Judgement

SARKAR, CJI. : These appeals arise out of an election to a seat in the West Bengal Legislative Assembly from the Khargram Murshidabad constituency reserved for members of the Scheduled Castes. The contestants at this election were Abhoy Pada Saha and Sudhir Kumar Mondal. Sudhir is admittedly a member of a Scheduled Caste. Abhoy Pada described himself in the nomination paper as " a member of the Sunri caste which is a Scheduled Caste". Sudhir objected to this nomination contending that Abhoy Pada did not belong to any Scheduled Caste. The objection was rejected by the Returning Officer. At the election which ensued, Abhoy Pada secured 16,730 votes and Sudhir, 15,523 and the former was consequently declared elected.

2. 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 by Abhoy Pada and shall hereafter refer to him as the appellant and Sudhir as the respondent.

3. Art. 332 of the Constitution provides that seats shall be reserved for the Scheduled Castes in the Legislative Assembly of every State. Art. 341 gives power to the President to specify by public notification the caste or parts of or groups within castes which shall for the purpose of the Constitution be deemed to be Scheduled Castes. The President, on August 10, 1950, passed the Constitution (Scheduled Castes) Order, 1950 under Art. 341 setting out in its schedule the various castes which were declared Scheduled Castes. This Order was amended from time to time by statutes passed by Parliament and it is agreed that at the relevant time Item 40 of Part 13 of the schedule to the Order which set out which were Scheduled Castes in West Bengal stood as follows: Sunri excluding Saha." Item 40 and some other items of the schedule were made applicable to the State of West Bengal except the Purulia District and the territories transferred from Purnea District of Bihar and it is with this item that we are concerned. The question is, whether the appellant was a member of the Scheduled Caste specified in this item.

4. In the election petition the respondent had stated that the appellant was a member of the Saha caste and not a member of any Scheduled Caste. It was said that this showed that the respondent s case was that the appellant belonged to an independent caste which had nothing to do with Sunri caste and that it was, therefore, not open to him at the trial to contend, as he appears to have done, that the appellant was a Sunri by caste but was excluded from the Scheduled Caste group because he belonged to a smaller caste group of Sunris known as Sahas. We are unable to take this strict view of the pleading. The petition may, in our opinion, be reasonably read as stating that the appellant was a member of the Saha caste, a smaller caste group within the bigger cast group of Sunris and was for that reason not a member of the Scheduled Caste specified in item