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2011 DIGILAW 192 (ORI)

K. Ravanamma v. State of Orissa

2011-03-25

SANJU PANDA

body2011
JUDGMENT S. PANDA, J. — The petitioner has filed this writ application challenging the orders passed by the OLR authorities on an application filed by the petitioner under Section 23 of the Orissa Land Reforms Act (in short, “the Act”). 2.The facts, leading to the present case, are as follows: Chandravati Devi @ Chandravati Dasiani, opposite party no.5, filed Misc. Case No. 159 of 1980 under Section 23 of the Act before the Sub-Divisional Officer, Berhampur for restoration of the disputed house stating therein that she belongs to Scheduled Caste by virtue of being Oriya by caste and an agricultural labourer by occupation. She purchased the house site out of her Streedhan funds and constructed the schedule house for her residential purpose. Kelli Ramanamma had a house with a thatched roof in Khalasi Street. Chandravati being in need of money to pay the mortgage dues, approached K. Ramanamma, the present petitioner for a loan who wanted to exploit the situation. The term of advancement of loan was to exchange her thatched house with the applicant’s house for Rs.4400/- and gave Chandravati only Rs.600/- at the time of registration on the date of execution of the sale deed in respect of the schedule house. She further alleged that the petitioner was aware about the requirement of prior permission from the authorities to purchase the land but she suppressed the said fact. Chandravati being an illiterate woman did not know about the requirement of prior permission. She exchanged the house worth more than Rs.30,000/- by registered sale deed dated 19.2.1972. As the property belongs to a Scheduled Caste person and is not alienable without prior permission, the sale in favour of the present petitioner-K. Ramanamma was void and inoperative. Hence, she sent a notice to K. Ramanamma on 23.5.1980 for restoration of the house. As the house was not restored, she filed an application with the above prayer. 3.During pendency of the application, Chandravati obtained a caste certificate on 3.10.1981 from the Sub-Divisional Officer, Berhampur showing her caste as “Bauri” which has been included in the list of Scheduled Castes declared by the presidential order. The said certificate was obtained without any inquiry or verifying the previous ROR, etc. 3.During pendency of the application, Chandravati obtained a caste certificate on 3.10.1981 from the Sub-Divisional Officer, Berhampur showing her caste as “Bauri” which has been included in the list of Scheduled Castes declared by the presidential order. The said certificate was obtained without any inquiry or verifying the previous ROR, etc. The application filed by Chandravati, present opposite party no.5 was rejected by the Sub-Divisional Officer on the ground that Section 22 of the Act was not applicable to the house and land in question inasmuch as it is situated within the Berhampur Municipality. It was observed that during pendency of the said case she cunningly obtained the said certificate showing herself to be “Bauri” by caste. Therefore, she was not entitled to get any relief. Being aggrieved by the said order, she filed OLR Appeal No,. 30 of 1981 before the Addl. District Magistrate, Ganjam who remanded the appeal to the Sub-Divisional Officer on 16.9.1982 with a direction to determine whether she belongs to Scheduled Caste and whether the house was used for the purpose of agriculture or ancillary to agriculture. 4.After remand, the SDO disposed of the matter on 21.6.1986 on the finding that the house is situated in a congested street of Berhampur city and was neither fit for use for the purpose of agriculture nor was the same being used for the purpose of ancillary to agriculture. However, he observed that since the competent authorities issued caste certificate on 3.10.1981, he had nothing to do in the matter. Against the said order, she filed OLR Appeal No. 18 of 1986 before the A.D.M., Ganjam, Berhampur who again remanded to the SDO for fresh enquiry. 5.Again, on remand, the SDO confirmed his earlier order dated 21.6.1986 on 22.8.1990 under Annexure-9. Against the same, opposite party no.5 carried an appeal to the A.D.M. vide OLR Appeal No. 10 of 1990 which was allowed on 24.8.1993 with the finding that the exchange of land was in contravention of Section 22 of the Act and was, therefore, illegal. Therefore, the A.D.M. directed for restoration of possession of the said house with the land to opposite party no. 5 under Annexure-10. He held that since Chandrabati-the appellant maintained hens and cows in the house in question, the same was ancillary to agriculture. Therefore, the A.D.M. directed for restoration of possession of the said house with the land to opposite party no. 5 under Annexure-10. He held that since Chandrabati-the appellant maintained hens and cows in the house in question, the same was ancillary to agriculture. Being aggrieved by the said order passed by the A.D.M., Berhampur, petitioner filed OLR Case No. 3 of 1993 before the Collector & District Magistrate, Ganjam, opposite party No.2. The revisional authority dismissed the revision on 29.6.1996 with a finding that the land was not being used for the purpose of agriculture or for the purpose of ancillary to agriculture nor hens and cows were maintained in the suit house. Challenging the orders passed by the appellate authority as well as the revisional authority, the petitioner has filed the present writ petition. 6.Learned counsel for the petitioner submitted that in the show cause filed before the OLR Authorities, the petitioner specifically challenged the caste of Chandrabati, opposite party no.5 who herself declared and admitted that she belongs to General Caste being “Khandayat” as described in the registered sale deed executed on 19.2.1972 which was challenged by opposite party no.5 before the OLR authorities as null and void and prayed for restoration of the possession. In the said sale deed, she described all the above facts at the time of execution of the sale deed. Further she has also described her as Oriya in the application filed by her under Section 23 of the Act. The caste “Oriya” was not included as a Scheduled Caste in the presidential notification so far as Orissa State is concerned. Accordingly, the Sub-Divisional Officer rightly rejected her application. During pendency of the said application, on 3.10.1981 she obtained the caste certificate under the Orissa Miscellaneous Certificate Rules (in short, the Rules”). Therefore, the said certificate is not the sole basis to determine the caste of opposite party no.5. Hence, the Sub-Divisional Officer rightly rejected her application. So, the appellate authority as well as the revisional authority should not have reversed the same. She had also taken the house of the petitioner in exchange of the sale deed dated 9.2.1972. In the meantime, she sold the said house to some other person. Hence, the Sub-Divisional Officer rightly rejected her application. So, the appellate authority as well as the revisional authority should not have reversed the same. She had also taken the house of the petitioner in exchange of the sale deed dated 9.2.1972. In the meantime, she sold the said house to some other person. She also stated in the sale deed that she belongs to General Caste and does not belong to Scheduled Caste or Scheduled Tribe and that declaration was binding on her being admissible evidence. The learned counsel for the petitioner further stated that opposite party no.5 executed two other sale deeds dated 23.12.1979 and 11.11.1960 where she has declared herself as General Caste and belongs to Khandayat. The copy of which have also been annexed as Annexures 4 and 5 declaring her as Khandayat. From all those documents, it is crystal clear that she does not belong to Scheduled Caste as per the presidential notification for far as the State of Orissa is concerned and therefore the impugned orders passed by the appellate authority as well as revisional authority are to be set aside by exercising the writ jurisdiction. 7.Learned counsel for the State submitted that since this is a concurrent finding of the appellate authority as well as the revisional authority that opposite party no.5 belongs to Scheduled Caste and the OLR authorities have rightly passed the impugned orders, the same need not be interfered with. 8.Opposite party no.5 has filed a counter affidavit taking a stand that she belongs to “Bauri” community and is a member of Scheduled Castes. The disputed property was used by her husband and son to run their dairy farm. By selling milk, they earned their livelihood. Therefore, they used the land for agriculture and the homestead was used for agriculture, ancillary or incidental to agriculture. Therefore, the transfer of land without prior permission of the competent authority was void and rightly the OLR authorities passed the impugned orders. The caste certificate has been issued in her favour after due inquiry. Hence, the impugned orders need not be interfered with. 9.This Court considered the rival submissions of the parties and went through the record. From the record, it appears that in all the registered sale deeds, opposite party no.5 has declared herself as a person belonging to General Caste. She being an Oriya belongs to “Khandayat” caste. Hence, the impugned orders need not be interfered with. 9.This Court considered the rival submissions of the parties and went through the record. From the record, it appears that in all the registered sale deeds, opposite party no.5 has declared herself as a person belonging to General Caste. She being an Oriya belongs to “Khandayat” caste. Those documents are of the years 1960, 1970 and 1972. For the first time, she filed an application under Section 23 of the Act in the year 1980 which was registered as OLR Misc. Case No. 159 of 1980. The Sub-Divisional Officer rejected her application on the finding that the disputed property is a house situated in the Berhampur Municipality. Therefore, the OLR Act is not applicable. 10.Admittedly, the caste certificate was issued during pendency of the application under Section 23 of the Act. But, it is to be examined, whether a caste certificate issued under Section 23 of the Act is the sole basis to determine the caste of the person who claimed as such, or the authorities have a duty to enquire into the matter taking into consideration so many other facts and declare the caste of the person. 11.The apex Court in a decision reported in Kumari Madhuri Patil and another v. Additional Commissioner, Tribal Development and others reported in AIR 1995 SC 94 has held that since the Scheduled Tribes are a nomadic class of citizens, State is enjoined under our Constitution to provide facilities and opportunities for development of their scientific temper, educational advancement and economic improvement so that they may achieve excellence, equality of status and live in dignity. Reservation in admission to educational institutions and employment are major State policies to accord to the tribes, social and economic justice apart from other economic measures. The President by a Notification specified the Scheduled Caste and Scheduled Tribe or tribal communities so as to entitle them to avail of such exclusive rights. The Union of India and the State Governments have prescribed the procedure and has entrusted duty and responsibility to Revenue officers of gazetted cadre to issue social status certificate, after due verification. The President by a Notification specified the Scheduled Caste and Scheduled Tribe or tribal communities so as to entitle them to avail of such exclusive rights. The Union of India and the State Governments have prescribed the procedure and has entrusted duty and responsibility to Revenue officers of gazetted cadre to issue social status certificate, after due verification. It is common knowledge that endeavour of States to fulfil constitutional mandate of upliftment of Scheduled Castes and Scheduled Tribes by providing for reservation of seats in educational institutions and for reservation of posts and appointments, are sought to be denied to them by unscrupulous persons who come forward to obtain the benefit of such reservations posing themselves as persons entitled to such status while in fact disentitled to such status. The case in hand is a clear instance of such pseudo status. The entries in the school register preceding the Constitution do furnish great probative value to the declaration of the status of a caste. Hierarchical caste stratification of Hindu social order has its reflection in all entries in the public records. What would therefore, depict the caste status of the people inclusive of the school or college records, as they then census rules insisted upon. Undoubtedly, Hindu social order is based on hierarchy and caste is one of the predominant factors during pre-constitution period. Unfortunately instead of dissipating its incursion it is being needlessly accentuated, perpetrated and stratification is given legitimacy for selfish ends instead of being discouraged and put an end by all measures, including administrative and legislative. Be it as it may, people are identified by their castes for one or the other is a reality. Therefore, it is no wonder that caste is reflected in relevant entries in the public records or school or college admission register at the relevant time and the certificates are issued on its basis. (Emphasis supplied). 12.In the present case, opposite party no.5 made a self-declaration in all the registered sale deeds, which are public documents, that her caste is “Khandayat” and Oriya. She belongs to General caste. While issuing the caste certificate, the Revenue Officer has not taken into consideration all those materials and without any logistic inquiry he issued a caste certificate which cannot conclusively determine the caste of opposite party no.5. She belongs to General caste. While issuing the caste certificate, the Revenue Officer has not taken into consideration all those materials and without any logistic inquiry he issued a caste certificate which cannot conclusively determine the caste of opposite party no.5. As such, the orders passed by the appellate authority as well as revisional authority are not sustainable in the eye of law. Therefore, this Court in exercise of the jurisdiction under Article 227 of the Constitution of India, sets aside the impugned orders passed by the appellate authority and the revisional authority and confirms the order passed by the Sub-Divisional Officer. Since the possession of the disputed house was given to opposite party no.5, the OLR authorities are directed to restore the possession of the said house to the petitioner within a period of three months from the date of receipt of the order. Accordingly, the writ petition is allowed. No costs. Petition allowed.