Sri S Shivashankar Prasad vs Sri D A Gopala on 24 August, 2012

[Cites 59, Cited by 16]

Karnataka High Court

Sri S Shivashankar Prasad vs Sri D A Gopala on 24 August, 2012

Bench: N. Ananda

                                1


     IN THE HIGH COURT OF KARNATAKA AT BANGALORE

         DATED THIS THE 24TH DAY OF AUGUST 2012

                            BEFORE

            THE HON'BLE MR.JUSTICE N. ANANDA

                   M.F.A.No.6958/2012 (KMC)

BETWEEN:
Sri S.Shivashankar Prasad
S/o Sri S.P.Govindappa
Aged about 51 Years
No.5, Nisarga, Giddamma
Layout, A.Narayanapura
Dooravaninagar Post
Bangalore - 560 016.                          ... Appellant

(By Sri Ashok Haranahalli, Senior Advocate for Sriyuths
C.Shashikantha & Nishanth A.V., Advocates)

AND:
1. Sri D.A.Gopala
   S/o late Annayappa
   Aged about 56 Years
   R/at No.43, Gangothri
   Devasandra, K.R.Puram Post
   Bangalore - 560 036.

2. Sri H.S.Amanulla
   S/o Sri Syed Hussaian Shah
   Aged about 51 Years
   R/at No.319, 1st Main Road
   Darga Mahal, Vijinapura
   Dooravaninagar Post, Bangalore - 560 016.

3. Sri C.Kunjappan
   S/o Sri Kunjan Pillai
   Aged about 62 Years
   R/at No.120/60 (Old No.164)
   Nethravathi Road, 2nd cross
   Udaya Nagar, Dooravaninagar Post
   Bangalore - 560 016.
                                 2


4. Smt.B.N.Rohini, Major
    W/o Sri P.Munivenkatappa
    No.466, 1st Main, Vidyanagar
    Pai Layout, Dooravaninagar
    Bangalore - 560 016.                  ... Respondents
(By Sri Ravivarma Kumar, Senior Advocate for Sri B.M.Irishad
Ahmed, Advocate for R1; Notice to R2 to R4 dispensed with
v.c.o.dt.02.08.2012)

       This appeal is filed under section 38 of the Karnataka
Municipal Corporations Act, 1976 against the judgment dated
30.06.2012, passed in Election Petition No.19/2010 on the file of
VI Additional City Civil and Sessions Judge at Bangalore, allowing
the petition filed under section 33 and etc.

       This appeal having been heard and reserved for judgment
on 10.08.2012, coming on for pronouncement this day, the court
delivered the following:-

                       JUDGMENT

The election of appellant as Councilor of Ward No.56 of A.Narayanapura of Bruhat Bangalore Mahanagara Palike (for short, 'BBMP') in the elections held on 28.03.2010 has been declared as null and void by the impugned judgment dated 30.06.2012. Therefore, the appellant is before this court.

2. The learned Judge of trial court has held that appellant does not belong to Backward Class category 'A', therefore he was not qualified to contest the election from Ward No.56, which was reserved for Backward Class category 'A'. The learned trial Judge has held that appellant 3 belongs to "Sadari Gowda" caste which is not notified as Backward Class category 'A' in the gazette notification dated 16.10.1995 (Ex.P.2) issued by the Government of Karnataka for the purpose of reservation of seats and offices of Mayor/Deputy Mayor of City Corporations, President/Vice- President of Town Municipal Councils/City Municipal Councils/Town Panchayats.

3. Before adverting to the contentions urged by parties, it is necessary to state certain facts, which are not disputed by either party. The BBMP Ward No.56-A.Narayanapura was reserved for Backward Class category 'A' for election held on 28.03.2010. The elections were conducted under the provisions of Karnataka Municipal Corporations Act, 1976 (for short, 'KMC Act'). The appellant contested election by declaring himself as a citizen belonging to 'Sadaru' caste (notified as Backward Class category 'A') and he was the successful candidate.

4. The election of appellant was challenged on two grounds:-

I. The appellant was not a resident of Bangalore.

II. The appellant belongs to "Sadari Gowda" caste and he had migrated to Bangalore from M.Venkatapuram Village, Lepakshi Mandal, Ananthapur District, Andhra Pradesh State. The appellant does not belong to "Sadaru" caste.

Therefore, he was not qualified to contest elections from Ward No.56, which was reserved for Backward Class Category 'A'.

5. The first ground was rejected by the trial court as it was established that name of appellant was included in electoral roll/voter list of Vignan Nagar, Ward No.81 of BBMP. The learned trial Judge accepted the second ground to declare the election of appellant as void. The finding recorded by trial court on ground No.2 has been impugned in this appeal.

6. I have heard Sri Ashok Haranahalli, learned senior counsel for appellant and Sri Ravivarma Kumar, learned senior counsel for I-respondent.

7. The submissions of learned senior counsel for appellant and decisions cited in support of such submissions are stated thus:-

I. The election petition was not verified as required under section 33(4)(c) of KMC Act. {2003 AIR SCW 5569 (in the case of Regu Mahesh alias Regu Maheswar Rao Vs. Rajendra Pratap Bhanj Dev & another)}.

II. The trial court had not framed proper issues {[i] AIR 2001 SC 2992 (in the case of Ananga Uday Singh Deo Vs. Ranga Nath Mishra & others, [ii] (2001) 2 SCC 652 (in the case of Makhan Lal Bangal Vs. Manas Bhunia and others)}.

III. The trial court has no power to decide the validity of caste certificate {[i] MANU/AP/0446/2003 (in the case of Durga Singh Vs. M.Lakshman Yadav & others), [ii] CDJ 2012 BHC 319 (in the case of Rajesh Bharat Latkar Adult Vs. State of Maharashtra, Through the Department & Others, [iii] (2011) 10 SCC 357 (in the case of Collector, Bilaspur Vs. Ajit P.K.Jogi & Others), [iv] AIR 1969 SC 78 (in the case of Dhulabhai etc. Vs. State of M.P. & another), [v] 2011(4) 6 KCCR 3211 (in the case of S.P.Mahadevappa Vs. Smt.Suma Vasanth & Others)}.

IV. The election petitioner (I-respondent herein) has failed to prove that appellant does not belong to 'Sadaru" caste and the evidence adduced by I-respondent is hardly sufficient to hold that appellant does not belong to 'Sadaru" caste and he was not qualified to contest the election. {[i] AIR 1995 SC 2284 (in the case of Gajanan Krishnaji Bapat & another Vs. Dattaji Reghobaji Meghe and others) [ii] AIR 1968 SC 929 (in the case of Laxman Siddappa Naik Vs. Kattimani Chandappa Jampanna & others)}.

V. The I-respondent has not adduced evidence to prove that documents relied upon by him, mere production, mere marking of documents is not enough to prove the contents of documents {[i] (2003) 8 SCC 745 (Narbada Devi Gupta Vs. Birendra Kumar Jaiswal & another), [ii] (2010) 4 SCC 491 (in the case of Life Insurance Corporation of India & another Vs. Ram Pal Singh Bisen)}.

VI. The appellant (successful candidate) can rely on synonyms of his caste to claim reservation under Backward Class category 'A' {ILR 1994 KAR 1270 (in the case of Virupakashappa Vs.Hanumantha)}.

VII. The success of a candidate in election should not be lightly interfered with. The success of a candidate is the mandate of people, besides interference by court will have serious consequences to electorate public fund and public administration. {AIR 2000 SC 256 (in the case of Jeet Mohinder Singh Vs. Harminder Singh Jassi)}.

VIII. The court while considering reservation issue shall bear in mind caste status of candidate in native State and migrated State {[i] AIR 2000 SC 525 (in the case of Union of India & Others Vs. Dudh Nath Prasad) and [ii] (2009) 2 SCC 109 (in the case of Sau Kusum Vs. State of Maharashtra & Others)}.

IX. The appellant though a native of M.Venkatapuram Village, Lepakshi Mandal, Ananthapur District, Andhra Pradesh State had migrated and settled in Bangalore about 8 27 years back and in the records which have come into existence at undisputed point of time, he is recognised as a person belonging to "Sadaru" caste. {(2009) 2 SCC 109 (in the case of Sau Kusum Vs. State of Maharashtra & Others)}. X. The Committee constituted by the Karnataka State Commission for Backward Classes in its Advice 50/2000, has held that "Sadumata/Sadukula/Sadar/Sadu Gowder/Sadu Gowdar/Sadara/Sadari and Sadar Gowda"

are synonyms of "Sadaru" and advised Government of Karnataka to include "Sadumata/Sadukula/Sadar/Sadu Gowder/Sadu Gowdar/Sadara/Sadari and Sadar Gowda"

along with "Hindu Sadru/Sadaru", found at Sl.No.89 of Category IIA in the list of Backward classes in G.O.No.SWD 150 BCA 94 dated 17.09.1994. The Government accepted the advice of the Committee and included the aforestated Synonyms along with "Hindu Sadru/Sadaru". Therefore, I- respondent cannot contend that "Sadari Gowda" is not synonymous to "Hindu Sadru/Sadaru".

XI. The appellant has produced documents to prove not only himself but also members of his family belong to "Sadaru" caste.

XII. The learned trial Judge, without considering oral and documentary evidence and ignoring settled principles of law on the point has passed the impugned order. Therefore, impugned order cannot be sustained.

8. The principal submissions of learned senior counsel for I-respondent and decision cited in support of such submissions are stated thus:-

I. The appellant has not raised ground of maintainability of election petition due to lack of proper verification/defective verification. The defective verification is curable. The defective verification assumes importance if corrupt practice is alleged. {[i] (1976) 2 SCC 440 (in the case of Balwan Singh Vs. Prakash Chand & others; [ii] (2005) 2 SCC 188 (in the case of Chandrakant Uttam Chodankar Vs. Dayanand Rayu Mandrakar & Others}.

II. The parties having understood the real controversy between them have gone on with the trial and have adduced oral and documentary evidence, therefore, appellant cannot be permitted to make any grievance about issues framed by the trial court.

III. The trial court has jurisdiction to determine caste status of candidate and assess evidentiary value of caste certificate in the light of other evidence let in [(2005) 2 SCC 244 (in the case of Sobha Hymavathi Devi Vs. Setti Gangadhara Swamy & others)].

IV. The Gazette Notification issued on 16.10.1995 in exercise of powers coferred under sub-section (1) of Section 2 of KMC Act and Notification dated 30.03.2002 issued by the Social Welfare Department are for different purposes. The Gazette Notification dated 16.10.1995 issued under Article 243T and Gazette Notification dated 30.03.2002 issued under Article 15(4) and 16(4) of the Constitution operate in two different fields. The appellant cannot take shelter under Gazette Notification dated 30.03.2002, wherein reservation is 11 made for backward classes for the purpose of education and employment. [(2010) 7 SCC 202 (in the case of K.Krishna Murthy (Dr.) and others Vs. Union of India & another)]. V. The I-respondent has adduced oral and documentary evidence to establish that appellant is not an original inhabitant of State of Karnataka. The appellant belongs to "Sadari Gowda" caste, therefore, he cannot claim reservation either on the ground that "Sadari Gowda" is synonymous to "Hindu Sadru/Sadaru" or on the ground of caste certificate (Ex.R.18) {[i] (2001) 6 SCC 571 (in the case of M.C.D. Vs. Veena & others, [ii] (1990) 3 SCC 130 (in the case of Marri Chandra Shekhar Rao Vs. Dean, Seth G.S.Medical College and Others, [iii] (1994) 5 SCC 244 (in the case of Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra & another Vs. Union of India & another, [iv] ILR 2009 KAR 3934 (in the case of Lolaksha Vs. The Convener (CLAT-2009) Nalsar University of Law & others)}.

9. The I-respondent by adducing oral and documentary evidence has proved that appellant belongs to "Sadari Gowda" caste which in fact has been notified as Backward class caste by Government of Andhra Pradesh. Therefore, contention of appellant that there is no evidence in proof of caste of appellant cannot be accepted. The decision reported in AIR 1968 SC 929 (in the case of Laxman Siddappa Naik Vs. Kattimani Chandappa Jampanna & others) is not applicable.

10. The court has no jurisdiction to include or exclude or substitute as also to declare synonyms to be a caste or tribe. Therefore, the contention of appellant that "Sadari Gowda" is synonym of "Hindu Sadru/Sadaru" cannot be accepted. {[i] (1996) 3 SCC 585 (in the case of A.Chinnappa Vs. V.Venkatamuni & Others, [ii] (1996) 4 SCC 431 (in the case of Prabhudev Mallikarjunaiah Vs. Ramachandra Veerappa & another), [iii] (2001) 1 SCC 4 (in the case of State of Maharashtra Vs. Milind & Others) and [iv] (1996) 3 SCC 576 (in the case of Mityanand Sharma and another Vs. State of Bihar & others)}.

11. The learned senior counsel for I-respondent submits that impugned judgment does not call for interference.

12. In view of rival contentions urged by parties and submissions made by learned senior counsel for parties and bearing in mind real controversy between parties, I frame the following points for determination:-

(1) Whether election petition is liable to be dismissed for want of proper verification and lack of affidavit?

(2) Whether the impugned judgment is vitiated due to improper framing of issues?

(3) Whether the trial court has jurisdiction to consider the validity of caste certificate produced and relied upon by appellant?

(4) Whether I-respondent (election petitioner) has proved that appellant (successful candidate) belongs to "Sadari Gowda" and he was not qualified to contest the election to Ward No.56, reserved for Backward class category 'A' ?

(5) Whether the impugned judgment calls for interference?

(6) To what order?"

My findings on the above points and reasons thereon are as follows:-

Point No.1:

13. Before the trial court, appellant had not raised question of maintainability of election petition either on the ground of improprer verification or on the ground of lack of affidavit.

14. In a decision reported in (1976) 2 SCC 440 (in the case of Balwan Singh Vs. Prakash Chand and others), the Supreme Court has held:-

"4. It has been argued by Mr. Bindra on behalf of Balwan Singh, hereinafter referred to as the appellant, that the High Court ought not to have entertained the election petition as it was not verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings even though that was the clear requirement of section 83(1)(c) of the Act. We asked the counsel to refer us to any such objection of the appellant in the trial court, and all that he could do was to invite our attention to paragraph 5 of the application dated November 27, 1974. That paragraph however relates to the objection regarding the defective verification of the 15 affidavit accompanying the election petition, which is a different matter. That is in fact the subject matter of Mr. Bindra's second argument, and we shall deal with it separately. The fact remains that an objection regarding the alleged defective verification of the election petition was not taken in the High Court, and it was not a point at issue there. There is therefore no justification for allowing it to be raised here. It is in fact significant that even though an objection was taken on November 27, 1974 in regard to the verification of the affidavit, no such objection was taken about the verification of the main election petition. It was vaguely stated that verification of the affidavit and verification of the Schedule (i.e. Schedule III) were "at variance", but that was a different matter. In so far as the verification of the affidavit is concerned, it would be sufficient to say that that part of it which related to the commission of the corrupt practice which was the subject matter of issue No. 2 was concerned (Schedule III) it was verified in accordance with the prescribed form (No.25 of the Conduct of Election Rules, 1961) as true to the election petitioner's information received from the persons mentioned in it. It was therefore quite in order.

5. It may be mentioned that although the High Court examined the objections of the appellant on two occasions, no objection was taken or pressed for its consideration in regard to the verification of the main election petition, its schedules or the affidavits. An objection was raised in the appellant's application dated November 27, 1974 that the election petition may not be tried because of defective affidavit, but it was rejected by the High Court's order of the same date on the grounds that it was a belated objection, and the allegation of corrupt practice could not be deleted merely because of the defective form of the affidavit. No issue was joined in respect of any such objection and it cannot be allowed to be raised for the first time in this appeal."

In the case on hand, election petitioner (I-respondent) had not alleged corrupt practices, as defined under section 39 of KMC Act, which reads thus:-

39. Corrupt practices.- The following shall be deemed to be corrupt practices for the purposes of this Act, namely:-

(1) 'bribery' as defined in clause (1) of Section 123 of the Representation of the Peoples 17 Act, 1951 (Central Act 43 of 1951) for the time being in force;

(2) 'under influence' as defined in clause (2) of the said section for the time being in force;

(3) the appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate;

(4) the promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate;

(5) the publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election;

(6) the hiring or procuring whether on payment or otherwise of any vehicle by a candidate or his agent or by any other person with the consent of a candidate or his election agent for the conveyance of any voter (other than the candidate himself and the members of his family or his agent) to or from any polling station provided in accordance with the rules made under this Act:

Provided that the hiring of a vehicle by an elector or by several electors at their joint cost for the purpose of conveying him or them to and from any such polling station shall not be deemed to be a corrupt practice under this clause if the vehicle so hired is a vehicle not propelled by mechanical power:

Provided further that the use of any public transport vehicle or any railway carriage by any voter at his own cost for the purpose of going to or coming from any such polling station shall not be deemed to be a corrupt practice under this clause."

15. In a decision reported in 2003 AIR SCW 5569 (in the case of Regu Mahesh alias Regu Maheswar Rao Vs. Rajendra Pratap Bhanj Dev and another), the Supreme Court has held:-

"8. What is "corrupt practice" is set out in S.123.

In terms of S.83(b) wherever corrupt practice is alleged, full particulars of such practice alleged including a full statement as possible of names of the parties alleged to have committed corrupt practice and the date and place of commission of such practice has to be indicated. Though allegation of fraud etc. in obtaining false caste certificate have serious implications, under the Act and particularly as the language of S.123(3) specifies and enumerates they do not per se constitute corrupt practice. The fact that a candidate obtains a certificate that he belonged to and is a member of the Scheduled Caste/Tribe to contest as one belonging to such 20 caste/Tribe, essential and necessary for contesting as a candidate in a Reserved Constituency, at any rate, cannot amount to an appeal to vote or refrain from voting on ground of his caste/Tribe for the reason that what was obligated by the statute upon any one to be entitled to contest in such a reserved constituency cannot become condemnable as "corrupt practice". To attract the vice of the said provisions as amounting to "corrupt practice", independent appeal or canvassing for votes by the candidate or his agent or by another person with the consent of the candidate or the election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate is an essential ingredient. Therefore, the provision requiring an affidavit in the prescribed form (Form-94) may not strictly have any application. But that is not the omega. As S.83(c) itself indicates, the petition shall be signed by the petitioner and verified in the manner laid down in CPC for verification of facts. Order VI, R.15 deals with verification of pleadings and reads as follows:

"Verification of pleadings.- (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed."

9. As sub-rule (2) of R. 15 prescribes that a person making a verification is required to specify by reference to the numbers of paragraphs of the pleadings what he believes on his own knowledge, and what he reveals upon information received and believed to be true. This admittedly has not been done in the present case.

10. In F.A.Sapa and Others. v. Singora and Others. (1991 (3) SCC 375) a three-Judge Bench of this Court specifically dealt with an issue concerning defects in the verification of an election petition as well as of defects in the affidavit accompanying an election petition wherein allegations of corrupt practice are made. After considering the provisions of Ss. 83 and 86 of the Act, as also the requirements of Form 25 prescribed by R. 94-A of the Rules and relevant provisions of the CPC, it was held: (SCC pp.403- 04, para 28) :

"28. From the text of the relevant provisions of the R.P. Act, Rule 94-A and Form 25 as well as O. 6 Rule 15 and O. 19 Rule 3 of the Code and the resume of the case-law discussed above it clearly emerges (i) a defect in the verification, if any, can be cured (ii) it is not essential that the verification clause at the foot of the petition or the affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information believed to be true (iii) if the respondent desires better particulars in regard to such averments or allegations, he may call for the same in which 23 case the petitioner may be required to supply the same and (iv) the defect in the affidavit in the prescribed Form 25 can be cured..."

11. This judgment was followed by a Division Bench of this Court in H.D. Revanna v. G. Puttaswamy Gowda (1999 (2) SCC 217) and by a three- Judge Bench in Dr. Vijay Laxmi Sadho v. Jagdish (2001 (2) SCC 247).

12. It is, therefore, a settled position in law that defect in verification or an affidavit is curable. But further question is what happens when the defect is not cured. There is gulf of difference between a curable defect and a defect continuing in the verification affidavit without any effort being made to cure the defect."

In the case on hand, had the appellant raised this ground before the trial court there would have been opportunity for I-respondent (election petitioner) to cure the defect. Even otherwise, appellant has not established the defective verification or defective affidavit had any bearing on proceedings before court below. The appellant had not raised the ground of maintainability due to improper verification before trial court. Therefore, he cannot be permitted to raise 24 this ground before appellate court. In view of this discussion, I answer point No.1 in negative.

Point No.2:-

16. The learned trial Judge has framed following point for determination:-

"Whether the petition filed under section 33 of the Karnataka Municipal Corporation Act, 1976, deserves to be allowed?"

17. Section 36 of KMC Act, which provides for procedure to be followed by the court reads thus:-

"36. Procedure to be followed by the Court- The procedure provided in the Code of Civil Procedure, 1908, in regard to suits shall be followed by the Court as far asit can be made applicable, in the trial and disposal of an election petition under this Act."

18. The election petitioner (I-respondent herein) and appellant (I-respondent before trial court) were aware of real controversy between them. The appellant was aware that his election was sought to be declared void on the ground that he was not qualified to contest the election for Ward No.56, reserved for Backward Classes Category 'A'. Both parties 25 have led evidence. Therefore, failure of the trial court to frame specific point for determination had not caused prejudice to appellant and it has not affected the decision of election petition on merits. Therefore, I answer point No.2 in negative.

Point No.3:-

19. The appellant has produced and relied upon caste certificate marked as Ex.R.14. This certificate was issued by the Tahsildar (examined as RW2) on 02.12.2009. The relevant portion of caste certificate in vernacular language translated to English language reads thus:-

"Sri S.Shiva Shankar Prasad (appellant herein) belongs to "Hindu Sadaru-Sadaru- Sadumata-Sadakula-Sadar-Sadugowda Sadugowdar- Sadara-Sadari-Sadara Gowda" caste classified under Category II(A) and his annual income is Rs.1,00,000/-."

20. The caste certificate issued to the brother of appellant namely S.G.Nagaraja by the Tahsildar, Bangalore East Taluk is marked as Ex.R.15. The contents of Ex.R.15 as they relate to identification of castes are identical to the contents of 26 Ex.R.14. These caste certificates were issued, pursuant to gazette notification dated 30.03.2002 marked as Ex.R.18. The notification marked as Ex.R.18 was issued by the Government of Karnataka, for the purpose of reservation for entry to education and appointment in State services.

21. It is true, under Rule 2(aa)of KMC Rules, 1977, 'Caste Certificate' is defined as:-

"2(aa). Caste Certificate" means a Caste Certificate or Income and Caste Certificate issued by the Tahsildar of a Revenue Taluk under the Karnatka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointment etc.) Act, 1990;] Rule 2(aa) provides for issuance of caste certificate for the purpose of education, employment and also for election.

The reasons are not too far to seek for this type of procedure.

22. On 16.10.1995, the Housing and Urban Development Department, Government of Karnataka, has issued gazette notification by exercising power under sub-section (1) of section 2 of the KMC Act, by classifying and notifying classes 27 of citizens specified in the Annexure thereto as Backward Classes for the purpose of reservation of seats and offices of Chair persons in City Corporations, City Municipal Councils, Town Municipal Councils and Town Panchayats under Category 'A' and Category 'B'. This notification is marked as Ex.P.2. In respect of citizens belonging to Category 'A', there is no economic criterion (concept of cremy layor), however persons classified under Category 'B', their right to claim reservation is subject to following conditions:-

(i) He/she or either of his/her parents/guardian/his or her spouses is a Class I or class II officer in the service of the Government or holds an equivalent post in public sector undertaking or an employee under a private employer and draws a salary which is not less than of a Class II Officer (Initial stage of the pay scale of Rs.2050-3950);

(ii)    He/she            or         either         of        his/her
        parents/guardian/his           or     her   spouse     is   an

Income Tax Assessee/Wealth Tax Assessee;

(iii) He/she or either of his/her parents/guardian/ his or her spouse is assessed to Sales Tax; 28

(iv) He/she or either of his/her parents/guardian/his or her spouse or both together owns more than 8 hectares of rainfed or dry land or its equivalent."

23. In the notification dated 30.03.2002, issued by Social Welfare Department, Government of Karnataka, providing reservation for education, the classification Scheduled Castes, Scheduled Tribes and backward classes reads thus:-

       Category - I                 :     4%

       Category - II (A)            :     15%

       Category - II (B)            :     4%

       Category - III(A)            :     4%

       Category - III(B)            :     5%

       Scheduled Castes             :     15%

       Scheduled Tribes             :     3%"

A copy of this notification is marked as Ex.R.18.

24. The concept of cremy layer is not applicable to candidates of Scheduled Castes, Scheduled Tribes and Category 'A'. However, the concept of cremy layer is applicable to candidates belonging to category II(A), II(B), III(A) & III(B). Therefore, candidates claiming reservation both for the purpose of education and election unless they 29 are exempted in terms of reservation notification will have to establish that they do not come under cremy layer in terms of said notification.

On a combined reading of notification marked as Ex.P2 and Ex.R.18, it is clear that notification issued for the purpose of reservation for education and election are distinct and considerations for reservation for education and election are different.

25. In the circumstances, the Tahsildar (RW2), who had issued caste certificates as per Ex.R.14 & Ex.R.15 should have specifically stated the caste of appellant and his brother. The caste certificates are omnibus.

26. The next caste certificate dated 13.01.2010, relied upon by appellant is marked as Ex.P.22. It was issued by the Tahsildar, Bangalore East Taluk, on the information furnished by appellant. The Tahsildar had not made an inquiry. This is obvious from the contents of caste certificate (Ex.P.22). The I-part of document contains information furnished by appllant and II-part of document is captioned 30 as "Caste Certificate" issued by the Tahsildar. The appellant had enclosed his affidavit dated 12.01.2010 to obtain caste certificate as per Ex.P.22. It is noticed from the contents of Ex.P.22 that appellant has not only affixed his signature as the candidate, he has also affixed his signature as the father of candidate. RW2 has admitted this fact.

27. RW2-Shivakumar C.L., the then Tahsildar of Bangalore East Taluk, has deposed that public had submitted a complaint alleging that apellant is attempting to obtain false caste certificate. The complaint dated 25.01.2010 is marked as Ex.P.24, pursuant to Ex.P.24 concerned Revenue Inspector held an inquiry and submitted a report as per Ex.P.26. The report submitted as per Ex.P.26 is not based on independent inquiry, on the other hand, it is based on school records of the younger brother of appellant. This report was prepared on 28.01.2010 and it was received in the office of Tahsildar on 16.02.2010.

28. At this juncture, it is relevant to state that caste certificate as per Ex.P.22 was issued on 13.01.2010. 31 Therefore, it can safely be held that caste certificates marked as Ex.R.14 & Ex.R.15 were issued in violation of the provisions of Section 4-A of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointments, etc.) Act, 1990, which read thus:-

1[4-A. Issue of Caste Certificate and Income and Caste Certificate.- (1) Any candidate or his parent or guardian belonging to the Scheduled Castes or the Scheduled Tribes may, in order to claim benefit of reservation under Section 4, either for appointment to any service or post or for admission to a course of study in a University or any educational institution make an application to the Tahsildar in such form and in such manner as may be prescribed for issue of a Caste Certificate.

(2) Any candidate or his parent or guardian belonging to Other Backward Classes may, in order to claim benefit of reservation under Section 4, either for appointment to any service or post or for admission to a course of study in University or any Educational Institution, make an application to the Tahsildar in such form and in such manner as may be 32 prescribed for issue of an Income and Caste Certificate.

(3) The Tahsildar may on receipt of an application under sub-section (1) or (2), and after holding such enquiry as he deems fit and satisfying himself regarding the genuineness of the claim made by applicant pass an order issuing a caste certificate or, as the case may be, an income and caste certificate in such form as may be prescribed, or rejecting the application.

(4) The Tahsildar shall follow such procedure as may be prescribed before passing the order under sub-section (3).

(5) The burden of proving that the candidate or his parent or guardian belongs to Scheduled Castes, Scheduled Tribes or Other Backward Classes shall be on the applicant."

29. The provisions of Secton 4-A of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointments, etc.) Act, 1990 do not exclude the jurisdiction of civil court. 33

30. In a decision reported in AIR 1969 SC 78 (in the case of Dhulabhai etc., Vs. State of Madhya Pradesh and another), the Supreme Court has held:-

"(1) Where the statute gives a finality to the orders of the special tribunals the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability 34 and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act.

Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.

(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.

(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit, does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the scheme of the particular Act must be examined because it is a relevant enquiry.

(7) An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply."

31. In a decision reported in (2005) 2 SCC 244 (in the case of Sobha Hymavathi Devi Vs. Setti Gangadhara Swamy and Others), the Supreme Court has held:-

"11. What remains is the argument based on the certificates allegedly issued under the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificate Act, 1993. The High Court has not accepted the certificates as binding for the reason that the evidence showed that the certificates were issued based on the influence exercised by the appellant as a member of the Legislative Assembly, one after another, immediately on an application being 36 made and without any due or proper enquiry. We are impressed by the reasons given by the High Court for not acting on these certificates. That apart, a reference to Section 3 of the Act would indicate that a certificate thereunder, insofar as it relates to elections, is confined in its validity to elections to local authorities and cooperative institutions. It does not embrace an election to the Legislative Assembly or to the Parliament. Therefore, in any view of the matter, it cannot be said that the High Court, exercising jurisdiction under the Representation of the People Act in an election petition is precluded from going into the question of status of a candidate or proceeding to make an independent inquiry into that question in spite of the production of a certificate under the Act. At best, such a certificate could be used in evidence and its evidentiary value will have to be assessed in the light of the other evidence let in, in an election petition. Therefore, nothing turns on the factum of a certificate being issued by the authority concerned under the Act of 1993. We are also satisfied as the High Court was satisfied, that no proper inquiry preceded the issuance of such a certificate and such a certificate was issued merely on the say-so of the 37 appellant. We have, therefore, no hesitation in overruling this argument raised on behalf of the appellant."

32. In a decision reported in MANU/AP/0446/2003 (in the case of Durga Singh Vs. M.Lakshman Yadav and others), relied upon by the learned senior counsel for appellant, the High Court of Andhra Pradesh has held:-

"25. In this context, it needs to be observed that the A.P.State Legislature has enacted the State Act of 16 of 1993 to regulate the issue of Community Certificate relating to persons belonging to Scheduled Castes, Scheduled Tribes and Backward Classes and matters connected thereof or incidental thereto.

Section 5 of the State Act provides for cancellation of the certificates. The proceedings for cancellation can be initiated either suo motu by the competent authority or on a written application by any person. Section 6 places the burden on the person claiming the social status. In the event of the refusal to issue a Caste Certificate under Section 5 of the State Act, an appeal is provided under Section 7. A further revision is provided to the Government under Section 8. The jurisdiction of the Civil Court is 38 barred under Section 17. Section 19 confers overriding effect on the Act in the event of an inconsistency with any other law for the time being in force. Under Section 21, the Certificate issued by any competent authority before the commencement of the Act, is conferred legitimacy, unless it is cancelled under the provisions of the State Act."

(underlining supplied by me)

33. The decisions reported in CDJ 2012 BHC 319 (in the case of Rajesh Bharat Latkar Adult Vs. State of Maharashtra, Through the Department & Others) and (2011) 10 SCC 357 (in the case of Collector, Bilaspur Vs. Ajit P.K.Jogi & Others) relied upon by the learned senior counsel for appellant have no bearing on the issue involved in the instant case. Therefore, the trial court has jurisdiction to consider the validity of caste certificate, in the light of other evidence adduced by parties, point No.3 is answered in affirmative.

34. The next point for determination is:-

"Whether election petitioner (I-respondent herein) has proved that appellant (successful 39 candidate) does not belong to "Hindu Sadru/Sadaru" which are classified as Backward classes category 'A' in terms of gazette notification dated 16.10.1995, marked as Ex.P.2?"

35. In this notification issued for reservation of seats and offices of Chairpersons in City Corporations, City Municipal Concils, Town Municipal Councils and Town Panchayats, the entry relevant for the purpose of instant case is marked as Ex.P.2(a) and it is found at Sl.No.177, the same reads thus:-

"Hindu Sadru/Sadaru"

36. The learned senior counsel for appellant, relying on a decision of the Supreme Court, reported in AIR 1968 SC 929 (in the case of Laxman Siddappa Naik Vs. Kattimani Chandappa Jampanna & others) would submit that burden of proof lies on election petitioner (I-respondent herein) to prove that appellant does not belong to "Hindu Sadru/Sadaru and that he is "Sadari Gowda".

37. The learned senior counsel for appellant submits that election petitioner (I-respondent herein) apart from marking some documents has not adduced evidence to prove 40 characteristics such as customs of marriages, births, deaths, dress, occupation and like which distinguish a "Sadari Gowda" from "Hindu Sadru/Sadaru".

38. In the decision reported in AIR 1968 SC 929 (in the case of Laxman Siddappa Naik Vs. Kattimani Chandappa Jampanna & others), the Supreme Court has held that election petitioner could have proved that successful candidate was a 'Bedar" by caste.

The controversy in the aforestated case is whether "Nayaka" caste mentioned in the order and "Bedar" caste (not found in order) in the State of Karnataka are one and the same. The successful candidate had contended "Nayaks" are also called as "Bedars". Therefore, the Supreme Court has held that election petitioner should have led evidence to prove characteristics such as customs of marriages, births, deaths, worship, occupaion and the like which distinguish a "Bedar" from "Nayaka".

In the case on hand, election petitioner (I-respondent herein) has produced attested school admission register 41 extract (Ex.P.15), attested copy of application for admission to High School (Ex.P.20) and admission extracts of appellant of V.V.Puram College of Arts and Commerce at Bangalore (Ex.P.20 and Ex.P.21) to prove that appellant is a native of Andhra Pradesh and he belongs to "Sadri Gowda" caste, therefore, appellant cannot claim that he belongs to "Hindu Sadru/Sadaru" caste to claim benefit of reservation.

39. In the documents marked as Ex.P.15, Ex.P.16 and Ex.P.20, which relate to study particulars of appellant in Andhra Pradesh, his caste is shown as "Sadari Gowda" and his name is shown as "Sadhari Gowda Sivasankara Prasad". However, in Ex.P.20 and Ex.P.21, which relate to study particulars of appellant in V.V.Puram College at Bangalore, his caste is shown as "Sadara" and his name is shown as "S.Shivashankar Prasad".

40. The learned counsel for appellant submits that these documents cannot be read as per se evidence, more particularly when the authors/custodians of documents were not examined.

41. This submission of learned senior counsel for appellant has to be considered with reference to statement of objections filed by appellant before the trial court and oral evidence adduced by appellant.

42. In the objections statement filed by appellant before the trial court, he has stated:-

"The first respondent is a Member of Sadaru community which is called with different nomenclatures and suffixes such as Sadaru, Hindu Sadaru, Sadu Matha, Sad Kula, Sadar, Sadu Gowda, Sadu Gowder, Sadara, Sadari, Sadara Gowda. The Government of Karnataka has issued Notification notifying different castes under different categories based on the report of the Karnataka State Commission for backward classes. The Government has issued Order No.SWD.225.BCA.2000 dated 30.03.2002 showing different names with which the Sadar Community is known and recognised it as Category-II(A) at Serial No.89. A photo true copy of the Notification dated 30.03.2002 is herewith produced as per ANNEXURE-R-1.

In the report submitted by the said Revenue Inspector it is clearly mentioned that 43 the first respondent is basically from Andhra Pradesh and that he is settled in Bangalore for over 25 Years. The same is produced by the petitioner as per ANNEXURE-R-2. When the matter stood thus it is highly unfortunate that the petitioner an unsuccessful candidate has made most uncharitable allegation stating that the petitioner has suppressed his place of birth.

Even if the petitioner was born in M.Venkatapura, which is one kilometer away from the border of Karnataka, it would not change the caste of the first respondent nor it takes away the constitutional and statutory rights conferred on his community i.e., Sadaru. The pleadings regarding the elementary education, prosecution of studies in the High School as shown in Para-6 is not in dispute. If the school authorities have mentioned a suffix with the case of the first respondent showing his caste as SADRI GOWDA it would not make a Sadaru person as a Vokkaliga Gowda or Lingayath Gouda."

43. The I-respondent (election petitioner) has produced Study Certificate marked as Ex.P.14 issued by 44 M.P.Elementary School in M.Venkatapuram, Lepakshi Mandal, Ananthapur District, Andhra Pradesh State.

In this study cerificate, his caste is shown as "Sadari Gowda", though study certificate does not provide any column to indicate the caste of student.

44. The next document is the Form of Caste Certificate of the father of appellant, issued by the Tahsildar of Lepakshi Mandal, Ananthpur District, Andhra Pradesh State. This document is marked as Ex.R.2.

In this document, the caste of father of appellant is shown as "Sadari" - Backward Class. This document does not bear the date of issue. In this document, there is reference to G.O.Ms.No.1973 Education dated 23.09.1970 as amended from time (As amended by the Scheduled Caste/Scheduled Tribes lists (Modification) Order 1956, the Scheduled Castes and Scheduled Tribes Order (Amendment Act, 1976).

45. At this juncture, it is relevant to refer to Ex.R.13, a notification of socially and educationally backward classes in the State of Andhra Pradesh.

At Sl.No.35 of Notification (Ex.R.13), entry relevant for the instant case reads thus:-

35. Inclusion of Caste G.O.Ms.No.11, BCW (C2) Dept, dated:

Sadara / Sadaru (Only 09.04.2008 Ananthapur District)

46. Therefore, this undated Form of Caste Certificate of the father of appellant marked as Ex.R.2, does not bear true testimony of his caste or backwardness of caste. Similar is the fate of caste certificate of Prabhavathamma W/o. K.Aswathappa.

47. The documents marked as Ex.R.5 to Ex.R.9 are the true copies of Transfer Certificates of daughters of appellant namely Kumari P.Poornima and Kumari P.Pooja Prasad. In these documents, the caste of Kumari P.Poornima and Kumari P.Pooja Prasad is shown as "Sadara". 46

48. The law is fairly well settled that caste status of a descendant can be determined by caste status of his ascendent, however the caste status of ascendent cannot be determined by caste status of a descendent. The appellant had furnished this information under misconception that "Sadari Gowda" caste is synonymous to "Sadaru" caste.

The appellant has deposed that he was born in M.Venkatapuram Village, Lepakshi Mandal, Ananthapur District, Andhra Pradesh State and studied up to intermediate in his native Taluk of Andhra Pradesh.

49. The learned senior counsel for appellant has relied on Ex.R.10 to contend, in the year 1981 (on 21.07.1981) when the appellant was admitted to II year B.A. in V.V.Puram College of Arts and Commerce at Bangalore, his caste has been recorded as "Sadara". The learned senior counsel for appellant would submit that this document cannot be disbelieved as this document has come into existence at undisputed point of time. The learned senior counsel for 47 appellant would submit that the learned trial Judge should not have ignored this document.

50. In order to appreciate this submission, it is necessary to appreciate evidence of appellant. During cross- examination, appellant has admitted when he came to Bangalore and joined V.V.Puram College for B.A.graduation, he had given his permanent address as "M.Venkatapuram, Taluk: Hindupur, District: Ananthpur, Andhra Pradesh State and his residential address as "Hindu Sadara vidyabhivruddi Sangh" West of Chord Road, Bangalore. Therefore, information furnished by appellant when he was admitted to V.V.Puram College does not reflect the truth.

51. The appellant has relied on notification dated 30.03.2002 (Ex.R.18) to contend, that in the aforestated notification at entry No.89,"HinduSadaru:Sadaru:Sadumatha:Sadakula:Sadar:Sadu gowda:Sadugowdar:Sadara:Sadari:Sadaragowda" are shown as equivalents/synonyms and they are included under category "II(A) of Backward Classes.

52. In a decision reported in (2010) 7 SCC 202 (in the case of K.Krishna Murthy (Dr.) and Others Vs. Union of India and Another), the Supreme Court has held:-

"51. Before addressing the contentious issues, it is necessary to examine the overarching considerations behind the provisions for reservations in elected local bodies. At the outset, we are in agreement with Shri Rajeev Dhavan's suggestion that the principles that have been evolved for conferring the reservation benefits contemplated by Articles 15(4) and 16(4) cannot be mechanically applied in the context of reservations enabled by Article 243-D and 243-T. In this respect, we endorse the proposition that Article 243-D and 243-T form a distinct and independent constitutional basis for reservations in local self-government institutions, the nature and purpose of which is different from the reservation policies designed to improve access to higher education and public employment, as contemplated under Article 15(4) and 16(4) respectively.

82. In view of the above, our conclusions are:-

(i) The nature and purpose of reservations in the context of local self-government is considerably different from that of higher education and public employment. In this sense, Articles 243-D and Article 243-T form a distinct and independent constitutional basis for affirmative action and the principles that have been evolved in relation to the reservation policies enabled by Articles 15(4) and 16(4) cannot be readily applied in the context of local self-government. Even when made, they need not be for a period corresponding to the period of reservation for the purposes of Articles 15(4) and 16(4), but can be much shorter.

(ii) Article 243-D(6) and Article 243-T(6) are constitutionally valid since they are in the nature of provisions which merely enable State Legislatures to reserve seats and chairperson posts in favour of backward classes. Concerns about disproportionate reservations should be raised by way of specific challenges against the State Legislations.

(iii) We are not in a position to examine the claims about overbreadth in the quantum of reservations provided for OBCs under the impugned State Legislations since there is no 50 contemporaneous empirical data. The onus is on the executive to conduct a rigorous investigation into the patterns of backwardness that act as barriers to political participation which are indeed quite different from the patterns of disadvantages in the matter of access to education and employment. As we have considered and decided only the constitutional validity of Articles 243-D(6) and 243-T(6), it will be open to the petitioners or any aggrieved party to challenge any State legislation enacted in pursuance of the said constitutional provisions before the High Court. We are of the view that the identification of "backward classes" under Article 243-D(6) and Article 243-T(6) should be distinct from the identification of SEBCs for the purpose of Article 15(4) and that of backward classes for the purpose of Article 16(4).

(iv) The upper ceiling of 50% vertical reservations in favour of SCs/STs/OBCs should not be breached in the context of local self-

government. Exceptions can only be made in order to safeguard the interests of Scheduled Tribes in the matter of their representation in panchayats located in the Scheduled Areas. 51

(v) The reservation of chairperson posts in the manner contemplated by Article 243-D(4) and 243-T(4) is constitutionally valid. These chairperson posts cannot be equated with solitary posts in the context of public employment."

Therefore, appellant cannot take shelter under the notification (Ex.R.18) issued for the purpose of reservation for education and employment.

53. The learned senior counsel for appellant, relying on the judgment reported in ILR 1994 KAR 1270 (in the case of Virupakashappa Vs. Hanumantha) would submit that "Sadaru" and "Sadari Gowda" are synonymous, therefore, caste "Sadaru or Sadari Gowda" can be treated as Backward Classes Category 'A'.

In this decision, the Government of Karnataka had issued an order on 27.03.1980, showing list of Scheduled Caste referred to at Sl.No.23 as "Bhovi" and equivalent words or synonyms as "Od, Odde, Vaddar, Waddar and Woddar". However, in the Government Order itself it is made clear that 52 this list was not intended and shall not be treated as an alteration or amendment of the Schedule to the Presidential Order, specifying Scheduled Castes and Scheduled Tribes in relation to State of Karnataka.

In the case on hand, the gazette notification dated 16.10.1995 (Ex.P.2) issued by the Government of Karnataka for the purpose of reservation of seats and offices of Mayor/Deputy Mayor of City Corporations, President/Vice- President of Town Municipal Councils/City Municipal Councils/Town Panchayats, there are no synonyms or equivalents to "Hindu Sadru/Sadaru" notified at entry No.177.

54. The learned senior counsel for I-respondent has relied on a decision reported in (2001) 1 SCC 4 (in the case of State of Maharashtra Vs. Milind and Others), to contend that it is not open to State Governments or courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under clause(1) of Articles 342.

In the decision reported in (2001) 1 SCC 4 (in the case of State of Maharashtra Vs. Milind and Others), the Supreme Court has held:-

"36. In the light of what is stated above, the following positions emerge:-

1. It is not at all permissible to hold any inquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the entry concerned in the Constitution (Scheduled Tribes) Order, 1950.

2. The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it.

3. A notification issued under Clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament.

In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes 54 issued under clause (1) of Article 342 only the Parliament by law and by no other authority.

4. It is not open to State Governments or courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under clause (1) of Article 342.

5. Decisions of the Division Benches of this Court in Bhaiya Ram Munda v. Anirudh Patar1 and Dina v. Narain Singh6, did not lay down law correctly in stating that the inquiry was permissible and the evidence was admissible within the limitations indicated for the purpose of showing what an entry in the Presidential Order was intended to be. As stated in position (1) above no inquiry at all is permissible and no evidence can be let in, in the matter."

55. The learned senior counsel for appellant, relying on a decision reported in (2009) 15 SCC 458 (in the case of Subhash Chandra and Another Vs. Delhi Subordinate Services Selection Board and Others and connected matters) would submit that for identificaiton of backward classes, it is necessary to undertake a study in a particular State as to 55 whether migrants are required to be treated as backward classes. The learned senior counsel for appellant would submit that appellant having migrated and settled in Bangalore about three decades back can claim the status of "Sadaru" caste when there is nothing to distinguish between "Sadari" caste in Andhra Pradesh and "Sadaru" caste in Karnataka.

56. The learned senior counsel for I-respondent, relying on a decision reported in (2001) 6 SCC 571 (in the case of M.C.D. Vs. Veena and Others) would submit that classification of Backward caste in a given State depends upon nature and extent of disadvantages and social hardships suffered by the caste or group in that State, however that may not be so in the State to which a person migrates.

57. The learned senior counsel for I-respondent would further submit that a migrant cannot claim caste status vis- à-vis backwardness even if there is a synonymous caste in the migrated State.

58. In the decision reported in (2001) 6 SCC 571 (in the case of M.C.D. Vs. Veena and Others), the Supreme Court has held:-

"6. Castes or groups are specified in relation to a given State or Union Territory, which obviously means that such caste would include caste belonging to an OBC group in relation to that State or Union Territory for which it is specified. The matters that are to be taken into consideration for specifying a particular caste in a particular group belonging to OBCs would depend on the nature and extent of disadvantages and social hardships suffered by that caste or group in that State. However, it may not be so in another State to which a person belonging thereto goes by migration. It may also be that a caste belonging to the same nomenclature is specified in two States but the considerations on the basis of which they had been specified may be totally different. So the degree of disadvantages of various elements which constitute the data for specification may also be entirely different. Thus, merely because a given caste is specified in one State as belonging to OBCs does not necessarily mean that if there be another group belonging to the same 57 nomenclature in another State, a person belonging to that group is entitled to the rights, privileges and benefits admissible to the members of that caste. These aspects have to be borne in mind in interpreting the provisions of the Constitution with reference to application of reservation to OBCs."

Therefore, the contention of learned senior counsel for appellant cannot be accepted.

59. The learned senior counsel for appellant would submit that appellant had migrated and settled in Bangalore about three decades back. Therefore, there is no reason to deny the benefit of reservation as he belongs to "Sadaru" caste, which in fact is a backward caste not only in Andhra Pradesh, but also in the migrated State.

60. The law is fairly well settled, in the matter of reservation, the scheme of reservation for backward classes have direct bearing on population of backward classes. In the normal circumstances, caste of a person is determined by his birth, however, when reservation, either for education or election is claimed by a person, on the basis of caste, the 58 caste alone will not be a decisive factor. It depends upon native place/place of residence of parents, State of origin, migrated State and also economic status of parents, in terms of statutory notifications holding field.

61. In view of the above discussion, Point No.4 is answered in affirmative. The learned trial Judge, has arrived at right conclusion though all the points have not been elaborately dealt with. The records do not bear an indication that all the contentions urged before this court had been urged before the trial court. Therefore, the impugned judgment does not call for interference.

62. In the result, I pass the following:-

ORDER The appeal is dismissed.

Sd/-

JUDGE SNN

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Karnataka High Court