Judgement

HIDAYATULLAH, J.:- This is an appeal under Section 116-A of the Representation of the People Act, 1951 against the judgment and order, July 24, 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 :-

1. Shri Laxman Siddappa Naik 17,522

2. Shri Parasappa Hanmantha Karaing 7,044

3. Shri Patel Shivangowd Malgowd 6,996

4. Shri Kattimani Chandappa Jampanna 620

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.

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.

3. Under Article 332 of the Constitution seats are reserved for Scheduled Tribes in the Legislative Assemblies of the States and under Article 342 of the Constitution the President has, with respect to the States, after consultation with the Governors, by public notification specified the tribal communities which are deemed to be the Scheduled Tribes in relation to a particular State. Parliament has power by law to include in or exclude from the list of Scheduled Tribes specified in the President s order any tribe or tribal community or part of or group within any tribe or tribal community. The Presidential Order was modified in 1956 and 1960. The District in which Gokak is situated was formerly part of the Bombay State. 24 tribes were named in the original Presidential Order. In 1956 this part was incorporated in the State of Mysore. In 1960 the Bombay State was bifurcated into two. As a result the Presidential Order was suitably amended. Para 2 of Part VIII now refers to the area formerly in Bombay State which now is a part of the Mysore State. This para now shows 19 tribes instead of 24. An identical list of tribes is also shown in certain districts of Maharashtra and Rajasthan. Formerly the entry read only "Naikda or Nayaka" but now it reads "Naikda or Nayaka including Cholivala Nayaka, Kapadia Nayaka, Mota Nayaka and Nana Nayaka." The "Nayaka" also means a chieftain and the word "Naikda" means a petty Nayaka, but that obviously is not intended to be its meaning. These words definitely refer to tribal