Resham Lal @ Badri Prasad Patel vs Manu and Others

T.P. Sharma, J.—By this petition, the petitioner has challenged legality and propriety of the order dated 8-1-98 passed by the Commissioner, Bilaspur Division, Bilaspur in Revision Case No. 98/A-23/96-97, whereby the order passed by the subordinate revenue officer u/s 170B of the Madhya Pradesh/Chhattisgarh Land Revenue Code 1959 (for short ''the Code'') has been maintained and also directed to return the possession of land to respondent No. 1, 2 and 3 herein as members of Cast Saunra. Learned counsel for the petitioner, at the outset, submits that this petition involves short question that whether caste Saunra is included in the notification issued under clause (1) of Article 342 of the Constitution of India, in the Constitution (Scheduled Tribes) Order, 1950. Learned counsel further submits that respondents No. 1 to 3 herein are members of Saunra caste which is not included in the order issued by the President of India under clause (1) of Article 342 of the Constitution of India and only Castes Saur, Sawar, Sawara and Sonr have been included in the aforesaid order/list, Therefore, Saunra is not member of tribe and any transaction between the member of Saunra caste and the petitioner herein is not hit by Section 170B of the Code.

Learned counsel for the petitioner placed reliance in the matter of State of Maharashtra Vs. Milind and Others, and upon the order dated 10-1-2008 passed by this Court in W.P. No. 1007/2006 (Ram Singh Sidar v. State of Chhattisgarh and ten others) in which the Supreme Court and this Court have held that it is not at all permissible to any court or tribunal to hold any enquiry that whether any sub-community or sub-caste is included in any caste declared as Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950, it is the Parliament and the President to issue such notification.

Learned counsel for the petitioner also submits that in absence of the fact that respondents No. 1, 2 & 3 herein are members of Scheduled Tribe, the transaction may be fraudulent in nature, but is not hit by Section 170B of the Code.

On the other hand, learned counsel for the respondents oppose the petition and submit that caste Saunra is included in the list and same is sub-community of Sawara.

Admittedly, the notification issued under clause (1) of Article 342 of the Constitution of India, the Constitution (Scheduled Tribes) Order, 1950, does not include Caste Saunra, only Castes Saur, Sawar, Sawara and Sonr have been included in such order. While dealing with same question in Milind''s case (supra), the Supreme Court has observed in para 35 as follows:-

It is not at all permissible to hold any enquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the concerned entry in the Constitution (Scheduled Tribes) Order, 1950.

The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it.

A notification issued under Clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by the Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under Clause (1) of Article 342 only by the Parliament by law and by no other authority.

It is not open to State Governments or Courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under Clause (1) of Article 342.

By placing reliance in Milind''s case (supra), this Court had also held in Ram Singh''s case (supra) that the courts and the tribunals are required to consider caste on the basis of notification, not on the basis of any evidence and enquiry.

The President of India by its notification has declared the castes for different areas as Scheduled Tribe. The Parliament and the President of India are competent to amend their notifications and this cannot be the subject matter of enquiry. The Courts and the Tribunals are required to consider caste included in the aforesaid list for the purpose of determination that whether a person belongs to the aforesaid caste as member of Scheduled Tribe or not.

In the present case, all the revenue courts have not considered the fact that respondents No. 1 to 3 herein were not members of Scheduled Tribe or that their caste has not been included in the aforesaid notification issued by the President of India and thereby committed illegality by allowing the application u/s 170B of the Code on the ground that respondents No. 1 to 3 are members of Scheduled Tribe. Consequently, the petition deserves to be allowed and it is hereby allowed. The order dated 8-1-98 passed by the Commissioner. Bilaspur Division. Bilaspur, in Revision Case No. 98/A-23/96-97; the order dated 16-7-97 passed by the Additional Collector, Korba, in Revenue Appeal Case No. 1/A-23/94-95; and the order dated 30-7-94 passed by the Sub Divisional Officer, Sakti, in Revenue Case No. IO/A-23/93-94 are hereby quashed. No order as to costs.