Karnataka High Court
The Divisional Commissioner, Belgaum ... vs Bhovi Samaja Seva Sangha And Ors. on 5 March, 2003
Equivalent citations: ILR2003KAR1584, 2004(2)KARLJ9
Author: V.G. Sabhahit
Bench: V.G. Sabhahit
JUDGMENT Jain, C.J.
1. The State has filed this appeal against the common order dated 30.8.2001 passed by the learned Single Judge in W.P. Nos. 36702-36718/2000 c/w W.P. Nos. 38791-38800/2000. It is not necessary to go into the facts of the case.
2. Sri M.N. Seshadri, learned Government Advocate appearing on behalf of the appellant State submits that the learned Single Judge has erred in treating the caste mentioned in the Certificates as BOVI, BOYI, BHOI as Scheduled Caste and belonging to 'BHOVI' community in absence of any special notification. It is submitted that the direction issued by the learned Single Judge is not sustainable as the Union of India which was party, has been deleted. He relied on the decisions in B. BASAVLINGAPPA v. D. MUNICHINNAPPA AND ORS., and in STATE OF MAHARASHTRA v. MILIND AND ORS., AIR 2001 SC 393 Learned Government Advocate submitted that in view of the observations of the Hon'ble Supreme Court in Milind's case that it is not all permissible to hold any enquiry 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 concerned entry in the Constitution (Schedule Tribes) Order, 1950 and that 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 Schedule Tribes. Order if they are not specifically mentioned in it. He further submitted that it has also been held that 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 Article 342 of the Constitution.
3. On the other hand, the learned Counsel for respondents submits that the controversy is considered in the case in VIRUPAKSHAPPA v. HANUMANTHA, wherein the Division Bench of this Court considered the Government Order dated 27.7.1977, in which at SI. No. 23 Bhovi Caste is included as a Scheduled Caste and thereafter another notification dated 27.3.1980 showing the list of Scheduled Castes referring to SI. No. 23 as Bhovi and equivalent words or synonymous as Od, Odde, Vaddar, Waddar and Woddar. This Court while considering the case in B. Basavlingappa v. D. MUNICH INNAPPA AND ORS. has held that Bhovi Caste will include Voddar which was also known as Boyi and Bovi and repelled the argument that the Caste described as Bovi could not have been treated as Scheduled Caste. It was also observed that what has been done under Article 341 of the Constitution and considered by the Apex Court is not open for this Court to re-examine that question. Learned Counsel submitted that in Milind's case, the Supreme Court has reaffirmed the decision in BASAVALINGAPPA'S case and therefore, appellants cannot take advantage of the observations made by the Supreme Court in Milind's case.
4. Heard the learned Government Advocate and the learned Counsel for the respondents and perused the case laws and the material placed on record.
5. The Apex Court in its order in the case of STATE OF MAHARASHTRA v. MILIND AND ORS. has referred to the earlier Full Bench decision in V. BASAVLINGAPPA v. D. MUNICHINNAPPA AND ORS. in paras 15 and 16 has held that having regard to the peculiar circumstances of the case wherein there was no caste by name, Voddar in the State of Mysore at the time of Notification, the Court held that it was necessary to find out as to which caste was included as Voddar caste in the Notification and has observed as follows:-
"Thereafter looking to the peculiary circumstances of the case, the Court went on to say that (Para 7 of AIR):-
"The difficulty in the present case arises from the fact(which was not disputed before the High Court) that in the Mysore State as it was before the re-organisation of 1956 there was no caste known a Bhovi at all. 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. It cannot be accepted that the President included the caste Bhovi in the Order though there was no such caste at all in the Mysore State as it existed before 1956. But when it is not disputed that there was no caste specifically known as Bhovi in the Mysore State before 1956, the only course open to Courts to find out which caste was meant by Bhovi is to take evidence in that behalf. If there was a caste known as Bhovi as such in the Mysore State as it existed before 1956, evidence could not be given to prove that any other caste was included in the Bhovi caste. But when the undisputed fact is that there was no caste specifically known as Bhovi in the Mysore State as it existed before 1956 and one finds a caste mentioned as Bhovi in the Order, one has to determine which was the caste which was meant by that word on its inclusion in the Order. It is this peculiar circumstance therefore which necessitated the taking of evidence to determine which was the caste which was meant by the word "Bhovi" used in the Order, when no caste was specifically known as Bhovi in the Mysore State before the re-organisation of 1956."
Further, in para 18 of the Milind's case, it is observed that a Constitution Bench in its earlier decision in BHAIYALAL v. HARIKISHAN SINGH, also, has referred to BASAVLINGAPPA'S case and has held that in the unusual circumstances of the case, the Court was justified in holding that Voddar caste was the same as Bhovi caste within the meaning of the Order and it was an exception to the normal rule. In para 27 of Milind's case, the Supreme Court has observed as follows:-
"Being in respectful agreement, we reaffirm the ratio of the two Constitution Bench judgments aforementioned and state in clear terms that no enquiry at all is permissible and no evidence can be let in, to find out and decide that if any tribe or tribal community or part of or group within any tribe or tribal community is included within the scope and meaning of the concerned Entry in the Presidential Order when it is not so expressly or specifically included. Hence we answer the question No. 1 in negative."
This Court in the case of VIRUPAKSHAPPA v. HANUMANTHA has considered the question and has referred to the decision of the Supreme Court in Basavlingappa's case and also Milind's case and has observed as follows:-
"8. Now the question that arises for consideration is whether there has been any change in the order made by the Government. In the order issued on 27.7.1977 at SI. No. 23 Bhovi caste is included as a Scheduled Caste. Thereafter Government of Karnataka has issued an order on 27th March 1980 showing the list of Scheduled Caste referring to SI. No. 23 as Bhovi and equivalent words or synonyms as Od, Odde, Vaddar, Waddar and Woddar. However, it is made clear in the Order itself that this list is not intended and shall not be treated as an alteration or amendment of the Schedule to the Presidential Order specifying Scheduled Castes and Scheduled Tribes in relation to the Karnataka State and therefore this order is not of much consequence. What was of consequence was, what was meant by Bhovi in the Presidential Order. But the Supreme Court already considered the same in Basavalingappa's case and has held that Bhovi caste will include Voddar which was also known as Boyi and Bovi. In that view, we do not think it is open to the appellants to contend that the caste described as Bovi could not have been treated as Scheduled Caste. Whatever might have been the references that have been made in the Glossary of Terms or series of Reports that have been submitted to the Government by the Backward Class Commission, they may not be of such relevance as what we have to interpret in the order of the President issued under Article 341 of the Constitution. When that has already been done by the Supreme Court it is not open for us to re-examine that question."
6. The learned Government Advocate has not been able to dispute that the controversy considered by the Apex Court in Basavalingappa's case and decision of this Court in Virupaksha's case referred to above fully answers the question arising for determination in the Writ Petitions and the learned Single Judge has referred to the said decisions and passed the Orders which have been impugned in these appeals.
7. Under the circumstances, the direction issued by the learned Single Judge that the respondents are directed to treat the petitioners as belonging to "Bhovi" community and belonging to Scheduled Caste irrespective of the caste mentioned in their Certificates as "Bovi", "Boyi", "Bhoi"1 and Caste Verification Committee has no jurisdiction to enquire into the matter, needs no interference. The learned Single Judge by an elaborate order has given the above direction.
8. On consideration, we find no error or illegality in the order passed by the learned Single Judge so as to call for any interference. This Writ appeal No. 7536/2001 is dismissed and also connected Writ Appeal Nos. 7546-61/2001 are dismissed.