existence
and was extinct before 1911?
42.4.(4) Whether the conclusion of the High Court in the
impugned judgment [ Adim Gowari Samaj Vikas Mandal v.
State of Maharashtra , 2018 SCC OnLine Bom 2190] that
“Gond Gowari” Tribe was extinct before 1911 is supported
on the materials which were on record before the High
Court?
42.5.(5) Whether caste “Gowari” is same as “Gond
Gowari” included at Item 28, Entry 18 of the Constitution
(Scheduled Tribes) Order, 1950 and the High Court could
have granted declaration to caste “Gowari” as “Gond
Gowari” entitled for Scheduled Tribe certificate?
42.6.(6) Whether the High Court is correct in its view that
“Gond Gowari” shown as Item 28 in Entry 18 of the
Constitution (Scheduled Tribes) Order, 1950 is not a sub-
tribe of Gond, hence, its validity cannot be tested on the
basis of affinity test specified in Government Resolution
dated 24-4-1985?”

123. We are actually concerned today with Questions 1, 2, 3 and 4
in Sonone’s case. The Supreme Court noted the Basavalingappa
judgment. It noted the submission made by the Respondents on
paragraph 7 of Basavalingappa , which we have already seen. Then
the Supreme Court considered the Constitution Bench judgment in
Bhaiya Lal . For our purposes, the relevant portion in Sonone’s case
is the finding that the observations in Basavalingappa in paragraph 7
do not dilute the ratio of that very judgment of paragraph 6. The
Sonone Court held that in Basavalingappa the Supreme Court had
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approved of the High Court going into the evidence in the peculiar
facts of the case where the fact was not disputed that there was no caste
known as Bhovi in the Mysore State before 1956 . The Sonone Court
emphasized this portion. It then noted the reaffirmation of
Basavalingappa in Bhaiya Lal’s case. It then went on to consider
further authorities in that regard including the decisions in Kumari
Madhuri Patil & Anr v additional Commissioner, Tribal Development &
14 15
Ors, and Nityanand Sharma & Anr v State of Bihar & Ors , where
the question was about the Lohar community. Then it turned to the
16
Constitution Bench judgment in State of Maharashtra v Milind.
Finally, the Sonone Court said that the inescapable conclusion was
that the High Court could not have entertained the claim or looked
into evidence to decide whether Gowari was part of the Scheduled
Tribe Gond Gowari. There was no conflict, the Sonone Court held,
between the Constitution Bench judgment in Basavalingappa and
Milind . It repelled the submission that there had to be a reference to
a larger Bench. It answered Questions 1 and 2 as follows:
“ 65. In view of the ratio of judgments [ B. Basavalingappa v.
D. Munichinnappa , AIR 1965 SC 1269], [ Bhaiya Lal v.
Harikishan Singh , AIR 1965 SC 1557] of this Court as
noticed above, the conclusion is inescapable that the High
Court could not have entertained the claim or looked into
the evidences to find out and decide that tribe “Gowari” is
part of Scheduled Tribe “Gond Gowari”, which is included
in the Constitution (Scheduled Tribes) Order, 1950. It is
further clear that there is no conflict in the ratio of
Constitution Bench judgments of this Court in B.

14 (1994) 6 SCC 241.
15 (1996) 3 SCC 576.
16 (2001) 1 SCC 4.
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Basavalingappa case [ B. Basavalingappa v. D.
Munichinnappa , AIR 1965 SC 1269] and State of
Maharashtra v. Milind [ State of Maharashtra v. Milind ,
(2001) 1 SCC 4 : 2001 SCC (L&S) 117]. The ratio of B.
Basavalingappa case [ B. Basavalingappa v. D.
Munichinnappa , AIR 1965 SC 1269] as noted in para 6 of the
judgment and extracted above is reiterated by subsequent
two Constitution Bench judgments in Bhaiya Lal case
[ Bhaiya Lal v. Harikishan Singh , AIR 1965 SC 1557] and
Milind case [ State of Maharashtra v. Milind , (2001) 1 SCC 4
: 2001 SCC (L&S) 117]. There being no conflict in the ratio
of the above three Constitution Bench judgments [ State of
Maharashtra v. Milind , (2001) 1 SCC 4 : 2001 SCC (L&S)
,
117] [ B. Basavalingappa v. D. Munichinnappa , AIR 1965 SC
,
1269] [ Bhaiya Lal v. Harikishan Singh , AIR 1965 SC 1557],
we do not find any substance in the submission of Shri
Rohatgi that for resolving the conflict, the matter need to be
referred to a larger Constitution Bench. We, thus, answer
Questions 1 and 2 in the following words:-
65.1. The High Court in the writ petition giving rise
to these appeals could not have entertained the claim
of a caste “Gowari” that it be declared a Scheduled
Tribe as “Gond Gowari” included at Entry 18 of the
Constitution (Scheduled Tribes) Order, 1950 nor
could the High Court have taken evidence to
adjudicate the above claim.
65.2. There is no conflict in the ratio of the
judgments of Constitution Benches of this Court in
B. Basavalingappa case [ B. Basavalingappa v. D.
Munichinnappa , AIR 1965 SC 1269] and Milind case
[ State of Maharashtra v. Milind , (2001) 1 SCC 4 :
2001 SCC (L&S) 117].”
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124. Then the Sonone Court took up Questions 2 and 3 together.
As we have noted, these questions were whether the High Court
could have entered into the adjudication and whether the conclusion
of the High Court was supported. We are concerned only with
Question 3. The Supreme Court held that the High Court could not
have entered into the issue as to whether a Tribe which is included
in the 1950 Presidential Order did not exist. It answered this
question in the clearest possible terms by saying that the High Court
could not have entered into the issue and therefore the conclusion of
the High Court that Gond Gowari Tribe had been extinct before
1911 was not supported by materials. The Court did consider the
additional material. At some point what was cited before this Court
was the decision of the Supreme Court in State of Maharashtra &
17
Ors v Mana Adim Jamat Mandal which has also been relied on by
Mr Khambata. The Sonone Court expressed doubts about the
correctness of the ratio of that judgment but more importantly it
held that the Mana Adim Jamat Mandal judgment could not be read
as a binding authority to hold that Gond Gowari is not a sub-tribe of
Gond. The entire decision in Mana Adim Jamat Mandal turned on
the interpretation of the word ‘including’ in the Presidential Order.

125. Before us, a considerable amount of additional learning is
cited, including by Mr Gangal. It is not necessary to consider every
one of these. We must however refer to a more recent judgment of a
Full Bench of this Court in Maroti & Ors v Deputy Director &
18
Member Secretary, Scheduled Tribe Caste Scrutiny Committee & Ors.

17 (2006) 4 SCC 98.
18 2023 SCC OnLine Bom 1991.
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The issue before the Full Bench also related to the question of
permissibility of such an enquiry. The authorities that we have
19
noticed were among those cited before the Division Bench. The
Full Bench judgment is undoubtedly binding on us. One of the
questions it considered was whether such an enquiry was even
permissible. This is set out in the second portion of paragraph 51
Bhaiya Lal
just above paragraph 52. The decision in was also
considered.
“51. In B. Basavalingappa Vs. D. Munichinnappa
( supra) the Constitution Bench, was considering a plea as
to whether it was open to make any modification in the
Presidential (ST) Order 1950 by producing evidence to
show inclusion of any caste in the entry made in the
Presidential (ST) Order 1950. The entry in the Presidential
(ST) Order 1950 was of the Caste ‘Bhovi’, as against which
what was claimed, was that it was the same as the caste
‘Voddar’. The ratio in B. Basavalingappa Vs. D.
Munichinnappa (supra) is spelt out in para 6 thereof which
is as under:
“6. It may be accepted that it is not open to
make any modification in the Order by producing
evidence to show (for example) that though caste
A alone is mentioned in the Order, caste B is also
a part of caste A and, therefore, must be deemed
to be included in caste A. It may also be accepted
that wherever on caste has another name it has
been mentioned in brackets after it in the Order:
(See Aray (Mala), Dakkal (dokkalwar) etc.]

19 It is perhaps a testimonial to the robustness to our judicial system that
before the Full Bench, Mr Anturkar was canvassing precisely the opposite of
what he urges before us today. Mr Anturkar’s submissions did not find favour
with the Full Bench. We do not hold that against him.
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Therefore, generally speaking it would not be open
to any person to lead evidence to establish that
caste B (in the example quoted above) is part of
caste A notified in the Order. Ordinarily,
therefore, it would not have been open in the
present case to give evidence that the Voddar caste
was the same as the Bhovi caste specified in the
Order for Voddar caste is not mentioned in
brackets after the Bhovi caste in the order.
52. The enquiry was conducted in the words of the
hon’ble Apex Court, for the following reasons:
“7. -----. But when it is not disputed that there
was no caste specifically known as Bhovi in the
Mysore State before 1956, the only course open to
Courts to find out which caste was meant by
Bhovi is to take evidence in that behalf. It there
was a caste known as Bhovi as such in the
Mysore State as it existed before 1956,
evidence could not be given to prove that any
other caste was included in the Bhovi caste . --
--.
10. -----. As the President could not have included
in the Order a non-existent caste, it means the
word “Bhovi”, relates to some caste in Mysore as
it was before 1956 and we have, therefore, to
establish the identity of that caste and that can
only be done by evidence. ------. We may again
repeat that we have referred to the evidence in this
case only because there was undisputedly no caste
known as Bhovi in the Mysore State as it was
before 1956 and we had to find out, therefore,
which caste was meant by the word “Bhovi” as
used in the Order. But for this fact it would not
have been open to any party to give evidence to the
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effect that (for example) caste A mentioned in the
Order includes or was the same as caste B where
caste A does not exist in the area to which the
order applies .”
53. It is thus apparent that in B. Basavalingappa Vs. D.
Munichinnappa (supra), the entry of the caste ‘Bhovi’, was
already in the Presidential Order and thus it was not a case
where an enquiry was undertaken/permitted to
include/exclude any caste or parts thereof. The enquiry was
for the purpose of identifying the caste, listed in the entry,
and not otherwise. Thus B. Basavalingappa Vs. D.
Munichinnappa (supra) does not lay down any proposition
that an enquiry is permissible in respect of a claim for
inclusion of a caste in an entry in the Presidential (ST)
Order 1950 and for that purposes evidence is admissible, as
is sought to be contended.”

126. The finding at the end of paragraph 56 is put in these words:
“56. In Parsram Vs. Shivchand (supra) the question
under consideration was ‘Is respondent 8 Kishan Lal a
Hindu Chamar by caste which is a scheduled caste within
the meaning of Part X of the Schedule to the Constitution
(Scheduled Castes) Order 1950?’ The question was framed
in the backdrop of a claim that the nomination of Kishal Lal
was rejected on the ground that he belonged to the Mochi
caste and that Chamar and Mochi were not two separate
castes and the word “mochi” was applied to a Chamar who
actually started working in leather and therefore the
rejection was improper. According to the petitioner, Kishan
Lal was a Hindu and being a Chamar by caste as he
belonged to a scheduled caste within the meaning of para 2,
read with Part X of the Constitution (Scheduled Castes)
Order, 1950, issued under Article 341 of the Constitution,
he had filed a declaration under Section 33 (2) of the
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Representation of Peoples Act, stating his caste to be
Chamar covered by Item 9 in Part X (Punjab) of the
Schedule to the Constitution (Scheduled Castes) Order,
1950 which item had the entries as “Chamar, Jatia Chamar,
Reghar, Raigarh, Ramdasi or Ravidasi.” In this background
considering B. Basavalingappa Vs. D. Munichinnappa and
Bhaiya Lal Vs. Harikishan Singh (supra) it was held thus:
“7. Before the learned Trial Judge, a good deal
of evidence was adduced and arguments advanced
as so whether the words “chamar” and “mochi”
were synonymous and even if Kishan Lal was
held to be a Mochi, there was no reason to exclude
him from the fold of the caste of Chamars in
which case his nomination paper was wrongly
rejected. For this we have to refer to Article 341 of
the Constitution under clause 1 of which the
President may, with respect to any State or Union
Territory, and where it is a State, after
consulting the Governor of the State, by public
notification specify the castes, races or tribes
which shall for the purposes of the Constitution,
be deemed to be Scheduled Castes in relation to
that State or Union Territory as the case may be.
This article empowered the President to specify
not only the entire castes but tribes or parts or
groups within castes, races or tribes which were to
be treated as Scheduled Castes in relation to a
particular caste. So far as Chamars and Mochis
are concerned, it will be noted from a reference to
the Constitution (Scheduled Castes) Order,
1950, that the President was not of opinion that
they were to be considered to belong to the same
caste in all the different States. For instance, in
the States of Andhra Pradesh, Bihar, Gujarat,
Kerala, Madhya Pradesh, Madras,
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Maharashtra, Mysore, Orissa, Rajasthan and
West Bengal, Chamars and Mochis were put on
the same footing.
8. Before the Reorganisation of the Punjab
Act of 1966, Item 9 of Part X of the Order
specifying the Scheduled castes in the States read:
“Chamar, Jatia Chamar,
Reghar, Raigar, Ramdasi or
Ravidasi.”
9. After the reorganisation of territories and
creation of new States by the said Act the
Scheduled Castes Order was amended providing
for the specification of Scheduled Castes for the
new States and territories. The Constitution
(Scheduled Castes) (Union Territories) Order of
1951, was also amended in 1966. As a result of
the above changes, the final position with regard
to the Scheduled Castes was as follows. Item 9
remained unaltered as regards the new States of
Haryana and the Punjab. Chamars and Mochis
were put inthe same class as regards the Union
Territory of Delhi and Himachal Pradesh, while
the position in the Union Territory of
Chandigarh remained the same as in the old
States of Punjab. This shows that even when the
subject of specification of Scheduled Castes
engaged the attention of the President in 1966, he
did not take the view that Mochis should be
classed together with Chamars insofar as the
States of Haryana, Punjab and the Union
Territory of Chandigarh were concerned. It is also
clear that the question of inclusion of Mochis in
the Scheduled Castes was considered by him.
Apart from this, there are two decisions of this
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Court which conclude the point.
13. These judgments are binding on us and we
do not therefore think that it would be of any use
to look into the gazeteers and the glossaries on the
Punjab castes and tribes to which reference was
made at the Bar to find out whether Mochi and
Chamar in some parts of the State at least meant
the same caste although their might be some
difference in the professions followed by their
members, the main difference being that
Chamars skin dead animals which Mochis do not.
However that may be, the question not being open
to agitation by evidence and being one the
determination of which lies within the exclusive
power of the President, it is not for us to examine
it and come to a conclusion that if a person was in
fact a Mochi, he could still claim to belong to the
scheduled caste of Chamars and be allowed to
contest an election on that basis. Quite a lot of
evidence was adduced orally and also by
documents before the learned Trial Judge to show
that Kishan Lal was a Chamar and not a Mochi.
The learned Judge examined the evidence
thoroughly, and we do not propose to do the same
again. In his view Kishan Lal was Mochi and not
a Chamar and we do not see any reason why we
should come to any different conclusion.
14. Once we hold that it is not open to this
Court to scrutinise whether a person who is
properly described as a Mochi also falls within the
caste of Chamars and can describe himself as
such, the question of the impropriety of the
rejection of his nomination paper based on such
distinction disappears. In this case, Kishan Lal
was found to be a Mochi and not a Chamar and
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therefore his nomination paper was rightly
rejected. He tried to prove by evidence that he was
a Chamar but he did not succeed therein. The
appeal therefore fails, and is dismissed with
costs.”
57. It was thus held that the question regarding an
entry in the Presidential (ST) Order 1950, was not open
to agitation by evidence and was one, the determination
of which lay within the exclusive power of the President,
it was not for the Courts to examine it and come to any
conclusion regarding the same. Thus a claim of the caste
‘Mochi’, being synonymous with ‘Chamar’ caste was
held not entertainable and no enquiry in that regard was
held permissible. ”
( Emphasis added )

127. Mana Adim Jamat Mandal was also referenced as was the
decision in Milind and the decision in Sonone . The Court went on to
hold in paragraphs 81 to 85:
“81. The contention therefore that B. Basavalingappa
Vs. D. Munichinnappa and Bhaiya Lal Vs. Harikishan
Singh (supra) create a green zone or window of
interference to make an enquiry or let in evidence, which
has been confirmed by the Constitutional Bench in State of
Maharashtra Vs. Milind (supra) based upon para 7 of B.
Basavalingappa Vs. D. Munichinnappa and para 28 of
State of Maharashtra Vs. Milind (supra) as urged by Mr.
Anturkar learned Senior Counsel and other Counsels
supporting him, has to be considered in light of the above
position, as well as the language used in para 28 of State of
Maharashtra Vs. Milind (supra), which is quoted as under:
“28. Being in respectful agreement, we reaffirm
the ratio of the two Constitution Bench judgments
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aforementioned and state in clear terms that no
inquiry at all is permissible and no evidence can
be let in, to find out and decide that if any tribe or
tribal community or part of or group within any
tribe or tribal community is included within the
scope and meaning of the entry concerned in the
Presidential Order when it is not so expressly or
specifically included. Hence, we answer Question
1 in the negative.”
82. Though the first sentence in State of Maharashtra
Vs. Milind (supra) reaffirms the ratio in B. Basavalingappa
Vs. D. Munichinnappa and Bhaiya Lal Vs. Harikishan
Singh (supra) the same cannot be read in isolation and will
have to be read in light of what the latter part of the
paragraph holds that no inquiry at all is permissible and no
evidence can be let in, to find out and decide that if any
tribe or tribal community or part of or group within any
such tribe or tribal community is included within the scope,
ambit and meaning of the concerned entry in the
Presidential (ST) Order 1950 when it is not so expressly or
specifically included, which in fact is the ratio in B.
Basavalingappa Vs. D. Munichinnappa and Bhaiya Lal
Vs. Harikishan Singh (supra). Thus an isolated sentence
cannot be relied upon to contend that the ratio of the earlier
two Constitution Bench decisions have been reaffirmed,
without either looking to the background in which the
statement has been made and the totality of the context in
which it has been made.