Case: Laxman Siddappa Naik Vs. Kattimani Chaniappa Jamappanna &amp; Ors

2. The case of the election petitioner was that the appellant did not belong to the tribe shown as Nayaka including Cholivala Nayaka, Kapadia Nayaka. Mota Nayaka and Nana Nayaka, mentioned at No. 13 in Part VIII (2) of the Order. He was, on the other hand, a "Bedar" which tribe is not mentioned in the Order. The election petitioner also urged that the other two candidates also did not belong to any Scheduled Tribe but to the "Bedar caste. He, therefore, asked that he himself should be declared elected treating the votes cast in favour of his opponents as "thrown away" since the voters knew this fact and voted with this knowledge. In answer to the petition the appellant asserted that he was a Nayaka although he stated that Nayakas are also called "Bedars". The High Court on an appraisal of the evidence and after looking into census reports and certain writers on the subject of Castes and Tribes has come to the conclusion that there is no Nayaka in this area and that the appellant is a Bedar. The appellant now appeals against the order of the High Court.

Reasoning: 4. Starting from this conclusion that the matter in controversy between the election petitioner and the appellant is a question of fact we have to address ourselves to the right questions in this case. These questions are : to what tribal community, if any, does the appellant belong and who is to prove the necessary facts. These questions obviously have to be resolved on certain principles. The ordinary rule is that a person who as a plaintiff, asserts a fact, has to prove it. The election petitioner here asserts two facts (a) that the appellant is not a Nayaka as mentioned in the Order, and (b) that he is a "Bedar". The first is a negative fact and the second a positive one. It is said that the proof of the negative was not only difficult but impossible. We do not agree.The election petitioner could have proved by positive evidence that the petitioner was a "Bedar". That would have proved that he was not a Nayaka. To establish the fact evidence was required to show the characteristics, such as customs of marriages, births, deaths, worship, dress, occupation and the like which distinguish a Bedar from a Nayaka. Evidence was also possible to show that the petitioner was received in the Bedar Community. This was capable of being proved by showing inter-marriage, inter-dining, community of worship, residence in a particular place and the like. Such facts would have led to the drawing of an inference one way or the other. A bare assesrtion that the appellant is a Bedar does not suffice to displace the acceptance of the nomination paper or the claim of the appellant that he is a Nayaka6. The evidence on the part of the appellant was also nothing on both the points. He filed a document Ex. R-1 said to be a certified copy of the extract relating to his birth from the Births and Deaths Register issued by the Tehsildar, Gokak. The High Court summoned the original which we have also seen. There is a correction in the appropriate column. Some writing appears to have been erased where Nayaka is mentioned and it is possible to read the first letter, which is (equal to B) and this shows that the original writing was perhaps Bedar. There is nothing to show when the correction was made. In the Register there are 58 entries and many of them relate to Bedars but there is no other entry of a Nayaka.No doubt this is a suspicious circumstance but the question still is, does the appellant suffer? In a case of this type when both sides lead no evidence the matter must be decided on the basis of the original onus which clearly lay on the election petitioner7. Mr. Gopal Krishnan argues that as an objection was raised before the Returning Officer and was repelled on the acceptance of R-1 now found unacceptable, the appellant is relegated to the original burden. Here again this is a wrong approach to the question. The Returning Officer was entitled to act on the evidence before him. The original was not seen by him and the doubt, now created, was not present in his mind. Once the nomination paper was accepted the burden must be assumed again by the party challenging the fact that a candidate belonged to a particular community. If prima facie evidence had been led by the election petitioner the burden might have shifted to the candidate but as he led no evidence whatever he must obviously fail. This is not one of those cases in which both sides having led evidence the question where onus lies, becomes immaterial, since the court can reach a conclusion on the totality of the evidence before it.There was no evidence in this case one way or the other. In these circumstances, the election petitioner could not succeed because of the weakness of the appellants case9. It has been pointed out in this Court in the cases to which we have referred, that one must accept the Presidential Order. The Presidential Order shows that Naikdas or Nayakas are to be found not only in the districts of Mysore but also in Maharashtra and Rajasthan. This tribal community is, therefore, quite wide-spread and it is not possible to say that there was no Nayaka in the district to which the appellant belonged even if he was the solitary Nayaka he would be covered by the Presidential Order and would be entitled to stand for the reserved seat for the tribal communities mentioned in the Presidential Order. He claimed to be a Nayaka and this claim was upheld by the Returning Officer. It is significant that he was not an independent candidate but one chosen by a party. This party would not have been easily imposed upon and would have taken care to select the right person for the seat. There were two others who also came forward as Nayakas. In these circumstances, the learned Judge was in error in attempting to establish that the tribal community mentioned as Nayakas was not to be found in this area and that only Naikdas were found and as the appellant did not claim to be a Naikda he must be held to be disentitled to be chosen to fill this seat for the tribal communities. A heavy burden obviously lay upon the election petitioner to displace his claim by evidence. He did not even lead prima facie evidence and therefore the claim cannot be said to have been negatived10. An election is something which can not be readily set aside. There must be proof and convincing proof that a person is not properly chosen to fill a particular seat. Mere suspicion or surmise is not sufficient after the Returning Officer accepts a candidature and the candidate is chosen in the election. Once a community has gone to the polls and the voters have exercised their franchise it is necessary for an election petitioner to show that the candidate is not entitled to the seat. In other words, the burden originally lies on the election petitioner and he cannot succeed unless he discharges that burden. The High Court recognised that there was no evidence in the case but went into the matter from a different angle and attempted to contradict the Presidential Order which it was not entitled to do.