{"id":157519,"date":"1968-11-28T00:00:00","date_gmt":"1968-11-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/parsram-and-anr-vs-shivchand-and-ors-on-28-november-1968"},"modified":"2019-01-14T08:58:05","modified_gmt":"2019-01-14T03:28:05","slug":"parsram-and-anr-vs-shivchand-and-ors-on-28-november-1968","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/parsram-and-anr-vs-shivchand-and-ors-on-28-november-1968","title":{"rendered":"Parsram And Anr vs Shivchand And Ors on 28 November, 1968"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Parsram And Anr vs Shivchand And Ors on 28 November, 1968<\/div>\n
Equivalent citations: 1969 AIR 597, \t\t 1969 SCR (3) 997<\/div>\n
Author: G Mitter<\/div>\n
Bench: Mitter, G.K.<\/div>\n
           PETITIONER:\nPARSRAM AND ANR.\n\n\tVs.\n\nRESPONDENT:\nSHIVCHAND AND ORS.\n\nDATE OF JUDGMENT:\n28\/11\/1968\n\nBENCH:\nMITTER, G.K.\nBENCH:\nMITTER, G.K.\nHIDAYATULLAH, M. (CJ)\n\nCITATION:\n 1969 AIR  597\t\t  1969 SCR  (3) 997\n 1969 SCC  (1)\t20\n CITATOR INFO :\n R\t    1990 SC 991\t (12)\n\n\nACT:\nConstitution of India, Art.  341-President's  power   under-\nCastes specified in President's order only to be  treated as\nScheduled  Castes-Constitution\t(Scheduled  Castes)   Order,\n1950,\titem   9-Scheduled  Castes  in\t Punjab-Mochis\t not\nmentioned,   chamars  mentioned-Court\tcannot\t decide\t  on\nevidence whether the term mochi is synonymous with the\tterm\nchamar.\n\n\n\nHEADNOTE:\nAppellant No. 1 filed a petition challenging the election of\nthe  first respondent from the Lambi  Assembly\tConstituency\n('reserved  seat)  in the district of Ferozepur, Punjab,  at\nthe  1967  general election.  It was urged in  the  petition\nthat  the  nomination  paper of appellant  No.\t2  had\tbeen\nwrongly rejected by the Returning Officer who had held\tthat\nappellant No. 2 was a mochi and as such not a member of\t the\nchamar\tcaste  mentioned  in  item  9  of  the\tConstitution\n(Scheduled Castes) Order, 1950 issued under Art. 341 of\t the\nConstitution.  It was also urged that  the Returning Officer\nhad  at\t first\taccepted  the  nomination   paper  but\t had\nsubsequently  reviewed\this  own  order.   The\tHigh   Court\ndismissed  the\tpetition, whereupon an appeal was  filed  in\nthis Court.\n    HELD:  (i) On the evidence it was not possible  to\thold\nthat the Returning Officer had after announcing his decision\naccepting  the\tnomination  paper  reviewed  his  own  order\nafterwards.\n    (ii)  No  ground had been made out\tfor  disturbing\t the\nconclusion of the trial court on the evidence that appellant\nNo. 2 was a mochi and not a member of the chamar caste.\n    (iii)  It  was  not open to\t this  Court  to  scrutinise\nwhether\t a  person properly described as a mochi  also\tfell\nwithin\tthe caste of chamars and could describe\t himself  as\nsuch.\tThe question was one the determination of which\t lay\nwithin\tthe exclusive power of the President under Art.\t 341\nof the Constitution. [1003 B-C]\t       ,\n    Basavalingappa  v.D.  Munichinnappa\t &  Ors.   [1965]  1\nS.C.R.\t316  and Bhaiya Lal v. Harikrishen  Singh  &   Ors.,\n[1965]\t2  S.C.R.  877, applied.\n    Article 341 empowered the President to specify not\tonly\nentire\tcastes\traces  or tribes but also  parts  or  groups\nwithin castes,\traces  or tribes which were to be treated as\nScheduled Castes in relation to a particular State or  Union\nTerritory.   So far as chamars and mochis are  concerned,  a\nreference to the Constitution (Scheduled Castes) Order, 1950\nshows  that the President was not of opinion that they\twere\nto  be\tconsidered to belong to the same caste\tin  all\t the\ndifferent   States.   In several States chamars\t and  mochis\nwere  put on the same  footing\tbut not so in the  State  of\nPunjab.\t Even  after the Reorganisation of the\tPunjab\tAct,\n1966 when the question of specification of Scheduled  Castes\nin the territories created came up for his consideration the\nPresident  did\tnot  take the view  that  mochis  should  be\nclassed\t with  chamars in so far as the States\tof  Haryana,\nPunjab and the Union Territory of Chandigarh were  concerned\nthough\the directed that in the Union Territories  of  Delhi\nand Himachal Pradesh mochis and chamars were to be placed in\nthe same group. [1000 E, H; 1001 A--D]\n998\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1869 1967.
\n    Appeal  under  s.  116-A of the  Representation  of\t the
\nPeople\tAct, 1951 from the judgment and order dated  October
\n24,  1967 of the Punjab and Haryana High Court\tin  Election
\nPetition 14 of 1967.\n<\/p>\n
K.P. Bhandari and Harder Singh, for the appellants.
\nC.L. Lakhanpal and D.D. Sharma, for respondent No. 1.
\nThe Judgment of the Court was delivered by
\n    Mitter,  J.\t In the election petition out of  which\t the
\npresent\t appeal\t arises, the main  question  canvassed\twas,
\nwhether the nomination paper of respondent No. 8  (appellant
\nNo.  2\tbefore\tthis Court) was\t wrongly  rejected.   It  is
\nadmitted  that\tif  the rejection was  wrong,  the  election
\ncannot stand.\n<\/p>\n
    The\t petitioner  challenged the election  to  the  Lambi
\nAssembly  Constituency\t(reserved seat) in the\tdistrict  of
\nFerozepore.    There  were  eight  candidates,\t the   first
\nrespondent  being the returned candidate.  The petition\t was
\nfiled  by one of the unsuccessful candidates impleading\t the
\nother  seven  candidates, and Kishan  Lal  whose  nomination
\npaper was rejected.  According to the petitioner, Kishan Lal
\nwas  a\tHindu and being a Chamar by caste he belonged  to  a
\nscheduled caste within the meaning of paragraph 2 read\twith
\nPart  X\t of the Constitution (Scheduled Castes)\t Order\t1950
\nissued\tunder Art. 341 of the Constitution: he had  filed  a
\ndeclaration  under  s. 33(2) of the  Representation  of\t the
\nPeople Act, stating his caste to be chamar covered by item 9
\nin  Part X (Punjab) of the Schedule to the Order.  The\tsaid
\nitem reads as follows:\n<\/p>\n
       “Chamar,\t Jatia\tChamar, Reghar, Raigar,\t Ramdasi  or
\nRavidasi.”\n<\/p>\n
    It\t   was\tstated in the petition\tthat  the  Returning
\nOfficer\t had   at  first accepted the  nomination  paper  of
\nKishan\tLal  on 21st January 1967, but subsequently,  on  an
\nobjection having been raised by the first respondent on\t the
\nground\tthat  Kishan  Lal was not a member  of\ta  Scheduled
\nCaste, the proceedings were adjourned till the next day when
\nafter admitting evidence, the same was rejected on the\tplea
\nthat Kishan Lal was a mochi by caste.  The petitioner’s case
\nwas  that Chamar and mochi were not two separate castes\t and
\nthe  word  ‘mochi’  was applied to  a  chamar  who  actually
\nstarted\t working in lwather.  On the pleadings\tthe  learned
\ntrial Judge framed four issues:\n<\/p>\n
    1.\tIs. respondent No. 8 Kishan Lal\t a Hindi  Chamar  by
\ncaste which is a scheduled :caste within  the
\n999<\/span>
\n\t      meaning  of  Part\t X of the  Schedule  to\t the
\n\t      Constitution (Scheduled Castes) Order, 1950?\n<\/p>\n
\t\t    2.\t Was   the   nomination\t  paper\t  or
\n\t      respondent  No. 8 Kishan Lal accepted  by\t the
\n\t      Returning\t Officer  and  it  so,\twhether\t the
\n\t      Returning\t Officer had the power of  reviewing
\n\t      his order?’\n<\/p>\n
\t\t    3.\t Has   the   nomination\t  paper\t  of
\n\t      respondent  No.  8  Kishan  Lal  been  wrongly
\n\t      rejected?\t If  so,  is  the  election  of\t the
\n\t      returned candidate void?\n<\/p>\n
\t\t    4.\tIs Chamar or Mochi one and the\tsame
\n\t      caste and a scheduled caste within the meaning
\n\t      of  Part\tX  of  the  Constitution  (Scheduled
\n\t      Castes) Order, 1950?\n<\/p>\n
The point canvassed before him with a good deal of force was
\nthat  the  Returning Officer had sought to  review  his\t own
\norder  passed on 21st January 1967 accepting the  nomination
\npaper  and  this, he was not competent to do.\tThe  learned
\nJudge  did  not\t accept\t that a\t finalised  order  had\tbeen
\nreviewed.   An examination of the document tends to  support
\nthe  appellant’s argument about the nomination paper  having
\nbeen  accepted\tat  first but  rejected\t subsequently.\t The
\nmanner\tof recording ;the order is suggestive of the  above.
\nIt  appears that the Returning Officer at first’  wrote\t the
\nword  “accepted’ and gave the date as 21-1-1967 to the\tleft
\nof  his signature: the endorsement rejecting the  nomination
\npaper  is by way of a post-script abbreviated as “P.S.”\t the
\nlast two lines curving over the signature.   Unfortunately,;
\nhowever, for the petitioner, the Returning Officer, although
\nhe  appeared  in court to produce some\tdocuments,  was\t not
\norally\texamined and we are therefore without his  testimony
\non  the\t subject.  Kishan Lal who came to give\tevidence  in
\nthis  case  in\tsupport\t of  the  petition  stated  in\t his
\nexamination-in-chief that:\n<\/p>\n
\t\t    “At\t the  time of the  scrutiny  of\t the
\n\t      nomination  papers for elections in  1967\t the
\n\t      Returning Officer at first announced orders on
\n\t      my nomination papers accepting the same.\tThen
\n\t      an  objection was raised by respondent  No.  1<\/span>
\n\t      Shiv  Chand. Thereafter the Returning  Officer
\n\t      adjourned the matter to the next date on which
\n\t      after examining evidence led by the parties he
\n\t      rejected the nomination papers.”\n<\/p><\/blockquote>\n
Prima facie this goes to support the case of the petitioner,
\nbut\t       in corss-examination Kishan Lal stated:\n<\/p>\n
\t      “At the time when\t the nomination papers\twere
\n\t      being scrutinised by the Returning Officer, an
\n\t      objection\t was raised when he was writing\t the
\n\t      order.”\n<\/p><\/blockquote>\n
1000<\/span><\/p>\n
This   nullifies  the  effect  of  the\tstatement   in\t the
\nexamination-inchief  and  suggests that this  objection\t was
\nraised before the order had been signed or announced.\tThis
\nis  strengthened by the evidence of Shiv Chand R.W.  7.\t  He
\nsaid:\n<\/p>\n
\t\t     “The   Returning\tOfficer\t  had\t not
\n\t      announced that he had accepted the  nomination
\n\t      papers of Kishan Lal but had written the\tword
\n\t      ‘accepted’.  This I know because I was sitting
\n\t      next to him.”\n<\/p><\/blockquote>\n
On  this  evidence,  it is not possible\t to  hold  that\t the
\nReturning Officer had announced his decision  accepting\t the
\nnomination paper, but had reviewed his own order  afterwards
\non  objection being raised and let in evidence on  the\tnext
\nday and rejected the nomination paper.\n<\/p>\n
    Before the learned trial Judge, a good deal of  evidence
\nwas  adduced and arguments advanced as to whether the  words
\n‘chamar’ and ‘mochi’ were synonymous and even if Kishan\t Lal
\nwas  held to be a mochi, there was no reason to exclude\t him
\nfrom  the  fold of the caste of chamars in  which  case\t his
\nnomination paper was wrongly rejected.\tFor this we have  to
\nrefer  to Art. 341 of the Constitution under el. 1 of  which
\nthe  President\tmay,  with respect to  any  State  or  Union
\nTerritory,  and\t where it is a State, after  consulting\t the
\nGovernor  of the State, by public notification\tspecify\t the
\ncastes,\t races or tribes or parts, or groups within  castes,
\nraces  or  tribes  which  shall\t for  the  purposes  of\t the
\nConstitution,  be deemed to be Scheduled Castes in  relation
\nto  that State or Union Territory as the case may be.\tThis
\narticle\t empowered  the President to specify  not  only\t the
\nentire\tcastes but tribes or parts or groups within  castes,
\nraces or tribes which were to be treated as Scheduled Castes
\nin  relation to a particular caste.  So far as\tchamars\t and
\nmochis\tare concerned, it will be noted from a reference  to
\nthe  Constitution (Scheduled Castes) Order,  1950  that\t the
\nPresident was not of opinion that they were to be considered
\nto  belong  to the same caste in all the  different  States.
\nFor  instance,\tin  the States\tof  Andhra  Pradesh,  Bihar,
\nGujarat,   Kerala,  Madhya  Pradesh,  Madras,\tMaharashtra,
\nMysore, Orissa, Rajasthan and West Bengal chamars and mochis
\nwere put on the same footing.\n<\/p>\n
    Before the Reorganisation of the Punjab Act of 1966 item
\n9 of Part X of the Order specifying the Scheduled Castes  in
\nthe State read–\n<\/p>\n
  “Chamar,   Jatia  chamar,  Reghar,  Raigar,  Ramdasi\t  or
\nRavidasi.”\n<\/p>\n
After the reorganisation of territories and creation of\t new
\nStates\tby  the\t said Act the  Scheduled  Castes  Order\t was
\namended pro-\n<\/p>\n
1001<\/span><\/p>\n
viding for the specification of Scheduled Castes for the new
\nStates\t and  territories.   The  Constitution\t (Scheduled.
\nCastes)\t (Union Territories) Order of 1951 was also  amended
\nin  1966.  As  a  result of the\t above\tchanges,  the  final
\nposition with regard to the Scheduled Castes was as follows.
\nItem  No. 9 remained unaltered as regards the new States  of
\nHaryana\t and the Punjab. Chamars and Mochis were put in\t the
\nsame  class  as\t regards the Union territory  of  Delhi\t and
\nHimachal Pradesh, while the position in the Union  territory
\nof  Chandigarh\tremained  the same as in the  old  State  of
\nPunjab.\t   This\t shows\tthat  even  when  the\tsubject\t  of
\nspecification  of Scheduled Castes engaged the attention  of
\nthe  President in 1966 he did not take the view that  mochis
\nshould\tbe  classed together with chamars in so far  as\t the
\nState  of Haryana, Punjab and Union territory of  Chandigarh
\nwere  concerned.   It  is also clear that  the\tquestion  of
\ninclusion  of mochis in the Scheduled Castes was  considered
\nby  him.  Apart from this, there are two decisions  of\tthis
\nCourt which conclude the point.\n<\/p>\n
      In Basavalingappa v.D. Munichinnappa and\tothers(x) an
\nelection petition was filed challenging the election of\t the
\nfirst respondent inter alia on the ground that he was not  a
\nmember\tof  any\t of the scheduled castes  mentioned  in\t the
\nConstitution  (Scheduled Castes) Order,\t  1950.\t  Respondent
\nNo. 1 claimed that he belonged to the scheduled caste listed
\nas  ‘Bhovi’ in the Order.  The appellant, on the other\thand
\ncontended  that respondent No. 1 was a Voddar by  caste\t and
\nthat Voddar was not a scheduled caste specified in the order
\nand  consequently,  he could not stand for election  from  a
\nscheduled  caste  constituency.\t It was held by\t this  Court
\nthat it was not open to anyone to seek for any\tmodification
\nin  the order by producing evidence to. show  (for  example)
\nthat though caste alone was mentioned in the order, caste  B
\nwas  also a part of caste A, and as such to be deemed to  be
\nincluded  in  caste  A.\t This Court also  pointed  out\tthat
\n“wherever  one caste has another name it has been  mentioned
\nin  brackets  after it in the Order.   Therefore,  generally
\nspeaking,  it  would  not  be open to  any  person  to\tlead
\nevidence  to  establish\t that caste B is  part\tof  caste  A
\nnotified  in  the Order.” In the peculiar  circumstances  of
\nthis  case, evidence was allowed to be led to  identify\t the
\ncaste specified in the Order because the Order referred to a
\nScheduled Caste known as Bhovi in the Mysore State as it was
\nbefore\t1956 and therefore it had to be accepted that  there
\nwas some caste which the President intended to include after
\nconsultation  with Rajpramukh in the Order, when  the  Order
\nmentioned the caste Bhovi as a scheduled caste. But when  it
\nwas not disputed specifically that there was no caste
\n(1) [1965] 1 S.C.R. 316.\n<\/p>\n
1002<\/span><\/p>\n
known  as  Bhovi in the Mysore State before 1956,  the\tonly
\ncourse\topen to.courts was to find which caste was meant  by
\nBhovi by taking evidence.\n<\/p>\n
    A  point very similar to the one before us came  up\t for
\nconsideration  in  this Court in Bhaiya Lal  v.\t Harikrishen
\nSingh\tand others(1).\tThere, the appellant’s election\t was
\nchallenged   on\t the ground that he belonged  to  the  Dohar
\ncaste  and was not a chamar.  Dealing with this\t point,\t  it
\nwas stated by this Court:\n<\/p>\n
\t\t       “.     the plea that the Dohar  caste
\n\t      is  a subcaste of the Chamar caste  cannot  be
\n\t      entertained  in  the  present  proceedings  in
\n\t      virtue of the Constitution (Scheduled  Castes)
\n\t      Order, 1950.”\n<\/p>\n
Reference was then made to Art. 341 of the Constitution cls.
\n1 and 2 and it was said:\n<\/p>\n
\t\t    “in order to determine whether or not  a
\n\t      particular  caste is a scheduled caste  within
\n\t      the  meaning of Art. 341, one has to  look  at
\n\t      the   public   notification  issued   by\t the
\n\t      President\t in  that behalf.   In\tthe  present
\n\t      case, the notification refers to Chamar, Jatav
\n\t      or  Mochi and so in dealing with the  question
\n\t      in  dispute between the parties,\tthe  enquiry
\n\t      which  the  Election  Tribunal  can  hold\t  is
\n\t      whether  or  not the appellant  is  a  Chamar,
\n\t      Jatav  or\t Mochi.\t The plea  that\t though\t the
\n\t      appellant\t is  not a Chamar as  such,  he\t can
\n\t      claim  the same status by reason of  the\tfact
\n\t      that he belongs to the Dohar caste which is  a
\n\t      sub-caste\t of  the Chamar\t caste,\t  cannot  be
\n\t      accepted.\t It appears to us that an enquiry of
\n\t      this  kind  would not  be\t permissible  having
\n\t      regard  to  the provisions contained  in\tArt.\n<\/p><\/blockquote>\n
\t      341.”\n<\/p><\/blockquote>\n
These  judgments are binding on us and we do  not  therefore
\nthink  that  it\t would\tbe  of any  use\t to  look  into\t the
\ngazetteers  and\t the  glossaries on the\t Punjab\t castes\t and
\ntribes\tto which reference was made at the Bar to  find\t out
\nwhether mochi and chamar in some parts of the State at least
\nmeant the same caste although there might be some difference
\nin  the\t professions  followed by their\t members,  the\tmain
\ndifference   being  that  Chamars skin\tdead  animals  which
\nmochis do not.\tHowever that may be, the question not  being
\nopen   to   agitation  by  evidence  and   being   one\t the
\ndetermination  of which lies within the exclusive  power  of
\nthe President, it is not for us to examine it and come to  a
\nconclusion  that if a person was in fact a mochi,  he  could
\nstill claim to belong to the scheduled caste of chamars\t and
\nbe allowed to
\n(1) [1965] 2 S.C.R. 877.\n<\/p>\n
1003<\/span><\/p>\n
contest an election on that basis.  Quite a lot of  evidence
\nwas adduced orally and also by documents before the  learned
\ntrial Judge to show that Kriqhan Lal was a chamar and not  a
\nmochi.\tThe learned Judge examined the\tevidence  thoroughly
\nand  we\t do not propose to do the same again.  In  his\tview
\nKrishan\t Lal was a mochi and not a chamar and we do not\t see
\nany reason why we  should come to any different conclusion.\n<\/p>\n
      Once  we\thold that it is not open to  this  Court  to
\nscrutinise  whether a person who is properly described as  a
\nmochi  also  falls  within  the caste  of  chamars  and\t can
\ndescribe himself as such, the question of the impropriety of
\nthe  rejection\tof  his\t nomination  paper  based  on\tsuch
\ndistinction disappears.\t In this case, Krishan Lal was found
\nto be a mochi and not a chamar and therefore his  nomination
\npaper  was rightly rejected.  He tried to prove by  evidence
\nthat  he was a chamar but he did not succeed  therein.\t The
\nappeal therefore falls, and is dismissed with costs.\n<\/p>\n
G.C.\t\t\t\t\t Appeal dismissed.\n1004<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Parsram And Anr vs Shivchand And Ors on 28 November, 1968 Equivalent citations: 1969 AIR 597, 1969 SCR (3) 997 Author: G Mitter Bench: Mitter, G.K. 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-157519","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nParsram And Anr vs Shivchand And Ors on 28 November, 1968 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/parsram-and-anr-vs-shivchand-and-ors-on-28-november-1968\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Parsram And Anr vs Shivchand And Ors on 28 November, 1968 - 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