81 of the Representation of People’s Act, 1951 (‘R.P.Act’

for short) is before this Court seeking to declare that on

the date of election on 05.05.2013 and on the date of

declaration of the result on 08.05.2013, respondent

No.1 was not qualified to be chosen to fill the seat

reserved for the Scheduled Caste in the Karnataka

Assembly. The seat in question is No.145 Mulbagal

reserved constituency. The petitioner is also seeking to

declare the result of the said election, so far as it

concerns respondent No.1 is materially affected by the

improper acceptance of the nomination. A declaration

is sought that the result of the respondent No.1 as

elected to the No.145 Mulbagal (SC) Assembly

constituency as null and void. A declaration that the
6

result of the election is materially affected by the

improper reception and counting of 73146 votes in

favour of respondent No.1 as void and accordingly treat

the said votes as wasted and thrown away votes is

sought. Consequently it is further sought that the

petitioner be declared as duly elected to the No.145

Mulbagal (SC) Assembly Constituency and to impose

penalty on the respondents No.1 and 2 under Section

125A of the R.P.Act.

2. The petitioner and the respondents No.1 to 21

had filed the nomination seeking their election to the

Karnataka Legislative Assembly from No.145 Mulbagal

Constituency. The said constituency is reserved for

persons belonging to Scheduled Caste. The respondents

No.1 and 2 as also their uncle one Sri Gangireddy had

filed their nominations. The nominations filed by the

respondents No.1 and 2 were accepted by the Returning

Officer on 18.04.2013. In the result of the election

declared on 08.05.2013 the petitioner had secured

39142 votes while respondent No.1 had secured 73146

votes and accordingly respondent No.1 was declared
7

elected. At that stage, since the writ petition was

pending assailing the acceptance of the nomination, the

result declared was made subject to result of

W.P.No.20025-26/2013, which has been disposed of

leaving open all contentions to be considered in this

petition.

3. The petitioner is challenging the acceptance of

the nomination and the election of respondent No.1 by

contending that the respondent No.1 does not belong to

Scheduled Caste (‘SC’ for short) since according to the

petitioner the respondent No.1 does not belong to Beda

(Budaga) Jangama community notified as SC under the

presidential order at Item No.4 of IV in Scheduled

Castes and Scheduled Tribes Lists (Modification) Order,

1956. The case of the petitioner is that the said Beda

(Budaga) Jangama Caste is stated to be prevalent in

Gulbarga, Bidar and Raichur District but not in Kolar

District. In order to contend so, the petitioner has also

averred that while admitting respondent No.1 into

school by the parents, it has been stated that he

belongs to ‘Byragi’ caste as recorded in the admission
8

records which is also indicated in the Transfer

Certificate when he was studying SSLC. It is contended

that in some sale deeds relating to his family members

and relatives they have been described as belonging to

‘Jangala’ caste. It is contended that the said ‘Byragi’ or

‘Jangala’ caste is not the same as Beda (Budaga)

Jangama nor are they SC. The ‘Byragi’ caste is notified

as Backward Caste Category-I in the Government Order

dated 30.03.2002 and as such it cannot be considered

as Scheduled Caste. The respondent No.1 at an earlier

point on 04.04.2008 had filed an application seeking

issue of caste certificate but the same was rejected by

the Tahsildar-Mulbagal stating that respondent No.1

belongs to ‘Byragi’ Caste.

4. The petitioner contends that the caste

certificate dated 03.04.2012 relied upon by the

respondent is concocted, manipulated, bogus and the

computer generated print out is not genuine certificate.

The discrepancies as appearing on the face of it is

referred to contend that the said manipulations itself

would indicate that it is bogus. The said forged
9

computer print out caste certificate is relied upon to file

the nomination as a candidate belonging to ‘Budaga’

Jangama (SC). It is contended that the respondent No.1

belongs to ‘Byragi’ community which is entered in the

school records. ‘Byragi’ is not a Scheduled Caste but is

Backward Category I.

5. The further contention is that the respondent

No.1 hails from K.R.Puram, Bengaluru and has a house

in Ramamurthynagar but is presently claiming to

belong to Maraheru Kottur village. There are no

persons belonging to ‘Budaga’ Jangama in Kolar

District. The custom, tradition and religious practices

of ‘Byragi’ and ‘Jangala’ community is entirely different

from that of Budaga (Beda) Jangama caste.

6. The petitioner contends that he brought the

same to the notice of the Returning Officer during the

scrutiny of nomination papers on 18.04.2013 but, the

same was disregarded. In the year 2008 also, the

respondent No.1 had made an application for issuing

caste certificate as ‘Budaga’ Jangama. The Tahsildar
10

Mulbagal Taluk issued the endorsement dated

04.04.2008 and rejected the application of the

respondent No.1. The District Caste Verification

committee headed by the Deputy Commissioner, Kolar

District by its order dated 12.04.2008 rejected the claim

of the respondent No.1 and his uncle Sri Gangireddy

holding that they belong to ‘Byragi’ community. The

respondent No.1 filed W.P.No.5932/2008 challenging

the endorsement dated 04.04.2008 without disclosing

about the order passed by the District Caste Verification

Committee and in that light managed to obtain an order

dated 12.09.2008 reserving liberty to prefer an appeal

under the Scheduled Caste/Scheduled Tribes and Other

Backward Class (Reservation of Appointment) Act, 1990

(‘the Act’ for short). The petitioner however did not file

any other proceeding.

7. When this was the position, one Sri Amarnath

had applied seeking information about the caste of

respondent No.1 and an endorsement dated 29.09.2011

was issued to him by the Tahsildar stating that no caste

certificate was issued to Respondent No.1.
11

Subsequently on the complaint lodged by one Sri

Venkatachalapathy the Tahsildar after conducting

detailed enquiry has arrived at the conclusion that no

such caste certificate was issued from his office and the

same is a created document. Accordingly, an

endorsement dated 15.09.2012 was issued directing

respondent No.1 not to make use of the caste certificate.

Despite the same, the respondent No.1 has been using

the concocted caste certificate. One Muralidhar had

brought this fact to the notice of the Tahsildar and the

Tahsildar issued an endorsement dated 14.03.2013 to

Sri Muralidhar stating that the computer generated

caste certificate dated 26.11.2010 and 03.04.2012 being

relied by Respondent No.1 were concocted.

8. It is contended that on 13.04.2013 an FIR has

been registered by the Mulbagal Police in Crime No.

149/2013 based on the complaint of the Tahsildar-

Mulbagal Taluk against one Sri.Srinivas M who was

working as a clerk in the office of the Tahsildar, for

creating false certificate. The said Sri.Srinivas was

accordingly suspended. The respondent No.1 however
12

managed to stall the proceedings being initiated against

him also by filing W.P.No.13679/2013 and

W.P.No.17122/2013. The petitioner further referring to

the manner in which the respondent No.1 has been

making use of the false caste certificate dated

03.04.2012 and in that background the nomination

being accepted, has sought for the prayer in this

petition as noticed.

9. The respondent No.1 has filed a detailed

written statement disputing the case put forth by the

petitioner. He contends that he had filed his

nomination to both No.145 Mulbagal constituency and

No.146 KGF constituency both of which are reserved for

SC and his nominations were accepted. However, he

withdrew the nomination from KGF constituency and

contested in Mulbagal constituency after it was

accepted. The respondent No.1 contends that he

submitted an application dated 04.04.2008 and the

Tahsildar on receipt issued an endorsement rejecting

the application. The Caste Verification Committee

through the order dated 12.04.2008 had also rejected
13

the claim. He however contends that the rejection thus

made was for non-production of sufficient documents to

substantiate his claim and in that view though the

W.P.No.5932/2008 was disposed of reserving liberty to

file an appeal, he did not choose to file the appeal as at

that point he did not possess sufficient material to

substantiate his claim. Instead of preferring an appeal

he contends that a fresh application was made before

the Tahsildar for issue of Budaga Jangama caste

certificate by enclosing the necessary documents. The

same was forwarded to the Deputy Commissioner who

after receipt of the letter dated 01.06.2010 from the

Tahsildar directed the Tahsildar to take action as per

law and also as per the Circular dated 16.03.2008.

Another Circular dated 17.07.2010 was also issued by

the Deputy Commissioner relating to issue of caste

certificate.

10. The respondent No.1 contends that a caste

certificate was issued on 26.11.2010, but strangely the

Tahsildar had taken a stand that he never issued the

caste certificate. The respondent No.1 alleges that the
14

Tahsildar who was hand in glove with the political

opponents had removed the entire file relating to issue

of caste certificate dated 26.11.2010. In that view, he

once again made an application dated 02.01.2012

before the Deputy Commissioner to grant the caste

certificate by producing supporting documents. The

Deputy Commissioner after receipt of the application

forwarded the same to the Tahsildar vide letter dated

20.01.2012. The Tahsildar had thereafter submitted

the detailed report dated 02.03.2012 recommending for

issue of caste certificate. One more report dated

19.03.2012 was made recommending issue of caste

certificate. The Deputy Commissioner after receipt of

the recommendation has passed an order dated

24.03.2012 directing the Tahsildar to issue caste

certificate in accordance with law.

11. It is further contended by respondent No.1

that the Tahsildar after receipt of the order dated

24.03.2012 had passed an order dated 27.03.2012

classifying the petitioner as Budaga Jangama. It is

contended that the Tahsildar had also made an entry in
15

the register maintained in his office and a caste

certificate dated 03.04.2013 came to be issued in favour

of respondent No.1. Hence it is contended that the

allegation of the petitioner that it is a fabricated

document is unfounded.

12. It is also contended that immediately after he

became aware of the entries in the column of the school

records showing as ‘Byragi’ community, he made

representation to the Head Master and also the Block

Education Officer to rectify the caste as Budaga

Jangama. Since the representation was turned down,

the respondent No.1 filed a suit in O.S.No.107/2012

before the Civil Court for rectification of the entries. In

the above background the respondent No.1 seeks to

justify the caste certificate obtained by him and further

seeks to contend that he belongs to Budaga Jangama

caste and in that light contends that the acceptance of

his nomination from the SC reserved constituency is in

accordance with law. He therefore seeks for dismissal of

the petition.

16

13. The respondent No.2 who is the brother of

respondent No.1 has filed a separate written statement

denying the contents in the petition and seeking to

justify that they belong to Budaga Jangama caste.

14. In the light of the rival pleadings of the

parties, the following issues are framed for

consideration:

ISSUES
”

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

2. Does the petitioner prove that the caste
certificate dated 03.04.2012 produced along
with the nomination form, by the first respondent
as belonging to Budaga Jangama caste is
concocted and obtained by playing fraud?

3. Does the petitioner therefore prove that the first
respondent was not qualified to contest from
No.145 Mulbagal Assembly Constituency
reserved for Schedule Caste?

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

5. Does the petitioner prove that the acceptance of
the nomination of the first and second
17

respondents for the reserved constituency is
illegal and has materially affected the election
result?

6. Does the petitioner prove that the voters of the
constituency had knowledge that the first
respondent does not belong to schedule caste
and the votes cast in his favour are void?

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

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

9. What order? ”

15. In order to discharge the burden cast on the

parties by the above noted issues, the petitioner

examined himself as PW.1 and the witnesses as PW.2 to

PW.11 and got marked the documents at Exhs.P1 to

P99. The respondent No.1 on the other hand got

himself examined as RW.2 and the witnesses as RW.2 to

RW.9 and got marked the documents at Exhs. R1 to
18

R70. None of the other respondents including the

respondent No.2 have chosen to tender evidence.

16. In the background of the averments made,

evidence tendered and the materials relied, I have

extensively heard Smt.Pramila Nesargi, learned senior

counsel for the petitioner, Sri Ashok Haranahalli,

learned senior counsel for respondent No.1, Sri

G.Krishnamurthy, learned senior counsel for

respondent No.12 and Sri N.S.Seshadri, learned counsel

for respondent No.2.

17. Taking note of the nature of the contentions

as put forth and keeping in view that the issue herein

relates to the social status as claimed by respondent

No.1 and that he has taken advantage of the same, the

learned senior counsel for the petitioner has relied on

another vs. Addl. Commissioner, Tribal

Development and others (AIR 1995 SC 94) wherein

the Hon’ble Supreme Court has laid down the guidelines

which is required to be followed in considering the caste
19

status. The application for grant of social status

certificate is to be made to the Revenue Sub-divisional

Office and the Deputy Collector or Deputy

Commissioner and the certificate shall be issued by

such Officer rather than the Officer, Taluk or Mandal

level. The parent, guardian or the candidate shall file

an affidavit duly attested with particulars of castes,

sub-castes etc. The State Government should

constitute a committee and each Directorate should

constitute a Vigilance Cell consisting of Senior Deputy

Superintendent of Police and such number of Police

Inspectors to investigate into the social status of the

claims. The method to be followed is also indicated.

The Inspector should go to the local place of residence

and original place from which the candidate hails and

usually resides or in case of migration to the town or

city the place from which he originally hailed from. The

Vigilance Officer should personally verify and collect all

the facts of the social status claimed by the candidate or

the parents or guardian as the case may be. He should

also examine the school records, birth registration if
20

any. He should examine the parent, guardian or the

candidate in relation to their caste etc or such other

persons who have knowledge of the social status of the

candidate and then submit a report to the Directorate

together with all particulars as envisaged in the

proforma. The peculiar enthropological and ethnological

trades, deity, rituals, customs, mode of marriage, death

ceremonies, method of burial of dead bodies etc should

be taken note. In that light the stringent guidelines laid

down to recognize the caste status is emphasized and

the manner it is to be established.

Government of A.P. vs. Laveti Giri and another

[(1995)4 SCC 32] wherein it is held that the burden of

proving the genuineness of the caste certificate and the

social status is always on the person who profess it to

seek constitutional socio-economic advantages is relied

on by the learned Senior Counsel for the petitioner. It is

also held therein that it is no part of the duty of the

State to disprove or otherwise. The very procedure as

contemplated in the case of Madhuri Patil has been
21

reiterated therein for the purpose of consideration of the

social status. In that background learned Senior

Rai vs. Dinesh Chaudhary [(2003)8 SCC 204] wherein

it is held that when the initial burden is discharged by

the election petitioner, the onus would shift on the

respondent to prove his case which is within his special

knowledge. If the respondent fails to prove the special

knowledge by producing the best evidence, an adverse

inference could be drawn. Hence it is contended that

heavy burden rests on the respondent No.1 to prove the

social status of the caste he professes.

19. The learned senior counsel for respondent

No.12 has also relied on the very decision in the case of

4355)- with emphasis to the portion wherein an earlier

decision is referred and held that the party upon whom

the burden lies to prove the fact, but fails to discharge

the onus, it is not open for him to bank upon the plea of

non examination of witness by the other party. Such

party cannot be permitted to derive strength from the
22

weakness of the case of the other party. In the facts

therein it was found that the onus to prove the facts

within the special knowledge of the respondent No.1

therein had not been discharged. Accordingly appeal

was allowed and the election was set aside. He has also

another -vs- Addagada Chenchamma and another

(AIR 1964 SC 136) – wherein it is enunciated that there

is an essential distinction between burden of proof and

onus of proof. Burden of proof lies upon the person who

has to prove a fact and it never shifts, but the onus of

proof shifts. In the case referred, it was held that the

burden of proof lay upon the plaintiff to establish the

factum of adoption and that of partition. The said

circumstances do not alter the incidence of the burden

of proof. Such considerations, having regard to the

circumstance of a particular case may shift the onus of

proof. Such a shifting of onus is a continuous process

of evaluation of evidence. It is therefore contended that

the factum of his caste and thereby the social status

which he seeks to take advantage is to be always
23

established by the respondent No.1 and the burden will

always remain on him to prove the same.

20. The learned senior counsel for the respondent

No.1 on the other hand has relied on the case of

others [(1988) 2 SCC 12] – wherein it is held that

though the Act has been amended several times the

Parliament has not altered the burden of proof placed

Act. It is not possible to avoid the election of the

returned candidate on speculations or conjectures

relating to the manner in which the wasted votes would

have been distributed. In the absence of positive proof of

material effect on the result of the election of the

returned candidate, the election must be allowed to

stand and the Court should not interfere with the

election on speculation and conjectures. The case of

[(2000) 1 SCC 481] – wherein it is held that it is basic to

the law of elections and election petition that in a

democracy, the mandate of the people expressed at the
24

hustings must prevail and be respected by the Courts

and the election of a successful candidate is not to be

set aside lightly. A heavy burden lies on the election

petitioner to prove corrupt practice. The onus of proof is

not discharged merely on preponderance of

probabilities. The standard of proof required is akin to

that of proving a criminal or a quasi criminal charge.

Clear cut evidence, wholly credible and reliable is

needed to prove beyond doubt the charge of corrupt

practice. In that light the learned senior counsel

contends that the burden is heavy on the petitioner.

21. From a perusal of the above decisions, there

can be no dispute with regard to the position that the

Election petitioner having approached this Court

putting forth certain contentions, the initial burden

would be on him to discharge. Once the initial burden

is discharged, the onus would shift on the respondents.

While taking note of these facts what is also to be kept

in view is that in an election petition wherein the

corrupt practice is alleged, there cannot be vague

charges and the burden is extremely heavy on the
25

petitioner. In the instant case, the contention however

put forth on behalf of the petitioner is that as per the

very school records of the respondent No.1, his caste is

shown as ‘Byragi’ as he belongs to that caste and when

that has stood the test of time the respondent No.1

cannot claim a social status to take advantage of the

same. The respondent on the other hand has

contended that such entry in the school records is

erroneously made and in that view he asserts that he

belongs to Budaga Jangama and claims a social status

which requires strong evidence. Hence if the petitioner

brings home the evidence to show that the school

records indicate that the respondent No.1 is shown as

‘Byragi’ at an undisputed point in time, the pendulum

would swing towards respondent No.1 to conclusively

prove that he actually is of Budaga Jangama caste and

such entry in the school record is contrary to the factual

position.

22. In the light of the said contentions, the issue

No.1 casts the initial burden in that manner for the

petitioner to prove that the first respondent belongs to
26

‘Byragi’ caste as is depicted in the school records as

contended. In view of the assertion of respondent No.1

about his caste to claim the social status, issue No.4

casts the burden on the respondent No.1. Apart from

the issues Nos.1 and 4 therefore being intertwined, the

other issues would become consequential even though

they cast the burden relating to the caste certificate as

claimed and in that light the evidence as tendered is

required to be taken note. If the initial burden is

discharged by the petitioner, the burden would be heavy

on respondent No.1 as he claims benefit to a social

status and take advantage of the same.

23. In the above noted circumstance, the

petitioner having examined himself as PW-1 has stated

with regard to the school records pertaining to the

respondent No.1 and the caste of the respondent No.1

being shown as ‘Byragi’. The documents at Ex.P-4 and

P-5, the admission register and Transfer Certificate are

marked. The documents at Exhs.P-8, P-9 and 9(a) are

also marked. Sri K.M.Venkateshappa, Vice Principal,

Nehru Kennedy High School, Byrapur is examined as
27

PW.5. The Admission Register for the period 1986 to

1992 is marked as Ex.P92. The Register for the period

1990-1995 is marked as Exh.P-93. The entry contained

at Sl.No.4 relating to respondent No.1 for the academic

year 1992-93 is marked as Ex.93(a). As per the entry,

his caste is shown as ‘Byragi’. The name of respondent

No.2 is shown at Sl.No.3 for the academic year 1989-90

and is marked as Ex.P.92(a). His caste is also indicated

as ‘Byragi’ and that he joined the school for the VIII Std

during the said years. The Transfer Certificate marked

as Ex.P5 is also accepted by PW-5, as having been

issued from the said Nehru Kennedy High School. The

document at Ex.P8 is also accepted as the list issued

from the said school. It is elicited in the cross

examination that the entry is not made at the instance

of the parents, but was based on the information

available in the Transfer Certificate of the VII Std. It is

further elicited from the said witness about the customs

and the dress being worn by them and the persons

belonging to Budaga Jangama caste follow the same
28

and that persons belonging to Budaga Jangama caste

have also secured admission in the school.

24. Sri Devaraju N, the Block Education Officer

was examined as PW.7. He has also referred to the

documents marked as Ex.P8 being the list of students

studied from Kottur village during the period 1977 to

31.03.1993. The name of the first respondent is

referred at Sl.No.15 and that of respondent No.2 at Sl.

No.6. The document at Ex.P4, the admission extract

relating to the first respondent is also referred and the

caste shown as ‘Byragi’ is stated by the witness. The

admission register at Ex.P35 relating to Nehru Kennedy

School indicating the seal of the Government Kannada

Lower Primary School, Kottur is referred. The Transfer

Certificate at Ex.P94 is shown to the witness and

marked after overruling the objections. The Transfer

Certificate is dated 22.07.1991 and the Caste is

indicated as ‘Byragi’. The said witness has been

subjected to cross examination and he has stated that

he is not in a position to say as to on what basis the

entries have been made in Ex.P8 and he cannot say who
29

has provided the details for making the entry in the

document at Ex.P8. It has been suggested to him that

the Ex.P8 is not genuine as the original is not available

to which he has stated that it could be true. He has

also stated that he cannot say the basis on which the

caste as ‘Byragi’ has been entered either in Ex.P4 or in

Ex.P35.

25. The evidence as tendered through PW.1,

PW.5, PW.7 and the documents marked and referred to

above would indicate that at an undisputed point of

time the school records indicated the name of

respondents No.1 and 2 and their caste was depicted as

‘Byragi’. The learned senior counsel for the petitioner

Bodh Raj [(2008)2 SCC 186] wherein it is held that

entries in the admission register made a long period

earlier has evidentiary value and documents more than

30 years old attracted presumption as to its validity. In

so far as the caste certificate issued in the said case by

the Executive Magistrate is concerned, it was observed

that such caste certificates are not given after thorough
30

investigation. It is also held that, when the primary

evidence regarding caste is led by the appellant and the

attempt of the respondent is to claim to be a Schedule

Caste, the caste certificate issued by the Executive

Magistrate cannot be taken as evidence to prove the

caste of the respondent.

26. Reliance is also placed by the learned senior

counsel for petitioner, on the decision in the case of

(E.P.No.3/1991, DD 27.10.1994) – wherein it is held

that even assuming that the certificate is issued by a

competent officer, the Returning Officer was not

precluded from not relying upon it if there was other

material to indicate that the petitioner did not belong to

Beda Jangam . In that case the extract of the admission

register and the affidavit of the sister which indicated

that the petitioner belonged to Jangam Lingayath and

not Beda Jangam caste was available. In that view it

was held that the Returning Officer need not have relied

on the caste certificate. The contention raised therein

that the nomination paper was accepted in the earlier
31

election was noted and it was held that when there were

other documents, the mere fact that the nomination had

been accepted in the earlier election cannot be a ground

to hold that he belong to Beda Jangama caste. The

decision reported in (1996) 4 SCC 431 is relied to show

that the judgment in E.P.No. 3/1991 was upheld by the

Hon’ble Supreme Court and to contend that the entries

in the school records would have evidentiary value and

moreso when such entries are more than 30 years old,

the presumption would arise in law and as such the

caste as indicated therein should be conclusively

accepted by this Court.

27. The learned senior counsel for respondent

No.1 on the other hand would refer to the decisions in

another – [(2010) 9 SCC 712] wherein it is held that

the reliance placed on the birth records, entries in the

telephone application and voters list cannot be the sole

ground for proving that the appellant therein was

professing Christianity. It is observed in the said case

that such records could have been made by people other
32

than the person concerned. It was further observed

that the entry in the birth register in that case was not

made by the parents but by the Village head nurse. It is

also held therein that in an election petition the facts

presented must be clear and when people have elected

their representative it cannot be taken lightly. The

person who files the election petition should have a

definite case to prove that the election was illegal.

Therefore the burden of proof shall lie on the petitioner.

Even if the allegation is not of corrupt practice, the

same will not be lesser in seriousness. Hence the

burden of proof is on the election petitioner to prove the

charges beyond reasonable doubt.

28. The learned senior counsel for the respondent

Singhvi -vs- Anand Purohit [1988 (Supp) SCC 604], –

wherein it is stated that if the entry regarding date of

birth in a school register is made on the information

given by the parents or someone having special

knowledge of the fact, the same would have probative

value but if it is given by a stranger such entry will have
33

Rakesh Kumar [(2003) 8 SCC 673], – wherein, with

reference to Sec.35 of the Evidence Act it is held that a

register maintained in terms of a statute or by a

statutory authority in regular course of business alone

would be a relevant fact and only if such vital evidence

is produced, it would clinch the issue and the case of

757], – wherein, in the facts arising in that case it was

held that the entry of date of birth in the admission

form, the school records and transfer certificates did not

Evidence Act as the entry was not in the public or

official register, are relied upon.

29. That apart reliance is placed in the case of

[(2008) 13 SCC 133], – wherein it is held that to render

conditions have to be satisfied, namely; (i) entry that is

relied on must be one in a public or other official book,

register or record; (ii) it must be a entry stating a fact in
34

issue or a relevant fact, and (iii) it must be made by a

public servant in discharge of his official duties, or in

performance of his duty especially enjoined by law. An

entry relating to date of birth made in the school

the Act but the entry regarding the age of a person in a

school register is of not much evidentiary value to prove

the age of the person in the absence of the material on

which the age was recorded. The said decision is cited

to contend that the reliance in the school registers can

be placed only if such entry is made based on the

details furnished by the parents and the details as

entered on the information furnished by strangers

cannot be the basis. It is also contended that the

original registers are not produced and the same not

being public documents cannot be relied upon.

30. Having taken note of the decisions cited by

either side, the fact situation herein is that the school

records produced would indicate that they are of the

periods from 1977 onwards and the fact that the

respondents No.1 and 2 had studied in both the schools
35

referred is not in dispute. Though in the cross

examination of PW.5 it is attempted to extract that the

entry of the caste is not made based on the information

furnished by the parents, the witness has stated that

the entry is based on the Transfer Certificate issued

from the earlier school. In that regard, when PW.7 has

referred to that aspect there is no detailed cross

examination on that aspect.

31. Be that as it may, when the entries are

contained therein and even if certain suggestions were

put to PW.5 and PW.7 in an attempt to indicate that

they have no knowledge as to on what basis the caste of

respondent No.1 and 2 has been entered and obviously

when the admission of respondents No.1 and 2 was to

the primary school when the first admission was made

to the Government School and was for the VII Std in the

Nehru Kennedy school, the respondent No.1 would not

be aware of the details and it should be their elders

unless the contrary is proved. Therefore, if the

respondent No.1 was to contend that the entry

contained in such a document maintained at an
36

undisputed point in time was made without basis and is

an error, the respondent No.1 ought to have examined

such reliable witness to speak about the fact as to who

had secured and admitted the respondents No.1 and 2

to school and what was the nature of the information

that was furnished. Without doing so, a dispute cannot

be raised all of a sudden, out of the blue when it

becomes inconvenient nor does any suggestions put to

the petitioner’s witness be material.

32. That apart though a contention is raised that

the documents as marked cannot be relied on as it is

not a public document and the original had not been

produced by placing reliance on the decisions as noted

above, the contention to that effect cannot be accepted

in the present context inasmuch as the very averment

as contained in the written statement of respondent

No.1 and the plaint in the admitted suit filed by

respondent No.1 in O.S.No.107/2012 at Ex.P42 would

indicate the fact that such documents are maintained in

the schools concerned and the entries are made with

regard to the caste as contained therein though it is
37

alleged that it is entered wrongly. In fact, it is the

admitted position and the respondent No.1 in fact was

making attempts to secure corrections of the same and

had failed in such attempt as seen from the judgment

passed in O.S.No.107/2012 at Ex.P45. In the above

circumstance, keeping in view the reasons for which the

petitioner had contended that respondent No.1 is a

person belonging to ‘Byragi’ community and that the

entries to such effect has been made in the school

records has been satisfactorily brought on record, the

petitioner has discharged the burden in proving the

issue raised.

33. The learned senior counsel for the respondent

Siddappa Naik -vs- Kattimani Chandappa

Jampanna and others (AIR 1968 SC 929) – wherein it

is held that the ordinary rule is that the person, who as

a plaintiff, asserts a fact, has to prove it. The election

petitioner therein was to prove that he was a Bedar and

that would have proved that he was not a Nayaka. To

establish the fact, evidence was required to show the
38

characteristics such as custom in marriage, births,

deaths etc to distinguish the two. It is held that a bare

assertion that the appellant is a Bedar is not sufficient

to displace the acceptance of the nomination paper or

the claim of the appellant that he is a Nayaka. In that

view it is contended that the petitioner has not tendered

evidence to prove the customs and traditions followed

by ‘Byragi’ and to establish that the respondent No.1

was following the same. He therefore contends that the

petitioner has failed to prove that respondent No.1

belongs to ‘Byragi’ caste. The said decision is not of

assistance in the instant case since as already noticed

the nature of contention as putforth relating to school

records, based on which it was alleged that respondent

No.1 is ‘Byragi’, it has been proved with acceptable

evidence and the burden is discharged. In that view,

the issue No.1 is to be held in the affirmative in favour

of the petitioner and the burden is shifted on the

respondent No.1 to establish that he actually belongs to

Budaga Jangama based on the direct evidence before
39

this Court without the aid of the caste certificate which

is in the centre of dispute.

34. On that aspect, the respondent No.1 has

examined himself as RW.1 and has stated that he

belongs to Budagajangama community and that the

avocation of the parents was roaming from village to

village by playing the musical instrument called the

Budaga but they were wrongly called as Sanyasi,

Jangalu etc and the same has been entered in the sale

deeds due to illiteracy and ignorance. He states that his

parents have never affixed their signatures in the school

records and refers to the tradition and custom as also

the religious practices followed by Budagajangama

community. In that background the respondent No.1

refers to the Tahsildar having taken note of the custom

being followed and in that light having issued the caste

certificate. The respondent No.1 in order to contend

that persons belonging to Budagajangama caste are

residing in Kolar District has referred to the contents in

Kolar Gazetteer which is marked as Ex.R.1.
40

35. Essentially in order to state about the

customs and traditions followed by persons belonging to

Budagajangama and in that light having relied on the

alleged Mahazar as per Ex.R26 in support of the caste

certificate, the very persons who claim to have affixed

their signature as witnesses to the said mahazar

(Ex.R26) are examined as witnesses to state about the

customs and traditions followed by persons belonging to

Budagajangama, before this Court. Sri M.B.Anwar is

examined – RW.3. He states that respondent No.1

belongs to Budagajangama caste and that he and his

elders would normally knot their hair at the top and

wear a head scarf. They would also wear a bead chain

and carry an instrument called Budaga. They would

visit the houses seeking alms and predict the future of

the people. They would thus collect money, food grains

etc., and make a living. The custom followed in their

marriages is stated by him. Another witness

Sri Mallikarjuna Reddy is examined as RW.4. He claims

to be a member of Grama Panchayat and is also a

signatory to the alleged Mahazar (Ex.R-26). He would
41

also state that the respondent No.1 belongs to

Budagajangama caste and the custom that is followed

by them and he states that he had mentioned to the

Tahsildar about such custom being followed by

respondent No.1 which is the same as being followed by

persons belonging to Budagajangama. Sri

M.Venkataramana who is another witness to the alleged

mahazar (Ex.R-26) is examined as RW.5. The said

witness has also stated with regard to the dressing

pattern of the persons belonging to Budagajangama,

their nature of worship and the practice that is followed

in performing the marriages and also in the funeral etc.

36. The learned senior counsel for the respondent

No.1 while referring to their evidence has contended

that the customs and traditions of Budga Jangama

being followed and as referred to in the evidence has not

been disputed by the petitioner by cross examining on

that aspect and as such has relied on the decision in

Haryana [(2013)14 SCC 420], – wherein the effect of

cross examination by putting the version to the witness
42

and providing adequate opportunity to the witness in

the witness box to give full and proper explanation is

emphasised and states that in the absence of cross

examination the statement of the witnesses is required

to be accepted.

37. Taking into consideration such contention, at

this stage itself it is to be noted that insofar as issue

No.4 which is framed herein and in that light the

evidence tendered on the said issue by RWs.3, 4 and 5 if

it is taken into consideration, at the outset it is seen

that none of the persons belong to the community

regarding which a consideration is being made nor do

they state about their expertise to give such details.

The manner in which they have stated with regard to

the customs being followed though there is

corroboration in their version, keeping in view their age,

nature of profession and there being no material in the

first instance to indicate that apart from the

respondents No.1 and 2, Sri Kullayappa and Sri

Gangireddy who claim to belong to that community,

whether there are other persons residing in the village.
43

The evidence tendered by the said witnesses appear to

be as tutored witnesses and no reliance is possible to be

placed on their evidence even if there was no cross

examination on that aspect as essentially it is seen that

the cross examination is concentrated on the claim

made by them as mahazar witnesses.

38. Apart from the above noted witnesses one Sri

Sheshappa is examined as RW.9. The said witness no

doubt claims that he belongs to Budaga Jangama and

was the president of the Karnataka Rajya Budaga

Jangama Kshemabhivruddhi Sangha. He states that he

knows respondent No.1 since the daughter of the said

witness has married the brother of respondent No.1, Sri

Prasanna Kumar. In that view he states that

respondent No.1 belongs to Budaga Jangama

community to which he belongs. The said witness also

has stated with regard to the tradition and custom

followed by the Budaga Jangama community in the

same manner as has been stated by the other witnesses

as referred to above. However, the said witness in his

cross examination has admitted that his caste is
44

recorded as ‘Bavacha’ in the school records and the said

caste belongs to Scheduled Tribe. He states that

Bavacha and ‘Byragi’ are different castes and in the

modern society, there would be inter-caste marriages.

In that view the marriage alone cannot be the basis that

too when he himself is not proved to be Budga

Jangama. Though he denies the suggestion that he

does not belong to Budaga Jangama caste, except for

his bald statement before the Court, no material

whatsoever has been produced either with regard to the

said witness following the practices of Budaga Jangama

caste more particularly when he admits that his school

records indicate his caste as ‘Bavacha’.

39. At this stage, having taken note of the

decision in the case of Laveti Giri (supra), it is clear that

the burden to prove is on the person who seeks the

social status and by professing it seeks constitutional

socio-economic advantages. The burden is therefore

heavy on the respondent No.1 to establish not only that

there are persons belonging to Budaga Jangama in

Kolar district or even if he had migrated from any other
45

place he in fact belong to Budaga Jangama caste. The

only document apart from the disputed caste certificates

on which reliance is placed by respondent No.1 is on

Ex.R.1 viz., the Kolar Gazeteer. The learned senior

counsel for the petitioner has however relied on the

and others [(2012)1 SCC 333], wherein reference is

made to the directions issued in Madhuri Patil’s case

and it is observed that genuine candidates are denied

the benefit for want of social status certificate. Hence it

is in that view reiterated that the guidelines issued by

the Supreme Court are to be followed for determining

the caste status. Reliance is also placed on the case in

[(2007)10 SCC 590]. In that case where

Anthropological Survey of India prepared by one

Majumdar D.N. -‘The Radical Basis of Indian Social

Structure’ was referred with reference to the word

“Majhi” and an attempt was made to show that in such

situation the finding recorded by the High Level

Committee is erroneous, the same was not accepted by
46

the Hon’ble Supreme Court as authenticated document

and observed that no such reliance can be placed for

deciding the tribal status of the appellant therein. In

that view the learned Senior Counsel contends that the

reliance as placed on the Gazetteer (Ex.R-1) cannot be

accepted. Such reliance by itself would not be sufficient

without there being any other oral or documentary

evidence to indicate that the forefathers of the

respondent No.1 belonged to Budagajangama and that

the respondent No.1 is therefore belonging to

Budagajangama.

40. The learned Senior Counsel for respondent

Committee for Scrutiny and Verification of Tribe

Claims and others [(2012) 1 SCC 113],- wherein it is

stated that while applying the affinity test, which

focuses on the ethnological connections with the

Scheduled Tribe, a cautious approach has to be adopted

since with migrations, modernisation and contact with

other communities, these communities tend to develop

and adopt new traits which may not essentially match
47

with the traditional characteristics of the Tribe. Hence it

is held that affinity test may not be regarded as the

litmus test but may be used to corroborate the

documentary evidence and should not be the sole

criteria to reject the claim. Even if the said decision as

relied by learned senior counsel for respondent No.1 is

kept in view and the cross examination of RW.1 wherein

the learned senior counsel for the petitioner has sought

to bring out the fact that respondent No.1 is presently

residing in Bengaluru and that he is leading a modern

life is taken into consideration, those aspects would

have arisen as a secondary consideration if at the outset

the respondent No.1 had established that his forefathers

belonged to the Budaga Jangama community and the

change in respondent No.1 is due to economic progress.

In that regard, as noticed, apart from the oral evidence

of RW-1 and RW-9 as tendered there is no other

evidence on record even to basically establish the fact

that the forefathers of respondent No.1 were Budaga

Jangama.

48

41. Even if the parents of the respondent No.1

were not alive any other elders of the family ought to

have been examined and in that regard there is no

explanation whatsoever. Though Ex.R-1 is sought to be

relied to contend that there are persons of Budaga

Jangama caste in Kolar District, not a single person

who admittedly belongs to that community and resides

in Kotthur of Malur has been examined. The RW-9

who deposed claiming to be from Budaga Jangama

Community is from Ramanagara. Despite the

respondent No.1 has sought to contend that his uncle

Sri Kullayappa had contested as a SC candidate and

was elected as a Panchayat member and seeks to place

strong reliance on the fact that the caste certificate at

Ex.R-11 was issued to him and also issued to

respondent No.2 who is his elder brother has not been

challenged by filing objections, neither of them have

entered the witness box to state with regard to their

affinity to the caste or to speak about their predecessors

and the manner in which they were professing by

following the traditions and customs of the caste.
49

42. In fact, in the instant case, it is intriguing to

notice that respondent No.2 who is a brother of

respondent No.1, being a party to the instant

proceedings, having entered appearance through a

counsel and participated in the proceedings has not

chosen to tender evidence nor has respondent No.1

chosen to secure him as a witness. In this regard it

would be relevant to refer to the decision in the case of

Vidyadhar vs. ManikRao and another [(1999)3 SCC

573], – relied on by the learned Counsel for the

petitioner, wherein it is held that where a party to the

suit does not appear in the witness box and state his

own case on oath and does not offer himself to be cross

examined by the other side, a presumption would arise

that the case set up by him is not correct. Though it is

relied on by the learned senior counsel for the petitioner

only to contend that the case put forth on behalf of

respondent No.2 to support the respondent No.1 cannot

be accepted in the absence of the respondent No.2 not

having entered the witness box, the said situation in

fact in my view should be held as adverse to the case of
50

respondent No.1. Despite the learned senior counsel for

the respondent No.1 himself relying on the decision in

the case of Ajai Verma -vs- Vijai Kumari – Privy

Council (43 CWN 585), – wherein it is held that the

opinions of responsible members of the family as to the

existence of such a custom, and the grounds of their

opinion, though generally in the nature of family

tradition, are clearly admissible, no such attempt is

made in the instant case and the evidence of RW-9

cannot be considered to be the evidence of such nature

and credibility.

43. In that light, though the respondent No.1

having not examined any person belonging to his family

or the caste to state about his caste and the genealogy,

it is to be taken note that the petitioner on the other

hand has examined one Sri Muralidhar as PW.8 who is

a SC person and has been opposing the claim of

respondent No.1 to belong to SC and had thus filed

application before the Tahsildar seeking for particulars

and to oppose the claim. Similarly one Sri

M.Venkataramana has been examined as PW.9. The
51

said person also belongs to the SC. They have

contended that the respondent No.1 is not a SC and

since according to them a person not belonging to their

caste was taking away the benefit given under the

Constitution, they had made efforts to complain to the

competent authorities and also to distribute pamphlets

about the false claim of respondent No.1. Irrespective of

the evidentiary value of the deposition of PWs 8 and 9,

as already taken note except for seeking to rely on the

Kolar Gazeteer at Ex.R.1, the caste certificates issued to

him, his wife and children and on Ex.R.11 the caste

certificate of his uncle Sri Kullayappa, which are in

dispute there is no concrete evidence to establish that

the respondent No.1 belongs to Budaga Jangama.

Insofar as the caste certificate of respondent No.1 and

his family members the very manner in which it has

been obtained is the disputed question and insofar as

the caste certificate of Sri Kullayappa, as already noted,

he has not entered the witness box nor has his caste

certificate stood the test after judicial review as there

was no challenge in that regard to his election and it
52

has not been tested. Hence, from the available material,

the only irresistible conclusion that can be drawn when

no reliable evidence is placed before this Court to prove

that he is a Budaga Jangama, is that the respondent

No.1 is not a person belonging to Budaga Jangama

caste. Hence Issue No.4 is held in the negative against

respondent No.1.

44. The next issue for consideration is with regard

to the validity of the caste certificate. On that aspect

though issue No.2 casts the burden on the petitioner to

prove that the caste certificate dated 03.04.2012

produced along with the nomination form by the first

respondent as belonging to Budagajangama caste is

concocted and obtained by playing fraud, keeping in

view the nature of the contentions urged and the

material brought on record it would also boil down to

take note at the outset the position as to whether a

second application by the petitioner would have been

sustainable at all when the earlier application seeking

for caste certificate admittedly had been rejected and

such order had attained finality. In that background
53

the evidence available on record on that aspect is

necessary to be taken note.

45. The contention as put forth on behalf of the

petitioner in that regard is that at an earlier point when

the respondent No.1 had made an application dated

04.04.2008 seeking issue of caste certificate as Budaga

Jangama, an endorsement was issued to him stating

that there are no persons belonging to Budaga Jangama

caste in Majera Kottur village. The validity of such

endorsement dated 04.04.2008 was considered by the

District Caste Verification Committee on 12.04.2008

and it was held therein that the respondent No.1

belongs to Byragi caste and the request for issue of SC

certificate as Budaga Jangama is rejected. The said

order has remained undisturbed till today. The said

factual aspect is not disputed inasmuch as the

respondent No.1 in his objection statement has also

admitted the said position and has sought to explain

that he did not choose to challenge the same as he did

not have sufficient material at that point and therefore

he claims to have filed the subsequent application. The
54

evidence to that effect is available through the

deposition of PWs.1, 2, 3 and 4. The endorsement

dated 04.04.2008 is at Ex.P11. A perusal of the same

would indicate that the same is issued by PW.2 on

04.04.2008 wherein it is categorically stated that the

respondent No.1 has made the application dated

04.04.2008 seeking issue of caste certificate and the

PW.2 Smt.Harishilpa who was the then Tahsildar

having verified the application and having perused the

report of the Revenue Inspector has taken into

consideration the report wherein it is stated that

respondent No.1 belongs to Byragi community. It is

also observed therein that the school records of

respondent No.1 shows that he belongs to Byragi

community. The conclusion is that even though it is

stated that persons are engaged in fortune telling, the

instrument known as Budaga is not used as they do not

belong to Budaga Jangama caste and the persons

belonging to that caste are not residing in the village.

46. The document at Ex.P12 is the proceedings of

the Caste Verification Committee dated 12.04.2008
55

while taking note of the claim made by Sri Gangireddy

and the respondent No.1. A detailed consideration is

made keeping in view the notification dated 07.09.2004

referring to the school records in the course of the

enquiry has arrived at the conclusion that the

respondent No.1 and Sri Gangireddy belong to the

Byragi caste. The respondent No.1 though filed the writ

petition in W.P.No.5932/2008, what is assailed therein

is only the endorsement dated 04.04.2008 (Ex.P11) and

not the order dated 12.04.2008 of the District Caste

Verification Committee (Ex.P12). The said writ petition

was disposed of on 12.09.2008, a copy of which is at

Ex.P13. A perusal of the same would indicate that the

petition is disposed of reserving liberty to the

respondent No.1 herein to question the correctness of

of the Act, 1990. Though such liberty was reserved to

assail the endorsement, the correctness of the

endorsement dated 04.04.2008 (Ex.P11) had already

been considered by the District Caste Verification
56

Committee as per Ex.P12 and the same had not been

brought on record in the writ petition. Be that as it

may, the rejection of the application has not been

assailed before any forum nor was the conclusion of the

Caste Verification Committee dated 12.04.2008

assailed, as such the same had attained finality.

47. When this was the position, one Sri

N.M.Amarnath had filed an application under the Right

caste certificate is issued to respondent No.1 and had

accordingly sought for a copy, if the same had been

issued. PW.3 who was the Tahsildar at that point in

time has issued the endorsement dated 29.09.2011 as

at Ex.P14 indicating that the verification of the records

for the periods 02.04.2008 to 03.09.2011 would disclose

that no caste certificate has been issued to respondent

No.1 as Budaga Jangama. In that background, the said

Sri Gangireddy and the respondent No.1 herein filed a

suit in O.S.No.107/2012, a copy of the plaint in the said

suit is marked at Ex.P42. Though initially a declaration

of the caste as Budaga Jangama was sought, the same
57

has been amended subsequently for a direction to the

defendants to rectify the school records and indicate the

caste as Budaga Jangama in place of Byragi. It is

relevant to note that in the plaint, the respondent No.1

herein as plaintiff No.2 has not stated about the caste

certificate for the purpose of election as applied but he

has averred that it is required for his employment as he

is unemployed and is searching for job. This is referred

by me only to indicate the manner in which respondent

No.1 was making attempt to secure a caste certificate in

any manner whatsoever.

48. The said suit has been dismissed by the

judgment dated 27.09.2013 which is marked as Ex.P45.

It is no doubt true the Civil Court has taken note of the

pendency of the issue relating to caste certificate before

this Court in this petition. However, the issues as

framed for consideration therein would indicate that the

plaintiffs therein viz., respondent No.1 and Sri

Gangireddy had failed to prove that they belonged to

Budagajangama caste and also had failed to prove that

the school authorities had wrongly mentioned the caste
58

as Byragi. When a conclusive finding had been

recorded about the correctness of the entry in the

school records and a rectification was declined, the

same is to be taken note herein. Therefore, the said

conclusion and the documents as noted above itself

would indicate that the respondent No.1 could not have

filed one more application unless the findings of the

District Caste Verification Committee and the Civil

Court was set aside in an appropriate proceedings in

accordance with law.

49. The learned senior counsel for respondent

No.1 no doubt referred to the cross examination of Sri

D.V.Ramamurthy (PW-4), the then Tahsildar wherein he

has admitted that if the first application has been

rejected only on the ground that the same is not

supported by documents, a fresh application could be

received if such application is accompanied by

documents. In that view it is contended by the learned

senior counsel for respondent No.1 that the second

application made by respondent No.1 in the year 2012

based on which it is claimed that the caste certificate
59

dated 03.04.2012 is issued is justified. However, what is

noticed is that PW.4 has also qualified his statement by

further indicating that at the first time if it is rejected

stating that he does not belong to that caste, a fresh

application will not be received.

50. The learned senior counsel for respondent

No.1 has also relied on the decision in the case of

SCC 863], – wherein it is held that it is true that the

Court had held in the earlier case that on embracing

Christianity, the respondent therein had ceased to be a

member of Adi Dravida caste in the case relating to the

earlier election on the basis of the evidence led therein

and that cannot be resjudicata in the present case

where fresh evidence has been adduced on behalf of all

the parties and the parties are not the same, to contend

that the earlier consideration will not be a bar. The

facts therein are not akin to the facts herein and it is

observed therein that the parties are also not the same.

Savitri Devi and others [(2003) 8 SCC 319], – wherein
60

reference is made to an earlier case of the Supreme

Court in which it is held that the principle of finality of

litigation cannot be pressed to the extent of such

absurdity that it becomes an engine of fraud. It is held

that the Courts of law are meant for imparting justice

between the parties. The said decision is also not of

assistance.

51. In the instant case as already noticed,

through the documents at Exhs.P11 and P12 while

rejecting the application dated 04.04.2008 filed by

respondent No.1 the application is not just rejected for

want of documents in support of the same but a

detailed consideration of the factual report of the

Revenue Inspector, the school records and the position

in the village is taken into consideration and a

categorical finding is rendered that the respondent No.1

belongs to Byragi community and that there are no

persons belonging to Budaga Jangama in Kottur village.

In such situation unless such finding even if erroneous

was rectified in an appropriate proceeding, the

subsequent application even if filed a consideration
61

thereof would be hit by the principles of res-judicata.

Therefore a subsequent application could not have been

filed. Hence apart from the fact as to whether such

application was actually filed, considered and orders

passed, even if it was filed, any order would be without

the force of law and the caste certificate even if issued

cannot be recognised as a valid document when earlier

proceedings are suppressed.

52. In that regard it is relevant to take note of the

decisions relied upon by the learned senior counsel for

the petitioner in the case of Chengalvaraya Naidu

others [(1994)1 SCC 1],- wherein the Hon’ble Supreme

Court has held that even a decree obtained by

nondisclosure of the document amounted to fraud on

oath and the decree is liable to be set aside. It is held a

fraud is an act of deliberate deception with design of

securing something by taking unfair advantage of

another. It is a deception in order to gain by another’s

loss. It is a cheating intended to get an advantage. A

litigant who approaches the Court is bound to produce
62

all documents and if any documents are withheld, he

would be guilty of playing fraud. Reliance is also placed

Maharashtra and others [(2005)7 SCC 605],- wherein

it is held that fraud and collusion vitiate even the most

solemn proceedings in any civilised system of

jurisprudence. Fraud and justice never dwell together. A

collusion or conspiracy with a view to deprive the rights

of others would render the transaction void ab initio.

Fraud and deception are synonymous. Fraud is

anathema to all equitable principles and any affair

tainted with fraud cannot be perpetuated or saved by

the application of any equitable doctrine including res-

judicata.

53. In that background, firstly even if such

application had been filed, no other additional material

to support such application for a consideration to be

made in that regard has been relied upon nor is there

any change in circumstance than what it was earlier

pointed out inasmuch as the school records etc., had all
63

remained the same and there was no scope for filing

another application.

54. The Tahsildars who had worked at Mulbagal

during the periods 26.11.2007 to 22.08.2009,

03.09.2009 to 12.08.2012 and 06.02.2012 to

22.04.2013 have been examined as PWs.2, 3 and 4.

Insofar as PW.2 the witness has stated with regard to

the rejection of the earlier application and no caste

certificate being issued. Insofar as PW.3 he has stated

that he was authorised to issue caste certificate only

upto 03.12.2011 and thereafter PW.4 had assumed

office on 06.02.2012. The respondent No.1 is seeking to

rely on the document at Ex.R.9, an order alleged to have

been passed by Sri Jayamadhava the then Tahsildar

who is presently working as the Land Acquisition

Officer, Ramanagar and is examined as PW.3. The said

order bearing No.130/11-12 dated 27.03.2012 is to the

effect that the caste certificate could be issued as

Budagajangama to respondent No.1. In the cross

examination of PW.2, though the order is confronted, he

has disputed about passing such order. Though the
64

document at Ex.R.8 was shown to him about the order

dated 13.07.2005, he has stated that since the Grade II

Tahsildar had already taken over he did not take any

further action pursuant to the letter dated 24.03.2012

received from the Deputy Commissioner. The order

dated 27.03.2012 (Ex.R.9) though shown to him and

marked, he has categorically stated that though he sees

one signature as the original signature of the document,

the other signature shown in the document is for

attestation of the copy. He has stated that the

signatures are not his and the suggestion to that effect

has also been denied. He has categorically stated that

the order at Ex.R.9 shown to him is seen by him for the

first time in the box. He has categorically denied that

he has passed the order at Ex.R.9. He has stated that

he has no objection even if the said signature is referred

to expert opinion.

55. In the background of the said evidence, a

perusal of Ex.R.9 would disclose that even if the same is

produced as a copy secured from the records, when

such order is stated to have not been passed at all by
65

PW.3 who is alleged to be its author and when the

original is not available, the same cannot be relied

upon. The signature as contained in the document has

not been admitted by PW.3 and no steps whatsoever

has been taken by the respondent No.1 to establish the

genuineness of the signature as belonging to that of

PW.3. If that be the position, the entry as contained in

the register at Ex.P59 as an entry for h+aving issued the

caste certificate to the first respondent also cannot be

relied upon. The process for such issue of caste

certificate is based on the alleged mahazar relied upon

by the respondent No.1 as at Ex.R26. Though the

witnesses RWs.3 and 4 claim to be witnesses to the

alleged mahazar at Ex.R26 and contend that the same

was drawn when the Tahsildar had visited the village,

none of the Tahsildars examined as PW-2 to 4 have

admitted to the same. The document at Ex.R26 is a

copy said to have been obtained from the records and

the original is not available. Though RWs.3 and 4 have

identified their names in the alleged mahazar at

Exhs.R.26(a) and (c), the signature of the Tahsildar is
66

not identified and marked. The said witnesses have

however stated that the Tahsildar who has recorded the

mahazar is Sri Jayamadhava, who in any case has been

examined as PW.3 on behalf of the petitioner. In his

evidence he has stated that he was authorised to issue

the caste certificate only up to 03.12.2011 and the

Tahsildar Sri Ramamurthy (PW.4) had assumed office

on 06.02.2012. If that be the position, firstly, it cannot

be accepted that on the alleged date of mahazar dated

17.02.2012 the said Tahsildar Sri Jayamadhava could

have drawn the Mahazar. That apart the signature of

Sri Jayamadhava is not found therein nor is it admitted

by him though attempt was made on behalf of

respondent No.1 to refer to a mark therein and suggest

to PW-3 that it is his signature.

56. In addition, the very contents therein would

not inspire the confidence of the Court that it has been

actually drawn by a responsible Officer of the cadre of

Tahsildar. Though in the evidence of RW.3 and 4 they

have stated that the Tahsildar had asked them about

the customs and tradition of the people belonging to the
67

caste of respondent No.1, the details to that effect is not

found in the alleged mahazar. That apart even if a spot

mahazar relating to the caste is to be drawn, and in that

light the same is to be made the basis for issue of caste

certificate, one cannot ignore the procedure that is

enunciated by the Hon’ble Supreme Court in the case of

Madhuri Patil (supra). In the normal circumstance, if

the Tahsildar was holding a spot verification and

drawing a mahazar, the appropriate course ought to

have been to visit the house of the applicant, record the

statement of the family members and neighbours, verify

the school records and incorporate the same in the

mahazar. Instead the procedure as adopted to the

alleged mahazar is taken note, there is no reason as to

why if in fact the Tahsildar had visited the village, he

should have recorded the statement of RW.4 who even

as per his own statement had come to the said village.

That apart it does not contain the statement of any

other member of the same caste if there were residents

of the same caste in the village.

68

57. Therefore, the very nature of the documents

sought to be relied on and the explanation sought to be

put forth for the originals not being available due to

which copies are obtained, on the face of it would

indicate that the fabrication is writ large. Though the

copies of the other documents are sought to be relied

on, in the nature of the conclusion as reached on issue

No.1 and 2 and also the nature of consideration made

with regard to a second application not being

sustainable and further the very veracity of the manner

of consideration of the second application sought to be

established by the respondent No.1, it would indicate

that the caste certificate even if obtained by respondent

No.1 is by manipulation of records and the documents

cannot be accepted as established. The caste

certificates at Exhs.R-21 to 24 issued to the other family

members in such circumstance also will not have

evidentiary value in support of respondent No.1. The

Sumit Anand [(2005) 12 SCC 248], – wherein, on facts,

it was held that in view of the fact the father,
69

grandfather, mother and maternal uncle had all been

granted the certificate certifying that they belong to

“Gond” community, the respondent therein was also

entitled to the certificate, as relied by the learned senior

counsel for respondent No.1 is also of no assistance in

the present circumstance. In the instant case no

certificates of the predecessors are relied, but what are

relied are the certificates which are obtained in a similar

manner which are also in dispute.

58. The decision in the case of Ayaaubkhan

Noorkhan Pathan -vs- State of Mahrashtra and

others [(2013) 4 SCC 465], – wherein it is stated that

the Scrutiny Committee in ordinary circumstances

examined the matter and after investigation through its

vigilance cell and considering all the documentary

evidence on record and after being satisfied granted the

Evidence Act provided the Court to pronounce that the

decision taken by the Scrutiny Committee has been

done in regular course and the caste certificate has

been issued after due verification. It is held therein that
70

very strong material is required to rebut such

presumption and the onus of rebuttal lies on the person

who alleges that the act had not been regularly

performed or procedure required under law had not

been followed, relied on by the learned senior counsel

for respondent No.1 is also not of assistance in the

instant case wherein all the above stated discrepancies

are noticed. In that light the need to refer to the other

evidence would be unnecessary.

59. Further the respondent No.1 in an attempt to

establish that the order dated 27.03.2012 is passed by

PW.3 has sought to rely on the documents at Exhs.R.2

to R.5 and it is contended that pursuant to the orders

passed by the Deputy Commissioner, the Tahsildar has

thereafter held the proceedings and arrived at the

conclusion. Though such attempt is made by

respondent No.1, as already noticed the Tahsildars who

had worked during the relevant period viz., PWs.3 and 4

have been examined and they have disputed any order

being passed by them. In that circumstance when the

entire basis for the reliance on the caste certificate at
71

Ex.R.25 is the order dated 27.03.2012 and when

through the above discussion, I have already arrived at

the conclusion that the passing of such order is not

satisfactorily proved, the reliance placed on the other

documents including the caste certificate issued to the

family members as also the details as contained in

Ex.R.68 to indicate that the caste certificate was issued

to the other family members of the petitioner would also

not be justified. Further the register at Ex.P59 which is

marked by the petitioner to indicate that the entry

contained therein at Sl.No.130/11-12 is not a genuine

entry, which is on the other hand relied on by

respondent No.1 seeking to contend that such entry is

contained in the register, firstly it is seen that the said

entry sought to be relied on at Sl.No.130/11-12 is the

only entry in the register which is in the nature of an

order while in the said register all other entries is not of

that nature except to make an entry of the particulars.

Further the Tahsildar who was examined has also

stated that the entry in such nature in the register is

not made. In that background the complaint as made
72

by the Tahsildar against Sri M.Srinivas who was

examined herein by respondent No.1 as RW.8 would

also indicate the allegation that the said documents

have been inserted by him to aid the respondent No.1.

Respondent No.1 no doubt has relied on the document

at Ex.R65 which is a ‘B’ report filed after the

investigation was carried out pursuant to the complaint

lodged against Sri M.Srinivas.

60. A perusal of the document at Ex.R.65 no

doubt would disclose that on investigation it is reported

that no case is made out. In that regard the correctness

or otherwise of the report need not be gone into in the

instant proceedings inasmuch as the same if at all is to

be assailed is to be done in appropriate proceedings.

However, for the instant purpose what is necessary to

be taken note is that the ultimate conclusion herein is

with regard to the validity or otherwise of the caste

certificate even if issued in favour of respondent No.1 as

at Ex.R.25. In that regard as already noticed above, the

Tahsildars who had served during the period have been

examined as PWs.2, 3 and 4 and all of them have
73

denied that the caste certificate has been ordered to be

issued by them nor is it issued by them. From the

detailed cross-examination, nothing is elicited to

indicate that the said witness had in fact issued the

caste certificate. The same being one aspect of the

matter, insofar as the caste certificate being claimed by

respondent No.1 and even though a computer generated

copy is relied on, the proceedings as noticed will

disclose that in the circumstances where at an earlier

point the request for caste certificate had been declined

by a detailed order and the very nature in which the

subsequent application is said to have been made and

the proceedings thereto is sought to be relied on by

respondent No.1, it would indicate that the evidence as

noticed can only lead to the conclusion that no

appropriate procedure known to law has been followed

to order grant of caste certificate to respondent No.1

and in that view even if a certificate has been generated

from the electronic records, the same is without

appropriate basis and cannot be considered as a valid

caste certificate.

74

61. Further, respondent No.1 though has relied

on the documents at Exhs.R.41 to R.46 being the copies

of the deposition of the witnesses and the

communication of the DDPI relied on in the suit in

O.S.No.107/2012 the same would not be of any

assistance to respondent No.1 inasmuch as the suit has

ultimately been dismissed and even though an

observation is contained in the judgment thereto

relating to the consideration of the caste certificate

being made in the instant petition, the said witnesses

have not been examined before this Court to speak

about the caste status of respondent No.1. In fact while

considering the matter on Issue No.4 raised herein it

has been noted that except for the nature of the

evidence tendered through the witnesses who had been

examined, no reliable evidence to establish the caste of

respondent No.1 to belong to Budaga Jangama has

been tendered. From the very decision as relied on by

the learned senior counsel for the petitioner in the case

Swamy and others [(2005) 2 SCC 244] – wherein it is
75

held that therefore in any view of the matter, it cannot

be said that the High Court exercising the jurisdiction

election petition is precluded from going into the

question of status of a candidate or proceeding to make

an independent inquiry into that question in spite of the

production of a certificate under the Act. At best, such

certificate could be used in evidence and its evidentiary

value will have to be assessed in the light of the other

evidence let in, in an election petition. Therefore nothing

turns on the factum of a certificate being issued by the

authority concerned under the Act 1993. The Hon’ble

Supreme Court was also satisfied in that case that no

proper enquiry preceded the issuance of the certificate

and such certificate was issued merely the say so of the

appellant.

62. If that be the position, even though an

attempt has been made by respondent No.1 in seeking

to justify the caste certificate issued in his favour and

when major discrepancies in the procedure is noticed
76

and also when under Issue No.4 the respondent No.1

had an opportunity to tender independent evidence

before this Court to establish his caste status and he

has failed to do so, the benefit of caste certificate sought

to be relied on even if it was genuinely obtained would

not be available to respondent No.1, more particularly

in a circumstance where an earlier application had been

rejected taking into consideration the entries in the

school records relating to the caste of respondent No.1

and respondent No.1 having failed in the suit wherein

he had sought for rectification of the entries in the

school records. The said school documents being in the

same position will continue to militate against the

respondent No.1 and there being no other evidence

available on record, no other conclusion could have

been reached even if a subsequent application was filed

by him seeking for issue of the caste certificate. In that

view, the caste certificate as claimed to be relied upon

by respondent No.1 would be of no consequence

whatsoever.

77

63. Hence the issue Nos.2, 3 and 4 are

accordingly answered holding that the caste certificate

relied by the respondent No.1 is by playing fraud and as

such the respondent No.1 was not qualified to contest

the election from the constituency reserved for Schedule

Caste. Hence the acceptance of the nomination of the

respondent No.1 is illegal and has materially effected

the election result.

64. Insofar as the other issues, though the

learned senior counsel for the petitioner has relied on

Nadgouda vs. Vishwanath Reddy and another (AIR

Rudrappa Nadgouda (AIR 1969 SC 604) and

Kammeng Dolo vs. Atumwelly [(2017) 7 SCC 512] to

contend with regard to the manner in which the thrown

away votes are to be transferred to the petitioner and

declare the petitioner as elected and has also relied

upon the evidence as tendered with regard to the

pamphlets and the newspaper advertisements that had

been issued, at this juncture I do not find it necessary
78

to advert to the details in that regard inasmuch as the

term of the Legislative Assembly is to end shortly in

about a month and the calendar of events for the

election has already been announced.

65. Further though the learned senior counsel for

the petitioner has referred to the decisions in the case of

[(1996)5 SCC 312], to contend that the respondent No.1

had not subscribed to the oath and the nomination form

and in that regard has referred to the nomination form,

while on the other hand the learned senior counsel has

asserted that the oath has been subscribed to, the said

aspect also does not arise at this juncture since even if

the same was not raised as a issue nor pleaded, the said

aspect was not put to the respondent at least when he

was in the witness box, but has been raised only at the

time of argument. In that view, I do not find it

necessary to answer the said contention. Hence no

specific orders are made on Issue No.7 and 8.
79

66. For the aforestated reasons, the following:

ORDER

i) It is declared that the respondent No.1

belongs to Byragi caste.

ii) It is further declared that the respondent

No.1 has failed to establish that he belongs

to Beda (Budaga) Jangama caste and as

such the caste certificate dated 03.04.2012

relied upon is without the sanction of law.

iii) The acceptance of the nomination of

respondent No.1 and the consequent

declaration as elected to Karnataka

Assembly through certificate dated

08.05.2013 is declared illegal.

iv) The petition is accordingly allowed in part

with costs quantified at Rs.25,000/-.

Sd/-
JUDGE

akc/bms