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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24TH DAY OF AUGUST 2012
BEFORE
THE HON’BLE MR.JUSTICE N. ANANDA
M.F.A.No.6958/2012 (KMC)
BETWEEN:Sri S.Shivashankar PrasadS/o Sri S.P.GovindappaAged about 51 YearsNo.5, Nisarga, GiddammaLayout, A.NarayanapuraDooravaninagar PostBangalore – 560 016. … Appellant
(By Sri Ashok Haranahalli, Senior Advocate for SriyuthsC.Shashikantha & Nishanth A.V., Advocates)
AND:1. Sri D.A.Gopala
S/o late AnnayappaAged about 56 YearsR/at No.43, GangothriDevasandra, K.R.Puram PostBangalore – 560 036.
2. Sri H.S.AmanullaS/o Sri Syed Hussaian ShahAged about 51 YearsR/at No.319, 1st Main RoadDarga Mahal, VijinapuraDooravaninagar Post, Bangalore – 560 016.
3. Sri C.KunjappanS/o Sri Kunjan PillaiAged about 62 YearsR/at No.120/60 (Old No.164)Nethravathi Road, 2nd crossUdaya Nagar, Dooravaninagar PostBangalore – 560 016.
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4. Smt.B.N.Rohini, MajorW/o Sri P.MunivenkatappaNo.466, 1st Main, VidyanagarPai Layout, DooravaninagarBangalore – 560 016. … Respondents
(By Sri Ravivarma Kumar, Senior Advocate for Sri B.M.IrishadAhmed, Advocate for R1; Notice to R2 to R4 dispensed withv.c.o.dt.02.08.2012)
This appeal is filed under section 38 of the KarnatakaMunicipal Corporations Act, 1976 against the judgment dated30.06.2012, passed in Election Petition No.19/2010 on the file ofVI Additional City Civil and Sessions Judge at Bangalore, allowingthe petition filed under section 33 and etc.
This appeal having been heard and reserved for judgmenton 10.08.2012, coming on for pronouncement this day, the courtdelivered the following:-
J U D G M E N T
The election of appellant as Councilor of Ward No.56 of
A.Narayanapura of Bruhat Bangalore Mahanagara Palike (for
short, ‘BBMP’) in the elections held on 28.03.2010 has been
declared as null and void by the impugned judgment dated
30.06.2012. Therefore, the appellant is before this court.
2. The learned Judge of trial court has held that
appellant does not belong to Backward Class category ‘A’,
therefore he was not qualified to contest the election from
Ward No.56, which was reserved for Backward Class
category ‘A’. The learned trial Judge has held that appellant
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belongs to “Sadari Gowda” caste which is not notified as
Backward Class category ‘A’ in the gazette notification dated
16.10.1995 (Ex.P.2) issued by the Government of Karnataka
for the purpose of reservation of seats and offices of
Mayor/Deputy Mayor of City Corporations, President/Vice-
President of Town Municipal Councils/City Municipal
Councils/Town Panchayats.
3. Before adverting to the contentions urged by parties, it
is necessary to state certain facts, which are not disputed by
either party. The BBMP Ward No.56-A.Narayanapura was
reserved for Backward Class category ‘A’ for election held on
28.03.2010. The elections were conducted under the
provisions of Karnataka Municipal Corporations Act, 1976
(for short, ‘KMC Act’). The appellant contested election by
declaring himself as a citizen belonging to ‘Sadaru’ caste
(notified as Backward Class category ‘A’) and he was the
successful candidate.
4. The election of appellant was challenged on two
grounds:-
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I. The appellant was not a resident of Bangalore.
II. The appellant belongs to “Sadari Gowda” caste and he
had migrated to Bangalore from M.Venkatapuram Village,
Lepakshi Mandal, Ananthapur District, Andhra Pradesh
State. The appellant does not belong to “Sadaru” caste.
Therefore, he was not qualified to contest elections from
Ward No.56, which was reserved for Backward Class
Category ‘A’.
5. The first ground was rejected by the trial court as it
was established that name of appellant was included in
electoral roll/voter list of Vignan Nagar, Ward No.81 of
BBMP. The learned trial Judge accepted the second ground
to declare the election of appellant as void. The finding
recorded by trial court on ground No.2 has been impugned
in this appeal.
6. I have heard Sri Ashok Haranahalli, learned senior
counsel for appellant and Sri Ravivarma Kumar, learned
senior counsel for I-respondent.
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7. The submissions of learned senior counsel for
appellant and decisions cited in support of such
submissions are stated thus:-
I. The election petition was not verified as required under
section 33(4)(c) of KMC Act. {2003 AIR SCW 5569 (in the
case of Regu Mahesh alias Regu Maheswar Rao Vs. Rajendra
Pratap Bhanj Dev & another)}.
II. The trial court had not framed proper issues {[i] AIR
2001 SC 2992 (in the case of Ananga Uday Singh Deo Vs.
Ranga Nath Mishra & others, [ii] (2001) 2 SCC 652 (in the
case of Makhan Lal Bangal Vs. Manas Bhunia and others)}.
III. The trial court has no power to decide the validity of
caste certificate {[i] MANU/AP/0446/2003 (in the case of
Durga Singh Vs. M.Lakshman Yadav & others), [ii] CDJ 2012
BHC 319 (in the case of Rajesh Bharat Latkar Adult Vs.
State of Maharashtra, Through the Department & Others,
[iii] (2011) 10 SCC 357 (in the case of Collector, Bilaspur Vs.
Ajit P.K.Jogi & Others), [iv] AIR 1969 SC 78 (in the case of
Dhulabhai etc. Vs. State of M.P. & another), [v] 2011(4)
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KCCR 3211 (in the case of S.P.Mahadevappa Vs. Smt.Suma
Vasanth & Others)}.
IV. The election petitioner (I-respondent herein) has failed
to prove that appellant does not belong to ‘Sadaru” caste and
the evidence adduced by I-respondent is hardly sufficient to
hold that appellant does not belong to ‘Sadaru” caste and he
was not qualified to contest the election. {[i] AIR 1995 SC
2284 (in the case of Gajanan Krishnaji Bapat & another Vs.
Dattaji Reghobaji Meghe and others) [ii] AIR 1968 SC 929 (in
the case of Laxman Siddappa Naik Vs. Kattimani Chandappa
Jampanna & others)}.
V. The I-respondent has not adduced evidence to prove
that documents relied upon by him, mere production, mere
marking of documents is not enough to prove the contents of
documents {[i] (2003) 8 SCC 745 (Narbada Devi Gupta Vs.
Birendra Kumar Jaiswal & another), [ii] (2010) 4 SCC 491 (in
the case of Life Insurance Corporation of India & another Vs.
Ram Pal Singh Bisen)}.
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VI. The appellant (successful candidate) can rely on
synonyms of his caste to claim reservation under Backward
Class category ‘A’ {ILR 1994 KAR 1270 (in the case of
Virupakashappa Vs.Hanumantha)}.
VII. The success of a candidate in election should not be
lightly interfered with. The success of a candidate is the
mandate of people, besides interference by court will have
serious consequences to electorate public fund and public
administration. {AIR 2000 SC 256 (in the case of Jeet
Mohinder Singh Vs. Harminder Singh Jassi)}.
VIII. The court while considering reservation issue shall
bear in mind caste status of candidate in native State and
migrated State {[i] AIR 2000 SC 525 (in the case of Union of
India & Others Vs. Dudh Nath Prasad) and [ii] (2009) 2 SCC
109 (in the case of Sau Kusum Vs. State of Maharashtra &
Others)}.
IX. The appellant though a native of M.Venkatapuram
Village, Lepakshi Mandal, Ananthapur District, Andhra
Pradesh State had migrated and settled in Bangalore about
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27 years back and in the records which have come into
existence at undisputed point of time, he is recognised as a
person belonging to “Sadaru” caste. {(2009) 2 SCC 109 (in
the case of Sau Kusum Vs. State of Maharashtra & Others)}.
X. The Committee constituted by the Karnataka State
Commission for Backward Classes in its Advice 50/2000,
has held that “Sadumata/Sadukula/Sadar/Sadu
Gowder/Sadu Gowdar/Sadara/Sadari and Sadar Gowda”
are synonyms of “Sadaru” and advised Government of
Karnataka to include “Sadumata/Sadukula/Sadar/Sadu
Gowder/Sadu Gowdar/Sadara/Sadari and Sadar Gowda”
along with “Hindu Sadru/Sadaru”, found at Sl.No.89 of
Category IIA in the list of Backward classes in G.O.No.SWD
150 BCA 94 dated 17.09.1994. The Government accepted
the advice of the Committee and included the aforestated
Synonyms along with “Hindu Sadru/Sadaru”. Therefore, I-
respondent cannot contend that “Sadari Gowda” is not
synonymous to “Hindu Sadru/Sadaru”.
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XI. The appellant has produced documents to prove not
only himself but also members of his family belong to
“Sadaru” caste.
XII. The learned trial Judge, without considering oral and
documentary evidence and ignoring settled principles of law
on the point has passed the impugned order. Therefore,
impugned order cannot be sustained.
8. The principal submissions of learned senior counsel
for I-respondent and decision cited in support of such
submissions are stated thus:-
I. The appellant has not raised ground of maintainability
of election petition due to lack of proper verification/defective
verification. The defective verification is curable. The
defective verification assumes importance if corrupt practice
is alleged. {[i] (1976) 2 SCC 440 (in the case of Balwan Singh
Vs. Prakash Chand & others; [ii] (2005) 2 SCC 188 (in the
case of Chandrakant Uttam Chodankar Vs. Dayanand Rayu
Mandrakar & Others}.
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II. The parties having understood the real controversy
between them have gone on with the trial and have adduced
oral and documentary evidence, therefore, appellant cannot
be permitted to make any grievance about issues framed by
the trial court.
III. The trial court has jurisdiction to determine caste
status of candidate and assess evidentiary value of caste
certificate in the light of other evidence let in [(2005) 2 SCC
244 (in the case of Sobha Hymavathi Devi Vs. Setti
Gangadhara Swamy & others)].
IV. The Gazette Notification issued on 16.10.1995 in
exercise of powers coferred under sub-section (1) of Section 2
of KMC Act and Notification dated 30.03.2002 issued by the
Social Welfare Department are for different purposes. The
Gazette Notification dated 16.10.1995 issued under Article
243T and Gazette Notification dated 30.03.2002 issued
under Article 15(4) and 16(4) of the Constitution operate in
two different fields. The appellant cannot take shelter under
Gazette Notification dated 30.03.2002, wherein reservation is
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made for backward classes for the purpose of education and
employment. [(2010) 7 SCC 202 (in the case of K.Krishna
Murthy (Dr.) and others Vs. Union of India & another)].
V. The I-respondent has adduced oral and documentary
evidence to establish that appellant is not an original
inhabitant of State of Karnataka. The appellant belongs to
“Sadari Gowda” caste, therefore, he cannot claim reservation
either on the ground that “Sadari Gowda” is synonymous to
“Hindu Sadru/Sadaru” or on the ground of caste certificate
(Ex.R.18) {[i] (2001) 6 SCC 571 (in the case of M.C.D. Vs.
Veena & others, [ii] (1990) 3 SCC 130 (in the case of Marri
Chandra Shekhar Rao Vs. Dean, Seth G.S.Medical College
and Others, [iii] (1994) 5 SCC 244 (in the case of Action
Committee on Issue of Caste Certificate to Scheduled Castes
and Scheduled Tribes in the State of Maharashtra & another
Vs. Union of India & another, [iv] ILR 2009 KAR 3934 (in the
case of Lolaksha Vs. The Convener (CLAT-2009) Nalsar
University of Law & others)}.
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9. The I-respondent by adducing oral and documentary
evidence has proved that appellant belongs to “Sadari
Gowda” caste which in fact has been notified as Backward
class caste by Government of Andhra Pradesh. Therefore,
contention of appellant that there is no evidence in proof of
caste of appellant cannot be accepted. The decision reported
in AIR 1968 SC 929 (in the case of Laxman Siddappa Naik
Vs. Kattimani Chandappa Jampanna & others) is not
applicable.
10. The court has no jurisdiction to include or exclude or
substitute as also to declare synonyms to be a caste or tribe.
Therefore, the contention of appellant that “Sadari Gowda” is
synonym of “Hindu Sadru/Sadaru” cannot be accepted. {[i]
(1996) 3 SCC 585 (in the case of A.Chinnappa Vs.
V.Venkatamuni & Others, [ii] (1996) 4 SCC 431 (in the case
of Prabhudev Mallikarjunaiah Vs. Ramachandra Veerappa &
another), [iii] (2001) 1 SCC 4 (in the case of State of
Maharashtra Vs. Milind & Others) and [iv] (1996) 3 SCC 576
(in the case of Mityanand Sharma and another Vs. State of
Bihar & others)}.
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11. The learned senior counsel for I-respondent submits
that impugned judgment does not call for interference.
12. In view of rival contentions urged by parties and
submissions made by learned senior counsel for parties and
bearing in mind real controversy between parties, I frame the
following points for determination:-
(1) Whether election petition is liable to be dismissed
for want of proper verification and lack of affidavit?
(2) Whether the impugned judgment is vitiated due to
improper framing of issues?
(3) Whether the trial court has jurisdiction to consider
the validity of caste certificate produced and relied
upon by appellant?
(4) Whether I-respondent (election petitioner) has
proved that appellant (successful candidate)
belongs to “Sadari Gowda” and he was not qualified
to contest the election to Ward No.56, reserved for
Backward class category ‘A’ ?
(5) Whether the impugned judgment calls for
interference?
(6) To what order?”
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My findings on the above points and reasons thereon are
as follows:-
Point No.1:
13. Before the trial court, appellant had not raised
question of maintainability of election petition either on the
ground of improprer verification or on the ground of lack of
affidavit.
14. In a decision reported in (1976) 2 SCC 440 (in the case
of Balwan Singh Vs. Prakash Chand and others), the
Supreme Court has held:-
“4. It has been argued by Mr. Bindra on behalf of
Balwan Singh, hereinafter referred to as the
appellant, that the High Court ought not to have
entertained the election petition as it was not
verified in the manner laid down in the Code of
Civil Procedure for the verification of pleadings
even though that was the clear requirement of
section 83(1)(c) of the Act. We asked the counsel
to refer us to any such objection of the appellant
in the trial court, and all that he could do was to
invite our attention to paragraph 5 of the
application dated November 27, 1974. That
paragraph however relates to the objection
regarding the defective verification of the
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affidavit accompanying the election petition,
which is a different matter. That is in fact the
subject matter of Mr. Bindra's second argument,
and we shall deal with it separately. The fact
remains that an objection regarding the alleged
defective verification of the election petition was
not taken in the High Court, and it was not a
point at issue there. There is therefore no
justification for allowing it to be raised here. It is
in fact significant that even though an objection
was taken on November 27, 1974 in regard to
the verification of the affidavit, no such objection
was taken about the verification of the main
election petition. It was vaguely stated that
verification of the affidavit and verification of the
Schedule (i.e. Schedule III) were “at variance”,
but that was a different matter. In so far as the
verification of the affidavit is concerned, it would
be sufficient to say that that part of it which
related to the commission of the corrupt practice
which was the subject matter of issue No. 2 was
concerned (Schedule III) it was verified in
accordance with the prescribed form (No.25 of
the Conduct of Election Rules, 1961) as true to
the election petitioner's information received
from the persons mentioned in it. It was
therefore quite in order.
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5. It may be mentioned that although the High
Court examined the objections of the appellant
on two occasions, no objection was taken or
pressed for its consideration in regard to the
verification of the main election petition, its
schedules or the affidavits. An objection was
raised in the appellant's application dated
November 27, 1974 that the election petition
may not be tried because of defective affidavit,
but it was rejected by the High Court's order of
the same date on the grounds that it was a
belated objection, and the allegation of corrupt
practice could not be deleted merely because of
the defective form of the affidavit. No issue was
joined in respect of any such objection and it
cannot be allowed to be raised for the first time
in this appeal.”
In the case on hand, election petitioner (I-respondent)
had not alleged corrupt practices, as defined under section
39 of KMC Act, which reads thus:-
39. Corrupt practices.- The following
shall be deemed to be corrupt practices for the
purposes of this Act, namely:-
(1) ‘bribery’ as defined in clause (1) of
Section 123 of the Representation of the Peoples
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Act, 1951 (Central Act 43 of 1951) for the time
being in force;
(2) ‘under influence’ as defined in clause
(2) of the said section for the time being in force;
(3) the appeal by a candidate or his agent
or by any other person with the consent of a
candidate or his election agent to vote or refrain
from voting for any person on the ground of his
religion, race, caste, community or language or
the use of, or appeal to religious symbols or the
use of or appeal to, national symbols, such as
the national flag or the national emblem, for the
furtherance of the prospects of the election of
that candidate or for prejudicially affecting the
election of any candidate;
(4) the promotion of, or attempt to
promote, feelings of enmity or hatred between
different classes of the citizens of India on
grounds of religion, race, caste, community or
language, by a candidate or his agent or any
other person with the consent of a candidate or
his election agent for the furtherance of the
prospects of the election of that candidate or for
prejudicially affecting the election of any
candidate;
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(5) the publication by a candidate or his
agent or by any other person with the consent of
a candidate or his election agent of any
statement of fact which is false, and which he
either believes to be false or does not believe to
be true, in relation to the personal character or
conduct of any candidate, or in relation to the
candidature or withdrawal of any candidate,
being a statement reasonably calculated to
prejudice the prospects of that candidate's
election;
(6) the hiring or procuring whether on
payment or otherwise of any vehicle by a
candidate or his agent or by any other person
with the consent of a candidate or his election
agent for the conveyance of any voter (other than
the candidate himself and the members of his
family or his agent) to or from any polling station
provided in accordance with the rules made
under this Act:
Provided that the hiring of a vehicle by an
elector or by several electors at their joint cost
for the purpose of conveying him or them to and
from any such polling station shall not be
deemed to be a corrupt practice under this
clause if the vehicle so hired is a vehicle not
propelled by mechanical power:
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Provided further that the use of any public
transport vehicle or any railway carriage by any
voter at his own cost for the purpose of going to
or coming from any such polling station shall
not be deemed to be a corrupt practice under
this clause.”
15. In a decision reported in 2003 AIR SCW 5569 (in the
case of Regu Mahesh alias Regu Maheswar Rao Vs. Rajendra
Pratap Bhanj Dev and another), the Supreme Court has
held:-
“8. What is “corrupt practice” is set out in S.123.
In terms of S.83(b) wherever corrupt practice is
alleged, full particulars of such practice alleged
including a full statement as possible of names
of the parties alleged to have committed corrupt
practice and the date and place of commission of
such practice has to be indicated. Though
allegation of fraud etc. in obtaining false caste
certificate have serious implications, under the
Act and particularly as the language of S.123(3)
specifies and enumerates they do not per se
constitute corrupt practice. The fact that a
candidate obtains a certificate that he belonged
to and is a member of the Scheduled
Caste/Tribe to contest as one belonging to such
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caste/Tribe, essential and necessary for
contesting as a candidate in a Reserved
Constituency, at any rate, cannot amount to an
appeal to vote or refrain from voting on ground
of his caste/Tribe for the reason that what was
obligated by the statute upon any one to be
entitled to contest in such a reserved
constituency cannot become condemnable as
“corrupt practice”. To attract the vice of the said
provisions as amounting to “corrupt practice”,
independent appeal or canvassing for votes by
the candidate or his agent or by another person
with the consent of the candidate or the election
agent for the furtherance of the prospects of the
election of that candidate or for prejudicially
affecting the election of any candidate is an
essential ingredient. Therefore, the provision
requiring an affidavit in the prescribed form
(Form-94) may not strictly have any application.
But that is not the omega. As S.83(c) itself
indicates, the petition shall be signed by the
petitioner and verified in the manner laid down
in CPC for verification of facts. Order VI, R.15
deals with verification of pleadings and reads as
follows:
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“Verification of pleadings.- (1) Save as
otherwise provided by any law for the time being
in force, every pleading shall be verified at the
foot by the party or by one of the parties
pleading or by some other person proved to the
satisfaction of the court to be acquainted with
the facts of the case.
(2) The person verifying shall specify, by
reference to the numbered paragraphs of the
pleadings, what he verifies of his own knowledge
and what he verifies upon information received
and believed to be true.
(3) The verification shall be signed by the
person making it and shall state the date on
which and the place at which it was signed.”
9. As sub-rule (2) of R. 15 prescribes that a
person making a verification is required to
specify by reference to the numbers of
paragraphs of the pleadings what he believes on
his own knowledge, and what he reveals upon
information received and believed to be true.
This admittedly has not been done in the
present case.
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10. In F.A.Sapa and Others. v. Singora and
Others. (1991 (3) SCC 375) a three-Judge Bench
of this Court specifically dealt with an issue
concerning defects in the verification of an
election petition as well as of defects in the
affidavit accompanying an election petition
wherein allegations of corrupt practice are made.
After considering the provisions of Ss. 83 and 86
of the Act, as also the requirements of Form 25
prescribed by R. 94-A of the Rules and relevant
provisions of the CPC, it was held: (SCC pp.403-
04, para 28) :
“28. From the text of the relevant
provisions of the R.P. Act, Rule 94-A and Form
25 as well as O. 6 Rule 15 and O. 19 Rule 3 of
the Code and the resume of the case-law
discussed above it clearly emerges (i) a defect in
the verification, if any, can be cured (ii) it is not
essential that the verification clause at the foot
of the petition or the affidavit accompanying the
same should disclose the grounds or sources of
information in regard to the averments or
allegations which are based on information
believed to be true (iii) if the respondent desires
better particulars in regard to such averments or
allegations, he may call for the same in which
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case the petitioner may be required to supply
the same and (iv) the defect in the affidavit in the
prescribed Form 25 can be cured...”
11. This judgment was followed by a Division
Bench of this Court in H.D. Revanna v. G.
Puttaswamy Gowda (1999 (2) SCC 217) and by a
three- Judge Bench in Dr. Vijay Laxmi Sadho v.
Jagdish (2001 (2) SCC 247).
12. It is, therefore, a settled position in law that
defect in verification or an affidavit is curable.
But further question is what happens when the
defect is not cured. There is gulf of difference
between a curable defect and a defect continuing
in the verification affidavit without any effort
being made to cure the defect.”
In the case on hand, had the appellant raised this
ground before the trial court there would have been
opportunity for I-respondent (election petitioner) to cure the
defect. Even otherwise, appellant has not established the
defective verification or defective affidavit had any bearing on
proceedings before court below. The appellant had not raised
the ground of maintainability due to improper verification
before trial court. Therefore, he cannot be permitted to raise
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this ground before appellate court. In view of this discussion,
I answer point No.1 in negative.
Point No.2:-
16. The learned trial Judge has framed following point for
determination:-
“Whether the petition filed under section
33 of the Karnataka Municipal Corporation Act,
1976, deserves to be allowed?”
17. Section 36 of KMC Act, which provides for procedure
to be followed by the court reads thus:-
“36. Procedure to be followed by the
Court- The procedure provided in the Code of
Civil Procedure, 1908, in regard to suits shall be
followed by the Court as far asit can be made
applicable, in the trial and disposal of an
election petition under this Act.”
18. The election petitioner (I-respondent herein) and
appellant (I-respondent before trial court) were aware of real
controversy between them. The appellant was aware that his
election was sought to be declared void on the ground that
he was not qualified to contest the election for Ward No.56,
reserved for Backward Classes Category ‘A’. Both parties
25
have led evidence. Therefore, failure of the trial court to
frame specific point for determination had not caused
prejudice to appellant and it has not affected the decision of
election petition on merits. Therefore, I answer point No.2 in
negative.
Point No.3:-
19. The appellant has produced and relied upon caste
certificate marked as Ex.R.14. This certificate was issued by
the Tahsildar (examined as RW2) on 02.12.2009. The
relevant portion of caste certificate in vernacular language
translated to English language reads thus:-
“Sri S.Shiva Shankar Prasad (appellant
herein) belongs to “Hindu Sadaru-Sadaru-
Sadumata-Sadakula-Sadar-Sadugowda Sadugowdar-
Sadara-Sadari-Sadara Gowda” caste classified
under Category II(A) and his annual income is
Rs.1,00,000/-.”
20. The caste certificate issued to the brother of appellant
namely S.G.Nagaraja by the Tahsildar, Bangalore East Taluk
is marked as Ex.R.15. The contents of Ex.R.15 as they relate
to identification of castes are identical to the contents of
26
Ex.R.14. These caste certificates were issued, pursuant to
gazette notification dated 30.03.2002 marked as Ex.R.18.
The notification marked as Ex.R.18 was issued by the
Government of Karnataka, for the purpose of reservation for
entry to education and appointment in State services.
21. It is true, under Rule 2(aa)of KMC Rules, 1977, ‘Caste
Certificate’ is defined as:-
“2(aa). Caste Certificate” means a Caste
Certificate or Income and Caste Certificate
issued by the Tahsildar of a Revenue Taluk
under the Karnatka Scheduled Castes,
Scheduled Tribes and Other Backward Classes
(Reservation of Appointment etc.) Act, 1990;]
Rule 2(aa) provides for issuance of caste certificate for
the purpose of education, employment and also for election.
The reasons are not too far to seek for this type of procedure.
22. On 16.10.1995, the Housing and Urban Development
Department, Government of Karnataka, has issued gazette
notification by exercising power under sub-section (1) of
section 2 of the KMC Act, by classifying and notifying classes
27
of citizens specified in the Annexure thereto as Backward
Classes for the purpose of reservation of seats and offices of
Chair persons in City Corporations, City Municipal Councils,
Town Municipal Councils and Town Panchayats under
Category ‘A’ and Category ‘B’. This notification is marked as
Ex.P.2. In respect of citizens belonging to Category ‘A’, there
is no economic criterion (concept of cremy layor), however
persons classified under Category ‘B’, their right to claim
reservation is subject to following conditions:-
(i) He/she or either of his/her
parents/guardian/his or her spouses is a Class I
or class II officer in the service of the
Government or holds an equivalent post in
public sector undertaking or an employee under
a private employer and draws a salary which is
not less than of a Class II Officer (Initial stage of
the pay scale of Rs.2050-3950);
(ii) He/she or either of his/her
parents/guardian/his or her spouse is an
Income Tax Assessee/Wealth Tax Assessee;
(iii) He/she or either of his/her parents/guardian/
his or her spouse is assessed to Sales Tax;
28
(iv) He/she or either of his/her parents/guardian/his or
her spouse or both together owns more than 8
hectares of rainfed or dry land or its equivalent.”
23. In the notification dated 30.03.2002, issued by Social
Welfare Department, Government of Karnataka, providing
reservation for education, the classification Scheduled
Castes, Scheduled Tribes and backward classes reads thus:-
Category – I : 4%
Category – II (A) : 15%
Category – II (B) : 4%
Category – III(A) : 4%
Category – III(B) : 5%
Scheduled Castes : 15%
Scheduled Tribes : 3%”
A copy of this notification is marked as Ex.R.18.
24. The concept of cremy layer is not applicable to
candidates of Scheduled Castes, Scheduled Tribes and
Category ‘A’. However, the concept of cremy layer is
applicable to candidates belonging to category II(A), II(B),
III(A) & III(B). Therefore, candidates claiming reservation
both for the purpose of education and election unless they
29
are exempted in terms of reservation notification will have to
establish that they do not come under cremy layer in terms
of said notification.
On a combined reading of notification marked as
Ex.P2 and Ex.R.18, it is clear that notification issued for the
purpose of reservation for education and election are distinct
and considerations for reservation for education and election
are different.
25. In the circumstances, the Tahsildar (RW2), who had
issued caste certificates as per Ex.R.14 & Ex.R.15 should
have specifically stated the caste of appellant and his
brother. The caste certificates are omnibus.
26. The next caste certificate dated 13.01.2010, relied
upon by appellant is marked as Ex.P.22. It was issued by the
Tahsildar, Bangalore East Taluk, on the information
furnished by appellant. The Tahsildar had not made an
inquiry. This is obvious from the contents of caste certificate
(Ex.P.22). The I-part of document contains information
furnished by appllant and II-part of document is captioned
30
as “Caste Certificate” issued by the Tahsildar. The appellant
had enclosed his affidavit dated 12.01.2010 to obtain caste
certificate as per Ex.P.22. It is noticed from the contents of
Ex.P.22 that appellant has not only affixed his signature as
the candidate, he has also affixed his signature as the father
of candidate. RW2 has admitted this fact.
27. RW2-Shivakumar C.L., the then Tahsildar of
Bangalore East Taluk, has deposed that public had
submitted a complaint alleging that apellant is attempting to
obtain false caste certificate. The complaint dated
25.01.2010 is marked as Ex.P.24, pursuant to Ex.P.24
concerned Revenue Inspector held an inquiry and submitted
a report as per Ex.P.26. The report submitted as per Ex.P.26
is not based on independent inquiry, on the other hand, it is
based on school records of the younger brother of appellant.
This report was prepared on 28.01.2010 and it was received
in the office of Tahsildar on 16.02.2010.
28. At this juncture, it is relevant to state that caste
certificate as per Ex.P.22 was issued on 13.01.2010.
31
Therefore, it can safely be held that caste certificates marked
as Ex.R.14 & Ex.R.15 were issued in violation of the
provisions of Section 4-A of the Karnataka Scheduled Castes,
Scheduled Tribes and Other Backward Classes (Reservation
of Appointments, etc.) Act, 1990, which read thus:-
1[4-A. Issue of Caste Certificate and Income
and Caste Certificate.- (1) Any candidate or his
parent or guardian belonging to the Scheduled
Castes or the Scheduled Tribes may, in order to
claim benefit of reservation under Section 4,
either for appointment to any service or post or
for admission to a course of study in a
University or any educational institution make
an application to the Tahsildar in such form and
in such manner as may be prescribed for issue
of a Caste Certificate.
(2) Any candidate or his parent or
guardian belonging to Other Backward Classes
may, in order to claim benefit of reservation
under Section 4, either for appointment to any
service or post or for admission to a course of
study in University or any Educational
Institution, make an application to the Tahsildar
in such form and in such manner as may be
32
prescribed for issue of an Income and Caste
Certificate.
(3) The Tahsildar may on receipt of an
application under sub-section (1) or (2), and
after holding such enquiry as he deems fit and
satisfying himself regarding the genuineness of
the claim made by applicant pass an order
issuing a caste certificate or, as the case may be,
an income and caste certificate in such form as
may be prescribed, or rejecting the application.
(4) The Tahsildar shall follow such
procedure as may be prescribed before passing
the order under sub-section (3).
(5) The burden of proving that the
candidate or his parent or guardian belongs to
Scheduled Castes, Scheduled Tribes or Other
Backward Classes shall be on the applicant.”
29. The provisions of Secton 4-A of the Karnataka
Scheduled Castes, Scheduled Tribes and Other Backward
Classes (Reservation of Appointments, etc.) Act, 1990 do not
exclude the jurisdiction of civil court.
33
30. In a decision reported in AIR 1969 SC 78 (in the case of
Dhulabhai etc., Vs. State of Madhya Pradesh and another),
the Supreme Court has held:-
“(1) Where the statute gives a finality to
the orders of the special tribunals the civil
courts’ jurisdiction must be held to be excluded
if there is adequate remedy to do what the civil
courts would normally do in a suit. Such
provision, however, does not exclude those cases
where the provisions of the particular Act have
not been complied with or the statutory tribunal
has not acted in conformity with the
fundamental principles of judicial procedure.
(2) Where there is an express bar of the
jurisdiction of the court, an examination of the
scheme of the particular Act to find the
adequacy or the sufficiency of the remedies
provided may be relevant but is not decisive to
sustain the jurisdiction of the civil court. Where
there is no express exclusion the examination of
the remedies and the scheme of the particular
Act to find out the intendment becomes
necessary and the result of the inquiry may be
decisive. In the latter case, it is necessary to see
if the statute creates a special right or a liability
34
and provides for the determination of the right
or liability and further lays down that all
questions about the said right and liability shall
be determined by the tribunals so constituted,
and whether remedies normally associated with
actions in civil courts are prescribed by the said
statute or not.
(3) Challenge to the provisions of the
particular Act as ultra vires cannot be brought
before Tribunals constituted under that Act.
Even the High Court cannot go into that
question on a revision or reference from the
decision of the Tribunals.
(4) When a provision is already declared
unconstitutional or the constitutionality of any
provision is to be challenged, a suit is open. A
writ of certiorari may include a direction for
refund if the claim is clearly within the time
prescribed by the Limitation Act but it is not a
compulsory remedy to replace a suit.
(5) Where the particular Act contains no
machinery for refund of tax collected in excess of
constitutional limits or illegally collected, a suit
lies.
35
(6) Questions of the correctness of the
assessment apart from its constitutionality are
for the decision of the authorities and a civil
suit, does not lie if the orders of the authorities
are declared to be final or there is an express
prohibition in the particular Act. In either case,
the scheme of the particular Act must be
examined because it is a relevant enquiry.
(7) An exclusion of jurisdiction of the Civil
Court is not readily to be inferred unless the
conditions above set down apply.”
31. In a decision reported in (2005) 2 SCC 244 (in the case
of Sobha Hymavathi Devi Vs. Setti Gangadhara Swamy and
Others), the Supreme Court has held:-
“11. What remains is the argument based
on the certificates allegedly issued under the
Andhra Pradesh (Scheduled Castes, Scheduled
Tribes and Backward Classes) Regulation of
Issue of Community Certificate Act, 1993. The
High Court has not accepted the certificates as
binding for the reason that the evidence showed
that the certificates were issued based on the
influence exercised by the appellant as a
member of the Legislative Assembly, one after
another, immediately on an application being
36
made and without any due or proper enquiry.
We are impressed by the reasons given by the
High Court for not acting on these certificates.
That apart, a reference to Section 3 of the Act
would indicate that a certificate thereunder,
insofar as it relates to elections, is confined in its
validity to elections to local authorities and
cooperative institutions. It does not embrace an
election to the Legislative Assembly or to the
Parliament. Therefore, in any view of the matter,
it cannot be said that the High Court, exercising
jurisdiction under the Representation of the
People Act in an election petition is precluded
from going into the question of status of a
candidate or proceeding to make an independent
inquiry into that question in spite of the
production of a certificate under the Act. At best,
such a certificate could be used in evidence and
its evidentiary value will have to be assessed in
the light of the other evidence let in, in an
election petition. Therefore, nothing turns on the
factum of a certificate being issued by the
authority concerned under the Act of 1993. We
are also satisfied as the High Court was
satisfied, that no proper inquiry preceded the
issuance of such a certificate and such a
certificate was issued merely on the say-so of the
37
appellant. We have, therefore, no hesitation in
overruling this argument raised on behalf of the
appellant.”
32. In a decision reported in MANU/AP/0446/2003 (in the
case of Durga Singh Vs. M.Lakshman Yadav and others),
relied upon by the learned senior counsel for appellant, the
High Court of Andhra Pradesh has held:-
“25. In this context, it needs to be
observed that the A.P.State Legislature has
enacted the State Act of 16 of 1993 to regulate
the issue of Community Certificate relating to
persons belonging to Scheduled Castes,
Scheduled Tribes and Backward Classes and
matters connected thereof or incidental thereto.
Section 5 of the State Act provides for
cancellation of the certificates. The proceedings
for cancellation can be initiated either suo motu
by the competent authority or on a written
application by any person. Section 6 places the
burden on the person claiming the social status.
In the event of the refusal to issue a Caste
Certificate under Section 5 of the State Act, an
appeal is provided under Section 7. A further
revision is provided to the Government under
Section 8. The jurisdiction of the Civil Court is
38
barred under Section 17. Section 19 confers
overriding effect on the Act in the event of an
inconsistency with any other law for the time
being in force. Under Section 21, the Certificate
issued by any competent authority before the
commencement of the Act, is conferred
legitimacy, unless it is cancelled under the
provisions of the State Act.”
(underlining supplied by me)
33. The decisions reported in CDJ 2012 BHC 319 (in the
case of Rajesh Bharat Latkar Adult Vs. State of
Maharashtra, Through the Department & Others) and (2011)
10 SCC 357 (in the case of Collector, Bilaspur Vs. Ajit
P.K.Jogi & Others) relied upon by the learned senior counsel
for appellant have no bearing on the issue involved in the
instant case. Therefore, the trial court has jurisdiction to
consider the validity of caste certificate, in the light of other
evidence adduced by parties, point No.3 is answered in
affirmative.
34. The next point for determination is:-
“Whether election petitioner (I-respondent
herein) has proved that appellant (successful
39
candidate) does not belong to “Hindu
Sadru/Sadaru” which are classified as
Backward classes category ‘A’ in terms of gazette
notification dated 16.10.1995, marked as
Ex.P.2?”
35. In this notification issued for reservation of seats and
offices of Chairpersons in City Corporations, City Municipal
Concils, Town Municipal Councils and Town Panchayats, the
entry relevant for the purpose of instant case is marked as
Ex.P.2(a) and it is found at Sl.No.177, the same reads thus:-
“Hindu Sadru/Sadaru”
36. The learned senior counsel for appellant, relying on a
decision of the Supreme Court, reported in AIR 1968 SC 929
(in the case of Laxman Siddappa Naik Vs. Kattimani
Chandappa Jampanna & others) would submit that burden
of proof lies on election petitioner (I-respondent herein) to
prove that appellant does not belong to “Hindu
Sadru/Sadaru and that he is “Sadari Gowda”.
37. The learned senior counsel for appellant submits that
election petitioner (I-respondent herein) apart from marking
some documents has not adduced evidence to prove
40
characteristics such as customs of marriages, births, deaths,
dress, occupation and like which distinguish a “Sadari
Gowda” from “Hindu Sadru/Sadaru”.
38. In the decision reported in AIR 1968 SC 929 (in the
case of Laxman Siddappa Naik Vs. Kattimani Chandappa
Jampanna & others), the Supreme Court has held that
election petitioner could have proved that successful
candidate was a ‘Bedar” by caste.
The controversy in the aforestated case is whether
“Nayaka” caste mentioned in the order and “Bedar” caste
(not found in order) in the State of Karnataka are one and
the same. The successful candidate had contended “Nayaks”
are also called as “Bedars”. Therefore, the Supreme Court
has held that election petitioner should have led evidence to
prove characteristics such as customs of marriages, births,
deaths, worship, occupaion and the like which distinguish a
“Bedar” from “Nayaka”.
In the case on hand, election petitioner (I-respondent
herein) has produced attested school admission register
41
extract (Ex.P.15), attested copy of application for admission
to High School (Ex.P.20) and admission extracts of appellant
of V.V.Puram College of Arts and Commerce at Bangalore
(Ex.P.20 and Ex.P.21) to prove that appellant is a native of
Andhra Pradesh and he belongs to “Sadri Gowda” caste,
therefore, appellant cannot claim that he belongs to “Hindu
Sadru/Sadaru” caste to claim benefit of reservation.
39. In the documents marked as Ex.P.15, Ex.P.16 and
Ex.P.20, which relate to study particulars of appellant in
Andhra Pradesh, his caste is shown as “Sadari Gowda” and
his name is shown as “Sadhari Gowda Sivasankara Prasad”.
However, in Ex.P.20 and Ex.P.21, which relate to study
particulars of appellant in V.V.Puram College at Bangalore,
his caste is shown as “Sadara” and his name is shown as
“S.Shivashankar Prasad”.
40. The learned counsel for appellant submits that these
documents cannot be read as per se evidence, more
particularly when the authors/custodians of documents
were not examined.
42
41. This submission of learned senior counsel for
appellant has to be considered with reference to statement of
objections filed by appellant before the trial court and oral
evidence adduced by appellant.
42. In the objections statement filed by appellant before
the trial court, he has stated:-
“The first respondent is a Member of
Sadaru community which is called with different
nomenclatures and suffixes such as Sadaru,
Hindu Sadaru, Sadu Matha, Sad Kula, Sadar,
Sadu Gowda, Sadu Gowder, Sadara, Sadari,
Sadara Gowda. The Government of Karnataka
has issued Notification notifying different castes
under different categories based on the report of
the Karnataka State Commission for backward
classes. The Government has issued Order
No.SWD.225.BCA.2000 dated 30.03.2002 showing
different names with which the Sadar
Community is known and recognised it as
Category-II(A) at Serial No.89. A photo true copy
of the Notification dated 30.03.2002 is herewith
produced as per ANNEXURE-R-1.
In the report submitted by the said
Revenue Inspector it is clearly mentioned that
43
the first respondent is basically from Andhra
Pradesh and that he is settled in Bangalore for
over 25 Years. The same is produced by the
petitioner as per ANNEXURE-R-2. When the
matter stood thus it is highly unfortunate that
the petitioner an unsuccessful candidate has
made most uncharitable allegation stating that
the petitioner has suppressed his place of birth.
Even if the petitioner was born in
M.Venkatapura, which is one kilometer away
from the border of Karnataka, it would not
change the caste of the first respondent nor it
takes away the constitutional and statutory
rights conferred on his community i.e., Sadaru.
The pleadings regarding the elementary
education, prosecution of studies in the High
School as shown in Para-6 is not in dispute. If
the school authorities have mentioned a suffix
with the case of the first respondent showing his
caste as SADRI GOWDA it would not make a
Sadaru person as a Vokkaliga Gowda or
Lingayath Gouda.”
43. The I-respondent (election petitioner) has produced
Study Certificate marked as Ex.P.14 issued by
44
M.P.Elementary School in M.Venkatapuram, Lepakshi
Mandal, Ananthapur District, Andhra Pradesh State.
In this study cerificate, his caste is shown as “Sadari
Gowda”, though study certificate does not provide any
column to indicate the caste of student.
44. The next document is the Form of Caste Certificate of
the father of appellant, issued by the Tahsildar of Lepakshi
Mandal, Ananthpur District, Andhra Pradesh State. This
document is marked as Ex.R.2.
In this document, the caste of father of appellant is
shown as “Sadari” – Backward Class. This document does
not bear the date of issue. In this document, there is
reference to G.O.Ms.No.1973 Education dated 23.09.1970 as
amended from time (As amended by the Scheduled
Caste/Scheduled Tribes lists (Modification) Order 1956, the
Scheduled Castes and Scheduled Tribes Order (Amendment
Act, 1976).
45
45. At this juncture, it is relevant to refer to Ex.R.13, a
notification of socially and educationally backward classes in
the State of Andhra Pradesh.
At Sl.No.35 of Notification (Ex.R.13), entry relevant for
the instant case reads thus:-
35. Inclusion of Caste
Sadara / Sadaru (Only
Ananthapur District)
G.O.Ms.No.11, BCW(C2) Dept, dated:09.04.2008
46. Therefore, this undated Form of Caste Certificate of
the father of appellant marked as Ex.R.2, does not bear true
testimony of his caste or backwardness of caste. Similar is
the fate of caste certificate of Prabhavathamma W/o.
K.Aswathappa.
47. The documents marked as Ex.R.5 to Ex.R.9 are the
true copies of Transfer Certificates of daughters of appellant
namely Kumari P.Poornima and Kumari P.Pooja Prasad. In
these documents, the caste of Kumari P.Poornima and
Kumari P.Pooja Prasad is shown as “Sadara”.
46
48. The law is fairly well settled that caste status of a
descendant can be determined by caste status of his
ascendent, however the caste status of ascendent cannot be
determined by caste status of a descendent. The appellant
had furnished this information under misconception that
“Sadari Gowda” caste is synonymous to “Sadaru” caste.
The appellant has deposed that he was born in
M.Venkatapuram Village, Lepakshi Mandal, Ananthapur
District, Andhra Pradesh State and studied up to
intermediate in his native Taluk of Andhra Pradesh.
49. The learned senior counsel for appellant has relied on
Ex.R.10 to contend, in the year 1981 (on 21.07.1981) when
the appellant was admitted to II year B.A. in V.V.Puram
College of Arts and Commerce at Bangalore, his caste has
been recorded as “Sadara”. The learned senior counsel for
appellant would submit that this document cannot be
disbelieved as this document has come into existence at
undisputed point of time. The learned senior counsel for
47
appellant would submit that the learned trial Judge should
not have ignored this document.
50. In order to appreciate this submission, it is necessary
to appreciate evidence of appellant. During cross-
examination, appellant has admitted when he came to
Bangalore and joined V.V.Puram College for B.A.graduation,
he had given his permanent address as “M.Venkatapuram,
Taluk: Hindupur, District: Ananthpur, Andhra Pradesh State
and his residential address as “Hindu Sadara vidyabhivruddi
Sangh” West of Chord Road, Bangalore. Therefore,
information furnished by appellant when he was admitted to
V.V.Puram College does not reflect the truth.
51. The appellant has relied on notification dated 30.03.2002
(Ex.R.18) to contend, that in the aforestated notification at entry
No.89,“HinduSadaru:Sadaru:Sadumatha:Sadakula:Sadar:Sadu
gowda:Sadugowdar:Sadara:Sadari:Sadaragowda” are shown as
equivalents/synonyms and they are included under category “II(A)
of Backward Classes.
48
52. In a decision reported in (2010) 7 SCC 202 (in the case
of K.Krishna Murthy (Dr.) and Others Vs. Union of India and
Another), the Supreme Court has held:-
“51. Before addressing the contentious issues, it
is necessary to examine the overarching
considerations behind the provisions for
reservations in elected local bodies. At the
outset, we are in agreement with Shri Rajeev
Dhavan's suggestion that the principles that
have been evolved for conferring the reservation
benefits contemplated by Articles 15(4) and 16(4)
cannot be mechanically applied in the context of
reservations enabled by Article 243-D and
243-T. In this respect, we endorse the
proposition that Article 243-D and 243-T form a
distinct and independent constitutional basis for
reservations in local self-government
institutions, the nature and purpose of which is
different from the reservation policies designed
to improve access to higher education and
public employment, as contemplated under
Article 15(4) and 16(4) respectively.
82. In view of the above, our conclusions
are:-
49
(i) The nature and purpose of reservations
in the context of local self-government is
considerably different from that of higher
education and public employment. In this sense,
Articles 243-D and Article 243-T form a distinct
and independent constitutional basis for
affirmative action and the principles that have
been evolved in relation to the reservation
policies enabled by Articles 15(4) and 16(4)
cannot be readily applied in the context of local
self-government. Even when made, they need
not be for a period corresponding to the period of
reservation for the purposes of Articles 15(4) and
16(4), but can be much shorter.
(ii) Article 243-D(6) and Article 243-T(6)
are constitutionally valid since they are in the
nature of provisions which merely enable State
Legislatures to reserve seats and chairperson
posts in favour of backward classes. Concerns
about disproportionate reservations should be
raised by way of specific challenges against the
State Legislations.
(iii) We are not in a position to examine
the claims about overbreadth in the quantum of
reservations provided for OBCs under the
impugned State Legislations since there is no
50
contemporaneous empirical data. The onus is on
the executive to conduct a rigorous investigation
into the patterns of backwardness that act as
barriers to political participation which are
indeed quite different from the patterns of
disadvantages in the matter of access to
education and employment. As we have
considered and decided only the constitutional
validity of Articles 243-D(6) and 243-T(6), it will
be open to the petitioners or any aggrieved party
to challenge any State legislation enacted in
pursuance of the said constitutional provisions
before the High Court. We are of the view that
the identification of “backward classes” under
Article 243-D(6) and Article 243-T(6) should be
distinct from the identification of SEBCs for the
purpose of Article 15(4) and that of backward
classes for the purpose of Article 16(4).
(iv) The upper ceiling of 50% vertical
reservations in favour of SCs/STs/OBCs should
not be breached in the context of local self-
government. Exceptions can only be made in
order to safeguard the interests of Scheduled
Tribes in the matter of their representation in
panchayats located in the Scheduled Areas.
51
(v) The reservation of chairperson posts in
the manner contemplated by Article 243-D(4)
and 243-T(4) is constitutionally valid. These
chairperson posts cannot be equated with
solitary posts in the context of public
employment.”
Therefore, appellant cannot take shelter under the
notification (Ex.R.18) issued for the purpose of reservation
for education and employment.
53. The learned senior counsel for appellant, relying on
the judgment reported in ILR 1994 KAR 1270 (in the case of
Virupakashappa Vs. Hanumantha) would submit that
“Sadaru” and “Sadari Gowda” are synonymous, therefore,
caste “Sadaru or Sadari Gowda” can be treated as Backward
Classes Category ‘A’.
In this decision, the Government of Karnataka had
issued an order on 27.03.1980, showing list of Scheduled
Caste referred to at Sl.No.23 as “Bhovi” and equivalent words
or synonyms as “Od, Odde, Vaddar, Waddar and Woddar”.
However, in the Government Order itself it is made clear that
52
this list was not intended and shall not be treated as an
alteration or amendment of the Schedule to the Presidential
Order, specifying Scheduled Castes and Scheduled Tribes in
relation to State of Karnataka.
In the case on hand, the gazette notification dated
16.10.1995 (Ex.P.2) issued by the Government of Karnataka
for the purpose of reservation of seats and offices of
Mayor/Deputy Mayor of City Corporations, President/Vice-
President of Town Municipal Councils/City Municipal
Councils/Town Panchayats, there are no synonyms or
equivalents to “Hindu Sadru/Sadaru” notified at entry
No.177.
54. The learned senior counsel for I-respondent has relied
on a decision reported in (2001) 1 SCC 4 (in the case of State
of Maharashtra Vs. Milind and Others), to contend that it is
not open to State Governments or courts or tribunals or any
other authority to modify, amend or alter the list of
Scheduled Tribes specified in the notification issued under
clause(1) of Articles 342.
53
In the decision reported in (2001) 1 SCC 4 (in the case
of State of Maharashtra Vs. Milind and Others), the Supreme
Court has held:-
“36. In the light of what is stated above, the
following positions emerge:-
1. It is not at all permissible to hold any
inquiry or let in any evidence to decide or
declare that any tribe or tribal community or
part of or group within any tribe or tribal
community is included in the general name even
though it is not specifically mentioned in the
entry concerned in the Constitution (Scheduled
Tribes) Order, 1950.
2. The Scheduled Tribes Order must be
read as it is. It is not even permissible to say
that a tribe, sub-tribe, part of or group of any
tribe or tribal community is synonymous to the
one mentioned in the Scheduled Tribes Order if
they are not so specifically mentioned in it.
3. A notification issued under Clause (1) of
Article 342, specifying Scheduled Tribes, can be
amended only by law to be made by Parliament.
In other words, any tribe or tribal community or
part of or group within any tribe can be included
or excluded from the list of Scheduled Tribes
54
issued under clause (1) of Article 342 only the
Parliament by law and by no other authority.
4. It is not open to State Governments or
courts or tribunals or any other authority to
modify, amend or alter the list of Scheduled
Tribes specified in the notification issued under
clause (1) of Article 342.
5. Decisions of the Division Benches of this Court in
Bhaiya Ram Munda v. Anirudh Patar1 and Dina v.
Narain Singh6, did not lay down law correctly in
stating that the inquiry was permissible and the
evidence was admissible within the limitations
indicated for the purpose of showing what an entry
in the Presidential Order was intended to be. As
stated in position (1) above no inquiry at all is
permissible and no evidence can be let in, in the
matter.”
55. The learned senior counsel for appellant, relying on a
decision reported in (2009) 15 SCC 458 (in the case of
Subhash Chandra and Another Vs. Delhi Subordinate
Services Selection Board and Others and connected matters)
would submit that for identificaiton of backward classes, it is
necessary to undertake a study in a particular State as to
55
whether migrants are required to be treated as backward
classes. The learned senior counsel for appellant would
submit that appellant having migrated and settled in
Bangalore about three decades back can claim the status of
“Sadaru” caste when there is nothing to distinguish between
“Sadari” caste in Andhra Pradesh and “Sadaru” caste in
Karnataka.
56. The learned senior counsel for I-respondent, relying on
a decision reported in (2001) 6 SCC 571 (in the case of M.C.D.
Vs. Veena and Others) would submit that classification of
Backward caste in a given State depends upon nature and
extent of disadvantages and social hardships suffered by the
caste or group in that State, however that may not be so in
the State to which a person migrates.
57. The learned senior counsel for I-respondent would
further submit that a migrant cannot claim caste status vis-
à-vis backwardness even if there is a synonymous caste in
the migrated State.
56
58. In the decision reported in (2001) 6 SCC 571 (in the
case of M.C.D. Vs. Veena and Others), the Supreme Court
has held:-
“6. Castes or groups are specified in
relation to a given State or Union Territory,
which obviously means that such caste would
include caste belonging to an OBC group in
relation to that State or Union Territory for
which it is specified. The matters that are to be
taken into consideration for specifying a
particular caste in a particular group belonging
to OBCs would depend on the nature and extent
of disadvantages and social hardships suffered
by that caste or group in that State. However, it
may not be so in another State to which a
person belonging thereto goes by migration. It
may also be that a caste belonging to the same
nomenclature is specified in two States but the
considerations on the basis of which they had
been specified may be totally different. So the
degree of disadvantages of various elements
which constitute the data for specification may
also be entirely different. Thus, merely because a
given caste is specified in one State as belonging
to OBCs does not necessarily mean that if there
be another group belonging to the same
57
nomenclature in another State, a person
belonging to that group is entitled to the rights,
privileges and benefits admissible to the
members of that caste. These aspects have to be
borne in mind in interpreting the provisions of
the Constitution with reference to application of
reservation to OBCs.”
Therefore, the contention of learned senior counsel for
appellant cannot be accepted.
59. The learned senior counsel for appellant would submit
that appellant had migrated and settled in Bangalore about
three decades back. Therefore, there is no reason to deny the
benefit of reservation as he belongs to “Sadaru” caste, which
in fact is a backward caste not only in Andhra Pradesh, but
also in the migrated State.
60. The law is fairly well settled, in the matter of
reservation, the scheme of reservation for backward classes
have direct bearing on population of backward classes. In
the normal circumstances, caste of a person is determined
by his birth, however, when reservation, either for education
or election is claimed by a person, on the basis of caste, the
58
caste alone will not be a decisive factor. It depends upon
native place/place of residence of parents, State of origin,
migrated State and also economic status of parents, in terms
of statutory notifications holding field.
61. In view of the above discussion, Point No.4 is answered
in affirmative. The learned trial Judge, has arrived at right
conclusion though all the points have not been elaborately
dealt with. The records do not bear an indication that all the
contentions urged before this court had been urged before
the trial court. Therefore, the impugned judgment does not
call for interference.
62. In the result, I pass the following:-
ORDER
The appeal is dismissed.
Sd/- JUDGE
SNN
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