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PETITIONER: B.   BASAVALINGAPPA

       Vs.

RESPONDENT: D. MUNICHINNAPPA

DATE OF JUDGMENT: 23/09/1964

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M. DAYAL, RAGHUBAR MUDHOLKAR, J.R.

CITATION:  1965 AIR 1269            1965 SCR  (1) 316  CITATOR INFO :  R          1965 SC1557  (8)  R          1968 SC 929  (3)  R          1969 SC 597  (5)  R          1971 SC2533  (32)  F          1972 SC 598  (13)  F          1990 SC 727  (12A)  E          1990 SC 991  (8)

ACT:    Election-Scheduled   Castes   constituency-Voddar   caste whether  the  same  as  Bhovi  caste-Evidence  recorded   by Tribunal  to this effect  whether  permissible--Constitution (Scheduled Castes) Order, 1950.

HEADNOTE:    M, the candidate elected from Bangalore South  (Scheduled Castes) constituency claimed to belong to Bhovi caste  which was   one   of  the  Scheduled  Castes  mentioned   in   the Constitution  (Scheduled  Castes) Order, 1950,  but  in  the election petition filed against him by the appellant it  was alleged that he belonged to Voddar caste which was not  men- tioned  in the Order and that therefore he was not  entitled to stand for election from the Scheduled Caste constituency. The  Election Tribunal recorded evidence on behalf of  M  to the  effect  that the Voddar caste was none other  than  the Bhovi caste.  The Tribunal held on the basis of the evidence produced  that  Bhovi was a sub-caste of the  Voddar  caste, that  M  did  not belong to the Bhovi  sub-caste,  and  that therefore   he   was  not  entitled  to   stand   from   the constituency.   The  High Court however held  that  although Voddar  caste  as such was not included in  the  order,  yet considering-the facts and circumstances in existence at  the time  when  the Order was passed in 1950,  the  Bhovi  caste mentioned therein was the game as the Voddar caste.  On this finding  it dismissed the election petition.  The  appellant filed an appeal before this Court by special leave. It  was contended on behalf of the appellant that : (1)  the High  Court was wrong in looking into the evidence that  was produced  before  the  Tribunal  and  then  coming  to   the

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conclusion  that the caste Bhovi mentioned in the Order  was meant for the caste Voddar (2) the Tribunal should not  have allowed evidence to be produced which would have the  effect of  modifying the Order which was exhaustive, and gave  full particulars  of  each-  scheduled  caste  recognised  by  it including alternative names and alternative spellings. HELD : From the evidence it was clear that in 1950 when  the Order was passed there was no caste in the then Mysore State which was known as Bhovi.  The Order could not have intended to recognise a caste which did not exist.  It was  therefore necessary  to find out which caste was meant by the  use  of the  name  Bhovi and for that purpose evidence  was  rightly recorded  by the Tribunal and acted upon by the High  Court. It is only in such extraordinary circumstances that evidence can be so recorded.  Generally speaking it would not be open to  any person to lead evidence to establish that his  caste includes  or is the same as another caste which is  notified in the Order. [32OA-G; 322F-G].

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 401 of 1964. Appeal  by special leave from the judgment and  order  dated October 14, 1963, of the Mysore High Court in N.F.A. No. 139 of 1963 and M.F.A. No. 141 of 1963. 317 G.   S. Pathak and Dipak Datta Choudhri, for the appellant. M.   K. Nambiyar, and R. Gopalakrishnan, for respondent  No. 1. The Judgment of the Court was delivered by Wanchoo  J. This is an appeal by special leave  against  the judgment of the Mysore High Court in an election matter.  An election was held to the Bangalore South (Scheduled  Castes) constituency  in  February  1962.  Four  persons  stood  for election   including   the   appellant   and   Munichinnappa respondent  No. 1, who obtained the highest number of  votes and  was  declared  elected.  The appellant  then  filed  an election petition challenging the election of respondent No. 1  on  a number of grounds.  In the present  appeal  we  are concerned only with one ground, namely, that respondent  No. 1 was not a member of any of, the scheduled castes mentioned in   the   Constitution  (Scheduled  Castes)   Order,   1950 (hereinafter  referred to as the Order).  Respondent  No.  1 claimed  that he belonged to the scheduled caste  listed  as Bhovi  in  the  Order.   The appellant  on  the  other  hand contended  that respondent No. 1 was a Voddar by  caste  and that Voddar was not a scheduled caste specified in the Order and  consequently  respondent  No. 1  could  not  stand  for election from a scheduled caste constituency.  The  Election Tribunal held that the caste mentioned as Bhovi in the Order was  a subcaste amongst the Voddars and that only this  sub- caste  was included in the Order and not the  entire  Voddar caste.  The Tribunal also held that respondent No. 1 did not belong  to  the  sub-caste of Bhovi and  therefore  was  not eligible  for  standing as a candidate  from  the  scheduled caste constituency.  Consequently the election was set aside and re-election ordered by the Tribunal. Respondent  No. 1 went in appeal to the High Court  and  his contention was that he belonged to the scheduled caste Bhovi mentioned  in the Order and was therefore entitled to  stand for  election  from the scheduled caste  constituency.   The High  Court held that Voddar caste as such was not  included in the Order, but considering the facts and circumstances in existence at the time when the Order was passed in 1950, the

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Bhovi  caste  mentioned  therein was no  other  than  Voddar caste.   It  therefore  allowed  the  appeal  holding   that respondent No. 1 being a Voddar must be held to be a  member of the Bhovi caste mentioned in the Order and dismissed  the election  petition.  The High Court having refused leave  to appeal, the appellant got special leave 318 from  this  Court, and that is how the matter  has  come  up before US. The  main  contention on behalf of the appellant is  that  a person  is  only  entitled  to stand  for  election  from  a scheduled  caste constituency if he is a member of  a  caste specified in the Order and that it is not open to any one to claim that though he is not a member of a caste specified in the  Order and is a member of some other caste,  that  other caste  is included in the caste specified in the Order.   It is  submitted that wherever a caste has more than one  name, the Order specifies the other name in brackets and that even where a particular caste is spelt in more than one way,  the Order  has included in the same entry the various  spellings of the same caste.  Therefore, as the caste Bhovi  specified in  the Order does not mention the caste Voddar in  brackets thereafter, it was not open to the Tribunal to take evidence to  the effect that Voddar caste is no other than the  Bhovi caste.  It is therefore urged that the High Court was  wrong in  looking into the evidence that was produced  before  the Tribunal  and then coming to the conclusion that  the  caste Bhovi mentioned in the Order was meant for the caste  Voddar and  that such evidence should not have been allowed by  the Tribunal.   If  such  evidence  had  not  been  allowed  the respondent  who  is a Voddar by caste could  not  stand  for election for the Voddar caste is not mentioned in the  Order at all. Article  341 of the Constitution which deals with  Scheduled Castes is as follows:-               "(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               castes, races, or tribes or parts of or groups               within castes, races or tribes which shall for               the purposes of this Constitution be deemed to               be Scheduled Castes 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  Castes               specified  in  a  notification  issued   under               clause (1) any caste, race or tribe or part of               or group within any caste, race or tribe,  but               save as aforesaid a notification issued  under               the  said  clause shall not be varied  by  any               subsequent notification." Clause  (1) provides that the President may with respect  to any State, after consultation with the Governor thereof,  by public                             319 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  such

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castes in a State.  Clause (2) then provides that Parliament 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  Parliament  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.  The argument  on  behalf  of  the- appellant  is based on the provisions of Art. 341 and it  is urged that a notification once made is final and cannot even be  revised  by the President and can only  be  modified  by inclusion  or exclusion by law by Parliament.  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 is therefore urged  that the  Tribunal  was wrong in allowing evidence to  show  that Voddar  caste was the same as the Bhovi caste  mentioned  in the Order and that the High Court was in error when it  held on the basis of such evidence that Voddar caste was the same as  the  Bhovi caste specified in the  Order  and  therefore respondent No. 1 was entitled to stand for election  because he belonged to Voddar caste which was the same as the  Bhovi cast. It may be accepted that it is not open to make any modifica- tion  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 therefore 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 the  Order  [see  Aray, (Mala) Dakkal (Dokkalwar) etc.]. Therefore, 320 generally  speaking  it would not be open to any  person  to lead  evidence  to establish that caste B  (in  the  example quoted  above)  is part of caste A notified in  the,  Order. Ordinarily  therefore  it would not have been  open  in  the present case to give evidence that the Voddar caste was  the same  as -the Bhovi caste specified in the Order for  Voddar caste is not mentioned in brackets after the Bhovi caste  in the Order. But that in our opinion does not conclude the matter in  the peculiar circumstances of the present case.  The  difficulty in  the  present case arises from the fact  (which  was  not disputed before the High Court) that in the Mysore State  as it was before the re-organisation of 1956 there was no caste known  as  Bhovi at all.  The Order refers  to  a  scheduled caste  known as Bhovi in the Mysore State as it  was  before 1956  and therefore it must be accepted that there was  some caste   which  the  President  intended  to  include   after consultation  with  the Rajpramukh in the  Order,  when  the Order  mentions  the caste Bhovi as a scheduled  caste.   It cannot  be  accepted that the President included  the  caste Bhovi in the Order though there was no such caste at all  in the Mysore State as it existed before 1956.  But when it  is not  disputed that there was no caste specifically known  as Bhovi in the Mysore State before 1956, the only course  open to  courts to find out which caste was meant by Bhovi is  to

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take evidence in that behalf.  If there was a caste known as Bhovi as such in the Mysore State as it existed before 1956, evidence  could not be given to prove that any  other  caste was  included in the Bhovi caste.  But when  the  undisputed fact is that there was no caste specifically known as  Bhovi in the Mysore State as it existed before 1956 and one  finds a  caste mentioned as Bhovi in the Order, one has to  deter- mine which was the caste which was meant by that word on its inclusion  in the Order.  It is this  peculiar  circumstance therefore  which  necessitated  the taking  of  evidence  to determine  which was the caste which was meant by  the  word ’Bhovi’  used in the Order, when no caste  was  specifically known   as  Bhovi  in  the  Mysore  State  before  the   re- organisation of 1956. Let  us  then turn to the evidence which has been  given  in this case to prove that it was Voddar caste which was  meant by the word Bhovi included in the Order.  In this connection reliance has been placed on a communication made to the then government of Mysore as far back as 1944 on behalf of Voddar caste  and  the Order of the then government  of  Mysore  in February 1946.  It seems that a resolution was passed by the Voddar  caste ,at a conference in July 1944 in which it  was resolved that the                             321 name  of that caste be changed from Voddar to  Bhovi.   This resolution was processed in the Secretariat.  Eventually  an order was passed on February 2, 1946 in these terms:               "Government  are  pleased to direct  that  the               community known as ’Vodda’ be in future called               ’Boyi’  in all Government  communications  and               records." Since  then  it  seems that in all  government  records  the Voddar caste has been known as Boyi, for it is not  disputed that Voddar and     Vodda are the same.  It seems  therefore reasonable to infer when  the  President made the  Order  in 1950 after consultation  with the Rajpramukh of Mysore  whom he  was  bound  to consult  under  the  Constitution  before passing  the Order with respect to the State of Mysore  that the  caste Vodda was included in the Order as Bhovi  because of  the Order of the then government of Mysore  of  February 1946.   We shall deal with the difference in spelling  later but  it does appear that the caste Voddar was not  mentioned as  such  in the Order because the name of  that  caste  was changed in 1946 for all government purposes by the Order  of the  then government of Mysore.  Therefore if the Order  had mentioned  the  caste  as ’Boyi’ there would  have  been  no difficulty in holding that it meant the Voddar caste in view of the Order of the then Mysore Government of February  1946 to  the effect that the Voddars had given up their  original name and had changed it to Boyis from 1946. It  is  however urged that the Order does  not  mention  the caste Boyi but the caste Bholvi and that wherever there is a difference  in  spelling of the same caste,  the  Order  has provided  for that also; (see for example, Bhambi,  Bhambhi, Shenva, Chenva; etc.). Therefore when the Order provided the inclusion  of the caste Bhovi therein it could not refer  to Voddar caste, for the change of name that was sanctioned  by the  then  government of Mysore in 1946 was from  Voddar  to Boyi.   Here  again there is force in  the  contention  that where  the same caste was spelt differently,  the  different spellings  have  been provided in the Order  as  illustrated already.   ’But  the  same  difficulty  which  faced  us  in considering  the question whether Voddar caste was meant  by the  caste  Bhovi  included  in the  Order  arises  when  we consider  the  difference  in spellings, for it  is  not  in

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dispute that there was no caste known as Bhovi in the Mysore State  as it existed in 1950 when the Order was passed.   As the  President could not have included in the Order  a  non- existent caste it means the word 322 ’Bhovi’  relates  to some caste in Mysore as it  was  before 1956 and we have therefore to establish the identity of that caste  and  that  can only be done  by  evidence.   In  that connection the High Court has held that ever since the Order of 1946, the Voddar caste has been variously spelt as  Boyi, Bovi, and Bhovi in English, though the Kanada equivalent  is one and the same.  The High Court therefore has not attached any importance to the change in the English spelling in  the peculiar  circumstances  of this case.  In  this  connection attention  may  be  drawn to the notification  of  the  then government  of  Mysore dated February 2, 1946  where  Voddar caste  is spelt in three ways in the same  notification;  at one place it is spelt as Voddara, at another place as Yoddar and  at  two places as Vodda.  It seems  therefore  that  we cannot attach undue importance to the spelling in English in this  case  when we know that there was  no  specific  caste known as Bhovi in Mysore State as it was before 1956 and  we have to determine which was the caste which was meant by the use  of that term in the, Order.  In this connection we  may also draw attention to another copy of the same notification which  was issued by another department of  the  Government. In that copy Voddara has been spelt as Vaddara and Boyis  as Bovis.   It  seems to us therefore that the High  Court  was right  in the peculiar circumstances of the present case  in not  attaching any importance to difference in  spelling  in English,  and to treat Bhoviv as the same as Boyis.   We  do not  think  it  necessary to refer  to  the  various  census reports, which have been referred to by the Tribunal and the High  Court for they only show bow the same caste  has  been differently spelt.  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 have been open to any party to give evidence to the  effect  that (for- example) 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. In  this view of the matter, the appeal fails and is  hereby dismissed with costs. Appeal dismissed. 323