Laxman Siddappa Naik Vs. Kattimani
Chaniappa Jamappanna & Ors  INSC 11 (19 January 1968)
19/01/1968 HIDAYATULLAH, M.
CITATION: 1968 AIR 929 1968 SCR (2) 805
CITATOR INFO :
D 1971 SC2533 (34)
Constitution (Scheduled Tribes) Order,
1950-Caste of candidature-Burden of Proof.
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 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,  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.
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
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
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 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
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) 
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 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.
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
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 Sharing, 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 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.