P.N.Mookerjee, J. - (1.) In this election appeal, two questions call for decision. The first relates to the construction of the Constitution (Scheduled Castes) Order 1950, Part XIII (2) Item 40, as amended in 1956, and the second of Section 101 (a) of the Representation of the People Act, 1951. The controversy is acute as to whether the contesting respondent, who got himself declared elected to the reserved seat for the Scheduled Castes in the Khargram Legislative Assembly Constituency of West Bengal in the last General Election, held in February 1962, belonged to the Scheduled Caste, so as to be eligible for the said reserved seat. The controversy is also keen on the appellant's claim to be forthwith declared elected to the said reserved seat in case the respondent's election aforesaid is declared void.
(2.) To resolve the above controversies, I proceed first to set out the relevant constitutional and statutory provisions, namely, the above amended Item 40 of Part XIII (2) (together with Paragraph 2, of which, plainly, it forms a part), of the Constitution (Scheduled Castes) Order 1950. and Article 341(1) of the Constitution of India, under which the same was promulgated, and Section 101(a) of the Representation of the People Act, 1951. Those provisions run as follows: (1) Article 341(1) of the Constitution: "341. Scheduled Castes.--(1) The president may with respect to any State, or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification. specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be." (2) Paragraph 2 of the Constitution (Scheduled Castes) Order, 1950, and the amended Item 40 of Part XIII-(2) of the said Order, referred to above: "2. Subject to the provisions of this Order, the caste, races or tribes or parts of, or groups within castes or tribes, specified in Parts 1 to XIII of the Schedule to this Order shall, in relation to the States, to which those Parts respectively relate, be deemed to be Scheduled Castes so far as regards members thereof, resident of the locality specified in relation to them in those parts of that Schedule." *** * * ** ** "The Schedule *** * * ** ** Part XIII--West Bengal *** * * ** ** 2. Throughout the State except in the Purulia District and the territories transferred from the Purnea district of Bihar: *** * * ** ** 40. Sunri excluding Saha" and (3) Section 101 (a) of the Representation of the People Act, 1951: "101. Grounds for which a candidate other than the returned candidate may be declared to have been elected.--If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Tribunal is of opinion-- (a) that in fact the petitioner or such other candidate received a majority of the valid votes;" and, in their context, fall to be judged the instant case and the contending claims herein.
(3.) The relevant facts are not in dispute. At the above impugned election, which was held on February, 18, 1962, there were two candidates for the reserved seat in question. Of them, the respondent secured the highest number or votes, namely, 16,730, as against the appellant's 15,523, and was declared elected to the said reserved seat. The respondent stood at the said, election upon a claim that he was a member of the Scheduled Caste, which was the sine qua non of his eligibility for the said election. He had his surname Saha but he claimed that, that notwithstanding, he belonged to the "Sunri caste excluding Saha' as mentioned in the above amended Item 40, Part XIII-(2), of the Constitution (Scheduled Castes) Order, 1950, that is, to a Scheduled Caste, as enumerated in and within the meaning of the said provision. On this footing, he filed his nomination paper for the election in question, which was accepted by the appropriate authority after rejecting the appellants objection to the same and the election proceeded with the appellant and the respondent as the two duly nominated candidates.;