*THE HON’BLE SRI JUSTICE K.C.BHANU +ELECTION PETITION No. 20 OF 2009. %31-12-2010 # Regu Maheswara Rao …Petitioner Vs. $ 1.Vhyricherla Kishore Chandra Surayanarayana Deo and 11 others ….Respondents !Counsel for the Petitioner: Mr. Bojja Tarakam ^Counsel for the Respondent No.1:Mr.B.Adinarayana Rao <Gist : >Head Note: ? Cases referred: 1. (1969) 3 SCC 238 23.(1980) 3 SCC 169 2. (2009)10 SCC 541 24. (2003) 8 SCC 204 3.1987 (supp) SCC 93 25.1984 (SUPP)SCC77 4. (2006) 4 SCC 98 26. (1995) 4 SCC 32 5. AIR 1969 SC 597 27. (2003) 8 SCC 613 6. AIR 2001 SC 393 28. AIR 1972 SC 608 7. (1996) 3 SCC 576 29. (1981) 1 SCC 80 8. AIR 1965 SC 183 30. AIR 1954 BOM 305 9. AIR 1954 SC 139 31. AIR 1956 MAD 226 10.AIR 1957 SC 857 32. AIR 1956 SC 593 11. AIR 1973 SC 626 33. AIR 1967 SC 256 12. AIR 1964 SC 880 34. AIR 1995 SC 167 13. AIR 1963 SC 1633 35. 1988 (1) ALT 915 14. AIR 1968 SC 1413 36. AIR 1983 BOM.1 15. AIR 1971 SC 1865 37. (2010) 9 SCC 712 16. AIR 1971 SC 2548 38. (1982) 2 SCC 202 17. AIR 1983 AP 181 39. (1994) 6 SCC 241 18. AIR 2000 SC 426 40. (2008) 2 SCC 186 19. AIR 2000 SC 2857 20. AIR 2001 SC 2532 21. AIR 2006 KAR 231 22.2005 AIR SCW 6197 THE HON’BLE SRI JUSTICE K.C.BHANU ELECTION PETITON NO.20 OF 2009 DATED: 31st DAY OF DECEMBER, 2010 Between Regu Maheswara Rao … Petitioner And 1.Vyricherla Kishore Chandra Suryanarayana Deo and 11 others …Respondents THE HON’BLE SRI JUSTICE K.C.BHANU ELECTION PETITON NO.20 OF 2009 ORDER; This petition is filed under Section 81 r/w Section 5 (a), 100 (1)(a) and (d) (i) of the Representation of the People, Act, 1951 (for short ‘the Act 1951’) to declare the election of the 1st respondent to 18 Araku Lok Sabha (S.T.) Parliamentary Constituency to be void and set aside the same and further direct the respondent No.12 to initiate proceedings for recovery of amount from 1st respondent for the period enjoyed by him as Member of Lok Sabha. 2. Brief facts, that are necessary for disposal of the present petition may be delineated as follows: The election petitioner is challenging the election of 1st respondent to 18 Araku Lok Sabha (S.T.) Parliamentary Constituency. The election to the said Parliamentary Constituency was held on 16-04-2009 and 1st respondent was fielded from Indian National Congress Party. Respondents 2 to 11 are the other contesting candidates from different parties and as independents. The results of the said election was declared on 16-05-2009 and in the said election, the 1st respondent was declared elected as Member of Lok Sabha from 18 Araku Lok Sabha (S.T.) Parliamentary Constituency. The election petitioner is a registered voter and an elector from Ward No.2, Booth No.36, Sl.No.841 of Salur Municipality, Salur Assembly Constituency, which comes under Araku Lok Sabha Parliamentary Constituency. The 1st respondent is a permanent resident of Fort Kurupam, Kurupam Mandal, Vizianagaram District. He hails from a Kshatriya family. The family is also of a Zamindar. It was known in the entire district of Vizianagaram and also in the north coastal districts that the 1st respondent and his Vyricherla family belongs to Kshatriya caste and they were treated in the districts as Kshatriya otherwise known as Rajus only. There is another family by name Shatrucharla in Vizianagaram District, which also belong to Kshatriya caste. Both the families are related to each other. The Vyricherla family is also related to Poosapati family of Vizianagaram district, which also belong to Kshatriya caste. To the knowledge of the petitioner, neither the 1st respondent nor any member of his family has any marital or other relations with any one of the family belonging to Scheduled Tribes in either Vizianagaram District or any other agency area in the State of Andhra Pradesh. The 18 Araku Lok Sabha (S.T.) Parliamentary Constituency is reserved for Scheduled Tribes in the elections held in the year 2009 after delimitation. Since the Constituency is reserved for Scheduled Tribes, only a member belonging to any one of the Scheduled Tribes can only contest the election. Since the 1st respondent does not belong to Scheduled Tribe of Vizianagaram District or for the matter in any other parts of India, he is not qualified to contest from the 18 Araku Lok Sabha (S.T.) Parliamentary Constituency. Under Section 5 (a) of the Act, 1951, the 1st respondent is not qualified to be chosen to fill a seat in a Legislative Assembly in the State of Andhra Pradesh, since he is not a member of any of the tribes in the State of Andhra Pradesh and contested in a seat reserved for the Scheduled Tribes. Since the 1st respondent was declared elected from the said Constituency and there is a disqualification against him from contesting from the said constituency, the election held to the said constituency has thus become null and void. The petitioner having come to know that the 1st respondent does not belong to any one of the Scheduled Tribe community, lodged a petition before the District Collector, Vizianagaram on 01-12-2005 to conduct enquiry about the social status of 1st respondent. Before filing the said petition under A.P. (SC,ST & BCs) Regulation of Issue of Community Certificate Act, 1993 (Act No.16 of 1993), the election petitioner gathered information both oral and documentary to establish that the 1st respondent belongs to Kshatriya caste, but not to any one of the Scheduled Tribe community. In the registered documents No.3 of 1901, 125 of 1902 and 127 of 1902, on the file of the Sub Registrar, Parvathipuram, Vizianagaram District executed by Raja Vyricherla Surya Narayana Raja Bahadur, who was the grand father of 1st respondent, the executant of the document described himself as belonging to Kshatriya caste. In the decree, dated 31-03-1938 in O.S.No.3 of 1935 on the file of the Subordinate Judge, Srikakulam filed by Raja Vyricherla Surya Narayana Raja Bahadur, who was the grand father of 1st respondent, Plaintiffs 2 and 3 were the father and uncle of 1st respondent and they described themselves as belonging to Kshatriya caste. In the registered document No.1870 of 1949 and the document executed on 28-04-1950 on the file of the Sub Registrar, Parvathipuram, Vizianagaram District executed by Vyricherla Durgaprasad Virabhadra Deo Bahadur, who was the father of 1st respondent, the executant of the document described himself as belonging to Kshatriya caste. All these documents are executed either by the grand father or father of 1st respondent and they are public documents. In these documents both the grand father and father of 1st respondent described themselves as Kshatriya caste. Thus it is established that family of 1st respondent belongs to Kshatriya caste and the same is not included in any one of the Scheduled Tribes in the State of Andhra Pradesh. Under the said circumstances, the 1st respondent is not qualified to contest the election from 18 Araku Lok Sabha (S.T.) Parliamentary Constituency. The petitioner also made a representation to the President of India on 06-06-2006 for the same purpose. As the District Collector, Vizianagaram, did not choose to conduct enquiry against the social status of 1st respondent, the petitioner filed W.P.No.27205 of 2008 in this Court seeking mandamus and this Court by order, dated 28-01-2009, issued direction to the District Collector to take final decision in the matter on or before 15-05-2009. The petitioner also filed objections at the time of scrutiny on 30-03-2009 before the Returning Officer to 18 Araku Lok Sabha (S.T.) Parliamentary Constituency (Respondent No.12) challenging the nomination of 1st respondent to the said constituency since he does not belong to Scheduled Tribe. Respondent No.12 rejected the said objection filed by the petitioner. The 1st respondent thus played fraud on the Constitution of India and on voters of the 18 Araku Lok Sabha (S.T.) Parliamentary Constituency styling himself as a person belonging to Scheduled Tribe, knowing fully well that he is a Kshatriya and does not belong to any one of the Scheduled Tribes Community. In a case, the Supreme Court directed the concerned authorities to recover the amounts drawn by the elected candidates towards allowances and other perks from persons who make false claims regarding the social status. Thus 1st respondent was also liable for recovery of the emoluments drawn by him for the entire tenure enjoyed by him as a member of Lok Sabha not only in the year 2009 but earlier also. Article 366 (25) of the Constitution of India describes who are the Scheduled Tribe. According to the said definition ‘Scheduled Tribe’ means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution. Under Article 342 (1) of the Constitution of India, the President may with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within such tribes or tribal communities which shall for the purpose of this Constitution be deemed to be Scheduled Tribes in relation to that State. In the schedule part-I relating to the State of Andhra Pradesh, under the Scheduled Castes ad Scheduled Tribes Orders (Amendment) Act, 1976, the caste Kshatriya is not included. In Annexure-I to A.P. (SC,ST & BCs) Regulation of Issue of Community Certificate Act, 1993, the list of Scheduled Tribe Community is enumerated and in the said list, the caste Kshatriya is not included. In the earlier list prepared in the year 1950 also, the caste of Kshatriya is not included in the Scheduled Tribe community. Thus the caste Kshatriya cannot be treated as Scheduled Tribe. Hence, the election petition. 3. The 1st respondent filed counter affidavit denying the averments in the election petition. It is stated that the election petitioner filed this election petition at the instance of political rivalries of this respondent, who are inimically disposed against him. This respondent belongs to Kshatriya community and does not belong to Scheduled Tribe is totally incorrect, baseless and untenable and there is no basis for the allegation and it is without cause of action and is liable to be dismissed. He did not dispute about the election held to the said constituency and he fielded as a candidate of the Indian National Congress Party. He did not dispute that he is a permanent resident of Kurupam, Kurupam Mandal, Vizianagaram District. Kshatriya denotes warrior class and it is not a caste. So also Zamindar is not caste and it is only a status. Zamindar further signifies his vocation, but not his status. Admittedly, there are only a few Zamindars throughout the State. Therefore, it differentiate himself from the other ryots from whom he collects the land revenue. So, the ancestors of the 1st respondent being the class of persons conferred with the said status and enhanced their family prestige as a warrior. Thus, the attempt of the petitioner trying to draw inferences from the descriptions in the documents etc do not in any way establish the fact that he does not belong to a notified Scheduled Tribe. It is true that 18 Araku Lok Sabha (S.T.) Parliamentary Constituency is reserved for Scheduled Tribes in the elections held in the year 2009. As he belongs to Scheduled Tribe community, he is lawfully entitled to contest the election from the said constituency. It is true that the petitioner lodged a complaint before the District Collector, Vizianagaram to conduct enquiry about his social status. Pursuant to the said application and after following the procedure, the District Collector, Vizianagaram, after conducting enquiry held that he belong to ‘Konda Dora’ community and by his proceedings, dated 21-04-2010, issued a notification in terms of A.P. (SC,ST & BCs) Regulation of Issue of Community Certificate Act, 1993. The District Collector examined the documents and rejected them. It is not known in what circumstances, the recitals in the documents were made and they do not in any way establish that he belong to Kshatriya caste. He belongs to Konda Dora community, which is one of the listed Scheduled Tribes in the State of Andhra Pradesh and as such, his election do not in any way suffer from any legal infirmities. It is further stated that he is the present incumbent of Kurupam Zamindar family of Vizianagaram District, being the descendent of Vyricherla Sanyasi Dora, the founder of Kurupam Zamindari. He belonged to ‘Konda Dora’ community, one of the hill tribes of the then Visakhapatnam District. The details of the said Zamindari is vividly discussed in a manual of Vizianagaram District in the Presidency of Madras compiled and edited by D.F.Carmichael, M.C.S. 1869 and in Madras District Gazette, Vizianagaram in 1907, which clearly show that the Andhra and Kurupam Zamindaries were handed over to Garaya Dora and Sanyasi Dora and that they belonged to the Konda Dora tribe. These are historical facts noted and published by the authority of the Government. He did not dispute about the petitioner filing petition before the District Collector for conducting enquiry on the social status and filing writ petition in this Court. As regards the social status of the respondent, it is beyond dispute that he belonged to Scheduled Tribe community and there is no basis for the petitioner to allege that the emoluments drawn by him for the entire tenure as a member of the Lok Sabha not only in the year 2009 but also earlier is a statement without any basis, besides being false and frivolous. He did not dispute that Kshatriya caste is not included in Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 and in A.P. (SC,ST & BCs) Regulation of Issue of Community Certificate Act, 1993 and the said fact has no relevance to the case. The original and intrinsic name of the Zamindars of the Kurupam ended with ‘DORA’ which was replaced by the suffix ‘RAJU’. Similarly, the grand father of this respondent was married to a woman from Talcher, Orissa, who expired at the age of 29 years. Then, her side managed the Zamindari for some time and consequently their title of ‘Deo’ came to be retained by the family. A tribal has no religion and he can follow any religion he likes. Admittedly, the founder of Kurupam Zamindari is not a Kshatriya and perhaps the description of Kshatriya, which is a social status on the ruling classes of Zamindars and Kings was added to signify that they are warriors and it do not have the attributes of a caste. Perhaps in the said context and the draftsman might have described the parties to a document for the purpose of identification, since one of them happens to be a Zamindar/King. When under a document property is conveyed to a purchaser, the issue of caste does not form part of the document. Similarly, neither the prefix Vyricherla nor the suffix Raju or Deo indicate any caste or community. The decision of the Governor-in-Council clearly establishes the fact that the Zamindars of Kurupam belong to hill tribes. It is further stated that social status certificates have been issued to the members of the Kurupam Zamindari family in various occasions for many decades stating that they belong to Scheduled Tribe community. A life certificate is also issued by the Competent Authority after conducting a detailed enquiry as per the procedure laid down in 1993 Act. The M.R.O. Kurupam, in his report dated 19-08-2006 has stated that the genealogical tree clearly indicates the fact that the present Zamindars of Kurupam are the descendents of Vyricherla Sanyasi Dora, a Konda Dora of an Urya Stock, who first established this ancient chiefdom. Recently another enquiry was conducted by the M.R.O. Kurupam and a report has been submitted by him as well as by the R.D.O. Parvathipuram confirming the original findings of the enquiry held in the year 1999. The tribal family has been observing the requisite rites in all of their family functions which are known as the tribal practices. They worship the village goddess and celebrate the festival. Zamindars of Kurupam are not related to the Zamindars of Chinamerangi or Salur. The documentary evidence that has been referred along with customary practices that are in vogue are in controvertible and conclusive proof of the present status. It is essential to note that all Konda Doras are not chiefs, but chiefs from among the Konda Doras were referred to as Konda Raju/Razu. It is further stated that another enquiry was conducted by the District Level Scrutiny Committee on 22-05-2009. In connection with this enquiry, the M.R.O. and R.D.O. Parvathipuram submitted reports to the District Level Scrutiny Committee, Vizianagaram. The District Collector and Magistrate, Vizianagaram, in his proceedings, dated 21-04-2010 confirmed the findings which reads that in exercise of the powers conferred under sub-rule 7 of Rule 9 of A.P. (SCs, STs & BCs) issue of Community, Nativity and Date of Birth Certificates Rules, 1997 communicated vide G.O.Ms.No.58 SW (J) Department, dated 12-05-1997 read with Section 5 (1) of A.P. (SC/ST/BC) Regulation of issue of Community Certificates Act, 16/93, Sri Vyricherla Kishore Chandra Suryanarayana Deo of Kurupam Mandal of Vizianagaram District is hereby declared as belong to Konda Dora (ST). At page 6 of Encyclopedia of Indian Tribes Series-2 titled ‘Tribes of Andhra Pradesh’ edited by Padmashri S.S.Shashi, who was Director General of Publications Division in the Ministry of Information & Broadcasting, Government of India, held that then came Konda Doras and Mukha Doras into prominence. They got themselves established as tribal chiefs claiming loyalties of the tribals inhabiting their territories. Thus emerged China Merangi, Kurupam, Andhra and Pachipenta estates. The first three were the seat ruled by Konda Doras, which the last was held by Mukha Doras. They ultimately became tributaries to the Maharaja of Jeypore or Vizianagaram. The territories of these tribal estates covered by the present day Parvathipuram and Salur taluks of Srikakulam District. These territories were then almost exclusively inhabited by tribals who belonged to Jatapu, Khond, Gadaba,Manne Dora and Savara tribes. Therefore, he prays to dismiss the election petition with exemplary costs as it is frivolous, vexatious and aimed to harass this respondent. 4. Basing on the above pleadings, the following issues are settled for trial: 1.Whether the 1st respondent belongs to Konda Dora Tribe or not? 2. To what relief? 5. On behalf of the petitioner, P.Ws. 1 to 3 are examined and Exs.P1 to P12 are marked. On behalf of the 1st respondent, R.Ws. 1 and 2 are examined and Exs.R1 to R4 are marked. 6. Mr. Bojja Tarakam, learned senior counsel appearing for the petitioner contended that 1st respondent is a permanent resident of Fort Kurupam, Kurupam Mandal, Vizianagaram District, that he hails from a Kshatriya family, that the family is also of a Zamindar, that it is known in the entire district of Vizianagaram and also in the north coastal districts that the 1st respondent and Vyricherla family belong to Kshatriya community and they are treated in the districts as Kshatriya community otherwise known as Rajus, that there is another family by name Shatrucharla in Vizianagaram District, which also belongs to Kshatriya community, that both the families are related to each other, that Vyricherla family is also related to Poosapati family of Vizianagaram district, which also belongs to Kshatriya caste, that the 1st respondent nor any member of his family has any marital or other social relationship with any one of the families belonging to Scheduled Tribes in either Vizianagaram District or any other agency areas in the State of Andhra Pradesh, that as the 1st respondent does not belong to Scheduled Tribe of Vizianagaram District, he is not qualified to contest from the 18 Araku Lok Sabha (S.T.) Parliamentary Constituency, that the certified copies of registered documents Exs.P5 to P8 would clearly go to show that community of the parents of the 1st respondent or the 1st respondent was shown as Kshatriya, that similarly the admission register of the 1st respondent in the school in Madras relating to the year 1963 would also show that the community of the 1st respondent is Kshatriya, that the District Level Scrutiny Committed cancelled the caste certificate issued in favour of the 1st respondent, that the document Ex.P3 is of the year 1901, Exs.P4 and P5 are of the year 1902 whereunder the ancestors of 1st respondent were described as Kshatriya community and those documents have not been denied or disputed and therefore, the contents therein can be relied upon to show the community of 1st respondent, that similarly the decree in O.S.3 of 1935 on the file of the Subordinate Judge, Srikakulam would clearly go to show that community of the 1st respondent’s father is shown as Kshatriya, that the evidence of P.W.1 would go to show that 1st respondent hails from Kshatriya community, that the 1st respondent is having close marital relations with Poosapati family which is also Zamindari family, that one Vijaya Rama Raju, who is related to 1st respondent contested for Nagoor constituency and his election was set aside by the Supreme Court, that P.W.1 filed objection before the Returning Officer stating that the 1st respondent does not belong to Scheduled Tribe, but the same was rejected by the Returning Officer arbitrarily and without assigning any reasons, that he also filed Writ Petition before this Court to conduct an enquiry with regard to social status of the 1st respondent, that during the course of enquiry, the 1st respondent himself made a statement under Ex.P12 that he belongs to Konda Raju caste, which is equivalent to Konda Dora, that on his own admission, Konda Raju is not included as one of the Scheduled Tribes in the Constitution (Scheduled Tribe) Order, 1950, that therefore, it is nothing but playing fraud on the Constitution by the 1st respondent and hence, he prays that the election of the 1st respondent has to be declared as void. 7. On the other hand, Mr. B.Adinarayana Rao, learned senior counsel appearing for the 1st respondent contended that the 1st respondent belongs to Konda Dora tribe which is recognized as Scheduled Tribe, that he previously contested in the elections held in 1977 to 1984, 1989, 1991, 1999 and 2004 as a Scheduled Tribe, that his social status was never in issue before any authority, that Kshatriya is not a community, it is a warrior class, that his ancestors were tribal chiefs and Zamindars of Kurupam, that the original founder of Kurupam belongs to Konda Dora tribe, which can be seen from the Madras District Gazette, that the tribal community are having no religion, that the registered documents filed by the petitioner are said to have written by the Diwan which are meant for identification of individual, that therefore, the issue of caste or community as noted in the documents cannot be taken in deciding the community of 1st respondent, that merely because the community of 1st respondent is shown as Kshatriya in the documents Exs.P5 to P8, the same cannot be a sole basis for determining the community of a person, that the manual of Visakhapatnam shows that ancestors of 1st respondent belongs to Konda Dora tribe and those tribes were found in the Vizianagaram District, that his paternal ancestor was one Sanyasi Dora who was a tribal chief, that the social status certificates were issued for Kurupam Zamindaries as belonging to Scheduled Tribe in various occasions, that a detailed enquiry was conducted by the competent revenue officials, which would clearly reveal that 1st respondent belongs to Konda Dora, that he never played fraud on the constitution in obtaining social status certificate, that mere marking of the documents by the petitioner does not amount to proving the contents therein, that the contents therein cannot be said to be conclusive proof of the facts stated therein, that the school admission register Ex.P9 is not shown to have been maintained as