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¸ÀA¥ÀÄl 154 ¨ÉAUÀ¼ÀÆgÀÄ, UÀÄgÀĪÁgÀ, d£ÀªÀj 10, 2019 (¥ÀĵÀå 20, ±ÀPÀ ªÀµÀð 1940) ¸ÀAaPÉ 2 Volume 154 Bengaluru, Thursday, January 10, 2019 (Pushya 20, Shaka Varsha 1940) Issue 2 ¨sÁUÀ 3 ¸ÀPÁðgÀzÀ DAiÀiÁ E¯ÁSÉUÀ¼À ªÀÄÄRå¸ÀÜgÀ ªÀÄvÀÄÛ ¸ÀܽÃAiÀÄ ¥Áæ¢üPÁjUÀ½UÉ ¸ÀA§A¢ü¹zÀ C¢ü¸ÀÆZÀ£ÉUÀ¼ÀÄ PERSONNEL AND ADMINISTRATIVE REFORMS SECRETARIAT (ELECTIONS) NOTIFICATION No. DPAR 31 CHUTAA 2018, BENGALURU, DATED: 20th November, 2018 The following Notification No. 82/ECI/TERR/SOU2-KT/04/2013, dated: 13th June 2018 of the Election Commission of India is re-published hereunder for general information. ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi – 110 001 Dated: 13th June, 2018 11 Jyaistha, 1940 (saka) NOTIFICATION No. 82/ECI/TERR/SOU2-KT/04/2013:- In pursuance of Section 106 (b) of the Representation of the People Act, 1951, (43 of 1951)The Election Commission of India hereby publishes the judgment/order of the High Court of Karnataka dated 25th April, 2018 in the Election Petition No. 04 of 2013. IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL, 2018 BEFORE THE HON’BLE MR. JUSTICE A S BOPANNA ELECTION PETITION No.4/2013 BETWEEN: 1. SRI N MUNIANJAPPA AGED ABOUT 57 YEARS, S/O H. NARAYANAPPA, WARD NO. 8, MUTYALAPETE, MULBAGAL TOWN, KOLAR DISTRICT-563 131 2. G. VENKATARAVANA AGED ABOUT 36 YEARS, S/O LATE GOVINDU, MARAHERUKOTHURU VILLAGE, MULBAGAL TALUK, KOLAR DISTRICT-563 131 (69) 70 PÀ£ÁðlP À gÁdå¥ÀvÀæ, UÀÄgÀĪÁgÀ, d£ÀªÀj 10, 2019 ¨sÁUÀ 3 3. AMARESH AGED ABOUT 45 YEARS, S/O MUNISWAMY @ SAKRAPPA, KEELAGANI VILLAGE, AVANI HOBLI, MULBAGAL TALUK, KOLAR DISTRICT-563 131 4. M.N. AMBARISH AGED ABOUT 34 YEARS, S/O NARAYANAPPA MALEKUPPA VILLAGE, MULBAGAL TALUK, KOLAR DISTRICT-563 131 5. Y. SRINIVASAN PATAPAT AGED ABOUT 43 YEARS, S/O A.V. YALLAPPA, NO.32, BR AMBEDKAR ROAD, ATTIBELE, ANEKAL TALUK-562 125 6. P CHANDRAPPA AGED ABOUT 45 YEARS, S/O LATE PILLAPPA, ASALI ATTHIKUNTE VILLAGE, MULBAGAL TALUK, KOLAR DISTRICT-563 131 7. JAGADISH C.K AGED ABOUT 34 YEARS, S/O KRISHNAMURTHY RAJ, NO. 3264/5, MUTHYALPET, MULBAGAL TOWN, KOLAR DISTRICT-563 131 8. DODDACHOWDAPPA AGED ABOUT 63 YEARS, S/O MUNIVENKATAPPA, NAGAVARA VILLAGE, MULBAGAL TALUK, KOLAR DISTRICT-563 131 9. C. RAMAKRISHNAIAH AGED ABOUT 54 YEARS, S/O LATE CHINNAPPA, KURAGAL VILLAGE AND POST, KOLAR TALUK, KOLAR DISTRICT-563 131 10. RANJIT KUMAR T AGED ABOUT 26 YEARS, S/O M. THIMMAIAH, NETHAJINAGARA MULBAGAL TOWN, KOLAR DISTRICT-563 131 11. H.A. LAKSHMAIAH AGED ABOUT 69 YEARS, S/O AVALAPPA, NO.4081, 1ST CROSS M.N. HALLI ROAD, MULBAGAL TOWN, KOLAR DISTRICT-563 131 ¨sÁUÀ 3 PÀ£ÁðlPÀ gÁdå¥ÀvÀæ, UÀÄgÀĪÁgÀ, d£ÀªÀj 10, 2019 71 12. V. ADINARAYANA AGED ABOUT 35 YEARS, S/O. VENKATARAMAPPA, PEDDAREDDYPALLI VILLAGE, BAGEPALLI TALUK KOLAR DISTRICT-561 207 13. G. ALANGUR RAMANNA AGED ABOUT 44 YEARS, S/O GANESHAPPA, SONNAVADI VILLAGE, MULBAGAL TALUK, KOLAR DISTRICT-563 131 14. CHALAPATHI AGED ABOUT 40 YEARS, S/O VENKATESHAPPA NAGAMANGALA VILLAGE, MULBAGAL TALUK KOLAR DISTRICT-563 131 15. NAGARAJ V AGED ABOUT 30 YEARS, S/O VIDYARANYA, MADDERI VILLAGE, MULBAGAL TALUK, KOLAR DISTRICT-563 131 16. T.V. BALAKRISHNA AGED ABOUT 39 YEARS, S/O VENKATANABOVI TIMMANAYAKANAHALLI, MALLANAYAKANAHALLI POST, MULBAGAL TALUK, KOLAR DISTRICT-563 131 17. V. MARAPPA AGED ABOUT 40 YEARS, S/O VENKATARASHAMBOVI OLAGERANAHALLI VILLAGE, MULBAGAL TALUK, KOLAR DISTRICT-563 131 18. D. VENKATARAVANAPPA AGED ABOUT 34 YEARS, S/O. DODDAKAMANNA KESARAMANAGALA VILLAGE, MULBAGAL TALUK, KOLAR DISTRICT-563 131 19. T.M. SHVIANNA AGED ABOUT 49 YEARS, S/O MUNIYAPPA, THORADI VILLAGE, MULBAGAL TALUK, KOLAR DISTRICT-563 131 20. N. SRINIVAS AGED ABOUT 49 YEARS, S/O NARAYANAPPA, GUMMAKAL VILLAGE, G.MARANDAHALLI POST, MULBAGAL TALUK, KOLAR DISTRICT-563 131 72 PÀ£ÁðlP À gÁdå¥ÀvÀæ, UÀÄgÀĪÁgÀ, d£ÀªÀj 10, 2019 ¨sÁUÀ 3 21. V. SRINIVAS AGED ABOUT 39 YEARS, S/O VENKATARAMAPPA NETHAJI NAGAR, MULBAGAL TOWN, KOLAR DISTRICT-563 131 ... RESPONDENTS (BY SRI ASHOK HARANAHALLI, Sr. COUNSEL FOR SRI K RAGHUPATHY & SRI R HEMANTHRAJ A/W SRI C SHASHIKANTHA, ADVs. FOR R1 SRI N.S. SHESHADRI, ADV. FOR R2 SRI A S MAHESH, ADV. FOR R3 SRI PRAVEEN BY RJS ADV’s FOR R4, 6-11, 13-15 & 19 SRI V S BIJU, ADV. FOR R17 SRI G.KRISHNAMURTHY FOR SRI BIMBADHAR M GOWDAR, ADV. FOR R12 V/O DATED 22/01/2018) THIS ELECTION PETITION PRESENTED U/S 81 OF THE REPRESENTATION OF PEOPLE’S ACT, 1951 R/W RULE 4 OF THE ELECTION PROCEDURE RULES, KARNATAKA 1967 BY ONE SRI MUNIANJAPPA N, PETITIONER CHALLENGING THE ELECTION OF THE RESPONDENT NO.1: SRI G MANJUNATHA TO THE KARNATAKA LEGISLATURE FROM NO.145, MULBAGAL(SC) ASSEMBLY CONSTITUENCY, GENERAL ELECTIONS HELD IN THE YEAR 2013, PRAYING TO A) DECLARE THAT ON THE DATE OF ELECTION ON 05.05.2013 AND DECLARATION OF THE RESULT ON 08.05.2013 THAT THE RESPONDENT NO.1 WAS NOT QUALIFIED TO BE CHOOSEN TO FILL THE SEAT RESERVED FOR THE SCHEDULE CASTE 145 MULBAGAL UNDER THE CONSTITUTION AND UNDER SECTION 100(1)(A)(D)(IV) OF THE REPRESENTATION OF THE PEOPLE ACT AND ETC. THIS ELECTION PETITION HAVING BEEN RESERVED FOR ORDERS ON 13.04.2018, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: ORDER The petitioner in this petition filed under Section 81 of the Representation of People’s Act, 1951 (‘R.P.Act’ for short) is before this Court seeking to declare that on the date of election on 05.05.2013 and on the date of declaration of the result on 08.05.2013, respondent No.1 was not qualified to be chosen to fill the seat reserved for the Scheduled Caste in the Karnataka Assembly. The seat in question is No.145 Mulbagal reserved constituency. The petitioner is also seeking to declare the result of the said election, so far as it concerns respondent No.1 is materially affected by the improper acceptance of the nomination. A declaration is sought that the result of the respondent No.1 as elected to the No.145 Mulbagal (SC) Assembly constituency as null and void. A declaration that the result of the election is materially affected by the improper reception and counting of 73146 votes in favour of respondent No.1 as void and accordingly treat the said votes as wasted and thrown away votes is sought. Consequently it is further sought that the petitioner be declared as duly elected to the No.145 Mulbagal (SC) Assembly Constituency and to impose penalty on the respondents No.1 and 2 under Section 125A of the R.P.Act. 2. The petitioner and the respondents No.1 to 21 had filed the nomination seeking their election to the Karnataka Legislative Assembly from No.145 Mulbagal Constituency. The said constituency is reserved for persons belonging to Scheduled Caste. The respondents No.1 and 2 as also their uncle one Sri Gangireddy had filed their nominations. The nominations filed by the respondents No.1 and 2 were accepted by the Returning Officer on 18.04.2013. In the result of the election declared on 08.05.2013 the petitioner had secured 39142 votes while respondent No.1 had secured 73146 votes and accordingly respondent No.1 was declared elected. At that stage, since the writ petition was pending assailing the acceptance of the nomination, the result declared was made subject to result of W.P.No.20025-26/2013, which has been disposed of leaving open all contentions to be considered in this petition. 3. The petitioner is challenging the acceptance of the nomination and the election of respondent No.1 by contending that the respondent No.1 does not belong to Scheduled Caste (‘SC’ for short) since according to the petitioner the respondent No.1 does not belong to Beda (Budaga) Jangama community notified as SC under the presidential order at Item No.4 of IV in Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956. The case of the petitioner is that the said Beda (Budaga) Jangama Caste is stated to be prevalent in Gulbarga, Bidar and Raichur District but not in Kolar District. In order to contend so, the petitioner has also averred that while admitting respondent No.1 into school by the parents, it has been stated that he belongs to ‘Byragi’ caste as recorded in the admission records which is also indicated in the Transfer Certificate when he was studying SSLC. It is contended that in some sale deeds relating to his family members and relatives they have been described as belonging to ‘Jangala’ caste. It is contended that the said ‘Byragi’ or ‘Jangala’ caste is not the same as Beda (Budaga) Jangama nor are they SC. The ‘Byragi’ caste is notified as Backward Caste category-I in the Government Order dated 30.03.2002 and as such it cannot be considered as Scheduled Caste. The respondent ¨sÁUÀ 3 PÀ£ÁðlPÀ gÁdå¥ÀvÀæ, UÀÄgÀĪÁgÀ, d£ÀªÀj 10, 2019 73 No.1 at an earlier point on 04.04.2008 had filed an application seeking issue of caste certificate but the same was rejected by the Tahsildar-Mulbagal stating that respondent No.1 belongs to ‘Byragi’ Caste. 4. The petitioner contends that the Caste Certificate dated : 03.04.2012 relied upon by the respondent is concocted, manipulated, bogus and the computer generated print out is not genuine certificate. The discrepancies as appearing on the face of it is referred to contend that the said manipulations itself would indicate that it is bogus. The said forged computer print out caste certificate is relied upon to file the nomination as a candidate belonging to ‘Budaga’ Jangama (SC). It is contended that the respondent No.1 belongs to ‘Byragi’ community which is entered in the school records. ‘Byragi’ is not a Scheduled Caste but is Backward Category I. 5. The further contention is that the respondent No.1 hails from K.R.Puram, Bengaluru and has a house in Ramamurthynagar but is presently claiming to belong to Maraheru Kottur village. There are no persons belonging to ‘Budaga’ Jangama in Kolar District. The custom, tradition and religious practices of ‘Byragi’ and ‘Jangala’ community is entirely different from that of Budaga (Beda) Jangama caste. 6. The petitioner contends that he brought the same to the notice of the Returning Officer during the scrutiny of nomination papers on 18.04.2013 but, the same was disregarded. In the year 2008 also, the respondent No.1 had made an application for issuing caste certificate as ‘Budaga’ Jangama. The Tahsildar, Mulbagal taluk issued the endorsement dated : 4.4.2008 and rejected the application of the respondent No.1. The District application dated of the Caste Verification committee headed by the Deputy Commissioner, Kolar District by its order dated 12.04.2008 rejected the claim of the respondent No.1 and his uncle Sri Gangireddy holding that they belong to ‘Byragi’ community. The respondent No.1 filed W.P.No.5932/2008 challenging the endorsement dated 04.04.2008 without disclosing about the order passed by the District Caste Verification Committee and in that light managed to obtain an order dated 12.09.2008 reserving liberty to prefer an appeal under the Scheduled Caste/Scheduled Tribes and Other Backward Class (Reservation of Appointment) Act, 1990 (‘the Act’ for short). The petitioner however did not file any other proceeding. 7. When this was the position, one Sri Amarnath had applied seeking information about the caste of respondent No.1 and an endorsement dated 29.09.2011 was issued to him by the Tahsildar stating that no caste certificate was issued to Respondent No.1. Subsequently on the complaint lodged by one Sri Venkatachalapathy the Tahsildar after conducting detailed enquiry has arrived at the conclusion that no such caste certificate was issued from his office and the same is a created document. Accordingly, an endorsement dated 15.09.2012 was issued directing respondent No.1 not to make use of the caste certificate. Despite the same, the respondent No.1 has been using the concocted caste certificate. One Muralidhar had brought this fact to the notice of the Tahsildar and the Tahsildar issued an endorsement dated 14.03.2013 to Sri Muralidhar stating that the computer generated caste certificate dated 26.11.2010 and 03.04.2012 being relied by Respondent No.1 were concocted. 8. It is contended that on 13.04.2013 an FIR has been registered by the Mulbagal Police in Crime No. 149/2013 based on the complaint of the Tahsildar Mulbagal Taluk against one Sri.Srinivas M who was working as a clerk in the office of the Tahsildar, for creating false certificate. The said Sri.Srinivas was accordingly suspended. The respondent No.1 however managed to stall the proceedings being initiated against him also by filing W.P.No.13679/2013 and W.P.No.17122/2013. The petitioner further referring to the manner in which the respondent No.1 has been making use of the false caste certificate dated 03.04.2012 and in at background the nomination being accepted, has sought for the prayer in this petition as noticed. 9. The respondent No.1 has filed a detailed written statement disputing the case put forth by the petitioner. He contends that he had filed his nomination to both No.145 Mulbagal constituency and No.146 KGF constituency both of which are reserved for SC and his nominations were accepted. However, he withdrew the nomination from KGF constituency and contested in Mulbagal constituency after it was accepted. The respondent No.1 contends that he submitted an application dated 04.04.2008 and the Tahsildar on receipt issued an endorsement rejecting the application. The Caste Verification Committee through the order dated 12.04.2008 had also rejected the claim. He however contends that the rejection thus made was for non-production of sufficient documents to substantiate his claim and in that view though the W.P.No.5932/2008 was disposed of reserving liberty to file an appeal, he did not choose to file the appeal as at that point he did not possess sufficient material to substantiate his claim. Instead of preferring an appeal he contends that a fresh application was made before the Tahsildar for issue of Budaga Jangama caste certificate by enclosing the necessary documents. The same was forwarded to the Deputy Commissioner who after receipt of the letter dated 01.06.2010 from the Tahsildar directed the Tahsildar to take action as per law and also as per the Circular dated 16.03.2008. Another Circular dated 17.07.2010 was also issued by the Deputy Commissioner relating to issue of caste certificate. 10. The respondent No.1 contends that a caste certificate was issued on 26.11.2010, but strangely the Tahsildar had taken a stand that he never issued the caste certificate. The respondent No.1 alleges that the Tahsildar who was hand in glove with the political opponents had removed the entire file relating to issue of caste certificate dated 26.11.2010. In that view, he once again made an application dated 02.01.2012 before the Deputy Commissioner to grant the caste certificate by producing supporting documents. The Deputy Commissioner after receipt of the application forwarded the same to the Tahsildar vide letter dated 20.01.2012. The Tahsildar had thereafter submitted the detailed report dated 02.03.2012 recommending for issue of caste certificate. One more report dated 74 PÀ£ÁðlP À gÁdå¥ÀvÀæ, UÀÄgÀĪÁgÀ, d£ÀªÀj 10, 2019 ¨sÁUÀ 3 19.03.2012 was made recommending issue of caste certificate. The Deputy Commissioner after receipt of recommendation has passed an order dated 24.03.2012 directing the Tahsildar to issue caste certificate in accordance with law. 11. It is further contended by respondent No.1 that the Tahsildar after receipt of the order dated 24.03.2012 had passed an order dated 27.03.2012 classifying the petitioner as Budaga Jangama. It is contended that the Tahsildar had also made an entry in the register maintained in his office and a caste certificate dated 03.04.2013 came to be issued in favour of respondent No.1. Hence it is contended that the allegation of the petitioner that it is a fabricated document is unfounded. 12. It is also contended that immediately after he became aware of the entries in the column of the school records showing as ‘Byragi’ community, he made representation to the Head Master and also the Block Education Officer to rectify the caste as Budaga Jangama. Since the representation was turned down, the respondent No.1 filed a suit in O.S.No.107/2012 before the Civil Court for rectification of the entries. In the above background the respondent No.1 seeks to justify the caste certificate obtained by him and further seeks to contend that he belongs to Budaga Jangama caste and in that light contends that the acceptance of his nomination from the SC reserved constituency is in accordance with law. He therefore seeks for dismissal of the petition. 13. The respondent No.2 who is the brother of respondent No.1 has filed a separate written statement denying the contents in the petition and seeking to justify that they belong to Budaga Jangama caste. 14. In the light of the rival pleadings of the parties, the following issues are framed for consideration: ISSUES “1. Does the petitioner prove that the first respondent belongs to ‘Byragi’ Caste? 2. Does the petitioner prove that the caste certificate dated 03.04.2012 produced along with the nomination form, by the first respondent as belonging to Budaga Jangama caste is concocted and obtained by playing fraud? 3. Does the petitioner therefore prove that the first respondent was not qualified to contest from No.145 Mulbagal Assembly Constituency reserved for Schedule Caste? 4. Does the first respondent prove that he belongs to Budaga Jangama (SC) and was entitled to contest from reserved constituency? 5. Does the petitioner prove that the acceptance of the nomination of the first and second respondents for the reserved constituency is illegal and has materially affected the election result? 6. Does the petitioner prove that the voters of the constituency had knowledge that the first respondent does not belong to schedule caste and the votes cast in his favour are void? 7. If so, does the petitioner prove that the votes secured by the first respondent are to be treated as ‘thrown away’ and the petitioner is entitled to be declared elected? 8. Does the petitioner establish that this Court should penalize the first and second respondent as per Sec.125-A of the Representation of People Act? 9. What order? ” 15. In order to discharge the burden cast on the parties by the above noted issues, the petitioner examined himself as PW.1 and the witnesses as PW.2 to PW.11 and got marked the documents at Exhs.P1 to P99. The respondent No.1 on the other hand got himself examined as RW.2 and the witnesses as RW.2 to RW.9 and got marked the documents at Exhs. R1 to R70. None of the other respondents including the respondent No.2 have chosen to tender evidence. 16. In the background of the averments made, evidence tendered and the materials relied, I have extensively heard Smt.Pramila Nesargi, learned senior counsel for the petitioner, Sri Ashok Haranahalli, learned senior counsel for respondent No.1, Sri G.Krishnamurthy, learned senior counsel for respondent No.12 and Sri N.S.Seshadri, learned counsel for respondent No.2. 17. Taking note of the nature of the contentions as put forth and keeping in view that the issue herein relates to the social status as claimed by respondent No.1 and that he has taken advantage of the same, the learned senior counsel for the petitioner has relied on the decision in the case of Kumari Madhuri Patil and another vs. Addl. Commissioner, Tribal Development and others (AIR 1995 SC 94) wherein the Hon'ble Supreme Court has laid down the guidelines which is required to be followed in considering the caste status. The application for grant of social status certificate is to be made to the Revenue Sub-divisional Office and the Deputy Collector or Deputy Commissioner and the certificate shall be issued by Such Officer rather than the Officer, Taluk or Mandal level. The parent, guardian or the candidate shall file an affidavit duly attested with particulars of castes, sub-castes etc. The State Government should constitute a committee and each Directorate should constitute a Vigilance Cell consisting of Senior Deputy Superintendent of Police and such number of Police Inspectors to investigate into the social status of the claims. The method to be followed is also indicated. The Inspector should go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to ¨sÁUÀ 3 PÀ£ÁðlPÀ gÁdå¥ÀvÀæ, UÀÄgÀĪÁgÀ, d£ÀªÀj 10, 2019 75 the town or city the place from which he originally hailed from. The Vigilance Officer should personally verify and collect all the facts of the social status claimed by the candidate or the parents or guardian as the case may be. He should also examine the school records, birth registration if any. He should examine the parent, guardian or the candidate in relation to their caste etc or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma. The peculiar enthropological and ethnological trades, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc should be taken note. In that light the stringent guidelines laid down to recognize the caste status is emphasized and the manner it is to be established. 18. The case of Director of Tribal Welfare, Government of A.P. vs. Laveti Giri and another [(1995)4 SCC 32] wherein it is held that the burden of proving the genuineness of the caste certificate and the social status is always on the person who profess it to seek constitutional socio-economic advantages is relied on by the learned Senior Counsel for the petitioner. It is also held therein that it is no part of the duty of the State to disprove or otherwise. The very procedure as contemplated in the case of Madhuri Patil has been reiterated therein for the purpose of consideration of the social status. In that background learned Senior Counsel for petitioner also relied on the case in Punit Rai vs. Dinesh Chaudhary [(2003)8 SCC 204] wherein it is held that when the initial burden is discharged by the election petitioner, the onus would shift on the respondent to prove his case which is within his special knowledge. If the respondent fails to prove the special knowledge by producing the best evidence, an adverse inference could be drawn. Hence it is contended that heavy burden rests on the respondent No.1 to prove the social status of the caste he professes. 19. The learned senior counsel for respondent No.12 has also relied on the very decision in the case of Punit Rai -vs- Dinesh Chaudhary (AIR 2003 SC 4355)- with emphasis to the portion wherein an earlier decision is referred and held that the party upon whom the burden lies to prove the fact, but fails to discharge the onus, it is not open for him to bank upon the plea of non examination of witness by the other party. Such party cannot be permitted to derive strength from the weakness of the case of the other party. In the facts therein it was found that the onus to prove the facts within the special knowledge of the respondent No.1 therein had not been discharged. Accordingly appeal was allowed and the election was set aside. He has also relied on the case of Addagada Raghavamma and another -vs- Addagada Chenchamma and another (AIR 1964 SC 136) - wherein it is enunciated that there is an essential distinction between burden of proof and onus of proof. Burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. In the case referred, it was held that the burden of proof lay upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstance of a particular case may shift the onus of proof. Such a shifting of onus is a continuous process of evaluation of evidence. It is therefore contended that the factum of his caste and thereby the social status which he seeks to take advantage is to be always established by the respondent No.1 and the burden will always remain on him to prove the same. 20. The learned senior counsel for the respondent No.1 on the other hand has relied on the case of Shiv Charan Singh -vs- Chandra Bhan Singh and others [(1988) 2 SCC 12] - wherein it is held that though the Act has been amended several times the Parliament has not altered the burden of proof placed on the election petitioner under Section 100 (1) (d) of the Act. It is not possible to avoid the election of the returned candidate on speculations or conjectures relating to the manner in which the wasted votes would have been distributed. In the absence of positive proof of material effect on the result of the election of the returned candidate, the election must be allowed to stand and the Court should not interfere with the election on speculation and conjectures. The case of R.P.Moidutty - vs- P.T.Kunju Mohammad and another [(2000) 1 SCC 481] - wherein it is held that it is basic to the law of elections and election petition that in a democracy, the mandate of the people expressed at the hustings must prevail and be respected by the Courts and the election of a successful candidate is not to be set aside lightly. A heavy burden lies on the election petitioner to prove corrupt practice. The onus of proof is not discharged merely on preponderance of probabilities. The standard of proof required is akin to that of proving a criminal or a quasi criminal charge. Clear cut evidence, wholly credible and reliable is needed to prove beyond doubt the charge of corrupt practice. In that light the learned senior counsel contends that the burden is heavy on the petitioner. 21. From a perusal of the above decisions, there can be no dispute with regard to the position that the Election petitioner having approached this Court putting forth certain contentions, the initial burden would be on him to discharge. Once the initial burden is discharged, the onus would shift on the respondents. While taking note of these facts what is also to be kept in view is that in an election petition wherein the corrupt practice is alleged, there cannot be vague charges and the burden is extremely heavy on the petitioner. In the instant case, the contention however put forth on behalf of the petitioner is that as per the very school records of the respondent No.1, his caste is shown as ‘Byragi’ as he belongs to that caste and when that has stood the test of time the respondent No.1 cannot claim a social status to take advantage of the same. The respondent on the other hand has contended that such entry in the school records is erroneously made and in that view he asserts that he belongs to Budaga Jangama and claims a social status which requires strong evidence. Hence if the petitioner brings home the evidence to show that the school records indicate that the respondent No.1 is shown as ‘Byragi’ at an undisputed point in time, the pendulum would swing towards respondent No.1 to conclusively prove that he actually is of Budaga Jangama caste and such entry in the school record is contrary to the factual position. 22. In the light of the said contentions, the issue No.1 casts the initial burden in that manner for the petitioner to prove that the first respondent belongs to ‘Byragi’ caste as is depicted in the school records as contended. In view of the assertion of respondent No.1 about his caste to claim the social status, issue No.4 casts the burden on the respondent No.1. Apart from the issues Nos.1 and 4 76 PÀ£ÁðlP À gÁdå¥ÀvÀæ, UÀÄgÀĪÁgÀ, d£ÀªÀj 10, 2019 ¨sÁUÀ 3 therefore being intertwined, the other issues would become consequential even though they cast the burden relating to the caste certificate as claimed and in that light the evidence as tendered is required to be taken note. If the initial burden is discharged by the petitioner, the burden would be heavy on respondent No.1 as he claims benefit to a social status and take advantage of the same. 23. In the above noted circumstance, the petitioner having examined himself as PW-1 has stated with regard to the school records pertaining to the respondent No.1 and the caste of the respondent No.1 being shown as ‘Byragi’. The documents at Ex.P-4 and P-5, the admission register and Transfer Certificate are marked. The documents at Exhs.P-8, P-9 and 9(a) are also marked. Sri K.M.Venkateshappa, Vice Principal, Nehru Kennedy High School, Byrapur is examined as PW.5. The Admission Register for the period 1986 to 1992 is marked as Ex.P92. The Register for the period 1990-1995 is marked as Exh.P-93. The entry contained at Sl.No.4 relating to respondent No.1 for the academic year 1992-93 is marked as Ex.93(a). As per the entry, his caste is shown as ‘Byragi’. The name of respondent No.2 is shown at Sl.No.3 for the academic year 1989-90 and is marked as Ex.P.92(a). His caste is also indicated as ‘Byragi’ and that he joined the school for the VIII Std during the said years. The Transfer Certificate marked as Ex.P5 is also accepted by PW-5, as having been issued from the said Nehru Kennedy High school. The document at Ex.P8 is also accepted as the list issued from the said school. It is elicited in the cross examination that the entry is not made at the instance of the parents, but was based on the information available in the Transfer Certificate of the VII Std. It is further elicited from the said witness about the customs and the dress being worn by them and the persons belonging to Budaga Jangama caste follow the same and that persons belonging to Budaga Jangama caste have also secured admission in the school. 24. Sri Devaraju N, the Block Education Officer was examined as PW.7. He has also referred to the documents marked as Ex.P8 being the list of students studied from Kottur village during the period 1977 to 31.03.1993. The name of the first respondent is referred at Sl.No.15 and that of respondent No.2 at Sl. No.6. The document at Ex.P4, the admission extract relating to the first respondent is also referred and the caste shown as ‘Byragi’ is stated by the witness. The admission register at Ex.P35 relating to Nehru Kennedy School indicating the seal of the Government Kannada Lower Primary School, Kottur is referred. The Transfer Certificate at Ex.P94 is shown to the witness and marked after overruling the objections. The Transfer Certificate is dated 22.07.1991 and the Caste is indicated as ‘Byragi’. The said witness has been subjected to cross examination and he has stated that he is not in a position to say as to on what basis the entries have been made in Ex.P8 and he cannot say who has provided the details for making the entry in the document at Ex.P8. It has been suggested to him that the Ex.P8 is not genuine as the original is not available to which he has stated that it could be true. He has also stated that he cannot say the basis on which the caste as ‘Byragi’ has been entered either in Ex.P4 or in Ex.P35. 25. The evidence as tendered through PW.1, PW.5, PW.7 and the documents marked and referred to above would indicate that at an undisputed point of time the school records indicated the name of respondents No.1 and 2 and their caste was depicted as ‘Byragi’. The learned senior counsel for the petitioner has relied on the decision in the case of Desh Raj vs Bodh Raj [(2008)2 SCC 186] wherein it is held that entries in the admission register made a long period earlier has evidentiary value and documents more than 30 years old attracted presumption as to its validity. In so far as the caste certificate issued in the said case by the Executive Magistrate is concerned, it was observed that such caste certificates are not given after thorough investigation. It is also held that, when the primary evidence regarding caste is led by the appellant and the attempt of the respondent is to claim to be a Schedule Caste, the caste certificate issued by the Executive Magistrate cannot be taken as evidence to prove the caste of the respondent. 26. Reliance is also placed by the learned senior counsel for petitioner, on the decision in the case of Prabhudev Mallikarjunaiah vs. Ramachandra (E.P.No.3/1991, DD 27.10.1994) - herein it is held that even assuming that the certificate is issued by a competent officer, the Returning Officer was not precluded from not relying upon it if there was other material to indicate that the petitioner did not belong to Beda Jangam . In that case the extract of the admission register and the affidavit of the sister which indicated that the petitioner belonged to Jangam Lingayath and not Beda Jangam caste was available. In that view it was held that the Returning Officer need not have relied on the caste certificate. The contention raised therein that the nomination paper was accepted in the earlier election was noted and it was held that when there were other documents, the mere fact that the nomination had been accepted in the earlier election cannot be a ground to hold that he belong to Beda Jangama caste.The decision reported in (1996) 4 SCC 431 is relied to show that the judgment in E.P.No. 3/1991 was upheld by the Hon’ble Supreme Court and to contend that the entries in the school records would have evidentiary value and more so when such entries are more than 30 years old, the presumption would arise in law and as such the caste as indicated therein should be conclusively accepted by this Court. 27. The learned senior counsel for respondent No.1 on the other hand would refer to the decisions in the case of M.Chandra - vs- M.Thangamuthu and another – [(2010) 9 SCC 712] wherein it is held that the reliance placed on the birth records, entries in the telephone application and voters list cannot be the sole ground for proving that the appellant therein was professing Christianity. It is observed in the said case that such records could have been made by people other than the person concerned. It was further observed that the entry in the birth register in that case was not made by the parents but by the Village head nurse. It is also held therein that in an election petition the facts presented must be clear and when people have elected their representative it cannot be taken lightly. The person who files the election petition should have a definite case to prove that the election was illegal. Therefore the burden of proof shall lie on the petitioner. Even if the allegation is not of corrupt practice, the same will not be lesser in seriousness. Hence the burden of proof is on the election petitioner to prove the charges beyond reasonable doubt. ¨sÁUÀ 3 PÀ£ÁðlPÀ gÁdå¥ÀvÀæ, UÀÄgÀĪÁgÀ, d£ÀªÀj 10, 2019 77 28. The learned senior counsel for the respondent No.1 has further relied on the case of Birad Mal Singhvi -vs- Anand Purohit [1988 (Supp) SCC 604], wherein it is stated that if the entry regarding date of birth in a school register is made on the information given by the parents or someone having special knowledge of the fact, the same would have probative value but if it is given by a stranger such entry will have no evidentiary value. The case of Sushil Kumar –vs Rakesh Kumar [(2003) 8 SCC 673], - wherein, with reference to Sec.35 of the Evidence Act it is held that a register maintained in terms of a statute or by a statutory authority in regular course of business alone would be a relevant fact and only if such vital evidence is produced, it would clinch the issue and the case of Jabar Singh -vs- Dinesh and another, [(2010) 3 SCC 757], - wherein, in the facts arising in that case it was held that the entry of date of birth in the admission form, the school records and transfer certificates did not satisfy the conditions laid down in Section 35 of the Evidence Act as the entry was not in the public or official register, are relied upon. 29. That apart reliance is placed in the case of Babloo Pasi -vs- State of Jharkhand and another [(2008) 13 SCC 133], - wherein it is held that to render a document admissible under Section three conditions have to be satisfied, namely; (i) entry that is relied on must be one in a public or other official book, register or record; (ii) it must be a entry stating a fact in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his official duties, or in performance of his duty especially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. The said decision is cited to contend that the reliance in the school registers can be placed only if such entry is made based on the details furnished by the parents and the details as entered on the information furnished by strangers cannot be the basis. It is also contended that the original registers are not produced and the same not being public documents cannot be relied upon. 30. Having taken note of the decisions cited by either side, the fact situation herein is that the school records produced would indicate that they are of the periods from 1977 onwards and the fact that the respondents No.1 and 2 had studied in both the schools referred is not in dispute. Though in the cross examination of PW.5 it is attempted to extract that the entry of the caste is not made based on the information furnished by the parents, the witness has stated that the entry is based on the Transfer Certificate issued from the earlier school. In that regard, when PW.7 has referred to that aspect there is no detailed cross examination on that aspect. 31. Be that as it may, when the entries are contained therein and even if certain suggestions were put to PW.5 and PW.7 in an attempt to indicate that they have no knowledge as to on what basis the caste of respondent No.1 and 2 has been entered and obviously when the admission of respondents No.1 and 2 was to the primary school when the first admission was made to the Government School and was for the VII Std in the Nehru Kennedy school, the respondent No.1 would not be aware of the details and it should be their elders unless the contrary is proved. Therefore, if the respondent No.1 was to contend that one entry contained in such a document maintained at an undisputed point in time was made without basis and is an error, the respondent No.1 ought to have examined such reliable witness to speak about the fact as to who had secured and admitted the respondents No.1 and 2 to school and what was the nature of the information that was furnished. Without doing so, a dispute cannot be raised all of a sudden, out of the blue when it becomes inconvenient nor does any suggestions put to the petitioner’s witness be material. 32. That apart though a contention is raised that the documents as marked cannot be relied on as it is not a public document and the original had not been produced by placing reliance on the decisions as noted above, the contention to that effect cannot be accepted in the present context in as much as the very averment as contained in the written statement of respondent No.1 and the plaint in the admitted suit filed by respondent No.1 in O.S.No.107/2012 at Ex.P42 would indicate the fact that such documents are maintained in the schools concerned and the entries are made with regard to the caste as contained therein though it is alleged that it is entered wrongly. In fact, it is the admitted position and the respondent No.1 in fact was making attempts to secure corrections of the same and had failed in such attempt as seen from the judgment passed in O.S.No.107/2012 at Ex.P45. In the above circumstance, keeping in view the reasons for which the petitioner had contended that respondent No.1 is a person belonging to ‘Byragi’ community and that the entries to such effect has been made in the school records has been satisfactorily brought on record, the petitioner has discharged the burden in proving the issue raised. 33. The learned senior counsel for the respondent No.1, by relying on the decision in the case of Laxman Siddappa Naik -vs- Kattimani Chandappa Jampanna and others (AIR 1968 SC 929) - wherein it is held that the ordinary rule is that the person, who as a plaintiff, asserts a fact, has to prove it. The election petitioner therein was to prove that he was a Bedar and that would have proved that he was not a Nayaka. To establish the fact, evidence was required to show the characteristics such as custom in marriage, births, deaths etc to distinguish the two. It is held that a bare assertion that the appellant is a Bedar is not sufficient to displace the acceptance of the nomination paper or the claim of the appellant that he is a Nayaka. In that view it is contended that the petitioner has not tendered evidence to prove the customs and traditions followed by ‘Byragi’ and to establish that the respondent No.1 was following the same. He therefore contends that the petitioner has failed to prove that respondent No.1 belongs to ‘Byragi’ caste. The said decision is not of assistance in the instant case since as already noticed the nature of contention as put forth relating to school records, based on which it was alleged that respondent No.1 is ‘Byragi’, it has been proved with acceptable evidence and the burden is discharged. In that view, the issue No.1 is to be held in the affirmative in favour of the petitioner and the burden is shifted on the respondent No.1 to establish that 78 PÀ£ÁðlP À gÁdå¥ÀvÀæ, UÀÄgÀĪÁgÀ, d£ÀªÀj 10, 2019 ¨sÁUÀ 3 he actually belongs to Budaga Jangama based on the direct evidence before this Court without the aid of the caste certificate which is in the centre of dispute. 34. On that aspect, the respondent No.1 has examined himself as RW.1 and has stated that he belongs to Budagajangama community and that the avocation of the parents was roaming from village to village by playing the musical instrument called the Budaga but they were wrongly called as Sanyasi, Jangalu etc and the same has been entered in the sale deeds due to illiteracy and ignorance. He states that his parents have never affixed their signatures in the school records and refers to the tradition and custom as also the religious practices followed by udagajangama community. In that background the respondent No.1 refers to the Tahsildar having taken note of the custom being followed and in that light having issued the caste certificate. The respondent No.1 in order to contend that persons belonging to Budagajangama caste are residing in Kolar District has referred to the contents in Kolar Gazetteer which is marked as Ex.R.1. 35. Essentially in order to state about the customs and traditions followed by persons belonging to Budagajangama and in that light having relied on the alleged Mahazar as per Ex.R26 in support of the caste certificate, the very persons who claim to have affixed their signature as witnesses to the said mahazar (Ex.R26) are examined as witnesses to state about the customs and traditions followed by persons belonging to Budagajangama, before this Court. examined - RW.3. Sri M.B.Anwar is He states that respondent No.1 belongs to Budagajangama caste and that he and his elders would normally knot their hair at the top and wear a head scarf. They would also wear a bead chain and carry an instrument called Budaga. They would visit the houses seeking alms and predict the future of the people. They would thus collect money, food grains etc., and make a living. The custom followed in their marriages is stated by him. Another witness Sri Mallikarjuna Reddy is examined as RW.4. He claims to be a member of Grama Panchayat and is also a signatory to the alleged Mahazar (Ex.R-26). He would also state that the respondent No.1 belongs to Budagajangama caste and the custom that is followed by them and he states that he had mentioned to the Tahsildar about such custom being followed by respondent No.1 which is the same as being followed by persons belonging to Budagajangama. Sri M.Venkataramana who is another witness to the alleged mahazar (Ex.R-26) is examined as RW.5. The said witness has also stated with regard to the dressing pattern of the persons belonging to Budagajangama, their nature of worship and the practice that is followed in performing the marriages and also in the funeral etc. 36. The learned senior counsel for the respondent No.1 while referring to their evidence has contended that the customs and traditions of Budga Jangama being followed and as referred to in the evidence has not been disputed by the petitioner by cross examining on that aspect and as such has relied on the decision in the case of Gian Chand and others -vs- State of Haryana [(2013)14 SCC 420], - wherein the effect of cross examination by putting the version to the witness and providing adequate opportunity to the witness in the witness box to give full and proper explanation is emphasised and states that in the absence of cross examination the statement of the witnesses is required to be accepted. 37. Taking into consideration such contention, at this stage itself it is to be noted that insofar as issue No.4 which is framed herein and in that light the evidence tendered on the said issue by RWs.3, 4 and 5 if it is taken into consideration, at the outset it is seen that none of the persons belong to the community regarding which a consideration is being made nor do they state about their expertise to give such details. The manner in which they have stated with regard to the customs being followed though there is corroboration in their version, keeping in view their age, nature of profession and there being no material in the first instance to indicate that apart from the respondents No.1 and 2, Sri Kullayappa and Sri Gangireddy who claim to belong to that community, whether there are other persons residing in the village. The evidence tendered by the said witnesses appear to be as tutored witnesses and no reliance is possible to be placed on their evidence even if there was no cross examination on that aspect as essentially it is seen that the cross examination is concentrated on the claim made by them as mahazar witnesses. 38. Apart from the above noted witnesses one Sri Sheshappa is examined as RW.9. The said witness no doubt claims that he belongs to Budaga Jangama and was the president of the Karnataka Rajya Budaga Jangama Kshemabhivruddhi Sangha. He states that he knows respondent No.1 since the daughter of the said witness has married the brother of respondent No.1, Sri Prasanna Kumar. In that view he states that respondent No. 1 belongs to Budaga Jangama community to which he belongs. The said witness also has stated with regard to the tradition and custom followed by the Budaga Jangama community in the same manner as has been stated by the other witnesses as referred to above. However, the said witness in his cross examination has admitted that his caste is recorded as 'Bavacha' in the school records and the said caste belongs to Scheduled Tribe. He states that Bavacha and ‘Byragi’ are different castes and in the modern society, there would be inter-caste marriages. In that view the marriage alone cannot be the basis that too when he himself is not proved to be Budga Jangama. Though he denies the suggestion that he does not belong to Budaga Jangama caste, except for his bald statement before the Court, no material whatsoever has been produced either with regard to the said witness following the practices of Budaga Jangama caste more particularly when he admits that his school records indicate his caste as 'Bavacha'. 39. At this stage, having taken note of the decision in the case of Laveti Giri (supra), it is clear that the burden to prove is on the person who seeks the social status and by professing it seeks constitutional socio-economic advantages. The burden is therefore heavy on the respondent No.1 to establish not only that there are persons belonging to Budaga Jangama in Kolar district or even if he had migrated from any other place he in fact belong to Budaga Jangama caste. The only document apart from the disputed caste certificates on which reliance is placed by respondent No.1 is on Ex.R.1 viz., the Kolar Gazeteer. The learned senior counsel for the petitioner has however relied on the decisions in the case of Dayaram vs. Sudhir Batham and others [(2012)1 SCC 333], wherein reference is made to

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¸ÀA¥ÀÄl 154 ¨ÉAUÀ¼ÀÆgÀÄ, UÀÄgÀĪÁgÀ, d£ÀªÀj 10, 2019 (¥ÀĵÀå 20, ±ÀPÀ ªÀµÀð 1940) ¸ÀAaPÉ 2 Volume 154 Bengaluru, Thursday, January 10, 2019 (Pushya 20, Shaka Varsha 1940) Issue 2 ¨sÁUÀ 3 ¸ÀPÁðgÀzÀ DAiÀiÁ E¯ÁSÉUÀ¼À ªÀÄÄRå¸ÀÜgÀ ªÀÄvÀÄÛ ¸ÀܽÃAiÀÄ ¥Áæ¢üPÁjUÀ½UÉ ¸ÀA§A¢ü¹zÀ C¢ü¸ÀÆZÀ£ÉUÀ¼ÀÄ PERSONNEL AND ADMINISTRATIVE REFORMS SECRETARIAT (ELECTIONS) NOTIFICATION No. DPAR 31 CHUTAA 2018, BENGALURU, DATED: 20th November, 2018 The following Notification No. 82/ECI/TERR/SOU2-KT/04/2013, dated: 13th June 2018 of the Election Commission of India is re-published hereunder for general information. ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi – 110 001 Dated: 13th June, 2018 11 Jyaistha, 1940 (saka) NOTIFICATION No. 82/ECI/TERR/SOU2-KT/04/2013:- In pursuance of Section 106 (b) of the Representation of the People Act, 1951, (43 of 1951)The Election Commission of India hereby publishes the judgment/order of the High Court of Karnataka dated 25th April, 2018 in the Election Petition No. 04 of 2013. IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL, 2018 BEFORE THE HON’BLE MR. JUSTICE A S BOPANNA ELECTION PETITION No.4/2013 BETWEEN: 1. SRI N MUNIANJAPPA AGED ABOUT 57 YEARS, S/O H. NARAYANAPPA, WARD NO. 8, MUTYALAPETE, MULBAGAL TOWN, KOLAR DISTRICT-563 131 2. G. VENKATARAVANA AGED ABOUT 36 YEARS, S/O LATE GOVINDU, MARAHERUKOTHURU VILLAGE, MULBAGAL TALUK, KOLAR DISTRICT-563 131 (69) 70 PÀ£ÁðlP À gÁdå¥ÀvÀæ, UÀÄgÀĪÁgÀ, d£ÀªÀj 10, 2019 ¨sÁUÀ 3 3. AMARESH AGED ABOUT 45 YEARS, S/O MUNISWAMY @ SAKRAPPA, KEELAGANI VILLAGE, AVANI HOBLI, MULBAGAL TALUK, KOLAR DISTRICT-563 131 4. M.N. AMBARISH AGED ABOUT 34 YEARS, S/O NARAYANAPPA MALEKUPPA VILLAGE, MULBAGAL TALUK, KOLAR DISTRICT-563 131 5. Y. SRINIVASAN PATAPAT AGED ABOUT 43 YEARS, S/O A.V. YALLAPPA, NO.32, BR AMBEDKAR ROAD, ATTIBELE, ANEKAL TALUK-562 125 6. P CHANDRAPPA AGED ABOUT 45 YEARS, S/O LATE PILLAPPA, ASALI ATTHIKUNTE VILLAGE, MULBAGAL TALUK, KOLAR DISTRICT-563 131 7. JAGADISH C.K AGED ABOUT 34 YEARS, S/O KRISHNAMURTHY RAJ, NO. 3264/5, MUTHYALPET, MULBAGAL TOWN, KOLAR DISTRICT-563 131 8. DODDACHOWDAPPA AGED ABOUT 63 YEARS, S/O MUNIVENKATAPPA, NAGAVARA VILLAGE, MULBAGAL TALUK, KOLAR DISTRICT-563 131 9. C. RAMAKRISHNAIAH AGED ABOUT 54 YEARS, S/O LATE CHINNAPPA, KURAGAL VILLAGE AND POST, KOLAR TALUK, KOLAR DISTRICT-563 131 10. RANJIT KUMAR T AGED ABOUT 26 YEARS, S/O M. THIMMAIAH, NETHAJINAGARA MULBAGAL TOWN, KOLAR DISTRICT-563 131 11. H.A. LAKSHMAIAH AGED ABOUT 69 YEARS, S/O AVALAPPA, NO.4081, 1ST CROSS M.N. HALLI ROAD, MULBAGAL TOWN, KOLAR DISTRICT-563 131 ¨sÁUÀ 3 PÀ£ÁðlPÀ gÁdå¥ÀvÀæ, UÀÄgÀĪÁgÀ, d£ÀªÀj 10, 2019 71 12. V. ADINARAYANA AGED ABOUT 35 YEARS, S/O. VENKATARAMAPPA, PEDDAREDDYPALLI VILLAGE, BAGEPALLI TALUK KOLAR DISTRICT-561 207 13. G. ALANGUR RAMANNA AGED ABOUT 44 YEARS, S/O GANESHAPPA, SONNAVADI VILLAGE, MULBAGAL TALUK, KOLAR DISTRICT-563 131 14. CHALAPATHI AGED ABOUT 40 YEARS, S/O VENKATESHAPPA NAGAMANGALA VILLAGE, MULBAGAL TALUK KOLAR DISTRICT-563 131 15. NAGARAJ V AGED ABOUT 30 YEARS, S/O VIDYARANYA, MADDERI VILLAGE, MULBAGAL TALUK, KOLAR DISTRICT-563 131 16. T.V. BALAKRISHNA AGED ABOUT 39 YEARS, S/O VENKATANABOVI TIMMANAYAKANAHALLI, MALLANAYAKANAHALLI POST, MULBAGAL TALUK, KOLAR DISTRICT-563 131 17. V. MARAPPA AGED ABOUT 40 YEARS, S/O VENKATARASHAMBOVI OLAGERANAHALLI VILLAGE, MULBAGAL TALUK, KOLAR DISTRICT-563 131 18. D. VENKATARAVANAPPA AGED ABOUT 34 YEARS, S/O. DODDAKAMANNA KESARAMANAGALA VILLAGE, MULBAGAL TALUK, KOLAR DISTRICT-563 131 19. T.M. SHVIANNA AGED ABOUT 49 YEARS, S/O MUNIYAPPA, THORADI VILLAGE, MULBAGAL TALUK, KOLAR DISTRICT-563 131 20. N. SRINIVAS AGED ABOUT 49 YEARS, S/O NARAYANAPPA, GUMMAKAL VILLAGE, G.MARANDAHALLI POST, MULBAGAL TALUK, KOLAR DISTRICT-563 131 72 PÀ£ÁðlP À gÁdå¥ÀvÀæ, UÀÄgÀĪÁgÀ, d£ÀªÀj 10, 2019 ¨sÁUÀ 3 21. V. SRINIVAS AGED ABOUT 39 YEARS, S/O VENKATARAMAPPA NETHAJI NAGAR, MULBAGAL TOWN, KOLAR DISTRICT-563 131 ... RESPONDENTS (BY SRI ASHOK HARANAHALLI, Sr. COUNSEL FOR SRI K RAGHUPATHY & SRI R HEMANTHRAJ A/W SRI C SHASHIKANTHA, ADVs. FOR R1 SRI N.S. SHESHADRI, ADV. FOR R2 SRI A S MAHESH, ADV. FOR R3 SRI PRAVEEN BY RJS ADV’s FOR R4, 6-11, 13-15 & 19 SRI V S BIJU, ADV. FOR R17 SRI G.KRISHNAMURTHY FOR SRI BIMBADHAR M GOWDAR, ADV. FOR R12 V/O DATED 22/01/2018) THIS ELECTION PETITION PRESENTED U/S 81 OF THE REPRESENTATION OF PEOPLE’S ACT, 1951 R/W RULE 4 OF THE ELECTION PROCEDURE RULES, KARNATAKA 1967 BY ONE SRI MUNIANJAPPA N, PETITIONER CHALLENGING THE ELECTION OF THE RESPONDENT NO.1: SRI G MANJUNATHA TO THE KARNATAKA LEGISLATURE FROM NO.145, MULBAGAL(SC) ASSEMBLY CONSTITUENCY, GENERAL ELECTIONS HELD IN THE YEAR 2013, PRAYING TO A) DECLARE THAT ON THE DATE OF ELECTION ON 05.05.2013 AND DECLARATION OF THE RESULT ON 08.05.2013 THAT THE RESPONDENT NO.1 WAS NOT QUALIFIED TO BE CHOOSEN TO FILL THE SEAT RESERVED FOR THE SCHEDULE CASTE 145 MULBAGAL UNDER THE CONSTITUTION AND UNDER SECTION 100(1)(A)(D)(IV) OF THE REPRESENTATION OF THE PEOPLE ACT AND ETC. THIS ELECTION PETITION HAVING BEEN RESERVED FOR ORDERS ON 13.04.2018, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: ORDER The petitioner in this petition filed under Section 81 of the Representation of People’s Act, 1951 (‘R.P.Act’ for short) is before this Court seeking to declare that on the date of election on 05.05.2013 and on the date of declaration of the result on 08.05.2013, respondent No.1 was not qualified to be chosen to fill the seat reserved for the Scheduled Caste in the Karnataka Assembly. The seat in question is No.145 Mulbagal reserved constituency. The petitioner is also seeking to declare the result of the said election, so far as it concerns respondent No.1 is materially affected by the improper acceptance of the nomination. A declaration is sought that the result of the respondent No.1 as elected to the No.145 Mulbagal (SC) Assembly constituency as null and void. A declaration that the result of the election is materially affected by the improper reception and counting of 73146 votes in favour of respondent No.1 as void and accordingly treat the said votes as wasted and thrown away votes is sought. Consequently it is further sought that the petitioner be declared as duly elected to the No.145 Mulbagal (SC) Assembly Constituency and to impose penalty on the respondents No.1 and 2 under Section 125A of the R.P.Act. 2. The petitioner and the respondents No.1 to 21 had filed the nomination seeking their election to the Karnataka Legislative Assembly from No.145 Mulbagal Constituency. The said constituency is reserved for persons belonging to Scheduled Caste. The respondents No.1 and 2 as also their uncle one Sri Gangireddy had filed their nominations. The nominations filed by the respondents No.1 and 2 were accepted by the Returning Officer on 18.04.2013. In the result of the election declared on 08.05.2013 the petitioner had secured 39142 votes while respondent No.1 had secured 73146 votes and accordingly respondent No.1 was declared elected. At that stage, since the writ petition was pending assailing the acceptance of the nomination, the result declared was made subject to result of W.P.No.20025-26/2013, which has been disposed of leaving open all contentions to be considered in this petition. 3. The petitioner is challenging the acceptance of the nomination and the election of respondent No.1 by contending that the respondent No.1 does not belong to Scheduled Caste (‘SC’ for short) since according to the petitioner the respondent No.1 does not belong to Beda (Budaga) Jangama community notified as SC under the presidential order at Item No.4 of IV in Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956. The case of the petitioner is that the said Beda (Budaga) Jangama Caste is stated to be prevalent in Gulbarga, Bidar and Raichur District but not in Kolar District. In order to contend so, the petitioner has also averred that while admitting respondent No.1 into school by the parents, it has been stated that he belongs to ‘Byragi’ caste as recorded in the admission records which is also indicated in the Transfer Certificate when he was studying SSLC. It is contended that in some sale deeds relating to his family members and relatives they have been described as belonging to ‘Jangala’ caste. It is contended that the said ‘Byragi’ or ‘Jangala’ caste is not the same as Beda (Budaga) Jangama nor are they SC. The ‘Byragi’ caste is notified as Backward Caste category-I in the Government Order dated 30.03.2002 and as such it cannot be considered as Scheduled Caste. The respondent ¨sÁUÀ 3 PÀ£ÁðlPÀ gÁdå¥ÀvÀæ, UÀÄgÀĪÁgÀ, d£ÀªÀj 10, 2019 73 No.1 at an earlier point on 04.04.2008 had filed an application seeking issue of caste certificate but the same was rejected by the Tahsildar-Mulbagal stating that respondent No.1 belongs to ‘Byragi’ Caste. 4. The petitioner contends that the Caste Certificate dated : 03.04.2012 relied upon by the respondent is concocted, manipulated, bogus and the computer generated print out is not genuine certificate. The discrepancies as appearing on the face of it is referred to contend that the said manipulations itself would indicate that it is bogus. The said forged computer print out caste certificate is relied upon to file the nomination as a candidate belonging to ‘Budaga’ Jangama (SC). It is contended that the respondent No.1 belongs to ‘Byragi’ community which is entered in the school records. ‘Byragi’ is not a Scheduled Caste but is Backward Category I. 5. The further contention is that the respondent No.1 hails from K.R.Puram, Bengaluru and has a house in Ramamurthynagar but is presently claiming to belong to Maraheru Kottur village. There are no persons belonging to ‘Budaga’ Jangama in Kolar District. The custom, tradition and religious practices of ‘Byragi’ and ‘Jangala’ community is entirely different from that of Budaga (Beda) Jangama caste. 6. The petitioner contends that he brought the same to the notice of the Returning Officer during the scrutiny of nomination papers on 18.04.2013 but, the same was disregarded. In the year 2008 also, the respondent No.1 had made an application for issuing caste certificate as ‘Budaga’ Jangama. The Tahsildar, Mulbagal taluk issued the endorsement dated : 4.4.2008 and rejected the application of the respondent No.1. The District application dated of the Caste Verification committee headed by the Deputy Commissioner, Kolar District by its order dated 12.04.2008 rejected the claim of the respondent No.1 and his uncle Sri Gangireddy holding that they belong to ‘Byragi’ community. The respondent No.1 filed W.P.No.5932/2008 challenging the endorsement dated 04.04.2008 without disclosing about the order passed by the District Caste Verification Committee and in that light managed to obtain an order dated 12.09.2008 reserving liberty to prefer an appeal under the Scheduled Caste/Scheduled Tribes and Other Backward Class (Reservation of Appointment) Act, 1990 (‘the Act’ for short). The petitioner however did not file any other proceeding. 7. When this was the position, one Sri Amarnath had applied seeking information about the caste of respondent No.1 and an endorsement dated 29.09.2011 was issued to him by the Tahsildar stating that no caste certificate was issued to Respondent No.1. Subsequently on the complaint lodged by one Sri Venkatachalapathy the Tahsildar after conducting detailed enquiry has arrived at the conclusion that no such caste certificate was issued from his office and the same is a created document. Accordingly, an endorsement dated 15.09.2012 was issued directing respondent No.1 not to make use of the caste certificate. Despite the same, the respondent No.1 has been using the concocted caste certificate. One Muralidhar had brought this fact to the notice of the Tahsildar and the Tahsildar issued an endorsement dated 14.03.2013 to Sri Muralidhar stating that the computer generated caste certificate dated 26.11.2010 and 03.04.2012 being relied by Respondent No.1 were concocted. 8. It is contended that on 13.04.2013 an FIR has been registered by the Mulbagal Police in Crime No. 149/2013 based on the complaint of the Tahsildar Mulbagal Taluk against one Sri.Srinivas M who was working as a clerk in the office of the Tahsildar, for creating false certificate. The said Sri.Srinivas was accordingly suspended. The respondent No.1 however managed to stall the proceedings being initiated against him also by filing W.P.No.13679/2013 and W.P.No.17122/2013. The petitioner further referring to the manner in which the respondent No.1 has been making use of the false caste certificate dated 03.04.2012 and in at background the nomination being accepted, has sought for the prayer in this petition as noticed. 9. The respondent No.1 has filed a detailed written statement disputing the case put forth by the petitioner. He contends that he had filed his nomination to both No.145 Mulbagal constituency and No.146 KGF constituency both of which are reserved for SC and his nominations were accepted. However, he withdrew the nomination from KGF constituency and contested in Mulbagal constituency after it was accepted. The respondent No.1 contends that he submitted an application dated 04.04.2008 and the Tahsildar on receipt issued an endorsement rejecting the application. The Caste Verification Committee through the order dated 12.04.2008 had also rejected the claim. He however contends that the rejection thus made was for non-production of sufficient documents to substantiate his claim and in that view though the W.P.No.5932/2008 was disposed of reserving liberty to file an appeal, he did not choose to file the appeal as at that point he did not possess sufficient material to substantiate his claim. Instead of preferring an appeal he contends that a fresh application was made before the Tahsildar for issue of Budaga Jangama caste certificate by enclosing the necessary documents. The same was forwarded to the Deputy Commissioner who after receipt of the letter dated 01.06.2010 from the Tahsildar directed the Tahsildar to take action as per law and also as per the Circular dated 16.03.2008. Another Circular dated 17.07.2010 was also issued by the Deputy Commissioner relating to issue of caste certificate. 10. The respondent No.1 contends that a caste certificate was issued on 26.11.2010, but strangely the Tahsildar had taken a stand that he never issued the caste certificate. The respondent No.1 alleges that the Tahsildar who was hand in glove with the political opponents had removed the entire file relating to issue of caste certificate dated 26.11.2010. In that view, he once again made an application dated 02.01.2012 before the Deputy Commissioner to grant the caste certificate by producing supporting documents. The Deputy Commissioner after receipt of the application forwarded the same to the Tahsildar vide letter dated 20.01.2012. The Tahsildar had thereafter submitted the detailed report dated 02.03.2012 recommending for issue of caste certificate. One more report dated 74 PÀ£ÁðlP À gÁdå¥ÀvÀæ, UÀÄgÀĪÁgÀ, d£ÀªÀj 10, 2019 ¨sÁUÀ 3 19.03.2012 was made recommending issue of caste certificate. The Deputy Commissioner after receipt of recommendation has passed an order dated 24.03.2012 directing the Tahsildar to issue caste certificate in accordance with law. 11. It is further contended by respondent No.1 that the Tahsildar after receipt of the order dated 24.03.2012 had passed an order dated 27.03.2012 classifying the petitioner as Budaga Jangama. It is contended that the Tahsildar had also made an entry in the register maintained in his office and a caste certificate dated 03.04.2013 came to be issued in favour of respondent No.1. Hence it is contended that the allegation of the petitioner that it is a fabricated document is unfounded. 12. It is also contended that immediately after he became aware of the entries in the column of the school records showing as ‘Byragi’ community, he made representation to the Head Master and also the Block Education Officer to rectify the caste as Budaga Jangama. Since the representation was turned down, the respondent No.1 filed a suit in O.S.No.107/2012 before the Civil Court for rectification of the entries. In the above background the respondent No.1 seeks to justify the caste certificate obtained by him and further seeks to contend that he belongs to Budaga Jangama caste and in that light contends that the acceptance of his nomination from the SC reserved constituency is in accordance with law. He therefore seeks for dismissal of the petition. 13. The respondent No.2 who is the brother of respondent No.1 has filed a separate written statement denying the contents in the petition and seeking to justify that they belong to Budaga Jangama caste. 14. In the light of the rival pleadings of the parties, the following issues are framed for consideration: ISSUES “1. Does the petitioner prove that the first respondent belongs to ‘Byragi’ Caste? 2. Does the petitioner prove that the caste certificate dated 03.04.2012 produced along with the nomination form, by the first respondent as belonging to Budaga Jangama caste is concocted and obtained by playing fraud? 3. Does the petitioner therefore prove that the first respondent was not qualified to contest from No.145 Mulbagal Assembly Constituency reserved for Schedule Caste? 4. Does the first respondent prove that he belongs to Budaga Jangama (SC) and was entitled to contest from reserved constituency? 5. Does the petitioner prove that the acceptance of the nomination of the first and second respondents for the reserved constituency is illegal and has materially affected the election result? 6. Does the petitioner prove that the voters of the constituency had knowledge that the first respondent does not belong to schedule caste and the votes cast in his favour are void? 7. If so, does the petitioner prove that the votes secured by the first respondent are to be treated as ‘thrown away’ and the petitioner is entitled to be declared elected? 8. Does the petitioner establish that this Court should penalize the first and second respondent as per Sec.125-A of the Representation of People Act? 9. What order? ” 15. In order to discharge the burden cast on the parties by the above noted issues, the petitioner examined himself as PW.1 and the witnesses as PW.2 to PW.11 and got marked the documents at Exhs.P1 to P99. The respondent No.1 on the other hand got himself examined as RW.2 and the witnesses as RW.2 to RW.9 and got marked the documents at Exhs. R1 to R70. None of the other respondents including the respondent No.2 have chosen to tender evidence. 16. In the background of the averments made, evidence tendered and the materials relied, I have extensively heard Smt.Pramila Nesargi, learned senior counsel for the petitioner, Sri Ashok Haranahalli, learned senior counsel for respondent No.1, Sri G.Krishnamurthy, learned senior counsel for respondent No.12 and Sri N.S.Seshadri, learned counsel for respondent No.2. 17. Taking note of the nature of the contentions as put forth and keeping in view that the issue herein relates to the social status as claimed by respondent No.1 and that he has taken advantage of the same, the learned senior counsel for the petitioner has relied on the decision in the case of Kumari Madhuri Patil and another vs. Addl. Commissioner, Tribal Development and others (AIR 1995 SC 94) wherein the Hon'ble Supreme Court has laid down the guidelines which is required to be followed in considering the caste status. The application for grant of social status certificate is to be made to the Revenue Sub-divisional Office and the Deputy Collector or Deputy Commissioner and the certificate shall be issued by Such Officer rather than the Officer, Taluk or Mandal level. The parent, guardian or the candidate shall file an affidavit duly attested with particulars of castes, sub-castes etc. The State Government should constitute a committee and each Directorate should constitute a Vigilance Cell consisting of Senior Deputy Superintendent of Police and such number of Police Inspectors to investigate into the social status of the claims. The method to be followed is also indicated. The Inspector should go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to ¨sÁUÀ 3 PÀ£ÁðlPÀ gÁdå¥ÀvÀæ, UÀÄgÀĪÁgÀ, d£ÀªÀj 10, 2019 75 the town or city the place from which he originally hailed from. The Vigilance Officer should personally verify and collect all the facts of the social status claimed by the candidate or the parents or guardian as the case may be. He should also examine the school records, birth registration if any. He should examine the parent, guardian or the candidate in relation to their caste etc or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma. The peculiar enthropological and ethnological trades, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc should be taken note. In that light the stringent guidelines laid down to recognize the caste status is emphasized and the manner it is to be established. 18. The case of Director of Tribal Welfare, Government of A.P. vs. Laveti Giri and another [(1995)4 SCC 32] wherein it is held that the burden of proving the genuineness of the caste certificate and the social status is always on the person who profess it to seek constitutional socio-economic advantages is relied on by the learned Senior Counsel for the petitioner. It is also held therein that it is no part of the duty of the State to disprove or otherwise. The very procedure as contemplated in the case of Madhuri Patil has been reiterated therein for the purpose of consideration of the social status. In that background learned Senior Counsel for petitioner also relied on the case in Punit Rai vs. Dinesh Chaudhary [(2003)8 SCC 204] wherein it is held that when the initial burden is discharged by the election petitioner, the onus would shift on the respondent to prove his case which is within his special knowledge. If the respondent fails to prove the special knowledge by producing the best evidence, an adverse inference could be drawn. Hence it is contended that heavy burden rests on the respondent No.1 to prove the social status of the caste he professes. 19. The learned senior counsel for respondent No.12 has also relied on the very decision in the case of Punit Rai -vs- Dinesh Chaudhary (AIR 2003 SC 4355)- with emphasis to the portion wherein an earlier decision is referred and held that the party upon whom the burden lies to prove the fact, but fails to discharge the onus, it is not open for him to bank upon the plea of non examination of witness by the other party. Such party cannot be permitted to derive strength from the weakness of the case of the other party. In the facts therein it was found that the onus to prove the facts within the special knowledge of the respondent No.1 therein had not been discharged. Accordingly appeal was allowed and the election was set aside. He has also relied on the case of Addagada Raghavamma and another -vs- Addagada Chenchamma and another (AIR 1964 SC 136) - wherein it is enunciated that there is an essential distinction between burden of proof and onus of proof. Burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. In the case referred, it was held that the burden of proof lay upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstance of a particular case may shift the onus of proof. Such a shifting of onus is a continuous process of evaluation of evidence. It is therefore contended that the factum of his caste and thereby the social status which he seeks to take advantage is to be always established by the respondent No.1 and the burden will always remain on him to prove the same. 20. The learned senior counsel for the respondent No.1 on the other hand has relied on the case of Shiv Charan Singh -vs- Chandra Bhan Singh and others [(1988) 2 SCC 12] - wherein it is held that though the Act has been amended several times the Parliament has not altered the burden of proof placed on the election petitioner under Section 100 (1) (d) of the Act. It is not possible to avoid the election of the returned candidate on speculations or conjectures relating to the manner in which the wasted votes would have been distributed. In the absence of positive proof of material effect on the result of the election of the returned candidate, the election must be allowed to stand and the Court should not interfere with the election on speculation and conjectures. The case of R.P.Moidutty - vs- P.T.Kunju Mohammad and another [(2000) 1 SCC 481] - wherein it is held that it is basic to the law of elections and election petition that in a democracy, the mandate of the people expressed at the hustings must prevail and be respected by the Courts and the election of a successful candidate is not to be set aside lightly. A heavy burden lies on the election petitioner to prove corrupt practice. The onus of proof is not discharged merely on preponderance of probabilities. The standard of proof required is akin to that of proving a criminal or a quasi criminal charge. Clear cut evidence, wholly credible and reliable is needed to prove beyond doubt the charge of corrupt practice. In that light the learned senior counsel contends that the burden is heavy on the petitioner. 21. From a perusal of the above decisions, there can be no dispute with regard to the position that the Election petitioner having approached this Court putting forth certain contentions, the initial burden would be on him to discharge. Once the initial burden is discharged, the onus would shift on the respondents. While taking note of these facts what is also to be kept in view is that in an election petition wherein the corrupt practice is alleged, there cannot be vague charges and the burden is extremely heavy on the petitioner. In the instant case, the contention however put forth on behalf of the petitioner is that as per the very school records of the respondent No.1, his caste is shown as ‘Byragi’ as he belongs to that caste and when that has stood the test of time the respondent No.1 cannot claim a social status to take advantage of the same. The respondent on the other hand has contended that such entry in the school records is erroneously made and in that view he asserts that he belongs to Budaga Jangama and claims a social status which requires strong evidence. Hence if the petitioner brings home the evidence to show that the school records indicate that the respondent No.1 is shown as ‘Byragi’ at an undisputed point in time, the pendulum would swing towards respondent No.1 to conclusively prove that he actually is of Budaga Jangama caste and such entry in the school record is contrary to the factual position. 22. In the light of the said contentions, the issue No.1 casts the initial burden in that manner for the petitioner to prove that the first respondent belongs to ‘Byragi’ caste as is depicted in the school records as contended. In view of the assertion of respondent No.1 about his caste to claim the social status, issue No.4 casts the burden on the respondent No.1. Apart from the issues Nos.1 and 4 76 PÀ£ÁðlP À gÁdå¥ÀvÀæ, UÀÄgÀĪÁgÀ, d£ÀªÀj 10, 2019 ¨sÁUÀ 3 therefore being intertwined, the other issues would become consequential even though they cast the burden relating to the caste certificate as claimed and in that light the evidence as tendered is required to be taken note. If the initial burden is discharged by the petitioner, the burden would be heavy on respondent No.1 as he claims benefit to a social status and take advantage of the same. 23. In the above noted circumstance, the petitioner having examined himself as PW-1 has stated with regard to the school records pertaining to the respondent No.1 and the caste of the respondent No.1 being shown as ‘Byragi’. The documents at Ex.P-4 and P-5, the admission register and Transfer Certificate are marked. The documents at Exhs.P-8, P-9 and 9(a) are also marked. Sri K.M.Venkateshappa, Vice Principal, Nehru Kennedy High School, Byrapur is examined as PW.5. The Admission Register for the period 1986 to 1992 is marked as Ex.P92. The Register for the period 1990-1995 is marked as Exh.P-93. The entry contained at Sl.No.4 relating to respondent No.1 for the academic year 1992-93 is marked as Ex.93(a). As per the entry, his caste is shown as ‘Byragi’. The name of respondent No.2 is shown at Sl.No.3 for the academic year 1989-90 and is marked as Ex.P.92(a). His caste is also indicated as ‘Byragi’ and that he joined the school for the VIII Std during the said years. The Transfer Certificate marked as Ex.P5 is also accepted by PW-5, as having been issued from the said Nehru Kennedy High school. The document at Ex.P8 is also accepted as the list issued from the said school. It is elicited in the cross examination that the entry is not made at the instance of the parents, but was based on the information available in the Transfer Certificate of the VII Std. It is further elicited from the said witness about the customs and the dress being worn by them and the persons belonging to Budaga Jangama caste follow the same and that persons belonging to Budaga Jangama caste have also secured admission in the school. 24. Sri Devaraju N, the Block Education Officer was examined as PW.7. He has also referred to the documents marked as Ex.P8 being the list of students studied from Kottur village during the period 1977 to 31.03.1993. The name of the first respondent is referred at Sl.No.15 and that of respondent No.2 at Sl. No.6. The document at Ex.P4, the admission extract relating to the first respondent is also referred and the caste shown as ‘Byragi’ is stated by the witness. The admission register at Ex.P35 relating to Nehru Kennedy School indicating the seal of the Government Kannada Lower Primary School, Kottur is referred. The Transfer Certificate at Ex.P94 is shown to the witness and marked after overruling the objections. The Transfer Certificate is dated 22.07.1991 and the Caste is indicated as ‘Byragi’. The said witness has been subjected to cross examination and he has stated that he is not in a position to say as to on what basis the entries have been made in Ex.P8 and he cannot say who has provided the details for making the entry in the document at Ex.P8. It has been suggested to him that the Ex.P8 is not genuine as the original is not available to which he has stated that it could be true. He has also stated that he cannot say the basis on which the caste as ‘Byragi’ has been entered either in Ex.P4 or in Ex.P35. 25. The evidence as tendered through PW.1, PW.5, PW.7 and the documents marked and referred to above would indicate that at an undisputed point of time the school records indicated the name of respondents No.1 and 2 and their caste was depicted as ‘Byragi’. The learned senior counsel for the petitioner has relied on the decision in the case of Desh Raj vs Bodh Raj [(2008)2 SCC 186] wherein it is held that entries in the admission register made a long period earlier has evidentiary value and documents more than 30 years old attracted presumption as to its validity. In so far as the caste certificate issued in the said case by the Executive Magistrate is concerned, it was observed that such caste certificates are not given after thorough investigation. It is also held that, when the primary evidence regarding caste is led by the appellant and the attempt of the respondent is to claim to be a Schedule Caste, the caste certificate issued by the Executive Magistrate cannot be taken as evidence to prove the caste of the respondent. 26. Reliance is also placed by the learned senior counsel for petitioner, on the decision in the case of Prabhudev Mallikarjunaiah vs. Ramachandra (E.P.No.3/1991, DD 27.10.1994) - herein it is held that even assuming that the certificate is issued by a competent officer, the Returning Officer was not precluded from not relying upon it if there was other material to indicate that the petitioner did not belong to Beda Jangam . In that case the extract of the admission register and the affidavit of the sister which indicated that the petitioner belonged to Jangam Lingayath and not Beda Jangam caste was available. In that view it was held that the Returning Officer need not have relied on the caste certificate. The contention raised therein that the nomination paper was accepted in the earlier election was noted and it was held that when there were other documents, the mere fact that the nomination had been accepted in the earlier election cannot be a ground to hold that he belong to Beda Jangama caste.The decision reported in (1996) 4 SCC 431 is relied to show that the judgment in E.P.No. 3/1991 was upheld by the Hon’ble Supreme Court and to contend that the entries in the school records would have evidentiary value and more so when such entries are more than 30 years old, the presumption would arise in law and as such the caste as indicated therein should be conclusively accepted by this Court. 27. The learned senior counsel for respondent No.1 on the other hand would refer to the decisions in the case of M.Chandra - vs- M.Thangamuthu and another – [(2010) 9 SCC 712] wherein it is held that the reliance placed on the birth records, entries in the telephone application and voters list cannot be the sole ground for proving that the appellant therein was professing Christianity. It is observed in the said case that such records could have been made by people other than the person concerned. It was further observed that the entry in the birth register in that case was not made by the parents but by the Village head nurse. It is also held therein that in an election petition the facts presented must be clear and when people have elected their representative it cannot be taken lightly. The person who files the election petition should have a definite case to prove that the election was illegal. Therefore the burden of proof shall lie on the petitioner. Even if the allegation is not of corrupt practice, the same will not be lesser in seriousness. Hence the burden of proof is on the election petitioner to prove the charges beyond reasonable doubt. ¨sÁUÀ 3 PÀ£ÁðlPÀ gÁdå¥ÀvÀæ, UÀÄgÀĪÁgÀ, d£ÀªÀj 10, 2019 77 28. The learned senior counsel for the respondent No.1 has further relied on the case of Birad Mal Singhvi -vs- Anand Purohit [1988 (Supp) SCC 604], wherein it is stated that if the entry regarding date of birth in a school register is made on the information given by the parents or someone having special knowledge of the fact, the same would have probative value but if it is given by a stranger such entry will have no evidentiary value. The case of Sushil Kumar –vs Rakesh Kumar [(2003) 8 SCC 673], - wherein, with reference to Sec.35 of the Evidence Act it is held that a register maintained in terms of a statute or by a statutory authority in regular course of business alone would be a relevant fact and only if such vital evidence is produced, it would clinch the issue and the case of Jabar Singh -vs- Dinesh and another, [(2010) 3 SCC 757], - wherein, in the facts arising in that case it was held that the entry of date of birth in the admission form, the school records and transfer certificates did not satisfy the conditions laid down in Section 35 of the Evidence Act as the entry was not in the public or official register, are relied upon. 29. That apart reliance is placed in the case of Babloo Pasi -vs- State of Jharkhand and another [(2008) 13 SCC 133], - wherein it is held that to render a document admissible under Section three conditions have to be satisfied, namely; (i) entry that is relied on must be one in a public or other official book, register or record; (ii) it must be a entry stating a fact in issue or a relevant fact, and (iii) it must be made by a public servant in discharge of his official duties, or in performance of his duty especially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. The said decision is cited to contend that the reliance in the school registers can be placed only if such entry is made based on the details furnished by the parents and the details as entered on the information furnished by strangers cannot be the basis. It is also contended that the original registers are not produced and the same not being public documents cannot be relied upon. 30. Having taken note of the decisions cited by either side, the fact situation herein is that the school records produced would indicate that they are of the periods from 1977 onwards and the fact that the respondents No.1 and 2 had studied in both the schools referred is not in dispute. Though in the cross examination of PW.5 it is attempted to extract that the entry of the caste is not made based on the information furnished by the parents, the witness has stated that the entry is based on the Transfer Certificate issued from the earlier school. In that regard, when PW.7 has referred to that aspect there is no detailed cross examination on that aspect. 31. Be that as it may, when the entries are contained therein and even if certain suggestions were put to PW.5 and PW.7 in an attempt to indicate that they have no knowledge as to on what basis the caste of respondent No.1 and 2 has been entered and obviously when the admission of respondents No.1 and 2 was to the primary school when the first admission was made to the Government School and was for the VII Std in the Nehru Kennedy school, the respondent No.1 would not be aware of the details and it should be their elders unless the contrary is proved. Therefore, if the respondent No.1 was to contend that one entry contained in such a document maintained at an undisputed point in time was made without basis and is an error, the respondent No.1 ought to have examined such reliable witness to speak about the fact as to who had secured and admitted the respondents No.1 and 2 to school and what was the nature of the information that was furnished. Without doing so, a dispute cannot be raised all of a sudden, out of the blue when it becomes inconvenient nor does any suggestions put to the petitioner’s witness be material. 32. That apart though a contention is raised that the documents as marked cannot be relied on as it is not a public document and the original had not been produced by placing reliance on the decisions as noted above, the contention to that effect cannot be accepted in the present context in as much as the very averment as contained in the written statement of respondent No.1 and the plaint in the admitted suit filed by respondent No.1 in O.S.No.107/2012 at Ex.P42 would indicate the fact that such documents are maintained in the schools concerned and the entries are made with regard to the caste as contained therein though it is alleged that it is entered wrongly. In fact, it is the admitted position and the respondent No.1 in fact was making attempts to secure corrections of the same and had failed in such attempt as seen from the judgment passed in O.S.No.107/2012 at Ex.P45. In the above circumstance, keeping in view the reasons for which the petitioner had contended that respondent No.1 is a person belonging to ‘Byragi’ community and that the entries to such effect has been made in the school records has been satisfactorily brought on record, the petitioner has discharged the burden in proving the issue raised. 33. The learned senior counsel for the respondent No.1, by relying on the decision in the case of Laxman Siddappa Naik -vs- Kattimani Chandappa Jampanna and others (AIR 1968 SC 929) - wherein it is held that the ordinary rule is that the person, who as a plaintiff, asserts a fact, has to prove it. The election petitioner therein was to prove that he was a Bedar and that would have proved that he was not a Nayaka. To establish the fact, evidence was required to show the characteristics such as custom in marriage, births, deaths etc to distinguish the two. It is held that a bare assertion that the appellant is a Bedar is not sufficient to displace the acceptance of the nomination paper or the claim of the appellant that he is a Nayaka. In that view it is contended that the petitioner has not tendered evidence to prove the customs and traditions followed by ‘Byragi’ and to establish that the respondent No.1 was following the same. He therefore contends that the petitioner has failed to prove that respondent No.1 belongs to ‘Byragi’ caste. The said decision is not of assistance in the instant case since as already noticed the nature of contention as put forth relating to school records, based on which it was alleged that respondent No.1 is ‘Byragi’, it has been proved with acceptable evidence and the burden is discharged. In that view, the issue No.1 is to be held in the affirmative in favour of the petitioner and the burden is shifted on the respondent No.1 to establish that 78 PÀ£ÁðlP À gÁdå¥ÀvÀæ, UÀÄgÀĪÁgÀ, d£ÀªÀj 10, 2019 ¨sÁUÀ 3 he actually belongs to Budaga Jangama based on the direct evidence before this Court without the aid of the caste certificate which is in the centre of dispute. 34. On that aspect, the respondent No.1 has examined himself as RW.1 and has stated that he belongs to Budagajangama community and that the avocation of the parents was roaming from village to village by playing the musical instrument called the Budaga but they were wrongly called as Sanyasi, Jangalu etc and the same has been entered in the sale deeds due to illiteracy and ignorance. He states that his parents have never affixed their signatures in the school records and refers to the tradition and custom as also the religious practices followed by udagajangama community. In that background the respondent No.1 refers to the Tahsildar having taken note of the custom being followed and in that light having issued the caste certificate. The respondent No.1 in order to contend that persons belonging to Budagajangama caste are residing in Kolar District has referred to the contents in Kolar Gazetteer which is marked as Ex.R.1. 35. Essentially in order to state about the customs and traditions followed by persons belonging to Budagajangama and in that light having relied on the alleged Mahazar as per Ex.R26 in support of the caste certificate, the very persons who claim to have affixed their signature as witnesses to the said mahazar (Ex.R26) are examined as witnesses to state about the customs and traditions followed by persons belonging to Budagajangama, before this Court. examined - RW.3. Sri M.B.Anwar is He states that respondent No.1 belongs to Budagajangama caste and that he and his elders would normally knot their hair at the top and wear a head scarf. They would also wear a bead chain and carry an instrument called Budaga. They would visit the houses seeking alms and predict the future of the people. They would thus collect money, food grains etc., and make a living. The custom followed in their marriages is stated by him. Another witness Sri Mallikarjuna Reddy is examined as RW.4. He claims to be a member of Grama Panchayat and is also a signatory to the alleged Mahazar (Ex.R-26). He would also state that the respondent No.1 belongs to Budagajangama caste and the custom that is followed by them and he states that he had mentioned to the Tahsildar about such custom being followed by respondent No.1 which is the same as being followed by persons belonging to Budagajangama. Sri M.Venkataramana who is another witness to the alleged mahazar (Ex.R-26) is examined as RW.5. The said witness has also stated with regard to the dressing pattern of the persons belonging to Budagajangama, their nature of worship and the practice that is followed in performing the marriages and also in the funeral etc. 36. The learned senior counsel for the respondent No.1 while referring to their evidence has contended that the customs and traditions of Budga Jangama being followed and as referred to in the evidence has not been disputed by the petitioner by cross examining on that aspect and as such has relied on the decision in the case of Gian Chand and others -vs- State of Haryana [(2013)14 SCC 420], - wherein the effect of cross examination by putting the version to the witness and providing adequate opportunity to the witness in the witness box to give full and proper explanation is emphasised and states that in the absence of cross examination the statement of the witnesses is required to be accepted. 37. Taking into consideration such contention, at this stage itself it is to be noted that insofar as issue No.4 which is framed herein and in that light the evidence tendered on the said issue by RWs.3, 4 and 5 if it is taken into consideration, at the outset it is seen that none of the persons belong to the community regarding which a consideration is being made nor do they state about their expertise to give such details. The manner in which they have stated with regard to the customs being followed though there is corroboration in their version, keeping in view their age, nature of profession and there being no material in the first instance to indicate that apart from the respondents No.1 and 2, Sri Kullayappa and Sri Gangireddy who claim to belong to that community, whether there are other persons residing in the village. The evidence tendered by the said witnesses appear to be as tutored witnesses and no reliance is possible to be placed on their evidence even if there was no cross examination on that aspect as essentially it is seen that the cross examination is concentrated on the claim made by them as mahazar witnesses. 38. Apart from the above noted witnesses one Sri Sheshappa is examined as RW.9. The said witness no doubt claims that he belongs to Budaga Jangama and was the president of the Karnataka Rajya Budaga Jangama Kshemabhivruddhi Sangha. He states that he knows respondent No.1 since the daughter of the said witness has married the brother of respondent No.1, Sri Prasanna Kumar. In that view he states that respondent No. 1 belongs to Budaga Jangama community to which he belongs. The said witness also has stated with regard to the tradition and custom followed by the Budaga Jangama community in the same manner as has been stated by the other witnesses as referred to above. However, the said witness in his cross examination has admitted that his caste is recorded as 'Bavacha' in the school records and the said caste belongs to Scheduled Tribe. He states that Bavacha and ‘Byragi’ are different castes and in the modern society, there would be inter-caste marriages. In that view the marriage alone cannot be the basis that too when he himself is not proved to be Budga Jangama. Though he denies the suggestion that he does not belong to Budaga Jangama caste, except for his bald statement before the Court, no material whatsoever has been produced either with regard to the said witness following the practices of Budaga Jangama caste more particularly when he admits that his school records indicate his caste as 'Bavacha'. 39. At this stage, having taken note of the decision in the case of Laveti Giri (supra), it is clear that the burden to prove is on the person who seeks the social status and by professing it seeks constitutional socio-economic advantages. The burden is therefore heavy on the respondent No.1 to establish not only that there are persons belonging to Budaga Jangama in Kolar district or even if he had migrated from any other place he in fact belong to Budaga Jangama caste. The only document apart from the disputed caste certificates on which reliance is placed by respondent No.1 is on Ex.R.1 viz., the Kolar Gazeteer. The learned senior counsel for the petitioner has however relied on the decisions in the case of Dayaram vs. Sudhir Batham and others [(2012)1 SCC 333], wherein reference is made to

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