G. Yethirajulu, J.
1. This election petition is filed under Sections 5, 100(1)(d)(i) of the Representation of People Act, 1951 ('the Act' for brevity) by an unsuccessful candidate of the Legislative Assembly Elections, 1999 to declare the election of the first respondent as Member of the Legislative Assembly from 8 Naguru (Scheduled Tribe) Assembly Constituency as void, to set aside the same and to declare him as duly elected to the said Assembly Constituency.
2. The averments of the petition are briefly as follows:
3. The petitioner belongs to Jatapu tribe, which is including in the list of Scheduled Tribes (STs). The election to the 8 Naguru (ST) Legislative Assembly Constituency was held on 11-9-1999. It is a reserved constituency for Scheduled Tribes. In the said election, the petitioner and the first respondent contested as Telugu Desam Parry (TDP) and Congress-I Party candidates. The Respondents 2 to 4 contested from other parties. The first respondent was declared elected on 6-10-1999. He does not belong to any of the Scheduled Tribes mentioned in the Scheduled Tribes Order, 1976 relating to Andhra Pradesh. He belongs to 'Kshatriya' caste. He is claiming as 'Kondaraju' and obtained false certificate of social status as 'Konda Dora' claiming that 'Kondaraju' and 'Konda Dora' are synonymous. The records pertaining to the family of the first respondent reveal that they belong to 'Kshatriya' caste, but not to Scheduled Tribe. With the help of the judgment of the High Court in E.P.No. 13 of 1983 he obtained a certificate of social status as Scheduled Tribe and is getting elected to Lok Sabha as well as Legislative Assembly. The petitioner came to know that the Government of Andhra Pradesh issued Memo No. 7725/CV2/99 dated 10-6-1999 directing the Collector, Vizianagaram to initiate action against the first respondent in respect of the certificate of social status and it is pending enquiry. Since the first respondent does not belong to any of the Tribes specified in the Schedule under Article 342 of the Constitution of India, he is not entitled to be a candidate from 8 Naguru (ST) Legislative Assembly Constituency and his nomination was improperly accepted. The Courts have no power to declare a synonymous of a Tribe to be of a Tribe, which is not included in the list of Scheduled Tribes under Article 342 by the President of India. The judgment of this Court in E.P.No. 13 of 1983 is null and void and cannot be looked into. The first respondent cannot be allowed to obtain a certificate of social status basing on a void judgment. The first respondent played fraud on the Constitution of India and deceived the voters of 8 Naguru (ST) Constituency knowing fully well that he does not belong to Scheduled Tribe. He gave an impression to the people that he belongs to Scheduled Tribe and propagated to that effect. He is playing this game since 20 years and was duping the voters of 8 Naguru (ST) Assembly and Parvathipuram Parliamentary Constituencies. The first respondent by deception got his name accepted by the third respondent and succeeded in the election. Hence the petition.
4. The first respondent resisted the petition through his written statement with the following averments in brief:
5. The first respondent, his forefathers and ancestors belong to 'Konda Dora' Tribe. They never claimed that they belong to 'Kondaraju' or that 'Kondaraju' is synonymous to 'Konda Dora' Tribe. The ancestors of the first respondent used to describe themselves as 'Kshatriyas' as they belong to Hill Zamindari family of Merangi. The first respondent and his forefathers were continuously elected since 1967 for State Legislature and Parliament as 'Konda Dora' a notified Scheduled Tribe. The petitioner is playing fraud on the Court by contending that the first respondent does not belong to 'Konda Dora' Tribe. The Community Certificates issued to the first respondent cannot be cancelled without appropriate enquiry and without notice to him. In the election petition covered by E.P.No. 13 of 1983, the A.P. High Court held that the first respondent belongs to 'Konda Dora' Tribe. The judgment became final and it operates as res judicata, The first respondent was elected in 1983, 1985, 1989, 1991, but in 1996 he was defeated. In 1998 he was again elected as a Member of Parliament, as a Scheduled Tribe candidate. The 'Konda Dora' Tribe to which the first respondent belongs has traditions of its own. The first respondent and his forefathers are strictly adhering to all the customs of 'Konda Dora' Tribe. All the people belonging to 'Konda Dora' Tribe are treating them as members of their tribe. The Collector, Vizianagaram is the competent authority to cancel the social status certificate after due enquiry. The petitioner did not make any application for cancellation of the certificate issued by the competent authority. The burden is on the petitioner to prove that the first respondent is not entitled to contest from Scheduled Tribe Reserved Constituency and it is for the petitioner to establish that the first respondent does not belong to 'Konda Dora' Tribe. The petition is not maintainable under law. It is therefore liable to be dismissed with costs.
6. On the basis of the above pleadings, the following issues were framed:
(1) Whether the first respondent does not belong to the notified Scheduled Tribe and is, therefore, not qualified to be elected as a member of 8th Naguru Assembly Constituency, which is reserved for Scheduled Tribes?
(2) Whether the judgment in E.P. No. 13 of 1983 rendered by this Court earlier, will operate as res judicata with regard to the social status of the first respondent ?
(3) To what result?
(1) Whether the earlier judgment of this Court in E.P.No. 13 of 1983 is a Judgment in Rem? If so, whether it is a conclusive proof of the social status of the first respondent and operates as a bar to the present Election Petition?
(2) Whether the Election Petition is not maintainable so long as the Community Certificate issued by the Collector remains in force?
7. At the instance of the first respondent this Court took up Issue No. 2 and Additional Issues 1 and 2 for preliminary hearing and an order was passed on 13-12-2002 holding that the judgment in E.P.No. 13 of 1983 does not operate as res judicata with regard to the social status of the first respondent, that the Election Petition No. 13 of 1983 is not a judgment in rem and that the election petition is maintainable despite the Community Certificate issued by the Collector is in force.
8. Against the above order of this Court, the first respondent filed petitions for Special Leave to Appeal (civil) No. 1438-1439/2003 before the Supreme Court of India and the Apex Court through it's order dated 7-2-2003 dismissed the petition declining to interfere with the order of this Court.
9. In view of the order of this Court dated 13-12-2002 in Application Nos. 976 of 2000 and 981 of 2001 in E.P. No. 13 of 1999 there is no necessity to once again deal with those issues, therefore, the enquiry was conducted to answer Issue Nos. 1 and 3 only.
10. The petitioner in support of his contentions examined P.Ws.1 to 8 and marked Exs.A1 to A26. The first respondent examined R.Ws.1 to 9 and did not mark any documents. C.W.1 was examined as a Court witness and Exs.C.1 to C.10 were marked.
11. Issue No. 1: The caste system in its early states was quite elastic but in course of time it gradually hardened into a rigid framework based upon heredity. Inevitably it gave rise to gradation, which resulted in social inequality and put a premium on snobbery. The caste system tended to develop, as it were, group snobbery, one caste looking down upon another. Thus there came into being social hierarchy and stratification resulting in perpetration of social and economic injustice by the so-called higher castes on the lower castes. It was for this reason that it was thought necessary by the Constitution makers to accord favoured treatment to the lower castes who were at the bottom of the scale of social values and who were afflicted by social and economic disabilities and the Constitution makers accordingly provided that the President may specify the castes and these would obviously be the lower castes which had suffered centuries of oppression and exploitation, as it was believed, that the higher castes would not properly represent the interest of these lower-castes, CM. Armugam v. S. Rajgopal, AIR 1976 SC 936.
12. Under Article 332 of the Constitution, seats are reserved for Scheduled Tribes in the Legislative Assemblies of the States. Under Article 342 of the Constitution the President after consultation with the Governors of the respective States gives Public notification specifying the tribal communities, which are deemed to be the Scheduled Tribes in relation to the respective States. Parliament has power by law to include or exclude any tribe or tribal community or part of or group within any tribe or tribal community from the list of Scheduled Tribes specified in the President's order.
13. No. 8 Naguru (ST) Assembly Constituency is reserved for Scheduled Tribe candidates. The candidates belonging to Scheduled Tribe as mentioned in the Scheduled Tribes Order, 1976 relating to Andhra Pradesh are competent to contest in the election. 'Konda Dora' Tribe is one of the tribes mentioned in the order of 1976.
14. The 1st respondent was allegedly obtaining social status certificate for every election by showing the judgment of this Court in E.P.13/1983 dated 16-1-1983. Therefore, before adverting to the evidence adduced by both parties, I wish to refer to certain findings given by a learned Single Judge of this Court in the judgment dated 16-1-1983 in Election Petition No. 13 of 1983, which was filed by one Sri Gantreddi Lakshmana Swamy Naidu against the first respondent herein. In the above judgment, the election of the first respondent in 1983 Assembly elections was challenged on the ground that he does not belong to 'Konda Dora' Tribe and he belongs to 'Kshatriya' caste. In the said E.P.13/1983 the petitioner contended that the first respondent obtained a false certificate from the Tahsildar, though he does not belong to Scheduled Tribe. The said certificate was issued by the RDO or Tahasildar on account of the influence exerted by the first respondent, therefore, the election of the first respondent shall be held null and void. The High Court dismissed the Election petition by observing;
(1) The evidence produced by the petitioner in support of his allegation is wholly deficient and falls miserably short of the proof to establish his case.
(2) Very authentic and ancient documents produced by the respondent are proving that his family belongs to Konda Dora Community. The Ganjam and Vizagapatnam Act, being the Act No XXIV of 1839, mentions Merangi as one of the Hill-Zamindaries in the district of Vizagapatnam, exempted from the operation of the Rules for the administration of civil and criminal justice, in force in these districts. Saluru and Kurupam are also mentioned as Hill-Zamindaries in the said Act. Admittedly the respondent's family was the Zamindari family and Estate. The Merangi Family and Estate is dealt with as item XIII. The Gazette briefly mentions the origin and subsequent history of this Zamindari and states towards the end that the family belongs to the 'Konda Raju' Tribe of the same branch as the 'kurupam' and 'Andra' Zamindaris. Urya is their vernacular, but they do not learn to read and write it, cultivating the Telugu language instead. 'Andra' Zamindars are referred to in Item VI, under the heading the Andra Family and Estate. It is stated thereunder that the founder of the said family, Garaya Dora, belonged to Konda Dora Tribe. The Kurupam Family and Estate is dealt with as item XTV where it is stated that the Zamindar was of the 'Konda Raju' caste of an Urya stock. In volume VI of the celebrated book Castes and Tribes of Southern India, by Edgar Thurstan published in 1909, at page 248 it was stated, 'It may be noted that some Konda Doras call themselves Raja (Razus, Kapus or Reddis, and Suryavamsam, [The learned Judge referred to the Ganjam and Vizagapatnam Act (Act 24 of 1839), certified copy of the Gazette, the book on Castes and Tribes of Southern India by Edger Thurston Published in 1909].
(3) The statement in the Vizagapatam District Manual and the passage in Thurston's Sixth Vol. clearly go to support the respondent's contention that his family belongs to Konda Dora Tribe.
15. The first respondent solely relied on the findings of this Court in E.P.No. 13 of 1983, and did not adduce any documentary evidence in support of his plea that he belongs to 'Konda Dora' Tribe.
16. The petitioner in order to discharge his burden adduced oral and documentary evidence.
Burden of proof :
17. Before going to consider the oral and documentary evidence adduced by both parties, I would like to refer to the rulings cited by both parties regarding the burden of proof.
18. Sri B. Setharamaiah, the learned Counsel for the first respondent contended that as the petitioner pleaded that the 1st respondent is not 'Konda Dora' the burden is on him to establish the same. Sri Bojja Tarakam, the learned Senior Counsel appearing on behalf of Sri J. Satya Prasad, the learned Counsel for the petitioner, submitted that whenever both parties adduce oral and documentary evidence, the burden of proof loses its significance and remains only academic. In support of the said contention he cited a judgment of the Supreme Court in Raghunath v. Raju Ramappa Shetty, : AIR1991SC1040 , wherein the Supreme Court held that when once the parties are permitted to adduce evidence in support of their respective cases and when it is not their grievance that any evidence was shut out, the question regarding the burden of proof loses its significance and remains only academic.
19. In Raghavamma v. Chenchamma, : 2SCR933 , the Supreme Court observed that there is an essential distinction between the 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. The circumstances of a particular case may shift the onus of proof from one party to the other. Such a shifting of onus is a continuous process in the evaluation of evidence.
20. In L. Siddappa v. K. Chandappa, : 2SCR805 , the Supreme Court observed that in a case where both sides do not lead evidence, the matter must be decided on the basis of original onus, which lies on the election petitioner. The election petitioner cannot succeed because of the weakness of evidence of the successful candidate. The election being something which cannot be readily set aside, there must be proof and convincing proof that a person is not properly chosen to fill a particular seat. The burden originally lies on the election petitioner and he cannot succeed unless he discharges that burden. The Supreme Court further observed that where the election of a candidate contesting from the seat reserved for Scheduled Tribes is challenged on the ground that the candidate does not belong to a particular tribe the questions that arise for determination are to what tribal community, if any, does the candidate belongs and who is to prove the necessary facts. The Supreme Court also observed that if prima facie evidence had been led by the election petitioner the burden shifts to the elected candidate.
21. Since both parties adduced evidence in proof of the respective contentions the burden of proof lost its importance in this case.
Identification of castes:
22. The learned Counsel for the petitioner placed strong reliance on certain judgments of the Apex Court, regarding identification of castes, which I wish to refer in brief:
23. In S. Nagarajan v. District Collector, : 1SCR220 , the appellant claimed his status as a Scheduled Tribe (Kondareddi). He appeared in Central Civil Services Examination held in 1985. His status was doubted by the Union Public Service Commission and an enquiry was directed to be made. During the enquiry, the Tahsildar found that the certificate of social status given by the Deputy Tahsildar was not correct and was without jurisdiction. Accordingly, he cancelled the said certificate. Pursuant to successive directions of the High Court, three more enquiries were made in the matter, the last one having been conducted by the Collector. All the enquiries ended in a conclusion adverse to the appellant. The finding reached in the last enquiry by the Collector was upheld by a Single Judge as well as a Division Bench of the High Court. Relying upon a document of pre-Constitution period, the appellant contended that the view taken by the Courts below was not correct. Rejecting that contention and dismissing the appeal, the Supreme Court held as follows:
The Collector after detailed consideration of the evidence placed by the appellant concluded that the appellant was not a member of Scheduled Tribe. His father, who had retired as Commissioner, had never claimed that status though in the ordinary course he would have claimed to be belonging to the Scheduled Tribe Community to avail of the benefit of reservation available under State service. The Single Jude was right in concluding that the appellant's father having been in Government service would not have omitted to claim his status as belonging to Scheduled Tribe community.
24. In the case covered by the above decision, the petitioner was required to establish before the Collector that he belonged to Kondareddi community. What was sought to be established by the petitioner was in certain documents such as School Admission Register and sale-deeds, the caste of the petitioner or his relatives was mentioned as Kondareddi. His membership of the tribe has to be established with reference not merely to the documents wherein he or his relatives are described as Kondareddi, but by establishing the customs, habits or anthropological data concerning the family from which one could reasonably conclude that the petitioner belongs to the Tribe of Kondareddi.
25. In Parsram v. Shivchand, : 2SCR997 , the Supreme Court while considering the question whether a person belonging to a particular sub-caste can claim the same status of a person belonging to a caste which is included in the notification issued by the President, observed 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 public notification issued by the President in that behalf.
26. In the case covered by the above decision, there was no evidence one way or the other. The High Court therefore could not reach any conclusion on the evidence before it and turned to census reports of the Bombay Presidency of 1911, 1921 and 1931, the Bombay Karnatak Gazeteer of 1893, Huttons Book on Castes in India (1931), Mysore Tribes and Castes Vol.II by Nanjundayya and Iyer, Hindu Tribes and Castes, Vol.II by Sherring, Castes and Tribes of Southern India by Thurston, certain Government Orders issued in 1959 and 1960 and the Administration Report ofthe Welfare Department of 1956-57. These documents could be consulted to find out the distinguishing customs and manners of different tribes but not to reach a conclusion about the appellant.
27. In Dippala Sun Dora v. V.V. Giri, AIR 1958 AP 724, a Division Bench of this Court considered the question whether the appellant ceased to be a Muka Dora on the nomination date. The evidence was led by the parties and the Tribunal on the evidence held that the appellant and his family had cut themselves away from the Muka Dora Hill Tribes and given up their ordinary avocation as well as the tribal customs and manners and ceased to be a member of the Scheduled Tribe and for all practical purposes was acting as a Kshatriya on the date of his nomination.
28. The Division Bench while not agreeing with the order of the tribunal that the appellant ceased to be a member of the Muka Dora Tribe, allowed the appeal. The matter was taken to the Supreme Court for its decision and the same was reported in V.V. Giri v. Dippala Suri Dora, : 1SCR426 . The Supreme Court also considered the question whether the elected candidate ceased to be a member of the Scheduled Tribe at the material time because he has become a Kshatriya and observed as follows:
23. ... It is well known that a person who belongs by birth to a depressed caste or tribe would find it very difficult, if not impossible, to attain the status of a higher caste among the Hindus by virtue of his volition, education, culture and status. The history of social reform for the last century and more has shown how difficult it is to break or even to relax the rigour of the inflexible and exclusive character of the caste system. It is to be hoped that this position will change, and in course of time the cherished ideal of casteless society truly based on social equality will be attained under the powerful impact of the doctrine of social justice and equality proclaimed by the Constitution and sought to be implemented by the relevant statutes and as a result of the spread of secular education and the growth of a rational outlook and of proper sense of social values; but at present it would be unrealistic and Utopian to ignore the difficulties which a member of the depressed tribe or caste has to face in claiming a higher status amongst his co-religionists...
29. In the case covered by the above decision the elected candidate produced extracts of suit registers of 1892, 1936 and 1932 to show that his father and brothers were described as Muka Doras, Mortgage Deeds of 1912, 1910 and 1911 describing the appellant's ancestors as Muka Doras. The Death Register Extract of his elder brother and his school admission register also contain the entry of his caste as Muka Dora,
30. The above principle is applicable only when the elected candidate produces any official record or public document to prove his caste through the entries in those documents.
31. Sri Bojja Tarakam, learned Senior Counsel, submitted that the documentary evidence placed by the petitioner indicates that the members of the first respondent's family since times immemorial have been describing themselves as Kshatriyas and the first respondent is contending that they were describing their caste as Kshatriya for social status, but they belong to Konda Dora Tribe, therefore, there cannot be two caste names for one individual viz., one for social status and the other for the purpose of the benefits extended by the Government. He further submitted that except the Caste Certificate issued by the R.D.O., Parvathipuram, there is no other record to show that the first respondent belongs to Konda Dora Tribe. He also submitted that the witnesses examined by the first respondent are the erstwhile Mokhasadars and Zamindars of other Hill Zamindaris, therefore, they deposed in tune with the version given by the first respondent not only to protect the first respondent, but also to protect them. He further submitted that the first respondent did not choose to examine any person belonging to Konda Dora Tribe, who ordinarily resides in that locality, that the first respondent did not produce any recorded evidence to show that he belongs to Konda Dora Tribe. The first respondent also did not mention about the origin of his family and did not place any documentary evidence to show that his forefathers who are Oriya speaking people also belong to Konda Dora Tribe. He also submitted that though the learned Counsel for the first respondent drew the attention of the Court regarding the contents of the books on Castes and Tribes and the Gazetteers, none of them indicate that the Merangi Zamindar belongs to Konda Dora, that even if the first respondent is treated as a 'Konda Raju', he is not entitled for the benefit under the Representation of People Act, unless the tribe to which he belongs is included in the Schedule in the State of Andhra Pradesh. He further submitted that simply because the first respondent was the erstwhile Hill Zamindar, he cannot be automatically treated as a Konda Dora Tribe man, unless there is material to show that he belongs to that tribe. He further submitted that the Caste Certificate was obtained by the first respondent by exerting pressure on the concerned authorities and the evidence available on record indicates that the procedure prescribed for issuing the Community Certificate was not followed, therefore, the certificate relied on by the first respondent is not a valid one. The learned Counsel for the petitioner further submitted that though the benefit of reservation to Scheduled Tribes was extended since 1950, till 1967 the family members of the first respondent did not take any steps to get them recognized as Konda Doras and only for the purpose of election in the year 1967, the first respondent's paternal grandfather obtained the Caste Certificate and contested in the election for the seat reserved for Scheduled Tribes. The first respondent also did not get the entries in the school records changed and he obtained the Community Certificate for the first time in the year 1978 for the purpose of getting employment and later to contest in the election. He therefore submitted that unless there is sufficient material to show that the first respondent is a Konda Dora by birth, he is not entitled for the benefits of reservation, therefore, he is not an eligible candidate to contest in the election in a reserved constituency and to continue as a successful candidate. He further submitted that there is a distinction in the caste customs of the family of the first respondent and other Konda Doras and there are no alliances between any of the local Konda Doras and the family of the first respondent, except few who are Mokhasadars and Hill Zamindars. He also submitted that the witnesses whom the first respondent examined claimed that they are Konda Doras but failed to produce any recorded evidence to show that they belong to Konda Dora Tribe, in the light of the submissions made by the learned Counsel for the petitioner, I shall examine the evidence placed by both parties.
32. The petitioner is contending that the first respondent does not belong to Konda Dora Tribe. The first respondent is contending that he belongs to Konda Dora Tribe and he contested in the election on the strength of a social status certificate issued by the RDO, Parvathipuram. The burden is on the petitioner to establish that the first respondent does not belong to Konda Dora Tribe. The petitioner in order to establish the said fact relied on the oral and documentary evidence. The petitioner contended that the first respondent has been obtaining the social status certificates for all the elections subsequent to 1983 by showing the judgment of this Court in E.P.No. 13 of 1983 to the concerned authorities and impressing upon them that he was declared by the Court as 'Konda Dora'. This Court in C.M.P.No. 976/2000 and 981/2001 in this Election Petition already held that there is no bar for this Court to consider the question whether the first respondent belongs to Konda Dora Tribe on the strength of the material placed by both parties.
Documentary evidence :
33. The petitioner relied on Exs.A.2 to A.11-registration extracts of the registered Sale Deeds and Mortgage Deeds etc., executed by the family members of the first respondent describing them as belonging to Kshatriya Caste. They were marked through P. Ws. 4 and 5. Exs. A.2 to A 8, A.9 and A11 relate to pre-constitutional period. He also filed Ex.A.23-true copy of the entry of the School Register showing the caste of the younger brother of the first respondent as 'Kshatriya' in column No. 15 of the School Register, The petitioner also relied on Ex.A.22-report of enquiry made by the Commissioner, Tribal Welfare, Government of A.P., regarding the status of Scheduled Tribe claimed by the paternal uncle's son of the first respondent. In Ex.A.22 the Commissioner, Tribal Welfare after verifying 9 registered documents of 1943, 10 documents of 1944, 9 documents of 1945, 8 documents of 1946, 2 documents of 1948 and 1 document of 1949 gave a specific finding that S. Chandrasekhara Raju S/o.Narasimha Raju belongs to 'Kshatriya Community' and not of 'Konda Dora' Tribe.
Probative value of School Records and Registered Documents:
34. The learned Counsel for the petitioner represented that as the registered documents and school records are public documents, the entries in those documents could be safely relied on to know the caste of the Respondent's family.
35. In Radha Bai Ananda Rao v. S. Suvarna Kumar, : (1980)3SCC169 , the election of a candidate was challenged on the ground that he does not belong to 'Koya' Scheduled Tribe mentioned in the Constitution (Scheduled Tribes) Order and therefore her election from the Bhadrachalam Scheduled Tribes Parliamentary Constituency was void. The entries in Birth Register, school records. National Citizenship Register, Tahsildar's certificate as well as the school records of her brother and sister establishing that the elected candidate belonged to Koya Tribe. The election petition was therefore dismissed.
36. In the case covered by the above decision, the appellant Smt. Radha Bai Ananda Rao was elected as a Member of Parliament from the Bhadrachalam (Scheduled Tribes) Parliamentary Constituency in the election held on 21-3-1977. Her election was challenged by Sri K.Bapanna Dora who was one of the contesting candidates at the election on the ground that she was not a member of the Scheduled Tribe and had wrongly made a declaration in her nomination paper that she belonged to the Koya Scheduled Tribe notified by the President's order under Article 342(1) of the Constitution to be a Scheduled Tribe throughout the State of Andhra Pradesh. The question before the Court in the said decision was whether the finding of the High Court that the appellant did not belong to Koya Tribe is correct. The Supreme Court after considering the entries in the school records other elder brother and younger sister held that there is no reason to disbelieve the correctness of the entries in the school records, arrived at a conclusion that the appellant belonged to the Koya Scheduled Tribe and set aside the order of the Tribunal which was given on the basis of the entries made in the subsequent school records.
37. In Madhuri Patil v. Additional Commissioner Tribal Development, 1994 AIR SCW 4116, the Supreme Court while dealing with the matter relating to the student's claiming admission in Maharashtra on the basis of a certificate as being a member of Scheduled Tribe called Mahadeo Koli against the school record pertaining to admission of his father relating to pre-independence period, held that 'the school record of pre-independence period carries greatest probative evidentiary value'. The Supreme Court further held as follows:
The entries in the school register preceding the Constitution do furnish great probative value to the declaration of the status of a caste. Hierarchical caste stratification of Hindu social order has its reflection in all entries in the public records. What would, therefore, depict the caste status of the people inclusive of the school or college records, as the then census rules insisted upon. ... People are idemmed by their castes for one or the other is a reality. Therefore, it is no wonder that caste is reflected in relevant entries in the public records or school or college admission register at the relevant time and the certificates are issued on its basis.
38. The above Rulings make the position clear that the entries in the school records and registered documents relating to pre-constitutional period carry greatest probative evidentiary value; therefore entries in such records could be safely relied on.
Oral evidence of the petitioner:
39. In addition to the documentary evidence the petitioner adduced oral evidence. The petitioner as P.W.1 stated that the first respondent is not a Konda Dora. In the school record of the 1st respondent's brother, the caste was mentioned as Kshatriya. There are several families of Konda Dora Community in China Merangi and neighbouring villages, but the first respondent has no relationship with families of Konda Dora Tribe of their area. The first respondent's family does not have any marriage alliances with the families of Konda Dora Tribe. The family of the first respondent and his relations are being locally called Rajulu. The first respondent's wife is from Orissa State. Her parents are Kshatriyas. His younger brother's wife is from Madhya Pradesh. On verification of Caste Certificate, the Commissioner, Tribal Welfare found that the junior paternal uncle's son of the first respondent Sri Satrucharla Chandrasekhara Raju S/o Narasimha Raju of China Merangi Village does not belong to Konda Dora Tribe. In the school record of the first respondent's brother Chandrasekhara Raju, his caste was mentioned as 'Kshatriya'. There is no tribe by name Konda Raju in Naguru Constituency. The Tribal Employees Association made an application to the Collector for cancellation of the Caste Certificate of the first respondent. A suggestion was given to this witness that the first respondent belongs to Konda Dora Tribe and he was describing his caste as Kshatriya for social status.
40. P.W.2 Sri P. Papanna Dora, a Konda Dora and a resident of Lakkaguda Village, stated that the community of the 1st respondent is 'Rajulu'. There is no relationship between the family of the first respondent and Konda Dora families of China Merangi and neighbouring villages. In the cross-examination P.W.2 stated that R.W.2 is his co-brother and R.W.4 is related to him. But, he expressed his ignorance about the brothers of the wife of R.W.2 marrying the daughters of Satrucharla Ramabhadra Raju. He also expressed his ignorance whether one Ankalapu Apparayudu, his co-brother by Courtesy is related to the first respondent. He also expressed his ignorance whether Satrucharla Ramabhadra Raju is the co-brother of Padala Kurma Rayudu. He also expressed his ignorance whether the daughter of one Deesari Muthyala Dora, one of his relations, was married to Satrucharla Somasekhara Raju. This witness vehemently denied a suggestion that the first respondent's family belong to Konda Dora Tribe.
41. P.W.3 Rowthu Ravi Kumar, a non-tribal deposed that the first respondent belongs to 'Rajulu' community i.e., kshatriyas. There is no relationship between the family of the first respondent and other Konda Dora families. The family members of the first respondent are kshatriyas and they are also Hill Zamindars. Whenever he was visiting the house of the first respondent he noticed the ladies not mixed with men and they were observing Parda system and were speaking to men by hiding themselves behind the doors or walls. He further stated that the wife of Chandrasekhara Raju belongs to Kshatriya Community. He further stated that the members of the family of the first respondent are Kshatriyas and they are also called Hill Zamindars. Though it was suggested to this witness that the wife of Chandrasekhara Raju who hails from Madhya Pradesh belongs to Konda Dora Community, the first respondent has not placed any material to prove that there is Konda Dora Community in Madhya Pradesh and that the wife of his younger brother Chandrasekhara Raju belongs to Konda Dora Tribe.
42. P.W.6 Sri Panuganti Krishna Rayudu,a Konda Dora belonging to Purnapadu Village deposed that the first respondent belongs to 'Rajulu' community. There is no relationship between the family of the first respondent and the families of other Konda Doras. In the cross-examination P.W.6 stated that his son-in-law Deesari Jayaprakash is the brother-in-law of Satrucharia Narasimha Raju. The senior paternal uncle's daughter of his son-in-law by name Varalakshmi was given in marriage to Satrucharla Narasimha Raju. Deesari Appanna Dora is the cousin brother of his son-in-law. Yejju Simhachalam Dora is his co-brother. Ankalapu Apparayudu of Itika Village is his brother-in-law by Courtesy. Padala Surya Rayudu and Kurma Rayudu of Puligummi Village are related to him. The evidence of this witness indicates that though his family has some relationship with the first respondent through his relations, he denied a suggestion that the first respondent's family belongs to Konda Dora Tribe. The evidence of this witness gives an indication that the family of the first respondent has marital relationship with one or two Konda Dora families. They have marital relations with the people of other communities like Mooka Dora, Manne Dora, Brahmins etc. Even if the women who were married to the family members of the first respondent belong to Konda Dora Tribe, it is not sufficient to establish that the first respondent belongs to the said tribe. Unless the first respondent establishes that his ancestors on paternal side belong to Konda Dora Tribe, he cannot claim the status of that tribe on account of marital relationship with one or two Konda Dora families of higher strata i.e., Mokasadars or Hill Zamindars.
43. All these witnesses stated in one voice that the 1st respondent belongs to Rajulu Community and they denied a suggestion that he belongs to Konda Dora Tribe. The above oral evidence adduced by the petitioner is also lending support to the documentary evidence placed by him to show that the 1st respondent does not belong to Konda Dora Tribe.
Caste Certificate - procedure and validity:
44. Regarding the procedure for issuance of Social Status Certificates (Caste Certificates), the Supreme Court gave some directions. In Madhuri Patil v. Additional Commissioner Tribal Development, 1994 AIR SCW 4116, the Supreme Court indicated the procedure for issuance of a social status certificate and the following are the important directions for issuance of a social status certificate.
(1) The application shall be made to the Revenue Divisional Officer and such officer shall issue the certificate.
(2) The candidate, shall file an affidavit duly sworn and attested by a competent Gazetted Officer or non-gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.
(3) (i) Each Director should constitute a Vigilence Cell to investigate into the social status claims.
(ii) The Inspector being a member of the cell should go to the local place of residence and original place from which candidate nails or the place from which he usually resides.
(iii) The Vigilence Officer should personally verify and collect all the facts of the social status.
(iv) He should examine the school records, birth registration, if any.
(v) He should examine the parent/guardian or candidate in relation to their caste or such other persons who have knowledge of the social status of the candidate.
(vi) He shall submit a report to the Director in the prescribed form.
(vii) He should also mention the particulars relating to their anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc.
(4) In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim.
45. The petitioner in order to establish that the Caste Certificate covered by Ex.A.24 obtained by the first respondent is not a valid one relied on the evidence of P.Ws.7, 8, C.W.1 and Exs.C.1 to C.10.
46. The petitioner contended that the Caste Certificate issued by the R.D.O. is not a valid one, as it was issued without conducting any enquiry about the genuineness or otherwise of the caste of the first respondent and given under the threat and coercion of the first respondent. The first respondent contended that he filed his nomination on the basis of Ex.A.24 Caste Certificate, therefore, it has to be decided whether the Caste Certificate was issued to the first respondent after following the procedure prescribed for issuing the certificate and whither it can be treated as a valid certificate.
47. P.W.8 the Mandal Revenue Officer, Giyyammavalasa while giving evidence regarding the issuance of Ex.A.24-Caste Certificate mentioned about the general procedure that is being followed in issuing the Caste Certificate. According to him, whoever wants to get a Caste Certificate has to make an application to the concerned M.R.O. The M.R.O. in turn forwards the same to the concerned Revenue Inspector for verification regarding the genuineness of the caste of the applicant and to submit a report after enquiry regarding the truthfulness of the claim made by the applicant. The Revenue Inspector in turn goes to the village of the applicant, ascertains the information with the help of the Village Administrative Officer (V.A.O.) and after gathering the said information he submits the report about the genuineness of the community of the applicant along with the report of the VAO. After receipt of those reports the MRO will carefully scrutinize the contents to find out whether they are in proper order and whether they can be accepted. After going through the contents, the MRO will put his initial and forward the same to the concerned clerk to enter in the Register of Caste Certificates and bring the file and the register to the MRO for signature through proper channel. After satisfying with the entries, the MRO will issue Caste Certificate. In respect of the certificates that are supposed to be issued by the RDO, the MRO will forward the file with a covering letter and a Caste Certificate prepared by him. If the MRO is not satisfied with the report of the Revenue Inspector he has to make an enquiry to satisfy about the genuineness of the community claimed by the applicant. If the RDO is not satisfied with the report, he can also make an enquiry and satisfy himself about the genuineness of the community of the applicant. All the reports of the enquiry will be forwarded to the RDO along with a covering letter and nothing will remain with the office of the MRO except the covering letter.
48. According to the further evidence of P.W.8, the application of the first respondent was presented on 20-7-1999. The Revenue Inspector submitted his report on the same date. The files relating to issuance of Caste Certificates will be preserved by giving D.Dis.No. and their life will be 10 years. After 10 years they will be destroyed after following the procedure,
49. P.W.7, the R.D.O., Parvathipuram also mentioned about the procedure that was being followed in issuing the Caste Certificate. He stated that the RDO is the competent authority for issuance of Community Certificate for Konda Dora Tribe. Whoever is in need of Community Certificate has to make an application in the prescribed form to the concerned MRO. The MRO in turn directs the Revenue Inspector and the field staff viz., VAO or Panchayat Secretary to make an enquiry about the correctness of the community of the candidate and to submit a report. After receipt of the enquiry report of the Revenue Inspector, the MRO will sign on it and forward the Form of Certificate of the applicant with a covering letter to the Office of the RDO. After receipt of the file the concerned clerk will place the certificate before the RDO for his signature. The RDO after verification of the entries made in the Caste Certificate signs on the certificate with designation stamp and later it will be dispatched to the candidate either in person or through MRO. Since Ex.A.24 Caste Certificate was forwarded to him duly signed by the VAO, Revenue Inspector and the MRO, the RDO deemed that the certificate was forwarded after following the procedure. He further stated that in pursuance of G.O. Ms. No. 1793, Education, dated 23-9-1970 and as per the provisions of AP. (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 and Rules of 1997 the procedure is being followed in issuing the Caste Certificates. The RDO farther stated that the file relating to the issuing of Caste Certificates is available with the MRO, Giyyammavalasa, including the application of the first respondent, the RDO did not look into the application file relating to the enquiry regarding the issuance of Caste Certificate and it remained with the MRO only.
50. The evidence of P.Ws.7 and 8 indicates that whoever is in need of Community Certificate has to make an application to the MRO in the prescribed form and the MRO in turn gets an enquiry conducted for issuance of Caste Certificates for Konda Dora Tribe people and after satisfying himself about the correctness of the report given by the Revenue Inspector, signs the certificate and forwards the same to the RDO for his satisfaction and signature.
51. R.W.9, an M.L.A and an Ex-Minister in the Government of A.P., stated in his evidence that the enquiries are being conducted in Vizianagaram District regarding the securing of employment of some people on the basis of bogus Caste Certificates, therefore, instructions were given to the concerned Collectors to ensure that proper enquiry is made before issuing the Caste Certificates, particularly the certificates relating to Konda Dora Tribe.
52. Though P.W.7 was directed to produce the file relating to the issuance of Caste Certificate of the first respondent, he could not produce the same by saying that the file will be available in the office of the MRO. He produced a file relating to the 1999 Assembly Elections of Naguru Assembly Constitutuency, The MRO as P.W.8 stated that the entire file relating to the enquiry for issuance of Caste Certificate will be forwarded to the RDO and only the copy of the covering letter remains with the MRO. The first respondent did not take steps to summon the file relating to the enquiry for the issuance of Caste Certificate either from the office of the RDO or from the MRO to prove that Ex.A.24 Caste Certificate was issued after due enquiry and after following the procedure prescribed under law. Therefore, this Court addressed a letter to the Collector, Vizianagaram to instruct the concerned officials to cause production of the file relating to the Caste Certificate of the first respondent.
53. One clerk from RDO's Office produced a file said to be maintained in their office. Though a covering letter was enclosed to the said file mentioning that the file was produced from the Office of the RDO, the papers do not contain the initials, signatures, receive stamp or the inward number of the Office of the RDO on any of the papers covered by Exs.C.1 to C.10. The documents available in the file were got marked through the Revenue Inspector, who was examined as C.W.1. The application covered by Ex.C.1 does not contain the particulars of the Caste Certificates obtained by the first respondent on previous occasions. He did not enclose the School Certificate containing the caste. Except mentioning in Column No. 8 that he belongs to Konda Dora Scheduled Tribe, no other particulars relating to the land records, census records, information from the Social or Tribal Welfare Departments were filed along with Ex.C.1 application. The Revenue Inspector is supposed to verify the census records, birth records, and ration card etc., but all those columns were kept blank. The application form as well as the columns in the schedules is in the handwriting of C.W.1. The signatures of the first respondent on the application as well as the schedules are in different ink and the date under the signature was mentioned as 18-7-1999.
54. Regarding the nature of enquiry C.W.1 stated that the application covered by Ex.C. 1 and the annexure covered by Exs.C.2 to C.5 were brought to him directly by the messenger of the first respondent at about 8 a.m. Immediately after receipt of the application of the first respondent, he prepared one Caste Certificate. On the next day he along with the VAO went to a house to the west of the first respondent and recorded the statements of three persons to the effect that the first respondent belongs to Konda Dora Tribe. Immediately after recording the combined statement he prepared a report and submitted to the MRO directly at Giyyammavalasa at 4 or 5 p.m. on the same day. When the witness was probed with reference to the documents marked, he stated that the application and the schedules are in his handwriting and they were prepared on the next date of receipt of the application i.e., on the date of preparation of the panchanama covered by Ex.C.6.
55. There are many complaints that some people who are in tribal areas or who belong to the neighbouring places of the scheduled areas are obtaining false certificates claiming themselves as Scheduled Tribes, therefore, the Government gave specific instructions to the concerned authorities who are issuing the social status certificates, more particularly relating to the Konda Dora Tribe, to make a thorough enquiry, to trace the origin of the said applicant, to satisfy that the family of the applicant was recognized as Konda Dora from times immemorial, that there is sufficient recorded evidence to show that they belong to Konda Dora Tribe, and then only to issue the certificates. But, unfortunately, in this case the Revenue ' Inspector who was examined as C.W.1 categorically conceded that the application for the social status certificate was not filled by the first respondent, that the blank papers were simply signed and sent to him directing to fill up those forms, that the VAO was asked to sign on it and later it was sent to the M.R.O. and the R.D.O for affixing their seal of approval unmindful of the mandatory requirement of the procedure to be followed as per the guidelines issued by the Government of India and the Supreme Court. It was also blurted out by C.W.1 that since the first respondent had shown him the judgment of the High Court in E.P. No. 13 of 1983 stating that the High Court recognized him as a Konda Dora, he had no option except to sign on those papers and prepare a certificate describing the first respondent as Konda Dora. The record produced by the concerned authorities is a clear indication that they fabricated those papers just before the date of production into Court by anti-dating them. The truth came out from the womb of falsehood on account of this Court noticing the correction of the date put by C.W.1 by correcting the year '03' as '99'. Unless there is sufficient material to show that the Caste Certificate was issued after thorough enquiry and after following the procedure prescribed for issuing the certificate, it cannot be treated as a valid certificate.
Documentary evidence on behalf of the first respondent: nil.
Oral evidence on behalf of the first respondent:
56. If we ignore Ex.A-24 Caste Certificate, there is nothing on record to show that the first respondent belongs to Konda Dora Tribe. The Gazetteers also describe the Zamindar of Merangi as Konda Raju. It is the established principle laid down by the Supreme Court that nothing could be substituted for the caste mentioned in the presidential notification, therefore, Konda Raju cannot be equated with Konda Dora. If the first respondent is so interested to get the benefit of reservation, the only remedy available to him is to make an application to the Government to include Konda Raju also as one of the tribes under the Presidential notification.
57. The names of the members of the family of the first respondent and the names of other Konda Dora people are distinct, as indicated below:
(2) Satrucharla Pratapa Rudra Raju,
(3) Satrucharla Vijayarama Raju,
(4) Satrucharla Jagannadha Raju,
(5) Satrucharla Somasekhara Raju etc.
58. Whereas the names of other Konda Doras are Jaligapu Ganga Rao, Gunaganji Chandraiah, Baddena Ganga Rao etc. The above names are also an indication of differentiation between the family of the first respondent and people belonging to Konda Dora Tribe.
59. The evidence adduced by the petitioner indicates that there is nothing on record to show that the first respondent belongs to Konda Dora Tribe. On the other hand, there is school record and registered documents to indicate that the first respondent was a Kshatriya. Ex.A.23-enquiry report of the Commissioner, Tribal Welfare indicates that the cousin of the first respondent does not belong to Konda Dora Tribe. The above material placed by the petitioner indicates that the first respondent does not belong to Konda Dora Tribe.
60. The first respondent in the written statement mentioned as follows:
My ancestors used to describe themselves as 'Kshatriyas' as they belong to Hill Zamindari family of Merangi. I never claimed as 'Konda Raju'.
61. The first respondent did not dispute the entries in the school record and the registered documents describing his caste as Kshatriya, therefore, there is no need to discuss about the contents of Exs.A.2 to A.11 and A.23 to A25. Since the petitioner discharged his initial burden through oral and documentary evidence that the first respondent does not belong to Konda Dora Tribe, the onus is on the first respondent to establish that he belongs to Konda Dora Tribe. It is for him to explain under what circumstances his family members are describing themselves as 'Kshatriyas' and mentioning their caste as Kshatriya in school records and other documents. It is also the burden of the first respondent to place the material, if any, to establish that he belongs to Konda Dora Tribe.
62. The first respondent in his evidence as R.W.1 stated that he belongs to Konda Dora Tribe, but for social status his family members and himself are describing themselves as Kshatriyas. Since his ancestors they were describing themselves as kshatriyas. He further stated that Sri Lakshmipathi Varma of Sangamvalasa is his co-brother. Sri Harihara Pratapa Rayudu of Andra Zamindari is his maternal uncle by courtesy. His sister Narasimhapriya was married to R.W.5 of Belgam Zamindari. He further stated that his family is having relationship with other Hill Zamindars and Mookasadars belonging to Kurupam, Parvathipuram, Andra, Tonam, Sangamvalasa, Itika, Mondemkhel, Mutyaladoravalasa, Puligummi, Dorajammu and Alluvalasa situated in Vizianagaram District, but in the book on Castes and Tribes all the Zamindars are described as Konda Rajus, except the Zamindar of Andra, who was described as the descendent of Konda Dora. The evidence of R.W.1 indicates that for the purpose of social status the first respondent and his family members are describing their caste as 'kshatriya' and for the purpose of getting the benefit of reservation in educational institutions and elections they are describing their caste as 'Konda Dora'. He did not place any recorded evidence either in the form of school record or any other record to show that he belongs to the said tribe. The first respondent in order to impress upon this Court that he had relationship with other Konda Dora families examined some persons. He did not examine any persons who are directly related to him. Though he claimed relationship with one Dippala Suri Dora of Sarika Village, who belongs to Muka Dora Tribe, he did not mention as to what is his relationship with the said Suri Dora. He stated in his evidence that in his school certificate his caste was mentioned as Kshatriya. He did not make any effort to get the name of his caste mentioned in the School Certificate changed, in the light of the Caste Certificate issued by the R.D.O. For the first time his grandfather obtained Caste Certificate as Konda Dora for contesting the elections in the year 1967. The school record of his younger brother also reflects that they belong to Kshatriya Community. He also concedes that in the School Leaving Certificate of his younger brother their caste was described as Kshatriya. Though he claimed that he obtained Konda Dora Caste Certificate in the year 1971 for getting employment in the Girijan Co-operative Corporation, he did not produce the said certificate or copy of it to prove whether he was claiming as Konda Dora from 1971. By the date of obtaining Caste Certificate from the concerned authorities he knows that his caste was mentioned as Kshatriya in the school records. He further stated that he does not know to which part of the country the parents of his paternal grandmother belonged. His paternal great grandmother hailed from Orissa State. The marriage alliances of his family are from Orissa or from other States. R.W.1 conceded in the cross-examination that the cousins of his father and grandfather were declared by the Commissioner, Tribal Welfare as persons belonging to Kshatriya Community, but not Konda Doras due to non-availability of sufficient information. The Commissioner might have described them as Kshatriyas due to lack of proper understanding.
63. R.W.2, a resident of Gaurammapeta did not state to which caste he belongs to, but he stated that his wife's brothers by name Pakki Saradhi and Pakki Appa Rao married the sisters of the first respondent's father. He did not mention to which community the parents of his wife belonged.
64. R.W.3, a Konda Dora, deposed that his mother hailed from Satrucharla family. His maternal grandfather was Satrucharla Pakeer Raju.
65. In the cross-examination this witness stated that the father of the first respondent had no sisters and he was the only son of his father whereas R.W.2 stated that the wives of Pakki Saradhi and Pakki Appa Rao are the sisters of the first respondent's father.
66. The first respondent did not clarify as to how this discrepancy arose in the evidence of R.Ws.2 and 3 regarding the relationship of the wives of Pakki Saradhi and Pakki Appa Rao. The first respondent was silent about his relationship with Pakki Saradhi and Paldd Appa Rao, therefore, there is any amount of doubt in the evidence of R.W.2 that the sisters of the first respondent's father was married to Pakki Appa Rao and Pakki Saradhi. The first respondent did not make any efforts to examine Pakki Saradhi, Pakki Appa Rao or their wives Padmavathi and Anasuyamma.
67. R.W.4, Deesari Appanna Dora, resident of Mondemkhel, a Konda Dora, deposed that his father's sister Somidevamma was married to Satrucharla Ramabhadra Raju. His senior paternal uncle's daughter by name Seethayamma was married to Satrucharla Soinasekhara Raju, He further stated that his daughter Usha was married to Deesari Jayaprakash, who is his junior paternal uncle's son and the sister of Jayaprakash by name Varalaxmi was married to Satrucharla Narasimha Raju. This witness did not say anything about the relationship of Pakki Saradhi and Pakki Appa Rao with the first respondent. This witness expressed his ignorance about the fact whether the women from first respondent's family were given in marriage to any other Konda Dora Tribe, except his family. He conceded that there are no alliances from first respondent's family in recent times to any Konda Dora families. Even if this witness belongs to Konda Dora Tribe, the marriage of the women of his family in the family of the first respondent do not bring the status of Konda Dora Tribe to any of the members of the first respondent's family unless the first respondent establishes that his ancestors on paternal side are konda doras. Though this witness ventured to claim that he is related to the first respondent he expressed his inability to say as to when his father's sister Somidevamma and another senior paternal uncle's daughter Kanthamma died. This witness is 40 years old and he stated that Somidevamma and Kanthamma died during his childjiood, therefore, there is no possibility for him to have any personal knowledge about the relationship of both the families and subsequent events.
68. R.W.5, a Hill Zamindar of Belgam and the sister's husband of the first respondent, deposed that he belongs to Konda Dora Tribe. His family has marital relationship with the first respondent's family. His grandfather's cousin sister Rajyalakshmidevi was married by Satrucharla Jagannadha Raju of China Merangi. This witness stated that Padmavathi and Anasuyamma who were married by Pakki Saradhi and Pakki Appa Rao were daughters of Satrucharla Ramabhadra Raju. This part of the evidence of this witness is falsifying the evidence of R.W.2 that they are the sisters of the first respondent's father. R.W.5 did not place any documentary evidence to show that he belongs to Konda Dora Tribe. On the other hand, he does not have any idea of his mother's family having any existing relationship with any of the Konda Dora families of the Vizianagaram District. His family does not have any marital relations with any of the Konda Dora families except the family of the first respondent and the Zamindar of Pachipenta.
69. R.W.5 further stated that he had his primary education in St. Alloysius Anglo-Indian High School, Visakhapatnam. In the primary school records his caste column was not filled. It was suggested to him that his caste column was filled as 'Kshatriya' in the school record. Though he stated that he has records to prove that he belongs to Konda Dora Tribe, he did not produce any such records. He claims that the only record available to him is the Caste Certificate issued by the RDO, Parvathipuram. He further stated that he couldn't say whether the Gazette Notification of 1796 and Hill Zamindari Act, 1839 indicate that his family belongs to Konda Dora Tribe. He does not remember the years in which his sons were admitted in the school. Though he stated that the caste of his sons was mentioned as Konda Doras in school records, neither himself nor the first respondent took any steps to summon the school records to establish the said fact
70. R.W.5 further stated that R.Ws.2 to 4 are Mokhasadars, therefore, they belong to the ruling class. The first respondent did not explain as to why he could not examine anybody from Konda Dora Tribe other than the people from ruling class.
71. R.W.6 belongs to Hill Zamindari of 'Andra'. This witness stated that his paternal grandfather used to have three wives and they were from Satrucharla family of China Merangi. His mother also hailed from Satrucharla family of China Merangi. This witness also did not produce any document to show that he belongs to Konda Dora Tribe. In the cross-examination he stated that his daughter married a Brahmin from Bhuvaneshwar and he does not know the names of the in-laws of his daughter. He further stated that though there are 60 Konda Dora families in his village, he has no relationship with any other Konda Dora families of his village. This witness also stated that he does not remember what was the caste mentioned in his School Leaving Certificate. He could not state as to what was the name of the caste mentioned in the school record of his son. The witness pleading ignorance about the mentioning of the caste in the school registers of his sons is creating suspicion about the truthfulness of his version and a doubt that he does not mention his caste as Konda Dora. The evidence of this witness indicates that his family was having marital relations with other communities also and as he could not produce any recorded evidence to show that he belongs to Konda Dora Tribe, his evidence is of no help to the first respondent.
72. R.W.7 belongs to Muka Dora Tribe. He stated that his wife is the sister of Lakshmipathi Vanna, who is the co-brother of the first respondent. His father-in-law Sukumara Raju of Kothapatnam Village belongs to Manne Dora Tribe. He has no relationship with any Konda Dora families of his village. He further stated that in the normal circumstances there would not be any alliances between the families of Konda Doras and Mukadoras. This witness also stated that his son studied X-class in Orissa. He does not know as to what was the caste mentioned in the school record of his son. He has relationship with Rajulu families of China Merangi i.e., the family of the first respondent. His father and himself never claimed as 'Kshatriyas'. He further stated that all the people from Konda Dora, Muka Dora and Manne Dora families of his locality have suffix as 'Dora'.
73. R.W.8, Lakshmipathi Vanna, who is the co-brother of the first respondent stated that he belongs to Manne Dora Tribe. His first brother had a love marriage with a girl of another community. His second brother married a girl from Muka Dora Tribe. He is a Mokhasadar and he had relationship with the Zamindar of Pachipenta. He further stated that for the purpose of social status they are describing themselves as 'Rajus' and the society is also treating them as 'Rajus'. The evidence given by this witness indicates that the marriage alliances are being made between the Zamindars and Mokhasadars irrespective of the tribe or caste to which they belong.
74. The first respondent in order to prove that he does not belong to Kshatriya Caste but belongs to Konda Dora Tribe examined R.W.9, a Kshatriya and a sitting Member of the Legislative Assembly from Satiwada Constituency. This witness stated that in the school record his caste was mentioned as 'Kshatriya'. All Kshatriya families mention the caste of their children as 'Kshatriya' at the time of admission in the school. He did not see any non-Kshatriya mentioning his caste as Kshatriya. In their community invariably there will be a suffix of 'Raju' or 'Vanna' to their names. At the time of admission in the school also he came to know that he belongs to Kshatriya community on the basis of the entry made in the school record. He stated that since he came to know that the first respondent was elected from a constituency reserved for Scheduled Tribe he understood that the 1st respondent is not a kshatriya. This witness also stated that he came to know that Sri L.N. Sanyasiraju of Salur was declared as a non-tribal and a Kshatriya. This witness gave evidence on the basis of the information received by him. He has no personal knowledge and whatever he has stated is hearsay, therefore, it does not carry any probative value to support the plea of the first respondent.
Customs - Distinct from customs of Konda Dora Tribe:
75. So far as the customs and usages are concerned, there is a subtle distinction in some of the customs of the family of the first respondent with those of the people belonging to Konda Dora Tribe. None of the witnesses stated that the people belonging to Konda Dora Tribe would have thread marriage whereas R.W.1 stated that they have the custom of thread marriage to the male members of his family before the marriage. There is a custom of the people belonging to Konda Dora Tribe to engage a tribal priest as a purohit for the marriage who is generally known as 'Deesari' whereas the first respondent's family has a custom of engaging a Brahmin as a purohit for the marriage of the members of their family. The first respondent and R.W.5 stated that their ladies observe parda system whereas in Konda Dora Tribe there is no such custom. In Konda Dora Tribe there is a custom of men and women taking alcohol in functions and dancing with men whereas in the family of the first respondent there is no such custom of women taking alcohol and dancing with other men. R.W.1 stated that they have a separate burial ground to bury the dead bodies of the members of his family and there is a custom of gun salute at the time of taking the dead bodies in procession whereas there is no such custom for ordinary people of Konda Dora Tribe. The above differences in the customs indicate that though the family of the first respondent is a Hill Zamindari family, their customs are different from the people belonging to Konda Dora Tribe.
76. The above oral evidence adduced by the first respondent is very weak and is not sufficient to establish that the first respondent belongs to Konda Dora Tribe.
Recitals in Gazetteers Act of 1839 and Booh:
77. Though the first respondent did not adduce any documentary evidence to prove that he belongs to Konda Dora Tribe, he relied on certain Gazetteers and the Ganjam and Vizagapatam Act, 1839. In the Act of 1839 the following are recognized as Hill Zamindaris: 1) Jayapuram, 2) Kurupam, 3) Samgam Valasa, 4) Chemudu, 5) Pachipenta, 6) Andra, 7) Saluru,8) Belgam, 9) Merangi and few others, therefore, there is no doubt that the Merangi to which the first respondent belongs is a Hill Zamindari. In the book 'Castes and Tribes of South' India' written by Edgar Thurstan and K. Rangachan, which was prepared on the basis of the Madras Census Report, 1891, the second para at page 249 in Volume VI is relevant for the purpose, which reads as follows:
In the Vizagapatam District Razus are recognized as belonging to two classes called Konda (Hill), and Bhu (Plains) Razu. The former are further divided into the following sections to which various Zamindars belong: Konda, Kodu, Gaita, Muka, Yenati. The Konda Razus are beleived to be Hill Chiefs, who have in comparatively recent times, adopted the title of Razu.
78. The learned Counsel for the first respondent drew the attention of this Court to the definition 'Raju' given in the same Volume at page No. 247, which reads as follows:
The Razus or Rajus, as stated, in the Madras Census Report, 1901, to be 'perhaps the descendants of the military section of the Kapu, Kamma and Velama Castes. ... They say they are Kshatriyas.
79. The learned Counsel for the first respondent relied on the following passage at page 248 of the same Book, to claim that the first respondent belongs to Konda Dora Tribe:
'It may be noted that some Konda Doras call themselves Raja (Razu), Kapus or Reddis and Suryavamsam (of the solar race). It is evident that Razu has been returned by a number of individuals who, in reality, belong to other castes, but claim to be Kshatriyas.... In religion they are mostly Vaishnavites and their priests are Brahmins. They wear the sacred thread and in most respects copy the marriage and other ceremonies of the Brahmins.'
80. In Volume III of the same Book Konda Dora is defined at page 349 which reads as follows:
Konda Dora: Konda Doras are a caste of hill cultivators found chiefly in the Vizagapatam.
81. This portion of the book gives a general description of the Konda Dora Tribe and there is no reference under this head that the first respondent belongs to Konda Dora Tribe.
82. The learned Counsel for the first respondent drew the attention of this Court to some portions of the Madras District Gazeteers, Vizagapatam issued by W.Francis, ICS, which was printed in the Government Press, Madras in 1907. At page 95 there is reference to Muka Dora Tribe, which reads as follows:
Muka Doras may perhaps be classed as a separate caste. The Pachipenta Zamindar is one of them. They speak Telugu.
83. At page 245 there is reference to 'Andra' Hill Zamindari wherein there is a mention 'Pedda Ramanna Dora belong to Konda Dora caste.' At page 293 there is a mention about 'Kurupam', at page 294 about 'Parvathipuram', at page 295 about 'Merangi' and at page 298 about 'Sangamvalasa', but there is no mention in these pages to which caste or tribe the respective Zamindars belonged to. Therefore, the contents referred to above are not helpful to the first respondent to prove that he belongs to Konda Dora Tribe.
84. Against the above material placed by the first respondent through the Gazetteers and the Act of 1939, the petitioner's Counsel produced a Book known as Manual of the District of Vizagapatam in the Presidency of Madras, compiled and edited by D.F. Carmichael, which was reprinted in 1869. The above book is the earlier book than the books produced by the first respondent. In the said book there is a reference to Hill Zamindaris from page Nos. 322 to 332 mentioning the caste to which the respective Zamindars belonged to and the same reads thus:
1)AndraKonda Dora2)SalurKonda Raju3)PachipentaKonda Raju4)ChemuduKonda Raju5)Sangam ValasaKonda Raju6)BelgamKonda Raju7)MerangiKonda Raju8)KurupamKonda Raju
85. The description of the castes of the Zamindars of the respective Estates by the author is a clear indication that there is a distinction between the castes 'Konda Dora' and 'Konda Raju'; otherwise the author would not have mentioned that Andra Zamindar belongs to Konda Dora caste and other Zamindars belong to Konda Raju caste. Had there not been any distinction between Konda Dora caste and Konda Raju caste it would have been mentioned in the Manual that all of them belong to Konda Dora caste. The above description of castes further indicates that all Hill Zamindars are not Konda Doras. They may be Muka Doras, Manne Doras, Konda Doras or Konda Rajus.
Caste synonymous to Konda Dora Tribe:
86. The caste 'Konda Raju' cannot be equated to the Tribe 'Konda Dora'. The legal position on this aspect is very clear.
87. In Srish Kumar Choudhury v. State of Tripura, : 1SCR576 , the Supreme Court held that the entries in the Presidential Order have to be taken as final and the scope of enquiry and admissibility of evidence is confined to showing what an entry in the Presidential Order is intended to mean. It is not open to the Court to make any addition or subtraction from the Presidential Order.
88. In Pankaj Kumar Saha v. Sub-Divisional Officer, : 2SCR468 , the Supreme Court held that the Court is devoid of power to include in or exclude from or substitute or declare synonymous to be a Scheduled Caste or Scheduled Tribe. The Courts would only look into the notification issued by the President to see whether the name finds place in the notification? In the absence of any caste in the Presidential notification the certificate issued to such person is clearly unconstitutional and a fraud on the Constitution and such person cannot be considered to belong to Scheduled Caste.
89. In A.P. Scheduled Tribes Employees Association v. Aditya Pratap Bhanjdev and Ors., : 2001(6)ALD582 (FB), a Full Bench of this High Court held as follows:
The tribes or tribal communities who are specified in the notification issued by the President of India under Article 342(1) alone are deemed to be STs for claiming benefits under the Constitution of India. The President of India in exercise of powers under Article 342(1) notified Constitution (Scheduled Tribes) Order, 1950, which was amended by Parliament under Article 342(2) by SCs & STs Order (Amendment) Act, 1976. As per the Constitution (ST) Order in relation to the State of Andhra Pradesh, Konda Dora community is ST, vide item No. 13 of the said Order. No person who does not belong to Konda Dora can claim to belong to Konda Dora either by a process of comparison, or can, by a process of equalization, and/or by reason of residence in hill/tribal areas, claim to belong to Konda Doras. This is because Article 342 creates legal fiction, which has to be given its fullest effect. By reason thereof, any caste or tribe or tribal community, which does not come -within the purview of Constitution (STs) Order, cannot be treated or claimed to be as belonging to ST as per Article 366(25). Further, where a person migrates from a State in respect of which his community is Scheduled Tribe to another State in respect of which his community is not Scheduled Tribe, he will continue to be a member of the Scheduled Tribe only in relation to the State in respect of which his community is Scheduled Tribe. (Para 31)
90. The learned Counsel for the 1st respondent cited the following decisions in support of his contention.
91. In Bhaiya Ram v. Anirudh, : 1SCR804 , the Supreme Court while considering the question whether a particular person is a member of Scheduled Tribe so declared by the President under Article 342 of the Constitution is essentially a question of law, held that though an admission made by him expressly or by implication that he is not a member of a Scheduled Tribe is evidence against him in an election petition, the evidence is not conclusive. The Supreme Court referred to Clause (2) of an Order called the Constitution (Scheduled Tribes) Order, 1950 issued by the President of India in exercise of the powers conferred under Article 342 provided as under:
The tribes or tribal communities, or pails of, or groups within, tribes or tribal communities specified in Parts I to XII of the Schedule to this 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 residing in the localities specified in relation to them respectively in those parts of that Schedule.
92. The first respondent did not explain as to why the caste of Merangi Zamindari was mentioned as Konda Raju. If that is not correct where is it mentioned that the Zamindar of Merangi belongs to Konda Dora Tribe or Caste. When the first respondent did not choose to dispute the entries made in the school records and the registered documents, the burden heavily rests on him to establish that he belongs to Konda Dora Tribe and for the purpose of social status only they were describing their caste as Kshatriya in the school records and the registered documents. The conduct of the first respondent as well as R.W.5 regarding the description of their caste in the school records and other documents is also creating a doubt that they started asserting that they belong to Konda Dora Tribe long after the Indian Constitution came into force providing reservation for Scheduled Tribes in political posts. The first respondent in his evidence stated that for the first time his paternal grandfather Pratapa Rudra Raju obtained a Caste Certificate by describing the caste as Konda Dora for contesting the elections in the year 1967. He further stated that in the year 1971 for the first time he obtained Caste Certificate as Konda Dora to get employment in the Girijan Co-operative Corporation, knowing that his caste is described as Kshatriya in school records. The school record of his younger brother also reflects that he belongs to Kshatriya Community. He also concedes that the caste name is described as kshatriya in the School Leaving Certificate of his younger brother. The first respondent did not produce any evidence or summon the record of the Caste Certificate issuing authority to explain as to what was the enquiry made by them before issuing the Caste Certificate or what was the material placed by the grandfather of the first respondent or himself to establish that they belong to Konda Dora Tribe.
93. The first respondent gave evidence as P.W.2 in O.S. No. 26 of 1995 on the file of the District Munsif, Gajapatinagaram filed by the relations of Sri L.N. Sanyasiraju for a declaration that they belong to Scheduled Tribe. He gave evidence under Ex.A.27-deposition. He stated in the said suit that Sri L.N. Sanyasiraju of Saluru Zamindari is a Scheduled Tribe man and the grandmother of R.W.5 and the grandmother of Sri L.N. Sanyasiraju are real sisters. But, in the evidence before this Court R.W.I stated that he does not know whether Sri L.N. Sanyasiraju is a Scheduled Tribe man or a Kshatriya. He has no relationship with Sri L.N. Sanyasiraju and he does not know whether the Government of Andhra Pradesh after thorough enquiry concluded that Sri L.N. Sanyasiraju and his relations are Kshatriyas and they do not belong to Konda Dora Tribe. This is an indication that the first respondent was guilty conscious in admitting that Sri L.N. Sanyasiraju is his relation and that the Government held that the said Sanyasiraju is a Kshatriya and not a Konda Dora and he could come to his consciousness only when his attention was drawn to his deposition before the Civil Court mentioning about his relationship with Sri LN.Sanyasiraju.
94. The first respondent concedes that no other Konda Dora Tribe has the surname 'Satrucharla'. He also concedes that his ancestors are of Oriya base and their mother tongue is Oriya. He further conceded that almost all alliances, except a few, are outside the State and they are mostly from Orissa and Madhya Pradesh States, which are basically places of Oriya speaking people. The first respondent did not place any material to show whether there is Konda Dora Tribe in people with Qriya as mother tongue. The alliances mentioned by R.Ws.1 to 4 are stray instances and the evidence given by them indicate that though there were few marriages with people of Konda Dora Tribe, there was no cordial relationship or frequent visits with them. The first respondent conceded that his family does not have any marital alliances with ordinary Konda Dora people. They were having alliances with Zamindars and Mokhasadars, therefore, it is an indication that from the beginning they were alienating themselves as a separate section which is much higher in level than Konda Dora Tribes.
95. The reservations are provided as an incentive for people belonging to Scheduled Castes and Scheduled Tribes for the humiliation they faced for generations and the sufferings they had undergone in the hands of the rich, powerful and people belonging to upper castes. Unless the first respondent proves that his family suffered such humiliations and sufferings and they were recognized by the society from the beginning as Konda Doras, he cannot be recognized as a man belonging to Konda Dora Tribe and is not entitled for the benefits extended to Scheduled Tribes under the Constitution.
96. The learned Counsel for the first respondent contended that the petitioner did not examine any 'Kshatriya' to prove that he belongs to Kshatriya Community. Even though the petitioner has not adduced any evidence to show that the first respondent was recognized as Kshatriya by the other people of Kshatriya Community; as per the Gazetteers produced by the parties, there are two types of Kshatriyas, therefore, it may be difficult for the petitioner to establish that the first respondent belongs to a particular Kshatriya caste. But it is sufficient if the petitioner establishes that the first respondent does not belong to Konda Dora Tribe, which he did by adducing sufficient oral and documentary evidence. Except some oral evidence, mere is no documentary evidence to show that the first respondent belongs to Konda Dora Tribe. In the absence of any such material and in the light of the oral and documentary evidence adduced by the petitioner and the contents of the Gazetteers, I have no hesitation to hold that the first respondent failed to discharge the burden to establish that he belongs to Konda Dora Tribe.
97. The learned Counsel for the first respondent submitted that when there is an earlier decision of this Court in E.P. No. 13 of 1983 holding that the first respondent belongs to Konda Dora Tribe, another Single Bench cannot disturb the said finding, therefore, it has to be held that the first respondent belongs to Konda Dora Tribe.
98. With due regard to the judgment given by a Single Bench of this Court I reiterate that it was given in favour of the 1st respondent for want of sufficient evidence placed by the petitioner in the said election petition. But, in the light of the changed circumstances, the oral and documentary evidence adduced by the petitioner and the evidence given by the Revenue Inspector, Mandal Revenue Officer and the Revenue Divisional Officer regarding the perfunctory way in which they dealt with the matter in issuing the Caste Certificate to the first respondent, I am distinguishing the judgment of my learned predecessor. I further hold that in the light of the additional material placed by the petitioner and the changed circumstances and the non-existence of valid Caste Certificate issued by the competent authority I am constrained to differ with the view expressed by a Single Bench of this Court in E.P.No. 13 of 1983 and I have every reason to accept the plea of the petitioner and hold that the first respondent does not belong to Konda Dora Tribe, and the Caste Certificate issued by the R.D.O. is not valid. Consequently, I hold that the first respondent is not an eligible candidate to stand in the election of 1999 and his election as M.L.A. to the State Assembly is set aside as invalid.
99. Insofar as the prayer of the petitioner that he shall be declared successful being the second candidate who scored highest votes after the first respondent is concerned, I am not inclined to consider the same at this length of time and also due to the dissolution of the Assembly.
100. In the light of the above findings, I wish to sum up the factors that led this Court to come to a conclusion that the first respondent does not belong to Konda Dora Tribe:
(1) The geniological tree of the family of R.1 not furnished describing the castes of his ancestors on paternal and maternal side.
(2) The place of birth of the ancestors of R.1 not mentioned.
(3) The birth certificates of any of the family members not produced.
(4) No material placed to prove that the family of R.1 suffered any indignation or humiliation in the hands of the society or upper castes.
(5) No documentary evidence placed by R.1 to prove that he belongs to Konda Dora Tribe,
(6) No mention in the Gazetteers that R.1's family belongs to Konda Dora Tribe.
(7) The Book of Edgar Thurstan and K. Rangachari on Castes and Tribes of South India, which was prepared on the basis of the Madras Census Report, 1891, does not disclose that Merangi Zamindar is a Konda Dora. On the other hand, Merangi Zamindar was described as Konda Raju.
(8) School records of R.1 or any of his family members not produced to prove that R.1's family belongs to Konda Dora Tribe.
(9) Ex.A.23-School Register entry of the paternal uncle's son of the first respondent shows their caste as Kshatriya.
(10) Registered documents covered by Exs.A.2 to A. 11 including those of pre-Constitutional period show the caste of R.1's family as Kshatriya.
(11) Ex.A.22-True copy of the Enquiry Report of the Commissioner of Tribal Welfare discloses that R.1's brother's son is not a Konda Dora and he is a Kshatriya.
(12) No marriage alliances of R.1's family with any other Konda Doras of the neighbouring areas.
(13) Marriage alliances only with people from Madhya Pradesh and Orissa States.
(14) No record produced to show that the in-laws of the family members of R.1 are Konda Doras.
(15) Important customs of R.1's family are distinct from the customs of other Konda Doras.
(16) Marriage alliances of R.1's family with other communities like Muka Dora, Manne Dora, Brahmins etc.
(17) Declaration of the caste of Sri L.N. Sanyasiraju, a Zamindar of Salur, who is a relation of R.1's family, as not a Konda Dora, but a Kshatriya.
(18) No ordinary Konda Dora was examined by R.1 except the Mokhasadars and Zamindars. R.Ws.2 to 4 are Mokhasadars, R.Ws.5, 6 and 8 are Hill Zamindars, R.W.9 is a Kshatriya.
(19) All Hill Zamindars are not Konda Doras and many of them are Konda Rajus.
(20) No other Konda Dora has a surname 'Satrucharla'.
(21) The record relating to issue of Caste Certificate in 1999 covered by Exs.Cl to C-10 is a concocted and manipulated one,
(22) Caste Certificate of R.1 is not valid as no enquiry was conducted as per rules and the procedure suggested by the Supreme Court.
(23) The files relating to issuing of Caste Certificates of R.1 for earlier elections not summoned.
(24) Konda Raju cannot be equated with Konda Dora Tribe.
(25) The file produced by the Revenue Divisional Officer, Parvithapuram at Page No. 153 discloses that they were issuing the Caste Certificate on the basis of the judgment of the High Court in E.P.No. 13 of 1983 without conducting any independent enquiry before issuance of the same.
Issue No. 2:
101. In the result, the election petition is allowed. The election of the first respondent as a Member of the Legislative Assembly in the General Election dated 11-9-1999 is set aside. No order as to costs.