HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment reserved on 16.12.2008
Judgment delivered on 02.03.2009
Election Petition No.2 of 2007
Pooranmasi Dehati Vs. Shambhu Chaudhary
WITH
Election Petition No.6 of 2007
Chandra Deo Gautam Vs. Shambhu Chaudhary
~~~~~~
Hon'ble Dilip Gupta, J.
These two Election Petitions which have been filed under Sections 80/81 of ''The Representation of The People Act, 1951' (hereinafter referred to as the ''Act') call in question the election of the returned candidate Shambhu Chaudhary from 178, Naurangia Uttar Pradesh Legislative Assembly constituency. This constituency was reserved for a member of the Scheduled Castes. It is the contention of both the petitioners that the returned candidate does not belong to the Scheduled Castes.
Thirteen persons contested the said 2007 State Legislative Assembly election from 178, Naurangia reserved constituency. Shambhu Chaudhary secured 38,308 votes and was declared elected. Pooranmasi Dehati secured 35,118 votes while Chandra Dev Gautam secured 30,861 votes.
Election Petition No.2 of 2007 has been filed by Pooranmasi Dehati for a declaration that the election of the returned candidate be set aside and he be declared elected since he had received the highest number of votes after the returned candidate. Election Petition No.6 of 2007 has been filed by Chandra Dev Gautam for declaring that the election of the returned candidate is void.
The pleadings in both the election petitions are broadly directed against the contest of the election by the returned candidate Shambhu Chaudhary as a candidate belonging to the Scheduled Castes. It has been stated that Shambhu Chaudhary filed his nomination for the said Uttar Pradesh Legislative Assembly constituency reserved for the Scheduled Castes treating himself to be belonging to Kharwar caste and a resident of Basahia @ Kaptanganj, District Kushinagar though in fact he was not an ordinary resident of that village but was an original resident of village Langari, District Kushinagar and belonged to Kamkar caste which is not a Scheduled Caste. It has, therefore, been stated that he was not qualified to be chosen for filling the said State Legislative Assembly seat reserved for Scheduled Castes. It has also been stated that Shambhu Chaudhary had obtained the caste certificate on 6th August, 2005 from Tehsil Hata, District Kushinagar by misrepresenting that he belonged to Kharwar caste and was a resident of village Basahia; that the said caste certificate was issued pursuant to the application and affidavit dated 26th July, 2005 submitted by Shambhu Kharwar mentioning that he was son of late Ram Garib Kharwar and the Tehsil authorities wrongly reported that the applicant Shambhu who was son of Ram Garib belongs to Kharwar caste which is a Scheduled Caste; that his nomination paper was accepted by the returning officer in spite of the objection filed by Deeplal Bharti at the time of scrutiny of the nomination paper; that the family members of the returned candidate are original residents of village Langari, Tehsil Hata, District Kushinagar and also have agricultural holdings in this village; that their caste is also mentioned in the revenue records as Kamkar which is not a Scheduled Caste; that the returned candidate and his family members are registered in the family register of village Langari and not in the family register of village Basahia; that the father of the returned candidate had executed a sale deed dated 25th September, 1996 in respect of his Bhoomidhari land in village Langari in which he had stated that he does not belong to the Scheduled Castes and that according to the census report of 1991, Kamkar is a title of Kahars which is a backward caste in Uttar Pradesh. In support of the contention that Kamkar is not a Scheduled Caste, reliance has been placed on the letter sent by the State Government addressed to the Director, Social Welfare, U.P. dated 27th March, 1996 and also upon the communication dated 18th May, 2007 sent by the District Social Welfare Officer, Kushinagar to Deeplal Bharti.
The returned candidate has filed written statements in both the Election Petitions.
The averments made in the written statements are that the returned candidate is Kharwar by caste which caste is a Scheduled Caste; that the persons of Kharwar caste are called and known as Kamkars in that region and that is why Kamkar is not mentioned as a caste either in the list of Scheduled Castes or in any other list; that Kamkar is a sub-caste of Kharwar; that it is incorrect to say that the family members of the returned candidate are not Kharwars by caste or that the returned candidate is not Kharwar by caste and that when the caste of a person is mentioned as Kamkar it means that the person belongs to Kharwar caste which is admittedly a Scheduled Caste. It has further been stated that the issue as to whether Kamkar is a sub-caste of Kharwar or not came up for consideration before the State Backward Class Commission and a Committee of the said Commission headed by the Chairman decided on 15th July, 1998 that Kamkar is a sub-caste of Kharwar which is a Scheduled Caste and, therefore, cannot be declared as OBC. This decision was communicated by the letter dated 11th November, 1998 and 20th August, 2001 to the District Magistrates of Districts Deoria, Kushinagar and Maharajganj mentioning therein that Kamkar is a sub-caste of Kharwar which is a Scheduled Caste. It has further been mentioned in the written statement that the returned candidate is a resident of village Basahia @ Kaptanganj and that the father of the returned candidate migrated and shifted from village Langari long back and started residing in village Basahia @ Kaptanganj and the names of returned candidate and his family members are duly entered in the family register of the said village. It has also been stated that the Sub-Divisional Magistrate, Hata made a detailed enquiry and submitted his report dated 26th May, 2007 mentioning that the Kamkar is a sub-caste of Kharwar which is a Scheduled Caste and thereafter the caste certificate was issued which has not been cancelled till date; that the returned candidate is married in a Kharwar family; that all the relations of the returned candidate are married in Kharwar families and that distant and near relatives belong to Kharwar caste who have also been issued Kharwar caste certificates.
The issues on which the learned counsel for the parties have addressed the Court in Election Petition No.2 of 2007 are as follows:-
"Issue No.1:- Whether respondent no.1 is not a member of Scheduled Caste and as such is statutorily disqualified to be chosen as a member of U.P. Legislative Assembly from 178-Naurangia Assembly Constituency reserved for Scheduled Caste, and as such his election as a member of U.P. Legislative Assembly from 178-Naurangia, Constituency declared on 11.5.2007 is void?
Issue No.4 :- Whether Kamkar is a sub-caste of Kharwar which is a Scheduled Caste?"
The issues on which the learned counsel for the parties have addressed the Court in Election Petition No.6 of 2007 are as follows:-
Issue No.3:- Whether Sri Shambhu Chaudhary is Kamkar by caste which has not been declared as scheduled caste under clause 1 of Article 341 of the Constitution of India by the President by the Constitution (Scheduled Caste) Order, 1950 as amended time to time for State of U.P.
Issue No.4:- Whether the Kamkar is either declared Scheduled Caste or sub-caste of Kharwar by the President under Article 341(1) of the Constitution of India or by the Parliament and if not so declared whether the Kamkar may be treated as sub-caste of Kharwar.
Issue No.5:- Whether the decision of the Backward Commission dated 15.7.1998 not including the Kamkar in the list of other backward class on mere allegation of some persons without there being any evidence and finding that the Kamkar is sub caste of Kharwar will make Kamkar as scheduled caste without any declaration to that effect by the President under Article 341(1) of the Constitution of India.
The parties have filed oral and documentary evidence to which reference shall be made at the appropriate stage.
I have heard Sri M. Islam, learned counsel for the petitioner in Election Petition No.2 of 2007 and Sri H.N. Singh, learned counsel for the petitioner in Election Petition No.6 of 2007. Sri K.N. Tripathi, learned Senior Counsel assisted by Sri K.R. Singh has made submissions on behalf of the respondent-returned candidate in both the petitions.
Sri M. Islam, learned counsel for the petitioner Pooranmasi Dehati submitted that the returned candidate is Kamkar by caste which caste is not mentioned as a Scheduled Caste in Part XVIII of the Schedule relating to the State of Uttar Pradesh contained in ''The Constitution (Scheduled Castes) Order, 1950' (hereinafter referred to as the ''1950 Scheduled Castes Order'). It is his submission that the returned candidate does not belong to Kharwar caste and the contention of the returned candidate that Kharwars residing in the area in question are called Kamkars or that Kamkar is a sub-caste of Kharwar cannot be accepted. In support of his contention that the returned candidate is a Kamkar, learned counsel has placed reliance upon the family register of the village which does not mention that the family of the returned candidate belongs to the Scheduled Caste and upon the Khataunies which mention the caste of the family members of the returned candidate as Kamkar. He has also placed reliance upon the copy of the sale deed executed by the father of the returned candidate wherein it was specifically mentioned that the vendor does not belong to the Scheduled Castes. He has also referred to the testimony of the witnesses produced on behalf of the petitioner who have categorically stated that the returned candidate belongs to Kamkar caste and also upon the testimony of the returned candidate Shambhu Chaudhary (DW-2) that his caste is also called as Kamkar and that Kamkar is a sub-caste of Kharwar. It needs to be mentioned that Sri M.Islam made a categorical statement that he does not desire to press Issue Nos. 2 and 3 which are as to whether the votes cast in favour of the returned candidate should be treated as throw away and invalid votes and the petitioner should be declared elected.
Sri H.N. Singh, learned counsel for the petitioner Chandra Dev Gautam also, on the basis of the documentary and oral evidence, submitted that the returned candidate is Kamkar by caste which is not a Scheduled Caste and so was statutorily disqualified to be chosen as a Member of the Uttar Pradesh Legislative Assembly reserved for a Scheduled Caste candidate.
Sri K.N. Tripathi, learned Senior Counsel appearing for the returned candidate, however, submitted that burden lay on the petitioners to prove by documentary and oral evidence that the returned candidate does not belong to Kharwar caste and belongs to Kamkar caste and as the petitioners have failed to discharge this burden, the Election Petition must fail. In support of this contention he has placed reliance upon the decisions of the Supreme Court in Brij Mohan Singh Vs. Priya Brat Narain Sinha & Ors., AIR 1965 SC 282; Laxman Siddappa Naik Vs. Kattimani Chandappa Jampanna & Ors., AIR 1968 SC 929; Abhoy Pada Saha Vs. Sudhir Kumar Mondal, AIR 1967 SC 115; Harikrishna Lal Vs. Babu Lal Marandi, (2003) 8 SCC 613 and Birad Mal Singhvi Vs. Anand Purohit, AIR 1988 SC 1796. With reference to Entry 46 contained in Part XVIII of the 1950 Scheduled Castes Order, he submitted that Kharwars are also called as Kamkars in the region and since only Benbansi has been excluded under Entry 46, all other Kharwars are included and, therefore, the returned candidate belongs to the Scheduled Castes. He further submitted that the documents filed along with Election Petition No.2 of 2007 cannot be taken into consideration as they were not filed with the Election Petition and only the list of documents was filed with the Election Petition.
I have carefully considered the submissions advanced by the learned counsel for the parties. All the issues referred to above can be conveniently decided together.
Article 332 of the Constitution which is contained in Part XVI provides for reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the State. Article 341 of the Constitution which is contained in the same Part deals with Scheduled Castes while Article 342 deals with the Scheduled Tribes.
Article 341 of the Constitution of India reads as under:
"341. Scheduled Castes.--(1) 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.
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."
Article 342 dealing with Scheduled Tribes is almost similarly worded and is as follows:-
"342. Scheduled Tribes.--(1) 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 tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."
In exercise of the powers conferred under Article 341 of the Constitution, the President made the 1950 Scheduled Castes Order which mentions the castes which are Scheduled Castes. Entry 46 contained in Part XVIII of the Schedule to this Order which relates to the State of Uttar Pradesh, as it stood prior to the amendment made by Act No.10 of 2003, mentions Kharwar (excluding Benbansi).
It needs to be mentioned that for the State of Uttar Pradesh, in exercise of powers of Article 342(1) of the Constitution the President made ''The Constitution (Uttar Pradesh) Scheduled Tribes Order, 1967' (hereinafter referred to as the ''1967 Scheduled Tribes Order'). It contained only five entries namely (1) Bhotia, (2) Buksa, (3) Jaunsari, (4) Raj, and (5) Tharu.
Under Article 341(2) and 342(2) of the Constitution, the Parliament can include or exclude from the list of Scheduled Castes/Scheduled Tribes specified in the notification issued by the President any caste/tribe or part of or group within any caste/tribe. In due exercise of such powers, the Parliament enacted ''The Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 2002 (hereinafter referred to as the ''Act No.10 of 2003). The statement of objects and reasons of this Act are as follows:-
"Prefatory Note-Statement of Objects and Reasons.- According to the provisions of Articles 341 and 342 of the Constitution, the lists of the Scheduled Castes and the Scheduled Tribes were notified during the Years 1950 and 1951 in respect of various States and Union territories respectively. These lists were modified from time to time. A number of requests were received from time to time from the State Government for removing anomalies in the lists by inclusion of certain tribes or tribal communities, equivalent names or synonyms of certain tribes or communities, removal of area restrictions and bifurcation or clubbing of certain entries, etc., imposition of area restrictions in respect of certain castes in the lists of Scheduled Castes, and exclusion of certain castes and tribes from the lists of Scheduled Castes and Scheduled Tribes.
2. The modification in the lists have been processed. Accordingly, the lists of Scheduled Castes and Scheduled Tribes are proposed to be modified for 20 States in respect of 140 communities after consultation with the State Governments concerned, the Registrar General of India and the National Commission for Scheduled Castes and Scheduled Tribes."
By Amendment Act No.10 of 2003, Entry 46 in Part XVIII of the 1950 Scheduled Castes Order relating to the State of Uttar Pradesh was substituted and the said entry now reads as follows:-
"Kharwar (excluding Benbansi) (excluding Deoria, Ballia, Ghazipur, Varanasi and Sonbhadra districts)."
The aforesaid Amendment Act No.10 of 2003 has also included ten more entries in the list of Scheduled Tribes in the 1967 Scheduled Tribes Order and so the total number of entries is now 15. Entry No.7 of this order is as follows:-
"7. Kharwar, Khairwar (in the districts of Deoria, Balia, Ghazipur, Varanasi and Sonbhadra."
It needs to be emphasised that Kamkar is not mentioned in any of the Entries contained in Part XVIII in the 1950 Scheduled Castes Order or in the 1967 Scheduled Tribes Order.
It would thus be seen that after the enactment of Amendment Act No.10 of 2003, persons belonging to Kharwar (excluding Benbansi) caste would be Scheduled Castes in the State of Uttar Pradesh in all the Districts except Deoria, Ballia, Ghazipur, Varanasi and Sonebhadra and that persons belonging to Kharwar, Khairwar castes in the Districts of Deoria, Ballia, Ghazipur, Varanasi and Sonebhadra would be Scheduled Tribes. The election in question is not in respect of these five districts.
It is clear from the aforesaid that Kharwar (excluding Benbansi) is a Scheduled Caste in State of Uttar Pradesh. 178, Naurangia Legislative Assembly constituency in the State of Uttar Pradesh was reserved for a member of Scheduled Caste. The petitioners claim that the returned candidate does not belong to Kharwar caste while the returned candidate claims that he belongs to Kharwar caste.
It is in this context that the contention of Sri K.N. Tripathi, learned Senior Counsel for the returned candidate has to be examined. It is his contention that burden lay upon the petitioners to prove that the returned candidate does not belong to Kharwar caste in view of the decisions of the Supreme Court referred to above and as the petitioners have failed to discharge this burden, the election petitions must fail.
On the other hand, learned counsel for the petitioners have submitted that from the pleadings and the evidence on record, it is clear that the returned candidate himself has come out with a case that he is a Kamkar but as Kharwars are called as Kamkars in the area and Kamkar is a sub-caste of Kharwar, the returned candidate belongs to the Scheduled Castes.
In order to examine this contention, it would be necessary to refer to the relevant pleadings and the evidence.
In paragraph 10 of Election Petition No.2 of 2007, it has been categorically stated by the petitioner that the returned candidate belongs to Kamkar caste which is not a Scheduled Caste. What has been stated in the Written Statement in reply to the averments made in paragraph 10 of the Election Petition is as follows:-
"That the contents of paragraph no.10 of the election petition are not admitted and are denied. .................. The answering respondent is Kharwar by caste which is a Scheduled Caste. Kamkar is a sub-caste of Kharwar and the persons of Kharwar caste are called and known in the area as Kamkar. Kamkar as such is not mentioned any where as caste either in the list of Scheduled Castes or in the list of Other Backward Classes. It is incorrect to say that the answering respondent is Kamkar by caste. The fact is that he is Kharwar by caste which is popularly known as Kamkar in the area as it's sub-caste. The answering respondent was fully qualified to contest the election from the constituency in question. .............."
In paragraph 11 of Election Petition No.2 of 2007 the petitioner has stated that the returned candidate obtained the caste certificate from the Tehsildar by misrepresentation that he belongs to Kharwar caste when as a matter of fact he belongs to Kamkar caste. In paragraph 11 of the Written Statement, the returned candidate again asserts as follows:-
"..............It is also stated that Kamkar as such is not a caste but it is a sub-caste of Kharwar, which is a Scheduled Caste. The answering respondent is also Kharwar by caste and is a Scheduled caste. ........" (emphasis supplied)
In paragraph 14 of the Election Petition No.2 of 2007, the petitioner has stated that the caste of the forefathers of the returned candidate is shown as Kamkar in the Khatauni records which is not a Scheduled Caste. In paragraph 14 of the Written Statement, the returned candidate has stated:-
"......... Kamkar is a sub-caste of Kharwar which is a scheduled caste. The persons of Kharwar caste are popularly called as Kamkar. Because of the said reason the persons of Kharwar caste are shown as Kamkar at many places. It is incorrect to say that the family members of answering respondent were not Kharwar by caste or the answering respondent is not Kharwar by caste. It is also incorrect to say that Kamkar is not a scheduled caste. In fact Kamkar is a sub-caste of Kharwar and is a scheduled caste."
In Election Petition No.6 of 2007, the election petitioner has stated that the caste of the forefathers of the returned candidate is Kamkar which is not a Scheduled Caste and that the caste of the returned candidate is Kamkar and not Kharwar. In paragraph 42 of the Written Statement the returned candidate has stated as follows:-
"That the contents of paragraph no.42 of the election petition are not admitted and are denied. It is stated that Kharwar is a Scheduled Caste and Kamkar is a sub-caste of Kharwar. The persons of Kharwar caste are also known and called as Kamkar. Whenever a person's caste is mentioned as Kamkar it means that the person belongs to Kharwar caste which is admittedly a Scheduled Caste. Kamkar, as such, is neither separately mentioned as a caste in the list of Scheduled Castes nor in the list of Other Backward Classes. The question as to whether Kamkar is a sub-caste of Kharwar or not came for consideration before the State Backward Classes Commission, Uttar Pradesh, Lucknow and a committee of the said Commission headed by its Chairman gave a long hearing in the mater and decided that Kamkar is a sub-caste of Kharwar which is a Scheduled Caste as such it could not be declared as Other Backward Class. The said decision was given on 15-7-1998 a true copy of which is being filed herewith as ANNEXURE-7 to this written statement. .............."
In paragraph 50 of Election Petition No.6 of 2007, it has been asserted that Deep Lal Bharti had raised an objection to the nomination paper submitted by the returned candidate that he did not belong to the Scheduled Castes and was, therefore, not qualified to contest the election and in fact he was Kamkar by caste which was not a Scheduled Caste. In paragraph 50 of the Written Statement it has been stated :-
"That the contents of paragraph no.50 of the election petition are not admitted and are denied. The objections raised by Deep Lal Bharti were totally frivolous as is apparent from the records filed along with this written statement. The answering respondent is Kharwar by caste, popularly known and called as Kamkar, and is Scheduled Caste. Kamkar is a sub-caste of Kharwar and the persons of Kharwar caste are popularly known in the area as Kamkar therefore at different places Kamkar has been mentioned as the caste. It is incorrect to say that the answering respondent is not a Scheduled caste or he raised a wrong and fraudulent claim about his caste. The allegations are incorrect and are denied as such."
The returned candidate Shambhu Chaudhary appeared as DW-2. In his examination-in-chief, he has stated that Deep Lal Bharti had filed objections before the Returning Officer against the nomination filed by him. The Sub-Divisional Magistrate, Hata, Kushinagar conducted an enquiry and in the report dated 26th May, 2007 stated that Kamkar is a sub-caste of Kharwar and is a Scheduled Caste and, thereafter, the caste certificate was issued to him. He has further stated that he and his family members belong to Kharwar caste and the people belonging to Kharwar caste are called as Kamkar and Kamkar is a sub-caste of Kharwar. He further stated that there are many sub-castes of Scheduled Castes which have not been mentioned in the Order and in this manner Kharwars are also called as Kamkars which is a sub-caste. In the cross-examination the following question was put to the returned candidate:-
"Whether I would be correct in calling you Shambhu Chaudhary Kamkar?"
The answer to this question that was given by the returned candidate is as follows:-
"My caste is also called as Kamkar. The Government of India issues a list of Scheduled Caste. This list is issued so that the people may know which are the Scheduled Castes. I have seen that list in a cursory manner. It is incorrect to suggest that Kamkar caste is a separate caste and is not a sub-caste of any caste as it is a sub-caste of Kharwar. I have no doubts about the aforesaid fact because Kamkar is a sub-caste of Kharwar." (emphasis supplied)
In the cross examination another question that was put to the returned candidate is :-
"Title does not determine the sub-caste?"
The answer given by the returned candidate is as follows:-
"For determining the caste, the certificate is to be seen. The certificates are issued by the competent officer. I have filed the certified copy of the caste certificate along with the list of documents. The said certificate mentions that it has been issued under the provisions of the Constitution (Scheduled Caste) Order, 1950. I have not seen this 1950 Order. In 1950 Order, no sub-caste is mentioned against Kharwar at Serial No.46 in the Uttar Pradesh. In respect of Serial No.24, Gautam, Bharti, Ravidas have not been mentioned. Gautam, Bharti and Ravidas called themselves as Scheduled Caste. I am Kamkar." (emphasis supplied)
In his cross-examination the returned candidate further stated that Kamkars had submitted an application before the Backward Commission that they are equal to Kahars and, therefore, they should be declared as belonging to Backward Class. The Backward Commission in its order dated 15th July, 1998 observed that since Kamkar is a sub-caste of Kharwar, it is a Scheduled Caste and will not be a Backward Caste. He further stated that Kamkars had been issued the Scheduled Caste certificates treating the said caste to be a sub-caste of Kharwar.
It is, therefore, clear that in the cross-examination, the returned candidate has admitted that he is a Kamkar. However, from the averments made by him in the Written Statement and from the statements made by him in the examination-in-chief and cross-examination, as noticed above, he claims to be belonging to the Scheduled Castes because according to him Kharwars are popularly called as Kamkars in the region and Kamkar is a sub-caste of Kharwar. This he says because Kharwars are Scheduled Castes under the 1950 Scheduled Castes Order. He has, thus, infact taken two alternative pleas. He states that though he is a Kamkar but he is a Kharwar because Kharwars are called as Kamkars in the region and alternatively Kamkar is a sub-caste of Kharwar and for treating Kamkar as a sub-caste of Kharwar, he has placed reliance upon the decision taken by the Backward Commission. Thus, it is clear that the returned candidate has admitted that he is a Kamkar but claims to be belonging to the Kharwar caste for the reasons mentioned above.
The aforesaid admission of the returned candidate has to be kept in mind while examining the contention of Sri K.N. Tripathi that burden lay upon the petitioners to prove that the returned candidate is Kamkar by caste.
In this connection main emphasis was placed by Sri Tripathi on the decision of the Supreme Court in Laxman Siddappa Naik (supra). The Election Petition was filed on the ground that the returned candidate was not a member of the Scheduled Tribes mentioned in the relevant Scheduled Tribes Order. Entry No.13 of the Order mentions Nayaka including Cholivale Nayaka, Kapadia Nayaka, Mota Nayaka and Nara Nayaka. It was contended by the petitioner that the returned candidate was a ''Bedar' which tribe was not mentioned in the Order. The returned candidate asserted that he was a Nayaka although he stated that Nayakas are also called ''Bedars'. The High Court on appraisal of evidence and after looking to the census reports and the works of certain writers on the subject of Castes and Tribes came to the conclusion that there is no Nayaka in the area and that the returned candidate is a ''Bedar'. It accordingly set aside the election. The Supreme Court, in view of the earlier decisions in Abhoy Pada Saha (supra), B. Basavalingappa (supra) and Bhaiya Lal (supra), found that the controversy was a question of fact which was to be addressed and in this context observed:-
".................These questions are: to what tribal community, if any, does the appellant belong and who is to prove the necessary facts. These questions obviously have to be resolved on certain principles. The ordinary rule is that a person who as a plaintiff, asserts a fact, has to prove it. The election petitioner here asserts two facts (a) that the appellant is not a Nayaka as mentioned in the Order, and (b) that he is a "Bedar". The first is a negative fact and the second a positive one. It is said that the proof of the negative was not only difficult but impossible. We do not agree. The election petitioner could have proved by positive evidence that the petitioner was a "Bedar". That would have proved that he was not a Nayaka. To establish the fact evidence was required to show the characteristics, such as customs of marriages, births deaths, worship, dress, occupation and the like which distinguish a Bedar from a Nayaka. Evidence was also possible to show that the petitioner was received in the Bedar Community. This was capable of being proved by showing inter-marriage, inter-dining, community of worship, residence in a particular place and the like. Such facts would have led to the drawing of an inference one way or the other. A bare assertion that the appellant is a Bedar does not suffice to displace the acceptance of the nomination paper or the claim of the appellant that he is Nayaka."
The Supreme Court then observed that when both sides lead no evidence, the matter must be decided on the basis of the original onus which clearly lay on the election petitioner.
"............Once the nomination paper was accepted the burden must be assumed again by the party challenging the fact that a candidate belonged to a particular community. If prima facie evidence had been led by the election petitioner the burden might have shifted to the candidate but as he led no evidence whatever he must obviously fail. This is not one of those cases in which both sides having led evidence the question where onus lies, becomes immaterial, since the court can reach a conclusion on the totality of the evidence before it. There was no evidence in this case one way or the other. In these circumstances, the election petitioner could not succeed because of the weakness of the appellant's case."
Mr. K.N. Tripathi has also laid stress on paragraph 10 of the judgment which is as follows:-
"An election is something which cannot be readily set aside. There must be proof that a person is not properly chosen to fill a particular seat. Mere suspicion or surmise is not sufficient after the Returning Officer accepts a candidature and the candidate is chosen in the election. Once a community has gone to the polls and the voters have exercised their franchise it is necessary for an election petitioner to show that the candidate is not entitled to the seat. In other words, the burden originally lies on the election petitioner and he cannot succeed unless he discharges that burden. The High Court recognised that there was no evidence in the case but went into the matter from a different angle and attempted to contradict the Presidential Order which it was not entitled to do."
A perusal of the aforesaid decision shows that it was not one of those cases in which both sides lead evidence where the question of onus becomes immaterial since the Court can reach a conclusion on the totality of the evidence before it. In the present case both sides had led evidence and, as seen above, the returned candidate admitted that he was a Kamkar but asserted that he belonged to the Kharwar caste since Kharwars are called as Kamkar in the region and Kamkar is a sub-caste of Kharwar. This decision, therefore, does not help the returned candidate.
In Brij Mohan Singh (supra), Hari Krishna Lal (Supra) and Birad Mal Singhvi (supra) the Supreme Court also emphasised that the burden of proof lies on the one of who challenges the election to raise necessary pleadings and adduce evidence to prove such averments and if nobody adduces evidence, it is the election petitioner who fails. These decisions also do not help the returned candidate for the reasons mentioned above.
Thus all that has now to be seen whether the reasons mentioned by the returned candidate for belonging to Kharwar caste can be accepted for determining whether he belongs to the Scheduled Castes.
The case set up by the election petitioners is that as Kamkar is not mentioned in any of the entries contained in Part XVIII of the 1950 Scheduled Castes Order, the returned candidate does not belong to the Scheduled Castes and, therefore, the election of the returned candidate should be declared void as he was statutorily disqualified from being elected. The case of the returned candidate, however, is that though he is a Kamkar but he belongs to the Scheduled Castes as Kharwars are called Kamkars in the region and Kamkar is a sub-caste of Kharwar.
A glance of the 1950 Scheduled Castes Order indicates that the Order has taken good care to specify different castes under the same heading where enquiry showed that some castes bore different names or had sub-castes which were entitled to be treated as Scheduled Castes for the purposes of the Order. In fact wherever one caste has another name, it has also been mentioned in brackets after it in the Order. This is what has been observed by the Constitution Bench decision of the Supreme Court in B. Basavalingappa Vs. D. Munichinnappa & Ors., AIR 1965 SC 1269, Bhaiya Lal Vs. Harikishan Singh & Ors., AIR 1965 SC 1557 and State of Maharashtra Vs. Milind & Ors., (2001) 1 SCC 4.
The Supreme Court has also time and again examined whether it is permissible to hold an enquiry and examine the evidence to decide or declare that any caste/tribe is included in the Order even though it is not specifically mentioned in the entry or examine whether it is a sub-caste of a caste mentioned in the Order.
In B. Basavalingappa Vs. D. Munichinnappa & Ors., AIR 1965 SC 1269 the election of the returned candidate was challenged on the ground that he was not a member of any of the Scheduled Castes mentioned in the 1950 Scheduled Castes Order. The returned candidate claimed that he belonged to the Scheduled Caste Bhovi whereas the petitioner claimed that he was Voddar. Bhovi was mentioned as a Scheduled Caste in the 1950 Scheduled Castes Order but Voddar was not mentioned. The five Judges Constitution Bench of the Supreme Court, after examining the provisions of Article 341 of the Constitution, observed:-
".............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. It may also be accepted that wherever one caste has another name it has been mentioned in brackets after it in the Order: [See Aray (Mala), Dakkal (Dokkalwar) etc.] Therefore, generally speaking it would not be open to any person to lead evidence to establish that caste B (in the example quoted above) is part of caste A notified, in the Order. Ordinarily, therefore, it would not have been open in the present case to give evidence that the Voddar caste was the same as the Bhovi caste specified in the Order for Voddar caste is not mentioned in brackets after the Bhovi caste in the Order. (emphasis supplied)
The Supreme Court, however, noticed that the 1950 Scheduled Castes Order refers to Bhovi caste and, therefore, there must be some caste which the President intended to include in the Order but as it was not in dispute that there was no caste known as Bhovi, the only course open to the Courts was to find out which caste was meant by the word Bhovi and it was in such peculiar circumstances that the evidence was examined. The relevant observations made by the Supreme Court in this regard are:-
........We may again repeat that we have referred to the evidence in this case only because there was undoubtedly no caste known as Bhovi in the Mysore State as it was before 1956 and we had to find out, therefore, which caste was meant by the word "Bhovi" as used in the Order. But for this fact it would not have been open to any party to give evidence to the effect that (for example) caste A mentioned in the Order includes or was the same as caste B where caste A does exist in the area to which the Order applies."
In Bhaiya Lal Vs. Harikishan Singh & Ors., AIR 1965 SC 1557 the election of the returned candidate was challenged on the ground that he belonged to Dohar caste and was not a Chamar by caste which caste was mentioned as a Scheduled Caste in the 1950 Scheduled Castes Order. The returned candidate claimed that he was a Dohar Chamar which according to him was a sub-caste of Chamar caste. It was also urged that the said sub-caste was also called ''Mochi'. It is in this context that another five Judges Constitution Bench of the Supreme Court observed:-
"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. ..................... It is thus clear, that in order to determine whether or not a particular caste is a scheduled caste within the meaning of Article 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 Article 341. ..............
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 14 in the said list refers to Chamar, Chamari, Mochi, Nona, Rohidas, Ramnami, Satnami Suriyabanshi 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." (emphasis supplied)
In Parsram & Anr. Vs. Shivchand & Ors., AIR 1969 SC 597 the nomination of Kishan Lal was rejected on the ground that he did not belong to the Scheduled Castes. The election petition was filed by an unsuccessful candidate on the ground that Kishan Lal infact was a Chamar by caste and, therefore, belonged to the Scheduled Castes. It was contended that Chamar and Mochi were not separate castes and the word ''Mochi' was applied to a Chamar who actually started working in leather. It was, therefore, urged that 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. The Supreme Court, in view of the Constitution Bench decisions in B. Basavalingappa (supra) and Bhaiya Lal (supra), did not agree with this plea and observed:-
"These judgments are binding on us and we do not therefore think that it would be of any use to look into the gazeteers 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." (emphasis supplied)
In Nityanand Sharma & Anr. Vs. State of Bihar & Ors., AIR 1996 SC 2306 certain Assistant Teachers belonging to Lohar caste claimed the status of a Scheduled Tribe. The Supreme Court examined whether ''Lohars' could be considered by the Court as synonyms of ''Loharas' or ''Lohras' and in this connection the three Judge Bench of the Supreme Court observed:-
"It is for the Parliament to amend the law and the Schedule and include in and exclude from the Schedule, a tribe or tribal community or part of or group within any tribe or tribal community for the State, District or region and its declaration is conclusive. The Court has no power to declare synonyms as equivalent to the Tribes specified in the Order or include in or substitute any caste/tribe etc. It would thus be clear that for the purpose of the Constitution, "Scheduled Tribes" defined under Article 366 (25) as substituted under the Act, and the Second Schedule thereunder are conclusive. Though evidence may be admissible to a limited extent of finding out whether the community which claims the status as Scheduled Caste or Scheduled Tribe, was in fact, included in the concerned Schedule, the Court is devoid of power to include in or exclude from or substitute or declare synonyms to be of a Scheduled Caste or Scheduled Tribe or parts thereof or group of such caste or tribe." (emphasis supplied)
In A. Chinnappa Vs. V. Venkatamuni & Ors., AIR 1997 SC 248 the election of the returned candidate was challenged on the ground that the caste to which he belonged was Mondy/Mondigaru and not Mundala as claimed by him which was the recognised Scheduled Tribe. The Supreme Court observed:-
"The question before us is: whether the status of the appellant who is a Mondy/Mondigaru, can be considered as Mundala a Scheduled Caste synonym, for the purpose of election to the Legislative Assembly?
.........Thus it could be seen that since the caste Mondy/Mondigaru does not admittedly find place in the notification issued by the President or as amended by the Scheduled Caste/Scheduled Tribes (Amendment Order) Act, 1976, the status of the appellant as Mundala cannot be considered to be synonymous of or equivalent to Mondy/Mondigaru as claimed by the appellant."
In two decisions, Bhaiya Ram Munda Vs. Anirudh Patar & Ors., AIR 1971 SC 2533 and Dina Vithoba Naronwara Vs. Narain Singh, (1968) 38 ELR 212, Division Benches of the Supreme Court, however, took a view that evidence is admissible for the purpose of showing what an entry in the Presidential Order was intended to be.
In State of Maharashtra Vs. Milind & Ors., (2001) 1 SCC 4 a five Judges Constitution Bench of the Supreme Court examined the following two questions in the light of the provisions of Article 341 of the Constitution and the earlier decisions of the Supreme Court :-
(1) Whether at all, it is permissible to hold inquiry and let in evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the entry concerned in the Constitution (Scheduled Tribes) Order, 1950?
(2) Whether "Halba-Koshti" caste is a sub-tribe within the meaning of Entry 19 (Halba/Halbi) of the said Scheduled Tribes Order relating to the State of Maharashtra, even though it is not specifically mentioned as such?
In this case one Milind had obtained a caste certificate from the Executive Magistrate, Nagpur on 20th August, 1981 that he belonged to "Halba" Scheduled Tribe which is recognised as a Scheduled Tribe in the 1950 Scheduled Tribes Order for the State of Maharashtra. The caste certificate was, however, rejected as after enquiry, it was found that he did not belong to the Halba Scheduled Tribe. He filed an appeal and the Appellate Authority by a detailed order dismissed the appeal after recording a finding that he was a ''Koshti' and did not belong to the ''Halba/Halbi' Scheduled Tribe. These orders were challenged in the writ petition before the High Court. The High Court allowed the writ petition holding that it was permissible to enquire whether any sub division of a tribe was part and parcel of the tribe mentioned therein and that "Halba-Koshti" is a sub-division of the main tribe ''Halba/Halbi' as per Entry 19 in the 1950 Scheduled Tribes Order applicable to the State of Maharashtra.
The Supreme Court examined the provisions of Article 341 and 342 of the Constitution and in respect of the first question observed that no enquiry is permissible and no evidence can be led for establishing that a particular caste or a part or group of tribes or tribe is included in the Order if they are not expressly included and observed:-
"It appears that the object of Clause (1) of Articles 341 and 342 was to keep away disputes touching whether a caste/tribe is a Scheduled Caste/Scheduled Tribe or not for the purpose of the Constitution. Whether a particular caste or a tribe is Scheduled Caste or Scheduled Tribe as the case may be, within the meaning of the entries contained in the Presidential Orders issued under clause (1) of Articles 341 and 342, is to be determined looking to them as they are. Clause (2) of the said Articles does not permit any one to seek modification of the said orders by leading evidence that the caste/tribe (A) alone is mentioned in the Order but caste/tribe (B) is also a part of caste/tribe (A) and as such caste/tribe (B) should be deemed to be a Scheduled Caste/ Scheduled Tribe as the case may be. It is only Parliament that is competent to amend the Orders issued under Articles 341 and 342. As can be seen from the entries in the schedules pertaining to each State whenever one caste/tribe has another name it is so mentioned in the brackets after it in the schedules. In this view it serves no purpose to look at gazetteers or glossaries for establishing that a particular caste/tribe is a Scheduled Caste/Scheduled Tribe for the purpose of Constitution, even though it is not specifically mentioned as such in the Presidential Orders. Orders once issued under clause (1) of the said Articles, cannot be varied by subsequent order or notification even by the President except by law made by Parliament. Hence it is not possible to say that State Governments or any other authority or Courts or Tribunals are vested with any power to modify or vary the said Orders. If that be so, no inquiry is permissible and no evidence can be let in for establishing that a particular caste or part or group within tribes or tribe is included in Presidential Order if they are not expressly included in the Orders. Since any exercise or attempt to amend the Presidential Order except as provided in clause (2) of Articles 341 and 342 would be futile, holding any inquiry or letting in any evidence in that regard is neither permissible nor useful.
...................
In two cases, Bhaiya Ram Munda v. Anirudh Patar, (1971) 1 SCR 804 and Dina v. Narayan Singh, (1968) 38 ELR 212, Division Benches of this Court took a contrary view to say that evidence is admissible for the purpose of showing what an entry in the Presidential Order was intended to be while stating that the entries in the Presidential Order have to be taken as final and the scope of inquiry and admissibility of evidence is confined within the limitations indicated." (emphasis supplied)
The Constitution Bench considered the earlier judgments of the three Judge Benches in Srish Kumar Choudhury Vs. State of Tripura, AIR 1990 SC 991 and Palghat Jilla Thandan Samudhaya Samrakshna Samithi Vs. State of Kerala, (1994) 1 SCC 359 and pointed that in both these decisions, the Court had followed, as it was bound to do so, the five Judge Constitution Bench judgments in B. Basavalingappa (supra) and Bhaiya Lal (supra) and not the Division Bench judgments in Dina (supra) and Bhaiya Ram Munda (supra). The Constitution Bench, therefore, held that the decisions of the Division Benches in Bhaiya Ram Munda (supra) and Dina (supra) did not lay down the correct law in stating that enquiry was permissible and evidence was admissible.
The Constitution Bench accordingly held:-
"It is not at all permissible to hold any Inquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the concerned entry in the Constitution (Scheduled Tribes) Order, 1950. The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it."
The Supreme Court in Shree Surat Valsad Jilla K.M.G. Parishad Vs. Union of India & Ors., 2007 AIR SCW 3154 observed that the 1950 Scheduled Castes Order made in terms of Article 341(1) is exhaustive and, therefore, it is not for the Court to render its opinion as to whether the President was correct in confining inclusion of the caste Mochi within a particular area.
The decision of the Supreme Court in Union of India & Ors. Vs. S. Krishnan & Anr., (2008) 3 SCC 177 also needs to be referred. The respondent S.Krishnan claimed appointment in the Railway Department as a member of the Scheduled Tribe Malayalee. His caste certificate was verified from the Collector who sent a report that the certificate was a bogus one and the same was cancelled. The respondent was, therefore, removed from service but the revisional authority modified the order of removal to one of compulsory retirement. In the writ petition filed by the respondent before the High Court, it was contended that though the controversy was whether he belonged to the Scheduled Tribe Malayalee, he, in fact, belonged to Lambadi caste which comes within the Scheduled Tribes and in this connection reliance was placed by him on certain communications sent by the Director of Welfare Officer's Office where it was accepted that throughout the State except Kanyakumari District and another Taluk, Lambadi was considered as a Scheduled Tribe. The High Court placed reliance on the letter of the District Welfare Office and held that the respondent belonged to Scheduled Tribes. The Supreme Court noticed that the Lambadi was not mentioned as a Scheduled Tribe under the Constitution 1950 Scheduled Tribes Order of that particular State and, therefore, there was no scope for making any alteration by way of addition or deletion from the entry made in the said Constitution Order and the High Court misdirected itself by placing reliance upon the letter of the District Welfare Office which at best was in the nature of a recommendation.
In Raju Ramsingh Vasave Vs. Mahesh Deorao Bhivvapurkar & Ors., (2008) 9 SCC 54 the Supreme Court after referring to the Constitution Bench decision of the Supreme Court in Milind (supra) observed:-
"In terms of the said provision, the Constitution (Scheduled Tribes) Order, 1950 was issued. The tribe "Halba" finds place in the said Order. "Koshti", however, in the State of Maharashtra comes under "Special Backward Class". Their occupation may be the same but it is well settled that before a person can obtain a declaration that he is a member of a Scheduled Tribe, he must be a member of a tribe. (See Nityanand Sharma v. State of Bihar (1996) 3 SCC 576).
Parliament, it is trite, alone can amend the law and the schedule for the purpose of including or excluding therefrom a tribe or tribal community or part of or group within the same in the State, district or region and the declaration made by Parliament is conclusive. For the said purpose, the court does not have any jurisdiction so as to enable it to substitute any caste and tribe."
The aforesaid decisions of the Supreme Court emphasise that modification in 1950 Scheduled Castes Order cannot be made by producing evidence to show that though a particular caste by name is mentioned in the Order, another caste is also a part of the caste and, therefore, deemed to be included in the caste. This is so because wherever one caste has another name, it has been mentioned in brackets after it in the Order. It has been pointed out by the Supreme Court that in fact the 1950 Scheduled Castes Order has taken good care to specify different castes under the same heading where enquiry showed that 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. The decisions have also emphasised that the Court has no power to declare synonyms as equivalent to the castes specified in the 1950 Scheduled Castes Order as the Parliament alone can amend the Orders. It has also been emphasised that no enquiry is permissible and no evidence can be led for establishing that a particular caste or part or group within castes or caste is included in the general name in the Presidential Order if they are not expressly included in the Order.
In Parsram (supra) the Supreme Court held that it is not permissible for the Courts to examine whether "Chamar" and "Mochi" were synonymous in the sense that in some parts of the State they meant the same caste and in S. Krishnan (supra) the Supreme Court observed that the High Court misdirected itself by placing reliance upon the letter of the District Welfare Office for coming to the conclusion that a particular candidate belonged to the Scheduled Tribe when in fact that Tribe was not mentioned as a Scheduled Tribe under the relevant Scheduled Tribes Orders of that particular State.
Thus, the contention advanced on behalf of the returned candidate that he belongs to the Kharwar caste which is a Scheduled Caste merely on account of the fact that Kharwars are called as Kamkars in the region or that Kamkar is a sub-caste of Kharwar cannot be accepted. In the written statement filed by the returned candidate and from his oral evidence he has come out with a case that the caste certificate of Kharwar caste was issued to him treating Kamkar as a sub-caste of Kharwar on the basis of the recommendations made by the State Backward Commission. Any reliance upon the recommendations made by the State Backward Class Commission that Kamkar is a sub-caste of Kharwar is misconceived as it is the 1950 Scheduled Castes Order that alone has to be seen.
It is, therefore, not necessary to examine the last contention advanced on behalf of the returned candidate that documents filed with Election Petition No.2 of 2007 cannot be taken into consideration as these documents have not been examined for reaching the conclusions.
The returned candidate is a Kamkar which is not a Scheduled Caste as it is not mentioned in the 1950 Scheduled Castes Order. He was, therefore, statutorily disqualified from contesting the election from 178, Naurangia Uttar Pradesh Legislative Assembly constituency which was reserved for members of the Scheduled Castes. It needs to be mentioned that learned counsel for the petitioner in Election Petition No.2 of 2007 did not press the relief for declaring the petitioner elected.
Thus, for the reasons stated above, the election of Shambhu Chaudhary from 178, Naurangia Uttar Pradesh Legislative Assembly constituency is declared void. Election Petition No.2 of 2007 and Election Petition No.6 of 2007 are allowed to the extent indicated above.
There shall be no orders as to costs.
The Registrar General of this Court is directed to send a copy of this order to the Election Commission of India, New Delhi and also to the Speaker of the Uttar Pradesh Legislative Assembly in accordance with the provisions of Section 103 of the Act.
Date - 2.3.2009
GS
