CHANDIGARH HOUSING BOARDversusTARSEM LAL

           [2024] 2 S.C.R. 371 : 2024 INSC 119

                 Chandigarh Housing Board
                            v.
                        Tarsem Lal
                 (Civil Appeal No. 1788 of 2024)
                         07 February 2024
[B.V. Nagarathna and Augustine George Masih, JJ.]

                      Issue for Consideration
Whether a notification issued by the appellant-Chandigarh Housing
Board calling for applications from both Schedule Castes and
Scheduled Tribes confer any benefit on the respondent (who
belonged to the Schedule Tribes community as recognised in the
State of Rajasthan and was living in Chandigarh for twenty years)
when there is no Presidential Order u/Art. 342 of the Constitution
of India issued with regard to Scheduled Tribes insofar as Union
Territory of Chandigarh is concerned.

                              Headnotes
Chandigarh Housing Board (Allotment, Management and Sale
of Tenements) Regulations, 1979 – Reservation – Allotment
of houses – Exclusively for Schedule Castes and Schedule
Tribes – The respondent herein had sought for allotment of
HIG house reserved for Scheduled Tribes category in terms of
the advertisement issued by the appellant-Chandigarh Housing
Board; that being aggrieved by non-allotment of a house, a
suit was filed by the respondent – The suit was decreed by
the Trial Court and judgment and decree was affirmed by the
First Appellate Court as well as in the second appeal by the
High Court – Propriety:
Held: The Presidential notification of a tribe or tribal community as
a Scheduled Tribe by the President of India u/Art. 342 is a sine qua
non for extending any benefits to the said community in any State
or U.T. – This implies that a person belonging to a group that is
recognized as a Scheduled Tribe in a State would be recognized a
Scheduled Tribe only within the said State and not in a U.T. where he
migrates if no such Presidential notification exists in the said U.T. – In
the instant case, merely because the appellant herein had issued a
Notification calling for applications from both Scheduled Castes and
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       Scheduled Tribes did not confer any benefit by that Notification on
       the respondent herein when there is no Presidential Order u/Art. 342
       of the Constitution of India issued with regard to Scheduled Tribes
       insofar as Union Territory of Chandigarh is concerned – The said
       basic foundational fact goes against the respondent herein and the
       invitation given by the appellant/Housing Board to Scheduled Tribes
       was in fact contrary to the said basic tenets as well as the prevalent
       law and by that reason, the respondent herein cannot also seek any
       estoppel as against the appellant herein – The impugned judgment
       of the High Court affirming the judgment of the First Appellate Court,
       which in turn affirms the judgment of the Trial Court are all liable to
       be set aside. [Paras 26, 31]

                                 Case Law Cited
            Bhaiya Lal v. Harikishan Singh, [1965] 2 SCR 877 : AIR
            1965 SC 1557; State of Maharashtra v. Milind, [2000]
            Suppl. 5 SCR 65 : (2001) 1 SCC 4; Action Committee
            on Issue of Caste Certificate to Scheduled Castes and
            Scheduled Tribes in the State of Maharashtra vs. Union
            of India [1994] Suppl. 1 SCR 714 : (1994) 5 SCC 244
            – followed.
            Marri Chandra Shekhar Rao vs. Dean, Seth G. S.
            Medical College, [1990] 2 SCR 843 : (1990) 3 SCC
            130 – relied on.
            Bir Singh vs. Delhi Jal Board, [2018] 10 SCR 513 :
            (2018) 10 SCC 312; Director, Transport Department,
            Union Territory Administration of Dadra and Nagar
            Haveli, Silvassa vs. Abhinav Dipakbhai Patel, (2019) 6
            SCC 434 – held inapplicable.

                                   List of Acts
       Constitution of India; Punjab Reorganization Act, 1966; Chandigarh
       Housing Board (Allotment, Management and Sale of Tenements)
       Regulations, 1979.

                                List of Keywords
       Advertisement for dwelling units; Reservation; Allotment of
       houses exclusively for Schedule Castes and Schedule Tribes;
       Presidential Order u/Art. 342; Presidential notification of a tribe
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                Chandigarh Housing Board v. Tarsem Lal


     or tribal community; Recognition of Scheduled Tribe in a State;
     Migration of Schedule Tribe person to another State or Union
     Territory; Claim of Schedule Tribe status in another State or
     Union Territory.

                           Case Arising From
     CIVIL APPELLATE JURISDICTION : Civil Appeal No.1788 of 2024
     From the Judgment and Order dated 10.08.2018 of the High Court of
     Punjab & Haryana at Chandigarh in RSA No. 1570 of 1991
                        Appearances for Parties
     Mrs. Rachana Joshi Issar, Svarit Uniyal Mishra, Ms. Nidhi Tewari,
     Advs. for the Appellant.
     Shivendra Singh, Bikram Dwivedi, Puneett Singhal, Sanjeev
     Chaudhary, Advs. for the Respondent.
                Judgment / Order of the Supreme Court

                                  Judgment
     Leave granted.
2.   Being aggrieved by judgment dated 10.08.2018 passed by the High
     Court of Punjab and Haryana at Chandigarh, the appellant/Chandigarh
     Housing Board has preferred this appeal.
3.   Briefly stated, the facts pertinent to the adjudication of the present
     appeal are that the appellant herein, vide advertisement dated
     28.06.1983, had called for applications for allotment of houses
     exclusively for Scheduled Castes and Scheduled Tribes and a total
     of 35 houses in the HIG (Upper) and HIG (Lower) categories were
     reserved for that purpose. This advertisement was issued pursuant
     to Regulation 25 of the Chandigarh Housing Board (Allotment,
     Management and Sale of Tenements) Regulations, 1979 which
     makes a provision for reservation of 12.5 % of the total number of
     dwelling units for Scheduled Castes and Scheduled Tribes. One of
     the conditions stipulated for the applicants was that they should be
     a domicile of Union Territory (U.T.) of Chandigarh or should have
     been a bona fide resident of U.T. of Chandigarh for a period of at
     least three years on the date of submission of the application. The
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       respondent submitted his application and the draw of lots was held
       on 09.09.1983. The list of successful applicants was published on
       12.09.1983 wherein thirty houses were allotted.
4.     Due to administrative confusion about the separate reservation for
       the Scheduled Tribes within the reserved dwelling units, four houses,
       two each in HIG(Upper) and HIG(Lower) categories were kept in
       abeyance out of 35 houses since there were only four applicants
       from the Scheduled Tribes category. A clarification was sought from
       the Chandigarh Administration by the appellant owing to the fact
       there was no Scheduled Tribe community which had been notified
       by the President of India with regard to U.T. of Chandigarh under
       Article 342 even though a notification under Article 341 for the
       Scheduled Castes in Chandigarh had been issued. Thus, it was
       enquired as to whether the Scheduled Tribes category could be
       entitled to a minimum reservation of 5%. In response to the request
       of the Appellant, the clarification issued by the Research Officer
       to the Finance Secretary of the Chandigarh Administration vide
       letter dated 21.09.1983 referred to the Brochure on Reservation for
       Scheduled Castes and Scheduled Tribes and noted that even if the
       population of the Scheduled Tribe community was less than 5%, a
       minimum reservation of 5% could be made even for the Scheduled
       Tribes in respect of all built houses/dwelling units. Being aggrieved
       by the non-allotment of a house, the respondent-plaintiff approached
       the civil Court.
5.     The respondent instituted Civil Suit No. 327/1984 in the Court
       of Senior Sub Judge, Chandigarh seeking a declaration that the
       appellant’s decision to not allot houses earmarked for Scheduled
       Tribes was mala fide. It was stated that he belongs to the Scheduled
       Tribes community as recognized in the State of Rajasthan and had
       been permanently residing in Chandigarh for twenty years.
6.     The suit was contested by the appellant herein by averring that
       no right much less a legal right to allotment of four houses kept in
       abeyance could accrue to the Scheduled Tribes in the absence of
       the notification of any Scheduled Tribe by the President of India in
       so far as Union Territory of Chandigarh was concerned.
7.     By judgment and decree of the trial court dated 09.01.1986, the
       suit was decreed by the trial Court on the basis of the letter of
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                Chandigarh Housing Board v. Tarsem Lal


     clarification dated 21.09.1983 from which the trial court inferred that
     the Appellant was obliged to reserve a minimum of 5% dwelling units
     for Scheduled Tribes. The said letter was found to be ‘good for all
     purpose’ and all the four applicants belonging to the Schedules Tribe
     category were held to be entitled to the allotment. While noting that
     Article 342 of the Constitution had not been ‘made applicable to the
     U.T. Chandigarh’, the trial court concluded that it would not mean
     that Scheduled Tribes cannot get any benefit from the Chandigarh
     Administration. The trial court reasoned that the advertisement dated
     28.06.1983 did not stipulate that only members of the Scheduled
     Tribes of Chandigarh could apply. Therefore, the respondent was
     decreed to be entitled to allotment of the house at the price fixed
     on the date of draw of lots dated 09.09.1983.
8.   Being aggrieved by the judgment and decree of the trial Court,
     the appellant herein preferred Civil Appeal No. 295/1990 before
     the First Appellate Authority (Additional District Judge), which was
     also dismissed. Hence, the appellant herein preferred Regular
     Second Appeal No. 1570/1991 (O&M) before the High Court. By
     the impugned judgment, the Regular Second Appeal has also been
     dismissed. The High Court placed reliance on the Chandigarh
     Administration’s letter of clarification dated 21.09.1983 (Exhibit
     D-3) and the Ministry of Home Affairs’ Letter No. BC.12017/9/85
     SC & BCD I dated 21.05.1985 (Exhibit P-8) to conclude that
     it leaves no manner of doubt that Chandigarh Administration
     instructed the Chandigarh Housing Board to keep the reservation
     for allotment of dwelling units as aforementioned. Thus, issuance
     of notification under Article 342 of the Constitution of India, pales
     into insignificance. That the appellant is also a Scheduled Tribe
     and holder of such certificate, even though from another State
     (Rajasthan) and was not debarred as per the contents of the letter.
     Hence, this appeal.
9.   We have heard Mrs. Rachana Joshi Issar, learned counsel appearing
     for the appellant and Shri Shivendra Singh, learned counsel for
     respondent and perused the impugned order as well as the material
     on record.
10. During the course of submissions, learned counsel for the appellant
    drew our attention to three Constitution Bench judgments of this Court
    in the case of Marri Chandra Shekhar Rao vs. Dean, Seth G. S.
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       Medical College (1990) 3 SCC 130 (Marri Chandra Shekhar Rao);
       Action Committee on Issue of Caste Certificate to Scheduled
       Castes and Scheduled Tribes in the State of Maharashtra vs.
       Union of India (1994) 5 SCC 244 (Action Committee) and Bir
       Singh vs. Delhi Jal Board (2018) 10 SCC 312 (Bir Singh) in
       order to contend that insofar as the Union Territory of Chandigarh
       is concerned, firstly, there is no specific Presidential Order issued
       insofar as Scheduled Tribes are concerned and secondly, that it is only
       by a Presidential Order issued under Article 342 of the Constitution
       of India that Scheduled Tribes could be recognized in an Union
       Territory or a State could be issued. Admittedly, no such Presidential
       Order with regard to Scheduled Tribes has been issued vis-a-vis the
       Union Territory of Chandigarh. In this regard, reliance was placed on
       Exhibit D-3 communication. Therefore, the applications inviting for
       the allotment of flats insofar as Scheduled Tribes were concerned,
       were sought to be clarified. That in the absence of there being any
       such Presidential Order insofar as Scheduled Tribes communities are
       concerned, the advertisement inviting applicants from the Scheduled
       Tribes was not at all correct.
       Further, it was contended that the respondent herein claims to belong
       to Scheduled Tribes category insofar as the State of Rajasthan is
       concerned. He had migrated to Union Territory of Chandigarh for
       his employment and, therefore, having regard to judgment of this
       Court in the case of Marri Chandra Shekhar Rao followed by
       other judgments, respondent is not entitled to place reliance on his
       caste status insofar as the State of Rajasthan is concerned and
       enforce the same in the Union Territory of Chandigarh. It was further
       submitted that the High Court was not right in interpreting letters
       dated 21.09.1983 and 21.05.1985 by ignoring the fact that the caste
       status could be claimed insofar as the State or Union Territory of
       a person’s origin only and not carried to a State or Union Territory
       to which the person migrates. Therefore, the impugned judgments
       may be set aside and the suit filed by the respondent herein may
       be dismissed.
11. Per contra, learned counsel for the respondent with reference to
    the counter affidavit strenuously contended that the impugned
    judgments and decrees are just and proper, which would not call
    for any interference at the hands of this Court. It was submitted that
    although there may be no Presidential Order issued with regard
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                Chandigarh Housing Board v. Tarsem Lal


     to Scheduled Tribes under Article 342 of the Constitution of India
     insofar as Union Territory of Chandigarh is concerned, Annexure
     P-9 (colly) letter dated 25.11.1985 issued by the Ministry of Welfare,
     Government of India was relied upon. The said document would
     clearly indicate that insofar as a migrant, such as the respondent
     herein is concerned, he could derive the benefits having regard to
     his status in the State of origin; that the reference in the said letter
     is only to State and not to any Union Territory. Therefore, by that
     logic it was contended that if a person migrates from a State to an
     Union Territory, it would imply that even if there is no Presidential
     Order issued in terms of Article 342 of the Constitution, the migrant
     is entitled to place reliance on his status as Scheduled Tribe in
     the State of his origin and, therefore, seek the benefit in the Union
     Territory to which he migrates.
     In support of his submissions, learned counsel for the respondent
     placed reliance on judgment of this Court in Director, Transport
     Department, Union Territory Administration of Dadra and Nagar
     Haveli, Silvassa vs. Abhinav Dipakbhai Patel (2019) 6 SCC 434
     (Abhinav Dipakbhai Patel). Further, this Court in paragraph 66 of
     the judgment Bir Singh while dealing with the case which arose from
     Delhi Jal Board, did not express any view with regard to question
     as far as other Union Territories were concerned and confined
     the decision only with regard to National Capital Territory of Delhi.
     Therefore, there is no judgment of this Court which states that if a
     person migrates from a State where he is recognised as a Scheduled
     Tribe to an Union Territory in which there is no Presidential Order
     recognising any Scheduled Tribe nevertheless placing reliance on
     the Presidential Order vis-a-vis the State of origin of the migrant,
     benefit must be given to such a person. He therefore, submitted that
     there is no merit in this appeal.
12. We have considered the arguments advanced at the bar in relation
    to the facts of the case and the judgments of this Court.
13. It is not in dispute that the respondent herein had sought for allotment
    of HIG house reserved for Scheduled Tribes category in terms of the
    advertisement issued by the appellant herein; that being aggrieved
    by non-allotment of a house, the suit which was decreed by the Trial
    Court and which judgment and decree was affirmed by the First
    Appellate Court as well as in the second appeal by the High Court.
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14. At the outset, we may refer to Articles 341 and 342 which read as
    under:
          “341. Scheduled Castes.-
          (1)   The President may with respect to any State or Union
                territory, and where it is a State after consultation with
                the Governor thereof, by public notification, specify
                the castes, races or tribes or parts of or group within
                castes, races or tribes which shall for the purposes
                of this Constitution be deemed to be Scheduled
                Castes in relation to that State or Union territory, as
                the case may be.
          (2)   Parliament may by law include in or exclude from the
                list of Scheduled Castes specified in a notification
                issued under clause (1) any caste, race or tribe or
                part of or group within any caste, race or tribe, but
                save as aforesaid a notification issued under the
                said clause shall not be varied by any subsequent
                notification.
          342. Scheduled Tribes. –
          (1)	The President may with respect to any State or Union
               territory, and where it is a State after consultation with
               the Governor thereof, by public notification, specify
               the tribes or tribal communities or parts of or groups
               within tribes or tribal communities which shall for
               the purposes of this Constitution be deemed to be
               Scheduled Tribes in relation to that State or Union
               territory, as the case may be.
          (2)	Parliament may by law include in or exclude from
               the list of Scheduled Tribes specified in a notification
               issued under clause (1) any tribe or tribal community
               or part of or group within any tribe or tribal community,
               but save as aforesaid a notification issued under the
               said clause shall not be varied by any subsequent
               notification.”
15. Thus, the public notification of ‘tribes or tribal communities’ by the
    President of India, upon consultation with the Governor, is a sine qua
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                Chandigarh Housing Board v. Tarsem Lal


     non for deeming such tribes or tribal communities to be ‘Scheduled
     Tribes’ in relation to that State or Union Territory for the purposes
     of the Constitution.
16. With respect to the Union Territory of Chandigarh, we find that the
    Parliament, vide the Punjab Reorganization Act, 1966 had created the
    Union Territory of Chandigarh and made provision for amendment of
    the Scheduled Castes and Schedules Tribes Orders. Section 27(2) of
    the said Act provided for amendment of the Constitution (Scheduled
    Castes) (Union Territories) Order, 1951, to include, with respect to
    Chandigarh, 36 castes enlisted in Part V of the Ninth Schedule of
    the said Act. A similar provision is also made for amendment of the
    Constitution (Scheduled Tribes) (Union Territories) Order, 1951,
    as directed in the Eleventh Schedule but the said Schedule does
    not include any part or entry with respect the Union Territory of
    Chandigarh.
     In this context, it is apposite to refer to what the Constitution Bench
     of this Court, speaking through Chief Justice Gajendragadkar, in
     Bhaiya Lal v. Harikishan Singh, AIR 1965 SC 1557, held as it
     expounded on the object of issuance of public notification under
     Article 341 of the Constitution.
           “10. … The object of Article 341(1) plainly is to provide
           additional protection to the members of the Scheduled
           Castes having regard to the economic and educational
           backwardness from which they suffer. It is obvious that in
           specifying castes, races or tribes, the President has been
           expressly authorised to limit the notification to parts of or
           groups within the castes, races or tribes, and that must
           mean that after examining the educational and social
           backwardness of a caste, race or tribe, the President
           may well come to the conclusion that not the whole caste,
           race or tribe but parts of or groups within them should
           be specified. Similarly, the President can specify castes,
           races or tribes or parts thereof in relation not only to the
           entire State, but in relation to parts of the State where he is
           satisfied that the examination of the social and educational
           are backwardness of the race, caste or tribe justifies
           such specification. In fact, it is well known that before a
           notification is issued under Article 341(1), an elaborate
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            enquiry is made and it is as a result of this enquiry that
            social justice is sought to be done to the castes, races or
            tribes as may appear to be necessary, and in doing justice,
            it would obviously be expedient not only to specify parts
            or groups of castes, races or tribes, but to make the said
            specification by reference to different areas in the State.
            Educational and social backwardness in regard to these
            castes, races or tribes may not be uniform or of the same
            intensity in the whole of the State; it may vary in degree or
            in kind in different areas and that may justify the division
            of the State into convenient and suitable areas for the
            purpose of issuing the public notification in question.”
17. The absolute necessity of a public notification in terms of Articles 341
    and 342 was explicated by a Constitution Bench of this Court in State
    of Maharashtra v. Milind, (2001) 1 SCC 4 (‘Milind’) which held that
    de hors a specific mention in the entry concerned in the Constitution
    (Scheduled Tribes) Order, 1950 (as amended by Parliament), it was
    impermissible to hold an inquiry and declare that any tribe or tribal
    community to be included in the list of Scheduled Tribes.
       While holding that Article 341(2) did permit anyone to seek such
       modification and that it is not open to any judicial body to modify
       or vary the Constitution (Scheduled Tribes) Order, 1950, this
       Court expounded on the salutary purpose of deferring to the
       Presidential order, as amended by Parliament while considering
       the grant of any benefit to members of the Scheduled Tribe
       community:
            “11. By virtue of powers vested under Articles 341 and 342
            of the Constitution of India, the President is empowered
            to issue public notification for the first time specifying
            the castes, races or tribes or part of or groups within
            castes, races, or tribes which shall, for the purposes of
            the Constitution be deemed to be Scheduled Castes or
            Scheduled Tribes in relation to a State or Union Territory,
            as the case may be. The language and terms of Articles
            341 and 342 are identical. What is said in relation to
            Article 341 mutatis mutandis applies to Article 342. The
            laudable object of the said articles is to provide additional
            protection to the members of the Scheduled Castes and
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           Scheduled Tribes having regard to social and educational
           backwardness from which they have been suffering since a
           considerable length of time. The words “castes” or “tribes”
           in the expression “Scheduled Castes” and “Scheduled
           Tribes” are not used in the ordinary sense of the terms
           but are used in the sense of the definitions contained in
           Articles 366(24) and 366(25). In this view, a caste is a
           Scheduled Caste or a tribe is a Scheduled Tribe only if
           they are included in the President’s Orders issued under
           Articles 341 and 342 for the purpose of the Constitution.
           Exercising the powers vested in him, the President has
           issued the Constitution (Scheduled Castes) Order, 1950
           and the Constitution (Scheduled Tribes) Order, 1950.
           Subsequently, some orders were issued under the said
           articles in relation to Union Territories and other States
           and there have been certain amendments in relation to
           Orders issued, by amendment Acts passed by Parliament.
                                   xxx
           35. In order to protect and promote the less fortunate
           or unfortunate people who have been suffering from
           social handicap, educational backwardness besides
           other disadvantages, certain provisions are made in
           the Constitution with a view to see that they also have
           the opportunity to be on par with the others in the
           society. Certain privileges and benefits are conferred
           on such people belonging to Scheduled Tribes by way
           of reservations in admission to educational institutions
           (professional colleges) and in appointments in services
           of State. The object behind these provisions is noble
           and laudable besides being vital in bringing a meaningful
           social change. But, unfortunately, even some better-placed
           persons by producing false certificates as belonging to
           Scheduled Tribes have been capturing or cornering seats
           or vacancies reserved for Scheduled Tribes defeating the
           very purpose for which the provisions are made in the
           Constitution. The Presidential Orders are issued under
           Articles 341 and 342 of the Constitution recognising and
           identifying the needy and deserving people belonging
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         to Scheduled Castes and Scheduled Tribes mentioned
         therein for the constitutional purpose of availing benefits of
         reservation in the matters of admissions and employment. If
         these benefits are taken away by those for whom they are
         not meant, the people for whom they are really meant or
         intended will be deprived of the same and their sufferings
         will continue. Allowing the candidates not belonging to
         Scheduled Tribes to have the benefit or advantage of
         reservation either in admissions or appointments leads
         to making mockery of the very reservation against the
         mandate and the scheme of the Constitution.”
                                                         (underlining by us)
18. Learned counsel for the appellant has drawn our attention to the
    judgment of this Court in Marri Chandra Shekhar Rao by placing
    reliance on the following paragraphs:-
         “13. It is trite knowledge that the statutory and constitutional
         provisions should be interpreted broadly and harmoniously.
         It is trite saying that where there is conflict between two
         provisions, these should be so interpreted as to give
         effect to both. Nothing is surplus in a Constitution and no
         part should be made nugatory. This is well settled. See
         the observations of this Court in Venkataramana Devaru
         v. State of Mysore [1958 SCR 895, 918 : AIR 1958 SC
         255] , where Venkatarama Aiyer, J. reiterated that the rule
         of construction is well settled and where there are in an
         enactment two provisions which cannot be reconciled with
         each other, these should be so interpreted that, if possible,
         effect could be given to both. It, however, appears to us
         that the expression ‘for the purposes of this Constitution’
         in Article 341 as well as in Article 342 do imply that the
         Scheduled Caste and the Scheduled Tribes so specified
         would be entitled to enjoy all the constitutional rights that
         are enjoyable by all the citizens as such. Constitutional
         right, e.g., it has been argued that right to migration or
         right to move from one part to another is a right given to
         all — to Scheduled Castes or Tribes and to non-scheduled
         castes or tribes. But when a Scheduled Caste or Tribe
         migrates, there is no inhibition in migrating but when
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                Chandigarh Housing Board v. Tarsem Lal


           he migrates, he does not and cannot carry any special
           rights or privileges attributed to him or granted to him in
           the original State specified for that State or area or part
           thereof. If that right is not given in the migrated State it
           does not interfere with his constitutional right of equality
           or of migration or of carrying on his trade, business or
           profession. Neither Article 14, 16, 19 nor Article 21 is
           denuded by migration but he must enjoy those rights in
           accordance with the law if they are otherwise followed in
           the place where he migrates. There should be harmonious
           construction, harmonious in the sense that both parts or
           all parts of a constitutional provision should be so read
           that one part does not become nugatory to the other or
           denuded to the other but all parts must be read in the
           context in which these are used. It was contended that the
           only way in which the fundamental rights of the petitioner
           under Articles 14, 19(1)(d), 19(1)(e) and 19(1)(f) could be
           given effect to is by construing Article 342 in a manner by
           which a member of a Scheduled Tribe gets the benefit of
           that status for the purposes of the Constitution throughout
           the territory of India. It was submitted that the words “for
           the purposes of this Constitution” must be given full effect.
           There is no dispute about that. The words “for the purposes
           of this Constitution” must mean that a Scheduled Caste
           so designated must have right under Articles 14, 19(1)(d),
           19(1)(e) and 19(1)(f) inasmuch as these are applicable
           to him in his area where he migrates or where he goes.
           The expression “in relation to that State” would become
           nugatory if in all States the special privileges or the
           rights granted to Scheduled Castes or Scheduled Tribes
           are carried forward. It will also be inconsistent with the
           whole purpose of the scheme of reservation. In Andhra
           Pradesh, a Scheduled Caste or a Scheduled Tribe may
           require protection because a boy or a child who grows in
           that area is inhibited or is at disadvantage. In Maharashtra
           that caste or that tribe may not be so inhibited but other
           castes or tribes might be. If a boy or a child goes to that
           atmosphere of Maharashtra as a young boy or a child and
           goes in a completely different atmosphere or Maharashtra
           where this inhibition or this disadvantage is not there,
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          then he cannot be said to have that reservation which will
          denude the children or the people of Maharashtra belonging
          to any segment of that State who may still require that
          protection. After all, it has to be borne in mind that the
          protection is necessary for the disadvantaged castes or
          tribes of Maharashtra as well as disadvantaged castes or
          tribes of Andhra Pradesh. Thus, balancing must be done as
          between those who need protection and those who need
          no protection, i.e., who belong to advantaged castes or
          tribes and who do not. Treating the determination under
          Articles 341 and 342 of the Constitution to be valid for all
          over the country would be in negation to the very purpose
          and scheme and language of Article 341 read with Article
          15(4) of the Constitution.”
19. The rationale for the aforesaid interpretation was further explained
    by another Constitution Bench in Action Committee wherein this
    Court relied upon the Constituent Assembly Debates to hold that
    the list of Scheduled Castes, Scheduled Tribes and backward
    classes in a given State would correspond to the disadvantages
    and social hardships existing in the specific social context for a
    particular caste, tribe or class in that State. Given the variance of
    social context, the list of such castes, tribes or classes would be
    totally non est in another State to which persons belonging thereto
    may migrate. Thus, the learned judges wholly agreed with the
    reasoning and conclusion in Marri Chandra Shekhar Rao and
    observed as under:
          “16. We may add that considerations for specifying a
          particular caste or tribe or class for inclusion in the list of
          Scheduled Castes/Schedule Tribes or backward classes
          in a given State would depend on the nature and extent
          of disadvantages and social hardships suffered by that
          caste, tribe or class in that State which may be totally non
          est in another State to which persons belonging thereto
          may migrate. Coincidentally it may be that a caste or tribe
          bearing the same nomenclature is specified in two States
          but the considerations on the basis of which they have
          been specified may be totally different. So also the degree
          of disadvantages of various elements which constitute
          the input for specification may also be totally different.
[2024] 2 S.C.R.                                                           385

                Chandigarh Housing Board v. Tarsem Lal


           Therefore, merely because a given caste is specified
           in State A as a Scheduled Caste does not necessarily
           mean that if there be another caste bearing the same
           nomenclature in another State the person belonging to
           the former would be entitled to the rights, privileges and
           benefits admissible to a member of the Scheduled Caste
           of the latter State “for the purposes of this Constitution”.
           This is an aspect which has to be kept in mind and which
           was very much in the minds of the Constitution-makers
           as is evident from the choice of language of Articles 341
           and 342 of the Constitution.”
20. Thereafter, the Constitution Bench of this Court in Bir Singh, being
    seized of the dispute pertaining to SC/ST reservation for persons
    who had migrated to the National Capital Territory of Delhi, reiterated
    the well-settled principles enunciated in Marri Chandra Shekhar Rao
    and Action Committee in the following words:
           “34. Unhesitatingly, therefore, it can be said that a person
           belonging to a Scheduled Caste in one State cannot be
           deemed to be a Scheduled Caste person in relation to
           any other State to which he migrates for the purpose of
           employment or education. The expressions “in relation
           to that State or Union Territory” and “for the purpose
           of this Constitution” used in Articles 341 and 342 of
           the Constitution of India would mean that the benefits
           of reservation provided for by the Constitution would
           stand confined to the geographical territories of a State/
           Union Territory in respect of which the lists of Scheduled
           32 Castes/Scheduled Tribes have been notified by the
           Presidential Orders issued from time to time. A person
           notified as a Scheduled Caste in State ‘A’ cannot claim
           the same status in another State on the basis that he is
           declared as a Scheduled Caste in State ‘A’.
                                    xxx
           36. The upshot of the aforesaid discussion would lead
           us to the conclusion that the Presidential Orders issued
           under Article 341 in regard to Scheduled Castes and
           under Article 342 in regard to Scheduled Tribes cannot be
           varied or altered by any authority including the Court. It is
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           Parliament alone which has been vested with the power
           to so act, that too, by laws made. Scheduled Castes and
           Scheduled Tribes thus specified in relation to a State or a
           Union Territory does not carry the same status in another
           State or Union Territory. Any expansion/deletion of the list of
           Scheduled Castes/Scheduled Tribes by any authority except
           Parliament would be against the constitutional mandate
           under Articles 341 and 342 of the Constitution of India.”
21. Learned counsel for the respondent placed reliance on the Constitution
    Bench judgment of this Court in Bir Singh concerning the services
    in the NCT of Delhi. In the said judgment in paragraph 68, it has
    been categorically recorded as under:–
           “68. The Affidavit of the Union does not touch upon the
           details of Subordinate Services in other Union Territories.
           Neither the authorities of the other Union Territories have
           laid before the Court any relevant material in this regard.
           We, therefore, refrain from addressing the issue in question
           as far as other Union Territories are concerned and have
           confined our discussions and the consequential views only
           to the National Capital Territory of Delhi.”
22. In view of the aforesaid observations, we do not think that the
    respondent can draw any parity from what the position is, insofar
    as NCT of Delhi is concerned with regard to availing of benefits
    by Scheduled Tribes, even though, there is no Presidential Order
    with regard to Scheduled Tribes issued insofar as NCT of Delhi is
    concerned. Further, the observations made above are in the context
    of services. In the circumstances, we find that the respondent cannot
    rely upon the judgment of this Court in Bir Singh.
23. This court, in Abhinav Dipakbhai Patel sustained the High Court’s
    direction to appoint a person who had migrated to the Union Territory
    of Dadra and Nagar Haveli and was a member of the Scheduled
    Tribe ‘Dhodia’ community as an Assistant Motor Vehicle Inspector.
    This Court noted that the Presidential notification issued for the
    Union Territory of Dadra and Nagar Haveli extended the benefit of
    reservation to the Scheduled Tribes mentioned therein. Therefore,
    the reservation for Scheduled Tribes in the Union Territory of Dadra
    and Nagar Haveli was held to be available to migrant Scheduled
    Tribes. The significant fact is that there was a Presidential notification
[2024] 2 S.C.R.                                                         387

                Chandigarh Housing Board v. Tarsem Lal


     for Scheduled Tribes insofar as the aforesaid Union Territory was
     concerned.
24. In view of the aforesaid observations, we do not think that the
    respondent can rely upon Abhinav Dipakbhai Patel. This is for the
    simple reason that there is no Presidential notification for Scheduled
    Tribes in Chandigarh unlike in the case of Dadra & Nagar Haveli.
25. In view of the aforesaid, we find that the appellant had erroneously
    issued the advertisement inviting applications for allotment of houses
    from both Scheduled Castes as well as Scheduled Tribes persons
    because no such reservation for Scheduled Tribes could have
    been made without strict compliance with Article 342. The effect of
    the finding that the advertisement was issued without necessary
    jurisdiction and authority would lead to the setting aside of the
    impugned judgment and decrees on that ground alone.
26. The upshot of the above discussion is that:
     i.    The Presidential notification of a tribe or tribal community as a
           Scheduled Tribe by the President of India under Article 342 is a
           sine qua non for extending any benefits to the said community
           in any State or U.T.
     ii.   This implies that a person belonging to a group that is recognized
           as a Scheduled Tribe in a State would be recognized a
           Scheduled Tribe only within the said State and not in a U.T.
           where he migrates if no such Presidential notification exists in
           the said U.T.
27. As far as the Annexure R-9, produced by the respondent herein
    is concerned, it is noted firstly, that the said document is dated
    25.11.1985 and the same was issued prior to the judgment of this
    Court in Marri Chandra Shekhar Rao which is contrary to the said
    judgment and wherein the position of law has been clearly enunciated.
    Secondly, the reading of the said document would clearly indicate
    that what has been emphasized there is with regard to the Scheduled
    Tribes and Scheduled Castes persons migrating from the State of
    his origin to another State, to which he has migrated. There is no
    reference whatsoever to a case where a person claiming to be a
    Scheduled Caste or Scheduled Tribe migrating from a State to a Union
    Territory as such. By that logic, it would not imply that a person who
    is recognized as a Scheduled Tribe in a State has to be Scheduled
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       Tribe in an U.T. also wherein he migrates and can rely on his status
       in the State of his origin. The said letter is also contrary to Article
       342 of the Constitution and the spirit of the dictum of this court in
       the case of Marri Chandra Shekhar Rao and, therefore, the same
       would hold no water. Merely because in the said letter there is no
       reference to migration of a person claiming to belong to Scheduled
       Tribe in a State to a Union Territory, it does not, by that logic mean
       that such a person would be entitled to claim benefit on the basis
       of his status as a Scheduled Tribe in the State of his origin. For
       immediate reference, letter dated 25.11.1985 is extracted as under–
                         “No. BC-12017/9/85-SC&BCD.I
                       Government of India/Bharat Sarkar
                      Ministry of Welfare/Kalyan Mantralaya
                      New Delhi: 25th November, 1985.
            To
            The Chairman,
            Chandigarh Housing Board,
            8-Jan Marg, Sector–9, Chandigarh – 160009
            Subject : E ntitlement of Scheduled Tribe persons for
                       allotment of houses by the Chandigarh Housing
                       Board – Clarification of -
                                      …
            Sir,
            I am directed to invite your attention to the Ministry of Home
            Affair’s letter of even number dated 21st May 1985 on the
            above subject and to say that the contents appearing at
            the end of line 23 to 28 i.e. “It has ……………… migrated.”
            may please be read as under:
            “It has also been made clear in the latter that the migrated
            person will be entitled to derive benefits admissible to the
            Scheduled Castes/ Tribes from the State of his origin only
            and not from the State to which he has migrated.”
            2. A copy of the Ministry of Home Affairs letter No. BC-
            16014-I/9/82-SC&BCD.I dated 22.2.85 containing the
            instructions about issue of certificates to the migrants has
[2024] 2 S.C.R.                                                        389

                Chandigarh Housing Board v. Tarsem Lal


           already been sent to you with our letter dated 21.5.85
           referred to above.
                                           Yours faithfully,
                                                 Sd/-
                                           (Y.P. MARWAHA)
                                           Assistant Director”
28. It is also unclear whether the aforesaid letter was at all marked in
    evidence in the Suit.
29. In view of the judgments of this Court in the aforesaid cases, we
    hold that insofar as a person claiming benefit having regard to his
    status as a Scheduled Tribe in a State, when he migrates to a Union
    Territory where a Presidential Order has not been issued at all
    insofar Scheduled Tribe is concerned, or even if such a Notification
    is issued, such an identical Scheduled Tribe does not find a place in
    such a Notification, the person cannot claim his status on the basis
    of his being noted as a Scheduled Tribe in the State of his origin.
30. Reliance placed on the judgment of this Court in Bir Singh by the
    learned counsel for the respondent is also of no assistance since
    the said case concerned granting of benefits to Scheduled castes
    and Scheduled Tribes in the matter of employment and education
    in a particular State and Union Territory and that a migrant to that
    particular State or Union Territory cannot place reliance on his or
    her status in the State of origin for the purpose of claiming similar
    benefit in a State to which he or she has migrated. Reliance was
    placed on paragraph 68 of the said judgment wherein this Court
    noted that it had refrained from addressing the issue in question as
    far as other Union Territories apart from the National Capital Territory
    of Delhi are concerned, would not in any way further the case of
    the respondent when the significant fact is that there has been no
    notification issued by the President of India vis-à-vis Scheduled Tribe
    in the Union Territory of Chandigarh is concerned.
31. In the instant case, merely because the appellant herein had issued
    a Notification calling for applications from both Scheduled Castes and
    Scheduled Tribes did not confer any benefit by that Notification on the
    respondent herein when there is no Presidential Order at all under
    Article 342 of the Constitution of India issued with regard to Scheduled
    Tribes insofar as Union Territory of Chandigarh is concerned. The
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       said basic foundational fact goes against the respondent herein and
       the invitation given by the appellant/Housing Board to Scheduled
       Tribes was in fact contrary to the said basic tenets as well as the
       prevalent law and by that reason, the respondent herein cannot also
       seek any estoppel as against the appellant herein.
32. The High Court lost sight of the aforesaid facts and instead placed
    reliance on Exhibit P-8 letter dated 21.09.1983 and Exhibit D-3
    letter dated 21.05.1985 to hold that there was reservation made
    for Scheduled Tribe applicants also for allotment of dwelling units
    of flats. In fact, in the letter dated 21.09.1983 (Exhibit P-8) it has
    been expressly noted that there are no Scheduled Tribes notified
    for Union Territory of Chandigarh but there are general instructions
    on reservation for Scheduled Tribes enunciated in Appendix-3
    Note 2 on the Brochure on Reservation of Scheduled Castes and
    Scheduled Tribes. The said Brochure cannot override Article 342 of
    the Constitution of India which empowers the President of India to
    notify the Scheduled Tribes either for a State or for an Union Territory.
33. In the circumstances, we find that the impugned judgment of the
    High Court affirming the judgment of the First Appellate Court, which
    in turn affirms the judgment of the Trial Court are all liable to be set
    aside and are hence set aside.
       The Appeal is allowed in the aforesaid terms. No costs.


       Headnotes prepared by: Ankit Gyan                  Result of the case:
                                                             Appeal allowed.