TaxTMI 
TaxTMI 
2006 (3) TMI 763
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....n Dadaji alias Dina v. Sukhdeobabu & Ors. (1980) 1 SCC 621 (for the sake of brevity 'Dina II') are over-ruled by a Constitution Bench of this Court in State of Maharashtra v. Milind Katware (2001) 1 SCC 42 The questions raised before us being the questions of law, it is not necessary for us to recite the entire facts. 2. Clause 25 of the Article 366 of the Constitution of India defines "Scheduled Tribes" as under: "Scheduled Tribes" means such tribes or tribal communities as parts of or groups within such tribes or tribal communities as are deemed under article 342 to be Scheduled Tribes for the purposes of this Constitution;" Article 342 of the Constitution of India deals with Scheduled Tribes. It says: "342. Scheduled Tribes. (1) The President may with respect to any State or Union territory, and where it is State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in....
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....in castes and tribes, for the re-adjustment of representation of parliamentary and assembly constituencies in so far as such re-adjustment is necessitated by such inclusion of exclusion and for matters connected therewith." 5. By the aforesaid Act, the entire Schedule to the Order as it stood prior to the amendment was substituted by a new Schedule consisting of XVI Parts. Part IX of the Schedule relates to the State of Maharashtra. Entry 18 of Part IX of the Schedule to the Order after amendment reads thus: "18. Gond, Rajgond, Arakh or Arrakh, Agaria, Asur, Badi, Maria or Bada Maria, Bhatola, Bhimma, Bhuta, Koliabhuta, Koilabhuti, Bhar, Bisonborn Maria, Chota Maria, Dandami Maria Dhuru, Dhurwa, Dhoba, Dhulia, Dorla Gaiki, Gatta or Gatti, Gaita, Gond Gowari, Hill Maria, Kendra, Kalanga, Khatola, Koitar, Koya, Khirwar, Khirwara, Kucha Maria, Kuchaki Maria, Madia, Maria, Mana, Mannewar, Moghya, Mogia, Monghnya, Mudia, Muria, Nagarchi, Naikpod, Nagwanshi, Ojha, Raj, Sonjhari Jhareka, Thatia Thotya, Wade Maria or Vade Maria." (emphasis supplied) 6. The Government of Maharashtra by resolutions dated 24.4.1985 and 19.6.1985 directed that the members of 'Mana' community be no....
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.... 1. It is not at all permissible to hold any inquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the entry concerned in the Constitution (Scheduled Tribes) Order, 1950. 2. The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it. 3. A notification issued under clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under clause (1) of Article 342 only by Parliament by law and by no other authority. 4. It is not open to State Governments or courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under clause (1) of A....
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....nd Wanjari. It is not true that Mana is a sub-caste of the Gonds. There is no community known as 'Gond'" That the appellant was a member of the 'Mana' community which has the qualification of 'Kshatriya' is established by his admission in his deposition that he was a member of the Kshatriya Mana Shikshana Sahayyak Mandal, Chandrapur. Although in another part of his statement of objections there are contradictory statements, the following plea in para 9 of the said statement makes it obvious that there is a community called Kshatriya Bidwaik Mana Community: 9. As to para 11: - It is admitted that the respondent 1 was the Vice-President for some time and also an active worker of the Kshatriya Bidwaik Mana Shikshana Samstha. The object of the said institution was not limited to spread education amongst the boys belonging to Kshatriya Bidwaik Mana community, and it is denied that the said society has been founded in order to give educational facilities to the students belonging to this community only. 14. In paragraph 18, Dina II, this Court relied on the decision in Dina I (supra) and bodily lifted the observations in Dina I, extracted below: "18. In the a....
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....d in arriving at the conclusion, which is not permissible. 16. We are, therefore, in agreement with the view of the High Court that the decision in Dina II is over-ruled by the Constitution Bench in Milind Katware's case (supra) by necessary implication. The contention of Mr. Rao is sustained. A three-Judge Bench of this Court in C.N. Rudramurthy v. K. Barkathulla Khan and Ors. (1998) 8 SCC 275 has examined the nature and effect of over-ruling by necessary implication and held that when the law as declared by the Supreme Court contradicts what has been stated in another case, that case stood impliedly overruled. Admittedly Dina II reached its conclusion after examining the evidence on record of Dina I. As pointed out earlier, this is not permissible in view of the law declared by the Constitution Bench of this Court in Milind Katware's case (supra). 17. The same view was reiterated in the case of Union of India & Ors. v. Raj Rani and Ors. (1998) 8 SCC 704. In that case the payment of solatium and interest has been settled by a three-Judge Bench in Union of India v. Hari Krishan Khosla 1993 Supp (2) SCC 149, which held that the respondents were not entitled to the payment ....
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....ounsel referred to various entries in the Second Schedule of the Act to show the intendment of the Parliament to introduce the Amendment Act, 1976. 22. A quick survey of the Presidential order of the entries in the Second Schedule of the Act shows that wherever the Parliament wanted to restrict the scope of an entry with reference to certain areas or with reference to language or to include certain tribes in a group, it has done so expressly. It is also noticed that in the Second Schedule not only there are many entries mentioning a single community or tribe individually but also quite a few entries mentioning a group of communities or tribes. A few examples are: PART I. - Andhra Pradesh In Sl. No. 7 Goudu (in the Agency tracts) And Sl. No. 20. Malis (excluding Adilabad, Hyderabad, Karimnagar, Khammam, Mahbubnagar, Medak Nalgonda, Nizamabad and Warangal districts). Sl.No. 23 Nayaks (in the Agency tracts) Sl.No. 30 Thoti (in Adilabad, Hyderabad, Karimnagar, Khammam, Mahbubnagar, Medak, Nalgonda, Nizamabad and Warangal districts). Sl. No. 31 Valmiki (in the Agency tracts) Group entries are provided at Sl. No. 6, 16, 17, 18, 22, 25 and 28. PART II. Assam Group entrie....