Mitter, J. - (1.) In the election petition out of which the present appeal arises the main question canvassed was, whether the nomination paper of respondent No. 8 (appellant No. 2 before this Court) was wrongly rejected. It is admitted that if the rejection was wrong, the election cannot stand.
(2.) The petitioner challenged the election to the Lambi Assembly Constituency (reserved seat) in the district of Ferozepore. There were eight candidates, the first respondent being the returned candidate. The petition was filed by one of the unsuccessful candidates impleading the other seven candidates, and Kishan Lal whose nomination paper was rejected. According to the petitioner, Kishan Lal was a Hindu and being a Chamar by caste he belonged to a scheduled caste within the meaning of paragraph 2 read with Part X of the Constitution (Scheduled Castes) Order 1950 issued under Article 341 of the Constitution:he had filed a declaration under Section 33 (2) of the Representation of the People Act, stating his caste to be Chamar covered by item 9 in Part X (Punjab) of the Schedule to the Order. The said item reads as follows:- "Chamar, Jatia Chamar, Reghar, Raigar, Ramdasi or Ravidasi." It was stated in the petition that the returning officer had at first accepted the nomination paper of Kishan Lal on 21st January 1967, but subsequently, on an objection having been raised by the first respondent on the ground that Kishan Lal was not a member of a Scheduled Caste, the proceedings were adjourned till the next day when after admitting evidence, the same was rejected on the plea that Kishan Lal was a mochi by caste. The petitioner's case was that Chamar and Mochi were not two separate castes and the word 'mochi' was applied to a chamar who actually started working in leather. On the pleadings the learned trial Judge framed four issues: 1. Is respondent No. 8 Kishan Lal a Hindu Chamar by caste which is a scheduled caste within the meaning of Part X of the Schedule to the Constitution (Scheduled Castes) Order, 1950 2. Was the nomination paper of respondent No. 8 Kishan Lal accepted by the Returning Officer and if so, whether the Returning Officer had the power of reviewing his order 3. Has the nomination paper of respondent No. 8 Kishan Lal been wrongly rejected If so, is the election of the returned candidate void 4. Is Chamar or Mochi one and the same caste and a scheduled caste within the meaning of Part X of the Schedule to the Constitution (Scheduled Castes) Order, 1950 The point canvassed before him with a good deal of force was that the returning officer had sought to review his own order passed on 21st January 1967 accepting the nomination paper and this, he was not competent to do. The learned Judge did not accept that a finalised order had been reviewed. An examination of the document tends to support the appellant's argument about the nomination paper having been accepted at first but rejected subsequently. The manner of recording the order is suggestive of the above. It appears that the Returning Officer at first wrote the word 'accepted' and gave the date as 21st January 1967 to the left of his signature:the endorsement rejecting the nomination paper is by way of a postscript abbreviated as "P. S." the last two lines curving over the signature. Unfortunately, however, for the petitioner, the returning officer, although he appeared in court to produce some documents, was not orally examined and we are therefore without his testimony on the subject. Kishan Lal who came to give evidence in this case in support of the petition stated in his examination-in-chief that: "At the time of the scrutiny of the nomination papers for elections in 1967 the Returning Officer at first announced orders on my nomination papers accepting the same. Then an objection was raised by respondent No. 1 Shiv Chand. Thereafter the Returning Officer adjourned the matter to the next date on which after examining evidence led by the parties he rejected the nomination papers." Prima facie this goes to support the case of the petitioner, but in cross-examination Kishan Lal stated: "At the time when the nomination papers were being scrutinised by the Returning Officer, an objection was raised when he was writing the order." This nullifies the effect of the statement in the examination-in-chief and suggests that this objection was raised before the order had been signed or announced. This is strengthened by the evidence of Shiv Chand R.W. 7. He said: "The Returning Officer had not announced that he had accepted the nomination papers of Kishan Lal but had written the word 'accepted'. Thin I know because I was sitting next to him." On this evidence, it is not possible to hold that the returning officer had announced his decision accepting the nomination paper, but had reviewed his own order afterwards on objection being raised and let in evidence on the next day and rejected the nomination paper.
(3.) Before the learned trial Judge, a good deal of evidence was adduced and arguments advanced as to whether the words 'chamar' and 'mochi' were synonymous and even if Kishan Lal was held to be a mochi, there was no reason to exclude him from the fold of the caste of chamars in which case his nomination paper was wrongly rejected. For this we have to refer to Article 34 of the Constitution under Clause 1 of which the President may, with respect to any State or Union Territory, and where it is a State, after consulting the Governor of the State, by public notification specify the castes, races or tribes or parts or groups within castes, races or tribes which shall for the purposes of the Constitution, be deemed to be Scheduled Castes in relation to that State or Union Territory as the case may be. This article empowered the President to specify not only the entire castes but tribes or parts or groups within castes, races or tribes which were to be treated as Scheduled Castes in relation to a particular caste. So far as chamars and mochis are concerned, it will be noted from a reference to the Constitution (Scheduled Castes) Order, 1950 that the President was not of opinion that they were to be considered to belong to the same caste in all the different States. For instance, in the States of Andhra Pradesh, Bihar, Gujarat, Kerala, Madhya Pradesh, Madras, Maharashtra, Mysore, Orissa, Rajasthan and West Bengal chamars and mochis were put on the same footing.;