(Prayers: Election Petition under Section 81, r/w, Section 5 (a), Section 100 (1) (a) and (d) (i) of the Representation of the people Act 1951, praying that in the circumstances stated in the affidavit, the High Court may be pleased to a) declare the election of Janardhana That Raj Veera Vara Thodaramala (Respondent No.1) to the 130 Kurupam (ST) Assembly Constituency to be null and void and set aside the same; b) further declare that the petitioner has been duly elected as Member of the 130 Kurupam (ST) Assembly Constituency under Sec. 84 of the Representation of the People Act 1951.
The Petition coming on for hearing, upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of Sri. Boppa Tarakam, Sr. Advocate for V. Raja Manohar, Advocate for the Petitioner and of Sir. D. Prakash Reddy, Sr. Counsel for Sri P. Kesava Rao, Advocate for the Respondent No.1 and Respondent No. 2 to 6 are not appearing in person or by Advocate.)
1. An election petition under Section 81 read with Section 5(a) and Section 100(1)(a) and (d)(i) of the Representation of the People Act, 1951 (for short “the Act”) to declare the election of the 1st respondent to 130-Kurupam (S.T.) Assembly Constituency to be null and void, set aside the same and declare the petitioner to have been duly elected as Member from that Constituency under Section 84 of the Act.
2. The petitioner claims to have contested the election to 130-Kurupam (S.T.) Assembly Constituency held on 16-04-2009 as the candidate of Praja Rajyam Party, while the 1st respondent contested as the candidate of Indian National Congress Party and respondents 2 to 6 are the other contesting candidates from other parties or as independents. While the 1st respondent secured 48,493 votes, the petitioner secured 33,440 votes and the 1st respondent was declared elected on 16-05-2009. The petitioner claims to be belonging to ‘Jatapu Tribe’ included in the Scheduled Tribes Order, 1976 in relation to the State of Andhra Pradesh. The 1st respondent is ‘Kshatriya’, which is not included in the List of Scheduled Tribes concerning the State of Andhra Pradesh. The family of the 1st respondent who is a permanent resident of Parvathipuram, Vizianagaram district, hails from Addapusila in Parvathipuram Mandal and is originally a zamindari family of Belgam Estate. In the Manual of the District of Vizagapatnam in the Presidency of Madras, published by the State Editor, District Gazette, Hyderabad, Andhra Pradesh in Chapter-XII relating to Belgam Family and Estates at page 327, it is mentioned that the family belongs to ‘Hill Rajah’ (Konda Raju) caste. In 2004(4) ALT 14, the High Court referred in paragraph 84 to the Manual of District of Vizagapatnam in the Presidency of Madras, compiled and edited by D.F. Carmichael, which was reprinted in 1869 and referred to Hill Zamindaris from pages 322 to 332 mentioning the caste to which the respective zamindars belong. Belgam Zamindar was shown as ‘Konda Raju’ and the 1st respondent is, therefore, not qualified to contest from 130-Kurupam (S.T.) Assembly Constituency, reserved for Scheduled Tribes, since he is not a member of any of the Tribes in the State of Andhra Pradesh. The family of the 1st respondent described themselves as ‘Kshatriyas’ in registered documents Nos.132 of 1945, 419 of 1945 and 1294 of 1947 executed by the real brother of the 1st respondent’s grand father, 821 of 1948 executed by the great grand father of the 1st respondent, 1909 of 1962 executed by the great grand father of the 1st respondent and another registered document, dated 07-05-1957 executed by the 1st respondent’s ancestor. In the last two documents, the 1st respondent’s father was a signatory. The mother of the 1st respondent also hailing from ‘Kshatriya’ caste is the sister of Sri Satrucharla Vijaya Rama Raju, who was declared in Election Petition No.13 of 1999 as not belonging to any Scheduled Tribe in Andhra Pradesh State, but belonging to ‘Kshatriya’ caste. This petitioner is the petitioner therein and the judgment was confirmed by the Supreme Court in a decision reported in 2005 AIR SCW 6197. The 1st respondent’s mother is the Chairperson of the Parvathipuram Municipality, having been elected from Ward No.26, reserved for Scheduled Tribe, on which the petitioner filed a petition before the District Collector, Vizianagaram to enquire into the social status of the mother of the 1st respondent under the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of issue of Community Certificate Act, 1993 and Rules 1997 and the petitioner filed W.P. No.27217 of 2008 complaining against the inaction of the Collector. The High Court directed on 28-01-1999 the District Collector, Vizianagaram to take final decision before 15-05-2009 and the enquiry is pending. Though the petitioner objected to the nomination of the 1st respondent, the 7th respondent rejected the said objection and ‘Kshatriya’ caste was not included in part-I of the Schedule relating to the State of Andhra Pradesh under the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 or the 1993 State Act or in the earlier List prepared in 1950. The 1st respondent styling himself as a person belonging to Scheduled Tribe, deprived the people of 130-Kurupam (S.T.) Assembly Constituency of getting a Scheduled Tribe person elected as their representative, by playing fraud and hence, the election petition.
3. The 1st respondent in his written statement claimed that originally he belongs to ‘Konda Dora’ community, which is one of the several sects in Scheduled Tribes. Jagannadha Patro was the prepositor of the family, whose son Somasundara Narayana Patro was granted Sannad/grant making him the then zamindar of Belgam Estate from 1803 to 1814. His son Dhanunjaya-I was the zamindar from 1814 to 1849. His younger brother Vishwambara was the zamindar since his death till 1865. Narayana Ramachandra, his son, was the zamindar from 1865 to 1882 and his adopted son Shiva Narayana was the zamindar from 1882 till his death. Then Dhanunjaya-II was the zamindar till his death in 1888 issueless and there was a dispute regarding succession to the Estate between the children of Chandrashekhara Thatraj, the second son of Shivanarayana. The dispute between Suryanarayana and Sundara Narayana was resolved making both the persons succeed to their Estate with Suryanarayana succeeding to the Parvathipur Estate (HUNDA) and Sundaranarayana succeeding to Belgam Estate (HUNDA). Sundaranarayana was succeeded to the Estate by Janardhana, the eldest son, while the second son Bhavanarayana had a son Venkateshwara Prasad who died issueless. Janardhana is the great grand father of the 1st respondent, whose son Pratap Chandra succeeded him and during the life time of Pratap Chandra, the grand father of the 1st respondent, the estates were abolished under a Statute. Pratap Chandra had two sons, Satya Prasad-the father of the 1st respondent, and Ananth Narayana-the father of Laxmi Kumar. The 1st respondent has four brothers including himself and two sisters--Sundaranarayana, Chandrasekhar, Janardhan, Naresh Kumar, Jyothsna, Hari Priya and himself. The 1st respondent, thus, belongs to ‘Konda Dora’ sect/tribe, which is a Scheduled Tribe. The 1st respondent stated that he belongs to ‘Konda Raju’ caste, which is enumerated as a sub-caste of ‘Konda Dora’ community under the Scheduled Tribes category. The rites and customs of the community from times immemorial would also indicate that the 1st respondent is a member of Scheduled Tribe, like re-marriage of the elder brother’s widow to the younger brother or the lady members of the family wearing beads or customary divorce by the caste elder or acceptance of ‘Gandharva’ form of marriage or speaking in Oriya and Telugu languages or worshiping Goddesses like Durga, Talupulamma Thalli, Lappala Polemma and Jakari or eating pork and mutton or drinking in family occasions or burning dead bodies or observing ‘Menarikam’ marriages. The 1st respondent further submitted that one Nishada was the prepositor of the Scheduled Tribes, who had five sons, the inter-marriages between whose descendents led to formation of different castes and sub-castes, one of which being ‘Konda Dora’, which has several sub-castes, including ‘Konda Raju’, which is a Scheduled Tribe. The 1st respondent further claimed that Vishwambora Deo of Jaipur (Jeypore) was the main zamindar with several fiefs under him recognized as incharges of different hill areas, which were subsequently recognized and developed into estates by virtue of grants. The family of Belgam Estate belongs to ‘Konda Raju’ caste and Veeravara Thodaramallu That Raj Jagannath Patro was the Dewan of Ramachandra Deo of Jaipur (Jeypore) and in 1796, fourteen villages in the neighbourhood of Parvathipur were taken from contiguous hill zamindars and were given for life to his son Somasundara Narayana Patro in acknowledgement of his father’s services. The same was converted into a Hill Zamindari tenure and the successors of Somasundara Narayana Patro succeeded to the Hill Zamindari till its abolition under the Andhra Pradesh Estates Abolition and Conversion into Ryotwari Act, 1948. The 1st respondent, thus, belongs to ‘Konda Raju’ sub-caste in ‘Konda Dora’ community, which is a Schedule Tribe community. The 1st respondent and his family were always treated as members of Scheduled Tribe and were issued caste certificates by the concerned authorities as such and after the Andhra Pradesh (Scheduled Tribes, Scheduled Castes and Backward Classes) Regulation of Issue of Community Certificate Act, 1993 and Rules 1997, all the family members of the 1st respondent were given permanent/life certificates. The status of the 1st respondent and all other family members was shown as ‘Konda Dora’ by caste in all the school and college records and certificates. Fee concessions and scholarships were extended to them as such and in various suits filed by the family members, exemption from paying Court fee was claimed and given as per G.O.Ms. No.381 of 1968. In O.S. No.21 of 1989, one of the family members of the agnates of the 1st respondent filed a suit for declaration about belonging to ‘Konda Dora’ family and a consequential injunction specifically claiming through the Hill Zamindar of Belgam. It was specifically pleaded that the description of the plaintiffs therein and other family members as ‘Kshatriyas’ was only a description of status as rulers of the Hill zamindaris and they referred to “Caste and Tribes of South India” by Edgard Thurston referring to the Hill zamindars as the Hill Tribes, also called as ‘Konda Rajus’, while the District Collector and the Mandal Revenue Officer defending the suit denied the claim in their written statements. The suit was decreed after an elaborate enquiry on 06-07-1993 holding the plaintiffs therein to be belonging to ‘Konda Dora’ community and the suffix by name ‘That Raj’ was not Raju. The persons belonging to the community of the 1st respondent have similarly approached the High Court with writ petitions for similar reliefs, which were granted and even the documents executed by the 1st respondent’s family members, their pattadar passbooks and title deeds mentioned them to be belonging to ‘Konda Dora’ caste. The census of Government of India of 1891, 1901 and 1931 also showed ‘Konda Dora’ caste to be a Scheduled Tribe with various sub-castes including ‘Konda Raju’. When the 1st respondent’s father contested in 1977 for Parvathipuram Assembly constituency, reserved for the Scheduled Tribes, nobody raised a similar objection. In 2006 elections to Zilla Parishad Territorial Constituency, the petitioner and the 1st respondent contested from Jiyamma-valasa Mandal as Telugu Desam and Indian National Congress nominees respectively and the objection of the petitioner regarding the social status of the 1st respondent at the time of scrutiny of nominations, was overruled. After the 1st respondent defeated the petitioner in the election, the petitioner did not file any election petition questioning the election of the 1st respondent, particularly questioning his social status, which amounts to waiver and acquiescence making the principle of estoppel operate against the petitioner. The 1st respondent’s mother was elected unanimously from 26th Ward of Parvathipuram Municipality in the elections in 2005 and the said Ward was reserved for Scheduled Tribe Community and her election was not disputed by anybody. She was later elected as a Chairperson of the Municipality. Descriptive particulars mentioned in the registered documents will not, in any manner, indicate and decide the status of any individual merely because of the description by the document writer. The word ‘Kshatriya’ is only a description of the status as ruler of the area. The judgment in E.P. No.13 of 1999, confirmed in C.A. No.1102 of 2004 is a judgment in personam and not judgment in rem and will not operate as res judicata, more so as each election petition has a fresh cause of action. The allegations of the petitioner are specifically denied and the 1st respondent claimed the election petition to be without merits and requested for its dismissal with exemplary costs.
4. The returning officer impleaded as the 7th respondent, filed a written statement before E.P.M.P. No.464 of 2010 was allowed and the 7th respondent was deleted from the array of parties on 30-07-2010. The 7th respondent stated in the written statement that No.130-Kurupam (S.T.) Assembly Constituency is exclusively reserved for Scheduled Tribes and on 31-03-2009 the petitioner filed an objection petition before the 7th respondent alleging the community certificate of the 1st respondent to be invalid, since he is nephew of Satrucharla Vijaya Rama Raju and the 1st respondent to be not entitled to contest as a Scheduled Tribe candidate. The 7th respondent cross-checked the caste certificate issued by the Revenue Divisional Officer, Parvathipuram in favour of the 1st respondent and finding it to be genuine, overruled the objection of the petitioner. A certified copy of the decision of the 7th respondent was served on the petitioner on the same day.
5. The following issues were settled for trial and determination of the election petition.
(1) Whether the 1st respondent does not belong to a schedule tribe?
(2) To what relief ?
6. P.Ws.1 to 5 and R.Ws.1 to 6 were examined and Exs.P.1 to P.11 and R.1 to R.42 are marked.
7. Sri Bojja Tarakam, learned senior counsel and Sri V. Raja Manohar, learned counsel for the petitioner and Sri D. Prakash Reddy, learned senior counsel and Sri P. Kesavarao, learned counsel for the 1st respondent are heard. Respondents 2 to 6 did not enter appearance in person or through counsel. 8. Issue No.1:
The election petitioner as P.W.1 claimed that he and respondents 1 to 6 contested the election to No.130-Kurupam (S.T.) Assembly Constituency in the general elections to the State Legislative Assembly held on 16-04-2009. The 1st respondent was declared elected and he does not belong to Schedule Tribe, but is a ‘Kshatriya’ by caste, the objections of the election petitioner in this regard having been rejected by the 7th respondent. The petitioner further claimed that he filed Election Petition No.13 of 1999 challenging the election of Satrucharla Vijaya Rama Raju from Naguru constituency in 1999 and the High Court declared him to be not belonging to any Schedule Tribe, which was confirmed by the Supreme Court. The 1st respondent is the son of the sister of Sri Satrucharla Vijaya Rama Raju by name Veera Vara Thodaramal Narasimha Priya Thatraj, at present Chairperson of Parvathipuram municipality, having been elected from Ward No.26 of Parvathipuram municipality, reserved for Scheduled Tribes. The petitioner claimed that the forefathers of the 1st respondent belong to Addapusila village of Parvathipuram Mandal and the family are zamindars of Belgam. The 1st respondent contested against him in the Zilla Parishad Territorial Constituency elections in 2006 and Satrucharla Chandrasekhara Raju, the junior maternal uncle of the 1st respondent opposed him in 1994 elections. The petitioner produced registration extracts of documents claimed to have been executed by the forefathers of the 1st respondent, marked as Exs.P.1 to P.10 with the father of the 1st respondent joining as the fourth executant in the original of Ex.P.9. He also filed Ex.P.11 certificate obtained by him from the Principal of Maharajah’s College, Vizianagaram concerning the father of the 1st respondent. He admitted that in 1994 elections, he did not raise any objection about Satrucharla Chandrasekhara Raju not belonging to a Scheduled Tribe. He also admitted that he supported Sri Satrucharla Vijaya Rama Raju, when he contested as Telugu Desam candidate from Parvathipuram Lok Sabha Constituency, reserved for Scheduled Tribes. He further admitted that the objection against the Scheduled Tribe status of Satrucharla Chandrasekhara Raju in Zilla Parishad Territorial Constituency elections in 2000-2001, was not sustained by the returning officer. The election of the 1st respondent’s mother from Ward No.26 of Parvathipuram Municipality was also admittedly not challenged and he further admitted that Zilla Parishad Territorial Constituency from Jiyamma-valasa Mandal was reserved for Schedule Tribes, for which the 1st respondent won against him in 2006, which election he did not challenge by way of any election petition, though he claimed to have raised an objection at the time of scrutiny of nominations. He does not know whether the members of the 1st respondent’s family were availing the benefits available to the members of Scheduled Tribes in education or legal proceedings. He admitted the decision of the 7th respondent against his objection, dated 31-03-2009 and he claimed to be knowing about the Hill Zamindari families of the area. Satrucharla Chandrasekhara Raju and Vijaya Rama Raju belonged to Merangi Hill Zamindars family, while Vyricherla Kishore Chandradev, Parliament Member from Araku, belongs to Kurupam Hill Zamindari family. P.W.1 further claimed that Kishore Chandradev was announced by the Collector to be belonging to a Scheduled Tribe and he asserted that persons of Merangi family are treated socially in the area as ‘Kshatriyas’. Families of Hill Zamindars were stated to be having no marital relationship with the persons belonging to Scheduled Tribes and as they were ruling the areas and were widely accepted socially as rulers, they are believed to be ‘Kshatriyas’. P.W.1 also asserted that they were never described as ‘Konda Doras in their documents, but were described as ‘Kshatriyas’, which was the basis for his claim. While he does not know whether there are sub-castes among ‘Kshatriyas’ or whether ‘Konda Rajus’ come under ‘Kshatriya’ community or not, he stated that to the best of his knowledge there is no Tribe by name ‘Konda Raju’. 1891 Census did not contain any sub-caste ‘Konda Raju’ under ‘Kshatriya’ caste. He claimed to have filed the election petition on the basis of Exs.P.1 to P.11 and he did not take recourse to any proceedings challenging the Scheduled Tribe certificate issued to the 1st respondent nor did he take any steps for cancellation of the same. He denied that the surname ‘Thatraj’ exists for the families in Bissamkatak, Ganjam district and in Savara community and specifically in Gummalakshmipuram Mandal of Vizianagaram district. He also claimed that there is one ‘Thatraj’ in Savara community with surname ‘Beddika’. Belgam is said to be part of Parvathipuram town and he denied the executants of the originals of Exs.P.1 to P.10 being not connected or related, in any manner, to the family of the 1st respondent. While stating ‘Konda Doras’ to be predominantly an agricultural community, he spoke about the customs of ‘Illu Chupulu’ and ‘Pappu Koodu’ for settlement of a marriage. He also stated that the families will be drinking ‘Vippa Sara’ during festive occasions for ‘Konda Devatas’. ‘Menarikam’ marriages are performed in ‘Konda Dora’ tribe. The practice of customary divorce before caste elders is also among the Tribe. He denied any manipulation in obtaining Ex.P.11 certificate and 1891 census shown to him showed ‘Konda Dora’ in Group No.4, Class-A, while ‘Kshatriya’ caste was shown in Class-A of Group No.1 and ‘Konda Raju’ was mentioned as one of the sub-castes of ‘Konda Dora’. The various ‘Rajas’ representing Hill Estates came originally under the kingdom of Maharaja of Jeypore and the various titles of the Hill Estate holders were conferred by Maharaja of Jeypore. P.W.1 does not know whether the 1st respondent and his brothers and sisters were shown in the school and educational records as belonging to ‘Konda Dora’ tribe and whether community certificates were issued to them as such before and after A.P. Act 16 of 1993.
9. P.W.2, Principal of Maharajah’s College, Vizianagaram, working in the college since 30 years, produced the admission register of the college for the academic year 1962-63 to state that the 1st respondent’s father was admitted in the college on 22-06-1962 and he was mentioned as ‘Kshatriya’. He also stated that he issued Ex.P.11 certificate on the basis of the college records in response to an application under the Right to Information Act. The entry relating to the 1st respondent’s father in the register was at serial No.656 and denied the entry being in different handwriting than the other entries. While admitting that he has no personal knowledge about the authorship and correctness of the entries, he explained that the entries in the admission register are made on the basis of the contents in the certificates enclosed to the applications. He also stated that the entry at serial No.97 relating to the 1st respondent’s father has a correction in name, endorsed to be on the basis of the Matriculation record of Andhra University. He denied manipulation of the entries in the admission register or issuing of Ex.P.11 based on such manipulated entries. Ex.R.1 is xerox copy of entries relating to serial No.656 in the admission register.
10. P.W.3, the Sub-Registrar of Parvathipuram, spoke about Exs.P.1 to P.10 registration extracts being issued by their office. While admitting that the caste or tribe of the parties to a document are not required for execution, he had no personal knowledge about the contents of Exs.P.1 to P.10 and was not present at the time of registration.
11. P.W.4 claiming to be knowing the family of the 1st respondent, stated that they are ‘Kshatriyas’ and have no relationship with the members of ‘Savara’ Schedule Tribe to which he belongs. He stated that among the Scheduled Tribes, there are only ‘Konda Doras’ and no ‘Konda Rajus’ and there are only four Scheduled Tribes in their area, ‘Savara’, ‘Gadaba’, ‘Jatapu’ and ‘Konda Dora’. Though he denied any interest in politics, he had to admit being involved in them and his only acquaintance with the 1st respondent was during his campaigning.
12. P.W.5 claiming to be belonging to ‘Konda Dora’ community, a Scheduled Tribe, claimed the family of the 1st respondent to be ‘Rajus’/’Kshatriya Rajulu’ and have no relation with anybody belonging to ‘Konda Dora’ Scheduled Tribe. However, he does not have any acquaintance with the 1st respondent, except that he was coming during various elections.
13. The 1st respondent as R.W.1 claimed to be belonging to ‘Konda Raju’ caste, enumerated as one of the sub-castes in ‘Konda Dora’ community under Scheduled Tribes. While he reiterated the contents of his defence in the written statement, he stated that he and his family members were always treated as members of Scheduled Tribes. He claimed that any descriptive particulars in registered documents cannot indicate and decide the status of any individual. He produced Exs.R.1 to R.10 caste certificates of himself and his family members, Exs.R.11 to R.14 attested copies of transfer certificates of himself and his family members, Exs.R.15 to R.19 certified copies of decrees in suits signifying exemption from payment of Court fee, as they belong to Scheduled Tribe, Ex.R.20 certified copy of the judgment and decree in O.S. No.21 of 1988 (1989), wherein the Government stated in defence that the suffix ‘Thatraj’ signifies the Hill Zamindars of Parvathipuram and Belgam Estates being ‘Konda Doras’, Exs.R.21 to 23 certified copies of the documents by the family members signifying that they belong to ‘Konda Dora’ Tribe, Exs.R.24 to R.33 attested copies of census index and report from 1891 to 1951, Ex.R.34 original matriculation certificate of his father, Ex.R.35 attested copy of the Vizagapatnam District Manual, Ex.R.36 the attested copy of Vizagapatnam District Gazette of 1907, Exs.R.37 to R.41 attested copies of the caste certificates of the members of his family and Ex.R.42 certified copy of the suit extract in O.S. No.42 of 1976. The 1st respondent stated the word ‘Thatraj’ to be a title conferred on his family by Maharaja of Jeypore. He does not know the meaning of the words ‘Thatraj’ or ‘Thodaramallu’ or ‘Patro’ and he stated that ‘Patro’ is used by people of all castes. R.W.1 stated his elder brother to have been married to Smt. Usha Rani, grand daughter of Hill Zamindar of Pachi Penta, who are ‘Konda Doras’. He also claimed his other sister-in-law Smt. Ramani to be belonging to a backward caste and her marriage to be a love marriage. His sister Jyosthna Devi was married to Varahala Raju in a love marriage and Varahala Raju belongs to O.C. community and they are called as ‘Rajus’. Hari Priya, the other sister, was also married to an Army person, whose details he does not know. R.W.1 also stated that the only surviving sister of his father is living in Dugini of Bihar State and she did not remarry after the death of her husband. He does not remember whether any women in their family had remarriage after the death of their husbands, but he stated that there is no woman in the family who obtained divorce. He claimed to be worshiping Goddess Jakari, Ippala Polemma and Durga and he claimed that there are 74 sub-castes among ‘Konda Doras’ and ‘Konda Raju’ is a sub-caste in Schedule Tribe. He stated that the parents of his mother belonged to China Merangi and he did not know the place of origin of his maternal grand mother. R.W.1’s mother was admitted to have two brothers, Satrucharla Vijaya Rama Raju and Satrucharla Chandra Sekhara Raju who are also ‘Konda Doras’, a Scheduled Tribe and he claimed that the election of Satrucharla Vijaya Rama Raju was set aside by the Supreme Court, as he failed to obtain the certificate within time and he denied Vijaya Rama Raju being decided to be a ‘Kshatriya’ and not ‘Konda Dora’ by the Supreme Court. He admitted that a petition to declare his mother to be not belonging to a Scheduled Tribe is pending before the District Collector and he denied any names suggested to him being members of his family and he denied knowing the names or persons involved in Exs.P.1 to P.10 and claimed that there are 2 or 3 other families in the village in Belgam with suffix ‘Thatraj’. He claimed ignorance about any documents executed by his grand father describing himself as ‘Kshatriya’ and he also claimed to be having certificates showing his parents as ‘Konda Doras’ like Ex.R.9 of his father. While not knowing whether there were any certificates indicating their tribal status prior to the Constitution in 1950, he does not know whether there is any relationship between their family and about 400 families belonging to ‘Konda Dora’ tribe living in the area. He admitted that to his knowledge, except the alliances with the family of Pachi Penta Zamindars and the family of China Merangi Zamindars, there are no alliances between their family and other families in the area.
14. R.W.2 is the father of the 1st respondent, who claimed that they belong to ‘Konda Dora’ Tribe having certificates to that effect and that he contested as a Member of Parliament from Parvathipuram Parliamentary Constituency in 1977, which was reserved for Scheduled Tribes and nobody objected to his social status. While admitting that their family has no relationship with the other ‘Konda Dora’ Tribe families of Belgam and Addapusila, he claimed ‘Patro’ to be their surname and ‘Thatraj’ to be a title given by Maharaja of Jeypore. He again stated that they are ‘Konda Rajus’, a sub-sect of ‘Konda Doras’ and are not ‘Kshatriyas’. He stated that the word ‘Konda Raju’ containing the word ‘Raju’ is used as they are zamindars, but they are part of ‘Konda Doras’. He also had no personal knowledge about the custom of widow marriage. But he claimed that after his sister’s elder son died after marriage, his widow married his sister’s younger son. While he did not observe whether the ladies in other families also wear beads, he admitted that Satrucharla Viyaja Rama Raju, the brother of his wife, could not prove his tribal status before the High Court and the Supreme Court in an election dispute, wherein he also gave evidence. He could not say whether the High Court or the Supreme Court did not believe his evidence and he admitted the contents of Ex.P.11 to be correct, except with reference to mentioning his caste as ‘Kshatriya’. While he denied knowing any of the names suggested to him, he claimed ignorance about his father describing himself as ‘Kshatriya’ in the original of Ex.P.9 and he also claimed ignorance about the original of Ex.P.10 executed during his minority. He stated his daughters to have undergone inter-caste love marriages and his eldest daughter-in-law to be belonging to Pachi Penta Hill Zamindari family who are also ‘Konda Doras’ and called as ‘Muka Doras’. He claimed all his six children to have been admitted in schools after producing the caste certificates issued by the Revenue department, but he did not show his own caste certificate to the school authorities. He admitted that a complaint made to the Collector about his wife not belonging to Scheduled Tribe is pending enquiry.
15. R.W.3 claiming to be belonging to ‘Konda Dora’ Tribe, spoke about the caste customs and practices and claimed to be related to the family of R.W.1 since the times of their forefathers. The mothers of their paternal grand fathers were stated to be sisters and the family of R.W.1 was stated to be belonging to ‘Konda Dora’ tribe. R.W.3 has no idea about the alliances for the marriages in R.W.1’s family and he gave his version of the families of ‘Konda Dora’ Tribe in the area, the names in those families, their practices, etc.
16. R.W.4 claiming to be belonging to ‘Konda Dora’ tribe and to be related to R.W.1’s family since forefathers stated that his elder sister was given in marriage to Anantha Narayana Thatraj, the junior paternal uncle of R.W.1. He stated that ‘Konda Raju’ is the sub-caste of ‘Konda Dora’ and R.W.1’s family is also called as ‘Konda Rajus’.
17. R.W.5, a former Sarpanch and person incharge of Kondavada panchayat, claimed the 1st respondent to be belonging to ‘Konda Dora’ Tribe and to be inviting the 1st respondent whenever there was need for discussions and agitations over the rights of Girijans.
18. R.W.6 claimed the 1st respondent to be belonging to ‘Konda Dora’ Tribe and to be related to him but he does not know the names of the mother or maternal grand father of the 1st respondent.
19. In the background of such oral evidence, the issuance of Exs.P.1 to P.10 registration extracts by the office of the Sub-Registrar, Parvathipuram, as spoken to by the present Sub-Registrar as P.W.3, can be taken as probablised and though P.W.3 had no personal knowledge of the contents of Exs.P.1 to P.10 and was not present at the time of registration of the originals of Exs.P.1 to P.10, in the absence of any challenge otherwise, Exs.P.1 to P.10 can be accepted to be registration extracts of the original documents registered in the office of the Sub-Registrar at Parvathipuram.
20. Similarly, the evidence of P.W.2 is about Ex.P.11 certificate issued on the basis of the records of Maharajah’s College, Vizianagaram and Ex.R.1 xerox copy of the entries in the admission register of 1962-63 relating to serial No.656 along with other entries. Though P.W.2 had no personal knowledge whether any enclosed certificates to the application of the 1st respondent’s father at the time of his admission were returned to him or not, the college issued Ex.P.11 in response to an application under Right to Information Act and there is no reason to suspect the manner of issuance of Ex.P.11. P.W.2 denied the entry at serial No.656 relating to R.W.2 to be in different handwriting than the other entries and a perusal of the entries in Ex.R.1 with a naked eye does not, in any manner, suggest any significant difference in the handwriting and the very manner of the entries does not even remotely suggest the probability of any subsequent insertion or manipulation of such entries except that the entry relating to R.W.2 appeared to be thicker. P.W.2 having no personal knowledge of the entries at serial Nos.656 to 659 in Ex.R.1 in 1962-63, is but natural. As to why the college or P.W.2 should resort to any manipulation regarding R.W.2, is unintelligible and from any suggestions made concerning the entries in Ex.R.1, there is no reason to suspect the genuineness of Ex.P.1, the contents of which were based on the college records.
21. While the evidence of P.W.1 and R.Ws.1 and 2 is tainted with interestedness, the other witnesses are attempted to be projected as independent. Out of them, P.W.4 shown to be a politician from his admissions, attempted to claim to be disinterested in politics and his only acquaintance with the 1st respondent was during his campaigning in the elections. Similar was P.W.5 whose acquaintance with the 1st respondent was only due to the 1st respondent coming during various elections and he did not know anything else. R.W.3, who claimed that the mothers of paternal grand fathers of R.W.1 and himself are sisters, attempted to state that ‘Thatraj’ family is never called as ‘Rajus’ or ‘Konda Rajus’ contrary to the own claims of R.Ws.1 and 2 and he had to admit that there are no other families in ‘Konda Dora’ Tribe with surname ‘Thatraj’ in their village. R.W.4, who claimed that his elder sister was given in marriage to Anantha Narayana Thatraj, the junior paternal uncle of R.W.1, on the other hand, stated that R.W.1’s family is also called as ‘Konda Rajus’ and ‘Konda Raju’ is a sub-caste of ‘Konda Dora’. R.W.6 also claimed to be related to the 1st respondent, but he does not even know the name of the mother or maternal grand father of the 1st respondent. While the relationship with the 1st respondent may suggest the evidence of R.Ws.3, 4 and 6 to be not independent or disinterested, such vague and indefinite oral evidence as that of P.Ws.4 and 5 and R.Ws.3 to 6 is easy to procure and difficult to refute. Too strong reliance cannot be placed on such evidence to conclude the probablisation of any fact from such evidence. While R.Ws.3, 4 and 6, being members of Scheduled Tribe was stated on oath and their claims of being related to the 1st respondent’s family, cannot be straight away brushed aside, the evidence of P.Ws.4 and 5 and R.W.5 has no verifiable link to act upon their claims about the 1st respondent’s social status. Under the circumstances, the oral evidence including that of P.W.1 and R.Ws.1 and 2 needs to be tested with reference to the documentary evidence, while the evidence of P.Ws.2 and 3 shows the need to appreciate the effect of the contents of Exs.P.1 to P.11 without refusing to consider them. It should be borne in mind as held inDirector of Tribal Welfare, Government of A.P. v. Laveti Giri and another (1995) 4 SCC 32), that the burden of proof of social status is always on the person who professes it to seek constitutional, social, economic advantages. It should also be remembered that Veluswami Thevar v. Raja Nainar and others (AIR 1959 SC 422)laid down that an election petition is an original proceeding with a right to file written statements by way of reply to it, framing of issues and right to adduce evidence for the parties.
22. Ex.P.1 registration extract of the sale deed No.132/1945, dated 20-01-1945 was executed by Durga Prasad Thatraj, Chandrasekhar Thatraj and Suryanarayana Thatraj, who described themselves as ‘Kshatriyas’ and who were stated by P.W.1 to be related to the 1st respondent on the paternal side. Ex.P.2 registration extract of the sale deed No.419 of 1945 was executed by Suryanarayana Thatraj, Janardhana Thatraj, Pratap Chandra Thatraj and Narasimha Narayana Thatraj describing themselves as ‘Kshatriyas’ and P.W.1 claimed that the great grand father of the 1st respondent was one of the executants and Janardhana Thatraj and Pratap Chandra Thatraj figure in the genealogical tree of Belgam Hill zamindars prepared on behalf of the 1st respondent. Document No.1294 of 1947 marked as Ex.P.3 was also claimed by P.W.1 to be by a person who is grand father to the 1st respondent by relationship on paternal side who described himself as ‘Kshatriya’. Sundara Narayana Thatraj, Janardhana Thatraj and Pratap Chandra Thatraj were claimed to have executed the original of Ex.P.4 No.821 of 1948 and P.W.1 claimed the great great grand father of the 1st respondent to be the executant, who described themselves as ‘Kshatriyas’. Ex.P.5 document No.1437 of 1945 had V.T. Janardhana Thatraj, Pratap Surya Chandra Thatraj and Narasimhanarayana Thatraj as the executants who described themselves as ‘Kshatriyas’. Similar was Ex.P.6 document No.419 of 1945 executed by Janardhana Thatraj, Sundara Narayana Thatraj and Narasimhanarayana Thatraj. Sundara Narayana Thatraj, son of Janardhana Thatraj appeared to be the executant of the original of Ex.P.7 document No.1256 of 1947 and P.W.1 claimed the executant to be the junior paternal grand father of the 1st respondent who described himself as ‘Kshatriya’. Ex.P.8 document No.468 of 1951 was also claimed to have been similarly executed by a person related to the 1st respondent on the paternal side. Ex.P.9 document No.1499 of 1953 was claimed to have been executed by the paternal grand father of the 1st respondent describing himself as ‘Kshatriya’ and R.W.2 was the fourth executant of the said document. Ex.P.10 document No.1744 of 1955 was also claimed to have been executed by the paternal grand father of the 1st respondent describing himself as ‘Kshatriya’. During the cross-examination of P.W.1, it was suggested that none of the executants of the originals of Exs.P.1 to P.10 are connected, in any manner, with the family of the 1st respondent, but R.W.2, the father of the 1st respondent, admitted that the originals of Exs.P.9 and P.10 were executed during his minority and he does not know about any recitals therein, including as to whether his father described himself as a ‘Kshatriya’. He also does not know about the execution of the original of Ex.P.5 and claimed ignorance about the names of various persons suggested to him. While R.W.2, thus, did not contradict the execution of the originals of Exs.P.9 and P.10, the 1st respondent himself claimed ignorance about who executed the originals of Exs.P.1 to P.10 and though he denied the others connected with Exs.P.1 to P.10 being connected with his family, he admitted the names of his father, grand father and great grand father. In his affidavit in lieu of chief-examination, there was no specific reference to Exs.P.1 to P.10 filed along with the election petition itself. In the written statement, it was stated that the mention of the status of any individuals by the scribe of a document cannot be taken as confirming the social status of an individual and it was attempted to be explained that the word ‘Kshatriya’ is only a description of the status as ruler of the area. While none of these documents can be considered to have been possibly manipulated for the purpose of this litigation by their very age, the similarity of the names referred to in the documents to those given in the genealogical tree furnished by the 1st respondent may make the claims of existence of such persons in the family and the execution of the documents by them, not open to, ex facie, rejection. At any rate, Exs.P.9 and P.10, which are not denied by R.W.2, provided, prima facie, proof of the members of the family of the 1st respondent describing themselves as ‘Kshatriyas’ in the documents executed by them, which, even according to the written statement of the 1st respondent, is not denied and it is only attempted to be explained as reflective of the status of the family as rulers. Exs.P.1 to P.8 are pre-Constitution documents, the recitals in which about the social status of the parties, are of, undoubtedly, probative value, while the description in Exs.P.9 and P.10 is not denied.
23. When it came to Ex.P.11 certificate issued by the Maharajah’s college, Vizianagaram, R.W.2 admitted that the Principal of the College had issued Ex.P.1 relating to him. He also admitted that the contents of Ex.P.11, except with reference to his caste, are correct and the mention of the caste as ‘Kshatriya’ is not correct. If the particulars of R.W.2 recorded in Ex.P.11 with reference to his father’s name, his studies, his date of birth and religion are true, why the entry about the caste of R.W.2 alone should be believed to have been manipulated, more so, when the original register had identical entries in Ex.R.1, is not intelligible. His affidavit in the chief-examination did not refer to the school or college records of R.W.2 and when R.W.2 claimed that they are ‘Konda Rajus’, a sub-sect of ‘Konda Doras’, it is not intelligible as to why the college admission record of R.W.2 would not have reflected the same, when obviously the person who gave the information for making the relevant entries in the admission record, gave all the other particulars correctly. Even the 1st respondent as R.W.1 in his chief-examination affidavit in referring to the college and school certificates of himself and his family members did not make any specific reference to the school or college records of R.W.2. R.W.1 admitted that he does not know whether there were any certificates regarding the tribal status of the members of their family prior to 1950. He also does not know where R.W.2 studied his intermediate and whether he studied the pre-university course at Maharajah’s college, Vizianagaram. While admitting that Ex.P.11 is as though R.W.2 was described as ‘Kshatriya’ in the certificate, his claim that there were caste certificates issued describing the tribal status of his father since much prior to the contest by his father in the elections, was not corroborated by the production of any such caste certificates. The Scheduled Tribe certificate of R.W.1’s mother stated to be in existence is also not before the Court and Ex.R.9 caste certificate filed by R.W.1 was of the year 1991 relating to R.W.2. The petitioner as P.W.1 stated about his obtaining Ex.P.11 from the Principal of Maharajah’s college, Vizianagaram about which he was not subjected to any cross-examination, though he admitted that apart from Exs.P.1 to P.11, he has no other documents and he did not file any other documents showing the social status of the 1st respondent or showing his family to be a ‘Kshatriya’ family. On such evidence, the probative value of Ex.P.11, more particularly the entry about the caste of R.W.2, cannot be totally brushed aside. Ex.R.34 matriculation certificate of R.W.2 was filed as not referring to his caste or ‘Kshatriya’ caste, but the certificate had absolutely no space meant for the caste of the certified candidate. When the certificate had no scope for referring to the caste, Ex.R.34 cannot be used to contradict Ex.P.11.
24. Concerning Exs.P.1 to P.11, it may be noted that inBiswambhar Singh and others v. State of Orissa and another (AIR 1954 SC 139), the recitals in an ancient public document, whose authenticity could not be doubted, were considered to furnish evidence of the existence and genuineness of the document and its terms. The principles laid down under Section 35 of the Evidence Act need to be referred to concerning Ex.P.11 and in Desh Raj v. Bodh Raj (2008) 2 SCC 186), the Apex Court with reference to Section 35 of the Evidence Act, held that entries in school admission registers in regard to age, caste, etc., have been considered as relevant and admissible. Read with other oral or documentary evidence, the entries in school registers made nearly 40 years prior to the election petition were held to have evidentiary value. It was also observed that when the school records show a particular caste, the caste certificates issued to the candidates and his relatives by the Executive Magistrate showing a different caste should be ignored, more so when they relate to the period, when the persons started showing that they belonged to a particular Scheduled Caste. In Umesh Chandra v. State of Rajasthan (1982) 2 SCC 202), Section 35 of the Evidence Act was interpreted to mean that there is no legal requirement that the public or other official book should be kept only by a public officer, but all that is required is that it should be regularly kept in discharge of his/her official duty. The record maintained by the school was considered to be, undoubtedly, unimpeachable and authentic and could not be suspected or presumed to be tampered with, more so when there could not have been any motive on the part of the parents of the student to make a false entry and the school enjoyed good reputation of authenticity. Vijaya Kari v. Kondamuri Swarnalatha and another (AIR 1983 AP 181)laid down that under the Educational Rules, every school is obligated to maintain register of admissions with the prescribed particulars and such records can be considered as official records admissible under Section 35 of the Evidence Act. Section 35 of the Evidence Act provides that the document or record maintained pursuant to any legal obligation is an official document admissible under the provision and in view of the fact that the registers are maintained in every school under statutory compulsion, they can be considered as official records and admissible under Section 35 of the Evidence Act. In that case, the document was produced by the Head Master of the school and no discrepancy or motive or interestedness were alleged to discredit their testimony.
25. In opposition, reliance was placed on Birad Mal Singhvi v. Anand Purohit (AIR 1988 SC 1796), the question involved in which was the age of the candidate and the parents or any of the persons having special knowledge about the date of birth of the candidate were not examined and it was observed that parents or near relations having special knowledge are the best persons to depose about the date of birth of a person. It was also held that mere proof of the documents would not tantamount to proof of all the contents of the documents or the correctness of the date of birth stated in the documents, unless the person, who made the entry or who gave the date of birth, is examined. Only if the entry regarding the date of birth in the scholar’s register is made on the information given by the parents or someone having special knowledge of the fact, the same would have probative value. It was also pointed out that to render a document admissible under Section 35 of the Evidence Act, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant, and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. While holding that an entry relating to date of birth made in the school register is relevant and admissible under Section 35, but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded, Courts were stated to have consistently held that the date of birth mentioned in the scholar’s register of secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined. Ravinder Singh Gorkhi v. State of U.P. (2006) 5 SCC 584)was relied on, wherein it was held that Section 35 of the Evidence Act requires the following conditions to be fulfilled before a document is held to be admissible thereunder: (i) it should be in the nature of the entry in any public or official register, (ii) it must state a fact in issue or relevant fact, (iii) entry must be made either by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country and (iv) all persons concerned indisputably must have an access thereto. In that case, it was not shown as to whether any register was required to be maintained under any statute or whether any register was maintained in the school at all. The original register was not produced, no person was examined to prove as who made the entries in the register and hence, the school leaving certificate was not relied on. It was also observed that the entry of date of birth in the school records is merely a piece of evidence. In Thimmakku and others v. Bandlu Rangappa and others (AIR 1977 Karnataka 115), it was laid down with reference to a school admission register and birth registers that in the absence of the examination of and testimony by some witness competent to speak to matters either as to the knowledge of the relationship or as to the source of the information or statements on which the said recitals came to be incorporated in the said documents, the recitals in themselves cannot be treated as substantive evidence and as admissible on the question concerning paternity purportedly indicated in the said documents, as such entries are matters extraneous to what is strictly enjoined upon the officer to record. Khetra Mohan Das and others v. Bhairab Chandra Das and others (A.I.R. 1927 Calcutta 229), held that the person producing a document is relieved of the necessity of proving that it was executed by the person who purported to be the executant, provided that it satisfies the conditions that it is 30 years old and produced from proper custody with reference to Section 90 of the Evidence Act, but that is not the same as saying that the Court shall presume the correctness or genuineness of every statement appearing in the document. In Ram Deo Chauhan alias Raj Nath Chauhan v. State of Assam (AIR 2001 SC 2231), with reference to the register of admission of students, the author of which was not examined, and the register is not maintained under any statutory requirement, the Court did not place any reliance on it, more so, on facts, the manner in which the register has been maintained did not inspire confidence of the Court.
26. Application of the principles to the facts of the present case may not suggest any justification for ignoring Ex.P.11 altogether. R.W.2 was a student of Maharajah’s college, Vizianagaram during the relevant time, is admitted and the correctness of all other entries in Ex.P.11 was also admitted by R.W.2. The entry was one in an official register/record relevant to a fact in issue, obviously made by a person in performance of his duty. That the maintenance of such register or record in performance of a duty specially enjoined by law is obligatory under the relevant statutory rules, received judicial recognition in Vijaya Kari v. Kondamuri Swarnalatha and another (6 supra). While the relevancy and admissibility of such an entry can never be in doubt, the evidentiary or probative value of such an entry, as seen from the precedents, varies with the facts and circumstances of each case. When the original register was produced and the person in whose custody the original register remains and who issued Ex.P.11 was examined and when the persons, on whose information and instructions the entries were made, could not have been available for being examined due to mere efflux of time, the original document more than thirty years old can be presumed to be a dependable piece of evidence as to the factum of such entries having been made, when they were purported to have been made and there is nothing in the circumstances of the case not to inspire confidence about Ex.P.11.
27. The school certificates relating to R.W.2 were not produced so as to be assessed in contrast with Ex.P.11 and there may be nothing factually or legally incorrect, if it were presumed that the entries in the school records also would have been similar as Ex.P.11. It is not claimed by R.Ws.1 and 2 that such records or certificates are not available and the principle laid down in Punit Rai v. Dinesh Chaudhary (2003) 8 SCC 204)that the facts of which special knowledge is with a party, he alone has to prove those facts by adducing the best evidence on the point of his belonging to a caste, may be of direct application. There, it was also laid down that if a party, who is in possession of best evidence, which throws light on the issue in controversy, withholds such evidence, an adverse inference under Section 114(g) of the Evidence Act ought to be drawn against such a party notwithstanding that the onus of proof may not lie on him. Similarly, Gopal Krishnaji Ketkar v. Mohamed Haji Latif and others (AIR 1968 SC 1413)held that even if the burden of proof does not lie on a party, the Court may draw an adverse inference, if he withholds important document in his possession, which can throw light on the facts in issue. To the same effect is the decision in Prem Lata v. Arhant Kumar Jain (AIR 1973 SC 626), wherein it was pointed out that the question of burden of proof has no importance after both parties have adduced evidence.
28. The election petitioner also filed a copy of the statement of R.W.2, dated 22-02-1993, in which the Tribe of the family was stated to be ‘Konda Dora’ throughout and the particulars of education of R.W.2 at Maharajah’s college, Vizianagaram furnished therein do not contradict Ex.P.11. The statement also appears to have mentioned the family of R.W.2 to be traditionally not dining with the communities--‘Kodu’, ‘Gadaba’, ‘Savara’, ‘Gaita’ and ‘Jatapu’ and to have matrimonial alliances with ‘Manna Dora’ and ‘Muka Dora’ communities. However, the statement was not marked through any witness and not confronted to R.Ws.1 and 2 and it is not, hence, referred to in corroboration or contradiction of the other material on record.
29. Exs.R.1 to R.10 and R.37 to R.41 produced by R.W.1 were claimed to be the caste certificates of himself and the members of his family. It is no doubt true that in all these certificates, the family members, including R.Ws.1 and 2 were stated to be belonging to ‘Konda Dora’ community. While R.W.1 denied the said certificates having been issued on their applications without conducting any enquiry, all the post-Constitution certificates appear to be subsequent to 1973 since after the commencement of participation of R.W.2 in the electoral process and much later to the recitals or entries inExs.P.1 to P.11. Similarly, Exs.R.11 to R.14 transfer certificates of R.W.1 and his family members specifying them to be belonging to ‘Konda Dora’, a Scheduled Tribe, were post 1994 certificates. The principle laid down in Desh Raj v. Bodh Raj (4 supra) with reference to such certificates relating to a period of the persons concerned claiming the privileges of belonging to a particular caste being ignored, clearly appears applicable with reference to the above certificates relied on by R.W.1. That was why in Kumari Madhuri Patil and another v. Addl. Commissioner, Tribal Development and others (1994) 6 SCC 241), school certificates and college certificates, which are subject of enquiry, were held to not bear any value, the caste status having to be considered independently. However, the entries in the school register preceding the Constitution were held to furnish great probative value and the caste was noted to be 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. While caste is acquired by birth, subsequent documents manipulated and fabricated to knock off the seats in educational institutions defrauding the true Scheduled Tribes to their detriment and deprivation were not relied upon. Incidentally, it was also held inNagarajan v. District Collector, Salem and others (1997) 2 SCC 571),which is a case where an interpolation in the school certificate added the word ‘Konda’ for a ‘Hindu Reddi’, that the determining factor in such cases is the community to which the father of the petitioner belonged. By interpolation of documents, none can get a particular social status.
30. Exs.R.15 to R.19 certified copies of decrees of civil Courts in O.S. Nos.3 of 1986, 175 of 1987, 126 of 1991, 7 of 1998 and 38 of 2004 and Ex.R.42 certified copy of the suit extract in O.S. No.42 of 1976, refer to the plaintiffs being exempted from paying Court fees as per G.O.Ms. No.381, dated 20-03-1968, as they belong to ‘Konda Dora’ community. But it is not known from them whether such exemption was permitted straight away on the claims made by the plaintiffs therein or after acceptance of any authenticated certificates or documents to that effect, which could have been acted upon under law or after any findings after any enquiry. R.W.1 claimed that exemption from payment of Court fee under Exs.R.15 to R.19 was granted on the strength of the certificates filed by them into Court, but admitted that Exs.R.15 to R.19 made no such reference.
31. Ex.R.20 is the judgment in O.S. No.21 of 1989 on the file of the Subordinate Judge’s Court, Parvathipuram, dated 06-07-1993, which suit was said to have been filed for declaring the plaintiffs therein to be ‘Konda Doras’ and consequential relief of injunction against the State represented by the Collector and the Mandal Revenue Officer from withholding issuance of caste certificate as such. The judgment shows that though the plaintiffs belonged to Hill Tribe ‘Konda Dora’, the common notion prevailing with the authorities concerned is that they belong to the Forward Caste of ‘Kshatriya’ community, which was only a description of the status of the rulers or zamindars. The plaintiffs also appeared to have referred to “Castes and Tribes of South India” by Edgar Thurston mentioning them to be ‘Konda Rajus’ who belong to ‘Konda Dora’ community. The official defendants contested even then contending the relationship of the plaintiffs therein to be with ‘Kshatriyas’ and not members of Scheduled Tribes. The plaintiffs therein were also denied to be having any relationship with Belgam Zamindari family. The civil Court noted that undisputably ‘Konda Dora’ community is a Scheduled Tribe, while ‘Kshatriya’ community is not. The civil Court assumed jurisdiction to declare the caste of the plaintiffs and incidentally, the plaintiffs therein filed copy of the judgment in Election Petition No.13 of 1983 relating to Satrucharala Vijaya Rama Raju, who has been subsequently found by this Court to be not belonging to a Scheduled Tribe in a subsequent election petition, which has been confirmed by the Apex Court. The judgment in Election Petition No.13 of 1983 formed the basis for the judgment of the civil Court, which presumed that the suffix ‘Raju’ attached to rich persons of ‘Konda Dora’ community is a symbol of status and prestige of successors to the family of zamindars. With the subsequent findings by this Court, confirmed by the Apex Court in a subsequent election petition confirming that Satrucharla Vijaya Rama Raju does not belong to Schedule Tribe, the persuasive value of the judgment of the civil Court becomes highly doubtful, apart from the question as to whether the civil Court is at all competent to give such declaration of any person belonging to a Scheduled Tribe. Reference may be made toState of T.N. and others v. A. Gurusamy (AIR 1997 SC 1199), in which a civil suit for a declaration that a person is a member of a Scheduled Tribe and the jurisdiction of the civil Court to take cognizance of such a suit, were held to be prohibited. In Swvigaradoss v. Zonal Manager, F.C.I. (AIR 1996 SC 1182)also, the Supreme Court held that in the light of the constitutional scheme, civil Court has no jurisdiction under Section 9 of the Code of Civil Procedure to entertain a suit for declaring the status of a person as a member of a Scheduled Caste.Prabhudev Mallikarjunaiah v. Ramachandra Veerappa and another (1996) 4 SCC 431) reiterated the settled law that Courts cannot give any declaration that the status with synonymous names of castes claimed by the party is conformable to the names specified in the Presidential Notification issued under Article 341 of the Constitution. The judgment of the civil Court to the contrary in that case, was observed to be not a judgment in rem and to be without basis.
32. Exs.R.21 to R.23 documents, dated 15-12-2006, 27-02-2007 and 28-04-2009, of course, specifically described the executants, namely, the mother and sister of the 1st respondent as belonging to ‘Konda Dora’ caste. But patently, these recent documents resort to such description years later to the members of the family started claiming and enjoying the consequential privileges and benefits in educational, electoral and other aspects arising out of such status.
33. Then come the attested copies of the Census Index and Report from 1891 to 1951 marked as Exs.R.24 to R.33. While the contents of these old and authoritative documents can be straight away referred to, Ex.R.24 the Census of India, 1891 report published in 1893 referred to a tribe in Vizagapatnam called ‘Konda Dora’ or ‘Konda Kapu’ and ‘Konda Doras’, ‘Konda Kapus’, ‘Kondas’, Manne Doras’ or ‘Doras’ were stated to have 74 sub-divisions entered into the Schedules in Chapter-IX of the report. But majority of them were stated to have returned to the main caste or one of its synonyms. Significantly, it was also stated that many of the sub-divisions are the names of separate castes, though Ex.R.25 Tables and Caste Index of the same census gave the names of the main castes and underneath each caste, the names of the sub-divisions and it is true that under the caste ‘Konda Dora’, ‘Konda Raju’ was mentioned as one of the sub-divisions.
34. But Ex.R.25 itself cannot indicate ‘Konda Raju’ sub-division of ‘Konda Dora’ caste is not a separate caste, as Ex.R.24 clearly specifies that many of the sub-divisions are the names of separate castes.
35. Ex.R.26 statistical Appendix of Vizagapatnam District in Madras District Gazetteers of 1905 mentions the strength of ‘Konda Dora’ caste, tribe or race as 80,924 in 1901, which is similar to the strength given in Ex.R.25 relied on as indicating the strength of ‘Konda Rajus’ to have been shown as part of the strength of ‘Konda Doras’.
36. Ex.R.27 report of Census of India, 1911, Volume I, discusses caste, tribe and race in detail in Chapter XI and it was recognized that the segmentation of Hindu society is much more complicated than appears at first sight and it has taken place in more directions than one. It was stated that a caste may be defined as an endogamous group or collection of such groups bearing a common name and having the same traditional occupation, who are so linked together by these and other ties, such as the tradition of a common origin and the possession of the same tutelary deity, and the same social status, ceremonial observances and family priests, that they regard themselves, and are regarded by others, as forming a single homogeneous community. It was again said that what is commonly known as the sub-caste or smallest endogamous group, ought really to be regarded as the caste, and that the caste as defined above is merely a general term including a number of true castes following the same profession. A tribe was again stated to be distinguished in its original form from a caste by the fact that its basis is political rather than economic or social. It was noted that the changes have always been in progress in the caste and new castes have come into existence to meet new needs and old ones have been dissolved when the necessity for them no longer existed. The analysis also referred to primary division of sub-castes into sub-castes of fusion and sub-castes of fission and dealt in detail with the various historical and social processes in the formation or dissolution of castes and sub-castes. The enlightened analysis of the whole issue in Ex.R.27 may not be corroborative of the claim that ‘Konda Rajus’ were a sub-caste and were always a part of ‘Konda Doras’ specified as such till 1901 and not thereafter as sought to be contended on behalf of the 1st respondent in the absence of the background due to which ‘Konda Rajus’ were initially specified separately and were not later so referred.
37. Ex.R.28 Tables of Census of India 1911, Volume I were also intended to indicate the total strength of ‘Konda Doras’ to include all sub-castes or sub-tribes including ‘Konda Rajus’ and so was the reference in Ex.P.29 Report in Volume XIV of Census of India, 1931.
38. Ex.R.30 Table of Territorial Distribution of Principal Communities in Census of India, 1931 is also to the similar effect and so are Exs.R.31 and R.32 and Ex.R.32 Report, Volume III of Census of India, 1951 referred to ‘Konda Dhoras’ as one of the Scheduled Tribes notified by the President under Article 342 of the Constitution of India and unlike many other Scheduled Tribes, in which number of synonyms were also included in the said notification, ‘Konda Dhoras’ had no such synonyms or sub-castes or sub-tribes or sub-race being included in them. For example, item 37 ‘Savaras’ include ‘Kapu Savaras’, Khutto Savaras’ and ‘Maliya Savaras’. ‘Konda Kapus’ and ‘Konda Reddis’ were separately mentioned in items 20 and 21 and ‘Konda Rajus’ do not find a place. The Glossary of Caste Names of Visakhapatnam District of Census of India, 1951, marked as Ex.R.33, mentioned about ‘Konda’, ‘Konda Bestha’, ‘Konda Doralu’, ‘Konda Kapu’ and ‘Konda Reddi’, but not about ‘Konda Rajus’.
39. The Manual of Vizagapatnam District in the Presidency of Madras, originally published in 1869, refers to Nishada to be forming Hill Tribes/Castes. Zamindars of ‘Konda Razu’ caste, who now call themselves ‘Kshatriyas’ and who find ‘Brahmins’ ready enough to become their Purohits, have, it is supposed, one or other of the sons of Nishada for their ancestors. Ex.R.35 refers to the Andhra Family and Estate founded by a person of ‘Konda Dora’ caste, while the Salur Family and Estate, the Panchipenta Family and Estate, the Chemudu Family and Estate, the Sangamvalasa Family and Estate, the Belgam Family and Estate, the Merangi Family and Estate and the Kurupam Family and Estate were specifically referred to as belonging to or styling themselves as ‘Konda Rajus’. Jagannadha Patro being the Dewan of Ramachandra Deo of Jeypore and his son Sundara Narayano Patro being granted Zamindari tenure in 1796 was specifically referred to and the family was specifically stated to be belonging to ‘Hill Raju’ (Konda Raju’) family. The Manual is, thus, as though ‘Konda Dora’ caste and ‘Konda Raju’ caste are different.
40. Ex.R.36, copy of Vizagapatnam District Gazetteer in the Presidency of Madras of 1907, referred to ‘Konda Doras’ or ‘Konda Kapus’ numbering about 81,000, who were divided into ‘Pedda Kondalu’ and ‘Chinna Kondalu’ and ‘Muka Doras’ were noted to be classed as a separate caste to which zamindar of Pachipenta belongs. Referring to Belgam Estate, the grant of zamindari to Somasundara Narayana Patro, son of Jagannatha Patro in 1796 was again stated and the family was noted to use the title ‘Tat Raja’. It traces the genealogy of the family, but there are no definite indicators of the Belgam Zamindari family being ‘Konda Doras’ or ‘Konda Rajus’.
41. In “Castes and Tribes of Southern India” by Edgar Thurston and K. Rangachari, Volume III-K, pages 349 to 356, ‘Konda Doras’ are dealt with and they are noted to be known as ‘Konda Doras’, ‘Konda Kapus’ and ‘Ojas’. The customs, conventions and rituals of ‘Konda Doras’ divided into ‘Pedda Kondalu’ and ‘Chinna Kondalu’ were described in detail and there was no reference to any ‘Konda Doras’ being called as ‘Konda Rajus’.
42. In “The Tribes of Andhra Pradesh” by the Tribal Cultural Research and Training Institute of the department of Social Welfare of the State Government in 1964 also, similar information was given about ‘Konda Doras’.
43. While R.W.2 contested for the first time to the Parliament in 1977 from Parvathipuram Constituency reserved for Scheduled Tribes, pre-Constitution and even post-Constitution documents from Ex.P.1 to Ex.P.11 are supportive of the contention that the family members of R.W.2 appear to have described themselves as ‘Kshatriyas’ and the various documents marked on behalf of the 1st respondent from Exs.R.1 to R.23 and R.37 to R.42 referring to the status of the family members including R.Ws.1 and 2 as ‘Konda Doras’ are all post-1970 documents. R.W.2 admitted that their family had no relationships with the other ‘Konda Dora’ Tribe families of Belgam and Addapusila. While claiming to be not ‘Kshatriyas’, he himself stated that they are ‘Konda Rajus’, a sub-sect of ‘Konda Doras’, so called as they are zamindars. The attempt to claim widow remarriage to be one of the customs signifying ‘Konda Dora’ Tribe was not corroborated by R.W.1 or R.W.2 by referring to any such marriages in their family to their knowledge and R.W.2 refers to one such marriage of the widow of her sister’s elder son marrying his sister’s younger son, which cannot be considered to be in the family of R.Ws.1 and 2. Wearing beads by the ladies was also attempted to be stated as another custom of ‘Konda Doras’, but R.W.2 admitted that he does not know whether ladies in other families of the area also wear beads. R.Ws.1 and 2 had to admit that Satrucharla Vijaya Rama Raju is the brother of the mother of R.W.1/wife of R.W.2, who admittedly could not prove his scheduled tribal status in an election dispute before this Court and the Supreme Court, in which R.W.2 gave evidence that Vijaya Rama Raju belongs to a Scheduled Tribe. The sister of Satrucharla Vijaya Rama Raju, who was found to be not belonging to a Scheduled Tribe or more particularly ‘Konda Dora’ Tribe being married to R.W.2, may also be a circumstance that militates against the claim of R.Ws.1 and 2 belonging to such Scheduled Tribe. While R.W.2 obtained caste certificates for each of his children before admitting them into schools, he admittedly did not show his own caste certificate to the school authorities at that time and an enquiry into the tribal status of the mother of R.W.1 is admittedly pending. R.W.1 also specifically stated that he belongs to ‘Konda Raju’ caste, enumerated as one of the sub-castes of ‘Konda Dora’ community. Nobody objecting to the tribal status of R.W.2 and R.W.1 or R.W.1’s mother in 1977 Parliament elections or 2006 Zilla Parishad Territorial Constituency elections or 2005 Municipal elections or any such objection being overruled at the time of scrutiny of nominations and later remained unchallenged, cannot operate as any estoppel against the disqualification of R.W.1, if he were really disqualified under the law. R.W.1 also did not remember whether any woman in their family had any remarriage after the death of her husband and admitted that there was no woman in his family who obtained divorce. Their worshiping Tribal Goddesses itself may not be a determinate factor, while R.W.1 did not know whether there is any relationship between their family and any of about 400 ‘Konda Dora’ families in the area. To his knowledge, except the alliances with the families of Pachipenta zamindars and China Merangi zamindars, there are no other alliances between their family and other families of their area. The petitioner as P.W.1 was referring to the Hill Zamindar families being reputed in the area to be ‘Kshatriyas’ and they being the rulers of the area not having any marital relationship with any persons belonging to Scheduled Tribes. Though he does not know whether ‘Konda Rajus’ come under ‘Kshatriya’ community or not, P.W.1 was positive about R.W.1 not belonging to a Scheduled Tribe. His not taking any steps to have the Schedule Tribe certificates in favour of R.W.1 and his family members cancelled, is of no relevance herein and his cross-examination about the traditions and customs of ‘Konda Doras’ or ‘Kshatriyas’ is not of much significance in view of there being no evidence worth the name on record probablising the practice of such customs and traditions by R.W.1’s family, which unmistakably points out to their belonging to ‘Konda Dora’ Scheduled Tribe.
44. Thus, while claiming any reference to themselves as ‘Kshatriyas’ anywhere to be reflective of their status as rulers, but not their caste or tribe, the positive case of the 1st respondent and his father in the written statement or the evidence is that they belong to ‘Konda Raju’ caste, which is a sub-caste of ‘Konda Dora’ community, which is a Scheduled Tribe. An enquiry into whether ‘Konda Raju’ is a sub-caste of ‘Konda Dora’ Scheduled Tribe or not and whether ‘Konda Raju’ can be considered to be included in ‘Konda Dora’ Scheduled Tribe, does not appear permissible with reference to the settled precedents.
45. Parsram and another v. Shivchand and others (AIR 1969 SC 597)laid down that Article 341 of the Constitution of India empowered the President to specify not only the entire castes, races or tribes, but parts or groups within castes, races or tribes, which shall for the purposes of the Constitution, be deemed to be the Scheduled Castes in relation to a State or Union Territory, as the case may be. The judgments in Basavalingappa v. D. Munichinnappa (AIR 1965 SC 1269)and Bhaiya Lal v. Harikrishen Singh (AIR 1965 SC 1557)were relied on and it was held that it would not open to any person to lead evidence to establish that Caste-B is part of Caste-A notified in the Constitution (Scheduled Castes) Order, 1950. Consequently, an enquiry in order to determine whether a caste is a sub-caste of the notified caste would not be permissible. It would be of no use to look into the Gazetteers and Glossaries on the Castes and Tribes to find out that Caste-A and Caste-B meant the same caste.
46. Radha Bai Andand Rao v. Suvarna Kumar and another (1980) 3 SCC 169)accepted the returned candidate as belonging to a Scheduled Tribe ‘Koya’ due to the elder brother of the returned candidate being described as a ‘Doli koya’ in the school records and the evidence of the Tahsildar that there was no caste as ‘Doli’, and ‘Koya’ people, who professionally beat drums in festive occasions, are called as ‘Dolya’ and as the returned candidate was also described in the school registers as ‘Doli koya’ or ‘Koya’ long before the issue of the Constitution (Scheduled Tribes) Order, 1950. Thus, the enquiry therein was not about Caste-B being part of Caste-A also notified in the Constitutional Order, but about the description of ‘Doli Koya’ or ‘dolya’ being only indicative of a ‘koya’ who is professionally beating drums on festive occasions and not about any other sub-castes or caste than that included in the Constitution (Schedule Tribes) Order, 1950.
47. Palanimuthu v. Returning Officer (1984 (Supp.) SCC 77)had the returned candidate obtaining the certificate after inclusion of ‘Konda Reddy’ community in the List of Scheduled Tribes by the amendment of the Scheduled Castes and Scheduled Tribes (Order) Act, 1976. In all other documents, the community of the returned candidate and the family was described as ‘Hindu Reddy’ community and it was attempted to be stated that ‘Konda Reddy’ community is a sub-caste of ‘Hindu Reddy’ community, which was not accepted.
48. State of Maharashtra v. Milind and others (AIR 2001 SC 393)decided that the entries in the Schedules in the orders issued under Articles 341 and 342 of the Constitution pertaining to each State mentioned in the brackets after each caste/tribe in the Schedules, if the caste/tribe has another name. In that view, it serves no purpose to look at gazetteers or glossaries for establishing that a particular caste/tribe is a Scheduled Caste/Scheduled Tribe for the purpose of Constitution, even though it is not specifically mentioned as such in the Presidential Orders. No enquiry is permissible and no evidence can be let in for establishing that a particular caste or part or group within tribes or tribe is included in the Presidential Orders, if they are not expressly included in the Orders. The Apex Court made it clear that when no other authority other than the Parliament, that too by law alone can amend the Presidential Orders, neither the State Governments nor the Courts nor Tribunals nor any authority can assume jurisdiction to hold enquiry and take evidence to declare that a caste or tribe or part of or a group within a caste or tribe is included in Presidential Orders in one Entry or the other although they are not expressly and specifically included. The ratio of the earlier precedents was reaffirmed and formulating the positions that emerge, the Supreme Court pointed out that it is not at all permissible to hold any enquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the concerned Entry in the Constitution (Scheduled Tribes) Order, 1950. It was held that Scheduled Tribes Order must be read as it is and it is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order, if they are not so specifically mentioned in it.
49. In Chinnappa v. Venkatamuni and others (1996) 3 SCC 585), the caste, to which the returned candidate belongs, was not recognized as a Scheduled Caste in the Presidential notification and it was held to be not open to be considered to be synonymous with or equivalent to a caste notified in the Scheduled Castes Order. The limited scope of enquiry was held to be whether the caste claimed by the candidates finds place in the notification of the President as amended under the said Act.
50. Nityanand Sharma and another v. State of Bihar and others (1996) 3 SCC 576)is a case where the question was whether Lohars could be considered by the Court as synonyms of Loharas or Lohras and it was held that it was not open to the Court to make any addition or subtraction from the Presidential Order and the Court has no power to declare synonyms as equivalent to the Tribes specified in the Order or include in or substitute any caste/tribe etc. Though evidence may be admissible to a limited extent of finding out whether the community which claims the status as Scheduled Caste or Scheduled Tribe, was, in fact, included in the Schedule concerned, the Court is devoid of power to include or exclude from or substitute or declare synonyms to be of a Scheduled Caste or Scheduled Tribe or parts thereof or group of such caste or tribe.
51. In Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar and others (2008) 9 SCC 54), it was reiterated that Parliament alone can amend the law and the schedule for the purpose of including or excluding therefrom a tribe or tribal community or part of or group within the same in the State, district or region and the declaration made by Parliament is conclusive. For the said purpose, the Court does not have any jurisdiction so as to enable it to substitute any caste and tribe.
52. Reverting to the written statement of the 1st respondent and the evidence of R.Ws.1 and 2, the assertion was that the description of any member of the family in any document as ‘Kshatriya’ was only reflective of the social status of the family as rulers and zamindars and that they belong to ‘Konda Raju’ caste, one of the sub-castes of ‘Konda Dora’ community, a Scheduled Tribe. The family of the 1st respondent admittedly had no relationships with other ‘Konda Dora’ tribe families of Belgam and Addapusila and in the area where about 400 families of ‘Konda Dora’ tribe live. The evidence of R.Ws.1 and 2 itself does not suggest the family of the 1st respondent to be adherent to the customs, traditions and practices of ‘Konda Dora’ Scheduled Tribe. The Census reports, the District Manuals, the District Gazetteers and the earlier precedents/judicial decisions relating to the tribal/caste status of these Hills Zamindaris need be appreciated in that background.
53. The first of the relevant cases relating to these Hill Zamindars in the area appears to beV.V. Giri v. D. Suri Dora and others (AIR 1959 SC 1318), wherein the returned candidate described himself and the members of his family as the members of a scheduled tribe from 1885 to 1928 and as belonging to ‘Kshatriya’ caste from 1928 onwards. The customs and rituals of ‘Kshatriya’ caste were stated to have been adopted since some years by the returned candidate. It was observed that the caste status of a person in the context would necessarily have to be determined in the light of the recognition received by him from the members of the caste into which he seeks an entry and any unilateral acts intended to assert a higher status cannot be easily taken to prove that the claim for the higher status which the said acts purport to make is established. The minority view, of course, was that the returned candidate by his actions raised himself to the position of a ‘Kshatriya’ and he was no longer a member of the Schedule Caste or Tribe. The adoption of customs and rituals of ‘Kshatriya’ caste by these elevated families, thus, seem to be since a considerably long period leading, maybe, even to the social recognition of such higher status leading to the minority view in the decision, of the candidate in question raising himself to the position of ‘Kshatriya’ depriving himself of the membership of his Scheduled Caste or Schedule Tribe.
54. Then came Election Petition No.13 of 1983 decided on 16-01-1984 challenging the election of Satrucherla Vijaya Rama Raju alleging that he does not belong to a Scheduled Tribe and is not a ‘Konda Dora’, but a ‘Kshatriya’. The evidence produced by the election petitioner therein was found to be wholly deficient and the oral evidence was considered to be almost next to nothing. The recital in Ex.A.1 sale deed therein referring to them as ‘Kshatriyas’ was defended to be for maintaining the prestige and dignity, though they are not ‘kshatriyas’. R.W.2 herein examined as R.W.7 therein is his brother-in-law and deposed therein that they belong to ‘Konda Dora’ community. The learned Judge concluded that Satrucherla Vijaya Rama Raju belongs to ‘Konda Dora’ Tribe.
55. Notwithstanding the decision in Election Petition No.13 of 1983, the subsequent election of Satrucharla Vijaya Rama Raju was again challenged in Nimmaka Jaya Raju v. Satrucharla Vijaya Rama Raju and others (2004(4) ALT 14)dealing with the election petition filed by the present petitioner herein against the returned candidate therein, who is the maternal uncle of the 1st respondent herein. A learned Judge of this Court firstly found that the entries in school records and registered documents relating to pre-Constitution period carry greatest probative evidentiary value and therefore, the entries in such records to be safely relied on. With specific reference to Ganjam and Vizagapatnam Act, 1839, wherein specified hill zamindaris were recognized, the learned Judge observed, with reference to ‘Castes and Tribes of South India’ by Edgar Thurston and K. Rangachari, Madras District Gazetteers and Manual of District Vizagapatnam in the Presidency of Madras compiled and edited by D.F. Carmichael, that while the other references do not show the returned candidate to be belonging to ‘Konda Dora’ Tribe, the Manual describing the castes of respective hill zamindars clearly indicated that there is a distinction between the castes ‘Konda Dora’ and ‘Konda Raju’ in specifying that Andhra zamindar belongs to ‘Konda Dora’ caste, while other zamindars belong to ‘Konda Raju’ caste. The learned Judge also, on elaborate discussion, found that from the beginning the family of the returned candidate were having alliances with zamindars and ‘Muka Doras’ elevating themselves as separate section, much higher in level than ‘Konda Dora’ tribes. The earlier decision in favour of the returned candidate in E.P. No.13 of 1983 was noted to be for want of sufficient evidence for the petitioner therein and the conclusion of the learned Judge that ‘Konda Raju’ cannot be equated with ‘Konda Dora’ Tribe, was confirmed by the Apex Court.
56. In Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju and others (2005 AIR SCW 6197), the Apex Court, of course, noted that the earlier election petition in E.P. No.13 of 1983 failed for want of evidence worth the name for the election petitioner, but also observed that adjudication in an election petition, not inter-partes, cannot operate as res judicata in a subsequent election petition challenging that subsequent election. The Apex Court found further that the High Court found that the returned candidate on the very material relied on by him was shown to be ‘Konda Raju’, which is different from the Tribe ‘Konda Dora’. The Apex Court also concluded that the documents do not establish the returned candidate to be belonging to ‘Konda Dora’ Tribe. The Apex Court also found the way of life of zamindari families including their marital relationships to be not that of Tribes and they were observed to be desiring to have the best of two worlds. Though the maternal link of the 1st respondent with Satrucharla Vijaya Rama Raju may not be a determinate factor on his social status acquired through his paternal link, the absence of any marital relationships between the 1st respondent’s family and any other ‘Konda Dora’ tribal families in the area and the mother of the 1st respondent being a member of the family of Satrucharla Vijaya Rama Raju, her brother, being not in dispute, the conclusion by this Court and the Apex Court will, undoubtedly, have a corroborative persuasive effect on the probability of the 1st respondent also being probably of same or similar social status.
57. In Nimmaka Jaya Raju v. Satrucharla Vijaya Rama Raju and others(30 supra), the learned Judge referred to the Vizagapatnam District Manual disclosing Andhra zamindars alone to be ‘Konda Doras’, while the remaining seven Hill Zamindars of the area to be ‘Konda Rajus’ and on the material placed before this Court herein, as already referred, there could not have been reasonably any other conclusion than the probability of the 1st respondent being a ‘Konda Raju’ and not a ‘Konda Dora’ and on almost an identical material, this Court concluded that ‘Konda Raju’ cannot be equated to ‘Konda Dora’ Tribe, which conclusion was not disturbed by the Apex Court. Election Petition No.13 of 1983 notwithstanding, the Apex Court did not see any justification in differing from the appreciation of the oral and documentary evidence by the learned Judge of this Court. Prohibiting the enjoyment of best of two worlds in such cases should follow as concluded by the Apex Court by not considering such persons to be true representatives of the Tribes included in the Presidential Order deserving a special protection.
58. Though, not marked or admitted in evidence, the learned senior counsel for the election petitioner placed a copy of the report of enquiry on the caste of Sri L.N. Sanyasi Raju, Ex-Zamindar and Ex-MLA, Salur and the memo, dated 12-12-1998 issued by the Social Welfare (CV) Department of the State Government. The enquiry report referred to the Manual of District of Vizagapatnam in the Presidency of Madras published in 1869, in which a detailed history of various hill zamindaris and their genealogy was given apart from recording the castes of the zamindars. It was noted that the castes recorded were Andhra zamindari as ‘Konda Dora’ and Salur zamindari as ‘Konda Raju’. The enquiry report also referred to the birth register, various land transactions from 1941 of Sri Sanyasi Raju and the members of his family and the educational records and local recognition of the family as ‘kshatriyas’ or ‘Rajulu’. Marriages were noted to be only within local ‘kshatriyas’ or ‘Rajus’ or Ex-zamindars of Orissa State. All the Ex-zamindars were noted to be locally recognized and treated as ‘Rajputs’ or ‘Kshatriyas’. The Commissioner of Tribal Welfare enquiry report also stated that ‘Konda Raju’ caste is not notified as a Scheduled Tribe at any point of time in the State of Madras or Andhra or Andhra Pradesh since 1950 and it is not permissible to treat ‘Konda Raju’ caste as the same as any listed Scheduled Tribe under the Constitution, which amounts to modification or addition or subtraction in the list of Scheduled Tribes issued by an Act of Parliament in 1976. In the Government memo, the social status of the blood relatives of Sri Sanyasi Raju was directed to be taken as per the report of the Commissioner of Tribal Welfare. Incidental reference to the above report of enquiry is only as a matter of reassurance to the circumstances disclosed by the evidence on record.
59. Then in Peedika Rajanna Dora v. Rajendra Prathap Bhanj Deo and another (2006 (5) ALT 289), notwithstanding the pendency of a special leave petition before the Apex Court against the Full Bench decision in Andhra Pradesh Scheduled Tribes Employees Association v. Aditya Pratap Bhanj Dev and others (2001 (6) ALD 582 (FB) = (2001 (6) ALT 433), as the judgment was not suspended, it was relied on. Apart from noting that the ancestors of the returned candidate have made series of assertions with regard to their caste as ‘Kshatriya’ in a series of documents, the returned candidate belonging to Mokhasadar family and related to tribal zamindari families as per his claim was, hence, considered to have not proved him to be belonging to ‘Konda Dora’ scheduled tribe.
60. In Andhra Pradesh Scheduled Tribes Employees Association v. Aditya Pratap Bhanj Dev and others (33 supra), a Full Bench of this Court laid down that a suit for declaration of Schedule Tribe and/or a suit for declaration that an unincluded community be declared as equivalent to a tribe in the Scheduled Tribes Order, is expressly and impliedly barred and if civil Court has no jurisdiction to pass such a decree, therefore, the declaration that ‘Konda Raju’ is equivalent to ‘Konda Dora’, which is included in the Scheduled Tribes Order, was not within the jurisdiction of the civil Court and a decree to that effect is a nullity. The Full Bench also found that the claim to be belonging to ‘Konda Dora’ community was by virtue of relationship with zamindar of Salur, while in all the registered documents, the grand father and father of the person claiming such status were described as ‘Kshatriyas’. Such documents were considered relevant for deciding his status as to community/caste/tribe of a person and it was noted that even in the civil suit, the person claimed to be belonging to ‘Konda Raju’, which is equivalent to ‘Konda Dora’ community. It was claimed therein also that some ‘Konda Doras’ called themselves as ‘Konda Rajus’ and ‘Kshatriyas’ due to their elevated position.
61. Regu Maheswara Rao v. Vyricherla Kishore Chandra Suryanarayana Deo (2011 (1) ALT 789)ended in a different result, wherein the returned candidate belonged to Kurupam zamindari family claimed to be belonging to ‘Konda Dora’ community, a hill tribe of the then Vizagpatnam district and the election petitioner therein claimed the returned candidate to be belonging to ‘Kshatriya’ family and caste otherwise known as ‘Rajus’. Vyricherla family was also stated to be related to Shatrucharla family and Poosapati family belonging to ‘Kshatriya’ caste and it has no marital or other relations with any family belonging to the Scheduled Tribes in the District or the State. While observing that under Section 90 of the Indian Evidence Act, 1872, presumption can only be drawn with regard to attestation and execution of the document but not to the contents of the document, it was observed that the recitals in the documents with regard to community or caste of a person, who sold the property or purchased the property, are not required to be noted in the sale deeds and even if the community is noted of a person in the document, it is of fragile value. It was also opined that even assuming for a moment that caste or community is mentioned in a sale deed, it does not necessarily lead to draw an irresistible conclusion that the party to the document belongs to the particular community as described in the document. Hence, such recitals cannot be taken as conclusive proof and at best it can be taken as one circumstance so as to support the other acceptable evidence, if any, available on record. Probative value of the factum of community as mentioned in the sale deeds was considered to be a very weak piece of evidence. The contents of a plaint describing the caste or community were also considered to be not conclusive evidence and the entries in a school admission register were not relied on due to the register being not maintained by any public authority or public official in the course of regular official duty, more so when the maintenance of the register was not traced to the relevant statute. So, that was also considered to be not a conclusive proof of the returned candidate belonging to ‘Kshatriya’ community. The absence of marriages with any other Scheduled Tribe family was also ignored due to prevalence of inter-caste marriages in these days and the oral evidence was discussed in detail to disagree with the election petitioner and the mention of the community of the returned candidate or his ancestors in the documents as ‘Kshatriyas’ was held to lead to only some suspicion and even if over the course of period of after ‘Konda Doras’ are called as ‘Kshatriyas’ or “Rajus’ who are living in the tribal areas, it cannot be said that the returned candidate does not belong to ‘Konda Dora’ community. In the statement of the returned candidate in the enquiry that he belongs to ‘Konda Raju’, was explained and the election petitioner was noted to have failed to establish his case beyond all reasonable doubt. Consequently, the election petition is dismissed.
62. In C.A. No.1897 of 2011, the Apex Court dismissed the appeal against the said judgment on 04-03-2011 and a review petition was also dismissed on 25-08-2011, in R.P.(C) No.1866 of 2011 as there was no satisfactory explanation for the delay in filing the same and further as no case for review is made out.
63. On the effect of refusal of special leave, Kunhayammed and others v. State of Kerala and another (2000)6 SCC 359)laid down that an order refusing to grant special leave to appeal may be a non-speaking order or a speaking one and in either case, it does not attract the doctrine of merger. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
64. Thus, in Regu Maheswara Rao v. Vyricherla Kishore Chandra Suryanarayana Deo(34 supra), the recitals in the document concerning community or caste of a person not required to be noted therein were only considered to be of fragile value but not of any stronger effect. Similarly, the contents of pleadings before a Court or the entries in a school admission register or absence of marriages with any Schedule Tribe families. The conclusions were on the probabilities arrived at on the oral and documentary evidence placed before the Court in that case, wherein the election petitioner failed to establish his case beyond all reasonable doubt. The effect of a decision on merits in the earlier election petition in a subsequent election petition, as already stated, was clarified in Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju and others (31 supra), wherein it was clearly laid down that adjudication in an election petition not inter-partes cannot operate as res judicata in a subsequent election petition challenging that subsequent election. Each case has to be determined on its own merits on the evidence placed before the Court and the cumulative effect of each piece of evidence placed before the Court in that case was considered not to be of such persuasive effect as to believe the returned candidate to be not belonging to a Scheduled Tribe, whereas in the present case, notwithstanding the strength or weakness in the case of either party, the total and cumulative effect of the evidence on record can only be that the 1st respondent was not probablised to be a member of ‘Konda Dora’ Scheduled Tribe and on his own pleadings and evidence, he presented himself to be belonging to ‘Konda Raju’ caste/sub-caste, which cannot be equated to ‘Konda Dora’ Tribe. It is true that in Laxman Siddappa Naik v. Kattimani Chandappa Jampanna and others (AIR 1968 SC 929), it was observed that when there was no evidence one way or the other, the election petitioner could not succeed on the weakness of the case of the opposite party. It was also held that an election is something which cannot be readily set aside and there must be proof and convincing proof that a person is not properly chosen to fill a particular seat and mere suspicion or surmise is not sufficient.
65. Similarly, in M. Chandra v. M. Thangamuthu and another (2010) 9 SCC 712), it was laid down that it is a settled legal position that an election petition must clearly and unambiguously set out all the material facts which the petitioner is to rely upon during the trial, and it must reveal a clear and complete picture of the circumstances and should disclose a definite cause of action, in the absence of which, an election petition can be summarily dismissed. An election result, where the people elect their representatives, cannot be taken lightly and for an election result to be annulled there must be positive evidence to prove illegality of the election. The burden of proof shall lie on the petitioner filing the election petition.
66. However, in K.C. Kapoor v. Radhika Devi (1981) 4 SCC 487), it was pointed out that even if inartistically drafted, a written statement should not be construed in a hyper technical manner and what is to be seen is whether the allegations made gave sufficient notice to the plaintiffs of what case they have to meet. It is not either on the inartistic drafting of the written statement or ambiguous presentation of the material facts that a conclusion is arrived at herein, but on the clear allegation in the election petition that the 1st respondent does not belong to ‘Konda Dora’ Scheduled Tribe and positive denial in the written statement by asserting the 1st respondent to be belonging to ‘Konda Raju’ caste. The assertion that the 1st respondent is a ‘Kshatriya’ made in the election petition was denied in the written statement and though it is true that the 1st respondent might not have been proved beyond all reasonable doubt to be a ‘Kshatriya’ from Exs.P.1 to P.11, which, of course, positively disclosed the members of the family of the 1st respondent claiming all the trappings of ‘Kshatriyas’ since long, a clear and complete picture of the circumstances disclosing a different cause of action to conclude the 1st respondent to be a ‘Konda Raju’ and not a ‘Konda Dora’ arose not only from the election petition specifically referring to the family of the 1st respondent being specifically referred to as belonging to ‘Hill Rajah’ or ‘Konda Raju’ caste but also from the very pleadings and evidence of the 1st respondent, the effect of which cannot be brushed aside with reference to any weakness or deficiency in the pleadings and evidence of the election petitioner, the question of burden of proof losing all its relevance once the evidence of both parties is placed before the Court and this is not a case of no evidence for either party. On such facts, circumstances and evidence, it has to be, therefore, concluded that the 1st respondent is proved to be not belonging to a Scheduled Tribe and is, therefore, not qualified to be chosen to fill a seat in the Legislative Assembly of the State of Andhra Pradesh reserved for the Scheduled Tribes of the State, as he is not a member of any of the Scheduled Tribes of the State of Andhra Pradesh.
67. Issue No.2:
As the 1st respondent has been, thus, shown to be not qualified to be chosen to be elected to 130-Kurupam Scheduled Tribe Assembly Constituency reserved for the Scheduled Tribes of the State of Andhra Pradesh, his election has to be declared to be void under Section 100(1)(a) of the Act and the election petition has to be ordered as such under Section 98 of the Act. The election petitioner incidentally requested for being declared to have been duly elected in that election from that constituency and obviously and admittedly, he did not receive a majority of the valid votes polled in that election within the scope of Section 101(a) of the Act and he cannot be considered to be falling within the scope of Section 101(b) of the Act also, as the election of the 1st respondent fails due to his disqualification, but not due to any corrupt practice. Even otherwise, in such cases, such a relief is not ordinarily considered and suffice to refer to Prakash Khandre v. Vijaya Kumar Khandre (2002) 5 SCC 568), in which the Apex Court had observed as follows:
“However, in an election where the elected candidate is declared to be disqualified to contest election and there are more than two candidates contesting election, there is no specific provision under the Act under which the person who has secured the next highest number of votes could be declared as elected. The Act is silent on this point. Further, it cannot be presumed that the votes secured by the disqualified elected candidates would have been wasted or would have been secured by the next candidate who has secured more votes. If disqualified candidate was not permitted to contest the election then how the voters would have votes in favour of the candidate who has secured more votes than other remaining candidates would be a question in the realm of speculation and unpredictability. In such a situation, declaring the election of the returned candidate on the ground of his initial disqualification to contest the election by itself would not entitle the election petitioner or any other candidate to be declared elected.”
The relief to be granted herein has to be, therefore, confined to setting aside the election of the 1st respondent with an appropriate consequential order on the costs of the election petition.
68. Therefore, the election of the 1st respondent from 130-Kurupam Scheduled Tribe Assembly Constituency to the Andhra Pradesh State Legislative Assembly as declared on 16-05-2009 is declared to be void and the election petition is allowed to that extent and is dismissed in respect of the declaration sought for to declare the election petitioner as duly elected from the said Constituency in the said election. The parties shall bear their own costs. An authenticated copy of this order be communicated forthwith to the Speaker of the Andhra Pradesh Legislative Assembly and the Election Commission of India under Section 103 of the Representation of the People Act, 1951.