Parsram & ANR Vs. Shivchand &
Ors [1968] INSC 301 (28 November 1968)
28/11/1968 MITTER, G.K.
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
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 cross-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.
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