PETITIONER:
PARSRAM AND ANR.
Vs.
RESPONDENT:
SHIVCHAND AND ORS.
DATE OF JUDGMENT:
28/11/1968
BENCH:
MITTER, G.K.
BENCH:
MITTER, G.K.
HIDAYATULLAH, M. (CJ)
CITATION:
1969 AIR 597 1969 SCR (3) 997
1969 SCC (1) 20
CITATOR INFO :
R 1990 SC 991 (12)
ACT:
Constitution of India, Art. 341-President's power under-
Castes specified in President's order only to be treated as
Scheduled Castes-Constitution (Scheduled Castes) Order,
1950, item 9-Scheduled Castes in Punjab-Mochis not
mentioned, chamars mentioned-Court cannot decide on
evidence whether the term mochi is synonymous with the term
chamar.
HEADNOTE:
Appellant No. 1 filed a petition challenging the election of
the first respondent from the Lambi Assembly Constituency
('reserved seat) in the district of Ferozepur, Punjab, at
the 1967 general election. It was urged in the petition
that the nomination paper of appellant No. 2 had been
wrongly rejected by the Returning Officer who had held that
appellant No. 2 was a mochi and as such not a member of the
chamar caste mentioned in item 9 of the Constitution
(Scheduled Castes) Order, 1950 issued under Art. 341 of the
Constitution. It was also urged that the Returning Officer
had at first accepted the nomination paper but had
subsequently reviewed his own order. The High Court
dismissed the petition, whereupon an appeal was filed in
this Court.
HELD: (i) On the evidence it was not possible to hold
that the Returning Officer had after announcing his decision
accepting the nomination paper reviewed his own order
afterwards.
(ii) No ground had been made out for disturbing the
conclusion of the trial court on the evidence that appellant
No. 2 was a mochi and not a member of the chamar caste.
(iii) It was not open to this Court to scrutinise
whether a person properly described as a mochi also fell
within the caste of chamars and could describe himself as
such. The question was one the determination of which lay
within the exclusive power of the President under Art. 341
of the Constitution. [1003 B-C] ,
Basavalingappa v.D. Munichinnappa & Ors. [1965] 1
S.C.R. 316 and Bhaiya Lal v. Harikrishen Singh & Ors.,
[1965] 2 S.C.R. 877, applied.
Article 341 empowered the President to specify not only
entire castes races or tribes but also parts or groups
within castes, races or tribes which were to be treated as
Scheduled Castes in relation to a particular State or Union
Territory. So far as chamars and mochis are concerned, a
reference to the Constitution (Scheduled Castes) Order, 1950
shows that the President was not of opinion that they were
to be considered to belong to the same caste in all the
different States. In several States chamars and mochis
were put on the same footing but not so in the State of
Punjab. Even after the Reorganisation of the Punjab Act,
1966 when the question of specification of Scheduled Castes
in the territories created came up for his consideration the
President did not take the view that mochis should be
classed with chamars in so far as the States of Haryana,
Punjab and the Union Territory of Chandigarh were concerned
though he directed that in the Union Territories of Delhi
and Himachal Pradesh mochis and chamars were to be placed in
the same group. [1000 E, H; 1001 A--D]
998
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1869 1967.
Appeal under s. 116-A of the Representation of the
People Act, 1951 from the judgment and order dated October
24, 1967 of the Punjab and Haryana High Court in Election
Petition 14 of 1967.
K.P. Bhandari and Harder Singh, for the appellants.
C.L. Lakhanpal and D.D. Sharma, for respondent No. 1.
The Judgment of the Court was delivered by
Mitter, J. In the election petition out of which the
present appeal arises, the main question canvassed was,
whether the nomination paper of respondent No. 8 (appellant
No. 2 before this Court) was wrongly rejected. It is
admitted that if the rejection was wrong, the election
cannot stand.
The petitioner challenged the election to the Lambi
Assembly Constituency (reserved seat) in the district of
Ferozepore. There were eight candidates, the first
respondent being the returned candidate. The petition was
filed by one of the unsuccessful candidates impleading the
other seven candidates, and Kishan Lal whose nomination
paper was rejected. According to the petitioner, Kishan Lal
was a Hindu and being a Chamar by caste he belonged to a
scheduled caste within the meaning of paragraph 2 read with
Part X of the Constitution (Scheduled Castes) Order 1950
issued under Art. 341 of the Constitution: he had filed a
declaration under s. 33(2) of the Representation of the
People Act, stating his caste to be chamar covered by item 9
in Part X (Punjab) of the Schedule to the Order. The said
item reads as follows:
“Chamar, Jatia Chamar, Reghar, Raigar, Ramdasi or
Ravidasi.”
It was stated in the petition that the Returning
Officer had at first accepted the nomination paper of
Kishan Lal on 21st January 1967, but subsequently, on an
objection having been raised by the first respondent on the
ground that Kishan Lal was not a member of a Scheduled
Caste, the proceedings were adjourned till the next day when
after admitting evidence, the same was rejected on the plea
that Kishan Lal was a mochi by caste. The petitioner’s case
was that Chamar and mochi were not two separate castes and
the word ‘mochi’ was applied to a chamar who actually
started working in lwather. On the pleadings the learned
trial Judge framed four issues:
1. Is. respondent No. 8 Kishan Lal a Hindi Chamar by
caste which is a scheduled :caste within the
999
meaning of Part X of the Schedule to the
Constitution (Scheduled Castes) Order, 1950?
2. Was the nomination paper or
respondent No. 8 Kishan Lal accepted by the
Returning Officer and it so, whether the
Returning Officer had the power of reviewing
his order?’
3. Has the nomination paper of
respondent No. 8 Kishan Lal been wrongly
rejected? If so, is the election of the
returned candidate void?
4. Is Chamar or Mochi one and the same
caste and a scheduled caste within the meaning
of Part X of the Constitution (Scheduled
Castes) Order, 1950?
The point canvassed before him with a good deal of force was
that the Returning Officer had sought to review his own
order passed on 21st January 1967 accepting the nomination
paper and this, he was not competent to do. The learned
Judge did not accept that a finalised order had been
reviewed. An examination of the document tends to support
the appellant’s argument about the nomination paper having
been accepted at first but rejected subsequently. The
manner of recording ;the order is suggestive of the above.
It appears that the Returning Officer at first’ wrote the
word “accepted’ and gave the date as 21-1-1967 to the left
of his signature: the endorsement rejecting the nomination
paper is by way of a post-script abbreviated as “P.S.” the
last two lines curving over the signature. Unfortunately,;
however, for the petitioner, the Returning Officer, although
he appeared in court to produce some documents, was not
orally examined and we are therefore without his testimony
on the subject. Kishan Lal who came to give evidence in
this case in support of the petition stated in his
examination-in-chief that:
“At the time of the scrutiny of the
nomination papers for elections in 1967 the
Returning Officer at first announced orders on
my nomination papers accepting the same. Then
an objection was raised by respondent No. 1
Shiv Chand. Thereafter the Returning Officer
adjourned the matter to the next date on which
after examining evidence led by the parties he
rejected the nomination papers.”
Prima facie this goes to support the case of the petitioner,
but in corss-examination Kishan Lal stated:
“At the time when the nomination papers were
being scrutinised by the Returning Officer, an
objection was raised when he was writing the
order.”
1000
This nullifies the effect of the statement in the
examination-inchief and suggests that this objection was
raised before the order had been signed or announced. This
is strengthened by the evidence of Shiv Chand R.W. 7. He
said:
“The Returning Officer had not
announced that he had accepted the nomination
papers of Kishan Lal but had written the word
‘accepted’. This I know because I was sitting
next to him.”
On this evidence, it is not possible to hold that the
Returning Officer had announced his decision accepting the
nomination paper, but had reviewed his own order afterwards
on objection being raised and let in evidence on the next
day and rejected the nomination paper.
Before the learned trial Judge, a good deal of evidence
was adduced and arguments advanced as to whether the words
‘chamar’ and ‘mochi’ were synonymous and even if Kishan Lal
was held to be a mochi, there was no reason to exclude him
from the fold of the caste of chamars in which case his
nomination paper was wrongly rejected. For this we have to
refer to Art. 341 of the Constitution under el. 1 of which
the President may, with respect to any State or Union
Territory, and where it is a State, after consulting the
Governor of the State, by public notification specify the
castes, races or tribes or parts, or groups within castes,
races or tribes which shall for the purposes of the
Constitution, be deemed to be Scheduled Castes in relation
to that State or Union Territory as the case may be. This
article empowered the President to specify not only the
entire castes but tribes or parts or groups within castes,
races or tribes which were to be treated as Scheduled Castes
in relation to a particular caste. So far as chamars and
mochis are concerned, it will be noted from a reference to
the Constitution (Scheduled Castes) Order, 1950 that the
President was not of opinion that they were to be considered
to belong to the same caste in all the different States.
For instance, in the States of Andhra Pradesh, Bihar,
Gujarat, Kerala, Madhya Pradesh, Madras, Maharashtra,
Mysore, Orissa, Rajasthan and West Bengal chamars and mochis
were put on the same footing.
Before the Reorganisation of the Punjab Act of 1966 item
9 of Part X of the Order specifying the Scheduled Castes in
the State read–
“Chamar, Jatia chamar, Reghar, Raigar, Ramdasi or
Ravidasi.”
After the reorganisation of territories and creation of new
States by the said Act the Scheduled Castes Order was
amended pro-
1001
viding for the specification of Scheduled Castes for the new
States and territories. The Constitution (Scheduled.
Castes) (Union Territories) Order of 1951 was also amended
in 1966. As a result of the above changes, the final
position with regard to the Scheduled Castes was as follows.
Item No. 9 remained unaltered as regards the new States of
Haryana and the Punjab. Chamars and Mochis were put in the
same class as regards the Union territory of Delhi and
Himachal Pradesh, while the position in the Union territory
of Chandigarh remained the same as in the old State of
Punjab. This shows that even when the subject of
specification of Scheduled Castes engaged the attention of
the President in 1966 he did not take the view that mochis
should be classed together with chamars in so far as the
State of Haryana, Punjab and Union territory of Chandigarh
were concerned. It is also clear that the question of
inclusion of mochis in the Scheduled Castes was considered
by him. Apart from this, there are two decisions of this
Court which conclude the point.
In Basavalingappa v.D. Munichinnappa and others(x) an
election petition was filed challenging the election of the
first respondent inter alia on the ground that he was not a
member of any of the scheduled castes mentioned in the
Constitution (Scheduled Castes) Order, 1950. Respondent
No. 1 claimed that he belonged to the scheduled caste listed
as ‘Bhovi’ in the Order. The appellant, on the other hand
contended that respondent No. 1 was a Voddar by caste and
that Voddar was not a scheduled caste specified in the order
and consequently, he could not stand for election from a
scheduled caste constituency. It was held by this Court
that it was not open to anyone to seek for any modification
in the order by producing evidence to. show (for example)
that though caste alone was mentioned in the order, caste B
was also a part of caste A, and as such to be deemed to be
included in caste A. This Court also pointed out that
“wherever one caste has another name it has been mentioned
in brackets after it in the Order. Therefore, generally
speaking, it would not be open to any person to lead
evidence to establish that caste B is part of caste A
notified in the Order.” In the peculiar circumstances of
this case, evidence was allowed to be led to identify the
caste specified in the Order because the Order referred to a
Scheduled Caste known as Bhovi in the Mysore State as it was
before 1956 and therefore it had to be accepted that there
was some caste which the President intended to include after
consultation with Rajpramukh in the Order, when the Order
mentioned the caste Bhovi as a scheduled caste. But when it
was not disputed specifically that there was no caste
(1) [1965] 1 S.C.R. 316.
1002
known as Bhovi in the Mysore State before 1956, the only
course open to.courts was to find which caste was meant by
Bhovi by taking evidence.
A point very similar to the one before us came up for
consideration in this Court in Bhaiya Lal v. Harikrishen
Singh and others(1). There, the appellant’s election was
challenged on the ground that he belonged to the Dohar
caste and was not a chamar. Dealing with this point, it
was stated by this Court:
“. the plea that the Dohar caste
is a subcaste of the Chamar caste cannot be
entertained in the present proceedings in
virtue of the Constitution (Scheduled Castes)
Order, 1950.”
Reference was then made to Art. 341 of the Constitution cls.
1 and 2 and it was said:
“in order to determine whether or not a
particular caste is a scheduled caste within
the meaning of Art. 341, one has to look at
the public notification issued by the
President in that behalf. In the present
case, the notification refers to Chamar, Jatav
or Mochi and so in dealing with the question
in dispute between the parties, the enquiry
which the Election Tribunal can hold is
whether or not the appellant is a Chamar,
Jatav or Mochi. The plea that though the
appellant is not a Chamar as such, he can
claim the same status by reason of the fact
that he belongs to the Dohar caste which is a
sub-caste of the Chamar caste, cannot be
accepted. It appears to us that an enquiry of
this kind would not be permissible having
regard to the provisions contained in Art.
341.”
These judgments are binding on us and we do not therefore
think that it would be of any use to look into the
gazetteers and the glossaries on the Punjab castes and
tribes to which reference was made at the Bar to find out
whether mochi and chamar in some parts of the State at least
meant the same caste although there might be some difference
in the professions followed by their members, the main
difference being that Chamars skin dead animals which
mochis do not. However that may be, the question not being
open to agitation by evidence and being one the
determination of which lies within the exclusive power of
the President, it is not for us to examine it and come to a
conclusion that if a person was in fact a mochi, he could
still claim to belong to the scheduled caste of chamars and
be allowed to
(1) [1965] 2 S.C.R. 877.
1003
contest an election on that basis. Quite a lot of evidence
was adduced orally and also by documents before the learned
trial Judge to show that Kriqhan Lal was a chamar and not a
mochi. The learned Judge examined the evidence thoroughly
and we do not propose to do the same again. In his view
Krishan Lal was a mochi and not a chamar and we do not see
any reason why we should come to any different conclusion.
Once we hold that it is not open to this Court to
scrutinise whether a person who is properly described as a
mochi also falls within the caste of chamars and can
describe himself as such, the question of the impropriety of
the rejection of his nomination paper based on such
distinction disappears. In this case, Krishan Lal was found
to be a mochi and not a chamar and therefore his nomination
paper was rightly rejected. He tried to prove by evidence
that he was a chamar but he did not succeed therein. The
appeal therefore falls, and is dismissed with costs.
G.C. Appeal dismissed.
1004