PARSRAM AND ANR. versus SHIVCHAND AND ORS.

PARSRAM AND ANR.

SHIVCHAND AND ORS.

November 28, 1968

(M. HIDAYATULLAH, C.J. AND G. K. MITTER, J.]

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 Punjah-Mochis not mentioned, chamar~ mentioned-Court cannot decide on evidence whether the term mochi is synonymous with the term chamar.

Appellant No. 1 filed 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 appel-lant No. 2 was mochi and as such not 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 bad 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 Re-turning Officer had after announcing his decision accept:ng the nomina-tion 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 mochi and not member rif the chamar caste.

(iii) It was not open to this Court to scrntinise whether person properly described as mochi also fell within the caste of chama'fs 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] Basava/ingappa v. D. Munichinnappa & Ors. [1965] I 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 particular State or Union Territory. So far as chamars and mochis are concerned, reference to the Constitution (Scheduled Castes) Order, 1950 shows that the President was not o'f 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 afte~ the. Reorganisation of the P~njab Act,. 19?6 when the question of spec1ficat1on of Scheduled Castes m the terntones 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 rif Chandigarh were concern-ed though he directed that in the Union Territories of Delhi and Hima-chal Pradesh mochis and chaman were to be placed in the same group, [1000 E, H; 1001 A-DJ .

C1v1L APPELLATE JuR1smcT10N : Civil Appeal No. 1869 of 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 Petifion 14 of 1967.

K. P. Bhandari and Hardev 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 canv11ssed 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 can-didates impleading the other seven candidates, and Kishan Lal whose nomination paper was rejected. According to the peti-tioner, Kishan Lal was Hindu and being Chamar by caste he belonged to scheduled caste within the meaning of para-graph 2 read with Part X of the Constitution (Scheduled Castes) Order 1950 issued under Art. 341 of the Constitution : he had filed 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 Janu-ary 1967, but subsequently, on an objection having been raised by the first respondent on the ground that Kishan Lal was not member of 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 mochi by caste. The petitioner's case was that Chamar and mochi were not two sepa-rate castes and the word 'mochi' was applied to chamar who actually started workin1~ in leather. On the pleadings the learn-ed trial Judge framed four issues:

1. Is respondent No. 8 Kishan Lal Hindu Cha-mar by caste which is scheduled caste within the

meaning of Part X of the Schedule to the Constitution (Scheduled Castes) Order, 1950?

2. Was the nomination paper of respondent No. 8 Kishan Lal accepted by the Returning Officer and if 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 elec-tion of the returned candidate void?

4. Is Chamar or Mochi one and the same caste and scheduled caste within the meaning of Part X of the Constitution (Scheduled Castes) Order, 1950?

The point canvassed before him with 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 finalised order had been reviewed. An exa-D . mination of the document tends to support the appellant's argu-ment 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 Offi-cer 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 post-script abbreviated as "P .S." the last two lines curving over the signature. Unfortu-nately,: however, for the petitioner, the Returning Officer, ah-though 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 pa-pers for elections in 1967 the Returning Officer at first announced orders on my nomination papers accepting the same. 'f!ien an objection was raised by respon-G dent No. 1 Shiv Chand. Thereafter the Returning Offi-"cer adjourned the matter to the next date on which after examining evidence led by the parties he rejected the nomination papers."

Pri'ma facie this goes to support the case of the petitioner but in cross-examination, Kishan Lal stated: '

. "At the. ~ime when the nomination papers were ~mg scrut1;111sed by the Returning Officer, an objec-tion was raised when he was writing the order."

This nullifies the effect of the statement in the examination-in-chief 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, 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 mochi, there was no reason to exclude him from the fold of the caste of chamars in which case his nomina-tion paper was wrongly rejected. For this we have to refer to Art. 341 of the Constitution under cl. 1 of which the President may, with respect to any State or Union Territory, and where it is 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 particular caste. So far as chamars and mochis are concerned, it will be noted from 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 dif-ferent States. For instance, in the States of Andhra Pradesh, Bihar, Gujarat, Kerala, Madhya Pradesh, Madras, Maharash-tra, 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, Raghar, 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-

viding for the specification of Scheduled Castes for the new States and territories. Tue Constitution (Scheduled Castes) (Union Territories) Order of 1951 was also amended in 1966. As 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 posi-tion 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 atten-tion 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 moch.is 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(') an election petition was filed challenging the election of the first respondent inter alia on the ground that he was not 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. Tue appellant, on the other hand contended that res-pondent No. 1 was Voddar by caste and that Voddar was not scheduled caste specified in the order and consequently, he could not stand for election from 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 was also 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 men-tioned 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 is part of caste 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 Scheduled Caste known as Bhovi in the Mysore State as it was before 19 5 6 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 scheduled caste. But when it was not disputed specifically that there was no caste

(l)J[l965] l_S.C.R. 316.

[1969) 2 S.C.R.

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.

point very simila.r to th~ one before u.s c.ame up .for consi-deration in this Court m Bhmya Lal v. Hanknshen Singh and others('). There, the appellant's election was challenged on the ground that he belonged to the Dohar caste and was n~t chamar. Dealing with this point, it was stated by this Court:

was challenged on was n~t it was stated by this is . . su~­c

". . . the plea that the Dohar caste is . . su~­caste of the Chamar caste cannot be entertained m the present proceedings in virtue of the Constitution (Scheduled Castes) Order, 1950."

Reference was then made to Art. 341 of the Constitution els. 1 and 2 and it was said:

"In order to determine whether or not particular caste is 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 Chamar, Jatav or Mochi. The plea that though the appellant is not Chamar as such, he can claim the same status by reason of the fact that he belongs to the Dohar caste which is 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 provi-sions 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 refer-ence 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 con-clusion that if person was in fact mochi, he could still claim to belong to the scheduled caste of chamars and be allowed to (1) [196512 S.C.R. 877.

contest an election on that basis. Quite lot of evidence was adduced orally and also by documents before the learned trial Judge to show that Krishan Lal was chamar and not mochi. The learned Judge examined the evidence thoroughly and we do not propose to do the same again. In his view Krishan Lal was mochi and not 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 person who is properly described as mochi also falls within the caste of chamars and can describe himself as such, the question of the impropriety of the rejection of his nomina-tion paper based on such distinction disappears. In this case, Krishan Lal was found to be mochi and not chamar and therefore his nomination paper was rightly rejected. He tried to prove by evidence that he was chamar but he did not suc-ceed therein. The appeal therefore fails, and is dismissed with costs.

Appeal dismissed .