Grover, J. - (1.) These are two cross appeals from a judgment of the Madhya Pradesh High Court. We shall give the 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 the People Act 1951, hereinafter called the 'Act' challenging the election of the appellant who was declared duly elected in February 1967 from the Bhander Asembly Constituency of the State of Madhya Pradesh a seat which was reserved for a scheduled caste candidate.
(2.) The last date for filing the nomination papers was January 20, 1967, the date of scrutiny was January 21, 1967. The poll took place on February 20, 1967. The result of the election was declared on February 21, 1967.The appellant obtained 24,549 votes whereas respondent No. 1 obtained 8096 votes. A number of allegations were raised in the election petition and as many as 12 issues were framed with a number of sub-issues. On all the issues the allegations of respondent No. 1 were negatived with the exception of issue No. 1. That issue was as follows. (1) (a) Whether respondent No. 1 Shri Kishroilal belongs to the Jatav caste as alleged by the petitioner. (b) Whether, therefore, respondent No. 1 does not belong to the scheduled caste and, therefore, does not possess the necessary qualifications of a scheduled 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 Bargavan 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 the 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.
(3.) The only question which now survives for consideration is whether 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 Secondha, district Datia 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 representing himself to be a Chamar he had stood as a candidate for the Bhander Assembly Constituency. Under the Constitution (Scheduled Castes) Order 1950 and the Scheduled Castes 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 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 Vindhya 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 Jatav caste as alleged in 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 Charmar 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 casts 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 him, whether Jatav as a separate case was recorded or not in the Datia 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 ultimately maintained that there was no difference between Jatav and Chamar castes and it was reiterated that Jatav was only a sub-caste of Chamar.;