Case: Bhaiya Ram Munda Vs. Anirudh Patar &amp; Ors

1. At the "mid-term elections" held in January, 1969, Anirudh Patar (the 1st respondent in this appeal) was declared elected to the Bihar Legislative Assembly from the Tamar Assembly Constituency No. 296 (Scheduled Tribes). Bhaiya Ram Munda an unsuccessful candidate at the election applied to the High Court of Patna for an order setting aside the election on the plea that the 1st respondent was not a member of a Scheduled Tribe and was on that account not qualified under Section 5 of the Representation of the People Act, 1951, to be chosen to fill a seat in the Legislative Assembly of Bihar from a reserved constituency for a Scheduled Tribes. The High Court dismissed the petition holding that the 1st respondent was a member of a Scheduled Tribe called "Munda" specified in Part III of the constitution (Scheduled Tribes) Order, 1950, issued in exercise of the powers under Article 342 of the Constitution. Bhaiya Ram Munda has appealed to this Court under Section 116-A of the Representation of the People Act, 1951.2. Section 5 of the Representation of the People Act, 1951, providesperson shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless -(a) in the case of a seat reserved for the Scheduled Castes or for the Scheduled Tribes of that State, he is a member of any of those castes or of those tribes, as the case may be, and is an elector for any Assembly constituency in that State;X X X342 of the Constitution, in so far as it is relevant, providesThe President may with respect to any State or Union territory, X X X by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purpose 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 notification issued under clause (1) any tribes 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.In exercise of the powers conferred by Article 342, the President issued an Order called the Constitution (Scheduled Tribes) Order, 1950, which by the second clause providedtribes or tribal communities, or parts of, or groups within, tribes or tribal communities specified in Parts I to XII of the Schedule to this 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 thatthe Schedule the names of certain tribes are set out, and in Part III under the heading the State of Bihar are designated certain tribes. The tribes designated in Part III are deemed to be Scheduled Tribes throughout the State of Bihar. Munda does but Patar does not occur in Part III. The 1st respondent contended that Patars are Mundas, and that it is only non-Mundas who call the various exogamous groups belonging to the tribes residing generally in Singbhum and the adjacent area and belonging to various Kilis as Mundas, or Patar Mundas, Mahali Mundas, Tamarias, Punduars and Marang Mundas and others. He contends that he does not cease to be a Munda merely because his family name is Patar.4. The appellant raised two arguments in support of his petition-(1) that Patars are not Mundas, and not being a Munda, and (2) that even if Patars and Mundas, since the name of Patar has not been included in the Constitution (Scheduled Tribes) Order, 1950, Part III applicable to Bihar, he cannot be chosen to sit in the Assembly from the reserved constituency by merely calling himself a Munda.5. Considerable evidence oral and documentary was tendered before the High Court. In support of his case the appellant relied upon-(1) as sale deed executed by the 1st respondent on January 11, 1969, which recited that the 1st respondent did not claim the status of a member of a Scheduled Tribe; (2) entries in the revenue records and (3) oral evidence of witnesses who deposed that the 1st respondent was not a Munda.6. In support of his case the 1st respondent relied upon-(1) a judgment of the High Court of Patna declaring that Patars are Mundas; (2) Khatian entries in which Patars were entered as Mundas; (3) a certificate, dated July 15, 1941, given by Rai Bahadur Sarat Chandra Roy (many years before the date on which the dispute arose) certifying that one Kshetra Mohan Patar, son of Gobardhan Patar of village Kamar Hapa, Thana Tamar, District Ranchi belonged to the Patar (Munda) tribe; and (4) oral testimony of the witnesses who deposed that the 1st respondent was a Munda.7. The name of the first respondent was entered in the voters list as a member of a Scheduled Tribe. The first respondent stood as a candidate for election to the Bihar State Legislative Assembly in 1962, and was elected from the Scheduled Tribe Constituency. Nomination was filed by him at that election as a Patar. In 1967 too the first respondent stood from the Tamar Scheduled Tribe Constituency for election to the Bihar Legislative Assembly but he was defeated. It also appears from the record that Mr. Jaipal Singh who was also a Patar was elected as a member of Parliament to a reserved seat from a constituency in the Bihar State was a member of the Scheduled Tribe.

Reasoning:
Though an admission made by him expressly or by implication that he is not a member of a Scheduled Tribe is evidence against him in an election petition, the evidence is not conclusive.The evidence given on behalf of the first respondent is amply supported by studies made by distinguished anthropologists. The first respondent was without any objection recorded in the voters list as a member of the Scheduled Tribe. He was elected in 1962 elections from a Scheduled Tribe constituency. He again contested the election from that constituency in 1967 but he was defeated. It is only in 1969 when at the fresh elections that he contested the seat and was declared elected when an objection was raised that he did not belong to a Scheduled Tribe. On a consideration of all the evidence we are of the view that Patars are a sub-tribe of Mundas and that they are not different from Mundas.30. The alternative argument advanced by counsel for the appellant has also no substance. It is true that in Part III of the Schedule to the Constitution (Scheduled Tribes) Order, 1950, issued under Article 342 of the Constitution the name "Munda" is mentioned and similarly the names of other sub-tribes amongst Mundas are mentioned. for the appellant contended that if according to Dr. Sachchidanand Mahalis, Ho, Bhumijs, Assur, Baaig and Khangara are Mundas, specific mention of some of those tribes in the Schedule Tribes Order clearly indicated that Patars who are not mentioned therein are not a scheduled Tribe within the meaning of the Order. There is, however, no warrant for that view. If Patars are Mundas, because some sub-tribes of Mundas are enumerated in the Order and others are not, no inference will arise that those not enumerated are not Mundas. We are unable to hold that because Patars are not specifically mentioned in the List they cannot be included in the general heading Munda.31. Decisions in support of the contention that the Courts cannot allow evidence to be taken for proving that certain classes of people though not expressly designated in the Presidential Order were intended to be covered by the Order may be briefly referred to. It may suffice to state, however, that it is not the case of the first respondent that Patars are a distinct community, but that they should be regarded as Mundas because of the similarity of customs, religious beliefs, forms of worship and other social obligations.In the present case it is not the contention of the first respondent that he was a Patar-member of a tribe which is not Munda, but he was recognized as a Munda. His case was that in his tribe he was as a Munda Patars.36. Attention may also be directed to a recent judgment of this Court in Dina v. Narayan Singh & Another. (C.A, No. 1628 of 1967, decided on May 21, 1968) In that case Dina Narayan Singh was declared elected to the Maharashtra Legislative Assembly from the Armori Scheduled Tribes constituency. His election was set aside on the application filed by the first respondent on the ground that Dina was not eligible to stand as a candidate from a reserved constituency. Dina had declared in his nomination paper that he was a member of the Gond (Mana) caste and the same was a Scheduled Tribe in Taluka Cadchiroli of District Chanda in that the Maharashtra State and being a Gond though styled as Mana he was entitled to the privileges given by the Constitution (Scheduled Castes) Order, 1950. This Court on a consideration of the evidence came to the conclusion that there was no sub-tribe of Maratha Manas in the Gonds. It was found that the customs, manners, forms of worship and dress of the members of the Maratha Mana community were all different from the customs, manners, form of worship and dress of the Gonds. In that view the Court held that Mana community amongst the Marathas could not be regarded as Gond and the appellant was not entitled to stand for election as Gond. The decision clearly decides that the name by which a tribe or sub-tribe is known is not decisive. Even if the tribe of a person is different from the name included in the Order issued by the President, it may be shown that the name included in the Order is a general name applicable to sub-tribes.