# 63~ KJ,.sHORILAL HANS v. RAJA RAM SINGH & ORS

- **Citation:** [1972] 2 S.C.R. 632
- **Court:** Supreme Court of India
- **Decided:** 1971-11-30
- **Bench:** K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/63-kj-shorilal-hans-v-raja-ram-singh-ors-5680
- **Pages:** 14

## Headnote

Co11stitutio11 (Sched11led Cas1es) Order 1950 and Scheduled
Tribes
Lim (Modificaiion) Order 1956--Jatav casle not mentioned as Scheduled
casle in Dalia Districl of Madhya Pradesh-Election petition-Candidate
belonging to Jatav caste-seeking to prove that Jatav caste is included in
chamar caste lvhiclf Is mentioned in order-Such inquiry not permissible
in view of :A.rt. 341 of Constitution.
The appellant was declared
elected in February 1967 from the
· Bhander Assembly constituency in District Dat.ia of the State of Madhya
Pradesh-a seat which was reserved for a scheduled
caste candidate.
Under the Constitution (S\:heduled Castes) Order 1950 and
Scheduled
Tribes Lists (Modification) Order 1956 the President.of India had declared
in respect of District Datia the various castes which were to be recognised
as Scheduled castes.
In item 3 thereof the castes mentioned were :
·Chama\", Ahir\\o·ar, Chumar Mangam, Machi .and R'3idas.' The respondent. an unsuccessful candidate at the said election filed an election peti~
tion inter alia on the ground that the appellant, \Vas a Jatav by caste and
therefore not a member of any of the scheduled castes mentioned in the·
Presidential Order. The appellant contended that the Jatav caste was a
sub-easte of the caste chamar mentioned in the order. The High Court
'decided· against the appellant who appealed to this Court.
HELD : From the eviJence there was little room fo" doubt that al·
•hough at one tilnc Jatavs might have been cban1ars but they became a
distinct caste or came to be rccognjsed as a separate caste several years
ago. The fact that thev were shown separately as a caste in the Madhya
Bharat and several others states in the Scheduled Caste or Scheduled Trib.:s
Order (Amcndn1cnt) Act J 956 sho\vs that the existence of Jatav caste \vas
recognised.
f6-r~ C]
The evidence in the- forn1 of rcprcs..:ntations nu1de by the 1nc1nbcrs of
Jatav community including the .. returned
candidate hin1sclf apart
fron1
UJll?G U! uaAa O}St?:> AUlP.f J.O ;:lJU:llS[XQ OtJl paqsnqeJSJ 'a:>U~P!A=> {CJO .I:>410
district but it so hoppened that it was not included either in the Act of
1956 or the Presidential Order among the Scheduled Caste,. [642 EJ
If the matter \Vere- res-integra there might have been a goo<l
deal of
difficulty in reconciJin~ with the
constitutional provisions the
schcn1c
folloYled in the Presidential Orders by which the sa1ne caste has been jncluded in son1c districts of the san1c State andi excluded in other districts.
This C:ourt, how~ver in Bhaiyalal v. Balkishan SinC?h & Ors. made observation~ rcpelEng the contention that under Art. 341 of the Constitution th~
Pl'~si<lcnt \Va'> not authorised to limit the notification to parts of a State.
·
[644 Cl
Jn Bhaiyala/'s case it was also hdd that the plea that though the appel·
tant was not a char.~ .. 1r as such he could claiin the same status by reason
of the fact that he bclon~cd to the Dohar caste which is a sub-caste of the
chamar caste, could not be accepted.
An inquiry of that kind v.·as held
not he permissible having- rcgnrd to the provision of Art. 341 of the Consituation.
The case of Basavalingappa v. M1111ichi1111appa
\Vas
referred
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K!SHORILAL v. RAJA RAM (Grorer, J.)
633
to.
folloY..ing these two decisions it !11ust be held _that the returned candidate, in the present case, was not entitled to establtsh that J:1tav caste was
rhe same as C'hamar. (644 F-H]
The appeal nlust accordingly be dismissed.
Bhaiya/al v_ Harikislzan Singh, ~1965] :! S.C.R. 877 and
Basaralingappa v . • '>frrnicliimrappa, [1965] I S.C.R. 316. applied.
C1v1L APPELLATE JURISD!CTio:-< : Civil Appea's Nos. 2123
,md 2237 of 1969.
Appeals under S. 116-A of the Representation of the People
Act, 1951 from the judgment and order dated August 29. 1965
of the Madhya I'_radesh High Court, Indore Bench in Election
Petition No. 18 of 1967.
Rameshwar Nath, for the appellant (in C.A. No. 2123 of
1969) and respondent No. 1 (in <:;.A. No. 2237 of 1969).
A. K. Sen, G.

## Text

63~
KJ,.sHORILAL HANS
v.
RAJA RAM SINGH & ORS.
November 30, 1971
(K. S. HEGDE AND A. N. GROVER, JJ.]
Co11stitutio11 (Sched11led Cas1es) Order 1950 and Scheduled
Tribes
Lim (Modificaiion) Order 1956--Jatav casle not mentioned as Scheduled
casle in Dalia Districl of Madhya Pradesh-Election petition-Candidate
belonging to Jatav caste-seeking to prove that Jatav caste is included in
chamar caste lvhiclf Is mentioned in order-Such inquiry not permissible
in view of :A.rt. 341 of Constitution.
The appellant was declared
elected in February 1967 from the
· Bhander Assembly constituency in District Dat.ia of the State of Madhya
Pradesh-a seat which was reserved for a scheduled
caste candidate.
Under the Constitution (S\:heduled Castes) Order 1950 and
Scheduled
Tribes Lists (Modification) Order 1956 the President.of India had declared
in respect of District Datia the various castes which were to be recognised
as Scheduled castes.
In item 3 thereof the castes mentioned were :
·Chama\", Ahir\\o·ar, Chumar Mangam, Machi .and R'3idas.' The respondent. an unsuccessful candidate at the said election filed an election peti~
tion inter alia on the ground that the appellant, \Vas a Jatav by caste and
therefore not a member of any of the scheduled castes mentioned in the·
Presidential Order. The appellant contended that the Jatav caste was a
sub-easte of the caste chamar mentioned in the order. The High Court
'decided· against the appellant who appealed to this Court.
HELD : From the eviJence there was little room fo" doubt that al·
•hough at one tilnc Jatavs might have been cban1ars but they became a
distinct caste or came to be rccognjsed as a separate caste several years
ago. The fact that thev were shown separately as a caste in the Madhya
Bharat and several others states in the Scheduled Caste or Scheduled Trib.:s
Order (Amcndn1cnt) Act J 956 sho\vs that the existence of Jatav caste \vas
recognised.
f6-r~ C]
The evidence in the- forn1 of rcprcs..:ntations nu1de by the 1nc1nbcrs of
Jatav community including the .. returned
candidate hin1sclf apart
fron1
UJll?G U! uaAa O}St?:> AUlP.f J.O ;:lJU:llS[XQ OtJl paqsnqeJSJ 'a:>U~P!A=> {CJO .I:>410
district but it so hoppened that it was not included either in the Act of
1956 or the Presidential Order among the Scheduled Caste,. [642 EJ
If the matter \Vere- res-integra there might have been a goo<l
deal of
difficulty in reconciJin~ with the
constitutional provisions the
schcn1c
folloYled in the Presidential Orders by which the sa1ne caste has been jncluded in son1c districts of the san1c State andi excluded in other districts.
This C:ourt, how~ver in Bhaiyalal v. Balkishan SinC?h & Ors. made observation~ rcpelEng the contention that under Art. 341 of the Constitution th~
Pl'~si<lcnt \Va'> not authorised to limit the notification to parts of a State.
·
[644 Cl
Jn Bhaiyala/'s case it was also hdd that the plea that though the appel·
tant was not a char.~ .. 1r as such he could claiin the same status by reason
of the fact that he bclon~cd to the Dohar caste which is a sub-caste of the
chamar caste, could not be accepted.
An inquiry of that kind v.·as held
not he permissible having- rcgnrd to the provision of Art. 341 of the Consituation.
The case of Basavalingappa v. M1111ichi1111appa
\Vas
referred
A
c
E
f
G
H
c
K!SHORILAL v. RAJA RAM (Grorer, J.)
633
to.
folloY..ing these two decisions it !11ust be held _that the returned candidate, in the present case, was not entitled to establtsh that J:1tav caste was
rhe same as C'hamar. (644 F-H]
The appeal nlust accordingly be dismissed.
Bhaiya/al v_ Harikislzan Singh, ~1965] :! S.C.R. 877 and
Basaralingappa v . • '>frrnicliimrappa, [1965] I S.C.R. 316. applied.
C1v1L APPELLATE JURISD!CTio:-< : Civil Appea's Nos. 2123
,md 2237 of 1969.
Appeals under S. 116-A of the Representation of the People
Act, 1951 from the judgment and order dated August 29. 1965
of the Madhya I'_radesh High Court, Indore Bench in Election
Petition No. 18 of 1967.
Rameshwar Nath, for the appellant (in C.A. No. 2123 of
1969) and respondent No. 1 (in <:;.A. No. 2237 of 1969).
A. K. Sen, G. L. Sanghi and K. P. Gupt'a, for respondent No.
I (in C.A. No. 2123 of 1969) and the appellant (in C.A. No.
D
2237 of 1969).
F
G
II
The Judgment of the Court was delivered by
Grover, J.
These are two cross
appeals from a judgment
of the Madhya Pradesh High Court.
We shall give tile facts of
C.A. No. 2123/69 which arises from an election petition filed by
the respondent Rajaram Singh an unsuccessful candidate in the
High Court under s. 81 of the Representation of People Act I 95 l.
hereinafter called the 'Act', challenging the election of the appellant who was declared duly elected in February 1967 from the
Bhander Assembly Constituency of the State of Madhya Pradesh-a seat which was reserved 'for a scheduled caste candidate.
The last date for filing the nomination papers was January
~O. 1967, the date of scrutiny was January 21. 1967.
The pool
took. place or\ February 20. 1967.
The result of the election was
declared on February 21, 1967.
The appellant obtained 24,5.l9
votes whereas respondent No. 1 ol:ita(ned 8096 votes.
A number of allegations were raised in the election petition and as many
as I 2 issues were framed with a number of sub-issues.
On all
the issues the allegations of respondent No. I were negatived with
the exception of issue No. I.
That issue was as follows :-
( 1) (a) Whether respondent No. l Shri Kishorilal
helongs to the Jatav caste as :.illeged by the petitioner.
( b) Whether. therefore. respondent No. 1 does not
hclong to the scheduled caste and, therefore does not
possess the necessary qualifications of a 'scheduled
634
SUPREME COURT REPORTS
[1972] 2 S.C.R.
caste candidate for the Bhander Assembly Constituency
in question which is a reserved seat for scheduled caste
candidate only, as alleged by the petitioner ?
( c) Whether Jatav caste is one of the sub-castes
of Chamar as alleged by respondent No. 1 ?
(d) .Assuming that 'Jatav' is a separate caste then
whether 'Jatav' is recorded as scheduled caste for the
purpose of Bhander Assembly Constituency in question
as alleged by respondent No. 1 ?
( e) Whether, therefore, on this ground he was
entitled to contest the election as a scheduled caste
candidate from the Bhander Assembly Constituency,
although he is a permanent resident of village Bargawan
within the Seondha Assembly Constituency in which he
is recorded as a voter as alleged by him ?
The High Court found sub-issue (a) in thll affirmative and held
that the appellant belonged to the 'Jatav' caste.
On sub-issue
(b) it was held that the appellant did not possess the necessary
qualifications and was, therefore, unqualified to fill the seat in
question.
On sub-issue ( c) the court was of the opinion that
no inquiry could be made into the question whether the 'jatav'
caste is one of the sub-castes of Chamar. Sub-issue ( d) was
answered in the affirmative and ( e) in the negative.
The only question which now survives for consideration is
whe.ther the High Court was right in holding that the appellant
was not a member of the scheduled caste and was, therefore, disqualified to stand for a seat reserved for a scheduled caste.
We
may refer to the pleadings of-the parties on the point. In the
election petition it was alleged in para 6 that the name of the
appellant before us, who will hereafter be referred to as the
"returned candidate" was not entered in the electoral roll for
legislative assembly constituency no. 2 Seondha, district Dalia in
part No. 81, village Bargawan on serial No. 154.
He was a permanent resident of that village within the
aforesaid assembly
Constituency.
The returned candidate belonged to the 'Jatav'
caste which was not a scheduled caste declared for the purpose of
election for Datia district.
He had fraudulently concealed his
jatav caste and represent himself to be a Chamar he had stood as
a candidate for the Bhander Assembly Constituency.
Under the
Constitution (Scheduled Ca~tes) Order 1950 and the Scheduled
Caste and Scheduled Tribes Lists (Modification) Order 1956 the
President of India had declared in respect of District Daria the
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KISHORILAL v. RAJA RAM (Grover, J.)
I
635
various castes which were to be recognised as scheduled caste.
Item 3 thereof was as follows :-
"Chamar, Ahirwar, Chamar Mangam, Mochi or
Riadas".
It was asserted that Jatav caste had not been recognised as a
scheduled caste by the President in the district of Datia as the
social level of development of that community was of such a high
degree that it did not require any such protection or recognition
or privilege.
It was further added that there were thousands
of families of Jatavs in Datia district in the erstwhile State of
\'indya Pradesh but Jatav caste was not recognised as a scheduled caste.
In his written
statement the
returned candidate
admitted that his name was entered as alleged in the election
petition and that he was a resident of village Bargawan, district
Datia. It was denied that he belonged to J atav caste as alleged
i11 the petition. It was claimed that he belonged to the Chamar
caste and Jatav caste was one of the sub-castes of Chamar. It
was denied that Chamar caste was not recognised as scheduled
caste for the purpose of election to the Bhander Constituency.
It was also denied that the returned candidate did not fraudulently conceal his real Jatav caste and represented himself to be a
Chamar.
Without prejudice to what has been pleaded before us
was claimed that even if 'Jatav' was treated as a separate caste
and not a sub-caste of the Chamar caste 'Jatav' was recorded as a
scheduled caste for the purpose of Bhander assembly constituency
from which the returned candidate contested the election. It
was immaterial. according to hinl, whether Jatav as a separate
caste was recorded or not in the Dalia district in which his name
was entered in the electoral roll.
Other assertions in the election
petition on the point were not admitted. It was ultinlately
maintained that there was no difference between Jatav and
Chamar castes and it was reiterated that Jatav was only a subcaste of Chamar.
According to the Presidential Order Jatav was not one of the
castes mentioned in it so far as Dalia district of the Madhya
Pradesh State was concerned in which the returned candidate was
enrolled as an elector. In the area comprising the Bhander Constituency from where the returned candidate stood for election
Jatav was one of the castes which was included in the aforesaid
Order. But it is not claimed, and rightly so, that that fact
could be of lfny avail, to the returned candidate. If he was a
.fatav by caste and if that caste did not find any mention in the
Presidential Order in the Datia district the returned candidate
could not be regarded as having the qualifications for offering
himself for election in a constituenc,· reserved for a member of
the scheduled caste.
·
~36
SUPREME COURT REPORTS
[1972] 2 S.C.R.
Before us it has been argued on behalf of the returned candidate that he belonged to the Chamar caste which was admittedly
one of the castes included in the Order even for Datia district.
It is asserted that he was not a Jatav and that certain section of
the Chamars in that district was anxious to be called by the name
of Jatav because it had given up the profession of making shoes
and did not wish to be called Chamar since that word smacked
of inferior status. In other words, the caste to which the returned
candidate belonged was, in fact, the Chamar caste and it did not
make any difference if he along with several others from that
caste made attempts at various stages to be called by the name
of J atav.
The other contention that has been sought to be
pressed is that all the Jatavs in Datia district are in fact Chamars
and therefore the mention of the Chamar caste was sufficient for
the purpose of including them in that caste and it was not necessary to m~ntion Jatavs separately. Titlrdly it has been submitted that even on the assumption that the retumed candidate
belonged to the Jatav caste he could not be hdd to have been disqualified to fill in the seat reserved for a scheduled caste keeping
in view the provisions of s. 5 of the Act.
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The: crucial question which must first be determined is whether
the returned candidate was a Chamar by caste or he belonged to
the Jatav caste if there was such a caste in existence in the Dalia
district.
The High Court considered the oral evidence and relied
a good deal on some pamphlets which had been issued by certain
organisations of the Jatav caste in which the returned candidate
was an office-bearer.
Reference may be made, in particular, to
three pamphlets Exhs. P. 16, P. 17 and P. 18 which were printed
and published.
These pamphlets related to Jatav Sanunelans
which were held in certain places in tehsil Dalia etc.
In Exh.
P. 16 the returned candidate wa~ shown as one of the conveners:
in Exh. P. 17 he was shown as one of the convene:S.
In Exh.
P. 18 it was mentioned that the returned candidate, who was the
Mantri (Secretary) of the Jatav Sabha Dalia was also expected
to attend the Jatav Sammelan Barchouli in tehsil Bhander.
As
noticed by the High Court the substance of these pamphlets
Exhs. P. 16 and P. 17 was that a deputation consisting of the
representatives of the Provincial Jatav Sabha under the leadership
of Atamdas President of that Sabha waited upon the Collector of
Datia district on January 12, 1961.
One
of the grievances
which was brought to the notice of the Collector was that some
of the officers and the clerical staff did not record the caste of
Jatav community as Jatav even though the members of the said
-community told them that their caste was Jatav.
The Collector
bad issued an order to all his subordinates to record Jatav as the
caste of the persons belonging to the Jatav community.
By these
H
KISHORILAL v. RAJA RAM (Grover,!.)
637
A
pamphlets Jatavs were adv~sed to ~ecord their true
cas~ i.e.
'Jatav' in the Census operat10ns which were to commence w Febbruary 1961. Exh. p. 18 was a pamphlet. The sub_stance of which
was that a big Sammelan of the Jatav commumty and other
depressed classes would be held on January 26, 1960. at Mouza
Barchouli in which various difficulties which were bemg expeB
rienced by the Jatav community would be considered.
As m~
tioned earlier it was stated in Exh. P. 18 that the returned candidate who was described as the Secretary of the Jatav Sabha, Datia
was also expected to attend that Sammelan.
Another document
Exh. P. 60 which was a resolution passed at a Jatav Sammelan
held at Tharet on October 24, 1963 showed that a demand had
c
been made that scholarships should be given to the students
belonging to the J atav community exactly in the same manner as
such scholarships were being awarded to students belonging to
the scheduled castes.
The name of the person who is shown as
having seconded this resolution which was proposed by one Lalu
Ram Jatav is that of the returned candidate. Certain criminal
proceedings were started against the returned candidate in 1964.
D
From the record of the criminal case it appeared that in the personal bond Exh. P. 10 dated May 6, 1964 the returned candidate
had given his caste as Jatav.
There were other similar documents i.e. Exh. P. 55 which was a personal bond and the security
OOnd Ex1L P. 56.
According to the.High Court all these documents from I 91JO to 1964 showed that the
returned candidate
E
was a Jatav by caste and in his capacity as Secretary of Jatav
Sabha, district Datia he organised various Jatav Sammelans to
get the grievances of the members of the Jatav caste redressed. In
none of these documents it was mentioned that he was a Chamar
nor was there the remotest indication to show tl!at tl!ese Sammelans had been organised by the returned candidate in his capacity
F
as a Chamar.
The High Court referred t') the oral evidence also
but it will be wholly futile to refer to the entire evidence except
the statement of tl!e returned candidate himself and of some of
the material witnesses produced by both sides, if necessary.
!here .were certain otl!er documents which had been filed by
J:Jan Naram Ken P.W. 20 who was the General Secretary, Jatav
G
Sabha, Madhya Bharat and the then Madhya Pradesh since 1948.
It will be useful at this stage to refer to the original Presidential
Order and the changes which were made in it subsequently.
Ac~ording to the Constitution (Scheduled Caste)
Order 1950
which was promulgated in exercise of the powers conferred by
clause (1) of Art. 341 of the Constitution soon after it came into
H
force Jatavs were not shown among the scheduled
castes
in
Madhya Pradesh and Madhya Bharat. Among the' other castes
Chamar was mentioned. Similarly in the Constitution (SCheduled Castes) Part C States Order 1951 only Chamar was shown
10-L643SupCl/72
638
SUPREME COURT REPORTS
(1972) 2 S.C.R.
among the scheduled castes in Vindhya Pradesh. A Bill No. 8
of 1956 was introduced in the Lok Sabha which appeared in
Gazette Extra Ordinary of April 6, 1956.
This Bill was to
provide for the inclusion in and exclusion from the list of scheduled castes and of scheduled tribes of certain castes and tribes.
The entries proposed which are relevant for our purposes in the
then three Sfates of Madhya Pradesh, Madhya Bharat and Vindhya
Pradesh were as follows :
Madhya Pradesh
"Chamar, Chamari, Mochi, Nona, Rohidas, Ramnami Satnami, Surjyabanshi or Surjyaramnami."
Madhya Bharat
"Chamar, Bairwa,
Bhambi,
Jatav,
Mocbi,
or
l<.egar."
Virulhya Pradesh.
"Chamar, Ahirwar, Chamar Mangan,
Mochi or
Raidas".
On September 25, 1956 the Scheduled Castes & Scheduled Tribes
Order's Amendment Act 1956 received the assent of the President.
The Act followed the same scheme which was to be found
in the Bill.
In ()!her words in Vindhya Pradesh in entry 3 apart
from Chamar, Abirwar, Chamar Mangam, Mochi or Raidas were
included. It is noteworthy that upto this stage Jatav caste was
not included in the erstwhile States of Madhya Pradesh and
Vindhya Pradesh but were included only in Madhya Bharat.
After the States Reorganisation Act came to be enacted the
Scheduled Castes and Scheduled Tribes List
(Modification)'
Order 1956 was promulgated pursuant to s. 41 of the said Act.
Madhya Bharat and Vindhya Pradesh ceased to be separate
States and the territories of Madhya Bharat with a few exceptions and Vindhya Pradesh became part of the State of Madhya
Pradesh.
In the district of Bhind etc. in item 9 Jatav was included in the entry beginning with Chamar.
However in several
other districts Jatavs were not included and in particular in the
districts which formerly formed part of Vindhya Pradesh including I>atia.
It appears that when the Bill referred to before was introduced in the Parliament prior to the enactment of the States Reorganisation Act 1956 a memorial dated July 17, 1956 was sent by
the President of the Jatav Sabha to the Government of India.
In that memorial Exh. P. 57 a protest was made for not recognising the Jatav caste as a separa~ caste and a strong case was niade
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KISHORILAL v. RAJA RAM (Grover, J.)
639
out for recognising Jatirv as a distipct caste. It was pointed out
in that memorial that the Government of India, prior ·to the coming into force of the Constitution, had regarded J atav as a depressed class but the same had been excluded from the list of
scheduled castes in some States i.e. Madhya Bharat, Bhopal and
Madhya Pradesh etc. without any rhyme or reason. It was
further stated :
"Now an Amendment Bill of the Scheduled Castes
which has been submitted by you in the Lok Sabha on
6th April 1956, therein the Jatav community has been
illegaly and unjustly proposed to be included in other
Scheduled Castes with which we have no endogamous
connection. I have the honour to point out here that
J a ta vs did never wish to leave the fold of the Scheduled
Castes.
But we desire to remain under a Separate
Column as a separate caste in the list of Scheduled
castes".
Among the demands set out in the memorial were the following :
(1) the Jatav caste should be included in the list of scheduled
caste in the States of Madhya Pradesh and Vindhya Pradesh. It
was added that in Vindhya Pradesh Jatavs were included in the
list in the Presidential Order 1950; but it was urged that they
should be separately mentioned and not grouped with the other
castes.
It was pointed out that in the following States Jatavs
were included in the list of Scheduled castes but were grouped
with Chamar, Reghar or Mochi etc. and that they should be separately mentioned as a scheduled caste :
"Madhya Bharat, Bhopal, Uttar Pnidesh, Rajasthan,
Ajmer, Delhi."
It is apparent that repeated attempts were being made by the
representatives of the Jatav caste to have their caste included in
the list of Scheduled Castes wherever they were not included and
to have that caste separated from Chamar, Regar or Mochi etc.
and not be grouped with these castes in those areas where thev
were so shown.
It is obvious that after the reorganisation of the
States in 1956 when the Scheduled Castes and Scheduled Tribes
List (Modification) Order 1956 was promulgated Jatavs were
not included among scheduled castes in the districts
includincr
Dalia which comprised the erstwhile State of Vindhya Pradesh~
If the case of the returned candidate had been, right from the
beginning, that whatever representations were made to which he
was a party the object was to get a certain section of the Chamars who had started followed different avocations designated
by the name of Jatavs and included under that name among the
scheduled castes tl1e position might have been different; but all
640
SUPREME COURT REPORTS
[1972] 2 s.c.R.
the pamphlets etc. and the activities of the returned candidate
showed that he was a Jatav and that caste was quite different from
that of Chamars.
Indeed no such case was raised in the written
statement and even in his own statement the returned candidate
did not .make out such a case.
He started by saying in examinationcin-chief that he was a Chamar by caste but then he proceeded to say that Jatav is a sub-caste of Chamar.
He did not
explain how he came to be associated with the various activities
of the Jatav organisation where his name was shown prominently
as one of the office-bearers, particularly with reference to the
branch of the J atav Organisation in Datia.
He denied in crossexamination that he attended any Jatav Sammelan in Pichhor
tehsil.
He admitted, however, that in Bhander tehsil he visited
Jatav Sammelan twice.
On one occasion he went to the Sammelan at Mouza Barcholi.
It appears that he did not have any
clear idea about the caste to which he belonged.
The following
questions and answers will show the complete confusion in his
own mind as to whether Jatavs and Chamars formed one caste or
whether Jatav was a sub-caste of Chamar :-
"Q. I put it to you whether you are a 'Jatav
Chamar'?
A. I am a Chamar (Mai Chamar Hoon).
Q. Whether 'Jatav' and 'Chamar' is one and the
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A. Yes, Chamar and Jatav is one and
the same
caste.
Q. Whether 'Jatav' is a sub-caste of 'Chaniar' ?
A. It is true that the 'Jatav' is a sub-caste of
'Chamar'.
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Q. Whether you are a Jatav or not?
A. I am a Chamar.
I am not a _Jatav.
As a Jatav Chamar I did not organise any
Sammelan m Bhander and Pichhor tehsils.
I did that as
a
Chamar.
Those Sammelans used to be known by the name of
'Jatav' Sammelan".
The only attempt which appears to have been made to develop a case that the Chamars of Datia district wanted to be called
Jatavs and so included in the list of scheduled was in the crossexaminatiO!I of Rajaram P.W. 23.
The following part of his
cross-exammation may be reproduced in this connection :
"Aber.var, Dohar, Raidas and 'JATAV' are not of
'CHAMAR' caste.
They are all separate castes. It is
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KISHORILAL v. RAJA RAM (Grover, I.)
not true that because the word 'CHAMAR' smacks of
inferiority complex, therefore they started calling themselves 'JATAVS'.
Q. I put it to you that because the Chamars prepare ~hoes and therefore, this is not liked by people and
on this account they to be called 'JATAV'.
What have
you to sa_y to this ?
A. This is not correct.
CHAMARS do prepare
shoes, but Chamar is a different caste from 'JATA V' ".
641
In ou~ judgment it will not be . in accord with the correct principles either of the law of pleadmgs or otherwise to allow the
returne~ candid at~ to. now make ou.t a case for which no proper
foundat10n was laid either m the written statement or even in the
evidence.
Coming back to the question whether the returned candidate
belonged to the Jatav or the Chamar caste it is difficult to disagree with the High Court that he had failed to prove that he was
a Chamar and not a Jatav.
It is true that right from the beginning all the entries in the revenue records relating to the castes of
the ancestors of the returned candidate including his close relations which have been fully referred to by the High Court showed
that these persons were described as belonging to the Chamar
caste.
The High Court considered the weight of the evidence
of these entries and pointed out that the entries had presumptive
weight only and the same had been rebutted by the other evidence
and, in particular, the various representations which were being
made to the authorities concerned that persons belonging to the
Jatav community were not being entered as Jatav but were being
.entered as Chamar. 'The Collector had, from
time to time.
passed orders and directed his subordinates to record the caste of
these people as Jatav, if they stated that to be their caste.
All
this shows that in Datia district the members of the Jatav caste
in spite of their persistent assertion and claim that they formed
a case separate and distinct from that of Chamars was not being
entered in the official records by the authorities concerned.
It is
somewhat difficult to accept as was the evidence of some of the
witnesses that Jatav and Chamar were the same castes.
Ved
Prakash P.W. 19 on whom reliance was placed on behalf of the
returned candidate stated that Chamar caste and Jatav caste were
one and the same.
The evidence of Sham Saxena P.W. 15 was
to the same effect.
Harinarain Ken P.W. 20 stated that there
was an All India Jatav Sabha and he was the Secretary of the
Madhya Pradesh Jatav Sabha since 1948. He proved the
memorandum to which reference has already been made which
was submitted on behalf of the Jatav caste for recognising it as a
642
SUPREME COURT REPORTS
[1972] 2 S.C.R.
distinct caste.
He was quite certain that Jatav caste did not fonu
part of the Chamar caste.
The evidence of Dhani Ram R.W. 1,
who is a close relation of the returned candidate, was that Jatav
and Chamar was one and the same caste.
R.W. 11 an uncle of
the returned candidate claimed that he belonged to the Chamar
caste but in cross-examination stated that he was a Jatav Chamar.
From the entire evidence to which it is unnecessary to refer there
seems to be little room for doubt that although at one time Jatavs
might have been Chamars but they became a distinct caste or
came to be recognised as a separate caste several years· ago. The
fact that they were shown separately as a caste in the Madhya
.Bharat and several other States in the
Scheduled Caste and
Scheduled Tribes Order (Amendment) Act 1956 shows that the
existence of Jatav caste was recognised.
A caste, it is
wellknown, cannot spring up or develop in a short period of time. It
is unnecessary to go into the question of the origin of a caste
but it cannot be gain said that a caste must be in existence before
it can be recognised as such.
The fact of recognition of Jatav
caste as a caste in the statutory provisions and Orders mentioned
before though confined to certain States and parts of those States
cannot be ignored.
It cannot, therefore, be said that Jatav and
Chamar was one and the same.
The only question is whether
there was any Jatav caste in Datia district.
The evidence in the
fonu of representations made by the members· of Jatav community including the returned candidate himself apart from
other
oral evidence established the existence of Jatav caste even in
Datia district but it so happened that it was not included either ih
the Act of 1956 or the Presidential Order among the scheduled
castes.
This position appears to be highly anomalous.
Ordinarily if Jatav caste was included so far as the old State of Madhya
Bharat was concerned and was also included in the districts which
constituted the erstwhile State of Madhya Bharat even after its
merger in the Madhya Pradesh after the States Reorganisation
Act there seems to be no reason or justification for excluding the
Jatavs of Datia District.
Their exclusion apparently was due to
the fact that in the erstwhile State of Vindhya Pradesh of which
Datia district formed a part Jatav caste was not included in the
list of scheduled caste.
In order to find out why in the Presidential Order issued in
1950 pattern of which was followed in later statutory provisions
and Orders certam castes were recognised as scheduled castes in
other parts of the sam~ State one has to go back to the Govemn!e_nt o~ India '.Scheclyler.1 Caste) Order 1936.
By certain prov1s1ons m the First, Fifth <md Sixth Schedules to the Government
of I'.'dia Act 1935, His Majesty in Council was empowered to
specify the caste, race or tribe or parts of or groups within the
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643
caste, race or tribes which were to be treated as Scheduled caste.
Part II of the aforesaid Order of 1936 which was issued in exercise of the power conferred by the aforesaid provisions was as
follows:-
"subject to the provisions of this Order, for the
purposes of the First, Fifth and Sixth Schedules to the
Government of India Act, 1935, the castes, races or
tribes, or parts of or groups within castes, races or
tribes, specified in Parts I to IX of the Schedule to this
Order shall, in the Provinces to which those Parts respectively relate, be deemed to be scheduled castes !O far
as regards members thereof resident in the localities
specified in relation to them respective! y in those Parts
of that Schedule".
In the Schedule certain castes were mentioned as sc,heduled caste
for the wholt of a particular Province or part thereof.
While
issuing the Presidential Orders under Art. 341 of the Constitution
the same pattern was adopted and the scheme was to specify
scheduled castes throughout a particular State or the Union territory as well as parts of that State or Union territory, as the case
may be, in relation to the locality in which the members of the~e
castes etc. were residing.
This test of residence leads to highly
anomalous and unjust results which can be illustrated by a simple
example. If there are two brothers belonging to Jatav caste
who are equally qualified to be employed in a particular service
or post in respect of which reservation is provided for the members of the scheduled caste, one living in district A in the State
of Madhya Pradesh can avail of that benefit whereas the other
who lives in an adjoining district B for which that caste is not
included in the Order would be deprived of the benefit of that
reservation which is. for the whole S!ate even though there may
be no difference in the socio-economic condition of the caste to
which the brothers belong in the districts where
they reside.
Several other anomalies can arise because it is only a member of
a ca.ste which is included in the statutory provisions or the Orders
mentioned before who can take advantage of the benefits conferred by the constitutional provisions.
Article 341 of the Constitution provides for specification of caste, race or tribe etc. for
the purpose of the Constitution in relation to that State or UniQ.1
territory, as the ca1e may be.
In the Twelf•h R ~port of the Commission for Scheduled Castes and Scheduled Tribes 1962-63
it
has been pointed out at page 12 that a person may belong to a
caste or tribe declared to be a scheduled caste in his originating
State but who may have been residing for a long time in another
State (say. for the sake oi service or business) where his caste/
SUPREME COURT REPORTS
(1972] 2 S.C.R
tribe is not recognised as a Scheduled Caste/Tribe. In the relevant statutory provisions and Orders such a person would be
denied the benefits under the Constitution even though he may
actually continue to suffer from the effects of the disabilities
resulting from the practice of untouchability.
The Commissioner
suggested that they should be treated as eligible for benefits made
available to the scheduled castes/tribes in the home State etc.
If the matter were res-integra we would have felt a good deal
of difficulty in reconciling with the constitutional provisions the
scheme followed in the statute and the Orders concerned by which
the same caste has been included in some districts of the same
State and excluded in the other districts. This Court, however.
has in Bhaiyalal v. Harikishan Singh & others(1) made observations repelling the contention that under Art. 341 of the Constitution the President was not authorised to limit the notification to
parts of a State.
The reason given was that while specifying
caste, race or tribe the President may well come to the conclusion
that not the whole ct1ste, race or tribe but part of or groups within them should be specified.
This would be so where the President is satisfied that the examination of the social and educational
backwardness of the race, caste or tribe justifies such specification.
It would appear from .the Tenth Report of the Commissioner for
Scheduled Castes anci Scheduled Tribes 1960-1961 (page 22)
that two factors have been mainly taken into acco;mt for including
a particular caste, race or tribe in the ljst of scheduled castes and
scheduled tribes i.e. socio-economic conditions and population
figures.
In Bhaiyalal's case(1) the appellant's election had been challenged 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 hi~ declaration that he belonged to the Chamar caste
which was a Scheduled Caste was improperly and illegally accepted by the Returning Officer. It was held that the plea that
though the appe!Jant was not a Chamar as such he could claim
the same status by reason of the fact that he belonged to Dohar
caste which is a sub-caste of the Chamar caste could not be accepted. An inquiry of that kind would not be permissible having
regard to the provisions contained in Art. 341 of the Constitution.
The case of Basavalingappa v. Munichinnappa( 2 ) was referred to.
In that ca£e it was laid down thiit generally speaking it was not
open to any person to lead evidence to establish that his caste includes or is the same as another caste which is notified in the
Order.
Following these two decisions it must be held that the
eturned candidate, in the present case, was not entitled to .estab-
(1) [1965] 2 S.C.R. 877.
(2) [1965] l S.C.R. 316.
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lish that Jatav caste was the >aJne as Chamar. In this view of tll(!
matter nothing else survives for consideration or decision.
In the result the appeal (C.A. 2123/69) fails and is dismissed.
The other appeal (C.A. 2237 /69) not having been pressed
p is also dismissed.
Taking into consideration the entire circumstances we leave the parties to bear their own costs in this Court.
G.C.
Appeals dismissed.