judgement:
Civil Appeal No. 1171 of 1973.
B From the judgment and order dated the 19th July, 1973 of the Mysore High Court at Bangalore in Election Petition No. 3 of 1972.
M. N. Phadke, M/s. N. M. Ghatate and section Balakrishnan for the appellant.
A. K. Sen, G. L. Sanghi, M/s. M. Veerappa and Altaf Ahmed for the respondents.
The Judgment of the Court was delivered by BHAGWATI, J.
This appeal under section 116 A of the Representation of People Act, 1951 is directed against an order made by the High Court of Mysore setting aside the election of the appellant on the ground that the nomination paper of the 1st respondent was improperly rejected by the Returning officer.
This litigation does not stand in isolation.
It has a history and that is necessary to be noticed in order to appreciate the arguments which have been advanced on behalf of both parties in the appeal.
The appellant and the 1st respondent have been opponents in the electoral battle since a long time.
The constituency from which they have been standing as candidates is 68 KGF Constituency for election to the Mysore Legislative Assembly.
They opposed each other as candidates from this constituency in 1967 General Election to the Mysore Legislative Assembly.
Now, the seat from this constituency was a seat reserved for Scheduled Castes and, therefore, only members of Scheduled Castes could stand as candidates from this constituency.
The expression "Scheduled Castes" has a technical meaning given to it by cl.(24) of article 366 of the Constitution and it means "such castes, races or tribes or parts Of or groups within such castes or tribes as are deemed under article 341 to be Scheduled Castes for the purpose of the Constitution".
The President, in exercise of the power conferred upon him under article 341 issued the Constitution (Scheduled Castes) order, 1950.
Paragraphs 2 and 3 of.
this order are material and, since the amendment made by Central Act 63 of 1956, they are in the following terms: "2.
Subject to the provisions of this order, the castes, races or tribes or parts of, or groups within castes or tribes specified in Part I to XIII of the Schedule to this order shall, in relation to the States to which those parts respectively relate, be deemed to be scheduled castes so far as regards members thereof resident in the localities specified in relation to them in those Parts of that Schedule.
Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu or the Sikh religion shall be deemed to be a member of a Scheduled Castes.
" The Schedule to this order in Part VIII sets out "the castes, races or tribes or parts of or groups within castes or tribes" which shall in the different areas of the State of Mysore be deemed to be Scheduled Castes.
We are concerned with cl.
(1) of Part VIII as the area of 68 KGF Constituency is covered by that clause.
One of the castes specified there is Adi Dravida and that caste must, therefore, for the purpose of election from 68 KGF Constituency, be deemed to be a Scheduled Caste.
The appellant was admittedly, at the date when he Filed his nomination paper for the 1967 election from 68 KGF Constituency, an Adi Dravida professing Hindu religion and was consequently qualified to stand as a candidate for the reserved seat from this constituency.
The 1st respondent also claimed to be an Adi Dravida professing Hindu religion and on this basis, filed his nomination from the same constituency.
The appellant and the 1st respondent were thus rival candidates in fact they were the only two contesting candidates r and in a straight contest, the 1st respondent defeated the appellant and was declared elected.
The appellant thereupon filed election petition No. 4 of 1967 in the Mysore High Court challenging the election of the 1st respondent on the ground that the 1st respondent was not an Adi Dravida professing Hindu religion at the date when he filed his nomination and u as, therefore, not qualified to stand as a candidate for the reserved seat from 68 KGF Constituency.
The Mysore High Court, by an order dated 30th August, 1967, held that the 1st respondent was converted to Christianity in 1949 and on such conversion, he ceased to be an Adi Dravida and, therefore, at the material date, he could not be said to be a member of a Scheduled Caste, nor did he profess Hindu religion and he was consequently not eligible for being chosen as a candidate for election from a reserved constituency.
The 1st respondent being aggrieved by the order setting aside his election, preferred C.A. No. 1553 of 1967 to this Court under section 116A of the Representation of People Act, 1951.
This Court addressed itself to four question, namely, first, whether the 1st respondent had become a convert to Christianity in 1949; secondly, whether, on such conversion, he ceased to be a member of Adi Dravida caste; thirdly, whether he had reverted to Hinduism and started professing Hindu religion at the date of filing his nomination, and lastly, whether on again professing the Hindu religion, he once again became a member of Adi Dravida caste.
So far as the first question was concerned, this Court, on a consideration of the evidence, held that the 1st respondent was converted to Christianity in 1949 and in regard to the second question, this Court observed that it must be held that when the 1st respondent embraced Christianity in 1949, he ceased to belong to Adi Dravida caste.
This Court then proceeded to consider the third question and held that having regard to the seven circumstances enumerated in the judgment, it was clear that at the relevant time in 1967.
that is in January February 1967, the 1st respondent was professing 87 Hindu religion.
That led to a consideration of the last question as to the effect of reconversion of the 1st respondent to Hinduism.
This Court referred to a number of decisions of various High Courts which laid down the principle that reconversion to Hinduism, a person can become a member of the same caste in which he was born and to which he belonged before having been converted to another religion" , and pointed out that the main basis on which these decisions proceeded was that "if the members of the caste accept the reconversion of a person as a member,` it should be held that he does become a member of that caste, even though he may have lost membership of that caste on conversion to another religion".
This Court, however, did not consider it necessary to express any opinion on the correctness of these decisions, as it found that even if the principle enunciated in these decisions was valid, the 1st respondent did not give evidence to t satisfy the requirements laid down by this principle and "failed to establish that he became a member of the Adi Dravida Hindu caste after he started professing the Hindu religion".
This Court observed that "whether the membership of a caste can be acquired by con version to Hinduism or after reconversion to Hinduism is a question on which we have refrained from expressing our opinion, because on the assumption that it can be acquired, we have arrived at the conclusion that the appellant"; that is, the 1st respondent in the present , case must fail in this appeal".
This Court accordingly upheld the decision of the High Court and dismissed the appeal.(1) This decision was given by a Bench consisting of two judges on 3rd May, 1968.
In the three or four years that followed certain events happened to which we shall refer a little later.
Suffice it to state for the present that, according to the 1st respondent, these events showed that the members of the Adi Dravida caste accepted him as a member and regarded him as belonging to their fold.
The next General Election to the Mysore Legislative Assembly took place in 1972.
There was again a contest from 68 KGF Constituency which was reserved for candidates from Scheduled Castes.
The appellant filed his nomination as a candidate from this constituency and so did the 1st respondent.
The nomination of the 1st respondent was, however, objected by the appellant on the ground that the 1st respondent was not an Adi Dravida professing Hindu religion at the date of filing his nomination and he was, therefore, not qualified to stand as a candidate for the reserved seat from this constituency.
The 1st respondent rejoined by saying that he was never converted to Christianity and that in any event, even if it was held that he had be" come a Christian, he was reconverted to Hinduism since long and was accepted by the members of the Adi Dravida caste as belonging to their fold and was, therefore, an Adi Dravida professing Hindu religion at the material date and hence qualified to stand as a candidate.
The Returning officer, by an order dated 9th February, 1972 up held the objection of the appellant and taking the view that, on con version to Christianity, the 1st respondent ceased to be an Adi Dravida and thereafter on reconversion, he could not claim the benefit of the Constitution (Scheduled Castes) order, 1950, the Returning officer (1) section Rajagopal vs C.M. Arumugam, 7 L390 SCI/76 88 rejected the nomination of the 1st respondent.
The election thereafter took place without the 1st respondent as a candidate and the appeliant, having obtained the highest number of votes, was declared elected.
The 1st respondent filed Election Petition No. 3 of 1972 in the High Court of Mysore challenging the election of the appellant on the ground that the nomination of the 1st respondent was improperly rejected.
This was a ground under section 100(1)(c) of the Act and if well founded, it would be sufficient, without more, to invalidate the election.
The point which was, therefore, seriously debated before the High Court was whether the nomination of the 1st respondent was improperly.
rejected and that in its turn depended on the answer to the question whether the 1st respondent was an Adi Dravida professing Hindu religion at the date of filing his nomination.
There were four aspects bearing on this question which arose for consideration and they were broadly the same as in the earlier case (supra).
, namely, whether the 1st respondent embraced Christianity in 1949, whether on his conversion to Christianity he ceased to belong to Adi Dravida caste, whether he was reconverted to Hinduism and whether on such reconversion, he was accepted by the members of the Adi Dravida caste as belonging to their fold.
So far as the first three aspects were concerned, the High Court took the view that they must be taken to be concluded by the decision of this Court in the earlier case (supra) and the discussion of the question must, therefore, proceed on the established premise that the Ist respondent was born an Adi Dravida Hindu, he was converted to Christianity in 1949 and on such conversion he lost his capacity as an Adi Dravida Hindu and at least by the year 1967, he had once again started professing Hindu religion.
Visa vis the fourth aspect, the High Court observed: "It is settled law that reconversion to Hinduism does not require any formal ceremony or rituals or expiratory ceremonies, that a reconvert to Hinduism can revert to his original Hindu caste on acceptance by the members of that caste and that the quantum and degree of proof of acceptance depends on the facts and circumstances of each case, according to the established customs prevalent in a particular locality amongst the caste there", and on this view of the law, the High Court proceeded to examine the evidence led on behalf of the parties and pointed out that this evidence established twelve important circumstances subsequent to January February 1967 which clearly showed that the 1st respondent was accepted into their fold by the members of the Adi Dravida caste and he was, therefore, at the material time, an Adi Dravida professing Hindu religion as required by Paragraphs 2 and 3 of the Constitution (Scheduled Caste) order, 1950.
The High Court, in this view, held that the nomination of the 1st respondent was improperly rejected by the Returning officer and that invalidated the election under section 100(1)(c) of the Act.
The High Court accordingly set aside the election of the appellant and declared it to be void.
This judgement of the High Court is impugned in the present appeal under section 116A of the Act.
Now before we deal with the contentions urged on behalf of the appellant in support of the appeal, it would be convenient first to 89 refer to two grounds which were held by the High Court against the A 1st respondent.
The 1st respondent contended that these two grounds were wrongly decided against him and even on these two grounds, he was entitled to claim that, at the material time, he was an Adi Dravida professing Hindu religion.
The first ground was that he was never converted to Christianity and the second was, that, on such conversion, he did not cease to be an Adi Dravida.
The appellant disputed the claim ' of the 1st respondent to agitate these two grounds in the appeal before us.
The reason given was that the 1st respondent had not pressed them in the course of the arguments before the High Court and had conceded that, in view of the judgment of this Court in the earlier case, Issue No. 3, which raised the question: "Whether the petitioner having abandoned Hinduism and embraced Christianity in the year 1949 had lost the membership of the Adi Dravida Hindu caste and incurred the disqualification under Paragraph of the Constitution (Scheduled Castes) Order, 1950" and "Is this issue concluded against the petitioner by virtue of the judgment of the High Court in Civil Appeal 1553 of 1967", did not survive for consideration.
There can be no doubt that so far as the first of these two grounds is concerned, there is force in the objection raised on behalf of the appellant.
The question whether the 1st respondent abandoned Hinduism and embraced Christianity in 1949 is essentially a question of fact and if, at the stage of the arguments before the High Court, the 1st respondent conceded that, in view of the decision of this Court in the earlier case, this question did not survive for consideration and the High Court, acting on the concession of the 1st respondent, refrained from examining the question on merits and proceeded on the basis that it stood concluded by the decision of this Court in the earlier case, how could the 1st respondent be now permitted to reagitate this question at the hearing of the appeal before this Court ? The 1st respondent must be held bound by the concession made by him on a question of fact before the High Court.
We cannot, therefore, permit the 1st respondent to raise an argument that the evidence on record does not establish that he embraced Christianity in 1949.
We must proceed on the basis that he was converted to Christianity in that year The position is, however, different when we turn to the question whether, on conversion to Christianity, the 1st respondent ceased to be a member of the Adi Dravida caste.
That question is a mixed question of law and fact and we do not think that a concession made by the 1st respondent on such a question at the stage of argument before the High Court, can preclude him from reagitating it in the appeal before this Court, when it formed the subject matter of an issue before the High Court and full and complete evidence in regard to such issue was led by both parties.
It is true that this Court held in the earlier case that, on embracing Christianity in 1949, the 1st respondent ceased to be a member of the Adi Dravida caste, but this decision given in a case relating to 1967 General Election on the basis of the evidence led in that case, cannot be res judicata in the present case which relates to 1972 General Election and where fresh evidence 90 has been adduced on behalf of the parties, and more so, when all the parties in the present case are not the same as those in the earlier case.
It is, therefore, competent to us to consider whether, on the evidence on record in the present case, it can be said to have been established that, on conversion to Christianity in 1949, the 1st respondent ceased to belong to Adi Dravida caste.
It is a matter of common knowledge that the institution of caste is a peculiarly Indian institution.
There is considerable controversy amongst scholars as to how the caste system originated in this country.
It is not necessary for the purpose of this appeal to go into this highly debatable question.
It is sufficient to state that originally there were only four main castes, but gradually castes and sub castes multiplied as the social fabric expanded with the absorption of different groups of people belonging to various cults and professing different religious faiths.
The caste system in its early stages was quite elastic but in course of time it gradually hardened into a rigid framework based upon heredity.
Inevitably it gave rise to graduation which resulted in social inequality and put a premium on snobbery.
The caste system tended to develop, as it were, group snobbery, one caste looking down upon another.
Thus there came into being social hierarchy and stratification resulting in perpetration of social and economic injustice by the so called higher castes on the lower castes.
It was for this reason that it was thought necessary by the Constitution makers to accord favoured treatment to the lower castes who were at the bottom of the scale of social values and who were afflicted by social and economic disabilities and the Constitution makers accordingly provided that the President may specify the castes and these would obviously be the lower castes which had suffered centuries of oppression and exploitation which shall be deemed to be Scheduled Castes and laid down the principle that seats should be reserved in the legislature for the Scheduled Castes as it was believed and rightly, that the higher castes would not properly represent the interest of these lower castes.
But that immediately raises the question: what is a caste? When we speak of a caste, we do not mean to refer in this context to the four primary castes but to the multiplicity of castes and sub castes which disfigure the Indian social scene.
"A caste", as pointed out by the High Court of Madras in Cooppoosami Chetty vs Duraisami Chetty (1) "is a voluntary association of persons for certain purposes.
" It is a well defined yet fluctuating group of persons governed by their own rules and regulations for certain internal purposes.
Sir H. Risley has shown in his book on People of India how castes are formed based not only on community of religion, but also on community of functions.
It is also pointed out by Sankaran Nair, J., in Muthusami vs Masilamani(2): "a change in the occupation sometimes creates a new caste.
A common occupation sometimes combines members of different castes into a distinct body which becomes a new caste.
Migration to another place makes sometimes a new caste".
A caste is more a social combination than a religious Group.
But since, as (1) I. L. R. (2) l. L. R. 91 pointed out by Rajamannar, C.J., in C. Michael vs section Venkateswaran (1), ethics provides the standard for social life and it is founded ultimately on religious beliefs and doctrines, religion is inevitably mixed up with social conduct and that is why caste has become an integral feature of Hindu society.
But from that it does not necessarily follow as an invariable rule that whenever a person renounces Hinduism and embraces another religious faith, he automatically ceases to be a member of the caste in which he was born and to which he belonged prior to his conversion.
It is no doubt true; and there we agree with the Madras High Court in C. Michael 's case (supra) that the general rule is that conversion operates as an expulsion from the caste or, in other words, the convert ceases to have any caste, because caste is predominantly a feature of Hindu society and ordinarily a person who ceases to be a Hindu would not be regarded by the other members of the caste as belonging to their fold.
But ultimately it must depend on the structure of the caste and its rules and regulations whether a person would cease to belong to the caste on his abjuring Hinduism.
If the structure of the caste is such that its members must necessarily belong to Hindu religion, a member, who ceases to be a Hindu, would go out of the caste, because no non Hindu can be in the caste according to its rules and regulations.
Where, on the other hand, having regard to its structure, as it has evolved over the years, a caste may consist not only of persons professing Hindu religion but also persons professing some other religion as well, conversion from Hinduism to that other religion may not involve loss of caste, because even persons professing such other religion can be members of the caste.
This might happen where caste is based on economic or occupational characteristics and not on religious identity or the cohesion of the caste as a social group is so strong that conversion into another religion does not operate to snap the bond between the convert and the social group.
This is indeed not an infrequent phenomenon in South India where, in some of the castes, even after conversion to Christianity, a person is regarded as continuing to belong to the caste.
When an argument was advanced before the Madras High Court in G. Michael 's case (supra) "that there were several cases in which a member of one of the lower castes who has been converted to Christianity has continued not only to consider himself as still being a member of the caste, but has also been considered so by other members of the caste who had not been converted," Rajamannar, C.J., who, it can safely be presumed, was familiar with the customs and practices prevalent in South India, accepted the position "that instances can be found in which in spite of conversion the caste distinctions might continue", though he treated them as exceptions to the general rule.
The High Court of Andhra Pradesh also affirmed in Kothapalli Narasayya vs Jammana Jogi(2) that "notwithstanding conversions, the converts whether an individual or family or group of converts, may like to be governed by the law by which they were governed before they became converts and the community to which they originally H (1) A.I.R. 1952 Mad.
(2) 30 L. R. 1.
92 belonged may also continue to accept them within their fold notwithstanding conversion", and proceeded to add: "While tendency to divide into sects and division to form new sects with their own religious and social observances is a characteristic feature of Hinduism it should be remembered that sects were formed not only on community of religions but also community of functions.
Casteism which has taken deep roots in Hinduism for some reason or other may not therefore cease its existence even after conversion.
May be that the religion or faith to which conversion takes place, on grounds of policy or otherwise, does not take exception to this social order which does not interfere with its spiritual or theological aspect which is the main object of the religion.
That is why we find several members of lower castes converted to Christianity in Madras State still continue to the members of their castes Thus a conversion does not necessarily result in extinguishment of caste and notwithstanding conversion, a convert may enjoy the privileges social and political by virtue of his being a member of the community with its acceptance.
" The elected candidate in this case was held to continue to belong to the Mala Andhra Caste which was a Scheduled Caste, despite his conversion to Christianity.
It was again reiterated by the High Court of Andhra Pradesh in a subsequent decision reported in K. Narasimha Reddy vs G. Bhupathi(1) that survival of caste after conversion to Christianity is not an unfamiliar phenomenon in this part of the country and it was held that, even after his conversion to Christianity, the elected candidate, who belonged to Bindla caste, specified as a Scheduled Caste, continued to retain his caste, since he never abjured his caste nor did his caste people ostracize or excommunicate him.
The caste system is indeed so deeply ingrained in the Indian mind that, as pointed out by this Court in Ganpat vs Returning Officer ,(2) "for a person who has grown up in Indian society, it is very difficult to get out of the coils of the caste system" and, therefore, even conversion to another religion like Christianity, has in some cases no impact on the membership of the caste and the other members continue to regard the convert as still being a member of the caste.
This Court pointed out in Ganpat`s case (supra) that "to this day one sees matrimonial advertisements which want a Vellala Christian bride or Nadar Christian bride" which shows that Vellala and Nadar comprise both Hindus and Christians.
lt seems that the correct test for determining this question is the one pointed out by this Court in Chatturbhuj Vithaldas Jasani vs Moreshwar Prasahram.(J) Bose, J., speaking on behalf of the Court in this case pointed out that when a question arises whether conversion operates as a break away from the caste "what we`have to (1) 31E.L.R.211.
(2) ; (3) ; 93 determine are the social and political consequences of such conversion h that, we feel, must be decided in a common sense practical way rather than on theoretical and theocratic grounds".
The learned Judge then proceeded to add: "Looked at from the secular point of view, there are " three factors which have to be considered: (1) the reactions of the old body, (2) the intentions of the individual himself and (3) the rules of the new order.
If the old order is tolerant of the new faith and sees no reason to outcaste or ex communicate the convert and the individual himself desires and intends to retain his old social political ties, the conversion is only nominal for all practical purposes and when we have to consider the legal and political rights of the old body, the views of the new faith hardly matter.
" What is, therefore, material to consider is how the caste looks at the question of conversion.
Does it outcaste or ex communicate the convert or does it still treat him as continuing within its fold despite his conversion ? If the convert desires and intends to continue as a member of the caste and the caste also continues to treat him as a member, notwithstanding his conversion, he would continue to be a member of the caste and, as pointed out by this Court "the views of the new faith hardly matter".
This was the principle on which it was decided by the Court in Chatturbhuj Vithaldas Jasani 's case (supra) that Gangaram Thaware, whose nomination as a Scheduled Caste candidate was rejected by the Returning officer, continued to be a Mahar which was specified as a Scheduled Caste, despite his conversion to the Mahanubhav faith.
Paragraphs 2 and 3 of the Constitution (Scheduled Castes) order, 1950 also support the view that even after conversion, a person may continue to belong to a caste which has been specified in the Schedule to that order as a Scheduled Caste.
Paragraph 2 provides that the castes specified in the Schedule to the order shall be deemed to be Scheduled Castes but Paragraph 3 declares that, notwithstanding anything contained in Paragraph 2, that is, notwithstanding that a per son belongs to a caste specified as a Scheduled Caste, he shall not be deemed to be a member of the Scheduled Caste, if he profess a religion different from Hindu or Sikh religion.
Paragraphs 2 and 3 read together thus clearly recognise that there may be castes specified as Scheduled Castes which comprise persons belonging to a religion different from Hindu or Sikh religion and if that be so, it must follow a fortiori, that in such castes, conversion of a person from Hinduism cannot have the effect of putting him out of the caste.
though by reason of Paragraph 3 he would be deemed not to be a member of a Scheduled Caste.
It cannot, therefore, be laid down as an absolute rule uniformly applicable in all cases that whenever a member of a caste is converted from Hinduism to Christianity, he loses his membership of the caste.
It is true that ordinarily on conversion to Christianity, he would cease to a member of the caste, but that is not an invariable rule.
It 94 would depend on the structure of the caste and its rules and regulations.
There are castes, particularly in South India, where this consequence does not follow on conversion, since such castes com prise both Hindus and Christians.
Whether Adi Dravida is a caste which falls within this category or not is a question which would have to be determined on the evidence in this case.
There is on the record evidence of Kakkan (PW 13) J. C. Adimoolam (RW 1) and K. P Arumugam (RW 8), the last two being witnesses examined on behalf of the appellant, which shows.
that amongst Adi Dravidas, there are both Hindus and Christians and there are intermarriages between them.
It would, therefore, prima facie seem that, on conversion to Christianity, the 1st respondent did not cease to belong to Adi Dravida caste.
But in the view we are taking as regards the last contention, we do not think it necessary to express any final opinion on this point.
The third question in controversy between the parties was whet her the 1st respondent was reconverted to Hinduism.
This question stands concluded by the decision of this Court in the earlier case and it must be held, for the reasons set out in that decision, that at any rate since prior to January February 1967, the 1st respondent was reconverted to Hinduism and, therefore, at the material time, he was professing the Hindu religion, so as to satisfy the requirement of Paragraph 3 of the Constitution (Scheduled Castes) order, 1950.
The last contention, which formed the subject matter of controversy between the parties, raised the issue whether on reconversion to Hinduism, the 1st respondent could once again become a member of the Adi Dravida caste, assuming that he ceased to be such on conversion to Christianity.
The argument of the appellant was that once the 1st respondent renounced Hinduism and embraced Christianity, he could not go back to the Adi Dravida caste on reconversion to Hinduism.
He undoubtedly became a Hindu, but he could no longer claim to be a member of the Adi Dravida caste.
This argument is not sound on principle and it also runs counter to a long line of decided cases.
Ganapathi Iyer, a distinguished scholar and jurist, pointed out as far back as 1915 in his well known treatise on 'Hindu Law ': " caste is a social combination, the members of which are enlisted by birth and not by enrolment.
People do not join castes or religious fraternities as a matter of choice (in one respect); they belong to them as a matter of necessity ; they are born in their respective castes or sects.
lt cannot be said, however, that membership by caste is deter.
mined only by birth and not by anything else," (emphasis supplied) Chandravarkar, J., observed in Nathu vs Keshwaji(1): "It is within the power of a caste to admit into its fold men not born in it as it is within the power of a club to admit anyone it likes as its member.
To hold that the membership of a caste is determined by birth is to (1) I. L. R. 26.Bom. 174.
95 hold that the caste cannot, if it likes, mix with another caste and form both into one caste.
That would be striking at the very root of caste autonomy.
" Sankaran Nair, J., made observations to the same effect in Muthusami`s case (supra) and concluded by saying: "It is, of course, open to a community to admit any person and any marriage performed between him and any member would in my " opinion, be valid".
Ganapathi Iyer, after referring to these two decisions, proceeded to add: Of course it is open to a person to change his caste by entering another caste if such latter caste will admit him in this sense there is nothing to prevent a person from giving up his caste or community just as the caste may re admit an expelled person or an outcasted person if he conforms to the caste observances.
" Since a caste is a social combination of persons governed by its rules and regulations, it may, if its rules and regulations so provide, admit a new member just as it may expel an existing member.
The rules and regulations of the caste may not have been formalised.
: they may not exist in black and white: they may consist only of practices and usages.
If, according to the practices and usages of the caste any particular ceremonies are required to be per formed for readmission to the caste, a reconvert to Hinduism would have to perform those ceremonies if he seeks readmission to the caste.
That is why Parker, J., dealing with the possible readmission of a reconvert to Brahmanism observed in Administrator General of madras vs Anandchari(1) : "His conversion to Christianity according to the Hindu law, rendered him an outcaste and degraded.
But according to that law, the degradation might have been atoned for, and the convert readmitted to his status as a Brahmin, had he at any time during his life renounced Christianity and performed the rites of expiation enjoined by his caste.
" The rites of expiation were referred to by the learned Judge because they were enjoined by the Brahmin caste to which the reconvert wanted to be readmitted.
But if no rites or ceremonies are required to be performed for readmission of a person as a member of the caste, the only thing necessary for eradication would be the acceptance of the person concerned by the other members of the caste.
This was pointed out by Varadachariar, J., in Gurusami Nadar vs Irulappa Konar(2); where after referring to the aforesaid passage from Administrator General of Madras vs Anandchari (supra), the learned Judge said: "The language used in merely refers to the expiatory ceremonies enjoined by the practice of the community in question; and with reference to the class of people we are now concerned with, no suggestion has anywhere been made in the course of the evidence that any particular expiatory ceremonies are observed amongst them.
No particular ceremonies are prescribed for them by the Smriti writers nor have they got to perform any Homas.
One has therefore only to look at the sense of the community and (1) I. L. R. (2) A. I. R.
96 from that point of view it is of particular significance that the community was prepared to receive Vedanayaga and defendant 5 as man and wife and their issue as legitimate.
" These observations of Varadachariar, J., were approved by Mockett, J., in Durgaprasada Rao vs Sudarsanaswami(1) and he pointed out that in the case before him, there was no evidence of the existence of any ceremonial in Vada Baligi fishermen community of Gopalpur for readmission to that community.
Krishnaswami Ayyangar, J., also observed in the same case that "in matters affecting the well being or composition of a caste, the caste itself is the supreme judge".
(emphasis supplied).
The same view has also been taken in a number of decisions of the Andhra Pradesh and Madras High Courts in election petitions arising out of 1967 General Election.
These decisions have been set out in the judgment of this Court in Rajagopal vs C. R. Arumugam (supra).
These cases show that the consistent view taken in this country from the time Administrator General of Madras vs Anandachari (supra) was decided, that is, since 1886 has been that on reconversion to Hinduism, a person can once again become a member of The caste in which he was born and to which he belonged before con version to another religion, if the members of the caste accept him as a member.
There is no reason either on principle or on authority which should compel us to disregard this view which has prevailed for almost a century and lay down a different rule on the subject.
If a person who has embraced another religion can be reconverted to Hinduism, there is no rational principle why he should not be able to come back to his caste, if the other members of the caste are pre pared to readmit him as a member.
It stands to reason that he should be able to come back to the fold to which he once belonged, provided of course the community is willing to take him within the fold.
It is the orthodox Hindu society still dominated to a large extent, particularly in rural areas, by medievalistic outlook and status oriented approach which attaches social and economic disabilities to a person belonging to a Scheduled Caste and that is why certain favoured treatment is given to him by the Constitution.
Once such a person ceases to be a Hindu and becomes a Christian, the social and economic disabilities arising because of Hindu religion cease and hence it is no longer necessary to give him protection and for this reason he is deemed not to belong to a Scheduled Caste.
But when he is reconverted to Hinduism, the social and economic disabilities once again revive and become attached to him because these are disabilities inflicted by Hinduism.
A Mahar or a Koli or a Mala would not be recognised as anything but a Mahar or a Koli or a Mala after reconversion to Hinduism and he would suffer from the same social and economic disabilities from which he suffered before he was converted to another religion.
It is, therefore, obvious that the object and purpose of the Constitution (Scheduled Castes) order, 1950 would be advanced rather than retarded by taking the view that on (1) A.I.R. 1940 Mad.
97 reconversion to Hinduism, a person can once again become a member of the Scheduled Caste to which he belonged prior to his conversion.
We accordingly agree with the view taken by the High Court that on reconversion to Hinduism, the 1st respondent could once again revert to his original Adi Dravida caste if he was accepted as such by the other members of the caste.
That takes us to the question whether in fact the 1st respondent was accepted as a member of the Adi Dravida caste after his reconversion to Hinduism.
This Court in the earlier decision between the parties found that the 1st respondent had not produced evidence to show that after his reconversion to Hinduism, any step had been taken by the members of the Adi Dravida caste indicating that he was being accepted as a member of that caste.
The 1st respondent, therefore, in the present case, led considerable oral as well as documentary evidence tending to show that subsequent to January February 1967, the 1st respondent had been accepted as a member of the Adi Dravida caste.
The High Court referred to twelve circumstances appearing from the evidence and held on the basis of these twelve circumstances, that the Adi Dravida caste had accepted the 1st respondent as its member and he accordingly belonged to the Adi Dravida caste at the material time.
Now, out of these twelve circumstances, we do not attach any importance to the first circumstance which refers to the celebrations of the marriages of his younger brother Govindaraj and Manickam by the 1st respondent in the Adi Dravida manner, because it is quite natural that if Govindaraj and Manickam were Adi Dravida Hindus, their marriages would be celebrated according to Adi Dravida rites and merely because the 1 st respondent, as their elder brother, celebrated their marriages, it would not follow that he was also an Adi Dravida Hindu.
The second circumstance that the 1st respondent was looked upon as a peacemaker among the Adi Dravida Hindus of K.G.F. cannot also be regarded as of much significance, because, if the Ist respondent was a recognised leader, it is quite possible that the Adi Dravida Hindus of K.G.F. might go to him for resolution of their disputes, even though he himself might not be an Adi Dravida Hindu.
But the third, fourth and fifth circumstances are of importance, because, unless the 1st respondent was recognised and accepted as an Adi Dravida Hindu, he would not have been invited to lay the foundation stone for the construction of the new wall of the temple of Jambakullam, which was essentially a temple of Adi Dravida Hindus, nor would he have been requested to participate in the Maroazhi Thiruppavai celebration at the Kannabhiran Temple situate at III Line, Kennedy Block, K.G.F., which was also a temple essentially maintained by the Adi Dravida Hindus and equally, he would not have been invited to preside at the Adi Krittikai festival at Mariamman Temple in I, Post office Block, Marikuppam, K.G.F. where the devotees are Adi Dravidas or to start the procession of the Deity at such festival.
These three circumstances are strongly indicative of the fact that the 1st respondent was accepted and treated as a member by the Adi Dravida community.
So also does the sixth circumstance that the 1st respondent was a member of the Executive Committee of the Scheduled Caste Cell in the organisation of the Ruling Congress indicate in the same direction.
The 98 seventh and eighth circumstances are again of a neutral character The funeral ceremonies and obsequies of the father of the 1st respondent would naturally be performed according to the Adi Dravida Hindu rites if he was an Adi Dravida Hindu and that would not mean that the 1st respondent was also an Adi Dravida Hindu.
Similarly, the fact that the 1st respondent participated in the first annual ceremonies of the late M. A. Vadivelu would not indicate that the 1st respondent was also an Adi Dravida Hindu like late M. A. Vadivelu.
But the ninth circumstance is again very important.
It is significant that the children of the 1st respondent were registered in the school as Adi Dravida Hindus and even the appellant himself issued a certificate " stating that R. Kumar, the son of the 1st respondent, was a Scheduled Caste Adi Dravida Hindu.
The tenth circumstance that the first respondent participated in the All India Scheduled Castes Conference at New Delhi on 30th and 31st August, 1968 may not be regarded as of any particular importance.
It would merely indicate his intention and desire to regard himself as a member of the Adi Dravida Caste.
The eleventh circumstance is, however, of some importance, because it shows that throughout the 1st respondent was treated as a member of the Adi Dravida Caste and he was never disowned by the members of that caste.
They always regarded him as an Adi Dravida belonging to their fold.
But the most important of all these circumstance is the twelfth, namely, the Scheduled Caste Conference held at Skating Rink, Nundydroog Mine, K.G.F.
On 11th August.
The High Court has discussed the evidence in regard to this conference in some detail.
We have carefully gone through the evidence of the witnesses on this point, but we do not find anything wrong in the appreciation of their evidence by the High Court.
We are particularly impressed by the evidence of Kakkan (PW 13).
The cross examination of J. C. Adimoolam (RW 1) is also quite revealing.
We find ourselves completely in agreement with the view taken by the High Court that this conference, attended largely by Adi Dravida Hindus, was held on 11th August, 1968 inter alia with the object of re admitting the 1st respondent into the fold of Adi Dravida caste and not only was a purificatory ceremony performed on the 1st respondent at this conference with a view to clearing the doubt which had been cast on his membership of the Adi Dravida caste by the decision of this Court in the earlier case but an address exhibit P 56 was also presented to the 1st respondent felicitating him on this occasion.
It is clear from these circumstances, which have been discussed and accepted by us, that after his reconversion to Hinduism, the 1st respondent was recognised and accepted as a member of the Adi Dravida caste by the other members of that community.
The High Court was, therefore, right in coming to the conclusion that at the material time the 1st respondent belonged to the Adi Dravida caste so as to fall within the category of Scheduled Castes under Paragraph 2 of the Constitution (Scheduled Castes) order, 1950.
In the result the appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed.

summary:
In the 1967 election to the State Legislative Assembly, the appellant and the 1st respondent claiming to be Adi Dravidas, stood as candidates for a seat reserved for Scheduled Castes.
The respondent was declared elected.
The appellant`s election petition challenging the election was allowed by the High Court.
This Court dismissed the respondent 's appeal holding, (1) that the respondent was converted to Christianity in 1949, (2) that on such conversion he ceased to be an Adi Dravida, (3) that he was reconverted to Hinduism but 4) assuming that membership of a caste can be acquired on conversion or reconversion to Hinduism, the respondent had failed to establish that he became a member of the Adi Dravida caste after reconversion.
In the 1972 elections, the appellant and respondent again filed their nominations as Adi Dravidas for the seat reserved for Scheduled Castes.
On objection by the appellant, the Returning officer rejected the nomination of the respondent on the view that on conversion to Christianity, he ceased to be an Adi Dravida and that on reconversion, he could not claim the benefit of the Constitution (Scheduled Castes) order, 1950.
The appellant was declared elected.
The respondent challenged the election and the High Court held that the question (a) whether the respondent embraced Christianity in 1949, (b) whether on such conversion be ceased to be an Adi Dravida, and (c) whether he was reconverted to Hinduism, were concluded by the decision of this Court in the earlier case.
In fact, the respondent so conceded on the first two aspects.
The High Court, however, held that the respondent had established twelve cir circumstances, which happened subsequent to the earlier election showing that he was accepted into their fold by the members of the Adi Dravida caste, that he was, therefore, at the material time, an Adi Dravida professing Hindu religion as required by paragraphs 2 and 3 of the Constitution (Scheduled Castes) order, and that therefore, his nomination was improperly rejected.
Dismissing the appeal to this Court, ^ HELD: (1) The question whether the respondent abandoned Hinduism and embraced Christianity in 1949 is essentially a question of fact.
The respondent having conceded before the High Court, that in view of the decision of this Court in the earlier case, the question did not survive for consideration and the High Court, having acted on that concession, the respondent could not be permitted to raise an argument that the evidence did not establish that he embraced Christianity in 1949.
[89 D F] (2) Similarly.
the question whether the respondent was reconverted to Hinduism stands concluded by the decision of this Court in the earlier case and it must be held that since prior to January 1967, the respondent was reconverted to Hinduism, he was, at the material time, professing the Hindu religion so as to satisfy the requirement of para 3 of the Constitution (Scheduled Castes) order [94C D] 83 (3) The High Court was right in the view that on reconversion to Hinduism, A the respondent could once again reconvert to his original Adi Deavida caste if he was accepted, as such, by the other members of that caste; and that, in fact, the respondent after his reconversion to Hinduism, was recognised and accepted as a member of the Adi Dravida caste by the other members of that community [97A B, 98G] (a) Since a caste is a social combination of person governed by its rules and regulations, it may, if its rules and regulations so provide, admit a new B. member just as it may expel an existing member.
The rules and regulations of the caste may not have been formalised they may not exist in black and white: they may consist only of practices and usages.
If, according to the practice and usage of the caste any particular ceremonies are required to be performed for readmission to the caste, a reconvert to Hinduism would have to perform those ceremonies if he seeks readmission to the caste.
But, if no rites or ceremonies are required to be performed for readmission of a person as a member of the caste, the only thing necessary would be the acceptance of the person concerned by the other members of the caste.
[95 C F] C (b) The consistent view taken by the Courts from the time of the decision in Administrator General of Madras vs Anandachari (ILR , that is, since 1886, has been that on reconversion to Hinduism, a person can once again become a member of the caste in which he was born and to which he belonged before conversion to another religion if the members of the caste accept him as a member.
If a person who has embraced another religion can be reconverted to Hinduism, there is no rational principle why he should not be able to come back to his caste, if the other members of the caste are prepared to re admit him as a member.
It stands to reason that he should be able to come back to the fold to which he once belonged, provided the community is willing to take him within the fold.
[96 C R] Nathu vs Keshwaji I.L.R. Guruswami Nadar vs Irulappa Konar A.I.R. 1934 Mad.
630 and Durgaprasada Rao vs Sudarsanaswami, AIR 1940 Mad. 513, referred to.
(c) It is the orthodox Hindu Society, still dominated to a large extent, particularly in rural areas, by medievalistic outlook and status oriented approach which attaches social and economic disabilities to a person belonging to a Scheduled Caste and that is why, certain favoured treatment is given to him by the Constitution.
Once such a person ceases to be a Hindu and becomes a Christian the social and economic disabilities arising because of Hindu religion cease and hence, it is no longer necessary to give him protection; and for this reason, he is deemed not to belong to a Scheduled Caste.
But, when he is reconverted to Hinduism.
the social and economic disabilities once again revive and become attached to him, because, these are disabilities inflicted by Hinduism.
Therefore, the object and purpose of the Constitution (Scheduled Castes) order would be advanced rather than retarded by taking the view that on reconversion to Hinduism, a person can once again become a member of the Scheduled Caste to which he belonged prior to his conversion.
[96 F 97 A] (d) out of the 12 circumstances relied on by the High Court, 5 are not of A importance, namely, (1) that the respondent celebrated tho marriages of his younger brothers in the Adi Dravida manner; (ii) that the respondent was looked upon as a peace maker among the Adi Dravida Hindus of the locality; (iii) that the funeral ceremonies of the respondent 's father were performed " according to the Adi Dravida Hindu rites; (iv) that he participated in the first annual death ceremonies of another Adi Dravida; and (v) that the respondent participated in an All India Scheduled Castes Conference.
The other seven circumstances, however, establish that the respondent was accepted and treated as a member of the Adi Dravida community, namely, (1) that he was invited to lay the foundation stone for the construction of the wall of an Adi Dravida temple: (ii) that he was asked to take part in the celebrations connected with an Adi Dravida temple.
(iii) that he was asked to preside at a festival connected with an Adi Dravida temple; (iv) that he was a member of the Executive Committee of the Scheduled Caste Cell in the organisation of the Ruling 84 Congress; (v) that his children were registered in school as Adi Dravidas and that even the appellant had given a certificate that the respondent 's son was an Adi Dravida.
(vi) that he was treated as a member of the Adi Dravida caste and was never disowned by the members of the caste; and (vii) that a Scheduled Caste Conference was held in the locality with the object of re admitting the respondent into the fold of Adi Dravida Caste and that not only was the purificatory ceremony performed on him at the Conference with a view to clearing the doubt which had been cast on his membership of the Adi Dravida caste by the earlier decision of this Court, but also an address was presented to him felicitating him on the occasion.
[97 C 98 F] (4)(a) The question whether on conversion to Christianity the respondent ceased to be a member of the Adi Dravida caste is a mixed question of law and fact and a concession made by him in the High Court on that question does not preclude him from re agitating it in the appeal before this Court.
r[89 G H] (b) Further, the decision given in the earlier case relating to the 1967 elections on the basis of the evidence led in that case, cannot operate as res judicata ill the present case which relates to the 1972 election and where fresh evidence has been adduced by the parties and moreover, when all the parties in the present case are not the same as those in the earlier case.
[89 H 90 B] (c) When a 'caste ' is referred to in modern times, the reference is not to the 4 primary castes.
but to the innumerable castes and sub castes that prevail in Hindu society.
The general rule is that conversion operates as an expulsion from the caste, that is, a convert ceases to have any caste, because, caste is pre dominantly a feature of Hindu Society and ordinarily a person, who ceases to be a Hindu, would not be regarded by the other members of the caste as belonging to their fold.
But it is not an invariable rule that whenever a person renounces Hinduism and embraces another religious faith, he automatically ceases to be a member of the caste in which he was born and to which he be longed prior to his conversion.
Ultimately, it must depend on the structure of the caste and its rules and regulations whether a person would cease to belong to the caste on his abjuring Hinduism.
If the structure of the caste is such that its members, must necessarily belong to Hindu religion, a member, who Ceases to be a Hindu, would go out of the caste, because, no non Hindu can be in the caste according to its rules and regulations.
Where, on the other hand, having regard to its structure, as it has evolved over the years, a caste may consist not only of persons professing Hinduism but also persons professing some other religion as well, conversion from Hinduism to that other religion may not involve loss of caste, because, even persons professing that other religion ca be members of the caste.
This might happen where caste is based on economic or occupational characteristics and not on religious identity, or the cohesion of the caste as a social group is so strong that conversion into another religion does not operate to snap the bond between the convert and the social group.
This is indeed not an infrequent phenomenon in South India, where, in some of the castes, even after conversion to Christianity, a person is regarded as continuing to belong to the caste.
What is, therefore, material to consider is how the caste looks at the question of conversion.
Does it outcaste or excommunicate the convert or does it still treat him as continuing within its fold despite his conversion.
If the convert desires and intends to continue as a member of the caste and the caste also continues to treat him as a member notwithstanding his conversion, he would continue to be a member of the caste, and the views of the new faith hardly matter.
Paragraphs 2 and 3 of the Constitution (Scheduled Castes) order.
read together.
also recognise THAT there may be castes specified as Scheduled Castes which comprise persons belonging to a religion different from Hindu or Sikh religion.
In such castes, conversion of a person from Hinduism cannot have the effect of putting him out of the caste, though.
by reason of para 37 he would be deemed not to be a member of the Scheduled Caste.
B G; 93 C E, F H] Cooppoosami Chetty vs Duraisami Chetty, I.L.R. 33 Mad. 67; Muthusami vs Masilamani, I.L.R. G. Michael vs section Venkateswaran.
AIR 1952 Mad.
Kothapalli Narasayya vs Jammana Jogi, ; K. Narasimha Reddy vs G. Bhupathi, ; Gangat vs Returning Officer, [1975 85 1.
S.C.C. 589 and Chatturbhuj Vithaldas Jasani vs Moreshwar Prasahram, , referred to.
[It would therefore, prima facie, seem that on conversion to Christianity, the respondent did not automatically cease to belong to the Adi Dravida caste; but in view of the decision that on reconversion he was readmitted to the Adi Dravida faith, no final opinion was expressed on this point.] [94 B C]


judgement:
:Civil Appeal No. 599 of 1975.
(Appeal by special leave from the judgment and order dated the 23 4,1974 of the Madhya Pradesh High Court at Jabalpur in MiSC.
Petition No. 542 of 1971.
section V. Natu, D. K. Kambarkar and V. N. Ganpule, for the appellant.
Ram Panjwani and H. section Parihar, for the respondent.
101 The Judgment of the Court was delivered by FAZAL ALI, J.
This is an appeal by special leave against the judgment and order of the Madhya Pradesh High Court dated April 23, 1974 dismissing the writ petition filed by the appellant before the High Court for quashing the order of the Assessing Authorities imposing tax under the on the basis of a number of sales made by the appellant Company in pursuance of multifarious contracts of sale.
The appellant Company was formed in pursuance of an agreement dated June 8, 1962 between the President of India and the Central Provinces Manganese ore Company Limited.
Before this agreement the said Company which will be hereafter referred to as the 'C.P.M.O.C. ' was a private company incorporated in the United Kingdom and carried on the business of extracting manganese ore from several mines in the erstwhile States of C.P. & Berar and Bombay.
By virtue of the agreement referred to above a new Company was formed under which the Government of India, the Government of Maharashtra and the Government of Madhya Pradesh held shares in the ratio of 17% each whereas the original Company C.P.M.o.
C. retained shares to the extent of 49%.
Thus the position was that in the present commercial venture the Central Government had preponderance of share.
The appellant, after the formation of the new Company, was known as Manganese ore (India) Ltd. which will hereafter be referred to as the M.O.I.L. Fresh leases.
to extract the minerals from the various mines were issued by the Government in favour of the M.O.I.L. and the Company entered into contracts with buyers in India and outside for selling the manganese ore extracted from the various mines situated in the States of Madhya Pradesh and Maharashtra.
A close analysis of the contracts entered into by the appellant Company and the business carried on by it would manifestly reveal that the contracts may be divided into four separate and clear categories.
Category I are the contracts by which the manganese ore extracted by the appellant company is sent directly to a foreign company known r as M/s. Philips Brothers on f.o.b. terms.
Another such contract was entered into by the appellant with B.I.S.C.(Ore) Ltd., London for sale of oriental manganese ore f.o.b.
Visakhapatnam.
Copies of these contracts were filed before the High Court as Annexures Q & R. The Regional Assistant Sales Tax Commissioner accepted the contention ,.
Of the appellant that so far as the sales under these contracts were concerned, they occasioned export and were clearly exempt from the as they fell within the purview of section 5(1) of the said Act.
We might also mention here that the main dispute between the parties is regarding the applicability of sections 3(a), 4(2) (b) and 9 of the , according to which the State of Madhya Pradesh was competent to levy tax on the sales made by the appellant in the course of which the manganese ore moved from the State of Madhya Pradesh to other States in India.
The main contention of the appellant before the High Court as also before the Sales Tax Authorities was that all these sales were outside sales and not in the course of 102 inter State trade or commerce and therefore the provisions of the Central Sales Tax Aat did not apply.
The Assistant Sales Tax Commissioner negatived the contention of the appellant and hence a writ petition was filed before the High Court.
We might also mention that the writ petition was filed by the appellant company before the High Court even before taking recourse to the normal procedure laid down under the Madhya Pradesh General Sales Tax Act, 1958.
This was obviously done because the appellant chose to assail the levy of tax on the ground that the Sales Tax Authorities did not possess any jurisdiction to impose the tax inasmuch as the sales were not at all covered by the .
We have stressed this fact particularly because before the High Court the appellant raised some questions relating to the merits of the matter which could be properly agitated before an Appellate or Revisional authorities under the Madhya Pradesh General Sales Tax Act.
Thus so far as the sales in Category I are t. concerned, the Assistant Sales Tax Commissioner accepted the plea of the appellant and did not levy any tax on those sales.
These sales, therefore, did not form the subject matter of the present appeal before us.
This position was conceded by both sides.
Category II represents contracts which were entered into by the appellant company with the Minerals and Metals Trading Corporation of India Ltd. hereinafter referred to as MMTC under which the appellant despatched manganese ore of varying percentage to the MMTC f.o.b. Bombay.
After having received the goods from the appellant the MMTC exported the goods to foreign buyers.
The copies of the contracts comprising these sales are Annexures N, O and P, before the High Court.
Category III relates to sales as per agreements copies of which are Annexures S, T and U by which the appellant sold to M/s Ram Bahadur Thakur & Company, Bombay and other buyers which in turn sold the goods to the MMTC.
As regards these two categories, Category II and Category III, the appellant advanced two fold contentions before us.
In the first place it was argued that as the goods were eventually exported by the buyers from India to foreign countries, therefore, the sales made by the appellant were not inter State sales but sales which occasioned exports and, therefore, fell within section 5(1) of the .
The High Court after consideration of various aspects of the matter overruled the contention of the appellant and held that as no export was involved so far as the sales made by the appellant to the buyers in India were concerned, therefore, section 5(1) had no application at all.
This matter need not detain us further, because it is no longer res integra and is now completely concluded by a Constitution Bench decision of this Court in Md. Serajuddin and others vs State of Orissa(1) where Ray, C.J., speaking for the majority observed as follows: "To establish export a person exporting and a person importing are necessary elements and the course of export is (1) 103 between them.
Introduction of a third party dealing independently with the seller on the one hand and with the importer on the other breaks the link between the two for then there are two sales one to the intermediary and the other to the importer.
The first sale is not in the course of export because the export commences with the intermediary.
The tests are that there must be a single sale which itself causes the export or is in the progress or process of export.
There is no room for two or more sales in the course of export.
x x x x x The expression "occasions" in Section S of the Act means the immediate and direct cause.
But for the contract between the corporation and the foreign buyer, there was no occasion for export.
Therefore, the export was occasioned by the contract of sale between the Corporation and the foreign buyer and not by the contract of sale between the Corporation and the appellant." The Court clearly held that where the sale was not directly and substantially connected with export, and where between the seller and ultimate buyers intermediaries were involved, such a sale would not occasion any export and would not fall within the purview of section 5(1) of the .
It is not disputed that all the sales covered by Category II and Category III were actually made by the appellant not to any foreign exporter but to buyers inside India whether it was MMTC or whether they were other private firms.
In these circumstances, therefore, the sales mentioned above could not be said to be sales which occasioned any export.
The High Court, therefor, rightly found that these sales were completed within the territory of India when the goods passed to the buyers.
The High Court further found as follows: "For these reasons, it cannot be held that these sales occasioned the export within Section 5(1) of the and were sales in the course of export.
" The High court relied on a number of authorities, but in view of the decision of this Court in Md. Serajuddin 's (supra) case it is not necessary for us to consider those authorities at all, because the matter has now been concluded by a decision of this Court.
In fact this position was conceded by Mr. Natu appearing for the appellant but he tried to persuade us to refer the case to a larger Bench for reconsidering Md. Serajuddin 's (supra) case.
We are, however, unable to agree with the prayer made by the learned counsel for the appellant because this Court has given its decision recently and the doctrine of stare decisis is a very valuable principle of precedent which cannot be departed from unless there are extra ordinary or special reasons to do so.
We are unable to find any special reasons for reconsidering Md. Serajuddin 's case (supra), particularly when this Court has laid down the rule, namely, that where the sale is in fact and in law a pure inter State sale, it cannot be treated to be a sale occasioning export.
This, therefore, disposes of the first plank of attack made by the appellant 8 390SCI/76 104 on the judgment of the Madhya Pradesh High Court so far the sales contained in Categories II and III are concerned.
Category IV is in respect of contracts of sale, copies of which are Annexures 1 to 7 before the, High Court.
These sales were admittedly made by the appellant in favour of the buyers within the territory of India but outside the State.
It was, however, contended that as the goods purported to have been sold to the buyers did not in fact move from the State of Madhya Pradesh, therefore, there was no inter State sale, but only an inside sale in the State where the goods were delivered, and therefore the State of Madhya Pradesh had no jurisdiction to levy tax under the .
The same arguments were applied to Categories II and III on the ground that if the sales comprised in Categories II and III were not sales in the course of export they also were not inter State sales, because the goods which moved from the State of Madhya Pradesh were not actually the goods which were sought to be sold to the buyers in other States in India.
The High Court has considered this matter at great length and has relied on a number of authorities.
In a recent judgment of this Court in Balabhgas Hulaschand and ors.
vs State of orissa(1), after review of all the authorities on the point, this Court held as follows: "That the following conditions must be satisfied before a sale can be said to take place in the course of inter State trade or commerce: (1) that there is an agreement to sell which contains a stipulation express or implied regarding the movement of the goods from one State to another; (ii) that in pursuance of the said contract the goods in fact moved from one State to another; and (iii)that ultimately a concluded sale takes place in the State where the goods are sent which must be different from the State from which the goods move.
If these conditions are satisfied then By virtue of section 9 of the it is the State from which the goods move which will be competent to levy the tax under the provisions of the .
" On a careful consideration of the facts and circumstances of the present case we are satisfied that the present case is directly covered by the decision of this Court in Balabhgas Hulaschand 's case(1).
The learned counsel for the appellant sought to distinguish Balabhgas Hulaschand 's case(1) on the ground that what was despatched from Madhya Pradesh was merely managanese ore of a particular percentage but that was not the property which was sought to be purchased by the buyers in other States.
It was contended that under the (1) ; 105 contracts or sale the property which was to be sold was continental A mixture which consisted of various kinds of rocks or manganese ore which were mixed together.
What therefore was actually despatched, according to counsel for the appellant, was merely one of the constituents of the goods purported to be sold and not the goods which were ores purchased by the buyers.
The High Court in its well reasoned judgment has fully considered this aspect of the matter and has rightly pointed out that there is no mechanical or scientific process by which the continental mixture is made.
According to the appellant itself the mixture comes into existence automatically by piling up manganese ore despatched from various States one after the other.
In other words, the position is that suppose 1000 tons of manganese ore is sent from Madhya Pradesh and another thousand tons from various mines from Maharashtra, when these ores are stocked at one place by being piled up one upon another they automatically produce continental mixture with various constituents properties and percentages required.
Mr. B. Sen appearing for the respondent submitted that what was I actually sold was manganese ore of an average percentage and it was not right to say that actually one of the constituents of the manganese ore was despatched by the appellant from various mines situated in the State of Madhya Pradesh.
In fact, manganese ore like iron or coal is a special type of commodity which is not capable of undergoing any scientific process of mixing up resulting in an end product.
We find ourselves in complete agreement with the argument of the learned counsel for the respondent.
It seems to us that the word 'oriental mixture ' which has no doubt been used in some of the agreements produced by the appellant is a misnomer, because this is merely a technical terminology or just another name for what is known in the commercial world as manganese ore of an average or standard percentage of about 49%.
A careful perusal of the agreements would clearly show that what the buyers wanted and what was actually sold to them was manganese ore and after all the goods were stocked together the required percentage under the contracts of sale automatically came into existence.
For instance, the relevant provisions of one of the contracts, which has been quoted by the High Court, runs thus "QUALITY: The average quality of the ore to be supplied by sellers should be, without guarantee, 49.25% Manganese, 0.15% Phosphorus, 9% Silica and 7.5% Iron PROVIDED ALWAYS that as such supplies are furnished by mixtures of ores from the sellers ' several mines the aver age quality of the samples taken from deliveries from.
each mine shall from the basis of settlement.
" It would be seen that what was to be supplied was only manganese ore of the percentage of 49.25%.
Properties like Phosphorus, Silica and Iron are inherent constituents of manganese ore and are bound to.
be found in every manganese ore.
Similarly in another contract 106 which appears at p. 117 of the Paper Book and which was entered into by the appellant with the MMTC the relevant passage runs thus: "The execution of this Sale Agreement is dependent on the sellers being able to rail the ores from the mines to the port for shipment and also of the grant of any necessary export permit.
QUALITY: 30,000 (Thirty thousand tonnes(1) of 1000 kgs.
each, 5% more or less at Buyers ' option.
SPECIFICATIONS: Mn.
basis 48 % rejection below 46% Fe.
10% maximum Silica+Alumina 14% maximum Phos.
0.18 % maximum" Here also it would appear that the agreement is only for sale of manganese ore.
Although a certain percentage is mentioned but that percentage is derived automatically when the manganese ores are stocked together.
In most of the other contracts which have been filed by the appellants, for instance, in another contract which has been entered into between the appellant and the MMTC on February 22, 1968 what is sold is 'oriental grade manganese ore '.
Similarly in another contract between the appellant and Ms Ram Bahadur Thakur & Company dated February 28, 1968 the property sold is about 25,000 Metric Tonnes of oriental Mixture of Manganese ore.
In another contract which appears at p. 147 of the Paper Book and which is between the appellant and the Universal Ferro & Allied Chemicals Ltd., Tumsar Road, what is sold is 12,000 metric tonnes of Manganese ore.
There was another stipulation as to delivery in respect of this contract as follows: "The sellers will load the component ores from their mines into the wagons which will be arranged for by the buyers who shall be the consignors, in the name of the sellers, who shall be the consignors, at such mines ' sidings and for such quantities as may be declared from time to time by the sellers ' Managing Director, the destination of all the ,, wagons being Tumsar in the State of Maharashtra and the railway freight being payable by the buyers at the destination.
As aforesaid, after the loading of the component ores into wagons the buyers shall be responsible in all respects in respect of the goods so loaded into the wagons.
" The stipulation in this contract that after loading the component ores into the wagons the buyers shall be responsible in respect of the goods 107 is a clear pointer to the fact that the manganese ores that were loaded into the wagons were undoubtedly the goods which were purported to be sold under the contract of sale, otherwise the buyers would not have taken the responsibility for the ores loaded into the wagons if it was really not the ores which the appellant were to supply but merely a constituent thereof.
A close perusal of the various contracts of sale entered into by the appellant would, therefore, clearly disclose that it was manganese ore and manganese ore alone which was sought to be sold by the appellant to various buyers in India.
The mere fact that certain specifications have been given or certain percentages have been mentioned does not change the character or the quality of the goods that are actually supplied by the appellant to its various purchasers.
Another important feature of the contract of sale is that a certain amount of tonnage of manganese ore is to be supplied by the appellant which is stretched over a period of few months which shows that the appellant was to supply the ore in instalments.
In these circumstances, therefore, the theory of the ore supplied by the appellant being only one constituent and not the entire goods sold appears to be purely illusory and is not at all supported even by the contracts of sale filed by the appellant.
For instance, if a firm placed an order for 1000 bales of cloth to be supplied to it by the seller in the course of five months and in pursuance of this contract if the seller supplies 200 bales every month it cannot be said that the first instalment of 200 bales is not the goods sold but only a constituent of the same.
On a parity of reasoning, therefore, the manganese ores loaded by the appellant in the railway wagons in the State of Madhya Pradesh, are clearly included in the contract of sale which itself provides that the supply has to be made within.
a specified period of few months.
Learned counsel for the appellant placed great reliance on a judgment of the Bombay High Court, a certified copy of which has been filed in this Court in the Central Provinces Manganese ore Company Ltd. vs The State of Maharashtra(1).
In the first place this judgment is not at all applicable to the facts of the present case, because the Bombay High Court was not dealing with a sale under the .
The High Court was pre eminently concerned with the provisions of the C.P. and Berar Sales Tax Act, 1947 and there is nothing to show that the provisions of that Act were in pari materia to the provisions of the .
More than this, we do not want to say about the judgment of the Bombay High Court.
Reliance was also placed by the appellant on a decision of this Court in Commissioner of Sales Tax, Eastern Division, Nagpur vs Husenali Adamji and Company & Another(2) which also does not appear to be applicable to the facts of the present case, because the Supreme Court in that case was dealing with the question as to when the title in the goods passes.
(1) Sales Tax Reference Nos. 17, 18, 19 and 20 of 1964 decided on April 7, 1969.
(2) 10 S.T.C. 297.
108 Lastly it was contended by counsel for the appellant that as the manganese ores despatched by the appellant were unascertained or future goods which would come into existence only after the manganese ores extracted in various mines in Madhya Pradesh and Maharashtra were stocked and piled up one after the other the provisions of section 3(a) of the would not apply.
This contention is completely without substance in view of the decision of this Court in Balabhgas Hulaschand 's case, (supra) where it was pointed out that so far as section 3(a) of the is concerned there is no distinction between unascertained and future goods and goods which are already in existence, if at the time when the sale takes place these goods have come into actual physical existence.
In the instant case also it was never disputed before the High Court or before us that the manganese ore was loaded into the wagons after being extracted from the mines and that the sales of these manganese ores despatched from Madhya Pradesh to various States actually took place and the goods were ultimately accepted by the buyers in other States.
In these circumstances, therefore, it is quite clear in this case that the movement of the goods took place in pursuance of the contracts of sale which ultimately merged into actual sales and it was only there after that the tax was sought to be levied by the State of Madhya Pradesh.
It was also not disputed that the tax has been levied only on such sales of the manganese ore despatched from the State of Madhya Pradesh which came from the mines situated in the State of Madhya Pradesh.
Thus all the incidents of an inter State sale are pre sent in the instant case and the view taken by the High Court that the sales were covered by section 3(a) of the is absolutely correct and we fully endorse the same.
These were the main arguments advanced before us by counsel for the appellant.
Apart from these, some small points were also argued by the learned for the appellant.
In the first place it was submitted that the Sales Tax Authorities had no jurisdiction to impose a penalty of Rs. 1,000/ for the delay in filing the return under the , because there was no provision in the Central Act making a dealer liable to pay penalty for filing belated returns and recourse could not be taken to the provisions of the State Act on the subject.
The High Court negatived this plea following two Division Bench judgments of the Madhya Pradesh High Court.
The view taken by the High Court on this point is legally erroneous be cause this Court in M/s. Khemka & Co. (Agencies) Pvt. Ltd. vs State of Maharashtra(1) has pointed out that in the absence of any provision for penalty under the itself it is not open to the Sales Tax Authorities to press into service the provisions of the State Sales Tax Act.
In this connection, this Court observed as follows .
"It is only tax as well as penalty payable by a dealer under the Central Act which can be assessed, re assessed, collected and enforced in regard to payment.
The words (1) ; 109 as if the tax or penalty payable by such a dealer under the A Central Act is a tax or penalty payable under the general sales tax law of the State" have "origin and root in the words" payment of tax including any penalty payable by dealer under the Central Act".
x x x x x x For the foregoing reasons we are of opinion that the provisions in the State Act imposing penalty for non payment of income tax within the prescribed time is not attract ed to impose penalty on dealers under the Central Act in respect of tax and penalty payable under the Central Act.
x x x x x The Central Act contains specific provisions for penalty.
Those are the only provisions for penalty available against the dealers under the Central Act.
Each State Sales Tax Act contains provisions for penalties.
These provisions in some cases are also for failure to submit return or failure to register.
It is rightly said that those provisions cannot apply to dealers under the Central Act because the Central Act makes similar provisions.
In this view of the matter, therefore, this part of the order of the High Court must be set aside and the penalty imposed by the Assist ant Sales Tax Commissioner must be quashed.
It was then submitted that a purchase tax on a turnover of Rs. 748/ has been levied under section 7(1) of the Madhya Pradesh General Sales Tax Act.
It was, however, pointed out by the respondent that the tax was actually lev ed on the purchases made by the appellant from unregistered dealers and is a very petty amount.
In view of this concession, learned counsel for the appellant did not press this matter.
The finding of the High Court on this point is, therefore, affirmed.
F Lastly it was submitted that the Assistant Sales Tax Commissioner was wrong in holding that the turnover in respect of inter State sales was not supported by 'C ' Forms.
This is also a matter which relates to the merits of the case which could be properly agitated before the Appellate or Revisional authorities under the State Sales Tax Act.
The result is that the penalty of Rs. 1000/ imposed by the Assist ant Sales Tax Commissioner is quashed.
All other contentions raised by the appellant fail and the judgment of the High Court on those points is hereby affirmed.
The appeal is accordingly dismissed with the modification indicated above, but in the circumstances without any order as to costs.

dataset_name: IN-Abs

summary:
The appellant Manganese ore (India) Ltd. (a commercial venture where the Government of India, Government of Maharashtra and Government of Madhya Pradesh hold shares in the ratio of 17 per cent each) entered into four types of "contracts of sale" with buyers in India and outside India for selling the manganese ores extracted from the mineral mines leased out to it and situated li in the States of Madhya Pradesh and Maharashtra.
They were (a) category I are the contracts where the appellant directly sent the ores to two foreign companies on f.o.b. terms; (b) category II represents contracts which were entered into by the appellant with tho Mineral and Metals Trading Corporation of India Ltd., under which the appellant despatched manganese ore of varying percentage to the M.M.T.C., f.o.b. Bombay and the M.M.T.C. in turn exported the goods to foreign buyers; (c) category III relates to the sales to M/s. Ram Bahadur Thakur & Co., Bombay and other buyers who in their turn sold the goods to M.M.T.C. for export; and (d) category IV relates to the sales in favour of the buyers within the territories of India, but outside the State.
According to section 3(a) ant 9 of the , the State of Madhya Pradesh was competent to levy tax on the sales in the course of inter state trade or commerce.
Under section 5(1) of the , sales occasioning export or in the course of export are exempt from the purview of the Act.
In respect of categories II to IV, the Sales Tax Authorities levied tax under the Central Act, holding that they were in the course of inter State trade or commerce and imposed a penalty of Rs. 1,000/ under the Madhya Pradesh General Sales Tax Act for belated filing of returns.
The writ petition filed by the assessee in the Madhya Pradesh High Court failed.
Dismissing the appeal by special leave and quashing the penalty imposed, the Court.
^ HELD: As no export was involved so far as the buyers in India are concerned, section 5(1) of the has no application at all.
This 100 point is no longer "res integra" in view of the Constitution Bench division of this Court in Md. Serajuddin and others vs State of Orissa, Where the sale Y/as not directly and substantively connected with export, and where between the seller and ultimate buyers intermediaries are involved, such a sale would not occasion any export and would not fall within the purview of section 5(1) of the .
[102 G, 103 C D] Md. Serajuddin & others vs State of Orissa, , applied.
(2) The doctrine of "Stare Decisis" is a very valuable principle of precedent which cannot be departed from unless there are extraordinary or special reasons to do so, and more so to reconsider a recent constitutional decision.
[103 G] (3) Before a sale can be said to take place in the course of inter state trade or commerce, the following conditions must be satisfied: (1) that there is an agreement to sell which contains a stipulation express or implied regarding the movement of the goods from one State to another.
(ii) that in pursuance of the said contract the goods in fact moved from one State to another.
and (iii) that ultimately a concluded sale takes place in the State where the goods are sent which must be different from the State from which the goods move.
If these conditions are satisfied, then by virtue of section 9 of the Act, it is the State from which the goods move which will be competent to levy the tax under the provisions of the Act.
[104 D F] Balabhgas Hulsachand and others vs Stare of Orissa, ; relied on.
(4) So far as section 3(a) of the is concerned, there is no distinction between unascertained and future goods and goods which are already in existence, at he time when the sale takes place these goods have come into actual physical existence.
[108 Bl Balabhgas Hulsachand and others vs State of Orissa, ; applied.
(5) In the absence of any provision for penalty under the itself it is not open to the Sales Tax Authorities to press into the service the provisions of the State Sales Tax.
[108 G] (6) In the instant case, a careful perusal of the agreements would clearly show that what the buyers wanted and what was actually sold to them was manganese are and after all the goods were stocked together, the required percentage under the contracts of sale automatically come into existence.
The word "oriental mixture" is merely a technical terminology or just another name for what is known in the commercial world as manganese ore.
therefore, It is clear that it was manganese ore and manganese ore alone which was sought to be sold by the appellant to various buyers in India.
The mere fact that certain specific contracts have been mentioned does not alter the character and quality of the goods that are actually supplied by the appellant to its various purchasers.
In these circumstances, therefore, the theory of the ore supplied by the appellant being only one constituent and not the entire goods sold is illusory.
[105 D F, 107 B D] Central Provinces Manganese ore Co., Ltd. vs The State of Maharashtra, S.T. Ref.
17 20/1964 decided on 7 4 1969 by Bombay High Court, Commissioner of Sales Tax, Eastern Division Nagpur vs Hussenali Adamji and company and another, 10 S.T.C. 297, (Distinguished).