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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 24TH DAY OF AUGUST 2012

BEFORE

THE HON’BLE MR.JUSTICE N. ANANDA

M.F.A.No.6958/2012 (KMC)

BETWEEN:Sri S.Shivashankar PrasadS/o Sri S.P.GovindappaAged about 51 YearsNo.5, Nisarga, GiddammaLayout, A.NarayanapuraDooravaninagar PostBangalore – 560 016. … Appellant

(By Sri Ashok Haranahalli, Senior Advocate for SriyuthsC.Shashikantha & Nishanth A.V., Advocates)

AND:1. Sri D.A.Gopala

S/o late AnnayappaAged about 56 YearsR/at No.43, GangothriDevasandra, K.R.Puram PostBangalore – 560 036.

2. Sri H.S.AmanullaS/o Sri Syed Hussaian ShahAged about 51 YearsR/at No.319, 1st Main RoadDarga Mahal, VijinapuraDooravaninagar Post, Bangalore – 560 016.

3. Sri C.KunjappanS/o Sri Kunjan PillaiAged about 62 YearsR/at No.120/60 (Old No.164)Nethravathi Road, 2nd crossUdaya Nagar, Dooravaninagar PostBangalore – 560 016.

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4. Smt.B.N.Rohini, MajorW/o Sri P.MunivenkatappaNo.466, 1st Main, VidyanagarPai Layout, DooravaninagarBangalore – 560 016. … Respondents

(By Sri Ravivarma Kumar, Senior Advocate for Sri B.M.IrishadAhmed, Advocate for R1; Notice to R2 to R4 dispensed withv.c.o.dt.02.08.2012)

This appeal is filed under section 38 of the KarnatakaMunicipal Corporations Act, 1976 against the judgment dated30.06.2012, passed in Election Petition No.19/2010 on the file ofVI Additional City Civil and Sessions Judge at Bangalore, allowingthe petition filed under section 33 and etc.

This appeal having been heard and reserved for judgmenton 10.08.2012, coming on for pronouncement this day, the courtdelivered the following:-

J U D G M E N T

The election of appellant as Councilor of Ward No.56 of

A.Narayanapura of Bruhat Bangalore Mahanagara Palike (for

short, ‘BBMP’) in the elections held on 28.03.2010 has been

declared as null and void by the impugned judgment dated

30.06.2012. Therefore, the appellant is before this court.

2. The learned Judge of trial court has held that

appellant does not belong to Backward Class category ‘A’,

therefore he was not qualified to contest the election from

Ward No.56, which was reserved for Backward Class

category ‘A’. The learned trial Judge has held that appellant

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belongs to “Sadari Gowda” caste which is not notified as

Backward Class category ‘A’ in the gazette notification dated

16.10.1995 (Ex.P.2) issued by the Government of Karnataka

for the purpose of reservation of seats and offices of

Mayor/Deputy Mayor of City Corporations, President/Vice-

President of Town Municipal Councils/City Municipal

Councils/Town Panchayats.

3. Before adverting to the contentions urged by parties, it

is necessary to state certain facts, which are not disputed by

either party. The BBMP Ward No.56-A.Narayanapura was

reserved for Backward Class category ‘A’ for election held on

28.03.2010. The elections were conducted under the

provisions of Karnataka Municipal Corporations Act, 1976

(for short, ‘KMC Act’). The appellant contested election by

declaring himself as a citizen belonging to ‘Sadaru’ caste

(notified as Backward Class category ‘A’) and he was the

successful candidate.

4. The election of appellant was challenged on two

grounds:-

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I. The appellant was not a resident of Bangalore.

II. The appellant belongs to “Sadari Gowda” caste and he

had migrated to Bangalore from M.Venkatapuram Village,

Lepakshi Mandal, Ananthapur District, Andhra Pradesh

State. The appellant does not belong to “Sadaru” caste.

Therefore, he was not qualified to contest elections from

Ward No.56, which was reserved for Backward Class

Category ‘A’.

5. The first ground was rejected by the trial court as it

was established that name of appellant was included in

electoral roll/voter list of Vignan Nagar, Ward No.81 of

BBMP. The learned trial Judge accepted the second ground

to declare the election of appellant as void. The finding

recorded by trial court on ground No.2 has been impugned

in this appeal.

6. I have heard Sri Ashok Haranahalli, learned senior

counsel for appellant and Sri Ravivarma Kumar, learned

senior counsel for I-respondent.

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7. The submissions of learned senior counsel for

appellant and decisions cited in support of such

submissions are stated thus:-

I. The election petition was not verified as required under

section 33(4)(c) of KMC Act. {2003 AIR SCW 5569 (in the

case of Regu Mahesh alias Regu Maheswar Rao Vs. Rajendra

Pratap Bhanj Dev & another)}.

II. The trial court had not framed proper issues {[i] AIR

2001 SC 2992 (in the case of Ananga Uday Singh Deo Vs.

Ranga Nath Mishra & others, [ii] (2001) 2 SCC 652 (in the

case of Makhan Lal Bangal Vs. Manas Bhunia and others)}.

III. The trial court has no power to decide the validity of

caste certificate {[i] MANU/AP/0446/2003 (in the case of

Durga Singh Vs. M.Lakshman Yadav & others), [ii] CDJ 2012

BHC 319 (in the case of Rajesh Bharat Latkar Adult Vs.

State of Maharashtra, Through the Department & Others,

[iii] (2011) 10 SCC 357 (in the case of Collector, Bilaspur Vs.

Ajit P.K.Jogi & Others), [iv] AIR 1969 SC 78 (in the case of

Dhulabhai etc. Vs. State of M.P. & another), [v] 2011(4)

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KCCR 3211 (in the case of S.P.Mahadevappa Vs. Smt.Suma

Vasanth & Others)}.

IV. The election petitioner (I-respondent herein) has failed

to prove that appellant does not belong to ‘Sadaru” caste and

the evidence adduced by I-respondent is hardly sufficient to

hold that appellant does not belong to ‘Sadaru” caste and he

was not qualified to contest the election. {[i] AIR 1995 SC

2284 (in the case of Gajanan Krishnaji Bapat & another Vs.

Dattaji Reghobaji Meghe and others) [ii] AIR 1968 SC 929 (in

the case of Laxman Siddappa Naik Vs. Kattimani Chandappa

Jampanna & others)}.

V. The I-respondent has not adduced evidence to prove

that documents relied upon by him, mere production, mere

marking of documents is not enough to prove the contents of

documents {[i] (2003) 8 SCC 745 (Narbada Devi Gupta Vs.

Birendra Kumar Jaiswal & another), [ii] (2010) 4 SCC 491 (in

the case of Life Insurance Corporation of India & another Vs.

Ram Pal Singh Bisen)}.

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VI. The appellant (successful candidate) can rely on

synonyms of his caste to claim reservation under Backward

Class category ‘A’ {ILR 1994 KAR 1270 (in the case of

Virupakashappa Vs.Hanumantha)}.

VII. The success of a candidate in election should not be

lightly interfered with. The success of a candidate is the

mandate of people, besides interference by court will have

serious consequences to electorate public fund and public

administration. {AIR 2000 SC 256 (in the case of Jeet

Mohinder Singh Vs. Harminder Singh Jassi)}.

VIII. The court while considering reservation issue shall

bear in mind caste status of candidate in native State and

migrated State {[i] AIR 2000 SC 525 (in the case of Union of

India & Others Vs. Dudh Nath Prasad) and [ii] (2009) 2 SCC

109 (in the case of Sau Kusum Vs. State of Maharashtra &

Others)}.

IX. The appellant though a native of M.Venkatapuram

Village, Lepakshi Mandal, Ananthapur District, Andhra

Pradesh State had migrated and settled in Bangalore about

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27 years back and in the records which have come into

existence at undisputed point of time, he is recognised as a

person belonging to “Sadaru” caste. {(2009) 2 SCC 109 (in

the case of Sau Kusum Vs. State of Maharashtra & Others)}.

X. The Committee constituted by the Karnataka State

Commission for Backward Classes in its Advice 50/2000,

has held that “Sadumata/Sadukula/Sadar/Sadu

Gowder/Sadu Gowdar/Sadara/Sadari and Sadar Gowda”

are synonyms of “Sadaru” and advised Government of

Karnataka to include “Sadumata/Sadukula/Sadar/Sadu

Gowder/Sadu Gowdar/Sadara/Sadari and Sadar Gowda”

along with “Hindu Sadru/Sadaru”, found at Sl.No.89 of

Category IIA in the list of Backward classes in G.O.No.SWD

150 BCA 94 dated 17.09.1994. The Government accepted

the advice of the Committee and included the aforestated

Synonyms along with “Hindu Sadru/Sadaru”. Therefore, I-

respondent cannot contend that “Sadari Gowda” is not

synonymous to “Hindu Sadru/Sadaru”.

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XI. The appellant has produced documents to prove not

only himself but also members of his family belong to

“Sadaru” caste.

XII. The learned trial Judge, without considering oral and

documentary evidence and ignoring settled principles of law

on the point has passed the impugned order. Therefore,

impugned order cannot be sustained.

8. The principal submissions of learned senior counsel

for I-respondent and decision cited in support of such

submissions are stated thus:-

I. The appellant has not raised ground of maintainability

of election petition due to lack of proper verification/defective

verification. The defective verification is curable. The

defective verification assumes importance if corrupt practice

is alleged. {[i] (1976) 2 SCC 440 (in the case of Balwan Singh

Vs. Prakash Chand & others; [ii] (2005) 2 SCC 188 (in the

case of Chandrakant Uttam Chodankar Vs. Dayanand Rayu

Mandrakar & Others}.

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II. The parties having understood the real controversy

between them have gone on with the trial and have adduced

oral and documentary evidence, therefore, appellant cannot

be permitted to make any grievance about issues framed by

the trial court.

III. The trial court has jurisdiction to determine caste

status of candidate and assess evidentiary value of caste

certificate in the light of other evidence let in [(2005) 2 SCC

244 (in the case of Sobha Hymavathi Devi Vs. Setti

Gangadhara Swamy & others)].

IV. The Gazette Notification issued on 16.10.1995 in

exercise of powers coferred under sub-section (1) of Section 2

of KMC Act and Notification dated 30.03.2002 issued by the

Social Welfare Department are for different purposes. The

Gazette Notification dated 16.10.1995 issued under Article

243T and Gazette Notification dated 30.03.2002 issued

under Article 15(4) and 16(4) of the Constitution operate in

two different fields. The appellant cannot take shelter under

Gazette Notification dated 30.03.2002, wherein reservation is

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made for backward classes for the purpose of education and

employment. [(2010) 7 SCC 202 (in the case of K.Krishna

Murthy (Dr.) and others Vs. Union of India & another)].

V. The I-respondent has adduced oral and documentary

evidence to establish that appellant is not an original

inhabitant of State of Karnataka. The appellant belongs to

“Sadari Gowda” caste, therefore, he cannot claim reservation

either on the ground that “Sadari Gowda” is synonymous to

“Hindu Sadru/Sadaru” or on the ground of caste certificate

(Ex.R.18) {[i] (2001) 6 SCC 571 (in the case of M.C.D. Vs.

Veena & others, [ii] (1990) 3 SCC 130 (in the case of Marri

Chandra Shekhar Rao Vs. Dean, Seth G.S.Medical College

and Others, [iii] (1994) 5 SCC 244 (in the case of Action

Committee on Issue of Caste Certificate to Scheduled Castes

and Scheduled Tribes in the State of Maharashtra & another

Vs. Union of India & another, [iv] ILR 2009 KAR 3934 (in the

case of Lolaksha Vs. The Convener (CLAT-2009) Nalsar

University of Law & others)}.

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9. The I-respondent by adducing oral and documentary

evidence has proved that appellant belongs to “Sadari

Gowda” caste which in fact has been notified as Backward

class caste by Government of Andhra Pradesh. Therefore,

contention of appellant that there is no evidence in proof of

caste of appellant cannot be accepted. The decision reported

in AIR 1968 SC 929 (in the case of Laxman Siddappa Naik

Vs. Kattimani Chandappa Jampanna & others) is not

applicable.

10. The court has no jurisdiction to include or exclude or

substitute as also to declare synonyms to be a caste or tribe.

Therefore, the contention of appellant that “Sadari Gowda” is

synonym of “Hindu Sadru/Sadaru” cannot be accepted. {[i]

(1996) 3 SCC 585 (in the case of A.Chinnappa Vs.

V.Venkatamuni & Others, [ii] (1996) 4 SCC 431 (in the case

of Prabhudev Mallikarjunaiah Vs. Ramachandra Veerappa &

another), [iii] (2001) 1 SCC 4 (in the case of State of

Maharashtra Vs. Milind & Others) and [iv] (1996) 3 SCC 576

(in the case of Mityanand Sharma and another Vs. State of

Bihar & others)}.

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11. The learned senior counsel for I-respondent submits

that impugned judgment does not call for interference.

12. In view of rival contentions urged by parties and

submissions made by learned senior counsel for parties and

bearing in mind real controversy between parties, I frame the

following points for determination:-

(1) Whether election petition is liable to be dismissed

for want of proper verification and lack of affidavit?

(2) Whether the impugned judgment is vitiated due to

improper framing of issues?

(3) Whether the trial court has jurisdiction to consider

the validity of caste certificate produced and relied

upon by appellant?

(4) Whether I-respondent (election petitioner) has

proved that appellant (successful candidate)

belongs to “Sadari Gowda” and he was not qualified

to contest the election to Ward No.56, reserved for

Backward class category ‘A’ ?

(5) Whether the impugned judgment calls for

interference?

(6) To what order?”

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My findings on the above points and reasons thereon are

as follows:-

Point No.1:

13. Before the trial court, appellant had not raised

question of maintainability of election petition either on the

ground of improprer verification or on the ground of lack of

affidavit.

14. In a decision reported in (1976) 2 SCC 440 (in the case

of Balwan Singh Vs. Prakash Chand and others), the

Supreme Court has held:-

“4. It has been argued by Mr. Bindra on behalf of

Balwan Singh, hereinafter referred to as the

appellant, that the High Court ought not to have

entertained the election petition as it was not

verified in the manner laid down in the Code of

Civil Procedure for the verification of pleadings

even though that was the clear requirement of

section 83(1)(c) of the Act. We asked the counsel

to refer us to any such objection of the appellant

in the trial court, and all that he could do was to

invite our attention to paragraph 5 of the

application dated November 27, 1974. That

paragraph however relates to the objection

regarding the defective verification of the

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affidavit accompanying the election petition,

which is a different matter. That is in fact the

subject matter of Mr. Bindra's second argument,

and we shall deal with it separately. The fact

remains that an objection regarding the alleged

defective verification of the election petition was

not taken in the High Court, and it was not a

point at issue there. There is therefore no

justification for allowing it to be raised here. It is

in fact significant that even though an objection

was taken on November 27, 1974 in regard to

the verification of the affidavit, no such objection

was taken about the verification of the main

election petition. It was vaguely stated that

verification of the affidavit and verification of the

Schedule (i.e. Schedule III) were “at variance”,

but that was a different matter. In so far as the

verification of the affidavit is concerned, it would

be sufficient to say that that part of it which

related to the commission of the corrupt practice

which was the subject matter of issue No. 2 was

concerned (Schedule III) it was verified in

accordance with the prescribed form (No.25 of

the Conduct of Election Rules, 1961) as true to

the election petitioner's information received

from the persons mentioned in it. It was

therefore quite in order.

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5. It may be mentioned that although the High

Court examined the objections of the appellant

on two occasions, no objection was taken or

pressed for its consideration in regard to the

verification of the main election petition, its

schedules or the affidavits. An objection was

raised in the appellant's application dated

November 27, 1974 that the election petition

may not be tried because of defective affidavit,

but it was rejected by the High Court's order of

the same date on the grounds that it was a

belated objection, and the allegation of corrupt

practice could not be deleted merely because of

the defective form of the affidavit. No issue was

joined in respect of any such objection and it

cannot be allowed to be raised for the first time

in this appeal.”

In the case on hand, election petitioner (I-respondent)

had not alleged corrupt practices, as defined under section

39 of KMC Act, which reads thus:-

39. Corrupt practices.- The following

shall be deemed to be corrupt practices for the

purposes of this Act, namely:-

(1) ‘bribery’ as defined in clause (1) of

Section 123 of the Representation of the Peoples

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Act, 1951 (Central Act 43 of 1951) for the time

being in force;

(2) ‘under influence’ as defined in clause

(2) of the said section for the time being in force;

(3) the appeal by a candidate or his agent

or by any other person with the consent of a

candidate or his election agent to vote or refrain

from voting for any person on the ground of his

religion, race, caste, community or language or

the use of, or appeal to religious symbols or the

use of or appeal to, national symbols, such as

the national flag or the national emblem, for the

furtherance of the prospects of the election of

that candidate or for prejudicially affecting the

election of any candidate;

(4) the promotion of, or attempt to

promote, feelings of enmity or hatred between

different classes of the citizens of India on

grounds of religion, race, caste, community or

language, by a candidate or his agent or any

other person with the consent of a candidate or

his election agent for the furtherance of the

prospects of the election of that candidate or for

prejudicially affecting the election of any

candidate;

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(5) the publication by a candidate or his

agent or by any other person with the consent of

a candidate or his election agent of any

statement of fact which is false, and which he

either believes to be false or does not believe to

be true, in relation to the personal character or

conduct of any candidate, or in relation to the

candidature or withdrawal of any candidate,

being a statement reasonably calculated to

prejudice the prospects of that candidate's

election;

(6) the hiring or procuring whether on

payment or otherwise of any vehicle by a

candidate or his agent or by any other person

with the consent of a candidate or his election

agent for the conveyance of any voter (other than

the candidate himself and the members of his

family or his agent) to or from any polling station

provided in accordance with the rules made

under this Act:

Provided that the hiring of a vehicle by an

elector or by several electors at their joint cost

for the purpose of conveying him or them to and

from any such polling station shall not be

deemed to be a corrupt practice under this

clause if the vehicle so hired is a vehicle not

propelled by mechanical power:

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Provided further that the use of any public

transport vehicle or any railway carriage by any

voter at his own cost for the purpose of going to

or coming from any such polling station shall

not be deemed to be a corrupt practice under

this clause.”

15. In a decision reported in 2003 AIR SCW 5569 (in the

case of Regu Mahesh alias Regu Maheswar Rao Vs. Rajendra

Pratap Bhanj Dev and another), the Supreme Court has

held:-

“8. What is “corrupt practice” is set out in S.123.

In terms of S.83(b) wherever corrupt practice is

alleged, full particulars of such practice alleged

including a full statement as possible of names

of the parties alleged to have committed corrupt

practice and the date and place of commission of

such practice has to be indicated. Though

allegation of fraud etc. in obtaining false caste

certificate have serious implications, under the

Act and particularly as the language of S.123(3)

specifies and enumerates they do not per se

constitute corrupt practice. The fact that a

candidate obtains a certificate that he belonged

to and is a member of the Scheduled

Caste/Tribe to contest as one belonging to such

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caste/Tribe, essential and necessary for

contesting as a candidate in a Reserved

Constituency, at any rate, cannot amount to an

appeal to vote or refrain from voting on ground

of his caste/Tribe for the reason that what was

obligated by the statute upon any one to be

entitled to contest in such a reserved

constituency cannot become condemnable as

“corrupt practice”. To attract the vice of the said

provisions as amounting to “corrupt practice”,

independent appeal or canvassing for votes by

the candidate or his agent or by another person

with the consent of the candidate or the election

agent for the furtherance of the prospects of the

election of that candidate or for prejudicially

affecting the election of any candidate is an

essential ingredient. Therefore, the provision

requiring an affidavit in the prescribed form

(Form-94) may not strictly have any application.

But that is not the omega. As S.83(c) itself

indicates, the petition shall be signed by the

petitioner and verified in the manner laid down

in CPC for verification of facts. Order VI, R.15

deals with verification of pleadings and reads as

follows:

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“Verification of pleadings.- (1) Save as

otherwise provided by any law for the time being

in force, every pleading shall be verified at the

foot by the party or by one of the parties

pleading or by some other person proved to the

satisfaction of the court to be acquainted with

the facts of the case.

(2) The person verifying shall specify, by

reference to the numbered paragraphs of the

pleadings, what he verifies of his own knowledge

and what he verifies upon information received

and believed to be true.

(3) The verification shall be signed by the

person making it and shall state the date on

which and the place at which it was signed.”

9. As sub-rule (2) of R. 15 prescribes that a

person making a verification is required to

specify by reference to the numbers of

paragraphs of the pleadings what he believes on

his own knowledge, and what he reveals upon

information received and believed to be true.

This admittedly has not been done in the

present case.

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10. In F.A.Sapa and Others. v. Singora and

Others. (1991 (3) SCC 375) a three-Judge Bench

of this Court specifically dealt with an issue

concerning defects in the verification of an

election petition as well as of defects in the

affidavit accompanying an election petition

wherein allegations of corrupt practice are made.

After considering the provisions of Ss. 83 and 86

of the Act, as also the requirements of Form 25

prescribed by R. 94-A of the Rules and relevant

provisions of the CPC, it was held: (SCC pp.403-

04, para 28) :

“28. From the text of the relevant

provisions of the R.P. Act, Rule 94-A and Form

25 as well as O. 6 Rule 15 and O. 19 Rule 3 of

the Code and the resume of the case-law

discussed above it clearly emerges (i) a defect in

the verification, if any, can be cured (ii) it is not

essential that the verification clause at the foot

of the petition or the affidavit accompanying the

same should disclose the grounds or sources of

information in regard to the averments or

allegations which are based on information

believed to be true (iii) if the respondent desires

better particulars in regard to such averments or

allegations, he may call for the same in which

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case the petitioner may be required to supply

the same and (iv) the defect in the affidavit in the

prescribed Form 25 can be cured...”

11. This judgment was followed by a Division

Bench of this Court in H.D. Revanna v. G.

Puttaswamy Gowda (1999 (2) SCC 217) and by a

three- Judge Bench in Dr. Vijay Laxmi Sadho v.

Jagdish (2001 (2) SCC 247).

12. It is, therefore, a settled position in law that

defect in verification or an affidavit is curable.

But further question is what happens when the

defect is not cured. There is gulf of difference

between a curable defect and a defect continuing

in the verification affidavit without any effort

being made to cure the defect.”

In the case on hand, had the appellant raised this

ground before the trial court there would have been

opportunity for I-respondent (election petitioner) to cure the

defect. Even otherwise, appellant has not established the

defective verification or defective affidavit had any bearing on

proceedings before court below. The appellant had not raised

the ground of maintainability due to improper verification

before trial court. Therefore, he cannot be permitted to raise

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this ground before appellate court. In view of this discussion,

I answer point No.1 in negative.

Point No.2:-

16. The learned trial Judge has framed following point for

determination:-

“Whether the petition filed under section

33 of the Karnataka Municipal Corporation Act,

1976, deserves to be allowed?”

17. Section 36 of KMC Act, which provides for procedure

to be followed by the court reads thus:-

“36. Procedure to be followed by the

Court- The procedure provided in the Code of

Civil Procedure, 1908, in regard to suits shall be

followed by the Court as far asit can be made

applicable, in the trial and disposal of an

election petition under this Act.”

18. The election petitioner (I-respondent herein) and

appellant (I-respondent before trial court) were aware of real

controversy between them. The appellant was aware that his

election was sought to be declared void on the ground that

he was not qualified to contest the election for Ward No.56,

reserved for Backward Classes Category ‘A’. Both parties

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have led evidence. Therefore, failure of the trial court to

frame specific point for determination had not caused

prejudice to appellant and it has not affected the decision of

election petition on merits. Therefore, I answer point No.2 in

negative.

Point No.3:-

19. The appellant has produced and relied upon caste

certificate marked as Ex.R.14. This certificate was issued by

the Tahsildar (examined as RW2) on 02.12.2009. The

relevant portion of caste certificate in vernacular language

translated to English language reads thus:-

“Sri S.Shiva Shankar Prasad (appellant

herein) belongs to “Hindu Sadaru-Sadaru-

Sadumata-Sadakula-Sadar-Sadugowda Sadugowdar-

Sadara-Sadari-Sadara Gowda” caste classified

under Category II(A) and his annual income is

Rs.1,00,000/-.”

20. The caste certificate issued to the brother of appellant

namely S.G.Nagaraja by the Tahsildar, Bangalore East Taluk

is marked as Ex.R.15. The contents of Ex.R.15 as they relate

to identification of castes are identical to the contents of

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Ex.R.14. These caste certificates were issued, pursuant to

gazette notification dated 30.03.2002 marked as Ex.R.18.

The notification marked as Ex.R.18 was issued by the

Government of Karnataka, for the purpose of reservation for

entry to education and appointment in State services.

21. It is true, under Rule 2(aa)of KMC Rules, 1977, ‘Caste

Certificate’ is defined as:-

“2(aa). Caste Certificate” means a Caste

Certificate or Income and Caste Certificate

issued by the Tahsildar of a Revenue Taluk

under the Karnatka Scheduled Castes,

Scheduled Tribes and Other Backward Classes

(Reservation of Appointment etc.) Act, 1990;]

Rule 2(aa) provides for issuance of caste certificate for

the purpose of education, employment and also for election.

The reasons are not too far to seek for this type of procedure.

22. On 16.10.1995, the Housing and Urban Development

Department, Government of Karnataka, has issued gazette

notification by exercising power under sub-section (1) of

section 2 of the KMC Act, by classifying and notifying classes

27

of citizens specified in the Annexure thereto as Backward

Classes for the purpose of reservation of seats and offices of

Chair persons in City Corporations, City Municipal Councils,

Town Municipal Councils and Town Panchayats under

Category ‘A’ and Category ‘B’. This notification is marked as

Ex.P.2. In respect of citizens belonging to Category ‘A’, there

is no economic criterion (concept of cremy layor), however

persons classified under Category ‘B’, their right to claim

reservation is subject to following conditions:-

(i) He/she or either of his/her

parents/guardian/his or her spouses is a Class I

or class II officer in the service of the

Government or holds an equivalent post in

public sector undertaking or an employee under

a private employer and draws a salary which is

not less than of a Class II Officer (Initial stage of

the pay scale of Rs.2050-3950);

(ii) He/she or either of his/her

parents/guardian/his or her spouse is an

Income Tax Assessee/Wealth Tax Assessee;

(iii) He/she or either of his/her parents/guardian/

his or her spouse is assessed to Sales Tax;

28

(iv) He/she or either of his/her parents/guardian/his or

her spouse or both together owns more than 8

hectares of rainfed or dry land or its equivalent.”

23. In the notification dated 30.03.2002, issued by Social

Welfare Department, Government of Karnataka, providing

reservation for education, the classification Scheduled

Castes, Scheduled Tribes and backward classes reads thus:-

Category – I : 4%

Category – II (A) : 15%

Category – II (B) : 4%

Category – III(A) : 4%

Category – III(B) : 5%

Scheduled Castes : 15%

Scheduled Tribes : 3%”

A copy of this notification is marked as Ex.R.18.

24. The concept of cremy layer is not applicable to

candidates of Scheduled Castes, Scheduled Tribes and

Category ‘A’. However, the concept of cremy layer is

applicable to candidates belonging to category II(A), II(B),

III(A) & III(B). Therefore, candidates claiming reservation

both for the purpose of education and election unless they

29

are exempted in terms of reservation notification will have to

establish that they do not come under cremy layer in terms

of said notification.

On a combined reading of notification marked as

Ex.P2 and Ex.R.18, it is clear that notification issued for the

purpose of reservation for education and election are distinct

and considerations for reservation for education and election

are different.

25. In the circumstances, the Tahsildar (RW2), who had

issued caste certificates as per Ex.R.14 & Ex.R.15 should

have specifically stated the caste of appellant and his

brother. The caste certificates are omnibus.

26. The next caste certificate dated 13.01.2010, relied

upon by appellant is marked as Ex.P.22. It was issued by the

Tahsildar, Bangalore East Taluk, on the information

furnished by appellant. The Tahsildar had not made an

inquiry. This is obvious from the contents of caste certificate

(Ex.P.22). The I-part of document contains information

furnished by appllant and II-part of document is captioned

30

as “Caste Certificate” issued by the Tahsildar. The appellant

had enclosed his affidavit dated 12.01.2010 to obtain caste

certificate as per Ex.P.22. It is noticed from the contents of

Ex.P.22 that appellant has not only affixed his signature as

the candidate, he has also affixed his signature as the father

of candidate. RW2 has admitted this fact.

27. RW2-Shivakumar C.L., the then Tahsildar of

Bangalore East Taluk, has deposed that public had

submitted a complaint alleging that apellant is attempting to

obtain false caste certificate. The complaint dated

25.01.2010 is marked as Ex.P.24, pursuant to Ex.P.24

concerned Revenue Inspector held an inquiry and submitted

a report as per Ex.P.26. The report submitted as per Ex.P.26

is not based on independent inquiry, on the other hand, it is

based on school records of the younger brother of appellant.

This report was prepared on 28.01.2010 and it was received

in the office of Tahsildar on 16.02.2010.

28. At this juncture, it is relevant to state that caste

certificate as per Ex.P.22 was issued on 13.01.2010.

31

Therefore, it can safely be held that caste certificates marked

as Ex.R.14 & Ex.R.15 were issued in violation of the

provisions of Section 4-A of the Karnataka Scheduled Castes,

Scheduled Tribes and Other Backward Classes (Reservation

of Appointments, etc.) Act, 1990, which read thus:-

1[4-A. Issue of Caste Certificate and Income

and Caste Certificate.- (1) Any candidate or his

parent or guardian belonging to the Scheduled

Castes or the Scheduled Tribes may, in order to

claim benefit of reservation under Section 4,

either for appointment to any service or post or

for admission to a course of study in a

University or any educational institution make

an application to the Tahsildar in such form and

in such manner as may be prescribed for issue

of a Caste Certificate.

(2) Any candidate or his parent or

guardian belonging to Other Backward Classes

may, in order to claim benefit of reservation

under Section 4, either for appointment to any

service or post or for admission to a course of

study in University or any Educational

Institution, make an application to the Tahsildar

in such form and in such manner as may be

32

prescribed for issue of an Income and Caste

Certificate.

(3) The Tahsildar may on receipt of an

application under sub-section (1) or (2), and

after holding such enquiry as he deems fit and

satisfying himself regarding the genuineness of

the claim made by applicant pass an order

issuing a caste certificate or, as the case may be,

an income and caste certificate in such form as

may be prescribed, or rejecting the application.

(4) The Tahsildar shall follow such

procedure as may be prescribed before passing

the order under sub-section (3).

(5) The burden of proving that the

candidate or his parent or guardian belongs to

Scheduled Castes, Scheduled Tribes or Other

Backward Classes shall be on the applicant.”

29. The provisions of Secton 4-A of the Karnataka

Scheduled Castes, Scheduled Tribes and Other Backward

Classes (Reservation of Appointments, etc.) Act, 1990 do not

exclude the jurisdiction of civil court.

33

30. In a decision reported in AIR 1969 SC 78 (in the case of

Dhulabhai etc., Vs. State of Madhya Pradesh and another),

the Supreme Court has held:-

“(1) Where the statute gives a finality to

the orders of the special tribunals the civil

courts’ jurisdiction must be held to be excluded

if there is adequate remedy to do what the civil

courts would normally do in a suit. Such

provision, however, does not exclude those cases

where the provisions of the particular Act have

not been complied with or the statutory tribunal

has not acted in conformity with the

fundamental principles of judicial procedure.

(2) Where there is an express bar of the

jurisdiction of the court, an examination of the

scheme of the particular Act to find the

adequacy or the sufficiency of the remedies

provided may be relevant but is not decisive to

sustain the jurisdiction of the civil court. Where

there is no express exclusion the examination of

the remedies and the scheme of the particular

Act to find out the intendment becomes

necessary and the result of the inquiry may be

decisive. In the latter case, it is necessary to see

if the statute creates a special right or a liability

34

and provides for the determination of the right

or liability and further lays down that all

questions about the said right and liability shall

be determined by the tribunals so constituted,

and whether remedies normally associated with

actions in civil courts are prescribed by the said

statute or not.

(3) Challenge to the provisions of the

particular Act as ultra vires cannot be brought

before Tribunals constituted under that Act.

Even the High Court cannot go into that

question on a revision or reference from the

decision of the Tribunals.

(4) When a provision is already declared

unconstitutional or the constitutionality of any

provision is to be challenged, a suit is open. A

writ of certiorari may include a direction for

refund if the claim is clearly within the time

prescribed by the Limitation Act but it is not a

compulsory remedy to replace a suit.

(5) Where the particular Act contains no

machinery for refund of tax collected in excess of

constitutional limits or illegally collected, a suit

lies.

35

(6) Questions of the correctness of the

assessment apart from its constitutionality are

for the decision of the authorities and a civil

suit, does not lie if the orders of the authorities

are declared to be final or there is an express

prohibition in the particular Act. In either case,

the scheme of the particular Act must be

examined because it is a relevant enquiry.

(7) An exclusion of jurisdiction of the Civil

Court is not readily to be inferred unless the

conditions above set down apply.”

31. In a decision reported in (2005) 2 SCC 244 (in the case

of Sobha Hymavathi Devi Vs. Setti Gangadhara Swamy and

Others), the Supreme Court has held:-

“11. What remains is the argument based

on the certificates allegedly issued under the

Andhra Pradesh (Scheduled Castes, Scheduled

Tribes and Backward Classes) Regulation of

Issue of Community Certificate Act, 1993. The

High Court has not accepted the certificates as

binding for the reason that the evidence showed

that the certificates were issued based on the

influence exercised by the appellant as a

member of the Legislative Assembly, one after

another, immediately on an application being

36

made and without any due or proper enquiry.

We are impressed by the reasons given by the

High Court for not acting on these certificates.

That apart, a reference to Section 3 of the Act

would indicate that a certificate thereunder,

insofar as it relates to elections, is confined in its

validity to elections to local authorities and

cooperative institutions. It does not embrace an

election to the Legislative Assembly or to the

Parliament. Therefore, in any view of the matter,

it cannot be said that the High Court, exercising

jurisdiction under the Representation of the

People Act in an election petition is precluded

from going into the question of status of a

candidate or proceeding to make an independent

inquiry into that question in spite of the

production of a certificate under the Act. At best,

such a certificate could be used in evidence and

its evidentiary value will have to be assessed in

the light of the other evidence let in, in an

election petition. Therefore, nothing turns on the

factum of a certificate being issued by the

authority concerned under the Act of 1993. We

are also satisfied as the High Court was

satisfied, that no proper inquiry preceded the

issuance of such a certificate and such a

certificate was issued merely on the say-so of the

37

appellant. We have, therefore, no hesitation in

overruling this argument raised on behalf of the

appellant.”

32. In a decision reported in MANU/AP/0446/2003 (in the

case of Durga Singh Vs. M.Lakshman Yadav and others),

relied upon by the learned senior counsel for appellant, the

High Court of Andhra Pradesh has held:-

“25. In this context, it needs to be

observed that the A.P.State Legislature has

enacted the State Act of 16 of 1993 to regulate

the issue of Community Certificate relating to

persons belonging to Scheduled Castes,

Scheduled Tribes and Backward Classes and

matters connected thereof or incidental thereto.

Section 5 of the State Act provides for

cancellation of the certificates. The proceedings

for cancellation can be initiated either suo motu

by the competent authority or on a written

application by any person. Section 6 places the

burden on the person claiming the social status.

In the event of the refusal to issue a Caste

Certificate under Section 5 of the State Act, an

appeal is provided under Section 7. A further

revision is provided to the Government under

Section 8. The jurisdiction of the Civil Court is

38

barred under Section 17. Section 19 confers

overriding effect on the Act in the event of an

inconsistency with any other law for the time

being in force. Under Section 21, the Certificate

issued by any competent authority before the

commencement of the Act, is conferred

legitimacy, unless it is cancelled under the

provisions of the State Act.”

(underlining supplied by me)

33. The decisions reported in CDJ 2012 BHC 319 (in the

case of Rajesh Bharat Latkar Adult Vs. State of

Maharashtra, Through the Department & Others) and (2011)

10 SCC 357 (in the case of Collector, Bilaspur Vs. Ajit

P.K.Jogi & Others) relied upon by the learned senior counsel

for appellant have no bearing on the issue involved in the

instant case. Therefore, the trial court has jurisdiction to

consider the validity of caste certificate, in the light of other

evidence adduced by parties, point No.3 is answered in

affirmative.

34. The next point for determination is:-

“Whether election petitioner (I-respondent

herein) has proved that appellant (successful

39

candidate) does not belong to “Hindu

Sadru/Sadaru” which are classified as

Backward classes category ‘A’ in terms of gazette

notification dated 16.10.1995, marked as

Ex.P.2?”

35. In this notification issued for reservation of seats and

offices of Chairpersons in City Corporations, City Municipal

Concils, Town Municipal Councils and Town Panchayats, the

entry relevant for the purpose of instant case is marked as

Ex.P.2(a) and it is found at Sl.No.177, the same reads thus:-

“Hindu Sadru/Sadaru”

36. The learned senior counsel for appellant, relying on a

decision of the Supreme Court, reported in AIR 1968 SC 929

(in the case of Laxman Siddappa Naik Vs. Kattimani

Chandappa Jampanna & others) would submit that burden

of proof lies on election petitioner (I-respondent herein) to

prove that appellant does not belong to “Hindu

Sadru/Sadaru and that he is “Sadari Gowda”.

37. The learned senior counsel for appellant submits that

election petitioner (I-respondent herein) apart from marking

some documents has not adduced evidence to prove

40

characteristics such as customs of marriages, births, deaths,

dress, occupation and like which distinguish a “Sadari

Gowda” from “Hindu Sadru/Sadaru”.

38. In the decision reported in AIR 1968 SC 929 (in the

case of Laxman Siddappa Naik Vs. Kattimani Chandappa

Jampanna & others), the Supreme Court has held that

election petitioner could have proved that successful

candidate was a ‘Bedar” by caste.

The controversy in the aforestated case is whether

“Nayaka” caste mentioned in the order and “Bedar” caste

(not found in order) in the State of Karnataka are one and

the same. The successful candidate had contended “Nayaks”

are also called as “Bedars”. Therefore, the Supreme Court

has held that election petitioner should have led evidence to

prove characteristics such as customs of marriages, births,

deaths, worship, occupaion and the like which distinguish a

“Bedar” from “Nayaka”.

In the case on hand, election petitioner (I-respondent

herein) has produced attested school admission register

41

extract (Ex.P.15), attested copy of application for admission

to High School (Ex.P.20) and admission extracts of appellant

of V.V.Puram College of Arts and Commerce at Bangalore

(Ex.P.20 and Ex.P.21) to prove that appellant is a native of

Andhra Pradesh and he belongs to “Sadri Gowda” caste,

therefore, appellant cannot claim that he belongs to “Hindu

Sadru/Sadaru” caste to claim benefit of reservation.

39. In the documents marked as Ex.P.15, Ex.P.16 and

Ex.P.20, which relate to study particulars of appellant in

Andhra Pradesh, his caste is shown as “Sadari Gowda” and

his name is shown as “Sadhari Gowda Sivasankara Prasad”.

However, in Ex.P.20 and Ex.P.21, which relate to study

particulars of appellant in V.V.Puram College at Bangalore,

his caste is shown as “Sadara” and his name is shown as

“S.Shivashankar Prasad”.

40. The learned counsel for appellant submits that these

documents cannot be read as per se evidence, more

particularly when the authors/custodians of documents

were not examined.

42

41. This submission of learned senior counsel for

appellant has to be considered with reference to statement of

objections filed by appellant before the trial court and oral

evidence adduced by appellant.

42. In the objections statement filed by appellant before

the trial court, he has stated:-

“The first respondent is a Member of

Sadaru community which is called with different

nomenclatures and suffixes such as Sadaru,

Hindu Sadaru, Sadu Matha, Sad Kula, Sadar,

Sadu Gowda, Sadu Gowder, Sadara, Sadari,

Sadara Gowda. The Government of Karnataka

has issued Notification notifying different castes

under different categories based on the report of

the Karnataka State Commission for backward

classes. The Government has issued Order

No.SWD.225.BCA.2000 dated 30.03.2002 showing

different names with which the Sadar

Community is known and recognised it as

Category-II(A) at Serial No.89. A photo true copy

of the Notification dated 30.03.2002 is herewith

produced as per ANNEXURE-R-1.

In the report submitted by the said

Revenue Inspector it is clearly mentioned that

43

the first respondent is basically from Andhra

Pradesh and that he is settled in Bangalore for

over 25 Years. The same is produced by the

petitioner as per ANNEXURE-R-2. When the

matter stood thus it is highly unfortunate that

the petitioner an unsuccessful candidate has

made most uncharitable allegation stating that

the petitioner has suppressed his place of birth.

Even if the petitioner was born in

M.Venkatapura, which is one kilometer away

from the border of Karnataka, it would not

change the caste of the first respondent nor it

takes away the constitutional and statutory

rights conferred on his community i.e., Sadaru.

The pleadings regarding the elementary

education, prosecution of studies in the High

School as shown in Para-6 is not in dispute. If

the school authorities have mentioned a suffix

with the case of the first respondent showing his

caste as SADRI GOWDA it would not make a

Sadaru person as a Vokkaliga Gowda or

Lingayath Gouda.”

43. The I-respondent (election petitioner) has produced

Study Certificate marked as Ex.P.14 issued by

44

M.P.Elementary School in M.Venkatapuram, Lepakshi

Mandal, Ananthapur District, Andhra Pradesh State.

In this study cerificate, his caste is shown as “Sadari

Gowda”, though study certificate does not provide any

column to indicate the caste of student.

44. The next document is the Form of Caste Certificate of

the father of appellant, issued by the Tahsildar of Lepakshi

Mandal, Ananthpur District, Andhra Pradesh State. This

document is marked as Ex.R.2.

In this document, the caste of father of appellant is

shown as “Sadari” – Backward Class. This document does

not bear the date of issue. In this document, there is

reference to G.O.Ms.No.1973 Education dated 23.09.1970 as

amended from time (As amended by the Scheduled

Caste/Scheduled Tribes lists (Modification) Order 1956, the

Scheduled Castes and Scheduled Tribes Order (Amendment

Act, 1976).

45

45. At this juncture, it is relevant to refer to Ex.R.13, a

notification of socially and educationally backward classes in

the State of Andhra Pradesh.

At Sl.No.35 of Notification (Ex.R.13), entry relevant for

the instant case reads thus:-

35. Inclusion of Caste

Sadara / Sadaru (Only

Ananthapur District)

G.O.Ms.No.11, BCW(C2) Dept, dated:09.04.2008

46. Therefore, this undated Form of Caste Certificate of

the father of appellant marked as Ex.R.2, does not bear true

testimony of his caste or backwardness of caste. Similar is

the fate of caste certificate of Prabhavathamma W/o.

K.Aswathappa.

47. The documents marked as Ex.R.5 to Ex.R.9 are the

true copies of Transfer Certificates of daughters of appellant

namely Kumari P.Poornima and Kumari P.Pooja Prasad. In

these documents, the caste of Kumari P.Poornima and

Kumari P.Pooja Prasad is shown as “Sadara”.

46

48. The law is fairly well settled that caste status of a

descendant can be determined by caste status of his

ascendent, however the caste status of ascendent cannot be

determined by caste status of a descendent. The appellant

had furnished this information under misconception that

“Sadari Gowda” caste is synonymous to “Sadaru” caste.

The appellant has deposed that he was born in

M.Venkatapuram Village, Lepakshi Mandal, Ananthapur

District, Andhra Pradesh State and studied up to

intermediate in his native Taluk of Andhra Pradesh.

49. The learned senior counsel for appellant has relied on

Ex.R.10 to contend, in the year 1981 (on 21.07.1981) when

the appellant was admitted to II year B.A. in V.V.Puram

College of Arts and Commerce at Bangalore, his caste has

been recorded as “Sadara”. The learned senior counsel for

appellant would submit that this document cannot be

disbelieved as this document has come into existence at

undisputed point of time. The learned senior counsel for

47

appellant would submit that the learned trial Judge should

not have ignored this document.

50. In order to appreciate this submission, it is necessary

to appreciate evidence of appellant. During cross-

examination, appellant has admitted when he came to

Bangalore and joined V.V.Puram College for B.A.graduation,

he had given his permanent address as “M.Venkatapuram,

Taluk: Hindupur, District: Ananthpur, Andhra Pradesh State

and his residential address as “Hindu Sadara vidyabhivruddi

Sangh” West of Chord Road, Bangalore. Therefore,

information furnished by appellant when he was admitted to

V.V.Puram College does not reflect the truth.

51. The appellant has relied on notification dated 30.03.2002

(Ex.R.18) to contend, that in the aforestated notification at entry

No.89,“HinduSadaru:Sadaru:Sadumatha:Sadakula:Sadar:Sadu

gowda:Sadugowdar:Sadara:Sadari:Sadaragowda” are shown as

equivalents/synonyms and they are included under category “II(A)

of Backward Classes.

48

52. In a decision reported in (2010) 7 SCC 202 (in the case

of K.Krishna Murthy (Dr.) and Others Vs. Union of India and

Another), the Supreme Court has held:-

“51. Before addressing the contentious issues, it

is necessary to examine the overarching

considerations behind the provisions for

reservations in elected local bodies. At the

outset, we are in agreement with Shri Rajeev

Dhavan's suggestion that the principles that

have been evolved for conferring the reservation

benefits contemplated by Articles 15(4) and 16(4)

cannot be mechanically applied in the context of

reservations enabled by Article 243-D and

243-T. In this respect, we endorse the

proposition that Article 243-D and 243-T form a

distinct and independent constitutional basis for

reservations in local self-government

institutions, the nature and purpose of which is

different from the reservation policies designed

to improve access to higher education and

public employment, as contemplated under

Article 15(4) and 16(4) respectively.

82. In view of the above, our conclusions

are:-

49

(i) The nature and purpose of reservations

in the context of local self-government is

considerably different from that of higher

education and public employment. In this sense,

Articles 243-D and Article 243-T form a distinct

and independent constitutional basis for

affirmative action and the principles that have

been evolved in relation to the reservation

policies enabled by Articles 15(4) and 16(4)

cannot be readily applied in the context of local

self-government. Even when made, they need

not be for a period corresponding to the period of

reservation for the purposes of Articles 15(4) and

16(4), but can be much shorter.

(ii) Article 243-D(6) and Article 243-T(6)

are constitutionally valid since they are in the

nature of provisions which merely enable State

Legislatures to reserve seats and chairperson

posts in favour of backward classes. Concerns

about disproportionate reservations should be

raised by way of specific challenges against the

State Legislations.

(iii) We are not in a position to examine

the claims about overbreadth in the quantum of

reservations provided for OBCs under the

impugned State Legislations since there is no

50

contemporaneous empirical data. The onus is on

the executive to conduct a rigorous investigation

into the patterns of backwardness that act as

barriers to political participation which are

indeed quite different from the patterns of

disadvantages in the matter of access to

education and employment. As we have

considered and decided only the constitutional

validity of Articles 243-D(6) and 243-T(6), it will

be open to the petitioners or any aggrieved party

to challenge any State legislation enacted in

pursuance of the said constitutional provisions

before the High Court. We are of the view that

the identification of “backward classes” under

Article 243-D(6) and Article 243-T(6) should be

distinct from the identification of SEBCs for the

purpose of Article 15(4) and that of backward

classes for the purpose of Article 16(4).

(iv) The upper ceiling of 50% vertical

reservations in favour of SCs/STs/OBCs should

not be breached in the context of local self-

government. Exceptions can only be made in

order to safeguard the interests of Scheduled

Tribes in the matter of their representation in

panchayats located in the Scheduled Areas.

51

(v) The reservation of chairperson posts in

the manner contemplated by Article 243-D(4)

and 243-T(4) is constitutionally valid. These

chairperson posts cannot be equated with

solitary posts in the context of public

employment.”

Therefore, appellant cannot take shelter under the

notification (Ex.R.18) issued for the purpose of reservation

for education and employment.

53. The learned senior counsel for appellant, relying on

the judgment reported in ILR 1994 KAR 1270 (in the case of

Virupakashappa Vs. Hanumantha) would submit that

“Sadaru” and “Sadari Gowda” are synonymous, therefore,

caste “Sadaru or Sadari Gowda” can be treated as Backward

Classes Category ‘A’.

In this decision, the Government of Karnataka had

issued an order on 27.03.1980, showing list of Scheduled

Caste referred to at Sl.No.23 as “Bhovi” and equivalent words

or synonyms as “Od, Odde, Vaddar, Waddar and Woddar”.

However, in the Government Order itself it is made clear that

52

this list was not intended and shall not be treated as an

alteration or amendment of the Schedule to the Presidential

Order, specifying Scheduled Castes and Scheduled Tribes in

relation to State of Karnataka.

In the case on hand, the gazette notification dated

16.10.1995 (Ex.P.2) issued by the Government of Karnataka

for the purpose of reservation of seats and offices of

Mayor/Deputy Mayor of City Corporations, President/Vice-

President of Town Municipal Councils/City Municipal

Councils/Town Panchayats, there are no synonyms or

equivalents to “Hindu Sadru/Sadaru” notified at entry

No.177.

54. The learned senior counsel for I-respondent has relied

on a decision reported in (2001) 1 SCC 4 (in the case of State

of Maharashtra Vs. Milind and Others), to contend that it is

not open to State Governments or courts or tribunals or any

other authority to modify, amend or alter the list of

Scheduled Tribes specified in the notification issued under

clause(1) of Articles 342.

53

In the decision reported in (2001) 1 SCC 4 (in the case

of State of Maharashtra Vs. Milind and Others), the Supreme

Court has held:-

“36. In the light of what is stated above, the

following positions emerge:-

1. It is not at all permissible to hold any

inquiry 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

entry concerned in the Constitution (Scheduled

Tribes) Order, 1950.

2. The Scheduled Tribes Order must be

read as it is. 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.

3. A notification issued under Clause (1) of

Article 342, specifying Scheduled Tribes, can be

amended only by law to be made by Parliament.

In other words, any tribe or tribal community or

part of or group within any tribe can be included

or excluded from the list of Scheduled Tribes

54

issued under clause (1) of Article 342 only the

Parliament by law and by no other authority.

4. It is not open to State Governments or

courts or tribunals or any other authority to

modify, amend or alter the list of Scheduled

Tribes specified in the notification issued under

clause (1) of Article 342.

5. Decisions of the Division Benches of this Court in

Bhaiya Ram Munda v. Anirudh Patar1 and Dina v.

Narain Singh6, did not lay down law correctly in

stating that the inquiry was permissible and the

evidence was admissible within the limitations

indicated for the purpose of showing what an entry

in the Presidential Order was intended to be. As

stated in position (1) above no inquiry at all is

permissible and no evidence can be let in, in the

matter.”

55. The learned senior counsel for appellant, relying on a

decision reported in (2009) 15 SCC 458 (in the case of

Subhash Chandra and Another Vs. Delhi Subordinate

Services Selection Board and Others and connected matters)

would submit that for identificaiton of backward classes, it is

necessary to undertake a study in a particular State as to

55

whether migrants are required to be treated as backward

classes. The learned senior counsel for appellant would

submit that appellant having migrated and settled in

Bangalore about three decades back can claim the status of

“Sadaru” caste when there is nothing to distinguish between

“Sadari” caste in Andhra Pradesh and “Sadaru” caste in

Karnataka.

56. The learned senior counsel for I-respondent, relying on

a decision reported in (2001) 6 SCC 571 (in the case of M.C.D.

Vs. Veena and Others) would submit that classification of

Backward caste in a given State depends upon nature and

extent of disadvantages and social hardships suffered by the

caste or group in that State, however that may not be so in

the State to which a person migrates.

57. The learned senior counsel for I-respondent would

further submit that a migrant cannot claim caste status vis-

à-vis backwardness even if there is a synonymous caste in

the migrated State.

56

58. In the decision reported in (2001) 6 SCC 571 (in the

case of M.C.D. Vs. Veena and Others), the Supreme Court

has held:-

“6. Castes or groups are specified in

relation to a given State or Union Territory,

which obviously means that such caste would

include caste belonging to an OBC group in

relation to that State or Union Territory for

which it is specified. The matters that are to be

taken into consideration for specifying a

particular caste in a particular group belonging

to OBCs would depend on the nature and extent

of disadvantages and social hardships suffered

by that caste or group in that State. However, it

may not be so in another State to which a

person belonging thereto goes by migration. It

may also be that a caste belonging to the same

nomenclature is specified in two States but the

considerations on the basis of which they had

been specified may be totally different. So the

degree of disadvantages of various elements

which constitute the data for specification may

also be entirely different. Thus, merely because a

given caste is specified in one State as belonging

to OBCs does not necessarily mean that if there

be another group belonging to the same

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nomenclature in another State, a person

belonging to that group is entitled to the rights,

privileges and benefits admissible to the

members of that caste. These aspects have to be

borne in mind in interpreting the provisions of

the Constitution with reference to application of

reservation to OBCs.”

Therefore, the contention of learned senior counsel for

appellant cannot be accepted.

59. The learned senior counsel for appellant would submit

that appellant had migrated and settled in Bangalore about

three decades back. Therefore, there is no reason to deny the

benefit of reservation as he belongs to “Sadaru” caste, which

in fact is a backward caste not only in Andhra Pradesh, but

also in the migrated State.

60. The law is fairly well settled, in the matter of

reservation, the scheme of reservation for backward classes

have direct bearing on population of backward classes. In

the normal circumstances, caste of a person is determined

by his birth, however, when reservation, either for education

or election is claimed by a person, on the basis of caste, the

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caste alone will not be a decisive factor. It depends upon

native place/place of residence of parents, State of origin,

migrated State and also economic status of parents, in terms

of statutory notifications holding field.

61. In view of the above discussion, Point No.4 is answered

in affirmative. The learned trial Judge, has arrived at right

conclusion though all the points have not been elaborately

dealt with. The records do not bear an indication that all the

contentions urged before this court had been urged before

the trial court. Therefore, the impugned judgment does not

call for interference.

62. In the result, I pass the following:-

ORDER

The appeal is dismissed.

Sd/- JUDGE

SNN