Konda Raju is not a Konda Dora - not belongs to SC caste - Election declared as void - Secured less votes than the respondent not entitled for declaration as elected candidate =
On such facts, circumstances
and evidence, it has to be, therefore, concluded that the 1st respondent is
proved to be not belonging to a Scheduled Tribe and is, therefore, not qualified
to be chosen to fill a seat in the Legislative Assembly of the State of Andhra
Pradesh reserved for the Scheduled Tribes of the State, as he is not a member of
any of the Scheduled Tribes of the State of Andhra Pradesh.
The election petitioner
incidentally requested for being declared to have been duly elected in that
election from that constituency and obviously and admittedly, he did not receive
a majority of the valid votes polled in that election within the scope of
Section 101(a) of the Act and he cannot be considered to be falling within the
scope of Section 101(b) of the Act also, as the election of the 1st respondent
fails due to his disqualification, but not due to any corrupt practice. Even
otherwise, in such cases, such a relief is not ordinarily considered and suffice
to refer to Prakash Khandre v. Vijaya Kumar Khandre39, in which the Apex Court
had observed as follows:
"However, in an election where the elected candidate is declared to be
disqualified to contest election and there are more than two candidates
contesting election, there is no specific provision under the Act under which
the person who has secured the next highest number of votes could be declared as
elected. The Act is silent on this point.
Further, it cannot be presumed that
the votes secured by the disqualified elected candidates would have been wasted
or would have been secured by the next candidate who has secured more votes.
If
disqualified candidate was not permitted to contest the election then how the
voters would have votes in favour of the candidate who has secured more votes
than other remaining candidates would be a question in the realm of speculation
and unpredictability.
In such a situation, declaring the election of the
returned candidate on the ground of his initial disqualification to contest the
election by itself would not entitle the election petitioner or any other
candidate to be declared elected."
The relief to be granted herein has to be, therefore, confined to setting aside
the election of the 1st respondent with an appropriate consequential order on
the costs of the election petition.
Therefore, the election of the 1st respondent from 130-Kurupam Scheduled
Tribe Assembly Constituency to the Andhra Pradesh State Legislative Assembly as
declared on 16-05-2009
is declared to be void and the election petition is allowed to that extent and
is dismissed in respect of the declaration sought for
to declare the election petitioner as duly elected from the said Constituency in the said election.
The parties shall bear their own costs.
An authenticated
copy of this order be communicated forthwith to the Speaker of the Andhra
Pradesh Legislative Assembly and the Election Commission of India under Section
103 of the Representation of the People Act, 1951.
HON'BLE SRI JUSTICE G. BHAVANI PRASAD
Election Petition No.10 of 2009
21/08/2012
Nimmaka Jaya Raju
Janardhana That Raj Veera Vara Thodaramala and others
COUNSEL FOR THE PETITIONER: Sri Bojja Tarakam & Sri V. Raja Manohar
COUNSEL FOR 1ST RESPONDENT: Sri D. Prakash Reddy & Sri P. Kesavarao
^COUNSEL FOR 2 TO 6 RESPONDENTS: --
^COUNSEL FOR 7TH RESPONDENT: -- (Deleted from array of parties)
< Gist :
? CITATIONS:
1. (1995) 4 SCC 32
2. AIR 1959 SC 422
3. AIR 1954 SC 139
4. (2008) 2 SCC 186
5. (1982) 2 SCC 202
6. AIR 1983 AP 181
7. AIR 1988 SC 1796
8. (2006) 5 SCC 584
9. AIR 1977 Karnataka 115
10.A.I.R. 1927 Calcutta 229
11.AIR 2001 SC 2231
12.(2003) 8 SCC 204
13.AIR 1968 SC 1413
14.AIR 1973 SC 626
15.(1994) 6 SCC 241
16.(1997) 2 SCC 571
17.AIR 1997 SC 1199
18.AIR 1996 SC 1182
19.(1996) 4 SCC 431
20.AIR 1969 SC 597
21.AIR 1965 SC 1269
22.AIR 1965 SC 1557
23.(1980) 3 SCC 169
24.1984 (Supp.) SCC 77
25.AIR 2001 SC 393
26.(1996) 3 SCC 585
27.(1996) 3 SCC 576
28.(2008) 9 SCC 54
29.AIR 1959 SC 1318
30.2004(4) ALT 14
31.2005 AIR SCW 6197
32.2006 (5) ALT 289
33.2001 (6) ALD 582 (FB) = 2001 (6) ALT 433
34.2011 (1) ALT 789
35.(2000)6 SCC 359
36.AIR 1968 SC 929
37.(2010) 9 SCC 712
38.(1981) 4 SCC 487
39.(2002) 5 SCC 568
ORDER:
An election petition under Section 81 read with Section 5(a) and Section
100(1)(a) and (d)(i) of the Representation of the People Act, 1951 (for short
"the Act") to declare the election of the 1st respondent to 130-Kurupam (S.T.)
Assembly Constituency to be null and void, set aside the same and declare the
petitioner to have been duly elected as Member from that Constituency under
Section 84 of the Act.
2. The petitioner claims to have contested the election to 130-Kurupam (S.T.)
Assembly Constituency held on 16-04-2009 as the candidate of Praja Rajyam Party,
while the 1st respondent contested as the candidate of Indian National Congress
Party and respondents 2 to 6 are the other contesting candidates from other
parties or as independents.
While the 1st respondent secured 48,493 votes, the
petitioner secured 33,440 votes and the 1st respondent was declared elected on
16-05-2009.
The petitioner claims to be belonging to 'Jatapu Tribe' included in
the Scheduled Tribes Order, 1976 in relation to the State of Andhra Pradesh.
The 1st respondent is 'Kshatriya', which is not included in the List of Scheduled Tribes concerning the State of Andhra Pradesh.
The family of the 1st
respondent who is a permanent resident of Parvathipuram, Vizianagaram district,
hails from Addapusila in Parvathipuram Mandal and is originally a zamindari
family of Belgam Estate.
In the Manual of the District of Vizagapatnam in the
Presidency of Madras, published by the State Editor, District Gazette, Hyderabad, Andhra Pradesh in Chapter-XII relating to Belgam Family and Estates at page 327, it is mentioned that the family belongs to 'Hill Rajah' (Konda Raju) caste.
In 2004(4) ALT 14,
the High Court referred in paragraph 84 to the
Manual of District of Vizagapatnam in the Presidency of Madras, compiled and
edited by D.F. Carmichael, which was reprinted in 1869 and referred to Hill
Zamindaris from pages 322 to 332 mentioning the caste to which the respective
zamindars belong.
Belgam Zamindar was shown as 'Konda Raju' and the 1st
respondent is, therefore, not qualified to contest from 130-Kurupam (S.T.)
Assembly Constituency, reserved for Scheduled Tribes, since he is not a member
of any of the Tribes in the State of Andhra Pradesh.
The family of the 1st
respondent described themselves as 'Kshatriyas' in registered documents Nos.132
of 1945, 419 of 1945 and 1294 of 1947 executed by the real brother of the 1st
respondent's grand father, 821 of 1948 executed by the great grand father of the
1st respondent, 1909 of 1962 executed by the great grand father of the 1st
respondent and another registered document, dated 07-05-1957 executed by the 1st
respondent's ancestor.
In the last two documents, the 1st respondent's father
was a signatory.
The mother of the 1st respondent also hailing from 'Kshatriya'
caste is the sister of Sri Satrucharla Vijaya Rama Raju, who was declared in
Election Petition No.13 of 1999 as not belonging to any Scheduled Tribe in
Andhra Pradesh State, but belonging to 'Kshatriya' caste.
This petitioner is
the petitioner therein and the judgment was confirmed by the Supreme Court in a
decision reported in 2005 AIR SCW 6197. The 1st respondent's mother is the
Chairperson of the Parvathipuram Municipality, having been elected from Ward
No.26, reserved for Scheduled Tribe, on which the petitioner filed a petition
before the District Collector, Vizianagaram to enquire into the social status of
the mother of the 1st respondent under the Andhra Pradesh (Scheduled Castes,
Scheduled Tribes & Backward Classes) Regulation of issue of Community
Certificate Act, 1993 and Rules 1997 and the petitioner filed W.P. No.27217 of
2008 complaining against the inaction of the Collector.
The High Court directed
on 28-01-1999 the District Collector, Vizianagaram to take final decision before
15-05-2009 and the enquiry is pending. Though the petitioner objected to the
nomination of the 1st respondent, the 7th respondent rejected the said objection
and 'Kshatriya' caste was not included in part-I of the Schedule relating to the
State of Andhra Pradesh under the Scheduled Castes and Scheduled Tribes Orders
(Amendment) Act, 1976 or the 1993 State Act or in the earlier List prepared in
1950.
The 1st respondent styling himself as a person belonging to Scheduled
Tribe, deprived the people of 130-Kurupam (S.T.) Assembly Constituency of
getting a Scheduled Tribe person elected as their representative, by playing
fraud and hence, the election petition.
3. The 1st respondent in his written statement claimed that originally he
belongs to 'Konda Dora' community, which is one of the several sects in
Scheduled Tribes.
Jagannadha Patro was the prepositor of the family, whose son
Somasundara Narayana Patro was granted Sannad/grant making him the then zamindar
of Belgam Estate from 1803 to 1814.
His son Dhanunjaya-I was the zamindar from
1814 to 1849. His younger brother Vishwambara was the zamindar since his death
till 1865. Narayana Ramachandra, his son, was the zamindar from 1865 to 1882
and his adopted son Shiva Narayana was the zamindar from 1882 till his death.
Then Dhanunjaya-II was the zamindar till his death in 1888 issueless and there
was a dispute regarding succession to the Estate between the children of
Chandrashekhara Thatraj, the second son of Shivanarayana.
The dispute between
Suryanarayana and Sundara Narayana was resolved making both the persons succeed
to their Estate with Suryanarayana succeeding to the Parvathipur Estate (HUNDA)
and Sundaranarayana succeeding to Belgam Estate (HUNDA).
Sundaranarayana was
succeeded to the Estate by Janardhana, the eldest son, while the second son
Bhavanarayana had a son Venkateshwara Prasad who died issueless. Janardhana is
the great grand father of the 1st respondent, whose son Pratap Chandra succeeded
him and during the life time of Pratap Chandra, the grand father of the 1st
respondent, the estates were abolished under a Statute. Pratap Chandra had two
sons, Satya Prasad-the father of the 1st respondent, and Ananth Narayana-the
father of Laxmi Kumar. The 1st respondent has four brothers including himself
and two sisters--Sundaranarayana, Chandrasekhar, Janardhan, Naresh Kumar,
Jyothsna, Hari Priya and himself.
The 1st respondent, thus, belongs to 'Konda
Dora' sect/tribe, which is a Scheduled Tribe.
The 1st respondent stated that he
belongs to 'Konda Raju' caste, which is enumerated as a sub-caste of 'Konda
Dora' community under the Scheduled Tribes category. The rites and customs of
the community from times immemorial would also indicate that the 1st respondent
is a member of Scheduled Tribe, like re-marriage of the elder brother's widow to
the younger brother or the lady members of the family wearing beads or customary
divorce by the caste elder or acceptance of 'Gandharva' form of marriage or
speaking in Oriya and Telugu languages or worshiping Goddesses like Durga,
Talupulamma Thalli, Lappala Polemma and Jakari or eating pork and mutton or
drinking in family occasions or burning dead bodies or observing 'Menarikam'
marriages.
The 1st respondent further submitted that one Nishada was the
prepositor of the Scheduled Tribes, who had five sons, the inter-marriages
between whose descendents led to formation of different castes and sub-castes,
one of which being 'Konda Dora', which has several sub-castes, including 'Konda
Raju', which is a Scheduled Tribe.
The 1st respondent further claimed that
Vishwambora Deo of Jaipur (Jeypore) was the main zamindar with several fiefs
under him recognized as incharges of different hill areas, which were
subsequently recognized and developed into estates by virtue of grants. The
family of Belgam Estate belongs to 'Konda Raju' caste and Veeravara Thodaramallu
That Raj Jagannath Patro was the Dewan of Ramachandra Deo of Jaipur (Jeypore)
and in 1796, fourteen villages in the neighbourhood of Parvathipur were taken
from contiguous hill zamindars and were given for life to his son Somasundara
Narayana Patro in acknowledgement of his father's services. The same was
converted into a Hill Zamindari tenure and the successors of Somasundara
Narayana Patro succeeded to the Hill Zamindari till its abolition under the
Andhra Pradesh Estates Abolition and Conversion into Ryotwari Act, 1948. The
1st respondent, thus, belongs to 'Konda Raju' sub-caste in 'Konda Dora'
community, which is a Schedule Tribe community. The 1st respondent and his
family were always treated as members of Scheduled Tribe and were issued caste
certificates by the concerned authorities as such and after the Andhra Pradesh
(Scheduled Tribes, Scheduled Castes & Backward Classes) Regulation of Issue of
Community Certificate Act, 1993 and Rules 1997, all the family members of the
1st respondent were given permanent/life certificates. The status of the 1st
respondent and all other family members was shown as 'Konda Dora' by caste in
all the school and college records and certificates. Fee concessions and
scholarships were extended to them as such and in various suits filed by the
family members, exemption from paying Court fee was claimed and given as per
G.O.Ms. No.381 of 1968. In O.S. No.21 of 1989, one of the family members of the
agnates of the 1st respondent filed a suit for declaration about belonging to
'Konda Dora' family and a consequential injunction specifically claiming through
the Hill Zamindar of Belgam. It was specifically pleaded that the description
of the plaintiffs therein and other family members as 'Kshatriyas' was only a
description of status as rulers of the Hill zamindaris and they referred to
"Caste and Tribes of South India" by Edgard Thurston referring to the Hill
zamindars as the Hill Tribes, also called as 'Konda Rajus', while the District
Collector and the Mandal Revenue Officer defending the suit denied the claim in
their written statements. The suit was decreed after an elaborate enquiry on
06-07-1993 holding the plaintiffs therein to be belonging to 'Konda Dora'
community and the suffix by name 'That Raj' was not Raju. The persons belonging
to the community of the 1st respondent have similarly approached the High Court
with writ petitions for similar reliefs, which were granted and even the
documents executed by the 1st respondent's family members, their pattadar
passbooks and title deeds mentioned them to be belonging to 'Konda Dora' caste.
The census of Government of India of 1891, 1901 and 1931 also showed 'Konda
Dora' caste to be a Scheduled Tribe with various sub-castes including 'Konda
Raju'. When the 1st respondent's father contested in 1977 for Parvathipuram
Assembly constituency, reserved for the Scheduled Tribes, nobody raised a
similar objection. In 2006 elections to Zilla Parishad Territorial
Constituency, the petitioner and the 1st respondent contested from Jiyamma-
valasa Mandal as Telugu Desam and Indian National Congress nominees respectively
and the objection of the petitioner regarding the social status of the 1st
respondent at the time of scrutiny of nominations, was overruled. After the 1st
respondent defeated the petitioner in the election, the petitioner did not file
any election petition questioning the election of the 1st respondent,
particularly questioning his social status, which amounts to waiver and
acquiescence making the principle of estoppel operate against the petitioner.
The 1st respondent's mother was elected unanimously from 26th Ward of
Parvathipuram Municipality in the elections in 2005 and the said Ward was
reserved for Scheduled Tribe Community and her election was not disputed by
anybody. She was later elected as a Chairperson of the Municipality.
Descriptive particulars mentioned in the registered documents will not, in any
manner, indicate and decide the status of any individual merely because of the
description by the document writer. The word 'Kshatriya' is only a description
of the status as ruler of the area. The judgment in E.P. No.13 of 1999,
confirmed in C.A. No.1102 of 2004 is a judgment in personam and not judgment in
rem and will not operate as res judicata, more so as each election petition has
a fresh cause of action. The allegations of the petitioner are specifically
denied and the 1st respondent claimed the election petition to be without merits
and requested for its dismissal with exemplary costs.
4. The returning officer impleaded as the 7th respondent, filed a written
statement before E.P.M.P. No.464 of 2010 was allowed and the 7th respondent was
deleted from the array of parties on 30-07-2010. The 7th respondent stated in
the written statement that No.130-Kurupam (S.T.) Assembly Constituency is
exclusively reserved for Scheduled Tribes and on 31-03-2009 the petitioner filed
an objection petition before the 7th respondent alleging the community
certificate of the 1st respondent to be invalid, since he is nephew of
Satrucharla Vijaya Rama Raju and the 1st respondent to be not entitled to
contest as a Scheduled Tribe candidate. The 7th respondent cross-checked the
caste certificate issued by the Revenue Divisional Officer, Parvathipuram in
favour of the 1st respondent and finding it to be genuine, overruled the
objection of the petitioner. A certified copy of the decision of the 7th
respondent was served on the petitioner on the same day.
5. The following issues were settled for trial and determination of the
election petition.
(1) Whether the 1st respondent does not belong to a schedule tribe ?
(2) To what relief ?
6. P.Ws.1 to 5 and R.Ws.1 to 6 were examined and Exs.P.1 to P.11 and R.1 to
R.42 are marked.
7. Sri Bojja Tarakam, learned senior counsel and Sri V. Raja Manohar, learned
counsel for the petitioner and Sri D. Prakash Reddy, learned senior counsel and
Sri P. Kesavarao, learned counsel for the 1st respondent are heard. Respondents
2 to 6 did not enter appearance in person or through counsel.
8. Issue No.1:
The election petitioner as P.W.1 claimed that he and respondents 1 to 6
contested the election to No.130-Kurupam (S.T.) Assembly Constituency in the
general elections to the State Legislative Assembly held on 16-04-2009. The 1st
respondent was declared elected and he does not belong to Schedule Tribe, but is
a 'Kshatriya' by caste, the objections of the election petitioner in this regard
having been rejected by the 7th respondent. The petitioner further claimed that
he filed Election Petition No.13 of 1999 challenging the election of Satrucharla
Vijaya Rama Raju from Naguru constituency in 1999 and the High Court declared
him to be not belonging to any Schedule Tribe, which was confirmed by the
Supreme Court. The 1st respondent is the son of the sister of Sri Satrucharla
Vijaya Rama Raju by name Veera Vara Thodaramal Narasimha Priya Thatraj, at
present Chairperson of Parvathipuram municipality, having been elected from Ward
No.26 of Parvathipuram municipality, reserved for Scheduled Tribes. The
petitioner claimed that the forefathers of the 1st respondent belong to
Addapusila village of Parvathipuram Mandal and the family are zamindars of
Belgam. The 1st respondent contested against him in the Zilla Parishad
Territorial Constituency elections in 2006 and Satrucharla Chandrasekhara Raju,
the junior maternal uncle of the 1st respondent opposed him in 1994 elections.
The petitioner produced registration extracts of documents claimed to have been
executed by the forefathers of the 1st respondent, marked as Exs.P.1 to P.10
with the father of the 1st respondent joining as the fourth executant in the
original of Ex.P.9. He also filed Ex.P.11 certificate obtained by him from the
Principal of Maharajah's College, Vizianagaram concerning the father of the 1st
respondent. He admitted that in 1994 elections, he did not raise any objection
about Satrucharla Chandrasekhara Raju not belonging to a Scheduled Tribe. He
also admitted that he supported Sri Satrucharla Vijaya Rama Raju, when he
contested as Telugu Desam candidate from Parvathipuram Lok Sabha Constituency,
reserved for Scheduled Tribes. He further admitted that the objection against
the Scheduled Tribe status of Satrucharla Chandrasekhara Raju in Zilla Parishad
Territorial Constituency elections in 2000-2001, was not sustained by the
returning officer. The election of the 1st respondent's mother from Ward No.26
of Parvathipuram Municipality was also admittedly not challenged and he further
admitted that Zilla Parishad Territorial Constituency from Jiyamma-valasa Mandal
was reserved for Schedule Tribes, for which the 1st respondent won against him
in 2006, which election he did not challenge by way of any election petition,
though he claimed to have raised an objection at the time of scrutiny of
nominations. He does not know whether the members of the 1st respondent's
family were availing the benefits available to the members of Scheduled Tribes
in education or legal proceedings. He admitted the decision of the 7th
respondent against his objection, dated 31-03-2009 and he claimed to be knowing
about the Hill Zamindari families of the area. Satrucharla Chandrasekhara Raju
and Vijaya Rama Raju belonged to Merangi Hill Zamindars family, while Vyricherla
Kishore Chandradev, Parliament Member from Araku, belongs to Kurupam Hill
Zamindari family. P.W.1 further claimed that Kishore Chandradev was announced
by the Collector to be belonging to a Scheduled Tribe and he asserted that
persons of Merangi family are treated socially in the area as 'Kshatriyas'.
Families of Hill Zamindars were stated to be having no marital relationship with
the persons belonging to Scheduled Tribes and as they were ruling the areas and
were widely accepted socially as rulers, they are believed to be 'Kshatriyas'.
P.W.1 also asserted that they were never described as 'Konda Doras in their
documents, but were described as 'Kshatriyas', which was the basis for his
claim. While he does not know whether there are sub-castes among 'Kshatriyas'
or whether 'Konda Rajus' come under 'Kshatriya' community or not, he stated that
to the best of his knowledge there is no Tribe by name 'Konda Raju'. 1891
Census did not contain any sub-caste 'Konda Raju' under 'Kshatriya' caste. He
claimed to have filed the election petition on the basis of Exs.P.1 to P.11 and
he did not take recourse to any proceedings challenging the Scheduled Tribe
certificate issued to the 1st respondent nor did he take any steps for
cancellation of the same. He denied that the surname 'Thatraj' exists for the
families in Bissamkatak, Ganjam district and in Savara community and
specifically in Gummalakshmipuram Mandal of Vizianagaram district. He also
claimed that there is one 'Thatraj' in Savara community with surname 'Beddika'.
Belgam is said to be part of Parvathipuram town and he denied the executants of
the originals of Exs.P.1 to P.10 being not connected or related, in any manner,
to the family of the 1st respondent. While stating 'Konda Doras' to be
predominantly an agricultural community, he spoke about the customs of 'Illu
Chupulu' and 'Pappu Koodu' for settlement of a marriage. He also stated that
the families will be drinking 'Vippa Sara' during festive occasions for 'Konda
Devatas'. 'Menarikam' marriages are performed in 'Konda Dora' tribe. The
practice of customary divorce before caste elders is also among the Tribe. He
denied any manipulation in obtaining Ex.P.11 certificate and 1891 census shown
to him showed 'Konda Dora' in Group No.4, Class-A, while 'Kshatriya' caste was
shown in Class-A of Group No.1 and 'Konda Raju' was mentioned as one of the sub-
castes of 'Konda Dora'. The various 'Rajas' representing Hill Estates came
originally under the kingdom of Maharaja of Jeypore and the various titles of
the Hill Estate holders were conferred by Maharaja of Jeypore. P.W.1 does not
know whether the 1st respondent and his brothers and sisters were shown in the
school and educational records as belonging to 'Konda Dora' tribe and whether
community certificates were issued to them as such before and after A.P. Act 16
of 1993.
9. P.W.2, Principal of Maharajah's College, Vizianagaram, working in the
college since 30 years, produced the admission register of the college for the
academic year 1962-63 to state that the 1st respondent's father was admitted in
the college on
22-06-1962 and he was mentioned as 'Kshatriya'. He also stated that he issued
Ex.P.11 certificate on the basis of the college records in response to an
application under the Right to Information Act. The entry relating to the 1st
respondent's father in the register was at serial No.656 and denied the entry
being in different handwriting than the other entries. While admitting that he
has no personal knowledge about the authorship and correctness of the entries,
he explained that the entries in the admission register are made on the basis of
the contents in the certificates enclosed to the applications. He also stated
that the entry at serial No.97 relating to the 1st respondent's father has a
correction in name, endorsed to be on the basis of the Matriculation record of
Andhra University. He denied manipulation of the entries in the admission
register or issuing of Ex.P.11 based on such manipulated entries. Ex.R.1 is
xerox copy of entries relating to serial No.656 in the admission register.
10. P.W.3, the Sub-Registrar of Parvathipuram, spoke about Exs.P.1 to P.10
registration extracts being issued by their office. While admitting that the
caste or tribe of the parties to a document are not required for execution, he
had no personal knowledge about the contents of Exs.P.1 to P.10 and was not
present at the time of registration.
11. P.W.4 claiming to be knowing the family of the 1st respondent, stated that
they are 'Kshatriyas' and have no relationship with the members of 'Savara'
Schedule Tribe to which he belongs. He stated that among the Scheduled Tribes,
there are only 'Konda Doras' and no 'Konda Rajus' and there are only four
Scheduled Tribes in their area, 'Savara', 'Gadaba', 'Jatapu' and 'Konda Dora'.
Though he denied any interest in politics, he had to admit being involved in
them and his only acquaintance with the 1st respondent was during his
campaigning.
12. P.W.5 claiming to be belonging to 'Konda Dora' community, a Scheduled
Tribe, claimed the family of the 1st respondent to be 'Rajus'/'Kshatriya Rajulu'
and have no relation with anybody belonging to 'Konda Dora' Scheduled Tribe.
However, he does not have any acquaintance with the 1st respondent, except that
he was coming during various elections.
13. The 1st respondent as R.W.1 claimed to be belonging to 'Konda Raju' caste,
enumerated as one of the sub-castes in 'Konda Dora' community under Scheduled
Tribes. While he reiterated the contents of his defence in the written
statement, he stated that he and his family members were always treated as
members of Scheduled Tribes. He claimed that any descriptive particulars in
registered documents cannot indicate and decide the status of any individual.
He produced Exs.R.1 to R.10 caste certificates of himself and his family
members, Exs.R.11 to R.14 attested copies of transfer certificates of himself
and his family members, Exs.R.15 to R.19 certified copies of decrees in suits
signifying exemption from payment of Court fee, as they belong to Scheduled
Tribe, Ex.R.20 certified copy of the judgment and decree in O.S. No.21 of 1988
(1989), wherein the Government stated in defence that the suffix 'Thatraj'
signifies the Hill Zamindars of Parvathipuram and Belgam Estates being 'Konda
Doras', Exs.R.21 to 23 certified copies of the documents by the family members
signifying that they belong to 'Konda Dora' Tribe, Exs.R.24 to R.33 attested
copies of census index and report from 1891 to 1951, Ex.R.34 original
matriculation certificate of his father, Ex.R.35 attested copy of the
Vizagapatnam District Manual, Ex.R.36 the attested copy of Vizagapatnam District
Gazette of 1907, Exs.R.37 to R.41 attested copies of the caste certificates of
the members of his family and Ex.R.42 certified copy of the suit extract in O.S.
No.42 of 1976. The 1st respondent stated the word 'Thatraj' to be a title
conferred on his family by Maharaja of Jeypore. He does not know the meaning of
the words 'Thatraj' or 'Thodaramallu' or 'Patro' and he stated that 'Patro' is
used by people of all castes. R.W.1 stated his elder brother to have been
married to Smt. Usha Rani, grand daughter of Hill Zamindar of Pachi Penta, who
are 'Konda Doras'. He also claimed his other sister-in-law Smt. Ramani to be
belonging to a backward caste and her marriage to be a love marriage. His
sister Jyosthna Devi was married to Varahala Raju in a love marriage and
Varahala Raju belongs to O.C. community and they are called as 'Rajus'. Hari
Priya, the other sister, was also married to an Army person, whose details he
does not know. R.W.1 also stated that the only surviving sister of his father
is living in Dugini of Bihar State and she did not remarry after the death of
her husband. He does not remember whether any women in their family had
remarriage after the death of their husbands, but he stated that there is no
woman in the family who obtained divorce. He claimed to be worshiping Goddess
Jakari, Ippala Polemma and Durga and he claimed that there are 74 sub-castes
among 'Konda Doras' and 'Konda Raju' is a sub-caste in Schedule Tribe. He
stated that the parents of his mother belonged to China Merangi and he did not
know the place of origin of his maternal grand mother. R.W.1's mother was
admitted to have two brothers, Satrucharla Vijaya Rama Raju and Satrucharla
Chandra Sekhara Raju who are also 'Konda Doras', a Scheduled Tribe and he
claimed that the election of Satrucharla Vijaya Rama Raju was set aside by the
Supreme Court, as he failed to obtain the certificate within time and he denied
Vijaya Rama Raju being decided to be a 'Kshatriya' and not 'Konda Dora' by the
Supreme Court. He admitted that a petition to declare his mother to be not
belonging to a Scheduled Tribe is pending before the District Collector and he
denied any names suggested to him being members of his family and he denied
knowing the names or persons involved in Exs.P.1 to P.10 and claimed that there
are 2 or 3 other families in the village in Belgam with suffix 'Thatraj'. He
claimed ignorance about any documents executed by his grand father describing
himself as 'Kshatriya' and he also claimed to be having certificates showing his
parents as 'Konda Doras' like Ex.R.9 of his father. While not knowing whether
there were any certificates indicating their tribal status prior to the
Constitution in 1950, he does not know whether there is any relationship between
their family and about 400 families belonging to 'Konda Dora' tribe living in
the area. He admitted that to his knowledge, except the alliances with the
family of Pachi Penta Zamindars and the family of China Merangi Zamindars, there
are no alliances between their family and other families in the area.
14. R.W.2 is the father of the 1st respondent, who claimed that they belong to
'Konda Dora' Tribe having certificates to that effect and that he contested as a
Member of Parliament from Parvathipuram Parliamentary Constituency in 1977,
which was reserved for Scheduled Tribes and nobody objected to his social
status. While admitting that their family has no relationship with the other
'Konda Dora' Tribe families of Belgam and Addapusila, he claimed 'Patro' to be
their surname and 'Thatraj' to be a title given by Maharaja of Jeypore. He
again stated that they are 'Konda Rajus', a sub-sect of 'Konda Doras' and are
not 'Kshatriyas'. He stated that the word 'Konda Raju' containing the word
'Raju' is used as they are zamindars, but they are part of 'Konda Doras'. He
also had no personal knowledge about the custom of widow marriage. But he
claimed that after his sister's elder son died after marriage, his widow married
his sister's younger son. While he did not observe whether the ladies in other
families also wear beads, he admitted that Satrucharla Viyaja Rama Raju, the
brother of his wife, could not prove his tribal status before the High Court and
the Supreme Court in an election dispute, wherein he also gave evidence. He
could not say whether the High Court or the Supreme Court did not believe his
evidence and he admitted the contents of Ex.P.11 to be correct, except with
reference to mentioning his caste as 'Kshatriya'. While he denied knowing any
of the names suggested to him, he claimed ignorance about his father describing
himself as 'Kshatriya' in the original of Ex.P.9 and he also claimed ignorance
about the original of Ex.P.10 executed during his minority. He stated his
daughters to have undergone inter-caste love marriages and his eldest daughter-
in-law to be belonging to Pachi Penta Hill Zamindari family who are also 'Konda
Doras' and called as 'Muka Doras'. He claimed all his six children to have been
admitted in schools after producing the caste certificates issued by the Revenue
department, but he did not show his own caste certificate to the school
authorities. He admitted that a complaint made to the Collector about his wife
not belonging to Scheduled Tribe is pending enquiry.
15. R.W.3 claiming to be belonging to 'Konda Dora' Tribe, spoke about the
caste customs and practices and claimed to be related to the family of R.W.1
since the times of their forefathers. The mothers of their paternal grand
fathers were stated to be sisters and the family of R.W.1 was stated to be
belonging to 'Konda Dora' tribe. R.W.3 has no idea about the alliances for the
marriages in R.W.1's family and he gave his version of the families of 'Konda
Dora' Tribe in the area, the names in those families, their practices, etc.
16. R.W.4 claiming to be belonging to 'Konda Dora' tribe and to be related to
R.W.1's family since forefathers stated that his elder sister was given in
marriage to Anantha Narayana Thatraj, the junior paternal uncle of R.W.1. He
stated that 'Konda Raju' is the sub-caste of 'Konda Dora' and R.W.1's family is
also called as 'Konda Rajus'.
17. R.W.5, a former Sarpanch and person incharge of Kondavada panchayat,
claimed the 1st respondent to be belonging to 'Konda Dora' Tribe and to be
inviting the 1st respondent whenever there was need for discussions and
agitations over the rights of Girijans.
18. R.W.6 claimed the 1st respondent to be belonging to 'Konda Dora' Tribe and
to be related to him but he does not know the names of the mother or maternal
grand father of the 1st respondent.
19. In the background of such oral evidence, the issuance of Exs.P.1 to P.10
registration extracts by the office of the Sub-Registrar, Parvathipuram, as
spoken to by the present Sub-Registrar as P.W.3, can be taken as probablised and
though P.W.3 had no personal knowledge of the contents of Exs.P.1 to P.10 and
was not present at the time of registration of the originals of Exs.P.1 to P.10,
in the absence of any challenge otherwise, Exs.P.1 to P.10 can be accepted to be
registration extracts of the original documents registered in the office of the
Sub-Registrar at Parvathipuram.
20. Similarly, the evidence of P.W.2 is about Ex.P.11 certificate issued on
the basis of the records of Maharajah's College, Vizianagaram and Ex.R.1 xerox
copy of the entries in the admission register of 1962-63 relating to serial
No.656 along with other entries. Though P.W.2 had no personal knowledge whether
any enclosed certificates to the application of the 1st respondent's father at
the time of his admission were returned to him or not, the college issued
Ex.P.11 in response to an application under Right to Information Act and there
is no reason to suspect the manner of issuance of Ex.P.11. P.W.2 denied the
entry at serial No.656 relating to R.W.2 to be in different handwriting than the
other entries and a perusal of the entries in Ex.R.1 with a naked eye does not,
in any manner, suggest any significant difference in the handwriting and the
very manner of the entries does not even remotely suggest the probability of any
subsequent insertion or manipulation of such entries except that the entry
relating to R.W.2 appeared to be thicker. P.W.2 having no personal knowledge of
the entries at serial Nos.656 to 659 in Ex.R.1 in 1962-63, is but natural. As
to why the college or P.W.2 should resort to any manipulation regarding R.W.2,
is unintelligible and from any suggestions made concerning the entries in
Ex.R.1, there is no reason to suspect the genuineness of Ex.P.1, the contents of
which were based on the college records.
21. While the evidence of P.W.1 and R.Ws.1 and 2 is tainted with
interestedness, the other witnesses are attempted to be projected as
independent. Out of them, P.W.4 shown to be a politician from his admissions,
attempted to claim to be disinterested in politics and his only acquaintance
with the 1st respondent was during his campaigning in the elections. Similar
was P.W.5 whose acquaintance with the 1st respondent was only due to the 1st
respondent coming during various elections and he did not know anything else.
R.W.3, who claimed that the mothers of paternal grand fathers of R.W.1 and
himself are sisters, attempted to state that 'Thatraj' family is never called as
'Rajus' or 'Konda Rajus' contrary to the own claims of R.Ws.1 and 2 and he had
to admit that there are no other families in 'Konda Dora' Tribe with surname
'Thatraj' in their village. R.W.4, who claimed that his elder sister was given
in marriage to Anantha Narayana Thatraj, the junior paternal uncle of R.W.1, on
the other hand, stated that R.W.1's family is also called as 'Konda Rajus' and
'Konda Raju' is a sub-caste of 'Konda Dora'. R.W.6 also claimed to be related
to the 1st respondent, but he does not even know the name of the mother or
maternal grand father of the 1st respondent. While the relationship with the
1st respondent may suggest the evidence of R.Ws.3, 4 and 6 to be not independent
or disinterested, such vague and indefinite oral evidence as that of P.Ws.4 and
5 and R.Ws.3 to 6 is easy to procure and difficult to refute. Too strong
reliance cannot be placed on such evidence to conclude the probablisation of any
fact from such evidence. While R.Ws.3, 4 and 6, being members of Scheduled
Tribe was stated on oath and their claims of being related to the 1st
respondent's family, cannot be straight away brushed aside, the evidence of
P.Ws.4 and 5 and R.W.5 has no verifiable link to act upon their claims about the
1st respondent's social status. Under the circumstances, the oral evidence
including that of P.W.1 and R.Ws.1 and 2 needs to be tested with reference to
the documentary evidence, while the evidence of P.Ws.2 and 3 shows the need to
appreciate the effect of the contents of Exs.P.1 to P.11 without refusing to
consider them. It should be borne in mind as held in Director of Tribal
Welfare, Government of A.P. v. Laveti Giri and another1, that the burden of
proof of social status is always on the person who professes it to seek
constitutional, social, economic advantages. It should also be remembered that
Veluswami Thevar v. Raja Nainar and others2 laid down that an election petition
is an original proceeding with a right to file written statements by way of
reply to it, framing of issues and right to adduce evidence for the parties.
22. Ex.P.1 registration extract of the sale deed No.132/1945, dated 20-01-1945
was executed by Durga Prasad Thatraj, Chandrasekhar Thatraj and Suryanarayana
Thatraj, who described themselves as 'Kshatriyas' and who were stated by P.W.1
to be related to the 1st respondent on the paternal side. Ex.P.2 registration
extract of the sale deed No.419 of 1945 was executed by Suryanarayana Thatraj,
Janardhana Thatraj, Pratap Chandra Thatraj and Narasimha Narayana Thatraj
describing themselves as 'Kshatriyas' and P.W.1 claimed that the great grand
father of the 1st respondent was one of the executants and Janardhana Thatraj
and Pratap Chandra Thatraj figure in the genealogical tree of Belgam Hill
zamindars prepared on behalf of the 1st respondent. Document No.1294 of 1947
marked as Ex.P.3 was also claimed by P.W.1 to be by a person who is grand father
to the 1st respondent by relationship on paternal side who described himself as
'Kshatriya'. Sundara Narayana Thatraj, Janardhana Thatraj and Pratap Chandra
Thatraj were claimed to have executed the original of Ex.P.4 No.821 of 1948 and
P.W.1 claimed the great great grand father of the 1st respondent to be the
executant, who described themselves as 'Kshatriyas'. Ex.P.5 document No.1437 of
1945 had V.T. Janardhana Thatraj, Pratap Surya Chandra Thatraj and
Narasimhanarayana Thatraj as the executants who described themselves as
'Kshatriyas'. Similar was Ex.P.6 document No.419 of 1945 executed by Janardhana
Thatraj, Sundara Narayana Thatraj and Narasimhanarayana Thatraj. Sundara
Narayana Thatraj, son of Janardhana Thatraj appeared to be the executant of the
original of Ex.P.7 document No.1256 of 1947 and P.W.1 claimed the executant to
be the junior paternal grand father of the 1st respondent who described himself
as 'Kshatriya'. Ex.P.8 document No.468 of 1951 was also claimed to have been
similarly executed by a person related to the 1st respondent on the paternal
side. Ex.P.9 document No.1499 of 1953 was claimed to have been executed by the
paternal grand father of the 1st respondent describing himself as 'Kshatriya'
and R.W.2 was the fourth executant of the said document. Ex.P.10 document
No.1744 of 1955 was also claimed to have been executed by the paternal grand
father of the 1st respondent describing himself as 'Kshatriya'. During the
cross-examination of P.W.1, it was suggested that none of the executants of the
originals of Exs.P.1 to P.10 are connected, in any manner, with the family of
the 1st respondent, but R.W.2, the father of the 1st respondent, admitted that
the originals of Exs.P.9 and P.10 were executed during his minority and he does
not know about any recitals therein, including as to whether his father
described himself as a 'Kshatriya'. He also does not know about the execution
of the original of Ex.P.5 and claimed ignorance about the names of various
persons suggested to him. While R.W.2, thus, did not contradict the execution
of the originals of Exs.P.9 and P.10, the 1st respondent himself claimed
ignorance about who executed the originals of Exs.P.1 to P.10 and though he
denied the others connected with Exs.P.1 to P.10 being connected with his
family, he admitted the names of his father, grand father and great grand
father. In his affidavit in lieu of chief-examination, there was no specific
reference to Exs.P.1 to P.10 filed along with the election petition itself. In
the written statement, it was stated that the mention of the status of any
individuals by the scribe of a document cannot be taken as confirming the social
status of an individual and it was attempted to be explained that the word
'Kshatriya' is only a description of the status as ruler of the area. While
none of these documents can be considered to have been possibly manipulated for
the purpose of this litigation by their very age, the similarity of the names
referred to in the documents to those given in the genealogical tree furnished
by the 1st respondent may make the claims of existence of such persons in the
family and the execution of the documents by them, not open to, ex facie,
rejection. At any rate, Exs.P.9 and P.10, which are not denied by R.W.2,
provided, prima facie, proof of the members of the family of the 1st respondent
describing themselves as 'Kshatriyas' in the documents executed by them, which,
even according to the written statement of the 1st respondent, is not denied and
it is only attempted to be explained as reflective of the status of the family
as rulers. Exs.P.1 to P.8 are pre-Constitution documents, the recitals in which
about the social status of the parties, are of, undoubtedly, probative value,
while the description in Exs.P.9 and P.10 is not denied.
23. When it came to Ex.P.11 certificate issued by the Maharajah's college,
Vizianagaram, R.W.2 admitted that the Principal of the College had issued Ex.P.1
relating to him. He also admitted that the contents of Ex.P.11, except with
reference to his caste, are correct and the mention of the caste as 'Kshatriya'
is not correct. If the particulars of R.W.2 recorded in Ex.P.11 with reference
to his father's name, his studies, his date of birth and religion are true, why
the entry about the caste of R.W.2 alone should be believed to have been
manipulated, more so, when the original register had identical entries in
Ex.R.1, is not intelligible. His affidavit in the chief-examination did not
refer to the school or college records of R.W.2 and when R.W.2 claimed that they
are 'Konda Rajus', a sub-sect of 'Konda Doras', it is not intelligible as to why
the college admission record of R.W.2 would not have reflected the same, when
obviously the person who gave the information for making the relevant entries in
the admission record, gave all the other particulars correctly. Even the 1st
respondent as R.W.1 in his chief-examination affidavit in referring to the
college and school certificates of himself and his family members did not make
any specific reference to the school or college records of R.W.2. R.W.1
admitted that he does not know whether there were any certificates regarding the
tribal status of the members of their family prior to 1950. He also does not
know where R.W.2 studied his intermediate and whether he studied the pre-
university course at Maharajah's college, Vizianagaram. While admitting that
Ex.P.11 is as though R.W.2 was described as 'Kshatriya' in the certificate, his
claim that there were caste certificates issued describing the tribal status of
his father since much prior to the contest by his father in the elections, was
not corroborated by the production of any such caste certificates. The
Scheduled Tribe certificate of R.W.1's mother stated to be in existence is also
not before the Court and Ex.R.9 caste certificate filed by R.W.1 was of the year
1991 relating to R.W.2. The petitioner as P.W.1 stated about his obtaining
Ex.P.11 from the Principal of Maharajah's college, Vizianagaram about which he
was not subjected to any cross-examination, though he admitted that apart from
Exs.P.1 to P.11, he has no other documents and he did not file any other
documents showing the social status of the 1st respondent or showing his family
to be a 'Kshatriya' family. On such evidence, the probative value of Ex.P.11,
more particularly the entry about the caste of R.W.2, cannot be totally brushed
aside. Ex.R.34 matriculation certificate of R.W.2 was filed as not referring to
his caste or 'Kshatriya' caste, but the certificate had absolutely no space
meant for the caste of the certified candidate. When the certificate had no
scope for referring to the caste, Ex.R.34 cannot be used to contradict Ex.P.11.
24. Concerning Exs.P.1 to P.11, it may be noted that in Biswambhar Singh and
others v. State of Orissa and another3, the recitals in an ancient public
document, whose authenticity could not be doubted, were considered to furnish
evidence of the existence and genuineness of the document and its terms. The
principles laid down under Section 35 of the Evidence Act need to be referred to
concerning Ex.P.11 and in Desh Raj v. Bodh Raj4, the Apex Court with reference
to Section 35 of the Evidence Act, held that entries in school admission
registers in regard to age, caste, etc., have been considered as relevant and
admissible. Read with other oral or documentary evidence, the entries in school
registers made nearly 40 years prior to the election petition were held to have
evidentiary value. It was also observed that when the school records show a
particular caste, the caste certificates issued to the candidates and his
relatives by the Executive Magistrate showing a different caste should be
ignored, more so when they relate to the period, when the persons started
showing that they belonged to a particular Scheduled Caste. In Umesh Chandra v.
State of Rajasthan5, Section 35 of the Evidence Act was interpreted to mean that
there is no legal requirement that the public or other official book should be
kept only by a public officer, but all that is required is that it should be
regularly kept in discharge of his/her official duty. The record maintained by
the school was considered to be, undoubtedly, unimpeachable and authentic and
could not be suspected or presumed to be tampered with, more so when there could
not have been any motive on the part of the parents of the student to make a
false entry and the school enjoyed good reputation of authenticity. Vijaya Kari
v. Kondamuri Swarnalatha and another6 laid down that under the Educational
Rules, every school is obligated to maintain register of admissions with the
prescribed particulars and such records can be considered as official records
admissible under Section 35 of the Evidence Act. Section 35 of the Evidence Act
provides that the document or record maintained pursuant to any legal obligation
is an official document admissible under the provision and in view of the fact
that the registers are maintained in every school under statutory compulsion,
they can be considered as official records and admissible under Section 35 of
the Evidence Act. In that case, the document was produced by the Head Master of
the school and no discrepancy or motive or interestedness were alleged to
discredit their testimony.
25. In opposition, reliance was placed on Birad Mal Singhvi v. Anand Purohit7,
the question involved in which was the age of the candidate and the parents or
any of the persons having special knowledge about the date of birth of the
candidate were not examined and it was observed that parents or near relations
having special knowledge are the best persons to depose about the date of birth
of a person. It was also held that mere proof of the documents would not
tantamount to proof of all the contents of the documents or the correctness of
the date of birth stated in the documents, unless the person, who made the entry
or who gave the date of birth, is examined. Only if the entry regarding the
date of birth in the scholar's register is made on the information given by the
parents or someone having special knowledge of the fact, the same would have
probative value. It was also pointed out that to render a document admissible
under Section 35 of the Evidence Act, three conditions must be satisfied,
firstly, entry that is relied on must be one in a public or other official book,
register or record, secondly, it must be an entry stating a fact in issue or
relevant, and thirdly, it must be made by a public servant in discharge of his
official duty, or any other person in performance of a duty specially enjoined
by law. While holding that an entry relating to date of birth made in the
school register is relevant and admissible under Section 35, but the entry
regarding the age of a person in a school register is of not much evidentiary
value to prove the age of the person in the absence of material on which the age
was recorded, Courts were stated to have consistently held that the date of
birth mentioned in the scholar's register of secondary school certificate has no
probative value unless either the parents are examined or the person on whose
information the entry may have been made, is examined. Ravinder Singh Gorkhi v.
State of U.P.8 was relied on, wherein it was held that Section 35 of the
Evidence Act requires the following conditions to be fulfilled before a document
is held to be admissible thereunder: (i) it should be in the nature of the entry
in any public or official register, (ii) it must state a fact in issue or
relevant fact, (iii) entry must be made either by a public servant in the
discharge of his official duty, or by any person in performance of a duty
specially enjoined by the law of the country and (iv) all persons concerned
indisputably must have an access thereto. In that case, it was not shown as to
whether any register was required to be maintained under any statute or whether
any register was maintained in the school at all. The original register was not
produced, no person was examined to prove as who made the entries in the
register and hence, the school leaving certificate was not relied on. It was
also observed that the entry of date of birth in the school records is merely a
piece of evidence. In Thimmakku and others v. Bandlu Rangappa and others9, it
was laid down with reference to a school admission register and birth registers
that in the absence of the examination of and testimony by some witness
competent to speak to matters either as to the knowledge of the relationship or
as to the source of the information or statements on which the said recitals
came to be incorporated in the said documents, the recitals in themselves cannot
be treated as substantive evidence and as admissible on the question concerning
paternity purportedly indicated in the said documents, as such entries are
matters extraneous to what is strictly enjoined upon the officer to record.
Khetra Mohan Das and others v. Bhairab Chandra Das and others10, held that the
person producing a document is relieved of the necessity of proving that it was
executed by the person who purported to be the executant, provided that it
satisfies the conditions that it is 30 years old and produced from proper
custody with reference to Section 90 of the Evidence Act, but that is not the
same as saying that the Court shall presume the correctness or genuineness of
every statement appearing in the document. In Ram Deo Chauhan alias Raj Nath
Chauhan v. State of Assam11, with reference to the register of admission of
students, the author of which was not examined, and the register is not
maintained under any statutory requirement, the Court did not place any reliance
on it, more so, on facts, the manner in which the register has been maintained
did not inspire confidence of the Court.
26. Application of the principles to the facts of the present case may not
suggest any justification for ignoring Ex.P.11 altogether. R.W.2 was a student
of Maharajah's college, Vizianagaram during the relevant time, is admitted and
the correctness of all other entries in Ex.P.11 was also admitted by R.W.2. The
entry was one in an official register/record relevant to a fact in issue,
obviously made by a person in performance of his duty. That the maintenance of
such register or record in performance of a duty specially enjoined by law is
obligatory under the relevant statutory rules, received judicial recognition in
Vijaya Kari v. Kondamuri Swarnalatha and another (6 supra). While the relevancy
and admissibility of such an entry can never be in doubt, the evidentiary or
probative value of such an entry, as seen from the precedents, varies with the
facts and circumstances of each case. When the original register was produced
and the person in whose custody the original register remains and who issued
Ex.P.11 was examined and when the persons, on whose information and instructions
the entries were made, could not have been available for being examined due to
mere efflux of time, the original document more than thirty years old can be
presumed to be a dependable piece of evidence as to the factum of such entries
having been made, when they were purported to have been made and there is
nothing in the circumstances of the case not to inspire confidence about
Ex.P.11.
27. The school certificates relating to R.W.2 were not produced so as to be
assessed in contrast with Ex.P.11 and there may be nothing factually or legally
incorrect, if it were presumed that the entries in the school records also would
have been similar as Ex.P.11. It is not claimed by R.Ws.1 and 2 that such
records or certificates are not available and the principle laid down in Punit
Rai v. Dinesh Chaudhary12 that the facts of which special knowledge is with a
party, he alone has to prove those facts by adducing the best evidence on the
point of his belonging to a caste, may be of direct application. There, it was
also laid down that if a party, who is in possession of best evidence, which
throws light on the issue in controversy, withholds such evidence, an adverse
inference under Section 114(g) of the Evidence Act ought to be drawn against
such a party notwithstanding that the onus of proof may not lie on him.
Similarly, Gopal Krishnaji Ketkar v. Mohamed Haji Latif and others13 held that
even if the burden of proof does not lie on a party, the Court may draw an
adverse inference, if he withholds important document in his possession, which
can throw light on the facts in issue. To the same effect is the decision in
Prem Lata v. Arhant Kumar Jain14, wherein it was pointed out that the question
of burden of proof has no importance after both parties have adduced evidence.
28. The election petitioner also filed a copy of the statement of R.W.2, dated
22-02-1993, in which the Tribe of the family was stated to be 'Konda Dora'
throughout and the particulars of education of R.W.2 at Maharajah's college,
Vizianagaram furnished therein do not contradict Ex.P.11. The statement also
appears to have mentioned the family of R.W.2 to be traditionally not dining
with the communities--'Kodu', 'Gadaba', 'Savara', 'Gaita' and 'Jatapu' and to
have matrimonial alliances with 'Manna Dora' and 'Muka Dora' communities.
However, the statement was not marked through any witness and not confronted to
R.Ws.1 and 2 and it is not, hence, referred to in corroboration or contradiction
of the other material on record.
29. Exs.R.1 to R.10 and R.37 to R.41 produced by R.W.1 were claimed to be the
caste certificates of himself and the members of his family. It is no doubt
true that in all these certificates, the family members, including R.Ws.1 and 2
were stated to be belonging to 'Konda Dora' community. While R.W.1 denied the
said certificates having been issued on their applications without conducting
any enquiry, all the post-Constitution certificates appear to be subsequent to
1973 since after the commencement of participation of R.W.2 in the electoral
process and much later to the recitals or entries in Exs.P.1 to P.11.
Similarly, Exs.R.11 to R.14 transfer certificates of R.W.1 and his family
members specifying them to be belonging to 'Konda Dora', a Scheduled Tribe, were
post 1994 certificates. The principle laid down in Desh Raj v. Bodh Raj (4
supra) with reference to such certificates relating to a period of the persons
concerned claiming the privileges of belonging to a particular caste being
ignored, clearly appears applicable with reference to the above certificates
relied on by R.W.1. That was why in Kumari Madhuri Patil and another v. Addl.
Commissioner, Tribal Development and others15, school certificates and college
certificates, which are subject of enquiry, were held to not bear any value, the
caste status having to be considered independently. However, the entries in the
school register preceding the Constitution were held to furnish great probative
value and the caste was noted to be reflected in relevant entries in the public
records or school or college admission register at the relevant time and the
certificates are issued on its basis. While caste is acquired by birth,
subsequent documents manipulated and fabricated to knock off the seats in
educational institutions defrauding the true Scheduled Tribes to their detriment
and deprivation were not relied upon. Incidentally, it was also held in
Nagarajan v. District Collector, Salem and others16, which is a case where an
interpolation in the school certificate added the word 'Konda' for a 'Hindu
Reddi', that the determining factor in such cases is the community to which the
father of the petitioner belonged. By interpolation of documents, none can get
a particular social status.
30. Exs.R.15 to R.19 certified copies of decrees of civil Courts in O.S. Nos.3
of 1986, 175 of 1987, 126 of 1991, 7 of 1998 and 38 of 2004 and Ex.R.42
certified copy of the suit extract in O.S. No.42 of 1976, refer to the
plaintiffs being exempted from paying Court fees as per G.O.Ms. No.381, dated
20-03-1968, as they belong to 'Konda Dora' community. But it is not known from
them whether such exemption was permitted straight away on the claims made by
the plaintiffs therein or after acceptance of any authenticated certificates or
documents to that effect, which could have been acted upon under law or after
any findings after any enquiry. R.W.1 claimed that exemption from payment of
Court fee under Exs.R.15 to R.19 was granted on the strength of the certificates
filed by them into Court, but admitted that Exs.R.15 to R.19 made no such
reference.
31. Ex.R.20 is the judgment in O.S. No.21 of 1989 on the file of the
Subordinate Judge's Court, Parvathipuram, dated
06-07-1993, which suit was said to have been filed for declaring the plaintiffs
therein to be 'Konda Doras' and consequential relief of injunction against the
State represented by the Collector and the Mandal Revenue Officer from
withholding issuance of caste certificate as such. The judgment shows that
though the plaintiffs belonged to Hill Tribe 'Konda Dora', the common notion
prevailing with the authorities concerned is that they belong to the Forward
Caste of 'Kshatriya' community, which was only a description of the status of
the rulers or zamindars. The plaintiffs also appeared to have referred to
"Castes and Tribes of South India" by Edgar Thurston mentioning them to be
'Konda Rajus' who belong to 'Konda Dora' community. The official defendants
contested even then contending the relationship of the plaintiffs therein to be
with 'Kshatriyas' and not members of Scheduled Tribes. The plaintiffs therein
were also denied to be having any relationship with Belgam Zamindari family.
The civil Court noted that undisputably 'Konda Dora' community is a Scheduled
Tribe, while 'Kshatriya' community is not. The civil Court assumed jurisdiction
to declare the caste of the plaintiffs and incidentally, the plaintiffs therein
filed copy of the judgment in Election Petition No.13 of 1983 relating to
Satrucharala Vijaya Rama Raju, who has been subsequently found by this Court to
be not belonging to a Scheduled Tribe in a subsequent election petition, which
has been confirmed by the Apex Court. The judgment in Election Petition No.13
of 1983 formed the basis for the judgment of the civil Court, which presumed
that the suffix 'Raju' attached to rich persons of 'Konda Dora' community is a
symbol of status and prestige of successors to the family of zamindars. With
the subsequent findings by this Court, confirmed by the Apex Court in a
subsequent election petition confirming that Satrucharla Vijaya Rama Raju does
not belong to Schedule Tribe, the persuasive value of the judgment of the civil
Court becomes highly doubtful, apart from the question as to whether the civil
Court is at all competent to give such declaration of any person belonging to a
Scheduled Tribe. Reference may be made to State of T.N. and others v. A.
Gurusamy17, in which a civil suit for a declaration that a person is a member of
a Scheduled Tribe and the jurisdiction of the civil Court to take cognizance of
such a suit, were held to be prohibited. In Swvigaradoss v. Zonal Manager,
F.C.I.18 also, the Supreme
Court held that in the light of the constitutional scheme, civil
Court has no jurisdiction under Section 9 of the Code of Civil Procedure to
entertain a suit for declaring the status of a person as a member of a Scheduled
Caste. Prabhudev Mallikarjunaiah v. Ramachandra Veerappa and another19
reiterated the settled law that Courts cannot give any declaration that the
status with synonymous names of castes claimed by the party is conformable to
the names specified in the Presidential Notification issued under Article 341 of
the Constitution. The judgment of the civil Court to the contrary in that case,
was observed to be not a judgment in rem and to be without basis.
32. Exs.R.21 to R.23 documents, dated 15-12-2006,
27-02-2007 and 28-04-2009, of course, specifically described the executants,
namely, the mother and sister of the 1st respondent as belonging to 'Konda Dora'
caste. But patently, these recent documents resort to such description years
later to the members of the family started claiming and enjoying the
consequential privileges and benefits in educational, electoral and other
aspects arising out of such status.
33. Then come the attested copies of the Census Index and Report from
1891 to 1951 marked as Exs.R.24 to R.33. While the contents of these old and
authoritative documents can be straight away referred to, Ex.R.24 the Census of
India, 1891 report published in 1893 referred to a tribe in Vizagapatnam called
'Konda Dora' or 'Konda Kapu' and 'Konda Doras', 'Konda Kapus', 'Kondas', Manne
Doras' or 'Doras' were stated to have 74 sub-divisions entered into the
Schedules in Chapter-IX of the report. But majority of them were stated to have
returned to the main caste or one of its synonyms. Significantly, it was also
stated that many of the sub-divisions are the names of separate castes, though
Ex.R.25 Tables and Caste Index of the same census gave the names of the main
castes and underneath each caste, the names of the sub-divisions and it is true
that under the caste 'Konda Dora', 'Konda Raju' was mentioned as one of the sub-
divisions.
34. But Ex.R.25 itself cannot indicate 'Konda Raju' sub-division of 'Konda
Dora' caste is not a separate caste, as Ex.R.24 clearly specifies that many of
the sub-divisions are the names of separate castes.
35. Ex.R.26 statistical Appendix of Vizagapatnam District in Madras
District Gazetteers of 1905 mentions the strength of 'Konda Dora' caste, tribe
or race as 80,924 in 1901, which is similar to the strength given in Ex.R.25
relied on as indicating the strength of 'Konda Rajus' to have been shown as part
of the strength of 'Konda Doras'.
36. Ex.R.27 report of Census of India, 1911, Volume I, discusses caste,
tribe and race in detail in Chapter XI and it was recognized that the
segmentation of Hindu society is much more complicated than appears at first
sight and it has taken place in more directions than one. It was stated that a
caste may be defined as an endogamous group or collection of such groups bearing
a common name and having the same traditional occupation, who are so linked
together by these and other ties, such as the tradition of a common origin and
the possession of the same tutelary deity, and the same social status,
ceremonial observances and family priests, that they regard themselves, and are
regarded by others, as forming a single homogeneous community. It was again
said that what is commonly known as the sub-caste or smallest endogamous group,
ought really to be regarded as the caste, and that the caste as defined above is
merely a general term including a number of true castes following the same
profession. A tribe was again stated to be distinguished in its original form
from a caste by the fact that its basis is political rather than economic or
social. It was noted that the changes have always been in progress in the caste
and new castes have come into existence to meet new needs and old ones have been
dissolved when the necessity for them no longer existed. The analysis also
referred to primary division of sub-castes into sub-castes of fusion and sub-
castes of fission and dealt in detail with the various historical and social
processes in the formation or dissolution of castes and sub-castes. The
enlightened analysis of the whole issue in Ex.R.27 may not be corroborative of
the claim that 'Konda Rajus' were a sub-caste and were always a part of 'Konda
Doras' specified as such till 1901 and not thereafter as sought to be contended
on behalf of the 1st respondent in the absence of the background due to which
'Konda Rajus' were initially specified separately and were not later so
referred.
37. Ex.R.28 Tables of Census of India 1911, Volume I were also intended
to indicate the total strength of 'Konda Doras' to include all sub-castes or
sub-tribes including 'Konda Rajus' and so was the reference in Ex.P.29 Report in
Volume XIV of Census of India, 1931.
38. Ex.R.30 Table of Territorial Distribution of Principal Communities
in Census of India, 1931 is also to the similar effect and so are Exs.R.31 and
R.32 and Ex.R.32 Report, Volume III of Census of India, 1951 referred to 'Konda
Dhoras' as one of the Scheduled Tribes notified by the President under Article
342 of the Constitution of India and unlike many other Scheduled Tribes, in
which number of synonyms were also included in the said notification, 'Konda
Dhoras' had no such synonyms or sub-castes or sub-tribes or sub-race being
included in them. For example, item 37 'Savaras' include 'Kapu Savaras', Khutto
Savaras' and 'Maliya Savaras'. 'Konda Kapus' and 'Konda Reddis' were separately
mentioned in items 20 and 21 and 'Konda Rajus' do not find a place. The
Glossary of Caste Names of Visakhapatnam District of Census of India, 1951,
marked as Ex.R.33, mentioned about 'Konda', 'Konda Bestha', 'Konda Doralu',
'Konda Kapu' and 'Konda Reddi', but not about 'Konda Rajus'.
39. The Manual of Vizagapatnam District in the Presidency of Madras,
originally published in 1869, refers to Nishada to be forming Hill
Tribes/Castes. Zamindars of 'Konda Razu' caste, who now call themselves
'Kshatriyas' and who find 'Brahmins' ready enough to become their Purohits,
have, it is supposed, one or other of the sons of Nishada for their ancestors.
Ex.R.35 refers to the Andhra Family and Estate founded by a person of 'Konda
Dora' caste, while the Salur Family and Estate, the Panchipenta Family and
Estate, the Chemudu Family and Estate, the Sangamvalasa Family and Estate, the
Belgam Family and Estate, the Merangi Family and Estate and the Kurupam Family
and Estate were specifically referred to as belonging to or styling themselves
as 'Konda Rajus'. Jagannadha Patro being the Dewan of Ramachandra Deo of Jeypore
and his son Sundara Narayano Patro being granted Zamindari tenure in 1796 was
specifically referred to and the family was specifically stated to be belonging
to 'Hill Raju' (Konda Raju') family. The Manual is, thus, as though 'Konda
Dora' caste and 'Konda Raju' caste are different.
40. Ex.R.36, copy of Vizagapatnam District Gazetteer in the Presidency
of Madras of 1907, referred to 'Konda Doras' or 'Konda Kapus' numbering about
81,000, who were divided into 'Pedda Kondalu' and 'Chinna Kondalu' and 'Muka
Doras' were noted to be classed as a separate caste to which zamindar of
Pachipenta belongs. Referring to Belgam Estate, the grant of zamindari to
Somasundara Narayana Patro, son of Jagannatha Patro in 1796 was again stated and
the family was noted to use the title 'Tat Raja'. It traces the genealogy of
the family, but there are no definite indicators of the Belgam Zamindari family
being 'Konda Doras' or 'Konda Rajus'.
41. In "Castes and Tribes of Southern India" by Edgar Thurston and K.
Rangachari, Volume III-K, pages 349 to 356, 'Konda Doras' are dealt with and
they are noted to be known as 'Konda Doras', 'Konda Kapus' and 'Ojas'. The
customs, conventions and rituals of 'Konda Doras' divided into 'Pedda Kondalu'
and 'Chinna Kondalu' were described in detail and there was no reference to any
'Konda Doras' being called as 'Konda Rajus'.
42. In "The Tribes of Andhra Pradesh" by the Tribal Cultural Research
& Training Institute of the department of Social Welfare of the State Government
in 1964 also, similar information was given about 'Konda Doras'.
43. While R.W.2 contested for the first time to the Parliament in 1977
from Parvathipuram Constituency reserved for Scheduled Tribes, pre-Constitution
and even post-Constitution documents from Ex.P.1 to Ex.P.11 are supportive of
the contention that the family members of R.W.2 appear to have described
themselves as 'Kshatriyas' and the various documents marked on behalf of the 1st
respondent from Exs.R.1 to R.23 and R.37 to R.42 referring to the status of the
family members including R.Ws.1 and 2 as 'Konda Doras' are all post-1970
documents. R.W.2 admitted that their family had no relationships with the other
'Konda Dora' Tribe families of Belgam and Addapusila. While claiming to be not
'Kshatriyas', he himself stated that they are 'Konda Rajus', a sub-sect of
'Konda Doras', so called as they are zamindars. The attempt to claim widow
remarriage to be one of the customs signifying 'Konda Dora' Tribe was not
corroborated by R.W.1 or R.W.2 by referring to any such marriages in their
family to their knowledge and R.W.2 refers to one such marriage of the widow of
her sister's elder son marrying his sister's younger son, which cannot be
considered to be in the family of R.Ws.1 and 2. Wearing beads by the ladies was
also attempted to be stated as another custom of 'Konda Doras', but R.W.2
admitted that he does not know whether ladies in other families of the area also
wear beads. R.Ws.1 and 2 had to admit that Satrucharla Vijaya Rama Raju is the
brother of the mother of R.W.1/wife of R.W.2, who admittedly could not prove his
scheduled tribal status in an election dispute before this Court and the Supreme
Court, in which R.W.2 gave evidence that Vijaya Rama Raju belongs to a Scheduled
Tribe. The sister of Satrucharla Vijaya Rama Raju, who was found to be not
belonging to a Scheduled Tribe or more particularly 'Konda Dora' Tribe being
married to R.W.2, may also be a circumstance that militates against the claim of
R.Ws.1 and 2 belonging to such Scheduled Tribe. While R.W.2 obtained caste
certificates for each of his children before admitting them into schools, he
admittedly did not show his own caste certificate to the school authorities at
that time and an enquiry into the tribal status of the mother of R.W.1 is
admittedly pending. R.W.1 also specifically stated that he belongs to 'Konda
Raju' caste, enumerated as one of the sub-castes of 'Konda Dora' community.
Nobody objecting to the tribal status of R.W.2 and R.W.1 or R.W.1's mother in
1977 Parliament elections or 2006 Zilla Parishad Territorial Constituency
elections or 2005 Municipal elections or any such objection being overruled at
the time of scrutiny of nominations and later remained unchallenged, cannot
operate as any estoppel against the disqualification of R.W.1, if he were really
disqualified under the law. R.W.1 also did not remember whether any woman in
their family had any remarriage after the death of her husband and admitted that
there was no woman in his family who obtained divorce. Their worshiping Tribal
Goddesses itself may not be a determinate factor, while R.W.1 did not know
whether there is any relationship between their family and any of about 400
'Konda Dora' families in the area. To his knowledge, except the alliances with
the families of Pachipenta zamindars and China Merangi zamindars, there are no
other alliances between their family and other families of their area. The
petitioner as P.W.1 was referring to the Hill Zamindar families being reputed in
the area to be 'Kshatriyas' and they being the rulers of the area not having any
marital relationship with any persons belonging to Scheduled Tribes. Though
he does not know whether 'Konda Rajus' come under 'Kshatriya' community or not,
P.W.1 was positive about R.W.1 not belonging to a Scheduled Tribe. His not
taking any steps to have
the Schedule Tribe certificates in favour of R.W.1 and his family members
cancelled, is of no relevance herein and his cross-examination about the
traditions and customs of 'Konda Doras' or 'Kshatriyas' is not of much
significance in view of there being no evidence worth the name on record
probablising the practice of such customs and traditions by R.W.1's family,
which unmistakably points out to their belonging to 'Konda Dora' Scheduled
Tribe.
44. Thus, while claiming any reference to themselves as 'Kshatriyas'
anywhere to be reflective of their status as rulers, but not their caste or
tribe, the positive case of the 1st respondent and his father in the written
statement or the evidence is that they belong to 'Konda Raju' caste, which is a
sub-caste of 'Konda Dora' community, which is a Scheduled Tribe. An enquiry
into whether 'Konda Raju' is a sub-caste of 'Konda Dora' Scheduled Tribe or not
and whether 'Konda Raju' can be considered to be included in 'Konda Dora'
Scheduled Tribe, does not appear permissible with reference to the settled
precedents.
45. Parsram and another v. Shivchand and others20 laid down that Article
341 of the Constitution of India empowered the President to specify not only the
entire castes, races or tribes, but parts or groups within castes, races or
tribes, which shall for the purposes of the Constitution, be deemed to be the
Scheduled Castes in relation to a State or Union Territory, as the case may be.
The judgments in Basavalingappa v. D. Munichinnappa21 and Bhaiya Lal v.
Harikrishen Singh22 were relied on and it was held that it would not open to any
person to lead evidence to establish that Caste-B is part of Caste-A notified in
the Constitution (Scheduled Castes) Order, 1950. Consequently, an enquiry in
order to determine whether a caste is a sub-caste of the notified caste would
not be permissible. It would be of no use to look into the Gazetteers and
Glossaries on the Castes and Tribes to find out that Caste-A and Caste-B meant
the same caste.
46. Radha Bai Andand Rao v. Suvarna Kumar and another23 accepted the
returned candidate as belonging to a Scheduled Tribe 'Koya' due to the elder
brother of the returned candidate being described as a 'Doli koya' in the school
records and the evidence of the Tahsildar that there was no caste as 'Doli', and
'Koya' people, who professionally beat drums in festive occasions, are called as
'Dolya' and as the returned candidate was also described in the school registers
as 'Doli koya' or 'Koya' long before the issue of the Constitution (Scheduled
Tribes) Order, 1950. Thus, the enquiry therein was not about Caste-B being part
of Caste-A also notified in the Constitutional Order, but about the description
of 'Doli Koya' or 'dolya' being only indicative of a 'koya' who is
professionally beating drums on festive occasions and not about any other sub-
castes or caste than that included in the Constitution (Schedule Tribes) Order,
1950.
47. Palanimuthu v. Returning Officer24 had the returned candidate
obtaining the certificate after inclusion of 'Konda Reddy' community in the List
of Scheduled Tribes by the amendment of the Scheduled Castes and Scheduled
Tribes (Order) Act, 1976. In all other documents, the community of the returned
candidate and the family was described as 'Hindu Reddy' community and it was
attempted to be stated that 'Konda Reddy' community is a sub-caste of 'Hindu
Reddy' community, which was not accepted.
48. State of Maharashtra v. Milind and others25 decided that the entries
in the Schedules in the orders issued under Articles 341 and 342 of the
Constitution pertaining to each State mentioned in the brackets after each
caste/tribe in the Schedules, if the caste/tribe has another name. In that
view, it serves no purpose to look at gazetteers or glossaries for establishing
that a particular caste/tribe is a Scheduled Caste/Scheduled Tribe for the
purpose of Constitution, even though it is not specifically mentioned as such in
the Presidential Orders. No enquiry is permissible and no evidence can be let
in for establishing that a particular caste or part or group within tribes or
tribe is included in the Presidential Orders, if they are not expressly included
in the Orders. The Apex Court made it clear that when no other authority other
than the Parliament, that too by law alone can amend the Presidential Orders,
neither the State Governments nor the Courts nor Tribunals nor any authority can
assume jurisdiction to hold enquiry and take evidence to declare that a caste or
tribe or part of or a group within a caste or tribe is included in Presidential
Orders in one Entry or the other although they are not expressly and
specifically included. The ratio of the earlier precedents was reaffirmed and
formulating the positions that emerge, the Supreme Court pointed out that it is
not at all permissible to hold any enquiry or let in any evidence to decide or
declare that any tribe or tribal community or part of or group within any tribe
or tribal community is included in the general name even though it is not
specifically mentioned in the concerned Entry in the Constitution (Scheduled
Tribes) Order, 1950. It was held that Scheduled Tribes Order must be read as it
is and it is not even permissible to say that a tribe, sub-tribe, part of or
group of any tribe or tribal community is synonymous to the one mentioned in the
Scheduled Tribes Order, if they are not so specifically mentioned in it.
49. In Chinnappa v. Venkatamuni and others26, the caste, to which the
returned candidate belongs, was not recognized as a Scheduled Caste in the
Presidential notification and it was held to be not open to be considered to be
synonymous with or equivalent to a caste notified in the Scheduled Castes Order.
The limited scope of enquiry was held to be whether the caste claimed by the
candidates finds place in the notification of the President as amended under the
said Act.
50. Nityanand Sharma and another v. State of Bihar and others27 is a
case where the question was whether Lohars could be considered by the Court as
synonyms of Loharas or Lohras and it was held that it was not open to the Court
to make any addition or subtraction from the Presidential Order and the Court
has no power to declare synonyms as equivalent to the Tribes specified in the
Order or include in or substitute any caste/tribe etc. Though evidence may be
admissible to a limited extent of finding out whether the community which claims
the status as Scheduled Caste or Scheduled Tribe, was, in fact, included in the
Schedule concerned, the Court is devoid of power to include or exclude from or
substitute or declare synonyms to be of a Scheduled Caste or Scheduled Tribe or
parts thereof or group of such caste or tribe.
51. In Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar and others28, it
was reiterated that Parliament alone can amend the law and the schedule for the
purpose of including or excluding therefrom a tribe or tribal community or part
of or group within the same in the State, district or region and the declaration
made by Parliament is conclusive. For the said purpose, the Court does not have
any jurisdiction so as to enable it to substitute any caste and tribe.
52. Reverting to the written statement of the 1st respondent and the
evidence of R.Ws.1 and 2, the assertion was that the description of any member
of the family in any document as 'Kshatriya' was only reflective of the social
status of the family as rulers and zamindars and that they belong to 'Konda
Raju' caste, one of the sub-castes of 'Konda Dora' community, a Scheduled Tribe.
The family of the 1st respondent admittedly had no relationships with other
'Konda Dora' tribe families of Belgam and Addapusila and in the area where about
400 families of 'Konda Dora' tribe live. The evidence of R.Ws.1 and 2 itself
does not suggest the family of the 1st respondent to be adherent to the customs,
traditions and practices of 'Konda Dora' Scheduled Tribe. The Census reports,
the District Manuals, the District Gazetteers and the earlier
precedents/judicial decisions relating to the tribal/caste status of these Hills
Zamindaris need be appreciated in that background.
53. The first of the relevant cases relating to these Hill Zamindars in
the area appears to be V.V. Giri v. D. Suri Dora and others29, wherein the
returned candidate described himself and the members of his family as the
members of a scheduled tribe from 1885 to 1928 and as belonging to 'Kshatriya'
caste from 1928 onwards. The customs and rituals of 'Kshatriya' caste were
stated to have been adopted since some years by the returned candidate. It was
observed that the caste status of a person in the context would necessarily have
to be determined in the light of the recognition received by him from the
members of the caste into which he seeks an entry and any unilateral acts
intended to assert a higher status cannot be easily taken to prove that the
claim for the higher status which the said acts purport to make is established.
The minority view, of course, was that the returned candidate by his actions
raised himself to the position of a 'Kshatriya' and he was no longer a member of
the Schedule Caste or Tribe. The adoption of customs and rituals of 'Kshatriya'
caste by these elevated families, thus, seem to be since a considerably long
period leading, maybe, even to the social recognition of such higher status
leading to the minority view in the decision, of the candidate in question
raising himself to the position of 'Kshatriya' depriving himself of the
membership of his Scheduled Caste or Schedule Tribe.
54. Then came Election Petition No.13 of 1983 decided on 16-01-1984
challenging the election of Satrucherla Vijaya Rama Raju alleging that he does
not belong to a Scheduled Tribe and is not a 'Konda Dora', but a 'Kshatriya'.
The evidence produced by the election petitioner therein was found to be wholly
deficient and the oral evidence was considered to be almost next to nothing.
The recital in Ex.A.1 sale deed therein referring to them as 'Kshatriyas' was
defended to be for maintaining the prestige and dignity, though they are not
'kshatriyas'. R.W.2 herein examined as R.W.7 therein is his brother-in-law and
deposed therein that they belong to 'Konda Dora' community. The learned Judge
concluded that Satrucherla Vijaya Rama Raju belongs to 'Konda Dora' Tribe.
55. Notwithstanding the decision in Election Petition No.13 of 1983, the
subsequent election of Satrucharla Vijaya Rama Raju was again challenged in
Nimmaka Jaya Raju v. Satrucharla Vijaya Rama Raju and others30 dealing with the
election petition filed by the present petitioner herein against the returned
candidate therein, who is the maternal uncle of the 1st respondent herein. A
learned Judge of this Court firstly found that the entries in school records and
registered documents relating to pre-Constitution period carry greatest
probative evidentiary value and therefore, the entries in such records to be
safely relied on. With specific reference to Ganjam and Vizagapatnam Act, 1839,
wherein specified hill zamindaris were recognized, the learned Judge observed,
with reference to 'Castes and Tribes of South India' by Edgar Thurston and K.
Rangachari, Madras District Gazetteers and Manual of District Vizagapatnam in
the Presidency of Madras compiled and edited by D.F. Carmichael, that while the
other references do not show the returned candidate to be belonging to 'Konda
Dora' Tribe, the Manual describing the castes of respective hill zamindars
clearly indicated that there is a distinction between the castes 'Konda Dora'
and 'Konda Raju' in specifying that Andhra zamindar belongs to 'Konda Dora'
caste, while other zamindars belong to 'Konda Raju' caste. The learned Judge
also, on elaborate discussion, found that from the beginning the family of the
returned candidate were having alliances with zamindars and 'Muka Doras'
elevating themselves as separate section, much higher in level than 'Konda Dora'
tribes. The earlier decision in favour of the returned candidate in E.P. No.13
of 1983 was noted to be for want of sufficient evidence for the petitioner
therein and the conclusion of the learned Judge that 'Konda Raju' cannot be
equated with 'Konda Dora' Tribe, was confirmed by the Apex Court.
56. In Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju and others31,
the Apex Court, of course, noted that the earlier election petition in E.P.
No.13 of 1983 failed for want of evidence worth the name for the election
petitioner, but also observed that adjudication in an election petition, not
inter-partes, cannot operate as res judicata in a subsequent election petition
challenging that subsequent election. The Apex Court found further that the
High Court found that the returned candidate on the very material relied on by
him was shown to be 'Konda Raju', which is different from the Tribe 'Konda
Dora'. The Apex Court also concluded that the documents do not establish the
returned candidate to be belonging to 'Konda Dora' Tribe. The Apex Court also
found the way of life of zamindari families including their marital
relationships to be not that of Tribes and they were observed to be desiring to
have the best of two worlds. Though the maternal link of the 1st respondent
with Satrucharla Vijaya Rama Raju may not be a determinate factor on his social
status acquired through his paternal link, the absence of any marital
relationships between the 1st respondent's family and any other 'Konda Dora'
tribal families in the area and the mother of the 1st respondent being a member
of the family of Satrucharla Vijaya Rama Raju, her brother, being not in
dispute, the conclusion by this Court and the Apex Court will, undoubtedly, have
a corroborative persuasive effect on the probability of the 1st respondent also
being probably of same or similar social status.
57. In Nimmaka Jaya Raju v. Satrucharla Vijaya Rama Raju and others (30
supra), the learned Judge referred to the Vizagapatnam District Manual
disclosing Andhra zamindars alone to be 'Konda Doras', while the remaining seven
Hill Zamindars of the area to be 'Konda Rajus' and on the material placed before
this Court herein, as already referred, there could not have been reasonably any
other conclusion than the probability of the 1st respondent being a 'Konda Raju'
and not a 'Konda Dora' and on almost an identical material, this Court concluded
that 'Konda Raju' cannot be equated to 'Konda Dora' Tribe, which conclusion was
not disturbed by the Apex Court. Election Petition No.13 of 1983
notwithstanding, the Apex Court did not see any justification in differing from
the appreciation of the oral and documentary evidence by the learned Judge of
this Court. Prohibiting the enjoyment of best of two worlds in such cases
should follow as concluded by the Apex Court by not considering such persons to
be true representatives of the Tribes included in the Presidential Order
deserving a special protection.
58. Though, not marked or admitted in evidence, the learned senior
counsel for the election petitioner placed a copy of the report of enquiry on
the caste of Sri L.N. Sanyasi Raju, Ex-Zamindar and Ex-MLA, Salur and the memo,
dated 12-12-1998 issued by the Social Welfare (CV) Department of the State
Government. The enquiry report referred to the Manual of District of
Vizagapatnam in the Presidency of Madras published in 1869, in which a detailed
history of various hill zamindaris and their genealogy was given apart from
recording the castes of the zamindars. It was noted that the castes recorded
were Andhra zamindari as 'Konda Dora' and Salur zamindari as 'Konda Raju'. The
enquiry report also referred to the birth register, various land transactions
from 1941 of Sri Sanyasi Raju and the members of his family and the educational
records and local recognition of the family as 'kshatriyas' or 'Rajulu'.
Marriages were noted to be only within local 'kshatriyas' or 'Rajus' or Ex-
zamindars of Orissa State. All the Ex-zamindars were noted to be locally
recognized and treated as 'Rajputs' or 'Kshatriyas'. The Commissioner of Tribal
Welfare enquiry report also stated that 'Konda Raju' caste is not notified as a
Scheduled Tribe at any point of time in the State of Madras or Andhra or Andhra
Pradesh since 1950 and it is not permissible to treat 'Konda Raju' caste as the
same as any listed Scheduled Tribe under the Constitution, which amounts to
modification or addition or subtraction in the list of Scheduled Tribes issued
by an Act of Parliament in 1976. In the Government memo, the social status of
the blood relatives of Sri Sanyasi Raju was directed to be taken as per the
report of the Commissioner of Tribal Welfare. Incidental reference to the above
report of enquiry is only as a matter of reassurance to the circumstances
disclosed by the evidence on record.
59. Then in Peedika Rajanna Dora v. Rajendra Prathap Bhanj Deo and
another32, notwithstanding the pendency of a special leave petition before the
Apex Court against the Full Bench decision in Andhra Pradesh Scheduled Tribes
Employees Association v. Aditya Pratap Bhanj Dev and others33, as the judgment
was not suspended, it was relied on. Apart from noting that the ancestors of
the returned candidate have made series of assertions with regard to their caste
as 'Kshatriya' in a series of documents, the returned candidate belonging to
Mokhasadar family and related to tribal zamindari families as per his claim was,
hence, considered to have not proved him to be belonging to 'Konda Dora'
scheduled tribe.
60. In Andhra Pradesh Scheduled Tribes Employees Association v. Aditya
Pratap Bhanj Dev and others (33 supra), a Full Bench of this Court laid down
that a suit for declaration of Schedule Tribe and/or a suit for declaration that
an unincluded community be declared as equivalent to a tribe in the Scheduled
Tribes Order, is expressly and impliedly barred and if civil Court has no
jurisdiction to pass such a decree, therefore, the declaration that 'Konda Raju'
is equivalent to 'Konda Dora', which is included in the Scheduled Tribes Order,
was not within the jurisdiction of the civil Court and a decree to that effect
is a nullity. The Full Bench also found that the claim to be belonging to
'Konda Dora' community was by virtue of relationship with zamindar of Salur,
while in all the registered documents, the grand father and father of the person
claiming such status were described as 'Kshatriyas'. Such documents were
considered relevant for deciding his status as to community/caste/tribe of a
person and it was noted that even in the civil suit, the person claimed to be
belonging to 'Konda Raju', which is equivalent to 'Konda Dora' community. It
was claimed therein also that some 'Konda Doras' called themselves as 'Konda
Rajus' and 'Kshatriyas' due to their elevated position.
61. Regu Maheswara Rao v. Vyricherla Kishore Chandra Suryanarayana Deo34
ended in a different result, wherein the returned candidate belonged to Kurupam
zamindari family claimed to be belonging to 'Konda Dora' community, a hill tribe
of the then Vizagpatnam district and the election petitioner therein claimed the
returned candidate to be belonging to 'Kshatriya' family and caste otherwise
known as 'Rajus'. Vyricherla family was also stated to be related to
Shatrucharla family and Poosapati family belonging to 'Kshatriya' caste and it
has no marital or other relations with any family belonging to the Scheduled
Tribes in the District or the State. While observing that under Section 90 of
the Indian Evidence Act, 1872, presumption can only be drawn with regard to
attestation and execution of the document but not to the contents of the
document, it was observed that the recitals in the documents with regard to
community or caste of a person, who sold the property or purchased the property,
are not required to be noted in the sale deeds and even if the community is
noted of a person in the document, it is of fragile value. It was also opined
that even assuming for a moment that caste or community is mentioned in a sale
deed, it does not necessarily lead to draw an irresistible conclusion that the
party to the document belongs to the particular community as described in the
document. Hence, such recitals cannot be taken as conclusive proof and at best
it can be taken as one circumstance so as to support the other acceptable
evidence, if any, available on record. Probative value of the factum of
community as mentioned in the sale deeds was considered to be a very weak piece
of evidence. The contents of a plaint describing the caste or community were
also considered to be not conclusive evidence and the entries in a school
admission register were not relied on due to the register being not maintained
by any public authority or public official in the course of regular official
duty, more so when the maintenance of the register was not traced to the
relevant statute. So, that was also considered to be not a conclusive proof of
the returned candidate belonging to 'Kshatriya' community. The absence of
marriages with any other Scheduled Tribe family was also ignored due to
prevalence of inter-caste marriages in these days and the oral evidence was
discussed in detail to disagree with the election petitioner and the mention of
the community of the returned candidate or his ancestors in the documents as
'Kshatriyas' was held to lead to only some suspicion and even if over the course
of period of after 'Konda Doras' are called as 'Kshatriyas' or "Rajus' who are
living in the tribal areas, it cannot be said that the returned candidate does
not belong to 'Konda Dora' community. In the statement of the returned
candidate in the enquiry that he belongs to 'Konda Raju', was explained and the
election petitioner was noted to have failed to establish his case beyond all
reasonable doubt. Consequently, the election petition is dismissed.
62. In C.A. No.1897 of 2011, the Apex Court dismissed the appeal against
the said judgment on 04-03-2011 and a review petition was also dismissed on 25-
08-2011, in R.P.(C) No.1866 of 2011 as there was no satisfactory explanation for
the delay in filing the same and further as no case for review is made out.
63. On the effect of refusal of special leave, Kunhayammed and others v.
State of Kerala and another35 laid down that an order refusing to grant special
leave to appeal may be a non-speaking order or a speaking one and in either
case, it does not attract the doctrine of merger. All that it means is that the
Court was not inclined to exercise its discretion so as to allow the appeal
being filed.
64. Thus, in Regu Maheswara Rao v. Vyricherla Kishore Chandra
Suryanarayana Deo (34 supra), the recitals in the document concerning community
or caste of a person not required to be noted therein were only considered to be
of fragile value but not of any stronger effect. Similarly, the contents of
pleadings before a Court or the entries in a school admission register or
absence of marriages with any Schedule Tribe families. The conclusions were on
the probabilities arrived at on the oral and documentary evidence placed before
the Court in that case, wherein the election petitioner failed to establish his
case beyond all reasonable doubt. The effect of a decision on merits in the
earlier election petition in a subsequent election petition, as already stated,
was clarified in Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju and others
(31 supra), wherein it was clearly laid down that adjudication in an election
petition not inter-partes cannot operate as res judicata in a subsequent
election petition challenging that subsequent election. Each case has to be
determined on its own merits on the evidence placed before the Court and the
cumulative effect of each piece of evidence placed before the Court in that case
was considered not to be of such persuasive effect as to believe the returned
candidate to be not belonging to a Scheduled Tribe, whereas in the present case,
notwithstanding the strength or weakness in the case of either party, the total
and cumulative effect of the evidence on record can only be that the 1st
respondent was not probablised to be a member of 'Konda Dora' Scheduled Tribe
and on his own pleadings and evidence, he presented himself to be belonging to
'Konda Raju' caste/sub-caste, which cannot be equated to 'Konda Dora' Tribe. It
is true that in Laxman Siddappa Naik v. Kattimani Chandappa Jampanna and
others36, it was observed that when there was no evidence one way or the other,
the election petitioner could not succeed on the weakness of the case of the
opposite party. It was also held that an election is something which cannot be
readily set aside and there must be proof and convincing proof that a person is
not properly chosen to fill a particular seat and mere suspicion or surmise is
not sufficient.
65. Similarly, in M. Chandra v. M. Thangamuthu and another37, it was
laid down that it is a settled legal position that an election petition must
clearly and unambiguously set out all the material facts which the petitioner is
to rely upon during the trial, and it must reveal a clear and complete picture
of the circumstances and should disclose a definite cause of action, in the
absence of which, an election petition can be summarily dismissed. An election
result, where the people elect their representatives, cannot be taken lightly
and for an election result to be annulled there must be positive evidence to
prove illegality of the election.
The burden of proof shall lie on the petitioner filing the election petition.
66. However, in K.C. Kapoor v. Radhika Devi38, it was pointed out that
even if inartistically drafted, a written statement should not be construed in a
hyper technical manner and what is to be seen is whether the allegations made
gave sufficient notice to the plaintiffs of what case they have to meet.
It is
not either on the inartistic drafting of the written statement or ambiguous
presentation of the material facts that a conclusion is arrived at herein, but
on the clear allegation in the election petition that the 1st respondent does
not belong to 'Konda Dora' Scheduled Tribe and positive denial in the written
statement by asserting the 1st respondent to be belonging to 'Konda Raju' caste.
The assertion that the 1st respondent is a 'Kshatriya' made in the election
petition was denied in the written statement and though it is true that the 1st
respondent might not have been proved beyond all reasonable doubt to be a
'Kshatriya' from Exs.P.1 to P.11, which, of course, positively disclosed the
members of the family of the 1st respondent claiming all the trappings of
'Kshatriyas' since long, a clear and complete picture of the circumstances
disclosing a different cause of action to conclude the 1st respondent to be a
'Konda Raju' and not a 'Konda Dora' arose not only from the election petition
specifically referring to the family of the 1st respondent being specifically
referred to as belonging to 'Hill Rajah' or 'Konda Raju' caste but also from the
very pleadings and evidence of the 1st respondent, the effect of which cannot be
brushed aside with reference to any weakness or deficiency in the pleadings and
evidence of the election petitioner, the question of burden of proof losing all
its relevance once the evidence of both parties is placed before the Court and
this is not a case of no evidence for either party.
On such facts, circumstances
and evidence, it has to be, therefore, concluded that the 1st respondent is
proved to be not belonging to a Scheduled Tribe and is, therefore, not qualified
to be chosen to fill a seat in the Legislative Assembly of the State of Andhra
Pradesh reserved for the Scheduled Tribes of the State, as he is not a member of
any of the Scheduled Tribes of the State of Andhra Pradesh.
67. Issue No.2:
As the 1st respondent has been, thus, shown to be not qualified to be chosen to
be elected to 130-Kurupam Scheduled Tribe Assembly Constituency reserved for the
Scheduled Tribes of the State of Andhra Pradesh, his election has to be declared
to be void under Section 100(1)(a) of the Act and the election petition has to
be ordered as such under Section 98 of the Act.
The election petitioner
incidentally requested for being declared to have been duly elected in that
election from that constituency and obviously and admittedly, he did not receive
a majority of the valid votes polled in that election within the scope of
Section 101(a) of the Act and he cannot be considered to be falling within the
scope of Section 101(b) of the Act also, as the election of the 1st respondent
fails due to his disqualification, but not due to any corrupt practice. Even
otherwise, in such cases, such a relief is not ordinarily considered and suffice
to refer to Prakash Khandre v. Vijaya Kumar Khandre39, in which the Apex Court
had observed as follows:
"However, in an election where the elected candidate is declared to be
disqualified to contest election and there are more than two candidates
contesting election, there is no specific provision under the Act under which
the person who has secured the next highest number of votes could be declared as
elected. The Act is silent on this point.
Further, it cannot be presumed that
the votes secured by the disqualified elected candidates would have been wasted
or would have been secured by the next candidate who has secured more votes.
If
disqualified candidate was not permitted to contest the election then how the
voters would have votes in favour of the candidate who has secured more votes
than other remaining candidates would be a question in the realm of speculation
and unpredictability.
In such a situation, declaring the election of the
returned candidate on the ground of his initial disqualification to contest the
election by itself would not entitle the election petitioner or any other
candidate to be declared elected."
The relief to be granted herein has to be, therefore, confined to setting aside
the election of the 1st respondent with an appropriate consequential order on
the costs of the election petition.
68. Therefore, the election of the 1st respondent from 130-Kurupam Scheduled
Tribe Assembly Constituency to the Andhra Pradesh State Legislative Assembly as
declared on 16-05-2009 is declared to be void and
the election petition is allowed to that extent and
is dismissed in respect of the declaration sought for
to declare the election petitioner as duly elected from the said Constituency in
the said election.
The parties shall bear their own costs.
An authenticated
copy of this order be communicated forthwith to the Speaker of the Andhra
Pradesh Legislative Assembly and the Election Commission of India under Section
103 of the Representation of the People Act, 1951.
_____________________
G. BHAVANI PRASAD, J
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PETITIONER: FOR RESPONDENTS:
P.W.1: Nimmaka Jayaraju R.W.1: V.T. Janardhan Thatraj
P.W.2: D. Ramakrishna Raju R.W.2: V.T. Satya Prasad
P.W.3: Naguru Neelamani Durga Thatraj
Prasad R.W.3: D. Jaya Prakash Dora
P.W.4: Biddiki Kadai R.W.4: Shambana Ramulu
P.W.5: Allen Yendannadora R.W.5: Mandangi Prasada Rao
R.W.6: Rajapu Sanyasi Dora
DOCUMENTS MARKED
FOR PETITIONER:
Ex.P.1/20-01-1945/ Registration extract of sale deed No.132 of 1945
Ex.P.2/16-03-1945/ Registration extract of sale deed No.419 of 1945
Ex.P.3/07-08-1947/ Registration extract of sale deed No.1294/1947
Ex.P.4/15-05-1948/ Registration extract of sale deed No.821 of 1948
Ex.P.5/15-09-1945/Registration extract of possessory mortgage
deed No.1437 of 1945.
Ex.P.6/15-01-1945/ Registration extract of sale deed No.419 of 1945
Ex.P.7/25-07-1947/ Registration extract of sale deed No.1256/1947
Ex.P.8/26-02-1951/ Registration extract of relinquishment deed
No.468 of 1951.
Ex.P.9/13-04-1953/ Registration extract of sale deed No.1499/1953
Ex.P.10/23-08-1955/Registration extract of possessory mortgage
deed No.1744 of 1955.
Ex.P.11/16-02-2010/Certificate issued by the Principal, Maharajah's
College (Autonomous), Vizianagaram relating to
R.W.2.
FOR RESPONDENTS:
Ex.R.1/ -- /Xerox copies of entries relating to serial No.656 in
the admission register of Maharajah's college,
Vizianagaram for 1963.
Ex.R.1(a)/11-07-2003/Community, Nativity and Date of Birth
Certificate of V.T. Pratyusha Devi issued by
the Revenue Divisional Officer, Parvatipuram.
(as the exhibit number repeated twice).
Ex.R.2/11-07-2003/Community, Nativity and Date of Birth Certificate
of V.T. Sai Durga Prasad Thotraj issued by the
Revenue Divisional Officer, Parvatipuram.
Ex.R.3/07-08-1997/Community, Nativity and Date of Birth Certificate
of Naresh Kumar Thotraj issued by the
Revenue Divisional Officer, Parvatipuram.
Ex.R.4/11-07-2003/Community, Nativity and Date of Birth Certificate
of V.T. Janardhana Thotraj issued by the
Revenue Divisional Officer, Parvatipuram.
Ex.R.5/11-07-2003/Attested copy of Community, Nativity and Date of
Birth Certificate of V.T. Chandra Sekhara Thotraj
issued by the Revenue Divisional Officer,
Parvatipuram.
Ex.R.6/17-01-1998/Community, Nativity and Date of Birth Certificate
of V.T. Sai Durga Prasad Thotraj issued by the
Revenue Divisional Officer, Parvatipuram.
Ex.R.7/03-07-1991/Attested copy of Caste Certificate of V.T.
Haripriya Devi issued by Mandal Revenu Officer,
Parvatipuram.
Ex.R.8/03-07-1991/Attested copy of Caste Certificate of V.T.
Jyotsna Devi issued by Mandal Revenu Officer,
Parvatipuram.
Ex.R.9/03-07-1991/Attested copy of Caste Certificate of V.T.
Satya Prasad Thotraj issued by Mandal Revenu
Officer, Parvatipuram.
Ex.R.10/03-07-1991/Attested copy of Caste Certificate of V.T.
Naresh Kumar Thotraj issued by Mandal Revenu
Officer, Parvatipuram.
Ex.R.11/10-09-1997/Attested copy of Transfer Certificate of Veera
Vara Thodermal issued by Head Master, Z.P.H.
School, Chinamerangi, Vizianagaram District.
Ex.R.12/19-11-1999/Attested copy of Transfer Certificate of V.T.
Chandrasekhara Thatraj issued by Special
Officer, A.P. Residential School, Bhadragiri,
Vizianagaram District.
Ex.R.13/29-06- /Notarised copy of Transfer Certificate of V.T.
Janardhana Thotraj issued by the Principal,
Govt. Junior College, Chinamerangi,
Vizianagaram District.
Ex.R.14/30-11-1994/Attested copy of Transfer Certificate of Veera
Vara Thodaramal Janardhana Thotraj issued by
Head Master, Z.P.H. School, Chinamerangi,
Vizianagaram District.
Ex.R.15/ -- / Certified copy of suit register extract of O.S. No.3
of 1986 on the file of the Subordinate Judge's
Court, Parvatipuram.
Ex.R.16/29-7-1988/Certified copy of decree in O.S. No.175 of 1987
on the file of the Principal District Munsif
Court,
Parvatipuram.
Ex.R.17/10-02-1992/Certified copy of decree in O.S. No.126 of 1991
on the file of the Principal District Munsif
Court,
Parvatipuram.
Ex.R.18/28-4-2000/Certified copy of decree in O.S. No.7 of 1998 on
the file of the Senior Civil Judge's Court,
Parvathipuram.
Ex.R.19/20-3-2006/ True copy of decree in O.S. No.38 of 2004 on
the file of the Senior Civil Judge's Court,
Parvathipuram.
Ex.R.20/06-7-1993/Certified copy of judgment in O.S. No.21 of
1989 on the file of the Subordinate Judge's
Court, Parvatipuram.
Ex.R.21/15-12-2006/Photostat copy of gift settlement deed executed
between Inumurthy Venkateswara Rao (donor)
and Municipal Council of Parvathipuram
Municipality (donee).
Ex.R.22/27-02-2007/Photostat copy of gift settlement deed executed
between Kaparapu Sivunnaidu and others
(donors) and Municipal Council of
Parvathipuram Municipality (donee).
Ex.R.23/28-04-2009/Photostat copy of gift settlement deed executed
between Satyaprasad Thatraj and others
(donors) and Veeravara Thodaramal Jyosna
Devi (donee).
Ex.R.24/ -- /Photostat copy of the Report on the Census,
Census of India, 1891 Volume XIII, Madras by
H.A. Stuart.
Ex.R.25 -- /Photostat copy of Tables A to E, British Territory,
Tables for Feudatory States and a Caste Index,
Census of India, 1891, Volume XV, Madras by
H.A. Stuart.
Ex.R.26/ -- /Photostat copy of Madras District Gazetteers,
Statistical Appendix, Vizagapatnam District,
1905
Ex.R.27/ -- /Photostat copy of Report, Part I, Census of India,
1911, Volume I.
Ex.R.28/ -- /Photostat copy of the Tables, Part-II, Census of
India, 1911, Volume I.
Ex.R.29/ -- / Photostat copy of Part I Report, Census of India,
1931, Volume XIV, Madras by M.W.M. Yeatts.
Ex.R.30/ -- /Photostat copy of Imperial and Provincial Tables,
Part II, Volume XIV, Census of India, 1931 by
M.W.M. Yeatts.
Ex.R.31/ -- /Photostat copy of the Report on the Socio-
Economic Conditions of the Aboriginal Tribes of
the Province of Madras by A. Aiyappan,
Secretary, Aboriginal Tribes Welfare, Enquiry
Committee, 1948.
Ex.R.32/ -- / Photostat copy of the Report, Part I, Census of
India, 1951, Volume III, Madras and Coorg by S.
Venkateswaran, Superintendent of Census
Operations for Madras and Coorg.
Ex.R.33/ -- /Photostat copy of Glossary of Caste Names,
Visakhapatnam District, Census of India, 1951.
Ex.R.34/01-04-1962/Matriculation certificate of Satya Prasad Thatraj
issued by the Registrar, Andhra University.
Ex.R.35/ -- /Photostat copy of Manual of the District of
Vizagapatnam in the Presidency of Madras
(originally published in 1869), Andhra Pradesh
District Gazetteers.
Ex.R.36/ -- /Photostat copy of Vizagapatnam District Gazetteer
in the Presidency of Madras (originally published
in 1907), Andhra Pradesh District Gazetteers.
Ex.R.37/08-09-2000/Community, Nativity and Date of Birth
Certificate of V.T. Haripriya Devi issued by
Revenue Divisional Officer, Parvatipuram.
Ex.R.38/22-9-1992/Caste certificate of V.T. Satya Prasad Thotraj
issued by Mandal Revenue Officer, Parvatipuram.
Ex.R.39/03-07-1991/Caste certificate of V.T. Hari Priya Devi issued
by Mandal Revenue Officer, Parvatipuram.
Ex.R.40/19-3-1988/Caste certificate of V.T. Sundara Narayana
Thotraj issued by Mandal Revenue Officer,
Parvatipuram.
Ex.R.41/08-09-2000/Caste certificate of V.T. Narasimha Priya
Thotraj issued by Revenue Divisional Officer,
Parvatipuram.
Ex.R.42/ -- /True copy of suit extract of O.S. No.42 of 1976 on
the file of the Subordinate Judge's Court,
Parvathipuram.
_____________________
G. BHAVANI PRASAD, J
Date: 21-08-2012
On such facts, circumstances
and evidence, it has to be, therefore, concluded that the 1st respondent is
proved to be not belonging to a Scheduled Tribe and is, therefore, not qualified
to be chosen to fill a seat in the Legislative Assembly of the State of Andhra
Pradesh reserved for the Scheduled Tribes of the State, as he is not a member of
any of the Scheduled Tribes of the State of Andhra Pradesh.
The election petitioner
incidentally requested for being declared to have been duly elected in that
election from that constituency and obviously and admittedly, he did not receive
a majority of the valid votes polled in that election within the scope of
Section 101(a) of the Act and he cannot be considered to be falling within the
scope of Section 101(b) of the Act also, as the election of the 1st respondent
fails due to his disqualification, but not due to any corrupt practice. Even
otherwise, in such cases, such a relief is not ordinarily considered and suffice
to refer to Prakash Khandre v. Vijaya Kumar Khandre39, in which the Apex Court
had observed as follows:
"However, in an election where the elected candidate is declared to be
disqualified to contest election and there are more than two candidates
contesting election, there is no specific provision under the Act under which
the person who has secured the next highest number of votes could be declared as
elected. The Act is silent on this point.
Further, it cannot be presumed that
the votes secured by the disqualified elected candidates would have been wasted
or would have been secured by the next candidate who has secured more votes.
If
disqualified candidate was not permitted to contest the election then how the
voters would have votes in favour of the candidate who has secured more votes
than other remaining candidates would be a question in the realm of speculation
and unpredictability.
In such a situation, declaring the election of the
returned candidate on the ground of his initial disqualification to contest the
election by itself would not entitle the election petitioner or any other
candidate to be declared elected."
The relief to be granted herein has to be, therefore, confined to setting aside
the election of the 1st respondent with an appropriate consequential order on
the costs of the election petition.
Therefore, the election of the 1st respondent from 130-Kurupam Scheduled
Tribe Assembly Constituency to the Andhra Pradesh State Legislative Assembly as
declared on 16-05-2009
is declared to be void and the election petition is allowed to that extent and
is dismissed in respect of the declaration sought for
to declare the election petitioner as duly elected from the said Constituency in the said election.
The parties shall bear their own costs.
An authenticated
copy of this order be communicated forthwith to the Speaker of the Andhra
Pradesh Legislative Assembly and the Election Commission of India under Section
103 of the Representation of the People Act, 1951.
HON'BLE SRI JUSTICE G. BHAVANI PRASAD
Election Petition No.10 of 2009
21/08/2012
Nimmaka Jaya Raju
Janardhana That Raj Veera Vara Thodaramala and others
COUNSEL FOR THE PETITIONER: Sri Bojja Tarakam & Sri V. Raja Manohar
COUNSEL FOR 1ST RESPONDENT: Sri D. Prakash Reddy & Sri P. Kesavarao
^COUNSEL FOR 2 TO 6 RESPONDENTS: --
^COUNSEL FOR 7TH RESPONDENT: -- (Deleted from array of parties)
< Gist :
? CITATIONS:
1. (1995) 4 SCC 32
2. AIR 1959 SC 422
3. AIR 1954 SC 139
4. (2008) 2 SCC 186
5. (1982) 2 SCC 202
6. AIR 1983 AP 181
7. AIR 1988 SC 1796
8. (2006) 5 SCC 584
9. AIR 1977 Karnataka 115
10.A.I.R. 1927 Calcutta 229
11.AIR 2001 SC 2231
12.(2003) 8 SCC 204
13.AIR 1968 SC 1413
14.AIR 1973 SC 626
15.(1994) 6 SCC 241
16.(1997) 2 SCC 571
17.AIR 1997 SC 1199
18.AIR 1996 SC 1182
19.(1996) 4 SCC 431
20.AIR 1969 SC 597
21.AIR 1965 SC 1269
22.AIR 1965 SC 1557
23.(1980) 3 SCC 169
24.1984 (Supp.) SCC 77
25.AIR 2001 SC 393
26.(1996) 3 SCC 585
27.(1996) 3 SCC 576
28.(2008) 9 SCC 54
29.AIR 1959 SC 1318
30.2004(4) ALT 14
31.2005 AIR SCW 6197
32.2006 (5) ALT 289
33.2001 (6) ALD 582 (FB) = 2001 (6) ALT 433
34.2011 (1) ALT 789
35.(2000)6 SCC 359
36.AIR 1968 SC 929
37.(2010) 9 SCC 712
38.(1981) 4 SCC 487
39.(2002) 5 SCC 568
ORDER:
An election petition under Section 81 read with Section 5(a) and Section
100(1)(a) and (d)(i) of the Representation of the People Act, 1951 (for short
"the Act") to declare the election of the 1st respondent to 130-Kurupam (S.T.)
Assembly Constituency to be null and void, set aside the same and declare the
petitioner to have been duly elected as Member from that Constituency under
Section 84 of the Act.
2. The petitioner claims to have contested the election to 130-Kurupam (S.T.)
Assembly Constituency held on 16-04-2009 as the candidate of Praja Rajyam Party,
while the 1st respondent contested as the candidate of Indian National Congress
Party and respondents 2 to 6 are the other contesting candidates from other
parties or as independents.
While the 1st respondent secured 48,493 votes, the
petitioner secured 33,440 votes and the 1st respondent was declared elected on
16-05-2009.
The petitioner claims to be belonging to 'Jatapu Tribe' included in
the Scheduled Tribes Order, 1976 in relation to the State of Andhra Pradesh.
The 1st respondent is 'Kshatriya', which is not included in the List of Scheduled Tribes concerning the State of Andhra Pradesh.
The family of the 1st
respondent who is a permanent resident of Parvathipuram, Vizianagaram district,
hails from Addapusila in Parvathipuram Mandal and is originally a zamindari
family of Belgam Estate.
In the Manual of the District of Vizagapatnam in the
Presidency of Madras, published by the State Editor, District Gazette, Hyderabad, Andhra Pradesh in Chapter-XII relating to Belgam Family and Estates at page 327, it is mentioned that the family belongs to 'Hill Rajah' (Konda Raju) caste.
In 2004(4) ALT 14,
the High Court referred in paragraph 84 to the
Manual of District of Vizagapatnam in the Presidency of Madras, compiled and
edited by D.F. Carmichael, which was reprinted in 1869 and referred to Hill
Zamindaris from pages 322 to 332 mentioning the caste to which the respective
zamindars belong.
Belgam Zamindar was shown as 'Konda Raju' and the 1st
respondent is, therefore, not qualified to contest from 130-Kurupam (S.T.)
Assembly Constituency, reserved for Scheduled Tribes, since he is not a member
of any of the Tribes in the State of Andhra Pradesh.
The family of the 1st
respondent described themselves as 'Kshatriyas' in registered documents Nos.132
of 1945, 419 of 1945 and 1294 of 1947 executed by the real brother of the 1st
respondent's grand father, 821 of 1948 executed by the great grand father of the
1st respondent, 1909 of 1962 executed by the great grand father of the 1st
respondent and another registered document, dated 07-05-1957 executed by the 1st
respondent's ancestor.
In the last two documents, the 1st respondent's father
was a signatory.
The mother of the 1st respondent also hailing from 'Kshatriya'
caste is the sister of Sri Satrucharla Vijaya Rama Raju, who was declared in
Election Petition No.13 of 1999 as not belonging to any Scheduled Tribe in
Andhra Pradesh State, but belonging to 'Kshatriya' caste.
This petitioner is
the petitioner therein and the judgment was confirmed by the Supreme Court in a
decision reported in 2005 AIR SCW 6197. The 1st respondent's mother is the
Chairperson of the Parvathipuram Municipality, having been elected from Ward
No.26, reserved for Scheduled Tribe, on which the petitioner filed a petition
before the District Collector, Vizianagaram to enquire into the social status of
the mother of the 1st respondent under the Andhra Pradesh (Scheduled Castes,
Scheduled Tribes & Backward Classes) Regulation of issue of Community
Certificate Act, 1993 and Rules 1997 and the petitioner filed W.P. No.27217 of
2008 complaining against the inaction of the Collector.
The High Court directed
on 28-01-1999 the District Collector, Vizianagaram to take final decision before
15-05-2009 and the enquiry is pending. Though the petitioner objected to the
nomination of the 1st respondent, the 7th respondent rejected the said objection
and 'Kshatriya' caste was not included in part-I of the Schedule relating to the
State of Andhra Pradesh under the Scheduled Castes and Scheduled Tribes Orders
(Amendment) Act, 1976 or the 1993 State Act or in the earlier List prepared in
1950.
The 1st respondent styling himself as a person belonging to Scheduled
Tribe, deprived the people of 130-Kurupam (S.T.) Assembly Constituency of
getting a Scheduled Tribe person elected as their representative, by playing
fraud and hence, the election petition.
3. The 1st respondent in his written statement claimed that originally he
belongs to 'Konda Dora' community, which is one of the several sects in
Scheduled Tribes.
Jagannadha Patro was the prepositor of the family, whose son
Somasundara Narayana Patro was granted Sannad/grant making him the then zamindar
of Belgam Estate from 1803 to 1814.
His son Dhanunjaya-I was the zamindar from
1814 to 1849. His younger brother Vishwambara was the zamindar since his death
till 1865. Narayana Ramachandra, his son, was the zamindar from 1865 to 1882
and his adopted son Shiva Narayana was the zamindar from 1882 till his death.
Then Dhanunjaya-II was the zamindar till his death in 1888 issueless and there
was a dispute regarding succession to the Estate between the children of
Chandrashekhara Thatraj, the second son of Shivanarayana.
The dispute between
Suryanarayana and Sundara Narayana was resolved making both the persons succeed
to their Estate with Suryanarayana succeeding to the Parvathipur Estate (HUNDA)
and Sundaranarayana succeeding to Belgam Estate (HUNDA).
Sundaranarayana was
succeeded to the Estate by Janardhana, the eldest son, while the second son
Bhavanarayana had a son Venkateshwara Prasad who died issueless. Janardhana is
the great grand father of the 1st respondent, whose son Pratap Chandra succeeded
him and during the life time of Pratap Chandra, the grand father of the 1st
respondent, the estates were abolished under a Statute. Pratap Chandra had two
sons, Satya Prasad-the father of the 1st respondent, and Ananth Narayana-the
father of Laxmi Kumar. The 1st respondent has four brothers including himself
and two sisters--Sundaranarayana, Chandrasekhar, Janardhan, Naresh Kumar,
Jyothsna, Hari Priya and himself.
The 1st respondent, thus, belongs to 'Konda
Dora' sect/tribe, which is a Scheduled Tribe.
The 1st respondent stated that he
belongs to 'Konda Raju' caste, which is enumerated as a sub-caste of 'Konda
Dora' community under the Scheduled Tribes category. The rites and customs of
the community from times immemorial would also indicate that the 1st respondent
is a member of Scheduled Tribe, like re-marriage of the elder brother's widow to
the younger brother or the lady members of the family wearing beads or customary
divorce by the caste elder or acceptance of 'Gandharva' form of marriage or
speaking in Oriya and Telugu languages or worshiping Goddesses like Durga,
Talupulamma Thalli, Lappala Polemma and Jakari or eating pork and mutton or
drinking in family occasions or burning dead bodies or observing 'Menarikam'
marriages.
The 1st respondent further submitted that one Nishada was the
prepositor of the Scheduled Tribes, who had five sons, the inter-marriages
between whose descendents led to formation of different castes and sub-castes,
one of which being 'Konda Dora', which has several sub-castes, including 'Konda
Raju', which is a Scheduled Tribe.
The 1st respondent further claimed that
Vishwambora Deo of Jaipur (Jeypore) was the main zamindar with several fiefs
under him recognized as incharges of different hill areas, which were
subsequently recognized and developed into estates by virtue of grants. The
family of Belgam Estate belongs to 'Konda Raju' caste and Veeravara Thodaramallu
That Raj Jagannath Patro was the Dewan of Ramachandra Deo of Jaipur (Jeypore)
and in 1796, fourteen villages in the neighbourhood of Parvathipur were taken
from contiguous hill zamindars and were given for life to his son Somasundara
Narayana Patro in acknowledgement of his father's services. The same was
converted into a Hill Zamindari tenure and the successors of Somasundara
Narayana Patro succeeded to the Hill Zamindari till its abolition under the
Andhra Pradesh Estates Abolition and Conversion into Ryotwari Act, 1948. The
1st respondent, thus, belongs to 'Konda Raju' sub-caste in 'Konda Dora'
community, which is a Schedule Tribe community. The 1st respondent and his
family were always treated as members of Scheduled Tribe and were issued caste
certificates by the concerned authorities as such and after the Andhra Pradesh
(Scheduled Tribes, Scheduled Castes & Backward Classes) Regulation of Issue of
Community Certificate Act, 1993 and Rules 1997, all the family members of the
1st respondent were given permanent/life certificates. The status of the 1st
respondent and all other family members was shown as 'Konda Dora' by caste in
all the school and college records and certificates. Fee concessions and
scholarships were extended to them as such and in various suits filed by the
family members, exemption from paying Court fee was claimed and given as per
G.O.Ms. No.381 of 1968. In O.S. No.21 of 1989, one of the family members of the
agnates of the 1st respondent filed a suit for declaration about belonging to
'Konda Dora' family and a consequential injunction specifically claiming through
the Hill Zamindar of Belgam. It was specifically pleaded that the description
of the plaintiffs therein and other family members as 'Kshatriyas' was only a
description of status as rulers of the Hill zamindaris and they referred to
"Caste and Tribes of South India" by Edgard Thurston referring to the Hill
zamindars as the Hill Tribes, also called as 'Konda Rajus', while the District
Collector and the Mandal Revenue Officer defending the suit denied the claim in
their written statements. The suit was decreed after an elaborate enquiry on
06-07-1993 holding the plaintiffs therein to be belonging to 'Konda Dora'
community and the suffix by name 'That Raj' was not Raju. The persons belonging
to the community of the 1st respondent have similarly approached the High Court
with writ petitions for similar reliefs, which were granted and even the
documents executed by the 1st respondent's family members, their pattadar
passbooks and title deeds mentioned them to be belonging to 'Konda Dora' caste.
The census of Government of India of 1891, 1901 and 1931 also showed 'Konda
Dora' caste to be a Scheduled Tribe with various sub-castes including 'Konda
Raju'. When the 1st respondent's father contested in 1977 for Parvathipuram
Assembly constituency, reserved for the Scheduled Tribes, nobody raised a
similar objection. In 2006 elections to Zilla Parishad Territorial
Constituency, the petitioner and the 1st respondent contested from Jiyamma-
valasa Mandal as Telugu Desam and Indian National Congress nominees respectively
and the objection of the petitioner regarding the social status of the 1st
respondent at the time of scrutiny of nominations, was overruled. After the 1st
respondent defeated the petitioner in the election, the petitioner did not file
any election petition questioning the election of the 1st respondent,
particularly questioning his social status, which amounts to waiver and
acquiescence making the principle of estoppel operate against the petitioner.
The 1st respondent's mother was elected unanimously from 26th Ward of
Parvathipuram Municipality in the elections in 2005 and the said Ward was
reserved for Scheduled Tribe Community and her election was not disputed by
anybody. She was later elected as a Chairperson of the Municipality.
Descriptive particulars mentioned in the registered documents will not, in any
manner, indicate and decide the status of any individual merely because of the
description by the document writer. The word 'Kshatriya' is only a description
of the status as ruler of the area. The judgment in E.P. No.13 of 1999,
confirmed in C.A. No.1102 of 2004 is a judgment in personam and not judgment in
rem and will not operate as res judicata, more so as each election petition has
a fresh cause of action. The allegations of the petitioner are specifically
denied and the 1st respondent claimed the election petition to be without merits
and requested for its dismissal with exemplary costs.
4. The returning officer impleaded as the 7th respondent, filed a written
statement before E.P.M.P. No.464 of 2010 was allowed and the 7th respondent was
deleted from the array of parties on 30-07-2010. The 7th respondent stated in
the written statement that No.130-Kurupam (S.T.) Assembly Constituency is
exclusively reserved for Scheduled Tribes and on 31-03-2009 the petitioner filed
an objection petition before the 7th respondent alleging the community
certificate of the 1st respondent to be invalid, since he is nephew of
Satrucharla Vijaya Rama Raju and the 1st respondent to be not entitled to
contest as a Scheduled Tribe candidate. The 7th respondent cross-checked the
caste certificate issued by the Revenue Divisional Officer, Parvathipuram in
favour of the 1st respondent and finding it to be genuine, overruled the
objection of the petitioner. A certified copy of the decision of the 7th
respondent was served on the petitioner on the same day.
5. The following issues were settled for trial and determination of the
election petition.
(1) Whether the 1st respondent does not belong to a schedule tribe ?
(2) To what relief ?
6. P.Ws.1 to 5 and R.Ws.1 to 6 were examined and Exs.P.1 to P.11 and R.1 to
R.42 are marked.
7. Sri Bojja Tarakam, learned senior counsel and Sri V. Raja Manohar, learned
counsel for the petitioner and Sri D. Prakash Reddy, learned senior counsel and
Sri P. Kesavarao, learned counsel for the 1st respondent are heard. Respondents
2 to 6 did not enter appearance in person or through counsel.
8. Issue No.1:
The election petitioner as P.W.1 claimed that he and respondents 1 to 6
contested the election to No.130-Kurupam (S.T.) Assembly Constituency in the
general elections to the State Legislative Assembly held on 16-04-2009. The 1st
respondent was declared elected and he does not belong to Schedule Tribe, but is
a 'Kshatriya' by caste, the objections of the election petitioner in this regard
having been rejected by the 7th respondent. The petitioner further claimed that
he filed Election Petition No.13 of 1999 challenging the election of Satrucharla
Vijaya Rama Raju from Naguru constituency in 1999 and the High Court declared
him to be not belonging to any Schedule Tribe, which was confirmed by the
Supreme Court. The 1st respondent is the son of the sister of Sri Satrucharla
Vijaya Rama Raju by name Veera Vara Thodaramal Narasimha Priya Thatraj, at
present Chairperson of Parvathipuram municipality, having been elected from Ward
No.26 of Parvathipuram municipality, reserved for Scheduled Tribes. The
petitioner claimed that the forefathers of the 1st respondent belong to
Addapusila village of Parvathipuram Mandal and the family are zamindars of
Belgam. The 1st respondent contested against him in the Zilla Parishad
Territorial Constituency elections in 2006 and Satrucharla Chandrasekhara Raju,
the junior maternal uncle of the 1st respondent opposed him in 1994 elections.
The petitioner produced registration extracts of documents claimed to have been
executed by the forefathers of the 1st respondent, marked as Exs.P.1 to P.10
with the father of the 1st respondent joining as the fourth executant in the
original of Ex.P.9. He also filed Ex.P.11 certificate obtained by him from the
Principal of Maharajah's College, Vizianagaram concerning the father of the 1st
respondent. He admitted that in 1994 elections, he did not raise any objection
about Satrucharla Chandrasekhara Raju not belonging to a Scheduled Tribe. He
also admitted that he supported Sri Satrucharla Vijaya Rama Raju, when he
contested as Telugu Desam candidate from Parvathipuram Lok Sabha Constituency,
reserved for Scheduled Tribes. He further admitted that the objection against
the Scheduled Tribe status of Satrucharla Chandrasekhara Raju in Zilla Parishad
Territorial Constituency elections in 2000-2001, was not sustained by the
returning officer. The election of the 1st respondent's mother from Ward No.26
of Parvathipuram Municipality was also admittedly not challenged and he further
admitted that Zilla Parishad Territorial Constituency from Jiyamma-valasa Mandal
was reserved for Schedule Tribes, for which the 1st respondent won against him
in 2006, which election he did not challenge by way of any election petition,
though he claimed to have raised an objection at the time of scrutiny of
nominations. He does not know whether the members of the 1st respondent's
family were availing the benefits available to the members of Scheduled Tribes
in education or legal proceedings. He admitted the decision of the 7th
respondent against his objection, dated 31-03-2009 and he claimed to be knowing
about the Hill Zamindari families of the area. Satrucharla Chandrasekhara Raju
and Vijaya Rama Raju belonged to Merangi Hill Zamindars family, while Vyricherla
Kishore Chandradev, Parliament Member from Araku, belongs to Kurupam Hill
Zamindari family. P.W.1 further claimed that Kishore Chandradev was announced
by the Collector to be belonging to a Scheduled Tribe and he asserted that
persons of Merangi family are treated socially in the area as 'Kshatriyas'.
Families of Hill Zamindars were stated to be having no marital relationship with
the persons belonging to Scheduled Tribes and as they were ruling the areas and
were widely accepted socially as rulers, they are believed to be 'Kshatriyas'.
P.W.1 also asserted that they were never described as 'Konda Doras in their
documents, but were described as 'Kshatriyas', which was the basis for his
claim. While he does not know whether there are sub-castes among 'Kshatriyas'
or whether 'Konda Rajus' come under 'Kshatriya' community or not, he stated that
to the best of his knowledge there is no Tribe by name 'Konda Raju'. 1891
Census did not contain any sub-caste 'Konda Raju' under 'Kshatriya' caste. He
claimed to have filed the election petition on the basis of Exs.P.1 to P.11 and
he did not take recourse to any proceedings challenging the Scheduled Tribe
certificate issued to the 1st respondent nor did he take any steps for
cancellation of the same. He denied that the surname 'Thatraj' exists for the
families in Bissamkatak, Ganjam district and in Savara community and
specifically in Gummalakshmipuram Mandal of Vizianagaram district. He also
claimed that there is one 'Thatraj' in Savara community with surname 'Beddika'.
Belgam is said to be part of Parvathipuram town and he denied the executants of
the originals of Exs.P.1 to P.10 being not connected or related, in any manner,
to the family of the 1st respondent. While stating 'Konda Doras' to be
predominantly an agricultural community, he spoke about the customs of 'Illu
Chupulu' and 'Pappu Koodu' for settlement of a marriage. He also stated that
the families will be drinking 'Vippa Sara' during festive occasions for 'Konda
Devatas'. 'Menarikam' marriages are performed in 'Konda Dora' tribe. The
practice of customary divorce before caste elders is also among the Tribe. He
denied any manipulation in obtaining Ex.P.11 certificate and 1891 census shown
to him showed 'Konda Dora' in Group No.4, Class-A, while 'Kshatriya' caste was
shown in Class-A of Group No.1 and 'Konda Raju' was mentioned as one of the sub-
castes of 'Konda Dora'. The various 'Rajas' representing Hill Estates came
originally under the kingdom of Maharaja of Jeypore and the various titles of
the Hill Estate holders were conferred by Maharaja of Jeypore. P.W.1 does not
know whether the 1st respondent and his brothers and sisters were shown in the
school and educational records as belonging to 'Konda Dora' tribe and whether
community certificates were issued to them as such before and after A.P. Act 16
of 1993.
9. P.W.2, Principal of Maharajah's College, Vizianagaram, working in the
college since 30 years, produced the admission register of the college for the
academic year 1962-63 to state that the 1st respondent's father was admitted in
the college on
22-06-1962 and he was mentioned as 'Kshatriya'. He also stated that he issued
Ex.P.11 certificate on the basis of the college records in response to an
application under the Right to Information Act. The entry relating to the 1st
respondent's father in the register was at serial No.656 and denied the entry
being in different handwriting than the other entries. While admitting that he
has no personal knowledge about the authorship and correctness of the entries,
he explained that the entries in the admission register are made on the basis of
the contents in the certificates enclosed to the applications. He also stated
that the entry at serial No.97 relating to the 1st respondent's father has a
correction in name, endorsed to be on the basis of the Matriculation record of
Andhra University. He denied manipulation of the entries in the admission
register or issuing of Ex.P.11 based on such manipulated entries. Ex.R.1 is
xerox copy of entries relating to serial No.656 in the admission register.
10. P.W.3, the Sub-Registrar of Parvathipuram, spoke about Exs.P.1 to P.10
registration extracts being issued by their office. While admitting that the
caste or tribe of the parties to a document are not required for execution, he
had no personal knowledge about the contents of Exs.P.1 to P.10 and was not
present at the time of registration.
11. P.W.4 claiming to be knowing the family of the 1st respondent, stated that
they are 'Kshatriyas' and have no relationship with the members of 'Savara'
Schedule Tribe to which he belongs. He stated that among the Scheduled Tribes,
there are only 'Konda Doras' and no 'Konda Rajus' and there are only four
Scheduled Tribes in their area, 'Savara', 'Gadaba', 'Jatapu' and 'Konda Dora'.
Though he denied any interest in politics, he had to admit being involved in
them and his only acquaintance with the 1st respondent was during his
campaigning.
12. P.W.5 claiming to be belonging to 'Konda Dora' community, a Scheduled
Tribe, claimed the family of the 1st respondent to be 'Rajus'/'Kshatriya Rajulu'
and have no relation with anybody belonging to 'Konda Dora' Scheduled Tribe.
However, he does not have any acquaintance with the 1st respondent, except that
he was coming during various elections.
13. The 1st respondent as R.W.1 claimed to be belonging to 'Konda Raju' caste,
enumerated as one of the sub-castes in 'Konda Dora' community under Scheduled
Tribes. While he reiterated the contents of his defence in the written
statement, he stated that he and his family members were always treated as
members of Scheduled Tribes. He claimed that any descriptive particulars in
registered documents cannot indicate and decide the status of any individual.
He produced Exs.R.1 to R.10 caste certificates of himself and his family
members, Exs.R.11 to R.14 attested copies of transfer certificates of himself
and his family members, Exs.R.15 to R.19 certified copies of decrees in suits
signifying exemption from payment of Court fee, as they belong to Scheduled
Tribe, Ex.R.20 certified copy of the judgment and decree in O.S. No.21 of 1988
(1989), wherein the Government stated in defence that the suffix 'Thatraj'
signifies the Hill Zamindars of Parvathipuram and Belgam Estates being 'Konda
Doras', Exs.R.21 to 23 certified copies of the documents by the family members
signifying that they belong to 'Konda Dora' Tribe, Exs.R.24 to R.33 attested
copies of census index and report from 1891 to 1951, Ex.R.34 original
matriculation certificate of his father, Ex.R.35 attested copy of the
Vizagapatnam District Manual, Ex.R.36 the attested copy of Vizagapatnam District
Gazette of 1907, Exs.R.37 to R.41 attested copies of the caste certificates of
the members of his family and Ex.R.42 certified copy of the suit extract in O.S.
No.42 of 1976. The 1st respondent stated the word 'Thatraj' to be a title
conferred on his family by Maharaja of Jeypore. He does not know the meaning of
the words 'Thatraj' or 'Thodaramallu' or 'Patro' and he stated that 'Patro' is
used by people of all castes. R.W.1 stated his elder brother to have been
married to Smt. Usha Rani, grand daughter of Hill Zamindar of Pachi Penta, who
are 'Konda Doras'. He also claimed his other sister-in-law Smt. Ramani to be
belonging to a backward caste and her marriage to be a love marriage. His
sister Jyosthna Devi was married to Varahala Raju in a love marriage and
Varahala Raju belongs to O.C. community and they are called as 'Rajus'. Hari
Priya, the other sister, was also married to an Army person, whose details he
does not know. R.W.1 also stated that the only surviving sister of his father
is living in Dugini of Bihar State and she did not remarry after the death of
her husband. He does not remember whether any women in their family had
remarriage after the death of their husbands, but he stated that there is no
woman in the family who obtained divorce. He claimed to be worshiping Goddess
Jakari, Ippala Polemma and Durga and he claimed that there are 74 sub-castes
among 'Konda Doras' and 'Konda Raju' is a sub-caste in Schedule Tribe. He
stated that the parents of his mother belonged to China Merangi and he did not
know the place of origin of his maternal grand mother. R.W.1's mother was
admitted to have two brothers, Satrucharla Vijaya Rama Raju and Satrucharla
Chandra Sekhara Raju who are also 'Konda Doras', a Scheduled Tribe and he
claimed that the election of Satrucharla Vijaya Rama Raju was set aside by the
Supreme Court, as he failed to obtain the certificate within time and he denied
Vijaya Rama Raju being decided to be a 'Kshatriya' and not 'Konda Dora' by the
Supreme Court. He admitted that a petition to declare his mother to be not
belonging to a Scheduled Tribe is pending before the District Collector and he
denied any names suggested to him being members of his family and he denied
knowing the names or persons involved in Exs.P.1 to P.10 and claimed that there
are 2 or 3 other families in the village in Belgam with suffix 'Thatraj'. He
claimed ignorance about any documents executed by his grand father describing
himself as 'Kshatriya' and he also claimed to be having certificates showing his
parents as 'Konda Doras' like Ex.R.9 of his father. While not knowing whether
there were any certificates indicating their tribal status prior to the
Constitution in 1950, he does not know whether there is any relationship between
their family and about 400 families belonging to 'Konda Dora' tribe living in
the area. He admitted that to his knowledge, except the alliances with the
family of Pachi Penta Zamindars and the family of China Merangi Zamindars, there
are no alliances between their family and other families in the area.
14. R.W.2 is the father of the 1st respondent, who claimed that they belong to
'Konda Dora' Tribe having certificates to that effect and that he contested as a
Member of Parliament from Parvathipuram Parliamentary Constituency in 1977,
which was reserved for Scheduled Tribes and nobody objected to his social
status. While admitting that their family has no relationship with the other
'Konda Dora' Tribe families of Belgam and Addapusila, he claimed 'Patro' to be
their surname and 'Thatraj' to be a title given by Maharaja of Jeypore. He
again stated that they are 'Konda Rajus', a sub-sect of 'Konda Doras' and are
not 'Kshatriyas'. He stated that the word 'Konda Raju' containing the word
'Raju' is used as they are zamindars, but they are part of 'Konda Doras'. He
also had no personal knowledge about the custom of widow marriage. But he
claimed that after his sister's elder son died after marriage, his widow married
his sister's younger son. While he did not observe whether the ladies in other
families also wear beads, he admitted that Satrucharla Viyaja Rama Raju, the
brother of his wife, could not prove his tribal status before the High Court and
the Supreme Court in an election dispute, wherein he also gave evidence. He
could not say whether the High Court or the Supreme Court did not believe his
evidence and he admitted the contents of Ex.P.11 to be correct, except with
reference to mentioning his caste as 'Kshatriya'. While he denied knowing any
of the names suggested to him, he claimed ignorance about his father describing
himself as 'Kshatriya' in the original of Ex.P.9 and he also claimed ignorance
about the original of Ex.P.10 executed during his minority. He stated his
daughters to have undergone inter-caste love marriages and his eldest daughter-
in-law to be belonging to Pachi Penta Hill Zamindari family who are also 'Konda
Doras' and called as 'Muka Doras'. He claimed all his six children to have been
admitted in schools after producing the caste certificates issued by the Revenue
department, but he did not show his own caste certificate to the school
authorities. He admitted that a complaint made to the Collector about his wife
not belonging to Scheduled Tribe is pending enquiry.
15. R.W.3 claiming to be belonging to 'Konda Dora' Tribe, spoke about the
caste customs and practices and claimed to be related to the family of R.W.1
since the times of their forefathers. The mothers of their paternal grand
fathers were stated to be sisters and the family of R.W.1 was stated to be
belonging to 'Konda Dora' tribe. R.W.3 has no idea about the alliances for the
marriages in R.W.1's family and he gave his version of the families of 'Konda
Dora' Tribe in the area, the names in those families, their practices, etc.
16. R.W.4 claiming to be belonging to 'Konda Dora' tribe and to be related to
R.W.1's family since forefathers stated that his elder sister was given in
marriage to Anantha Narayana Thatraj, the junior paternal uncle of R.W.1. He
stated that 'Konda Raju' is the sub-caste of 'Konda Dora' and R.W.1's family is
also called as 'Konda Rajus'.
17. R.W.5, a former Sarpanch and person incharge of Kondavada panchayat,
claimed the 1st respondent to be belonging to 'Konda Dora' Tribe and to be
inviting the 1st respondent whenever there was need for discussions and
agitations over the rights of Girijans.
18. R.W.6 claimed the 1st respondent to be belonging to 'Konda Dora' Tribe and
to be related to him but he does not know the names of the mother or maternal
grand father of the 1st respondent.
19. In the background of such oral evidence, the issuance of Exs.P.1 to P.10
registration extracts by the office of the Sub-Registrar, Parvathipuram, as
spoken to by the present Sub-Registrar as P.W.3, can be taken as probablised and
though P.W.3 had no personal knowledge of the contents of Exs.P.1 to P.10 and
was not present at the time of registration of the originals of Exs.P.1 to P.10,
in the absence of any challenge otherwise, Exs.P.1 to P.10 can be accepted to be
registration extracts of the original documents registered in the office of the
Sub-Registrar at Parvathipuram.
20. Similarly, the evidence of P.W.2 is about Ex.P.11 certificate issued on
the basis of the records of Maharajah's College, Vizianagaram and Ex.R.1 xerox
copy of the entries in the admission register of 1962-63 relating to serial
No.656 along with other entries. Though P.W.2 had no personal knowledge whether
any enclosed certificates to the application of the 1st respondent's father at
the time of his admission were returned to him or not, the college issued
Ex.P.11 in response to an application under Right to Information Act and there
is no reason to suspect the manner of issuance of Ex.P.11. P.W.2 denied the
entry at serial No.656 relating to R.W.2 to be in different handwriting than the
other entries and a perusal of the entries in Ex.R.1 with a naked eye does not,
in any manner, suggest any significant difference in the handwriting and the
very manner of the entries does not even remotely suggest the probability of any
subsequent insertion or manipulation of such entries except that the entry
relating to R.W.2 appeared to be thicker. P.W.2 having no personal knowledge of
the entries at serial Nos.656 to 659 in Ex.R.1 in 1962-63, is but natural. As
to why the college or P.W.2 should resort to any manipulation regarding R.W.2,
is unintelligible and from any suggestions made concerning the entries in
Ex.R.1, there is no reason to suspect the genuineness of Ex.P.1, the contents of
which were based on the college records.
21. While the evidence of P.W.1 and R.Ws.1 and 2 is tainted with
interestedness, the other witnesses are attempted to be projected as
independent. Out of them, P.W.4 shown to be a politician from his admissions,
attempted to claim to be disinterested in politics and his only acquaintance
with the 1st respondent was during his campaigning in the elections. Similar
was P.W.5 whose acquaintance with the 1st respondent was only due to the 1st
respondent coming during various elections and he did not know anything else.
R.W.3, who claimed that the mothers of paternal grand fathers of R.W.1 and
himself are sisters, attempted to state that 'Thatraj' family is never called as
'Rajus' or 'Konda Rajus' contrary to the own claims of R.Ws.1 and 2 and he had
to admit that there are no other families in 'Konda Dora' Tribe with surname
'Thatraj' in their village. R.W.4, who claimed that his elder sister was given
in marriage to Anantha Narayana Thatraj, the junior paternal uncle of R.W.1, on
the other hand, stated that R.W.1's family is also called as 'Konda Rajus' and
'Konda Raju' is a sub-caste of 'Konda Dora'. R.W.6 also claimed to be related
to the 1st respondent, but he does not even know the name of the mother or
maternal grand father of the 1st respondent. While the relationship with the
1st respondent may suggest the evidence of R.Ws.3, 4 and 6 to be not independent
or disinterested, such vague and indefinite oral evidence as that of P.Ws.4 and
5 and R.Ws.3 to 6 is easy to procure and difficult to refute. Too strong
reliance cannot be placed on such evidence to conclude the probablisation of any
fact from such evidence. While R.Ws.3, 4 and 6, being members of Scheduled
Tribe was stated on oath and their claims of being related to the 1st
respondent's family, cannot be straight away brushed aside, the evidence of
P.Ws.4 and 5 and R.W.5 has no verifiable link to act upon their claims about the
1st respondent's social status. Under the circumstances, the oral evidence
including that of P.W.1 and R.Ws.1 and 2 needs to be tested with reference to
the documentary evidence, while the evidence of P.Ws.2 and 3 shows the need to
appreciate the effect of the contents of Exs.P.1 to P.11 without refusing to
consider them. It should be borne in mind as held in Director of Tribal
Welfare, Government of A.P. v. Laveti Giri and another1, that the burden of
proof of social status is always on the person who professes it to seek
constitutional, social, economic advantages. It should also be remembered that
Veluswami Thevar v. Raja Nainar and others2 laid down that an election petition
is an original proceeding with a right to file written statements by way of
reply to it, framing of issues and right to adduce evidence for the parties.
22. Ex.P.1 registration extract of the sale deed No.132/1945, dated 20-01-1945
was executed by Durga Prasad Thatraj, Chandrasekhar Thatraj and Suryanarayana
Thatraj, who described themselves as 'Kshatriyas' and who were stated by P.W.1
to be related to the 1st respondent on the paternal side. Ex.P.2 registration
extract of the sale deed No.419 of 1945 was executed by Suryanarayana Thatraj,
Janardhana Thatraj, Pratap Chandra Thatraj and Narasimha Narayana Thatraj
describing themselves as 'Kshatriyas' and P.W.1 claimed that the great grand
father of the 1st respondent was one of the executants and Janardhana Thatraj
and Pratap Chandra Thatraj figure in the genealogical tree of Belgam Hill
zamindars prepared on behalf of the 1st respondent. Document No.1294 of 1947
marked as Ex.P.3 was also claimed by P.W.1 to be by a person who is grand father
to the 1st respondent by relationship on paternal side who described himself as
'Kshatriya'. Sundara Narayana Thatraj, Janardhana Thatraj and Pratap Chandra
Thatraj were claimed to have executed the original of Ex.P.4 No.821 of 1948 and
P.W.1 claimed the great great grand father of the 1st respondent to be the
executant, who described themselves as 'Kshatriyas'. Ex.P.5 document No.1437 of
1945 had V.T. Janardhana Thatraj, Pratap Surya Chandra Thatraj and
Narasimhanarayana Thatraj as the executants who described themselves as
'Kshatriyas'. Similar was Ex.P.6 document No.419 of 1945 executed by Janardhana
Thatraj, Sundara Narayana Thatraj and Narasimhanarayana Thatraj. Sundara
Narayana Thatraj, son of Janardhana Thatraj appeared to be the executant of the
original of Ex.P.7 document No.1256 of 1947 and P.W.1 claimed the executant to
be the junior paternal grand father of the 1st respondent who described himself
as 'Kshatriya'. Ex.P.8 document No.468 of 1951 was also claimed to have been
similarly executed by a person related to the 1st respondent on the paternal
side. Ex.P.9 document No.1499 of 1953 was claimed to have been executed by the
paternal grand father of the 1st respondent describing himself as 'Kshatriya'
and R.W.2 was the fourth executant of the said document. Ex.P.10 document
No.1744 of 1955 was also claimed to have been executed by the paternal grand
father of the 1st respondent describing himself as 'Kshatriya'. During the
cross-examination of P.W.1, it was suggested that none of the executants of the
originals of Exs.P.1 to P.10 are connected, in any manner, with the family of
the 1st respondent, but R.W.2, the father of the 1st respondent, admitted that
the originals of Exs.P.9 and P.10 were executed during his minority and he does
not know about any recitals therein, including as to whether his father
described himself as a 'Kshatriya'. He also does not know about the execution
of the original of Ex.P.5 and claimed ignorance about the names of various
persons suggested to him. While R.W.2, thus, did not contradict the execution
of the originals of Exs.P.9 and P.10, the 1st respondent himself claimed
ignorance about who executed the originals of Exs.P.1 to P.10 and though he
denied the others connected with Exs.P.1 to P.10 being connected with his
family, he admitted the names of his father, grand father and great grand
father. In his affidavit in lieu of chief-examination, there was no specific
reference to Exs.P.1 to P.10 filed along with the election petition itself. In
the written statement, it was stated that the mention of the status of any
individuals by the scribe of a document cannot be taken as confirming the social
status of an individual and it was attempted to be explained that the word
'Kshatriya' is only a description of the status as ruler of the area. While
none of these documents can be considered to have been possibly manipulated for
the purpose of this litigation by their very age, the similarity of the names
referred to in the documents to those given in the genealogical tree furnished
by the 1st respondent may make the claims of existence of such persons in the
family and the execution of the documents by them, not open to, ex facie,
rejection. At any rate, Exs.P.9 and P.10, which are not denied by R.W.2,
provided, prima facie, proof of the members of the family of the 1st respondent
describing themselves as 'Kshatriyas' in the documents executed by them, which,
even according to the written statement of the 1st respondent, is not denied and
it is only attempted to be explained as reflective of the status of the family
as rulers. Exs.P.1 to P.8 are pre-Constitution documents, the recitals in which
about the social status of the parties, are of, undoubtedly, probative value,
while the description in Exs.P.9 and P.10 is not denied.
23. When it came to Ex.P.11 certificate issued by the Maharajah's college,
Vizianagaram, R.W.2 admitted that the Principal of the College had issued Ex.P.1
relating to him. He also admitted that the contents of Ex.P.11, except with
reference to his caste, are correct and the mention of the caste as 'Kshatriya'
is not correct. If the particulars of R.W.2 recorded in Ex.P.11 with reference
to his father's name, his studies, his date of birth and religion are true, why
the entry about the caste of R.W.2 alone should be believed to have been
manipulated, more so, when the original register had identical entries in
Ex.R.1, is not intelligible. His affidavit in the chief-examination did not
refer to the school or college records of R.W.2 and when R.W.2 claimed that they
are 'Konda Rajus', a sub-sect of 'Konda Doras', it is not intelligible as to why
the college admission record of R.W.2 would not have reflected the same, when
obviously the person who gave the information for making the relevant entries in
the admission record, gave all the other particulars correctly. Even the 1st
respondent as R.W.1 in his chief-examination affidavit in referring to the
college and school certificates of himself and his family members did not make
any specific reference to the school or college records of R.W.2. R.W.1
admitted that he does not know whether there were any certificates regarding the
tribal status of the members of their family prior to 1950. He also does not
know where R.W.2 studied his intermediate and whether he studied the pre-
university course at Maharajah's college, Vizianagaram. While admitting that
Ex.P.11 is as though R.W.2 was described as 'Kshatriya' in the certificate, his
claim that there were caste certificates issued describing the tribal status of
his father since much prior to the contest by his father in the elections, was
not corroborated by the production of any such caste certificates. The
Scheduled Tribe certificate of R.W.1's mother stated to be in existence is also
not before the Court and Ex.R.9 caste certificate filed by R.W.1 was of the year
1991 relating to R.W.2. The petitioner as P.W.1 stated about his obtaining
Ex.P.11 from the Principal of Maharajah's college, Vizianagaram about which he
was not subjected to any cross-examination, though he admitted that apart from
Exs.P.1 to P.11, he has no other documents and he did not file any other
documents showing the social status of the 1st respondent or showing his family
to be a 'Kshatriya' family. On such evidence, the probative value of Ex.P.11,
more particularly the entry about the caste of R.W.2, cannot be totally brushed
aside. Ex.R.34 matriculation certificate of R.W.2 was filed as not referring to
his caste or 'Kshatriya' caste, but the certificate had absolutely no space
meant for the caste of the certified candidate. When the certificate had no
scope for referring to the caste, Ex.R.34 cannot be used to contradict Ex.P.11.
24. Concerning Exs.P.1 to P.11, it may be noted that in Biswambhar Singh and
others v. State of Orissa and another3, the recitals in an ancient public
document, whose authenticity could not be doubted, were considered to furnish
evidence of the existence and genuineness of the document and its terms. The
principles laid down under Section 35 of the Evidence Act need to be referred to
concerning Ex.P.11 and in Desh Raj v. Bodh Raj4, the Apex Court with reference
to Section 35 of the Evidence Act, held that entries in school admission
registers in regard to age, caste, etc., have been considered as relevant and
admissible. Read with other oral or documentary evidence, the entries in school
registers made nearly 40 years prior to the election petition were held to have
evidentiary value. It was also observed that when the school records show a
particular caste, the caste certificates issued to the candidates and his
relatives by the Executive Magistrate showing a different caste should be
ignored, more so when they relate to the period, when the persons started
showing that they belonged to a particular Scheduled Caste. In Umesh Chandra v.
State of Rajasthan5, Section 35 of the Evidence Act was interpreted to mean that
there is no legal requirement that the public or other official book should be
kept only by a public officer, but all that is required is that it should be
regularly kept in discharge of his/her official duty. The record maintained by
the school was considered to be, undoubtedly, unimpeachable and authentic and
could not be suspected or presumed to be tampered with, more so when there could
not have been any motive on the part of the parents of the student to make a
false entry and the school enjoyed good reputation of authenticity. Vijaya Kari
v. Kondamuri Swarnalatha and another6 laid down that under the Educational
Rules, every school is obligated to maintain register of admissions with the
prescribed particulars and such records can be considered as official records
admissible under Section 35 of the Evidence Act. Section 35 of the Evidence Act
provides that the document or record maintained pursuant to any legal obligation
is an official document admissible under the provision and in view of the fact
that the registers are maintained in every school under statutory compulsion,
they can be considered as official records and admissible under Section 35 of
the Evidence Act. In that case, the document was produced by the Head Master of
the school and no discrepancy or motive or interestedness were alleged to
discredit their testimony.
25. In opposition, reliance was placed on Birad Mal Singhvi v. Anand Purohit7,
the question involved in which was the age of the candidate and the parents or
any of the persons having special knowledge about the date of birth of the
candidate were not examined and it was observed that parents or near relations
having special knowledge are the best persons to depose about the date of birth
of a person. It was also held that mere proof of the documents would not
tantamount to proof of all the contents of the documents or the correctness of
the date of birth stated in the documents, unless the person, who made the entry
or who gave the date of birth, is examined. Only if the entry regarding the
date of birth in the scholar's register is made on the information given by the
parents or someone having special knowledge of the fact, the same would have
probative value. It was also pointed out that to render a document admissible
under Section 35 of the Evidence Act, three conditions must be satisfied,
firstly, entry that is relied on must be one in a public or other official book,
register or record, secondly, it must be an entry stating a fact in issue or
relevant, and thirdly, it must be made by a public servant in discharge of his
official duty, or any other person in performance of a duty specially enjoined
by law. While holding that an entry relating to date of birth made in the
school register is relevant and admissible under Section 35, but the entry
regarding the age of a person in a school register is of not much evidentiary
value to prove the age of the person in the absence of material on which the age
was recorded, Courts were stated to have consistently held that the date of
birth mentioned in the scholar's register of secondary school certificate has no
probative value unless either the parents are examined or the person on whose
information the entry may have been made, is examined. Ravinder Singh Gorkhi v.
State of U.P.8 was relied on, wherein it was held that Section 35 of the
Evidence Act requires the following conditions to be fulfilled before a document
is held to be admissible thereunder: (i) it should be in the nature of the entry
in any public or official register, (ii) it must state a fact in issue or
relevant fact, (iii) entry must be made either by a public servant in the
discharge of his official duty, or by any person in performance of a duty
specially enjoined by the law of the country and (iv) all persons concerned
indisputably must have an access thereto. In that case, it was not shown as to
whether any register was required to be maintained under any statute or whether
any register was maintained in the school at all. The original register was not
produced, no person was examined to prove as who made the entries in the
register and hence, the school leaving certificate was not relied on. It was
also observed that the entry of date of birth in the school records is merely a
piece of evidence. In Thimmakku and others v. Bandlu Rangappa and others9, it
was laid down with reference to a school admission register and birth registers
that in the absence of the examination of and testimony by some witness
competent to speak to matters either as to the knowledge of the relationship or
as to the source of the information or statements on which the said recitals
came to be incorporated in the said documents, the recitals in themselves cannot
be treated as substantive evidence and as admissible on the question concerning
paternity purportedly indicated in the said documents, as such entries are
matters extraneous to what is strictly enjoined upon the officer to record.
Khetra Mohan Das and others v. Bhairab Chandra Das and others10, held that the
person producing a document is relieved of the necessity of proving that it was
executed by the person who purported to be the executant, provided that it
satisfies the conditions that it is 30 years old and produced from proper
custody with reference to Section 90 of the Evidence Act, but that is not the
same as saying that the Court shall presume the correctness or genuineness of
every statement appearing in the document. In Ram Deo Chauhan alias Raj Nath
Chauhan v. State of Assam11, with reference to the register of admission of
students, the author of which was not examined, and the register is not
maintained under any statutory requirement, the Court did not place any reliance
on it, more so, on facts, the manner in which the register has been maintained
did not inspire confidence of the Court.
26. Application of the principles to the facts of the present case may not
suggest any justification for ignoring Ex.P.11 altogether. R.W.2 was a student
of Maharajah's college, Vizianagaram during the relevant time, is admitted and
the correctness of all other entries in Ex.P.11 was also admitted by R.W.2. The
entry was one in an official register/record relevant to a fact in issue,
obviously made by a person in performance of his duty. That the maintenance of
such register or record in performance of a duty specially enjoined by law is
obligatory under the relevant statutory rules, received judicial recognition in
Vijaya Kari v. Kondamuri Swarnalatha and another (6 supra). While the relevancy
and admissibility of such an entry can never be in doubt, the evidentiary or
probative value of such an entry, as seen from the precedents, varies with the
facts and circumstances of each case. When the original register was produced
and the person in whose custody the original register remains and who issued
Ex.P.11 was examined and when the persons, on whose information and instructions
the entries were made, could not have been available for being examined due to
mere efflux of time, the original document more than thirty years old can be
presumed to be a dependable piece of evidence as to the factum of such entries
having been made, when they were purported to have been made and there is
nothing in the circumstances of the case not to inspire confidence about
Ex.P.11.
27. The school certificates relating to R.W.2 were not produced so as to be
assessed in contrast with Ex.P.11 and there may be nothing factually or legally
incorrect, if it were presumed that the entries in the school records also would
have been similar as Ex.P.11. It is not claimed by R.Ws.1 and 2 that such
records or certificates are not available and the principle laid down in Punit
Rai v. Dinesh Chaudhary12 that the facts of which special knowledge is with a
party, he alone has to prove those facts by adducing the best evidence on the
point of his belonging to a caste, may be of direct application. There, it was
also laid down that if a party, who is in possession of best evidence, which
throws light on the issue in controversy, withholds such evidence, an adverse
inference under Section 114(g) of the Evidence Act ought to be drawn against
such a party notwithstanding that the onus of proof may not lie on him.
Similarly, Gopal Krishnaji Ketkar v. Mohamed Haji Latif and others13 held that
even if the burden of proof does not lie on a party, the Court may draw an
adverse inference, if he withholds important document in his possession, which
can throw light on the facts in issue. To the same effect is the decision in
Prem Lata v. Arhant Kumar Jain14, wherein it was pointed out that the question
of burden of proof has no importance after both parties have adduced evidence.
28. The election petitioner also filed a copy of the statement of R.W.2, dated
22-02-1993, in which the Tribe of the family was stated to be 'Konda Dora'
throughout and the particulars of education of R.W.2 at Maharajah's college,
Vizianagaram furnished therein do not contradict Ex.P.11. The statement also
appears to have mentioned the family of R.W.2 to be traditionally not dining
with the communities--'Kodu', 'Gadaba', 'Savara', 'Gaita' and 'Jatapu' and to
have matrimonial alliances with 'Manna Dora' and 'Muka Dora' communities.
However, the statement was not marked through any witness and not confronted to
R.Ws.1 and 2 and it is not, hence, referred to in corroboration or contradiction
of the other material on record.
29. Exs.R.1 to R.10 and R.37 to R.41 produced by R.W.1 were claimed to be the
caste certificates of himself and the members of his family. It is no doubt
true that in all these certificates, the family members, including R.Ws.1 and 2
were stated to be belonging to 'Konda Dora' community. While R.W.1 denied the
said certificates having been issued on their applications without conducting
any enquiry, all the post-Constitution certificates appear to be subsequent to
1973 since after the commencement of participation of R.W.2 in the electoral
process and much later to the recitals or entries in Exs.P.1 to P.11.
Similarly, Exs.R.11 to R.14 transfer certificates of R.W.1 and his family
members specifying them to be belonging to 'Konda Dora', a Scheduled Tribe, were
post 1994 certificates. The principle laid down in Desh Raj v. Bodh Raj (4
supra) with reference to such certificates relating to a period of the persons
concerned claiming the privileges of belonging to a particular caste being
ignored, clearly appears applicable with reference to the above certificates
relied on by R.W.1. That was why in Kumari Madhuri Patil and another v. Addl.
Commissioner, Tribal Development and others15, school certificates and college
certificates, which are subject of enquiry, were held to not bear any value, the
caste status having to be considered independently. However, the entries in the
school register preceding the Constitution were held to furnish great probative
value and the caste was noted to be reflected in relevant entries in the public
records or school or college admission register at the relevant time and the
certificates are issued on its basis. While caste is acquired by birth,
subsequent documents manipulated and fabricated to knock off the seats in
educational institutions defrauding the true Scheduled Tribes to their detriment
and deprivation were not relied upon. Incidentally, it was also held in
Nagarajan v. District Collector, Salem and others16, which is a case where an
interpolation in the school certificate added the word 'Konda' for a 'Hindu
Reddi', that the determining factor in such cases is the community to which the
father of the petitioner belonged. By interpolation of documents, none can get
a particular social status.
30. Exs.R.15 to R.19 certified copies of decrees of civil Courts in O.S. Nos.3
of 1986, 175 of 1987, 126 of 1991, 7 of 1998 and 38 of 2004 and Ex.R.42
certified copy of the suit extract in O.S. No.42 of 1976, refer to the
plaintiffs being exempted from paying Court fees as per G.O.Ms. No.381, dated
20-03-1968, as they belong to 'Konda Dora' community. But it is not known from
them whether such exemption was permitted straight away on the claims made by
the plaintiffs therein or after acceptance of any authenticated certificates or
documents to that effect, which could have been acted upon under law or after
any findings after any enquiry. R.W.1 claimed that exemption from payment of
Court fee under Exs.R.15 to R.19 was granted on the strength of the certificates
filed by them into Court, but admitted that Exs.R.15 to R.19 made no such
reference.
31. Ex.R.20 is the judgment in O.S. No.21 of 1989 on the file of the
Subordinate Judge's Court, Parvathipuram, dated
06-07-1993, which suit was said to have been filed for declaring the plaintiffs
therein to be 'Konda Doras' and consequential relief of injunction against the
State represented by the Collector and the Mandal Revenue Officer from
withholding issuance of caste certificate as such. The judgment shows that
though the plaintiffs belonged to Hill Tribe 'Konda Dora', the common notion
prevailing with the authorities concerned is that they belong to the Forward
Caste of 'Kshatriya' community, which was only a description of the status of
the rulers or zamindars. The plaintiffs also appeared to have referred to
"Castes and Tribes of South India" by Edgar Thurston mentioning them to be
'Konda Rajus' who belong to 'Konda Dora' community. The official defendants
contested even then contending the relationship of the plaintiffs therein to be
with 'Kshatriyas' and not members of Scheduled Tribes. The plaintiffs therein
were also denied to be having any relationship with Belgam Zamindari family.
The civil Court noted that undisputably 'Konda Dora' community is a Scheduled
Tribe, while 'Kshatriya' community is not. The civil Court assumed jurisdiction
to declare the caste of the plaintiffs and incidentally, the plaintiffs therein
filed copy of the judgment in Election Petition No.13 of 1983 relating to
Satrucharala Vijaya Rama Raju, who has been subsequently found by this Court to
be not belonging to a Scheduled Tribe in a subsequent election petition, which
has been confirmed by the Apex Court. The judgment in Election Petition No.13
of 1983 formed the basis for the judgment of the civil Court, which presumed
that the suffix 'Raju' attached to rich persons of 'Konda Dora' community is a
symbol of status and prestige of successors to the family of zamindars. With
the subsequent findings by this Court, confirmed by the Apex Court in a
subsequent election petition confirming that Satrucharla Vijaya Rama Raju does
not belong to Schedule Tribe, the persuasive value of the judgment of the civil
Court becomes highly doubtful, apart from the question as to whether the civil
Court is at all competent to give such declaration of any person belonging to a
Scheduled Tribe. Reference may be made to State of T.N. and others v. A.
Gurusamy17, in which a civil suit for a declaration that a person is a member of
a Scheduled Tribe and the jurisdiction of the civil Court to take cognizance of
such a suit, were held to be prohibited. In Swvigaradoss v. Zonal Manager,
F.C.I.18 also, the Supreme
Court held that in the light of the constitutional scheme, civil
Court has no jurisdiction under Section 9 of the Code of Civil Procedure to
entertain a suit for declaring the status of a person as a member of a Scheduled
Caste. Prabhudev Mallikarjunaiah v. Ramachandra Veerappa and another19
reiterated the settled law that Courts cannot give any declaration that the
status with synonymous names of castes claimed by the party is conformable to
the names specified in the Presidential Notification issued under Article 341 of
the Constitution. The judgment of the civil Court to the contrary in that case,
was observed to be not a judgment in rem and to be without basis.
32. Exs.R.21 to R.23 documents, dated 15-12-2006,
27-02-2007 and 28-04-2009, of course, specifically described the executants,
namely, the mother and sister of the 1st respondent as belonging to 'Konda Dora'
caste. But patently, these recent documents resort to such description years
later to the members of the family started claiming and enjoying the
consequential privileges and benefits in educational, electoral and other
aspects arising out of such status.
33. Then come the attested copies of the Census Index and Report from
1891 to 1951 marked as Exs.R.24 to R.33. While the contents of these old and
authoritative documents can be straight away referred to, Ex.R.24 the Census of
India, 1891 report published in 1893 referred to a tribe in Vizagapatnam called
'Konda Dora' or 'Konda Kapu' and 'Konda Doras', 'Konda Kapus', 'Kondas', Manne
Doras' or 'Doras' were stated to have 74 sub-divisions entered into the
Schedules in Chapter-IX of the report. But majority of them were stated to have
returned to the main caste or one of its synonyms. Significantly, it was also
stated that many of the sub-divisions are the names of separate castes, though
Ex.R.25 Tables and Caste Index of the same census gave the names of the main
castes and underneath each caste, the names of the sub-divisions and it is true
that under the caste 'Konda Dora', 'Konda Raju' was mentioned as one of the sub-
divisions.
34. But Ex.R.25 itself cannot indicate 'Konda Raju' sub-division of 'Konda
Dora' caste is not a separate caste, as Ex.R.24 clearly specifies that many of
the sub-divisions are the names of separate castes.
35. Ex.R.26 statistical Appendix of Vizagapatnam District in Madras
District Gazetteers of 1905 mentions the strength of 'Konda Dora' caste, tribe
or race as 80,924 in 1901, which is similar to the strength given in Ex.R.25
relied on as indicating the strength of 'Konda Rajus' to have been shown as part
of the strength of 'Konda Doras'.
36. Ex.R.27 report of Census of India, 1911, Volume I, discusses caste,
tribe and race in detail in Chapter XI and it was recognized that the
segmentation of Hindu society is much more complicated than appears at first
sight and it has taken place in more directions than one. It was stated that a
caste may be defined as an endogamous group or collection of such groups bearing
a common name and having the same traditional occupation, who are so linked
together by these and other ties, such as the tradition of a common origin and
the possession of the same tutelary deity, and the same social status,
ceremonial observances and family priests, that they regard themselves, and are
regarded by others, as forming a single homogeneous community. It was again
said that what is commonly known as the sub-caste or smallest endogamous group,
ought really to be regarded as the caste, and that the caste as defined above is
merely a general term including a number of true castes following the same
profession. A tribe was again stated to be distinguished in its original form
from a caste by the fact that its basis is political rather than economic or
social. It was noted that the changes have always been in progress in the caste
and new castes have come into existence to meet new needs and old ones have been
dissolved when the necessity for them no longer existed. The analysis also
referred to primary division of sub-castes into sub-castes of fusion and sub-
castes of fission and dealt in detail with the various historical and social
processes in the formation or dissolution of castes and sub-castes. The
enlightened analysis of the whole issue in Ex.R.27 may not be corroborative of
the claim that 'Konda Rajus' were a sub-caste and were always a part of 'Konda
Doras' specified as such till 1901 and not thereafter as sought to be contended
on behalf of the 1st respondent in the absence of the background due to which
'Konda Rajus' were initially specified separately and were not later so
referred.
37. Ex.R.28 Tables of Census of India 1911, Volume I were also intended
to indicate the total strength of 'Konda Doras' to include all sub-castes or
sub-tribes including 'Konda Rajus' and so was the reference in Ex.P.29 Report in
Volume XIV of Census of India, 1931.
38. Ex.R.30 Table of Territorial Distribution of Principal Communities
in Census of India, 1931 is also to the similar effect and so are Exs.R.31 and
R.32 and Ex.R.32 Report, Volume III of Census of India, 1951 referred to 'Konda
Dhoras' as one of the Scheduled Tribes notified by the President under Article
342 of the Constitution of India and unlike many other Scheduled Tribes, in
which number of synonyms were also included in the said notification, 'Konda
Dhoras' had no such synonyms or sub-castes or sub-tribes or sub-race being
included in them. For example, item 37 'Savaras' include 'Kapu Savaras', Khutto
Savaras' and 'Maliya Savaras'. 'Konda Kapus' and 'Konda Reddis' were separately
mentioned in items 20 and 21 and 'Konda Rajus' do not find a place. The
Glossary of Caste Names of Visakhapatnam District of Census of India, 1951,
marked as Ex.R.33, mentioned about 'Konda', 'Konda Bestha', 'Konda Doralu',
'Konda Kapu' and 'Konda Reddi', but not about 'Konda Rajus'.
39. The Manual of Vizagapatnam District in the Presidency of Madras,
originally published in 1869, refers to Nishada to be forming Hill
Tribes/Castes. Zamindars of 'Konda Razu' caste, who now call themselves
'Kshatriyas' and who find 'Brahmins' ready enough to become their Purohits,
have, it is supposed, one or other of the sons of Nishada for their ancestors.
Ex.R.35 refers to the Andhra Family and Estate founded by a person of 'Konda
Dora' caste, while the Salur Family and Estate, the Panchipenta Family and
Estate, the Chemudu Family and Estate, the Sangamvalasa Family and Estate, the
Belgam Family and Estate, the Merangi Family and Estate and the Kurupam Family
and Estate were specifically referred to as belonging to or styling themselves
as 'Konda Rajus'. Jagannadha Patro being the Dewan of Ramachandra Deo of Jeypore
and his son Sundara Narayano Patro being granted Zamindari tenure in 1796 was
specifically referred to and the family was specifically stated to be belonging
to 'Hill Raju' (Konda Raju') family. The Manual is, thus, as though 'Konda
Dora' caste and 'Konda Raju' caste are different.
40. Ex.R.36, copy of Vizagapatnam District Gazetteer in the Presidency
of Madras of 1907, referred to 'Konda Doras' or 'Konda Kapus' numbering about
81,000, who were divided into 'Pedda Kondalu' and 'Chinna Kondalu' and 'Muka
Doras' were noted to be classed as a separate caste to which zamindar of
Pachipenta belongs. Referring to Belgam Estate, the grant of zamindari to
Somasundara Narayana Patro, son of Jagannatha Patro in 1796 was again stated and
the family was noted to use the title 'Tat Raja'. It traces the genealogy of
the family, but there are no definite indicators of the Belgam Zamindari family
being 'Konda Doras' or 'Konda Rajus'.
41. In "Castes and Tribes of Southern India" by Edgar Thurston and K.
Rangachari, Volume III-K, pages 349 to 356, 'Konda Doras' are dealt with and
they are noted to be known as 'Konda Doras', 'Konda Kapus' and 'Ojas'. The
customs, conventions and rituals of 'Konda Doras' divided into 'Pedda Kondalu'
and 'Chinna Kondalu' were described in detail and there was no reference to any
'Konda Doras' being called as 'Konda Rajus'.
42. In "The Tribes of Andhra Pradesh" by the Tribal Cultural Research
& Training Institute of the department of Social Welfare of the State Government
in 1964 also, similar information was given about 'Konda Doras'.
43. While R.W.2 contested for the first time to the Parliament in 1977
from Parvathipuram Constituency reserved for Scheduled Tribes, pre-Constitution
and even post-Constitution documents from Ex.P.1 to Ex.P.11 are supportive of
the contention that the family members of R.W.2 appear to have described
themselves as 'Kshatriyas' and the various documents marked on behalf of the 1st
respondent from Exs.R.1 to R.23 and R.37 to R.42 referring to the status of the
family members including R.Ws.1 and 2 as 'Konda Doras' are all post-1970
documents. R.W.2 admitted that their family had no relationships with the other
'Konda Dora' Tribe families of Belgam and Addapusila. While claiming to be not
'Kshatriyas', he himself stated that they are 'Konda Rajus', a sub-sect of
'Konda Doras', so called as they are zamindars. The attempt to claim widow
remarriage to be one of the customs signifying 'Konda Dora' Tribe was not
corroborated by R.W.1 or R.W.2 by referring to any such marriages in their
family to their knowledge and R.W.2 refers to one such marriage of the widow of
her sister's elder son marrying his sister's younger son, which cannot be
considered to be in the family of R.Ws.1 and 2. Wearing beads by the ladies was
also attempted to be stated as another custom of 'Konda Doras', but R.W.2
admitted that he does not know whether ladies in other families of the area also
wear beads. R.Ws.1 and 2 had to admit that Satrucharla Vijaya Rama Raju is the
brother of the mother of R.W.1/wife of R.W.2, who admittedly could not prove his
scheduled tribal status in an election dispute before this Court and the Supreme
Court, in which R.W.2 gave evidence that Vijaya Rama Raju belongs to a Scheduled
Tribe. The sister of Satrucharla Vijaya Rama Raju, who was found to be not
belonging to a Scheduled Tribe or more particularly 'Konda Dora' Tribe being
married to R.W.2, may also be a circumstance that militates against the claim of
R.Ws.1 and 2 belonging to such Scheduled Tribe. While R.W.2 obtained caste
certificates for each of his children before admitting them into schools, he
admittedly did not show his own caste certificate to the school authorities at
that time and an enquiry into the tribal status of the mother of R.W.1 is
admittedly pending. R.W.1 also specifically stated that he belongs to 'Konda
Raju' caste, enumerated as one of the sub-castes of 'Konda Dora' community.
Nobody objecting to the tribal status of R.W.2 and R.W.1 or R.W.1's mother in
1977 Parliament elections or 2006 Zilla Parishad Territorial Constituency
elections or 2005 Municipal elections or any such objection being overruled at
the time of scrutiny of nominations and later remained unchallenged, cannot
operate as any estoppel against the disqualification of R.W.1, if he were really
disqualified under the law. R.W.1 also did not remember whether any woman in
their family had any remarriage after the death of her husband and admitted that
there was no woman in his family who obtained divorce. Their worshiping Tribal
Goddesses itself may not be a determinate factor, while R.W.1 did not know
whether there is any relationship between their family and any of about 400
'Konda Dora' families in the area. To his knowledge, except the alliances with
the families of Pachipenta zamindars and China Merangi zamindars, there are no
other alliances between their family and other families of their area. The
petitioner as P.W.1 was referring to the Hill Zamindar families being reputed in
the area to be 'Kshatriyas' and they being the rulers of the area not having any
marital relationship with any persons belonging to Scheduled Tribes. Though
he does not know whether 'Konda Rajus' come under 'Kshatriya' community or not,
P.W.1 was positive about R.W.1 not belonging to a Scheduled Tribe. His not
taking any steps to have
the Schedule Tribe certificates in favour of R.W.1 and his family members
cancelled, is of no relevance herein and his cross-examination about the
traditions and customs of 'Konda Doras' or 'Kshatriyas' is not of much
significance in view of there being no evidence worth the name on record
probablising the practice of such customs and traditions by R.W.1's family,
which unmistakably points out to their belonging to 'Konda Dora' Scheduled
Tribe.
44. Thus, while claiming any reference to themselves as 'Kshatriyas'
anywhere to be reflective of their status as rulers, but not their caste or
tribe, the positive case of the 1st respondent and his father in the written
statement or the evidence is that they belong to 'Konda Raju' caste, which is a
sub-caste of 'Konda Dora' community, which is a Scheduled Tribe. An enquiry
into whether 'Konda Raju' is a sub-caste of 'Konda Dora' Scheduled Tribe or not
and whether 'Konda Raju' can be considered to be included in 'Konda Dora'
Scheduled Tribe, does not appear permissible with reference to the settled
precedents.
45. Parsram and another v. Shivchand and others20 laid down that Article
341 of the Constitution of India empowered the President to specify not only the
entire castes, races or tribes, but parts or groups within castes, races or
tribes, which shall for the purposes of the Constitution, be deemed to be the
Scheduled Castes in relation to a State or Union Territory, as the case may be.
The judgments in Basavalingappa v. D. Munichinnappa21 and Bhaiya Lal v.
Harikrishen Singh22 were relied on and it was held that it would not open to any
person to lead evidence to establish that Caste-B is part of Caste-A notified in
the Constitution (Scheduled Castes) Order, 1950. Consequently, an enquiry in
order to determine whether a caste is a sub-caste of the notified caste would
not be permissible. It would be of no use to look into the Gazetteers and
Glossaries on the Castes and Tribes to find out that Caste-A and Caste-B meant
the same caste.
46. Radha Bai Andand Rao v. Suvarna Kumar and another23 accepted the
returned candidate as belonging to a Scheduled Tribe 'Koya' due to the elder
brother of the returned candidate being described as a 'Doli koya' in the school
records and the evidence of the Tahsildar that there was no caste as 'Doli', and
'Koya' people, who professionally beat drums in festive occasions, are called as
'Dolya' and as the returned candidate was also described in the school registers
as 'Doli koya' or 'Koya' long before the issue of the Constitution (Scheduled
Tribes) Order, 1950. Thus, the enquiry therein was not about Caste-B being part
of Caste-A also notified in the Constitutional Order, but about the description
of 'Doli Koya' or 'dolya' being only indicative of a 'koya' who is
professionally beating drums on festive occasions and not about any other sub-
castes or caste than that included in the Constitution (Schedule Tribes) Order,
1950.
47. Palanimuthu v. Returning Officer24 had the returned candidate
obtaining the certificate after inclusion of 'Konda Reddy' community in the List
of Scheduled Tribes by the amendment of the Scheduled Castes and Scheduled
Tribes (Order) Act, 1976. In all other documents, the community of the returned
candidate and the family was described as 'Hindu Reddy' community and it was
attempted to be stated that 'Konda Reddy' community is a sub-caste of 'Hindu
Reddy' community, which was not accepted.
48. State of Maharashtra v. Milind and others25 decided that the entries
in the Schedules in the orders issued under Articles 341 and 342 of the
Constitution pertaining to each State mentioned in the brackets after each
caste/tribe in the Schedules, if the caste/tribe has another name. In that
view, it serves no purpose to look at gazetteers or glossaries for establishing
that a particular caste/tribe is a Scheduled Caste/Scheduled Tribe for the
purpose of Constitution, even though it is not specifically mentioned as such in
the Presidential Orders. No enquiry is permissible and no evidence can be let
in for establishing that a particular caste or part or group within tribes or
tribe is included in the Presidential Orders, if they are not expressly included
in the Orders. The Apex Court made it clear that when no other authority other
than the Parliament, that too by law alone can amend the Presidential Orders,
neither the State Governments nor the Courts nor Tribunals nor any authority can
assume jurisdiction to hold enquiry and take evidence to declare that a caste or
tribe or part of or a group within a caste or tribe is included in Presidential
Orders in one Entry or the other although they are not expressly and
specifically included. The ratio of the earlier precedents was reaffirmed and
formulating the positions that emerge, the Supreme Court pointed out that it is
not at all permissible to hold any enquiry or let in any evidence to decide or
declare that any tribe or tribal community or part of or group within any tribe
or tribal community is included in the general name even though it is not
specifically mentioned in the concerned Entry in the Constitution (Scheduled
Tribes) Order, 1950. It was held that Scheduled Tribes Order must be read as it
is and it is not even permissible to say that a tribe, sub-tribe, part of or
group of any tribe or tribal community is synonymous to the one mentioned in the
Scheduled Tribes Order, if they are not so specifically mentioned in it.
49. In Chinnappa v. Venkatamuni and others26, the caste, to which the
returned candidate belongs, was not recognized as a Scheduled Caste in the
Presidential notification and it was held to be not open to be considered to be
synonymous with or equivalent to a caste notified in the Scheduled Castes Order.
The limited scope of enquiry was held to be whether the caste claimed by the
candidates finds place in the notification of the President as amended under the
said Act.
50. Nityanand Sharma and another v. State of Bihar and others27 is a
case where the question was whether Lohars could be considered by the Court as
synonyms of Loharas or Lohras and it was held that it was not open to the Court
to make any addition or subtraction from the Presidential Order and the Court
has no power to declare synonyms as equivalent to the Tribes specified in the
Order or include in or substitute any caste/tribe etc. Though evidence may be
admissible to a limited extent of finding out whether the community which claims
the status as Scheduled Caste or Scheduled Tribe, was, in fact, included in the
Schedule concerned, the Court is devoid of power to include or exclude from or
substitute or declare synonyms to be of a Scheduled Caste or Scheduled Tribe or
parts thereof or group of such caste or tribe.
51. In Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar and others28, it
was reiterated that Parliament alone can amend the law and the schedule for the
purpose of including or excluding therefrom a tribe or tribal community or part
of or group within the same in the State, district or region and the declaration
made by Parliament is conclusive. For the said purpose, the Court does not have
any jurisdiction so as to enable it to substitute any caste and tribe.
52. Reverting to the written statement of the 1st respondent and the
evidence of R.Ws.1 and 2, the assertion was that the description of any member
of the family in any document as 'Kshatriya' was only reflective of the social
status of the family as rulers and zamindars and that they belong to 'Konda
Raju' caste, one of the sub-castes of 'Konda Dora' community, a Scheduled Tribe.
The family of the 1st respondent admittedly had no relationships with other
'Konda Dora' tribe families of Belgam and Addapusila and in the area where about
400 families of 'Konda Dora' tribe live. The evidence of R.Ws.1 and 2 itself
does not suggest the family of the 1st respondent to be adherent to the customs,
traditions and practices of 'Konda Dora' Scheduled Tribe. The Census reports,
the District Manuals, the District Gazetteers and the earlier
precedents/judicial decisions relating to the tribal/caste status of these Hills
Zamindaris need be appreciated in that background.
53. The first of the relevant cases relating to these Hill Zamindars in
the area appears to be V.V. Giri v. D. Suri Dora and others29, wherein the
returned candidate described himself and the members of his family as the
members of a scheduled tribe from 1885 to 1928 and as belonging to 'Kshatriya'
caste from 1928 onwards. The customs and rituals of 'Kshatriya' caste were
stated to have been adopted since some years by the returned candidate. It was
observed that the caste status of a person in the context would necessarily have
to be determined in the light of the recognition received by him from the
members of the caste into which he seeks an entry and any unilateral acts
intended to assert a higher status cannot be easily taken to prove that the
claim for the higher status which the said acts purport to make is established.
The minority view, of course, was that the returned candidate by his actions
raised himself to the position of a 'Kshatriya' and he was no longer a member of
the Schedule Caste or Tribe. The adoption of customs and rituals of 'Kshatriya'
caste by these elevated families, thus, seem to be since a considerably long
period leading, maybe, even to the social recognition of such higher status
leading to the minority view in the decision, of the candidate in question
raising himself to the position of 'Kshatriya' depriving himself of the
membership of his Scheduled Caste or Schedule Tribe.
54. Then came Election Petition No.13 of 1983 decided on 16-01-1984
challenging the election of Satrucherla Vijaya Rama Raju alleging that he does
not belong to a Scheduled Tribe and is not a 'Konda Dora', but a 'Kshatriya'.
The evidence produced by the election petitioner therein was found to be wholly
deficient and the oral evidence was considered to be almost next to nothing.
The recital in Ex.A.1 sale deed therein referring to them as 'Kshatriyas' was
defended to be for maintaining the prestige and dignity, though they are not
'kshatriyas'. R.W.2 herein examined as R.W.7 therein is his brother-in-law and
deposed therein that they belong to 'Konda Dora' community. The learned Judge
concluded that Satrucherla Vijaya Rama Raju belongs to 'Konda Dora' Tribe.
55. Notwithstanding the decision in Election Petition No.13 of 1983, the
subsequent election of Satrucharla Vijaya Rama Raju was again challenged in
Nimmaka Jaya Raju v. Satrucharla Vijaya Rama Raju and others30 dealing with the
election petition filed by the present petitioner herein against the returned
candidate therein, who is the maternal uncle of the 1st respondent herein. A
learned Judge of this Court firstly found that the entries in school records and
registered documents relating to pre-Constitution period carry greatest
probative evidentiary value and therefore, the entries in such records to be
safely relied on. With specific reference to Ganjam and Vizagapatnam Act, 1839,
wherein specified hill zamindaris were recognized, the learned Judge observed,
with reference to 'Castes and Tribes of South India' by Edgar Thurston and K.
Rangachari, Madras District Gazetteers and Manual of District Vizagapatnam in
the Presidency of Madras compiled and edited by D.F. Carmichael, that while the
other references do not show the returned candidate to be belonging to 'Konda
Dora' Tribe, the Manual describing the castes of respective hill zamindars
clearly indicated that there is a distinction between the castes 'Konda Dora'
and 'Konda Raju' in specifying that Andhra zamindar belongs to 'Konda Dora'
caste, while other zamindars belong to 'Konda Raju' caste. The learned Judge
also, on elaborate discussion, found that from the beginning the family of the
returned candidate were having alliances with zamindars and 'Muka Doras'
elevating themselves as separate section, much higher in level than 'Konda Dora'
tribes. The earlier decision in favour of the returned candidate in E.P. No.13
of 1983 was noted to be for want of sufficient evidence for the petitioner
therein and the conclusion of the learned Judge that 'Konda Raju' cannot be
equated with 'Konda Dora' Tribe, was confirmed by the Apex Court.
56. In Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju and others31,
the Apex Court, of course, noted that the earlier election petition in E.P.
No.13 of 1983 failed for want of evidence worth the name for the election
petitioner, but also observed that adjudication in an election petition, not
inter-partes, cannot operate as res judicata in a subsequent election petition
challenging that subsequent election. The Apex Court found further that the
High Court found that the returned candidate on the very material relied on by
him was shown to be 'Konda Raju', which is different from the Tribe 'Konda
Dora'. The Apex Court also concluded that the documents do not establish the
returned candidate to be belonging to 'Konda Dora' Tribe. The Apex Court also
found the way of life of zamindari families including their marital
relationships to be not that of Tribes and they were observed to be desiring to
have the best of two worlds. Though the maternal link of the 1st respondent
with Satrucharla Vijaya Rama Raju may not be a determinate factor on his social
status acquired through his paternal link, the absence of any marital
relationships between the 1st respondent's family and any other 'Konda Dora'
tribal families in the area and the mother of the 1st respondent being a member
of the family of Satrucharla Vijaya Rama Raju, her brother, being not in
dispute, the conclusion by this Court and the Apex Court will, undoubtedly, have
a corroborative persuasive effect on the probability of the 1st respondent also
being probably of same or similar social status.
57. In Nimmaka Jaya Raju v. Satrucharla Vijaya Rama Raju and others (30
supra), the learned Judge referred to the Vizagapatnam District Manual
disclosing Andhra zamindars alone to be 'Konda Doras', while the remaining seven
Hill Zamindars of the area to be 'Konda Rajus' and on the material placed before
this Court herein, as already referred, there could not have been reasonably any
other conclusion than the probability of the 1st respondent being a 'Konda Raju'
and not a 'Konda Dora' and on almost an identical material, this Court concluded
that 'Konda Raju' cannot be equated to 'Konda Dora' Tribe, which conclusion was
not disturbed by the Apex Court. Election Petition No.13 of 1983
notwithstanding, the Apex Court did not see any justification in differing from
the appreciation of the oral and documentary evidence by the learned Judge of
this Court. Prohibiting the enjoyment of best of two worlds in such cases
should follow as concluded by the Apex Court by not considering such persons to
be true representatives of the Tribes included in the Presidential Order
deserving a special protection.
58. Though, not marked or admitted in evidence, the learned senior
counsel for the election petitioner placed a copy of the report of enquiry on
the caste of Sri L.N. Sanyasi Raju, Ex-Zamindar and Ex-MLA, Salur and the memo,
dated 12-12-1998 issued by the Social Welfare (CV) Department of the State
Government. The enquiry report referred to the Manual of District of
Vizagapatnam in the Presidency of Madras published in 1869, in which a detailed
history of various hill zamindaris and their genealogy was given apart from
recording the castes of the zamindars. It was noted that the castes recorded
were Andhra zamindari as 'Konda Dora' and Salur zamindari as 'Konda Raju'. The
enquiry report also referred to the birth register, various land transactions
from 1941 of Sri Sanyasi Raju and the members of his family and the educational
records and local recognition of the family as 'kshatriyas' or 'Rajulu'.
Marriages were noted to be only within local 'kshatriyas' or 'Rajus' or Ex-
zamindars of Orissa State. All the Ex-zamindars were noted to be locally
recognized and treated as 'Rajputs' or 'Kshatriyas'. The Commissioner of Tribal
Welfare enquiry report also stated that 'Konda Raju' caste is not notified as a
Scheduled Tribe at any point of time in the State of Madras or Andhra or Andhra
Pradesh since 1950 and it is not permissible to treat 'Konda Raju' caste as the
same as any listed Scheduled Tribe under the Constitution, which amounts to
modification or addition or subtraction in the list of Scheduled Tribes issued
by an Act of Parliament in 1976. In the Government memo, the social status of
the blood relatives of Sri Sanyasi Raju was directed to be taken as per the
report of the Commissioner of Tribal Welfare. Incidental reference to the above
report of enquiry is only as a matter of reassurance to the circumstances
disclosed by the evidence on record.
59. Then in Peedika Rajanna Dora v. Rajendra Prathap Bhanj Deo and
another32, notwithstanding the pendency of a special leave petition before the
Apex Court against the Full Bench decision in Andhra Pradesh Scheduled Tribes
Employees Association v. Aditya Pratap Bhanj Dev and others33, as the judgment
was not suspended, it was relied on. Apart from noting that the ancestors of
the returned candidate have made series of assertions with regard to their caste
as 'Kshatriya' in a series of documents, the returned candidate belonging to
Mokhasadar family and related to tribal zamindari families as per his claim was,
hence, considered to have not proved him to be belonging to 'Konda Dora'
scheduled tribe.
60. In Andhra Pradesh Scheduled Tribes Employees Association v. Aditya
Pratap Bhanj Dev and others (33 supra), a Full Bench of this Court laid down
that a suit for declaration of Schedule Tribe and/or a suit for declaration that
an unincluded community be declared as equivalent to a tribe in the Scheduled
Tribes Order, is expressly and impliedly barred and if civil Court has no
jurisdiction to pass such a decree, therefore, the declaration that 'Konda Raju'
is equivalent to 'Konda Dora', which is included in the Scheduled Tribes Order,
was not within the jurisdiction of the civil Court and a decree to that effect
is a nullity. The Full Bench also found that the claim to be belonging to
'Konda Dora' community was by virtue of relationship with zamindar of Salur,
while in all the registered documents, the grand father and father of the person
claiming such status were described as 'Kshatriyas'. Such documents were
considered relevant for deciding his status as to community/caste/tribe of a
person and it was noted that even in the civil suit, the person claimed to be
belonging to 'Konda Raju', which is equivalent to 'Konda Dora' community. It
was claimed therein also that some 'Konda Doras' called themselves as 'Konda
Rajus' and 'Kshatriyas' due to their elevated position.
61. Regu Maheswara Rao v. Vyricherla Kishore Chandra Suryanarayana Deo34
ended in a different result, wherein the returned candidate belonged to Kurupam
zamindari family claimed to be belonging to 'Konda Dora' community, a hill tribe
of the then Vizagpatnam district and the election petitioner therein claimed the
returned candidate to be belonging to 'Kshatriya' family and caste otherwise
known as 'Rajus'. Vyricherla family was also stated to be related to
Shatrucharla family and Poosapati family belonging to 'Kshatriya' caste and it
has no marital or other relations with any family belonging to the Scheduled
Tribes in the District or the State. While observing that under Section 90 of
the Indian Evidence Act, 1872, presumption can only be drawn with regard to
attestation and execution of the document but not to the contents of the
document, it was observed that the recitals in the documents with regard to
community or caste of a person, who sold the property or purchased the property,
are not required to be noted in the sale deeds and even if the community is
noted of a person in the document, it is of fragile value. It was also opined
that even assuming for a moment that caste or community is mentioned in a sale
deed, it does not necessarily lead to draw an irresistible conclusion that the
party to the document belongs to the particular community as described in the
document. Hence, such recitals cannot be taken as conclusive proof and at best
it can be taken as one circumstance so as to support the other acceptable
evidence, if any, available on record. Probative value of the factum of
community as mentioned in the sale deeds was considered to be a very weak piece
of evidence. The contents of a plaint describing the caste or community were
also considered to be not conclusive evidence and the entries in a school
admission register were not relied on due to the register being not maintained
by any public authority or public official in the course of regular official
duty, more so when the maintenance of the register was not traced to the
relevant statute. So, that was also considered to be not a conclusive proof of
the returned candidate belonging to 'Kshatriya' community. The absence of
marriages with any other Scheduled Tribe family was also ignored due to
prevalence of inter-caste marriages in these days and the oral evidence was
discussed in detail to disagree with the election petitioner and the mention of
the community of the returned candidate or his ancestors in the documents as
'Kshatriyas' was held to lead to only some suspicion and even if over the course
of period of after 'Konda Doras' are called as 'Kshatriyas' or "Rajus' who are
living in the tribal areas, it cannot be said that the returned candidate does
not belong to 'Konda Dora' community. In the statement of the returned
candidate in the enquiry that he belongs to 'Konda Raju', was explained and the
election petitioner was noted to have failed to establish his case beyond all
reasonable doubt. Consequently, the election petition is dismissed.
62. In C.A. No.1897 of 2011, the Apex Court dismissed the appeal against
the said judgment on 04-03-2011 and a review petition was also dismissed on 25-
08-2011, in R.P.(C) No.1866 of 2011 as there was no satisfactory explanation for
the delay in filing the same and further as no case for review is made out.
63. On the effect of refusal of special leave, Kunhayammed and others v.
State of Kerala and another35 laid down that an order refusing to grant special
leave to appeal may be a non-speaking order or a speaking one and in either
case, it does not attract the doctrine of merger. All that it means is that the
Court was not inclined to exercise its discretion so as to allow the appeal
being filed.
64. Thus, in Regu Maheswara Rao v. Vyricherla Kishore Chandra
Suryanarayana Deo (34 supra), the recitals in the document concerning community
or caste of a person not required to be noted therein were only considered to be
of fragile value but not of any stronger effect. Similarly, the contents of
pleadings before a Court or the entries in a school admission register or
absence of marriages with any Schedule Tribe families. The conclusions were on
the probabilities arrived at on the oral and documentary evidence placed before
the Court in that case, wherein the election petitioner failed to establish his
case beyond all reasonable doubt. The effect of a decision on merits in the
earlier election petition in a subsequent election petition, as already stated,
was clarified in Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju and others
(31 supra), wherein it was clearly laid down that adjudication in an election
petition not inter-partes cannot operate as res judicata in a subsequent
election petition challenging that subsequent election. Each case has to be
determined on its own merits on the evidence placed before the Court and the
cumulative effect of each piece of evidence placed before the Court in that case
was considered not to be of such persuasive effect as to believe the returned
candidate to be not belonging to a Scheduled Tribe, whereas in the present case,
notwithstanding the strength or weakness in the case of either party, the total
and cumulative effect of the evidence on record can only be that the 1st
respondent was not probablised to be a member of 'Konda Dora' Scheduled Tribe
and on his own pleadings and evidence, he presented himself to be belonging to
'Konda Raju' caste/sub-caste, which cannot be equated to 'Konda Dora' Tribe. It
is true that in Laxman Siddappa Naik v. Kattimani Chandappa Jampanna and
others36, it was observed that when there was no evidence one way or the other,
the election petitioner could not succeed on the weakness of the case of the
opposite party. It was also held that an election is something which cannot be
readily set aside and there must be proof and convincing proof that a person is
not properly chosen to fill a particular seat and mere suspicion or surmise is
not sufficient.
65. Similarly, in M. Chandra v. M. Thangamuthu and another37, it was
laid down that it is a settled legal position that an election petition must
clearly and unambiguously set out all the material facts which the petitioner is
to rely upon during the trial, and it must reveal a clear and complete picture
of the circumstances and should disclose a definite cause of action, in the
absence of which, an election petition can be summarily dismissed. An election
result, where the people elect their representatives, cannot be taken lightly
and for an election result to be annulled there must be positive evidence to
prove illegality of the election.
The burden of proof shall lie on the petitioner filing the election petition.
66. However, in K.C. Kapoor v. Radhika Devi38, it was pointed out that
even if inartistically drafted, a written statement should not be construed in a
hyper technical manner and what is to be seen is whether the allegations made
gave sufficient notice to the plaintiffs of what case they have to meet.
It is
not either on the inartistic drafting of the written statement or ambiguous
presentation of the material facts that a conclusion is arrived at herein, but
on the clear allegation in the election petition that the 1st respondent does
not belong to 'Konda Dora' Scheduled Tribe and positive denial in the written
statement by asserting the 1st respondent to be belonging to 'Konda Raju' caste.
The assertion that the 1st respondent is a 'Kshatriya' made in the election
petition was denied in the written statement and though it is true that the 1st
respondent might not have been proved beyond all reasonable doubt to be a
'Kshatriya' from Exs.P.1 to P.11, which, of course, positively disclosed the
members of the family of the 1st respondent claiming all the trappings of
'Kshatriyas' since long, a clear and complete picture of the circumstances
disclosing a different cause of action to conclude the 1st respondent to be a
'Konda Raju' and not a 'Konda Dora' arose not only from the election petition
specifically referring to the family of the 1st respondent being specifically
referred to as belonging to 'Hill Rajah' or 'Konda Raju' caste but also from the
very pleadings and evidence of the 1st respondent, the effect of which cannot be
brushed aside with reference to any weakness or deficiency in the pleadings and
evidence of the election petitioner, the question of burden of proof losing all
its relevance once the evidence of both parties is placed before the Court and
this is not a case of no evidence for either party.
On such facts, circumstances
and evidence, it has to be, therefore, concluded that the 1st respondent is
proved to be not belonging to a Scheduled Tribe and is, therefore, not qualified
to be chosen to fill a seat in the Legislative Assembly of the State of Andhra
Pradesh reserved for the Scheduled Tribes of the State, as he is not a member of
any of the Scheduled Tribes of the State of Andhra Pradesh.
67. Issue No.2:
As the 1st respondent has been, thus, shown to be not qualified to be chosen to
be elected to 130-Kurupam Scheduled Tribe Assembly Constituency reserved for the
Scheduled Tribes of the State of Andhra Pradesh, his election has to be declared
to be void under Section 100(1)(a) of the Act and the election petition has to
be ordered as such under Section 98 of the Act.
The election petitioner
incidentally requested for being declared to have been duly elected in that
election from that constituency and obviously and admittedly, he did not receive
a majority of the valid votes polled in that election within the scope of
Section 101(a) of the Act and he cannot be considered to be falling within the
scope of Section 101(b) of the Act also, as the election of the 1st respondent
fails due to his disqualification, but not due to any corrupt practice. Even
otherwise, in such cases, such a relief is not ordinarily considered and suffice
to refer to Prakash Khandre v. Vijaya Kumar Khandre39, in which the Apex Court
had observed as follows:
"However, in an election where the elected candidate is declared to be
disqualified to contest election and there are more than two candidates
contesting election, there is no specific provision under the Act under which
the person who has secured the next highest number of votes could be declared as
elected. The Act is silent on this point.
Further, it cannot be presumed that
the votes secured by the disqualified elected candidates would have been wasted
or would have been secured by the next candidate who has secured more votes.
If
disqualified candidate was not permitted to contest the election then how the
voters would have votes in favour of the candidate who has secured more votes
than other remaining candidates would be a question in the realm of speculation
and unpredictability.
In such a situation, declaring the election of the
returned candidate on the ground of his initial disqualification to contest the
election by itself would not entitle the election petitioner or any other
candidate to be declared elected."
The relief to be granted herein has to be, therefore, confined to setting aside
the election of the 1st respondent with an appropriate consequential order on
the costs of the election petition.
68. Therefore, the election of the 1st respondent from 130-Kurupam Scheduled
Tribe Assembly Constituency to the Andhra Pradesh State Legislative Assembly as
declared on 16-05-2009 is declared to be void and
the election petition is allowed to that extent and
is dismissed in respect of the declaration sought for
to declare the election petitioner as duly elected from the said Constituency in
the said election.
The parties shall bear their own costs.
An authenticated
copy of this order be communicated forthwith to the Speaker of the Andhra
Pradesh Legislative Assembly and the Election Commission of India under Section
103 of the Representation of the People Act, 1951.
_____________________
G. BHAVANI PRASAD, J
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PETITIONER: FOR RESPONDENTS:
P.W.1: Nimmaka Jayaraju R.W.1: V.T. Janardhan Thatraj
P.W.2: D. Ramakrishna Raju R.W.2: V.T. Satya Prasad
P.W.3: Naguru Neelamani Durga Thatraj
Prasad R.W.3: D. Jaya Prakash Dora
P.W.4: Biddiki Kadai R.W.4: Shambana Ramulu
P.W.5: Allen Yendannadora R.W.5: Mandangi Prasada Rao
R.W.6: Rajapu Sanyasi Dora
DOCUMENTS MARKED
FOR PETITIONER:
Ex.P.1/20-01-1945/ Registration extract of sale deed No.132 of 1945
Ex.P.2/16-03-1945/ Registration extract of sale deed No.419 of 1945
Ex.P.3/07-08-1947/ Registration extract of sale deed No.1294/1947
Ex.P.4/15-05-1948/ Registration extract of sale deed No.821 of 1948
Ex.P.5/15-09-1945/Registration extract of possessory mortgage
deed No.1437 of 1945.
Ex.P.6/15-01-1945/ Registration extract of sale deed No.419 of 1945
Ex.P.7/25-07-1947/ Registration extract of sale deed No.1256/1947
Ex.P.8/26-02-1951/ Registration extract of relinquishment deed
No.468 of 1951.
Ex.P.9/13-04-1953/ Registration extract of sale deed No.1499/1953
Ex.P.10/23-08-1955/Registration extract of possessory mortgage
deed No.1744 of 1955.
Ex.P.11/16-02-2010/Certificate issued by the Principal, Maharajah's
College (Autonomous), Vizianagaram relating to
R.W.2.
FOR RESPONDENTS:
Ex.R.1/ -- /Xerox copies of entries relating to serial No.656 in
the admission register of Maharajah's college,
Vizianagaram for 1963.
Ex.R.1(a)/11-07-2003/Community, Nativity and Date of Birth
Certificate of V.T. Pratyusha Devi issued by
the Revenue Divisional Officer, Parvatipuram.
(as the exhibit number repeated twice).
Ex.R.2/11-07-2003/Community, Nativity and Date of Birth Certificate
of V.T. Sai Durga Prasad Thotraj issued by the
Revenue Divisional Officer, Parvatipuram.
Ex.R.3/07-08-1997/Community, Nativity and Date of Birth Certificate
of Naresh Kumar Thotraj issued by the
Revenue Divisional Officer, Parvatipuram.
Ex.R.4/11-07-2003/Community, Nativity and Date of Birth Certificate
of V.T. Janardhana Thotraj issued by the
Revenue Divisional Officer, Parvatipuram.
Ex.R.5/11-07-2003/Attested copy of Community, Nativity and Date of
Birth Certificate of V.T. Chandra Sekhara Thotraj
issued by the Revenue Divisional Officer,
Parvatipuram.
Ex.R.6/17-01-1998/Community, Nativity and Date of Birth Certificate
of V.T. Sai Durga Prasad Thotraj issued by the
Revenue Divisional Officer, Parvatipuram.
Ex.R.7/03-07-1991/Attested copy of Caste Certificate of V.T.
Haripriya Devi issued by Mandal Revenu Officer,
Parvatipuram.
Ex.R.8/03-07-1991/Attested copy of Caste Certificate of V.T.
Jyotsna Devi issued by Mandal Revenu Officer,
Parvatipuram.
Ex.R.9/03-07-1991/Attested copy of Caste Certificate of V.T.
Satya Prasad Thotraj issued by Mandal Revenu
Officer, Parvatipuram.
Ex.R.10/03-07-1991/Attested copy of Caste Certificate of V.T.
Naresh Kumar Thotraj issued by Mandal Revenu
Officer, Parvatipuram.
Ex.R.11/10-09-1997/Attested copy of Transfer Certificate of Veera
Vara Thodermal issued by Head Master, Z.P.H.
School, Chinamerangi, Vizianagaram District.
Ex.R.12/19-11-1999/Attested copy of Transfer Certificate of V.T.
Chandrasekhara Thatraj issued by Special
Officer, A.P. Residential School, Bhadragiri,
Vizianagaram District.
Ex.R.13/29-06- /Notarised copy of Transfer Certificate of V.T.
Janardhana Thotraj issued by the Principal,
Govt. Junior College, Chinamerangi,
Vizianagaram District.
Ex.R.14/30-11-1994/Attested copy of Transfer Certificate of Veera
Vara Thodaramal Janardhana Thotraj issued by
Head Master, Z.P.H. School, Chinamerangi,
Vizianagaram District.
Ex.R.15/ -- / Certified copy of suit register extract of O.S. No.3
of 1986 on the file of the Subordinate Judge's
Court, Parvatipuram.
Ex.R.16/29-7-1988/Certified copy of decree in O.S. No.175 of 1987
on the file of the Principal District Munsif
Court,
Parvatipuram.
Ex.R.17/10-02-1992/Certified copy of decree in O.S. No.126 of 1991
on the file of the Principal District Munsif
Court,
Parvatipuram.
Ex.R.18/28-4-2000/Certified copy of decree in O.S. No.7 of 1998 on
the file of the Senior Civil Judge's Court,
Parvathipuram.
Ex.R.19/20-3-2006/ True copy of decree in O.S. No.38 of 2004 on
the file of the Senior Civil Judge's Court,
Parvathipuram.
Ex.R.20/06-7-1993/Certified copy of judgment in O.S. No.21 of
1989 on the file of the Subordinate Judge's
Court, Parvatipuram.
Ex.R.21/15-12-2006/Photostat copy of gift settlement deed executed
between Inumurthy Venkateswara Rao (donor)
and Municipal Council of Parvathipuram
Municipality (donee).
Ex.R.22/27-02-2007/Photostat copy of gift settlement deed executed
between Kaparapu Sivunnaidu and others
(donors) and Municipal Council of
Parvathipuram Municipality (donee).
Ex.R.23/28-04-2009/Photostat copy of gift settlement deed executed
between Satyaprasad Thatraj and others
(donors) and Veeravara Thodaramal Jyosna
Devi (donee).
Ex.R.24/ -- /Photostat copy of the Report on the Census,
Census of India, 1891 Volume XIII, Madras by
H.A. Stuart.
Ex.R.25 -- /Photostat copy of Tables A to E, British Territory,
Tables for Feudatory States and a Caste Index,
Census of India, 1891, Volume XV, Madras by
H.A. Stuart.
Ex.R.26/ -- /Photostat copy of Madras District Gazetteers,
Statistical Appendix, Vizagapatnam District,
1905
Ex.R.27/ -- /Photostat copy of Report, Part I, Census of India,
1911, Volume I.
Ex.R.28/ -- /Photostat copy of the Tables, Part-II, Census of
India, 1911, Volume I.
Ex.R.29/ -- / Photostat copy of Part I Report, Census of India,
1931, Volume XIV, Madras by M.W.M. Yeatts.
Ex.R.30/ -- /Photostat copy of Imperial and Provincial Tables,
Part II, Volume XIV, Census of India, 1931 by
M.W.M. Yeatts.
Ex.R.31/ -- /Photostat copy of the Report on the Socio-
Economic Conditions of the Aboriginal Tribes of
the Province of Madras by A. Aiyappan,
Secretary, Aboriginal Tribes Welfare, Enquiry
Committee, 1948.
Ex.R.32/ -- / Photostat copy of the Report, Part I, Census of
India, 1951, Volume III, Madras and Coorg by S.
Venkateswaran, Superintendent of Census
Operations for Madras and Coorg.
Ex.R.33/ -- /Photostat copy of Glossary of Caste Names,
Visakhapatnam District, Census of India, 1951.
Ex.R.34/01-04-1962/Matriculation certificate of Satya Prasad Thatraj
issued by the Registrar, Andhra University.
Ex.R.35/ -- /Photostat copy of Manual of the District of
Vizagapatnam in the Presidency of Madras
(originally published in 1869), Andhra Pradesh
District Gazetteers.
Ex.R.36/ -- /Photostat copy of Vizagapatnam District Gazetteer
in the Presidency of Madras (originally published
in 1907), Andhra Pradesh District Gazetteers.
Ex.R.37/08-09-2000/Community, Nativity and Date of Birth
Certificate of V.T. Haripriya Devi issued by
Revenue Divisional Officer, Parvatipuram.
Ex.R.38/22-9-1992/Caste certificate of V.T. Satya Prasad Thotraj
issued by Mandal Revenue Officer, Parvatipuram.
Ex.R.39/03-07-1991/Caste certificate of V.T. Hari Priya Devi issued
by Mandal Revenue Officer, Parvatipuram.
Ex.R.40/19-3-1988/Caste certificate of V.T. Sundara Narayana
Thotraj issued by Mandal Revenue Officer,
Parvatipuram.
Ex.R.41/08-09-2000/Caste certificate of V.T. Narasimha Priya
Thotraj issued by Revenue Divisional Officer,
Parvatipuram.
Ex.R.42/ -- /True copy of suit extract of O.S. No.42 of 1976 on
the file of the Subordinate Judge's Court,
Parvathipuram.
_____________________
G. BHAVANI PRASAD, J
Date: 21-08-2012
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