B. Basavalingappa Vs. D. Munichinnappa
[1964] INSC 199 (23 September 1964)
23/09/1964 WANCHOO, K.N.
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 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].
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 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 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 anyone 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
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 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.
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