HC Has Erred In Declaring A Tribe ‘Gowari’ As ‘Gond Gowari’- A ST without proper reasoning- SC.

The High Court erred in coming to the conclusion that "Gond Gowari" Tribe was extinct prior to 1911. We, thus, conclude that 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. (Para 81)

The State Of Maharashtra & Anr. v. Keshao Vishwanath Sonone & Anr.

Civil Appeal No. 4096 Of 2020 (Arising Out Of SLP (C)No.15044 Of 2020)

18th December 2020.

The Hon'ble Supreme Court Justices Ashok Bhushan, R. Subhash Reddy And M.R. Shah in an appeal against an High Court of Maharashtra judgment set aside the impugned judgment and allowed the appeal.

These appeals were filed against the common judgment of Bombay High Court, Nagpur Bench raising 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 Act, 1976 as applicable in the State of Maharashtra.

The learned senior counsel submits that the High Court committed error in tinkering with the Entries under the Order, 1950 which could only be done by a Parliamentary Act as per constitutional provision of Art.342(2). A detailed procedure is to be followed to amend the Order, 1950 which could not have been done by the High Court as has been done in the impugned judgment. The High Court clearly erred in holding that Scheduled Tribe 'Gond Gowari' is not in existence when the caste was included in Constitution (Scheduled Tribes) Order, 1950. He submits that Anthropological Expert Report which was on record before the High Court also clearly stated that 'Gond Gowari' is a Scheduled Tribe which is different with 'Gowari'. It is submitted that there have been several attempts by 'Gowari' to obtain status of Scheduled Tribes by including them within the List of Scheduled Tribes through Parliamentary enactment and having failed in all their attempts, they have filed the writ petitions for seeking declaration which could not have been granted by a Court of law. The fact that they have been recognized as Special Backward Class and other Backward Class category by the State of Maharashtra and Government of India respectively is indicative of fact that they are not Scheduled Tribes but are belonging to other Backward Class. The learned Additional Solicitor General also submits that the High Court in the impugned judgment has substituted its own opinion in place of the opinion of the Parliament which is not permissible in law.

Learned senior counsel appearing for the respondents supporting the judgment of the High Court contends that the High Court has rightly restored the benefit of Scheduled Tribes 'Gowari' to which they were entitled in law. It is submitted that in fact there is no Tribe of “Gond Gowari” and it is in fact Gowari which was included in the Constitution (Scheduled Tribes) Order, 1950. He submits that for Gowari to recognise as Scheduled Tribes there is no necessity of showing any affinity with Gond. He submits that the State of Maharashtra right from 1967 has been taking the stand that Gowari be included as separate category of Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950, the State cannot suddenly take a U-turn and start denying the claim of Gowari to be Scheduled Tribe. The exercise undertaken by the High Court is in consonance with the law laid down by the Constitution Bench in B. Basavalingappa vs. D. Munichinnappa and Ors., AIR 1965 SC 1269. It is submitted that it is the Gowari who were found present in Census after 1911 and it were Gowari who were entitled to be treated as Scheduled Tribes and Gowari being not a sub-caste of Gond they were not required to prove any affinity with Gond. He submits that there are no competitive claims of Gond Gowari, there being no Tribe of Gond Gowari in existence as of now. It is submitted that Gowari community alone was shown as 'Gond Gowari'. It is submitted that first Backward Classes Commission had recommended Gowari under the Sub-group/Sub-tribes 'Gond' group, which was to be added with Gond, but by some mistake instead of Gowari, Gond Gowari was included in the Entry in the Scheduled Castes and Scheduled Tribes Lists (Amendment) Bill,1956.

The issues raised before the court based on the contentions are as follows:

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 the 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 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?

The answers to the questions of law expounded in the judgment can be summed up as follows:

Article 342(2) contains a provision conferring authority only to the Parliament to include and exclude a Scheduled Tribe in the list as specified in Art.342(1). The circumstances in which this Court in B. Basavalingappa’s case approved the looking of the evidence were peculiar to that case and has no application in the facts of the present case. In view of the ratio of judgments of this Court, 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 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. This court observed that the High Court could not have entered into the issue that "Gond Gowari" which was Scheduled Tribe mentioned in the Order, 1950 as amended upto 1976 is no more in existence and became extinct before 1911 and 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. The court held that the caste ‘Gowari’ is not the same as ‘Gond Gowari’ and the High Court could not have granted declaration of caste ‘Gowari’ as ‘Gond Gowari’. 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, 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 line with the above legality, the court observed the following:

"We in the ends of justice directs 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." (Para 101)

Consequently, the appeal was allowed.

View/ download Judgment: The State Of Maharashtra & Anr. v. Keshao Vishwanath Sonone & Anr.

M. Maheswari