LAXMAN SIDDAPPA NAIK Vs. KATTIMANI CHANDAPPA JAMPANNA
LAWS(SC)-1968-1-23
SUPREME COURT OF INDIA (FROM: KARNATAKA)
Decided on January 19,1968

LAXMAN SIDDAPPA NAIK Appellant
VERSUS
KATTIMANI CHANDAPPA JAMPANNA Respondents





Cited Judgements :-

SRISH CHANDRA VS. STATE OF TRIPURA [LAWS(GAU)-1985-3-1] [REFERRED TO]
POORANMASI DEHATI VS. SHAMBHU CHAUDHARY [LAWS(ALL)-2009-3-39] [REFERRED TO]
DUKKU LABUDU BARIKI VS. SOBHA HYMAVATHI DEVI [LAWS(APH)-2003-5-2] [REFERRED TO]
NIMMAKA JAYA RAJU VS. SATRUCHARLA VIJAYA RAMA RAJU [LAWS(APH)-2004-1-5] [REFERRED TO]
NIMMAKA JAYA RAJU VS. SATRUCHARLA VIJAYA RAMA RAJU [LAWS(APH)-2004-1-7] [REFERRED TO]
P ANJANAPPA VS. ASST COMMR and RETURNING OFFICER PAVAGADA [LAWS(KAR)-1973-2-17] [REFERRED TO]
BRAHMA DUTT VS. PARIPURNA NAND FAMILY [LAWS(ALL)-1972-2-17] [REFERRED TO]
MOHANDAS SHIVARAY SHIROOR VS. DISTRICT ELECTION OFFICER AND THE DEPUTYCOMMISSIONER UTTARA KANNADA DISTRICT KARWARAND [LAWS(KAR)-1996-7-17] [FOLLOWED ON]
K VISWANATHAN VS. GOVT OF TAMIL NADU [LAWS(MAD)-1984-7-6] [REFERRED TO]
SULOCHANA KANDI VS. DIPTIREKHA KANDI [LAWS(ORI)-2004-3-35] [REFERRED TO]
KASHINATH S O KODAMBARAO KATAKE VS. ADDITIONAL DISTRICT JUDGE PUSAD [LAWS(BOM)-1995-8-25] [REFERRED TO]
PUNJAB NATIONAL BANK NEW DELHI VS. SURENDRA NATH [LAWS(RAJ)-2000-9-72] [REFERRED TO]
BHADAR RAM VS. SANT RAM [LAWS(RAJ)-2002-3-8] [REFERRED TO]
BAJRANG LAL VS. KANHAIYA LAL [LAWS(RAJ)-2006-12-27] [REFERRED TO]
BHAIYA RAM MUNDA VS. ANIRUDH PATAR [LAWS(SC)-1970-8-49] [REFERRED TO]
S SHIVASHANKAR PRASAD VS. D A GOPALA [LAWS(KAR)-2012-8-145] [REFERRED TO]
A.LASER VS. V.ANBAZHAGAN [LAWS(MAD)-2013-1-83] [REFERRED TO]
VOL : 2; SUNNI CENTRAL BOARD OF WAQFS AND ORS VS. GOPAL SINGH VISHARAD AND ORS [LAWS(ALL)-2010-9-628] [REFERRED]
PUNAM PARIDA VS. SUKANTI SUBUDHI & OTHERS [LAWS(ORI)-2017-7-143] [REFERRED TO]
ASHA DEVI VS. SAROJ YADAV @ SAROJ KUMAR [LAWS(PAT)-2018-6-545] [REFERRED TO]


JUDGEMENT

HIDAYATULLAH, - (1.)THE following Judgment of the court was delivered by :-
(2.)THIS is an appeal under S. 116-A of the Representation of the People Act, 1951 against the judgment and order, 24/07/1967, 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 : JUDGEMENT_929_AIR(SC)_1968Html1.htm 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 knowledge. In answer to the petition the appellant asserted that he was a Nayaka although he stated that Nayakas are also 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 theBombay 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 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.

(3.)STARTING from this conclusion that the matter in controversy between the election petitioner and the appellant is a 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 relating to one Lakshmappa SiddappaNaik. 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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