DADAJI ALIAS DINA v. SUKHDEOBABU & ORS (2)

Citation: [1980] 1 S.C.R. 1135

Court: Supreme Court of India

Bench: V.D. TULZAPURKAR, E.S. VENKATARAMIAH

Case summary

1 who was the unsuccessful candidate challenged the election on the ground that the apPdlant did not belong to any of the Scheduled Tribes specified in Part IX of the Schedule to the 1950 Order as it sto_od at the time of the election and was therefore not qualified to be...

Judgment text

113S DADAJI ALIAS DINA I'. SUKHDEOBABU & ORS. November 7, 1979 · [V. D. TULZAPURKAR AND R S. VENKATARAMIAH, JJ. J Rl•p:·cs'entation of People Act 1951-Constitution (Scheduled Tribes) '-Order, 1950 read as "Gond including" certain tribes-Amendntent 1t1ade. in 1976 D'mitted "including" and added "Mana" as a tribe having afliniry with •iconds"-Omission of "including" if nteans any "Mana" community not having -'Dffinity with "Gonds''-"Ksllatriya Bidwaik- Mana" co1nn1unity, if a Scheduled Tribe. Entry 12 o~Part IX of the Schedule to the Constitution {Scheduled Tribes) Order 1950 prior to its amendment in 1956 read as "Gond inclutling '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 VIT-A of the Schedule to the Order. It read as ·'12 Got. I, including: Arakh or Arrah... Mana.... " "Mana" was the 30th comm missing the ap~al HELD : 1.

The High Court was right in setting aside the appellant's elec· iion <>n the ·ground that he did not belong to a Schedule Tribe. [1147 BJ 2. (a) Even when the Order, before its amendment in 1976 used the ~ "including", this Court giving. a restricted mening to "Mana", held that onl'i/' 'Mana' community which had affinity with ~ 'Gond' community could be con- · sidered as a Scheduled Tribe and that 'Ks~. Bidwaik Maoo' community to which the appellant belonged could not be ~ted as a Scheduled Tribe. [1143F-G] (b) A reading of fart IX of the Schedule to the Order shows that certaii> • communities had been grouped together under a single Entry in the light of Article 342 of. the Constitution which requires prut of or groups wit. hin a tnbal community also to be specified in the Order. Therefore the communi~ mentioned against any specific Entry are those which have mutuai affinity amongst them.

[1144C-EJ (c) Merely because a new Schedule had been substituted for the old one it cannot be said ! hilt Parliament had intended to treat persons belonging t<> "Kshatriya Bidwaik Mana" community also its 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 comii)unity which has affinity with another tnbe is. shown along with 1 it in the same gronp ag. ,inst 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, 1145e-D] 0 3. The term including" is sometimes used in a _definition to give an extetid- . ed meaning to the word defined. Sometimes it.

is used as a synonym for •means" and not as. a word of extension but limitation. [1143C] Dilworth ·v. Commissioner of Stamps, [1899] A. C. 99 at pp. 105-106, ·soutTt Gujarat Roofing Tiles Manufacturers Association & Anr. v. State of Gujarat & Anr. , [1977] 1 S. C. R. 878, referred to. · CML APPELLATE JURISDICTION : Civil Appeal No. 2229 of 1978. r From the Judgment and Order dated 12-10-1978 of the Bombay High Court in Election Petition No. 2/78. N. N. Kcshwani and Ramesh N. Keshwarli for the Appellant. A. K. Ganguli for the Respondent. The Judgmept 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 Annori 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 votrs, 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. L 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 Schoouled 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 tilW of the election and was not, therefore, qualified to be chosen to fill the seat which was Jeeserved 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 ,ieclared as void, the Court should make a declaration tha~ he (respondent No. 1) himself had been duly elected. The High Court upheld the contenti6n 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 respan~ dent No. 1 that he should be declared as elected was, however, rejected. Aggrieved by the judgment of the High Court, the appellant lias 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 an an election petition being jle EOBABU (Venkataramiah, !. ) 1139 the President issued the Order specifying the tribes or tribal communities which should be deemed to be Scheduled Tribes . in re! atiQP 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 AJ:ticle 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 S(a) o~ the Act provides that a person shall not be qualified to be chosen to fill a seat ill the Legislative Assembly of a State unless, ill the case of a seat reserved for the Scheduled Tribes of that State he is ai member of any of those tribes and is an elector for any Assembly constituency ill 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 Chandrapnr District of the State of Maharashtra. Prior to the amendment made in 1956, Entry No. 12 ill 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 :- '112. Gond, including- Arakh or Arrakh Kandra Agaria Kalanga Asur Khatola Ba.

di Maria or Koitar B•da Maria Koya Bhatola Kbirwar or Khirwara Bbimma Kucha Maria Bhuta, Koilabhuta Kucbaki Maria or E:ollabhuti Bhar Madia (Maria) I' Blsoohom Maria Mana Chota Maria Mannewar Dondl! mi Maria Moghya or Megia or Monghya Dhuru or Dhurwa Mudia (Murial Dhoba Nagarchi Dhu! ia Nagwanshi Dorla Ojha G•. lld Raj Gatta or Gatti Sonjhari Jhr. reka Gaita Thatia or Thotya GondGowari Wade Maria or Vade Maria. " Hill Maria The . 30th tribe amongst the tribes illcluded within the broad classification of 'Gond' tribe1 is 'Mana' tribe. As mentioned earlier, the claim of the appellant that he belonged to the said tribe iri the previous ca8e l :A 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 Schedul~ 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 : 'B Tribe Synonym Sub-tribe 1 2 3 0 22. Good Koitur Arakh Kalanga Bada Madia Kandra Bhatola Koya Chhota Madia Khirwar Dandami Madia Kucha Madia Dhulia Kuchaki Madia Dhuru or Dhurwa Machalir Madia Dhoba Mana Dorla Mannewar Gaiki Mudia Gaita Nagarchi Gatta or Gatti · 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 tile Rajya Sabha, the Bill was referred to a Joint Committee of the Parliament presided over by Sbri Anil K. Chanda.. The Report of the Joint Cori:unitteel 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, tho synonyms and the sub-tribes in three separate colμmns will not be apprcpriate.

· 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 accardingly, and in the lists of Scheduled Tribes the main tribe name is written first followed by the synonyms and subtribys in alphabetjcalorder. " DADAJI v. SUKHDEOBABU (Vtnkataramiah, !. ) 1 141 The Joint Committee also recommended that the Mana snb-tribe ' ~:eferred to in the Bill should be excluded from the Schedule to the -Order altogether. Thereafter the matte. r 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 members of tlr.. ,se communities in the areas where they have not been so specified. 1be present Bill generally seeks to remove these area! restrictions. However, in cases where continuance of such restriction~ were specifically recommended by the Joint Committee on the Scheduleo 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 pre~ent 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 7 if there were . no returns in respect of these communities iri the censuses of 1961· and 1971. . . . . . . . . " ' Thereafter the Scheduled Castes and Scheduled Tribe's Orders (Amendment) Act, 1976 (Act No. i08 of 1976) wasl passed by th'e 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. E11try No.

18 of Part IX of the Schedule to the Order afler the amendment reads1 thus :- "l 8. Good; Rajgond, Arakh, Arrakh, Agaria, Asut 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,· K-oitar, Koya, Khirwa. r, Khirwara, Kucha' Maria, Kuchaki Maria, Madia, Maria,· Mana, Mannewar, Moghya, Mogia, Monghnya, Mudia, Muria, Nagarchi, Naikpod. Nag• wanshi, Ojha, Raj, Sonjhari . Jhareka, Thatia, Thotya, Wade Maria, Vade Maria. " 1 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 a& a candidate at an election to fill a seat from thtl reserved constituency as the question was concluded by the judgment of this Court in Dina's' case (supra). l\1r. M, M. Phadke, learned; counsel for the appellant, however, argued . that a comparison ofl Entry No. ·12 as it stood prior to the amendment and Entry No. 18 as it stood ou 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 yea:t" 1976, persons belonging to the Mana community to which the appellant belonged and which was not a Scheduled. Tribe before such amendment can be I' 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 Sche tis possible to do so. Even thougli 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 eanurmnities 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 toiday contains 47 Entries, In certain entries only one community is mentioned and in certain others. two or more communities are mentioned.

It is obvious &at certain communities ' have been grouped together under a single entry in the light Of Article 342 of the Constitution which requires parts Olf or groups within a tribal community also to be specified in the order issued thereu. nder. It is, therefore, reasonable to hold that the communities mentioned against any SJl'~dfic entry are those which bave mutual affinity amongst . them. It is :Hso 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 inrention, the • Parliament . would have mentioned 'Mana' community under an independent entry. The inclusion of the 'Naikpod' communjty 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 evi~ dence that 'Naikpod' is also a tribe, found alongwith othoc 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' commwuty having affinity with •oortds' in Entry No. 18 and the 'koya' commwiity having no such oaffinity in Entry No. 33 of Part IX of the Schedule to the Order.

If the Parliament intended to treat the appellant'> community also as a Scheduled Tribe, it would have shown 'Mana' commwlity under ·separate entry. No such entry is found in the Schedule. SOme argwnents were addres•ed at the Bar on the basis of the ·difference in the punc,tuation 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 mealing 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 commwlity 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 adnlitted 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 regaro 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 Watijari. It is not ~e that Mana is a sub-caste of the Gonds. There is no <:ommunity known as Gond'. That the appellant was a member of :the 'Mana' commnnity which has the qualification of 'Kshatriya' is •established by his admission in his deposition that he was a m~mber of the Kshatriya Mana Shikshana Sahayak Manda! , Chandrapur. Al- :though 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 commullity:- "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 ·samastha. 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 whethe;· he belonged to a Scheduled Tribe or not, this Court observed: "That there are sub-tribes amongst the Goods 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 cmotoms, 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 Goods, specified Mana under that entry, if Manas had no affinity at all with Goods. The appellant was uncertain about the claim that he was making. In the nomination paper filed by him he claim to be a Goild (Maria}. 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 appel- -~ lant, merely because. he belonged to the Mana community amongst the Marathas, is not eligible to stand as a candidate for election to the Maharashtra I:egislatlve 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 ·DADAJI v. SUKHDEOBABU (Venkataramiah, !. ) 1147 re-arrangement of the Schedule with slight modification which has no A ' effect on the question at issue in this case.

The High Court was, therefore, right in rejecting the case qf the appellant that he belonged to a Scheduled Tribe, and in setting aside his election to tl1e Maharashtra Legislative Assembly. B. In the result the appeal fails and is hereby dismissed with costs. P. B. R. Appeal dismissed. . ,,.