TMI Blog1966 (5) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. In the election petition, the respondent had stated that the appellant, was a member of the Saha caste and not a member of any Schedule Caste. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Sunris. It is not very clear whether the Tribunal thought that the Sahas were originally a smaller caste group within the Sunri caste group or were only distinguished from the other Sunris by their surname. We are, however, inclined to think that the Tribunal thought that the Sahas were originally a smaller caste group within the Sunri caste because it rejected a contention advanced by the respondent that item 40 excluded from Sunirs those who bore the surname Saha observing that the names given in the schedule to the Order all referred to castes, subcaliber or groups. It found that the evidence clearly established that the appellant belonged to the Sunri caste-a fact which appears to have been admitted by the respondent and, therefore, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not belong to the Scheduled Caste specified in item 40 though he was a Sunri. The other learned Judge, Basu, J. held that the words parts or groups within castes in Art. 341 were wide enough to refer to any determinate part of a caste distinguished by a surname or otherwise and it was not necessary that such part must necessarily form a sub-caste. He also held that the evidence broadly supported the conclusion that the respondent's family belongs to the Saba sub-caste or group within the Sunri caste . The learned Judge however, appears to have set aside the decision of the Tribunal and directed the election of the appellant to be set aside on the ground that the appellant bore the surname Saha and was thereby excluded from the Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. The Tribunal appears to have taken the same view. 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. This is where the Tribunal went wrong. The Tribunal came to its conclusion that Saha in the item referred to a caste distinct from the Sunri caste because the evidence before it did not show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 group of Sunris. Surname is irrelevant as a test for applying item 40 unless it is shown that it indicated a smaller caste group of Sunris. It is nobody's case that there is evidence to show that. It is of interest to remind in the connection that the Order provides that the Sunris in the Purulia District and those parts of the Purnea District which had been transferred to West Bengal were not to be considered as belonging to a Scheduled Caste. That would show that where the exclusion is by a test other than a caste group, the Order expressly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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