DIVISIONAL COMMISSIONER Vs. BHOVI SAMAJA SEVA SANGHA SIRSI

JUDGEMENT

(1.) THE State has filed this appeal against the common order dated 30. 8. 2001 passed by the learned single Judge in W. P. Nos. 36702- 36718/2000 c/w W. P. Nos. 38791-38800/2000. It is not necessary to go into the facts of the case.

(2.) SRI M. N. Seshadri, learned Government Advocate appearing on behalf of the appellant- State submits that the learned single Judge has erred in treating the caste mentioned in the Certificates as BOVI, BOYI, BHOI as Scheduled Caste and belonging to BHOVI community in absence of any special notification. It is submitted that the direction issued by the learned single Judge is not sustainable as the Union of India which was party, has been deleted. He relied on the decisions in B. BASAVLINGAPPA Vs. D. MUNICHINNAPPA AND OTHERS (AIR 1965 SC 1269) and in STATE OF MAHARASHTRA Vs. MILIND AND OTHERS (AIR 2001 SC 393 ). Learned Government Advocate submitted that in view of the observations of the Honble Supreme. Court in Milinds case that it is not all permissible to hold any enquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the concerned entry in the Constitution (Scheduled Tribes) Order, 1950 and that it is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not specifically mentioned in it. He further submitted that it has also been held that it is not open to State Governments or Courts or Tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the Notification issued under Clause (1) of Article 342 of the Constitution.

(3.) ON the other hand, the learned counsel for respondents submits that the controversy is considered in the case in VIRUPAKSHAPPA Vs. HANUMANTHA reported in ILR 1994 KAR. 1270, wherein the Division Bench of this Court considered the Government Order dated 27. 7. 1977, in which at Sl. No. 23 Bhovi Caste is included as a Scheduled Caste and thereafter another notification dated 27. 3. 1980 showing the list of Scheduled Castes referring to Sl. No. 23 as Bhovi and equivalent words or synonymous as Od, Odde, Vaddar, Waddar and Woddar. This Court while considering the case in B. BASAVLINGAPPA Vs. D. MUNICHINNAPPA AND OTHERS (AIR 1965 SC 1269) has held that Bhovi Caste will include Voddar which was also known as Boyi and Bovi and repelled the argument that the Caste described as Bovi could not have been treated as Scheduled Caste. It was also observed that what has been done under Article 341 of the Constitution and considered by the Apex Court is not open for this Court to re examine that question. Learned counsel submitted that in Milinds case, the Supreme Court has reaffirmed the decision in BASAVLINGAPPAS case and therefore, appellants cannot take advantage of the observations made by the Supreme Court in Milinds case.