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TMI Blog1996 (2) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... eby they are entitled to be recognized as Scheduled Tribes. Secondly, it is contended that when similar claim was relied on by one Shambhu Nath and was rejected by CAT, this Court in Shambhu Nath vs. State of Bihar (C.A. No.4631 of 1990) by order dated September 15, l990 had held that Lohar community is a Scheduled Tribe under the Act. This was followed in another SLP @ CWJC No.1034 of 1991 dated September 21, 1992. The Division Bench of the High Court in the above writ petition held Lohar community as Scheduled Tribe. This was upheld by this Court. In the latter case also it had concluded that Lohar is a Scheduled Tribe community and that, therefore, it is entitled to the same status. In yet another writ petition CWJC No.3390/92 by order dated September 20, 1993, another Division Bench of that High Court also held that Lohars belong tc Scheduled Tribes. It is contended that the dismissal of the writ petition by the High Court, therefore, is wrong in law. The notification in Hindi version must be enforced as their constitutional right is grossly violated. When the matter had come up on Monday, the 15th January, 1996 alongwith SLP (C) Nos.23681-783 of 1995 and another one, the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule for Bihar though correctly reflects these two communities as Tribes, Hindi version does contain description `Lohar' but it is only a wrong translation. The Court can take judicial notice of English Version and have it correctly interpreted by treating Hindi version as incorrect translation. Therefore, the High Court rightly did not accept the status of the appellants as Scheduled Tribes. In view of the respective contentions, the question that arises for consideration is: whether the Court can give declaration of the social status as a Tribe or declare Lohars as Scheduled Tribes in the Act and the Schedule of the Act? Clause (24) of Article 366 defines Scheduled Castes and clause (25) of Article 366 defines Scheduled Tribes . The latter means such tribes or tribal communities or 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 (Emphasis supplied). Article 341(1) empowers the President, in consultation with the Governor of the concerned State, to specify Scheduled Castes by public notification. Equally, 342(1) empowers the President with respect to any State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art XVI Item No.24 repeats the came tribes, namely, (1) Lohara/Lohra to be Scheduled Tribes. In Hindi version, as placed before us, relating to the State of West Bengal, is found the same specification. But with regard to Bihar State, Hindi version contains in place of Lohara, Lohar. The silibet `a' is omitted. The title to the Schedule of Hindi version itself clearly mentions translated version . As stated earlier, in English version, there is no mention of Lohar and Lohara/Lohra only are the specified Scheduled Tribes. In `Tribes and Castes of Bengal' written by renowned sociologist, H.S. Hisley in Volume II, is found the description of Lohar as Blacksmith of Bihar, Chota Nagpur and West Bengal. He mentions therein thus: Lohar, as sub-castes of Barhi in Bihar, only work in iron. They are, however, distinct from, and do not inter marry with the Lohra caste. The latter are probably Dravidian descent, while former appear to be an occupational group. Lohar, a synonym for Kamar in Behar; a mul or section of the Naomulia or Majraut sub-caste of Goalas in Behar; a section of Kamis in Darjeeling. So far as Lohars of Behar are concerned, the author says:- In B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alis prepare gold ornaments. They are O.B.Cs. Their names are different from region to region. It would thus be clear that Lohars are Blacksmiths, while Loharas/Lohra are Scheduled Tribes. The question then is: whether Lohars could be considered by the Court as synonyms of Loharas or Lohras? This question is no longer res integra. In Bhaiyalal v. Hari Kishan Singh [(1965) 2 SCR 877]. a Constitution Bench of this court had considered in an election petition whether Dadar caste was a Scheduled Caste. It held that the President in specifying a caste, race, or tribe has expressly been authorised to limit the notification to parts of or groups within the caste, race or tribes. It must mean that after examining the social and educational backwardness of a caste, race or a tribe, the President may come to the conclusion that not the whole caste, race or tribe, but parts of or groups within them should be specified as Scheduled Caste or Scheduled Tribe, The result of the specification is conclusive. Notification issued under Article 341(1), after an elaborate enquiry in consultation with the Governor and reaching the conclusion specifying particular caste, race or tribe with reference t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have modernized and progressed but they would not be oblivious or ignorant of their customary and cultural past to establish their affinity to the membership of a particular tribe. The tribe or tribal communities, parts of or groups thereof have their peculiar traits. It was further held that Presidential declaration subject to amendment by Parliament is conclusive. No addition to it by way of declaration of castes, tribes or sub-caste, parts of or groups of tribes or tribal community is permissible. After an elaborate survey of the constitutional purpose and the relative caste structures, customs, marriages etc. it was held that Kolis are Backward Class and Mahadeo Koli are Scheduled Tribes. The appellants therein being OBCs were held not entitled to status as Scheduled Tribes. It is for the Parliament to amend the law and the Schedule and include in and exclude from the Schedule, a tribe or tribal community or part of or group within any tribe or tribal community for the State, District or region and its declaration is conclusive. The Court has no power to declare synonyms as equivalent to the Tribes specified in the Order or include in or substitute any caste/tribe etc. It wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew it has taken. This Court, Therefore. Proceeded on the premise as admitted by the counsel that Lohar was included in the Act as Lohars in the Second Schedule as Scheduled Tribe. The counsel wants us to read the earlier sentence, viz. We have looked into the record . In view of the factual quotation from the Act and the Second Schedule, as extracted in the earlier part or the judgment. the effect of the above sentence speaks for itself and seems to be otherwise. As a fact the bench proceeded on the basis or the concession of the Union counsel. It proved to be an obvious mistake and as a fact the translated Hindi copy was placed before the Court and the Court proceeded on that promise. The case establishes that the Court was missed by incorrect record. It proves how wrong it would be to proceed on the basis of statement by counsel who do not take full responsibility to place correct record, in particular, on constitutional issues. It is seen that in Second Schedule in Part III of the Act, as extracted hereinbefore, Lohar was not included as a Scheduled Tribe. It is only, as evidenced from the translated version, that the community 'Lohar' came to be wrongly transla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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