Awadesh Prasad Tamrakar and others vs State of M.P. and others

Arun Mishra, J.

The petitioner is assailing the final inquiry made by the M.P. State Scheduled Caste and Scheduled Tribe Commission pursuant to the directions issued by this Court in W.P. No. 4159/93 decided on 1-12-1998.

The petitioner is a Tamrakar. He writes the caste as Tamrakar. He claims himself to be treated as "Chhatri", which is relevant entry made in the list by the Parliament as per Article 341 and 342 in Scheduled Tribe Order, 1950.

The matter travelled to this Court earlier. This Court took the notice of the fact in para 2 and ultimately directed that an enquiry to be made. Directions were made as under:--

"The commission is directed to decide the question whether the Tamrakars are Chhatris or not and the petitioner is a scheduled tribe or not. The commission shall give a hearing to the petitioner as well as the persons/authorities concerned. It is hoped that the commission shall dispose of the matter as early as possible within a period of 3 months from the date of receipt of this order and inform the result thereof. Let a copy of this order be sent to the Commission and State of M.P. This petition is disposed of accordingly. Certified copy of this order be supplied to the parties as per rules."

The State Commission consisting of 5 members conducted the inquiry and passed the final order on 12-6-2001 (P-17) which was communicated to the petitioner. It gave various opportunities to the petitioner and fixed several dates i.e. 11-4-2001, 26-4-2001 and 17-5-2001. On 11-4-2001 petitioner was present along with a group of persons and filed a representation. On 26-4-2001 and 17-5- 2001 the petitioner did not attend the hearing and did not adduce any evidence on the ground of his illness. The commission has recorded the finding that Tamrakars are trying to obtain the certificate of Chhatris and were illegally trying to avail the facility of reservation. A study was also got conducted by M. P. Tribal Research Institute and it was found that Tamrakars cannot be treated as ''part of Chhatris or Chatris'' and the efforts were being illegally made for availing the facility of reservation which is not available to Tamrakars and finding of fact is recorded that considering past history Tamrakars cannot be treated as members of Scheduled Tribe.

Counsel for the petitioner submits that inquiry has not been conducted properly by the commission. Since the petitioner was ill he should have been afforded further opportunity to adduce the evidence. He further submits that decision of State of Maharashtra vs. Milind and others, 2001(1) MPLJ (SC) 1 : (2001) 1 S.C.C. 4 is not applicable to the facts of this case and the inquiry into the claim made by the petitioner is permissible. He submits that the Supreme Court has observed that only the High Court cannot conduct an inquiry into such a fact that Tamrakars can be included in Chhatris (Chatris). He also relied on the case of Kumari Madhuri Patila and another Vs. Addl. Commissioner, Tribal Development and others, .

Learned counsel for the respondents submits that the case of State of Maharashtra (supra) is applicable as the case was decided by the Supreme Court on 28-11-2000. It is further submitted that it is not permissible for any court or authority to make an inquiry so as to enlarge scope of an entry made in the schedule prepared as per Articles 341 and 342. He further submits that finding of fact has been recorded in proper manner and even otherwise no inquiry is permissible in factual situation of the instant case as per State of Maharashtra vs. Milind (supra).

Before consideration of the question whether the petitioner was granted due opportunity or not by the commission before passing the final order, it is necessary to advert to the legal and constitutional aspect whether such an enquiry to enlarge the scope of entry is permissible. In the case of State of Maharashtra vs. Milind (supra) certificate was sent for verification. Certificate was rejected and after detailed examination of evidence respondent''s appeal was dismissed and it was held that respondent belonged to Koshti caste and not to Halba/Halbi. The High Court allowed the respondent''s writ petition and quashed the impugned orders inter alia holding that it was permissible to inquire whether any subdivision of a tribe was a part and parcel of the tribe mentioned therein and that ''Helba-Koshti'' was a subdivision of main tribe ''Halba/Halbi'' as per entry 19 in the Constitution (Scheduled Tribes) Order, 1950 applicable to Maharashtra. The Supreme Court in paras 15.28 and 36 considered the question and held that courts cannot and should not expand jurisdiction to deal with the question, as to whether a particular caste, sub-caste or a group of part of tribe or sub-tribe is included in any one of the entries mentioned in the Presidential Orders issued under Articles 341 and 342. Allowing the State Govts. or courts or other authorities or tribunals to hold inquiry as to whether a particular caste or tribe should be considered as one included in the schedule of the Presidential Order when it is not so specifically included, may lead to problems. Para 36 is quoted below --

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

It is not at all permissible to hold any inquiry or let it 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.

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.

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.

It is not open to State Govts. or courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under clause (1) of Article 342.

Decisions of the Division Benches of this Court in Bhaiya Ram Munda vs. Anirudh Patar and Dina vs. Narain Singh did not lay down law correctly in stating that the inquiry was permissible and the evidence was admissible within the limitations indicated for the purpose of showing what an entry in the Presidential Order was intended to be. As stated in position (1) above no inquiry at all is permissible and no evidence can be let in, in the matter."

In view of the above decision in my opinion no inquiry could be held by the commission. But in the instant case since the inquiry was conducted as per direction issued by this court which was issued before the pronouncement of the decision by the supreme court in Milind case (supra), it has been found that Tamrakars cannot be treated as members of ''Chhatris (Chatris)'' i.e. scheduled tribe.

Coming to the second submission that the petitioner was not given adequate opportunity. The petitioner presented himself before the Commissioner along with a group of persons on 11-4-2001 and later on did not participate on the ground of so called illness. It is clear that due and proper opportunity was given to the petitioner. Even otherwise enquiry was not permissible. It has been rightly found that Tamrakars cannot be treated as member of Chhatri (Chatri) which is a scheduled tribe.

I find no merit in the petition. It is dismissed. Cost on parties.