Holding

The Bawa community from Sindh is covered by the Nomadic tribe reservation under the 1961 resolution, and the State cannot, by executive fiat, nullify a judicial decision; the 1987 resolution is ultra vires.

Summary

The petitioners, members of the Hindu Bawa community who migrated from Sindh, claimed that they were entitled to reservation benefits for Nomadic tribes under the Maharashtra Government Resolution of 21 November 1961, which listed "Gosavi" and its synonyms, including Bawa. The State of Maharashtra issued a later resolution on 1 April 1987 attempting to exclude Sindhi Bawas, which the High Court held to be an illegal exercise of executive power aimed at overturning the earlier judgment in Vijay Daulatani's case. The Supreme Court affirmed that the historical resolutions and notifications had consistently included the Bawa community without regional restriction, thereby entitling Sindhi Bawas to the benefits. It further held that neither the executive nor the legislature can render a judicial decision ineffective by mere declaration; any such action must alter the legal basis of the judgment. Consequently, the Court dismissed the State's appeals, upholding the High Court's decision and the validity of the reservation for the Bawa community.

Issues considered

Whether the Bawa community from Sindh can claim reservation benefits under the Nomadic tribe entry (Gosavi) as per the Government Resolution dated 21 November 1961.
Whether the Government Resolution dated 1 April 1987, which sought to exclude the Sindhi Bawa community, is beyond the executive power of the State and illegal for attempting to set aside the decision in Vijay Daulatani's case.

Legislation cited

Constitution of Indias. Article 16(4)
Government of India Act, 1935

Subjects

ReservationNomadic tribesAffirmative actionExecutive powerJudicial reviewArticle 16(4)State of MaharashtraBawa communitySindh migrants

Judgment

--y
THE STATE OF MAHARASHTRA AND ORS. A
v.
KUMAR! TANUJA

FEBRUARY 2, 1999

[S.P. BHARUCHA AND N. SANTOSH HEGDE, JJ.) B

Constitution of India, 1950-Anicle 16(4)-Reservation of-Nomadic
tribes in Maharashtra-Government Notification dated 21.11.1961 is-
sued-Bawa community from Sindh without any regional restlictions notified
as nomadic tribe by then State of Bombay and also by present State of c
Maharashtr~Held, ·Bawa community from Sindh are also entitled to the
benefits of reservation.

Arlie/es 162 and 254-Executive power of State-Scope of-Judicial
decision cannot be rendered ineffective by Executive fiat-Bawa community
from Sindh-Held to be nomadic tribe in State of Maharashtra, by High D
Cowt-Bawa community of Sindh excluded from list of Nomadic tribes vide
resolution of State Govemment dated 1.4.1987 simply declaring by way of
clarification-Held to be beyond Executive power of State-Also, the sub-
sequent resolution not an amendment to the earlier resolution.

Anicle 162-Decision of State for recognition of a community as
E
nomadic tlibe-To be for good reasons and should be specifi~lassification
not to be left to the Executive-Held, inclusion of Bawa community originally
from State of Maharashtra and exclusion of Bawa community migrated from
Sindh from benefits of reservation is arbitrary and based on irrelevant con-
sideration. F
Respondent belongs to the Hindu Bawa Nomadic tribe which was
originally recognised as Other Backward Class in Sindh. Even prior to
partition of India, Bawa community of Sindh was recognised as a nomadic
tribe in the entire Bombay Presidency. However, the benefits of various
reservations in the State of Bombay was not given to the community of G
__,, 'Bawas' who had migrated from the State of Sindh. The respondent filed
a writ petition in the High Court. The High Court i:ame to the conclusion
that the Government Resolution dated 1.4.1987 which excluded Bawa
community of Sindh from the list of Nomadic tribe was to get over the
decision in Vijay Daulatani's case and it was not open to the State to en~er H
315
316 SUPREME COURT REPORTS (1999] 1 S.C.R.
· A upon judicial power to set aside a binding judgment of a Court by issuing
such Executive fiat. Hence this appeal by the State Government.

Dismissing the appeals, this Court

HELD : I. The various Resolutions and Notifications issued by the
B Government of the State of Bombay and. also the present State of
Maharashtra, from time to time, ~howed that Bawa community without
reference to any region, was included as a synonym of Bairagi/Gosavi
which, in turn, was notified as a Nomadic tribe. This was the position even
in the Resolution of the State dated 21.11.1961. Therefore, the view taken
C by the High Court that the Bawa community from Sindh are entitled to
the benefits reserved for Nomadic tribe by Government Resolution dated
21.11.1961 does not require any interference. [322-A-D]

2. Judicial decisions cannot be rendered ineffective by Executive fiat.
D If the Executive or the Legislature wants to render a judicial decision
ineffective, it can only do so by removing or altering or neutralising the
legal basis of the judgment which is sought to be made ineffective and that
neither the Legislature nor the Executive has the power of simply declaring
the earlier decisions of the courts as invalid or not binding. Therefore, the
Full Bench of the High Court was right in coming to the conclusion that
E the Government Resolution dated 1.4.1987, read as a whole, shows that it
came to be issued to set at naught or to get over the decision of the High
Court in VijayDaultani's case. [321-D-E]

Vijay Shriclzand Daulatani v. State of Maharashtra & Ors., (1985) 2
p Bombay Case Reporter 488; Municipal Corporation of the City of Ahem-
dabad Etc. v. The New Shrock Spinning & Weaving Co. Ltd... [1970] 2 SCC
280; Madan Mohan Pathak v. Union of India, [1978] 2 SCC 50; State of
Haryana & Others v. Kamal Cooperative Fanners Society Ltd. & Others,
[1993] 2 SCC 363 and in the matter of Cauve1y Water Disputes Tribunal,
(1993] Supp. 11 SCC 96 (II), referred to.
G
3.1. The State has every right to recognise a particular community in
a particular manner but the same should be done for good reasons and after
application of mind to all the relevant factors. Such a decision of the State
must be specific and cannot be left to be inferred from surrounding cir-
H cumstances, Nor can such decision be based on irrelevant materials. (324-B]
STATE v. K.M, TANUJA [N. SANTOSH HEGDE, J.] 317
-·-, 3.2. In the instant case, having included the community 'Gosavis' in A
'- the category of Nomadic tribe of which 'Bawas' claim to be a synonym, it
cannot be left to the Executive to contend that such reservation benefit is
available only to the members of the 'Gosavi' or 'Bawa' community who
are orginally from the State of Maharashtra and not to Gosavis or Bawas
who had migrated from Sindh. Such classification of excluding the Gosavis
B
or Bawas who had migrated from Sindh, from the benefit of reservation
available to Nomadic tribe is wholly arbitrary and not based on any
relevant consideration. [324-C]

Mani Chandra Shekhar Rao v. Dean, Seth G.S. Medical College & Ors.,
[1990] 3 sec 130, relied on. c
4. The Resolution dated 1.4.1987 does not show that the State of
Maharashtra intended to amend its earlier Resolution dated 21.11.1961
nor does the Resolution dated 1.4.1987 contain any material which could
be treated as a basis to show that the State brought about an amendment
D
.
~.

~
to its earlier Resolution dated 21.11.1961. [324-H; 325-H]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2308 of
1989 Etc.

From the Judgment and Order dated 3.11.88 of the Bombay High
Court in W.P. No. 1317 of 1988. E

V.A. Mohta, S.S. Shinde and D.M. Nargolkar for the Appellants.

Arnn K. Sinha for R.N .. Keshwani for the Respondent.

The Judgment of the Court was delivered by F
N. SANTOSH HEGDE, J. 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, G
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. H
318 SUPREME COURT REPORTS (1999] 1 S.C.R.

A 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 the respondent herein that she
belonged to the Hindu Bawa Nomadic tribe which, according to her, was
B 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
C 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' com-
D munity 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 & Ors., (1985) 2 Bombay Case Reporter 488. In the said
case, the Division Bench had held irrespective of the fact that at a par-
ticular point of time, Sindh ceased to be a part of the Bombay Presidency,
E 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.

F 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 reservations in the Stale 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
G which had migrated from the State of Sindh, it was specifically stated sc 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
H claimed to be a synonym of Bairagi community, to claim the benefit of
STATEv. K.M. TANUJA[N.SANTOSHHEGDE,J.] 319
-~
reservation made available to Nomadic tribes. It was also generally con- A
tended 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 heard the said writ
petition, framed the following questions for its consideration :
B
" "(a) Whether 'Bawas' from Sindh can claim the benefit of entry
Gosavi or its synonym as included in the list of Nomadic Tribe
vide Government Resolution dated 21st November, 1961 as
amended from time to time?

(b) Whether the Government Resolution dated 1st April 1987
c
which directs that Sindhi community is not covered by the said
entry, is illegal as by the said resolution Government has sought
to set nought the decision of this Court in Vijay Daulatani's case?

(c) What should be the nature of evidence to be adduced before D
the Scrutiny Committee for establishing the fact that a particular
person belongs to Nomadic Tribe?

(d) Whether it is necessary to establish mutual affinity amongst
the tribal communities specified in the Schedule?"
E
After considering the various contentions raised on behalf of the
parties and the judgments cited before it, it partly allowed the writ petition.
The qigh Court took the view that the members of the Bawa community
who migrated from Sindh are deemed to have been included in the
reservation list of Nomadic tribes declared as such by the State Govern- F
ment. The High Court further declared that the Government Resolution
dated 1.4.1987 was beyond the executive power of the State. The court
accordingly took the view that if all the Government Resolutions are read
together with the historical background, it is clear that in Sindh which was
once a part of the Bombay Presidency, the 'Bawa' community was included
as a Nomadic tribe in various Government Resolutions issued form time G
-, to time. On factual aspect of the matter, the court took the view that the
petitioner will have to establish mutual affinity amongst the tribal com-
munities specified in the Schedule before appropriate authorities and,
accordingly, remanded the matter to the Scrutiny Committee for recon-
sidering the case on merits. While dismissing the question framed as point H
,)

320 SUPREME COURT REPORTS [1999] 1 S.C.R.
A (a) (supra), the High Court held that it is not disputed that initially Sindh y-

was part of the Bombay Presidency and in Census Reports of India
(Bombay Presidency) of 1911 in the column relating to caste or tribe
"Bairagi" is included and it is clarified that the said community was found ,
'•
in Kararichi, Hyderabad and Shikarpur. It is further held that in the column
B dealing with the "principal occupation" it is mentioned they are devotees ·
and religious beggars. And in the column synonyms "Gosavi" is referred to.
The High Court further noticed that in the Census report of 1921 of the
Bombay Presidency, Bawa caste is included in the list of backward classes.
In Appendix 'F to the Census report of 1931 for Bombay Presidency, it is
specifically stated that Bawa, Atit, Bairagi, Gosavi or Gussain and Sadhu
C castes covered the whole Presidency, and their traditional or habitual
occupation was that of beggars or devotees. It noticed the argument of the
State that the Government Resolution dated 29.5.1933 had made it clear
that the orders pased under the said Resolution do not apply to Sindh, but
explained away this position by saying that it is obviously because Sindh
D had by then become separated from the Bombay Presidency by the
Government of India Act, 1935. Therefore, separate Notifications were
issued for the State of Bombay as well as State of Sindh. The High Court
also noticed the fact that in the newly created State of Sindh, a Resolution
dated 7.9.1942 was issued including the community 'Bawa' in the list of
Other Backward Classes The High Court further stated that in the list of
E Other Backward Communities, Bawa was included even by the then
Government of Bombay vide Resolution dated 23.4.1942. Even after Par-
tition of India when refugees from Sindh migrated and settled in various
parts of the country including the State of Bombay, the Government of
Bombay by Resolution dated 1.11.1950 included the community called
F 'Bawa' in other backward communities. Thereafter by a Government Resolu-
tion dated 21.11.1961 issued by the Government of Maharashtra, a list of
Nomadic tribes was notified and as per Schedule Il to this Resolution, which
deals with Nomadic tribes in Maharashtra, the community 'Bawa' is included
with its synonym 'Bairagi'. The High Court also noticed the fact that in the
accompaniment to the Government Circular of Education & Social Welfare
G Department, dated 1.10.1962, the said Entry was continued.

According to the High Court, the Entry thereafter came to be
amended from time to time and the Entry, as corrected vide Government
Resolution dated 9.12.1977 read with corrigendum dated 10.4.1978 read as
H follows:
STATEv. KM. TANUJA[N.SANTOSHHEGDE,J.] 321

"Community. Synonyms A
"Gosavi' 1. Bava, 2. Bairagi, 3. Bharati,

4. Girigosavi, 5. Bharati Gosavi,

6. Saraswati Parbat, 7. Sagar, B
8. Ban or Van, 9. Teerth Ashram,

10. Aranya Gharbari, 11. Sanyasi,

12. Nathapanthi Gosavi." c
In view of the above background and in view of the historical fact
that Sindh was once a part of the Bombay Presidency, the High Court
recorded a finding that Bawa caste also came to be included in the
Resolutions issued by the then Government of Bombay.
D
With regard to the sec0nd question framed for consideration by the
High Court, it came to the conclusion that the Government Resolution
dated 1.4.1987 read as a whole, made it obvious that it came to be issued
to set at naught to or get over the decision of that court in Daulatani's case
(supra). Hence, it held that it was not open to the State, while purporting
to clarify the position, to enter upon judicial power and set aside a binding
E
judgment of a court by issuing such executive fiat.

In this appeal, Mr. Mohta learned senior counsel for the State of
Maharashtra contended that the High Court erred in coming to the con~
clusion that the Bawas in Sindh can also claim the benefit of the Entry F
Gosavi or its synonym as included in the list of Nomadic tribe vide
Government Resolution dated 21.1.1961 or as amended, from time to time,
because the State of Maharashtra never intended to include Bawa comunity
from the erstwhile State of Sindh, to be a part of Nomadic tribe. According
to the learned counsel, if it was the intention of the State to include this
community also as Nomadic tribe then the various Resolutions of the State G
would have specifically mentioned "Bawa community from Sindh" in their
Resolutions. In the absence of such specific statement, according to the
learned counsel, it is only those members of the Bawa community who are
originally from the State of Bombay or Maharashtra alone are entitled to
the benefits reserved for Nomadic tribes. We are unable to agree with this H
,-

322 SUPREME COURT REPORTS [1999] 1 S.C.R.
A argument of the State. As noticed by the High Court, the various Resolu-
tions and Notifications issued by the Government of the then State of
Bombay and also the present State of Maharashtra, from time, to time.
showed that Bawa community without reference to any region, was in-
cluded as a synonyms of Bairagi/Gosavi which, in turn, was notified as a
B Nomadic tribe. This was the position even in the Resolution of the State
dated 21.11.1961. It is to be noted that when Sindh was part of Bombay
Presidency, admittedly the Bawas of that region were also treated as
belonging to the Nomadic tribe in the entire Presidency of the then
. Bombay, even when Sindh got separated from Bombay Presidency, the
subsequent Resolution of the Bombay Government continued to show
C Bairagi and Gosavi communities with their synonyms as Nomadic tribes
without there being any regional restrictions. This is obviously because by
then many members of the Bawa community from Sindh region had
migrated to various parts of Bombay Presidency. Therefore, we are of the
considered opinion that the view taken by the Bombay High Court that the
Bawa community from Sindh are entitled to the benefits reserved for
D Nomadic tribe vide Government Resolution dated 21.11.1961 does not
require any interference from us.

It was next contended on behalf of the State that in view of the
Resolution of the State of Maharashtra dated 1.4.1987, there is a clear
E declaration that those communities which had migrated from the State of
Sindh are excluded from the list of Vimukta Jati and Nomadic tribes. The
High Court considering a similar argument had specifically held that this
Resolution, read as a whole, shows that it came to be issued to set at nought
or to get over its earlier decision in Daulatani's case. The High Court
F further held that it is well settled that the State while purporting to clarify
the position cannot enter upon judicial power and set aside a binding
judgment of the court by issuing an executive fiat.

We are in respectful agreement with the above finding of the High
Court. The question whether an executive or a legislature can overrule a
G judgment of a court of law and, if so, to what extent, has come for
consideration before this Court in a number of cases. Reference can be
made in this regard to the decisions of this Court in (1) Municipal Corpora-
tion of the City of Ahmedabad Etc. v. 771e New Shrock Spinning & Weaving
Co. Ltd. Etc. Etc., [1970] 2 SCC 280; (2) Madan Mohan Pathak v. Union of
H India, [1978] 2 SCC 50; (3) State of Haryana & Ors. v. Kamal Cooperative
. (

STATEv. K.M. TANUJA(N.SANTOSHHEGDE,J.] 323
Fam1ers' Society Ltd. & Ors., (1993] 2 SCC 363 and in Special Reference No. A
- 'r
1of1991 in the matter of Cauvery Water Disputes Tribunal, (1993] Supp 1
sec 96 (II).
These decisions have ~pecifically held that if the Executive or the
Legislature wants to render a judicial decision ineffective, it can only do
so by removing or altering or neutralising the legal basis of the judgment
B
which is sought to be made ineffective and that neither the Legislature nor
the Executive has the power of simply declaring the earlier decisions of the
courts as invalid or not ·binding. In the instant case, judgment in Vijay
Daulatani's case was rendered after considering all the existing Govern-
ment Resolutions and Circulars. It is by interpreting these Resolutions and c
Circulars, the Division Bench of the Bombay High Court came to the
conclusion that the community 'Bawa' which migrated from the State of
Sindh, was included in the list of Nomadic tribes. This finding was affirmed
by this Court while dismissing the special leave petition filed by the State .
against the said judgment. A perusal of the Resolution dated 1.4.1987
shows that the said Resolution merely reiterates the various Resolutions
D
passed earlier by the Government which were considered and rejected in
Vijay Daulatani's case. The state has not considered any fresh material nor
has it received any fresh report from competent bodies other than the one
that was placed before the Division Bench in Vijay Daulatani's case to
declare by way of clarification that the 'Bawa' community of Sindhi Samaj E
are not entitled to be included in the list of Vimukta Jati and Nomadic
tribes. As stated by the Full Bench of the High Court, a perusal of the
Resolution dated 1.4.1987 shows that, in effect, it was merely overruling the
judgment of the High Court in Vijay Daulatani's case, which is not permis-
sible in law. The State has not altered or neutralised the legal basis of the
F
judgment of the High Court in Daulatani's case by producing relevant
.... additional material or by applying its mind to the reasons given by the
Bombay High Court in Daulatani's case. Therefore, we are of the opinion
that the Full Bench of the Bombay High Court was right in coming to the
conclusion that the Government Resolution dated 1.4.1987, read as a
whole, shows that it came to be issued to set at naught or to get over the G
decision of the Bombay High Court in Vijay Daulatani's case.

... It is next contended by Mr. Mohta that it is open to the State either
to recognise or not to recognise a particular community as a Nomadic tribe.
In support of this contention, reliance was placed upon a judgment of this H
324 SUPREME COURT REPORTS [1999] 1 S.C.R.
A Court in the case of Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical
College & Ors., (1990] 3 SCC 130. There can be no quarrel with this
proposition. The State has every right to recognise a particular community
in a particular manner but the same should be done for good reasons and
after application of mind to all the relevant factors. Such a decision of the
State must be specifc and cannot be left to be inferred from surrounding
B circumstances. Nor can such a decision be based on irrelevant materials.
In the instant case, having included the community 'Gosavis' in the category .;

of Nomadic tribe of which 'Bawas' claim to be a synonym, it cannot be left
to the Executive to contend such reservation benefit is available only to the
members of the 'Gosavi' or 'Bawa' community who are originally from the
C State of Maharashtra and not to Gosavis or Bawas who had migrated from
Sindh. Such classification of excluding the Gosavis or Bawas who migrated
from Sindh, from the benefit of reservation available to Nomadic tribe is
wholly arbitrary and not based on any relevant consideration. The State in
the instant case has not done any exercise which was open to it while
D passing the Resolution dated 1.4.1987 to assess the social and ethnical
background of the members of the Bawa community who migrated from
Sindh. It merely persisted on 'reiterating its stand taken by it in Daulatani's
case which stand was negatived by the High Court as well as by the
Supreme Court. If the State, for cogent reasons and based on relevant
materials, had come to the conclusion that Bawas from Sindh region had
E lost their disadvantages in the society after their migration from Sindh, the
validity of such a Resolution might have been upheld by the High Court.
The State having failed to make any such .enquiry cannot assert its right to
recognise or derecognise a community by merely passing a Resolution like
the one dated 1.4.1987. Therefore, we are of the view that the contention
F of Mr. Mohta, based on the judgment of this Court in Marri Chandra
(supra) cannot be accepted.

Lastly, it is contended on behalf of the State that the Resolution
dated 1.4.1987 may be read as an amendment to the Resolution dated
21.11.1961 issued by the State consequent to "'.hich the reservation made
G in favour of Nomadic tribes stands excluded in regard to the members of
Sindhi Samaj. We are unable to accept this contention for more than one
~e~son.. Fir~t of all, it is n?t the case of the S~ate of Maharashtra, as seen ~·.
m its pleadmgs, that by vrrtue of the Resolution dated 1.4.1987 they have
brought about any amendment in its earlier Resolution dated 21.11.1961
H nor such an argument was put forward before the High Court. f:ven
\,,
'1 STATEv. KM. TANUJA[N.SANtOSHHEGDE,J.] 325

-" otherwise, a careful reading of the Resolution dated 1.4.1987 does not show A
that the State of Maharashtra intended to amended its earlier Resolution
dated 21.11.1961 nor does the Rtsolution dated 1.4.1987 contain any
material which could be treated as a basis to show that the State brought
about an amendment to its earlier Resolution dated 21.11.1961. For all.
these reasons, the last contention of the State also fails.
B
For the foregoing reasons, this appeal fails and is hereby dismissed.
No costs.

CA. No. 2696/89 :

For the reasons stated in the judgment in CA No. 2308/89, as above, C
this appeal also fails and is hereby dismissed. No costs.

NJ. Appeals dismissed:

-