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2013 DIGILAW 279 (ORI)

KASTURI SAHU v. STATE OF ORISSA

2013-08-06

RAGHUBIR DASH

body2013
JUDGMENT : Raghubir Dash, J. - In this writ petition challenge has been made to the validity of order dated 29.09.2004 passed by the opposite party no. 3-Additional District Magistrate, Mayurbhanj in O.L.R. Appeal No. 6 of 2003 under Annexure-2 and the order dated 18.03.2005 passed by the opposite party no. 4-Collector & District Magistrate, Mayurbhanj in O.L.R. Revision No. 2 of 2004 under Annexure-3. Petitioner's case, in short, is that under Registered Sale Deed No. 1143 dated 01.05.1981, she purchased a piece of land from one Mohan Behera and one Sanatan Behera, uncle and father, respectively, of opposite party no. 5 and since the date of her purchase, she has been in possession of her purchased land. In the year 2002, opposite party no. 5 instituted OLR Case No. 3 of 2002 before the opposite party no. 2-Sub-Collector, Panchipir, Karanjia claiming that the vendors of the writ petitioner being "Keuta" by caste are members of a scheduled caste and the said transaction in contravention of the Section- 23 of the OLR Act is void. The learned Sub-Collector passed order vide Annexure-1 rejecting the OLR case observing that the said transaction was made in the year 1981 when Keuta caste was not included in the schedule of the Constitution (Scheduled Castes) Order, 1950 (for short, 'the Order'). 2. Being aggrieved by the order of rejection, opposite party no. 5 preferred OLR Appeal Case No. 6 of 2003 before the opposite party no. 3, the Additional District Magistrate, Baripada, who allowed the appeal and directed that the land be restored to opposite party no. 5. Opposite party no. 3 allowed the appeal by order dated 29.09.2004 vide Annexure-2 on the ground that the Commissioner and Secretary, Government of Orissa, H&TW Department in his letter No. 12349 dated 23.04.1982 has clarified that Circular No. 17659-H.T.W. dated 20.07.1981 regarding inclusion of Dhibara, Keuta and Kaibarta communities in the list of S.Cs. for the state of Orissa as per the judgment in O.J.C. No. 247 of 1978 rendered by the Orissa High Court was effective from the date of the judgment which was pronounced on 5.11.1979. for the state of Orissa as per the judgment in O.J.C. No. 247 of 1978 rendered by the Orissa High Court was effective from the date of the judgment which was pronounced on 5.11.1979. It is not in dispute that in the Circular No. 17659-H.T.W. dated 20.07.1981 addressed to all Collectors of the State it is instructed that in view of the judgment of the Orissa High Court in O.J.C. No. 247 of 1978, Keuta, Kaibarta and Dhibara communities have to be treated as synonymous names of 'Dewar' community which has already been specified in the Schedule in relation to the state of Orissa. 3. The present petitioner challenged the order vide Annexure-3 in OLR Revision No. 2 of 2004 before the Collector & District Magistrate, Mayurbhanj, but on the selfsame ground the revision was dismissed. Hence, this writ petition. 4. On behalf of the petitioner, it is submitted that it is only by virtue of a presidential notification issued in exercise of powers conferred under Article- 341(1) of the constitution that any caste can be treated as scheduled caste in terms of Article- 366(24) and for that reason the caste Keuta could not have been treated as scheduled caste as on the date of Registered Sale Deed, i.e., 01.05.1981, in as much as the caste Keuta was included in paragraph-3 of the Schedule relating to state of Orissa for the first time in the year 2002. It is further submitted that the appellate as well as the revisional authority under the OLR Act could not have treated the petitioner's vendors as persons belonging to a schedule caste. 5. It is argued that since the caste Keuta was not there in the Schedule as on the date of execution/registration of the sale deed, the said transaction is not in contravention of Section- 23 of the OLR Act. 6. To support this contention, learned counsel for the petitioner has relied on the decision of the Supreme Court in Nityanand Sharma and another-Vrs.-State of Bihar and others, reported in (1996) 3 Supreme Court Cases 576. In paragraph-15 of the said judgment it is observed as follows: It is for Parliament to amend the law and the Schedule and include in and exclude from the Schedule, a tribe or tribal community or part of or group within any tribe or tribal community for the State, District or region and its declaration is conclusive. In paragraph-15 of the said judgment it is observed as follows: It is for Parliament to amend the law and the Schedule and include in and exclude from the Schedule, a tribe or tribal community or part of or group within any tribe or tribal community for the State, District or region and its declaration is conclusive. The Court has no power to declare synonyms as equivalent to the Tribes specified in the Order or include in or substitute any caste/tribe etc. It would thus be clear that for the purpose of the Constitution, "Scheduled Tribes" defined under Article 366(25) as substituted (sic) under the Act, and the Second Schedule thereunder are conclusive. Though evidence may be admissible to a limited extent of finding out whether the community which claims the status as Scheduled Caste or Scheduled Tribe, was, in fact, included in the Schedule concerned, the Court is devoid of power to include in or exclude from or substitute or declare synonyms to be of a Scheduled Caste or Scheduled Tribe or parts thereof or group of such caste or tribe. 7. Thus, it is very clear that the Court has no power to declare synonyms as equivalent to the caste specified in the Order. In the case at hand, the sale deed in question was executed and registered on 01.05.1981. There is no dispute that the caste Keuta was included in the Order (the schedule for the state of Orissa) by Central Act No. 61 of 2002 published in Gazette of India Ext. No. 73 dated 18.12.2002. Prior to that Keuta caste was not in the Schedule for the purpose of the Constitution. The appellate and revisional authorities have accepted the petitioner's vendor as a member of a Scheduled Caste solely on the basis of Circular No. 17659-H.T.W. dated 20.07.1981 which was issued on the basis of a judgment by this Court in O.J.C. No. 247 of 1978, in which it was held that Keuta and Kaibarta being synonymous to Dhibara should be taken as included in the term Dhibara which was then included in the Schedule of the Order, but that circular so also the decision of this Court that Keuta and Kaibarta should be declared to have been included in the Schedule has been rendered nugatory or inoperative consequent upon the law propounded by the Hon'ble Supreme Court in Nityanand Sharma's case. 8. 8. Both the appellate authority and the revisional authority have committed error in law accepting the petitioner's vendors as members of the Scheduled Caste. On the other hand, learned Sub-Collector, Panchipir, Karanjia, opposite party no. 2 have rightly held that the sale deed was not in contravention of Section- 23 of the OLR Act in as much as the caste Keuta was not yet included in the Order by the time the said transaction took place. In the result, the writ petition is allowed and the impugned order dated 29.09.2004 passed by the opposite party no. 3-Additional District Magistrate, Mayurbhanj in O.L.R. Appeal No. 6 of 2003 under Annexure-2 and the order dated 18.03.2005 passed by the opposite party no. 4-Collector & District Magistrate, Mayurbhanj in O.L.R. Revision No. 2 of 2004 under Annexure-3 are quashed and the order dated 26.03.2003 passed by the opposite party no. 2-Sub-Collector, Panchipir, Karanjia in O.L.R. Case No. 3 of 2002 under Annexure-1 is confirmed. Final Result : Allowed