Madhya Pradesh High Court
Radhaballabh Choudhary vs Union Of India (Uoi) And Ors. on 25 September, 1990
Equivalent citations: 1991 (0) MPLJ 264
Bench: B Varma, R Shukla
1. The present petition purports to have been filed for the welfare of the Majhi community, as what has now come to be recognised as public interest litigation. It is common ground that Majhi, in certain districts of the State of Madhya Pradesh, has been declared to be a Scheduled Tribe by Constitution (Scheduled Tribes) Order, 1950. The State of Madhya Pradesh has also recognised Majhi as a class eligible for award scholarships (Annexure-C). The petitioner alleges and claims that Kewat, Mallah, Dhimar (Dhiwar), Nishad, Bhoi, Kahar, etc., are sub-castes/synonyms of Majhi and consequently are Scheduled Tribes. Even so, the Collector, Hoshangabad, declined to certify persons, who bear synonyms as Kewat, Mallah, Dhimar, Nishad, Bhoi, Kahar, etc., as belonging to Scheduled Tribe. It is claimed that all these communities are either sub-castes or synonyms of Majhi and, therefore, belong to a Scheduled Tribe - Majhi. The petitioner claims a direction to the Collector, Hoshangabad, to issue certificates to persons belonging to the aforesaid caste that they are, Majhi and consequently belong to a Scheduled Tribe. The petitioner claims quashing of Annexure P-24, which is a Notification issued by the Collector, Hoshangabad, stating that Majhi, Majhawar, Kewat, Dhimar, Bhoi, Mallah, Raikwar, Nishad and Barua are included in the backward classes and, therefore, cannot be recognised as Scheduled Tribe or Scheduled Caste in the district. Consequently, certificates cannot be issued to the members belonging to the aforesaid castes or communities that they belong either to Scheduled Tribe or Scheduled Caste. The petitioner further claims reservation of seats for persons belonging to Majhi community in the Lok Sabha and also in the State Legislative Assembly.
2. Return in the case has been exhibited by respondents Nos. 1 and 2, i.e., the Union of India and the Chief Election Commissioner of India. Emphasising that Scheduled Castes and Scheduled Tribes are two distinct connotations having different meaning and background, it is submitted that the two have been specified territorily and on State basis, after detailed study of socio-cultural background. In the Central Provinces of India, Majhi and Majhwar is said to be a mixed tribe, who have apparently originated from the Gonds, Mundas and Kewats. It is alleged that the groups, which are said to be Majhis, are quite distinct and cannot be said to be Scheduled Tribe, although Majhi has been declared to be so. Annexure P-24 has reference only to certificates to be issued for the purpose of grant of scholarships, which is available to persons belonging only to backward classes.
3. Article 341(1) of the Constitution empowers the President, with respect of any State or Union territory and where it is a State, after consultation with the Governor thereof, by public Notification, to 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 a Scheduled Castes in relation to that State or Union territory as the case may be. It is significant to note that the Article specifically empowers the President to declare a group within castes as a Scheduled Caste. Article 342(1) of the Constitution makes a similar provision for declaration of tribes or tribal communities or parts of or groups within tribes or tribal communities to be Scheduled Tribes. Consequently, the Constitution (Scheduled Tribes) Order, 1950, which has since been amended by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act (Act No. 43 of 1956) and Constitution (Scheduled Castes) Order, 1950, were promulgated, containing a list of Scheduled Tribes and Scheduled Castes. The object of clause (1) of both these Articles 341 and 342 is to avoid all disputes as to whether a caste or tribe is a Scheduled Caste/Tribe or not for the purposes of the Constitution. In order, therefore, to determine whether a particular caste comes within the meaning of Article 341 or a Scheduled Tribe within the meaning of Article 342 of the Constitution, one has to look to the terms of the Orders; i.e., the Constitution (Scheduled Castes) Order, 1950, and the Constitution (Scheduled Tribes) Order, 1950, as amended. Any modification in these lists can be made only by Parliament which may by law include in or exclude from the list of Scheduled Castes or Scheduled Tribes specified in those two Notifications, any caste, race or tribe, or part of or group within any caste, race or tribe. The Notification, therefore, cannot be modified by any other process. A look at the lists annexed to both these Orders would show that wherever any caste has another name, it has been mentioned in brackets together with that particular entry. It has, therefore, been said by the Supreme Court in Basavalingappa v. Munichinnappa, AIR 1965 SC 1269, that it could be stated as an accepted proposition that where one caste has another name, it has been mentioned in brackets after it in the Order. The rule laid down, therefore, is that ordinarily it would not be open to give evidence that a given caste mentioned in the Constitution (Scheduled Castes) Order, is the same as another caste not mentioned in the brackets. In that case, the question was whether Voddar caste in Mysore was the same as Bhovi caste specified in the Order. Voddar caste is not mentioned in the brackets after Bhovi caste in that Order. It was found that in Mysore State, as it was before the States' reorganisation in 1956, there was no caste known as 'Bhovi' in the regions, since the Order did not mention 'Bhovi' as a Scheduled Caste in Mysore State as it was before 1956. The Supreme Court opined that it must be accepted that there was some caste which the President intended to include, after consultation with the Rajpramukh, in the Order. It was, therefore, held that because it was not disputed that there was no caste specifically known as Bhoi in Mysore State before 1956, the only course open to the Court to find out which caste was meant by Bhovi, is to take evidence in that behalf. But for these observations, because of the particular facts of that case, the law laid down therein is that it is not open to make any modification in the Order by producing evidence to show that though caste A 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. This rule has again been reiterated in the same volume in the case of Bhaiya Lal v. Harikishan Singh at page 1557, where the Notification by the President only referred to Chamar, Jatav or Mochi as a Scheduled Caste, the Court did not permit evidence to be led to show that Dohar caste, which is a sub-caste of Chamar, has the same status as Chamar and, therefore, a Scheduled Caste. Referring to the earlier decision in Basavalingappa's case (supra), the Court held that an enquiry of this kind would not be permissible having regard to the provisions contained in Article 341. This decision was approved by the Constitution Bench of 7 Judges of the Supreme Court in State of Kerala v. N. M. Thomas, AIR 1976 SC 490. In paragraph 43 of the report, it is emphasised that a Notification is issued by, the President under Article 341 as a result of an elaborate enquiry the object of which is to provide protection to the members of Scheduled Castes having regard to the economic and educational backwardness from which they suffer. After referring to the ratio of the decision in Bhaiyalal's case (supra) the pertinent observations made are : "No Court can come to a finding that any caste or any tribe is a Scheduled Caste or Scheduled Tribe". Similar view was expressed earlier by the Supreme Court in Parsram v. Shivchand, AIR 1969 SC 597. It was held that in the absence of a public Notification issued by the President, a person properly described as Mochi in Punjab does not fall within the caste of Chamar as included in Constitution (Scheduled Castes) Order, 1950 and Constitution (Scheduled Castes) (Union Territories) Order, 1951, as amended in 1966. The Court cannot scrutinise the Gazetteers and glossaries for this purpose. In a recent decision in Srish Kumar Choudhary v. State of Tripura, AIR 1990 SC 991, on a review of the different authorities on the subject, the view taken is that the entries in the Presidential Order have to be taken as final and it is not open to the Court to make any addition or substraction from the Presidential Order. Evidence, however, may be admissible for the purpose of showing what an entry in the Presidential Order is intended to mean. Courts have been cautioned to see that evidence is not accepted for modifying the Order by including a new tribe. Reference may also be made to yet another recent decision of the Supreme Court Revenue Officer v. Prafulla Kumar Pati, AIR 1990 SC 727, on which learned counsel for the petitioner placed reliance. In that case, the question was whether the caste Rajaka in Orissa is the same as Dhoba, which has been mentioned as a Scheduled Caste in Orissa in the Constitution (Scheduled Castes) Order, 1950. During the course of the judgment (para 12-A), it was mentioned that Rajaka is the literal synonym for the word 'Dhoba' and according to the Purna Chandra Oriya Bhasakosh, which is a recognised authority, the definition of 'Dhoba' is Rajaka - washerman (emphasisis supplied). It was consequently held that although described as Rajaka, the respondents in that case actually belonged to Dhoba Caste. The Court, therefore, did not accept the statement that the caste Rajaka is different from the caste Dhoba. Nevertheless, the Court referred to and reiterated the observations of that Court made earlier in the case of Basavalingappa v. Munichinnappa (supra), as referred to by us above.
4. With reference to the law laid down in the aforesaid decisions, we are clear that in order to determine whether Kewat, Mallah, Dhimar, Nishad, Bhoi, Kahar and such others belong to Scheduled Tribes, one has only to look to the Constitution (Scheduled Tribes) Order, 1950. We notice that in that Order only Majhi has been declared as a Scheduled Tribe In certain districts of Madhya Pradesh. The above castes/tribes have not been mentioned in brackets after that entry. This is a strong indication that the elaborate enquiry made before issuance of that order did not suggest that above sub-castes or sub-tribes are included in the tribe Majhi or these castes or tribes are the same as Majhi. An attempt was made by learned counsel for the petitioner, by filing a number of documents, to show that Kewat, Mallah, Dhimar, Nishad, Bhoi, Kahar, etc., are all Majhis. These documents consist of some old texts, Bharatiya Vyawahar Kosh, which is a dictionary of 16 Indian Languages. We have gone through all these documents. These documents, however, do not indicate that Kewat, Mallah, Dhimar, Nishad, Bhoi, Kahar, etc., are all Majhis. As we have indicated above, the significant omission to mention these castes in brackets against the entry 'Majhi' in the Constitution (Scheduled Tribes) Order, 1950, is a strong pointer to infer that they are not Majhi. In our opinion, the Order only means to declare Majhi and no other sub-tribe or sub-caste, as a Scheduled Tribe. That being so, we reject the petitioner's contention that Kewat, Mallah, Dhimar, Nishad, Bhoi, Kahar, etc., are Majhi and, therefore, Scheduled Tribes.
5. For the aforesaid reasons, in our opinion, the petitioner is not entitled to any relief as claimed and the petition is hereby dismissed. There shall be no order as to costs. The security amount shall be returned to the petitioner.
With Thanks From : http://indiankanoon.org/doc/1886218/
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