Full Judgment Text
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PETITIONER:
ABHOY PADA SARA
Vs.
RESPONDENT:
SUDHIR KUMAR MONDAL
DATE OF JUDGMENT:
05/05/1966
BENCH:
SARKAR, A.K. (CJ)
BENCH:
SARKAR, A.K. (CJ)
MUDHOLKAR, J.R.
BACHAWAT, R.S.
SHELAT, J.M.
DAYAL, RAGHUBAR
CITATION:
1967 AIR 115 1966 SCR 387
CITATOR INFO :
R 1968 SC 929 (3)
ACT:
Construction (Scheduled Castes) 1950, Part 13, Item 40-
"Sunris excluding Sahas", Scope of.
HEADNOTE:
When item 40 of Part 13 of the Schedule to the Constitution
(Scheduled Castes) Order, 1950, declared "Sunris excluding
Sahas" as a Schduled Caste, it indicates that men of Sunri
caste but not those within that caste who formed the smaller
caste group of Sahas, are members of a Scheduled Caste. It
does not indicate that Sahas are a caste distinct from the
Sunri caste, nor was it intended to exclude from Sunris
those members of that caste who bore the surname Saha. [391
A, D].
Therefore, when the respondent challenged the election to
the West Bengal Legislative Assembly, of the appellant who
described himself as a member of the Sunri caste, on the
ground that he was a member of the Saha caste group but
failed to prove the allegation, it must be held that the
appellant was a Sunri by caste and belonged to the Scheduled
caste specified in the item, even though he bore the surname
Saha. [392 D].
JUDGMENT:
CIVIL APPELLATE JURISDICTION:- Civil Appeal Nos. 931 and
1149 of 1965.
Appeals from the judgment and decree dated July 31, 1964 of
the Calcutta High Court in Appeal from Original Decree No.
613 of 1962.
N. C. Chatterjee, Janaradan Sharma, K. B. Rohtagi and S.
Balakrishnan, for the appellant (in C.A. No. 931 of 1965)
and the respondent (in C. A. No. 1149 of 1965).
D.N. Mukherjee, for the respondent (in C.A. No. 931 of 1965)
and the appellant (in C.A. No. 1149 of 1965).
The Judgment of the Court was delivered by
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Sarkar, C.J. These appeals arise out of an election to a
seat in the West Bengal Legislative Assembly from the
Khargram Murshidabad constitutency reserved for members of
the Scheduled Castes. The contestants at this election were
Abhoy Pada Saha and Sudhir Kumar Mondal. Sudhir is
admittedly a member of a Scheduled Caste. Abhoy Pada
described himself in the nomination paper as "a member of
the Sunri caste which is a Scheduled Caste". Sudhir
objected to this nomination contending that Abhoy Pada did
not belong to any Scheduled Caste. The objection was
rejected by the Returning Officer. At the election which
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ensued, Abhoy Pada secured 16,730 votes and Sudhir, 15,523
and the former was consequently declared elected.
Sudhir then filed a petition challenging the validity of
Abhoy Pada’s election on various grounds. At the hearing of
the petition by the Election Tribunal, however, he
challenged the election only on the ground that Abhoy Pada
was a member of the Saha caste and not a member of a
Scheduled Caste. The Election Tribunal rejected this
contention and dismissed the petition. Sudhir then appealed
to the High Court at Calcutta which reversed the decision of
the Tribunal and declared the election of Abhoy Pada invalid
and set it aside on the ground that he did not belong to a
Scheduled Caste. In his petition Sudhir had further claimed
that he should be declared elected in the place of the
appellant if the latter’s election was found to be invalid.
This prayer, however, was rejected by the High Court. These
two appeals are from the judgment of the High Court. Appeal
No. 931 of 1965 is by Abhoy Pada. He challenges the
validity of the order of the High Court setting aside his
election. Appeal No. 1149 of 1965 is by Sudhir and he
challenges the validity of the order of the High Court
rejecting his prayer to be declared elected. We shall first
deal with Appeal No. 931 of 1965 filed by Abhoy Pada and
shall hereafter refer to him as the appellant and Sudhir as
the respondent.
Art. 332 of the Constitution provides that seats shall be
reserved for the Scheduled Castes in the Legislative
Assembly of every State. Art. 341 gives power to the
President to specify by public notification the castes or
parts of or groups within castes which shall for the purpose
of the Constitution be deemed to be Scheduled Castes. The
President, on August 10, 1950, passed the Constitution
(Scheduled Castes) Order, 1950 under Art. 341 setting out in
its schedule the various castes which were declared Sche-
duled Castes. This Order was amended from time to time by
statutes passed by Parliament and it is agreed that at the
relevant time Item 40 of Part 13 of the schedule to the
Order which set out which were Scheduled Castes in West
Bengal stood as follows:- "Sunri excluding Saha". Item 40
and some other items of the schedule were made applicable to
the State of West Bengal except the Purulia District and the
territories transferred from Purnea District of Bihar and it
is with this item that we are concerned. The question is,
whether the appellant was a member of the Scheduled Caste
specified in this item.
In the election petition, the respondent had stated that the
appellant, was a member of the Saha caste and not a member
of any Schedule Caste. It was said that this showed that
the respondent’s case was that the appellant belonged to an
independent caste which had nothing to do with Sunri caste
and that it was, therefore, not c open to him at the trial
to contend, as he appears to have done.
389
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that the appellant was a Sunri by caste but was excluded
from the Scheduled Caste group because he belonged to a
smaller caste group of Sunirs known as Sahas. We are unable
to take this strict view of the pleading. The petition may,
in our opinion, be reasonably read as stating that the
appellant was a member of the Saha caste, a smaller caste
group within the bigger caste group of Sunirs and was for
that reason not a member of the Scheduled Caste specified in
item 40. We also observe that this reading of the petition
which was accepted by the Election Tribunal, did not cause
any surprise to the appellant at the trial or result in any
injustice. The High Court also read the petition in the
same way. In our view, it was open to the respondent to
show that the appellant belonged to the Saha caste group
within the Sunri caste group and did not, therefore, belong
to the Schedule Caste specified in item 40 as he claimed.
The Tribunal rejected the respondent’s case that the Sunri
caste was divided into certain groups of which the Sahas
formed one. It came to the conclusion that the Sahas
originally belonged to the Sunri caste but for a long time
past they had formed themselves into a different caste which
had no connection with the Sunris. It is not very clear
whether the Tribunal thought that the Sahas were originally
a smaller caste group within the Sunri caste group or were
only distinguished from the other Sunris by their surname.
We are, however, inclined to think that the Tribunal thought
that the Sahas were originally a smaller caste group within
the Sunri caste because it rejected a contention advanced by
the respondent that item 40 excluded from Sunirs those who
bore the surname Saha observing that the names given in the
schedule to the Order all referred to castes, subcaliber or
groups. It found that the evidence clearly established that
the appellant belonged to the Sunri caste-a fact which
appears to have been admitted by the respondent-and,
therefore, did not belong to the independent caste which
according to the Tribunal, the Sahas have formed for a long
time past. In that view of the matter, the Tribunal held
the appellant to be a Sunri and a person belonging to the
Schedule Caste specified in item 40 and, therefore,
dismissed the election petition. It took the view that item
40 had excluded Sahas from Sunirs by way of abundant
caution, so that the Sahas who had originally belonged to
the Sunri caste but had long ’ago severed all connections
with it and developed into a distinct and independent caste,
might not claim, by virtue of their origin, to belong to the
Sunri caste stated in the item.
In the High Court P. N. Mookerjee, J. observed that the
Tribunal had gone wrong in considering the Sahas as an
independent caste. He said that the expression "excluding"
denoted that the Sahas contemplated would, but for this
word, have come within the Sunri caste. He held that the
Sahas formed "a group within the Sunri caste be it a sub-
caste strictly so called or other-
390
wise". He also held that the evidence did not establish
that the Sahas formed a sub-caste strictly so called within
the Sunri caste of a caste wholly independent of the Sunri
caste. His conclusion was that the expression "excluding
Saba" referred to those Sunris who bore the surname Saha
irrespective of whether they belonged to a sub-caste
strictly so called, of Sunris or not. The learned Judge,
therefore, held that as the appellant bore the surname Saha,
he did not belong to the Scheduled Caste specified in item
40 though he was a Sunri. The other learned Judge, Basu, J.
held that the words "parts or groups within castes" in Art.
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341 were wide enough to refer to any determinate part of a
caste distinguished by a surname or otherwise and it was not
necessary that such part must necessarily form a sub-caste.
He also held that the evidence broadly supported "the
conclusion that the respondent’s family belongs to the Saba
sub-caste or group within the Sunri caste". The learned
Judge however, appears to have set aside the decision of the
Tribunal and directed the election of the appellant to be
set aside on the ground that the appellant bore the surname
Saha and was thereby excluded from the Scheduled Caste
specified in item 40 for he said "these Saha families,
within the fold of Sunri caste, distinguished themselves by
their surname, whatever might be their other
characteristics" and have come to form a class apart from
the rest of the Sunris.
Now, the point in issue is, whether the appellant satisfied
the description "Sunri excluding Saha" in item 40 of the
President’s Order. To decide that point, the description
has first to be properly interpreted and understood. As we
have said, the Tribunal thought that the Sahas formed a
distinct caste wholly outside the Sunri caste and they had
been specifically excluded in item 40 for greater safety o
prevent them from claiming to be Sunris by reason of their
origin. The learned Judges of the High Court thought that
the effect of the item was to exclude from the Sunri caste
those who belonged to that caste but bore the surname Saha.
We are unable to agree with either of these interpretations.
There is no doubt that Sunri is a caste. Nobody disputes
that. That also follows from the fact that the Constitution
(Scheduled Castes) Order, 1950 was promulgated to indicate
those castes who are to be considered as Scheduled Castes
for the purpose of the Constitution. "Sunri" in item 40,
therefore. refers to a caste. If Sunri is a caste, the word
’Saha’ in the expression "excluding Saha" in the item must,
without more. also refer to a caste group within the Sunri
caste. It is legitimate to think that when a statute says
that a thing is to be excluded from another, both things are
of the same kind; if one is a caste. the other must be a
caste. It follows that when-the item excluded Sahas from
Sunris, since Sunri is a caste group, Saha must equally be
another caste group. The Tribunal appears to have taken the
same view. Now a thing can be
391
excluded from another only if it was otherwise within it.
Therefore, the correct interpretation of the item is that it
indicates men of the Sunri caste but not those within that
caste who formed the smaller caste group of Sahas. This is
where the Tribunal went wrong.
The Tribunal came to its conclusion that "Saha" in the item
referred to a caste distinct from the Sunri caste because
the evidence before it did not show that there was within
the Sunri caste, a smaller caste group called Sahas. The
error of the Tribunal lay in interpreting the Order in the
light of the evidence before it. There was no justification
for doing that. After all, the evidence led in a case may
be imperfect. Suppose the evidence in another case led to
the conclusion, as it might conceivably do, that there was a
smaller caste group within the Sunri caste, called Sahas.
In that case, if the reasoning applied by the Tribunal is
right, it has to be held that the expression "excluding
Saha" meant excluding a smaller caste group called Sahas. A
method of interpreting a statutory provision which might
lead to such uncertainty cannot be correct. If the correct
interpretation of item 40 was, as we think it was, that
Sahas were a caste group within the Sunri caste, no question
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of Sahas being a distinct class independent of Sunris ,could
arise. The finding that Sahas were a wholly independent
caste was altogether irrelevant to the point in issue.
Evidence cannot alter the natural interpretation of the
words in the Order.
For the same reason, we are unable to agree with the
interpretation of the High Court that the Sahas excluded
were those Sunris who bore the surname Saha. We think the
learned Judges of the High Court also interpreted item 40 in
the light of the evidence in the case. If the intention was
to exclude from Sunris those members of that caste who bore
the surname Saha, the item would have said so; it would then
have read "Sunri excluding those who bore the surname Saha".
In the absence of such words "Saha" must, in the context, be
understood as referring to a smaller caste group within the
bigger caste group of Sunris. Surname is irrelevant as a
test for applying item 40 unless it is shown that it
indicated a smaller caste group of Sunris. It is nobody’s
case that there is evidence to show that. It is of interest
to remind in the connection that the Order provides that the
Sunris in the Purulia District and those parts of the Purnea
District which had been transferred to West Bengal were not
to be considered as belonging to a Scheduled Caste. That
would show that where the exclusion is by a test other than
a caste group, the Order expressly says so. It is natural
to think that if the excluded Sahas were those Sunris who
bore the surname Saha, the Order would have made that clear.
In our opinion, the learned Judges of the High Court were in
error in interpreting the item on the evidence in the case
as they appear to have done.
L/S5SCI-27
392
If we are right in our interpretation of item 40, then the
only question that has to be decided in this case is,
whether the respondent has established that the appellant
belonged to a smaller caste group called Sahas within the
Sunri caste. This question presents no difficulty. The
respondent called witnesses to establish that the appellant
belonged to the smaller caste group of Sahas. These
witnesses were disbelieved by the Tribunal which described
them as unreliable. P.N. Mookerjee, J. said, "it has not
been proved that the respondent (appellant here) belonged to
any separate Saha caste or to any Saha-Sunri sub-caste of
the Sunri caste". Though Basu, J. said that the appellant
belonged to the Saha group of Sunris, it would appear that
’he was thinking of that group as consisting of those Sunris
who bore the surname Saha. All the courts in West ’Bengal,
therefore, came to the conclusion that it had not been prov-
ed in this case that the appellant belonged to the smaller
caste group of Sahas. We have no reason to take a different
view of the evidence. The result then is, that the
appellant is a Sunri by caste and has not been proved to
belong to the smaller caste group of Sahas. He must be held
to belong to the Scheduled Caste specified in item 40. That
being so, the election petition must fail.
Accordingly, we allow Appeal No. 931 of 1965 and set aside
the judgment of the High Court and restore that of the
Election Tribunal dismissing the petition. The appellant
will get the costs throughout.
In the view that we have taken in Appeal No. 931 of 1965,
the other appeal must necessarily be dismissed and we,
therefore, dismiss it with costs. One set of hearing fees
only.
Appeal No. 931 of 1965 allowed.
Appeal No. 1149 of 1965 dismissed.
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