Full Judgment Text
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CASE NO.:
Appeal (civil) 5270 of 2004
PETITIONER:
State of Maharashtra & Ors
RESPONDENT:
Mana Adim Jamat Mandal
DATE OF JUDGMENT: 08/03/2006
BENCH:
H.K. SEMA & Dr. AR LAKSHMANAN
JUDGMENT:
J U D G M E N T
WITH
CIVIL APPEAL NO. 6480 OF 2005
H.K.SEMA,J.
CIVIL APPEAL NO. 5270 OF 2004
What appears to be a perpetual controversy with regard
to Scheduled Tribe status has again engaged the attention of
this Court for a considerable time. Two questions are raised
before us:
1. Whether the ’Mana’ community in the State of
Maharashtra is a Sub-Tribe of "Gond" and is a
Scheduled Tribe or not?
2. Whether a two Judge Bench decision of this Court
in Dina v. Narayan Singh 38 ELR 212 (for the
sake of brevity ’Dina I’) and the decision rendered by
another two Judge Bench of this Court in Dadaji
alias Dina v. Sukhdeobabu & Ors. (1980) 1 SCC
621 (for the sake of brevity ’Dina II’) are over-ruled
by a Constitution Bench of this Court in State of
Maharashtra v. Milind Katware (2001) 1 SCC 4?
The questions raised before us being the questions of
law, it is not necessary for us to recite the entire facts.
Clause 25 of the Article 366 of the Constitution of India
defines "Scheduled Tribes" as under:
"Scheduled Tribes" means such tribes or tribal
communities as parts of or groups within such
tribes or tribal communities as are deemed under
article 342 to be Scheduled Tribes for the purposes
of this Constitution;"
Article 342 of the Constitution of India deals with
Scheduled Tribes. It says:
"342. Scheduled Tribes. \026 (1) The President may
with respect to any State or Union territory, and
where it is 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
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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."
The President by public notification issued the
Constitution (Scheduled Tribes) Order, 1950, in exercise of the
powers conferred by clause (1) of Article 342 of the
Constitution. By clause 2 of that Order it was provided that
the tribes or tribal communities, or parts of it, or groups,
within tribes or tribal communities, specified in Parts I to XII
of the Schedule to the Order shall, in relation to the States to
which those parts respectively relate, be deemed to be
Scheduled Tribes so far as regards members thereof resident
in the localities specified in relation to them respectively in
those Parts of that Schedule. The Order is followed by a
Schedule constituting of twelve Parts. Part VII-A of the
Schedule as amended by Act II of 1960 relates to
Maharashtra. By item 5 it is specified that in (1) Melghat
tehsil of Amravati District (2) Godchiroli and Sironcha tehsils
of the Chanda district (3) Kalapur, Wani and Yeotmal tehsils of
the Yeotmal district 32 tribes or tribal communities shall be
deemed Scheduled Tribes. Entry 12 as originally set out in
the Order promulgated by the President of India reads: "Gond"
including Media, ("Maria" and Mudia (Murai)"). By the
Scheduled Castes and Scheduled Tribes (Amendment) Act, 63
of 1956, Entry 12 was substituted by:
"12. Gond, including
Arakh or Arrakh, Agaria, Asur, Badi, Maria or Bada
Maria, Bhatola, Bhimma, Bhuta, Koliabhuta or
Koilabhuti, Bhar, Bisonborn Maria, Chota Maria,
Dandami Maria, Dhuru or Dhurwa Dhoba, Dhulia,
Dorla Gaiki, Gatta or Gatti, Gaita, Gond Gowari,
Hill Maria, Kandra, Kalanga, Khatola, Koitar, Koya,
Kirwar or Khirwara, Kucha Maria, Kuchaki Maria,
Media (Maria), Mana, Mannower, Mohya or Mogia or
Monghya, Mudia (Muria), Nagarchi, Nagwanshi,
Ojha, Raj, Sonjhari Jhareka, Thantia or Thotye,
Wade Maria or Vade Maria."
(emphasis supplied)
Scheduled Castes and Scheduled Tribes Orders
(Amendment) Act, 1976 was passed by the Parliament. The
Preamble of the Act states:
"An Act to provide for the inclusion in, and the
exclusion from, the lists of Scheduled Castes and
Scheduled Tribes, of certain castes and tribes, for
the re-adjustment of representation of
parliamentary and assembly constituencies in so far
as such re-adjustment is necessitated by such
inclusion of exclusion and for matters connected
therewith."
By the aforesaid 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 Schedule
relates to the State of Maharashtra. Entry 18 of Part IX of the
Schedule to the Order after amendment reads thus:
"18. Gond, Rajgond, Arakh or Arrakh, Agaria, Asur,
Badi, Maria or Bada Maria, Bhatola, Bhimma,
Bhuta, Koliabhuta, Koilabhuti, Bhar, Bisonborn
Maria, Chota Maria, Dandami Maria Dhuru,
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Dhurwa, Dhoba, Dhulia, Dorla Gaiki, Gatta or
Gatti, Gaita, Gond Gowari, Hill Maria, Kendra,
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 or
Vade Maria."
(emphasis supplied)
The Government of Maharashtra by resolutions dated
24.4.1985 and 19.6.1985 directed that the members of ’Mana’
community be not treated as Scheduled Tribes unless they
establish relationship or affinity with the ’Gond’ Tribe. By
another resolution dated 15.6.1995, the State of Maharashtra
declared ’Mana’ community as Special Backward Class. These
resolutions were challenged as unconstitutional before the
High Court by filing Writ Petition No. 959 of 2002. The High
Court, after referring to the various decisions of this Court,
quashed the aforesaid resolutions. Hence, the present appeal.
It is now well settled principle of law that no authority,
other than the Parliament by law, can amend the Presidential
Orders. Neither the State Governments nor the Courts nor the
Tribunals nor any authority can assume jurisdiction to hold
inquiry and take evidence to declare that a caste or a tribe or
part of or a group within a caste or tribe is included in
Presidential Orders in one entry or the other although they are
not expressly and specifically included. A court cannot alter
or amend the said Presidential Orders for the very good reason
that it has no power to do so within the meaning, content and
scope of Articles 341 and 342. It is not possible to hold that
either any inquiry is permissible or any evidence can be let in,
in relation to a particular caste or tribe to say whether it is
included within Presidential Orders when it is not so expressly
included or exclude a particular Caste or Tribe or group of
Castes or Tribes when they are expressly included.
Mr. S.K. Dholakia, learned senior counsel appearing on
behalf of the appellant strenuously contended that the facts of
the case at hand are squarely covered by the decision of this
Court rendered in the case of Dina II (supra). He further
contended that the decision rendered by this Court in Dina II
(supra) has not been over-ruled by a Constitution Bench of
this Court in State of Maharashtra v. Milind Katware
(2001) 1 SCC 4.
Per contra, Mr. P.P. Rao, learned Senior counsel
contended that the decision of this Court in Dina II (supra)
was over-ruled by the Constitution Bench of this Court in
Milind Katware’s case (supra) by necessary implication.
The Constitution Bench of this Court in Milind
Katware’s case (supra), after taking into consideration all the
judgments, arrived at the conclusion at para 36 page 30 SCC
as under:
"36. In the light of what is stated above, the
following positions emerge:
1. It is not at all permissible to hold any inquiry or
let in any evidence to decide or declare that any
tribe or tribal community or part of or group
within any tribe or tribal community is included
in the general name even though it is not
specifically mentioned in the entry concerned in
the Constitution (Scheduled Tribes) Order, 1950.
2. The Scheduled Tribes Order must be read as it
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is. It is not even permissible to say that a tribe,
sub-tribe, part of or group of any tribe or tribal
community is synonymous to the one mentioned
in the Scheduled Tribes Order if they are not so
specifically mentioned in it.
3. A notification issued under clause (1) of Article
342, specifying Scheduled Tribes, can be
amended only by law to be made by Parliament.
In other words, any tribe or tribal community or
part of or group within any tribe can be included
or excluded from the list of Scheduled Tribes
issued under clause (1) of Article 342 only by
Parliament by law and by no other authority.
4. It is not open to State Governments or courts or
tribunals or any other authority to modify,
amend or alter the list of Scheduled Tribes
specified in the notification issued under clause
(1) of Article 342.
5. Decisions of the Division Benches of this Court in
Bhaiya Ram Munda v. Anirudh Patar and Dina v.
Narain Singh did not lay down law correctly in
stating that the inquiry was permissible and the
evidence was admissible within the limitations
indicated for the purpose of showing what an
entry in the Presidential Order was intended to
be. As stated in Position (1) above no inquiry at
all is permissible and no evidence can be let in,
in the matter."
(emphasis supplied)
The concluding part of the order would show that Dina I
case was expressly over-ruled.
In the case of Dina I (supra), this Court on appreciaton
of evidence on record came to the conclusion that ’Mana’ is a
sub-tribe of Gonds. The Court further held as under:
"If on the evidence it is established that there is no
sub-tribe of Manas amongst the Gonds, the
argument would have force. But on the record
there is evidence which supports the case of the
first respondent that there is sub-tribe of Manas
amongst the Gonds, and the High Court has
accepted that evidence."
It is because of this reason, this Court expressly over-
ruled Dina I case holding that no inquiry is permissible and
no evidence can be let in the matter.
We will now examine as to whether the decision rendered
by this Court in Dina II case (supra) was over-ruled by the
Constitution Bench of this Court in Milind Katware’s case
(supra) by necessary implication.
In Dina II case, the two-Judge Bench of this Court, after
examining the evidence on record, held in paragraphs 16 and
17 as under:
"16. We are, therefore, of the view that 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.
17. The appellant has categorically admitted in the
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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 regard to
marriage of our community are different from those
of the Gonds". He has 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 Sahayyak Mandal, Chandrapur.
Although in another part of his statement of
objections there are 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 1 was the Vice-President for some
time and also an active worker of the Kshatriya
Bidwaik Mana Shikshana Samstha. 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 paragraph 18, Dina II, this Court relied on the
decision in Dina I (supra) and bodily lifted the observations in
Dina I, extracted below:
"18. 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, manners, 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 claimed 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).
Realising thereafter that his community had no
affinity with the Gonds he stated that he was not a
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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 VII-A of the
Schedule. But the form in which the entry is made
prima facie indicates that in 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."
As noticed above, a Constitution Bench of this Court in
Milind Katware’s case (supra) has over-ruled the decision in
Dina I, which was based on appreciation of evidence on
record. In Dina II, not only the observations made in Dina I
were bodily lifted in paragraph 18, in paragraph 17, as quoted
above, the evidence on record was considered in arriving at the
conclusion, which is not permissible.
We are, therefore, in agreement with the view of the High
Court that the decision in Dina II is over-ruled by the
Constitution Bench in Milind Katware’s case (supra) by
necessary implication. The contention of Mr. Rao is sustained.
A three-Judge Bench of this Court in C.N. Rudramurthy
v. K. Barkathulla Khan and Ors. (1998) 8 SCC 275 has
examined the nature and effect of over-ruling by necessary
implication and held that when the law as declared by the
Supreme Court contradicts what has been stated in another
case, that case stood impliedly overruled. Admittedly Dina II
reached its conclusion after examining the evidence on record
of Dina I. As pointed out earlier, this is not permissible in
view of the law declared by the Constitution Bench of this
Court in Milind Katware’s case (supra).
The same view was reiterated in the case of Union of
India & Ors. v. Raj Rani and Ors. (1998) 8 SCC 704. In
that case the payment of solatium and interest has been
settled by a three-Judge Bench in Union of India v. Hari
Krishan Khosla 1993 Supp (2) SCC 149, which held that the
respondents were not entitled to the payment of interest and
solatium. A contrary view of a two-Judge Bench decision in
Rao Narain Singh v. Union of India (1993) 3 SCC 60 was
brought to the notice of this Court and this Court held that in
view of the three-Judge Bench decision in Hari Krishan Khosla
case, the ratio of Rao Narain Singh case is no longer a good
law.
Reverting to the facts of the case in hand, the Parliament
by law amended the Scheduled Castes and Scheduled Tribes
Orders (Amendment) Act, 1976 (No. 108 of 1976). Section 4 of
the Amendment Act reads as under:
"4. Amendment of Scheduled Tribes Orders. \026
The Scheduled Tribes Orders are hereby amended
in the manner and to the extent specified in the
Second Schedule."
Part IX of the Second Schedule deals with the State of
Maharashtra. Entry 18 of the Second Schedule reads:
18. Gond, Rajgond, Arakh or Arrakh, Agaria, Asur,
Badi, Maria or Bada Maria, Bhatola, Bhimma,
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Bhuta, Koliabhuta, Koilabhuti, Bhar, Bisonborn
Maria, Chota Maria, Dandami Maria Dhuru,
Dhurwa, Dhoba, Dhulia, Dorla Gaiki, Gatta or
Gatti, Gaita, Gond Gowari, Hill Maria, Kendra,
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 or
Vade Maria."
(emphasis supplied)
The Constitution (Scheduled Tribe) Order 1950, in
relation to the State of Maharashtra, did not specify ’Mana’.
It will be noticed that in the Scheduled Caste and
Scheduled Tribes Order (Amendment) Act, 1956 (Act No. 63 of
1956), Entry 12 was substituted by:
"12. Gond, including
Arakh or Arrakh, Agaria, Asur, Badi, Maria or Bada
Maria, Bhatola, Bhimma, Bhuta, Koliabhuta or
Koilabhuti, Bhar, Bisonborn Maria, Chota Maria,
Dandami Maria, Dhuru or Dhurwa Dhoba, Dhulia,
Dorla Gaiki, Gatta or Gatti, Gaita, Gond Gowari,
Hill Maria, Kandra, Kalanga, Khatola, Koitar, Koya,
Kirwar or Khirwara, Kucha Maria, Kuchaki Maria,
Media (Maria), Mana, Mannower, Mohya or Mogia or
Monghya, Mudia (Muria), Nagarchi, Nagwanshi,
Ojha, Raj, Sonjhari Jhareka, Thantia or Thotye,
Wade Maria or Vade Maria."
(emphasis supplied)
As noticed above, in entry 18 of the Second Schedule of
the Scheduled Castes and Scheduled Tribes Orders
(Amendment) Act, 1976, the word ’including’ was expressly
deleted.
Mr. P.P. Rao, learned Senior counsel referred to various
entries in the Second Schedule of the Act to show the
intendment of the Parliament to introduce the Amendment
Act, 1976.
A quick survey of the Presidential order of the entries in
the Second Schedule of the Act shows that wherever the
Parliament wanted to restrict the scope of an entry with
reference to certain areas or with reference to language or to
include certain tribes in a group, it has done so expressly. It
is also noticed that in the Second Schedule not only there are
many entries mentioning a single community or tribe
individually but also quite a few entries mentioning a group of
communities or tribes. A few examples are:
PART I. - Andhra Pradesh
In Sl. No. 7 Goudu (in the Agency tracts)
And
Sl. No. 20. Malis (excluding Adilabad, Hyderabad,
Karimnagar, Khammam, Mahbubnagar, Medak
Nalgonda, Nizamabad and Warangal districts).
Sl.No. 23 Nayaks (in the Agency tracts)
Sl.No. 30 Thoti (in Adilabad, Hyderabad,
Karimnagar, Khammam, Mahbubnagar, Medak,
Nalgonda, Nizamabad and Warangal districts).
Sl. No. 31 Valmiki (in the Agency tracts)
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Group entries are provided at Sl. No. 6, 16, 17, 18,
22, 25 and 28.
PART II. \026 Assam
Group entries at Sl.No. 7 Any Kuki Tribes.
Including:-
(i) Biate,Biete
(ii) Changsan
(iii) Chongloi
(iv) Doungel
(v) Gamalhou
(vi) Gangte
(vii) Guite
(viii) Hanneng
(ix) Haokip, Haupit
(x) Haolai
(xi) Hengna
(xii) Hongsungh
(xiii) Hrangkhwal, Rangkhol
(xiv) Jongbe
(xv) Khawchung
(xvi) Khawathlang, Khothalong
(xvii) Kherma
(xviii) Kholhou
(xix) Kipgen
(xx) Kuki
(xxi) Lengthang
(xxii) Lhangum
(xxiii) Lhoujem
(xxiv) Lhouvun
(xxv) Lupheng
(xxvi) Mangjel
(xxvii) Misao
(xxviii) Riang
(xxix) Sairhem
(xxx) Selnam
(xxxi) Singson
(xxxii) Sitlhou
(xxxiii) Sukte
(xxxiv) Thado
(xxxv) Thangngeu
(xxxvi) Uibuh
(xxxvii) Vaiphei
Restricted Entries : Entry 9, Man (Tai speaking.)
PART IV \026 Gujarat
Restricted entries 5,6,7, 15, 17, 20, 21, 24, 26 and
27
PART VIII \026 Madhya Pradesh
Group entries at Nos. 16, 17
Restricted entries 21, 32, 36 and 39
PART IX \026 Maharashtra
Restricted entries are at Sl. Nos. 12 and 45
Sl. No. 12
Chodhara (excluding Akola, Amravati, Bhandara,
Buldana, Chandrapur, Nagpur, Wardha, Yavatmal,
Aurangabad, Bhir Nanded, Osmanabad and
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Parbhani districts).
Sl. No. 45
Thoti (in Aurangabad, Bhir, Nanded, Osmanabad
and Parbhani districts and Rajura tahsil of
Chandrapur district)
Group entries 8, 18, 21, 22, 32, 33, 35, 38, and 44
The common pattern found in most of the group entries
is that there is a punctuation mark comma (,) between one
Entry and another Entry in the group signifying that each one
of them is deemed to be a separate Scheduled Tribe by itself.
In the present case, Entry 18 of the Schedule clearly signifies
that each of the Tribe mentioned therein deemed to be a
separate Tribe by itself and not a sub-Tribe of ’Gond’. ’Gond’
is a Scheduled Tribe, it is not disputed. As already noticed
that ’Gond’ including Arakh or Arrakh etc. found in Entry 12
of Amendment Act 63 of 1956 has been done away with by the
Amendment Act of 1976. In Entry 18 of Second Schedule of
Amendment Act of 1976 the word ’including’ was deliberately
omitted, which signifies that each one of the Tribe specifying
in Entry 18 is deemed to be a separate Tribe by itself.
Therefore, "Mana" is not a sub-Tribe of "Gond" but a separate
Tribe by itself and is a Scheduled Tribe.
In the view that we have taken, we do not see any
infirmity in the order passed by the Division Bench of the
Bombay High Court, which would warrant interference by this
Court. This appeal being devoid of merits is, accordingly,
dismissed. Parties are asked to bear their own costs.
CIVIL APPEAL NO. 6480 OF 2005
For the reasons stated in Civil Appeal No. 5270 of 2004,
this appeal is also dismissed. Parties are asked to bear their
own costs.