# THE STATE OF MAHARASHTRA & ANR v. KESHAO VISHWANATH SONONE & ANR

- **Citation:** [2020] 11 S.C.R. 597
- **Court:** Supreme Court of India
- **Decided:** 2020-12-18
- **Case number:** Civil Appeal No. 4096 of 2020
- **Bench:** Ashok Bhushan, R. Subhash Reddy, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-maharashtra-anr-v-keshao-vishwanath-sonone-anr-34522
- **Pages:** 68

## Headnote

Constitution of India - Article 342 -Constitution (Scheduled
Tribes) Order, 1950 - High Court allowed writ petitions inter alia
declaring 'Gowari' as 'Gond Gowari' a Scheduled Tribes referred
to in Entry 18, 1950 Order - On appeal, held: Art.342(2) provides
that any inclusion or exclusion from the list of Scheduled Tribes
specified in a notification issued u/Art.342(1) can be done only by
Parliament by law - 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" included in
the 1950 Order - No conflict in the ratio of Constitution Bench
judgments in B. Basavalingappa case reported as [1965] SCR 316
and Milind case reported as [2000] 5 Suppl. SCR 65 - Further, High
Court also could not have entered into the issue that "Gond Gowari"
is no more in existence and became extinct before 1911 -Caste
'Gowari' is not the same as 'Gond Gowari' - High Court erred in
declaring 'Gowari' as 'Gond Gowari', a Scheduled Tribes referred
to in item 28 in Entry 18 - Impugned judgment set aside - Writ
petitions dismissed - Scheduled Castes and Scheduled Tribes Orders
(Amendment) Act, 1956 - States Reorganisation Act, 1956 -
Scheduled Castes and Scheduled Tribes Orders (Amendment) Act,
1976 - Scheduled Castes and Scheduled Tribes Orders (Amendment)
Act, 2002.
Allowing the appeals, the Court
HELD: 1.1 Part XVI of the Constitution deals with "Special
Provisions relating to certain classes". Article 342 of the
Constitution deals with Scheduled Tribes. Article 366(25) defines
Scheduled Tribes. In exercise of power under Article 342, the
President had issued the Constitution (Scheduled Tribes) Order,
1950 dated 06.09.1950. The Schedule contains details of
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Scheduled Tribes with reference to different States. Part III to
the Schedule deals with the State of Bombay and Entry No.9 of
Part III mentioned "9. Gond". Part IV dealt with Madhya Pradesh
where also Entry No.12 mentions "Gond [including Madia (Maria)
and Mudia (Muria)]". The Parliament passed an Act namely, The
Scheduled Castes and Scheduled Tribes Orders (Amendment)
Act, 1956 to provide for the inclusion in, and the exclusion from
the lists of Scheduled Castes and Scheduled Tribes, of certain
castes and tribes and matters connected therewith. As per Section
4 of the Act, 1956, Constitution (Scheduled Tribes) Order, 1950
was amended in the manner and to the extent as specified in
Schedule III. In Schedule III, Entry No.9 was substituted by
following Entry:- "9. Gond or Rajgond." Part IV which deals with
Madhya Pradesh, Entry 12 was substituted. [Paras 26-30][621D, G; 622-B, E-H]
1.2 Amendment to the Scheduled Tribes with respect to
Madhya Pradesh was consequent to recommendations by the
report of the Backward Classes Commission also known as
Kalelkar Commission. With regard to Madhya Pradesh with
regard to list of Scheduled Tribes published in Constitution
(Scheduled Tribes) Order, 1950 together with the revision
suggested by the Backward Classes Commission is included in
volume II of the Report. Entry No.12 in the List of the Scheduled
Tribes was with respect to Gond [including Madia (Maria) and
Mudia (Muria)]. Backward Classes Commission suggested
addition of several sub-tribes of Gond with Gond. Column No.VI
of the Table contains heading "Commission's recommendation
for inclusion". The States Reorganisation Act, 1956 was enacted
by Parliament to provide for the reorganisation of the States of
India and for matters connected therewith. Section 8 provided
for formation of a new Bombay State. By virtue of Section 8(1)(c)
certain districts, which then existed in the State of Madhya
Pradesh were included in the new Bombay State. The said districts
were earlier part of the State of Madhya Pradesh. Section 41 of
the States Reorganisation Act provide for modification of the
Scheduled Castes and Scheduled Tribes Orde

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THE STATE OF MAHARASHTRA & ANR.
v.
KESHAO VISHWANATH SONONE & ANR.
(Civil Appeal No. 4096 of 2020)
DECEMBER 18, 2020
[ASHOK BHUSHAN, R. SUBHASH REDDY AND
M. R. SHAH, JJ.]
Constitution of India - Article 342 -Constitution (Scheduled
Tribes) Order, 1950 - High Court allowed writ petitions inter alia
declaring 'Gowari' as 'Gond Gowari' a Scheduled Tribes referred
to in Entry 18, 1950 Order - On appeal, held: Art.342(2) provides
that any inclusion or exclusion from the list of Scheduled Tribes
specified in a notification issued u/Art.342(1) can be done only by
Parliament by law - 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" included in
the 1950 Order - No conflict in the ratio of Constitution Bench
judgments in B. Basavalingappa case reported as [1965] SCR 316
and Milind case reported as [2000] 5 Suppl. SCR 65 - Further, High
Court also could not have entered into the issue that "Gond Gowari"
is no more in existence and became extinct before 1911 -Caste
'Gowari' is not the same as 'Gond Gowari' - High Court erred in
declaring 'Gowari' as 'Gond Gowari', a Scheduled Tribes referred
to in item 28 in Entry 18 - Impugned judgment set aside - Writ
petitions dismissed - Scheduled Castes and Scheduled Tribes Orders
(Amendment) Act, 1956 - States Reorganisation Act, 1956 -
Scheduled Castes and Scheduled Tribes Orders (Amendment) Act,
1976 - Scheduled Castes and Scheduled Tribes Orders (Amendment)
Act, 2002.
Allowing the appeals, the Court
HELD: 1.1 Part XVI of the Constitution deals with "Special
Provisions relating to certain classes". Article 342 of the
Constitution deals with Scheduled Tribes. Article 366(25) defines
Scheduled Tribes. In exercise of power under Article 342, the
President had issued the Constitution (Scheduled Tribes) Order,
1950 dated 06.09.1950. The Schedule contains details of
[2020] 11 S.C.R. 597
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Scheduled Tribes with reference to different States. Part III to
the Schedule deals with the State of Bombay and Entry No.9 of
Part III mentioned "9. Gond". Part IV dealt with Madhya Pradesh
where also Entry No.12 mentions "Gond [including Madia (Maria)
and Mudia (Muria)]". The Parliament passed an Act namely, The
Scheduled Castes and Scheduled Tribes Orders (Amendment)
Act, 1956 to provide for the inclusion in, and the exclusion from
the lists of Scheduled Castes and Scheduled Tribes, of certain
castes and tribes and matters connected therewith. As per Section
4 of the Act, 1956, Constitution (Scheduled Tribes) Order, 1950
was amended in the manner and to the extent as specified in
Schedule III. In Schedule III, Entry No.9 was substituted by
following Entry:- "9. Gond or Rajgond." Part IV which deals with
Madhya Pradesh, Entry 12 was substituted. [Paras 26-30][621D, G; 622-B, E-H]
1.2 Amendment to the Scheduled Tribes with respect to
Madhya Pradesh was consequent to recommendations by the
report of the Backward Classes Commission also known as
Kalelkar Commission. With regard to Madhya Pradesh with
regard to list of Scheduled Tribes published in Constitution
(Scheduled Tribes) Order, 1950 together with the revision
suggested by the Backward Classes Commission is included in
volume II of the Report. Entry No.12 in the List of the Scheduled
Tribes was with respect to Gond [including Madia (Maria) and
Mudia (Muria)]. Backward Classes Commission suggested
addition of several sub-tribes of Gond with Gond. Column No.VI
of the Table contains heading "Commission's recommendation
for inclusion". The States Reorganisation Act, 1956 was enacted
by Parliament to provide for the reorganisation of the States of
India and for matters connected therewith. Section 8 provided
for formation of a new Bombay State. By virtue of Section 8(1)(c)
certain districts, which then existed in the State of Madhya
Pradesh were included in the new Bombay State. The said districts
were earlier part of the State of Madhya Pradesh. Section 41 of
the States Reorganisation Act provide for modification of the
Scheduled Castes and Scheduled Tribes Orders with regard to
territorial changes and formation of new States under the
provisions of Part II. In exercise of power under Section 41 of
the States Reorganisation Act, Scheduled Castes and Scheduled
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Tribes Lists modification under Order 1950 was issued dated
29.10.1956. Part IV of the Schedule dealt with Bombay. Schedule
III contains the modification to the Constitution (Scheduled
Tribes) Order, 1950. Thus, after recommendation of Backward
Classes Commission for the State of Madhya Pradesh by virtue
of Act, 1956, with the tribe "Gond" "Gond Govari" was added as
the Scheduled Tribes by modification order dated 29.10.1956.
With respect to State of Bombay in specific areas, with regard to
entry of Gond as Scheduled Tribe, several sub-tribes including
"Gond Govari" was added. [Paras 31-34][624-D-F; 626-B-C, DF; 628-A-B]
1.3 The Parliament enacted the Scheduled Castes and
Scheduled Tribes Orders (Amendment) Act, 1976 (Act No.108
of 1976) to provide for the inclusion in, and the exclusion from
the list of Scheduled Castes and Scheduled Tribes, of certain
castes and tribes, for the re-adjustment of representation of
parliamentary and assembly constituencies in so far as such readjustment is necessitated by such inclusion or exclusion and for
matters connected therewith. The Statements of Objects and
Reasons of the Bill is relevant. The second Schedule of the Act,
1976 provides for substitution in Constitution (Scheduled Tribes)
Order, 1950 as indicated therein. With regard to State of
Maharashtra, which was formed, Part IX of the Second Schedule,
Entry No.18 deals with Scheduled Tribe "Gond". Subsequently,
the Parliament passed the Scheduled Castes and Scheduled Tribes
Orders (Amendment) Act, 2002. The only amendment which was
made with respect to Schedule pertaining to Maharashtra in Entry
18 was to the following effect:- "(i) in Part IX - Maharashtra- (i)
omit entry 12; (ii) in entry 18 for "Gond Rajgond" substitute
"Gond, Rajgond"; (iii) omit entry 45;"
The above amendment in the Scheduled Castes order
indicate the care which was taken by the legislature in describing
the Scheduled Tribes entries. By the above amendment in earlier
Entry No.18 of "Gond Rajgond", substitution was made by which
now it is read as "Gond, Rajgond". [Paras 35-39][628-B-D; 629B-C, E, H; 630-B-C]
1.4 Following questions arise for consideration:-
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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
No.18 of Constitution (Scheduled Tribes) Order, 1950 applicable
in the State of Maharashtra and further to take evidence to
adjudicate such claim?
2) Whether the ratio of the judgment of the Constitution
Bench of this Court in B. Basavalingappa Vs. 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 ratio of judgment of Constitution Bench in B.
Basavalingappa and subsequent Constitution Bench judgment
of this Court in State of Maharashtra Vs. Milind, (2001) 1 SCC
4?
3) Whether the High Court could have entered into the
adjudication of the issue that 'Gond Gowari' which is a Scheduled
Tribe mentioned in Scheduled Tribes Order, 1950, as amended
up to date is no more in existence and was extinct before 1911?
4) Whether the conclusion of the High Court in the
impugned judgment that 'Gond Gowari' Tribe was extinct before
1911 is supported on the materials which were on record before
the High Court?
5) Whether caste 'Gowari' is same as 'Gond Gowari'
included at Item No.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?
6) Whether the High Court is correct in its view that 'Gond
Gowari' shown as Item No.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 24.04.1985?[Para 40][630-CH; 631-A-C]
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1.5 QUESTION NOS. 1 AND 2
The Constitution of India contains ample provisions for
fulfilment of the Constitutional aspirations of social justice to the
Scheduled Castes and Scheduled Tribes and to socially and
educationally backward classes of citizens. Articles 341 and 342
and Part XIV of the Constitution contains several provisions as
special provisions relating to certain classes. Article 342 of the
Constitution envisages public notification specifying the tribes
or tribal communities or parts of or groups within tribes or tribal
communities which shall be for the purposes of this Constitution
be deemed to be Scheduled Tribes in relation to a State after
consultation with Governor thereof. Sub-clause (2) contains
another important provision which provides that any inclusion or
exclusion from the list of Scheduled Tribes specified in a
notification issued under clause (1) of Article 342 can be done
only by Parliament by law. Sub-clause (2) of Article 342, thus,
contains a provision conferring authority only to the Parliament
to include and exclude a Scheduled Tribe in the list as specified
in the sub-clause (1) of Article 342. [Para 41][631-C-F]
1.6 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.
There is no conflict in the ratio of Constitution Bench judgments
of this Court in B. Basavalingappa's case and State of Maharashtra
Vs. Milind and Ors. The ratio of B. Basavalingappa's case as
noted in paragraph 6 of the judgment is reiterated by subsequent
two Constitution Bench judgments in Bhaiya Lal's case and
Milind's case. There being no conflict in the ratio of the above
Three Constitution Bench judgments, there is no substance in
submission that for resolving the conflict, the matter need to be
referred to a larger Constitution Bench. Thus, question Nos.1
and 2 are answered accordingly in following words:-
(i) 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 No.18 of the Constitution (Scheduled Tribes) Order, 1950
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nor High Court could have taken evidence to adjudicate the above
claim.
(ii) There is no conflict in the ratio of the judgment of
Constitution Bench of this Court in Basavalingappa's case and
Milind's case. [Para 61][645-G-H; 646-A-D]
2.1 QUESTION NOS. 3 AND 4
The Scheduled Tribe "Gond Gowari" as existing in Item
No.28 of Entry 18 of Constitution (Scheduled Tribes) Order, 1950
applicable to State of Maharashtra is continuing in the List of
Scheduled Tribes of Bombay State (now State of Maharashtra)
since 29.10.1956. To a large number of members of the "Gond
Gowari" caste Scheduled Tribe certificates have been issued by
the competent authority in the State of Maharashtra from time to
time. In Writ Petition No. 4779 of 2008 (Adivasi Gond Govari
(Gowari) Sewa Mandal through its President vs. State of
Maharashtra and others)(one out of the four writ petitions before
the High Court) the writ petitioner has prayed for quashing and
setting aside the caste validity certificates issued in the name of
respondent Nos. 4 to 19 as "Gond Gowari", Scheduled Tribe.
The fact that before the High Court there was a writ petition
where caste certificates granted to 16 respondents of "Gond
Gowari" were sought to be quashed clearly proved the existence
of community "Gond Gowari". Although there have been
recommendations by the State of Maharashtra earlier in the year
1967 and thereafter in the year 1979 to include the "Gowari" as
Scheduled Tribe, the said recommendations were never accepted
by the Parliament since in spite of passing of several Amendment
Acts by the Parliament to the Constitution (Scheduled Tribes)
Order, 1950 Entry of "Gond Gowari" in the Scheduled Tribe was
never deleted. A private bill to delete Entry of "Gond Gowari"
and substitute it by Gowari was not passed by the Parliament and
turned down. The High Court has also referred to and relied on
the book "Tribes and Castes of the Central Provinces of India by
R.V. Russell and Rai Bahadur Hira Lal wherein castes "Gond
Gowari" and "Gowari" were separately dealt with as distinct
castes. It is also on the record that the State of Maharashtra even
though it had recommended vide letters dated 26.03.1979 and
12.06.1979 to include Gowari in the list of Scheduled Tribes but
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on 06.11.1981 State of Maharashtra wrote to Ministry of Home
Affairs, New Delhi dealing with the subject of the Scheduled Tribes
in paragraph 3(iii). The State Government recommended Gowari
not to be included as they having not fulfilled criteria of Scheduled
Tribe. It is to be noted that in letter dated 26.03.1979 of the
Government of Maharashtra to the Union of India although
recommendation was made to include Gowari in Scheduled Tribe
but there was no recommendation to delete "Gond Gowari" from
the list of Scheduled Tribes. Thus, the recommendation to include
Gowari as a separate Scheduled Tribe was forwarded by the State
of Maharashtra in the year 1979 which was withdrawn in 1981
and after 1981 the State's stand has been that "Gond Gowari"
and "Gowari" are two separate castes and Gowari is not entitled
for the benefit of Scheduled Tribe certificate. The Government
of State of Maharashtra, Tribal Development Department has
issued G.R. dated 24.04.1985 where the State Government has
referred to "Gond Gowari" as small sub-Tribe of Gond and nonScheduled Tribe caste was referred as Gowari. Along with the
Government Resolution dated 24.04.1985 a comparative Chart
was annexed of Scheduled Tribe and non-Scheduled Tribe
community which was claiming benefit. The materials which were
on the record before the High Court as well as continuance of
"Gond Gowari" as Scheduled Tribe in the Constitution (Scheduled
Tribes) Order, 1950 for the last more than 60 years, it was not
open for the High Court to proceed into the inquiry as to whether
Scheduled Tribe "Gond Gowari" is not in existence. [Paras 6265][647-A-D, F-G; 648-B-D; 649-E-F]
2.2 The High Court itself has in its judgment noticed and
found the mention of "Gond Gowari" in Census of 1891 and 1901.
The substantial figures of "Gond Gowari" in the above two
Censuses in Nagpur Division were noticed. The High Court itself
having noticed that the basis of Census in 1911 was changed,
classification was made on the basis of traditional occupation in
which group IV was of Forest and Hill Tribes and Group V was of
Graziers and Dairymen, the figures of 1911, 1921 and 1931 have
been noticed where in Group V Graziers and Dairymen, there
was mention of Gowari. Mere fact that in Censuses of 1911, 1921
and 1931 figures were given only of Group V, i.e., Graziers and
Dairymen and there was no mention of "Gond Gowari" cannot
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lead to conclusion that "Gond Gowari" have become extinct
before 1911. A Scheduled Tribe which admittedly was in existence
and had a distinct identity shall not be treated to have become
extinct merely because the basis of Census has been changed in
the subsequent years. The benefit given to a Scheduled Tribe
cannot be taken away on the basis of figures given in Census
operation only. There have been amendments in Constitution
(Scheduled Tribes) Order, 1950 from time to time. Several Tribes
were deleted from the list by the Act of Parliament and several
new Tribes were included. There had been recommendations by
the Joint Committee of Parliament for exclusion of the Tribes
which were excluded if there was no return in respect of those
communities in Censuses of 1961 and 1971. Statement of Objects
and Reasons of The Scheduled Castes and Scheduled Tribes
Orders (Amendment) Bill, 1976 clearly indicates that those
Scheduled Tribes and Schedules Castes were excluded if only
there was no return in respect of Census of 1961 and 1971. Thus,
the whole basis of judgment of the High Court that Tribe "Gond
Gowari" was extinct prior to 1911 Census and in subsequent
Censuses 1911, 1921 and 1931 they were not shown in Group V
is completely flawed. The inclusion of sub-Tribe as "Gond Gowari"
in the Constitution (Scheduled Tribes) Order, 1950 was on
29.10.1956 when sub-Tribe "Gond Gowari" was included in the
Scheduled Tribe list it has to be presumed that the said inclusion
was after consultation with the State and after considering the
relevant materials. The High Court could not have questioned
the inclusion of the Scheduled Tribe "Gond Gowari" in the
Constitution (Scheduled Tribes) Order, 1950 on the basis of
reasoning as adopted by the High Court. The High Court has
referred to and relied on the book "Tribes and Castes of the
Central Provinces of India" by R.V. Russell and Rai Bahadur Hira
Lal in which book in Volume III community Gond, "Gond Gowari"
and Gowari were all separately dealt with. "Gond Gowari" has
been treated as a distinct caste and in the Census they have been
amalgamated with Gowari. The account given by Russell does
not lead to any conclusion that "Gond Gowari" were extinct before
1911. [Paras 70, 71 and 74][651-E-H; 652-A-B, D-G; 654-C]
2.3 It was after the report of Backward Classes Commission
(1955), where recommendation was made to include Gowari as
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sub-tribe of Gond for the State of Madhya Pradesh, consequently
by Scheduled Castes and Scheduled Tribes Orders (Amendment)
Act, 1956 in State of Madhya Pradesh "Gond Gowari" was added
in Entry 12 and after re-organisation of the State, in Districts
which came into State of Bombay, "Gond Gowari" was added by
Scheduled Castes and Scheduled Tribes Lists (Modification)
Order, 1956 dated 29.10.1956 "Gond Gowari" was added. There
have been conscious addition by Scheduled Castes and Scheduled
Tribes Orders (Amendment) Act, 1956 and Scheduled Castes
and Scheduled Tribes Lists (Modification) Order, 1956 as "Gond
Gowari" it cannot be accepted that the Parliament included Tribe
which had become extinct before 1911. The High Court in
paragraph 68 of the judgment has itself referred to Report of
Research Officers dated 12.05.2006. On the basis of the decision
taken in respect Gowari community under the Chairmanship of
Hon'ble Chief Minister on 29.05.2005 Tribal Development
Department was entrusted to ascertain the facts. The Research
Officers on 12.05.2006 personally visited the areas in which
maximum population of Gowari caste and "Gond Gowari" caste
were found in different villages of District Gadchiroli. The High
Court itself has noticed that the Research Officers conducted
research and has also found Entry of "Gond Gowari" made on
01.07.1955. Thus, the Research Officers before 29.10.1956 found
"Gond Gowari" hence the above evidence which was relied by
the High Court itself proved that "Gond Gowari" Tribe was in
existence and found personally by the Research Officers. The
conclusion of the High Court that Research Officers did not find
any Entry as "Gond Gowari" is factually incorrect and contrary to
what was found in paragraph 68. [Paras 75-78][654-C-H; 655-EF; 656-A]
2.4 This Court has already noted the Government
Resolution dated 24.4.1985 issued by the Tribal Development
Department of the State, the difference between "Gond" and
"Gond Gowari", the difference in the character and customs of
Scheduled Tribe community of "Gond Gowari" and community of
Gowari as extracted above. The Government Resolution was
issued after study by the State Government, the High Court
although has noticed above Resolution in paragraph 70 of the
judgment but has given no reason as to why differentiation in two
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Tribes is to be discarded. There is one more reason due to which
the conclusion of the High Court that Scheduled Tribe "Gond
Gowari" was extinct before 1911 has to be flawed. The reason is
that in Writ Petition No.4779 of 2008 filed by Advasis "Gond
Gowari" a prayer was made to quash the Scheduled Tribe
certificates to "Gond Gowari" granted to respondent Nos. 4 to
19. The High Court by passing order has called for certificates of
"Gond Gowari". The High Court further in paragraph 83 after
perusing the records of the Committee found 39 claimants
produced the documents which are in the nature of entries in PI revenue record pertaining to the period 1922-1923. When
before the High Court Scheduled Tribe certificates of "Gond
Gowari" were filed in large number and there were documents
to support by the revenue entries some of which are prior to
1950 and which certificates were sought to be quashed in the
writ petition, the existence of Scheduled Tribe "Gond Gowari"
was very much found. The Caste Scrutiny Committee having
validated the said certificates it was not open for the High Court
to say that Scheduled Tribe "Gond Gowari" became extinct prior
to 1911. The host of the evidence which was before the High
Court including the Research Officers' Report dated 12.05.2006
and Scheduled Tribe certificates of the candidates who were
"Gond Gowari" it was not open for the High Court to come to
the conclusion that Scheduled Tribe "Gond Gowari" was extinct
prior to 1911. The High Court summoned all the certificates and
there was no finding that certificates were fake or persons who
were given certificates are non-existent. The High Court erred
in coming to the conclusion that "Gond Gowari" Tribe was extinct
prior to 1911. Even on the basis of materials which were brought
before the High Court no conclusion could have been drawn that
"Gond Gowari" Tribe was extinct prior to 1911. [Paras 79-81][656B-D, H; 657-A-D]
2.5 Thus, Question Nos.3 and 4 are answered in the following
manner:
ANSWER NO.3
The High Court could not have entered into the issue that
"Gond Gowari" which was Scheduled Tribe mentioned in
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Constitution (Scheduled Tribes) Order, 1950 as amended upto
1976 is no more in existence and became extinct before 1911.
ANSWER NO.4
The conclusion of the High Court in the impugned judgment
that "Gond Gowari" Tribe had been extinct before 1911 is not
supported by the materials which were on record before the High
Court. [Para 82][657-E-G]
3.1 QUESTION NO.5 & 6
The caste 'Gowari' and 'Gond Gowari' are two distinct and
separate castes. Russel and Hiralal have separately dealt with
'Gowari' and 'Gond Gowari' and have categorically stated that
'Gond Gowari' have been treated as distinct castes from 'Gowari'.
The 'Gowari' which is another backward community have not been
included in the list of Scheduled Tribes in the book published by
Anthropological Survey of India, People of India, National Series
Volume III on "The Scheduled Tribes'. [Paras 83][657-H; 658A-B]
3.2 This Court has further noticed the Census of 1891 and
1901 which have been referred by the High Court. The population
of 'Gowari' has been shown separately from the population of
'Gond Gowari'. The ratio of the Constitution Bench judgment of
this Court in Basavalingappa and Bhaiya lal as well as Milindhas
also been noticed. The High Court could not have undertaken
the enquiry to declare the caste which is not included in the
Scheduled Tribes Order, 1950 as a Scheduled Tribe. The High
Court could not have granted a declaration that the caste 'Gowari'
is 'Gond Gowari' which is referred to in Item 28 of Entry 18 of
Constitutional Scheduled Tribes Order, 1950 amended as on date.
The High Court's view that 'Gond Gowari' is not a sub-tribe of
'Gond', hence, its validity cannot be tested on the basis of the
affinity test specified in the Government Order dated 24.04.1985
is also not correct. The report of the first Backward Commission
(1955) by which recommendation was made to add 'Gowari' as a
sub-tribe of 'Gond' was on the basis of study and research by the
Backward Commission which cannot be brushed aside. This Court
has also noticed the authoritative books on Tribes in Central
India that 'Gond Gowari' is a sub-tribe of 'Gond'. In the
THE STATE OF MAHARASHTRA & ANR. v. KESHAO
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Government Resolution dated 29.04.1985 comparative chart was
annexed where general information regarding Scheduled Tribes
and non-Scheduled Tribes i.e. 'Gond Gowari' and 'Gowari' have
been given. The Government Resolution also mentioned that
'Gond Gowari' is also a small sub-tribe of 'Gond' tribe.
[Paras 86-88][859-B-F]
3.3 With the 'Gowari' word 'Gond' is prefixed. The
expression 'Gond Gowari' clearly expresses that the community
'Gond Gowari' has to do with tribe 'Gond'. 'Gond Gowari' is a
community which has affinity with 'Gond' and is sub-tribe of
'Gond'. The entry of 'Gond Gowari' in Scheduled Tribes Order
1950 was as a sub-tribe of 'Gond' which is clear from a report of
the Backward Classes Commission, 1955. When the inclusion of
the entry 'Gond Gowari' was as (sub-tribe of Gond), its affinity
with 'Gond' cannot be ignored on any basis. This Court entertains
its own doubts about the correctness of the ratio of judgment in
the State of Maharashtra versus Mana Adim Jamat Mandal with
regard to a group entry. As per Article 342(1), tribes or tribal
communities or parts or groups within tribes or tribal communities
shall for the purposes of the Constitution be deemed to be
Scheduled Tribes. There has to be some purposes for joining
number of tribes together in one entry, but in case with regard to
'Gond Gowari' the affinity is more than apparent with 'Gond' and
the judgment of this Court in State of Maharashtra versus Mana
Adim Jamat Mandal (Supra) cannot be read as an authority to
hold that 'Gond Gowari' is not a sub-tribe of 'Gond' and no affinity
is required to be established with Gond by the tribe 'Gond
Gowari'. There is no infirmity in Government Resolution dated
24.04.2984 insofar as Scheduled Tribe 'Gond Gowari' is
concerned. [Paras 92, 94][661-B-D, F-H; 662-A]
3.4 ANSWER NO.5
The caste 'Gowari' is not the same as 'Gond Gowari'. The
High Court could not have granted declaration of caste 'Gowari'
as 'Gond Gowari'.
ANSWER NO.6
The High Court is not correct in its view that 'Gond Gowari'
shown as item No.28 in Entry 18 of Scheduled Tribes Order, 1950,
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is not a sub-tribe of 'Gond'. The validity of caste certificate to
'Gond Gowari' has to be tested on the basis of affinity test as
specified in the Government Resolution dated 24.04.1985. In view
of the foregoing discussion, none of the reasons given by the
High Court in paragraph 74 of the judgment are sustainable to
hold that 'Gowari' are entitled to Scheduled Tribes Certificate of
'Gond Gowari'. The entire basis of the judgment of the High Court
that tribe 'Gond Gowari' was completely extinct before 1911
having been found to be flawed, the entire basis of judgment is
knocked out. [Paras 95, 96][662-B-E]
3.5 When the State has expressly after 1979 written to the
Government of India on 06.11.1981 that 'Gowari' community does
not fulfill the criteria of Scheduled Tribe and thereafter after 1984,
several studies were conducted by Tribal department in State of
Maharashtra including report dated 12.05.2006 which reaffirms
that 'Gond Gowari' and 'Gowari' are distinct community and
'Gowari' is not Scheduled Tribe, there was no error in taking
stand before the High Court in the writ petition that 'Gowari' are
not entitled for Scheduled Tribe Certificate. [Para 98][663-A-B]
4. In the ends of justice it is directed that the admission
taken and employment secured by the members of 'Gowari'
community on the basis of Scheduled Tribe certificate granted to
them between 14.08.2018 till date shall not be affected by this
judgment and they shall be allowed to retain the benefit of
Scheduled Tribe obtained by them. However, the above
Scheduled Tribe candidates shall not be entitled to any further
benefit as Scheduled Tribe except their initial admission in
different courses or employment at different places on the
strength of Scheduled Tribe certificate given to the 'Gowari'
Community obtained between 14.08.2018 and this day. The High
Court erred in declaring 'Gowari' as 'Gond Gowari' a Scheduled
Tribes referred to in item 28 in Entry 18.The impugned judgment
of the High Court dated 14.08.2018 is set aside and the writ
petitions dismissed. [Paras 101-103][664-B-D]
State of Maharashtra v. Milind and Ors. (2001) 1 SCC
4 : [2000] 5 Suppl. SCR 65; B. Basavalingappa v. D.
THE STATE OF MAHARASHTRA & ANR. v. KESHAO
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Munichinnappa and Ors. AIR 1965 SC 1269 : [1965]
 SCR 316; Bhaiya Lal v. Harikishan Singh and Ors.
AIR 1965 SC 1557 : [1965] SCR 877 - followed.
Srish Kumar Choudhury v. State of Tripura and Ors.
(1990) Suppl. SCC 220 : [1990] SCR 576; Palghat Jilla
Thandan Smudhaya Samrakshna Samithi and Anr. v.
State of Keralaand Anr. (1994) 1 SCC 359 : [1993]
3 Suppl. SCR 872; Kumari Madhuri Patil and Anr. v.
Addl. Commissioner, Tribal Development and Ors.
(1994) 6 SCC 241 : [1994] 3 Suppl. SCR 50; Nityanand
Sharma and Anr. v. State of Bihar and Ors. (1996) 3
SCC 576 : [1996] 2 SCR 1 - relied on.
State of Maharashtra v. Mana Adim Jamat Mandal
(2006) 4 SCC 98 : [2006] 2 SCR 1142 - held not
applicable.
Adivasi Gowari Samaj Sanghatan, Maharashtra and
Anr. v. Union of India and Ors.Decision dtd. 04.04.1996
of High Court of Bombay at Nagpr in Writ Petition
No.1691 of 1990 - referred to.
Tribes and Castes of the Central Provinces of India by
R. V. Russell and Rai Bahadur Hira Lal in which book
in Volume III - referred to.
Case Law Reference
[2000] 5 Suppl. SCR 65
followed
Para 12
[1965] SCR 316
followed
Para 21
[1965] SCR 877
followed
Para 47
[1990] SCR 576
relied on
Para 49
[1993] 3 Suppl. SCR 872 relied on
Para 51
[1994] 3 Suppl. SCR 50
relied on
Para 52
[1996] 2 SCR 1
relied on
Para 53
[2006] 2 SCR 1142
held not applicable
Para 89
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4096
of 2020.
From the Judgment and Order dated 14.08.2018 of the High Court
of Judicature at Bombay, Nagpur Bench in Writ Petition No. 1742 of
2007.
With
Civil Appeal No.4098-4100, 4097, 4101 of 2020.
Sanjay Jain, ASG, Shyam Divan, C.U. Singh, Mukul Rohatgi, Sr.
Advs., Siddheshwar N. Biradar, Vinayak Bhandari, Ms. Sakshi Ajit Kale,
Ravindra Keshavrao Adsure, Yash Prashant Sonavane, Jaiprakash
Babasaheb Chavan, Ms. Sangita Sagar Pahune Patil, Mohan Sudame,
Ms. Sangita Gupta, Amjid Maqbool, Manish Kumar Gupta, Mohammed
Akhil, Ms. Sansriti Pathak, Raj Bahadur, Amrish Kumar, Ram Parsodkar,
Shakul R. Ghatole, Siddharth Dharmadhikari, Ms. Jaikriti S. Jadeja,
Ms. Astha Sharma, Abhay Anturkar, Ms. Aagam Kaur, Abhikalp Pratap
Singh, Ms. Bansuri Swaraj, Siddhesh Kotwal, Divyansh Tiwari, Ms. Ana
Upadhyay, Nirnimesh Dube, Sachin Patil, Gagan Sanghi, Rameshwar
Prasad Goyal, Sudhanshu S. Choudhari, Kunal Cheema, Ms. Ruchita
Kunal Cheema, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. Leave granted.
2. These appeals filed against the common judgment dated
14.08.2018 of Bombay High Court, Nagpur Bench raise the issues of
seminal importance pertaining to a Scheduled Tribe namely "Gond
Govari" in the State of Maharashtra included in the Constitution
(Scheduled Tribes) Order, 1950 as amended by Scheduled Castes and
Scheduled Tribes Orders (Amendment) Act, 1976 as applicable in the
State of Maharashtra.
3. The Bombay High Court vide judgment dated 14.08.2018 allowed
four writ petitions being Writ Petition No. 1742 of 2007, Writ Petition
No.4779 of 2008, Writ Petition No. 4032 of 2009 and Writ Petition
No.1680 of 2012. We may notice in brief the claim of the writ petitioners
in the aforesaid writ petitions.
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Writ Petition No.1742 of 2007 - Keshao Vishwanath Sunone
Vs. State of Maharashtra and Ors.
4. Keshao Vishwanath Sunone (hereinafter referred to as
"Sunone") claimed himself to belong to Gowari caste. The petitioner's
claim in the writ petition is that Sunone belong to Gowari caste, which
comes under the Scheduled Tribes as there is no Gond Govari caste in
existence. Sunone was appointed as Technical Assistant on 29.08.1983.
The caste certificate of Gond Govari Scheduled Tribe was issued to
Sunone on 03.07.1986. The caste certificate of Sunone was sent for
verification of caste. The Caste Scrutiny Committee vide its order dated
13.01.2007 invalidated the caste certificate of Sunone. Challenging the
order of Caste Scrutiny Committee dated 13.01.2007, writ petition was
filed with following prayers:-
"a) issue appropriate writ, order or directions thereby quash and
set aside an order passed by the Scheduled Tribe Certificate
Scrutiny Committee, Amravati Division, Amravati dated
13.1.2007;
b)
stay and effect and operation of the impugned order dated
13.1.2007 passed by the Scheduled Tribe Certificate Scrutiny
Committee, Amravati Division, Amravati during the pendency
of this petition and to protect the services of the petitioners;
c)
grant any other relief as this Hon'ble Court deems fit and
proper in the facts and circumstances of the case."
Writ Petition No.4779 of 2008 - Adivasi Gond Govari
(Gowari) Sewa Mandal through its President Vs. State of
Maharashtra and Ors.
5. The writ petitioner claimed to be an association working for the
welfare of people belonging to Gond Govari community. The petitioner
association had filed a writ petition questing the caste validity certificate
issued to respondent Nos.4 to 19 as Scheduled Tribe (Gond Govari).
Petitioners' case was that without conducting an enquiry, the caste validity
certificate was issued. The petitioners' case further was that the validity
certificate issued as Gond Govari Scheduled Tribe was wrongly issued
since the respondents belonged to Gowari community and they did not
belong to Gond Govari community.
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6. In the writ petition, the petitioner has prayed for quashing the
caste validity certificates issued to respondent Nos.4 to 19. A further
direction was sought that Caste Scrutiny Committee, Nagpur not to issue
caste validity certificate pertaining to Gond Govari Scheduled Tribe and
the detailed inquiries be conducted. It was further prayed that
Commissioner, Tribal Research and Training Institute, Pune and Caste
Scrutiny Committee Nagpur be directed to conduct full place enquiry in
the relation to Gowari and Gond Govari entries.
Writ Petition No.4032 of 2009 - Adim Gowari Samaj Vikas
Mandal and Ors. Vs. State of Maharashtra and Anr.
7. The petitioner association registered in 2004 claimed to be
working in the field of betterment and welfare of members of people
belonging to Gowari community. In the writ petition, reference was made
to the Government Resolution dated 24.04.1985, whereby the Government
issued guidelines for taking precautionary measures while issuing the
tribe certificate. Alongwith the Government Resolution, a chart was issued
containing a comparative study, which relate to members of actual
Scheduled Tribes and other castes having similar nomenclature. The
writ petition contains a detailed reference to a subsequent Government
Resolution dated 15.06.1995 where under the Government Resolution
of the State of Maharashtra, Gowari was treated to be other backward
community, special backward class with 2% reservation. In the writ
petition, validity of the Government Resolution dated 24.06.1985
prescribing the guidelines by way of affinity test to claim the Gowari
community was challenged.
Writ Petition No.1680 of 2012 - Adiwasi Gond Govari
(Gowari) Seva Mandal Vs. Union of India & Ors.
8. By notification dated 16.06.2011 issued by the Government of
India, Gowari community was included in the other backward class
category from common Central List in respect of State of Maharashtra.
The writ petitioner claimed that Gowari community and its members
have been included in Entry No.18 of the Scheduled Tribes order in
relation to State of Maharashtra. The direction was sought to instruct
the Sub-Divisional Magistrate to issue the caste certificates to the persons
belonging to Gowari community as Scheduled Tribes. The writ petitioner
has also challenged the Government Resolutions dated 24.04.1985,
13.06.1995 and 15.06.1995. In the writ petition, following prayers were
made:-
THE STATE OF MAHARASHTRA & ANR. v. KESHAO
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"(a) issue appropriate writ, order or direction in the nature of
mandamus thereby quash and set aside impugned Gazette
Notification dated 16.06.2011 (Annexure No.9) issued by
Government of India as unconstitutional as regards Gowari
community and further delete the entry of Gowari community
from the common central list of OBC category in respect of
State of Maharashtra;
(b) by issuance of appropriate writ, order or direction remove
the anamoly from the Entry 18 of Para 19 of the Scheduled
Castes and Scheduled Tribes Order, 1976 as regards Gond
Gowari community;
(c) by issuance of appropriate writ, order or direction declare
that the Gowari community and its members have been
included in the Entry 18 of Para 19 of Scheduled Castes and
Scheduled Tribes Order, 1976;
(d) by issuance of appropriate writ, order or direction in the nature
mandamus direct the State Government and instruct Sub
Divisional Offices, Magistrates throughout the State to issue
caste certificates to the people belonging to Gowari
community being Scheduled Tribe category people and further
direct Cast Scrutiny Committee to issue validity certificates
to Gowari Community people being Scheduled Tribe;
(e) issue appropriate writ, order or direction in the nature of
mandamus, thereby quash and set aside the Govt. Resolution,
dt.24.4.1985, 13.6.1995, & 15.6.1995 being illegal, at
Annexure Nos.10, 11 &. 12;
(f)
grant any other relief which may be deemed fit and proper in
the facts and circumstances of the case."
9. The Division Bench vide its impugned judgment dated
14.08.2018 allowed the writ petitions by following order:-
"ORDER
(1) We hold and declare that the tribe Gond Gowari was completely
extinct before 1911 and no trace of it was found either in the
Maratha Country of C.P. and Berar or in the State of Madhya
Pradesh prior to 1956.
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(2) We hold and declare that there did not exist any tribe as Gond
Gowari as on 29-10-1956, i.e. the date of its inclusion as 28th Item
in Entry No. 18 of the Constitution (Scheduled Tribes) Order, 1950
in relation to the State of Maharashtra and it was Gowari
community alone shown as Gond Gowari, therein.
(3) The tribe Gond Gowari shown as 28th Item in Entry No.