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2012 DIGILAW 127 (ORI)

BANAMALI MALLICK v. SUB-COLLECTOR, KEONJHAR

2012-03-07

SANJU PANDA

body2012
JUDGMENT S. PANDA, J. Both the writ petitions having involved common questions were heard together and are being disposed of by this common order. 2. The petitioners, in both the writ petitions, has challenged the impugned orders passed by the Sub-Collector, Keonjhar and Addl. District Magistrate (Revenue), Keonjhar, opposite parties 1 and 2 respectively cancelling alienation of the land measuring Ac.0.30 decimals of land appertaining to Plot No.717 under Khata No.21 of Mouza-Gambharia in the district of Keonjhar and issuing warrant of restoration for execution of order. 3. The facts leading to the present case are as follows: The petitioner belongs to village Dhamuria in the district of Singhbhumi of the State of Bihar. The caste of the petitioner is “Tanti” which is declared to be Scheduled Caste, as amended by the Scheduled Castes/Scheduled Tribes List Modification Order, 1956 so far as the State of Bihar is concerned. He migrated from Bihar to Orissa. The petitioner and his wife purchased the aforesaid property from Kathin Patra, Gai Patra and Narottama Patra by virtue of different sale deeds dated 27.3.1989. After purchasing the said property, the petitioner and his wife separately filed two mutation cases before the Tahasildar, Keonjhar for mutation of their names. Both the cases were allowed, ROR was corrected and separate Khata Nos.159/44 and 159/48 respectively were issued in their favour on 9.8.1996. The vendors of the petitioner are Scheduled Caste persons as per the Presidential Notification, 1950 relating to the State of Orissa. Since both the vendors and the purchasers belonged to Scheduled Caste, at the time of purchase, no prior permission was obtained from the competent authorities. Opposite party no.3 along with the petitioner purchased an area of Ac.0.12 decimals of land in Plot No.717/1501 under Khata No.159/11. Opposite party no.3 claiming about encroachment by the petitioner filed OLR Case No.5 of 2000 before the Sub-Collector, Keonjkhar who directed to depute an R.I to conduct an inquiry. Accordingly, the concerned R.I conducted an inquiry in the absence of the petitioner. Said OLR Case No.5 of 2000 was allowed by opposite party no.1 on 10.12.1999. In that case, the petitioner had taken a plea that since both are Scheduled Caste persons, Section 23 of the Orissa Land Reforms Act (in short, “the Act”) was not applicable to the said case. However, the said plea of the petitioner was rejected. Said OLR Case No.5 of 2000 was allowed by opposite party no.1 on 10.12.1999. In that case, the petitioner had taken a plea that since both are Scheduled Caste persons, Section 23 of the Orissa Land Reforms Act (in short, “the Act”) was not applicable to the said case. However, the said plea of the petitioner was rejected. The petitioner also contended that he is residing in the State of Orissa for the last 20 years. His name has been included in the voter-list and photo identity card has been issued in his favour and he is enjoying all the benefits of Scheduled Caste in the State of Orissa. However, opposite parties 1 and 2 did not accept the plea of the petitioner following G.O No.BE 160141-82-SC and BCD-I dated and February, 1985 passed by the Government of India in the Ministry of Home Affairs and G.O No.36259/R dated 17.9.1996 passed in the Revenue and Excise Department of Government of Orissa to the effect that Scheduled Tribe/Scheduled Caste persons of other States/Union Territories will be deemed to be the Scheduled Tribe/Caste persons of the State/Union Territories of the origin. Any alienation made in their favour without valid permission will be null and void. Being aggrieved by the order passed by opposite party no.1, the petitioner preferred OLR Appeal Case No.1 of 2000 before opposite party no.2 under Section 58 of the Act. However, the appeal was also dismissed confirming the order of the Sub-Collector on 7.6.2000. The petitioner further contended that the Tahasildar, Keonjhar, who is the competent authority, issued Scheduled Caste Certificate to his daughter Manju Mallick as per the Rules prevailing in the State of Orissa and is getting all the benefits as Scheduled Caste in the State of Orissa. Though he filed all the documents before the authorities, they did not consider those materials. 4. Learned counsel appearing for the petitioner submitted that in the State of Bihar, “Pana” and “Swasi” Castes are called as “Tanti” and those castes are enlisted in the categories of Scheduled Caste as per the amended Notification of 1956 relating to the State of Bihar. 4. Learned counsel appearing for the petitioner submitted that in the State of Bihar, “Pana” and “Swasi” Castes are called as “Tanti” and those castes are enlisted in the categories of Scheduled Caste as per the amended Notification of 1956 relating to the State of Bihar. Since the petitioner belongs to the caste “Tanti” which is a Scheduled Caste in the State of Bihar and the same caste is also declared as Scheduled Caste in the State of Orissa and he is residing in Orissa, he is entitled to get all the benefits as provided to the category of Scheduled Caste in the State of Orissa and the impugned orders passed by opposite parties 1 and 2 are liable to be set aside. 5. Learned counsel appearing for opposite party no.3 contended that the Scheduled Caste and Scheduled Tribe persons who have migrated from one State to another will be deemed to be Scheduled Caste or Scheduled Tribe persons of the State of their origin. However, they will not be treated as Scheduled Caste or Scheduled Tribe in the State to which they have migrated. In support of his contention, he placed reliance on a decision of the apex Court in the case of Action Committee on Issue of Caste Certificate to Scheduled Caste and Scheduled Tribes in the State of Maharashtra and another vrs. Union of India and another, (1994) 5 SCC 244 . He also relied on G.O. No.B.C.16014/1/82-S.C. and B.C.D.-I dated 22nd February, 1985 issued by the Government of India, Ministry of Home Affairs wherein it is clarified that a Scheduled Caste/ Tribe person, who has migrated from the State of origin to some other State for the purpose of seeking education, employment, etc., will be deemed to be a Scheduled Caste/Tribe of the State of his origin and will be entitled to derive benefits from the State of origin and not from the State to which he has migrated. He also placed reliance on G.O No.36259 dated 17.8.1996 of the Government of Orissa in the Revenue and Excise Department wherein it is clarified that since the Scheduled Tribe/Scheduled Caste persons of other State/Union Territories will be deemed to be Scheduled Tribe/Caste persons of the State/Union Territories of the Origin, any alienation made in their favour without valid permission will be null and void. Accordingly, he supported the impugned orders passed by opposite parties 1 and 2 and submitted that the writ petition is liable to be dismissed being devoid of merit. 6. From the facts narrated above and the submissions made by the learned counsel for the parties, it is to be decided as to whether the petitioner, who originally belongs to the State of Bihar and whose caste is declared as a Scheduled Caste as per the Presidential Notification in respect of the State of Bihar, is entitled to get similar benefits as a Scheduled Caste in the State of Orissa ? 7. The factual aspects of the case are not disputed in this writ petition though the petitioner is residing in the State of Orissa for the last 20 years and also Scheduled Caste certificate has been issued in favour of his daughter. The petitioner originally belongs to the State of Bihar. Migrating from Bihar to Orissa, he is now residing in Orissa. He belongs to Scheduled Caste, so far as the State of Bihar is concerned. However, he cannot claim the same benefits in the State of Orissa as are available to a Schedule Caste person in the State of Bihar. 8. The President in the year 1950 in exercise of the powers under Article 341(1) and 342(1) of the Constitution of India notified the Scheduled Castes and Scheduled Tribe respectively in respect of the States after consultation with the Governors of the respective States by public notification. The said Presidential declaration, subject to amendment by the Parliament being conclusive no addition to it or declaration of castes/tribes or sub-castes/parts of groups of tribes or tribal communities is permissible. 9. The apex Court in the State of Maharashtra’s case (supra) has held that the declaration by the President by a public notification in relation to a State in consultation with the Governor of that State is conclusive and the Court cannot give such a declaration. 10. The Union of India and the State Governments have prescribed the procedure and have entrusted duty and responsibility to Revenue Officers of gazetted cadre to issue social status certificate, after due verification. 10. The Union of India and the State Governments have prescribed the procedure and have 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 fulfill 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 benefits of such reservations and also grab the landed property of Scheduled Castes/Scheduled Tribes. Therefore, the Union of India and the State Governments are issuing G.O giving certain instructions to their officers so that the Scheduled Caste/Scheduled Tribe persons of the State will get the benefits and they will not cease to get the better and more social free and liberal atmosphere and their status will be uplifted in the State and they will get the full scope to blossom and flourish. 11. The Scheduled Castes and Scheduled Tribes belonging to a particular area of the country must be given protection so long as and to the extent they are entitled to in order to equal with others but those who go to other areas should ensure that they make way for the disadvantaged and disabled of that part of the community who suffer from disabilities in those areas. 12. A Constitution Bench of the apex Court in the case of Marri Chandra Shekar Rao v. Dean Seth G.S. Medical College and others, (1990) 3 SCC 130 , has held as follows: “In other words, Scheduled Castes and Scheduled Tribes say of Andhra Pradesh do require necessary protection as balanced between other communities. But equally the Scheduled Castes and Scheduled Tribes say of Maharashtra in the instant case, do require protection in the State of Maharashtra, which will have to be in balance to other communities. This must be the basic approach to the problem. If one bears this basic in mind, then the determination of the controversy in the instant case does not become difficult.” 13. In view of the above decision of the apex Court, the petitioner who belongs to Scheduled Caste of State of Bihar as per the Presidential Notification is not entitled to become a Scheduled Caste so far as the State of Orissa is concerned. 14. In view of the above decision of the apex Court, the petitioner who belongs to Scheduled Caste of State of Bihar as per the Presidential Notification is not entitled to become a Scheduled Caste so far as the State of Orissa is concerned. 14. Law is well settled that the President, as required under Articles 341 and 342 of the Constitution of India with respect to other State and Union Territory, and where it is a State, after consultation with the Governor of the concerned State, has issued orders notifying various castes and tribes as Scheduled Castes and Scheduled Tribes in relation to that State or Union Territory from time to time. The inter-state area restrictions have been deliberately imposed so that the people belonging to the specific community residing in a specific area, which has been assessed to qualify for the Scheduled Caste or Scheduled Tribe status, only benefit from the facilities provided for them. 15. In view of the above analysis and as there is no error apparent on the face of the impugned orders passed by opposite parties 1 and 2, this Court is not inclined to interfere with the same in exercise of its jurisdiction under Article 227 of the Constitution of India. Accordingly, both the writ petitions are dismissed. Writ petitions dismissed.