SOBHA HYMAVATHI DEVI Vs. SETTI GANGADHARA SWAMY

JUDGEMENT

(1.) The election of the appellant from Sringavara-pukota 28 S. T. Assembly constituency in Vizianagaram District of Andhra Pradesh to the legislative assembly in the elections of the year 1999 was challenged under the Representation of the People Act before the High Court of Andhra Pradesh in three Election Petitions. Two of them were by defeated candidates and one of them by a voter in the constituency. The election petition (E.P. No. 25 of 1999) filed by one of the defeated candidates abated due to the death of the petitioner therein during the pendency of the election petition in the High Court. The other two election petitions were allowed by the High Court upholding the challenge to the election of the appellant on the ground that the appellant was not qualified to contest from a constituency reserved for Scheduled Tribe candidates. Thus the election of the appellant was set aside. Aggrieved thereby, the appellant has filed these appeals under Section 116A of the Representation of the People Act, 1951.

(2.) The question that fell for decision before the High Court in the Election Petitions filed under Section 81 read with Section 100 of the Act and that falls for decision before us, is whether the appellant belongs to a Scheduled Tribe and hence qualified to contest the election from a constituency reserved for a Scheduled Tribe. According to the Election Petitioners, the appellant belonged to a forward community, Patnaik Sistu Karmam, while according to the appellant, she belongs to the Bhagatha Community, which was a notified Scheduled Tribe. The High Court, on evaluation of the pleadings and the evidence adduced before it, came to the conclusion that the appellant was a Patnaik Sistu Karnam and was not a member of Bhagatha Community, a Scheduled Tribe community. It was thus that the election of the appellant was set aside. The High Court posed the question whether the Election Petitioners have established that the appellant did not belong to Bhagatha Community as claimed by her and on coming to the conclusion that they have established that she belonged to the Patnaik Sistu Karnam community and further finding that the said community was not a Scheduled Tribe granted the relief to the Election Petitioners. What is contended in these appeals on behalf of the appellant, is that the said finding by the High Court was not justified and the appellant was entitled to be treated as belonging to Bhagatha Community, a Scheduled Tribe.

(3.) Certain facts are not in dispute. One Sobha Rama Raju belonged to Bhagatha Community. He had two wives, Mallamma and Gowramma. Through Mallamma he had a daughter Simhachalam. The appellant is the daughter of Simhachalam. According to the Election Petitioners, Simhachalam had married one Murahari Rao belonging to the Patnaik Sistu Karnam caste and in that wedlock, was born the appellant and five other children. The appellant admitted that she was the daughter of Simhachalam through Murahari Rao. But she pleaded that she and five of her siblings, were the illegitimate children of Murahari Rao, a Patnaik Sistu Karnam and Simhanchalam, of the Bhagatha Community. Simhachalam had earlier married Ladda Appala Swamy who belonged to the Bhagatha Community and that marriage was never terminated and there was no marriage between Simhachalam and Murahari Rao, though there was intimacy and cohabitation between them resulting in progeny, six in all including herself, all illegitimate. To add strength to her contention, the appellant also raised a plea that Murahari Rao had himself earlier married his sisters daughter Kalavathi and that marriage had also not been terminated and, therefore, there was no possibility of Murahari Rao, her father formally marrying Simhachalam, her mother. The appellant further pleaded that she had married one Appala Raju, her maternal uncle belonging to the Bhagatha Community and being the wife of a person belonging to a Scheduled Tribe, she was also entitled to be treated as belonging to the Scheduled Tribe. Thus she had the status of a Scheduled Tribe and hence was qualified to contest the election from a constituency reserved for Scheduled Tribes. The Election Petitioners, on the other hand, denied that Simhachalam had earlier married Ladda Appala Swamy as alleged by the appellant and also denied that Murahari Rao, her father, had earlier married Kalavathi as claimed by the appellant. They pleaded that Murahari Rao and Simhachalam were married and all the six children including the appellant were born to them in a lawful wedlock. The High Court, on the evidence, came to the conclusion that there was no evidence to establish that the mother of the appellant Simhachalam had earlier married Ladda Appala Swamy. It further held that even if there was any such marriage, the same must be taken to have been terminated before Simhachalam started living with Murahari Rao. The High Court held that Murahari Rao had married Simhachalam, the mother of the appellant, and six legitimate children were born to Murahari Rao and Simhachalam. Since a child took the caste of her father, the appellant had to be considered a Sistu Karnam and could not be considered to be a member of the Bhagatha Community. The High Court also held that the appellant had failed to establish that there was a marriage between Murahari Rao and Kalavathi as alleged by her. There was, thus, no impediment in Murahari Rao formally and legally marrying Simhachalam and begetting six children through her. It then considered the question whether by virtue of the marriage of the appellant with Appala Raju, her maternal uncle who belonged to the Bhagatha Commuity, she could be considered to be a member of the Bhagatha Community, a Scheduled Tribe. The High Court, based on a decision of this Court, held that she could not claim the benefit of reservation to contest from a reserved constituency merely because of her marriage to a Scheduled Tribe when she herself belonged to a forward community. It was on these findings that the challenge to the election of the appellant was upheld.