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PETITIONER: ABHOY PADA SARA

       Vs.

RESPONDENT: SUDHIR KUMAR MONDAL

DATE OF JUDGMENT: 05/05/1966

BENCH: SARKAR, A.K. (CJ) BENCH: SARKAR, A.K. (CJ) MUDHOLKAR, J.R. BACHAWAT, R.S. SHELAT, J.M. DAYAL, RAGHUBAR

CITATION:  1967 AIR  115            1966 SCR  387  CITATOR INFO :  R          1968 SC 929  (3)

ACT: Construction  (Scheduled  Castes) 1950, Part  13,  Item  40- "Sunris excluding Sahas", Scope of.

HEADNOTE: 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].

JUDGMENT: CIVIL  APPELLATE  JURISDICTION:- Civil 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  S. Balakrishnan,  for the appellant (in C.A. No. 931  of  1965) and the respondent (in C. A. No. 1149 of 1965). D.N. Mukherjee, for the respondent (in C.A. No. 931 of 1965) and the appellant (in C.A. No. 1149 of 1965). The Judgment of the Court was delivered by

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Sarkar,  C.J.  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 16,730 votes and Sudhir,  15,523 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. Art.  332 of the Constitution provides that seats  shall  be reserved  for  the  Scheduled  Castes  in  the   Legislative Assembly  of  every  State.  Art. 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 Art. 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

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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  Art.

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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

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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. L/S5SCI-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.  P.N. 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.

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