1. The question that falls for determination in this Writ Petition is whether the phrase 'Agency tracts' used in Scheduled Castes and Scheduled Tribes Order (Amendment) Act 108 of 1976 should be confined to the Original tracts or can it be enlarged to other areas taking into account other enactments.
2. This writ petition is filed seeking a writ of Mandamus directing the second respondent-Tahsildar, Burgampahad Taluk, to issue a certificate showing that the first petitioner belongs to 'Goud' community of Scheduled Tribe. According to he first petitioner, this certificate will give some benefits for securing preferential treatment in the Common Entrance Examination conducted by the authorities in respect of Regional Engineering College, Warangal. It is averred in the petition that the second respondent issued an order on 12-11-1981 stating that according to G.O. Ms. No. 447 Medical and Health, dt. 10-7-1979, the case of 'Goud' in Burgampahad Taluk does not belong to Scheduled Tribe community. On further representation, the Collector, Khammam stated that the Government issued instructions in G.O. Ms. No. 447, Medical and Health, dt. 10-7-1979 that scheduled tribe certificate should not be given to non-tribal community of plains i.e. Goud and Gonda etc., even though they reside in scheduled areas. It is further stated that distinct tribal community inhabitating in scheduled areas, whose traditional occupation is cattle rearing and it has no connection with Goud community etc. of plains area. The Ist petitioner also placed on record a letter addressed to his brother - one Gundla Prabhakara Rao issued by the Tahsildar, stating that 'Goud' caste in Burgampahad Taluk does not come under the Scheduled Caste community. The second petitioner is father of the first petitioner.
3. It is contended that once the petitioner belongs to the 'Goud' community and the village Pinapaka is now being the agency area, the authorities are bound to issue the certificate and the refusal is wholly without jurisdiction and liable to be interdicted. The Tahsildar filed a counter-affidavit contesting the claim. The learned Government Pleader appearing for the contesting respondents, raised broadly two contentions: (1) The Scheduled Castes and Scheduled Tribes Order (Amendment) Act 108 of 1976 in the Second Schedule, Part I, Item (7) declares 'Goud' (in Agency tracts)' as Scheduled Tribe community, and the Scheduled Areas (Part A States) Order, 1950 mentions only East Godavari, West Godavari and Visakapatnam as agency areas and hence, no other area can be construed as agency tracts for the purpose of the above Act. (2) The Ist petitioner does not belong to the 'Goud' Tribe, but he belongs to 'Goud' Caste and hence, the application is not maintainable.
4. So far the second contention is concerned, the plea is opposed to the evidence on record. Even the impugned order of the Tahsildar, dt. 12-11-1981 states that 'Doud' caste of Burgampahad Taluk does not belong to Scheduled Tribe community. It is not as if there is difference in 'Goud Caste' and 'Goud Tribe'. The order dt. 21-2-1982 also states that 'Goud' caste in Burgampahad Taluk does not come under Scheduled Caste community. The learned counsel drew my attention to the statement of the Ist petitioner's father describing 'kulam' thereby caste. It is clear that the word 'kulam' or 'caste' is used in a broad sense as the authorities are aware of the controversy and they are also stating that the 'Goud' caste does not come under Scheduled Caste community (vide order dated21-2-1982). The expression is not precise when they used caste. In fact the order of the Tahsildar dt. 21-2-1982 states Scheduled Caste community, though the controversy is Scheduled Tribe. So the word 'caste' is used in general description of community but not as though the 'Goud' caste is different from 'goud' tribe and I have no hesitation to overrule this submission.
5. So far the first contention is concerned, the difficulty has arisen as the phrase 'agency tract' was not defined in Act 108 of 1976. Hence it is necessary to examine the constitutional provisions and the legislation touching the subject including the history of agency tracts. After the advent of the Constitution, for the first time, the Constitution (Scheduled Tribes) Order 1950 was issued in exercise of the powers conferred on the President u/Art. 342(1) of the Constitution of India. The Schedule attached to the order enumerates several kinds of scheduled tribes in each State. That order was amended by Act 63 of 1956 known as Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1956. Finally, the present Act 108 of 1976 was passed. The Act was passed as the preamble states its object is to provide for the inclusion and exclusion from the lists of Scheduled castes and Scheduled tribes of certain catses and tribes, for the re-adjustment of representation of parliamentary and Assembly constituencies in so far as such re-adjustment is necessitated by such inclusion or exclusion and for other concerned matters.
6. Let us see how this 'Goud' was described in the successive stages starting from the Constitution (Scheduled Tribes) Order 1950. In the said Order in Part V of the Schedule, Item (8) relating to Maras describes as follows: 'Goudus-Bato, Bhirithya, Dudhokouria Hato, Jatako and Joria.' Part IV relates to Hyderabad Goudas are not listed. In Act 63 of 1956, Schedule III relating to Andhra State the list was enumerated in two parts - one throughout the State and the other in the agency tracts. The first item under the heading 'agency tracts' mentions 'Goudu' (Goud), Nayaks and Valmiki. Finally, the present Act 108 of 1976 in the Second Schedule, part I relating to Andhra Pradesh Item (7) was mentioned as 'Goud' (in agency tracts). It is thus clear that both in the Act 63 of 1956 and Act 108 of 1976, the requirement of the community being situated in agency tracts was mentioned. Now the question is what are these agency tracts. For that, we have to see the following Acts: The Ganiam and Visakhapatnam Act XXIV of 1839; The Scheduled Districts Act XIV of 1874; The laws Local Extent Act XV of 1874; The Agency Tracts interest and Land Transfer Act I of 1917; The Andhra Pradesh Scheduled Areas land Transfer Regulation I of 1959 and The Andhra Pradesh Scheduled Areas Laws (Extension and Amendment) Regulation 2 of 1963.
7. The Ganjam and Visakhapatnam Act XXIV of 1839 was passed for administration of justice and collection of revenue in certain parts of districts of Ganjam and Visakhapatnam. This is one of the earliest local Acts of the Governor- General in Council in force in Madras. S.2 of the Act exempts some ancient and Hill Zamindary tracts situated in those districts from the operation of the rules for the administration of civil and criminal justice, as well as those for the collection of the revenue. The administration of civil and criminal justice in those districts shall be vested in the Collector of the District and shall be exercised by him, as agent for the State Government concerned. S.8 gives the authorities - State Government, to alter the limits of the tracts within the aforesaid districts placed under the jurisdiction of the said Agents.
8. Then, the two Acts, Act XIV of 1874 and XV of 1874 are significant as they declared certain areas as scheduled districts and specifying the extent of the application of the general law to those areas. The Scheduled Districts Act XIV of 1874 defines, under S. (1), the Scheduled Districts to mean 'the territories mentioned in the first schedule of the Act.' Part I of the first schedule covers Scheduled districts in madras area. It enumerates in Ganjam, Visakapatnam and Godavari Districts. Parts II to XIII deal with Scheduled Districts in the other provinces. The object of the Act is to remove the doubts of the operation of the general Acts and Regulations and the jurisdiction of the ordinary Courts of Judicature, and define the extent to which those general laws applicable to Scheduled Districts. S.6 of the Act empowers the Government to appoint officers to administer civil and criminal justice and to superintend the settlement and collection of the public revenue, and to conduct the administration within the Scheduled Districts and matters incidental and connected with the administration by those officers. Its sister Act viz., The Laws Local Extent Act XV of 1874 declares the local extent of certain Acts passed by the Governor- General of India in Council and other authorities. S.2 of the Act again mentions the Scheduled District to mean, territories mentioned in VI Schedule to that Act. The VI Schedule in Part II covers (Ganjam, Vijayanagaram and Godavari Districts as described in Scheduled Districts Act XIV of 1874. S.3 makes the Act mentioned in the First Schedule applicable throughout India except the schedule districts. S.4 enumerates the Acts applicable throughout the territory subject to the Government of the Governor of Fort St. George in Council i.e. former Madras State except the schedule districts. Similarly Ss. 5, 6 and 7 relate to the laws applicable to Bengal, Bombay and North West Provinces. S. 8 empowers the authorities to extend the laws in the first Schedule of the Laws in the respective provinces to the scheduled districts. The object of the two enanctments is to define the limits of the application of the Acts to the Scheduled Districts which is under the Administration of officers appointed u/s. 6 of Act 14 of 1874.
9. Then we come to Act 1 of 1917. It was passed to regulate the rate of interest and prohibiting the transfer of lands in Ganjam, Visakhapatnam and Godavari areas. Those areas were described as agency tracts. Because, by that time, those three areas were under the administration of an agent. S.2 (a) of the Act defines, agency tracts means. 'Scheduled Districts as defined in Act XIV of 1874 - The Scheduled Districts Act and Act XV of 1974, The Laws Local Extent Act of 1874 and included the Districts of Ganjam, Visakhapatnam and Godavari. The Agent was defined in S.2 (b) as 'Agent to a Governor, in the Districts of Ganjam, Visakhapatnam and the Government Agent of the District Godavari.' After the Government of India Act 1935 came into force on 1-4-1937 these areas came to be known as excluded or partially excluded areras and Ss. 91 and 92 of the said Act empowered the respective Governors of the Provinces to administer those areas and extend the laws and modify them to those areas as envisaged by The Scheduled Districts Act 14 of 1874 and The Laws Local Extent Act 15 of 1974 vide Venkata Surya Sivarama v. State of Andhra Pradesh, : 2SCR535 . After the advent of the Constitution, Art. 244 read with Para. 6 to Sch. V, gives power to the President to declare a particular area as a scheduled area. But the power of administration of those areas and to make regulations for the governance of those areas was given to the Governor of the State under Para. 5 of Sch. V. u/Para 5, the Governor may, by a public notification direct that any particular Act of Parliament or of Legislature of a State shall not apply to a Scheduled area or a part thereof in a State subject to such exceptions and modifications as may specify in the notification. Accordingly the President made Scheduled Areas (Part A) States Order in 1950 declaring what areas shall be the scheduled areas within the States in Part A of the first schedule of the Constitution and Scheduled Areas (Part B) States Order, 1950 declaring what areas should be scheduled areas in Part B of the First Schedule of the Constitution. In the Scheduled areas of Part A States Order of 1950 elating to the former estate of Madras, we find East Godavari, West Godavari and Visakhapatnam agencies declared as scheduled areas. Similarly in The Scheduled Areas (Part B) States Order 1950 relating to former Hyderabad State in Para 13 we find all villages of Paloncha Taluk of Warangal District except enumerated villages were declared as scheduled areas.
10. It is necessary to refer in this connection to the Notification issued under Hyderabad Land Revenue Act 1317 Fasli on 18-5-53 dividing the former Hyderabad State into several districts comprising the taluks mentioned against each of the schedules annexed to the order. In that proceedings the Khammam district was declared to comprise Madhira, Paloncha, Yellandu and Burgampahad. That was why when the Regulation of 1959 was issued in Para 5(2) of the First Schedule of the Constitution the agency tracts were defined to mean, the areas in the Districts of East Godavari, West Godavari, Visakhapatnam, Srikakulam, Adilabad, Warangal, Khammam and Mahabubnagar'. S.2 (b) of the above Regulation defines 'Agent' means the person designated by the State Government as an 'Agent to the Government' in the Districts of East Godavari, West Godavari, Visakhapatnam, Srikakulam, Adilabad, Warangal, Khammam or Mahaboobnagar as the case may be.'
11. The last Regulation in the list which is necessary to refer is the Andhra Pradesh Scheduled Areas Laws (Extension and Amendment) Regns. 2 of 1963. This was issued u/Para. 5(2) of the V Schedule in the Constitution for the purpose of extending certain laws in force in the Scheduled areas in the territories which immediately before the Ist Nov. 1956 and comprised in the State of Andhra to the Scheduled Areas in the whole of the State i.e., the laws prior to the State reorganisation in Andhra Area so far they are applicable to scheduled areas are extended to the scheduled areas of other parts of the State. S.2 of the said Act extends the agency rules, Regn. 1 of 1959 and other cognate Acts to Scheduled areas in the whole of the State of Andhara Pradesh.
12. This narrative clearly discloses that the scheduled districts are brought under the administration of agent of the local Government and hence they are known to be agency areas. So far Ganjam and Visakhapatnam districts are concerned they are brought under the administration of special agent even before the Scheduled Districts Act came into force. However they were also again brought under the purview of the Scheduled Districts act, after The Scheduled Districts Act, after The Scheduled Districts Act 14 of 1974 and the sister Act 15 of 1875 came into force. We have also seen that u/para 6(2) of Schedule V of the Constitution the President has to declare the scheduled areas of the respective States but its governance was given to the Governor under para. 5 who is empowered to extend the local laws or modify the local laws in their application to the scheduled areas. The contention of the Government Pleader is that the scheduled areas (Part A) States Order, 1950 mentions East Godavari, West Godavari and Visakhapatnam agencies only, and unless a fresh notification is issued including the additional areas, other areas cannot be considered as agency areas for the purpose of Scheduled Castes and Scheduled Tribes Order Amendment Act 108 of 1976 cannot be accepted, if we look into the scope and ambit of para. 6 of the V Schedule. Para 6 of the V Schedule empowers the President to declare by an order the scheduled areas. The said provision does not empower him to declare any part of those scheduled areas as agency tracts or agency areas. It is para 5 that empowers the Governor to make Regulation for the peaceful and good government of any area in a State which is for the time being a scheduled area or extend any laws with such exceptions and modifications to the scheduled areas. In fact paras 5 and 6 of the V Schedule do not contemplate any agency areas or tracts. It is for the Governor while administering these areas to declare any agency areas either in whole or in part from out of such scheduled areas and make necessary laws and keep such areas under the administration of the Agent. Now it is not disputed that Paloncha taluk was declared as a scheduled area in the Scheduled Areas (Part B) States Order, 1950 in Para 13 of the Order. The said Paloncha taluk was now included in the Khammam District as per the notification dt. 18-9-53 and it is not in dispute that the said village is included kin Paloncha taluk. Hence it is a village in a scheduled area, and it was declared to be agency tract as per S.3 (a) of the Andhra Pradesh Scheduled Areas Land Transfer Regulations 1959 and Regn. 2 of 1963 extended the entire Andhra Agency Rules and Regns. 1 of 1959, I of 1960 and II of 1960 to the entire Scheduled area of the State of Andhra Pradesh thus bringing under the administration of the Agent and which can be clearly described as agency tracts. When the Regulations were issued under the very constitutional provision viz., Sch. V of para. 5 of the Constitution describing the area in question as agency tracts there is no legal infirmity in treating those areas as agency tracts for the purpose of Act 108 of 1976. The description of former East Godavari, West Godavari and Visakhapatnam districts as agencies is a historic narration by the President while issuing the Scheduled Areas (Part A) States order, 1950, In fact the President was not empowered u/para 6 of Sch. V to declare any particular area as an agency area. In view of the fact that those three districts were already agency areas while declaring them as scheduled areas they were described as such. But the said description does not constitute the declaration of such scheduled areas as agency areas and hence I have no hesitation in overruling the objection of the respondents-State.
13. Once this area is a scheduled tract, the petitioner belongs to the Goud community. As held by a Division Bench of this Court in Principal, Guntur Medical College v. Panduranga Rao, (1983) 2 Andh LT 121: (AIR 1983 Andh Pra 339), 'This Court cannot embark on an enquiry about the possible sub -tribes and synonyms of a tribe not mentioned in the presidential Order as the main object of the Presidential Order and subsequent notification of the lists by the Parliament will be defeated if the parties are permitted to adduce evidence to show that unenumerated communities are also included in the list'. It is ruled by this Court that such course will defeat the very object of Arts. 341 and 342 of the Constitution and the subsequent Acts of parliament. Hence it is clear the State Government or any other authority cannot enlarge the list of enumerated communities or restrict its operation by drawing distinctions of local customs and habits. 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. Such direction of the State Government is wholly without jurisdiction for deciding whether a particular person belongs to the said community or not and consequently the clarification given in G.O. Ms. No. 447, dt. 10th July 1979 for the purpose of admission to the First Year M.B.B.S. Course cannot be a criteria for judging whether a particular community comes within Item 7 of the enumerated list of Act 108 of 1976. Hence I am clearly of the opinion that 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. I accordingly allow the writ petition and issue an appropriate direction certificate showing that he belongs to the Goud Community of the schedule tribe I. Make no order as to costs. Advacate's fee Rs.150/-.
14. Petition allowed.