State Of Orissa vs Dasarathi Meher

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7362 OF 2013

STATE OF ORISSA …APPELLANT(S)

Versus

DASARATHI MEHER …RESPONDENT(S)

WITH

CIVIL APPEAL NO. 10066 OF 2018 (@SLP (C) No. 13172 OF 2015)

CIVIL APPEAL NO. 10061 OF 2018 (@SLP (C) No. 13169 OF 2015)

CIVIL APPEAL NO.7363 OF 2013

CIVIL APPEAL NO.10065 OF 2018 (@SLP (C) No. 13171 OF 2015)

J U D G M E N T

Deepak Gupta, J.

Signature Not Verified Digitally signed by SANJAY KUMAR Date: 2018.09.27 16:28:37 IST Reason: Leave granted in SLP (C) No. 13172 of 2015, SLP (C) No.

13169 of 2015 and SLP (C) No. 13171 of 2015.

2

2. Whether the tribe mentioned as “Kulis” in the Scheduled

Castes and Scheduled Tribes Orders (Amendment) Act, 1976 in

Schedule II in Part XII at Item No. 42 includes persons belonging

to the “Kuli” community, is the issue which needs to be decided

in the present group of cases.

3. Article 342 of the Constitution of India reads as follows:

“342. 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) 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.”

4. It would be pertinent to mention that the aforesaid article is

almost identical to Article 341 relating to Scheduled Castes. The

only difference being that Article 341 deals with “castes, races or

tribes or parts of or groups within castes, races or tribes”

whereas Article 342 deals only with “tribes or tribal communities 3

or parts of or groups within tribes or tribal communities”. This

small difference will not have any effect while interpreting the two

articles on the facts of these cases.

5. The stand of the appellant, the State of Odisha (formerly

known as ‘Orissa’) and the intervenor is that since in the

Scheduled Castes and Scheduled Tribes Order, the tribe which

has been declared to be a Scheduled Tribe is “Kulis”, the

members of the “Kuli” community cannot take benefit of being

declared as Scheduled Tribes. It is further submitted that no

court including this Court has the power to change or modify

what is stated in the Presidential Order and later in the Act of

Parliament and, therefore, the High Court erred in holding that

“Kulis” would include “Kuli”.

6. Before dealing with the factual aspect of the matter it would

be pertinent to reiterate the legal position and the limits of the

power of the court while dealing with these issues. A bare

perusal of clause (1) of Article 342 of the Constitution clearly

shows that the President with respect to any State, after

consultation with the Governor thereof, may by public

notification specify the tribes or tribal communities or parts of or 4

groups thereof, which shall for the purposes of the Constitution,

be deemed to be Scheduled Tribes in relation to that State. After

the President issues an Order under Article 341 or 342, the said

Order cannot be amended, modified, added to or any caste or

tribe deleted therefrom by the State or by any court or tribunal.

It is only the Parliament, which can enact a law to include or

exclude from the lists of Scheduled Castes or Scheduled Tribes

any caste, race or tribe. The power to alter the Presidential Order

lies only with Parliament and no other authority. Therefore, the

notification issued by the President is final for all purposes and

for all times except if modified by a law made by Parliament.

7. These provisions have been considered in a number of

cases. We need not refer to all, except three Constitution Bench

judgments of this Court. The first Constitution Bench judgment

was rendered in B. Basavalingappa v. D. Munichinnappa1. In

this case the issue was whether a person belonging to the

“Voddar” caste could claim that he belonged to the “Bhovi” caste

which had been notified as a Scheduled Caste. This Court held

that normally it is not open for any court or tribunal to go into

this question or to take evidence that “Voddar” caste is the same 1 (1965) 1 SCR 316 5

as “Bhovi” caste. The Court held it to be a settled position of law

that it is not open to any court or tribunal to make any

modification in the Presidential Order by referring to evidence to

show that though caste “A” alone is mentioned in the order, caste

“B” is also part of caste “A” and, therefore, must be deemed to be

included in caste “A”. It was noted by this Court that wherever

there is one caste or one tribe having more than one name then

in the Presidential Order, the other name(s) is normally

mentioned in brackets. Having held so, this Court, in the facts of

the case, found that it was necessary to go into the question

because it was not disputed that there was no caste known as

“Bhovi” in the Mysore State before its reorganisation in 1956.

Following observations of the Court are relevant:

“.........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........” 6

Thereafter, this Court referred to the material placed before

it and came to the conclusion that “Bhovi” caste was earlier

known as the “Voddar” caste. It appeared that at a Conference of

the Voddar Caste, held in July, 1944, it was resolved that the

name of that caste be changed from “Voddar” to “Bhovi”.

Eventually, the Government also accepted the said Resolution by

passing an order.

The matter does not end here. The Government Order

directed that the community known as ‘Vodda’ would in future be

called as ‘Boyi’ in all Government communications and records.

This Court also considered the issue of change in spellings

wherein ‘Boyi’ was mentioned in the Government Order but the

caste declared to be a Scheduled Caste was “Bhovi”.

Furthermore, the Government Order refers to ‘Vodda’ and not to

“Voddar”. Dealing with the issue of different spellings the

Constitution Bench held as follows:

“......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 7

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 non­existent caste it means the word ‘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........”

8. The second Constitution Bench judgment is in the case of

Bhaiya Lal v. Harikishan Singh2 . In this case the appellant

claimed that he belonged to ‘Dohar’ caste, which was a sub­caste

of ‘Chamar’ caste. The Constitution Bench held that an inquiry

of such a kind was not permissible.

9. The third Constitution Bench judgment is in the case of the

State of Maharashtra v. Milind3. In this case the notified

Scheduled Tribe was Halba/Halbi. The High Court, relying upon

certain material held that “Halba­Koshti” was included in “Halba”

2 AIR 1965 SC 1557 3 (2001) 1 SCC 4 8

or Halbi”. This Court held that it was not permissible for the

courts to do so. After discussing the entire law, this Court held

as follows:

“36. In the light of what is stated above, the following positions emerge:

1. It is not at all permissible to hold any inquiry 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 entry concerned in the Constitution (Scheduled Tribes) Order, 1950.

2. 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.

3. A notification issued under clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by 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 Parliament by law and by no other authority.

4. 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.

5. Decisions of the Division Benches of this Court in Bhaiya Ram Munda v. Anirudh Patar4 and Dina v.

Narain Singh5 did not lay down law correctly in stating that the inquiry was permissible and the evidence was 4 (1970) 2 SCC 825 5 38 ELR 212; (1968) 8 DEC 329 9

admissible within the limitations indicated for the purpose of showing what an entry in the Presidential Order was intended to be. As stated in Position (1) above no inquiry at all is permissible and no evidence can be let in, in the matter.”

It would be pertinent to mention that in Milind’s case

(supra), the Constitution Bench reaffirmed the ratio of the earlier

two Constitution Bench judgments.

10. It is thus obvious that the power of the Court is very limited

and the Court cannot modify, alter, add to or subtract from the

Presidential Order or the notification issued by Parliament. At

the same time, the Court has to ensure that the order is read in

such a manner that no caste or tribe, which is intended by

President or by Parliament to be included, is actually excluded.

11. Mr. Shibashish Misra, learned counsel appearing for the

State submits that in view of the judgment delivered in Milind’s

case (supra), no court or authority has any jurisdiction to add

any tribe or caste. According to him, since the tribe, which has

been declared to be a Scheduled Tribe is “Kulis”, the courts

cannot give an interpretation that persons belonging to “Kuli”

community are also entitled to the benefit of being declared 10

Scheduled Tribe. On the other hand Mr. V. Giri, learned senior

counsel submits that it is but obvious that “Kulis” is only a plural

for “Kuli” and not a separate caste.

12. Coming to the facts of the present case, the first Order

which has been placed on record is the Constitution (Scheduled

Tribes) Order, 1950 and in Part VI the Schedule, dealing with the

State of Odisha at Item No. 31, the tribe “Kulis” has been

declared to be a Scheduled Tribe for the entire State of Odisha.

The next relevant document is the Scheduled Castes and

Scheduled Tribes Lists (Modification) Order, 1956 and in Part IX

of Schedule I, dealing with the State of Odisha, “Kuli” has been

declared to be a Scheduled Caste in Sambalpur district only. In

the very same order in Part IX of Schedule III, “Kulis” continued

to be declared to be a Scheduled Tribe throughout the State

of Odisha.

13. The Parliament replaced the Presidential Orders by the

Scheduled Castes and Scheduled Tribes Orders (Amendment)

Act, 1976. This Act was enacted for the purposes of inclusion

and exclusion from the lists of Scheduled Castes and Scheduled

Tribes of certain castes and tribes. The Presidential Orders were 11

replaced by this Act. In Schedule I at Part XIII dealing with the

State of Odisha, the caste “Kuli” no longer finds mention. In

Schedule II at Part XII dealing with the Scheduled Tribes, the

tribe “Kulis” is notified to be a Scheduled Tribe for the whole of

the State of Odisha. The Hindi version of this Order describes

the tribe “Kuli” (ककलल) as a Scheduled Tribe.

14. Persons belonging to the “Kuli” community have for long

been claiming that they are part of the “Kulis” tribe and the High

Court of Odisha has always held that the term “Kulis” is nothing

but a plural for the term “Kuli” and has consistently held that

“Kuli” are part and parcel of “Kulis” tribe. The first judgment in

this regard was delivered in Sebaram Meher v. The State of

Orissa6. A Division Bench of the High Court held that there is no

difference between the terms “Kuli” and “Kulis” because it was

not disputed that there is no separate community known as

“Kulis” in the State of Odisha. This view was followed in a large

number of judgments including the judgment under appeal. The

State of Odisha did not challenge the earlier judgments. Those

6 58 (1984) CLT 562 12

judgments became binding as far as the State of Odisha is

concerned.

15. Mr. Misra submits that since those judgments were

rendered before the Constitution Bench judgment in Milind’s

case (supra), they were not challenged by the State of Odisha.

This submission is wholly without merit. In Milind’s case

(supra) this Court has only reiterated what was said in

Basavalingappa’s case and in Bhaiya Lal’s case (supra) and

many other cases. Therefore, we cannot accept the explanation

of the State in this regard.

16. We have even otherwise gone into the merits of the matter.

Despite pointed queries put by the Court, learned counsel for the

appellant and the intervenor could not place any material before

us to show that there is a separate community by the name

“Kulis”. Time and again, the documents which were referred to

were the documents relating to the period when “Kuli” were

declared to be Scheduled Caste in the district Sambalpur

whereas “Kulis” were declared to be a tribe in the entire State. 13

The documents referred to by both the parties which are more in

the nature of reports, indicate that “Kuli” is a community of

weavers who were earlier forest dwellers. This community is

engaged in the weaving of very coarse type of cloth. In none of

the documents could we find any material to show that “Kuli” or

“Kulis” are two different castes or tribes dealing with some

different vocations. In all the documents they have been dealt

with synonymously.

17. In 1962, in a study conducted by the Scheduled Castes and

Scheduled Tribes Research and Training Institute, the following

remarks were made:

“The Kuli As a Tribe – The Kuli are fully integrated with the caste hierarchy of the Hindu society. They accept the superiority of the Brahman, have functional relationship with other castes and have a rigidly fixed caste occupation. They worship the gods of the Hindus and have no separate gods or goddesses. They do not take such food and indulge in such practices which are prohibited for Hindus. Rather they behave like high castes in this respect.

Conclusion – On the basis of the above findings the following conclusions may be drawn:­

(1) There is no reason to justify the Kuli being treated as a tribe.

(2) The Kuli have the status of a Scheduled Caste but in that capacity they occupy a position 14

superior to other Scheduled Castes. A slight stigma of untouchability is now attached to them but they are likely to be cleared up of this in near future.

Recommendation – It is therefore recommended that the Kulis should be treated as a Scheduled Caste in both Sambalpur and Bolangir districts. They may be descheduled after a period of five years by which time they would have achieved a status equivalent to Other Backward Classes”.

(emphasis supplied)

18. In 1979, in another study, the following observations were

made:

“The Kulis till now follow the traditional occupation of weaving. They have absolutely no other occupation except a few families who practice cultivation. 1% of the Kuli own land and in no case the holding is more than 2 acres. The Kulis have been hard hit because they specialize in coarse and inferior type of clothing which is generally used by the poorer section. Moreover, hand woven cloth has gradually been replaced by the mill made cloth. As a result they live on hand to mouth economy.

xxx xxx xxx

xxx xxx xxx

It is therefore recommended that Kuli should neither be treated as Scheduled Caste nor as Scheduled Tribe in Orissa. However they should be provided with all the benefits by the Govt. as an economically backward class.”

(emphasis supplied) 15

19. In a communication sent to the Government in 1979 7, it was

mentioned that the Census of 1971 distinguishes the “Kuli” caste

from “Kuli” tribe in different districts as follows;

Sl. Distict Population No. Kuli Caste Kuli Tribe

1. Sambalpur 3554 936

2. Balangir 522 657

3. Phulbani 10 172

4. Kalahandi ­ 2

5. Ganjam ­ 40

6. Dhenkanal ­ 19

7. Mayurbhanj ­ 37

8. Sundargarh ­ 29

4086 1892 Total

20. In 1981, a communication was sent by the Commissioner

and Secretary of the Harijan and Tribal Welfare Department of

the Government of Odisha to the Union of India, making some

proposals on behalf of the State of Odisha for amendments to the

list of Scheduled Castes and Scheduled Tribes. In respect of

“Kulis”, it was mentioned that they are weavers by profession,

7 Vide Letter No.1489 dated 26.07.1979 16

mainly found in Bolangir, Sambalpur and Phulbani districts. It

was submitted that they do not possess tribal characteristics

and, therefore, may be deleted from the list of Scheduled Castes

and Scheduled Tribes.

21. Relying upon these documents, it is urged that the “Kulis”

and the “Kuli” are separate and members of the “Kuli”

community cannot be treated as “Kulis”. We fail to understand

how this can be deduced from the aforesaid documents. In the

statement showing the population, both communities are

described as “Kuli” but while describing the occupation, the

members of the community are described as “Kulis” and it has

been recommended that “Kuli” should neither be treated as

Scheduled Caste nor as Scheduled Tribe. This shows that there

was only one community known as “Kuli”, which was treated as

Scheduled Caste for some time in the district of Sambalpur but

was treated as Scheduled Tribe for the entire State of Odisha. In

none of the documents placed before us by the State, there is any

indication to show that there is a separate caste or tribe by the

name “Kulis”.

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22. We may now refer to the 24th Report of the Commissioner for

Scheduled Castes and Scheduled Tribes. In this Report,

prepared in December, 1977, dealing with the State of Odisha, it

has been observed8 as follows:

“.....In case of Orissa, the Kuli community which was earlier declared as Scheduled Caste in Sambalpur district has been deleted from the list as Kulis are already declared as Scheduled Tribes throughout the State.....”

In this Report, it is clearly indicated that the “Kuli”

community has been deleted from the list of Scheduled Castes in

Sambalpur as “Kulis” are already declared as Scheduled Tribe

throughout the State. This clearly indicates that the

Commissioner was of the view that “Kuli” community which was

one of the communities declared to be Scheduled Castes in

Sambalpur district, would now fall in the category of

Scheduled Tribe.

23. The State has failed to show that there is any community

caste or tribe, known as “Kulis”. The community is known as

“Kuli”. Further, it is apparent that the term “Kulis” used in the 8 At Para 2.8, Page 16 18

Order is in the nature of plural for “Kuli”. This becomes even

more apparent from the various documents referred to above

wherein the terms “Kulis” and “Kuli” have been used

interchangeably and though the caste or tribe has been described

as “Kuli”, the members of the community, when dealt with

together, have been described as “Kulis”. Furthermore, in the

Hindi version of the Amendment Act of 1976, the Scheduled Tribe

has been described as “Kuli” and not “Kulis”.

24. In Basavalingappa’s case, the Constitution Bench of this

Court held that caste “Bhovi” includes people of the “Voddar”

caste mainly on the ground that prior to reorganisation of the

State of Mysore, there was no caste “Bhovi” and, therefore, the

Presidential Order could not be set at naught by excluding what

was intended to be included in the list of Scheduled Castes. The

present case is very similar. As held above, the State has failed

to place any material on record to show that there is any caste or

tribe by the name “Kulis”. It is, therefore, apparent that both in

the Presidential Order and in the Act, the term “Kulis” was used

as plural for the term “Kuli”.

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25. We are fully conscious of the limitations on the powers of

this Court. We cannot add to alter or modify the notified list of

Schedules Castes and Scheduled Tribes. We are also aware that

we cannot take into consideration any evidence in this regard. At

the same time, we are of the considered view that we cannot give

such an interpretation to a Caste or Tribe mentioned in the list

of notified Scheduled Castes or Scheduled Tribes which would

have the effect of nullifying the intention of the Parliament. In

the present case, earlier the President and later Parliament had

included “Kulis” in the list of Scheduled Tribe. It has been found

that there is no community by the name “Kulis” in the State of

Odisha. The only community is “Kuli”. If we do not include

“Kuli” in “Kulis”, the net result would be that we would be

deleting a Tribe from the list of Scheduled Tribes. This also no

Court or Tribunal is entitled to. We have to read the entries in

the list in a manner which is consistent with the intention of the

Parliament. According to us, earlier the President and later

Parliament while using the term “Kulis” only intended it to be

used as plural for the word “Kuli”. Any other interpretation

would mean that nobody would be able to take benefit of

belonging to “Kulis” tribe.

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26. Taking all the above facts into consideration, in the peculiar

facts and circumstances of the case, we are of the view that the

term “Kulis” in the English version will include members of the

“Kuli” community. The appeals are accordingly dismissed.

Application for intervention is also dismissed. Pending

application(s), if any, shall stand disposed of.

….……………………..J. (MADAN B. LOKUR)

.….…………………….J. (DEEPAK GUPTA) New Delhi September 27, 2018