Basavalingappa v. Munichinnappa

318 #### B.BASAVALINGAPPA 11. #### D.MUNICIDNNAPPA _September_ 23, 1964 (P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, M. HIDAYATULLAH, RAGHUBAR DAYAL AND _],_ R MUDHOLKAR JJ.) A B _Ekctwn-Scheduled_ _Castes constltuency-Voddar carte whether the_ _same_ _as_ _Bhovl caste-Evidence recorded by Tribunal_ _to_ _thu effect whe-_ _ther pennissib/-Constltution (Scheduhd Castes) Order,_ 1950. M, the candidate elected from Bangalore South (Scheduled 0.Stes) constituency claimed to belong to _Bhovl_ caste which was one of the C ~beduled Castes mentioned in the Constitution (Scheduled Castes) Order, 1950, but in the election petition filed against him by the appellant it was alleged that ho belonged to _V oddar_ caste which was not mentioned 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 _Bhovl_ caste. The Tribunal held on the basis of the evidence produced that _Bhovl_ was a sub-caste of the _V_ _oddar_ caste, D that M did not belong to the _Bhovl_ sub-csste, and that therefore he was not entitled to stand from the constituency. The High Court however held that although _V oddar_ cute 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 _Bhovl_ caste mentioned therein was the aame as the _Voddar_ caste. On this finding it dismissed the election petition. The appellant filed an appeal before this Court by special leave. E It was contended on behalf of the appellant that : ( 1) the High Court was wrong in looltin~ into the evidence that was produced before the Tribunal and then commg to the conclusion that the caste _Bhovl_ mentioned in the Order was meant for the caste _Voddar_ (2) the Tribunal 1hould not have allowed evidence to be produced which would have the effect of modifying the Order which was exhaustive, and gave full parti culars of each scheduled caste recognised by it including alternative F names and alternative spellinp. 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 _Bhovl._ The Order could not have intended to recognise a caste which did not exisL H was therefore necessary to fad out which caste was meant by the use of the name _Bhovl_ 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 G can be so recorded. Generally speaking it would not be open to any pei:oon to lead evidence to establish that his caste includes or ts the same u another caste which I.a notified in the Order. [320A-O; 322F-0]. Crv!L APPELLATE JIDtiSDICTION: Civil Appeal No. 401 of 1964. 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 _Bhovl._ The Order could not have intended to recognise a caste which did not exisL H was therefore necessary to fad out which caste was meant by the use of the name _Bhovl_ 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 G can be so recorded. Generally speaking it would not be open to any pei:oon to lead evidence to establish that his caste includes or ts the same u another caste which I.a notified in the Order. [320A-O; 322F-0]. Appeal by special leave from the judgment and order dated H October 14, 1963, of the Mysore High Court in N.F.A. No. 139 of 1963 and M.F.A. No. 141 of 1963. BASAVALINGAPPA _v._ MUNICHINNAPPA _(Wanchoo_ _J.)_ 317 A 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 B 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, ### c 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 D 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 _V oddar_ was not a scheduled caste specified in the Order and consequently respondent No. 1 could not stand for election E 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 _V oddar_ caste. The Tribunal also held that respondent No. 1 did not belong to the sub-caste of _Bhovi_ and therefore was not eligible fqr standing as F a candidate from the scheduled caste consti1JUency. 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 G 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 eltistence at the time when the Order was passed in 1950, the _Bhovi_ caste men#### tioned therein was no other than Voddar caste. rt therefore H allowed the appeal holding that respondent No. 1 being a _V oddar_ 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 SUPREME COURT RP.PORTS [1965] I S.C.R. from this Court, and that is how the matter has come up before A us. The main contention on behalf of the appellant is that a person is only entitled to stand for election from a scheduled cast.: 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 ~pecified in the Order. It is submitted that wherever a caste has more than one name, the Order specifics 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. TI1erefore, as the caste _Bhovi_ specified in the Order does not mention the caste _V oddar_ in brackets thereafter, it was not open to the Tribunal to take cvidenee to the effect that _Voddar_ caste is no other than the _Blwvi_ 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 _V oddar_ 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: "( I) 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 i~sued 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 _ndt_ be varied by any subsequent notification." Clause ( 1) provides that the President may wiih respect to any State, after consultation with the Governor thereof, by public B ### c D E G H BASAVALINGAPPA _v._ MUNICHINNAPPA _(Wanchoo_ /.) 319 A 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 B 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 Parlia,ment 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 C 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 D 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. 3li 1 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 ParliaE ment. Therefore in view of this stringent provision of the Constitution with respect to a notification issued wider cl. ( 1) it is not open to any one to include any caste as coming within the notification on the basis of evidence--0ral 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 F in allowing evidence to show that _Voddar_ caste was the same as the _Bhovi_ caste mentioned in the Ofder and that the High Court #### was in error when it held on the basis of such evidence thlit 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 samo G as the _Bhovi_ cast. It may be accepted that it is not open to make any modifica#### tion in the Orde~ 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 H in caste A~ It may also be accepted that wherever ooe caste has #### .WUlther name it has been .m,entiQQed -in .brackets .aftcr,it in the Order [see _Aray_ (Mala) _Dakkal_ (Dokkalwar) etc.]. Themoro, - SUPREME COURT REPORTS .. [1965] l S.C.R. generally spea'king it would not be open to any person to lead A 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. B 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 C 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_ D in the Order though -there was no such caste at all in the Mysore State its it existed before 1956. But when it is riot 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. talce evidence in that behalf. #### If there was a caste known as Bhovi as such in the Mysore State E as it existed before 1956, evidence could not .be given to prove that any other caste was included in· the _llhovi_ caste. · Rut when the undisputed fact is that there was no caste specifically known as _Bhovi_ in the Mysore State as it existed before 1956 anct one # finds a caste mentioned as Bhovi in the Order, one has to deter· F mine which was the caste which was me:int by that word on its inclusion in the Order. It is this peculiar circumstance there· fore which necessitated the .talcing 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 _BhO\"i_ in tbe Mysore State before the re-organisation of 1956. G 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 behiilf of _Voddar_ 11 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 I .. . llASAVALINGAPPA _v._ MUNICHINNAPPA _(Wanchoo_ _!.)_ 321 A name of that caste be changed from _Voddar_ to _Bhovi._ This resolution was processed in _the_ Secretariat. E,ventually an order was passed on Febmary 2, 1946 in these te::rns: "Government are pleased to direct that. the community known as 'Vodda' be in future called 'Boyi' in all B Government communications and records." Since then it seems that in all government r~ords the _Voddar_ ciwe has been known as _Boyi,_ for it is not disputed that _Voddar_ and _Vodda_ are the same. It seems th•!refore reasonable to infer when the President made the Order in 1950 after consuitaC tion with the R.ajpramukh of Mysore whom he was bound to consult under the Constitution before passing the Order with r.espect 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 D _Voddar_ was not mentioned as such in the Order because the name of that caste was changt>,d in 1946 for all government purposes by the Order of the then government of #### Mysore. Therefore if the Order had mentioned the caste a~ _'lloyi'_ there would have been no difficulty in holding that it meant the _Voddar_ caste in view of the Order of the then Mysore E Government of February 1946 to the effec:t that the _Voddars_ had given up their original name and had changed it to _Boyis_ from 1946. lt is however urged that the Order does not mention ·the 1:aste _Buyi_ but '.he c?.ste _Bhovi_ and that wherever there is a differF ence 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 provid<!d the inclusion of the caste _Bhovi_ therein it could not refer to _Vot'dar_ 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 G 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 H 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 SUPRF.ME COURT REPORTS [ 1965] I S.C.R. _'Bhovi'_ relates to some caste in Mysore as it was before A 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 _Bo,vi, Bovi,_ and _Bhovi_ in English, though the Kanada equivalent is one and the same. The High Court therefore has not attached any im- B portance 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 c another place as _Voddar_ and at two places as _Vodda._ It set.'!lls 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 wa' meant by the use of that term in the Order. In this connecl)on we may D 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 E _Bhovis_ as the same as _Boyis._ We do not think it neces~ary to refer to the various census reports, which have been rderred to by the Tn'bunal and the High Court for they only show how the same caste has been differently spelt. In the circumstances therefore we agree with the High Court that respondent No. I though _Voddar_ by caste belongs to the scheduled caste of _Bhol'i_ F mentioned in the Order. We may again repeat that we have referred to the evidence in this Calle only because there was undoubtedly no caste known as _Bhovi_ in tile Mysore State as it was B ### c E F 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 ha"Ye been open to any party to give evidence to r':!e 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. G In this view of the matter, the appeal fails and is hereby dis missed with costs. H _Appeal_ _dismissed._