JUDGMENT

H.K. Sema, J.—Civil Appeal No. 5270 of 2004

What appears to be a perpetual controversy with regard to Scheduled Tribe status has again engaged the attention of this Court for a considerable time. Two questions are raised before us :

1. Whether the ‘Mana’ community in the State of Maharashtra is a Sub-Tribe of "Gond" and is a Scheduled Tribe or not?

2. Whether a two Judge Bench decision of this Court in Dina v. Narayan Singh 38 ELR 212 (for the sake of brevity ‘Dina I’) and the decision rendered by another two Judge Bench of this Court in Dadaji alias Dina v. Sukhdeobabu & Ors. (1980) 1 SCC 621 (for the sake of brevity ‘Dina II’) are over-ruled by a Constitution Bench of this Court in State of Maharashtra v. Milind Katware (2001) 1 SCC 4?

2. The questions raised before us being the questions of law, it is not necessary for us to recite the entire facts.

3. Clause 25 of the Article 366 of the Constitution of India defines "Scheduled Tribes" as under :

"Scheduled Tribes" means such tribes or tribal communities as parts of or groups within such tribes or tribal communities as are deemed under article 342 to be Scheduled Tribes for the purposes of this Constitution;"

4. Article 342 of the Constitution of India deals with Scheduled Tribes. It says :

"342. Scheduled Tribes.—(1) The President may with respect to any State or Union territory, and where it is State, after consultation with the Governor thereof, 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."

5. The President by public notification issued the Constitution (Scheduled Tribes) Order, 1950, in exercise of the powers conferred by clause (1) of Article 342 of the Constitution. By clause 2 of that Order it was provided that the tribes or tribal communities, or parts of it, or groups, within tribes or tribal communities, specified in Parts I to XII of the Schedule to the 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. The Order is followed by a Schedule constituting of twelve Parts. Part VII-A of the Schedule as amended by Act II of 1960 relates to Maharashtra. By item 5 it is specified that in (1) Melghat tehsil of Amravati District (2) Godchiroli and Sironcha tehsils of the Chanda district (3) Kalapur, Wani and Yeotmal tehsils of the Yeotmal district 32 tribes or tribal communities shall be deemed Scheduled Tribes. Entry 12 as originally set out in the Order promulgated by the President of India reads : "Gond" including Media, ("Maria" and Mudia (Murai)"). By the Scheduled Castes and Scheduled Tribes (Amendment) Act, 63 of 1956, Entry 12 was substituted by :

"12. Gond, including

Arakh or Arrakh, Agaria, Asur Badi, Maria or Bada Maria, Bhatola, Bhimma, Bhuta, Koliabhuta or Koilabhuti, Bhar, Bisonborn Maria, Chota Maria, Dandami Maria, Dhuru or Dhurwa Dhoba, Dhulia, Dorla Gaiki, Gatta or Gatti Gaita Gond Gowari, Hill Maria, Kandra, Kalanga, Khatola, Koitar, Koya, Kirwar or Khirwara, Kucha Maria, Kuchaki Maria, Media (Maria), Mana, Mannower, Mohya or Mogia or Monghya, Mudia (Muria), Nagarchi, Nagwanshi, Ojha, Raj, Sonjhari Jhareka, Thantia or Thotye, Wade Maria or Vade Maria." (emphasis supplied)

6. Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 was passed by the Parliament. The Preamble of the Act states :

"An A