Election Petition No. 6 of 1967

5th August, 1967.

Petitioner Counsel: C.S. Dharmadhikari, M.S. Chaudhari
Respondent Counsel: P.N. Karekar, R.B. Pendharkar

Cases Cited:
AIR 1954 Bom. 204.
1956 NLJ 512.
AIR 1953 Assam 193.
1899 AC 99.
AIR 1965 SC 1269.

JUDGMENT

JUDGMENT:- This is a petition under section 81 of the Representation of the People Act, 1951, challenging the election of respondent No. 1 Dina Narnaware as a member of the Maharashtra Legislative Assembly from the Constituency No. 140 i.e. Armori Scheduled Tribes Legislative Assembly

Constituency at the elections recently held in February 1967. The petitioner as well as the second respondent Raja Fatelalshah were also candidates for this election along with respondent No. 1 Dina. In this constitutency a seat is reserved for a member of Scheduled Tribes only. The first respondent filed his nomination paper, of which Ex. 25 is a true copy. Among other statements made in this nomination paper, respondent No. 1 Dina gave a declaration as follows:

"I further declare that I am a member of the Gond (Mana) caste and the same is the Scheduled Tribe in taluka Garchiroli in district Chanda and in the whole of Maharashtra State."

An objection was taken to the nomination of the first respondent by the petitioner before the Returning Officer as per Ex. 31. The objection was that respondent No. 1 declared that he belongs to Gond (Mana) community, that there is no mention in the Constitution (Scheduled Tribes) Order for Gadchiroli Taluk of any Scheduled Tribe like Gond (Mana), and therefore a Gond (Mana) cannot be a candidate for this constituency. This objection was overruled by the Returning Officer on the ground that Gond (Mana) is a tribe declared as Scheduled Tribe under Constitution (Scheduled Tribes) Order, 1950, Part VII-A-Maharashtra, and therefore the objection was held not to be tenable. Thereafter a poll was taken and the first respondent was declared to have been elected, the first respondent having secured 15707 valid votes as against the petitioner who polled 13601 votes and the second respondent who polled 10148 votes.

2. After the declaration of this result the petitioner Narayansingh Weakey has filed this election petition challenging that the election of the first respondent is void on the ground that the returned candidate was disqualified from contesting the election as he is not a member of the Scheduled Tribe as included in the Constitution (Scheduled Tribes) Order for Gadchiroli tahsil. The petitioner avers that the certificate given by the Taluka Magistrate to the first respondent only shows that respondent No. 1 belonged to Mana caste and not Gond (Mana) caste. The petitioner also alleges that respondent No. 1 is a permanent member of a society constituted for educational welfare of Kshatriya Mana (Badwaik) caste, that this Kshatriya Mana (Badwaik) caste is a sub-caste of Marathas or Kunbis and that members of this caste have no relationship with Gonds. The petitioner alleges that respondent No. 1 has taken advantage of use of the common word "Mana" which appears in the description of "Gond (Mana)" as one of the Scheduled Tribes and his own Kshatriya (Mana) community to which he belonged, and the declaration made by him that he is "Gond (Mana)" is false. It is alleged that even though respondent No. 1 obtained a certificate from the Taluka Magistrate that he belonged to Mana caste, respondent No. 1 described himself as Gond (Mana) in the nomination paper though in fact he is Kshatriya (Mana) Badwaik by caste, and thus secured acceptance of his nomination papers. According to the petitioner under the Constitution (Scheduled Tribes) Order, 1950, as amended from time to time and operative at the time of the last election, so far as Gadchiroli tahsil is concerned, a person belonging to Kshatriya (Mana) Badwaik caste has not been included as a Scheduled tribe and therefore the first respondent was not entitled to be a candidate for the seat reserved for a member of the Scheduled Tribe.

3. It may be mentioned that the petitioner in paragraph 18 has also alleged that the second respondent was not a member of the Scheduled Tribe. The second respondent claimed to be a Rajgond i.e. belonging to a sub-tribe of Gonds called Rajgonds. But the petitioner withdrew this allegation when he was examined on oath before me and has now accepted the position that respondent No. 2 was a member of the Scheduled Tribe. Thus, the tribe to which the respondent No. 2 belongs therefore is not in issue any longer. The petitioner has also claimed a declaration that he himself be declared to be elected on the footing that both respondents 1 and 2 who were the only contesting candidates at the last election were not members of the Scheduled Tribe. Inasmuch as the challenge to the capacity of respondent No. 2 to contest the seat reserved for a member of the Scheduled Tribe does not survive, the petitioner also does not want a declaration that he himself should be declared elected in case the election of the first respondent is declared void.

4. The returned candidate, respondent No. 1 Dina, resists the petition on several grounds. He has denied that he is a Kshatriya (Mana). He claims to be a member of the Scheduled Tribe, because, according to him, Mana community is one of the aboriginal races in Chanda district and duly listed as such in the Scheduled Tribe under the Constitution (Scheduled Tribes) Order. Respondent No. 1 disputes the allegation of the petitioner in paragraph 13 of his petition that his community is known as Kshatriya (Mana) Badwaik Community. According to respondent No. 1 he is associated with an association called Chandrapur Zilla Mana Samaj Shikshan Sahayyak Mandal. According to this respondent, there is only one caste or community as Manas in the Chanda district and the adjoining districts and there are no two castes such as Gond (Manas) and Kshatriya (Manas) or Kunbi (Manas). In paragraph 9 of his written statement respondent No. 1 alleges that the original entry in the Constitution (Scheduled Tribes) Order, 1950, as promulgated by the President soon after the commencement of the Constitution, item 12 in respect of Gond was described as Gond including Madia (Maria), Muria (Mudia). Mana community as such did not find place in that Order. Thereafter several communities including Manas raised considerable agitation that they were more ancient than Gonds and equally backward, and were entitled to be privileged as Scheduled Caste or Scheduled Tribe. The matter was examined carefully by the Government of India and thereafter the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, Central Act No. 63 of 1966, was passed and the Constitution (Scheduled Tribes) Order was amended by making additions to item 12 in respect of Gadchiroli and Sironcha tahsils among other areas, and Manas were included under this entry. Respondent No. 1 contends that by this amendment Manas and Rajgonds became recognised besides several others as Scheduled Tribes. Respondent No. 1 denied that he ever professed that he was Mana Kunbi or a Badwaik (Mana) and claims that all his ancestors were Manas born as Manas. He explains that in his nomination paper he declared himself to be a Gond (Mana) because the nomination paper had to be filled in conformity with the Constitution (Scheduled Tribes) Order under which Manas are included in Gonds. Respondent No. 1 admitted that the second respondent is a Rajgond and a member of the Scheduled Tribe. I have already mentioned that this question is no longer in issue in view of the statement made by the petitioner in respect of respondent No. 2. The second respondent also claims

that he has been recognised as a person belonging to Scheduled Tribe and that he had been elected to a seat reserved for a Scheduled Tribe for election as councillor to Zilla Parishad. He has given other instances where his children have been prosecuting courses of studies and obtained concessions allowed to members of the Scheduled Tribes. In short, respondent No. 1's defence is that he belongs to the community of Manas or tribe of Manas which is substantively a Scheduled Tribe and has been so included in the Constitution (Scheduled Tribes) Order, and therefore his election cannot be challenged on that ground.

5. At one of the early hearings the respondent was examined in Court under Order 10, Civil Procedure Code, and he made the following statement on 24-6-1967:

"I am respondent No. 1 Dina. I am 40 years of age. I belong to the Mana community. I claim that I belong to the Scheduled Tribe. I do not claim that I belong to the Gond Tribe. I do not claim that I belong to a sub-caste Called Mana of which the head caste is Gond. I do not claim that I am a Gond (Mana). I claim that I belong to a community called Mana amongst the Scheduled Tribes."

6. In view of the categorical statement made by respondent No. 1 the real issue that falls for consideration in this case is whether the respondent No. 1 was disqualified from filing a nomination paper for the Maharashtra Legislative Assembly from Constituency No. 140, called Armori Scheduled Tribe Maharashtra Legislative Assembly Constituency in Gadchiroli Taluka of Chanda district, because respondent No. 1 does not belong to the Scheduled Tribes within the meaning of the Constitution (Scheduled Tribes) Order, 1950. The other issues that have been framed are only different aspects of the same issue, namely, whether respondent No. 1 belongs to Kshatriya (Mana) community, or whether respondent No. 1 does not belong to the Scheduled Tribe because respondent No. 1 claims to belong only to Mana community. The fourth issue regarding the eligibility of the second respondent does not survive, it being admitted on all hands that respondent No. 2 is a member of the Scheduled Tribe.

7. Each side has filed documents and has examined a number of witnesses in support of the rival contentions. It will be necessary to consider now the oral evidence tendered by the parties in this case.

8. The petitioner has examined himself. He claims to be a Gond by caste and he has stated that respondent No. 1 Dina is a Mana by caste. According to the petitioner this Mana is a sub-division of the Kunbi caste, but there is a sub-caste of Manaas even among Gonds. According to the petitioner, however, respondent No. 1 Dina does not belong to the Mana sub-caste of the Gond caste and has nothing to do with the Gond caste. In view of the categorical statement made by respondent No. 1, it would appear that this is a common ground between the parties. The petitioner also stated that the customs of the Gond community are quite different from the customs and manners of Mana caste to which the respondent No. 1 belongs. As an example he has stated that among Gonds one of the questions to be asked is how many Gods (Dev) he recognises. The petitioner himself recognises six deities, so he is called six-deity Gond and others mere or less such as 7 or 5 Gods they are called 7-deity Gonds or 5-deity Gonds. There is no such belief or worship among the community to which respondent No. 1 belongs. Another distinguishing feature to which reference is made by this witness is about marriage custom. Among Gonds the bride goes to the house of the bride-groom

and generally the marriage ceremony takes place not in the pendal or house but outside in a field called Akhar. On the other hand, among Manas the marriage takes place at the bride's house and in a pendal or house. The Gonds have Gondi language as their language of conversation which is their mother-tongue, and Manas like respondent No. 1 do not speak Gondi language at all. The way of wearing of saris among Gonds is also different from that of Mana women i.e. Manas who are not Gonds. This witness was asked whether the objection he had taken to the nomination of respondent No. 1 was confined to the description, namely, that respondent No. 1 declared that he was a Gond (Mana) and that Gond (Mana) was not as such the description of any Scheduled Tribe. The petitioner admitted this position. In cross-examination the petitioner has stated that there is a separate community called Mana in Sironcha and Gadchiroli tahsils, who arc not within Gond community and they have nothing to do with Gonds, but he has also reiterated that the Manas who belong to Gond community are also at Nawargaon as well as at Palasgaon, but they being a wandering tribe, those at Palasgaon had left that village. The witness named one Dayaram Madavi as a person belonging to Gond (Mana) community. He also stated that there were Gond (Manas) at Janakpur, Bhuj and Brahmapuri taluk and also in Bhandara district in village Chirchadi and in many villages in Balaghat district. The criticism against the evidence of this witness is that even though he mentioned there being other Gond (Manas) i.e. Manas who are sub-tribes of Gond community, he has not examined any such person, and Dayaram who was summoned has not been examined. The effect of this omission will be considered a little later when considering the contention of the petitioner that there is a presumption that if a Gond (Mana) is a community included in the Constitution (Scheduled Tribes) Order, that community exists and the burden is not on the propounder of the proposition that there is such a community to prove it affirmatively.

9. It appears that the Sarpanch of Kadholi village where respondent No. 1 resides had issued a certificate regarding the caste of respondent No. 1 and in this certificate, of which Ex. 32 is a copy, the respondent No. 1 was described as belonging to Kshatriya (Badwaik) Mana caste, and further that he observes customs and manners of that caste. The Sarpanch of the village has also been examined by the petitioner, and he is Mr. Vishwanath Tukaram Akre (P.W. 2). Respondent No. 1 Dina is a resident of the same village and the Sarpanch who struck me as an intelligent mature witness in the witness-box stated that he knew respondent No. 1 and that he belongs to Kshatriya (Badwaik) Mana community. He also speaks of sub-castes amongst the Gond community and that Mana is one of the sub-castes of Gond community. According to Akre, the Kshatriya-Manas profess Hindu religion because they go to Pandharpur as place of pilgrimage to worship Vithoba which is the presiding deity of that place. They observe Satyanarayan Pooja and Shraddha on Sarvapitri Amavasya day, according to Maratha custom. The bride-groom goes to the house of the bride, there is Antarpat between them at the time of marriage, Brahmins recite Mangalshtakas, and the marriage is performed like caste Hindus. Generally a Brahmin is invited to officiate in marriages of Kshatriya (Manas). It is only if a Brahmin is not available that any other educated member is invited to depute at the function. The witness has also spoken about Mana women wearing saris like other communities such as Kunbis,

Kasars etc. The witness has consistently stated that generally bodice (choli) is not worn by Gond women whereas the Mana women wear Bodice (choli) like other Hindu community. Another practice spoken to by this witness is that a Mana bride puts a nose-ring called Bari or Mukhada in the marriage ceremony like other Hindu women such as Kunbis, and music like Sanai or dhol or bugle is the accompanying music for a marriage ceremony. He also spoke of the Manas, to which respondent No. 1 belongs, observing 10th and 13th day after death. The witness has also described the practices of marriages amongst Gonds where the music consists of only drum and stick. The bride is taken to the house of the bride-groom and the wedding generally takes place outside the village in a field called Akhar. There is no Antarpat or wearing of Mangalsutra by the bride, or throwing of sacred rice, and no Brahmin is invited. When the witness was asked as to what opportunity he had to observe the practices and customs amongst Gonds, his answer was that he had opportunity to observe these customs amongst Gonds in his village and also in the neighbourhood where he had opportunity to attend both marriages among Gond (Manas) and Gonds. In cross-examination the witness was asked to name other Gond (Manas) known to him, and he mentioned one Dayaram and one Shrawan of Nawargaon as Gond (Manas). He also mentioned that there were Gond (Manas) at Palasgaon, but that they being a wandering tribe had left that village. The witness himself belongs to the Teli community or caste and says that there are sub-eastes amongst Telis also. Not much cross-examination was directed against the statement of the witness about the various differences in the customs of the Manas and Gonds regarding their marriage practices, wearing of dress by women etc.

10. These were the only two witnesses examined by the petitioner. The other witnesses were given up. The respondent No. 1 has made a complaint that not a single witness has been examined by the petitioner who in fact claimed that he is a Gond (Mana), and at least one such, namely, Dayaram, who was present, was given up. As observed earlier, the effect of this omission will be considered in the appropriate context.

11. The respondent Dina examined himself. He claims as he did earlier, that he belongs to Mana caste and has made an unequivocal and categorical statement that he had no connection with Gonds. When he was asked about the declaration he made at the time of his nomination in Ex. 25 that he belonged to Gond (Mana) community, he explained by saying that he gave this declaration because under the Constitution (Scheduled Tribes) Order, as published in 1950, Mana community is included under the head "Gond". But he hastened to add that he is not a Gond and there is no such community as a sub-caste viz. Gond (Mana). He also denied that there is any such community as Kshatriya (Mana), but says that there is a Mana community but it is not a sub-caste or subdivision of any community. In fact, this is the principal plank in the defence of respondent No. 1, The witness was shown certain documents purporting to be issued on behalf of one Kshatriya (Mana) Samaj Shiskhan Sahayyak Mandal by the witness i.e. respondent No. 1. He has admitted that he is a Vice-President of the Chandrapur district Mana Samaj Shikshan Sahayyak Mandal, and in cross-examination he had to admit that this Mandal or institution was previously known as Kshatriya (Mana) Samaj Shikshan Sahayyak Mandal,

Chanda, for some years until the name was altered to its present name Mana Samaj Shikshan Sahayyak Mandal when it was registered under the Societies Registration Act. Ex. 36 is a copy of the notice of a meeting called for 23-7-1963 and that meeting was of a Kshatriya (Mana) Samaj Shikshan Sahayyak Mandal. There are some statements made by respondent No. 1 in the witness-box which have a bearing on the contentions raised by him and which may be noticed here. In paragraph 7 of his deposition the respondent No. 1 admitted as follows:

"I knew that unless I made a declaration that I belong to Gond (Mana) community, I was not eligible to be a candidate for a seat reserved for members of Scheduled Tribe.. I had obtained a certificate of which Ex. 29 is a true copy, from the Tahsildar to the effect that I belong to the Mana community which is a Scheduled tribe in Maharashtra. I had represented to the Tahsildar that I am a person belonging to Scheduled Tribe as a Mana but I did not tell him that I am a Gond (Mana). I knew that Mana has been included within Gond community as a sub-division among Gonds in the Constitution (Scheduled Tribes) Order. I gave a declaration so that it should conform with the provisions of the Constitution (Scheduled Tribes) Order......."

Respondent No. 1 has also admitted that he had collected some subscription for Shikshan Sahayyak Mandal when it was going under the name Kshatriya Mana Samaj Shikshan Sahayyak Mandal, and that he had also worked for the Mandal when it was going by that name. The witness has also admitted that customs and manners of persons belonging to his community are quite different from those belonging to Gond community. He has also admitted in paragraph 11 of his deposition that he knows that there are sub-divisions among Gond community and that Arak, Gowari, Rajgond, Bada Mali, Horia, Oza, Wanjari Halbi are some of the sub-divisions or sub-castes amongst the Gonds, and according to respondent No. 1 because Manas are included among Gonds in the Order he did not consider that a person belonging to Mana caste is a member of the Scheduled Tribe. He did not know that, as he stated, there is a sub-division of Manas amongst Gond community, and this is because he had not made any enquiry whether there are persons who belong to the sub-caste of Manas in the Gond community.

12. Shrawan Shrirame is the next witness examined by the respondent No. 1. The witness is a Matriculate and is serving as a senior accountant in the office of the Divisional Forest Officer at Chandrapur. He claims that he is a Mana by caste and that there is no sub-division in his caste. In fact, Shrirame is a Secretary of the Chandrapur Zilla Mana Samaj Shikshan Sahayyak Mandal. Through him respondent No. 1 filed a copy of the constitution of. that body. This witness can be considered a responsible member of this community of Mana. He has admitted that prior to the establishment of this institution there was ad-hoc body going by the name of Chandrapur Zilla Kshatriya Mana Samaj Shikshan Sahayyak Mandal, Chandrapur. Yet the witness stated that they are not Kshatriya Manas. The witness has explained the use of the appellation "Kshatriya" by saying that it was because of their martial tradition and it was because Manas had ruled the territory that they had chosen the appellation and that they had dropped it when the institution was registered in 1964. The Mandal or Association has been formed to encourage higher education in the community because for the time being the highest rank reached was of Patwaris and teachers in their community. They also run a boarding house for which they receive grants from the Government. The witness claims that he tours the district and that there is no sub-division as Gond (Mana)

among Gonds and they (Manas) have no connection with Kunbis nor do they inter-marry with Kunbis. In fact, he stated that Manas do not accept cooked food from Kunbis. In cross-examination the witness had to admit that for two years their association was going by the name of "Chandrapur Zilla Kshatriya Mana Samaj Shikshan Sahayyak Mandal" and receipt books bearing that name were printed, He was unable to say whether the appellation "Kshatriya" in the description of the institution previous to its registration was or was not correct. It is difficult to understand why the witness was at a loss to explain this appellation. He has also admitted that even after registration receipt books were being issued in the same old name "Kshatriya Mana Samaj Shikshan Sahayyak Mandal", but this he said was due to inadvertence. The witness denied that their customs and manners are similar to those of Kunbis or that they are called Mana Kunbis. The witness also states that there are no Manas among Gonds and he knows this as a fact, but he says he has not come across any sub-caste of Manas amongst Gonds in the area in which he works. As regards marriage customs he admits that among them the bridegroom goes to the house of the bride for marriage. The marriage ceremony consists of holding of Antarpat, throwing of Akshatas and recitation of Mangalashtakas. Similar ceremonies take place among Kunbis. He also admits that in his area the manner of wearing saris by women was similar to that among Kunbi women. The witness said that he did not know whether there were any sub-castes among Gonds, but changed later and says that there are sub-castes such as Madia, Rajgond etc., but that Mana was not a sub-caste among Gonds. To a Court question the witness admitted that he did not make any enquiries whether in fact there exists a sub-caste of Manas amongst Gonds, and that his statement that there was no such sub-caste of Mana as within the Gond community was founded on the fact that he did not know of such a sub-caste though he did not make any enquiry.

13. The third witness for the respondent No. 1 is Vishwanath Ghodmare, Revenue Inspector. He has issued the certificate Ex. 42 in favour of respondent No. 1 that he belongs to Mana community. The witness himself claimed that he belongs to Mana caste and that he was born in village Amirza in Gadchiroli tahsil. In the revenue records persons belonging to Mana caste have been mentioned as such and as he is required to visit number of villages, the witness claimed that during his tours he did not come across any caste such as Gond (Manas). The witness's knowledge about sub-castes among Gonds has been tested. He was asked whether there were any sub-castes amongst Gonds, and the witness stated that there were no sub-castes amongst Gonds. He also denied that his own community was called Kshatriya Manas or Kunbi Manas. Later on he changed and admitted that there were sub-castes among Gonds such as Rajgonds, Gayate Gonds, Pardhan Gonds, Maria Gonds, but denies that there were any Mana Gonds.

14. Respondent No. 1called his fourth witness, the Chief Executive Officer, Zilla Parishad, Chanda, to produce certain documents to show perhaps that respondent No. 1 was elected as a councillor of the Zilla Parishad from a constituency called "Kurkheda-Kadholi Electoral Division" in which a seat is reserved to a member of the Scheduled Tribe. I do not see how it was necessary to call this officer because that fact may not be much in dispute and

would have only a limited relevance. It is not suggested that on that occasion any dispute was raised as to the competence of respondent No. 1 to contest that seat; and if there was no such contest or issue raised, the mere fact that respondent No. 1 got himself elected representing that he was a member of the Scheduled Tribe would not be of much consequence when the question is required to be decided on the material on record here.

15. Vishwanath is the fifth witness of respondent No. 1. He is a teacher at Kadholi. In fact, he is the Head Master of a school at that place. He is a Gond by caste and he belongs to the sub-caste of Gayate-Gond amongst the Gonds. Respondent No. 1 got proved from him the fact that when respondent No. 1's daughter Anusuya was entered in school in 1957, her caste was shown as Mana. As it transpires, that fact is not seriously in dispute on either side i.e. the respondent No. 1 does belong to the caste called "Mana". But what is stated by this witness in cross-examination when questioned in Court has some relevance and bearing on the issue. He has admitted that there are many sub-castes amongst Gonds such as Rajgonds, Gayate Gonds, Madia Gonds, Korku Gonds, and also some others of which he has no personal knowledge. The witness admitted that he had no personal knowledge if there is a sub-caste of Gond (Manas) among the Gonds. The witness also admitted that Gayate Gonds, i.e. the sub-caste to which he belongs, have different customs and manners regarding marriage from the customs and manners of the community to which respondent No. 1 Dina belongs. He speaks of the marriage custom amongst them i.e. that the marriage takes place in the house of the bridegroom. But generally among Gonds who are backward the marriage takes place outside the house at a place called Akhar. He had to admit that in fact he had not made any enquiry whether there is a sub-caste as Mana amongst Gonds.

16. Trimbak Dhok is another Mana by caste who has been examined by respondent No. 1. According to Trimbak, there are no sub-castes in Mana caste and there is no connection between Manas and Kunbis, and he claims that Mana is an independent caste. He also claims that Gonds are a different community from Mana, but did not know of any sub-caste of Gonds called Gond (Mana). In cross-examination the witness candidly admitted that he had no personal. knowledge or information about the persona who belong to Gond community. He had no occasion to make any study of Gonds and did not know whether there is any sub-caste of Gonds, and he also admitted that there is a sub-caste of Madias, but he had not heard about it and he has no personal knowledge. In other words, this witness did not seem to have any information about the sub-caste of Mana among Gonds and whatever he said is not his personal information. The evidence of this witness has hardly contributed to throw any light on the controversy in the case.

17. R.W. 7 Krishna Kate is a Social Welfare Officer who was at Chanda. He was called perhaps to show that the Chanda District Mana Samaj received grants for their hostel from the Government and this grant was given under a scheme for assistance to backward students for their education. The witness stated that the recipients of such grants include students belonging to Scheduled Caste and Scheduled Tribe and the grant is admissible to students who belong to this community included in the list compiled by the Government. The

witness produced this list and that is given in a Circular No. CBC-1462/M, Sachivalaya, Bombay, dated 1st October 1962. In cross-examination, however, Mr. Krishna Kate stated that in the Circular to which he had made a reference Gond is enumerated as one of the Scheduled Tribes (12th) and that Mana is shown as sub-division or sub-tribe under the named tribe Gond. He further stated that the Government was giving concessions to Manas by way of assistance because Manas are treated as sub-castes of Gond community which is a Scheduled Tribe. The witness bases this statement on the communication received by him from the Chief Research Officer, Tribe Welfare Institute, Poona. That communication is filed as Ex. 50 and contains the following statement:

"Mana has been shown as a sub-tribe of Gonds in the list of Scheduled Tribes of Maharashtra State at Sr. No. 6. This tribal community is found in (1) Melghat tahsil of Amravati district, (2) Gadchiroli and Sironcha Tahsils of the Chanda district, (3) Kelapur, Wani and Yeotmal Tahsils of Yeotmal district. This community is entitled for the concessions available to Scheduled Tribes in Maharashtra State."

It may be mentioned that in the second paragraph of this communication the Chief Research Officer observed that in his opinion there is no independent caste like Mana in Chanda district, which is different from Gonds. But he has qualified that observation by saying that investigation will be made about this community and then a report will be sent to the Social Welfare Officer about that caste. The importance of this communication lies in the fact that assistance was given to the hostel run by this Mana Samaj Mandal because they were considered as a sub-caste of Gonds as included in the Scheduled Tribe under the Constitution (Scheduled Tribes) Order.

18. Tulshiram Dodke is the last witness examined by respondent No. 1. He speaks of an agitation in which he participated for getting some concessions for members of his community. Tulshiram himself says that he is a member of the Mana community in Chandrapur district, being resident of Mohadi in Brahmapuri tahsil. According to him they contacted the then Minister late Mr. Kannamwar for such concessions and their contention was that they were original residents of Chandrapur even prior to Gonds, that they were a large community and were denied any assistance from Government for the uplift of the members of that community. He says they took meetings and made representations and thereafter since 1956 their claim was recognised and Manas are now getting concessions from Government. It is in this sense apparently that respondent No. 1 was also claiming that Manas are a Scheduled Tribe. The witness had to admit that he had made no enquiry whether there are subdivisions or sub-castes amongst Gonds though he asserted that there is no sub-caste as Mana among Gonds. In the absence of any enquiry or any attempt, this assertion loses much of its value. He admits that Rajgonds are one of the sub-divisions of Gonds but he did not know any other sub-division amongst Gonds. The representation alleged to have been made has not been produced, but the witness admitted that the customs of marriages amongst them are not similar to those of Kunbis; though he had not attended a single marriage of Kunbis as he wants to claim. The witness admitted that Manas belonging to his community are to be found in Bhandara district, Nagpur district and Yeotmal district. There is no sub-caste like Badwaik Manas or Khad Manas among them. He has given certain surnames of Manas such as Dodke, Narnaware, Dhok, Choudhari, Mane-Gudhade, Shrirame, Gharat, Wagh,

Dadamal and Shende. He says theirs is the Marathi language and there is no difference in the language spoken by Manas and Kunbis. He also admits that there is a custom among them to give Rs. 9 and two Khandis of foodgrain as a bride price to the bridegroom. There is a practice amongst Manas at the time of marriage that the marriage takes place at the house of the bride. He also admits that there are Bhats who keep genealogy of the members of Mana caste and each family has a separate Bhat of its own such as Bhat for Dodke family, Bhat for Narnaware family or a Bhat for Dhok family.

19. This is all the evidence brought on record by both the parties.

20. On the basis of this evidence it was contended on behalf of respondent No. 1 that there was no evidence that there is any such community or caste or sub-caste of Mana as a sub-tribe of Gonds. The learned counsel for respondent No. 1 wanted to rely on his evidence where witnesses have denied that there is any sub-caste amongst Gonds as Gond (Mana). It is true that the assertion of the respondent No. 1 that there is no such sub-caste as Manas among Gonds, being a negative assertion it may not be possible to bring affirmative evidence of that fact, but when a witness comes forward and says that there is no Gond (Mana) because he did not make any enquiry or does not have personal knowledge it can hardly be construed as adequate proof of the fact that there is no Gond (Mana). On the other hand, the contention of the petitioner is that if on his construction of the entry and item on the Constitution (Scheduled Tribes) Order, 1950, as amended in 1956, all those castes mentioned in entry No. 12, which is in respect of Gonds are included in Gonds and are sub-tribes or sub-castes of Gonds, then a presumption arises that in this area to which this entry is applicable under the provisions of the Constitution (Scheduled Tribes) Order, there must be a sub-caste of Gond (Mana), and that the petitioner is entitled to such a presumption. If he is entitled to such a presumption, it is not necessary that affirmatively the petitioner must lead evidence to prove that there are Gond (Manas) and what is contended is that respondent No. 1 has failed to prove that there are no such Gond (Manas), i.e. Manas as a sub-tribe of Gond community, the burden of which lay naturally on respondent No. 1.

21. The dispute in this case has arisen as to the interpretation that is to be put and the manner in which the Constitution (Scheduled Tribes) Order, 1950, with regard to the relevant provisions is to be interpreted. The Constituent Assembly, when the framing of the Constitution was under consideration had to make provision for protection and concession facilities being provided to large sections of the population in this country which were in isolation, which are denied the benefits of education and were, as it were, left off from the general stream of the populace which had the benefit of advancement. The backwardness of particular castes or communities could no longer be allowed. The ideas of social justice which were enshrined in the fundamental and directive principles of the Constitution compelled the framers to make various provisions in the Articles of the Constitution to have permanent machinery for examination of the conditions of these classes and areas and to bring forth amelioration and widening opportunities to narrow the gap between the advanced communities and those who have been denied the fruits of education and culture for no fault of theirs. With this end in view provisions have been made in different parts of the Constitution. Article 342(1) of the Constitution enables the President in

the first instance to issue a public notification specifying the tribes or tribal communities or parts of or groups within the tribes or tribal communities which shall for the purposes of Constitution be deemed to be Scheduled Tribes in relation to the State or Union territory as the case may be. The consequent advantage of being included in a Scheduled Tribe would enable such persons and tribes and communities to avail of special advantages in the matter of education, Government assistance, concessions, reservation of seats in services and Legislatures and in several other ways to advance the pace of progress in their communities and castes.

22. In fact, Part XVI of the Constitution is devoted exclusively to special provisions relating to certain classes and it is in this part that Article 342 appears. Provision is made for reservation of seats to members of Scheduled Castes and Scheduled Tribes in the Lok-Sabha and State Legislatures though the duration of this reservation has been limited in the first instance. Similarly provision is made for claims of members of Scheduled Tribes and Scheduled Castes being taken into consideration in making appointments to services and posts in connection with the affairs of the State or the Union, special provision with respect to educational grants or benefit of Scheduled Caste and Scheduled Tribe has also been made. Under Article 338 a special officer is required to be appointed by the President whose duty as such officer is to investigate all matters relating to progress of all Scheduled Castes and Scheduled Tribes, and the Constitution enjoins the President at the expiry of 10 years from the commencement of the Constitution to appoint a commission to report on the welfare of Scheduled Tribes. In respect of some States it is required that a Minister should be specially appointed to be in charge of the affairs in connection with the Scheduled Tribes and Scheduled Castes. There is a special provision under Article 340 enabling the President to appoint by an order a commission to investigate the conditions of the socially and educationally backward classes within the territory of India, the difficulties which may be faced by them and to make recommendations for amelioration of their conditions. Under Article 341, the President is empowered to issue what is called a public notification specifying castes, races of tribes or parts of or groups within castes, races or tribes, which shall for the purposes of the Constitution be deemed to be Scheduled Caste, analogous to the provisions of Article 342. But it is pertinent to note that once the Presidential notification is issued, the power of the President to modify that notification is exhausted. Any further modification of the Presidential Order can be made thereafter only by Parliament making a law, under sub-Article (2) of Article 342, to include in or exclude from the list of Scheduled Tribes specified in the notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community. But the Order cannot be varied except by law so made.

23. The first Order was issued by the President in 1950 in respect of Scheduled Tribes and this order is called Constitution (Scheduled Tribes) Order, 1950. The Order is divided into several parts, each part making provision in respect of different areas or States within the Indian territory.

24. Thereafter the President appointed a commission on 29th January 1953 called the Backward Classes Commission and was asked to make a report according to the terms of reference constituting the Commission. The learned

counsel for respondent No. 1 wanted an opportunity to have the report of that Commission produced. Fortunately, it has been possible to secure a copy of that report from a local office. The Chairman of the Commission Mr. Kalekar submitted that report to the President in March 1955.

25. On receipt of the report it appears the Union Government introduced a bill, being Bill No. 8 of 1956, in the Lok Sabha, for enacting legislation called Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1956 (Act No. 53 of 1956). A reference to this Act has been made by respondent No. 1 in bis return.

26. The area with which we are concerned in this petition, namely, Gadchiroli tahsil of Chanda district, was a part of the then State of Madhya Pradesh. It is only after the States Reorganisation Act of 1956 that the 8 districts of Vidarbha became part of the Bilingual State of Bombay from 1-11-1956, and thereafter now form part of the State of Maharashtra under the Bombay Reorganisation Act, 1960. But these two latter Acts did not make any difference.

27. Under the original order promulgated by the President in 1950, Part IV makes provision regarding the Scheduled Tribes which are to be considered as such in different areas of Madhya Pradesh. It appears, under that Order there was a common list of 31 tribes indicated as Scheduled Tribes for the areas enumerated under Items 1 to 12, in that Order. Item 6 of that Order of Part IV referred to Sironcha and Gadchiroli tahsils of Chanda district in which all the 31 tribes indicated in that Part IV were to be treated as Scheduled Tribes. Serial No. 12 of this list of tribes was as follows:

"12. Gond [including Madia ("Maria") and Mudia ("Muria")".

28. The change effected by the Scheduled Castes and Scheduled Tribes (Amendment) Order, 1956, is much more extensive. Section 4 of the Amending Act provides that the Schedule to this Constitution (Scheduled Tribes) Order, 1950 is amended in the manner and to the extent specified in Schedule III of the Act. Thus, it is Schedule III of the Amending Act which has introduced the changes. It is necessary to remember that when this Act came into force and introduced changes in the Constitution (Scheduled Tribes) Order, 1950, applicable to Madhya Pradesh, Chanda district was still a part of Madhya Pradesh, and among other changes introduced in respect of Scheduled tribes in serial No. 12, and in place of original entry No. 12, which I have reproduced above, the substituted entry No. 12 was to be as follows:

"12. Gond, including-

Arakh or Arrakh, Agaria, Asur, Badi Maria or Bada Maria, Bhatola, Bhimma Bhuta, Koilabhuta or Koilabhuti, Bhar, Bisonhorn Maria, Chota Maria, Dandami Maria, Dhura or Dhurwa, Dhoba, Dhulia, Dorla, Gaiki, Gatta or Gatti, Gaita, Gond Gowari. Hill Maria, Kandra, Kalanga, Khatola Kaitar, Koya, Khirwar or Khirwara, Kucha Maria, Kuchaki Maria, Madia (Muria) Mana, Mannewer, Moghya or Mogia or Monghya, Mudia (Muria), Nagarchi, Nagwanshi, Ojha, Raj, Sonjhari Jhareka, Thatia or Thotya, Wade Maria or Vade Maria."

29. Later on, when the Bombay Reorganisation Act came to be passed by Parliament i.e. Act No. 11 of 1960, section 27 of that Act provides that the Constitution (Scheduled Tribes) Order, 1950, shall stand amended as directed in the VIII Schedule of that Act, and that amendment consisted in adding new

part as part VIIA for Maharashtra, and the fifth entry in that part now is in respect of Scheduled Tribes with respect to the Melghat tahsil of Amravati district, Gadchiroli and Sironcha tahsils of Chanda district, and Kelapur, Wani and Yeotmal tahsils of Yeotmal district. But so far as the enumeration of scheduled tribes is concerned, the entry at serial No. 12 does not appear to have been amended or altered and is reproduced verbatim as it was amended by Act No. 63 of 1966.

30. The position, therefore, that obtained on the date of the nomination of respondent No. 1 and other candidates was that a person who claimed to contest a seat as a member of the Scheduled Tribe from Gadchiroli tahsil of Chanda district had to satisfy the test of being a member of the Scheduled Tribes enumerated in entry at serial No. 5 and belonged to one of the several tribes included under that entry.

31. We may now consider the rival contentions of the petitioner and the first respondent that fall for consideration in this petition. According to the petitioner respondent No. 1 is a Mana by caste and further that he is a Kshatriya (Mana) akin to Kunbi and that he is not a Mana which is sub-tribe of Gonds. According to the petitioner, unless a person belongs to the sub-tribe of Manas under the Gond tribe, such a person cannot claim to belong to a Scheduled Tribe. The independent caste of Manas, says the petitioner, is not included as a substantive Scheduled Tribe in the Scheduled Tribes enumerated in serial No. 5, and therefore, the first respondent was not eligible to be so considered. In other words, it is the contention of the petitioner that unless respondent No. 1 shows or establishes that he belongs to the Mana sub-tribe of Gonds or that he is a Gond of the Mana sub-tribe, respondent No. 1 cannot claim that he is a member of the Scheduled Tribe merely because he is a Mana.

32. On the other hand, the contention of respondent No. 1 is that the enumeration of the various Scheduled Tribes in item 12 under serial No. 5, though included in the category of Gond, are as independent tribes scheduled as such and Mana is one of them. The argument is that the mention of Mana as a Scheduled Tribe having been included in Gonds does not make it, nor is it intended to be interpreted or taken as a sub-tribe of Gond, but it is an independent and substantive Scheduled Tribe. In other words, what is urged is that the very use of the word 'including' shows that even though a Mana may not be a Gond he has been so included for the purpose of enumeration by the Legislature and the entry must be interpreted as if showing that it includes tribes even though they are not sub-tribes or sub-castes of Gonds or the tribal community of Gonds. Considered in this sense, the respondent No. 1 claims that he is a Mana, that he belongs to the substantive tribes of Manas, that they are also aboriginals or a very old tribe, they are backward, they are in large numbers and their name came to be included as a result of agitation for such inclusion or concessions and reservations, and that Manas cannot be denied that status or that privilege merely because they are shown as included in Gonds. At the most it is the manner of drafting which has given rise to the interpretation sought by the petitioner, but on a true construction of the entry it is urged Manas must be considered as a Scheduled Tribe independently provided for in this list. Which of these contentions must prevail is a question I have to decide.

33. On his own showing and in view of the categorical statement made by the first respondent, it is clear that respondent No. 1 does not claim to be a Mana being a Gond (Mana) i.e. does not claim to belong to sub-tribe of Manas amongst the Gond tribe or tribal community of Gonds. Though he declared in the nomination paper that be was a Gond (Mana), the position now taken by respondent No. 1 in this Court is that he had to make such a declaration so that it could be in conformity with the entry in the Constitution (Scheduled Tribes) Order, and not because he was in fact a person belonging to the Mana sub-tribe in the tribal community of Gonds. In my opinion, this explanation, even if accepted as bona fide, implies an admission that the Mana tribe intended to be described and included in the Scheduled Tribe according to the Constitution (Scheduled Tribes) Order was a Mana sub-tribe under the head of Gonds i.e. a Mana tribe or a community which is a specie of which Gond would be the genus Be that as it may, the position vociferously taken, however, as argued on behalf of respondent No. 1 is that he is a member of a separately independent caste of Manas which has nothing to do with Gonds. There is evidence on both sides that the manners and customs of marriages, of worshipping, of wearing of dress by women amongst Manas and Gonds have nothing common or similar There is no doubt therefore that respondent No. 1 claims to be a Mana i.e. a member of an independent community of Mana and not as a sub-tribe or sub-division of Gonds. In support of his contention respondent No. 1 invited my attention to observations from Russell's book of Tribes and Castes in Central Provinces In Volume IV at pages 172 to 176 a detailed description is given of the Mana community. But in my opinion, the following observations at page 173 in Russell's book weaken the contention of respondent No. 1 that there is no such sub-tribe of Mana among Gonds. This is what Russell states at page 173:

"Some of the Manas say that they, as well as the Gowaris, are offshoots of the Gond tribe; and a local saying to the effect that 'the Gond, the Gowari and the Mana eat boiled juari or beans on leaf-plates' shows that they are associated together in the popular mind. Hislop states that the Ojhas or soothsayers and minstrels of the Gonds, have sub-division of Mana Ojhas, who lay claim to special sanctity refusing to take food from any other caste. The Gonds have a sub-division called Mannewar, and as war is only a Telugu suffix for the plural, the proper name Manne closely resembles Mana."

34. It is possible that there is an independent community of Manas as claimed by respondent No. 1 also. At page 174 Russell has observed as follows:

"Owing to their general adoption of Maratha customs, the Manas are now commonly regarded as a caste and not a forest tribe, and this view may be accepted. They have two sub-castes, the Badwaik Manas, or soldiers, and the Khad Manas, who live in the plains and are considered to be of impure descent. Badwaik or 'the Great Ones' is a titular term applied to a person carrying arms, and assumed by certain Rajputs and also by some of the lower castes. A third group of Manas are now amalgamated with the Kunbis as a regular sub-division of that caste, though they are regarded as somewhat lower than the others. They have also a number of exogamous septs of the usual titular and totemistic types, the few recognisable names being Marathi.....The social customs of the Manas are the same as those of the other lower Maratha castes, as described in the articles on Kunbi, Kohli and Mahar. A bride-price of Rs. 12-8 is usually paid, and if the bridegroom's father has the money, he takes it with him on going to arrange for the match."

At page 176:

"The Manas have Bhats or genealogists of their own caste, a separate one being appointed for each sect. The Bhat of any sect can only accept gifts from members of

that sept, though he may take food from any one of the caste. The Bhats are in the position of beggars, and the other Manas will not take food from them. Every man must have a Bhat for his family under penalty of being temporarily put out of caste."

This latter description of Manas fits in with the evidence of one of the witnesses examined by respondent No. 1 himself namely, Tulshiram, who admits the custom of giving a bride price and also each of their families having a separate Bhat. It is thus apparent that if we are to accept the contention of respondent No. 1 that Manas are a separate and independent caste, which I see no reason to doubt, it is equally true from what has been found by Russell that there must be a sub-caste of Manas amongst Gonds as well. Names of tribes and castes in this country do not uniformly or invariably suggest whether they are names of independent castes or sub-castes or sub-divisions of castes or tribes. For example, the Constitution (Scheduled Tribes) Order applicable to this region includes a sub-tribe of Gonds called "Khirwar" Gonds whereas only by slight variation in pronouncement we come across an independent Scheduled Tribe called "Khairwar". Similarly "Nagarchi" and "Nagwanshi" are shown under the head of Gonds as included in entry No. 12 in respect of this region, which, according to this petition, are sub-tribes, but they are also substantially independent tribe described as "Nagesia".

35. The learned counsel for respondent No. 1 also referred to the Settlement Report of the Chanda district for the year 1869. In Chapter III on population among aboriginals are included Gonds as of class I, then Manas as of class II, Pardhans of class III, Gowaris of class IVand so on. From this fact it was urged that Manas have been independent aboriginals and they have nothing to do with Gonds. Similarly, in Volume III of Russell's book of Castes and Tribes of Central Provinces, at page 302, a description is given of the Kalanga community, which is described as a cultivating caste in Chhatisgarh, numbering about 1800 in 1911. Reference was made to this entry in the Russell's book to show that even though in respect of Scheduled Tribes with reference to same districts of Madhya Pradesh, the Scheduled Tribes Order refers to Kalanga under the heading of Gond. Kalanga apparently was a separate and independent tribe. Reference was also made to the description regarding Gowari tribe at page 160 of Russell's book, Volume III. It may be mentioned that the reference here to the Russell's book is to 1916 Edition. Russell observes that Gowaris are herdsmen or grazier caste of Maratha country; corresponding to Ahirs or Gaolis. But Gowaris have three divisions: Gai Gowari, Inga Gowari, and Maria or Gond Gowari. The Gai or the cow Gowari are the highest and probably have more Gaoli blood in them. The Inga and Maria or Gond Gowaris are more directly derived from Gonds. Maria is a name given to a large section of Gond tribe in Chanda. But both the other sub-castes take cooked food from Gai-Gowaris and Gond Gowaris. The Inga sub-caste do not take cooked food from Gond, nor Gai Gowari from others. Gond-Gowaris have been treated as distinct caste and a separate article is given to them as they are held to be branch of the caste Gowaris. From this description of Gond-Gowari the learned counsel wanted to show that though Gowari is a head caste having three sub-divisions, the Gond-Gowaris are included in entry No. 12 amongst Gonds as a sub-tribe of Gond. I do not see how this entry helps respondent No. 1 in support of his contention. Probably, what is intended to be shown was that if Mana was intended to be included as sub-tribe

of Gond, the proper or appropriate description would be Gond (Mana) and not Mana. How it should be described would depend on the name by which it is generally known. There is ample evidence on record to show that Rajgonds are a recognised sub-tribe of Gonds. Similarly, Gaite Gond is also recognised as a sub-tribe of Gonds and respondent No. 1's witness No. 5 Vishwanath, who appeared to me to be an intelligent teacher and who is Matriculate, has stated that there are many sub-castes such as Rajgonds, Maria Gonds, Korku Gonds, but none of these sub-tribes enumerated under entry No. 12 are pre-fixed by the word "Gond". To me what appears to be the case is that Gond-Gowari is a distinct sub-tribe amongst Gonds, and the mere fact that the Gond-Gowari are described as sub-tribe of Gonds, need not be material or relevant in finding whether the use of the word "Mana" shows that Mana is a sub-tribe of Gond.

36. The learned counsel for respondent No. 1 also referred to the information about the tribe of Arakh, given by Russell in Volume II of his book at pages 40 to 42. Now, Arakh is included as one of the sub-tribes under the head-tribe Gond in item 12. Russell observes that Arakh is a small caste of cultivators and labourers found principally in the Chanda district of Berar. The learned counsel possibly wanted to show from this description at page 40 that Arakh was an independent tribe. But on the very next page i.e. page 41 Russell observed as follows:

"In the Chanda District, however, the Arakhs are closely connected with the Gond tribe, as is evident from their system of exogamy. Thus they say that they are divided into the Matia, Tekam, Tesli, Godam, Madai, Sayam, and Chorliu septs worshipping respectively three, four, five, six, seven, eight and twelve Gods; and persons who worship the same number of Gods cannot marry with one another. This system of divisions according to the different number of Gods worshiped is found in the Central Provinces only among the Gonds and one or two other tribes like the Baigas, who have adopted it from them, and as some of the names given above are also Gondi words, no doubt need be entertained that the Arakhs of Chanda are largely of Gond descent. They are probably, in fact, the off-spring of irregular connections between the Gonds and Pasis, who, being both frequenters of the forests, would naturally come much into contact with each other."

This passage can hardly leave any doubt that the inclusion of Arakh as a sub-tribe of Gond was based on adequate data or material and cannot possibly sustain the contention that Arakhs are an independent tribe.

37. The learned counsel referred to the information regarding Dhoba tribe at page 515 of the second Volume of Russell's book. Obviously, the information is confined to the caste found in Mandla district. Russell has observed that apparently this Dhoba caste was an off-shoot of one of the primitive tribes. Now Dhoba is one of the sub-tribes included under item 12 amongst Gonds. On the basis of information in Russell's book the learned counsel contended that Dhoba was an example of a tribe which was independent and yet has included under the item of Gonds though there is nothing common between the two. I am not sure whether this conclusion drawn by the learned counsel is correct. That they must have some connection with the Gonds is clear because at page 515 Russell has observed that Dhobas are priests and also cultivators. It may be that a similar community of Dhobas may have migrated to another region and have established their status as an independent caste and may have left no trace of their tribal origin. But what we are concerned with here is the sub-tribe of Dhobas in Gadchiroli tahsil of Chanda district, and if it has been found that in this area Dhobas are sub-tribe of Gonds, their status and position in Mandla district is hardly decisive on the point.

38. The learned counsel for respondent No. 1 also referred to the earlier Gazetteer for Chanda district published in 1909. At page 108, in paragraph 96, the Gazetteer gives information about Mana caste to the following effect:

"The Mana caste numbers about 27,000 or 4 per cent. of the population and owns 14 villages. There is a legend that previous to the rise of the Gond kingdom they were the dominant race in the District and ruled from the fortresses of Manikgarh and Surajgarh. Thakur Deo on the summit of Surjagarh is still their tutelary deity. They seem however to have lost this tradition among themselves and only remember that they once were soldiers, and the word is one of their objects of worship. The true origin of the caste has not been discovered but they are supposed to be an off-shoot of the Gonds who have greatly raised their status by becoming cultivators and adopting the whole of the Hindu pantheon......."

Obviously, this was the information available to the compilers of the Gazetteers in 1909. Much more information seems to have been gathered by investigators like Russell whose description about this community I have already referred from Volume IV of his book. What seems to be obvious to me from all this ancient literature is that there is no doubt that Manas form an independent community who have emancipated themselves, were once of martial traditions and might have been obliterated or put into background by the conquest of Gond Kings. But I am not called upon in this case to investigate into the cultural and martial history of that caste. As I observed before, Manas had an entirely independent status as tribe and their present manners and customs are more in line with other communities from caste Hindus, and respondent No. 1 belongs to such an advanced caste. The question that I have to decide is whether it is that caste of Manas or tribe of Manas which is intended to be included in entry No. 12 under the heading Gonds. The fact that there is an independent community calling themselves Mana, is not determinative of the question whether there was no other community of Manas who are a sub-tribe of the tribal community of Gonds. There is evidence on record of witnesses who show that there are Gond (Manas) i.e. Manas who are sub-tribe of Gonds, and I am not prepared to hold that merely because respondent No. 1 belongs to a community which also calls itself a Mana, it is that community and that community alone which must be held to exist, and therefore reference in entry No. 12 to Mana has reference to the community to which respondent No. 1 belongs.

39. The whole case of respondent No. 1 resolves into one contention. As a matter of construction he wants it to be held that the use of the word 'including' in entry No. 12 after the word 'Gond' must be interpreted as meaning that even though the tribes enumerated thereafter must be sub-tribes of Gond community or Gond tribe, there may be independent communities or tribes i.e. they are presumed to be independent by the use of the word 'including'. In other words, what is seriously contended is that the use of the word 'including' shows that even though a tribe which is included may not be a Gond tribe or a part or sub-tribe of Gond community, the Legislature could enumerate such tribe by use of the word 'including' just to show that use of that word was necessarily for extending the meaning of Gonds and not restricting it. In this connection reliance was placed on a large number of cases where the word 'including' has been considered. These cases are: A.C. Patel v. Vishwanath1, Sujaniram v. Lal Shyama Shah2, Chandra Mohan v. Union of India3 and Dilworth v. Commissioner of Stamps4.

40. It is true that whenever the Legislature uses the word 'including' the intention is to extend the meaning of the word after which the word "including" is used and not to restrict. But I do not see how from that rule of construction it can be urged reasonably that by use of the word 'including' after the word 'Gond' in entry No. 12 the Legislature intended to include tribes which have nothing to do with Gonds and are independent tribes. I am unable to accept this construction urged on behalf of the first respondent. It is irrational and will not stand the test if it is applied to other entries. It is not contended that the other entries under Entry No. 12, such as Arakh, Raj Ojha, Maria, Chota Maria, Gatta, Gatti, Gaita, Hill Maria, are entries relating to independent tribes. They are admittedly entries enumerating sub-tribes of the Gond community. No sound reason, therefore, is furnished why only in respect of Mana sub-tribe it should be held that it is an independent caste or tribe which is intended to be indicated though it is included in item 12 under 'Gond' Tribe.

41. To test the logic of this contention the learned counsel was asked whether by use of the word 'including' against other entries it can be said that 'Andh' including Mana, 'Bhil' including Mana, 'Dhanwar' including Mana would have served the purpose which the Legislature intended to serve. The learned counsel was unable to accept that this would be so. It is thus clear that when the Legislature intended to add some tribes as substantive tribes or independent tribes, the method followed was not to include them in an existing entry but to indicate them separately as independent tribe. One such example is entry No. 16 regarding Khairwar. There was no scheduled tribe as Khairwar in the Presidential Order when it was first promulgated and this tribe has come to be included for the first time in 1956. If Manas were intended to be included as an independent tribe or independent scheduled tribe, the more obvious and rational method of achieving it would be to add it as a substantive entry in the list of Scheduled Tribes under item 5. But this has not been in fact done. Numerous sub-tribes which are considered parts of this tribal community of Gonds have been added by the amending legislation; whereas previously entry No. 12 was a very short entry, namely, "Gond (including Maria and Mudia)" or their synonyms as Madia and Muria. Now, the entry No. 12 under "Gond" includes as many as 40 sub-tribes. Surely, it could hardly have been intended by the Legislature that even though many of the sub-tribes were independent tribes they could be properly included under one heading of Gond, without intending that they should be treated as sub-tribes of Gonds. I am unable to accept this construction regarding entry, of "Mana" made by the Legislature to hold that the Legislature has intended to include Mana as an independent tribe having nothing to do with Gonds, or that it is not included under entry No. 12 because it is a sub-tribe of Gond.

42. Reference was made by both sides to a recent decision of the Supreme Court reported in Basavalingappa v. Munichinnappa1. Apparently respondent No. 1 wanted to seek aid from this decision in support of his proposition that it was open to him to show that there was no such sub-tribe of Mana among Gonds, and therefore the entry of 'Mana' under the title Gond should be interpreted as an entry in respect of an independent tribe or caste. In this context respondent No. 1 also made a complaint against the alleged omission or failure of the petitioner to prove that there was such a sub-tribe of Manas amongst Gonds. In my opinion, oral evidence has been Jed of the existence of persons belonging to Mana sub-tribe of Gonds though no such person actually belonging to Mana sub-tribe of Gonds has been examined. But apart from that, in my opinion, the petitioner was entitled to rely on the presumption arising from the fact if his interpretation is correct that Mana is included as a sub-tribe within the Gond community which is a large tribal community and therefore when the Legislature included the name of Mana under the tribe of Gonds as a sub-tribe, there must be in existence such a sub-tribe of Mana belonging to the tribal community of Gonds. In paragraph 7 their Lordships observed as follows in the above case:

"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."

The question in that case was whether there was in fact any such caste as Bhovi caste among the Scheduled Castes and these observations are relevant in that context. In the case before me one is not left in doubt at all as to the circumstances in which the Mana sub-tribe has been included under Gonds in entry No. 12.

43. I have already referred to the Backward Classes Commission appointed by the Union in 1953, whose report was duly considered by the Government as a basis for introducing the Bill No. 8 of 1956 for including in and excluding from Scheduled tribes a certain class or tribes and matters connected therewith. The Bill is published in Gazette Extraordinary, Government of India, dated April 6, 1956, and in the Statement of Objects and Reasons it is stated that "the Backward Classes Commission have examined existing lists of Scheduled Castes and Scheduled Tribes and have recommended certain additions and those recommendations have been examined in consultation with the State Governments, the Commissioner for Scheduled Castes and Scheduled Tribes, and the Deputy Registrar, General, and the Government have taken decisions as regards the additions to and deletions from the existing lists of Scheduled Castes and Scheduled Tribes. As amendments to the existing lists can be made only by Parliamentary legislation, the present Bill has been presented for the purpose". The learned counsel for respondent No. 1 himself wanted me to adjourn the case for procuring report of this Backward Classes Commission. Fortunately, a copy of that report was available at the hearing through the courtesy of the Library of Anthropological Survey of India, Nagpur, and it was shown to the counsel. This report gives from page 226 onwards the list of Scheduled Tribes published under Constitution (Scheduled Tribes) Order, 1950, together with the recommendations suggested by the Commission. Column 6 is in respect of communities recommended for inclusion and in this column at serial No. 12 the Commission recommends sub-tribes of Gonds to be added under Gond, and Mana is designated as one of such sub-tribes. I do not therefore think that there is any doubt left now as to the circumstances in which Mana came to be included as a sub-tribe of Gond by an addition in the list of Scheduled Tribes under the main entry regarding Gonds at serial No. 12. Once it is found that Mana is included as a sub-tribe of Gond, the question whether there does in fact exist any such person claiming to belong to sub-tribe

of Mana as a sub-tribe of Gond is academic. In my opinion, a presumption arises that there is such a community for whose benefit its name has been included as a scheduled tribe, but only as a sub-tribe of Gonds. In view of this position, I do not think the petitioner was guilty of any laches if he did not examine any witnesses claiming that they belonged to the community of Mana as a scheduled sub-tribe of Gonds. By the inclusion of this tribe under the main heading of Gonds a presumption would be available to the petitioner.

44. Moreover, there is hardly any evidence worth the name adduced by the respondent No. 1 in this case to show that in fact no such sub-tribe of Mana within the tribal community of Gonds in fact exists. It would appear from the same decision of their Lordships of the Supreme Court that ordinarily such evidence will not be permissible. That would amount to a modification of the Order; if the interpretation which I have put on the Order is correct and that interpretation is that the Order includes Mana only as a sub-tribe of Gond and not as an independent tribe.

45. The difficulty has arisen in the way of accepting respondent No. 1's contention because respondent No. 1 does not admit that he has anything to do with the community of Gonds and asserts that his is an independent tribe which he says has been included as an independent scheduled tribe. In my opinion, what is included as a scheduled tribe of Manas is that tribe of Manas which is a sub-tribe within the Gond community. It must have therefore some connection with the Gond community in manners, customs, habits, worship, or affinity. In other words, unless there is some kind of nexus between Gond and other communities or sub-tribes enumerated under that head, the Legislature could not have intended to include a community which has nothing to do with the tribal community of Gond under which it is grouped.

46. In this connection the content of the legislative power in exercise of which the Parliament has made this legislation is relevant to be examined. Article 342(2) of the Constitution is as follows:

"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."

47. It is obvious that the modification has to receive sanctity and can only be altered by the highest legislative body in the nation by applying its mind to it and making changes if they are required to be made. Every modification, therefore, postulates an enquiry, an examination, and an opportunity to the people concerned to make representations as to whether or not a particular community can be properly included as a Scheduled Tribe so that it may have benefits. Respondent No. 1 has made a vague suggestion that his community made some representation for their own claims. There is no definite or even credible evidence before me suggesting that it was on account of their representation that the independent community of Manas came to be included in the Schedule. As it is now claimed, if the community to which respondent No. 1 belongs is an independent community and of a fairly superior and advanced civilization and culture, it is hardly likely that the recommendation would have been to include their community as a sub-tribe of Gonds. If it is true that members of the community to which respondent No. 1 belongs was vigilant, they could not have failed to notice that in the notification published they are being

grouped as a part of Gond community under one item along with many others which are sub-castes or sub-divisions of Gonds, such as Gaita Gonds, Maria Gonds and others. Though there is no estoppel that is suggested, this background is necessary to be noticed to show that the claim that respondent No. 1's community made a representation and on the account the Constitution (Scheduled Tribes) Order came to be amended, is too far-fetched to be accepted. If that was a fact, the actual representation, which must have been in writing, could have been placed before the Court which would have furnished some basis in support of the contention. Even assuming that there was any such suggestion, the fact that the community was not included as an independent community is a complete answer to the claim that they are an independent community entitled to be included as a Scheduled Tribe.

48. As to how tribes or communities come to be included or described has been commented in a recent report of the advisory committee on the Revision of the list of Scheduled Castes and Scheduled Tribes. But there is no doubt of one fact, namely, that tribes which are entitled to an independent recognisation because of some kind of distinctiveness of culture or stage of development or education, and yet needed some protection, have been separately listed. The learned counsel for respondent No. 1 was unable to show why, if Manas were not a sub-tribe of Gond, they came to be included under entry No. 12 along with 40 other sub-tribes. There was also no answer to the question why the Legislature did not follow the procedure which it did in adding the Scheduled Tribe of Khairwar as an independent tribe (No. 16), and yet preferred to include the Mana tribe under the tribal community of Gonds in serial No. 12 without independent enumeration. Thus, even as a matter of construction of the entry it must be held that the Legislature intended by the inclusion of Mana under the heading of Gond in serial No. 12 as a sub-tribe of Gond community and not as an independent tribe. Once it is shown that only that Mana community, which is sub-tribe of Gond community, is included in the list of Scheduled Tribes, respondent No. 1's claim must stand negatived. Respondent No. 1 does not claim to belong to a community which is sub-tribe of Gonds. In fact, respondent No. 1 was very emphatic and so were his witnesses in saying that neither in language, nor in their manners and customs in marriages, nor in the dress of their women, nor belief of in worship of God, do they have any similarity or affinity with the Gonds.

49. It is also clear that there is not much scope for any enquiry whether a particular entry which prima facie is made as a sub-tribe or sub-division of the head tribe under which it is enumerated, is in fact an independent tribe. From the evidence before me it is clear that there is a large section of the Mana community which is fairly advanced in culture, education, habits, and far more akin to other communities of Hindus like Kunbis and Marathas. They are spread in large numbers in Chanda, Bhanhara and Nagpur districts as stated by one witness. If it was intended that it is that caste of Manas to which respondent No. 1 claims to belong which should be included as a scheduled tribe, as one would ordinarily expect, this tribe's existence in numbers in Bhandara district or in Nagpur district would not have been lost sight of and the list would also have been extended to these districts in respect of this community, though to a certain extent the extension of the list to a particular area and not to any other area may have an element of arbitrariness. It is unlikely that if

the Mana community to which respondent No. 1 belongs is found in large numbers in other areas in the State, the Legislature would have failed to take notice of them and provide for their protection if it was intended that, that community should receive protection under the Constitution (Scheduled Tribes) Order. What seems to me is that it is not the Mana community to which respondent No. 1 belongs which was intended to be benefited by inclusion in the Constitution (Scheduled Tribes) Order, but it is a very small community who are sub-tribe of Gond community which is intended to be protected, and therefore those Manas are included under the tribal community of Gonds in entry No. 12.

50. In this context it would be interesting to note that with respect to several districts or portions of districts in the State of Madhya Pradesh as it now exists after the reorganisation, Manas under the Gond tribal community i.e. Mana sub-division of the Gond community has been included as a Scheduled Tribe in as many as nine districts of Madhya Pradesh where apparently they must be found in large numbers. But so far as Maharashtra is concerned, Mana as a sub-tribe of Gond tribal community is a Scheduled Tribe only in respect of six districts of Vidarbha Region i.e. in Melghat taluk of Amravati district, in Gadchiroli and Sironcha Tahsils of Chanda district, and in Kelapur, Wani and Yeotmal tahsils of Yeotmal district. The restriction to these talukas also suggests that the community which is intended to be protected was a tribal community i.e. those belonging to the Mana sub-tribe under the Gond tribal community. The legislative power was required to be exercised by Parliament with advertence to Article 342(2) of the Constitution and, as I have pointed out above, any tribe or tribal community substantially or part of or group within any tribe or tribal community could be included in the Order. When this power is being exercised by this Legislature, it is difficult to accept that only in respect of tribal community of Gonds the Legislature included under that head other independent tribes which had nothing to do, according to respondent No. 1, with the Gonds. One principle of inclusion that it to be spelt out of the legislative provision is that a part of or group within any tribe or tribal community can with propriety be included in that tribe or tribal community. It is thus that within the tribal community of Gond come to be included as may as 40 sub-tribes, and it is not possible to single out only the Mana sub-tribe as desired by respondent No. 1, and hold that it is an independent tribe having nothing to do with Gond which was intended to be covered by 'inclusion' by the Legislature.

51. In my opinion, it would be a legitimate mode of construction of this entry No. 12 to hold that when a thing is said to be included in another, both things have something in common though there may be a variation in detail. On the other hand, the contention of respondent No. 1 is that wholly dissimilar, if not opposite, things can be brought together, or clubbed together, or grouped together in one group by use of the word 'including', suggesting that even though it is not ordinarily included in the group it is deliberately included in that group. In my opinion, such a construction is too artificial and is not warranted by the manner in which the list has been modified by the Parliament and Legislature. The word 'including' necessarily postulates an extension of the main idea. Here the main idea is the Gond community and the other

communities or tribes which are intended to be included come under the same genus though they may be of different species. If this interpretation is correct, it must be held that respondent No. 1 has failed to show that he belongs to a sub-tribe of Mana which is a part of or is included in the Gond community. On his own showing he belongs to an altogether different tribe. He does not even say that it is a sub-caste of Gond community. Other evidence shows that it is an advanced community. If it is so, it is obvious that the community to which respondent No. 1 belongs is not intended to be covered by the entry in serial No. 12 in the group of Manas.

52. I have therefore, come to the conclusion that respondent No. 1 was not eligible to be a candidate for a seat reserved for a member of the Scheduled Tribe from 140 Armori Scheduled Tribes Maharashtra Legislative Assembly Constituency, in which the seat was reserved only for a member of the Scheduled Tribe. As respondent No. 1 did not belong to a Scheduled Tribe within the meaning of the Constitution (Scheduled Tribes) Order, the election of respondent No. 1 who is a returned candidate, is void. I find accordingly. This petition is allowed and the election of respondent No. 1 Dina Narnaware is set aside as it is void.

53. Though the petitioner had asked that he should be elected on the footing that respondent No. 2 was also not a member of the Scheduled Tribe, that contention has been given up by the petitioner at the evidence stage. There is no question, therefore, of giving any declaration to the petitioner himself. There will have to be a fresh election in this connection if this decision stands.

54. The petition succeeds. The petitioner will be entitled to his costs. I direct that the counsel's fee shall be paid at Rs. 250 for the hearing of 18-4-67, and at the rate of Rs. 400 per hearing for the hearings of 13-6-1967, 24-6-1967, 28-6-1967, 30-6-1967, 2-8-1967, 3-8-1967, 4-8-67 and 5-8-1967. The petitioner will also be entitled to other costs.

55. I further direct that respondent No. 2 will be entitled to half the costs but the counsel's fee in his case shall be Rs. 250 for the hearings of 13-6-1967, 24-6-1967 and 28-6-1967 only. These costs shall be paid by respondent No. 1. Let a Bill of costs be drawn accordingly. The security deposit of the petitioner shall be returned to him after deducting expenses, if any to which he shall be liable.

Petition allowed; election of respondent No. 1 set aside.