28 November 1968
Supreme Court
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PARSRAM AND ANR. Vs SHIVCHAND AND ORS.

Case number: Appeal (civil) 1869 of 1967


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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  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.,

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[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

JUDGMENT: 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

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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 corss-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

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             ’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

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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

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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. 1004