il 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 section Balakrishnan for the appellant in CA No 931 of 1965 and the respondent in C A No 1149 of 1965
DN Mukherjee for the respondent in CA No 931 of 1965 and the appellant in CA No 1149 of 1965
The Judgment of the Court was delivered by Sarkar CJ
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 388 ensued Abhoy Pada secured 16730 votes and Sudhir 15523 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
article 332 of the Constitution provides that seats shall be reserved for the Scheduled Castes in the Legislative Assembly of every State
article 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 article 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 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 article 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 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
LS5SCI 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
PN 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


Summary:
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