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Kattimani Chandappa Jampanna Vs. Laxman Siddappa Naik and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Election
CourtKarnataka High Court
Decided On
Case NumberElection Petn. No. 10 of 1967
Judge
Reported inAIR1967Kant182; AIR1967Mys182; (1967)2MysLJ277
ActsConstitution (Scheduled Tribes) Order, 1950; Constitution of India - Articles 16(4), 341, 342 and 342(1); Census Act, 1948 - Sections 4, 10 and 15; Representation of the People Act, 1951 - Sections 5, 33(2), 37 and 101; States Reorganisation Act, 1956; Constitution (Scheduled Tribes) (Amendment) Order, 1956; Constitution (Scheduled Tribes) (Amendment) Order, 1960; Evidence Act, 1872
AppellantKattimani Chandappa Jampanna
RespondentLaxman Siddappa Naik and ors.
Appellant AdvocateB. Basavalingappa, Adv.
Respondent AdvocateV. Krishnamurthy, ;C.H.S. Desai and ;B.B. Mandappa, Advs.
Excerpt:
- constitution of india .article 26-a: [cyriac joseph cj, mrs. manjula chellur & n. kumar, jj] right to establish and maintain educational institution - held, the right to establish and maintain educational institution is also conferred on every religious denomination or any section thereof, irrespective of the fact that they belong to majority or minority community in the nation, under article 26(a) of the constitution. education is per se regarded as an activity that is charitable in nature. education is a recognized head of charity. therefore a right to establish and maintain institution for charitable purposes includes a right to establishment and administration of educational institution. however, it is a right not conferred on individuals but on a religious denomination or a.....order1. in the general elections held in february 1967, no 192 gokak assembly constituency was reserved for members of the scheduled tribes specified in para 2 of part viii of the constitution (scheduled tribes) order. 1950 hereinafter called the 'scheduled tribes order' the petitioner. respondents 1 to 3 and two others had filed nominations for the reserved seat. the petitioner objected before the returning officer to the respondents' nominations on the ground that they were not qualified to be chosen to fill the reserved seat since they were not members of any of the specified scheduled tribes and that in fact they belonged to the 'bedar' caste. the returning officer overruled the said objection and accepted the nominations of the respondents as also of one bhimgouda mallgouda patil who.....
Judgment:
ORDER

1. In the General Elections held in February 1967, No 192 Gokak Assembly Constituency was reserved for members of the Scheduled Tribes specified in para 2 of Part VIII of the Constitution (Scheduled Tribes) Order. 1950 hereinafter called the 'Scheduled Tribes Order' The petitioner. Respondents 1 to 3 and two others had filed nominations for the reserved seat. The petitioner objected before the Returning Officer to the Respondents' nominations on the ground that they were not qualified to be chosen to fill the reserved seat since they were not members of any of the specified Scheduled Tribes and that in fact they belonged to the 'Bedar' caste. The Returning Officer overruled the said objection and accepted the nominations of the respondents as also of one Bhimgouda Mallgouda Patil who subsequently withdrew from the contest within the time allowed under Section 37 of the Representation of the People Act, 1951, hereinafter called the 'Act'. It may be mentioned that the nomination of one other candidate viz., one Kaushalya Devi was rejected by the Returning Officer. Thus the petitioner and the respondents were the four contesting candidates in the elections held on 15th February 1967.

2. In the poll held the result of which was declared on February 22, 1967, Respondent No. 1 Laxman Siddappa Naik was declared to have been duly elected to fill the seal in the Gokak Assembly Constituency reserved for Scheduled Tribes.

3. On April 7, 1967 the petitioner preferred the above Election Petition challenging the election on the ground that the Respondents were not qualified to fill the seal reserved for the Scheduled Tribes and that the Returning Officer had improperly and illegally accepted their nominations; he has prayed for the relief of declaration that the election of Respondent No. 1 the returned candidate is voidand Further, that the petitioner may be declared to have been duly elected.

4. The case of the petitioner is that Respondent No. 1 as also Respondents 2 and 3 who were the contesting candidates are not members of any of the Scheduled Tribes specified in para 2 of Part VIII of the Scheduled Tribes Order and that in fad they belonged to 'Bedar' caste which is not a Scheduled Tribe specified in the Scheduled Tribes Order. The petitioner's further case is that among the contesting candidates, he alone was the qualified candidate to fill the reserved seal and that the votes cast in favour of respondents ought to be regarded as 'thrown away' votes and consequently it should be held that in fact the petitioner received a majority of the valid voles and therefore be should be declared to have been duly elected.

5. Respondents Nos. 2 and 3 though served with notice of the Election Petition did not enter appearance; they appeared only at the stage of arguments and submitted that they do not contest the case of the petitioner that the Respondents belong to the 'Bedar' caste. Respondent No. 1 alone has contested the Ejection Petition. By his written statement, he has contended that he belongs to the 'Navaka' community, which according to him is one of the communities specified in the Scheduled Tribes Order and therefore he was qualified to fill the seat. With reference to the specific allegation of the petitioner that Respondents belong to the 'Bedar' caste. Respondent No. 1 has stated in his written statement that 'Nayaks' also are referred to as 'Bedars' He has not denied that Respondents Nos. 2 and 3 are not members of the 'Bedar' caste as alleged by the petitioner and he has merely put the petitioner to proof.

6. On the pleadings the following issues were settled:

(1) Are the Respondent 1 to 3 not members of the Tribal Community specified in Entry No. 13 of Part VIII of the Constitution (Scheduled Tribes) Order 1950?

(2) If the answer to Issue No (1) is in the affirmative, is THE Election Petitioner entitled to be declared as elected?

(3) What reliefs?

7. The petitioner examined four witnesses besides himself. Respondent No 1 examined himself and adduced no other evidence except producing Exhibits R. 1 to R. 3.

8. The definite case of the First Respondent was that he belongs to the tribe specified in Entry No 13 of the Scheduled Tribes Order. The short question for decision therefore is, whether Respondent No 1, the returned candidate is a member of the tribe specified as 'Naikda or Nayaka' in the Scheduled Tribes Order.

9. Clause (a) of Section 5 of the Act inter alia, provides that in the case of a seat reserved for the Scheduled Tribes of a State a person shall not be qualified to be chosen to fill the reserved seal unless he is a member of the Scheduled Tribes of that State. A candidate to fill a seat in a reserved constituency is required to make a declaration in his nomination paper the particular tribe of which he is a member and the area in relation to which that tribe in a Scheduled Tribe of the State(Vide Section 33(2) of the Act.).

10. Article 342(1) of the Constitution of India has conferred the power on the President to specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of the Constitution be deemed to be Scheduled Tribes in relation to any State or Union Territory, as the case may be. In exercise of the said power the President after consultation with the Governors of the States concerned has made the. Constitution (Scheduled Tribes) Order. 1950. Paragraph 2 of the said Order states that 'the Tribes or Tribal communities, or parts of or groups within Tribes or Tribal communities specified in Parts 1 to XIV of the Schedule to the Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Tribes so far as regards members thereof resident in the localities specified in relation to them respectively in those Purls of that Schedule' Part III of the Schedule to the Order published in 1950 specified the names of 24 tribes in relation to the then State of Bombay Entry No. 15 of Part ill specified 'Naikda or Nayaka' as one of the Scheduled Tribes in relation to Bombay State a' existing on 26th January 1950,

On the Reorganisation of States by the States Reorganisation Act, 1956, the districts of Belgaum, Bijapur. Dharwar and Kanara were included in the State of Mysore. In the year 1960 there was a further division of Bombay State into the linguistic States of Gujarat and Maharashtra. Consequent on the said reorganisation of States the Constitution (Scheduled Tribes) Order. 1950 was amended in 1956 and 1960, As a result of the said amendments. 19 out of the 24 tribal names specified in Part III of the Scheduled Tribes Order as notified originally, were shown in para 1 of Part IV in relation to the Bombay area of Gujarat State. Part VII, para 1 in relation to the Bombay area of MAharashtra State and para 2 of Part VIII in relation to the Bombay area of Mysore State. The names of five tribes found in the original Order were deleted and entry No 15 in the original order specifying 'Naikda or Nayaka' has been shown at entry No. 13 in Parts IV, VII-A and VIII afore-said. It is relevant to state that though the original order shows 'Naikda or Navaka as one of the Scheduled Tribes, the amended Order gives the following description of the Tribe:

'Naikda or Nayaka including Cholivala Nayaka. Kapadia Nayaka, Mota Nayaka and Nana Nayaka,'

After the President has specified the Scheduled Tribes, it is only the Parliament that is competent to include in or exclude from the list of Scheduled Tribes specified in a notification issued under Clause (4) of Article 342 of the Constitution. The Parliament by law hasnot made any alteration in the Scheduled Tribes Order issued by the President. Article 342of the Constitution is in pari materia withArticle 341 which deals with Scheduled Caste.

The scope of Article 341 of the Constitution has been interpreted by the Supreme Court in Basavalingappa v. Munichinnappa : [1965]1SCR316 and Bhaiya Lal v. Hari Krishn Singh. : [1965]2SCR877 . In the said decision, It has been on laid down that in order to determine whether or not a particular caste is a scheduled caste within the meaning of Article 341, one has to look at the published notification issued by the President and it would not he open to any person to lend evidence to establish that any particular caste not specified in the Order is a part of the caste notified in the Order The same principles ought to govern the scope of enquiry in relation to the Order issued under Article 342(1) by the President.

11. P.W. 1 Bheemappa Padiappa Naikhas stated that he belongs to 'Cheluvadi' casteand that members of the 'Cheluvadi' casteare also called Nayaks. P.W. 2 Laxman Narayan Naik who belongs to the Lambani caste has Stated that Lambanis are also called as Nayaks.P.W 3 Mallappa Somappa Naik who is a member of the Kuruba community has Stated thatone section of the Kuruba community is alsocalled Navaks. P.W. 4 Krishnappa BommayyaNaik Stated that he belongs to the 'Naikda orNavaka' community of North Kanara District.In his cross-examination, he admitted that hehas not brought any record to show that hebelongs to 'Naikda or Nayaka' communitythough there are about 400 people belongingto his community in Ankola. P.W. 5 who is the petitioner has Stated that Respondent No. 1and the other Respondents belong to the 'Bedar' caste, that sections of the Bedarcaste are also called 'Navaka-Mukkalu' or 'Valmiki' or 'Talwars'. P.W. 3 has also Stated that'Bedars' are called as 'Talwars' or 'Valmiki'or 'Nayaka-Makkalu'.

12. Petitioner has produced Exhibit P-1 which is a certified extract of the Births and Deaths Register of Arabhavi village in Gokak Taluk relating to the birth of a child named Anusuya on 2-3-1952 whose father's name under Column 6 is shown as Lakshman Siddappa Naika. Yeddalagudda. Under Column 7 the caste of the child is shown as 'Bedar Respondent No. 1 as R.W. 1 has denied that Exhibit P-1 relates to his child R.W.1 has Stated that he had no child by name Anusuya and that he has only one child alive now that child's name is Shakuntala who was born in the year 1950 in Poona; R.W. 1 has further stated that his two other children were, one Shivanaika born in 1952 and Lakkappa born in 1954 and both of them are not alive now R.W 1 was not cross-examined with reference to his denial that Exhibit P-1 does not relate to him. Therefore Exhibit P-1 is of no assistance to prove the caste of respondent No. 1.

13. Petitioner has further produced Exhibit P-2, a certified extract of the School Leaving Certificate of one Lakshmappa Siddappa Naik issued by the Head Master of AnkalgiGovernment Primary Boy's School. Exhibit P-2 shows that one Lakshman Siddappa Naik of Bedar caste was a student in that school from 2-12-1943 till 9-5-1946 and when the pupil left the school he was studying in the 7th standard. The date of Birth of the pupil is shown as 6-10-1930. Respondent No. 1 has denied that Exhibit P-2 relates to him. He has also denied that he ever studied in Ankalgi Government Primary School. According to R.W.1, he joined the Primary School at Yeddalagudda in 1938 and left the same in 1942. Apart from the fact that the petitioner has not summoned the original of Exhibit P-2 and he cannot prove Exhibit P2 in the absence of the proof of its original, there is no evidence to establish that Exhibit P-2 relates to Respondent No. 1 or that he ever studied in the Ankalgi Government Primary School. Inhibits P-1 and P-2 are the only documents produced by the petitioner to prove that Respondent No. 1 is of the 'Bedar' caste. Since the document have not been proved as relating to Respondent No. 1, they are of no assistance for the decision of this case.

14. Respondent No. 1 has produced Exhibit R. 1, a certified extract from the Births and Deaths Register of Sulidhal village of Gokak Taluk, which shows that a male child named Lakshmya was born on 10-8-1928; the child's father's name is given as Sidda Lakkappa Yeddalagudda. R.W 1 has Stated that his father's father was Lakkappa, that his present age is 38 years and on that statement, he has not been cross-examined. Therefore. Exhibit R.-1 can be accepted as relating to the birth of Respondent No. 1. Petitioner's learned counsel did not argue that Exhibit R-1 does not relate to the birth of Respondent No. 1. Petitioner's learned counsel merely challenged the corrections of the entry in Column 7 under the heading 'caste': his contention was that the entry giving the child's caste as 'Nayak' (Nayak) was it subsequent alteration made in the original register. I summoned the original of Exhibit R-1 in order to make sure that there has been no tampering of the entry in Column 7.

15. The Register of Births and Deathsof Sulidhal village for the year 1928 was produced by the Tahsildar of Gokak through C.W. 1 in a sealed cover. The original registerwas marked Exhibit C-1 On a comparison ofExhibit R-1 with the entry in serial No. 37 inExhibit C-1. I am satisfied that Exhibit R-1is a correct copy CW 1, a clerkin the office of the Tahsildar.Gokak, who produced Exhibit C-1, has Statedthat Exhibit C-1 was kept in the custody ofthe Tahsildar with two or three similar registers and that ordinarily Registers of Births andDeaths are kept in the custody of the AvalKharkoon CW 1 also Stated that he does notknow the reason why Exhibit C-1 was kept inthe custody of the Tahsildar.

15A. Exhibit R-3, the order of the Returning Officer makes mention of the 3rd Respondent having asked for calling certain records to show that the original register had been tampered, Respondent No.1 had produced Exhibit R. 1 before the Returning Officer in support of his claim that he is a member of the 'Nayaka Tribe'. It was submitted by the learned counsel for the Petitioner that the said objection of Responded No. 3 was to the alteration made in Exhibit C-1 under the column 'caste' with reference to entry No. 37 therein. The petitioner's learned counsel submitted that the writing under column No. 7 with respect to entry No. 37 shows signs of erasure and overwriting. I have marked that entry in red pencil. On a close examination of the writing under column 7 relating to entry No 37 in Exhibit C-1. I find that the original entry has been erased and the word 'Nayak' (Nayak) is an over-writing, I noticed that the first letter of the word was originally 'Be' and that has been erased and the word 'Na' has been over-written. There is no evidence as to when this erasure and over-writing was done: but the fact remains that the original entry with respect to the caste of Respondent No I was shown as 'Bedar', that the word 'Bedar' was erased and overwritten as 'Nayak'

16. Exhibit C-1 shows that dining the year 1928, there were 58 births and deaths in Sulidhal village and that 21 persons belonged to the 'Bedar' caste There is no other entry apart from the over-written entry relating to Respondent No 1 showing the caste of any person as 'Nayak' In view of the suspicious nature of the entry in Exhibit C-1 showing the caste of Respondent No 1 as 'Nayak' no reliance can be placed on Exhibit R-1 relied on by him before the Returning Officer and also in this Court in proof of his claim that he belongs to the 'Nayak' tribe In this court he has not produced any other evidence in support of his claim that he belongs to 'Nayak' tribe. He has admitted in his evidence that he studied in Yeddalagudda Primary School during the years 1938 to 1942: but he has not produced his School Admission Register or his School Leaving Certificate, despite the fact that the petitioner had contended before the Returning Officer that he was not a member of the Scheduled Tribe and that in fact he is of 'Bedar' caste.

17. Respondent No. 1 has admitted in his cross-examination that his community is not called 'Naikda' but only 'Nayaka'. He has also admitted that he Stated before the Returning Officer that he belongs to 'Nayaka' caste and not to 'Naikda' tribe. He has further Stated that there is no 'Bedar' caste in Belgaum District and he does not know whether 'Bedars' are called as 'Talwars' or 'Valmikis' or 'Nayaka Makkalu'. He proceeded to state:

'The members of the Nayaka community in our District are also called as Bedars because of their profession There is inter marriage in the Nayak community including those who (sic) profession and who are called Bedars. I deny the suggestion that I am a Bedar and 1 have given a false declaration that I am a 'Nayaka'.

To the court question whether he knows any community of the name 'Cholivala Nayaka' 'Kadpadi Nayaka', 'Mota Nayaka' and 'Nana Navaka'. his answer was that he does not know. He also Stated that there is no sub-sect in the Nayaka community. To the Court question whether in Gokak Taluk there are people called as 'Bedars', his answer was that there are such people so called by reason of their profession. Again, in answer to a court question as to what community those Bedars belong, his answer was that they belong to 'Nayaka' caste, I put him the question whether in Bombay Karnatak Districts apart from his community there is any other community going by the name 'Naikda or Nayaka' and his answer was that he does not know. The total population of Nayaka community in Gokak Constituency according to him is about 30 to 35 thousand and the members of that community are mazadoors, wood-cutters or cultivating tenants.

18. I now refer to the relevant portions of the pleadings of Respondent No. 1 in answer to the case of the petitioner that Respondent No. 1 is not qualified to fill the reserved seat.

3. .... It is submitted that the Respondent belongs to 'Nayaka' community which is one of the communities as contained in the Constitution (Scheduled Tribes) Order 1950. It is therefore submitted that this Respondent is entitled to be elected from the constituency reserved for Scheduled Tribes.

(5) It is true that Gokak Assembly Constituency was reserved for Schedule Tribesand the candidates belonging to Scheduledtribes community alone are entitled to contestthe Assembly seal from the said constituency.This Respondent belongs to Nayaka communitywhich is one of the 19 communities specifiedin the Constitution (Scheduled Tribes) Order1950. Therefore, it is not correct to say thatthis Respondent has declared in his nomination paper falsely as belonging to Nayaka tribe.'It is true that an objection was taken at thetime of the scrutiny of the nomination papersviz., that this Respondent (Sic--was not amember of a (?)) Scheduled Tribe but the Returning Officer overruled the objectionafter perusing certified copy of the birth extract produced by this Respondent and accepted the nomination of this Respondentsince he belongs to Nayaka community whichis one of the communities as specified in theConstitution (Scheduled Tribes) Order 1950 asamended by the Act 63 of 1956.'

x x x x x

'11. This Respondent belongs to Nayaka community which community is specified in the Scheduled Tribes Order as such. As a matter of fact Nayaks also are referred to as Bedars.' The total percentage of Scheduled Tribes population in Gokak Constituency in the last Census report is nearly 14.95 per cent there are large number of people belonging to Nayaka community to which this Respondent belongs and as a result of which the percentage of the Scheduled Tribe in the Constituency has gone very high. It is submitted that there are hardly one or two per cent population of people belonging to the communitiesspecified in the Constitution (Scheduled Tribes) Order. 1950, other than the Nayaka Community It is therefore submitted that a verylarge section of the Scheduled Tribe population in the Taluk belongs to Navaka community and no other community is meant to beincluded 'If the people belonging to Nayakacommunity who are also called as Bedars areexcluded,' the percentage of Scheduled Tribesin the Gokak Assembly Constituency may notbe even 2 to 3 per cent ... . . .'

(Underlining (here in ' ') is mine).

19. From the pleadings and the evidence of Respondent No. 1, it is clear that his contention is that there is no caste or community by name 'Bedars' in Belgaum District but the community to which he belongs is failed 'Navaka' community and the said community is also known as 'Sedans'.

20. Exhibit C-1 shows that the evidence of Respondent No. 1 that there is no caste known as 'Bedar' caste in Belgaum District is false Out of the 58 entries of births and deaths in Sulidhal village in the year 1928, 24 persons have given their caste as 'Bedars' All authorities on Castes, and Tribes Government Gazetteers and Orders of Government clearly go to establish the fact that in the Districts of Bijapur. Belgaum and Dharwar in the new State of Mysore there is a caste by name 'Bedar or Berad' and that sub-sections of that caste are also called 'Talwars' 'Valmikis' 'Nayaka-Makkalu' and 'Navakwadis etc and that there is no caste as 'Navaka' caste who are also known as 'Bedars'

21. Census Reports of Bombay Presidency to which 1 will refer in detail, clearly establish that there is a primitive Tribe known as 'Naikda' in certain Paris of the erst while Bombay State J.H. Hutton, who was the Census Commissioner in India in 1931, in the book Caste is India (Fourth Edition. 1963)' has given a Glossary of the castes in India At page 277. 'Bidar' is described as a 'Kanarese' fighting caste of Southern India (Boya) In the said Glossary of castes, there is no mention of a Tribe or caste by name 'Nayaka'

22. Sri V. Krishna Murthy the learned counsel for Respondent No. 1 argued that Section 15 of the Census Act. 1948 is a bar to the Court looking into the Census Reports and placing reliance on the information contained therein. Section 15 of the Census Act reads:

'15. Records of census not open to inspection nor admissible in evidence 'No person shall have a right to inspect any book, register or record made by a census officer in the discharge of his duty as such, or any schedule delivered under Section 10 and notwithstanding anything to the contrary in the Indian Evidence Act 1872, no entry in any such book, register record or schedule shall be admissible as evidence in any civilproceeding whatsoever or in any criminal proceeding other than a prosecution under the Act or any other law for any act or omission which constitutes an offence under this Act.'

The first part of the Section lays down that no person shall have a right to inspect any book, register or record made by a Census Officer in the discharge of his duty as such. The second part of the said Section lays down that no entry in any such book register or record made by a Census Officer in the discharge of his duties shall be admissible as evidence in any civil proceeding whatsoever. Section 4 of the Census Act empowers the Central Government to appoint a Census Com-missioner to supervise the taking of the census THOUGHOUT the area in which the census is intended to be taken and the Superintendents of Census Operations to Supervise the taking of the census within the several States The said Section also empowers the State Governments to appoint persons as Census Officers to take or supervise the taking of the census within am specified local area Section 15 says that the Records of Census made by a Census Officer shall not be open to inspection nor admissible in evidence

The reports of Census in India prior to the coming into force of the Constitution were made by Superintendents of Census Operations for each Presidency or Province as the case may he The said reports are printed and published by the Government and are available for sale to the Public The reports of Census compiled by the Superintendents of the Census Operations do not fall within the scope of Section 15 of the Census Act and therefore the objection of the learned counsel, in my opinion, is untenable

23. While Article 341 of the Constitution of India provides for specification of the names of Scheduled Castes Article 342 provides for specifying the names of the Scheduled Tribes. The term 'Tribal peoples' is a novelty in the census literature of India; but, it is no more than a mere substitute for the word 'Animist' formerly employed (Vide Census of India. 1931, Vol. VIII Part 1 - Bombay Presidency-General Report, page 355)

24. Report of Census of India, 1911, Volume VII-Bombay. Part I contains valuable information regarding the 'Naikda' tribe also called 'Nayaks' At page 293 of the said Report,there is the following information pertaining to 'Naikda' Tribe:

'Naikdas (48258) also called Naiks, are found chiefly in the Panch Mahals Rewa Kantha and Surat The name Naikda or little Naik was probably given them to mark the distinction between them and the Broach Talabada Kolis who were formerly known as Naiks The tribe is undoubtedly of primitive origin much mixed from various sources In the beginning of the last century they were almost in a savage condition caring little for the custom and usages of social life They have since settled down as labourers and wood-cutters. Afew own bullocks and ploughs, and practise fixed cultivation. 'Marriages are prohibited within two In seven degrees of relationship. Marriage with a father's sister's, mother's sister's, mother's brother's daughter is not allowed. Marriage with a wife's sister is allowed and brothers are allowed to marry sisters. Marriage is adult. In many cases they do not perform any marriage ceremony. If a girl reaches the age to sixteen and her parents have not betrothed her, she may go and live with any man she chooses, and if he agrees to pay Rs. 17 no objection is raised. If a maid commits an indiscretion with a tribesman, she is married to the man. But if the man refuses to marry her some four or five elders of the tribe are summoned, the man takes the girl on his lap in their presence and repeats the word 'mother' seven limes. He is then suckled by trip girl, and is allowed to regard her as his mother. The offer of marriage comes from the boy's father who has to pay a sum of Rs. 10 to 30 to the girl's father. The binding portion of the marriage ceremony consists in the bridal pair walking four times round the sacrificial fire and in feeding each other five times with 'Kansar' (a kind of sweet meal) or nice. The remarriage of widow is permitted. A widow may many a younger brother or any other relative of her deceased husband. Divorce is allowed. Naikdas eat all kinds of flesh including beef, largo black ants squirrels and monkeys. They do not eat the flesh of the ass, crow and snake They are much given to mahuda spirit and at their festivals drink to excess. Bhils take water at their hands. It appears from the Bombay Gazetteer that they eat with Musalmans and that a Naikda guilty of taking his meals with a Dhed. Chamar or Bhangi would be re-admitted into his tribe by giving a dinner to it. They admit members from Bhils. Kolis and other castes. In religion they stand on the border line between Hinduism and Animism' They have taken to the worship 'of goddesses such as Kalika, Amba Mala and Mahakali. They respect the tiger and swear by its name. They have yards known as 'Khatris' where rude images of deceased ancestors are installed and worshipped. They show no respect for Brahamans and even have a saying that the death of a 'Tilak' wearer is equivalent to feeding 100 persons. The dead we burnt except children under two years old, when are buried. They do not perform any memorial ceremony for the propitiation of deceased ancestors.'

(underlining (herein' ') is mine).

Al Pages 231-232 of the same Report, there is the following information regarding 'Berads':

''Berads (184871), Bedars or Beds are found chiefly in the Belgaum. Dharwar and Bijapur Districts. The term Bed (Kan. Bedaru) seems to mean hunters from Beta (hunting). The members of the tribe call themselves Naikamakkalu, that is, chief's children. They are also known as Naikwadis. Talwars and valmikas. 'the first and last of which are applied to the Ramoshi also. This and the factthat the Berads and Ramoshi follow similar occupations and have a common division named Halge, seem to show that they had a common origin but became separated by the barriers of residence and language. The connection seems to have been close when a Dravidian tongue was spoken in the Deccan. The Berads also appear to he closely allied to the Telugu boy as and the Tamil Vedans. All these tribes except the Ramoshi claim descent from Kanaya. According to Buchnan the Kadambas of Banawasi were Berads. History relates that after the fall of Vijaya nagar the Berads plundered the town for many days. Their staunch loyally to their chiefs won the admiration of Hyder Ali, who converted them to Islam and formed battalions of the Bedar boy as or Chelas Medows Taylor, in the Story of my Life, describes the Berads as the ruling tribe in the State of Shorapur in the 'Nizam's Territory. In the early years of British R. the Berads caused some trouble, but were reduced to order in 1820. They are still notorious as thieves and highway robbers. Some are husbandmen, some village-watchmen or Talwars holding free grants of land, some are Patiis some are labourers, and a few are hunters and snares They have six endogamous divisions (1) proper, (2) Durgarmurgi, (3) Halge. (4) Jas or Myasa, (5) Naikmakkalu and (6) Ramoshi none of which cat together or intermarry. They have several exogamous divisions known as Bedagus, many of which are found among the Berads of Mysore, thus showing their identity. Marriage with a sister's and mother's brother's daughter is allowed. A man may marry his wife's sister. Marriage is generally infant Girls are at times kept unmarried and dedicated to Maruti or Yallamma. They are railed Basavis or Jogatis and lead immoral lives. The boy's parents have to pay a bride-price of Rs. 100) to the girl's parents. The essential 'portion of the marriage consists in throwing grains of rice over the heads of the bride and bridegroom. The marriage of widow is permitted. Divorce is allowed. Except in Bijapur. Berads eat the flesh of cows, buffaloes and pigs. They drink liquor to excess. The highest well known caste who will eat, drink or smoke with Berads is the Korava Musalmans do not eat out of the hands of Berads. but Berads have no objection accepting food from Musalmans. Members of higher castes, such as Kurubs. Kabbaliggars, Vakkals etc., are admitted into the tribe The favourite deities of Berads are Durgavva. Mallikarjuna Maruti. Yallamma and Khandoba. Their priests are Bhrahmans In some places Lingayet Mathapatis are employed to conduct the death ceremonies. The dead are either burnt or buried. For the propitiation of deceased ancestors tribesmen are feasted on the new moon of either BHADRAPAD. ASHVIN or FALGUN. The Berads of the Sholapur district settle their social disputes at meetings of the village castemen with the most influential member as the headman who is called RAJA Sometimes castemen from several villages assemble, such an assembly being called DAIVA. Thepenalties imposed on offenders are caste dinners and fines. About two years ago a Berad of Bhal vani in the Phandharpur Taluka was excommunicated for eating beef and was re-admitted on payment of a fine of Rs. 50. The social disputes of the Berads of the Bijapur districts are settled by their GURUS, of whom there are several. An appeal lies from the decision of a GURU to the head GURU who lives at Hardi, a hill village in Hungund Taluka.'

A table of castes classified according to their professional occupations is given in Subsidiary Table I at page 209 of the same Report. Under the classification of cultivators. 'Berad' or 'Bedar' is one of the castes mentioned and their strength is shown as 1,84,871.

25. The Report of Census of India, 1921, Volume VIII. Bombay Presidency, Part II, contains a table of castes and tribes. At page 186 of the said Report 'Naikda' Tribe is mentioned and the locality where the said 'Naikda' Tribe inhabits is shown as Panch Mahals. Surat District. Reva Kantha and Surat Agency. The caste 'Berad' or 'Bedar' is given in the same re-port at page 184 and the locality inhabited by the said caste shown are Belgaum. Bijapur. Dharwar. Kolhapnr and S.M.C. States

26. The General Report of Census of India. 1931. Volume VIII. Part 1 -- Bombay Presidency -- contains valuable information regarding Tribe Peoples At pages 355-358, it is seen that the Government of Bombay had up pointed a Committee to investigate the conditions of Depressed Classes and the Aboriginal Hill Tribes in the Presidency and the said Committee had definitely classified the following communities as Aboriginal and Hill Tribes:

1. Adwichincher Pardhi

2. Barda

3. Bavcha

4. Bhil

5. Chodhra

6. Dhanka

7. Dhodia

8. Dubla

9. Gamit or Gamta

10. Gond

11. Katkari or Kathodi

12. Kokna

13. Koli Mahadey

14. Mavchi

15. Nayak or Naikda

16. Phanse Pardhi

17. Patelia

18. Pomla

19). Rathawa

20. Thakur

21. Tadvi Bhil

22. Valvi

23. Varli

24. Vasava.

The report goes on to state that of the above 24 tribes 5 are Hindus one is a Muslim. 'Nayaka' or 'Naikda' is one of the tribes classified as aboriginal and hill tribe and according to the Census Report the members of the said tribe are not Hindus. The population of 'Nayaka' or 'Naikda' tribe in 1931 is shown at 57,247.Appendix of the said report gives the caste indexes in the Bombay Presidency. Under the heading Hindu Backward castes, the caste 'Berad' (Bedar. Byadar. Talwar. Walmiki, Naikmakkalu) is mentioned (vide page 521 of the Report.) It is also seen at page 521 that 'Berads' are also known as Bedar. Byadar. Talwar, Walmiki and Nayakamakkalu. Their habitation is shown as 'Deccan'. Under the same Appendix F at page 529 of the Report the 'Naikda' community is also shown and their habitation is given as Gujarat and West Khandesh.

27. The Bombay Gazetteer relating to the Karnataka districts viz., Dharwar. Belgaum, Bijapur and Kanara published by the Government of Bombay (Kannada Edition) in 1893 shows that among the members of the Bedar caste inhabiting Bombay Karnatak area there are the following sub-divisions :

(1) Maragi Bedar.

(2) Dasa Bedar and

(3) Nayaka Makkalu.

(Vide page 199 of the Bombay Karnatak Gazetteer in Kannada published by the Government of Bombay, 1893).

28. I will now refer to some of the Government Orders issued by the Government of the New State of Mysore for the purposes of Article 16(4) of the Constitution of India. Government Order No. ED 79 TGL 59 dated 22nd July 1959 fixed the percentage of posts for the socially and educationally backward communities and for Bedar caste 26 per cent of the posts have been reserved under the said Government Order.

Government Order No. ED 60 TGL 60 dated 9th June 1960 gives in its annexure a list of socially and educationally backward classes other than the Scheduled Castes and Scheduled Tribes. Item No. 2 of the Annexure to the said Order reads thus :

'2 Bedaru. Nayak (Naik) Boya, Vedan, Bendar, Berad, Valmiki, Talwar. Naickmakkalu, Naikwadi, Palayagar'. Bedar caste also known as Nayak, Nayaka-Makkalu etc is listed among the socially and educationally backward classes other than the Scheduled Castes and Scheduled Tribes.

29. The detailed Administration Report of the Social Welfare Department for the year 1956-57 published by the government of Mysore gives a list of other backward classes at pages 53-55 Bedar, Berad, Naika Makkahu, Nayakwadi. Valmiki are all shown among the backward classes of Bombay area of Mysore State. At page 51 of the same Report, a list of Scheduled Tribes in the districts of Belgaum, Bijapur. Dharwar and Kanara is also given and that list corresponds to the Tribes specified in Part VIII of the Scheduled Tribes Order.

30. E. Thurston in his treatise 'Castes and Tribes of Southern India Volume 1 (A & B)', has given detailed information regarding Bedars (Vide Volume I pages 180-209).

31. Similar information regarding theBedar caste is contained in the MVSORE TRIBES AND CASTES, Volume II by the LateH.V. Nanjundayya and Rao Bhadur L.K. Anantha Krishna Iyer -- 1928 Edition, (vide pages 197-230) It is seen from the said book that Bedars or Berads are a hunting and agricultural tribe of Mysore; the name Nayaka or Nayaka-Makkalu is sometimes applied to the tribe At page 200 of this book, it is Stated that many of them are employed as village watchmen or Talwars and they are largely found in the Nizam Dominions as also in Belgaum. Bijapur and Dharwar Districts.

32. HINDU TRIBES AND CASTES. Volume It by Rev M.A Sherring contains the following information regarding Bedars at page 321 :

'(11) Bedar.

These are in the Southern Mahratta country what the Ramoshi are in the Dekhnn, and MIC Vases are in Northern India. They live in villages in general service as sepoys, or as cultivators and labourors. They are also Wattandars in the capacity of village Talwars. Naiks. Hallabs. Shetsannadis, and village watchmen generally; but many are nevertheless secretly gang robbers and high way men They are also styled Panch Calla. They have yet to be properly inquired into '

33. From the foregoing Reports, Authorities and Government Orders, it is established beyond doubt that 'Naikda' is a distinct primitive tribe inhabiting Gujarat and West Khandesh area of the erstwhile Bombay State and that Bedar is distinct and separate from 'Naikda or Nayaka' tribe specified in the Scheduled Tribe Order

34. Respondent No. 1 does not claim that he is a member of the 'Naikda' Tribe, Regarding his claim that they belongs to a community known as 'Nayaka' there is no support for the same either by way of documentary evidence or authoritative reports. As already Stated by me earlier. Exhibit R-1, in so far as it gives the caste of Respondent No 1, cannot be relied on and has to be discarded On the basis of the admission in his pleadings and his evidence before the Court that his community is also known us 'Bedar'. I hold that Respondent No. 1 is a member of the Bedar caste. Respondent Nos. 2 and 3 have nut disputed the petitioner's, vase Therefore, on Issue No. 1, my finding is that the Respondents are not members of the Scheduled Tribe 'Naikda or Naika' specified in Entry No. 13 in Para 2 of Part VIII of the Constitution (Scheduled Tribes) Order. 1950.

35. The next question in view of my finding on Issue No. (1) that all the contesting candidates except the petitioner were not qualified to fill the seal in the reserved Constituency, is whether the petitioner who is the only qualified candidate among the contesting candidates, should be declared elected to the said seat? The grounds for which a candidate other than the returned candidate may be declared to have been elected are expressly mentioned in Section 101 of the Act and under the provisions of the said Section the petitioner is entitled to declaration that he has been duty elected only if he establishes that in fact he received a majority of the valid votes The candidates polled the following number of votes :

Petitioner -- Kattimani . . 620 votesChandappaJampanna Respondent No. 1 -- Laxman 17522 votesSiddappaNaikRespondent No. 2 -- ParsappaHanmanthaKerning 7044 votesRespondent No. 3 -- Patel 5996 votesShivangowdMalgowd

36. The respondents were duly nominated candidates and the votes east in their favour can be rejected as invalid votes only if the petitioner establishes that the votes polled by the Respondents must be regarded as 'thrown-away' voles as understood under the Election Law. Vide Keshav Lakshman v. Dr. Deorao, : [1960]1SCR902 and Sudhir Kumar v. Abhoy Pada. : AIR1966Cal141 . That can be done only where it is established that the electors concerned had knowledge or notice that the respondents were ineligible for filling the seat The burden of proving that the votes cast in favour of the returned candidate and other contesting candidates are invalid is undoubtedly on the petitioner Apart from mere allegation in the petition, the petitioner has adduced no evidence to prove that the voters had knowledge of the fact that the respondents were not qualified to fill the reserved seat. Therefore, the petitioner is not entitled to the declaration that he has been duly elected.

37. In view of my finding under Issue No.(1) that the returned candidate is not qualifiedto fill the seat reserved for members of theScheduled Tribes, the election of respondentNo. 1 is declared void; but the claim of thepetitioner to be declared elected at the electionheld on February 15, 1967 for the seal reserved for the members of the Scheduled Tribesfrom the Gokak Assembly Constituency is dismissed. Since the petitioner has substantiallysucceeded and he did not seriously press therelief tinder Issue No. (2), he is entitled to hiscosts from Respondent No. 1 Advocates' feeRs. 650.

38. Petition allowed.


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