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14. Mr. D. P. Kundu, the learned Advocate General, Tripura submits for respondents 1, 2 and 3 that the so-called Deshi Tripura (Laskar) community was never included in the Scheduled Tribes Order of Parliamentary enactments and, as such, there was no question of excluding them from the list of Scheduled Tribes in Tripura. According to him, a historical study of the subject would show that in the past Tripura/Tripuri/Tippera never included the Laskar community. The Tripuras, according to him, are a Tibeto-Burman race, akin to the Shan, one of Tribes included by Friederich Muller and other German Ethnologists under the generic term "Lohitic" implying connection with upper Brahmaputra or Lohit river, while Laskars are Bengali Kayasthas. An anthropoligical study, according to him, would show that the . Tipperas are divided into four groups, viz. (i) Puran or original tipperas, (ii) Jamatias, (iii) Noatias or Nutan Tripuras, and (iv) Riyangs. The group 'Rajbangsis' as mentioned in Dalton's book "Tribal History of Eastern India" (Descriptive Ethnology of Bengal) indicates the 'Puran Tripura' to which the royal family of Tripura belongs. This has also been corroborated by Shri Kailash Chandra Singha in his 'Rajmala' (Page 17, para 2) published in 1896 A. L. and W. W. Hunter's "A Statistical Account of Bengal" (page 482) published in 1876 A.D. In this respect reference has also been made to "Imperial Gazetteer of India", Vol. XIII, 1908 A.D., "Gazetteer of Bengal and North East India by P. C. Alien and three others, "North East Frontier of India" by Alexandar Nackenzie, 1884 A.D., "Chittagong Hill Tracts" by R.H. Sneyed Hutchinson, 1909 A.D. In none of the Presidential Orders or Parliamentary enactments the "Deshi Tripura" (Laskar) community has been shown as Scheduled Tribe or sub-tribe. In those orders, counsel submits, Tripura, Tripuri, Tippera, Jamatia, Noatia and Riangs have been mentioned separately. If there is any sub-tribe, the name of that sub-tribe has been mentioned specifically; and that there is no mention of the Laskar community, although the petitioner claims that his community is a sub-tribe of Tripura community or part and parcel thereof. He also refers to "Udaipur Bibaran" by Brajendra Chandra Dutta, 1340 T.E. (corresponding to 1930 A.D.) and Webster's "Eastern Bengal District Gazetteer", 1910 A.D. In 'Rajmala' by Kailash Chandra Singha published in 1896 A.D. there were 10 sub-groups (sects/clan) among the Tripuris, viz. (i) tipra (Tripura), (ii) Bachhal, (iii) Daityasing, (iv) Kuwatia, (v) Siuk, (vi) Chhatratia, (vii) Calim. (viii) Apai Achha, (ix) Chhiltia, (x) Sena. There is no mention of the 'Deshi Tripura'. He also refers to 'Rajmala' by Kali Prasanna Sen published in 1927 A.D. according to which 'Laskars' denote title given to those persons who had been entrusted with administration of far away or newly conquered provinces, sometimes 'Laskar' was treated as post following the practice in the erstwhile Muslim administration. Sometimes the persons in charge of Police Stations were designated as 'Laskars'. Compared to the above, according to the learned Adovcate General, Circular No. 9 does not have any support from the above studies. The fact that the 'Deshi Tripuras' were to be recorded as 'Kshatriyas' along with Puran Tripura, Noatias etc. etc. did not mean that they were to be treated as Tribes. The 'Kshatriyas', according to him, were never treated as Tribes, it meaning the soldier castes generally. He also refers to "A Statistical Account of Bengal" by W. W. Hunter published in 1876 A.D., "Marriage and Rank in Bengali Culture" by Roneld Blnden published in 1976 A.D. There was, according to counsel, specific order of the erstwhile Tripura ruler of 1946 A.D. to include 'Noatias' as Kshatriya Samaj in Tripura; but regarding the Laskar community there was no such order; and on that basis he submits that the Circular No. 9 was clearly wrong. He also refers to Act No. 4 of 1329 T.E, (1919 A.D.) concerning "Ghar Chukti Kar" (House Tax) for hill subjects in Tripura, published in Magh of 1329 T.E. (1919 A.D.). They included Kuki, Lushai, Reang, Chakma, Halam, Tripura, Mog, Khasis, Garo, Naga and other Jhumias living in the hills and they had been called hill subjects. There is no mention of the Deshi Tripura. Laskar community, according to him, are not accustomed to Jhum method of cultivation and hence they are not Jhumias. Memo No. 53 was published in Kartik, 1341 T.E. (1913 A.D.) in respect of reservation order for Khowai division wherein hill people included only Puran Tripura, Noatia, Jamatia, Reang, Halam and not the Deshi Tripura. The order of erstwhile ruler of Tripura issued in 1353 T.E. (1945 A.D.) under No. 325 dated 1st Aswin in respect of reservation of lands for Tribals did not include Deshi Tripura or Laskar community as one of the hill people though Puran Tripura, Noatia, Reang and Halam communities had been mentioned therein as hill people. In the subsequent Order de-reserving a portion of the reserved land issued in 1358 T.E. (1948 A.D.) also there is no mention of Deshi Tripura or Laskar and only Puran Tripura, Noatia, Jamatia, Reang and Halam are mentioned. Rules for reserved land issued by the Council of Ministers of Maharaja held on 27-1-1356 T.E. also did not mention 'Laskar' community or Deshi Tripura as Tribals.

23. Mr. S. Ali, the learned Standing Counsel for the Government of India on behalf of the respondents 6, 7 and 8 on the basis of their affidavit-in-opposition, submits that before the judgment of the Supreme Court in 1964 viz. B. Basavalingappa v. D. Munichinnappa (AIR 1965 SC 1269) (supra) the Deshi Tripura (Laskar) community was treated as a part and parcel of the Tripura, Tripuri, Tippera community and as such they were getting benefits as Scheduled tribes in Tripura. After the judgment of the Supreme Court in 1964 these persons were de-recognised as Scheduled Tribes in the State of Tripura. Further, in view of the said judgment of the Supreme Court it was considered necessary that the synonyms of sub-caste/tribe of various recognised Scheduled Tribes notified in the Presidential Order should be determined and the order modified to incorporate the genuine synonyms and sub-caste/tribe. This question was gone into by the Lokur Committee as well as by the Joint Committee on the Scheduled Caste and Scheduled Tribe Order (Amendment) Bill, 1967. Both these committees did not recognise Deshi Tripura as a synonym or sub-tribe of Tripura Tribe. Counsel submits that the case of any community claiming to be part of the community included in the Presidential Order is to be considered on actual facts. As there is no definite proof that Deshi Tripura as a whole is a sub-tribe of the Tripura Tribe, the claim of the persons belonging to Deshi Tripura cannot be accepted. The position is, therefore, to be verified in individual cases by the State Government/ District Administration and if the person is found to be actually belonging to the Tripura tribe, as per the Presidential Order, a certificate can be issued in the name of the community given in the Presidential Order. Further, it is submitted that the amendment in the existing list of Scheduled Castes/Scheduled Tribes can be done only through an Act of Parliament in view of Arts. 341 (2) and 342(2) of the Constitution of India. The benefits hitherto enjoyed by the Deshi Tripura (Laskar) community had been withdrawn in view of the judgment of the Supreme Court in 1964 and unless they are included in the list of Scheduled Tribe in relation to the State of Tripura according to the procedure prescribed above, the certificate to Deshi Tripura (Laskar) community cannot be issued as this community does not find place in the Presidential Order.

The question was whether the appellant was a member of the Scheduled Caste specified in this item. In the election petition the respondent had stated that the appellant was a member of the Saha caste and not a member of the Scheduled Caste. The question was 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. That Sunri is a caste nobody disputes that. There was also no dispute that the Constitution (Scheduled Castes) Order, 1950 was promulgated to indicate those cases who are to be considered as Scheduled Castes for the purpose of the Constitution. 'Sunri' item 40, therefore, refers to a caste. If Sunri is a caste, the word 'Saha' in the expression "excluding Saha" in the item must, without more also refer to a caste group within the Sunri caste. It is legitimate to think that when a statute says that a thing is to be excluded from another, both things are of the same kind; if one is a caste, the other must be a caste. It follows that when the item excluded Sahas from Sunris, since Sunri is a caste group, Saha must equally be another caste group. Now a thing can be excluded from another only if it was otherwise within it. Therefore, the correct interpretation of the item is that it indicates men of the Sunri caste but not those within that caste who formed the smaller caste group of Sahas. Their Lordships did not accept the interpretation that the Sahas excluded were those Sunris who bore the surname Saha. "If the intention 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. Surname is irrelevant as a test for applying item 40 unless it is shown that it indicated a smaller caste group of Sunris. The appellant in that case was Sunri by caste and it had not been proved in that case that the appellant belonged to the smaller caste group of Sahas and as such he must be held belonging to the Scheduled Caste specified in item 40. In the instant case the Deshi'Tripura (Laskar) community has not expressly been excluded as a sub-tribe or tribal community. If the Laskar community claims to be a tribal community distinct from Tripura, Tripuri, Tippera, it must be taken to have been excluded from the list of Scheduled Tribes for Tripura.

In the instant case the problem is not as complicated as that. Here the problem is whether the Deshi Tripura (Laskar) community was or was not a part and parcel of Tripura tribe. If Deshi Tripura (Laskar) community claims to be a tribal community by its own right, no evidence will be permissible to prove that it is by its own right a Scheduled Tribe. If the Laskars claim to belong to the Tripura tribe it may be permissible to lead evidence as was the case in Bhaya Ram (supra). The Deshi Tripura (Laskar) community in this petition does not claim to be a sub-tribe of the Tripura tribe but only claims to have been included in it being a mixture of the Tripura tribals and Bengalis. If the Deshi Tripura (Laskar) community claims to be a Scheduled Tribe, being a separate tribal community, no evidence will be allowed to be led to prove that claim. If the Deshi Tripura (Laskar) community claims to be a sub-tribe of the Tripura tribe and takes the plea that though not specifically mentioned in the Order as a sub-tribe of Tripura, it was included within the Tripura tribe, evidence may be permissible following Bhaya Ram (AIR 1971 SC 2533) (supra). But Kishorilal Hans v. Raja Ramsingh, AIR 1972 SC 598 would restrict its scope. This, of course, must be distinguished from the case of an individual claiming to have belonged to the Tripura tribe irrespective of whether he belongs to the Deshi Tripura (Laskar) community or not. Evidence to prove such a plea would be permissible for individuals and would not come within the mischief of Basavalingappa, Bhaiya Lal, and Kishorilal (supra). In Kishorilal (supra) Basavalingappa and Bhayalal were followed but no reference was made to Bhaya Ram and following the two decisions it was held that the returned candidate in that case was not entitled to establish that Jatav caste was the same as Chamar.