Judgment

SHAH, J.:- At the "mid-term elections" held in January 1969 Anirudh Patar (the Ist respondent in this appeal) was declared elected to the Bihar Legislative Assembly from the Tamar Assembly Constituency No. 296 (Scheduled Tribes). Bhaiya Ram Munda an unsuccessful candidate at the election applied to the High Court of Patna for an order setting aside the election on the plea that the 1st respondent was not a member of a Scheduled Tribe and was on that account not qualified under Section 5 of the Representation of the People Act, 1951 to be chosen to fill a seat in the Legislative Assembly of Bihar from a reserved constituency for Scheduled Tribes. The High Court dismissed the petition holding that the 1st respondent was a member of a Scheduled Tribe called "Munda" specified in Part III of the Constitution (Scheduled Tribes) Order, 1950 issued in exercise of the powers under Article 342 of the Constitution. Bhaiya Ram Munda has appealed to this Court under Section 116-A of the Representation of the People Act, 1951.

2. Section 5 of the Representation of the People Act, 1951 provides:

"A person shall not be qualified to be chosen to fill a seat in the Legistative Assembly of a State unless-

(a) in the case of a seat reserved for the Scheduled castes or for the Scheduled Tribes of that State, he is a member of any of those castes or of those tribes, as the case may be, and is an elector for any Assembly constituency in that State;

x x x x x x"

Article 342 of the Constitution, insofar as it is relevant provides:

"(i) The President may with respect to any State or Union territory x x x x x 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 or exclude from the list of Scheduled Tribes specified in a notification issued under Clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."

3. In exercise of the powers conferred by Article 342, the President issued an Order called the Constitution (Scheduled Tribes) Order, 1950 which by the second clause provided:

"The tribes or tribal communities, or Parts of, or groups within, tribes or tribal communities specified in Parts I to XII of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Tribes so far as regards members thereof resident in the localities specified in relation to them respectively in those Parts of that Schedule."

In the Schedule the names of certain tribes are set out, and in Part III under the heading the State of Bihar are designated certain tribes. The tribes designated in Part III are deemed to be Scheduled Tribes throughout the State of Bihar. "Mundas" does but Patar does not occur in Part III. The 1st respondent contended that Patars are Mundas, and that it is only non-Mundas who call the various exogamous groups belonging to the tribes residing generally in Singbhum and the adjacent area and belonging to various kilis as Mundas, or Pator Mundas, Mahali Mundas, Tamarias, Bunduars and Marang Mundas and others. He contends that he does not cease to be a Munda merely because his family name is Patar.

4. The appellant raised two arguments in support of his petition (1) that Patars are not Mundas, and not being a Munda, and (2) that even if Patars are Mundas, since the name of Patar has not been included in the Constitution (Scheduled Tribes) Ordes 1950, Part III applicable to Bihar, he cannot be chosen to sit in the Assembly from the reserved constituency by merely calling himself a Munda.

5. Considerable evidence oral and documentary was tendered before the High Court. In support of his case