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PERSONNEL AND ADMINISTRATIVE REFORMS SECRETARIAT (ELECTIONS)

NOTIFICATION

No. DPAR 31 CHUTAA 2018, BENGALURU, DATED: 20^th November, 2018

The following Notification No. 82/ECI/TERR/SOU2-KT/04/2013, dated: 13

th June 2018 of the Election Commission of India is

re-published hereunder for general information.

ELECTION COMMISSION OF INDIA

Nirvachan Sadan, Ashoka Road, New Delhi – 110 001

Dated: 13

th June, 2018

11 Jyaistha, 1940 (saka)

NOTIFICATION

No. 82/ECI/TERR/SOU2-KT/04/2013:- In pursuance of Section 106 (b) of the Representation of the People Act, 1951, (43 of

1951)The Election Commission of India hereby publishes the judgment/order of the High Court of Karnataka dated 25

th April, 2018 in the

Election Petition No. 04 of 2013.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 25TH DAY OF APRIL, 2018

BEFORE THE HON’BLE MR. JUSTICE A S BOPANNA

ELECTION PETITION No.4/2013

BETWEEN:

SRI N MUNIANJAPPA

AGED ABOUT 57 YEARS,

S/O H. NARAYANAPPA,

WARD NO. 8, MUTYALAPETE,

MULBAGAL TOWN,

KOLAR DISTRICT-563 131

G. VENKATARAVANA

AGED ABOUT 36 YEARS,

S/O LATE GOVINDU,

MARAHERUKOTHURU VILLAGE,

MULBAGAL TALUK,

KOLAR DISTRICT-563 131

¸ÀA¥ÀÄl 154

Volume 154

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Bengaluru, Thursday, January 10, 2019 (Pushya 20, Shaka Varsha 1940)

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Issue 2

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AMARESH

AGED ABOUT 45 YEARS,

S/O MUNISWAMY @ SAKRAPPA,

KEELAGANI VILLAGE,

AVANI HOBLI, MULBAGAL TALUK,

KOLAR DISTRICT-563 131

M.N. AMBARISH

AGED ABOUT 34 YEARS,

S/O NARAYANAPPA

MALEKUPPA VILLAGE,

MULBAGAL TALUK,

KOLAR DISTRICT-563 131

Y. SRINIVASAN PATAPAT

AGED ABOUT 43 YEARS,

S/O A.V. YALLAPPA,

NO.32, BR AMBEDKAR ROAD,

ATTIBELE,

ANEKAL TALUK-562 125

P CHANDRAPPA

AGED ABOUT 45 YEARS,

S/O LATE PILLAPPA,

ASALI ATTHIKUNTE VILLAGE,

MULBAGAL TALUK,

KOLAR DISTRICT-563 131

JAGADISH C.K

AGED ABOUT 34 YEARS,

S/O KRISHNAMURTHY RAJ,

NO. 3264/5, MUTHYALPET,

MULBAGAL TOWN,

KOLAR DISTRICT-563 131

DODDACHOWDAPPA

AGED ABOUT 63 YEARS,

S/O MUNIVENKATAPPA,

NAGAVARA VILLAGE,

MULBAGAL TALUK,

KOLAR DISTRICT-563 131

C. RAMAKRISHNAIAH

AGED ABOUT 54 YEARS,

S/O LATE CHINNAPPA,

KURAGAL VILLAGE AND POST,

KOLAR TALUK,

KOLAR DISTRICT-563 131

10.

RANJIT KUMAR T

AGED ABOUT 26 YEARS,

S/O M. THIMMAIAH,

NETHAJINAGARA

MULBAGAL TOWN,

KOLAR DISTRICT-563 131

11.

H.A. LAKSHMAIAH

AGED ABOUT 69 YEARS,

S/O AVALAPPA,

NO.4081, 1ST CROSS

M.N. HALLI ROAD,

MULBAGAL TOWN,

KOLAR DISTRICT-563 131

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12.

V. ADINARAYANA

AGED ABOUT 35 YEARS,

S/O. VENKATARAMAPPA,

PEDDAREDDYPALLI VILLAGE,

BAGEPALLI TALUK

KOLAR DISTRICT-561 207

13.

G. ALANGUR RAMANNA

AGED ABOUT 44 YEARS,

S/O GANESHAPPA,

SONNAVADI VILLAGE,

MULBAGAL TALUK,

KOLAR DISTRICT-563 131

14.

CHALAPATHI

AGED ABOUT 40 YEARS,

S/O VENKATESHAPPA

NAGAMANGALA VILLAGE,

MULBAGAL TALUK

KOLAR DISTRICT-563 131

15.

NAGARAJ V

AGED ABOUT 30 YEARS,

S/O VIDYARANYA,

MADDERI VILLAGE,

MULBAGAL TALUK,

KOLAR DISTRICT-563 131

16.

T.V. BALAKRISHNA

AGED ABOUT 39 YEARS,

S/O VENKATANABOVI

TIMMANAYAKANAHALLI,

MALLANAYAKANAHALLI POST,

MULBAGAL TALUK,

KOLAR DISTRICT-563 131

17.

V. MARAPPA

AGED ABOUT 40 YEARS,

S/O VENKATARASHAMBOVI

OLAGERANAHALLI VILLAGE,

MULBAGAL TALUK,

KOLAR DISTRICT-563 131

18.

D. VENKATARAVANAPPA

AGED ABOUT 34 YEARS,

S/O. DODDAKAMANNA

KESARAMANAGALA VILLAGE,

MULBAGAL TALUK,

KOLAR DISTRICT-563 131

19.

T.M. SHVIANNA

AGED ABOUT 49 YEARS,

S/O MUNIYAPPA,

THORADI VILLAGE,

MULBAGAL TALUK,

KOLAR DISTRICT-563 131

20.

N. SRINIVAS

AGED ABOUT 49 YEARS,

S/O NARAYANAPPA,

GUMMAKAL VILLAGE,

G.MARANDAHALLI POST,

MULBAGAL TALUK,

KOLAR DISTRICT-563 131

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21.

V. SRINIVAS

AGED ABOUT 39 YEARS,

S/O VENKATARAMAPPA

NETHAJI NAGAR,

MULBAGAL TOWN,

KOLAR DISTRICT-563 131

... RESPONDENTS

(BY

SRI ASHOK HARANAHALLI, Sr. COUNSEL FOR

SRI K RAGHUPATHY &

SRI R HEMANTHRAJ A/W

SRI C SHASHIKANTHA, ADVs. FOR R1

SRI N.S. SHESHADRI, ADV. FOR R2

SRI A S MAHESH, ADV. FOR R3

SRI PRAVEEN BY RJS ADV’s FOR R4, 6-11, 13-15 & 19

SRI V S BIJU, ADV. FOR R17

SRI G.KRISHNAMURTHY FOR

SRI BIMBADHAR M GOWDAR, ADV. FOR R12

V/O DATED 22/01/2018)

THIS ELECTION PETITION PRESENTED U/S 81 OF THE REPRESENTATION OF PEOPLE’S ACT, 1951 R/W RULE 4 OF

THE ELECTION PROCEDURE RULES, KARNATAKA 1967 BY ONE SRI MUNIANJAPPA N, PETITIONER CHALLENGING THE

ELECTION OF THE RESPONDENT NO.1: SRI G MANJUNATHA TO THE KARNATAKA LEGISLATURE FROM NO.145,

MULBAGAL(SC) ASSEMBLY CONSTITUENCY, GENERAL ELECTIONS HELD IN THE YEAR 2013, PRAYING TO A) DECLARE

THAT ON THE DATE OF ELECTION ON 05.05.2013 AND DECLARATION OF THE RESULT ON 08.05.2013 THAT THE

RESPONDENT NO.1 WAS NOT QUALIFIED TO BE CHOOSEN TO FILL THE SEAT RESERVED FOR THE SCHEDULE CASTE 145

MULBAGAL UNDER THE CONSTITUTION AND UNDER SECTION 100(1)(A)(D)(IV) OF THE REPRESENTATION OF THE PEOPLE

ACT AND ETC.

THIS ELECTION PETITION HAVING BEEN RESERVED FOR ORDERS ON 13.04.2018, COMING ON FOR

PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

ORDER

The petitioner in this petition filed under Section 81 of the Representation of People’s Act, 1951 (‘R.P.Act’ for short) is before this

Court seeking to declare that on the date of election on 05.05.2013 and on the date of declaration of the result on 08.05.2013,

respondent No.1 was not qualified to be chosen to fill the seat reserved for the Scheduled Caste in the Karnataka Assembly. The seat in

question is No.145 Mulbagal reserved constituency. The petitioner is also seeking to declare the result of the said election, so far as it

concerns respondent No.1 is materially affected by the improper acceptance of the nomination. A declaration is sought that the result of

the respondent No.1 as elected to the No.145 Mulbagal (SC) Assembly constituency as null and void. A declaration that the result of the

election is materially affected by the improper reception and counting of 73146 votes in favour of respondent No.1 as void and

accordingly treat the said votes as wasted and thrown away votes is sought. Consequently it is further sought that the petitioner be

declared as duly elected to the No.145 Mulbagal (SC) Assembly Constituency and to impose penalty on the respondents No.1 and 2

under Section 125A of the R.P.Act.

2. The petitioner and the respondents No.1 to 21 had filed the nomination seeking their election to the Karnataka Legislative

Assembly from No.145 Mulbagal Constituency. The said constituency is reserved for persons belonging to Scheduled Caste.

The respondents No.1 and 2 as also their uncle one Sri Gangireddy had filed their nominations. The nominations filed by the

respondents No.1 and 2 were accepted by the Returning Officer on 18.04.2013. In the result of the election declared on 08.05.2013 the

petitioner had secured 39142 votes while respondent No.1 had secured 73146 votes and accordingly respondent No.1 was declared

elected. At that stage, since the writ petition was pending assailing the acceptance of the nomination, the result declared was made

subject to result of W.P.No.20025-26/2013, which has been disposed of leaving open all contentions to be considered in this petition.

3. The petitioner is challenging the acceptance of the nomination and the election of respondent No.1 by contending that the

respondent No.1 does not belong to Scheduled Caste (‘SC’ for short) since according to the petitioner the respondent No.1 does not

belong to Beda (Budaga) Jangama community notified as SC under the presidential order at Item No.4 of IV in Scheduled Castes and

Scheduled Tribes Lists (Modification) Order, 1956. The case of the petitioner is that the said Beda (Budaga) Jangama Caste is stated to

be prevalent in Gulbarga, Bidar and Raichur District but not in Kolar District. In order to contend so, the petitioner has also averred that

while admitting respondent No.1 into school by the parents, it has been stated that he belongs to ‘Byragi’ caste as recorded in the

admission records which is also indicated in the Transfer Certificate when he was studying SSLC. It is contended that in some sale

deeds relating to his family members and relatives they have been described as belonging to ‘Jangala’ caste. It is contended that the

said ‘Byragi’ or ‘Jangala’ caste is not the same as Beda (Budaga) Jangama nor are they SC. The ‘Byragi’ caste is notified as Backward

Caste category-I in the Government Order dated 30.03.2002 and as such it cannot be considered as Scheduled Caste. The respondent

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No.1 at an earlier point on 04.04.2008 had filed an application seeking issue of caste certificate but the same was rejected by the

Tahsildar-Mulbagal stating that respondent No.1 belongs to ‘Byragi’ Caste.

4. The petitioner contends that the Caste Certificate dated : 03.04.2012 relied upon by the respondent is concocted,

manipulated, bogus and the computer generated print out is not genuine certificate. The discrepancies as appearing on the face of it is

referred to contend that the said manipulations itself would indicate that it is bogus. The said forged computer print out caste certificate

is relied upon to file the nomination as a candidate belonging to ‘Budaga’ Jangama (SC). It is contended that the respondent No.1

belongs to ‘Byragi’ community which is entered in the school records. ‘Byragi’ is not a Scheduled Caste but is Backward Category I.

5. The further contention is that the respondent No.1 hails from K.R.Puram, Bengaluru and has a house in Ramamurthynagar

but is presently claiming to belong to Maraheru Kottur village. There are no persons belonging to ‘Budaga’ Jangama in Kolar District.

The custom, tradition and religious practices of ‘Byragi’ and ‘Jangala’ community is entirely different from that of Budaga (Beda)

Jangama caste.

6. The petitioner contends that he brought the same to the notice of the Returning Officer during the scrutiny of nomination

papers on 18.04.2013 but, the same was disregarded. In the year 2008 also, the respondent No.1 had made an application for issuing

caste certificate as ‘Budaga’ Jangama. The Tahsildar, Mulbagal taluk issued the endorsement dated : 4.4.2008 and rejected the

application of the respondent No.1. The District application dated of the Caste Verification committee headed by the Deputy

Commissioner, Kolar District by its order dated 12.04.2008 rejected the claim of the respondent No.1 and his uncle Sri Gangireddy

holding that they belong to ‘Byragi’ community. The respondent No.1 filed W.P.No.5932/2008 challenging the endorsement dated

04.04.2008 without disclosing about the order passed by the District Caste Verification Committee and in that light managed to obtain

an order dated 12.09.2008 reserving liberty to prefer an appeal under the Scheduled Caste/Scheduled Tribes and Other Backward

Class (Reservation of Appointment) Act, 1990 (‘the Act’ for short). The petitioner however did not file any other proceeding.

7. When this was the position, one Sri Amarnath had applied seeking information about the caste of respondent No.1 and an

endorsement dated 29.09.2011 was issued to him by the Tahsildar stating that no caste certificate was issued to Respondent No.1.

Subsequently on the complaint lodged by one Sri Venkatachalapathy the Tahsildar after conducting detailed enquiry has arrived at the

conclusion that no such caste certificate was issued from his office and the same is a created document. Accordingly, an endorsement

dated 15.09.2012 was issued directing respondent No.1 not to make use of the caste certificate. Despite the same, the respondent No.1

has been using the concocted caste certificate. One Muralidhar had brought this fact to the notice of the Tahsildar and the Tahsildar

issued an endorsement dated 14.03.2013 to Sri Muralidhar stating that the computer generated caste certificate dated 26.11.2010 and

03.04.2012 being relied by Respondent No.1 were concocted.

8. It is contended that on 13.04.2013 an FIR has been registered by the Mulbagal Police in Crime No. 149/2013 based on the

complaint of the Tahsildar Mulbagal Taluk against one Sri.Srinivas M who was working as a clerk in the office of the Tahsildar, for

creating false certificate. The said Sri.Srinivas was accordingly suspended. The respondent No.1 however managed to stall the

proceedings being initiated against him also by filing W.P.No.13679/2013 and W.P.No.17122/2013. The petitioner further referring to the

manner in which the respondent No.1 has been making use of the false caste certificate dated 03.04.2012 and in at background the

nomination being accepted, has sought for the prayer in this petition as noticed.

9. The respondent No.1 has filed a detailed written statement disputing the case put forth by the petitioner. He contends that he

had filed his nomination to both No.145 Mulbagal constituency and No.146 KGF constituency both of which are reserved for SC and his

nominations were accepted. However, he withdrew the nomination from KGF constituency and contested in Mulbagal constituency after

it was accepted. The respondent No.1 contends that he submitted an application dated 04.04.2008 and the Tahsildar on receipt issued

an endorsement rejecting the application. The Caste Verification Committee through the order dated 12.04.2008 had also rejected the

claim. He however contends that the rejection thus made was for non-production of sufficient documents to substantiate his claim and in

that view though the W.P.No.5932/2008 was disposed of reserving liberty to file an appeal, he did not choose to file the appeal as at

that point he did not possess sufficient material to substantiate his claim. Instead of preferring an appeal he contends that a fresh

application was made before the Tahsildar for issue of Budaga Jangama caste certificate by enclosing the necessary documents. The

same was forwarded to the Deputy Commissioner who after receipt of the letter dated 01.06.2010 from the Tahsildar directed the

Tahsildar to take action as per law and also as per the Circular dated 16.03.2008. Another Circular dated 17.07.2010 was also issued

by the Deputy Commissioner relating to issue of caste certificate.

10. The respondent No.1 contends that a caste certificate was issued on 26.11.2010, but strangely the Tahsildar had taken a

stand that he never issued the caste certificate. The respondent No.1 alleges that the Tahsildar who was hand in glove with the political

opponents had removed the entire file relating to issue of caste certificate dated 26.11.2010. In that view, he once again made an

application dated 02.01.2012 before the Deputy Commissioner to grant the caste certificate by producing supporting documents. The

Deputy Commissioner after receipt of the application forwarded the same to the Tahsildar vide letter dated 20.01.2012. The Tahsildar

had thereafter submitted the detailed report dated 02.03.2012 recommending for issue of caste certificate. One more report dated

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19.03.2012 was made recommending issue of caste certificate. The Deputy Commissioner after receipt of recommendation has passed

an order dated 24.03.2012 directing the Tahsildar to issue caste certificate in accordance with law.

11. It is further contended by respondent No.1 that the Tahsildar after receipt of the order dated 24.03.2012 had passed an

order dated 27.03.2012 classifying the petitioner as Budaga Jangama. It is contended that the Tahsildar had also made an entry in the

register maintained in his office and a caste certificate dated 03.04.2013 came to be issued in favour of respondent No.1. Hence it is

contended that the allegation of the petitioner that it is a fabricated document is unfounded.

12. It is also contended that immediately after he became aware of the entries in the column of the school records showing as

‘Byragi’ community, he made representation to the Head Master and also the Block Education Officer to rectify the caste as Budaga

Jangama. Since the representation was turned down, the respondent No.1 filed a suit in O.S.No.107/2012 before the Civil Court for

rectification of the entries. In the above background the respondent No.1 seeks to justify the caste certificate obtained by him and further

seeks to contend that he belongs to Budaga Jangama caste and in that light contends that the acceptance of his nomination from the

SC reserved constituency is in accordance with law. He therefore seeks for dismissal of the petition.

13. The respondent No.2 who is the brother of respondent No.1 has filed a separate written statement denying the contents in

the petition and seeking to justify that they belong to Budaga Jangama caste.

14. In the light of the rival pleadings of the parties, the following issues are framed for consideration:

ISSUES

“1. Does the petitioner prove that the first respondent belongs to ‘Byragi’ Caste?

2. Does the petitioner prove that the caste certificate dated 03.04.2012 produced along with the nomination form, by the first

respondent as belonging to Budaga Jangama caste is concocted and obtained by playing fraud?

3. Does the petitioner therefore prove that the first respondent was not qualified to contest from No.145 Mulbagal Assembly

Constituency reserved for Schedule Caste?

4. Does the first respondent prove that he belongs to Budaga Jangama (SC) and was entitled to contest from reserved

constituency?

5. Does the petitioner prove that the acceptance of the nomination of the first and second respondents for the reserved

constituency is illegal and has materially affected the election result?

6. Does the petitioner prove that the voters of the constituency had knowledge that the first respondent does not belong to

schedule caste and the votes cast in his favour are void?

7. If so, does the petitioner prove that the votes secured by the first respondent are to be treated as ‘thrown away’ and the

petitioner is entitled to be declared elected?

8. Does the petitioner establish that this Court should penalize the first and second respondent as per Sec.125-A of the

Representation of People Act?

9. What order? ”

15. In order to discharge the burden cast on the parties by the above noted issues, the petitioner examined himself as PW.1 and

the witnesses as PW.2 to PW.11 and got marked the documents at Exhs.P1 to P99. The respondent No.1 on the other hand got himself

examined as RW.2 and the witnesses as RW.2 to RW.9 and got marked the documents at Exhs. R1 to R70. None of the other

respondents including the respondent No.2 have chosen to tender evidence.

16. In the background of the averments made, evidence tendered and the materials relied, I have extensively heard Smt.Pramila

Nesargi, learned senior counsel for the petitioner, Sri Ashok Haranahalli, learned senior counsel for respondent No.1,

Sri G.Krishnamurthy, learned senior counsel for respondent No.12 and Sri N.S.Seshadri, learned counsel for respondent No.2.

17. Taking note of the nature of the contentions as put forth and keeping in view that the issue herein relates to the social status

as claimed by respondent No.1 and that he has taken advantage of the same, the learned senior counsel for the petitioner has relied on

the decision in the case of Kumari Madhuri Patil and another vs. Addl. Commissioner, Tribal Development and others (AIR 1995 SC 94)

wherein the Hon'ble Supreme Court has laid down the guidelines which is required to be followed in considering the caste status. The

application for grant of social status certificate is to be made to the Revenue Sub-divisional Office and the Deputy Collector or Deputy

Commissioner and the certificate shall be issued by Such Officer rather than the Officer, Taluk or Mandal level. The parent, guardian or

the candidate shall file an affidavit duly attested with particulars of castes, sub-castes etc. The State Government should constitute a

committee and each Directorate should constitute a Vigilance Cell consisting of Senior Deputy Superintendent of Police and such

number of Police Inspectors to investigate into the social status of the claims. The method to be followed is also indicated. The Inspector

should go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to

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the town or city the place from which he originally hailed from. The Vigilance Officer should personally verify and collect all the facts of

the social status claimed by the candidate or the parents or guardian as the case may be. He should also examine the school records,

birth registration if any. He should examine the parent, guardian or the candidate in relation to their caste etc or such other persons who

have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as

envisaged in the proforma. The peculiar enthropological and ethnological trades, deity, rituals, customs, mode of marriage, death

ceremonies, method of burial of dead bodies etc should be taken note. In that light the stringent guidelines laid down to recognize the

caste status is emphasized and the manner it is to be established.

18. The case of Director of Tribal Welfare, Government of A.P. vs. Laveti Giri and another [(1995)4 SCC 32] wherein it is held

that the burden of proving the genuineness of the caste certificate and the social status is always on the person who profess it to seek

constitutional socio-economic advantages is relied on by the learned Senior Counsel for the petitioner. It is also held therein that it is no

part of the duty of the State to disprove or otherwise. The very procedure as contemplated in the case of Madhuri Patil has been

reiterated therein for the purpose of consideration of the social status. In that background learned Senior Counsel for petitioner also

relied on the case in Punit Rai vs. Dinesh Chaudhary [(2003)8 SCC 204] wherein it is held that when the initial burden is discharged by

the election petitioner, the onus would shift on the respondent to prove his case which is within his special knowledge. If the respondent

fails to prove the special knowledge by producing the best evidence, an adverse inference could be drawn. Hence it is contended that

heavy burden rests on the respondent No.1 to prove the social status of the caste he professes.

19. The learned senior counsel for respondent No.12 has also relied on the very decision in the case of Punit Rai -vs- Dinesh

Chaudhary (AIR 2003 SC 4355)- with emphasis to the portion wherein an earlier decision is referred and held that the party upon whom

the burden lies to prove the fact, but fails to discharge the onus, it is not open for him to bank upon the plea of non examination of

witness by the other party. Such party cannot be permitted to derive strength from the weakness of the case of the other party. In the

facts therein it was found that the onus to prove the facts within the special knowledge of the respondent No.1 therein had not been

discharged. Accordingly appeal was allowed and the election was set aside. He has also relied on the case of Addagada Raghavamma

and another -vs- Addagada Chenchamma and another (AIR 1964 SC 136) - wherein it is enunciated that there is an essential distinction

between burden of proof and onus of proof. Burden of proof lies upon the person who has to prove a fact and it never shifts, but the

onus of proof shifts. In the case referred, it was held that the burden of proof lay upon the plaintiff to establish the factum of adoption

and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the

circumstance of a particular case may shift the onus of proof. Such a shifting of onus is a continuous process of evaluation of evidence.

It is therefore contended that the factum of his caste and thereby the social status which he seeks to take advantage is to be always

established by the respondent No.1 and the burden will always remain on him to prove the same.

20. The learned senior counsel for the respondent No.1 on the other hand has relied on the case of Shiv Charan Singh -vs-

Chandra Bhan Singh and others [(1988) 2 SCC 12] - wherein it is held that though the Act has been amended several times the

Parliament has not altered the burden of proof placed on the election petitioner under Section 100 (1) (d) of the Act. It is not possible to

avoid the election of the returned candidate on speculations or conjectures relating to the manner in which the wasted votes would have

been distributed. In the absence of positive proof of material effect on the result of the election of the returned candidate, the election

must be allowed to stand and the Court should not interfere with the election on speculation and conjectures. The case of R.P.Moidutty -

vs- P.T.Kunju Mohammad and another [(2000) 1 SCC 481] - wherein it is held that it is basic to the law of elections and election petition

that in a democracy, the mandate of the people expressed at the hustings must prevail and be respected by the Courts and the election

of a successful candidate is not to be set aside lightly. A heavy burden lies on the election petitioner to prove corrupt practice. The onus

of proof is not discharged merely on preponderance of probabilities. The standard of proof required is akin to that of proving a criminal or

a quasi criminal charge. Clear cut evidence, wholly credible and reliable is needed to prove beyond doubt the charge of corrupt practice.

In that light the learned senior counsel contends that the burden is heavy on the petitioner.

21. From a perusal of the above decisions, there can be no dispute with regard to the position that the Election petitioner having

approached this Court putting forth certain contentions, the initial burden would be on him to discharge. Once the initial burden is

discharged, the onus would shift on the respondents. While taking note of these facts what is also to be kept in view is that in an election

petition wherein the corrupt practice is alleged, there cannot be vague charges and the burden is extremely heavy on the petitioner. In

the instant case, the contention however put forth on behalf of the petitioner is that as per the very school records of the respondent

No.1, his caste is shown as ‘Byragi’ as he belongs to that caste and when that has stood the test of time the respondent No.1 cannot

claim a social status to take advantage of the same. The respondent on the other hand has contended that such entry in the school

records is erroneously made and in that view he asserts that he belongs to Budaga Jangama and claims a social status which requires

strong evidence. Hence if the petitioner brings home the evidence to show that the school records indicate that the respondent No.1 is

shown as ‘Byragi’ at an undisputed point in time, the pendulum would swing towards respondent No.1 to conclusively prove that he

actually is of Budaga Jangama caste and such entry in the school record is contrary to the factual position.

22. In the light of the said contentions, the issue No.1 casts the initial burden in that manner for the petitioner to prove that the

first respondent belongs to ‘Byragi’ caste as is depicted in the school records as contended. In view of the assertion of respondent No.1

about his caste to claim the social status, issue No.4 casts the burden on the respondent No.1. Apart from the issues Nos.1 and 4

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therefore being intertwined, the other issues would become consequential even though they cast the burden relating to the caste

certificate as claimed and in that light the evidence as tendered is required to be taken note. If the initial burden is discharged by the

petitioner, the burden would be heavy on respondent No.1 as he claims benefit to a social status and take advantage of the same.

23. In the above noted circumstance, the petitioner having examined himself as PW-1 has stated with regard to the school

records pertaining to the respondent No.1 and the caste of the respondent No.1 being shown as ‘Byragi’. The documents at Ex.P-4 and

P-5, the admission register and Transfer Certificate are marked. The documents at Exhs.P-8, P-9 and 9(a) are also marked.

Sri K.M.Venkateshappa, Vice Principal, Nehru Kennedy High School, Byrapur is examined as PW.5. The Admission Register for the

period 1986 to 1992 is marked as Ex.P92. The Register for the period 1990-1995 is marked as Exh.P-93. The entry contained at

Sl.No.4 relating to respondent No.1 for the academic year 1992-93 is marked as Ex.93(a). As per the entry, his caste is shown as

‘Byragi’. The name of respondent No.2 is shown at Sl.No.3 for the academic year 1989-90 and is marked as Ex.P.92(a). His caste is

also indicated as ‘Byragi’ and that he joined the school for the VIII Std during the said years. The Transfer Certificate marked as Ex.P5 is

also accepted by PW-5, as having been issued from the said Nehru Kennedy High school. The document at Ex.P8 is also accepted as

the list issued from the said school. It is elicited in the cross examination that the entry is not made at the instance of the parents, but

was based on the information available in the Transfer Certificate of the VII Std. It is further elicited from the said witness about the

customs and the dress being worn by them and the persons belonging to Budaga Jangama caste follow the same and that persons

belonging to Budaga Jangama caste have also secured admission in the school.

24. Sri Devaraju N, the Block Education Officer was examined as PW.7. He has also referred to the documents marked as

Ex.P8 being the list of students studied from Kottur village during the period 1977 to 31.03.1993. The name of the first respondent is

referred at Sl.No.15 and that of respondent No.2 at Sl. No.6. The document at Ex.P4, the admission extract relating to the first

respondent is also referred and the caste shown as ‘Byragi’ is stated by the witness. The admission register at Ex.P35 relating to Nehru

Kennedy School indicating the seal of the Government Kannada Lower Primary School, Kottur is referred. The Transfer Certificate at

Ex.P94 is shown to the witness and marked after overruling the objections. The Transfer Certificate is dated 22.07.1991 and the Caste

is indicated as ‘Byragi’. The said witness has been subjected to cross examination and he has stated that he is not in a position to say

as to on what basis the entries have been made in Ex.P8 and he cannot say who has provided the details for making the entry in the

document at Ex.P8. It has been suggested to him that the Ex.P8 is not genuine as the original is not available to which he has stated

that it could be true. He has also stated that he cannot say the basis on which the caste as ‘Byragi’ has been entered either in Ex.P4 or

in Ex.P35.

25. The evidence as tendered through PW.1, PW.5, PW.7 and the documents marked and referred to above would indicate that

at an undisputed point of time the school records indicated the name of respondents No.1 and 2 and their caste was depicted as

‘Byragi’. The learned senior counsel for the petitioner has relied on the decision in the case of Desh Raj vs Bodh Raj [(2008)2 SCC 186]

wherein it is held that entries in the admission register made a long period earlier has evidentiary value and documents more than 30

years old attracted presumption as to its validity. In so far as the caste certificate issued in the said case by the Executive Magistrate is

concerned, it was observed that such caste certificates are not given after thorough investigation. It is also held that, when the primary

evidence regarding caste is led by the appellant and the attempt of the respondent is to claim to be a Schedule Caste, the caste

certificate issued by the Executive Magistrate cannot be taken as evidence to prove the caste of the respondent.

26. Reliance is also placed by the learned senior counsel for petitioner, on the decision in the case of Prabhudev Mallikarjunaiah

vs. Ramachandra (E.P.No.3/1991, DD 27.10.1994) - herein it is held that even assuming that the certificate is issued by a competent

officer, the Returning Officer was not precluded from not relying upon it if there was other material to indicate that the petitioner did not

belong to Beda Jangam . In that case the extract of the admission register and the affidavit of the sister which indicated that the

petitioner belonged to Jangam Lingayath and not Beda Jangam caste was available. In that view it was held that the Returning Officer

need not have relied on the caste certificate. The contention raised therein that the nomination paper was accepted in the earlier

election was noted and it was held that when there were other documents, the mere fact that the nomination had been accepted in the

earlier election cannot be a ground to hold that he belong to Beda Jangama caste.The decision reported in (1996) 4 SCC 431 is relied

to show that the judgment in E.P.No. 3/1991 was upheld by the Hon’ble Supreme Court and to contend that the entries in the school

records would have evidentiary value and more so when such entries are more than 30 years old, the presumption would arise in law

and as such the caste as indicated therein should be conclusively accepted by this Court.

27. The learned senior counsel for respondent No.1 on the other hand would refer to the decisions in the case of M.Chandra -

vs- M.Thangamuthu and another – [(2010) 9 SCC 712] wherein it is held that the reliance placed on the birth records, entries in the

telephone application and voters list cannot be the sole ground for proving that the appellant therein was professing Christianity. It is

observed in the said case that such records could have been made by people other than the person concerned. It was further observed

that the entry in the birth register in that case was not made by the parents but by the Village head nurse. It is also held therein that in

an election petition the facts presented must be clear and when people have elected their representative it cannot be taken lightly. The

person who files the election petition should have a definite case to prove that the election was illegal. Therefore the burden of proof

shall lie on the petitioner. Even if the allegation is not of corrupt practice, the same will not be lesser in seriousness. Hence the burden of

proof is on the election petitioner to prove the charges beyond reasonable doubt.

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28. The learned senior counsel for the respondent No.1 has further relied on the case of Birad Mal Singhvi -vs- Anand Purohit

[1988 (Supp) SCC 604], wherein it is stated that if the entry regarding date of birth in a school register is made on the information given

by the parents or someone having special knowledge of the fact, the same would have probative value but if it is given by a stranger

such entry will have no evidentiary value. The case of Sushil Kumar –vs Rakesh Kumar [(2003) 8 SCC 673], - wherein, with reference to

Sec.35 of the Evidence Act it is held that a register maintained in terms of a statute or by a statutory authority in regular course of

business alone would be a relevant fact and only if such vital evidence is produced, it would clinch the issue and the case of Jabar

Singh -vs- Dinesh and another, [(2010) 3 SCC 757], - wherein, in the facts arising in that case it was held that the entry of date of birth in

the admission form, the school records and transfer certificates did not satisfy the conditions laid down in Section 35 of the Evidence Act

as the entry was not in the public or official register, are relied upon.

29. That apart reliance is placed in the case of Babloo Pasi -vs- State of Jharkhand and another [(2008) 13 SCC 133], - wherein

it is held that to render a document admissible under Section three conditions have to be satisfied, namely; (i) entry that is relied on

must be one in a public or other official book, register or record; (ii) it must be a entry stating a fact in issue or a relevant fact, and (iii) it

must be made by a public servant in discharge of his official duties, or in performance of his duty especially enjoined by law. An entry

relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the

age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on

which the age was recorded. The said decision is cited to contend that the reliance in the school registers can be placed only if such

entry is made based on the details furnished by the parents and the details as entered on the information furnished by strangers cannot

be the basis. It is also contended that the original registers are not produced and the same not being public documents cannot be relied

upon.

30. Having taken note of the decisions cited by either side, the fact situation herein is that the school records produced would

indicate that they are of the periods from 1977 onwards and the fact that the respondents No.1 and 2 had studied in both the schools

referred is not in dispute. Though in the cross examination of PW.5 it is attempted to extract that the entry of the caste is not made

based on the information furnished by the parents, the witness has stated that the entry is based on the Transfer Certificate issued from

the earlier school. In that regard, when PW.7 has referred to that aspect there is no detailed cross examination on that aspect.

31. Be that as it may, when the entries are contained therein and even if certain suggestions were put to PW.5 and PW.7 in an

attempt to indicate that they have no knowledge as to on what basis the caste of respondent No.1 and 2 has been entered and

obviously when the admission of respondents No.1 and 2 was to the primary school when the first admission was made to the

Government School and was for the VII Std in the Nehru Kennedy school, the respondent No.1 would not be aware of the details and it

should be their elders unless the contrary is proved. Therefore, if the respondent No.1 was to contend that one entry contained in such a

document maintained at an undisputed point in time was made without basis and is an error, the respondent No.1 ought to have

examined such reliable witness to speak about the fact as to who had secured and admitted the respondents No.1 and 2 to school and

what was the nature of the information that was furnished. Without doing so, a dispute cannot be raised all of a sudden, out of the blue

when it becomes inconvenient nor does any suggestions put to the petitioner’s witness be material.

32. That apart though a contention is raised that the documents as marked cannot be relied on as it is not a public document

and the original had not been produced by placing reliance on the decisions as noted above, the contention to that effect cannot be

accepted in the present context in as much as the very averment as contained in the written statement of respondent No.1 and the

plaint in the admitted suit filed by respondent No.1 in O.S.No.107/2012 at Ex.P42 would indicate the fact that such documents are

maintained in the schools concerned and the entries are made with regard to the caste as contained therein though it is alleged that it is

entered wrongly. In fact, it is the admitted position and the respondent No.1 in fact was making attempts to secure corrections of the

same and had failed in such attempt as seen from the judgment passed in O.S.No.107/2012 at Ex.P45. In the above circumstance,

keeping in view the reasons for which the petitioner had contended that respondent No.1 is a person belonging to ‘Byragi’ community

and that the entries to such effect has been made in the school records has been satisfactorily brought on record, the petitioner has

discharged the burden in proving the issue raised.

33. The learned senior counsel for the respondent No.1, by relying on the decision in the case of Laxman Siddappa Naik -vs-

Kattimani Chandappa Jampanna and others (AIR 1968 SC 929) - wherein it is held that the ordinary rule is that the person, who as a

plaintiff, asserts a fact, has to prove it. The election petitioner therein was to prove that he was a Bedar and that would have proved that

he was not a Nayaka. To establish the fact, evidence was required to show the characteristics such as custom in marriage, births,

deaths etc to distinguish the two. It is held that a bare assertion that the appellant is a Bedar is not sufficient to displace the acceptance

of the nomination paper or the claim of the appellant that he is a Nayaka. In that view it is contended that the petitioner has not tendered

evidence to prove the customs and traditions followed by ‘Byragi’ and to establish that the respondent No.1 was following the same. He

therefore contends that the petitioner has failed to prove that respondent No.1 belongs to ‘Byragi’ caste. The said decision is not of

assistance in the instant case since as already noticed the nature of contention as put forth relating to school records, based on which it

was alleged that respondent No.1 is ‘Byragi’, it has been proved with acceptable evidence and the burden is discharged. In that view,

the issue No.1 is to be held in the affirmative in favour of the petitioner and the burden is shifted on the respondent No.1 to establish that

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he actually belongs to Budaga Jangama based on the direct evidence before this Court without the aid of the caste certificate which is in

the centre of dispute.

34. On that aspect, the respondent No.1 has examined himself as RW.1 and has stated that he belongs to Budagajangama

community and that the avocation of the parents was roaming from village to village by playing the musical instrument called the Budaga

but they were wrongly called as Sanyasi, Jangalu etc and the same has been entered in the sale deeds due to illiteracy and ignorance.

He states that his parents have never affixed their signatures in the school records and refers to the tradition and custom as also the

religious practices followed by udagajangama community. In that background the respondent No.1 refers to the Tahsildar having taken

note of the custom being followed and in that light having issued the caste certificate. The respondent No.1 in order to contend that

persons belonging to Budagajangama caste are residing in Kolar District has referred to the contents in Kolar Gazetteer which is

marked as Ex.R.1.

35. Essentially in order to state about the customs and traditions followed by persons belonging to Budagajangama and in that

light having relied on the alleged Mahazar as per Ex.R26 in support of the caste certificate, the very persons who claim to have affixed

their signature as witnesses to the said mahazar (Ex.R26) are examined as witnesses to state about the customs and traditions followed

by persons belonging to Budagajangama, before this Court. examined - RW.3. Sri M.B.Anwar is He states that respondent No.1 belongs

to Budagajangama caste and that he and his elders would normally knot their hair at the top and wear a head scarf. They would also

wear a bead chain and carry an instrument called Budaga. They would visit the houses seeking alms and predict the future of the

people. They would thus collect money, food grains etc., and make a living. The custom followed in their marriages is stated by him.

Another witness Sri Mallikarjuna Reddy is examined as RW.4. He claims to be a member of Grama Panchayat and is also a signatory to

the alleged Mahazar (Ex.R-26). He would also state that the respondent No.1 belongs to Budagajangama caste and the custom that is

followed by them and he states that he had mentioned to the Tahsildar about such custom being followed by respondent No.1 which is

the same as being followed by persons belonging to Budagajangama. Sri M.Venkataramana who is another witness to the alleged

mahazar (Ex.R-26) is examined as RW.5. The said witness has also stated with regard to the dressing pattern of the persons belonging

to Budagajangama, their nature of worship and the practice that is followed in performing the marriages and also in the funeral etc.

36. The learned senior counsel for the respondent No.1 while referring to their evidence has contended that the customs and

traditions of Budga Jangama being followed and as referred to in the evidence has not been disputed by the petitioner by cross

examining on that aspect and as such has relied on the decision in the case of Gian Chand and others -vs- State of Haryana [(2013)14

SCC 420], - wherein the effect of cross examination by putting the version to the witness and providing adequate opportunity to the

witness in the witness box to give full and proper explanation is emphasised and states that in the absence of cross examination the

statement of the witnesses is required to be accepted.

37. Taking into consideration such contention, at this stage itself it is to be noted that insofar as issue No.4 which is framed

herein and in that light the evidence tendered on the said issue by RWs.3, 4 and 5 if it is taken into consideration, at the outset it is seen

that none of the persons belong to the community regarding which a consideration is being made nor do they state about their expertise

to give such details. The manner in which they have stated with regard to the customs being followed though there is corroboration in

their version, keeping in view their age, nature of profession and there being no material in the first instance to indicate that apart from

the respondents No.1 and 2, Sri Kullayappa and Sri Gangireddy who claim to belong to that community, whether there are other

persons residing in the village. The evidence tendered by the said witnesses appear to be as tutored witnesses and no reliance is

possible to be placed on their evidence even if there was no cross examination on that aspect as essentially it is seen that the cross

examination is concentrated on the claim made by them as mahazar witnesses.

38. Apart from the above noted witnesses one Sri Sheshappa is examined as RW.9. The said witness no doubt claims that he

belongs to Budaga Jangama and was the president of the Karnataka Rajya Budaga Jangama Kshemabhivruddhi Sangha. He states

that he knows respondent No.1 since the daughter of the said witness has married the brother of respondent No.1, Sri Prasanna Kumar.

In that view he states that respondent No. 1 belongs to Budaga Jangama community to which he belongs. The said witness also has

stated with regard to the tradition and custom followed by the Budaga Jangama community in the same manner as has been stated by

the other witnesses as referred to above. However, the said witness in his cross examination has admitted that his caste is recorded as

'Bavacha' in the school records and the said caste belongs to Scheduled Tribe. He states that Bavacha and ‘Byragi’ are different castes

and in the modern society, there would be inter-caste marriages. In that view the marriage alone cannot be the basis that too when he

himself is not proved to be Budga Jangama. Though he denies the suggestion that he does not belong to Budaga Jangama caste,

except for his bald statement before the Court, no material whatsoever has been produced either with regard to the said witness

following the practices of Budaga Jangama caste more particularly when he admits that his school records indicate his caste as

'Bavacha'.

39. At this stage, having taken note of the decision in the case of Laveti Giri (supra), it is clear that the burden to prove is on the

person who seeks the social status and by professing it seeks constitutional socio-economic advantages. The burden is therefore heavy

on the respondent No.1 to establish not only that there are persons belonging to Budaga Jangama in Kolar district or even if he had

migrated from any other place he in fact belong to Budaga Jangama caste. The only document apart from the disputed caste certificates

on which reliance is placed by respondent No.1 is on Ex.R.1 viz., the Kolar Gazeteer. The learned senior counsel for the petitioner has

however relied on the decisions in the case of Dayaram vs. Sudhir Batham and others [(2012)1 SCC 333], wherein reference is made to

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the directions issued in Madhuri Patil’s case and it is observed that genuine candidates are denied the benefit for want of social status

certificate. Hence it is in that view reiterated that the guidelines issued by the Supreme Court are to be followed for determining the

caste status. Reliance is also placed on the case in Geeta vs. State of Madhya Pradesh and others [(2007)10 SCC 590]. In that case

where Anthropological Survey of India prepared by one Majumdar D.N. -'The Radical Basis of Indian Social Structure' was referred with

reference to the word "Majhi" and an attempt was made to show that in such situation the finding recorded by the High Level Committee

is erroneous, the same was not accepted by the Hon’ble Supreme Court as authenticated document and observed that no such reliance

can be placed for deciding the tribal status of the appellant therein. In that view the learned Senior Counsel contends that the reliance

as placed on the Gazetteer (Ex.R-1) cannot be accepted. Such reliance by itself would not be sufficient without there being any other

oral or documentary evidence to indicate that the forefathers of the respondent No.1 belonged to Budagajangama and that the

respondent No.1 is therefore belonging to Budagajangama.

40. The learned Senior Counsel for respondent No.1 has relied on the decision in the case of Anand –vs Committee for Scrutiny

and Verification of Tribe Claims and others [(2012) 1 SCC 113],- wherein it is stated that while applying the affinity test, which focuses

on the ethnological connections with the Scheduled Tribe, a cautious approach has to be adopted since with migrations, modernisation

and contact with other communities, these communities tend to develop and adopt new traits which may not essentially match with the

traditional characteristics of the Tribe. Hence it is held that affinity test may not be regarded as the litmus test but may be used to

corroborate the documentary evidence and should not be the sole criteria to reject the claim. Even if the said decision as relied by

learned senior counsel for respondent No.1 is kept in view and the cross examination of RW.1 wherein the learned senior counsel for

the petitioner has sought to bring out the fact that respondent No.1 is presently residing in Bengaluru and that he is leading a modern

life is taken into consideration, those aspects would have arisen as a secondary consideration if at the outset the respondent No.1 had

established that his forefathers belonged to the Budaga Jangama community and the change in respondent No.1 is due to economic

progress. In that regard, as noticed, apart from the oral evidence of RW-1 and RW-9 as tendered there is no other evidence on record

even to basically establish the fact that the forefathers of respondent No.1 were Budaga Jangama.

41. Even if the parents of the respondent No.1 were not alive any other elders of the family ought to have been examined and in

that regard there is no explanation whatsoever. Though Ex.R-1 is sought to be relied to contend that there are persons of Budaga

Jangama caste in Kolar District, not a single person who admittedly belongs to that community and resides in Kotthur of Malur has been

examined. The RW-9 who deposed claiming to be from Budaga Jangama Community is from Ramanagara. Despite the respondent

No.1 has sought to contend that his uncle Sri Kullayappa had contested as a SC candidate and was elected as a Panchayat member

and seeks to place strong reliance on the fact that the caste certificate at Ex.R-11 was issued to him and also issued to respondent No.2

who is his elder brother has not been challenged by filing objections, neither of them have entered the witness box to state with regard

to their affinity to the caste or to speak about their predecessors and the manner in which they were professing by following the

traditions and customs of the caste.

42. In fact, in the instant case, it is intriguing to notice that respondent No.2 who is a brother of respondent No.1, being a party to

the instant proceedings, having entered appearance through a counsel and participated in the proceedings has not chosen to tender

evidence nor has respondent No.1 chosen to secure him as a witness. In this regard it would be relevant to refer to the decision in the

case of Vidyadhar vs. ManikRao and another [(1999)3 SCC 573], – relied on by the learned Counsel for the petitioner, wherein it is held

that where a party to the suit does not appear in the witness box and state his own case on oath and does not offer himself to be cross

examined by the other side, a presumption would arise that the case set up by him is not correct. Though it is relied on by the learned

senior counsel for the petitioner only to contend that the case put forth on behalf of respondent No.2 to support the respondent No.1

cannot be accepted in the absence of the respondent No.2 not having entered the witness box, the said situation in fact in my view

should be held as adverse to the case of respondent No.1. Despite the learned senior counsel for the respondent No.1 himself relying

on the decision in the case of Ajai Verma -vs- Vijai Kumari – Privy Council (43 CWN 585), - wherein it is held that the opinions of

responsible members of the family as to the existence of such a custom, and the grounds of their opinion, though generally in the nature

of family tradition, are clearly admissible, no such attempt is made in the instant case and the evidence of RW-9 cannot be considered

to be the evidence of such nature and credibility.

43. In that light, though the respondent No.1 having not examined any person belonging to his family or the caste to state about

his caste and the genealogy, it is to be taken note that the petitioner on the other hand has examined one Sri Muralidhar as PW.8 who is

a SC person and has been opposing the claim of respondent No.1 to belong to SC and had thus filed application before the Tahsildar

seeking for particulars and to oppose the claim. Similarly one Sri M.Venkataramana has been examined as PW.9. The said person also

belongs to the SC. They have contended that the respondent No.1 is not a SC and since according to them a person not belonging to

their caste was taking away the benefit given under the Constitution, they had made efforts to complain to the competent authorities and

also to distribute pamphlets about the false claim of respondent No.1. Irrespective of the evidentiary value of the deposition of PWs 8

and 9, as already taken note except for seeking to rely on the Kolar Gazeteer at Ex.R.1, the caste certificates issued to him, his wife and

children and on Ex.R.11 the caste certificate of his uncle Sri Kullayappa, which are in dispute there is no concrete evidence to establish

that the respondent No.1 belongs to Budaga Jangama. Insofar as the caste certificate of respondent No.1 and his family members the

very manner in which it has been obtained is the disputed question and insofar as the caste certificate of Sri Kullayappa, as already

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noted, he has not entered the witness box nor has his caste certificate stood the test after judicial review as there was no challenge in

that regard to his election and it has not been tested. Hence, from the available material, the only irresistible conclusion that can be

drawn when no reliable evidence is placed before this Court to prove that he is a Budaga Jangama, is that the respondent No.1 is not a

person belonging to Budaga Jangama caste. Hence Issue No.4 is held in the negative against respondent No.1.

44. The next issue for consideration is with regard to the validity of the caste certificate. On that aspect though issue No.2 casts

the burden on the petitioner to prove that the caste certificate dated 03.04.2012 produced along with the nomination form by the first

respondent as belonging to Budaga jangama caste is concocted and obtained by playing fraud, keeping in view the nature of the

contentions urged and the material brought on record it would also boil down to take note at the outset the position as to whether a

second application by the petitioner would have been sustainable at all when the earlier application seeking for caste certificate

admittedly had been rejected and such order had attained finality. In that background the evidence available on record on that aspect is

necessary to be taken note.

45. The contention as put forth on behalf of the petitioner in that regard is that at an earlier point when the respondent No.1 had

made an application dated 04.04.2008 seeking issue of caste certificate as Budaga Jangama, an endorsement was issued to him

stating that there are no persons belonging to Budaga Jangama caste in Majera Kottur village. The validity of such endorsement

dated 04.04.2008 was considered by the District Caste Verification Committee on 12.04.2008 and it was held therein that the

respondent No.1 belongs to Byragi caste and the request for issue of SC certificate as Budaga Jangama is rejected. The said order has

remained undisturbed till today. The said factual aspect is not disputed inasmuch as the respondent No.1 in his objection statement has

also admitted the said position and has sought to explain that he did not choose to challenge the same as he did not have sufficient

material at that point and therefore he claims to have filed the subsequent application. The evidence to that effect is available through

the deposition of PWs.1, 2, 3 and 4. The endorsement dated 04.04.2008 is at Ex.P11. A perusal of the same would indicate that the

same is issued by PW.2 on 04.04.2008 wherein it is categorically stated that the respondent No.1 has made the application dated:

04.04.2008 seeking issue of caste certificate and the PW.2 Smt. Harishilpa who was the then Tahsildar having verified the application

and having perused the report of the Revenue Inspector has taken into consideration the report wherein it is stated that respondent

No.1 belongs to Byragi community. It is also observed therein that the school records of respondent No.1 shows that he belongs to

Byragi community. The conclusion is that even though it is stated that persons are engaged in fortune telling, the instrument known as

Budaga is not used as they do not belong to Budaga Jangama caste and the persons belonging to that caste are not residing in the

village.

46. The document at Ex.P12 is the proceedings of the Caste Verification Committee dated 12.04.2008 while taking note of the

claim made by Sri Gangireddy and the respondent No.1. A detailed consideration is made keeping in view the notification

dated 07.09.2004 under Article 16(4) of the Constitution and after referring to the school records in the course of the enquiry has arrived

at the conclusion that the respondent No.1 and Sri Gangireddy belong to the Byragi caste. The respondent No.1 though filed the writ

petition in W.P.No.5932/2008, what is assailed there in is only the endorsement dated 04.04.2008 (Ex.P11) and not the order dated

12.04.2008 of the District Caste- Verification Committee (Ex.P12). The said writ petition was disposed of on 12.09.2008, a copy of which

is at Ex.P13. A perusal of the same would indicate that the petition is disposed of reserving liberty to the respondent No.1 herein to

question the correctness of the endorsement dated 04.04.2008 under Section 3(b) of the Act, 1990. Though such liberty was reserved

to assail the endorsement, the correctness of the endorsement dated 04.04.2008 (Ex.P11) had already been considered by the District

Caste Verification Committee as per Ex.P12 and the same had not been brought on record in the writ petition. Be that as it may, the

rejection of the application has not been assailed before any forum nor was the conclusion of the Caste Verification Committee dated

12.04.2008 assailed, as such the same had attained finality.

47. When this was the position, one Sri N.M.Amarnath had filed an application under the Right to Information Act seeking

particulars as to whether any caste certificate is issued to respondent No.1 and had accordingly sought for a copy, if the same had been

issued. PW.3 who was the Tahsildar at that point in time has issued the endorsement dated 29.09.2011 as at Ex.P14 indicating that the

verification of the records for the periods 02.04.2008 to 03.09.2011 would disclose that no caste certificate has been issued to

respondent No.1 as Budaga Jangama. In that background, the said Sri Gangireddy and the respondent No.1 herein filed a suit in

O.S.No.107/2012, a copy of the plaint in the said suit is marked at Ex.P42. Though initially a declaration of the caste as Budaga

Jangama was sought, the same has been amended subsequently for a direction to the defendants to rectify the school records and

indicate the caste as Budaga Jangama in place of Byragi. It is relevant to note that in the plaint, the respondent No.1 herein as plaintiff

No.2 has not stated about the caste certificate for the purpose of election as applied but he has averred that it is required for his

employment as he is unemployed and is searching for job. This is referred by me only to indicate the manner in which respondent No.1

was making attempt to secure a caste certificate in any manner whatsoever.

48. The said suit has been dismissed by the judgment dated 27.09.2013 which is marked as Ex.P45. It is no doubt true the Civil

Court has taken note of the pendency of the issue relating to caste certificate before this Court in this petition. However, the issues as

framed for consideration therein would indicate that the plaintiffs therein viz., respondent No.1 and Sri Gangireddy had failed to prove

that they belonged to Budaga jangama caste and also had failed to prove that the school authorities had wrongly mentioned the caste

as Byragi. When a conclusive finding had been recorded about the correctness of the entry in the school records and a rectification was

declined, the same is to be taken note herein. Therefore, the said conclusion and the documents as noted above itself would indicate

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that the respondent No.1 could not have filed one more application unless the findings of the District Caste Verification Committee and

the Civil Court was set aside in an appropriate proceedings in accordance with law.

49. The learned senior counsel for respondent No.1 no doubt referred to the cross examination of Sri D.V.Ramamurthy (PW-4),

the then Tahsildar wherein he has admitted that if the first application has been rejected only on the ground that the same is not

supported by documents, a fresh application could be received if such application is accompanied by documents. In that view it is

contended by the learned senior counsel for respondent No.1 that the second application made by respondent No.1 in the year 2012

based on which it is claimed that the caste certificate dated 03.04.2012 is issued is justified. However, what is noticed is that PW.4 has

also qualified his statement by further indicating that at the first time if it is rejected stating that he does not belong to that caste, a fresh

application will not be received.

50. The learned senior counsel for respondent No.1 has also relied on the decision in the case of C.M.Armugam-vs-

S. Rajgopal and others [(1976) 1 SCC 863], - wherein it is held that it is true that the Court had held in the earlier case that on

embracing Christianity, the respondent therein had ceased to be a member of Adi Dravida caste in the case relating to the earlier

election on the basis of the evidence led therein and that cannot be resjudicata in the present case where fresh evidence has been

adduced on behalf of all the parties and the parties are not the same, to contend that the earlier consideration will not be a bar. The

facts therein are not akin to the facts herein and it is observed therein that the parties are also not the same. The decision in the case of

Ram Chandra Singh –vs Savitri Devi and others [(2003) 8 SCC 319], - wherein reference is made to an earlier case of the Supreme

Court in which it is held that the principle of finality of litigation cannot be pressed to the extent of such absurdity that it becomes an

engine of fraud. It is held that the Courts of law are meant for imparting justice between the parties. The said decision is also not of

assistance.

51. In the instant case as already noticed, through the documents at Exhs.P11 and P12 while rejecting the application dated

04.04.2008 filed by respondent No.1 the application is not just rejected for want of documents in support of the same but a detailed

consideration of the factual report of the Revenue Inspector, the school records and the position in the village is taken into consideration

and a categorical finding is rendered that the respondent No.1 belongs to Byragi community and that there are no persons belonging to

Budaga Jangama in Kottur village. In such situation unless such finding even if erroneous was rectified in an appropriate proceeding,

the subsequent application even if filed a consideration thereof would be hit by the principles of res-judicata. Therefore a subsequent

application could not have been filed. Hence apart from the fact as to whether such application was actually filed, considered and orders

passed, even if it was filed, any order would be without the force of law and the caste certificate even if issued cannot be recognised as

a valid document when earlier proceedings are suppressed.

52. In that regard it is relevant to take note of the decisions relied upon by the learned senior counsel for the petitioner in the

case of Chengalvaraya Naidu (Dead) by LRs vs. Jagannath (dead) by Lrs and others [(1994)1 SCC 1],- wherein the Hon'ble Supreme

Court has held that even a decree obtained by nondisclosure of the document amounted to fraud on oath and the decree is liable to be

set aside. It is held a fraud is an act of deliberate deception with design of securing something by taking unfair advantage of another. It

is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage. A litigant who approaches the Court is

bound to produce all documents and if any documents are withheld, he would be guilty of playing fraud. Reliance is also placed on the

case of Bhaurao Dagdu Paralkar vs. State of Maharashtra and others [(2005)7 SCC 605],- wherein it is held that fraud and collusion

vitiate even the most solemn proceedings in any civilized system of jurisprudence. Fraud and justice never dwell together. A collusion or

conspiracy with a view to deprive the rights of others would render the transaction void ab initio. Fraud and deception are synonymous.

Fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any

equitable doctrine including resjudicata.

53. In that background, firstly even if such application had been filed, no other additional material to support such application for

a consideration to be made in that regard has been relied upon nor is there any change in circumstance than what it was earlier pointed

out inasmuch as the school records etc., had all remained the same and there was no scope for filing another application.

54. The Tahsildars who had worked at Mulbagal during the periods 26.11.2007 to 22.08.2009, 03.09.2009 to 12.08.2012 and

06.02.2012 to 22.04.2013 have been examined as PWs.2, 3 and 4. Insofar as PW.2 the witness has stated with regard to the rejection

of the earlier application and no caste certificate being issued. Insofar as PW.3 he has stated that he was authorised to issue caste

certificate only upto 03.12.2011 and thereafter PW.4 had assumed office on 06.02.2012. The respondent No.1 is seeking to rely on the

document at Ex.R.9, an order alleged to have been passed by Sri Jayamadhava the then Tahsildar who is presently working as the

Land Acquisition Officer, Ramanagar and is examined as PW.3. The said order bearing No.130/11-12 dated 27.03.2012 is to the effect

that the caste certificate could be issued as Budagajangama to respondent No.1. In the cross examination of PW.2, though the order is

confronted, he has disputed about passing such order. Though the document at Ex.R.8 was shown to him about the order

dated 13.07.2005, he has stated that since the Grade II Tahsildar had already taken over he did not take any further action pursuant to

the letter dated 24.03.2012 received from the Deputy Commissioner. The order dated 27.03.2012 (Ex.R.9) though shown to him and

marked, he has categorically stated that though he sees one signature as the original signature of the document, the other signature

shown in the document is for attestation of the copy. He has stated that the signatures are not his and the suggestion to that effect has

also been denied. He has categorically stated that the order at Ex.R.9 shown to him is seen by him for the first time in the box. He has

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categorically denied that he has passed the order at Ex.R.9. He has stated that he has no objection even if the said signature is referred

to expert opinion.

55. In the background of the said evidence, a perusal of Ex.R.9 would disclose that even if the same is produced as a copy

secured from the records, when such order is stated to have not been passed at all by PW.3 who is alleged to be its author and when

the original is not available, the same cannot be relied upon. The signature as contained in the document has not been admitted by

PW.3 and no steps whatsoever has been taken by the respondent No.1 to establish the genuineness of the signature as belonging to

that of PW.3. If that be the position, the entry as contained in the register at Ex.P59 as an entry for having issued the caste certificate to

the first respondent also cannot be relied upon. The process for such issue of caste certificate is based on the alleged mahazar relied

upon by the respondent No.1 as at Ex.R26. Though the witnesses RWs.3 and 4 claim to be witnesses to the alleged mahazar at Ex.R26

and contend that the same was drawn when the Tahsildar had visited the village, none of the Tahsildars examined as PW-2 to 4 have

admitted to the same. The document at Ex.R26 is a copy said to have been obtained from the records and the original is not available.

Though RWs.3 and 4 have identified their names in the alleged mahazar at Exhs.R.26(a) and (c), the signature of the Tahsildar is not

identified and marked. The said witnesses have however stated that the Tahsildar who has recorded the mahazar is Sri Jayamadhava,

who in any case has been examined as PW.3 on behalf of the petitioner. In his evidence he has stated that he was authorised to issue

the caste certificate only up to 03.12.2011 and the Tahsildar Sri Ramamurthy (PW.4) had assumed office on 06.02.2012. If that be the

position, firstly, it cannot be accepted that on the alleged date of mahazar dated 17.02.2012 the said Tahsildar Sri Jayamadhava could

have drawn the Mahazar. That apart the signature of Sri Jayamadhava is not found therein nor is it admitted by him though attempt was

made on behalf of respondent No.1 to refer to a mark therein and suggest to PW-3 that it is his signature.

56. In addition, the very contents therein would not inspire the confidence of the Court that it has been actually drawn by a

responsible Officer of the cadre of Tahsildar. Though in the evidence of RW.3 and 4 they have stated that the Tahsildar had asked them

about the customs and tradition of the people belonging to the caste of respondent No.1, the details to that effect is not found in the

alleged mahazar. That apart even if a spot mahazar relating to the caste is to be drawn, and in that light the same is to be made the

basis for issue of caste certificate, one cannot ignore the procedure that is enunciated by the Hon'ble Supreme Court in the case of

Madhuri Patil (supra). In the normal circumstance, if the Tahsildar was holding a spot verification and drawing a mahazar, the

appropriate course ought to have been to visit the house of the applicant, record the statement of the family members and neighbours,

verify the school records and incorporate the same in the mahazar. Instead the procedure as adopted to the alleged mahazar is taken

note, there is no reason as to why if in fact the Tahsildar had visited the village, he should have recorded the statement of RW.4 who

even as per his own statement had come to the said village. That apart it does not contain the statement of any other member of the

same caste if there were residents of the same caste in the village.

57. Therefore, the very nature of the documents sought to be relied on and the explanation sought to be put forth for the

originals not being available due to which copies are obtained, on the face of it would indicate that the fabrication is writ large. Though

the copies of the other documents are sought to be relied on, in the nature of the conclusion as reached on issue No.1 and 2 and also

the nature of consideration made with regard to a second application not being sustainable and further the very veracity of the manner

of consideration of the second application sought to be established by the respondent No.1, it would indicate that the caste certificate

even if obtained by respondent No.1 is by manipulation of records and the documents cannot be accepted as established. The caste

certificates at Exhs. R-21 to 24 issued to the other family members in such circumstance also will not have evidentiary value in support

of respondent No.1. The decision in the case of State of Bihar and others –vs Sumit Anand [(2005) 12 SCC 248], - wherein, on facts,

it was held that in view of the fact the father, grandfather, mother and maternal uncle had all been granted the certificate certifying that

they belong to "Gond" community, the respondent therein was also entitled to the certificate, as relied by the learned senior counsel for

respondent No.1 is also of no assistance in the present circumstance. In the instant case no certificates of the predecessors are relied,

but what are relied are the certificates which are obtained in a similar manner which are also in dispute.

58. The decision in the case of Ayaaubkhan Noorkhan Pathan -vs- State of Mahrashtra and others [(2013) 4 SCC 465], -

wherein it is stated that the Scrutiny Committee in ordinary circumstances examined the matter and after investigation through its

vigilance cell and considering all the documentary evidence on record and after being satisfied granted the caste verification certificate,

Section 114(e) of the Evidence Act provided the Court to pronounce that the decision taken by the Scrutiny Committee has been done

in regular course and the caste certificate has been issued after due verification. It is held therein that very strong material is required to

rebut such presumption and the onus of rebuttal lies on the person who alleges that the act had not been regularly performed or

procedure required under law had not been followed, relied on by the learned senior counsel for respondent No.1 is also not of

assistance in the instant case wherein all the above stated discrepancies are noticed. In that light the need to refer to the other evidence

would be unnecessary.

59. Further the respondent No.1 in an attempt to establish that the order dated 27.03.2012 is passed by PW.3 has sought to rely

on the documents at Exhs.R.2 to R.5 and it is contended that pursuant to the orders passed by the Deputy Commissioner, the Tahsildar

has thereafter held the proceedings and arrived at the conclusion. Though such attempt is made by respondent No.1, as already noticed

the Tahsildars who had worked during the relevant period viz., PWs.3 and 4 have been examined and they have disputed any order

being passed by them. In that circumstance when the entire basis for the reliance on the caste certificate at Ex.R.25 is the order

dated 27.03.2012 and when through the above discussion, I have already arrived at the conclusion that the passing of such order is not

satisfactorily proved, the reliance placed on the other documents including the caste certificate issued to the family members as also the

details as contained in Ex.R.68 to indicate that the caste certificate was issued to the other family members of the petitioner would also

not be justified. Further the register at Ex.P59 which is marked by the petitioner to indicate that the entry contained therein at

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Sl.No.130/11-12 is not a genuine entry, which is on the other hand relied on by respondent No.1 seeking to contend that such entry is

contained in the register, firstly it is seen that the said entry sought to be relied on at Sl.No.130/ 11-12 is the only entry in the register

which is in the nature of an order while in the said register all other entries is not of that nature except to make an entry of the

particulars. Further the Tahsildar who was examined has also stated that the entry in such nature in the register is not made. In that

background the complaint as made by the Tahsildar against Sri M.Srinivas who was examined herein by respondent No.1 as RW.8

would also indicate the allegation that the said documents have been inserted by him to aid the respondent No.1. Respondent No.1

no doubt has relied on the document at Ex.R65 which is a ‘B’ report filed after the investigation was carried out pursuant to the

complaint lodged against Sri M.Srinivas.

60. A perusal of the document at Ex.R.65 no doubt would disclose that on investigation it is reported that no case is made out.

In that regard the correctness or otherwise of the report need not be gone into in the instant proceedings inasmuch as the same if at all

is to be assailed is to be done in appropriate proceedings. However, for the instant purpose what is necessary to be taken note is that

the ultimate conclusion herein is with regard to the validity or otherwise of the caste certificate even if issued in favour of respondent

No.1 as at Ex.R.25. In that regard as already noticed above, the Tahsildars who had served during the period have been examined as

PWs.2, 3 and 4 and all of them have denied that the caste certificate has been ordered to be issued by them nor is it issued by them.

From the detailed cross-examination, nothing is elicited to indicate that the said witness had in fact issued the caste certificate. The

same being one aspect of the matter, insofar as the caste certificate being claimed by respondent No.1 and even though a computer

generated copy is relied on, the proceedings as noticed will disclose that in the circumstances where at an earlier point the request for

caste certificate had been declined by a detailed order and the very nature in which the subsequent application is said to have been

made and the proceedings thereto is sought to be relied on by respondent No.1, it would indicate that the evidence as noticed can only

lead to the conclusion that no appropriate procedure known to law has been followed to order grant of caste certificate to respondent

No.1 and in that view even if a certificate has been generated from the electronic records, the same is without appropriate basis and

cannot be considered as a valid caste certificate.

61. Further, respondent No.1 though has relied on the documents at Exhs.R.41 to R.46 being the copies of the deposition of the

witnesses and the communication of the DDPI relied on in the suit in O.S.No.107/2012 the same would not be of any assistance to

respondent No.1 inasmuch as the suit has ultimately been dismissed and even though an observation is contained in the judgment

there to relating to the consideration of the caste certificate being made in the instant petition, the said witnesses have not been

examined before this Court to speak about the caste status of respondent No.1. In fact while considering the matter on Issue No.4

raised herein it has been noted that except for the nature of the evidence tendered through the witnesses who had been examined, no

reliable evidence to establish the caste of respondent No.1 to belong to Budaga Jangama has been tendered. From the very decision as

relied on by the learned senior counsel for the petitioner in the case of Sobha Hymavathi Devi -vs- Setti Gangadhara Swamy and others

[(2005) 2 SCC 244] - wherein it is held that therefore in any view of the matter, it cannot be said that the High Court exercising the

jurisdiction under the Representation of the People Act in an election petition is precluded from going into the question of status of a

candidate or proceeding to make an independent inquiry into that question in spite of the production of a certificate under the Act. At

best, such certificate could be used in evidence and its evidentiary value will have to be assessed in the light of the other evidence let in,

in an election petition. Therefore nothing turns on the factum of a certificate being issued by the authority concerned under the Act 1993.

The Hon'ble Supreme Court was also satisfied in that case that no proper enquiry preceded the issuance of the certificate and such

certificate was issued merely the say so of the appellant.

62. If that be the position, even though an attempt has been made by respondent No.1 in seeking to justify the caste certificate

issued in his favour and when major discrepancies in the procedure is noticed and also when under Issue No.4 the respondent No.1

had an opportunity to tender independent evidence before this Court to establish his caste status and he has failed to do so, the benefit

of caste certificate sought to be relied on even if it was genuinely obtained would not be available to respondent No.1, more particularly

in a circumstance where an earlier application had been rejected taking into consideration the entries in the school records relating to

the caste of respondent No.1 and respondent No.1 having failed in the suit wherein he had sought for rectification of the entries in the

school records. The said school documents being in the same position will continue to militate against the respondent No.1 and there

being no other evidence available on record, no other conclusion could have been reached even if a subsequent application was filed by

him seeking for issue of the caste certificate. In that view, the caste certificate as claimed to be relied upon by respondent No.1 would be

of no consequence whatsoever.

63. Hence the issue Nos.2, 3 and 4 are accordingly answered holding that the caste certificate relied by the respondent No.1 is

by playing fraud and as such the respondent No.1 was not qualified to contest the election from the constituency reserved for Schedule

Caste. Hence the acceptance of the nomination of the respondent No.1 is illegal and has materially effected the election result.

64. Insofar as the other issues, though the learned senior counsel for the petitioner has relied on the decision in the case of

Konappa Rudrappa Nadgouda vs. Vishwanath Reddy and another (AIR 1969 SC 447); Vishwanatha Reddy vs. Konappa Rudrappa

Nadgouda (AIR 1969 SC 604) and Kammeng Dolo vs. Atumwelly [(2017) 7 SCC 512] to contend with regard to the manner in which the

thrown away votes are to be transferred to the petitioner and declare the petitioner as elected and has also relied upon the evidence as

tendered with regard to the pamphlets and the newspaper advertisements that had been issued, at this juncture I do not find it

necessary to advert to the details in that regard inasmuch as the term of the Legislative Assembly is to end shortly in about a month and

the calendar of events for the election has already been announced.

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65. Further though the learned senior counsel for the petitioner has referred to the decisions in the case of Harjit singh Mann vs.

Umrao Singh and others [(1980)1 SCC 713] and J.H.Patel vs. Subhan Khan [(1996)5 SCC 312], to contend that the respondent No.1

had not subscribed to the oath and the nomination form and in that regard has referred to the nomination form, while on the other hand

the learned senior counsel has asserted that the oath has been subscribed to, the said aspect also does not arise at this juncture since

even if the same was not raised as a issue nor pleaded, the said aspect was not put to the respondent at least when he was in the

witness box, but has been raised only at the time of argument. In that view, I do not find it necessary to answer the said contention.

Hence no specific orders are made on Issue No.7 and 8.

66. For the aforestated reasons, the following:

ORDER

i) It is declared that the respondent No.1 belongs to Byragi caste.

ii) It is further declared that the respondent No.1 has failed to establish that he belongs to Beda (Budaga) Jangama caste and as such

the caste certificate dated 03.04.2012 relied upon is without the sanction of law.

iii) The acceptance of the nomination of respondent No.1 and the consequent declaration as elected to Karnataka Assembly through

certificate dated 08.05.2013 is declared illegal.

iv) The petition is accordingly allowed in part with costs quantified at Rs.25,000/-.

PR-759

SC-25

Sd/-

JUDGE

ANOOP KUMAR

UNDER SECRETARY

ELECTION COMMISSION OF INDIA

S.N.RAMAKRISHNA

Assistant Chief Electoral Officer

And Ex-Officio Under Secretary to Govt.,

DPAR (Elections.)

GREYLOCK ADVISORS INDIA PRIVATE LIMITED

Registered Office: Avani Arcade, No. L-1135, First Floor, Sector-7, HSR Layout, Bengaluru- 560 102

FORM No. 155

[See Rule 329]

Members’ Voluntary Winding –up

Name of the Company: Greylock Advisors India Private Limited

NOTICE CONVENING FINAL MEETING OF MEMBERS

Notice is hereby given in pursuance of Section 497 of the companies Act, 1956 that a General Meeting of the members of the

above named company will be held at the Registered Office of the company situated at Avani Arcade, # L-1135, 1

st Floor, HSR Layout,

th Sector, Bengaluru-560 102 on Monday of 04

th February, 2019 at 12.00 PM for the purpose of having an account laid before them

showing the manner in which the winding up has been conducted and the property of the company disposed of and of hearing any

explanation that may be given by the Liquidator and also of determining by a special resolution of the company, the manner in which the

books, accounts and documents of the company and of the liquidator shall be disposed of.

PD-01 Date this 17

th day of December,2018

SC-05

For Greylock Advisors India Private Limited

(Company Under Liquidation)

Aravinth Babu Biswajit Ghosh

Director (DIN: 01803994) Voluntary Liquidator

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