P.N. Mookerjee, J.
1. In this election appeal, two questions call for decision. The first relates to the construction of the Constitution (Scheduled Castes) Order 1950, Part XIII (2) Item 40, as amended in 1956, and the second of Section 101(a) of the Representation of the People Act, 1951. The controversy is acute as to whether the contesting respondent, who got himself declared elected to the reserved seat for the Scheduled Castes in the Khargram Legislative Assembly Constituency of West Bengal in the last General Election, held in February 1962, belonged to the Scheduled Caste, so as to be eligible for the said reserved seat. The controversy is also keen on the appellant's claim to be forthwith declared elected to the said reserved seat in case the respondent's election aforesaid is declared void.
2. To resolve the above controversies, I proceed first to set out the relevant constitutional and statutory provisions, namely, the above amended Item 40 of Part XIII (2) (together with Paragraph 2, of which, plainly, it forms a part), of the Constitution (Scheduled Castes) Order 1950. and Article 341(1) of the Constitution of India, under which the same was promulgated, and Section 101(a) of the Representation of the People Act, 1951. Those provisions run as follows:
(1) Article 341(1) of the Constitution:
"341. Scheduled Castes.--(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 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) Paragraph 2 of the Constitution (Scheduled Castes) Order, 1950, and the amended Item 40 of Part XIII-(2) of the said Order, referred to above:
"2. Subject to the provisions of this Order, the caste, races or tribes or parts of, or groups within castes or tribes, specified in Parts 1 to XIII of the Schedule to this Order shall, in relation to the States, to which those Parts respectively relate, be deemed to be Scheduled Castes so far as regards members thereof, resident of the locality specified in relation to them in those parts of that Schedule."
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Part XIII--West Bengal
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2. Throughout the State except in the Purulia District and the territories transferred from the Purnea district of Bihar: *** * * ** **
40. Sunri excluding Saha"
and (3) Section 101(a) of the Representation of the People Act, 1951:
"101. Grounds for which a candidate other than the returned candidate may be declared to have been elected.--If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Tribunal is of opinion--
(a) that in fact the petitioner or such other candidate received a majority of the valid votes;" and, in their context, fall to be judged the instant case and the contending claims herein.
3. The relevant facts are not in dispute. At the above impugned election, which was held on February, 18, 1962, there were two candidates for the reserved seat in question. Of them, the respondent secured the highest number or votes, namely, 16,730, as against the appellant's 15,523, and was declared elected to the said reserved seat. The respondent stood at the said, election upon a claim that he was a member of the Scheduled Caste, which was the sine qua non of his eligibility for the said election. He had his surname Saha but he claimed that, that notwithstanding, he belonged to the "Sunri caste excluding Saha' as mentioned in the above amended Item 40, Part XIII-(2), of the Constitution (Scheduled Castes) Order, 1950, that is, to a Scheduled Caste, as enumerated in and within the meaning of the said provision. On this footing, he filed his nomination paper for the election in question, which was accepted by the appropriate authority after rejecting the appellants objection to the same and the election proceeded with the appellant and the respondent as the two duly nominated candidates.
4. In his election petition, filed in April 1962, the appellant took various grounds to challenge the respondent's election, but, at the hearing, the said challenge appears to have been confined only to the question of the respondent's status, namely, whether he belonged to the Scheduled Caste so as to be eligible for the impugned election. This challenge was founded on the words "excluding Saha" in the relevant Item No. 40 of the Scheduled Castes enumeration in the above amended Part XIII (2) of the Constitution (Scheduled Castes) Order, 1950, and the contention was that the respondent was excluded under that Item and so excluded from the Scheduled Caste under the above phrase or expression or exception "excluding Saha", however much he might be a Sunri by Caste. This was denied by the respondent.
5. The controversy thus centred round the phrase "excluding Saha" and it depended, in the ultimate analysis, on the scope and meaning of the word 'Saha', as used therein. The implication of the word was not fully or properly realised at the earlier stages and some confused ideas appear to have pervaded the proceedings before the Tribunal. Under an impression that the 'Saha' there represented a caste by itself, distinct from the Sunri Caste, attempts were made by the appellant to prove that the respondent belonged to that different caste 'Saha', as distinguished from 'Sunri' and not to the Sunri caste. These attempts signally failed. The appellant also sought to establish that, within the Sunri Caste, there was a distinct and well-defined sub-caste "Saha-Sunri", vis-a-vis the two other sub-castes, Sow-Sunri and Sunri proper, which three together constituted, according to him, the Sunri Caste, and, of them, the Saha-Sunri Sub-caste, to which, according to the appellant, the respondent belonged, answered the above phrase or exception "excluding Saha", The existence of such a sub-caste also could not be established and it could not be proved that the Sunri caste comprised three sub-castes, Saha-Sunri, Sow-Sunri and Sunri proper, as claimed by the appellant, with the result that the appellant's endeavour to bring the respondent within the exception "excluding Saha" on that footing did not also succeed before the Tribunal.
6. In my view the above approach was deficient. When the Scheduled Caste in question is described in the relevant Order as "Sunri excluding Saha" the caste emphasis is on Sunri, or, in other words, the caste meant is 'Sunri' with a reservation or exception "excluding Saha", thus denoting that the 'Sahas', contemplated there, would have, but for this phrase, come within the 'Sunri' caste. In other words, they are not members of a separate caste 'Saha' but form a group within the Sunri caste, be it a sub-caste, strictly so-called, or otherwise. That there is no such sub-caste, strictly so called, has been proved in the instant case by the failure of the appellant's attempt in that behalf, namely, to establish that the Sunri caste comprised and consisted of three sub-castes, Saha-Sunri, Sow-Sunri and Sunri proper, and, necessarily, the strict sub-caste theory must be rejected in construing the relevant phrase "excluding Saha", That phrase, however, must be given some meaning in relation to realities or actualities. It is abundantly in evidence in the present case and almost an admitted fact that, amongst the Sunri caste or community, there is a group, a distinct and well-defined group, distinguished by bearing the surname 'Saha'. The surname 'Saha' is the hall-mark of their distinction and identification and they curry that insignia to proclaim themselves as a separate and distinct group, standing apart from others, within the same Sunri caste. They may not, strictly speaking, comprise a sub-caste, but they form a separate distinct and well-defined unit--a group or part--within the Sunri caste, easily distinguishable by their surname or title. Indeed, it is quite clear from the materials before us that me Saha group, bearing the surname Saha and distinguished by it stands apart from others in the Sunri caste and forms a distinct part of it and when the parent Article in the Constitution (Article 341(1)), under which the Constitution (Scheduled Castes) Order 1950, has been promulgated, permits and contemplates exclusion of groups or parts within a caste from the Scheduled Castes enumeration, the excluding phrase "excluding Saha" may well apply to that group--the above Saha group--within the Sunri caste, &, indeed, it can apply to none else. The respondent clearly answers this description and hence should be held excluded from the Scheduled Caste under the above excluding phrase. On this short ground, I would hold that the respondent is not a member of the Scheduled Caste under the law and hence not eligible for the impugned election and his said election must be set aside.
7. What I have said above will be amply supported by the evidence, adduced in the instant case, and the history, context and circumstances, which, eventually, led to the engraftment of the exception or excluding phrase "excluding Saha" in the relevant item, relating to the Sunri caste, in the Constitution (Scheduled Castes) Order 1950. The evidence, certainly, does not establish the existence of a 'Saha' caste, of: which the respondent is a member, or of a 'Saha' sub-caste, strictly so called, within the Sunri caste. The evidence also does not establish that all the members of the Sunri caste bear the surname Saha nor are there any sufficient materials before us to support the view that only those amongst the Saha group, who have given up their original profession of manufacturing and distilling liquor and have taken to other professions, would come within the excluding phrase "excluding Saha" and answer the description under it. Indications are, as we shall see hereinafter, rather to the contrary. Indeed, the test of profession would be too uncertain for the purpose and may lead to serious difficulties, anomalies and complications, dividing, in the ultimate analysis, even members of the same Sunri family into Scheduled and non-scheduled castes. The test of the surname 'Saha' offers a much more definite and satisfactory criterion or solution and, in my opinion, it is the only acceptable test for the intended exception. From the point of view of certainty and definiteness and literal and natural sense of the words employed, this interpretation of the excluding phrase "excluding Saha" is the most apposite and there is nothing before us to compel or justify its rejection in favour of any other interpretation. Indeed, no other interpretation seems to be appropriate or suited to the occasion or to the language or purpose of the exception.
8. At the trial, the appellant's case in the pleading that the respondent belongs to the Saha caste, as distinguished from the Sunri caste, appears to have been given up and none of the appellant's witnesses, including the appellant himself, appears to have made any attempt to prove the same in their oral evidence. The denial also of the respondent and his witnesses on the point does not appear to have been seriously challenged. Reference was, no doubt, made on behalf of the appellant to the description of the respondent's caste as "Sau" and "Saha" in the two documents Exts. 1 and 2, to which he (respondent) was a party, but that, in the context of the other evidences on the point and the appellant's real case at the trial, appears to have been more for the purpose of establishing the appellant's said case at the trial that the respondent belonged to the Saha-Sunri sub-caste of the Sunri caste. On this latter point, too, the appellant's evidence is wholly unsatisfactory and utterly insufficient, his witnesses being hardly definite or consistent and the above description of the respondent's caste in Exts. 1 and 2 being, apart from anything else, obviously, loose and inexact. Clearly, then, it has not been proved that the respondent belonged either to any separate Saha caste or to any Saha-Sunri sub-caste of the Sunri caste.
9. In the above context, I must proceed upon the footing that the respondent belongs to the Sunri caste and the only point, now left for consideration, is whether his title 'Saha' excludes him from the Scheduled Caste under the excluding phrase "excluding Saha" in the above Item No. 40 ("Sunri excluding Saha") of Part XIII (2) of the Constitution (Scheduled Castes) Order 1950. On the interpretation, hereinbefore suggested or put by me, of the said excluding phrase, the respondent would be excluded from the Scheduled Caste but he seeks to resist it by challenging the correctness of that interpretation by showing first that Saha is the common title or all Sunris and hence cannot serve as the mark of distinction of any particular group within it and, secondly, that, even otherwise, the above interpretation will not be correct. On the first of the above two contentions, the respondent's case fails even on his own evidence, as his witnesses had to admit (Vide e.g. D. W. 3) that other titles prevail in and amongst the Sunri caste--a fact, supported also by authorities and publications, e.g. the Census Reports of 1931 and 1951 and Risley's famous treatise "The Tribes and Castes of Bengal"; the second, however, is stronger, even though, in my view, it too, is unacceptable.
10. This latter contention of the respondent succeeded before the Tribunal and primarily upon this the appellant lost this election petition there. The Tribunal held, in effect, that the word Saha in the excluding phrase meant the Saha caste and as the respondent did not belong to it he was not excluded from the Scheduled Caste. The Tribunal also expressed the view that the said word 'Saha' did not refer to a group within the Sunri caste bearing the said surname or title or distinguished by it, and repelled the appellant's argument to the contrary. In taking the above view, the Tribunal was greatly influenced by the history of the Saha caste, which showed that some of its members were originally a part of the Sunri caste and later became part of the separate and distinct caste Saha. It also held that title or surname was irrelevant for the construction of the above excluding phrase. To my mind, the Tribunal overlooked certain important aspects of the matter and fell into an error. It is true that the Census Report of 1951, West Bengal, shows (Vide p. 68 Serial Nos. 586 and 604) that, at least, from 1911, two separate and distinct castes 'Saha' (Shaha) and 'Sunri' were recognised (Vide also, in this connection, the Census Report of 1931, Vol. V. (Bengal and Sikkim), Part I, pp. 426 and 428, Paragraph 449 and Castes Nos. 36 and 38 thereunder). It may also be conceded upon the above two Census Reports of 1931 (pp. 535-7) and 1951 (Vide P. 34-(6) and P. 76-(56)), that the Saha caste comprised, as part of it, some members of the old Sunri caste but it also transpires (Vide the above Census Report of 1931, pp. 535-7, & Risley's Vol. II, p. 275) that within the Sunri Caste, there is a distinct and well-marked group or part, bearing the surname or title Saha, and this position has been existing, at least, since 1911--and even earlier. It is to be remembered further that, of the above two castes, Saha and Sunri, only Sunri was made a Scheduled Caste in the Scheduled Castes Order, 1936 (Vide Part III Bengal, of the Schedule to the Government of India (Scheduled Castes) Order 1936), and that continued until 1956, when the above exception was inserted and the Scheduled Caste list was revised, presumably on the recommendation of the Backward Classes Commission, which suggested that revision, apparently, in the light or its questionnaire No. 179 namely,
"In your State has any of the Scheduled Castes progressed to such an extent that it has ceased to be untouchable as a caste and it is no longer necessary to keep its name in the list of Scheduled Castes?"
In this context and when, in the list of the governing Article 341(1) of the Constitution and Paragraph 2 of the Constitution (Scheduled Castes) Order, 1950, the list would mention castes, or groups or parts within the same, it is idle to contend that 'Saha' in the excluding phrase refers to a separate caste and not to a part or group within the Sunri Caste, particularly when, as seen above, that would be opposed to the natural and literal meaning of the expression used. Clearly, also, Risley's famous treatise on "Tribes and Castes of Bengal" (Vide Vol II, pp. 275 and 279) would substantially support the distinctive character of the Saha group amongst the Sunri caste or community, following from their surname 'Saha', while virtually rejecting the separate caste, or, so to say, the strict sub-caste, theory, as it places all the emphasis on the surname or title. I need only add that the above interpretation of the excluding phrase "excluding Saha", resting on the surname, was also sufficiently within the appellant's case before the learned Tribunal and was so understood by the parties and the learned Judge there, as will be evident from the judgment of the Tribunal itself (Vide in particular, pp. 67-8 of the Paper Book) and it cannot be thrown out or refused consideration as an altogether new case, made for the first time before this Court, or, on the ground of surprise or prejudice to the respondent. Indeed, it is clear throughout the proceedings that the emphasis was on the surname 'Saha' as the mark of distinction and this was fully realised by the respondent (Vide, in particular, paragraph 11 of the Written Statement). It would, accordingly, answer the first point in the present appeal in favour of the appellant.
11. The next question is whether, in view of the above finding, the appellant, who was duly qualified for the election or seat in question and was the only other candidate for the same, should be declared elected to the said seat, rendered vacant by the setting aside of the respondent's election, as aforesaid. This aspect of the matter would be governed by Section 101(a) of the Representation of the People Act, 1951, on which the appellant relies for this part of his claim. To succeed under that provision, however, the appellant must show that he has secured a majority of the valid votes. That can only happen if the votes cast in favour of the respondent, or, at least some or a sufficient number of them can be rejected as invalid. As the only around, Upon which the respondent's election is being set aside in the instant case, is that he is ineligible for the said election, not being a member of the Scheduled Case. the in validity of voles, if any must be related to and founded upon the said disqualification. In other words, the votes, to be invalid for our present purpose, must be "thrown away" votes as understood under the election law. It is well settled however, that the ineligibility or incompetence of a candidate does not, by itself, or, necessarily, make the votes, cast in his favour, "thrown away" or invalid votes and that to attract the mischief of that doctrine, the voters concerned must be proved in law to have cast the votes in question with knowledge or notice, actital or constructive, of such ineligibility or disqualification and there must be allegation or special pleading to that effect. This plainly appears from the leading English authorities on the point (Vide, in particular, Hobbs v. Morey, (1904) 1 KB 74: Gosling v. Veley, (1847) 7 QB 406 (439); Drinkwater v. Deakin, (1874) 9 CP 626 and Lady Sandhurst's case, (1889) 23 QBD 79 (Beresford Hope v. Lady Sandhurst), as discussed in Jagadananda Roy v. Rabindra Nath Sikdar read in the light of the Supreme Court decision in Keshav Lakshman Borkar v. Dr. Deorao Lakshman affirming, on appeal, the decision of the Bombay High Court in the same case reported in Dr. Deorao Laxman v. Keslrav Laxman Borker .
12. Indeed, after the above decisions--and, particularly, the above Supreme Court decision --it is no longer open to any doubt or dispute and it can no longer be questioned that, to attract the doctrine of "thrown away" votes and to invalidate votes on that ground, it must be established that the elector or electors concerned had knowledge or notice--or must be presumed to have had such knowledge or notice--that the candidate in question was disqualified or ineligible for the particular election. Whore there is actual knowledge, or notice no difficulty arises. Where, again, the fact, on which the disqualification is founded and which attracts the disqualification, is notorious so as to lead to a necessary inference of the disqualification, notice wilt be presumed. Equally so where the circumstances are such us to lead to a reasonable presumption or inference of such knowledge or notice on the part of the elector or electors concerned. It, however, the position is ambiguous or uncertain, either because the law is not clear or certain, or, there is difficulty in ascertaining the basic fact or facts, knowledge or notice cannot and should not be imputed or implied and the doctrine of "thrown away" votes cannot and should not be applied. Presumption of knowledge of law, as applied to matters like the present, should not be given any wider scope or application and the observation at p. 343 of 62 Cal WN 336 (at pp. 535-536 of AIR) (supra) where the point did not arise for consideration and was left open with a tentative expression of opinion on certain English authorities, should not be read differently. I am conscious that, on this last question, the English view, represented by 1847-7 QB 406 (supra) and Beresford Hope v. Lady Sandhurst, better known as and usually called Lady Sandhurst's case, (.889) 23 QBD 79 (supra) and Etherington v. Wilson, (1875) 20 Eq 606 and (1874) 9 CP 626 (supra) as noticed in the said case (1889) 23 QBD 79 at p. 85 appears to be somewhat different but, even In England, the contrary view-point had its support in Queen v. Mayor of Tewkesbury Corporation, (1868) 3 QB 629 and Cox v. Ambrose, (1891) 55 JP 23 at p. 24 (see also (1875) 20 Eq 606 (supra)) at p. 618 where the Tewkesbury case, (1868) 3 QB 629 (supra) was distinguished). Be that as it may, so far as this country is concerned, I would prefer to adopt the view, above expressed by me, in line with the above two English authorities, despite adverse criticism or opinion to the contrary in England (Vide Lady Sandhurst's case, (1889) 23 QBD 79 (supra) at p. 85, and Drinkwater's ease, (1874) 9 CP 626 (supra) at p. 642 and Rogars on Elections, (1928) 90th Edn, Vol. II, pp. 82-3). (See in the above connection, Parker's Election Agent and Returning Officer, 6th (1959) Edition, at pp. 154-157, and Sen and Poddar's Indian Election Cases, pp. 216-8). It is to be remembered, further, that the onus to prove invalidity of the votes is on the person, claiming them as such, and such onus, as laid down by the Supreme Court in the above quoted decision, requires a special pleading of requisite knowledge or notice on the part of or to the voters concerned: See also Hobbs v. Morey, (supra) (1904) 1 KB 74 at p.
13. In the instant case, there is neither the necessary allegation nor, if I may add, proof of the requisite knowledge or notice---actual or constructive--on the part of the electors concerned, upon the view of law, above expressed by me. In any event, the requisite special pleading is here definitely wanting and, accordingly, the votes, cast in favour of the respondent, even though his election is now being set aside on the ground that he was disqualified or ineligible for the said election, would not become "thrown away" or invalid votes but would remain valid votes on the above authority or authorities and must be so regarded for purposes of the relevant Section 101(a) above mentioned. That being so, the appellant's claim to be declared elected automatically upon the setting aside of the respondent's election, as aforesaid, must fail.
14. Before concluding, I would like to add that the fact that the instant case is one of a '"status" disqualification does not affect or alter the above legal position (Vide ) (supra) at p. 345 (of Cal WN) (at p. 536 of AIR) and the appellant cannot escape its consequences on any such distinction. I would add also that, in relation to such a disqualification,--a "status" disqualification,--the respondent's plea of waiver, estoppel and acquiescence, as detailed in the judgment of my learned brother, is untenable even as a matter of law and must fail in limine.
15. In the premises, this appeal will be allowed in part, the respondent's election will be set aside but the appellant's claim to be declared elected in his place will fail. As success is divided and as, in particular, the appeal has succeeded on a point, not clearly raised or sufficiently urged before the Tribunal, the parties will bear their own costs throughout,
16. The operation of this judgment (decree), including the above order, will remain stayed for ten days from date for the present, as prayed for by the respondent.
D. Basu, J.
17. This is an appeal from the decision of the Election Tribunal for Murshidabad, refusing to set aside the election of the Respondent Abhoypada Saha as member of the Legislative Assembly of the State of West Bengal From the Legislative Assembly constituency of Khargram.
18. The Appellant (Sudhir Kumar Mandal) and the Respondent were the two rival candidates for the seat reserved in the said constituency for members of the Scheduled Castes of the State, at the general election held on February 18, 1962. The Respondent having won by a margin of 1216 votes, the Appellant presented an election petition on April 7, 1962, for declaring the election of the Respondent as void and for declaring the Appellant (himself) as duly elected. The petition was referred to the Election Tribunal for Murshidabad and registered as Other Class Suit No. 9 of 1962. Though several grounds were taken in the election petition to challenge the election of the respondent only one ground was pressed before the Tribunal and that is the ground which has been pressed before us in appeal. The Appellant's case is that the respondent is not a member of any of the Scheduled Castes in West Bengal as specified in the Constitution (Scheduled Caste) Order, 1950, and is not, therefore, qualified to be chosen to fill the seat for which the election was held.
19. This is the point for determination before us, the Tribunal having dismissed the election petition of the Appellant. The constitutional provision in this behalf is to be found in Article 173 of the Constitution. Clause (c) of this Article says that--
"173. A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he .... .... .... .... .... ... ....
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament."
20. The law of Parliament referred to in Clause (c) above is the Representation of the People Act, 1953 and the relevant provision is in Section 5(a) thereof, which is as follows:
"5. Qualifications for membership of a Legislative Assembly.--A person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless--
(a) in the case of a seat reserved for the Scheduled Castes or for the Scheduled Tribes of that State, he is a member of any of those castes or of those tribes, as the ease may be, and is an elector for any Assembly constituency in that State."
21. Now, the list of Scheduled Castes is to be found in the Order issued by the President in exercise of his powers under Clause (a) of Article 341 which provides--
"341(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 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."
22. The order issued by the President, specifying the Scheduled Castes in the various States, for the purposes of the Constitution is the Constitution (Scheduled Castes) Order, 1950, as amended subsequently. This order is reproduced in the Ninth Ed. of the Manual of Election Law. published by the Government of India. Part XIII of this Order specifies the Scheduled Castes in the State of West Bengal, and item 40, with which we are concerned with respect to the respondent, is
"Sunri excluding Saha".
23. The primary question for determination in this appeal is whether the respondent belongs to the caste which is referred to by the above description in item 40 (which has been renumbered 51', by the Amendment Act, 1956). Before proceeding further, we must advert to the words 'excluding Saha' in the above item. It is evident that the entire Sunri caste is not a Scheduled Caste according to this item and that those members of the Sunri Caste who belong to the Saha group (who would otherwise have come under the generality of the specification 'Sunri'), are excluded from the item. In other words, a person who belongs to the Sunri caste but belongs to the Saha group within that caste, cannot claim to be a member of the Scheduled Caste coming under item No. 40 of the order. As to why a part of the Sunri caste is thus excluded by the order, we have to refer to the words "or parts of or groups within castes, in Clause (1) of Article 341 of the Constitution which we have seen. Item 40 is not the only item which excludes a part of or group within a caste from the protection of the Order. Thus, item 46 of Part XII relating to Uttar Pradesh mentions "Kharwar excluding Benbansi". It may be mentioned in this context that the constitutionality of thus excluding from the Order a part of a caste from being specified as a Scheduled Caste was challenged before the Punjab High Court in Gurmukh Singh v. Union of India (FB), but the contention was rejected.
24. It may be mentioned in this context that in the Government of India Act, 1935 also there were provisions for special representation of members of the Scheduled Castes, e.g., under the Fifth Schedule to that Act, relating to the Provincial Legislatures, and, for this purpose, the Crown was empowered to specify "the castes, races or tribes or parts of or groups within castes, races or tribes which arc to be treated as the scheduled castes for the purposes of those Schedules" (vide Preamble to Government of India (Scheduled Castes) Order, 1936). The idea of excluding parts of a caste from the enumeration of Scheduled Castes thus subsists from the time of the Government of India Act, 1935, and was not an innovation introduced by the Constitution of 1949. The Scheduled Castes Order of 1936 did not, however, exclude any part of the Sunri caste, but specified the whole of the Sunri caste as a Scheduled Caste in Part III of the Order, relating to Bengal. Even in the Scheduled Castes Order of 1950, as it was originally promulgated by S. R. O. 385, dated August 10, 1950, the entire Sunri caste was specified as a Scheduled Caste, in item No. 56 Part IX of that Order, relating to West Bengal. The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act (No. 63 of 1956) made comprehensive changes in the Scheduled Castes Order, 1950. This Act, which came into force on the 25th September, 1956, substituted inter alia, the entire Part IX relating to West Bengal, and item 56, relating to the Sunri caste, was substituted as item 53, as follows:
"Sunri excluding Saha".
25. For the first time, thus, in 1956, the Sahas, though socially forming a part of the Sunri caste, were truncated and excluded from the Scheduled Caste of "Sunri". The Act of 1956 was followed by the Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956 which made certain numerical and other changes relating to the contents of the Order of 1950, as it stood amended by the Act of 1956. No material change was introduced in item 53 as it had been introduced by the Act of 1956. But Part IX relating to West Bengal was renumbered as Part XIII and item 51 was renumbered as item 40. At the material time in the case before us, thus, the relevant item in the Order of 1950, as amended and modified subsequently, stood thus:
"40. Sunri excluding Saha".
26. Now, it is not disputed in this case that in his own nomination paper, the Respondent described himself as 'Saha' but nevertheless claimed to be a member of the 'Sunri caste'. If the words 'excluding Saha' be interpreted as excluding those persons who bear the surname 'Saha', there would be an end of the matter at once, because even though the Respondent might belong to the social caste of 'Sunri, he was excluded from the list of Scheduled Castes for the purposes of the Constitution. This apparently simple position has, however, been complicated by two circumstances :
(a) The confusion of both parties and their legal advisers in the proceedings below as to the real scope of the excluding portion of item 40 of the Order, as reproduced above.
(b) The attempt on behalf of the Respondent, before us, to snow that the words 'excluding Saha' referred to something deeper than the surname 'Saha'.
(a) The Petitioner appears to have misread the effect of the relevant item of the Scheduled Castes Order in assuming that there was a separate caste called 'Saha' caste which was excluded by the item and, hence, it was stated in para. 6(1) of the election petition that the Respondent was a member of the Saha caste and not of the Sunri caste which was a Scheduled Caste under the Order. This inaccuracy, however, is not material, since, upon a reading of para. 6, as a whole, it is clear that what the Petitioner meant was that the Respondent was a Saha and was, accordingly, excluded from the relevant item of the Order which was 'Sunri excluding Saha'. The Respondent also understood this to be the case of me petitioner and so he averred in para. 11 of the written statement that he belonged to "the Sunri caste excluding Saha". In this connection, we should refer to one statement in the written statement (para 11), to which we shall have to advert hereafter, namely, that the surname 'Saha' is a surname 'generally used' by all Sunris.
27. Upon these pleadings, the parties went to trial. The Petitioner (P.W. 1), in his deposition, stated that there were three sub-castes amongst the Sunris---Sunri, Saha and Sow and that the relevant item of the Scheduled Castes Order, as it stands after the amendment of 1956, has excluded the Saha sub-caste, so that the Respondent who is a member of the 'Saha-Sunri' caste has no claim to be a Scheduled Caste under the Constitution. A more definite stand, however, is taken by P.W. 2, Balaram Choudhury, who says that the Sunri caste is sub-divided into three sub-castes--Saha-Sunri, Sow-Sunri and Sunris proper and that while he himself belongs to the Sunri sub-caste, Respondent belongs to the Saha-Sunri sub-caste. He further states that there is no social intercourse between the Sunri sub-caste and the Saha sub-caste. One thing is patent from the deposition of this witness, namely, that the Sunri sub-caste has no surname of its own and that the witness who claims to belong to the Sunri sub-caste, goes by the surname 'Choudhury'.
28. R. W. 2, Shyamapada is the priest of the Respondent. He says that 'Saha is the general surname of all Sunris and that "I cannot say if the Sunris have any different surname or title". If this be correct, then P.W. 2 Balaram Choudhury cannot be a member of the Sunri caste, having the surname of 'Choudhury', but no suggestion to this effect was made to him. The truth comes out of R.W. 3, Jnan Mukul Saha, a relative of the Respondent, who admits that 'Saha' is not the only surname of members of the Sunri caste, but Sunris also go by the surnames of 'Choudhury', 'Mullik', 'Biswas' and 'Sadhukhan' and R.W. 4 adds other surnames of: Sunris such as 'Roy' and 'Mandal'. If that be so, it is evident that Sunris bearing the surname of 'Saha' form a group within the larger caste of Sunris. The case in the written statement that 'Saha' is the surname generally used by all Sunris thus breaks down. The evidence of R. W. 5 is of little worth inasmuch as he says that he is not interested to know about any other branch of the Sunri caste except the Sahas. The Respondent (R. W. 6) himself adds little to the written statement. He adheres to his case that he belongs to the Sunri caste and not the 'Saha caste' or the 'Saha-Sunri caste'.
29. When we come to the judgment of the learned Tribunal, it is clear that he has been misled by the pleadings and the evidence above, and influenced by an erroneous view as to the scope of item 40 of the Scheduled Castes Order. He starts (para. 7 of the judgment) with the assumption that there is a caste called 'Sunri excluding Saha and that the case of the Petitioner was "that the respondent is not a member of the Sunri caste excluding Saha whereas the respondent asserts that he belongs to the Sunri caste excluding Saha". In view of the above pleading, the learned Judge rejects as an innovation the case introduced by the Petitioner at the hearing that the Sunri caste was divided into three sub-castes, namely, Sunri, Saha and Sow and that it was the Saha sub-caste which had been excluded by the relevant item of the Scheduled Castes Order and that the Respondent belongs to that excluded sub-caste. It is true that there are statements in the plaint which construed strictly, might suggest that the Petitioner's case is that the Respondent belongs to a 'Saha caste.' which exists outside the fold of the Sunri caste. But it is clear from a reading of the election petition as a whole that the Petitioner's case was that the Respondent did not come within the ambit of the Entry in the Scheduled Castes Order because all Sahas, even though they might form part of the social caste of Sunri, were excluded by the Entry. That there was a group identified by the term 'Saha' within the wider caste of Sunri, is established by the evidence of the Respondent's witness, Jnan Mukul, to which we have referred already. In this state of affairs, it would not be reasonable to impute too strict a meaning to the words of the election petition, particularly because the subject was technical, and, the exclusion of the 'Sahas', as we shall presently see, was newly introduced.
30. Another fact on which, the learned Tribunal appears to have laid emphasis is the fact that though the Petitioner had contested the Respondent at the previous elections, he had never raised the objection that the Respondent did not come within the ambit of the relevant Entry in the Scheduled Castes Order, and also the fact that other persons bearing the surname 'Sahu' have been elected in the past and that at least one sitting M. P. is a 'Saha'. To this a common answer suggests itself at once. It has been stated earlier that it was on the 25th September, 1956, that the 'Sahas' were for the first time excluded from the protection of the Scheduled Castes Order. It was not, therefore, possible to take the objection founded on this exclusion at the time of the first General election and even for the second general election, the Act was promulgated at a time which was too late for its implications to be fully appreciated before the stage for raising objections to nomination is arrived. We can hardly overlook the fact that ever since 1936, the 'Sahas' had been included within the list of Scheduled Castes. This very fact explains not only the inaction on the part of the Petitioner at the previous election, if any, as well as his confusion in the present election. At any rate, there is nothing in this 'conduct' of the Petitioner as the learned Judge supposes (para 11); it does not constitute waiver, acquiescence or the like. The argument that the fact of another Saha sitting as member of Parliament as a representative of the Scheduled Castes goes to undermine the petitioner's case is equally fallacious.
31. Nor can we place any importance upon the fact, as the learned Judge has done (para 13), that in a sale certificate of 1939 (Ex. B), the caste of Dulal Chandra Saha, the brother of the respondent, was stated to be 'Sunri'. There has been, in our opinion, nothing wrong in that, for, the Respondent and his Saha relatives, undoubtedly all belong to the social caste of Sunris. The Scheduled Castes Order could not possibly, and has never professed, to remodel the social caste, but has simply excluded the Saha sub-caste from the list of Scheduled Castes maintained for "the purposes of the Constitution", i.e., for the purposes of election and the like. The social structure remains as before and the Sahas, so excluded by that Order, are still entitled to describe themselves as 'Sunris' by caste.
32. The learned Judge discredited the testimony offered by Exts. 1 and 2 which were relied upon by the petitioner. These are documents' executed in favour of the respondent and his brother. The first is a deed of gift executed by their mother and the second by a third party vendor. In the first, the caste of the respondents is described as 'Sau' and in the other one, it is described as 'Saha'. Learned Judge has accepted the statement of Respondent's brother that he did not attend carefully to the recital as to caste when these deeds were read out. He also holds that the deeds at most show that the respondent is a 'Sau' or 'Saha' by caste and not a 'Saha-Sunri' as contended by the Petitioner. In this connection, however, we cannot overlook the endorsement as to execution which took place at the residence of the respondent and Dulal admits that it took place in the presence of himself and the respondent. In this endorsement, the caste of the executant as well as her brother is stated to be 'Sunri'; it cannot be imagined that this description came out from the brain of the Sub-Registrar, and without any statement from the parties themselves. The cumulative effect of Exts. 1 and 2 is this that the respondents and his relatives bearing the surname of 'Saha' are members of the social caste of 'Sunri' but form a definite species of that genus and describe themselves by the surname 'Saha'. 'Sau' may possibly be a colloquial abbreviation of the word 'Saha' or it may have been sometimes loosely used in place of the latter.
33. The conclusion that the learned Tribunal draws from the evidence discussed above (para 15) is that "there is no evidence or reliable material to say that Saha is a sub-caste under Sunri". In coming to this conclusion, the learned Judge has also been influenced by his theory that the words 'excluding Saha' in the relevant item of the Scheduled Castes Order refers to a caste other than the 'Sunri' caste and not a group or sub-caste within the larger caste 'Sunri'. This interpretation of the item is patently erroneous. The words 'parts of or groups within' are wide enough to refer to any determinate part of a caste which may be referred to by surname or otherwise, and it is not necessary that such part must necessarily form a 'Sub-caste', if any technical meaning may be imputed to that term. It would be unmeaning to refer to Sahas in the relevant item if the Sahas formed a separate caste outside the pale of tie caste of Sunris. The word 'exclude' literally suggests that, but for the specific exclusion, Sahas would have come within the specification 'Sunri'. The learned Judge, in fact, has involved himself in an argument in a circle, and, as a result, he has misread the item of the Order as well as the evidence.
34. (b) We now come to the second part of the argument advanced on behalf of the respondent that the word 'Saha' in the relevant item of the Order refers to something deeper than the surname 'Saha'.
35. The earliest material relied upon on behalf of the respondent is the treatise on Tribes and Castes of Bengal, published by H. H. Risley, in 1891. The relevant heads of 'Saha' and 'Sunri' at pp. 215 and 275 of Vol. II of this book, however, plainly establish that Sahas form a sub-caste under the genus Sunri, though the surname 'Saha' may indiscriminately be used by members of other castes such as Napits (barbers), Telis (oil-pressers) and the like. With the latter we are not concerned in this case. But the contents of this book alone, demolish the conclusion made by the learned Tribunal (para 15) that:
"there is no evidence or reliable material to say that Saha is a sub-caste under Sunri".
36. The relevant extracts from the work are:
"Saha, Sahu, a title of the Desa Sub-caste of Gandhabaniks in Bengal; a title of Napits, Sonars, Telis, and Sunris. The latter invariably style themselves Sahas or Sauloks."
"Sunri, Saundila, Sundaka, Shaba, a large and widely-diffused caste, ...... whose original profession is believed to be the manufacture and sale of spirituous liquors. Many of its members have now, taken to mercantile pursuits, call themselves by the title Shaha, and disown all connexion with those who still follow the characteristic occupation of the caste. Their striving for social advancement has as yet not been entirely successful. .....
37. Admittedly, the Respondent is a member of the Sunri caste. He also bears the surname of 'Saha', Respondent's brother Dulal says that his father had a liquor shop and subsequently he started a cloth shop and later, he and his brother have been running a husking mill. All this broadly support the conclusion that the respondent's family belongs to the Saha sub-caste or group within the Sunri caste, and that the family has given up the liquor business and resorted to other callings.
38. Learned Advocate for the respondent next relies upon pp. 428 and 535 of Vol. V of the Census Report of 1931 to demonstrate that there is a caste called 'Saha' separate from 'Sunri'. But upon a reading of the explanatory note at 535, as a whole, it is abundantly clear that though members of several trading castes other than Sunri also use the surname 'Saha', there is a section of the Sunri caste who bear the surname Saha, and who being economically advanced, nave given up the original trade of liquor and have taken up other pursuits. The statement that they desire to dissociate themselves from the Sunri caste is not material in this context, because, subsequent to the publication of the Census Report of 1931, came the Scheduled Castes Order of 1936, when it became politically advantageous for identifying oneself with the Sunri caste. The mental atmosphere has, accordingly, changed and much importance cannot, therefore, be placed upon the fact that the respondent, though he bears the surname 'Saha' is anxious to introduce himself as Sunri by caste. It is not possible to reproduce in extenso the contents of pp. 535-6 of the Report, but we cannot omit to mention that:
"Both the words Saha and Sadhu are to be found as a title or surname among different trading classes in Bengal. Thus there are Saha and Sadhu families among the Gandhabanik, Sankhabanik, Tili, Tani and Shundi Castes.... It is worthy of note that the Shundis, at least those who aspire to higher social status, choose to be called Sahas by caste, but do not claim community with the Gandhahanik or Sankhabanik Sahas..... . "
39. It is clear that though the surname Saha may have been assumed by members of other trading castes like the Gandhabaniks, there are families amongst the Sunri caste who are economically advanced and form a definite group and whose only insignia are the surname 'Saha' and their dislike for the original occupation of distilling liquor.
40. On the Census of 1951, we have the Report of the Superintendent of Census Operations in West Bengal. It is curious to note that in the list of castes and sub-castes of the Hindus, as recorded in the Census of 1911, as reproduced at pp. 59 et seq. of this publication, there is no mention of any separate caste as 'Saha' and the only relevant item is No. 604 relating to 'Sunri'. The note on 'Sunri', at p. 76 is as follows:
"Previous to 1911, Sahas and Sunris were enumerated together. Now Sahas claim that the Sunris are altogether a different caste. There are, however, grounds to hold that many Saha families were originally of Sunri origin.
Original profession of the caste was manufacture and sale of spirituous liquor. Many now follow mereantile pursuits."
41. Let us now proceed to the Scheduled Castes Order, which must be read in the background of the foregoing materials. As stated by us earlier, in the Scheduled Castes Order issued under the Government of India Act, 1935, the entire Sunri caste was given protection. The Order issued under the Constitution continued that state of affairs, until 1956.
42. The exclusion of Sahas from the Scheduled Caste of Sunris, which was effected by the amendment of 1956 was recommended by the Backward Classes Commission, which was set up by the Government of India, in pursuance of the provisions of Article 340 of the Constitution, by Notification No. 70/53-Public, dated 29-1-53. This Commission, with Sri Kaka Kalelkar as the Chairman, submitted its report on March 30, 1955, & the Report was published by the Government of India in 1956 (H. D.
69. 1). At page 200 of Vol. II of this Report, it is to be seen that the Commission recommended a revision of the Scheduled Castes Order, 1950, which inter alia, was to be made by excluding the 'Sahas' from the item relating to Sunris. As to why this exclusion was made and who were being referred to by the Commission by the word 'Saha' in item 22 at page 200, ibid., the Report does not give any specific explanation. It was suggested by the learned Advocate for the Respondent that there was an Interim Report of the Commission which gave the reasons for this revision. An attempt was, accordingly, made to bring forth such Interim Report, if any, from the Government of India, but to no success. It is, however, patent that no such Interim Report was ever published by the Government. We also gave both parties the liberty to take steps for bringing before the Court any such Interim Report, out neither party succeeded. From the statement in para 1 of Ch. X of Vol. I of the Report (p. 154), it would appear that the Interim Report only contained "the revised lists of Scheduled Castes and Scheduled Tribes" and that this list was sent to the Government of India on December 20, 1954 and that any explanation behind the revision recommended by the Commission cannot reasonably be expected from the Interim Report referred. The revised list is to be found in Vol. II of the published Report, and Vol. I of this Report, as we shall presently see, explains the broad principles according to which the revision was recommended. In view of all this, we did not consider it worthwhile to protract the hearing before us any further by pursuing the Government of India for production of the unpublished Interim Report.
43. From pp. 2 and 154 of Vol. I of the Report of the Backward Classes Commission it appears that though the immediate question referred to the Commission was to "determine the criteria to be adopted in considering whether any sections of the people in the territory of India (in addition of the Scheduled Castes and Scheduled Tribes. . . .) should be treated as socially and educationally backward classes; and, in accordance with such criteria, prepare a list of such classes. .. ", the President of India was pleased also "to direct the Commission to examine the lists of Scheduled Castes and Scheduled Tribes already published under his Order and to suggest any revision of those lists, if on enquiry it was found that such a revision was necessary," With this latter end in view, the Commission drafted Part XXIII of its Questionnaire (vide p. 20 of Appendix II to the Report, Vol. I). Questions 174 and 179 of this Questionnaire explain themselves. These are:
"174. The main characteristics of Scheduled Castes is the social disability of untouchability. .
179. In your State, has any of the Scheduled Castes progressed to such extent that it has ceased to be untouchable as a caste and it is no longer necessary to keep its name in the list of Scheduled Castes?"
44. The criteria of 'backwardness', according to the Commission, are summarised at pp. 165-167 of Vol. I of the Report. From a reading of the above as a whole, it is clear that the Commission excluded from the list of Scheduled Castes any caste, group within or part of a caste, which had ceased to be untouchable, even though it was still considered to be 'backward according to the ciriteria formulated by the Commission, e.g., owing to inadequacy of representation of the group in Government service. If we now turn to pp. 130 and 200 of Vol. II of the Report that the Commission considered that the Sahas had ceased to be 'untouchable' and were, therefore, recommended to be excluded from the list of Scheduled Castes, though the Commission still recommended their retention in the wider list of 'Backward Glasses'. We are not to sit in judgment over this determination by the Commission.
45. What we are concerned with is that the Commission recommended the exclusion of me Sahas from the category of the Scheduled Caste of Sunris and so they were excluded from the relevant entry in the Scheduled Castes Order, by the amendment of 1936. It is also abundantly established by the cumulative weight of all the materials so far discussed by us that these Sahas, who were excluded, belonged to the social caste of Sunri, but that by social evolution, they have come to form a class apart, socially and economically more advanced than the rest or the Sunris, so that the Commission no longer considered them fit to be included in the Scheduled Castes Order, and that these Saha families, within the fold of the Sunri caste, distinguished themselves by their surname, whatever might be their other characteristics. The fact that members of other communities might also bear the surname 'Saha' is immaterial in the context of the case before us, simply because the relevant Entry in the Scheduled Castes Order refers to those Sahas who belong to the Sunri" caste.
46. In the result, we hold that the Respondent was not entitled to be returned as a member of a Scheduled Caste to a seat reserved for members of that caste and that, accordingly, his election must be declared to be void.
47. In his election petition, the Appellant has added the claim that upon the respondent's election being declared void, the Appellant himself should be declared to have been elected on the ground that he is a member of the Scheduled Caste Konai and that at the disputed election, he had polled the next highest number of votes (16,730 for the Respondent and 15,523 for the Appellant). This claim cannot, however, be allowed in view of the decision of the Supreme Court in the case of . In that case it has been held that as soon as the successful candidate is held to be disqualified, the next candidate cannot be automatically declared to have been elected, inasmuch as, under Clause (a) of Section 101 of the Representation of the People Act, 1951, the Petitioner can be declared to have been elected only if it is established that "the petitioner.... received a majority of the valid votes". The Supreme Court held that even though the election of the Respondent is eventually set aside, the votes cast in favour of the Respondent must be held to be valid votes for the purposes of Section 101, read with Rules 36(8) and 57 of the Rules made under the Act, unless, of course, it is shown that the voters who voted for the respondent, knew at the time of voting that the respondent was not eligible and, with this knowledge, they intended to throw away their votes by casting them in favour of an ineligible candidate. There being no such evidence on the record, the Appellant's claim to be declared elected cannot succeed.
48. In the result, the appeal is allowed in part. The election of the Respondent is declared void but the claim of the Appellant to be declared elected at the election held on February 18, 1962, at the Khargram Legislative Assembly Constituency, for the seat reserved for members of Scheduled Castes is dismissed. Parties will bear their own costs throughout.