Supreme Court of India Dadaji Alias Dina vs Sukhdeobabu & Ors on 7 November, 1979 Equivalent citations: 1980 AIR 150, 1980 SCR (1)1135

Supreme Court of India

Dadaji Alias Dina vs Sukhdeobabu & Ors on 7 November, 1979

Equivalent citations: 1980 AIR 150, 1980 SCR (1)1135

Author: E Venkataramiah

Bench: Venkataramiah, E.S. (J)

           PETITIONER:
DADAJI ALIAS DINA

 Vs.

RESPONDENT:
SUKHDEOBABU & ORS.

DATE OF JUDGMENT07/11/1979

BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
TULZAPURKAR, V.D.

CITATION:
 1980 AIR  150    1980 SCR  (1)1135
 1980 SCC  (1) 621
 CITATOR INFO :
 RF     1982 SC 149  (250)


ACT:
     Representation   of    People   Act   1951-Constitution
(Scheduled Tribes)  Order, 1950  read  as  "Gond  including"
certain tribes-Amendment  made in  1976 omitted  "including"
and added  "Mana" as  a tribe  having affinity with "Gonds"-
Omission of  "including" if  means any "Mana" community not
having affinity   with  "Gonds"-Kshatriya   Bidwaik   Mana"
community, if a Scheduled Tribe.



HEADNOTE:
     Entry 12 of Part IX of the Schedule to the Constitution
(Scheduled Tribes) Order 1950 prior to its amendment in 1956
read as  "Gond including  Media (Maria) and Mudia, (Muria)".
By the Scheduled Castes and Scheduled Tribes (Amendment) Act
63 of  1956 the  said Entry  was substituted  by Entry 12 in
Paragraph 5  of Part  VII-A of the Schedule to the Order. It
read as  "12 Gond,  including: Arakh  or  Arrah...Mana...."
"Mana" was  the  30th community  amongst  the  communities
included in  that Entry.  In 1976 the entire Schedule to the
order as  it stood prior to the amendment was substituted by
a new  Schedule. Entry 18 of  Part IX of the new Schedule
corresponding to  Entry 12,  prior to  the amendment, showed
'Mana' community  as one  of the communities included in the
group of communities headed by "Gond" community.
     In the election to the State Assembly held in February,
1978  the   appellant  was   declared  successful   from   a
constituency reserved  for Scheduled Tribes. In his election
petition impugning the appellant's election respondent no. 1
who was  the unsuccessful  candidate challenged the election
on the ground that  the appellant  did not belong to any of
the Scheduled Tribes specified in Part IX of the Schedule to
the 1950  Order as  it stood at the time of the election and
was therefore  not qualified  to be  chosen to fill the seat
reserved for the Scheduled Tribes.
     The High Court set aside the appellant's election.
     In appeal to this  Court it was contended on behalf of
the appellant that while the word "including" in Entry 12 of
the 1950  Order as  it stood  after its  amendment  in 1956
showed that  the communities  referred to therein were those
having affinity  with the  Gond Tribe  and its omission  in
Entry 18  as amended  in  1976 showed that  the  group  of
communities mentioned in this Entry, need not necessarily be
those having  mutual affinity  amongst them so that a person
belonging to  any "Mana"  community should  be treated as a
person belonging  to a Scheduled Tribe even though it had no
affinity with the "Gond" tribe.
     Dismissing the appeal
^
     HELD: 1.  The High Court was right in setting aside the
appellant's election on the ground that he did not belong to
a Schedule Tribe. [1147 B]
1136
     2. (a)  Even when the Order,  before its amendment in
1976  used   the  term "including",  this  Court  giving  a
restricted  meaning   to  "Mana",   held  that only  'Mana'
community which had affinity with the 'Gond' community could
be considered  as a  Scheduled Tribe  and  that  'Kshatriya
Bidwaik Mana'  community to  which  the  appellant  belonged
could not be treated as a Scheduled Tribe. [1143F-G]
     (b) A  reading of Part IX of the Schedule to the Order
shows that  certain communities  had been  grouped  together
under a  single Entry  in the  light of  Article 342  of the
Constitution which  requires part  of  or  groups  within  a
tribal community   also  to  be  specified  in  the  Order.
Therefore the  communities mentioned  against  any  specific
Entry are  those which have mutual  affinity amongst  them.
[1144C-E]
     (c) Merely  because a new Schedule had been substituted
for the  old one  it cannot  be  said  that  Parliament  had
intended to  treat persons  belonging to  "Kshatriya Bidwaik
Mana" community  also as  a Scheduled Tribe. Where there are
two communities  with the same name one having affinity with
a tribe  and the other not having anything to do with it and
both are  treated as  Scheduled Tribes,  the community which
has affinity  with another  tribe is  shown along with it in
the same group against a single Entry and the other is shown
against a  different Entry.  Therefore the  Mana  community
included in  Entry 18  can only  be that  which has affinity
with 'Gonds'  and any  other community which also bears the
name 'Mana'  but does  not have  any such affinity cannot be
deemed to  fall within the scope  of 'Mana'  in  Entry  18.
[1144H, 1145C-D]
     3.  The   term  "including"  is  sometimes  used  in  a
definition to  give an extended meaning to the word defined.
Sometimes it  is used  as a synonym for "means" and not as a
word of extension but limitation. [1143C-D]
     Dilworth v.  Commissioner of  Stamps, [1899] A.C. 99 at
pp.  105-106,  South  Gujarat  Roofing Tiles  Manufacturers
Association &  Anr. v. State of  Gujarat &  Anr., [1977]  1
S.C.R. 878, referred to.



JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2229 of 1978.

From the Judgment and Order dated 12-10-1978 of the Bombay High Court in Election Petition No. 2/78.

N.N. Keshwani and Ramesh N. Keshwani for the Appellant. A.K. Ganguli for the Respondent.

The Judgment of the Court was delivered by VENKATARAMIAH, J.-This appeal is filed under section 116-A of the Representation of the People Act, 1951 (Act No. 43 of 1951) (hereinafter referred to as 'the Act') against the judgment of the High Court of Bombay (Nagpur Bench) in Election Petition No. 2 of 1978 by which the election of the appellant to the Maharashtra Legislative Assembly from the Armori Constituency (No. 151) in Chandrapur District at the general election held in February, 1978 was set aside.

The Armori Constituency was reserved for Scheduled Tribes. The appellant and respondents Nos. 1 to 4 were the candidates at the election. As the appellant secured the highest number of votes, he was declared as having been elected by the Returning Officer. In his nomination paper, the appellant declared that he belonged to 'Mana' community. Respondents Nos. 1, 2 and 4 declared themselves as belonging to 'Pradhan' community and respondent No. 3 claimed that he belonged to 'Raj Gond' community. After the result of the election was declared, respondent No. 1 who had secured the next highest number of votes at the election filed an election petition under section 81 of the Act before the High Court of Bombay calling in question the election of the appellant. One of the grounds urged in the petition was that the appellant did not belong to any of the Scheduled Tribes specified in Part IX of the Schedule to the Constitution (Scheduled Tribes) Order, 1950 (hereinafter referred to as 'the Order') as it stood at the time of the election and was not, therefore, qualified to be chosen to fill the seat which was reserved for Scheduled Tribes. It was alleged that the appellant belonged to Kshatriya Bidwaik Mana community and not to the 'Mana' community referred to in Entry No. 18 of Part IX of the Schedule to the Order. Respondent No. 1 also claimed that in the event of the appellant's election being declared as void, the Court should make a declaration that he (respondent No. 1) himself had been duly elected. The High Court upheld the contention of respondent No. 1 that the appellant did not belong to any of the Scheduled Tribes referred to in Part IX of the Schedule to the Order and declared his election as void. The other prayer made by respondent No. 1 that he should be declared as elected was, however, rejected. Aggrieved by the judgment of the High Court, the appellant has come up in appeal to this Court.

It should be mentioned at this stage that in the general election held in the year 1967, the appellant was declared as a successful candidate from the very same constituency which was a constituency reserved for Scheduled Tribes at that time also and that on an election petition being filed against the appellant, the High Court held that he did not belong to any of the Scheduled Tribes mentioned in the appropriate part of the Schedule to the Order at that time and therefore he was not qualified to contest the election. Accordingly his election was set aside. In the appeal filed before this Court, the judgment of the High Court was affirmed vide Dina v. Narayan Singh.(1) In the course of the decision of this Court, it was held that the appellant belonged to 'Kshatriya Bidwaik Mana' community and not to the 'Mana' community referred to in Entry No. 12 of Paragraph 5 of Part VII-A of the Schedule to the Order as it stood at the time of the said election for the reasons to which we shall advert hereafter.

In the election petition out of which this appeal arises, respondent No. 1 pleaded that the appellant belonged to 'Kshatriya Bidwaik Mana' community which was not a tribe mentioned in the Schedule to the Order and that the appellant was not a member of the 'Mana' community referred to in Entry No. 18 of Part IX of the Schedule to the Order as it stood at the time of the election in question. It was further alleged that the said 'Mana' community was a sub- tribe of Gond tribe and it had no relationship with the 'Kshatriya Bidwaik Mana' community to which the appellant belonged. The appellant denied the above allegation that there were two types of Manas viz. (a) 'Mana' a sub-tribe of 'Gond' referred to in Entry No. 18 of Part IX of the Schedule to the Order and (b) 'Kshatriya Bidwaik Mana' community. He further contended that the 'Mana' community to which he belonged had been included in that Entry after the Schedule to the Order was amended by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976.

In order to appreciate the rival contentions, it is necessary to make a brief survey of the law bearing on the question. Article 332 of the Constitution provides that seats shall be reserved for the Scheduled Castes and the Scheduled Tribes, except the Scheduled Tribes in the tribal areas of Assam and Nagaland, in the Legislative Assembly of every State and that the number of seats for the Scheduled Castes and the Scheduled Tribes so reserved shall bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State or part of the State, as the case may be, in respect of which seats are so reserved, bears to the total population of the State. The expression 'Scheduled Tribes' with which we are concerned in this case is defined in clause (25) of Article 366 of the Constitution as such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of the Constitution. Article 342(1) of the Constitution provides that 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 tribes or tribal communities or parts of or groups, within tribes or tribal communities which shall for the purposes of the Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be. It was in pursuance of this constitutional provision that the President issued the Order specifying the tribes or tribal communities which should be deemed to be Scheduled Tribes in relation to the several parts of India. Article 342(2) of the Constitution confers the power on the Parliament to modify by law the order issued under Article 342(1) by including in or excluding from the list of Scheduled Tribes specified therein any tribe or tribal community or part of or group within any tribe or tribal community. Section 5(a) of the Act provides that a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless, in the case of a seat reserved for the Scheduled Tribes of that State he is a member of any of those tribes and is an elector for any Assembly constituency in that State. The area in which the appellant and respondents Nos. 1 to 4 are residing is situate within the area known as Gadchiroli and Sironcha Tahsils of the Chandrapur District of the State of Maharashtra. Prior to the amendment made in 1956, Entry No. 12 in the relevant part of the Schedule to the Order read as "Gond including Media (Maria) and Mudia (Muria)". By the Scheduled Castes and Scheduled Tribes (Amendment) Act 63 of 1956, the said Entry No. 12 was substituted by Entry No. 12 in Paragraph (5) of Part VII-A of the Schedule to the Order which was as follows:-

"12. Gond, including-

Arakh or Arrakh Kandra Agaria Kalanga Asur Khatola Badi Maria or Koitar Bada Maria Koya Bhatola Khirwar or Khirwara Bhimma Kucha Maria Bhuta, Koilabhut Kuchaki Maria or Kollabhuti Bhar Madia (Maria) Bisonhorn Maria Mana Chota Maria Mannewar Dandami Maria Moghya or Mogia or Monghya Dhuru or Dhurwa Mudia (Muria) Dhoba Nagarchi Dhulia Nagwanshi Dorla Ojha Gaiki Raj Gatta or Gatti Sonjhari Jhareka Gaita Thatia or Thotya Gond Gowari Wade Maria or Vade Maria."

Hill Maria The 30th tribe amongst the tribes included within the broad classification of 'Gond' tribe is 'Mana' tribe. As mentioned earlier, the claim of the appellant that he belonged to the said tribe in the previous case was negatived. In August, 1967, a Bill was introduced in the Lok Sabha proposing to amend the Schedule to the Order. By that Bill, it was proposed to substitute the Schedule to the Order as it stood then by a new Schedule. Part VIII of the new Schedule related to Maharashtra. Entry No. 22 in that Part read as follows:

___________________________________________________________ Tribe Synonym Sub-tribe __________________________________________________________ 1 2 3 ___________________________________________________________ "22. Gond Koitur Arakh Kalanga Bada Madia Kandra Bhatola Koya Chhota Madi Khirwar Dandami Mad Kucha Madia Dhulia Kuchaki Madia Dhuru or Dwa Machalir Madia Dhoba Mana Dorla Mannewar Gaiki Mudia Gaita Nagarchi Gatta or Gi Nagwanshi Naikpod Ojha Sonjhari Jharekha Thatia or Thotia."

_________________________________ __________________________ In the proposed Entry, 'Mana' community was shown as a sub-tribe of 'Gond' tribe. With the concurrence of the Rajya Sabha, the Bill was referred to a Joint Committee of the Parliament presided over by Shri Anil K. Chanda. The Report of the Joint Committee on the Bill was presented to the Lok Sabha on November 17, 1969. In so far as the amendments proposed to the Schedule to the Order were concerned, the Joint Committee inter alia observed at Paragraph 20(ii) thus:-

"20(ii). The Committee feel that the proposal to specify the tribes, the synonyms and the sub-tribes in three separate columns will not be appropriate. As in the case of Schedule Castes Orders, the Committee are of the view that it would be best to follow the wording of article 342(1) of the Constitution and specify. "The tribes or tribal communities, or parts of, or groups within, tribes or tribal communities". Each of the Scheduled Tribes Orders have been modified accordingly, and in the lists of Scheduled Tribes the main tribe name is written first followed by the synonyms and subtribes in alphabetical order."

The Joint Committee also recommended that the Mana sub-

tribe referred to in the Bill should be excluded from the Schedule to the Order altogether. Thereafter the matter was again considered by the Parliament. In the Statement of Objects and Reasons dated May 12, 1976 attached to the Bill, it was stated as follows:-

"Under the Scheduled Castes and Scheduled Tribes Orders some communities have been specified as Scheduled Castes or as Scheduled Tribes only in certain areas of the State concerned and not in respect of the whole State. This has been causing difficulties to member of these communities in the areas where they have not been so specified. The present Bill generally seeks to remove these area restrictions. However, in cases where continuance of such restrictions were specifically recommended by the Joint Committee on the Scheduled Castes and Scheduled Tribes Orders (Amendment) Bill, 1967, no change is being effected. The Committee had also recommended exclusion of certain communities from the lists of Scheduled Castes and Scheduled Tribes. These exclusions are not being made at present and such communities are being retained in the lists with the present area restrictions. Such of the communities in respect of which the Joint Committee had recommended exclusion on the ground that they were not found in a State are, however, being excluded if there were no returns in respect of these communities in the censuses of 1961 and 1971............."

Thereafter the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (Act No. 108 of 1976) was passed by the Parliament and it had come into force before the election in question was held. By the above Act, the entire Schedule to the Order as it stood prior to the amendment was substituted by a new Schedule consisting of XVI parts. Part IX of the new Schedule relates to the State of Maharashtra. Entry No. 18 of Part IX of the new Schedule corresponds to Entry No. 22 of the Bill referred to above and to Entry No. 12 in Paragraph (5) of Part VII-A of the Order as it stood prior to the amendment. Entry No. 18 of Part IX of the Schedule to the Order after the amendment reads thus:-

"18. Gond; Rajgond, Arakh, Arrakh, Agaria, Asur Badi Maria, Bada Maria, Bhatola, Bhimma, Bhuta, Koilabhuta, Koilabhuti, Bhar, Bisonhorn Maria, Chota Maria, Dhandami Maria, Dhuru, Dhurwa, Dhoba, Dhulia, Dorla, Gaiki, Gatta, Gatti, Gaita, Gond Gowari, Hill Maria, Kandra, Kalanga, Khatola, Koitar, Koya, Khirwar, Khirwara, Kucha Maria, Kuchaki Maria, Madia, Maria, Mana, Mannewar, Moghya, Mogia, Monghnya, Mudia, Muria, Nagarchi, Naikpod, Nagwanshi, Ojha, Raj, Sonjhari Jhareka, Thatia, Thotya, Wade Maria, Vade Maria."

It is seen from the above Entry that 'Mana' community is one of the communities included in the group of communities headed by Gond community. It appears that the recommendation of the Joint Committee to exclude it from the Schedule to the Order was not accepted by the Parliament.

If the Schedule to the Order had not undergone any change, there would not have been any room for argument that the appellant was a person belonging to a Scheduled Tribe eligible to contest as a candidate at an election to fill a seat from the reserved constituency as the question was conducted by the judgment of this Court in Dina's case (supra). Mr. M. M. Phadke, learned counsel for the appellant, however, argued that a comparison of Entry No. 12 as it stood prior to the amendment and Entry No. 18 as it stood on the date of the election in question would show that the Parliament while substituting the Schedule by a new Schedule by Act No. 108 of 1976 intended to make a departure from the old law and that every person who belonged to any 'Mana' community whether it had any affinity with Gond tribe or not would be entitled to the privilege of contesting at the election from the reserved constituency. The question for consideration before us therefore is whether by reason of the amendment made in the year 1976, persons belonging to the Mana community to which the appellant belonged and which was not a Scheduled Tribe before such amendment can be considered as persons belonging to a Scheduled Tribe after such amendment.

Apart from Article 366(25) of the Constitution, there is no other definition of the expression "Scheduled Tribes". Scheduled Tribes are, therefore, only those which are deemed under Article 342 of the Constitution to be Scheduled Tribes. Hence in order to find out whether a community is a Scheduled Tribe or not, we have only to see the order which is made under Article 342 of the Constitution.

Mr. M. N. Phadke, learned counsel for the appellant drew the attention of the Court to the omission of the word 'including' which according to him, had been used in Entry No. 12 of the Schedule as it stood prior to the amendment to indicate that the communities mentioned after it were those having affinity with the 'Gond' tribe, from the new Entry No. 18 of Part IX of the Schedule to the Order and contended that the group of communities mentioned in Entry No. 18 need not necessarily be those having mutual affinity amongst them. On the above basis, it was urged on behalf of the appellant that a person belonging to any 'Mana' community should be treated as a person belonging to a Scheduled Tribe even though it had no affinity with the 'Gond' tribe. We find it difficult to agree with the submission made by him. Sometimes, the word 'including' is used in a definition to give an extended meaning also to the word defined. In Dilworth v. Commissioner of Stamps(1), Lord Watson observed that when the word 'include' is used in an interpretation clause to enlarge the meaning of words or phrases in a statute "these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import but also those things which the interpretation clause declares that they shall include". Sometimes the word 'includes' is used as a synonym for 'means' and not as a word of extension, but limitation. This again is clear from the following observations of Lord Watson in the decision referred to above:-

"But the word 'include' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include', and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions."

In South Gujarat Roofing Tiles Manufacturers Association & Anr. v. State of Gujarat & Anr.(2) this Court interpreted the expression 'includes' found in Entry No. 22 which had been included in Part I of the Schedule to the Minimum Wages Act, 1948 by the Gujarat Government as being equivalent to 'means'. It is significant that even when it was possible to give an extended meaning to the expression 'Mana' appearing in Entry No. 12 in the Order before the amendment relying on the presence of the word 'including' in that Entry, this Court gave a restricted meaning to it and held that only that 'Mana' community which had affinity with the Gond community could be considered as a Scheduled Tribe and that Kshatriya Bidwaik Mana community to which the appellant belonged could not be treated as a Scheduled Tribe. Now that the word 'including' has been omitted from the present Entry No. 18, is it open to construe it as including communities which had no affinity with the principal tribe 'Gond' mentioned first in that Entry?

We do not think that it is possible to do so. Even though the proceedings of the Joint Committee cannot be relied upon for the purpose of construing the Order, they may be looked into to ascertain the circumstances in which the several communities were grouped under one Entry or the other. The extract from the proceedings of the Joint Committee quoted above shows that in order to avoid confusion, the Committee recommended to follow the words in Article 342 of the Constitution and to enlist the "tribes or tribal communities or parts of, or groups within, tribes or tribal communities" under specific Entries. It also recommended that the main tribe should be mentioned first in any Entry followed by its synonyms and its sub-tribes in alphabetical order. Even without the aid of the proceedings of the Joint Committee, it is possible to arrive at the same conclusion in the context in which the word 'Mana' is found in Entry No. 18. Part IX of the Schedule to the Order as it stands today contains 47 Entries. In certain entries only one community is mentioned and in certain others. two or more communities are mentioned. It is obvious that certain communities have been grouped together under a single entry in the light of Article 342 of the Constitution which requires parts of or groups within a tribal community also to be specified in the order issued thereunder. It is, therefore, reasonable to hold that the communities mentioned against any specific entry are those which have mutual affinity amongst them.

It is also not possible to hold that by replacing the Schedule to the Order by a new Schedule by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, the Parliament intended to treat persons belonging to 'Kshatriya Bidwaik Mana' community also as Scheduled Tribes. If really that was the intention, the Parliament would have mentioned 'Mana' community under an independent entry. The inclusion of the 'Naikpod' community amongst the group of communities in Entry No. 18 for the first time also is of no special significance since the appellant has admitted in the course of his evidence that 'Naikpod' is also a tribe, found alongwith other Scheduled Tribes in that area and it is not stated that the said tribe has no affinity with them. It may have been omitted from the order earlier due to oversight.

A reading of the Schedule to the Order also shows that where there are two communities with the same name, one having affinity with a tribe and the other not having anything to do with such tribe and both are treated as Scheduled Tribes the community which has affinity with another tribe is shown alongwith it in the same group against a single entry and the other is shown against a different entry. This is illus-

trated by the inclusion of the 'koya' community having affinity with 'Gonds' in Entry No. 18 and the 'koya' community having no such affinity in Entry No. 33 of Part IX of the Schedule to the Order. If the Parliament intended to treat the appellant's community also as a Scheduled Tribe, it would have shown 'Mana' community under a separate entry. No such entry is found in the Schedule.

Some arguments were addressed at the Bar on the basis of the difference in the punctuation marks used in Entry 12 and in entry 18. It is well known that punctuation marks by themselves do not control the meaning of a statute when its meaning is otherwise obvious. Hence we do not feel that we should deal with it in greater detail having regard to the nature of this case.

We are, therefore of the view that the 'Mana' community included in Entry No. 18 can only be that which has affinity with 'Gonds' and any other community which also bears the name 'Mana' but does not have any such affinity cannot be deemed to fall within the scope of 'Mana' in Entry No. 18.

The appellant has categorically admitted in the course of his evidence that there was no connection between his community and Gonds. His evidence is, "We have no concern with the Gond community also. The customs and traditions with regand to marriage of our community are different from those of the Gonds". He has also stated in his deposition that 'I have no concern whatsoever with Gonds. There are sub-castes amongst Gonds. Some of them are Arak, Gowari, Raj gond, Bada Magia, Madia, Ojha and Wanjari. It is not true that Mana is a sub-caste of the Gonds. There is no community known as Gond'. That the appellant was a member of the 'Mana' community which has the qualification of 'Kshatriya' is established by his admission in his deposition that he was a member of the Kshatriya Mana Shikshana Sahayak Mandal, Chandrapur. Although in another part of his statement of objections, there are some contradictory statements, the following plea in para 9 of the said statement makes it obvious that there is a community called Kshatriya Bidwaik Mana community:-

"9-As to Para 11 :-It is admitted that the respondent No. 1 was the Vice-President for some time and also an active worker of the Kshatriya Bidwaik Mana Shikshana Sanastha. The object of the said institution was not limited to spread education amongst the boys belonging to Kshatriya Bidwaik Mana community, and it is denied that the said society has been founded in order to give educational facilities to the students belonging to this community only".

In the appeal filed by the appellant where the question was whether he belonged to a Scheduled Tribe or not, this Court observed:

"That there are sub-tribes amongst the Gonds is not denied. Names of some of those sub-tribes are included in Entry 12 of Item 5 of Part VII-A of the Schedule is also a matter which is beyond dispute. The customs, manners, form of worship, and dress of the members of the Maratha Mana community are all different from the customs manner, form of worship and dress of the Gonds. No rational explanation has been suggested why the Parliament should have, while including under Entry 12 several sub-tribes of Gonds, specified Mana under that entry, if Manas had no affinity at all with Gonds. The appellant was uncertain about the claim that he was making. In the nomination paper filed by him he claim to be a Gond (Mana). His subsequent explanation that he did so because the rules so required cannot be accepted as true. He relied upon the status of a Mana in the belief that all Manas were intended to be given the benefit of the privileges conferred by the Scheduled Tribes Order. He described himself as a Gond (Mana). Realizing thereafter that his community had no affinity with the Gonds he stated that he was not a Gond; that he had nothing to do with the Gonds, and that his community had also nothing to do with the Gonds. He rested his claim solely upon the description in Entry 12 in item 5 of Part VIIA of the Schedule. But the form in which the entry is made prima facie indicates that in the view of the Legislature, Mana was a sub-tribe of Gonds and a Mana who was a member of the sub-tribe of Gonds alone was entitled to the privileges conferred by the Schedule to the Scheduled Tribes Order.

We therefore agree with the High Court that the appellant, merely because he belonged to the Mana community amongst the Marathas, is not eligible to stand as a candidate for election to the Maharashtra Legislative Assembly from the reserved seat of the Armori constituency in Gadchiroli tahsil of Chanda District."

The position has not since changed even though the Schedule to the Order is substituted by a new Schedule. There has only been a re-arrangement of the Schedule with slight modification which has no effect on the question at issue in this case.

The High Court was, therefore, right in rejecting the case of the appellant that he belonged to a Scheduled Tribe, and in setting aside his election to the Maharashtra Legislative Assembly.

In the result the appeal fails and is hereby dismissed with costs.

P.B.R.        Appeal dismissed.

With Thanks From : http://indiankanoon.org/doc/365658/

Supreme Court of India B. Basavalingappa vs D. Munichinnappa on 23 September, 1964 Equivalent citations: 1965 AIR 1269, 1965 SCR (1) 316

Supreme Court of India

B. Basavalingappa vs D. Munichinnappa on 23 September, 1964

Equivalent citations: 1965 AIR 1269, 1965 SCR (1) 316

Author: K Wanchoo

Bench: Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Hidayatullah, M., Dayal, Raghubar, Mudholkar, J.R.

           PETITIONER:
B.   BASAVALINGAPPA

 Vs.

RESPONDENT:
D. MUNICHINNAPPA

DATE OF JUDGMENT:
23/09/1964

BENCH:
WANCHOO, K.N.
BENCH:
WANCHOO, K.N.
GAJENDRAGADKAR, P.B. (CJ)
HIDAYATULLAH, M.
DAYAL, RAGHUBAR
MUDHOLKAR, J.R.

CITATION:
 1965 AIR 1269    1965 SCR  (1) 316
 CITATOR INFO :
 R     1965 SC1557  (8)
 R     1968 SC 929  (3)
 R     1969 SC 597  (5)
 R     1971 SC2533  (32)
 F     1972 SC 598  (13)
 F     1990 SC 727  (12A)
 E     1990 SC 991  (8)


ACT:
   Election-Scheduled Castes  constituency-Voddar   caste
whether  the  same  as Bhovi  caste-Evidence  recorded   by
Tribunal  to this effect  whether  permissible--Constitution
(Scheduled Castes) Order, 1950.



HEADNOTE:
   M, the candidate elected from Bangalore South  (Scheduled
Castes) constituency claimed to belong to Bhovi caste  which
was   one   of the  Scheduled Castes mentioned   in  the
Constitution  (Scheduled  Castes) Order, 1950, but  in  the
election petition filed against him by the appellant it  was
alleged that he belonged to Voddar caste which was not men-
tioned in the Order and that therefore he was not  entitled
to stand for election from the Scheduled Caste constituency.
The  Election Tribunal recorded evidence on behalf of  M  to
the  effect  that the Voddar caste was none other  than  the
Bhovi caste.  The Tribunal held on the basis of the evidence
produced  that Bhovi was a sub-caste of the  Voddar  caste,
that  M  did  not belong to the Bhovi  sub-caste,  and that
therefore   he  was  not  entitled  to   stand   from  the
constituency. The  High Court however held  that  although
Voddar caste  as such was not included in  the  order,  yet
considering-the facts and circumstances in existence at  the
time  when  the Order was passed in 1950,  the Bhovi  caste
mentioned therein was the game as the Voddar caste.  On this
finding  it dismissed the election petition.  The  appellant
filed an appeal before this Court by special leave.
It  was contended on behalf of the appellant that : (1)  the
High  Court was wrong in looking into the evidence that  was
produced  before  the  Tribunal  and  then  coming  to  the
conclusion  that the caste Bhovi mentioned in the Order  was
meant for the caste Voddar (2) the Tribunal should not have
allowed evidence to be produced which would have the  effect
of  modifying the Order which was exhaustive, and gave full
particulars  of  each- scheduled  caste  recognised  by  it
including alternative names and alternative spellings.
HELD : From the evidence it was clear that in 1950 when  the
Order was passed there was no caste in the then Mysore State
which was known as Bhovi.  The Order could not have intended
to recognise a caste which did not exist.  It was  therefore
necessary  to find out which caste was meant by the  use  of
the  name  Bhovi and for that purpose evidence was  rightly
recorded  by the Tribunal and acted upon by the High  Court.
It is only in such extraordinary circumstances that evidence
can be so recorded.  Generally speaking it would not be open
to  any person to lead evidence to establish that his  caste
includes  or is the same as another caste which is  notified
in the Order. [32OA-G; 322F-G].



JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 401 of 1964. Appeal by special leave from the judgment and order dated October 14, 1963, of the Mysore High Court in N.F.A. No. 139 of 1963 and M.F.A. No. 141 of 1963.

G. S. Pathak and Dipak Datta Choudhri, for the appellant. M. K. Nambiyar, and R. Gopalakrishnan, for respondent No.

1. The Judgment of the Court was delivered by Wanchoo J. This is an appeal by special leave against the judgment of the Mysore High Court in an election matter. An election was held to the Bangalore South (Scheduled Castes) constituency in February 1962. Four persons stood for election including the appellant and Munichinnappa respondent No. 1, who obtained the highest number of votes and was declared elected. The appellant then filed an election petition challenging the election of respondent No. 1 on a number of grounds. In the present appeal we are concerned only with one ground, namely, that respondent No. 1 was not a member of any of, the scheduled castes mentioned in the Constitution (Scheduled Castes) Order, 1950 (hereinafter referred to as the Order). Respondent No. 1 claimed that he belonged to the scheduled caste listed as Bhovi in the Order. The appellant on the other hand contended that respondent No. 1 was a Voddar by caste and that Voddar was not a scheduled caste specified in the Order and consequently respondent No. 1 could not stand for election from a scheduled caste constituency. The Election Tribunal held that the caste mentioned as Bhovi in the Order was a subcaste amongst the Voddars and that only this sub- caste was included in the Order and not the entire Voddar caste. The Tribunal also held that respondent No. 1 did not belong to the sub-caste of Bhovi and therefore was not eligible for standing as a candidate from the scheduled caste constituency. Consequently the election was set aside and re-election ordered by the Tribunal.

Respondent No. 1 went in appeal to the High Court and his contention was that he belonged to the scheduled caste Bhovi mentioned in the Order and was therefore entitled to stand for election from the scheduled caste constituency. The High Court held that Voddar caste as such was not included in the Order, but considering the facts and circumstances in existence at the time when the Order was passed in 1950, the Bhovi caste mentioned therein was no other than Voddar caste. It therefore allowed the appeal holding that respondent No. 1 being a Voddar must be held to be a member of the Bhovi caste mentioned in the Order and dismissed the election petition. The High Court having refused leave to appeal, the appellant got special leave from this Court, and that is how the matter has come up before US.

The main contention on behalf of the appellant is that a person is only entitled to stand for election from a scheduled caste constituency if he is a member of a caste specified in the Order and that it is not open to any one to claim that though he is not a member of a caste specified in the Order and is a member of some other caste, that other caste is included in the caste specified in the Order. It is submitted that wherever a caste has more than one name, the Order specifies the other name in brackets and that even where a particular caste is spelt in more than one way, the Order has included in the same entry the various spellings of the same caste. Therefore, as the caste Bhovi specified in the Order does not mention the caste Voddar in brackets thereafter, it was not open to the Tribunal to take evidence to the effect that Voddar caste is no other than the Bhovi caste. It is therefore urged that the High Court was wrong in looking into the evidence that was produced before the Tribunal and then coming to the conclusion that the caste Bhovi mentioned in the Order was meant for the caste Voddar and that such evidence should not have been allowed by the Tribunal. If such evidence had not been allowed the respondent who is a Voddar by caste could not stand for election for the Voddar caste is not mentioned in the Order at all.

Article 341 of the Constitution which deals with Scheduled Castes is as follows:-

"(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."

Clause (1) provides that the President may with respect to any 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 the Constitution be deemed to be Scheduled Castes in relation to that State. The object of this provision obviously is to avoid all disputes as to whether a particular caste is a Scheduled Caste or not and only those castes can be Scheduled Castes which are notified in the Order made by the President under Art. 341 after consultation with the Governor where it relates to such castes in a State. Clause (2) then provides that Parliament may by law include in or exclude from the list of scheduled castes specified in a notification issued under cl. (1) any caste, race or tribe or part of or group within any caste, race or tribe. The power was thus given to Parliament to modify the notification made by the President under cl. (1). Further cl. (2) goes on to provide that a notification issued under cl. (1) shall not be varied by any subsequent notification, thus making the notification by the President final for all times except for modification by law as provided by cl. (2). Clearly therefore Art. 341 provides for a notification and for its finality except when altered by Parliament by law. The argument on behalf of the- appellant is based on the provisions of Art. 341 and it is urged that a notification once made is final and cannot even be revised by the President and can only be modified by inclusion or exclusion by law by Parliament. Therefore in view of this stringent provision of the Constitution with respect to a notification issued under cl. (1) it is not open to any one to include any caste as coming within the notification on the basis of evidence-oral or documentary,- if the caste in question does not find specific mention in the terms of the notification. It is therefore urged that the Tribunal was wrong in allowing evidence to show that Voddar caste was the same as the Bhovi caste mentioned in the Order and that the High Court was in error when it held on the basis of such evidence that Voddar caste was the same as the Bhovi caste specified in the Order and therefore respondent No. 1 was entitled to stand for election because he belonged to Voddar caste which was the same as the Bhovi cast.

It may be accepted that it is not open to make any modifica- tion 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.

But that in our opinion does not conclude the matter in the peculiar circumstances of the present case. 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. The Order refers to a scheduled caste known as Bhovi in the Mysore State as it was before 1956 and therefore it must be accepted that there was some caste which the President intended to include after consultation with the Rajpramukh in the Order, when the Order mentions the caste Bhovi as a scheduled caste. It cannot be accepted that the President included the caste Bhovi in the Order though there was no such caste at all in the Mysore State as it existed before 1956. 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. If 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. 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 deter- mine which was the caste which was meant by that word on its inclusion in the Order. It is this peculiar circumstance therefore 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 the re- organisation of 1956.

Let us then turn to the evidence which has been given in this case to prove that it was Voddar caste which was meant by the word Bhovi included in the Order. In this connection reliance has been placed on a communication made to the then government of Mysore as far back as 1944 on behalf of Voddar caste and the Order of the then government of Mysore in February 1946. It seems that a resolution was passed by the Voddar caste ,at a conference in July 1944 in which it was resolved that the name of that caste be changed from Voddar to Bhovi. This resolution was processed in the Secretariat. Eventually an order was passed on February 2, 1946 in these terms:

"Government are pleased to direct that the community known as 'Vodda' be in future called 'Boyi' in all Government communications and records."

Since then it seems that in all government records the Voddar caste has been known as Boyi, for it is not disputed that Voddar and Vodda are the same. It seems therefore reasonable to infer when the President made the Order in 1950 after consultation with the Rajpramukh of Mysore whom he was bound to consult under the Constitution before passing the Order with respect to the State of Mysore that the caste Vodda was included in the Order as Bhovi because of the Order of the then government of Mysore of February 1946. We shall deal with the difference in spelling later but it does appear that the caste Voddar was not mentioned as such in the Order because the name of that caste was changed in 1946 for all government purposes by the Order of the then government of Mysore. Therefore if the Order had mentioned the caste as 'Boyi' there would have been no difficulty in holding that it meant the Voddar caste in view of the Order of the then Mysore Government of February 1946 to the effect that the Voddars had given up their original name and had changed it to Boyis from 1946.

It is however urged that the Order does not mention the caste Boyi but the caste Bholvi and that wherever there is a difference in spelling of the same caste, the Order has provided for that also; (see for example, Bhambi, Bhambhi, Shenva, Chenva; etc.). Therefore when the Order provided the inclusion of the caste Bhovi therein it could not refer to Voddar caste, for the change of name that was sanctioned by the then government of Mysore in 1946 was from Voddar to Boyi. Here again there is force in the contention that where the same caste was spelt differently, the different spellings have been provided in the Order as illustrated already. 'But the same difficulty which faced us in considering the question whether Voddar caste was meant by the caste Bhovi included in the Order arises when we consider the difference in spellings, for it is not in dispute that there was no caste known as Bhovi in the Mysore State as it existed in 1950 when the Order was passed. 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. In that connection the High Court has held that ever since the Order of 1946, the Voddar caste has been variously spelt as Boyi, Bovi, and Bhovi in English, though the Kanada equivalent is one and the same. The High Court therefore has not attached any importance to the change in the English spelling in the peculiar circumstances of this case. In this connection attention may be drawn to the notification of the then government of Mysore dated February 2, 1946 where Voddar caste is spelt in three ways in the same notification; at one place it is spelt as Voddara, at another place as Yoddar and at two places as Vodda. It seems therefore that we cannot attach undue importance to the spelling in English in this case when we know that there was no specific caste known as Bhovi in Mysore State as it was before 1956 and we have to determine which was the caste which was meant by the use of that term in the, Order. In this connection we may also draw attention to another copy of the same notification which was issued by another department of the Government. In that copy Voddara has been spelt as Vaddara and Boyis as Bovis. It seems to us therefore that the High Court was right in the peculiar circumstances of the present case in not attaching any importance to difference in spelling in English, and to treat Bhoviv as the same as Boyis. We do not think it necessary to refer to the various census reports, which have been referred to by the Tribunal and the High Court for they only show bow the same caste has been differently spelt. In the circumstances therefore we agree with the High Court that respondent No. 1 though Voddar by caste belongs to the scheduled caste of Bhovi mentioned in the Order. We may again repeat that we have referred to the evidence in this case only because there was undoubtedly 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 effect that (for- example) caste A mentioned in the Order includes or was the same as caste B where caste A does exist in the area to which the Order applies. In this view of the matter, the appeal fails and is hereby dismissed with costs.

Appeal dismissed.

With Thanks From : http://indiankanoon.org/doc/865073/

Supreme Court of India Parsram And Anr vs Shivchand And Ors on 28 November, 1968 Equivalent citations: 1969 AIR 597, 1969 SCR (3) 997

Supreme Court of India

Parsram And Anr vs Shivchand And Ors on 28 November, 1968

Equivalent citations: 1969 AIR 597, 1969 SCR (3) 997

Author: G Mitter

Bench: Mitter, G.K.

           PETITIONER:
PARSRAM AND ANR.

 Vs.

RESPONDENT:
SHIVCHAND AND ORS.

DATE OF JUDGMENT:
28/11/1968

BENCH:
MITTER, G.K.
BENCH:
MITTER, G.K.
HIDAYATULLAH, M. (CJ)

CITATION:
 1969 AIR  597    1969 SCR  (3) 997
 1969 SCC  (1) 20
 CITATOR INFO :
 R     1990 SC 991  (12)


ACT:
Constitution of India, Art.  341-President's  power   under-
Castes specified in President's order only to be  treated as
Scheduled  Castes-Constitution (Scheduled  Castes)   Order,
1950, item   9-Scheduled  Castes  in  Punjab-Mochis  not
mentioned,   chamars  mentioned-Court cannot  decide   on
evidence whether the term mochi is synonymous with the term
chamar.



HEADNOTE:
Appellant No. 1 filed a petition challenging the election of
the  first respondent from the Lambi  Assembly Constituency
('reserved  seat)  in the district of Ferozepur, Punjab,  at
the  1967  general election.  It was urged in  the  petition
that  the  nomination  paper of appellant  No. 2  had been
wrongly rejected by the Returning Officer who had held that
appellant No. 2 was a mochi and as such not a member of  the
chamar caste  mentioned  in  item  9  of  the Constitution
(Scheduled Castes) Order, 1950 issued under Art. 341 of  the
Constitution.  It was also urged that  the Returning Officer
had  at  first accepted  the  nomination   paper  but  had
subsequently  reviewed his  own  order.   The High   Court
dismissed  the petition, whereupon an appeal was  filed  in
this Court.
    HELD:  (i) On the evidence it was not possible  to hold
that the Returning Officer had after announcing his decision
accepting  the nomination  paper  reviewed  his  own  order
afterwards.
    (ii)  No  ground had been made out for  disturbing  the
conclusion of the trial court on the evidence that appellant
No. 2 was a mochi and not a member of the chamar caste.
    (iii)  It  was  not open to  this  Court  to  scrutinise
whether  a  person properly described as a mochi  also fell
within the caste of chamars and could describe  himself  as
such. The question was one the determination of which  lay
within the exclusive power of the President under Art.  341
of the Constitution. [1003 B-C]        ,
    Basavalingappa  v.D.  Munichinnappa  &  Ors.   [1965]  1
S.C.R. 316  and Bhaiya Lal v. Harikrishen  Singh  &   Ors.,
[1965] 2  S.C.R.  877, applied.
    Article 341 empowered the President to specify not only
entire castes races  or tribes but also  parts  or  groups
within castes, races  or tribes which were to be treated as
Scheduled Castes in relation to a particular State or  Union
Territory.   So far as chamars and mochis are  concerned,  a
reference to the Constitution (Scheduled Castes) Order, 1950
shows  that the President was not of opinion that they were
to  be considered to belong to the same caste in  all  the
different   States.   In several States chamars  and  mochis
were  put on the same  footing but not so in the  State  of
Punjab.  Even  after the Reorganisation of the Punjab Act,
1966 when the question of specification of Scheduled  Castes
in the territories created came up for his consideration the
President  did not  take the view  that  mochis  should  be
classed  with  chamars in so far as the States of  Haryana,
Punjab and the Union Territory of Chandigarh were  concerned
though he directed that in the Union Territories  of  Delhi
and Himachal Pradesh mochis and chamars were to be placed in
the same group. [1000 E, H; 1001 A--D]
998



JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1869 1967. Appeal under s. 116-A of the Representation of the People Act, 1951 from the judgment and order dated October 24, 1967 of the Punjab and Haryana High Court in Election Petition 14 of 1967.

K.P. Bhandari and Harder Singh, for the appellants. C.L. Lakhanpal and D.D. Sharma, for respondent No. 1. The Judgment of the Court was delivered by Mitter, J. In the election petition out of which the present appeal arises, the main question canvassed was, whether the nomination paper of respondent No. 8 (appellant No. 2 before this Court) was wrongly rejected. It is admitted that if the rejection was wrong, the election cannot stand.

The petitioner challenged the election to the Lambi Assembly Constituency (reserved seat) in the district of Ferozepore. There were eight candidates, the first respondent being the returned candidate. The petition was filed by one of the unsuccessful candidates impleading the other seven candidates, and Kishan Lal whose nomination paper was rejected. According to the petitioner, Kishan Lal was a Hindu and being a Chamar by caste he belonged to a scheduled caste within the meaning of paragraph 2 read with Part X of the Constitution (Scheduled Castes) Order 1950 issued under Art. 341 of the Constitution: he had filed a declaration under s. 33(2) of the Representation of the People Act, stating his caste to be chamar covered by item 9 in Part X (Punjab) of the Schedule to the Order. The said item reads as follows:

"Chamar, Jatia Chamar, Reghar, Raigar, Ramdasi or Ravidasi."

It was stated in the petition that the Returning Officer had at first accepted the nomination paper of Kishan Lal on 21st January 1967, but subsequently, on an objection having been raised by the first respondent on the ground that Kishan Lal was not a member of a Scheduled Caste, the proceedings were adjourned till the next day when after admitting evidence, the same was rejected on the plea that Kishan Lal was a mochi by caste. The petitioner's case was that Chamar and mochi were not two separate castes and the word 'mochi' was applied to a chamar who actually started working in lwather. On the pleadings the learned trial Judge framed four issues:

1. Is. respondent No. 8 Kishan Lal a Hindi Chamar by caste which is a scheduled :caste within themeaning of Part X of the Schedule to the Constitution (Scheduled Castes) Order, 1950?

2. Was the nomination paper or respondent No. 8 Kishan Lal accepted by the Returning Officer and it so, whether the Returning Officer had the power of reviewing his order?'

3. Has the nomination paper of respondent No. 8 Kishan Lal been wrongly rejected? If so, is the election of the returned candidate void?

4. Is Chamar or Mochi one and the same caste and a scheduled caste within the meaning of Part X of the Constitution (Scheduled Castes) Order, 1950?

The point canvassed before him with a good deal of force was that the Returning Officer had sought to review his own order passed on 21st January 1967 accepting the nomination paper and this, he was not competent to do. The learned Judge did not accept that a finalised order had been reviewed. An examination of the document tends to support the appellant's argument about the nomination paper having been accepted at first but rejected subsequently. The manner of recording ;the order is suggestive of the above. It appears that the Returning Officer at first' wrote the word "accepted' and gave the date as 21-1-1967 to the left of his signature: the endorsement rejecting the nomination paper is by way of a post-script abbreviated as "P.S." the last two lines curving over the signature. Unfortunately,; however, for the petitioner, the Returning Officer, although he appeared in court to produce some documents, was not orally examined and we are therefore without his testimony on the subject. Kishan Lal who came to give evidence in this case in support of the petition stated in his examination-in-chief that:

"At the time of the scrutiny of the nomination papers for elections in 1967 the Returning Officer at first announced orders on my nomination papers accepting the same. Then Shiv Chand. Thereafter the Returning Officer adjourned the matter to the next date on which after examining evidence led by the parties he rejected the nomination papers."

Prima facie this goes to support the case of the petitioner, but in corss-examination Kishan Lal stated:

"At the time when the nomination papers were being scrutinised by the Returning Officer, an objection was raised when he was writing the order."

This nullifies the effect of the statement in the examination-inchief and suggests that this objection was raised before the order had been signed or announced. This is strengthened by the evidence of Shiv Chand R.W. 7. He said:

"The Returning Officer had not announced that he had accepted the nomination papers of Kishan Lal but had written the word 'accepted'. This I know because I was sitting next to him."

On this evidence, it is not possible to hold that the Returning Officer had announced his decision accepting the nomination paper, but had reviewed his own order afterwards on objection being raised and let in evidence on the next day and rejected the nomination paper.

Before the learned trial Judge, a good deal of evidence was adduced and arguments advanced as to 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 Art. 341 of the Constitution under el. 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 or parts, or groups within 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, Maharashtra, Mysore, Orissa, Rajasthan and West Bengal chamars and mochis were put on the same footing.

Before the Reorganisation of the Punjab Act of 1966 item 9 of Part X of the Order specifying the Scheduled Castes in the State read--

"Chamar, Jatia chamar, Reghar, Raigar, Ramdasi or Ravidasi."

After the reorganisation of territories and creation of new States by the said Act the Scheduled Castes Order was amended pro-

viding 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 No. 9 remained unaltered as regards the new States of Haryana and the Punjab. Chamars and Mochis were put in the 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 State 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 in so far as the State of Haryana, Punjab and 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 Court which conclude the point.

In Basavalingappa v.D. Munichinnappa and others(x) an election petition was filed challenging the election of the first respondent inter alia on the ground that he was not a member of any of the scheduled castes mentioned in the Constitution (Scheduled Castes) Order, 1950. Respondent No. 1 claimed that he belonged to the scheduled caste listed as 'Bhovi' in the Order. The appellant, on the other hand contended that respondent No. 1 was a Voddar by caste and that Voddar was not a scheduled caste specified in the order and consequently, he could not stand for election from a scheduled caste constituency. It was held by this Court that it was not open to anyone to seek for any modification in the order by producing evidence to. show (for example) that though caste alone was mentioned in the order, caste B was also a part of caste A, and as such to be deemed to be included in caste A. This Court also pointed out that "wherever one caste has another name it has been mentioned in brackets after it in the Order. Therefore, generally speaking, it would not be open to any person to lead evidence to establish that caste B is part of caste A notified in the Order." In the peculiar circumstances of this case, evidence was allowed to be led to identify the caste specified in the Order because the Order referred to a Scheduled Caste known as Bhovi in the Mysore State as it was before 1956 and therefore it had to be accepted that there was some caste which the President intended to include after consultation with Rajpramukh in the Order, when the Order mentioned the caste Bhovi as a scheduled caste. But when it was not disputed specifically that there was no caste (1) [1965] 1 S.C.R. 316.

known as Bhovi in the Mysore State before 1956, the only course open to.courts was to find which caste was meant by Bhovi by taking evidence.

A point very similar to the one before us came up for consideration in this Court in Bhaiya Lal v. Harikrishen Singh and others(1). There, the appellant's election was challenged on the ground that he belonged to the Dohar caste and was not a chamar. Dealing with this point, it was stated by this Court:

". the plea that the Dohar caste is a subcaste of the Chamar caste cannot be entertained in the present proceedings in virtue of the Constitution (Scheduled Castes) Order, 1950."

Reference was then made to Art. 341 of the Constitution cls. 1 and 2 and it was said:

"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. In the present case, the notification refers to Chamar, Jatav or Mochi and so in dealing with the question in dispute between the parties, the enquiry which the Election Tribunal can hold is whether or not the appellant is a Chamar, Jatav or Mochi. The plea that though the appellant is not a Chamar as such, he can claim the same status by reason of the fact that he belongs to the Dohar caste which is a sub-caste of the Chamar caste, cannot be accepted. It appears to us that an enquiry of this kind would not be permissible having regard to the provisions contained in Art.

341."

These judgments are binding on us and we do not therefore think that it would be of any use to look into the gazetteers 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 there 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 (1) [1965] 2 S.C.R. 877.

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 Kriqhan 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 Krishan Lal was a mochi and not a chamar and we do not see any reason why we should come to any different conclusion.

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, Krishan Lal was found to be a mochi and not a chamar and 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 falls, and is dismissed with costs.

G.C.      Appeal dismissed.

With Thanks From : http://indiankanoon.org/doc/188007/

Supreme Court of India Srish Kumar Choudhury vs State Of Tripura And Ors on 23 February, 1990 Equivalent citations: 1990 AIR 991, 1990 SCR (1) 576

Supreme Court of India

Srish Kumar Choudhury vs State Of Tripura And Ors on 23 February, 1990

Equivalent citations: 1990 AIR 991, 1990 SCR (1) 576

Author: M Rangnath

Bench: Misra Rangnath

           PETITIONER:
SRISH KUMAR CHOUDHURY

 Vs.

RESPONDENT:
STATE OF TRIPURA AND ORS.

DATE OF JUDGMENT23/02/1990

BENCH:
MISRA RANGNATH
BENCH:
MISRA RANGNATH
PUNCHHI, M.M.
AGRAWAL, S.C. (J)

CITATION:
 1990 AIR  991    1990 SCR  (1) 576
 1990 SCC  Supl.  220   JT 1990 (2)  27
 1990 SCALE  (1)300


ACT:
    Constitution   of  India--Articles 341  and   342/Items
15-18--Laskar Community--Inclusion in the list of  Scheduled
Tribes--Entertainment



HEADNOTE:
    The appellant is a resident of Tripura State. He assert-
ed  that he belonged to the Laskar community which  was  in-
cluded in State records in the Deshi Tripura community  and
in  the  former State of Tripura this community  had  always
been  treated  as Scheduled Tribes, and the members  of  the
community  freely  enjoyed  all the  benefits  available  to
members  of the Scheduled Tribes until 1976 when  the  State
Government decided to treat members of this community as not
belonging to the Scheduled Tribes and issued instructions to
the state authorities to implement the Government  decision.
Being  aggrieved the appellant filed a writ petition  before
the  High  Court in a representative  capacity praying  for
appropriate  directions  directing the State  Government  to
continue to treat the appellant and members of Laskar commu-
nity  as  belonging to Scheduled Tribes and extend  all  the
benefits available to Scheduled Tribes to this community. In
support  of  his  claim the appellant relied  upon  the  two
circulars  of the erstwhile State of Tripura dated  December
1930 and February 1941 as also the census report of the  ex-
state of Tripura, besides the authorities of this Court. The
respondent  took  the plea that Laskar community  was  never
included in the Scheduled Tribes Order and as such there was
no question of excluding it from the List. After considering
the  rival contentions of the parties coupled with the his-
torical  background  bearing on the subject,  the  statement
made  by the Advocate-General that the Memos will  be  given
prospective  operation,  the High Court dismissed  the Writ
Petition.  Hence this appeal by Special Leave. This  appeal
initially came up before a two judges Bench for final  hear-
ing when on a statement made by the Counsel for the Union of
India  that a representation made by the appellant and mem-
bers  of his community for inclusion their caste-Laskar,  in
the  Presidential  order under Article 342 is  being  looked
into and is being placed before the Parliamentary  Committee
for review of the position, the Court disposed of the appeal
in terms of the assurance
577
given on behalf of the Union. It was specifically stated  in
the Court's order that in case the community is not included
in the Presidential Order, it would be open to the appellant
to  take  such action as may be available to  him  in law.
Nothing  having  happened at governmental  level,  with  the
consent  of the parties, the order disposing of  the  appeal
was  recalled and the appeal has thus now come up for  hear-
ing.
Dismissing the appeal, this Court,
    HELD:  Reservation has become important in view  of  the
increasing competition in society and that probably had  led
to the anxiety of the appellant and the people in his commu-
nity to claim reservation. [586G]
    In Tripura the Scheduled Tribes within the  meaning  of
the definition given in Article 366 of the Constitution have
been  'Jamatia, Noatia, Riang  and  Tripura/Tripuri/Tippera'
apart from 15 other tribes. It is the case of the  appellant
that  Laskars  are a part of the tribe named  as  'Tripura,
Tripuri and Tippera' covered by Entry 18. [581D]
    This Court should not assume jurisdiction and enter into
an enquiry to determine whether the three terms indicated in
the  Presidential Order include Deshi Tripura  which  covers
the  Laskar community; but it is appropriate to  commend  to
the  authorities concerned that as and when the question  is
reviewed  it  should be examined whether the  claim  of  the
appellant  representing the Laskar community to be  included
in the scheduled tribes is genuine and should, therefore, be
entertained. [586F-G]
    Even  if  historically  this tribe was  covered  by  the
general  description  of  Tripura, that by  itself  may  not
justify  its  inclusion in the Order as a  Scheduled  Tribe.
That  is an additional feature which has weighed with us  in
taking our decision not to interfere in the matter. [587C]
    B. Basavalingappa v. D. Munichinnappa, [1966] 1 SCR 316;
Bhaiyalal  v. Harikishan Singh and Ors., [1965] 2  SCR 877;
Parsram  and  Anr. v. Shivchand and Ors., [1969] 1  SCC  20;
Kishorilal  Hans  v. Raja Ram Singh and Ors., [1972]  2  SCR
632; Dina v. Narayan Singh, 38 ELR 212 and Bhaiya Ram  Munda
v. Anirudh Patarand Ors., [1971] 1 SCR 804, referred to.



JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 479 of 1986.

From the Judgment and Order dated 18.3. 1985 of the Assam High Court in Civil Rule No. 139 of 1979. A.K. Ganguli, A. Mariarputham, A.D. Sikri and Dilip Tandon for the Appellant.

Kapil Sibal, Additional Solicitor General, Rajiv Dhawan, Gopal Singh, C.V.S. Rao, Adv. (NP) and R.B. Misra for the appearing respondents.

Hardev Singh and S. Ravindra Bhat for the intervenor. The Judgment of the Court was delivered by RANGANATH MISRA, J.This appeal by special leave calls in question the judgment of the Guwahati High Court dated March 18, 1985, dismissing the appellant's writ petition. The appellant is a resident of Tripura State. In his application in a representative capacity before the High court he main- tained that he belonged to the Laskar community which had always been treated in the erstwhile State of Tripura as a Scheduled Tribe and on that basis in the State records was included in the Deshi Tripura community long before integra- tion of the Ruler's State of Tripura with the Union of India. Members of the Laskar community freely enjoyed all the benefits available to members of the Schedule Tribes until in 1976 the State Government decided to treat members of that community as not belonging to the Scheduled Tribes and issued instructions to the State authorities to imple- ment the Government decision. That led to the filing of the petition before the High Court. In the writ petition appel- lant prayed for appropriate directions to continue to treat the appellant and members of his community as belonging to the Scheduled Tribes and for a direction to the State Gov- ernment to extend all the benefits admissible to members of the Scheduled Tribes to members of the Laskar community. Before the High Court the respondents disputed the claim and maintained that the Laskar community was never included in the Scheduled Tribes Order and as such there was no question of exclusion from the list. A historical study of the claim would show that in the past Tripura/Tripuri/Tippera which have been included in the Presidential Notification never included the Laskar community. Tripuras were. a TibetoDurman race akin to the Shan tribe and Tipperas were divided into four groups, namely, (i) Puran or original Tipperas; (ii) Jamatias; (iii) Noatias or Nutan Tripuras and (iv) Riangs. Respondents relied upon Government records and official publications in support of-the aforesaid stand.

Before the High Court two circulars of the erstwhile State of Tripura, one being of December, 1930, and the other of February, 1941, as also the census report of the ex-State of Tripura were produced in support of the claim advanced by the appellant. Several authorities of this Court were relied upon for finding out the scope of enquiry in a claim of this type and ultimately by the impugned judgment the High Court dismissed the writ petition but on the basis of a statement made by the Advocate-General appearing for the State, it recorded:

"We keep on record the statement made by the learned Advo- cate-General, Tripura, on instruction that as a result of the impugned Memorandum No. 18887-19077/TW/6-4(L-D) dated 28.4. 1979 the certificates already issued would be treated as infructuous prospectively and not retrospectively and those who have already enjoyed the benefits by virtue of such Scheduled Tribe certificates they shall not be deprived of the benefits they have already enjoyed and the Memorandum shall be effective from its date prospectively insofar as the future benefits are concerned."

This appeal had come up for final hearing earlier and by a brief judgment reported in [1987] 3 SCC 463, a two-Judge Bench recorded the following order:

"The record before us shows that the people of the Laskar community have been treated as members of the Scheduled Tribes and there have been some letters from the Government of India to the State Government in support of that posi- tion; it is, however, a fact that there has been no clear inclusion of the community in an appropriate Presidential Order. The appellant has maintained that even in the absence of such a clear specification in a Presidential Order, as a sub-group under one of the notified categories, the appel- lant's community has been enjoying the privileges. We have been told by the learned counsel for the Union of India that the representation made by the appellant and members of his community for inclusion in the Presidential Order under Article 342 of the Constitution is being looked into and is being placed before the Parliamentary Committee in accord- ance with the prescribed procedure for a review of the position. He has assured us that the Government of India will take steps to finalise the matter at an early date and may in compliance with the procedure as prescribed, take a final decision. In case the community is not included in the Presidential Order, it would be open to the appellant to take such action as may be available in law."

The appellant waited for some time and approached the Government of India for quick action but when nothing hap- pened, an application for directions was made in this Court. Several adjournments were taken but Government could not take any decision. Ultimately, by consent of parties, the order disposing of the appeal was recalled and the appeal was directed to be set down for re-hearing. That is how the appeal is now before us.

Articles 341 and 342 of the Constitution deal with Scheduled Castes and Scheduled Tribes respectively and contain almost identical provision. We may extract Article 342 dealing with Scheduled Tribes:

"342.(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 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."

Article 366(25) defines 'Scheduled Tribes' to mean such tribes or tribal communities or parts or groups within such tribal communities as are deemed under Art. 342 to be Sched- uled Tribes for the purposes of this Constitution. The Constitution (Scheduled Tribes) (Union Territories) Order, 1950 relating to Tripura included 19 tribes within the notification. Items 15, 16, 17 and 18 are relevant for our purpose and they were:

"15. Tripura or Tripuri, Tippera.

16. Jamatia

17. Noatia

18. Riang"

Following the Reorganisation Act (37 of 1956), the Ministry of Home Affairs on October 29, 1956, notified the list of Scheduled Castes and Scheduled Tribes. In respect of the then Union Territory of Tripura the same communities were relisted. Then came the NorthEastern Area (Reorganisa- tion) Act (81 of 1971) which in the Fourth Schedule con- tained amendment to the Constitution (Scheduled Tribes) Order, 1950. Items 15 to 18 in the Scheduled contained the same descriptions. The Scheduled Castes & Scheduled Tribes Orders (Amendment) Act, (108 of 1976) in relation to Tripura in the Second Scheduled carried the same in Entries 7, 14, 16 and 18. It is, therefore, clear that in Tripura the scheduled tribes within the meaning of the definition given in Art. 366 of the Constitution have been the following: 'Jamatia, Noatia, Riang and Tripura/Tripuri/Tippera' apart from 15 other tribes as specified. It is not necessary to refer to the 15 others inasmuch as it is the case of the appellant that Laskars are a part of the tribe named as Tripura, Tripuri or Tippera covered by Entry 18. Before adverting to the evidence upon which the appel- lant relies in support of his stand, it is necessary that the scope of enquiry to be conducted in this regard by the Court may be determined. There are precedents of this Court which have to be first referred to. A Constitution Bench in the case of B. Basavalingappa v. D. Munichinnappa, [1965] 1 SCR 316 examined the provisions of Art. 341 which contained similar provisions for the scheduled castes with reference to an election dispute. Wanchoo, J. spoke for the Constitu- tion Bench thus:

"Clause (1) provides that the President may with respect to any 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 the Constitution be deemed to be Scheduled Castes in relation to that State. The object of this provision obviously is to avoid all disputes as to whether a particular caste is a Scheduled Caste or not and only those castes can be Scheduled Castes which are notified in the Order made by the President under Art. 341 after consultation with the Governor where it relates to such castes in a State. Clause (2) then provides that Par- liament may by law include in or exclude from the list of scheduled castes specified in a notification issued under cl. (1) any caste, race or tribe or part of or group within any caste, race or tribe. The power was thus given to Par- liament to modify the notification made by the President under cl. (1). Further cl. (2) goes on to provide that a notification issued under cl. (1) shall not be varied by any subsequent notification, thus making the notification by the President final for all times except for modification by law as provided by cl. (2). Clearly therefore Art. 341 provides for a notification and for its finality except when altered by Parliament by law ..... Therefore in view of this stringent provision of the Constitution with respect to a notification issued under cl. (1) it is not open to any one to include any caste as coming within the notification on the basis of evidence--Oral or documentary,--if the caste in question does not find specific mention in the terms of the notification ..... 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 there- fore 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 Order. Therefore, generally speaking it would not be open to any person to lead evidence to establish that caste B is part of caste A notified in the Order."

The factual dispute raised in the case before the Con- stitution Bench was whether Voddar caste was included in Bhovi caste which was one of the notified castes. The Con- stitution Bench dealt with the evidence and ultimately said: "In the circumstances therefore we agree with the High Court that respondent No. 1 though Voddar by caste belongs to the scheduled caste of Bhovi mentioned in the Order. We may again repeat that we have referred to the evidence in this case only because there was undoubtedly 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 effect that caste A mentioned in the Order includes or was the same as caste B where caste A does exist in the area to which the Order applies."

A similar dispute again came before a Constitution Bench in Bhaiyalal v. Harikishan Singh & Ors.,[1965] 2 SCR 877 with reference to a scheduled tribe in an election dispute. Gajendragadkar, CJ speaking for the Court said: "It is obvious that in specifying castes, races or tribes, the President has been expressly authorised to limit the notification to parts of or groups within the castes, races or tribes, and that must mean that after examining the educational and social backwardness of a caste, race or tribe, the President may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified. Similarly, the President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to parts of the State where he is satisfied that the examina- tion of the social and educational backwardness of the race, caste or tribe justifies such specification. In fact, it is well-known that before a notification is issued under Art. 341(1), an elaborate enquiry is made and it is as a result of this enquiry that social justice is sought to be done to the castes, races or tribes as may appear to be necessary, and in doing justice, it would obviously be expedient not only to specify parts or groups of castes, races or tribes, but to make the said specification by reference to different areas in the State."

What we have extracted above clearly supports the view of the other Constitution Bench, namely, the list is intend- ed to be final.

We may now refer to a two-Judge Bench decision in the case of Parsram & Anr. v. Shivchand & Ors., [1969] 1 SCC 20. Here again, the Scheduled Castes Order was in issue in an election dispute and the question for consideration was whether mochi was included in the notified caste of chamar. The Court referred to both the Constitution Bench judgments and indicated:

"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 differ- ence 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."

In Kishorilal Hans v. Raja Ram Singh & Ors., [1972] 2 SCR 632 a two-Judge Bench was called upon to decide whether jatav caste not mentioned in the scheduled castes of Datia district of Madhya Pradesh in the Order was included in chamar caste. The Court indicated:

"If the matter were res-integra we would have felt a good deal of difficulty in reconciling with the constitutional provisions the scheme followed in the state and the Orders concerned by which some caste has been includes in some districts of the same State and excluded in the other dis- tricts. This Court, however, has in Bhaiyalal v. Harikishan Singh & Ors., supra, made observations repelling the conten- tion that under Art. 341 of the Constitution the President was not authorised to limit the notification to parts of a State ..... In Bhaiyalal's case the appellant's election had been challenged on the ground that he belonged to the Dohar caste which was not recognised as a scheduled caste for the district in question and so his declaration that he belonged to the Chamar caste which was a Scheduled Caste was improperly and illegally accepted by the Returning Officer. It was held that the plea that though the appellant was not a Chamar as such he could claim the same status by reason of the fact that he belonged to Dohar caste which is a sub- caste of the Chamar caste could not be accepted. An enquiry of that kind would not be permissible having regard to the provisions contained in Art. 341 of the Constitution."

We may now refer to two separate judgments of this Court in the case Dina v. Narayan Singh, 38 ELR 212 and Bhaiya Ram Munda v.

Anirudh Patar & Ors., [1971] 1 SCR 804. Both were rendered by a common Bench of Shah (as he then was) and Bhargava, JJ. In the first case the question for consideration was inter- pretation of Entry 12 in the Scheduled Tribes Order. The entry read. 'Gond including Mana'. The Court interpreted that Mana community was a substitute of Gond and on a proper construction of the entry Manas not being Gonds were not intended to be included. The decision in that case is not relevant for our purpose.

In Bhaiya Ram's case, the tribe specified in the Sched- uled Tribes Order was Munda. The respondent was a Patar but he maintained that it was included in the notified tribe. The Bench was of the view that evidence was admissible for the purpose of showing what an entry in the Presidential Order was intended to mean though evidence could not be accepted for modifying the order by including a new tribe. Since the respondents' case was that Patars were Mundas, evidence could be given to show that the entry 'Munda' included 'Patar'.

These authorities clearly indicate, therefore, that the entries in the Presidential Order have to be taken as final and the scope of enquiry and admissibility of evidence is confined within the limitations indicated. It is, however, not open to the Court to make any addition or subtraction from the Presidential Order.

The evidence in this case on which reliance has been placed in support of the claim that Laskars are included in the tribe described as 'Tripura/Tripuri/Tippera' mainly consists of two circulars of the erstwhile State of Tripura. Circular No. 9 is of December, 1930. There is a narration therein to the following effect:

"In this State Tripura Sampradaya means the following five communities'

1. Puratan Tripura

2. Deshi Tripura (related to Laskar Class)

3. Noatia

4. Jamatia

5. Riang"

In Circular No. 10 which is of the year 1941, it has been said:

"In this State Tripura--Kshatriya denotes the following classes:

1. Puratan Tripura

2. Deshi Tripura (related to Laskar Class)

3. Noatia

4. Jamatia

5. Riang"

The latter document related to census operation in the State. From these two documents it is clear that Deshi Tripura covered the Laskar class while there was another class called 'Tripura/Tripuri/ Tippera' which did not relate to Laskar class. The Presidential Order has admitted the three tribes of Noatia, Jamatia and Riang in terms but while dealing with the two classes of Puratan Tripura and Deshi Tripura covering the Laskar class, it has adopted the de- scription of those three terms without referring to Puratan or Deshi.

The two Constitution Bench judgments indicate that enquiry is contemplated before the Presidential Order is made but any amendment to the Presidential Order can only be by legislation. We do not think we should assume jurisdic- tion and enter into an enquiry to determine whether the three terms indicated in the Presidential Order include Deshi Tripura which covers the Laskar community; but we consider it appropriate to commend to the authorities con- cerned that as and when the question is reviewed it should be examined whether the claim of the appellant representing the Laskar community to be included in the scheduled tribes is genuine and should, therefore, be entertained. Reservation has become important in view of the increas- ing competition in society and that probably had led to the anxiety of the appellant and the people in his community to claim reservation. As pointed out by the Constitution Bench judgments which we have referred to above, the basis on which inclusion into or exclusion from the enumerated list made under Art. 342 is contemplated is the changing econom- ic, educational and other situations of the members of any particular tribe. Keeping that in view the State Government may initiate appropriate proposals for modification in case it is satisfied and after appropriate enquiry if the author- ities are satisfied that the claim is genuine and tenable, amendment may be undertaken as provided by the Constitution. This Court has indicated in some of the judgments re- ferred to above that as a result of the detailed enquiry made as to the economic status, the level of education and the necessity of protection, inclusion into or exclusion from the Order is made. This material relating to the Laskar tribe in 1930 or 1941 may not have been considered suffi- cient before the respective Orders were made for including the Laskars, said to have been covered by the description of Deshi Tripura. Therefore, even if historically this tribe was covered by the general description of Tripura, that by itself may not justify its inclusion in the Order as a scheduled tribe. That is an additional feature which has weighed with us in taking our decision not to interfere in the matter.

The claim of the appellant is dismissed so far as this Court is concerned but the observations which we have made may be kept in view. There shall be no order for costs through-out.

Y. Lal          Appeal dismissed.

With Thanks From : http://indiankanoon.org/doc/251704/