LAXMAN SIDDAPPA NAIK Vs. KATTIMANI CHANDAPPA JAMPANNA

JUDGEMENT

(1.) THE following Judgment of the court was delivered by :-

(2.) THIS is an appeal under S. 116-A of the Representation of the People Act, 1951 against the judgment and order, 24/07/1967, of the High court of ,Mysore in Election Petition No. 10 of 1967 . The High court has set aside the election of Laxman Siddappa Naik, who is the appellant before us. The appellant had stood from Gokak constituency of the Mysore Legislative Assembly for a seat reserved for a member of the Scheduled Tribes specified in Part VIII para 2 of the Constitution (Scheduled Tribes) Order, 1950. Five others had filed nomination papers. The nomination paper of one Kaushalya Devi was rejected by the Returning Officer and one Bhimgouda Mallagouda Patil withdrew from the contest within the time permitted by the Act. There were thus four contesting candidates. The result of the poll was as follows : <FRM>JUDGEMENT_929_AIR(SC)_1968Html1.htm</FRM> The election petition was filed by the last candidate who had received only 620 votes. The main contention and on which his election petition in the High court succeeded was that the appellant and the other two were not members of the Scheduled Tribes and were not thus entitled to stand for the reserved seat. THIS objection was also taken before the Returning Officer but was rejected by him.

(3.) 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 no,. 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 intermarriage, 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 assertion 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 Nayaka.