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CASE NO.: Appeal (civil)  5270 of 2004

PETITIONER: State of Maharashtra & Ors

RESPONDENT: Mana Adim Jamat Mandal

DATE OF JUDGMENT: 08/03/2006

BENCH: H.K. SEMA & Dr. AR  LAKSHMANAN

JUDGMENT: J U D G M E N T WITH CIVIL APPEAL NO. 6480 OF 2005

H.K.SEMA,J.

CIVIL APPEAL NO. 5270 OF 2004    What appears to be a perpetual controversy with regard  to Scheduled Tribe status has again engaged the attention of  this Court for a considerable time.  Two questions are raised  before us: 1.      Whether the ’Mana’ community in the State of  Maharashtra is a Sub-Tribe of "Gond" and is a  Scheduled Tribe or not? 2.      Whether a two Judge Bench decision of this Court  in Dina v. Narayan Singh 38 ELR 212 (for the  sake of brevity ’Dina I’) and the decision rendered by  another two Judge Bench of this Court in Dadaji  alias Dina v. Sukhdeobabu & Ors. (1980) 1 SCC  621 (for the sake of brevity ’Dina II’) are over-ruled  by a Constitution Bench of this Court in State of  Maharashtra v. Milind Katware (2001) 1 SCC 4?

The questions raised before us being the questions of  law, it is not necessary for us to recite the entire facts.   Clause 25 of the Article 366 of the Constitution of  India  defines "Scheduled Tribes" as under: "Scheduled Tribes" means such tribes or tribal  communities as parts of or groups within such  tribes or tribal communities as are deemed under  article 342 to be Scheduled Tribes for the purposes  of this Constitution;"

Article 342 of the Constitution of India deals with  Scheduled Tribes.  It says: "342. Scheduled Tribes. \026 (1) The President may  with respect to any State or Union territory, and  where it is 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

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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."

The President by public notification issued the  Constitution (Scheduled Tribes) Order, 1950, in exercise of the  powers conferred by clause (1) of Article 342 of the  Constitution.  By clause 2 of that Order it was provided that  the tribes or tribal communities, or parts of it, or groups,  within tribes or tribal communities, specified in Parts I to XII  of the Schedule to the 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 that Schedule.  The Order is followed by a  Schedule constituting of twelve Parts.  Part VII-A of the  Schedule as amended by Act II of 1960 relates to  Maharashtra.  By item 5 it is  specified that in (1) Melghat  tehsil of Amravati District (2) Godchiroli and Sironcha tehsils  of the Chanda district (3) Kalapur, Wani and Yeotmal tehsils of  the Yeotmal district  32 tribes or tribal communities shall be  deemed Scheduled Tribes.  Entry 12 as originally set out in  the Order promulgated by the President of India reads: "Gond"  including Media, ("Maria" and Mudia (Murai)").  By the  Scheduled Castes and Scheduled Tribes (Amendment) Act, 63  of 1956, Entry 12 was substituted by: "12. Gond,  including Arakh or Arrakh, Agaria, Asur, Badi, Maria or Bada  Maria, Bhatola, Bhimma, Bhuta, Koliabhuta or  Koilabhuti, Bhar, Bisonborn Maria, Chota Maria,  Dandami Maria, Dhuru or Dhurwa Dhoba, Dhulia,  Dorla Gaiki, Gatta or Gatti, Gaita, Gond Gowari,  Hill Maria, Kandra, Kalanga, Khatola, Koitar, Koya,  Kirwar or Khirwara, Kucha Maria, Kuchaki Maria,  Media (Maria), Mana, Mannower, Mohya or Mogia or  Monghya, Mudia (Muria), Nagarchi, Nagwanshi,  Ojha, Raj, Sonjhari Jhareka, Thantia or Thotye,  Wade Maria or Vade Maria."                                                              (emphasis supplied)

       Scheduled Castes and Scheduled Tribes Orders  (Amendment) Act, 1976 was passed by the Parliament.  The  Preamble of the Act states: "An Act to provide for the inclusion in, and the  exclusion from, the lists of Scheduled Castes and  Scheduled Tribes, of certain castes and tribes, for  the re-adjustment of representation of  parliamentary and assembly constituencies in so far  as such re-adjustment is necessitated by such  inclusion of exclusion and for matters connected  therewith."

By the aforesaid Act, the entire Schedule to the Order as  it stood prior to the amendment was substituted by a new  Schedule consisting of XVI Parts.  Part IX of the Schedule  relates to the State of Maharashtra.  Entry 18 of Part IX of the  Schedule to the Order after amendment reads thus: "18. Gond, Rajgond, Arakh or Arrakh, Agaria, Asur,  Badi, Maria or Bada Maria, Bhatola, Bhimma,  Bhuta, Koliabhuta, Koilabhuti, Bhar, Bisonborn  Maria, Chota Maria, Dandami Maria Dhuru,

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Dhurwa, Dhoba, Dhulia, Dorla Gaiki, Gatta or  Gatti, Gaita, Gond Gowari, Hill Maria, Kendra,  Kalanga, Khatola, Koitar, Koya, Khirwar, Khirwara,  Kucha Maria, Kuchaki Maria, Madia, Maria, Mana,  Mannewar, Moghya, Mogia, Monghnya, Mudia,  Muria, Nagarchi, Naikpod, Nagwanshi, Ojha, Raj,  Sonjhari Jhareka, Thatia Thotya, Wade Maria or  Vade Maria."                                                 (emphasis supplied)

The Government of Maharashtra by resolutions dated  24.4.1985 and 19.6.1985 directed that the members of ’Mana’  community be not treated as Scheduled Tribes unless they  establish relationship or affinity with the ’Gond’ Tribe.  By  another resolution dated 15.6.1995, the State of Maharashtra  declared ’Mana’ community as Special Backward Class.  These  resolutions were challenged as unconstitutional before the  High Court by filing Writ Petition No. 959 of 2002.  The High  Court, after referring to the various decisions of this Court,  quashed the aforesaid resolutions.  Hence, the present appeal.  It is now well settled principle of law that no authority,  other than the Parliament by law, can amend the Presidential  Orders. Neither the State Governments nor the Courts nor the  Tribunals nor any authority can assume jurisdiction to hold  inquiry and take evidence to declare that a caste or a tribe or  part of or a group within a caste or tribe is included in  Presidential Orders in one entry or the other although they are  not expressly and specifically included.  A court cannot alter  or amend the said Presidential Orders for the very good reason  that it has no power to do so within the meaning, content and  scope of Articles 341 and 342.  It is not possible to hold that  either any inquiry is permissible or any evidence can be let in,  in relation to a particular caste or tribe to say whether it is  included within Presidential Orders when it is not so expressly  included or exclude a particular Caste or Tribe or group of  Castes or Tribes when they are expressly included.     Mr. S.K. Dholakia, learned senior counsel appearing on  behalf of the appellant strenuously contended that the facts of  the case at hand are squarely covered by the decision of this  Court rendered in the case of Dina II (supra).  He further  contended that the decision rendered by this Court in Dina II  (supra) has not been over-ruled by a Constitution Bench of  this Court in State of Maharashtra v. Milind Katware  (2001) 1 SCC 4.   Per contra, Mr. P.P. Rao, learned Senior counsel  contended that the decision of this Court in Dina II (supra)  was over-ruled by the Constitution Bench of this Court in   Milind Katware’s case (supra)  by necessary implication.    The Constitution Bench of this Court in Milind  Katware’s case (supra), after taking into consideration all the  judgments, arrived at the conclusion at para 36 page 30 SCC  as under:  "36. In the light of what is stated above, the  following positions emerge:

1.      It is not at all permissible to hold any inquiry or  let in any evidence to decide or declare that any  tribe or tribal community or part of or group  within any tribe or tribal community is included  in the general name even though it is not  specifically mentioned in the entry concerned in  the Constitution (Scheduled Tribes) Order, 1950.

2.      The Scheduled Tribes Order must be read as it

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is.  It is not even permissible to say that a tribe,  sub-tribe, part of or group of any tribe or tribal  community is synonymous to the one mentioned  in the Scheduled Tribes Order if they are not so  specifically mentioned in it.  

3.      A notification issued under clause (1) of Article  342, specifying Scheduled Tribes, can be  amended only by law to be made by Parliament.   In other words, any tribe or tribal community or  part of or group within any tribe can be included  or excluded from the list of Scheduled Tribes  issued under clause (1) of Article 342 only by  Parliament by law and by no other authority.  

4.      It is not open to State Governments or courts or  tribunals or any other authority to modify,  amend or alter the list of Scheduled Tribes  specified in the notification issued under clause  (1) of Article 342.  

5.      Decisions of the Division Benches of this Court in  Bhaiya Ram Munda v. Anirudh Patar and Dina v.  Narain Singh did not lay down law correctly in  stating that the inquiry was permissible and the  evidence was admissible within the limitations  indicated for the purpose of showing what an  entry in the Presidential Order was intended to  be.  As stated in Position (1) above no inquiry at  all is permissible and no evidence can be let in,  in the matter." (emphasis supplied)

The concluding part of the order would show that Dina I  case was expressly over-ruled.  In the case of Dina I (supra), this Court on appreciaton  of evidence on record came to the conclusion that ’Mana’ is a  sub-tribe of Gonds.  The Court further held as under: "If on the evidence it is established that there is no  sub-tribe of Manas amongst the Gonds, the  argument would have force.  But on the record  there is evidence which supports the case of the  first respondent that there is sub-tribe of Manas  amongst the Gonds, and the High Court has  accepted that evidence."  

       It is because of this reason, this Court expressly over- ruled Dina I case holding that no inquiry is permissible and  no evidence can be let in the matter.   We will now examine as to whether the decision rendered  by this Court in Dina II case (supra) was over-ruled by the  Constitution Bench of this Court in Milind Katware’s case  (supra) by necessary implication.   In Dina II case, the two-Judge Bench of this Court, after  examining the evidence on record, held in paragraphs 16 and  17 as under:  "16. We are, therefore, of the view that the ’Mana’  community included in Entry 18 can only be that  which has affinity with ’Gonds’ and any other  community which also bears the name ’Mana’ but  does not have any such affinity cannot be deemed  to fall within the scope of ’Mana’ in Entry 18.  

17. The appellant has categorically admitted in the

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course of his evidence that there was no connection  between his community and Gonds.  His evidence  is, "we have no concern with the Gond community  also.  The customs and traditions with regard to  marriage of our community are different from those  of the Gonds".  He has stated in his deposition that  "I have no concern whatsoever with Gonds.  There  are sub-castes amongst Gonds.  Some of them are  Arak, Gowari, Raj Gond, Bada Magia, Madia, Ojha  and Wanjari.  It is not true that Mana is a sub-caste  of the Gonds.  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 Sahayyak Mandal, Chandrapur.   Although in another part of his statement of  objections there are contradictory statements, the  following plea in para 9 of the said 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 1 was the Vice-President for some  time and also an active worker of the Kshatriya  Bidwaik Mana Shikshana Samstha.  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.   

In paragraph 18, Dina II, this Court relied on the  decision in Dina I (supra) and bodily lifted the observations in  Dina I, extracted below:  "18. 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, manners, 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 claimed 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).   Realising thereafter that his community had no  affinity with the Gonds he stated that he was not a

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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 VII-A of the  Schedule.  But the form in which the entry is made  prima facie indicates that in 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.   

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."

As noticed above, a Constitution Bench of this Court in  Milind Katware’s case (supra) has over-ruled the decision in  Dina I, which was based on appreciation of evidence on  record.   In Dina II, not only the observations made in Dina I   were bodily lifted in paragraph 18,  in paragraph 17, as quoted  above, the evidence on record was considered in arriving at the  conclusion, which is not permissible. We are, therefore, in agreement with the view of the High  Court that the decision in Dina II is over-ruled by the  Constitution Bench in Milind Katware’s case (supra) by  necessary implication.  The contention of Mr. Rao is sustained.  A three-Judge Bench of this Court in C.N. Rudramurthy  v. K. Barkathulla Khan and Ors. (1998) 8 SCC 275 has  examined the nature and effect of over-ruling by necessary  implication and held that when the law as declared by the  Supreme Court contradicts what has been stated in another  case, that case stood impliedly overruled.  Admittedly Dina II   reached its conclusion after examining the evidence on record  of Dina I.  As pointed out earlier, this is not permissible in  view of the law declared by the Constitution Bench of this  Court in Milind Katware’s case (supra). The same view was reiterated in the case of Union of  India & Ors. v. Raj Rani and Ors. (1998) 8 SCC 704.  In  that case the payment of solatium and interest has been  settled by a three-Judge Bench in Union of India v. Hari  Krishan Khosla 1993 Supp (2) SCC 149, which held that the  respondents were not entitled to the payment of interest and  solatium.  A contrary view of a two-Judge Bench decision in  Rao Narain Singh v. Union of India (1993) 3 SCC 60 was  brought to the notice of this Court and this Court held that in  view of the three-Judge Bench decision in Hari Krishan Khosla  case, the ratio of Rao Narain Singh case is no longer a good  law.   Reverting to the facts of the case in hand, the Parliament  by law amended the Scheduled Castes and Scheduled Tribes  Orders (Amendment) Act, 1976 (No. 108 of 1976).  Section 4 of  the Amendment Act reads as under:  "4. Amendment of Scheduled Tribes Orders. \026  The Scheduled Tribes Orders are hereby amended  in the manner and to the extent specified in the  Second Schedule."

Part IX of the Second Schedule deals with the State of  Maharashtra.  Entry 18 of the Second Schedule reads: 18. Gond, Rajgond, Arakh or Arrakh, Agaria, Asur,  Badi, Maria or Bada Maria, Bhatola, Bhimma,

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Bhuta, Koliabhuta, Koilabhuti, Bhar, Bisonborn  Maria, Chota Maria, Dandami Maria Dhuru,  Dhurwa, Dhoba, Dhulia, Dorla Gaiki, Gatta or  Gatti, Gaita, Gond Gowari, Hill Maria, Kendra,  Kalanga, Khatola, Koitar, Koya, Khirwar, Khirwara,  Kucha Maria, Kuchaki Maria, Madia, Maria, Mana,  Mannewar, Moghya, Mogia, Monghnya, Mudia,  Muria, Nagarchi, Naikpod, Nagwanshi, Ojha, Raj,  Sonjhari Jhareka, Thatia Thotya, Wade Maria or  Vade Maria."                                                 (emphasis supplied)

The Constitution (Scheduled Tribe) Order 1950, in  relation to the State of Maharashtra, did not specify ’Mana’.   It will be noticed that in the Scheduled Caste and  Scheduled Tribes Order (Amendment) Act, 1956 (Act No. 63 of  1956), Entry 12 was substituted by: "12. Gond, including Arakh or Arrakh, Agaria, Asur, Badi, Maria or Bada  Maria, Bhatola, Bhimma, Bhuta, Koliabhuta or  Koilabhuti, Bhar, Bisonborn Maria, Chota Maria,  Dandami Maria, Dhuru or Dhurwa Dhoba, Dhulia,  Dorla Gaiki, Gatta or Gatti, Gaita, Gond Gowari,  Hill Maria, Kandra, Kalanga, Khatola, Koitar, Koya,  Kirwar or Khirwara, Kucha Maria, Kuchaki Maria,  Media (Maria), Mana, Mannower, Mohya or Mogia or  Monghya, Mudia (Muria), Nagarchi, Nagwanshi,  Ojha, Raj, Sonjhari Jhareka, Thantia or Thotye,  Wade Maria or Vade Maria."                                                         (emphasis supplied)

As noticed above, in entry 18 of the Second Schedule of  the Scheduled Castes and Scheduled Tribes Orders  (Amendment) Act, 1976, the word ’including’ was expressly  deleted.   Mr. P.P. Rao, learned Senior counsel referred to various  entries in the Second Schedule of the Act to show the  intendment of the Parliament to introduce the Amendment  Act, 1976.  A quick survey of the Presidential order of the entries in  the Second Schedule of the Act shows that wherever the  Parliament wanted to restrict the scope of an entry with  reference to certain areas or with reference to language or to  include certain tribes in a group, it has done so expressly.  It  is also noticed that in the Second Schedule not only there are  many entries mentioning a single community or tribe  individually but also quite a few entries mentioning a group of  communities or tribes.  A few examples are: PART I. - Andhra Pradesh

In Sl. No. 7 Goudu (in the Agency tracts) And Sl. No. 20. Malis (excluding Adilabad, Hyderabad,  Karimnagar, Khammam, Mahbubnagar, Medak  Nalgonda, Nizamabad and Warangal districts).

Sl.No. 23 Nayaks (in the Agency tracts)

Sl.No. 30 Thoti (in Adilabad, Hyderabad,  Karimnagar, Khammam, Mahbubnagar, Medak,  Nalgonda, Nizamabad and Warangal districts).  

Sl. No. 31  Valmiki (in the Agency tracts)

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Group entries are provided at Sl. No. 6, 16, 17, 18,  22, 25 and 28.

PART II. \026 Assam

Group entries at Sl.No. 7 Any Kuki Tribes.  Including:-  (i)     Biate,Biete  (ii)    Changsan  (iii)   Chongloi (iv)    Doungel (v)     Gamalhou (vi)    Gangte (vii)   Guite (viii)  Hanneng (ix)    Haokip, Haupit (x)     Haolai (xi)    Hengna (xii)   Hongsungh (xiii)  Hrangkhwal, Rangkhol (xiv)   Jongbe (xv)    Khawchung (xvi)   Khawathlang, Khothalong (xvii)  Kherma (xviii) Kholhou (xix)   Kipgen (xx)    Kuki (xxi)   Lengthang (xxii)  Lhangum (xxiii) Lhoujem (xxiv)  Lhouvun (xxv)   Lupheng (xxvi)  Mangjel (xxvii) Misao (xxviii)        Riang (xxix)  Sairhem (xxx)   Selnam (xxxi)  Singson (xxxii) Sitlhou (xxxiii)        Sukte (xxxiv) Thado (xxxv)  Thangngeu (xxxvi) Uibuh (xxxvii)        Vaiphei

Restricted Entries : Entry 9, Man (Tai speaking.)

PART IV \026 Gujarat Restricted entries  5,6,7, 15, 17, 20, 21, 24, 26 and  27  

PART VIII \026 Madhya Pradesh  Group entries at Nos. 16, 17 Restricted entries 21, 32, 36 and 39

PART IX \026 Maharashtra

Restricted entries  are at Sl. Nos. 12 and 45

Sl. No. 12 Chodhara (excluding Akola, Amravati, Bhandara,  Buldana, Chandrapur, Nagpur, Wardha, Yavatmal,  Aurangabad, Bhir Nanded, Osmanabad and

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Parbhani districts).  

Sl. No. 45 Thoti (in Aurangabad, Bhir, Nanded, Osmanabad  and Parbhani districts and Rajura tahsil of  Chandrapur district)

Group entries 8, 18, 21, 22, 32, 33, 35, 38, and 44

The common pattern found in most of the group entries  is that there is a punctuation mark comma (,) between one  Entry and another Entry in the group signifying that each one  of them is deemed to be a separate Scheduled Tribe by itself.   In the present case, Entry 18 of the Schedule clearly signifies  that each of the Tribe mentioned therein deemed to be a  separate Tribe by itself and not a sub-Tribe of ’Gond’.  ’Gond’  is a Scheduled Tribe, it is not disputed.  As already noticed  that ’Gond’ including Arakh or Arrakh etc. found in Entry 12  of Amendment Act 63 of 1956 has been done away with by the  Amendment Act of 1976.  In Entry 18 of Second Schedule of  Amendment Act of 1976 the word ’including’ was deliberately  omitted, which signifies that each one of the Tribe specifying  in Entry 18 is deemed to be a separate Tribe by itself.    Therefore, "Mana" is not a sub-Tribe of "Gond" but a separate  Tribe by itself and is a Scheduled Tribe.  In the view that we have taken, we do not see any  infirmity in the order passed by the Division Bench of the  Bombay High Court, which would warrant interference by this  Court.  This appeal being devoid of merits is, accordingly,  dismissed.  Parties are asked to bear their own costs.   CIVIL APPEAL NO. 6480 OF 2005         For the reasons stated in Civil Appeal No. 5270 of 2004,  this appeal is also dismissed.  Parties are asked to bear their  own costs.