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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

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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

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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

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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

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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

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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

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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

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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