Jeevan Reddy, J.
1. The short but important question in this Writ Appeal is, whether the 1st respondent, Smt. Dasari Subbayamma, belonging to Gowda caste (a backward class notified by the Government of Andhra Pradesh) becomes a member of a scheduled tribe 'Goudu' (notified as a Scheduled Tribe under Art. 342 of the Construction) by virtue of residing in an agency tract. If she is a member of scheduled tribe as held by the learned single Judge, this appeal by the Government must be dismissed, if she is not, it must be succeed. The matter arises under the Andhra Pradesh Scheduled Areas Land Transfer Regulations, 1959. The facts are clearly and elaborately stated in the order of the learned single Judge, and we shall state them only in so far as they are relevant for he question at issue.
2. The 1st respondent (writ petitioner) is a resident of L.N.D. Peta village in Polavaram Taluk, in West Godavari District. The village is situated in an Agency Tract. She purchased a land from a member of the scheduled tribe and she is trying to save the said purchase on the ground that she too is a member of scheduled tribe, 'Goudu'. (If she is not a member of a scheduled tribe, it is not in dispute, the sale in her favour is illegal and she has to be evicted therefrom). In proof of her assertion she produced a certificate dated 20-7-1979 issued by the Tahsildar, Polavaram. It reads :--
'This is to certify that Dasari Subbyamma wife of Rama Rao, is a native of L.N.D. Peta Village, Polavaram Taluk, West-Godavari District. She belongs to Kalali (Gowda) caste which is included in the list of Backward Classes.
The learned single Judge has upheld the 1st respondent's contention that though she belongs to a backward class called 'Gowda (Kalalee), she must be deemed to have become a member of a scheduled tribe 'Goudu' inasmuch as she resides within an agency tract. It would be appropriate to refer to the approach and reasoning of the learned single Judge. He first referred to the certificate produced by the 1st respondent, and then posed the question :
'It remains now to be seen whether she belongs to a scheduled tribe.'
He answered it in the following words :--
'In the Regulation No. 1 of 1959 'Scheduled Tribe is defined as to mean any tribe or tribal community or part of or group within any tribe or resident in the Agency Tracts and specified as such by public notification by the President under clause (i) of Art. 342 of the Constitution. The Constitution (Scheduled Tribes) Order was promulgated by the President in the year 1950. In the Schedule we find certain communities as having been declared Scheduled Tribes. In 1956 there was a modification of the Order and category No. 4 reads as under :--
'4. In the Agency Tracts :
1. Goudu (Goud)
The petitioner claims that she belongs to 'Goudu' community. The learned Government Pleader contends that her caste is described in the sale deed as 'Kalalee'. In the list of backward classes mentioned in G.O.Ms. No. 1793 dated 23rd September, 1970, we find in Group-B Gouda (Gamalla-Kalalee) as belonging to backward classes. This, coupled with the certificate of the Tahsildar, makes it clear that 'Kalalee' also belongs to 'Gouda' community. Persons belonging to 'Gouda' residing in agency tracts by virtue of the Constitution (Scheduled Tribes) Order, as amended in 1976 have become members of a scheduled tribe. From the above discussion it is clear that the petitioner belongs to 'Gowda' community and resides in an agency tract, viz; Lakshminarayanadevipet and therefore she is a member of a scheduled tribe. Consequently, the transfer made by the 4th respondent, who is a tribal, is in favour of a tribal and not in favour of a non-tribal and therefore, it is not full and void.'
The correctness of this reasoning is called in question in this writ appeal preferred by the Government.
3. Art. 342 of the Constitution empowers the President to specify tribes or tribal communities, which shall be deemed to be scheduled tribes for the purpose of the Constitution. It would be appropriate to read the Article here :
'342. Scheduled Tribes :
(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 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.'
Accordingly, the President of India has issued the Constitution (Scheduled Tribes) Order, 1950. The Order, as amended by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, being Central Act No. 108 of 1976, reads as follows :--
'In exercise of the powers conferred by Clause (1) of Article 342 of the Constitution of India, the President after conclusion with the Governors and Rajpramukhs of the States concerned, is pleased to make the following Order, namely :
1. This Order may be called the Constitution (Scheduled Tribes) Order, 1950.
2. The Tribes or tribal communities or parts of, or groups within tribes or tribal communities, specified in Parts I to XII of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Tribes so far as members thereof resident in the localities specified in relation to them respectively, in those parts of that Schedule.
3. Any reference in this Order to a State or to a district or other territorial division thereof shall be construed as reference to the State, district or other territorial division as constituted on the 1st day of May, 1976.'
Then follows the Schedule, Part-I whereof pertains to Andhra Pradesh. It is necessary to refer to certain entries in this Schedule, Part-I. They are :--
'xx xx xx
(7) Goudu (in the Agency tracts);
xx xx xx xx
(18) Koya, Goud, Rajah Rasha Koya, Lingadhari Koya (ordinary), Kottu Koya, Bhine Koya, Rajkoya
xx xx xx xx'
The Presidential Order made under Art. 342 of the Constitution is imported into the Scheduled Areas Land Transfer Regulation, 1959 by virtue of the definition of 'Scheduled Tribe' contained in clause (f) of Section 2, which reads :
'(f) 'Scheduled Tribe' means any tribe or tribal community or part of or group within any tribe or tribal community and specified as such in relation to the State of Andhra Pradesh by a public notification by the President under clause (1) of Art. 342 of the Constitution.' Article 15(4) of the Constitution permits the State to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. Similarly, Art. 16(4) permits the State to make a provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the service under the State. Accordingly, the Government of Andhra Pradesh has issued G.O.Ms.No. 1793 dated 23-9-1970 reserving 25% of the seats in certain professional Colleges, and 25% of the posts in the State and subordinate services of the Government of Andhra Pradesh, in favour of backward classes. The backward classes are sub-divided into four groups, called Groups 'A', 'B', 'C' and 'D'. A list of backward classes, groupwise is appended to the G.O. In Group 'B;, item 14 reads thus :-- '4. Ediga, Gowda (Gammala, Kalalee), Gondla, Settibalija of Visakhapatnam, East Godavari, West godavari and Krishna Dist.'
3A. It would immediately be seen that there is a tribe called 'Goudu' found only in the Agency tracts of this State, and that there is also a caste called 'Gowda (Kalalee)' (also called Goundla) found throughout the State. Both are not same. One is a tribe, unpolluted by, and outside the Hindu caste system, while the other is a caste (Shudras) within the blighted caste system. They are two different entitles, both in name and in substance. They cannot be interchanged or mixed up. A tribal society is a homogeneous group in their way of life, whereas the caste groups are heterogeneous culturally. Tribal societies are more segmentary in nature; they view their societies merely as component autonomous groups similar in function and status, whereas the caste societies are more organic in that each caste is a part of an organic whole; its members provide necessary specialised functions for the whole. Again, while the tribesmen consider their society held together by kinship bonds and do not insist on hierarchical ordering, a caste ('Jati') society maintains non-kinship relation with other castes in the society, the relations within which are arranged in an order of dominance and dependence; (see David G. Mandelbaum : Society in India -- Vol. I, pp. 578-579).
4. It would be evident from a reading of Art. 342 of the Constitution that, the President is empowered only to 'specify the tribes or tribal communities or parts or groups within tribes or tribal communities' which shall be deemed to be scheduled tribes for the purpose of the Constitution in relation to that State or Union territory, as the case may be. If follows that only a tribe or tribal community, or a group therein, can be so specified. The Presidential Order issued thereunder does not purport to do more. It only specifies certain tribes, tribal communities, or groups within tribes, as scheduled tribes in certain localities or States, as the case may be, for the purpose of the Constitution. Before any group, community, or tribe is specified in the schedule, it must be a tribe, tribal community, or a group within the tribe or tribal community, as the case may be. The power conferred by Art. 342 of the Constitution does not extend to coverting the non-tribals into tribals even for the purpose of the Constitution. The power is merely to specify; not to create or convert. In other words, a person or a member of a backward class who does not belong to a tribe, tribal community or a group within the tribe or tribal community, cannot be specified by the President as a member of a scheduled tribe for the purpose of the Constitution, nor does the President purport to do so.
5. Applying, the above principles to the facts of this case, it must be held that the 1st respondent who, according to the certificate produced by herself, 'belongs to Kalali (Gowda) caste which is included in the list of Backward Classes' cannot become or be treated as, or be transformed into a member of a scheduled tribe called 'Goudu'. Till 1950 -- or for that matter, till 1956 she was admittedly not a member of a scheduled tribe, called 'Goudu' she was only a member of a backward caste called 'Gowda (Kalalee)' if so, even thereafter, she continues to be a Gowda. The Kalai (Gowda) caste to which she belongs, is entirely different and distinct from the Goudu tribe found in the Agency Tracts of this State. We are unable to agree with the learned single Judge that all the members of Kalali (Gowda) caste, who belong to the 'Shudra' caste in the Hindu caste system, automatically go out of their caste and the caste system altogether, and become members of a scheduled tribe merely by virtue of their residence in an Agency Tract. Suppose, tomorrow, the 1st respondent shifts her residence to a place outside the Agency tracts, whether she would continue to be a member of a scheduled tribe, or will she revert back to her original caste and the caste system? Belonging to a tribe is a matter of birth; not of choice -- nor a matter of law. The Presidential Order does not purport to do all this, and there are no reasons to attribute such a meaning or intent to it. Indeed, placing such a construction upon the Presidential Order would make it ultra vires the powers of the President under Art. 432. we are of the opinion that the learned single Judge was not right in treating the Gowda caste mentioned in the list of backward classes, and the Goudu tribe in Agency tracts, as one and the same. Not only there are Goudus in the Agency tracts, mentioned under item 7 of the Presidential Order, but there is also a separate tribal group, called 'Goud' , mentioned under item 18 of the Presidential Order. Both of them are tribes, and not castes. In this context, it is well to remember that the Hindu caste system has, fortunately, not percolated into these tribes or tribal communities. These tribes are entirely outside the caste system, even distinct and apart from the scheduled castes which too are outside the four-tiered caste system.
We shall now briefly refer to certain characteristics, customs and practices which mark-off the Goudus (tribesmen) from Gowdas, who are plain people. The material set out hereinafter is mainly drawn from the celebrated threatises 'Castes and Tribes of Southern India' by E. Thurston, Vol. II (Pp. 253 (Gumala); 269 (Gouda), and 2773 (Goude), and 'The Castes and Tribes of H.E.H. The Nizam's Dominionsby Syed Sirajul Hasan. Following characteristics, customs and practices of the Goudu Tribe, and of Gowda caste;
'Goudus are mainly pactoral tribe found in scheduled areas of Srikakulam, Vizianagaram and Visakhapatnam districts. (According to 1971 census, their population is 6,256). They are also found in the adjointing parts of Orissa State; their main occupation is breeding of cattle; they are conspicuous by their primitive traits, distinct culture, geographical isolation, extreme backwardness, and shyness of contact. Besides rearing cattle, they collect rubeers and roots and thus partly subsist by flora and fauna of the nature; they acquire their mates by capture, an institution which was prevalent in ancient times. The speak a corrupt form of Oriyya; they are divided into totamic clans; they worship 'Sanku Devudu', Jakari Devata', 'Nishani Devata', etc. They live in forests, isolated from the main stream of the society. They are extremely backward, surviving at a mere subsistence level; besides breedig cattle, they also undertake slash and burn cultivation on hill slopes; men wear loin cloth and women folk are scantily dressed in their traditional style; the percentage of literacy among them is very low; they are very shy of contacting others, and whenever non-trials approach them, they recede into forests.
As against the above, the Goudas ( a caste included in the backward classes, who are also known as 'Gammala', Gamandla', 'Goundla', 'Kalalee', and 'Ediga') are mainly toddy-tappers and vendors of arrack, found throughout the former State of Hyderabad, and throughout the State of Andhra Pradesh. They are included as backward classes under Group 'B', at serial No. 4 in the approved list of socially and educationally backward classes notified by the Government of Andhra Pradesh in G.O.Ms. No. 1793, dated 23-9-1970.'
There are no matrimonial or communal relations between the Goudus living in the Agency tracts, and he Gowdas/Goundlas/Kalalis living in the paints throughout the State. They are two distinct groups with diversity of culture and way of living.
A judgment of another learned single judge of this Court in G. Venkateswara Rao v. District Collector, Khammam : AIR1985AP15 is brought to our notice, where the learned Judge held that G.O.Ms. No. 447 dated 10-7-1979 is beyond the powers of the Government. The learned Judge was of the opinion that
'It is not permissible to draw the distinction that the gouda community whose occupation is toddy-tapping or the tribes who are cattle breeders should come within the particular enumerated item, or not........the petitioner who belongs to the Goud community in respect of agency tracts is entitled to a certificate showing his community as a scheduled tribe within the meaning of item 7 of the second schedule to Act 108 of 1976; (amendment to the Presidential Order)................'
The learned judge purported to follow the Bench decision of this Court in Principal, Guntur Medical College v. Panduranga Rao AIR 1983 Andh Pra 339; but, were find that the said Bench decision merely stated that it is not permissible for the Court to embark upon an enquiry about the possible sub-tribes and synonyms of a tribe not mentioned in the Presidential order and the subsequent notification of the lists by the Parliament will be defeated if the parties are permitted to adduce evidence to show that un-enumerated communities are also included in the list. We think that the judgment of the learned single judge mixes up the two distinct concepts and entitled, viz., 'tribe' and 'caste' -- 'Goudus' and 'Gowdas' - and treats them as inter-changeable which, in our opinion, is not correct.
6. We are also of the opinion that the view taken in the judgment under appeal opens up a broad vista for mischief. Since the Presidential notification does not say that the residence within the Agency tracts should be with reference to a particular date or year, it would be open to all or any of the members of Gowda/Goundla/Kalali community all over the State to set up a small residence, or purchase a small piece of land anywhere in the Agency tract and then claim that they are all members of 'Goudu' scheduled tribe. It would give rise to several anomalous situations. Of the two brothers, one would be a member of the Scheduled tribe if he resides in an Agency tract, and the other not a member of scheduled tribe (but a member of backward class) because he resides outside an Agent tract. We are sure, the President when he issued the notification, or the Parliament when it amended the notification, could never have contemplated permitting such an eventuality. It is well known that members of 'Gowda' caste are spread all over the State; that, their main occupation is toddy tapping; that, they have got toddy tappers' societies spread all over the State and that, some of them are very rich and big contractors taking conttracts worth millions of rupees. It would be curious if such persons are converted into scheduled tribes overnight by simply setting up a residence anywhere in the Agency Tracts in the State.
7. For the above reasons, we are of the opinion that the 1st respondent was, according to her own certificate, belongs to Gowda caste (which is enumerated as one f the backward classes by the Government of Andhra Pradesh is not, and cannot become, nor can she treated as a member of the scheduled tribe 'Goudu' though set is a residential of village within agency tract.
The writ appeal is accordingly allowed and the judgment of the learned Judge is set aside. There shall be no order as to costs. Advocate's fee : Rs. 250/-]
8. Appeal allowed.