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PETITIONER: BHAIYALAL

       Vs.

RESPONDENT: HARIKISHAN SINGH AND OTHERS

DATE OF JUDGMENT: 05/02/1965

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. SHAH, J.C. SIKRI, S.M.

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)

ACT: Constitution   of  India,  Art.  341-President   of   India- Specification  of  Scheduled caste in relation to  parts  of State-Validity of-Chamar, if included In Dohar caste.

HEADNOTE: 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  sub- caste 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, [1965] 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

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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]

JUDGMENT: 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  con- sidered  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,-

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the  election  petition  was  allowed  and  the  appellant’s election declared invalid. 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  inter- caste  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  unambiguous. He  has stated on oath that the Dohar and the Chamar  castes are entirely different.  The Chamars, according to him, take

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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

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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)  [1965] 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  sub- castes 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  sub- castes.   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

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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. Appeal dismissed. 884