Bhaiyalal Vs. Harikishan Singh &
Ors  INSC 22 (5 February 1965)
05/02/1965 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
CITATION: 1965 AIR 1557 1965 SCR (2) 877
CITATOR INFO :
R 1968 SC 929 (3) R 1969 SC 597 (6) R 1971
SC2533 (33) F 1972 SC 598 (12,13) RF 1976 SC 490 (43) RF 1981 SC 298 (41) R
1990 SC 991 (10,13)
Constitution of India, Art. 341-President of
IndiaSpecification of Scheduled caste in relation to parts of State-Validity
of-Chamar, if included In Dohar caste.
The appellant's election was challenged inter
alia, on the ground that he belonged to the Dohar caste which was not
recognised as a Scheduled Caste for the district in question and so his
declaration that he belonged to the Chamar caste which was a Schedule Caste was
improperly and illegally accepted by the Returning Officer. The Election
Tribunal declared the election invalid. The finding was confirmed on appeal by
the High Court. In appeal to the Supreme Court.
HELD : (i) 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 belonged to Dohar Caste which is a subcaste of the Chamar caste cannot
be accepted. An enquiry of this kind would not be permissible having regard to
the provisions contained in Art. 341 of the Constitution. [881 F-G]
Basavalingappa v. D. Munichinnappa,  1 S.C.R. 316, referred to.
(ii)In specifying castes, races or tribes
under Art. 341 of the Constitution, the President has been expressly authorised
to limit the notification to parts of or groups within the castes, 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 the parts of the State where
he is satisfied that the examination of the social and educational backwardness
of the race, caste or tribe justifies such specification. [882 H-883 C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 765 of1964.
Appeal by special leave from the judgment and
order, dated April 23, 1963, of the Madhya Pradesh High Court in First Appeal
No. 24 of 1963.
N.C. Chatterjee, V. S. Sawhney, S. S. Kanjuja
and Ganpat Rai, for the appellant.
G.S. Pathak and Dipak Datta Chaudhry, for
respondent No. 1.
The Judgment of the Court was delivered by
Gajendragadkar, C.J. This appeal by special leave arises out of an Election
petition filed by respondent No. 1, Harikishan 878 Singh, challenging the
validity of the election of the appellant, Bhaiyalal, in a reserved seat in the
Berasia Constituency in the district of Sehore in Madhya Pradesh.
The election in question was held in
February, 1962; at this election the appellant, respondent No. 1, and three
others offered themselves as candidates. The appellant was declared duly
elected on the 26th February, 1962 since he had polled the highest number of
votes. His next rival was respondent No. 1. By this petition, respondent No. 1
challenged the validity of the appellant's election on the ground that the
appellant belonged to the Dohar caste and was not a Chamar. The appellant had
filed his nomination paper on the 19th January, 1962 before the Returning
Officer at Sehore and had declared that he was a member of the Chamar scheduled
caste of the State of Madhya Pradesh in relation to Sehore district. This
declaration was accepted by the Returning Officer. Respondent No. 1 contended
that Dohar caste was not recognised as the scheduled caste for the district of
Sehore and Raisen, and so, the Returning Officer bad improperly and illegally
accepted the declaration of the appellant as one belonging to the Chamar
scheduled caste. Since the appellant did not belong to the scheduled caste in
question, he was not entitled to stand for election for the reserved seat in
respect of the said Constituency. This is the basis on which the validity of
the appellant's election was challenged by respondent No. 1.
On the other hand, the appellant urged that
the election petition filed by respondent No. 1 was not maintainable inasmuch
as he had not deposited the security of Rs. 2,000 in the manner prescribed by
the statutory rules.
On these pleadings, the Election Tribunal
framed appropriate issues. The first four issues covered the principal
contention raised by respondent No. 1 against the validity of the appellant's
nomination as a member belonging to the Chamar scheduled caste, whereas the
fifth issue related to the appellant's contention about the incompetence of the
election petition filed by respondent No. 1. Both parties led evidence in
support of their pleas on the principal point of dispute between them. The
Election Tribunal considered the oral evidence adduced by the parties, examined
the documents on which they respectively relied, and found in favour of
respondent No. 1. In regard to the plea raised by the appellant against the
competence of the election petition, the Tribunal found against him. In the
result,the election petition was allowed and the appellant's election declared
Against this decision of the Election
Tribunal, the appellant preferred an appeal to the Madhya Pradesh High Court.
Before 879 the High Court, the same two points were urged. The High Court has
confirmed the finding of the Election Tribunal on both the points. It has held
that the election petition filed by respondent No. 1 was valid and the security
deposit was made by him in accordance with the statutory requirements. On the
merits of the, controversy as to whether the appellant was a Chamar by caste
and as such was entitled to be elected for the reserved seat in the,
Constituency in question, the High Court, in substance, has agreed with the
conclusion of the Election Tribunal. In consequence, the appeal preferred by
the appellant was dismissed on the 23rd April, 1963. It is against this
decision that the appellant has come to this Court by special leave.
On behalf of the appellant Mr. Chatterjee has
contended that the High Court was in error in confirming the finding of the
Election Tribunal in regard to the caste to which the appellant belonged. It
appears that the appellant's case was that he was a Dohar Chamar which according
to him is a sub-caste of the Chamar scheduled caste. He urged that the said
sub-caste was also called 'Mochi'. In support of this plea, the appellant
examined witnesses and produced documents, and a,we have just indicated,
respondent No. 1 also produced witnesses and examined documents to show that
the Dohar caste was distinct from and independent of the Chamar caste and
Dohars could not, therefore, claim to be Chamars within the meaning of the
Presidential Order. Thus, the question which arose between the parties for
decision in the present proceedings is a question of fact and on this question
both the Tribunal and the High Court have made concurrent findings against the
appellant. It is true that in reaching their conclusion on this point, the Tribunal
as well as the High Court had to consider oral as well as documentary evidence;
but in cases of this kind where the Tribunal and the High Court make concurrent
findings on questions of fact, this Court does not usually interfere;
and after hearing Mr. Chatterjee we see no
reason to depart from our usual practice in this matter.
Respondent No. 1 examined 13 witnesses
belonging to the caste of the appellant. All of them asserted that they did not
belong to the Chamar caste. According to their evidence, the Dohar caste was
different from the Chamar caste. There was no intercaste marriage nor even
intercaste dinners between the members of the said two castes.
This evidence shows that Chamars and Mochis
of Sehore district lived in mohallas different from the mohallas in which the
Dohars lived. Amongst the witnesses examined by respondent No. 1, the High
Court has attached considerable significance to the evidence of Kishanlal, P.
W. 4., 880 He was the Secretary of the Dohar Samaj started by the appellant himself.
The appellant was then the Sirpanch of that Samaj. It is true that the Samaj
did not function for long; but the documents produced by respondent No. 1 to
show the constitution of the Samaj clearly indicate that the appellant had
taken a prominent part in that matter.
Kishanlal's evidence is absolutely clear and
He has stated on oath that the Dohar and the
Chamar castes are entirely different. The Chamars, according to him, take off
skins from dead animals, prepare shoes and do leather work; the Dohar, said the
witness, is not the sub-caste of Chamar caste; there is no relationship of
inter-dining and intermarriage between the two. He denied that the Dohars are
called Mochis. Mr. Chatterjee has not been able to show any reason why the evidence
of this witness should not have been believed by the High Court. The witness
belongs to the same caste as the appellant and there is no motive shown why he
should take a false oath in respect of a matter which to persons of his status
has great significance. It is not likely that a person like Kishanlal would
make false statement about his own caste.
In support of his oral evidence, respondent
No. 1 produced certain documents, Exts. P. 2, P. 3, P. 4 and P. 5. These are
all signed by the appellant and they relate to the year 1956. In these
documents, the appellant has described himself as Dohar; in none of them has he
mentioned his caste as Chamar. Similar is the effect of other documents on
which respondent No. 1 relied; they are P. 8, P. 10, P.
11, P. 6, P. 7, P. 9, P. 14, P. 15, P. 17, P.
19, to P. 27.
In rebuttal the appellant examined himself
and his witnesses. This oral evidence was intended to show that the Dohar caste
is the same as Mochi caste and it is a sub-caste of the Chamar caste. In addition
to the oral evidence, the appellant produced 22 documents. It is true that some
of these documents which had been discarded by the Election Tribunal as
unworthy of credence or as irrelevant, have been accepted by the High Court as
relevant and genuine. Even so, the High Court has come to the conclusion that
these documents do not show satisfactorily that the Dohar caste is a sub-caste
of the Chamar caste. In that connection, the High Court has pointed out that
the documents relied upon by the appellant do not support his case that the
Dohar caste is a sub-caste of the Chamar caste, and in that sense, they are not
consistent with the plea made by the appellant in the present proceedings. We
allowed Mr. Chatterjee to take us through the material evidence; and on
considering the said evidence in the 881 light of the criticism made by Mr.
Chatterjee, we are satisfied that there is no reason to interfere with the
concurrent finding recorded by the Tribunal and the High Court on the main
question of fact. We must, accordingly, hold that the appellant does not belong
to the Chamar caste and as such was not qualified to contest the reserved seat
for the scheduled caste of Chamars in the Constituency in question.
Incidentally, we may point out that the plea
that the Dohar caste is a sub-caste of the Chamar caste cannot be entertained
in the present proceedings in view of the Constitution (Scheduled Castes)
Order, 1950. This Order has been issued by the President under Article 341 of
the Constitution. Article 341 (1) provides that 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 groups 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. Sub-Article (2) lays down
that 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. It is thus clear that 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
Dobar 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. In the case of B.
Basavalingappa v. D. Munichinnappa & Others,(1) this Court had occasion to
consider a similar question. The question which arose for decision in that case
was whether respondent No. 1, though Voddar by caste, belonged to the scheduled
caste of Bhovi mentioned in the Order, and while holding that an enquiry into
the said question was permissible, the Court has elaborately referred to the
special and unusual (1)  1 S.C.R. 316.
882 circumstances which justified the High
Court in holding that Voddar caste was the same as the Bhovi caste within the
meaning of the Order; otherwise the normal rule would be :
"it may be accepted that it is not open
to make any modification in the Order by producing evidence to show, for
example, that though caste A alone is mentioned in the Order, caste B is also a
part of caste A and, therefore, must be deemed to be included in caste A."
That is another reason why the plea made by the appellant that the Dohar caste
is a sub-caste of the Chamar caste and as such must be deemed to be included in
the Order, cannot be accepted.
Whilst we are referring to this aspect of the
matter, we may point out that the Order has taken good care to specify
different castes under the same heading where enquiry showed that the same
caste bore different names, or it had subcastes which were entitled to be
treated as scheduled castes for the purposes of the Order. In the district of
Datia, for instance, entry 3 refers to Chamar, Ahirwar, Chamar Mangan, Mochi or
Raidas. Similarly, in respect of Maharashtra, Item 1, entries 3 and 4 refer to
the same castes by different names which shows either that the said castes are
known differently or consist of different subcastes. Likewise, item 2, entry 4
in the said list refers to Chamar, Chamari, Mochi, Nona, Rohidas, Ramnami,
Satnami, Surjyabanshi or Surjyaramnami. It is also remarkable that in
Maharashtra in certain districts Chambhar and Dhor are included in the list
separately. Therefore, we do not think that Mr. Chatterjee can seriously
quarrel with the conclusion of the High Court that the appellant has not shown
that he belongs to the Chamar caste which has been shown in the Order as a
scheduled caste in respect of the Constituency in question.
Mr. Chattejee attempted to argue that it was
not competent to the President to specify the lists of Scheduled Castes by
reference to different districts or sub-areas of the States.
His argument was that what the President can
do under Art.
341(1) is to specify the castes, races or
tribes or parts thereof, but that must be done in relation to the entire State
or the Union territory, as the case may be. In other words, says Mr.
Chatterjee, the President cannot divide the State into different districts or
subareas and specify the castes, races or tribes for the purpose of Art.
341(1). In our opinion, there is no substance in this argument. The object of
Art. 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, 883 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
education are backwardness of the race, caste or tribe justifies such
specification. In fact, it is well-known that before a notification is issued
under Art. 341(1), an elaborate 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. Therefore, Mr. Chatterjee is in error when he
contends that the notification issued by the President by reference to the
different areas is outside his authority under Art. 341 (1).
The result is, the appeal fails and is
dismissed with costs.