f^ HIGH COURT OF CHHATTISGARH, BILASPUR WRIT PBTITION No.5793 of200S PBTITIONBRS RESPONDBNTS 2 3 Kainta Prasad, s/o Kanhaiyalal Bhariya, aged about 29 years, r/o village Lotlota; Post Gopalpur, TehsU Khatghora, Distt. Kobra (C.G). Shivraxa, s/o Mohit Ram Bhariya, aged about 37 years, R/o Paadripaxii, Tehsil Khatghora, Distt. Kobra (C.G). Versus State of Chhattisgarh, fhrough Secrctary, Admi Jati Tatha Anusuchi Jati Vikas Vibhag, Maiitralaya, D.K.S. Bhawaa, Raipur (C.G). Collector Korba, Distt. Korba Sub Divisional Magistrate, Katghora, Distt, Kobra WRIT PBTITION UNDBR ARTICLE 226 OF THB CONSTITUTION Appearaiice: Dr.N.K.Shukla, Sr. Advocate wifh Shri Sunil Mersha, for the petitioners. Shri J.K. Gilda, Additional Advocate Geiieral wifh Shri A,S, Kachhawaha, Govt Advocate, for the State/ Respondents on advaiice copy, Miss. Sushma Chandel, Counsel for tJie intervener. DB: HON^BLE 8HRI L.C. BHADOQ & HON»BLESHM SUNIL KUMAR SINHA. JJ. ORAL ORDBR (22.01.2008) FoUowmg order ofthe Courtwas passed by LrC.Bhadoo, J» (1) Heard on adndssion, (2) By this writ petition flled under Article 226 of the Constitution of India, the petifioners who are nlairning to be "Bheriyef caste, have questioned the legaUty, vaMdily aiid ^ '^^s W.P.No.5793/2005 correctness ofthe order dated 28.4.2005 (Annexure P-1) passed by the Deputy Secretary, Goverament of Chhattisgarh, Adim Jati Tatha Anusuchit Jati Vikas Vibhag, Raipur, whereby the leamed Deputy Secretaiy gave direction to the effect fhat the raeino dated 08.5.2003, issued by fhe State Gk>veminent ia connection wifh Bhoriya caste people who are residing in Korba Distorict regardiag issuance of certificate in fhe name of Bhariya Scheduled Tribe, staiids caacelled wifh immediate effect. (3) Shora of unnecessary detaUs, facts giviag rise to the present writ petition are fhat by Presidential Orders uixder Article 342 offhe Constitution oflndia, fhe persons belongiag to Bhadya-Bhiiniia, Bhuihar-Bhuinia, Bhuinia, Bhariya, Paliha, Panado, residiag ia Chattisgarh area were mcluded ia fhe list of Schediiled Tribe. It appears fhat scheduled tribe certij5cate was not beuig issued to the persons belonging to Bhoriya caste, then they apprcached fhe State of Chhattisgarh aad considering fheir grievaaces, the Deputy Secretary, State of Chhattisgarh, issued fhe inemo dated 08.5.2003 whereby fhe Collector, BUaspur, was directed to issue directions to the Sub Divisional OjB&cer & Tahsildar, Katghora & Korba that Bhoriya caste people be issued fhe Schedule Tribe Certfficate as they were bemg issued such certificates prior to 1998 and fhat be restored. It appears froin Para 5 of reply filed by fhe State that later on they reaMzed the inistake ia issuiag fhe memo dated 08.5.2003, therefore, fhey passed fhe order dt28.4.2005 (Annexure-1) caacelmg the ineino dated 08.5.2003 and tiie position existing before 08.5.2003 was restored. (4) Dr.Shukla argued that Bhoriya is fhe saoie caste as Bhadya caste people, fhey foUow fhe same custoins aad rituals and fhat is why after conductmg enquiry and on fhe basis of recommendation made by the Commission for fhe Scheduled Caste and Scheduled Tribe, the inenio dated 08.5.2003 was issued, therefore, fhe impugned order 28.4.2005 (Annexure P-1) is iUegal aad fhe saoie be quashed, (5) Haviag heard cozinsel for fhe parties, we have perused fhe record. ,.^^^^.. i'A ^ ^ 1 '^ .// -Ay ^^ W.P.No.5793/20e5 (6) Ardcle 342 of titie Constitution of India, envisages that the President of India to issue notification declarmg the speci&ed caste to be scheduled tdbe. That reads (1) The President raay wifh respect to aay State or Union terdtoiy, and where it is a State, after consiiltation with fhe Govemor fhereof, by pubUc notification, specify fhe tdbes or tdbal coininunities or parts of or groups wifhia tnbes or tnbal coxninunities which shaU for the purpose of this Constitution be deemed to be Scheduled Tribes ia relation to fhat State or Union terdtory, as the case xnay be. (2) The Parliajaient inay by law iaclude ia or exclude jGromL fhe list of Scheduled Tribes specified ia a notification issued under clause (1) aay tdbe or tribal coniinunity or part of or group wifhin aay tdbe or tdbal coinniunily, but save as aforesaid a notification issued under the said clause shall not be vaded by aay subsequent notification. (7) Article 342 caine up for consideration aad interpretation before fhe Supreme Court in fhe matter of State of JMaharcsshfra and ofhers -ys- Mana Adlni Jcmwt Manda^ (2006) 4 SCC 98 where ia Para 9 ofthe judgment, fhe Supreme Court held that no autiiority, other fhaii ParUament by law, caa axaend fhe Presidential Orders. Neither fhe State Goverament nor the courts nor fhe tribunals nor any aufhority caa assume jurisdiction to hold iaquuy aad take evidence to declare fhat a caste or a tdbe or part of or a group within a caste or tdbe is iacluded ia fhe Presidential Orders in one entry or fhe ofher alfhough ftiey are not expressly aixd spect&cally iacluded. A court caanot alter or amend the said Presidential Orders for fhe veiy good reason that it has no power to do so wifhia the meamng, content aad scope ofArdcles 341 and 342. It is not possible to hold tiiat eifher any mquiry is permissible or aay evidence caa be let in, iii relation to a particular caste or tdbe to say whether it is included wifhia the Presidential Orders when it is not so expressly iacluded or exclude a particular caste or tdbe or group of castes or tdbes when fhey are expressly mcluded. In the matter of Dadetfi alias Dinn -vs- Sukhdeobdbu anet others. AIR 1980 S.C. 150, (Pg. 155), the Apex Court held fhat apart froin Article 366(25) of the t^SP9^ ,^ ^^yy W.P.No.5793/2005 Constitution, there is no ofher definition of the expression "Scheduled Tribes^. Scheduled Tribes are, fherefore, oaly those which are deemed uuder Article 342 of the Constitution to be Scheduled Tribes. Hence ia order to find out whether a conuniuuty is a Schedule Tribe or not, we have onty to see fhc order which is made uuder Article 342 offhe Constitution. (8) In view of fhe above position oflaw laid down by the Apex Court, fhie State Gtoveraiaent or fhe Aufhorities have only to see fhe order which is made iinder Article 342 ofthe Constitution of India aad no aufhority is entitled to hold enquiry aiid take evidence to declare that a caste or tdbe or part of or a group wifhiii a caste or tribe is included ia the Presidential Orders ia one entiy or the ofher alfh.ough fhey are not expressly or spect&cally iacluded that uieaiis in the Presidential Orders^ the caste which has been declared as a Scheduled Tribe has to be iacluded expressly and specifically. (9) In Ught of the above, if we penise the Presidential Orders issued ia respect of Schediiled Tribes of Chhattisgarh at Serial No.5, only Bhariya-Bhumia, Bhuihar-Bhumia, Bhumda, Bhariya, PaUha, Paaado have been iacluded ia flie Ust of Scheduled Tribe. No where Bhoriya, to which fhe petitioners claim to be tdbe, has been iacluded m the Ust, fherefore, neifher the State Gtoverament nor aay authority nor the Commission for Scheduled Caste and scheduled Tribe is entitled to issue any direction or conduct aay enqidry for includmg fhe caste Bhoriya ia the Ust ofScheduled Tribes. (10) In view of fhe above, we do not j5nd aay illegaUty or infirmily ia the impugned order dated 28.4.2005 whereby the State Govemment has been pleased to recaU its memo dated 08.5.2003 by which the CoUector Bilaspur was dirccted to further direct fhe Sub-Divisional Ofiicer, Tahsil Khatghora aiid Korba to iaclude Bhoriya ia Bhariya for titie piirpose of considermg fhem as scheduled Tribe. (11) This petition beiag icdsconceived is liable to be disimssed and ftie same is dismissed at fhe inotion st^e itself. /I^Q/ Sd/- L.C. Bhadoo Judge Sd/- Sunil Kumar Sinha Judge