# LAXMAN SIDDAPPA NAIK v. KATTIMANI CHANIAPPA JAMAPPANNA & ORS

- **Citation:** [1968] 2 S.C.R. 805
- **Court:** Supreme Court of India
- **Decided:** 1968-01-19
- **Case number:** Civil Appeal No. 1303 of 1967
- **Bench:** M. H!Dayatullah, S. M. S!Kr!, K. S. Hegdb
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/laxman-siddappa-naik-v-kattimani-chaniappa-jamappanna-ors-4238
- **Pages:** 7

## Headnote

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Constitution <Scheduled Tribes) Order, 1950-Caste of candidatureBurden of proof.
An unsuccessful candidate for •olection
to the
Mysore Legislative·
Assembly for a seat reserved for a member of the Schedul-:d l'ribes, filed
an election petition on th·o ground that the other three candidates belonged
to the Bedar caste, which is not a tribe specified in Part YIU para 2 of
the Constitution (Scheduled Tribes) Order,
1950.
The
appellant-the
succl.!ssful 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 Pr·esidential o,.Jci· showed that Naikdas or Nayakas are
to be found not only in ihe districts of Mysore but. also in Maharashtra
and Raja!:ithan.
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 belong·,d.
Even if he was the solidary Nayaka he
would be covered by the Presidential order and would be .. entitled to stand
for the reserved s·~at for the tribal· communities mentioned· in the Pre"Siden~
tial 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 3:ssuffied
again by the party challenging the fact that a candidate belonged to
a
particular community.
If prima facie evidence h:id 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. [809 H; 810 A]
The election pe~itioner could have provr.d by positive· evidence that the
appellant was a Bedar. That would have prov·ed that he was not a Nayaka.
l"o establish the fact evidence was required to show the
characteristics,
such as customs of marriages. births; deaths, wdrship, dress, ~cupation
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, interdinin~,
community of worship, residence in a particular place and the like. Such
facts would have led lo the drawing of aQ 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 l'ada Saha v, Sudhir Kumar Monda/, [1966] supp. S.C.R. 387,
B. B·asavalingc.ppa v. D. Munichinnappa & Ors. A.I.R. 1965 S.C. 1269 and
llhaiya Lal v. Harikishan Singh & Ors. A.I.R. 1965 S.C, 1957, referred to.
CrvIL APPELLATE JURISDICTION : Civil Appeal No. 1303 of
1967.
Appeal under s. 116-A of the Representation of People Act
19 51 from the judgment and order dated July 24, 1967 of the
,
·1!06
SUPREME COURT REPORTS
[ t '168) 2 S.C.R.
Mysore High Court, Bangalore in Ele<.,tion pctitio,1 No. I 0 of
1967.
S. S. Ja .. a/i and M. Veerappa, for the appellant.
R. Gopa/akrishnan, for respondent no. I.

## Text

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LAXMAN SIDDAPPA NAIK
v.
KATTIMANI CHANIAPPA JAMAPPANNA & ORS.
January 19, 1968
B
[M. H!DAYATULLAH, S. M. S!KR! AND K. S. HEGDB, JJ.]
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H
Constitution <Scheduled Tribes) Order, 1950-Caste of candidatureBurden of proof.
An unsuccessful candidate for •olection
to the
Mysore Legislative·
Assembly for a seat reserved for a member of the Schedul-:d l'ribes, filed
an election petition on th·o ground that the other three candidates belonged
to the Bedar caste, which is not a tribe specified in Part YIU para 2 of
the Constitution (Scheduled Tribes) Order,
1950.
The
appellant-the
succl.!ssful 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 Pr·esidential o,.Jci· showed that Naikdas or Nayakas are
to be found not only in ihe districts of Mysore but. also in Maharashtra
and Raja!:ithan.
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 belong·,d.
Even if he was the solidary Nayaka he
would be covered by the Presidential order and would be .. entitled to stand
for the reserved s·~at for the tribal· communities mentioned· in the Pre"Siden~
tial 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 3:ssuffied
again by the party challenging the fact that a candidate belonged to
a
particular community.
If prima facie evidence h:id 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. [809 H; 810 A]
The election pe~itioner could have provr.d by positive· evidence that the
appellant was a Bedar. That would have prov·ed that he was not a Nayaka.
l"o establish the fact evidence was required to show the
characteristics,
such as customs of marriages. births; deaths, wdrship, dress, ~cupation
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, interdinin~,
community of worship, residence in a particular place and the like. Such
facts would have led lo the drawing of aQ 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 l'ada Saha v, Sudhir Kumar Monda/, [1966] supp. S.C.R. 387,
B. B·asavalingc.ppa v. D. Munichinnappa & Ors. A.I.R. 1965 S.C. 1269 and
llhaiya Lal v. Harikishan Singh & Ors. A.I.R. 1965 S.C, 1957, referred to.
CrvIL APPELLATE JURISDICTION : Civil Appeal No. 1303 of
1967.
Appeal under s. 116-A of the Representation of People Act
19 51 from the judgment and order dated July 24, 1967 of the
,
·1!06
SUPREME COURT REPORTS
[ t '168) 2 S.C.R.
Mysore High Court, Bangalore in Ele<.,tion pctitio,1 No. I 0 of
1967.
S. S. Ja .. a/i and M. Veerappa, for the appellant.
R. Gopa/akrishnan, for respondent no. I.
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 ,;et aside the election of L&xman Siddappa Naik, who is the appellan: 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 !he Constitution
(Scheduled Tribes) Order, 1950.
Five others had tiled 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 permi'.ted by the
Act.
Thcte were thus four contesting candidates. The result of
the poll was as follows :-
1. Shri Laxman Siddappa Naik
17522
2. Shri Parasappa Hanmantha Karaing
7044
3. Shri Patel Shivangowd Malgowd
5996
4. Shri Kattimani Chandappa Jampanna
620
The election petition was
filed
by
the last candidate who
had rectived only 620 votes.
The main contention and on which
his cleciiun 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 tor the reserved seat.
This objection was also taken before the Returniilg Officer but was
rejected by him.
The case of the election petitioner was that the appellant did
not bdong to the tribe shown as Nayaka including Cholivala
Nayaka, Kapadia Nayaka, Mota Nayaka and
)'fana 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. h answer to the petition the appellant asserted
that he was a Nayaka although he stated that Nayakas are also
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L. s. NAIK v. K. 0. JAMAPPANNA (Hidayatullah, J.)
807
called "Bedars". The High Court on an appraisal of the evidence
and after looking into census reports and certain v:riters on the
subject of Castes and Tribes has come to the conclusmn 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 trib~ or
tribal community or part of or group within any tribe or tribal
community.
The Presidential Order was modified in 1956 :md
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, Kap~dia Nayaka,
Mot1'
Nayaka arid 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 the
P.xpression "Naikda or Nayaka" by the entry. In Abhoy Pada Saha
v. Sudhir Kumar ·Monda/(') 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 Saha.
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. Basava/in<(appa v. D. Munichinnappa and
others(") the Voddar caste of Mysore State, before the State
Reorganization in 1956 was held, on evidence, to be the same as
(1) (1966] Supp. S.C.R. 387.•
(2) A.I.R. 1965 S.C. 1269.
808
SUPREME COURT REPORTS
(1968] 2 S.C.R.
the Bhovi caste mentioned in the Constitution (Scheduled Castes)
Order, 1950.
Again the matter was treated as a question of
fact.
This Coun 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,
docs 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 charactl'ristics,
such as customs of
marriages. hirths. 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 inter'
marriage.
inter-dining, community of worship,
residence in a
particular place and the like.
Such facts would have 'led to the
drawing oJ 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
(hat 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 wi1nesses inoluding himself and filed two documents.
The
first document (Ex.P.-1) 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
dcscrihcd as Bedar.
The appellant denied that it related io his
daughter.
He said that he had only one
daughter by name
t5hankuntala and that the certificate produced was not of his
'dau~hter.
No evidence was led to establish that the cerlificate
related to the daughter of the appellant.
The other document
<Ex. P-2) was a certified extract of a school leaving certificate
(I) A.l.R. 1961S.C.1557.
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L. s. NAIK v. K. c. JAMAPPANNA (Hidayatullah, J.)
809
relating to one Lakshinappa 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 Qral 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, diiifllayed 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 tha! the appellant was a Bedar
and he did not examine any persoa in suppoi:t 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 wher~ 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 argres 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
qvestion.
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 h;s mind.
Once the
nomination paper was accepted the. burden must be
assumed
again by the party challenging the fact that a candidate belonged
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810
SUPREME COURT REPORTS
(1968) 2 s.c.R.
to a particular community.
If prima facie evidence had been led
by the election petitioner the burden might have shifted to the
candidate but as he led no evidence whatever he must obviously
fail.
This is not one of those cases in which both sides having
led evidence the question where onus lies, becomes immaterial,
since the court can reach a conclusion on the totality of the evidence before it.
There was no evidence in this case one way or
the other.
In these circumstances, the election petitioner could
not succeed because of the weakness of the appellant's case.
The High Court did not approach this problem from his angle.
As it could not reach any conclusion on the evidence before it, the
High Court turned to Census Reports of the Bombay Presidency
of 1911. 1921 and 1931, the Bombay Karnatak Gazetteer
of
1893, Hu:ton·s book on Castes in Indian ( 1931 ), Mysore Tribes
and Castes Vol. II by Nanjundayya and Iyer, Hindu Tribes and
Castes. Vol. II by Sherring. Castes and Tribes of Southern India
by Thurston. certain Government Orders issued in 1959 and 1960
and the Administration Report
of the Welfare
Department of
1956-57.
These documents could be consulted to find out the
distinguishing customs and manners of different tribes but not to
reach a conclusion about the appellant.
The conclusion drawn
from this material was that Naikda is a dis<inct tribe, that Nayaka!
arc not mentioned and that the Bedars could not be called 'Naikda".
Reverting to the pica of the appellant that he was not a Naikda .
but a Nayka and that Nayakas were also known as Redars,
the
learned Judge reached the conclusion that the appellant was
a
Bedar.
He found no evidence in these Reports of the existence
of 1'ayakas 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 Navakas 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
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L. S. NAIK v, K. C. JAMAPPANNA (Hidayotu//ah, J.)
81 l
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these circumstances, <he 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.
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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 proo.f that a person is not
properly chosen to fill a particular seat.
Mere suspicion or
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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
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,. 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.
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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 accondingly 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.