Principal, Guntur Medical College, Guntur and another vs Y. Panduranga Rao

Kodandaramayya, J.—The Principal, Guntur Medical College, Guntur and the State of Andhra Pradesh represented by its Secretary, Medical and Health Department Hyderabad the respondents in the writ petition, are the appellants in this writ appeal. The Writ Petition No. 5317/82 is filed by one Y. Panduranga Rao, a minor represented by his father and guardian Y. Chalapathi Rao, challenging the objection raised by the first respondent, Principal, Guntur Medical College, Guntur stating that the petitioner who is a ''Manyam Kapu'' cannot be treated as one belonging to Scheduled Tribe as ''Manyam Kapu'' is not included as one of the communities notified as Scheduled Tribe by the President as per the Constitution (Scheduled Tribes Order, 1950 or the subsequent amendments thereto and consequently he is not entitled to apply for reserved seats for the selection of candidates for admission to First Year M.B.B.S. Course in the Medical Colleges in Andhra Pradesh State Our learned brother Mr. Justice Ramanumulu Naidu, by his judgment dated 14th Sept., 1982, allowed the writ petition following an unreported judgment of Obul Reddi, J., (as he then was) wherein it was held that Manyam Kapu was a synonymous term for ''Konda Kapu'' and consequently respondents are directed to treat the petitioner as a candidate hailing from scheduled tribes and declare results of admission on that basis. The State preferred the above appeal and canvassed the correctness of the judgment of Obul Reddi, J., contending in the main that once the community of Manyam Kapu is not found in the Scheduled Castes and Scheduled Tribes Order (Amendment) Act 108 of 1976, no claims of any person can be considered and the court has no power to enlarge the list published by the President. On the other hand, the learned counsel for the writ petitioner contended that the court has got ample power and jurisdiction to see whether a particular community, though not enumerated in the list as such comes within the meaning of the enumerated communities and for that position, he relied upon the judgment of the Supreme Court, in Bhaiya Ram Munda Vs. Anirudh Patar and Others, which was followed by Obul Reddi, J., (as he then was).

It is true in catena of cases of the Supreme Court on this question, this judgment struck a different note and hence we have to examine the question reviewing all the cases on the subject.

As this judgment of ours affects the community in question, we have directed the respondent-State to file a counter-affidavit specifically indicating their stand on this question without simply relying upon the counter filed by the Principal, the first respondent in the case. Accordingly we have permitted the State Government to file in this appeal for the first time an additional affidavit clarifying the position in respect of this community and the writ petitioner filed a reply thereto. The stand taken by the Government in this counter-affidavit is that (hey have requested the Central Government to implement the judgment of Obul Reddi, J. by including the Manyam Kapu in the list of Scheduled Tribe, but the Central Government did not accede to their request and hence the Amendment Act 108 of 1976 did not include this community of Manyam Kapu in the schedule appended to the Act. Hence the plea raised by the State Government is that once the Amendment Act does not include the community of the petitioner, no enquiry into the question whether any unenumerated community also belongs to one of the communities enumerated in the schedule appended to Act 106 of 1976 is permissible. The learned counsel for the respondent contended that though admittedly the State Government requested the Central Government to include this community as one of the Scheduled Tribes, there is no material placed before the court to show that the Central Government applied their mind and specifically refused to include in the, list of communities appended to Act 106 of 1976 and consequently the court''s power is not lost to find out considering the customs and other communal habits of Manyam Kapu community, being the same and identical with that of Konda Kapu which is admittedly an enumerated community of Scheduled Tribes. For that purpose, he relied upon the Andhra Pradesh State and Subordinate Services Rules wherein Konda Kapu of Manyam Kapu are shown in Schedule 1 of the said Rules as belonging to aboriginal tribes in the agency areas.

Now the main question is whether this court can enquire into the question whether a particular community is a scheduled tribe even though such community is not one of the communities enumerated in the list appended, to the Constitutional (Scheduled Tribes) Order 1950 or the subsequent amendments thereto.

Let us examine the constitutional provisions relating to the subject. Arts. 341 and 342 of the Constitution empower the President to issue notification specifying the communities of Scheduled Castes and Scheduled Tribes respectively. We are concerned with "Scheduled Tribes". Art. 342 reads as follows:

Scheduled Tribes: (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) The Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under cl. (1) 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 (24) gives the definition of "Scheduled Castes" and (25) gives the definition of "Scheduled Tribes." The relevant definition of "Scheduled Tribes" reads as follows:-

(25) "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Art. 342 to be Scheduled Tribes for the purposes of this Constitution.

As seen from Art, 342, after the issuance of the notification under sub-cl. (1), the Parliament alone has got power under sub-cl. (2) to include or exclude from the list of scheduled tribes specified in a notification issued under cl. (1) any tribe, community or part or group thereof and except by such legislation by Parliament, the notification issued under sub-cl. (1) cannot be varied by any subsequent notification. After the advent of the Constitution, two separate orders were issued one for the scheduled castes under Art. 341 and another for Scheduled Tribes under Art. 342. The Constitution (Scheduled Tribes) Order, 1950 and the schedule, appended so far it relates to the State of Andhra Pradesh may be noticed.

This Order may be called the Constitution (Scheduled Tribes) Order, 1950.

The tribes or tribal communities, or parts of, or groups within tribes or tribal communities, specified in Parts I to XII of the Schedule to this 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.

Any reference in this Order, except Parts IV and VII-A of the Schedule, to a State or to a district or other territorial division thereof, shall be construed as a reference to the State, district or other territorial division, constituted as from the 1st day of Nov. 1956, and any reference in Parts IV and VII-A of the schedule to a State or to a district or other territorial division thereon shall be construed as a reference to the State, district or other territorial division, constituted as from the 1st day of May, 1960.

The Schedule Part-Andhra Pradash.

X X X

Throughout the State except Hyderabad, Mahabubnagar, Adilabad, Nizamabad, Medak Karimnagar, Warangal, Khammam and Nalgonda districts,

X X X

Konda Kapus.

It is seen that by two subsequent enactments passed by the Parliament, this order was modified. The first Act is Scheduled Castes and Scheduled Tribes Orders (Amendment) Act 63 of 1956 by virtue of that Act, as the preamble of the Act itself indicates, some new communities are included and some communities are excluded from the list of Scheduled Castes and Scheduled Tribes. The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act 108 of 1976 has further modified the list one of the objectives for the enumeration of this list is to re-adjust the representation of these communities in parliament had assembly constituencies as such reservations are made under Arts, 330 and 332 for these communities in the House of People and also Legislative Assemblies of the States.

It is clear that the enumeration of list under Art. 342 and subsequent amendments to the said Order of the President by the Parliament is intended to confer certain constitutional benefits on these communities. It is well to remember, as the Supreme Court observed in R. Chitralekha and Another Vs. State of Mysore and Others, with reference to the backward communities and special reservation embodied in Art. 15 (4) , "these provocations recognise the factual existence of backward classes in our country brought about by historical reasons and make a sincere attempt to promote the welfare of the weaker sections. They shall be so construed as to effectuate the said policy but not to give weight age to progressive sections of our society under the false color of caste to which they belong."

The finality of the Presidential Orders issued under Arts. 341 and 342 and the power of the court to enlarge the list in a given case was examined by the Supreme Court in a number of cases and most of them arose out of election disputes. The earliest judgment of the Supreme Court is one reported in B. Basavalingappa Vs. D. Munichinnappa, . The election of the respondent to the Bangalore South Scheduled Castes Constituency was questioned on the ground that he was not a member of any scheduled caste as he belongs to "Voddar" caste but not "Bhovi" caste and consequently the election is void. The election tribunal set aside the election on the ground that the candidate does not belong to ''Bhovi'' community. On appeal to the High Court, it was held that the respondent belonged to ''Bhovi'' community, what the ''Voddar'' caste as such was not included in the Presidential Order and the ''Bhovi'' caste mentioned in the Presidential Order is no other than ''Voddar'' caste and consequently the appeal was allowed. Wanchoo, J., while confirming the judgment of the High Court, held that "Clause (1) of Article 342 of the Constitution of India 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 or groups within castes, races or tribes which shall for the purpose of 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 which are notified in the Order made by the President under Article 341 after consultation with the Governor where it relates to such castes in a State." To the argument that notification once made is final and cannot be revised even by the President and hence It is not open to include or exclude any caste as coming within the notification on the basis of evidence, oral and documentary it was observed (at p. 1271):

It max 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, 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), 3 Dakkal (Dokkalwar) etc." Therefore, 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 the 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 the special circumstances of the case was noticed as a resolution was passed by Voddar caste at a conference in July 1944, in which it was resolved that the name of the caste be changed from Voddar to Bhovi. This resolution was processed in the Secretariat, Eventually an order was passed on February, 2, 1946 stating that "Govt, was pleased to direct that the community known as "Voddar" be in future called "Bhovi" in all Government communications and records." In view of the special circumstances of change of the name of the community and the absence of any Bhovi community in the Mysore State, their Lordships have accepted the finding of the High Court and held that the present Voddar caste is the same as "Bhovi" community.

This case was noticed in Bhaiyalal Vs. Harikishan Singh and Others, and held that a candidate of Dohar sub-caste cannot claim to belong to Chamar Caste. Gajendragadkar, Chief Justice referring to the earlier case stated "...the special and unusual circumstances justified the High Court in holding that Voddar caste was the same as the Bhovi caste..." At page 1559 it was observed:

.....in order to determine whether or not a particular caste is a Scheduled caste within the meaning of Art. 341, one has to look at the public notification issued by the President in that behalf. The plea that though the appellant is not a Chamar as such, he can claim the same status by reason of the fact that he belongs to the Dohar caste which is a sub-caste of the Chamar caste, cannot be accepted.

So the finality of the Presidential Order was recognised.

In Abhoy Pada Saha Vs. Sudhir Kumar Mondal, a Bench of the Supreme Court consisting of five Judges presided by Sarkar, Chief Justice reversed a judgment of the High Court and held that once the successful candidate belongs to Sunri caste which is a scheduled caste, his election cannot be set aside on the ground that the candidate belongs to a caste which bore the surname "saha" and thus was excluded from the category of Scheduled Castes as item 5 in the enumerated list says "Sunri excluding Saha". Their Lordships held that the evidence clearly established that the appellant belongs to Sunri caste and other questions are not relevant. The case turned upon establishing the identity of the community of the candidate.

In Laxman Siddappa Naik Vs. Kattimani Chaniappa Jamappanna and Others, a question arose whether the nomination of the candidate as one belonging to "Nayaka" can be successfully canvassed without proving by positive evidence that he belongs to Bidar community. In that context it was held that no evidence was adduced to show that the candidate did not belong to the Nayakas community and the burden lay heavily upon the petitioner. It was accordingly held that the nomination was not shown to be improperly accepted. The mistake of the High Court was pointed out stating that, "the High Court recognised that there is no evidence in the case, but went into the matter from a different angle and attempted to contradict the Presidential Order which was not entitled to do so." This judgment also emphasises the finality attached to the Presidential Order in respect of the enumerated communities.

In Parsram and Another Vs. Shivchand and Others, it was ruled that the person improperly described as ''mochi'' in Punjab does not fall within the caste of "Chamars" as included in the Schedule Order, 1950. At page 600 it was ruled that

Once we hold that it is not open to this Court to scrutinise whether a person who is properly described as a Mochi also falls within the caste of chamars and can describe himself as such, the question of the impropriety of the rejection of his nomination paper based on such distinction disappears.

Following the judgments reported in B. Basavalingappa Vs. D. Munichinnappa, and Bhaiyalal Vs. Harikishan Singh and Others, it was held (at page 599 of AIR):

These judgments are binding on us and do not therefore think that it would be of any use to look into the gazetteers and the glossaries on the Punjab castes and tribes 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 there might be some difference in the professions followed by their members, the main difference 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. Quite a lot of evidence was adduced orally and also by documents before the learned trial Judge to show that Krishna Lal was chamar and not a mochi. The learned Judge examined the evidence thoroughly and we do not propose to do the same again. In his view Krishna Lal was a mochi and not a chamar and we do not see any reason why we should come to any different conclusion.

Then come Bhaiya Ram Munda Vs. Anirudh Patar and Others, on which great reliance is placed by the learned counsel for the petitioner. In that case, the question was whether Patars of Tamar district in Bihar are sub-tribes of Mundas. The Bench consisted of Shah and Bhargava JJ. and the judgment was delivered by Shah, J. It was observed that it cannot be said that because Patars are not specifically mentioned in the list, they cannot be included in the general heading ''Munda'', According to them, if Patars are Mundas, because some sub-tribes of Mundas are enumerated in the Order and others are not, no inference will arise that those not enumerated are not Mundas and hence even if the tribe of a person is different from the name included in the order issued by the President, it may be shown that the name included in the order is a general name applicable to sub-tribes. No doubt this judgment stands by itself and struck a different note and is contrary to the earlier judgment of the Supreme Court and also subsequent judgments.

In Kishorilal Hans Vs. Raja Ram Singh and Others, a question arose whether ''Jatav'' caste is same as Chamar caste. Grover J. observed (at p. 604).

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 statute and the orders concerned by which the same caste has been included in same Districts of the same State and excluded in the other Districts. This Court, however, has in Bhaiyalal Vs. Harikishan Singh and Others, made observations repelling the contention that under Article 341 of the Constitution the President was not authorised to limit the notification to parts of a State. The reason given was that while specifying caste, race or tribe the President may well come to the conclusion that not the whole caste, race or tribe but part of or groups within them should be specified. This would be so where the President is satisfied that the examination of the social and educational backwardness of the race, caste or tribe justifies such specification. It would appear from the Tenth Report of the Commissioner for Scheduled Castes and Scheduled Tribes 1960-61 page 22 that two factors have been mainly taken into account for including a particular caste, race or tribe in the list of Scheduled Castes and Scheduled Tribes i.e. socio-economic conditions and population figures.

The problem in Ganpat Vs. Returning Officer and Others, is slightly different. The question was whether a member of Scheduled Caste ceases to be a member of that community on conversion to Buddhism. Their Lordships) held that conversion pleaded in the case was not established.

In State of Kerala and Another Vs. N.M. Thomas and Others, where the validity of Rule 13-AA of Kerala State and Subordinate Services Rules making reservations of promotions in favour of Scheduled Castes and Scheduled Tribes was upheld, Krishna Iyyer, J (Ray, C.J.) observed (at p. 501):

Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of a caste. In Bhaiyalal Vs. Harikishan Singh and Others, this Court held that an enquiry whether the appellant there belonged to the Dohar caste which was not recognised as a Scheduled Caste and his declaration that he belonged to the Chamar Caste which was a Scheduled Caste could not be permitted because of the provisions contained in Article 341. No Court can come to a finding that any caste or any tribe is a Scheduled Caste or Scheduled Tribe. Scheduled Caste is a caste as notified under Art. 366(25) . A notification is issued by the President under Article 341 as a result of an elaborate enquiry. The object of Art. 341 is to provide protection to the members of Scheduled Castes having regard to the economic and educational backwardness from which they suffer.

In Dadaji alias Dina Vs. Sukhdeobabu and Others, , Venkatramaiah, J., made a brief survey of the law bearing on the question. After referring to the statement and objects of the Amendment Act 108 of 1976 and also the report of the Joint Committee of Parliament held (at p. 156):

A reading of the Schedule to the Order also shows that where there are two communities with the same name, one having affinity with a tribe and the other not having anything to do with such tribe and both are treated as Scheduled Tribes the community which has affinity with another tribe is shown along with it in the same group against a single entry and the other is shown against a different entry. This is illustarted by the inclusion of the ''Koya'' community having affinity with ''Gonds� in Entry No. 18 and the ''Koya'' community having no such affinity in Entry No. 33 of Part IX of the schedule to the Order. If the Parliament intended to treat the appellant''s community also as a Scheduled Tribe, it would have shown ''Mana'' community under a separate entry. No such entry is found in the schedule.

In that case the election of the appellant before the Supreme Court was set aside by the High Court on the ground that he does not belong to ''Mana'' community as he was elected to Armori Constituency which was reserved for Scheduled Tribes. He did not belong to any Scheduled Tribes mentioned in the appropriate part of the schedule to the Order but he belongs to Kshatriya Bidwaik community but not Mana community referred to in Entry 12 of Para 5 of VII-A of the Schedule to the Order as it stood at the time of the said election. The contention before the Supreme Court was that as the amendment Act while enumerating sub-tribes in the new entry 22 omitted the word "including" and hence the communities mentioned under that entry need not necessarily be those having mutual affinity among them. But for this small variation in the Amendment Act, the matter is concluded by a rule of res judicata by a previous judgment of the Supreme Court between the parties as it was held in 38 E.L.R. 212 that the appellant did not belong to Mana community. The Supreme Court held that that entry cannot be construed in the manner in which the appellant wanted to construe and the omission of the word ''including'' has not brought out the change which the appellant wanted to contend, viz., the entry includes communities which have no affinity with the principal tribe of ''Gond''.

As against these cases, the respondent''s counsel relied upon the decision of the Orissa High Court reported in Narayan Behara v. State of Orissa 1979 Lab IC 1438, where the petitioner, who was selected as a Homoeopathic Medical Officer, was not given the posting orders as it was felt by the authorities that he may not belong to Scheduled Castes. The High Court accepted the plea of the petitioner and held that a certificate issued by the Collector clearly shows that he belongs to "Dewar" community, which is a Scheduled Caste and "Dhibara" community is same as "Dewar" and as such he was entitled to the relief prayed for. No doubt, they observed, referring to the judgment of the Supreme Court in Bhaiya Ram Munda Vs. Anirudh Patar and Others, and also B. Basavalingappa Vs. D. Munichinnappa, that in view of the fact that there is no community known as "Dhibara" as such, it must be taken that the petitioner belongs to the Scheduled Caste. Once the certificate issued by the authorities is one that is included in the list of Scheduled Castes as such, it is a matter of proof in a given case whether he belongs to such Scheduled Caste or not and any other observation to the contrary is obiter. Hence this judgment does not support the writ petitioner to show that the court can make enquiry on the question whether one unremunerated community is same as that of another community mentioned in the list. The respondent''s counsel urged that the reported cases of the Supreme Court mentioned above disclose taking of evidence and hence he must be permitted to adduce evidence to show that "Manyam Kapu" is same as ''Konda Kapu''. We must make it clear that it is permissible in a court to take evidence that a particular person belongs to the community of Scheduled Castes and Scheduled Tribes to establish identity. But it is not the same thing to say that even though he belongs to a different community which is not enumerated, he must be permitted to adduce evidence to show that the community, to which he belongs, though unenumerated belongs to the community enumerated in the Presidential Order. This is not permissible under law.

Considering the judgments of a larger Bench of the Supreme Court and also later judgments of the Supreme Court, we are bound to follow the judgments of the larger Bench and we think that there are compelling reasons for the court not to embark on an enquiry about the possible sub-tribes and synonyms of a tribe not mentioned in the Presidential Order as if they must be deemed to have been included.

These decisions clearly indicate that the main object of the Presidential Order and subsequent modification of lists by the Parliament will be defeated if the parties are permitted to adduce evidence to show that unenumerated communities are also included in the list. Such course will defeat the very object of Articles 341 and 342 and the subsequent Acts of Parliament. The object of this provision is to avoid disputes whether a particular tribe is a Scheduled Tribe or not. Once the President has issued notification under clause (1), the Parliament alone has got power to modify that list and no notification can be issued thereafter to include or exclude any class of communities from the list of Scheduled Tribes. The list appended to the Acts of 1956 and also of 1976 contemplates whenever it is necessary to issue synonyms to a particular tribe, such method is adopted. The second Schedule appended to the Scheduled Castes and Scheduled Tribes Orders (Amendment Act) 1976 enumerates the Scheduled Tribes in Andhra Pradesh. A reading of Entry No. 31 of the Schedule discloses that the community of Valmiki in the agency tracts alone are declared as Tribes. But as mentioned in the counter, this community in the Rayalaseema and other areas were left out without being included in the Schedule. Similarly entry 7 "Goudu" in agency tracts alone is declared as Tribe and in other areas it was declared as backward class, as mentioned in the counter. Similarly under Entry 23 "Nayakas" in the agency tracts alone are declared Scheduled Tribes. Further as per entry 30 Thoti tribes in Telangana region alone are included in the Scheduled Tribes. These entries show that after great public deliberations and after consulting the experts, the Parliament has prepared this list and no court can enlarge it, even assuming that some deserving communities which are of identical nature, are not included. It is also necessary to note that Article 342 contemplates parts or groups of tribal communities to be included in the list. The enquiry precede before the Amendment Act must necessarily take into account the parts or groups of such tribes or tribal communities. Even assuming that the omission of a community is inadvertent or mistake, the same can be rectified by the Parliament and no court of law can include or exclude from the list by means of interpretation or accept evidence on the theory that the right to a similar community is denied.

The learned counsel for the respondent contended that the State of Andhra Pradesh showed Manyam Kapus as synonymous with Konda Kapus in Sche. 1 to the Andhra Pradesh State and Subordinate Service Rules, both in East Godavari agency area and West Godavari agency area as persons belonging to aboriginal tribes and the denial of benefits to these communities as Scheduled Tribes is unjust. He contends these persons must be treated as Scheduled Tribes. We can only say that the State Government is conscious of the fact that these Manyam Kapus are aboriginal tribes. In fact the very Service Rules referred above in Schedule II Part B showed schedule tribes where Konda Kapus are included but not Manyam Kapus. So we have to proceed that they do not satisfy the requirements of being included in the list of Scheduled Tribes as contemplated under Article 342 in the opinion of the Parliament. The purpose of notifying the aboriginal tribes is quite different under the State Laws, and the State Government is free to make and provide special concessions to these communities also. However, when constitutional right of the Scheduled Tribes and Scheduled Castes are raised we must look to Articles 341 and 342 and orders issued thereunder.

We are concerned in the present case with the special reservations made in favour of Scheduled Tribes under Rule 2(c)(ii) of the Rules for Selection of Candidates for admission to the First Year M.B.B.S. Courses in Medical Colleges in Andhra Pradesh State. The first respondent in the Writ Appeal is fully justified in rejecting the reservation in favour of the petitioner as his community of Manyam Kapu is not shown in the list of Scheduled Tribes. It is not in dispute that this community is not shown in the Schedule appended to the Scheduled Castes and Scheduled Tribes Orders (Amendment Act) 1976. Once we rule that the list enumerated in the Schedule appended to the Act is final and cannot be added or subtracted by any court of law, we are bound to hold that the impugned proceedings cannot be successfully challenged by the petitioner. We are clearly of the opinion that the preponderance of the authority is clearly in favour of the appellant State and the judgment under appeal is liable to be set aside. We accordingly allow this writ appeal, set aside the judgment under Appeal and dismiss the writ petition. We make no order as to costs. Advocate''s fee Rs. 250/-.