Abhoy Pada Sara Vs. Sudhir Kumar
Mondal  INSC 119 (5 May 1966)
05/05/1966 SARKAR, A.K. (CJ) SARKAR, A.K.
(CJ) MUDHOLKAR, J.R.
CITATION: 1967 AIR 115 1966 SCR 387
R 1968 SC 929 (3)
Construction (Scheduled Castes) 1950, Part
13, Item 40- "Sunris excluding Sahas", Scope of.
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].
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
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 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
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 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
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
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.
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
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
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
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 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
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
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.