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PETITIONER: LAXMAN SIDDAPPA NAIK

       Vs.

RESPONDENT: KATTIMANI CHANIAPPA JAMAPPANNA & ORS.

DATE OF JUDGMENT: 19/01/1968

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. SIKRI, S.M. HEGDE, K.S.

CITATION:  1968 AIR  929            1968 SCR  (2) 805  CITATOR INFO :  D          1971 SC2533  (34)

ACT: Constitution   (Scheduled  Tribes)  Order,   1950-Caste   of candidature-Burden of Proof.

HEADNOTE: An  unsuccessful  candidate  for  election  to.  the  Mysore Legislative:  Assembly for a scat reserved for a  member  of the  Scheduled  Tribes, filed an election  petition  on  the ground that the other three candidates belonged to the Bedar caste,  which is not a tribe specified in Part VIII, para  2 of  the  Constitution (Scheduled Tribes) Order,  1950.   The appellant-the  successful candidate asserted that he  was  a Nayaka  (which is mentioned at item No. 13 in Part VIII  (2) of the Order) and Nayakas are also called Bedars.  The  High Court  held that there was no Nayaka in this area  and  that the appellant was a Bedar.  Allowing the appeal, this Court, HELD : The Presidential Order showed that Naikdas or Nayakas are  to  be found -not only in the districts of  Mysore  but also  in Maharashtra and Rajasthan.  This  tribal  community was  therefore, quite widespread and it was not possible  to say  that there was no Nayaka in the district to  which  the appellant  belonged.  Even if he was the solidary Nayaka  he would  be  covered by the Presidential order  and  would  be entitled  to  stand  for the reserved seat  for  the  tribal communities mentioned in the Presidential Order.  He claimed to  be a Nayaka and this claim was upheld by  the  Returning Officer. [810 G] 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 lead by the election petitioner  the burden might have shifted to the candidate but as he ,led no evidence whatever he must obviously fail. [809 H; 810 A] The  election  petitioner  could  have  proved  by  positive evidence  that the appellant 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

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Nayaka.   Evidence  was  also  possible  to  show  that  the appellant  was  received in the Bedar community.   This  was capable   of   being  proved  by   showing   inter-marriage, interdining. 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 by the election petitioner 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  a Nayaka. [808 D-F] Abhoy Papa Saha v. Sudhir Kumar Mondal, [1966] Supp.  S.C.R. 387, B. Basvangappa v. D. Munichinnappa & Ors.  A.I.R.  1965 S.(,.  1269 and Bhaiya Lal v. Harikishan Singh & ors  A.I.R. 1965 S.(’. 1957, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1303 of 1967. Appeal under s. 116-A of the Representation of People Act 1951 from the judgment and order dated July 24, 1967 of the 806 Mysore High Court, Bangalore in Election petition No. .10 of 1967. S.   S. Javali and M. Veerappa, for the appellant. R.   Gopalakrishnan, for respondent no. 1. The Judgment of the Court was delivered by Hidayatullah,  J.  This is an appeal under S. 116-A  of  the Representation of the People Act, 1951 against the  judgment and  order, July 24, 1967, of the High Court of  ,Mysore  in Election  Petition No. 10 of 1967 . The High Court  has  set aside  the  election  of Laxman Siddappa Naik,  who  is  the appellant  before  us. The appellant had  stood  from  Gokak constituency  of the Mysore Legislative Assembly for a  seat reserved  for a member of the Scheduled Tribes specified  in Part  VIII  para 2 of the  Constitution  (Scheduled  Tribes) Order, 1950.  Five others had filed nomination papers.   The nomination  paper of one Kaushalya Devi was rejected by  the Returning   Officer  and  one  Bhimgouda  Mallagouda   Patil withdrew  from the contest within the time permitted by  the Act.   There  were  thus four  contesting  candidates.   The result of the poll was   as follows :- 1. Shri   Laxman Siddappa Naik           17522 2. Shri   Parasappa Hanmantha Karaing7044 3. Shri   Patel Shivangowd Malgowd       5996 4. Shri   Kattimani Chandappa Jampanna620 The  election petition was filed by the last  candidate  who had  received  only 620 votes.  The main contention  and  on which his election  petition in the High Court succeeded was that the appellant and the other two were not members of the Scheduled Tribes and were not thus entitled to stand for the reserved  seat.   This objection was also taken  before  the Returning Officer but was rejected by him. The  case of the election petitioner was that the  appellant did  not  belong  to the tribe  shown  as  Nayaka  including Cholivala  Nayaka,  Kapadia  Nayaka, Mota  Nayaka  and  Nana Nayaka,  mentioned at No. 13 in Part VIII (2) of the  Order. He  was,  on the other hand, a "Bedar" which  tribe  is  not mentioned in the Order.  The election petitioner also  urged that  the  other two candidates also did not belong  to  any Scheduled  Tribes but to the "Bedar" caste.  He,  therefore, asked  that he himself should be declared  elected  treating the  votes cast in favour of his opponents as "thrown  away" since  the  voters  knew  this  fact  and  voted  with  this

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knowledge.  In answer to the petition the appellant asserted that  he  was a Nayaka although he stated that  Nayakas  are also 807 called  "Bedars".   The High Court on an  appraisal  of  the evidence  and after looking into census reports and  certain writers on the subject of Castes and Tribes has come to  the conclusion that there is no Nayaka in this area and that the appellant is a Bedar.  The appellant now appeals against the order of the High Court. Under  Art. 332 of the Constitution seats are  reserved  for scheduled Tribes in the Legislative Assemblies of the States and  under Art. 342 of the Constitution the President  has,- with  respect  to the States, after  consultation  with  the Governors,  by  public  notification  specified  the  tribal communities  which are deemed to be the Scheduled Tribes  in relation to a particular State.  Parliament has power by law to  include in or exclude from the list of Scheduled  Tribes specified  in  the  President’s order any  tribe  or  tribal community  or part of or group within any tribe  -or  tribal community.  The Presidential Order was modified in 1956  and 1960.  The District in which Gokak is situated was  formerly part  of  the  Bombay State. 24 tribes  were  named  in  the original   Presidential  Order.   In  1956  this  part   was incorporated  in  the State of Mysore.  In 1960  the  Bombay State was bifurcated into two.  As a result the Presidential order was suitably amended.  Para 2 of Part VIII now  refers to the area formerly in Bombay -State which now is a part of the Mysore State.  This part now shows 19 tribes instead  of 24.   An identical list of tribes is also shown  in  certain districts of Maharashtra and Rajasthan.  Formerly the, entry read  only  "Naikda or Nayaka" but now it reads  "Naikda  or Nayaka,  including  Cholivala Nayaka, Kapadia  Nayaka,  Mota Nayaka  and  Nana  Nayaka".   The  "Nayaka"  also  means   a chieftain  and the word "Naikda" means a petty  Nayaka,  but that  obviously  is not intended to be its  meaning.   These words  definitely  refer  to tribal  communities  which  the President’s Order shows are   autochthonous      in      the respective areas.  The appellant claimed to be a Nayaka.  In his  evidence  he denied that he was a Naikda.  He  did  not know the other tribal communities included in ,he expression "Naikda  or  Nayaka" by the entry.  In Abhoy  Pada  Saha  v. Sudhir  Kumar  Mondal(1) the question had  arisen  what  was meant by the entry "Sunri excluding Saha".  The plea of the election petitioner in that case was that the candidate  was a  Saba.   He  failed to prove it and it was  held  that  he belonged to the Sunri caste.  It was pointed out that  where the entry excluded a certain sub-caste the candidate must be taken to belong to the original caste if his exclusion as  a member  of that sub-caste was not proved.  In  other  words, the matter was treated as a question of fact.  Similarly, in B.  Basavalingappa  v. D. Munichinnappa and others  (2)  the Voddar   caste   of   Mysore   State,   before   the   State Reorganization in 1956 was held, on evidence, to be the same as (1) [1966] Supp.  S.C.R. 387. (2) A.I.R. 1965 S.C. 1269. 808 the  Bhovi  caste mentioned in the  Constitution  (Scheduled Castes)  Order,  1950.  Again the matter was  treated  as  a question of fact.  This Court has finally decided in  Bhaiya Lal  v.  Harikishan Singh and others(1) that  what  caste  a candidate belongs to is a question of fact. Starting from this conclusion that the matter in controversy between  the  election  petitioner and the  appellant  is  a

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question  of fact we have to address ourselves to the  right questions  in  this  case.  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 no,. 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  intermarriage, 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 a Nayaka. We  shall  now  see  what the  election  petitioner  did  to establish  that the appellant was a Bedar which  would  have proved conclusively that he was not a Nayaka.  The  election petitioner  examined  five witnesses including  himself  and filed  two  documents.  The first document (Ex.P.-I)  was  a certified  extract of Births and Deaths Register of  Arbhani village issued by the Tehsildar Gokak regarding the birth of a  child Anasuya by name.  It was alleged that  Anasuya  was the daughter of the appellant and the caste was described as Bedar.   The  appellant  denied  that  it  related  to   his daughter.   He  said that he had only one daughter  by  name Shankuntala and that the certificate produced was not of his ’daughter.   No  evidence  was led  to  establish  that  the certificate  related to the daughter of the appellant.   The other  document  (Ex.   P-2) was a certified  extract  of  a school leaving certificate (1)  A.I.R. 1965 S.C. 1557. 809 relating  to  one Lakshmappa Siddappa Naik.   The  appellant denied that it was his school leaving certificate.  Again no attempt  was made to connect the certificate with him.   The original  of  Ex.   P-2 was not  summoned  from  the  school office.   ’These facts were capable of being proved.   There was  not  even  cross-examination  of  the  appellant   with reference to these documents.  The High Court rejected  both the  documents.   As  regards  the  oral  evidence  it   is, sufficient to say that it did not exist.  The four witnesses summoned  by  the  election  petitioner  only  proved   that Cholivadi,  Lamani and Kurubar were also called  Nayaka  and that  the Bedars had sub-castes known as  Talawars,  Valmiki and  Nayaka  Makkalu.   None of  these  witnesses,  however, displayed any knowledge of the Gokak area or the position of the Bedars and Nayakas in that area.  In fact, they  clearly stated  that  they  knew nothing  about  it.   The  election petitioner  as  witness stated that he had  heard  that  the appellant  was a Bedar and he did not examine any person  in support  of  his  statement.   His  evidence  was  obviously hearsay  and when he was questioned he could not  even  name the person from whom he had learnt these facts.

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The  evidence on the part of the appellant was also  nothing on  both the points.  He filed a document Ex.  R- 1 said  to be  a  certified copy of the extract relating to  his  birth from the Births and Deaths Register issued by the Tehsildar, Gokak.   The High Court summoned the original which we  have also seen.  There is a correction in the appropriate column. Some  writing  appears to have been erased where  Nayaka  is mentioned and it is possible to read the first letter, which is "w" (equal to B) and this shows that the original writing was  perhaps  Bedar.   There is nothing  to  show  when  the correction  was made.  In the Register there are 58  entries and  many  of them relate to Bedars but there  is  no  other entry   of  a  Nayaka.   No  doubt  this  is  a   suspicious circumstance but the question still is : does the  appellant suffer  ?  In a case of this type 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. Mr.  Gopal Krishnan argues that as an objection  was  raised before  the  Returning  Officer  and  was  repelled  on  the acceptance of R-1, now found unacceptable, the appellant  is relegated  to  the original burden.  Here again  this  is  a wrong  approach to the question.  The Returning Officer  was entitled  to act on the evidence before him.   The  original was  not  seen by him and the doubt, now  created,  was  not present in his mind.  Once the nomination paper was accepted the  burden must be assumed again by the  party  challenging the fact that a candidate belonged 810 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. The  High  Court  did not approach, this  problem  from  his angle.  As it could not reach any conclusion on the evidence before  it, the High Court turned to Census Reports  of  the Bombay  Presidency  of  1911,  1921  and  1931,  the  Bombay Karnatak  Gazetteer  of  1893, Hutton’s book  on  Castes  in Indian   (1931),  Mysore  Tribes  and  Castes  Vol.  II   by Nanjundayya  and lyer, Hindu Tribes and Castes, Vol.  II  by Sherring,  Castes and Tribes of Southern India by  Thurston, certain  Government Orders issued in 1959 and 1960  and  the Administration Report of the Welfare Department of  1956-57. These   documents  could  be  consulted  to  find  out   the distinguishing  customs and manners of different tribes  but not  to  reach  a  conclusion  about  the  appellant.    The conclusion  drawn  from this material was that Naikda  is  a distinct tribe, that Nayakas are not mentioned and that  the Bedars could not be called ’Naikda. Reverting to the plea of the appellant that he was, not a Naikda but a Nayka and that Nayakas were also known as Bedars, the learned Judge reached the conclusion that the appellant was a Bedar.  He found  no evidence  in  these Reports of the existence of  Nayakas  in this district and as the appellant claimed to be a Nayaka he felt that he must be a Bedar because there was no Nayaka  in this area. It has been pointed out in this Court, in the cases to which we  have  referred, that one must  accept  the  Presidential Order.  The Presidential Order shows that Naikdas or Nayakas are to be found not only in the districts of Mysore but also

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in  Maharashtra  and Rajasthan.  This tribal  community  is, therefore,  quite wide-spread and it is not possible to  say that  there  was  no Nayaka in the  district  to  which  the appellant  belonged.  Even if he was the solitary Nayaka  he would  be  covered by the Presidential Order- and  would  be entitled  to  stand  for the reserved seat  for  the  tribal communities mentioned in the Presidential Order.  He claimed to  be a Nayaka and this claim was upheld by  the  Returning Officer.   It is significant that he was not an  independent candidate  but one chosen by a party.  This party would  not have  been easily imposed upon and would have taken care  to select the right person for the seat.  There were two others who also came-forward as Nayakas.  In 811 these  circumstances,  the  learned Judge was  in  error  in attempting to establish that the tribal community  mentioned as  Nayakas was not to be found in this area and  that  only Naikdas were found and as the appellant did not claim to  be a  Naikda he must be held to be disentitled to be chosen  to fill  this seat for the tribal communities.  A heavy  burden obviously lay upon the election petitioner to. displace  his claim  by  evidence.   He  did not  even  lead  prima  facie evidence and therefore the claim cannot be said to have been negatived. An election is something which cannot be readily set  aside. There  must be proof and convincing 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 recognized  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. We  are accordingly satisfied that the  election  petitioner had  failed to establish his case and that the  election  of the  appellant  could  not be set aside.   The  appeal  will accordingly be allowed.  The order of the High Court will be set  aside.  The election petitioner must pay the  costs  of the appellant here and in the High Court. Y. P.                              Appeal allowed. 812