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2008 DIGILAW 762 (ORI)

Duryodhan Rana v. Jhima Mahura

2008-08-28

SANJU PANDA

body2008
JUDGMENT S. PANDA, J. — Since common questions involved in all these writ petitions, they were heard together and are being disposed of by this common order. 2. For convenience facts of one case is taken up. 3. Challenge has been made in this writ petition to the order dated 14th December, 2000 passed by the Collector, Bolangir in OLR Revision Nos.12 & 13 of 2000 rejecting the revisions filed by the petitioner. 4. The facts of the case are as follows : Opposite party No.1 who is the wife of one Pujhari Mahura filed OLR Case Nos.8/57, 8/A-39 and 8/59 of 1981 and those cases were dropped by the then Revenue Officer, Titilagarh by order dated 26.4.1982. While the matter stood thus, the present oppo¬site party No.1 again filed OLR Revenue Case Nos.8/23, 8/24, 8/25 and 8/26 of 1990. In the said proceedings, petitioner appeared and filed his show cause stating therein that the said proceed¬ings were res judicata as earlier the husband of the present opposite party No. filed similar OLR Cases which were dropped on 26.4.1982. He also stated that “Mahura” Caste is not a Scheduled Caste as per the presidential notification. The Sub-Collector heard the matter. In support of the plea of the petitioner, he filed registered sale deed showing the name of the husband of present opposite party No.1 as Pujhari Mahura”. In the sale deed, the vendor specifically stated that he did not belong to Sched¬uled Caste or Scheduled Tribe. The certified copy of the order dated 3.11.1978 passed by the Tahasildar, Titilagarh in OEA Case No.563 of 1976 showed the husband of the present opposite party No.1 as “Pujhari Mahura”, the rent schedule of the land in dispute showed the name of the husband of opposite party No.1 as “Pujhari Mahura”, the record-of-right showed the name of the husband of opposite party No.1 as “Pujhari Mahura”, and the voter list of 1999 showed the caste of opposite party No.1 as “Mahura”. The Sub-Collector without appreciating the matter in its proper perspective arbitrarily allowed the case on 4.1.1993 with a finding that the “Mahura” is a sub-caste of “Mahar” which belongs to Scheduled Caste within the meaning of the constitutional order and the proceeding was not barred by law of res judicata. The Sub-Collector without appreciating the matter in its proper perspective arbitrarily allowed the case on 4.1.1993 with a finding that the “Mahura” is a sub-caste of “Mahar” which belongs to Scheduled Caste within the meaning of the constitutional order and the proceeding was not barred by law of res judicata. Being aggrieved by the said order, the present petitioner filed OLR Appeal No.2 of 1998 before the Addl.District Magistrate, Bolangir who after hearing the parties by order dated 18.7.1994 set aside the order of the Sub-Collector and remanded the matter to the Sub-Collector for fresh disposal after due enquiry. On remand, the Sub-Collector again heard the matter and by his order dated 27.11.1997 allowed the said case holding that the sub-caste “Mahura” was same as “Mahar” and the proceeding was not barred by law of res judicata. Against the said order dated 27.11.1997, the present petitioner preferred OLR Appeal No.22 of 1997 before the Addl. District Magistrate, Bolangir who by his order dated 22.4.2000 held that the proceeding was not barred by law of res judicata and the sub-caste “Mahura” was same as “Mahar” which belonged to Scheduled Caste within the meaning of Constitutional order. Against the said order of the appellate authority, the present petitioner filed OLR Revision Nos.12 & 13 of 2000 before the Collector, Bolangir. The Collector by order dated 14.12.2000, without appreciating the matter in its proper perspective and without considering the materials, dismissed the revisions con¬firming the order of the Addl. District Magistrate. Against the said order of the Collector, Bolangir the petitioner has filed this writ petition. 5. The learned counsel appearing for the petitioners submitted that the husband of opposite party No.1 filed OLR Case under Section 23 of the OLR Act for the same cause of action against the same parties and as the disputed property was the same, those OLR cases were dropped by order dated 26.4.1982 after hearing both the parties and in view of the fact that the present proceeding involves the same issue between the same parties regarding the same properties, the earlier decision will operate as res judicata and the authorities did not consider the said fact in its proper perspective. He further submitted that as the “Mahura” caste has been notified as Scheduled Caste in the Presidential Notification, opposite party No.1 is not entitled to any relief under Section 23 of the OLR Act. He further submitted that as the “Mahura” caste has been notified as Scheduled Caste in the Presidential Notification, opposite party No.1 is not entitled to any relief under Section 23 of the OLR Act. Therefore, the im¬pugned orders passed by the OLR authorities are liable to be quashed. 6. The learned counsel appearing for opposite party No.1 submitted that all the authorities enquired into the matter and after due enquiry, they came to a conclusion that “Mahura” is a Scheduled Caste and therefore, the impugned orders need not be interfered with. 7. On a perusal of the impugned orders, it appears that the revisional authority relied on the Sabik record-of-right which shows that the husband of opposite party No.1 belonged to “Mahura” and it was a sub-caste of caste “Mahura” and not “Mahar” as per the Presidential Notification of the year 1950 in respect of Scheduled Castes and those findings were reached without basing on any material on record and the OLR Authorities did not give any finding regarding the voters list filed by the petition¬er where opposite party No.1 was named as “Mahura” and not “Mahar”. In the record-of-right, Annexure-4, the name of the husband of opposite party No.1 was recorded as “Pujhari Mahura”. In OEA Case No.563/75 disposed of on 3.11.1978 the name of the person on whom the land was settled was recorded as “Pujhari Mahura” who is the husband of opposite party No.1 and the person who transferred the land was “Pujhari Mahura”. He also stated in the sale deed that he did not belong to Scheduled Castes or Scheduled Tribes. Therefore, there is no iota of evidence to come to a conclusion that “Pujhari Mahura” who was the recorded owner belonged to Scheduled Castes. The learned counsel for the peti¬tioners in support of his case relied on a decision of the Su¬preme Court in the case of State of Maharashtra v. Milind and others reported in AIR 2001 SC 393 wherein it has been held as follows : “1. It is not at all permissible to hold any inquiry or led in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal communi¬ty is included in the general name even though it is not specifi¬cally mentioned in the entry concerned Entry in the Constitution (Scheduled Tribes) Order, 1950. 2. 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 spe¬cifically 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 the 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 issued under Clauses (1) of Article 342 only by the Parliament by law and by no other authority. 4. It is not open to State Governments or Courts or tribu¬nals 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.” 8. Therefore, for establishing that a particular caste or tribe is a Scheduled Caste or Scheduled Tribe for the purpose of Constitution, even though it is not specifically mentioned as such in the Presidential Order, the power is not vested with any authority. It is not possible to say that the State or any other authorities or Courts or Tribunals are vested with any power to modify or vary the said orders. Since that was the consistent view of the apex Court, the finding given by the OLR authorities that the caste “Mahura’ is same as “Mahar” is not sustainable. The OLR authorities approached the matter in an improper manner though they had no authority to give such finding. 9. So far as the principle of res judicata is concerned, this Court in the case of Mangulu Jal and others v. Bhagaban Rai and others reported in XLI (1975) CLT 526 (FB) has held that the Legislature may entrust the special tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exist as well as the jurisdiction, on finding that it does exist, to proceed further or to do some¬thing more. The order of Tribunal is final, if no appeal is preferred against the same. 10. The order of Tribunal is final, if no appeal is preferred against the same. 10. From the above, this Court summed up the conclusion that the revenue authority has got exclusive jurisdiction to determine the factum of right of the person to get back the possession of the land under Section 23 of the Act and as such by order dated 26.4.1982 passed in OLR Revenue Case Nos.8/23, 8/24, 8/25 and 8/26 of 1990 the Revenue Officer exercising the juris¬diction vested with him determined that “Pujhari Mahura” did not belong to Scheduled Caste and as no appeal was filed against the said order of the Revenue Officer that became final. As the remedy of appeal as provided by the Statute was not taken, the said decision operates as constructive res judicata in the subse¬quent proceedings under the Act between the parties. 11. In view of the above, the impugned order dated 14th December, 2000 passed by the Collector, Bolangir in OLR Revision Nos.12 & 13 of 2000 is quashed. 12. The writ petitions are allowed accordingly. No costs. Petitions allowed accordingly.