1966 (5) TMI 67
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....ed. Sudhir then filed a petition challenging the validity of Abhoy Pada's election on various grounds. At the hearing of the petition by the Election Tribunal, however, he challenged the election only on the ground that Abhoy Pada was a member of the Saha caste and not a member of a Scheduled Caste. The Election Tribunal rejected this contention and dismissed the petition. Sudhir then appealed to the High Court at Calcutta which reversed the decision of the Tribunal and declared the election of Abhoy Pada invalid and set it aside on the ground that he did not belong to a Scheduled Caste. In his petition Sudhir had further claimed that he should be declared elected in the place of the appellant if the latter's election was found to be invalid. This prayer, however, was rejected by the High Court. These two appeals are from the judgment of the High Court. Appeal No. 931 of 1965 is by Abhoy Pada. He challenges the validity of the order of the High Court setting aside his election. Appeal No. 1149 of 1965 is by Sudhir and he challenges the validity of the order of the High Court rejecting his prayer to be declared elected. We shall first deal with Appeal No. 931 of 1965 filed ....
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....llant belonged to the Saha caste group within the Sunri caste group and did not, therefore, belong to the Schedule Caste specified in item 40 as he claimed. The Tribunal rejected the respondent's case that the Sunri caste was divided into certain groups of which the Sahas formed one. It came to the conclusion that the Sahas originally belonged to the Sunri caste but for a long time past they had formed themselves into a different caste which had no connection with the Sunris. It is not very clear whether the Tribunal thought that the Sahas were originally a smaller caste group within the Sunri caste group or were only distinguished from the other Sunris by their surname. We are, however, inclined to think that the Tribunal thought that the Sahas were originally a smaller caste group within the Sunri caste because it rejected a contention advanced by the respondent that item 40 excluded from Sunirs those who bore the surname Saha observing that the names given in the schedule to the Order all referred to castes, subcaliber or groups. It found that the evidence clearly established that the appellant belonged to the Sunri caste-a fact which appears to have been admitted by the re....
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....hin the fold of Sunri caste, distinguished themselves by their surname, whatever might be their other characteristics" and have come to form a class apart from the rest of the Sunris. Now, the point in issue is, whether the appellant satisfied the description "Sunri excluding Saha" in item 40 of the President's Order. To decide that point, the description has first to be properly interpreted and understood. As we have said, the Tribunal thought that the Sahas formed a distinct caste wholly outside the Sunri caste and they had been specifically excluded in item 40 for greater safety o prevent them from claiming to be Sunris by reason of their origin. The learned Judges of the High Court thought that the effect of the item was to exclude from the Sunri caste those who belonged to that caste but bore the surname Saha. We are unable to agree with either of these interpretations. There is no doubt that Sunri is a caste. Nobody disputes that. That also follows from the fact that the Constitution (Scheduled Castes) Order, 1950 was promulgated to indicate those castes who are to be considered as Scheduled Castes for the purpose of the Constitution. "Sunri" in ....
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....tion was to exclude from Sunris those members of that caste who bore the surname Saha, the item would have said so; it would then have read "Sunri excluding those who bore the surname Saha". In the absence of such words "Saha" must, in the context, be understood as referring to a smaller caste group within the bigger caste group of Sunris. Surname is irrelevant as a test for applying item 40 unless it is shown that it indicated a smaller caste group of Sunris. It is nobody's case that there is evidence to show that. It is of interest to remind in the connection that the Order provides that the Sunris in the Purulia District and those parts of the Purnea District which had been transferred to West Bengal were not to be considered as belonging to a Scheduled Caste. That would show that where the exclusion is by a test other than a caste group, the Order expressly says so. It is natural to think that if the excluded Sahas were those Sunris who bore the surname Saha, the Order would have made that clear. In our opinion, the learned Judges of the High Court were in error in interpreting the item on the evidence in the case as they appear to have done. If we are ....