http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: SRISH KUMAR CHOUDHURY

       Vs.

RESPONDENT: STATE OF TRIPURA AND ORS.

DATE OF JUDGMENT23/02/1990

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH PUNCHHI, M.M. AGRAWAL, S.C. (J)

CITATION:  1990 AIR  991            1990 SCR  (1) 576  1990 SCC  Supl.  220     JT 1990 (2)    27  1990 SCALE  (1)300

ACT:     Constitution   of  India--Articles  341  and   342/Items 15-18--Laskar Community--Inclusion in the list of  Scheduled Tribes--Entertainment

HEADNOTE:     The appellant is a resident of Tripura State. He assert- ed  that he belonged to the Laskar community which  was  in- cluded  in State records in the Deshi Tripura community  and in  the  former State of Tripura this community  had  always been  treated  as Scheduled Tribes, and the members  of  the community  freely  enjoyed  all the  benefits  available  to members  of the Scheduled Tribes until 1976 when  the  State Government decided to treat members of this community as not belonging to the Scheduled Tribes and issued instructions to the state authorities to implement the Government  decision. Being  aggrieved the appellant filed a writ petition  before the  High  Court in a representative  capacity  praying  for appropriate  directions  directing the State  Government  to continue to treat the appellant and members of Laskar commu- nity  as  belonging to Scheduled Tribes and extend  all  the benefits available to Scheduled Tribes to this community. In support  of  his  claim the appellant relied  upon  the  two circulars  of the erstwhile State of Tripura dated  December 1930 and February 1941 as also the census report of the  ex- state of Tripura, besides the authorities of this Court. The respondent  took  the plea that Laskar community  was  never included in the Scheduled Tribes Order and as such there was no question of excluding it from the List. After considering the  rival contentions of the parties coupled with the  his- torical  background  bearing on the subject,  the  statement made  by the Advocate-General that the Memos will  be  given prospective  operation,  the High Court dismissed  the  Writ Petition.  Hence this appeal by Special Leave.  This  appeal initially came up before a two judges Bench for final  hear- ing when on a statement made by the Counsel for the Union of India  that a representation made by the appellant and  mem- bers  of his community for inclusion their caste-Laskar,  in the  Presidential  order under Article 342 is  being  looked into and is being placed before the Parliamentary  Committee

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

for review of the position, the Court disposed of the appeal in terms of the assurance 577 given on behalf of the Union. It was specifically stated  in the Court’s order that in case the community is not included in the Presidential Order, it would be open to the appellant to  take  such  action as may be available to  him  in  law. Nothing  having  happened at governmental  level,  with  the consent  of the parties, the order disposing of  the  appeal was  recalled and the appeal has thus now come up for  hear- ing. Dismissing the appeal, this Court,     HELD:  Reservation has become important in view  of  the increasing competition in society and that probably had  led to the anxiety of the appellant and the people in his commu- nity to claim reservation. [586G]     In  Tripura the Scheduled Tribes within the  meaning  of the definition given in Article 366 of the Constitution have been  ’Jamatia, Noatia, Riang  and  Tripura/Tripuri/Tippera’ apart from 15 other tribes. It is the case of the  appellant that  Laskars  are a part of the tribe  named  as  ’Tripura, Tripuri and Tippera’ covered by Entry 18. [581D]     This Court should not assume jurisdiction and enter into an enquiry to determine whether the three terms indicated in the  Presidential Order include Deshi Tripura  which  covers the  Laskar community; but it is appropriate to  commend  to the  authorities concerned that as and when the question  is reviewed  it  should be examined whether the  claim  of  the appellant  representing the Laskar community to be  included in the scheduled tribes is genuine and should, therefore, be entertained. [586F-G]     Even  if  historically  this tribe was  covered  by  the general  description  of  Tripura, that by  itself  may  not justify  its  inclusion in the Order as a  Scheduled  Tribe. That  is an additional feature which has weighed with us  in taking our decision not to interfere in the matter. [587C]     B. Basavalingappa v. D. Munichinnappa, [1966] 1 SCR 316; Bhaiyalal  v. Harikishan Singh and Ors., [1965] 2  SCR  877; Parsram  and  Anr. v. Shivchand and Ors., [1969] 1  SCC  20; Kishorilal  Hans  v. Raja Ram Singh and Ors., [1972]  2  SCR 632; Dina v. Narayan Singh, 38 ELR 212 and Bhaiya Ram  Munda v. Anirudh Patarand Ors., [1971] 1 SCR 804, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  479  of 1986. 578     From  the  Judgment and Order dated 18.3.  1985  of  the Assam High Court in Civil Rule No. 139 of 1979.     A.K.  Ganguli,  A. Mariarputham, A.D.  Sikri  and  Dilip Tandon for the Appellant.     Kapil Sibal, Additional Solicitor General, Rajiv Dhawan, Gopal  Singh, C.V.S. Rao, Adv. (NP) and R.B. Misra  for  the appearing respondents. Hardev Singh and S. Ravindra Bhat for the intervenor. The Judgment of the Court was delivered by RANGANATH  MISRA,  J.This appeal by special leave  calls  in question the judgment of the Guwahati High Court dated March 18,  1985,  dismissing the appellant’s  writ  petition.  The appellant is a resident of Tripura State. In his application in a representative capacity before the High court he  main- tained  that he belonged to the Laskar community  which  had always  been treated in the erstwhile State of Tripura as  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

Scheduled  Tribe and on that basis in the State records  was included in the Deshi Tripura community long before integra- tion  of  the  Ruler’s State of Tripura with  the  Union  of India.  Members of the Laskar community freely  enjoyed  all the  benefits  available to members of the  Schedule  Tribes until in 1976 the State Government decided to treat  members of  that community as not belonging to the Scheduled  Tribes and  issued instructions to the State authorities to  imple- ment the Government decision. That led to the filing of  the petition before the High Court. In the writ petition  appel- lant prayed for appropriate directions to continue to  treat the  appellant and members of his community as belonging  to the  Scheduled Tribes and for a direction to the State  Gov- ernment to extend all the benefits admissible to members  of the  Scheduled  Tribes to members of the  Laskar  community. Before the High Court the respondents disputed the claim and maintained  that the Laskar community was never included  in the Scheduled Tribes Order and as such there was no question of exclusion from the list. A historical study of the  claim would  show that in the past  Tripura/Tripuri/Tippera  which have  been included in the Presidential  Notification  never included the Laskar community. Tripuras were. a TibetoDurman race  akin to the Shan tribe and Tipperas were divided  into four  groups, namely, (i) Puran or original  Tipperas;  (ii) Jamatias;  (iii) Noatias or Nutan Tripuras and (iv)  Riangs. Respondents  relied  upon Government  records  and  official publications in support of-the aforesaid stand. 579     Before  the  High Court two circulars of  the  erstwhile State of Tripura, one being of December, 1930, and the other of February, 1941, as also the census report of the ex-State of Tripura were produced in support of the claim advanced by the appellant. Several authorities of this Court were relied upon for finding out the scope of enquiry in a claim of this type and ultimately by the impugned judgment the High  Court dismissed the writ petition but on the basis of a  statement made  by  the Advocate-General appearing for the  State,  it recorded: "We  keep on record the statement made by the learned  Advo- cate-General,  Tripura, on instruction that as a  result  of the  impugned Memorandum No.  18887-19077/TW/6-4(L-D)  dated 28.4. 1979 the certificates already issued would be  treated as  infructuous  prospectively and not  retrospectively  and those  who  have already enjoyed the benefits by  virtue  of such Scheduled Tribe certificates they shall not be deprived of the benefits they have already enjoyed and the Memorandum shall  be effective from its date prospectively  insofar  as the future benefits are concerned."     This appeal had come up for final hearing earlier and by a  brief judgment reported in [1987] 3 SCC 463, a  two-Judge Bench recorded the following order: "The  record before us shows that the people of  the  Laskar community  have  been treated as members  of  the  Scheduled Tribes and there have been some letters from the  Government of  India to the State Government in support of  that  posi- tion;  it is, however, a fact that there has been  no  clear inclusion  of the community in an  appropriate  Presidential Order. The appellant has maintained that even in the absence of such a clear specification in a Presidential Order, as  a sub-group  under one of the notified categories, the  appel- lant’s  community has been enjoying the privileges. We  have been told by the learned counsel for the Union of India that the representation made by the appellant and members of  his community  for  inclusion in the  Presidential  Order  under Article 342 of the Constitution is being looked into and  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

being  placed before the Parliamentary Committee in  accord- ance  with  the  prescribed procedure for a  review  of  the position.  He  has assured us that the Government  of  India will take steps to finalise the matter at an 580 early  date  and  may in compliance with  the  procedure  as prescribed, take a final decision. In case the community  is not included in the Presidential Order, it would be open  to the  appellant  to take such action as may be  available  in law."     The  appellant waited for some time and  approached  the Government  of India for quick action but when nothing  hap- pened, an application for directions was made in this Court. Several  adjournments  were taken but Government  could  not take  any decision. Ultimately, by consent of  parties,  the order  disposing of the appeal was recalled and  the  appeal was directed to be set down for re-hearing. That is how  the appeal is now before us.     Articles  341  and  342 of the  Constitution  deal  with Scheduled  Castes  and  Scheduled  Tribes  respectively  and contain  almost identical provision. We may extract  Article 342 dealing with Scheduled Tribes: "342.(1)  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  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 tribe 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."     Article 366(25) defines ’Scheduled Tribes’ to mean  such tribes or tribal communities or parts or groups within  such tribal communities as are deemed under Art. 342 to be Sched- uled  Tribes  for  the purposes of  this  Constitution.  The Constitution  (Scheduled Tribes) (Union Territories)  Order, 1950  relating  to  Tripura included 19  tribes  within  the notification.  Items 15, 16, 17 and 18 are relevant for  our purpose and they were: "15. Tripura or Tripuri, Tippera. 581 16. Jamatia 17. Noatia 18. Riang"     Following  the  Reorganisation  Act (37  of  1956),  the Ministry  of Home Affairs on October 29, 1956, notified  the list of Scheduled Castes and Scheduled Tribes. In respect of the  then  Union Territory of Tripura the  same  communities were relisted. Then came the NorthEastern Area  (Reorganisa- tion)  Act  (81 of 1971) which in the Fourth  Schedule  con- tained  amendment  to the  Constitution  (Scheduled  Tribes) Order,  1950. Items 15 to 18 in the Scheduled contained  the same  descriptions. The Scheduled Castes & Scheduled  Tribes Orders (Amendment) Act, (108 of 1976) in relation to Tripura in  the Second Scheduled carried the same in Entries 7,  14, 16  and  18.  It is, therefore, clear that  in  Tripura  the scheduled tribes within the meaning of the definition  given in  Art.  366 of the Constitution have been  the  following: ’Jamatia,  Noatia, Riang and Tripura/Tripuri/Tippera’  apart from  15 other tribes as specified. It is not  necessary  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

refer  to  the 15 others inasmuch as it is the case  of  the appellant  that  Laskars are a part of the  tribe  named  as Tripura, Tripuri or Tippera covered by Entry 18.     Before  adverting to the evidence upon which the  appel- lant  relies in support of his stand, it is  necessary  that the  scope of enquiry to be conducted in this regard by  the Court may be determined. There are precedents of this  Court which have to be first referred to. A Constitution Bench  in the case of B. Basavalingappa v. D. Munichinnappa, [1965]  1 SCR 316 examined the provisions of Art. 341 which  contained similar  provisions for the scheduled castes with  reference to an election dispute. Wanchoo, J. spoke for the  Constitu- tion Bench thus: "Clause (1) provides that the President may with respect  to any State, after consultation with the Governor thereof,  by public notification, specify the castes, races or tribes  or parts  of  or groups within castes, races  or  tribes  which shall  for the purposes of the Constitution be deemed to  be Scheduled  Castes in relation to that State. The  object  of this  provision  obviously is to avoid all  disputes  as  to whether  a particular caste is a Scheduled Caste or not  and only those castes can be Scheduled Castes which are notified in  the  Order made by the President under  Art.  341  after consultation with the Governor where it relates to 582 such  castes in a State. Clause (2) then provides that  Par- liament  may by law include in or exclude from the  list  of scheduled  castes specified in a notification  issued  under cl. (1) any caste, race or tribe or part of or group  within any  caste, race or tribe. The power was thus given to  Par- liament  to  modify the notification made by  the  President under  cl.  (1). Further cl. (2) goes on to provide  that  a notification issued under cl. (1) shall not be varied by any subsequent notification, thus making the notification by the President final for all times except for modification by law as provided by cl. (2). Clearly therefore Art. 341  provides for a notification and for its finality except when  altered by  Parliament  by  law  .....  Therefore in  view  of  this stringent  provision of the Constitution with respect  to  a notification issued under cl. (1) it is not open to any  one to  include any caste as coming within the  notification  on the basis of evidence--Oral or documentary,--if the caste in question does not find specific mention in the terms of  the notification  .....  It may be accepted that it is not  open to make any modification in the Order by producing  evidence to show (for example) that though caste A alone is mentioned in  the Order, caste B is also a part of caste A and  there- fore  must be deemed to be included in caste A. It may  also be accepted that wherever one caste has another name it  has been mentioned in brackets after it in Order. Therefore, generally speaking it would not be open to any  person  to lead evidence to establish that caste  B  is part of caste A notified in the Order."     The  factual dispute raised in the case before the  Con- stitution  Bench  was whether Voddar caste was  included  in Bhovi  caste which was one of the notified castes. The  Con- stitution Bench dealt with the evidence and ultimately said: "In the circumstances therefore we agree with the High Court that respondent No. 1 though Voddar by caste belongs to  the scheduled  caste  of Bhovi mentioned in the  Order.  We  may again  repeat that we have referred to the evidence in  this case  only because there was undoubtedly no caste  known  as Bhovi  in the Mysore State as it was before 1956 and we  had to  find  out therefore which caste was meant  by  the  word ’Bhovi’ as used in the Order. But for this fact it would not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

have been open to any party to 583 give  evidence to the effect that caste A mentioned  in  the Order includes or was the same as caste B where caste A does exist in the area to which the Order applies."     A similar dispute again came before a Constitution Bench in  Bhaiyalal v. Harikishan Singh & Ors., [1965] 2  SCR  877 with reference to a scheduled tribe in an election  dispute. Gajendragadkar, CJ speaking for the Court said: "It  is obvious that in specifying castes, races or  tribes, the  President  has been expressly authorised to  limit  the notification to parts of or groups within the castes,  races or  tribes,  and  that must mean that  after  examining  the educational  and  social backwardness of a  caste,  race  or tribe,  the President may well come to the  conclusion  that not  the whole caste, race or tribe but parts of  or  groups within  them should be specified. Similarly,  the  President can  specify  castes, races or tribes or  parts  thereof  in relation  not only to the entire State, but in  relation  to parts  of the State where he is satisfied that the  examina- tion of the social and educational backwardness of the race, caste or tribe justifies such specification. In fact, it  is well-known  that before a notification is issued under  Art. 341(1),  an elaborate enquiry is made and it is as a  result of this enquiry that social justice is sought to be done  to the  castes, races or tribes as may appear to be  necessary, and  in doing justice, it would obviously be  expedient  not only to specify parts or groups of castes, races or  tribes, but to make the said specification by reference to different areas in the State."     What  we have extracted above clearly supports the  view of the other Constitution Bench, namely, the list is intend- ed to be final.     We  may now refer to a two-Judge Bench decision  in  the case of Parsram & Anr. v. Shivchand & Ors., [1969] 1 SCC 20. Here  again, the Scheduled Castes Order was in issue  in  an election  dispute  and the question  for  consideration  was whether mochi was included in the notified caste of  chamar. The Court referred to both the Constitution Bench  judgments and indicated: "These  judgments are binding on us and we do not  therefore think that it would be of any use to look into the gazeteers and the glossaries on the Punjab castes and tribes 584 to  which reference was made at the Bar to find out  whether Mochi  and Chamar in some parts of the State at least  meant the  same caste although their might be some  difference  in the professions followed by their members, the main  differ- ence  being that Chamars skin dead animals which  Mochis  do not.  However  that may be, the question not being  open  to agitation  by  evidence and being one the  determination  of which  lies within the exclusive power of the President,  it is not for us to examine it and come to a conclusion that if a person was in fact a Mochi, he could still claim to belong to the scheduled caste of Chamars and be allowed to  contest an election on that basis."     In  Kishorilal Hans v. Raja Ram Singh & Ors.,  [1972]  2 SCR 632 a two-Judge Bench was called upon to decide  whether jatav  caste not mentioned in the scheduled castes of  Datia district  of  Madhya Pradesh in the Order  was  included  in chamar caste. The Court indicated: "If  the matter were res-integra we would have felt  a  good deal  of difficulty in reconciling with  the  constitutional provisions  the scheme followed in the state and the  Orders concerned  by  which some caste has been  includes  in  some

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

districts  of the same State and excluded in the other  dis- tricts. This Court, however, has in Bhaiyalal v.  Harikishan Singh & Ors., supra, made observations repelling the conten- tion  that under Art. 341 of the Constitution the  President was  not authorised to limit the notification to parts of  a State   .....  In Bhaiyalal’s case the appellant’s  election had  been challenged on the ground that he belonged  to  the Dohar  caste which was not recognised as a  scheduled  caste for the district in question and so his declaration that  he belonged to the Chamar caste which was a Scheduled Caste was improperly and illegally accepted by the Returning  Officer. It was held that the plea that though the appellant was  not a Chamar as such he could claim the same status by reason of the  fact  that he belonged to Dohar caste which is  a  sub- caste of the Chamar caste could not be accepted. An  enquiry of  that kind would not be permissible having regard to  the provisions contained in Art. 341 of the Constitution."     We may now refer to two separate judgments of this Court in the case Dina v. Narayan Singh, 38 ELR 212 and Bhaiya Ram Munda v. 585 Anirudh  Patar & Ors., [1971] 1 SCR 804. Both were  rendered by a common Bench of Shah (as he then was) and Bhargava, JJ. In the first case the question for consideration was  inter- pretation  of  Entry 12 in the Scheduled Tribes  Order.  The entry  read.  ’Gond including Mana’. The  Court  interpreted that Mana community was a substitute of Gond and on a proper construction  of  the entry Manas not being Gonds  were  not intended  to be included. The decision in that case  is  not relevant for our purpose.     In Bhaiya Ram’s case, the tribe specified in the  Sched- uled Tribes Order was Munda. The respondent was a Patar  but he  maintained that it was included in the  notified  tribe. The  Bench was of the view that evidence was admissible  for the  purpose  of showing what an entry in  the  Presidential Order  was  intended to mean though evidence  could  not  be accepted  for modifying the order by including a new  tribe. Since  the  respondents’ case was that Patars  were  Mundas, evidence  could  be  given to show that  the  entry  ’Munda’ included ’Patar’.     These authorities clearly indicate, therefore, that  the entries in the Presidential Order have to be taken as  final and  the scope of enquiry and admissibility of  evidence  is confined  within the limitations indicated. It is,  however, not  open to the Court to make any addition  or  subtraction from the Presidential Order.     The  evidence  in this case on which reliance  has  been placed in support of the claim that Laskars are included  in the  tribe  described  as  ’Tripura/Tripuri/Tippera’  mainly consists of two circulars of the erstwhile State of Tripura. Circular  No. 9 is of December, 1930. There is  a  narration therein to the following effect: "In  this State Tripura Sampradaya means the following  five communities’ 1. Puratan Tripura 2. Deshi Tripura (related to Laskar Class) 3. Noatia 4. Jamatia 5. Riang" 586 In  Circular No. 10 which is of the year 1941, it  has  been said: "In  this  State Tripura--Kshatriya  denotes  the  following classes: 1. Puratan Tripura

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

2. Deshi Tripura (related to Laskar Class) 3. Noatia 4. Jamatia 5. Riang"     The  latter document related to census operation in  the State.  From  these  two documents it is  clear  that  Deshi Tripura  covered  the Laskar class while there  was  another class called ’Tripura/Tripuri/ Tippera’ which did not relate to  Laskar  class. The Presidential Order has  admitted  the three tribes of Noatia, Jamatia and Riang in terms but while dealing  with the two classes of Puratan Tripura  and  Deshi Tripura  covering the Laskar class, it has adopted  the  de- scription of those three terms without referring to  Puratan or Deshi.     The  two  Constitution  Bench  judgments  indicate  that enquiry  is  contemplated before the Presidential  Order  is made but any amendment to the Presidential Order can only be by  legislation. We do not think we should assume  jurisdic- tion  and  enter into an enquiry to  determine  whether  the three  terms  indicated in the  Presidential  Order  include Deshi  Tripura  which covers the Laskar  community;  but  we consider  it appropriate to commend to the authorities  con- cerned  that as and when the question is reviewed it  should be examined whether the claim of the appellant  representing the Laskar community to be included in the scheduled  tribes is genuine and should, therefore, be entertained.     Reservation has become important in view of the increas- ing competition in society and that probably had led to  the anxiety of the appellant and the people in his community  to claim reservation. As pointed out by the Constitution  Bench judgments  which  we have referred to above,  the  basis  on which  inclusion into or exclusion from the enumerated  list made under Art. 342 is contemplated is the changing  econom- ic, educational and other situations of the members of any 587 particular tribe. Keeping that in view the State  Government may initiate appropriate proposals for modification in  case it is satisfied and after appropriate enquiry if the author- ities  are satisfied that the claim is genuine and  tenable, amendment may be undertaken as provided by the Constitution.     This  Court has indicated in some of the  judgments  re- ferred  to  above that as a result of the  detailed  enquiry made  as to the economic status, the level of education  and the  necessity  of protection, inclusion into  or  exclusion from the Order is made. This material relating to the Laskar tribe  in 1930 or 1941 may not have been  considered  suffi- cient  before the respective Orders were made for  including the Laskars, said to have been covered by the description of Deshi  Tripura. Therefore, even if historically  this  tribe was  covered by the general description of Tripura, that  by itself  may  not  justify its inclusion in the  Order  as  a scheduled  tribe.  That is an additional feature  which  has weighed  with us in taking our decision not to interfere  in the matter.     The  claim of the appellant is dismissed so far as  this Court  is concerned but the observations which we have  made may  be  kept  in view. There shall be no  order  for  costs through-out. Y. Lal                                Appeal dismissed. 588