STATE OF MAHARASHTRA Vs. KUMARI TANUJA

JUDGEMENT

(1.) The respondent in C. A. No. 2308/89 filed a writ petition in the High Court of Bombay, being W. P. No. 1317/88. In the said writ petition, the respondent herein challenged the order of the Caste Scrutiny Committee (for short 'the Committee') dated 27-10-1996 and the order of the Additional Commissioner, Konkan Division, Bombay, dated 12-11-1987 wherein the said authorities had held that the respondent was not entitled to claim the benefit of reservation for the Nomadic tribe in the State of Maharashtra. The respondent further challenged the vires of the Government Resolution dated 1-4-1987 on the ground that it was beyond the executive powers of the State.

(2.) The said writ petition was initially heard by a Division Bench of the Bombay High Court which referred the same to a larger Bench for disposal in view of some conflicting judgments on the questions involved. The petition thereafter came to be heard by a Full Bench of the Bombay High Court where it was contended on behalf of the respondent herein that she belonged to the Hindu Bawa Nomadic tribe which, according to her, was originally recognised as an Other Backward Class in Sindh, West Pakistan. It is stated that prior to the Partition of India, Sindh was a part of the then Bombay Presidency and as per the various Government orders of the then Bombay Presidency, Hindu Bawa community of Sindh was recognised as a Nomadic tribe in the entire Presidency. It is further contended that after partition of the country, a number of members of Sindhi community migrated to India and settled down in various parts of India, including the then Presidency of Bombay. It is further contended that these migrants continued to practice their original traditions and that they socially and ethnically belonged to the same community as 'Gosavi' or 'Bawa' community notified by the Government of Maharashtra as a Nomadic tribe. Strong reliance was placed on an earlier case decided by a Division Bench of the Bombay High Court in the case of Vijay Shrichand Daulatani v. State of Maharashtra, (1985) 2 Bom CR 488. In the said case, the Division Bench had held irrespective of the fact that at a particular point of time, Sindh ceased to be a part of the Bombay Presidency, the Bawa community which migrated from Sindh had acquired the synonym of the community known as 'Gosavi' which was notified as a Nomadic tribe in the Presidency of Bombay and, thereafter, continued to be as such even in the successor State of Maharashtra.

(3.) On behalf of the State of Maharashtra, it was contended before the High Court that after the Report submitted by a Committee chaired by Mr. Starte in the year 1928, the benefit of various reservation in the State of Bombay was not given to the community of 'Bawas' who had migrated from the State of Sindh. It was also contended that whenever the State had intended to grant any reservation benefits to such of those communities which had migrated from the State of Sindh. It was specifically stated so in the Government notifications. It was contended that since the Government notifications did not specifically state that either 'Bairagis' or 'Gosavis' of the State of Sindh were also treated as Nomadic tribe, it was not open to the petitioner who was a migrant belonging to Bawa community which is claimed to be a synonym of Bairagi community, to claim the benefit of reservation made available to Nomadic tribes. It was also generally contended that the Bawa community which migrated from Sindh, were not socially or ethnically connected with the Bairagis or Gosavis or their synonym community 'Bawas' who were the original residents of the State of Bombay. The Full Bench of the Bombay High Court which heard the said writ petition, framed the following questions for its consideration :