Case: Dadaji Alias Dina Vs. Sukhdeobabu and Others

2. The Armori Constituency was reserved for Scheduled Tribes. The appellant and respondents Nos. 1 to 4 were the candidates at the election. As the appellant secured the highest number of votes, he was declared as having been elected by the Returning Officer. In his nomination paper, the appellant declared that he belonged to Mana community. Respondents Nos. 1, 2 and 4 declared themselves as belonging to Pradhan community and respondent No. 3 claimed that he belonged to Raj Gond community. After the result of the election was declared, respondent No. 1 who had secured the next highest number of votes at the election filed an election petition under section 81 of the Act before the High Court of Bombay calling in question the election of the appellant. One of the grounds urged in the petition was that the appellant did not belong to any of the Scheduled Tribes specified in Part I X of the Schedule to the Constitution (Scheduled Tribes) Order, 1950 (hereinafter referred to as the Order) as it stood at the time of the election and was not, therefore, qualified to be chosen to fill the seat which was reserved for Scheduled Tribes. It was alleged that the appellant belonged to Kshatriya Bidwaik Mana community and not to the Mana community referred to in Entry No. 18 of Part IX of the Schedule to the Order. Respondent No. 1 also claimed that in the event of the appellants election being declared as void, the Court should make a declaration that he (respondent No. 1) himself had been duly elected. The High Court upheld the contention of respondent No. 1 that the appellant did not belong to any of the Scheduled Tribes referred to in Part IX of the Schedule to the Order and declared his election as void. The other prayer made by respondent No. 1 that he should be declared as elected was, however, rejected. Aggrieved by the judgment of the High Court, the appellant has come up in appeal to this Court.It should be mentioned at this stage that in the general election held in the year 1967, the appellant was declared as a successful candidate from the very same constituency which was a constituency reserved for Scheduled Tribes at that time also and that on an election petition being filed against the appellant, the High Court held that he did not belong to any of the Scheduled Tribes mentioned in the appropriate part of the Schedule to the Order at that time and therefore he was not qualified to contest the election. Accordingly his election was set aside. In the appeal filed before this Court, the judgment of the High Court was affirmed vide Dina v. Narayan Singh.(1) In the course of the decision of this Court, it was held that the appellant belonged to Kshatriya Bidwaik Mana community and not to the Mana community referred to in Entry No. 12 of Paragraph 5 of Part VII-A of the Schedule to the Order as it stood at the time of the said election for the reasons to which we shall advert hereafter3. In the election petition out of which this appeal arises, respondent No. 1 pleaded that the appellant belonged to Kshatriya Bidwaik Man a community which was not a tribe mentioned in the Schedule to the Order and that the appellant was not a member of the Mana community referred to in Entry No. 18 of Part IX of the Schedule to the Order as it stood at the time of the election in question. It was further alleged that the said Mana community was a sub- tribe of Gond tribe and it had no relationship with the Kshatriya Bidwaik Mana community to which the appellant belonged. The appellant denied the above allegation that there were two types of Manas viz. (a) Mana a sub-tribe of Gond referred to in Entry No. 18 of Part IX of the Schedule to the Order and (b) Kshatriya Bidwaik Mana community. He further contended that the Mana community to w hich he belonged had been included in that Entry after the Schedule to the Order was amended by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976.

Reasoning:
In order to appreciate the rival contentions, it is necessary to make a brief survey of the law bearing on the question. Article 332 of the Constitution provides that seats shall be reserved for the Scheduled Castes and the Scheduled Tribes, except the Scheduled Tribes in the tribal areas of Assam and Nagaland, in the Legislative Assembly of every State and that the number of seats for the Scheduled Castes and the Scheduled Tribes so reserved shall bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population of t he Scheduled Castes in the State or of the Scheduled Tribes in the State or part of the State, as the case may be, in respect of which seats are so reserved, bears to the total population of the State. The expression Scheduled Tribes with which we are concerned in this case is defined in clause (25) of Article 366 of the Constitution as such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of the Constitution. Article 342(1) of the Constitution provides that the President may with respect to any State or Union territory and where it is a 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 the Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as t he case may be. It was in pursuance of this constitutional provision that the President issued the Order specifying the tribes or tribal communities which should be deemed to be Scheduled Tribes in relation to the several parts of India. Article 342(2) of the Constitution confers the power on the Parliament to modify by law the order issued under Article 342(1) by including in or excluding from the list of Scheduled Tribes specified therein any tribe or tribal community or part of or group within any tribe or tribal community. Section 5(a) of the Act provides that a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless, in the case of a seat reserved for the Scheduled Tribes of that State he is a member of any of those tribes and is an elector for any Assembly constituency in that State.7. It is seen from the above Entry that Mana community is one of the communities included in the group of communities headed by Gond community. It appears that the recommendation of the Joint Committee to exclude it from the Schedule to the Order was not accepted by the Parliament.If the Schedule to the Order had not undergone any change, there would not have been any room for argument that the appellant was a person belonging to a Scheduled Tribe eligible to contest as a candidate at an election to fill a seat from the reserved constituency as the question w as conducted by the judgment of this Court in Dinas case (supra).Scheduled Tribes are, therefore, only those which are deemed under Article 342 of the Constitution to be Scheduled Tribes.8. Mr. M. N. Phadke, learned counsel for the appellant drew the attention of the Court to the omission of the word including which according to him, had been used in Entry No. 12 of the Schedule as it stood prior to the amendment to indicate that the communities mentioned after it were those having affinity with the Gond tribe, from the new Entry No. 18 of Part IX of the Schedule to the Order and contended that the group of communities mentioned in Entry No. 18 need not necessarily be those having mutual affinity amongst them. On the above basis, it was urged on behalf of the appellant that a person belonging to any Mana community should be treated as a person belonging to a Scheduled Tribe even though it had no affinity with the Gond tribe. We find it difficult to agree with the submission made by him. Sometimes, the word  including is used in a definition to give an extended meaning also to the word defined.9. In South Gujarat Roofing Tiles Manufacturers Association &Anr. v. State of Gujarat &Anr.(2) this Court interpreted the expression includes found in Entry No. 22 which had been included in Part I of the Schedule to the Minimum Wages Act, 1948 by the Gujarat Government as being equivalent to means. It is significant that even when it was possible to give an extended meaning to the expression Mana appearing in Entry No. 12 in the Order before the amendment relying on the presence of the word including in that Entry, this Court gave a restricted meaning to it and held that only that Mana community which had affinity with the Gond community could be considered as a Scheduled Tribe and that Kshatriya Bidwaik Mana community to which the appellant belonged could not be treated as a Scheduled Tribe. Now that the word including has been omitted from the present Entry No. 18, is it open to construe it as including communities which had no affinity with the principal tribe Gond mentioned first in that Entry?10. We do not think that it is possible to do so. Even though the proceedings of the Joint Committee cannot be relied upon for the purpose of construing the Order, they may be looked into to ascertain the circumstances in which the several communities were grouped under one Entry or the other. The extract from the proceedings of the Joint Committee quoted above shows that in order to avoid confusion, the Committee recommended to follow the words in Article 342 of the Constitution and to enlist the tribes or tribal communities or parts of, or groups within, tribes or tribal communities under specific Entries. It also recommended that the main tribe should be mentioned first in any Entry followed by its synonyms and its sub-tribes in alphabetical order. Even without the aid of the proceedings of the Joint Committee, it is possible to arrive at the same conclusion in the context in which the word Mana is found in Entry No. 18. Part IX of the Schedule to the Order as it stands today contains 47 Entries. In certain entries only one community is mentioned and in certain others. two or more communities are mentioned. It is obvious that certain communities have been grouped together under a single entry in the light of Article 342 of the Constitution which requires parts of or groups within a tribal community also to be specified in the order issued there under. It is, therefore, reasonable to hold that the communities mentioned against any specific entry are those which have mutual affinity amongst them.It is also not possible to hold that by replacing the Schedule to the Order by a new Schedule by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, the Parliament intended to treat persons belonging to Kshatriya Bidwaik Mana community also as Scheduled Tribes. If really that was the intention, the Parliament would have mentioned Mana community under an independent entry. The inclusion of the Naikpod community amongst the group of communities in Entry No. 18 for the first time also is of no special significance since the appellant has admitted in the course of his evidence that Naikpod is also a tribe, found alongwith other Scheduled Tribes in that area and it is not stated that the said tribe has no affinity with them. It may have been omitted from the order earlier due to oversight.11. A reading of the Schedule to the Order also shows that where there are two communities with the same name, one having affinity with a tribe and the other not having anything to do with such tribe and both are treated as Scheduled Tribes the community which has affinity with another tribe is shown alongwith it in the same group against a single entry and the other is shown against a different entry. This is illustrated by the inclusion of the koya community having affinity with Gonds in Entry No. 18 and the koya community having no such affinity in Entry No. 33 of Part IX of the Schedule to the Order. If the Parliament intended to treat the appellants community also as a Scheduled Tribe, it would have shown Mana community under a separate entry. No such entry is found in the Schedule.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 Sahayak Mandal, Chandrapur. Although in another part of his statement of objections, there are some contradictory statements, the following plea in para 9 of the s aid 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 No. 1 was the Vice-President for some time and also an active worker of the Kshatriya Bidwaik Mana Shikshana Sanastha. 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.14. 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 manner, 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 claim 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). Realizing thereafter that his community had no affinity with the Gonds he stated that he was not a 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 VIIA of the Schedule. But the form in which the entry is made prima facie indicates that in the 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.15. 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.The position has not since changed even though the Schedule to the Order is substituted by a new Schedule. There has only been a re-arrangement of the Schedule with slight modification which has no effect on the question at issue in this case16. The High Court was, therefore, right in rejecting the case of the appellant that he belonged to a Scheduled Tribe, and in setting aside his election to the Maharashtra Legislative Assembly.