B. Seshasayana Reddy, J.
1. This election petition has been filed by Peedika Rajanna Dora, an unsuccessful candidate, challenging the election of Rajendra Prathap Bhanj Deo-1st respondent as a member of "10 Salur (ST) Legislative Assembly Constituency". A further declaration has been sought for to declare the election petitioner as duly elected to "10 Salur (ST) Legislative Assembly Constituency".
2. The victory of our long drawn struggle for freedom from the British yoke came to us after one and a half century of perpetual and constant efforts soaked in cold blood and dipped in supreme sacrifice. The historical midnight of August 15th, 1947, which ushered in a new era, was merely a completion of a phase and not the end of epoch but only the beginning of the end. Soon thereafter the wise wizards and the founding fathers of our Constitution set out to devote their wholehearted attention to devise ways and means to give to our subcontinent a solid and comprehensive Constitution, which may solve multifarious and manifold difficulties, fulfill the burning needs of the nation and sort out complex and complicated problems which arose after our hard-won freedom which must have baffled our leaders. There was the question of achieving a secular democracy, the largest in the world, based on a socialist pattern which would take care of all sorts and kinds of people having different cultures, languages and religions; to confer and guarantee fundamental rights of citizens through mandatory provisions, to lay down Directive Principles of State Policy which were to be the guiding spirit of the Constitution, the question of achieving agrarian reform by displacing the old British bureaucratic system and substituting a new order, the issue of reconciling the irreconcilable and various other thorny and tricky matters. One of the important objectives to be translated into action was to take special care of the Backward Classes and members of the Scheduled Castes and Tribes by bringing them to the fore through pragmatic reforms and providing adequate opportunities for their amelioration and development, education, employment and the like. As Mahatma Gandhi, father of the Nation, said "India lives in villages" and so do the Backward Classes, hence the primary task was to take constructive steps in order to boost up these classes by giving them adequate concessions, opportunities, facilities and representation in the services and, last but not the least, in the electorate so that their voices and views, grievances and needs in the Parliament, State Legislatures in the country may be heard, felt and fulfilled.
3. The Constitution makers to accord favoured treatment to the lower castes who were at the bottom of the scale of social values and who were afflicted by social and economic disabilities provided that the President may specify the castes and these would obviously be the lower castes which had suffered centuries of oppression and exploitation, as it was believed, that the higher castes would not properly represent the interest of these lower castes. Under Article 332 of the Constitution, seats are reserved for Scheduled Tribes in the Legislative Assemblies of the States. Under Article 342 of the Constitution the President after consultation with the Governors of the respective States gives public notification specifying the tribal communities, which are deemed to be the Scheduled tribes in relation to the respective States. Parliament has power by law to include or exclude any tribe or tribal community or part of or group within any Tribe or tribal community from the list of Scheduled Tribes specified in the President's Order.
4. The object of Articles 341, 342, 15(4), 16(4) and 16(4A) is to provide preferential treatment for the Scheduled Castes and Scheduled Tribes having regard to the economic and educational backwardness and other disabilities wherefrom they suffer. So also considering the typical characteristic of the tribal including a common name, a contiguous territory, relatively uniform culture, simplistic way of life and a tradition of common descent, the transplantation of the outsiders as members of the tribe or community may dilute their way of life apart from such persons do not suffer any disabilities. Therefore, the condition precedent for a person to be brought within the purview of the Constitution (Scheduled Tribes) Order, 1950, one must belong to a tribe and suffer disabilities wherefrom they belong.
5. 10 Salur (ST) Legislative Assembly Constituency" (for short Constituency) is reserved for Scheduled Tribe. Election to the constituency was held on 20-4-2004. The election petitioner was the official candidate of Indian National Congress Party and whereas the Respondent No. 1 was the official candidate of Telugu Desam Party. The election petitioner submitted objections to the nomination of Rl before the Returning Officer-2nd respondent. The principal objection raised by the election petitioner before the 2nd respondent was with regard to social status of Rl. He filed several documents including a copy of the judgment-dated 2-11-2001 passed in W.P. No. 5355 of 2001 dated 2-11-2001 (A.P. Scheduled Tribe Employees Association and Ors. v. Aditya Pratap Bhanj Deo 2001 (6) ALT 433), wherein it has been held that the brother of 1st respondent does not belong to any Scheduled Tribe community and that he belongs to Kshatnya Caste. 2nd respondent rejected the objections and validated the nomination of 1st respondent by his order-dated 2-4-2004. Results were declared on 11-5-2004 declaring 1st respondent as duly elected to "10 Salur (ST) Legislative Assembly Constituency". The election petitioner challenged the election of 1st respondent on the ground that he does not belong to Scheduled Tribe and instead he belongs to Kshatriya caste and thus ineligible to contest from the constituency which is reserved for Scheduled Tribe. To put aptly the challenge made by the petitioner to election of 1st respondent, Para 7 of the petition needs to be noted and it is thus:
7. Therefore, the Respondent No. 1 under any circumstances is not qualified to contest in the election of "10 Salur (ST) Legislative Assembly Constituency", which is reserved for Scheduled Tribe Community. Article 342 of the Constitution of India describes who is a Scheduled Tribe. The list of Scheduled Tribes is issued by the President of India by way of a public notification. In the elections held to the A.P. Legislative Assembly in 2004, the candidates, who are contesting in a constituency reserved either for Scheduled Caste or Scheduled Tribe, must establish that on the date of filing of the nominations, they must belong to either Scheduled Caste or Scheduled Tribe community, as the case may be. On the date of the nomination for the Legislative Assembly elections held in the year 2004, there is no proof filed by Respondent No. 1 that he belongs to 'Konda Dora' tribe, which is listed as Scheduled Tribe in the State of Andhra Pradesh. He was only relying upon certain orders, which cannot be termed as certificates of social status. In the absence of any certificate to that affect, the nomination filed by Respondent No. 1 ought not to have been accepted by the Respondent No. 2 It is respectfully stated that the caste of any individual is a mater of fact, which cannot be conferred on circumstances or drawn by inferences.
6. 1st respondent resisted the election petition through his written statement with the following averments, in brief:
The social status of the 1st respondent cannot be adjudicated in the election petition as a statutory forum is provided under Andhra Pradesh (Scheduled Caste, Scheduled Tribe and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 and the Rules made thereunder, 1st respondent belongs to Kondadora Tribe, which is included in the list of Scheduled Tribe as declared by the President of India under the Scheduled Tribes Order, 1976. The word KSHATRIYA has not been mentioned to denote the caste but it is a title of position of Mokhasadar or Zamindar of their kith and kin. The pallis (fisherman community), Vanyas (original forest dwellers) of erstwhile Vizianagaram District and Godavari District, the Shahans of erstwhile Vizagpatnam District and Godavari District, the Shahans of erstwhile Trinanvelley District, some Maharatis in erstwhile South Canara District, the Kammas and the Balijas of erstwhile Madras Presidency have also retained the name of title "KSHATRIYA", Kamma, Kapu, Reddy, Telaga and Velama. Some of these community persons were earlier zamindars and the descendants of those zamindars have been known as KSHYATRIYAS or RAJUS, which denote their position in the society but not their caste status. The erstwhile Zamindars and Mokhasadars families and their relations of erstwhile composite Vizagpatnam District, who belong to tribal communities, (after promulgation of the Constitution of India, who are declared as belonging to STs by Presidential Orders) because of their erstwhile family position as Zamindars or Zagirdars used to call themselves and used to be called by others as KSHYATRIYAS, RAJUS, KONDARAJUS which denote their family position but not their community or caste status. The 1st respondent family being a Mokhasadar family and being related to some of the erstwhile tribal Zamindari families of Vizagpatnam is also being called as KSHATRIYAS even though by their caste or community status being Kondadoras. 1st respondent contested from "10 Salur (ST) Legislative Assembly Constituency" in 1999 and won the election. When a show-cause notice was issued by the Revenue Divisional Officer to 1st respondent as to why his application for issuance of community certificate cannot be rejected, he filed W.P. No. 17956 of 1999 questioning the said show-cause notice. The community certificate dated 7-10-1994 was issued to him by the competent authority stating that he belongs to Kondadora Community. The said certificate is valid and in force till today and deemed to have been valid under the provisions of A.P. (SCs, STs and BCs) Regulation of Issue of Community Certificates, Act, 1993 and the Rules made thereunder. Initially the community certificate was issued to 1st respondent on 10-7-1979 by the then Tahsildar of Salur vide letter Dis.No. 2228/79. Subsequently, the Mandal Revenue Officer, Salur issued community certificate on 7-9-1994 and both the certificates were in force as on the date of nomination. 1st respondent is not a party to the judgment referred to in W.P. No. 5355 of 2001 dated 2-11-2001 and therefore any finding recorded therein does not bind him. Para 11 of the written statement needs to be noted and it is thus:
11. In reply to the averments in Para No. 5 of the election petition I submit that the petitioner did not disclose the source of information alleged to have gathered by him. My family consists of myself, my wife and my two children. My family did not hail from Ganjam District. My family do not belong to Kshatriya community and my family is not described as Oriya Kshatriya. Hence, the allegation that "the family of the Respondent No. 1 belongs to Kshatriya community which sometimes described as Oriya Kshatriya" is false and hence hereby denied. The alleged documentary evidence do not establish that my family does not belong to Scheduled Tribe community. My family did not from the beginning claim its caste as Kshatriya. My married took place on 6-6-1985 and my family came into existence on 6-6-1985, Therefore, in the documents referred to by the petitioner my family never claimed its caste as Kshatriya. The Document No. 445/1903 is only a lease deed and it is between two private parties namely the lessor and the lessee in respect of an immovable property. The social status of the parties to the said document were not the issue and such description has no bearing on the actual status of my grandfather or myself, the authenticated publication was well as other public records show that neither the above lessor nor lessee belong to "Kshatriya" community. Neither my grandfather nor my father nor myself belong to the alleged Kshatriya community. Neither my grandfather nor my father nor myself were accepted as Kshatriya by the society at large or by the alleged Kshatriya community people. The mere description of a person in a private document do not alter the social status of that person or do not confer the social status. If this is permitted it will lead to a confused situation. By mere description in a sale deed by a person belongs to other caste describes himself as a Scheduled Tribe or Scheduled Caste as the case may be, he cannot become a member of the Scheduled Tribe or Scheduled Caste community. Therefore, it is not the claim in the documents that makes the person that he belongs to a particular community. May be my grandfather or father at one stage tried to claim an elevated position in the society but such effort never proved fruitful and my grandfather, my grandmother, my father and myself remained to be members of the Konda Dhora community only. The very fact mentioned by the petitioner that in certain documents my grandfather or father are described themselves as Kshatriya and in some other documents they claimed as Oriya Kshatriya itself show the futile attempt for higher status. It is a fact that there is no caste of Oriya Kshatriya. Therefore, the description by my grandfather, my grandmother or my father or their children as Oriya Kshatriya cannot be countenanced inasmuch as in the absence of a caste or Oriya Kshatriya, existing in the area it is to be inferred that such description has no legal sanctity. The election petitioner in one breath alleges that I belong to Kshatriya and in another breathe he says that I belong to Oriya Kshatriya. Therefore, the election petitioner is not sure of himself regarding his stand in respect of my social status. But the fact remains that I belong to Kond Dhora community only.
7. The election petitioner filed rejoinder asserting that Caste Certificate came to be issued to 1st respondent in the year 1994 based on the social status of his brother alone and since the findings in W.P. No. 5355 of 2001 dated 2-11-2001 relate to the social status of his brother, the same are very much relevant.
8. The following issues have been settled for trial:
(1) Whether the acceptance of nomination of the first respondent by the Returning Officer, the second respondent, is contrary to any provision of law?
(2) Whether the first respondent belongs to Konda Dora Tribe, which is included in the list of Scheduled Tribes in the State of Andhra Pradesh?
(3) Whether the Social Status of the first respondent can be decided in an Election Petition, when the matter is extensively covered by the provisions of the A.P. (SC, ST and BCs) Regulation of issue of Community Certificate Act, 1993 and the procedure prescribed thereunder?
9. On behalf of the election petitioner, he got himself examined as P.W.I besides examining Balaga Venkataramana as P.W.2, Guthavalli Vijaya Kumar as P.W.3, P. Purushotham as P.W.4, L.D. Melengton as P.W.5, B. Simhachalam as P.W.6, V. Appalaswamy Naidu as P.W.7, Taddi Appalaswamy as P.W.8, Janni Amrutham as P.W.9, Janni Latchanna as P.W.10 and B. Tirupathi as P.W.11 and marked Exs.A1 to A23 and C\ to C4. On behalf of 1st respondent, he got himself examined as RW.l besides examining Andra Hariharagara Pratapa Raju as RW.2, S.R.T.P. Durga Prasad Vishwanadha Mallaparaju as RW.3, V.T, Satyaprasadthotraj as RW.4, Buddarajuramachandra Raju @ Ayodhya Raju as RW.5, Dippala Mahesh Dora as RW.6, Pedabaliyara Simhuni Laxminarasimha Murthy Raju as RW.7 and marked Exs.R1 to R29.
10. Before dwelling on the rival contentions of the parties, a brief resume of the witnesses as well as description of the documents marked on either side is required to be mentioned. P.W.1 is the election petitioner. P.W.2 is the Sub-Registrar at Salur. He has been examined to speak about the authenticity of Exs.A4 to A7. P.W.3 is the Mandal Revenue Officer, Salur. He speaks of the issuance of Ex.R1 and C4 Caste Certificates and the basis on which they came to be issued. P.W.4 is the Commissioner of Salur Municipality. He speaks of Ex.A12 certified copy of the birth extract of the father of RW.l. P.W.5 is in charge Head Master of Municipal Upper Primary School, Pedakomatipeta, Salur. He has been examined to prove Exs.A8, A9 and A10 study certificates of RW.l, his sister and brother. P.W.6 is in charge Head Master of Government High School, Salur. He has been examined to speak of Entry Nos. 3800, 4883, 5210, 4425 and 537 in the School Admission Registers. P.W.7 is Principal of A.M.A.L. College and he has been examined to prove Ex.A13 study certificate of 1st respondent (RW.l). P.Ws.8 to 10 belong to Kondadora community and they have been examined to prove that they never treated 1st respondent as a person of their tribe and instead 1st respondent belongs to Kshatriya caste.
P.W.11 is the Head Master of Government High School, Salur. He speaks of the entries in the Admission Register for the year 1968 to 1981 and 1981 to 1984 (Exs.A20 and 21) in respect of Sambamurthy Laxminarasimha Murthy Raju (RW.7) and Sambamurthy Satyanarayana Surya Balarama Raju. Ex.A1 is the copy of the objection petition presented by the election petitioner before 2nd respondent on 2^-2004 for nomination of 1st respondent. Ex.A2 is the copy of proceedings of Returning Officer whereunder the objection raised by the election petitioner came to be rejected. Ex.A3 is the certified copy of the lease deed dated 22-7-1903 executed in favour of Brijasundara Bhanj Deo (grandfather of 1st respondent). Ex.A4 is the certified copy of lease deed dated 8-6-1933 executed by Brijasundara Bhanj Deo in favour of Nine Chamayya. Ex.A5 is the certified copy of sale deed dated 25-8-1943 executed by Suryamani Jana Devamma (paternal grandmother of R1), W/o Late Brijasundara Bhanj Deo in favour of Chitluvenugopalam, S/o Appanna Mokasdas Telagas. Ex.A6 is the certified copy of registered sale deed dated 1-11-1950 executed by Aleknarayana Purushottam, the father of 1st respondent, in favour of Chanddakaramaswami. Ex.A7 is the certified copy of permanent lease dated 5-11-1958 executed by father of 1st respondent in favour of Nine Samayya. Ex.A8 is the study certificate of Gita Srijamma Bhanj Deo (sister of Rl). Ex.A9 is the study certificate of 1st respondent. Ex.A10 is the study certificate of Jitendra Pratap Bhanj Deo (younger brother of R1). Ex.A.11 is the return of election in Form 21 issued by the Returning Officer declaring 1st respondent has been duly elected to "10 Salur (ST) Legislative Assembly Constituency". Ex.A12 is the birth certificate of male child of Brijasundara Bhanj Deo. Ex.A13 is the study certificate of 1st respondent issued by the Principal of A.M.I.L. College, Anakapally. Ex. A14 is the copy of application submitted by the election petitioner (P.W.I) to the Principal, A.M.A. Lingamurthy College, Anakapally seeking certified copy of extract of Admission Register of 1973-74 relating to Rajendra Prathap Bhanj Deo (RW.l). Ex.A14(a) is the copy of the show-cause notice by the RDO, Parvathipuram to 1st respondent. Ex.A15 is the copy of the objection petition filed by T.N. Sanjayasi Raju before the Returning Officer on 31-10-1989. Ex.A16 is the Photostat copy of the order passed by the Returning Officer on 31-10-1989 whereunder and whereby objections of L.N. Sanjayasi Raju came to be rejected while accepting the nomination papers of 1st respondent. Ex.A17 is Photostat copy of the proceedings of Assistant Returning Officer dated 1-10-1999 whereby and where under objections made by R. Maheswar Rao and Smt. Sandhya Rani came to be rejected while accepting the nomination of 1st respondent. Ex.A18 is photostat copy of the Caste Certificate issued to 1st respondent on 9-8-1989. Ex.A19 is Photostat copy of the Caste Certificate of 1st respondent issued by MRO on 7-10-1994. Exs.A20 and A.21 are Admission Registers of Government High School, Salur for the years 1968-1981 and 1981-84 respectively. Exs.A22 and A23 are the relevant entries in respect of Sambamurthy Laxminarasimha Murthy Raju and Sambamurthy Satyanarayana Surya Balarama Raju respectively. Ex.Cl is the original statement recorded of the Village Officers on 3-7-1979. Ex.C2 is the certified copy of the Document No. 157, dated 18-2-1913 in favour of Brijasundara Bhanj Deo (grandfather of Rl) by Appalaswami. Ex.C3 is the copy of the calendar and judgment in C.C. No. 110/1915. Ex.C4 is the Caste Certificate of 1st respondent dated 9-8-1989 issued by the MRO.
11. RW.l is Rl. RW2 claims to be of Chinna Kondadora Tribe. He traces his relationship with the family of RW.l through Haripriya Devi who was the maternal aunt of his grandfather and who was given in marriage to Dhanunjaya Thot Raj, an ancestor of RW.l. RW.3 claims to be a Mookadora Tribe. He speaks of Aditya Pratap Bhanj Deo, who is the brother of 1st respondent, marrying the daughter of the brother of his brother-in-law. RW-4 claims to be a Kondadora. He testifies that RW-1 Rajenderpratap Banj Deo is his relative. PW-5 claims to be a Kshetriya and he speaks of his not having any relationship with RW-1 Rajenderpratap Bhanj Deo. RW-6 claims to be a Mookadora Tribe. He testifies that Dippala Suri Dora was his paternal grandfather. He does not speak anything with regard to the caste/tribe of RW-1. RW-7 claims to be a Kondadora Tribe. He testifies that sister of RW-1 has been given in marriage to the son of Pakir Raju.
12. Ex.R-1 is the Caste Certificate-dated 10-7-1979 issued by Tahsildar, Salur, to the effect that Respondent No. 1-RW.l belongs to Kondadora caste which comes under Scheduled Tribe. Ex.R-2 is the Pass Book issued in the name of the father of RW-1. Ex.R-3 is the photograph of structures of temple and Ex.R4 is the negative of Ex.R3. Ex.R-5 is the Pass Book issued by Mandal Revenue Officer in favour of RW-1. Ex.R-6 is the certified copy of the judgment in C.C. No. 100 of 1915. Ex.R-7 is the photograph of Pandava cave. Ex.R-8 is the corresponding negative of Ex.R-7. Ex.R-9 is the photograph of Talupulammaloya deity. Ex.R.10 is the corresponding negative of Ex.R-9. Ex.R-11 is the Caste Certificate of RW-2 Andra Harihara Gara Pratapa Raju. Ex.R-12 is the Caste Certificate of KW-3-S.R.T.P. Durga Prasad Vishwanadha Mallaparaju. Ex.R-13 is the Sunndud. Ex.R-14 is the certified extract regarding amount due to the Government from the notified estate Belgam. Ex.R-15 is the certified copy of calculation sheet of the advance compensation for Zamindari estates. Ex.R-16 is the community certificate of RW-4-V.T. Satyaprasad Thotraj @ V.T. Thotraj. Ex.R-17 is the photograph of Bodadevatha and Ex.R-18 is the corresponding negative of Ex.R-17. Ex.R-19 is the Caste Certificate of RW-6-Dippala Mahesh Dora issued by M.R.O., Salur. Ex.R-20 is the Caste Certificate of RW-7-Pedabaliyara Simhuni Laxminarasimha Murthy Raju. Ex.R-21 is the wedding invitation received by RW-7 in connection with the marriage of Arundati with Vijay Kumar. Ex.R-22 is the photograph of Bodadevatha deity and Ex.R-23 is the corresponding negative. Ex.R-24 is the photograph of the temple Boddadevatha deity and Ex.R-25 is the corresponding negative of R-24. Ex.R-26 is the photograph of Paramma deity and Ex.R-27 is the corresponding negative of Ex.R-26. Ex.R-28 is the photograph of Muthyalamma deity and Ex.R-29 is the corresponding negative of Ex.R-28.
13. Sri Bojja Tarakam, learned Senior Counsel appearing for the petitioner submits that the documentary evidence placed by the petitioner indicates that the members of the 1st respondent family since time immemorial have been described as Kshatriyas and that the plea of the 1st respondent that they were described as Kshatriyas, but they belong to Konda Dora. Therefore, their action giving two caste names, one for social status and other for benefits to be extended by the Government for individual is impermissible. He further submits that except Caste Certificate issued by the Mandal Revenue Officer, there is no other record to show that the 1st respondent belongs to Kondadora Tribe. He further submits that witnesses examined on behalf of the 1st respondent are the same set of witnesses examined in the case of Satrucharla Vijaya Rama Raju and their evidence came to be rejected by the Election Tribunal in that case and subsequently, the findings recorded by the Election Tribunal in that case came to be upheld by the Supreme Court in Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju, Civil Appeal No. 1102 of 2004, dated 27-10-2005, 2005 AIR SCW 6197. He would further submit that neither the 1st respondent nor their predecessors were accepted by the Kondadoras as the persons of their community and therefore, the 1st respondent cannot claim that he belongs to Kondadora, a Scheduled Tribe. In support of his submissions, reliance has been placed on the following decisions:
Hymavathi Devi v. Setti Gangadhara Swamy , Punit
Rai v. Dinesh Chaudhary , State of Maharashtra v.
Milind AIR 2001 SC 393, Andhra Pradesh Scheduled Tribes Employees Association v. Aditya Pratap Bhanj Dev (supra), Pankaj Kumar Saha v. Sub-Divisional Officer, Islampur , Director of
Tribal Welfare, Government of A.P. v. Laveti Giri , Kumari Madhuri Patil v. Addl. Commissioner, Tribal Development , Kumari Madhuri Patil v. Additional Commissioner,
Tribal Development, 1994 AIR SCW 4116, R. Palanimuthu v. The Returning Officer , NT. Veluswami Thevar v. Raja
Nainar , Daya Nand Sahay v. Shibu Soren
14. Shri J.V. Suryanarayana, learned Senior Counsel appearing for the 1st respondent submits that Caste Certificate came to be issued by the Mandal Revenue Officer after due enquiry and the said certificate has not been set aside by any authorities under the provisions of Scheduled Caste and Scheduled Tribe Amendment Act, 1976 and therefore, Returning Officer is perfectly justified in accepting the Caste Certificate placed on record by the 1st respondent. He would further contend that RW.2, RW.3, RW.4, RW.5 and RW.7 who belong to Scheduled Tribe stated that they have accepted the 1st respondent as the member of their tribe i.e., Konda dora and thus the 1st respondent cannot be categorized as a person of Kshetriya caste. The learned Senior Counsel made a serious attempt to contend that the entries in the Admission Registers cannot be given undue importance since the maker of the entries therein are not examined. In support of his submissions, reliance has been placed on the following decisions:
Om Prakash Berlia v. Unit Trust of India , CM. Shah v. S.S. Malapthak , Jeet Mohinder Singh v.
Harminder Singh Jassi , Mahant Ram Prakash Dass v.
Ramesh Chandra , Kailash Sonkar v. Smt. Maya Devi
, Dippala Suri Dora v. V.V. Giri AIR 1958 AP 724,
Principal, Guntur v. Y. Mohan Rao , Laxman Siddappa Naik v. Kattimani Chaniappa Jamappanna 1968 (2) SCR 806, Government of A.P. v. J. Sridevi , N.E. Horn v. Smt. Jahan Ara Jaipal Singh , Bidhan Chandra Biswas v. The State
of West Bengal .
15. In Jeet Mohinder Singh's case (supra), the Supreme Court held that the Court should not lightly interfere with election of the returned candidate, rather it should have regard to the serious consequences of such interference. In Kailash Sonkar's (supra) case, the issue that fell for consideration before the Supreme Court was with regard to status of a lady born of converted Christian parents reconverted to Hinduism and married a Scheduled Caste person. The cited case is wholly inapplicable to the facts of the case on hand since Rl never claimed the status of Scheduled Tribe on re-conversion. In Dippala Suri Dora's (supra) case, a Division Bench of this Court held that the mere performance of ceremony which is performed by the twice born class would not elevate a Sudra of the fourth class with the status of a twice bom class. Paras 34 and 35 of the judgment need to be noted and they are as follows:
34. On behalf of the respondent, it is contended that admittedly P.Ws.8 and 17 are Kshatriyas and they not only admit the appellant to be belonging to their fold, but mention various customs common to them. Relying on the Madras District Gazetteer, Vizagpatnam, Vol.1, P.95, the Imperial Gazetteer of India, Vol.1, Caste and Tribes of Southern India by E. Thuraton, Mayne's Hindu Law, 11th Edition, Para 64 and the case of Chaturbhuj Vithaldas v. Moreshwar Parashram , it is contended that it is not correct to say
that caste is the result of the birth and not of choice or volition, and a member of a Scheduled Tribe or a Scheduled Caste can by adopting the manner and customs rise in status of the twice-born class.
Adverting to the argument relating to the President's Order and the earlier decision in the election petition, it is contended that the President's Order is based on the declaration of the appellant himself and the respondent not being, a party to earlier Election Petition.7/55 the President's Order and the earlier decision will have no effect.
35. It is universally acknowledged that caste is the result of birth and not of choice or volition. The mere performance of a ceremony which is performed by the twice bom class would not elevate a Sudhra or the fourth class with the status of a twice born class, but it may be said that as times are changing and there is very little importance to caste or creed and there is a tendency to inter mix or intermarry this thing may disappear.
We do not deny that it is possible that a member of a Scheduled Tribe may in course of time adopt certain customs and practices in vogue among the Hindus, but in order to bring them within the fold of Hinduism it would take generations. Even if they come within the fold of Hinduism, question would arise whether they have formed separate set among themselves, or they would belong to the 4th class, or to the twice born class.
This will again depend on circumstances and different considerations. That apart the mere performance of the ceremonies or adopting the ceremonies would not be enough to remove them from the fold of the original tribe unless, as has been observed by their Lordships of the Supreme Court in earlier cited judgment, reactions of the old body, the intentions of the individual himself and the rules of the new order are shown.
It is not disputed that originally the appellant belonged to Mooka Dora Tribe. In order to prove that he ceased to be a member of that tribe, there should be first of all, evidence of intention, the reactions of the old body and that of the new body. Viewed in the light of these observations, the evidence discussed above, in our opinion, falls short of the test.
The evidence only discloses that for the last 20 to 30 years the appellant and his family members were following the manners and customs of the twice born.
In Shri V.V. Giri 's case (supra), the Supreme Court held that whatever may have been the origin of Hindu castes and tribes in ancient times, gradually caste came to be based on birth alone. A person who belonged by birth to a depressed caste or tribe would find it very difficult, if not impossible, to attain the status of a higher caste by virtue of his volition, education, culture and status. The caste status of a person has to be determined in the light of the recognition received by him from the members of the caste into which he sought an entry; unilateral acts of such a person asserting a higher status were not enough to establish the higher status. In The Principal, Guntur v. Y. Mohan Rao's case (supra), the Supreme Court held that in case of parents of a person are converted from Hinduism to Christianity and is born after their conversion and on his subsequently embracing Hinduism, the members of the caste to which the parents belonged prior to their conversion accept him as a member within the fold, it is for the members of the caste to decide whether or not to admit a person within the caste. In Laxman Siddappa Naik's (supra) case, the Supreme Court held that once a nomination paper was accepted, the burden must be assumed again by the party challenging the fact that a candidate belonged to a particular community. It is further held that 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 a 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.
16. Issue No. 3:
It is the contention of the 1st respondent that social status is required to be adjudicated by the authorities in accordance with the provisions of Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 and it is beyond the scope of this Tribunal to adjudicate on it. I do not detain myself long to reject the contention, in view of the settled proposition of law that the Caste Certificate issued under the provisions of Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificate Act, 1993 served a different purpose and it could not stand in the way of election petition filed under the representation of the People Act, 1951 being tried in accordance with law by the High Court. Para 4 of the judgment in Satrucharla Vijaya Rama Raju 's (supra) case needs to be noted and it is thus:
Learned Senior Counsel for the appellant contended that the learned Judge in the High Court was wrong in holding that the decision in E.P. No. 13 of 1983 did not operate as res judicata and was not conclusive on the status of the appellant. The judgment was one in rem. He alternatively contended that the said judgment operated as a judicial precedent and should have been accepted as such by the learned Judge. It was against judicial discipline for a subsequent Judge assigned to try an election petition, to differ from the conclusion of the High Court rendered in an earlier election petition on the status of the appellant and judicial discipline warranted that the matter should have been referred to a Division Bench for decision, in case the Judge was inclined to disagree. Though, he faintly raised the contention that the issue of the certificate under the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 was conclusive and binding on the proceedings under the Representation of the People Act, 1951, he did not seriously pursue that contention, obviously because of the fact that the certificate issued under that Act served a different purpose and could not stand in the way of an election petition filed under the Representation of the People Act, 1951 being tried in accordance with law by the High Court, On facts, he submitted that the High Court was in error in its appreciation of the evidence and the finding that the appellant did not belong to the "Konda Dora" tribe was clearly erroneous. He emphasized that merely because a person belonging to a Scheduled Tribe described himself as a 'Kshatriya' or claimed to be a 'Kshatriya', he would not become a 'Kshatriya' or cease to be a tribal and this aspect has not been properly appreciated by the learned Judge. He ultimately submitted that the appreciation of the evidence by the learned Judge was perverse and important pieces of evidence have been ignored or not given the weight they deserved. The admissions extracted from the witnesses examined on behalf of the election petitioner and the deposition of the witnesses examined on behalf of the appellant and their impact on the relevant question, have not been considered properly by the election Judge. He submitted that the decision under appeal suffers from innumerable infirmities and required to be set aside by this Court in appeal.
Accordingly, this issue is held in favour of the election petitioner and against the 1st respondent.
17. Issue Nos. 1 and 2:
Ex.Rl and Ex.C4 are the caste certificates dated 10-7-1979 and 9-8-1981 obtained by RW1 from Tahsildar, Salur and Mandal Revenue Officer, Salur respectively. RW1 testifies that Tahsildar issued Ex.Rl caste certificate basing on the enquiries made by the revenue authorities. P.W.3 was examined by the election petitioner to prove that no enquiry was conducted by the revenue authorities before issuing Ex.Rl and Ex.C4 caste certificates. P.W.3 testifies as follows:
I am working as Mandal Revenue Officer, Salur Mandal since 10th October, 2004. Ex.R-1 (filed by the respondent and marked with the consent of the parties) is the caste certificate dated 9-7-1979 issued in favour of the 1st respondent by the then Tahsildar, Salur. I am in possession of the record relating to Ex.R-1. The record discloses that the statements of Aditya Pratap Bhanj Deo and Village Officer, Salur were recorded and the affidavits dated 1 lth day of 1979, of Sri J. Sanyasi Raju, S/o. Late Appalapurna Raju and V.T. Satyaprasad Thatraj, S/o V.T. Pratap Chandra Thatraj, were taken into account before Ex.R-1 was issued. The record also contain the copy of the document dated 17-2-1913 calendar judgment in C.C.No. 100 of 1915 on the file of Judicial II Magistrate, Salur. Ex.C-1 is the original statement recorded by the Village Officer. It is stated therein that the family members of the 1st respondent are Oriya Kshatriya and are related to L.N. Sanyasi Raju and J. Sanyasi Raju and that no caste certificate has been issued earlier for them. Ex.C-2 is the copy of a Document No. 157, dated 18-2-1913 is form part of the record. It does not contain any official seal. Ex.C-3 is the copy of the calendar and judgment in C.C. No. 100 of 1915. Ex.C-4 is another caste certificate issued in favour of Respondent No. 1 in R.C. No. 913 of 1989. Ex.C4 discloses that it was issued on the basis of a judgment of the High Court in S.A. No. 722 of 1986, dated 12-9-1988.
Nothing is suggested to this witness by 1st respondent in cross-examination that any enquiry was made by the authorities concerned before issuing either Ex.Rl or Ex.C4 caste certificate. More particularly, Ex.C4 caste certificate came to be issued basing on the judgment passed by this Court in S.A. No. 722 of 1986 filed by Aditya Pratap Bhanj Deo, who is the elder brother of RW.l. The validity of the judgment passed in S.A. No. 722 of 1986 dated 12-9-1988 came to be examined by the Full Bench of this Court in Andhra Pradesh Scheduled Tribes Employees Association v. Aditya Pratap Bhanj Deo's case (supra). It has been held therein that the decree of Civil Court in O.S.8 of 1985 as referred by the Additional District Judge in A.S. No. 45 of 1985 as well as judgment in S.A. No. 722 of 1986 is nullity and the same has to be ignored by all the authorities concerned. Paras 47, 48 and 49 of the judgment need to be noted and they read as under:
47. Sri B. Tarakam, learned senior Counsel has placed before us copy of the judgment in O.S. No. 8 of 1985 on the file of the Subordinate Judge, Parvathipuram. Therein first respondent alleged that he belongs to hill tribe community known as Konda Raju, that he is related to L.N. Sanyasi Raju who belongs to Konda Raju by community, and therefore, Konda Raju community of the plaintiff comes under S.T. He also alleged that he and his ancestors belong to class of hill rulers who call themselves Konda Rajus, which is same as Konda Dhora living in the Districts of Vizianagaram, Srikakulam and Visakhapatnam, who were declared as STs. After narrating the litigation from 1979 when he applied for the post of District Munsif, and the reasons why he was not selected, he asked for declaration that he belongs to caste of Konda Dhoras. It is not denied before us that by reason of being Konda Raju he sought for declaration that the same is equivalent to Konda Dhora, which is included in the Scheduled Tribes Order. We have no manner of doubt to record that the suit as laid was not maintainable, and the Civil Court had no jurisdiction to entertain the suit for it suffered from inherent lack of jurisdiction. Further, the judgment of the appellate Court is also void being per incuriam as the same ignored the law laid down by the Supreme Court in Bhaiya Lal's case .
48. Aggrieved by the judgment of the first appellate Court in A.S. No. 45 of 1985, as noticed above, APPSC and State of A.P. filed S.A. No. 722 of 1996 in which a substantial question of law of general importance as noticed above was formulated, as required under Sub-section (4) of Section 100 CPC. The second appeal was dismissed by brief order dated 12-9-1988, which reads:
The adverse concurrent findings recorded against the appellants are pure findings of fact based upon a detailed scrutiny of the entire evidence let in by both the parties. No question of law, leave alone a substantial question of law, arises for consideration in this second appeal. It is accordingly dismissed.
49. We have already referred that the decree of Civil Court declaring first respondent-admittedly belonging to Konda Raju as equivalent to Konda Dhora is nullity. We may also observe that as per Sub-section (5) of Section 100 CPC, the second appeal shall be heard on the substantial question of law as formulated under Section 100(4) of CPC. Therefore, the decree of the Civil Court, as affirmed by the Additional District Judge as well as this Court in second appeal is nullity and the same has to be ignored by all the authorities concerned. We answer Point No. 2 accordingly.
18. Learned Senior Counsel appearing for 1st respondent submits that the Full Bench of this Court is questioned before the Supreme Court in Special Leave Petition (Civil) No. 21349 of 2001 and thus the petitioner cannot place reliance on the findings recorded in W.P. No. 5355 of 2001, dated 241-2001. It is a matter of record that the judgment of the Full Bench of this Court referred to above is not suspended by the Apex Court. The interim order passed in Special Leave Petition is to maintain status quo as on that date i.e., 5-4-2002. It can be said without any controversy that status-quo means the position of the appellant therein as District Judge in A.P. State Higher Judiciary Service. I am unable to accept the contention of the learned Senior Counsel for the 1st respondent that the findings recorded in W.P. No. 5355 of 2001 cannot be looked into. Since caste certificates came to be issued in favour of the petitioner without there being any enquiry and placing reliance on the judgment of this Court passed in second appeal, which judgment subsequently came to be declared as nullity by the Full Bench of this Court in the above referred case, RW.l cannot place any reliance on the caste certificates issued by the revenue authorities. RW.l has to prove that he belongs to Konda Dora by placing evidence independent of Ex.Rl and Ex.C4 caste certificates. Since the election petitioner asserts that RW.l does not belong to Konda Dora, he has to place on record, prima facie, evidence to substantiate it. The petitioner discharged his burden by placing voluminous documentary evidence.
19. The documentary evidence placed on record by the election petitioner be summarized as follows:
Ex.A3 dated 22-7-1903 is the certified copy of the lease deed in favour of Brijasundara Bhanj Deo, grandfather of 1st respondent, Ex.A4 dated 8-6-1933 is the certified copy of lease deed executed by Brijasundara Bhanj Deo, grandfather of 1st respondent, in favour of Nine Chammayya. Ex.A5 is the certified copy of sale deed dated 16-10-1943 executed by Suryamani Jana Devamma, paternal grandmother of 1st respondent in favour of Chitlu Venu Gopalam. Ex.A6 is the certified copy of the sale deed dated 1-11-1950 executed by Aleknarayana Purushottama Bhanja Deo, father of 1st respondent, in favour of Chandaka Ramaswamy. Ex.A7 is certified copy of the permanent lease deed dated 5-11-1958 executed by Alekanamyana Punishotham Bhanj Deo, father of the 1st respondent, in favour of Naina Samayya. All these registered documents were at an undisputed point of time more particularly Exs.A3, A4 and A5 related to pre-constitutional period. Exs,A9 and A13 are study certificates of 1st respondent. Ex.A8 is the study certificate of Geeta Srijemana Bhanj Deo, the sister of 1st respondent. Ex.Al0 is the study certificate of Jitendra Pratap Bhanj Deo, elder brother of 1st respondent. The study certificates have been proved by examining the persons concerned of the school/college, where 1st respondent, his brothers and sister studied, as P.W.5, P.W.6 and P.W.7.
Indeed original Admission Registers were brought to Court and the relevant entries therein were referred to during the evidence of P.Ws.5, 6 and 7. In these documents statements have been made by father and grandfather of 1st respondent that they belong to KSHATRIYA caste. More particularly the study certificates of 1st respondent show that he belongs to Oriya Kshatriya. The registered documents have been proved by examining the Sub-Registrar of Salur as P.W.2. Apart from placing the documentary evidence, the election petitioner examined members of Kondadora Tribe as P.W.8, P.W.9 and P.W.10. They categorically stated that they never treated family members of 1st respondent as members of their community. Since the petitioner discharged his initial burden through oral and documentary evidence that 1st respondent does not belong to Kondadora Tribe, the onus is on 1st respondent to establish that he belongs to Kondadora Tribe. It is for him to explain under what circumstances his family members described themselves as 'KSHATRIYA' or 'ORIYA KSHATRIYA'. It is also for him to explain for recording his caste as ORIYA KSHATRIYA in school records. The election petitioner by placing ocular and documentary evidence discharged his burden of proving that 1st respondent does not belong to Kondadora Tribe.
20. Learned Counsel appearing for 1st respondent submits that mere marking of the certified copies of the registered documents is not sufficient to prove the contents therein. I do not see any merit in his contention since the executants are no other than the grandfather, grandmother and father of 1st respondent and it is for 1st respondent to explain under what circumstances the caste of his grandfather, grandmother and father came to be mentioned as KSHATRIYA.
21. 1st respondent stated that his ancestors were Zamindars of Belgaum and Zamindari in their favour was settled by the then British Government in 1802. He further stated that their forefathers were dissidents of Dhananjaya Thotraj and suffix of Thotraj came to be omitted from the time of his grandfather-Brijasundara Bhanj Deo. Except his oral statement, no convincing material has been placed by him to show that their ancestors were Zamindars of Belgaum and that they belonged to Kondadora Tribe. He states in his cross-examination that his ancestors hailed from Orissa State and they shifted their residence from Jaipur to Belgaum and thereafter from Belgaum to Salur and then from Salur to Ganjam and from Ganjam to Salur. For better appreciation I may refer the cross-examination of RW.l in his own words and it is thus:
My ancestors hail from Orissa State. My ancestors shifted their residence from Jaipur to Belgaum and thereafter from Belgaum to Salur and then from Salur to Ganjam and from Ganjam to Salur. Aditya Pratap Bhanj Deo is my elder brother. It is true that the writ petition was filed against my elder brother questioning the social status. In the said writ petition my elder brother was declared that he does not belong to ST. My wife is native of Jharkhand. My brother's wife is also native of Jharkhand. My wife and the wife of my brother hail from different districts in Jharkhand State. My younger brother Jitender Pratap Bhanj Deo married in Orissa State. I have three elder sisters and one younger sister. My two elder sisters and younger sister were married to the persons belonging to the State other than Andhra Pradesh. One of my elder sisters married a person belonging to Salur, Andhra Pradesh. Beddabaliala Simhuni is husband of one of my elder sisters (Lalitakumari Devi). He is native of Salur. There are about two hundred families of Kondadora Tribe in Salur Town. There is no Kshatriya family in Salur Town. The witness again says that there are five or six families belonging to Kshatriya community. Bhojaraju Janadev, Jagannadha Raju, Aditya Pratap Bhanj Deo (my elder brother), P. B, Jagannadha Raju are some of the elders in our community. Sariga Dipalasuri Dora is my relation. Vijaykumari Devi is my mother. Pumachandra Singh Deo is my mother's paternal uncle. His son Prabhunarayana Singh Deo married the sister of S.R.T.P. Mallaparaju of Pachipenta. Premamanjari Devi is the sister of S.R. T.P. Mallaparaju. My grandfather's father married the daughter of L.N. Sanyasiraju of Salur. L.N, Sanyasiraju is Jamindar of Salur. He was an M.L.A. for two terms of Salur Constituency. I do not know that Government declared L.N. Sanyasiraju does not belong to Scheduled Tribe.
It is crystal clear from the evidence of RW.l that almost all members of his family married persons belonging to other than the State of Andhra Pradesh. When he was confronted with Exs.A.3 to A.5 documents in the cross-examination, he pleaded ignorance of the statements of the executants therein with regard to their caste. However, he made a categorical admission in the cross-examination that in the study certificate of his sister, her caste has been shown as Oriya Kshatriya. He also admits in cross-examination that Exs.A.9, A. 10 and A13 study certificates show the caste of him and his brother as Oriya Kshatriya. A further admission has been made by him that Exs.A12 birth certificate relates to his father and the caste of his father has been shown therein as Kshatriya and the person who informed the birth of his father has been shown as Brijasundara Bhanj Deo-his grandfather. For better appreciation I may refer the relevant portion of the cross-examination of RW.l and it is thus:
It is true my sister-Geetasridevi; Bhanj Deo studied in Municipal Upper Primary School, Pedakomatipeta, Salur. It is true in Ex.A8 study certificate the caste of my sister has been shown as "Oriya Kshatriya". Witness volunteers that there is no caste by "Oriya Kshatriya". I also studied in Municipal Upper Primary School, Pedakomatipeta, Salur. It is true that in the study certificate which has been marked as Ex.A9 my caste has been shown as "Oriya Kshatriya". Jitendra Pratap Bhanj Deo is my younger brother. He too studied in Municipal Upper Primary School, Pedakomatipeta, Salur. It is true in Ex.Al0 study certificate the caste of my younger brother has been shown as "Oriya Kshatriya". I do not know the date of birth of my father. My grandfather and my father resided in Salur. It is true in Ex.A12 certified copy of the birth certificate of my father his caste has been shown as Kshatriya and the person who informed the birth of my father has been shown as Bowjasundara Bhanj Deo (my grandfather). I studied B.Com in A.M.A.L., College, Anakapally. It is true in Ex.A13 study certificate issued by A.M.A.L., College, Anakapally, my caste has been shown as Oriya Kshatriya. Witness volunteers that there is no caste by name Oriya Kshatriya. He also volunteers that his date of birth has been wrongly mentioned in Ex.A.13. I have two sons. In the year 1999 an application was submitted by me to MRO, Salur to issue caste certificate to my sons. A show-cause notice was issued by the Sub-Collector of Parvathipuram to me as to why my application should not be rejected. Ex.A14 is the Photostat copy of the show-cause notice issued to me. A writ petition was filed by me challenging the show-cause notice and obtained interim suspension of the show-cause notice in WPMP No. 22382 of 1999 in W.P. No. 17956 of 1999. In the year 1979 I obtained caste certificate from Tahsildar, Salur (Ex.Rl). Ex.Rl is the attested copy of the caste certificate obtained by me. I do not know that original of Ex.Rl caste certificate was issued basing on the information furnished by me.
It is crystal clear from the admissions of 1st respondent-RW.l himself that in the school records, he, his brother and sisters were shown as Oriya Kshatriyas. Even Ex.A12, birth certificate, of his father shows that he belonged to Kshatriya community. The entries in the school records relate to undisputed point of time and there was no reason for any one to make false statement with regard to caste of either the 1st respondent, his brothers or sisters. The 1st respondent failed to make out any ground to disbelieve the correctness of entries in the school records.
22. Much argument has been advanced by learned Counsel appearing for the 1st respondent basing on Ex.R6 certified copy of the judgment in C.C. No. 100/1915 that the father of the 1st respondent-R.W. 1 belonged to Scheduled Tribe-Kondadora.
23. In Ex.R-6-certfiied copy of the Calendar and judgment in C.C. No. 100 of 1915, on the file of the 2nd Class Magistrate of Salur; Bhrejsundara Bhanj Dev, the grandfather of the first respondent-RW.l, has been shown as 'Konda Dora Mokhasadar'. The words 'Konda Dora Mokhasadar' are written in ink. R.W.I through whom Ex.R-6 is marked is unable to say as to who has applied for certified copy of the Calendar and judgment in C.C. No. 100 of 1915. Relevant portion of the cross-examination of R.W.I needs to be noted and it is thus:
Ex.A-19 is the Photostat copy of caste certificate issued by MRO, Salur. I do not remember as to who has applied for certified copy of the judgment in C.C. No. 100/1915, which has been marked as Ex.R6. I do not remember as to how I came into possession of Ex.R6. It is true that subsequent to issuance of show-cause notice, which was questioned by me in the writ petition, no caste certificate was issued either to me or to my children by M.R.O., Salur.
Since R.W. 1 has failed to explain as to how he got the certified copy of the Calendar and judgment in C.C. No. 100 of 1915, it creates any amount of suspicion with regard to the original Calendar and judgment in C.C. No. 110 of 1915 containing the caste of the grandfather of the first respondent as 'Konda Dora Mokhasadar'. However, in view of voluminous evidence both ocular and documentary evidence placed on record by the election petitioner, a stray entry in the calender and judgment in C.C. No. 160 of 1995 showing the caste of Bhrej Sunder Bhanj Deo as Kondadora-Mokesdar is inconsequential.
24. The learned Senior Counsel appearing for the 1st respondent tried to impress the Court by referring to certain photographs of deities that they are the deities of "Kondadora Tribe" and since the family of 1st respondent has been offering prayers, it is one of the circumstances to prove that the 1st respondent belongs to Konda Dora Tribe. I express by inability to accede to the contention of the learned Senior Counsel since no inference can be drawn basing on the photographs of deities that offering to them are only from the people of a particular community/caste/tribe.
25. The evidence of first respondent, who has been examined as R.W.I, clearly shows that his family has always been considered as belongs to superior strata of society and as a ruling strap of family. The ancestors of the first respondent had made series of assertions with regard to their caste as 'Kshatriya' in a series of documents.
26. RW.2 traces his origin from Andra Zamindar family. He testifies that Dhanunjaya Thotraj was ancestor of 1st respondent. He further testifies that he belongs to Kondadora Tribe and he traces his relationship with the 1st respondent through Haripriya Devi who is said to be maternal aunt of his great grandfather. He admits in his cross-examination that he deposed in the election petition of Vijayarama Raju who claimed the status of Scheduled Tribe. It is a matter of record that Vijayarama Raju lost his case in High Court and the same has been confirmed by the Supreme Court in Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju (supra). He admits in the chief-examination itself that there is no record or proof that his ancestor was a Zamindar. He further volunteers in cross-examination that since three or four generations his family does not have any relation with any one of the Kondadora Tribe in Andra village. For better appreciation I may refer the relevant portion of the cross-examination of RW.2 in his own words, which reads as under:
I know Vijayarama Raju, present MLA of Parvathipuram Assembly Constituency. In the earlier election he contested from Naguru Assembly Constituency. Naguru Assembly Constituency is a reserved constituency. Parvathipuram Assembly Constituency is a general constituency. I do not know the reason for him to contest from general constituency instead of reserved constituency. He belongs to Kondadora Tribe. It is true that an election petition was filed against Vijayarama Raju and the said petition was allowed declaring him that he does not belong to Kondadora Tribe. I gave evidence in the election petition on behalf of Vijayarama Raju. It is true that Rao Bahadur title is conferred on Rajus by the Britishers. I belong to Andra village. Thre are two hundred families belonging to Kondadora Tribe in Andra village. I have no relationship with any one of the 200 families of Kondadora Tribe in Andra village. The witness volunteers that since three or four generations his families have no relations with any one of the Kondadora Tribe in Andra village. I do not know as to whether we had any relationship prior to three or four generations with any one of the two hundred Andra families in our village....
In view of the specific admission of his not having any record to speak of his origin and more particularly in view of the election of Vijayarama Raju, wherein he deposed that they both belonged to Scheduled Tribe came to be set aside, his evidence is of no avail to 1st respondent.
27. RW.3 claims that he belongs to Mookadora Tribe. He testifies that the wife of Aditya Pratap Bhanj Deo married the daughter of brother of his brother-in-law. In the cross-examination he states that he and Neelakanteswara Basava Thirupathi Raju belong to Rajus. Again he changes the version in the cross-examination and asserts that he does not belong to Raju caste but belong to Mookadora Tribe. In view of prevaricate answers given by him in the cross-examination, no reliance can be placed on his testimony.
28. RW.4 claims to be a relative of Satrucharla Vijaya Rama Raju. He was examined as one of the witnesses in the election petition filed against Vijayarama Raju. He deposed in favour of Vijayarama Raju in the said election petition. The Apex Court held that Vijayarama Raju was not a ST vide the decision in Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju (supra). Therefore, the evidence of RW.4 is also of not much use to the 1st respondent.
29. RW.5 testifies that he belongs to Kshatriya by caste and he has no relationship with 1st respondent. In the cross-examination he admits that he does not know the surname of Rajendra Pratap Bhanj Deo. He also admits that he and Rajendra Pratap Bhanj Deo belong to TDP. Therefore, no much reliance can be placed on his testimony.
30. RW.6 did not speak of anything in favour of 1st respondent. He categorically stated in the chief-examination itself that he has no relationship with 1st respondent.
31. RW.7 testifies that he belongs to Kondadora community and that sister of 1st respondent has been given in marriage to the son of Pakirraju. In nutshell, his evidence is that he and 1st respondent belong to Kondadora Tribe. The election petitioner summoned the school records relating to RW.7. The caste of RW.7 in the school records has been recorded as Kshatriya. The entries in the school records have been proved through P.W.7. It is admitted by RW.7 in his cross-examination that he studied in Government High School, Salur during the year 1985-88 and no other person with this name studied during the said period in the school from 8th to 10th class. Ex.A.22 is the entry relating to him wherein the caste has been mentioned as Kshatriya. Therefore, his evidence that he belongs to Kondadora Tribe cannot be believed. When he himself does not belong to Kondadora Tribe, his evidence with regard to his relationship with Respondent No. 1 is not relevant.
32. Though the first respondent would like to contest from a constituency reserved for Scheduled Tribe, he would want to lead the life of the forward caste. The purpose of reservation of constituency is to ensure representation in the Legislature to such Tribes and Castes, who are deemed to require special efforts for their upliftment. The person seeking election from such constituency must be true representative of that Tribe. The evidence brought on record clearly shows that the first respondent could not be considered to be a true representative of a Tribe included in the Presidential Order deserving special protection. Since the first respondent does not belong to any one of the Tribes specified in the Schedule under Article 342 of the Constitution of India, he is not entitled to be a candidate from the '10 Salur (ST) Legislative Assembly Constituency' and his nomination was improperly accepted. Illegal acceptance of nomination paper of a returned candidate including the result of election has been materially affected and therefore, the election of the first respondent is liable to be declared as void.
33. The next question for consideration is whether the petitioner be granted declaration that he is duly elected to the '10 Salur (ST) Legislative Assembly Constituency'. In Vishwanatha Reddy v. Konuppa Rudrappa Nadgouda and Anr. (supra), the Supreme Court held that when there are only two contesting candidates, election of the returned candidate was found to be void on the ground of statutory disqualification on the date of filing of the nominations, the other contesting candidate can be declared as elected and fresh pole is not necessary. It was also held that Section 53 of the Representation of People Act provides that if the number of contesting candidates is more than the number of seats to be filled, a poll shall be taken. In the case on hand, only two candidates contested for the "10 Salur (ST) Legislative Assembly Constituency'. The election petitioner secured 46,087 votes whereas first respondent, who is the returned candidate, secured 48,580 votes. Since the first respondent suffers from statutory disqualification, the votes cast in his favour have to be regarded as thrown away irrespective of whether the voters were aware of the disqualification. When once the votes secured by the first respondent are treated as thrown away votes, the only candidate remained in the field is the election petitioner and thus, he is entitled to be declared as duly elected.
34. In the result, the election petition is allowed with costs declaring the election of the first respondent-Rajendra Pratap Bhanj Deo as null and void and instead the election petitioner-Peedika Rajanna Dora is hereby declared as duly elected for the '10 Salur (ST) Legislative Assembly Constituency'.