Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 678 (ORI)

Bikal Rout v. Dhobani Bewa W/o. Daitari Behera

2014-10-20

B.K.NAYAK

body2014
ORDER 20.10.2014 - Heard learned counsel for the petitioner and learned Additional Government Advocate for opposite party Nos. 3 to 5. Learned counsel for opposite party Nos. 1 and 2 does not appear in spite of repeated calls. Order dated 04.05.1994 under Annexure-3 passed by the Collector, Jajpur-opposite party No.5 in OLR Revision No.2 of 1994 setting aside the order of the Additional District Magistrate (LR) passed in OLR Appeal No. 19 of 1989 and restoring the order of the Revenue Officer, Jajpur passed in OLR Case No. 23 of 1988 with regard to restoration of the case land in favour of opposite party Nos. 1 and 2 is assailed in this writ petition. One Daitari Behera, the husband of opposite party No.1 and father of opposite party No. 2 - sold the case land in favour of the petitioner by virtue of registered sale deed dated 24.05.1978. After his death, the present opposite party Nos. 1 and 2 filed an application under Section 23 of the Orissa Land Reforms Act for restoration of the case land in their favour on the assertion that though their ancestor belonged to 'Keuta' caste, which is a scheduled caste as per the Presidential Order for the State of Orissa, he sold the land to the petitioner without permission of the competent authority as required under Section 22 of the OLR Act, and, therefore, the sale is void and the property is liable to be restored in their favour. The writ petitioner contested the case, but the Revenue Officer held that the caste, 'Keuta' is synonymous to the caste, 'Dewar' which is a scheduled caste as per the Presidential Order for the State of Orissa, and, therefore, the sale in favour of the purchaser (writ petitioner) being without permission of the competent authority is void. Accordingly, the Revenue Officer directed for restoration of property in question in favour of present opposite party Nos. 1 and 2. The order of the Revenue Officer as aforesaid was challenged by the petitioner in OLR Appeal No. 19 of 1989 before the Additional District Magistrate (LR), Cuttack-opposite party No.4. By his order dated 21.03.1990 (Annexure-2) the Additional District Magistrate allowed the appeal and set aside the order passed by the Revenue Officer, Jajpur. Opposite party Nos. 1 and 2 challenged the order of appellate authority before the Collector, Jajpur in OLR Revision No.2 of 1994. By his order dated 21.03.1990 (Annexure-2) the Additional District Magistrate allowed the appeal and set aside the order passed by the Revenue Officer, Jajpur. Opposite party Nos. 1 and 2 challenged the order of appellate authority before the Collector, Jajpur in OLR Revision No.2 of 1994. By the impugned order, the Collector allowed the revision and set aside the appellate order and held, in agreement with the finding, of the Revenue Officer, that the caste 'keuta' is synonymous to 'Dewar' which is a scheduled caste, The only point that arises is whether the caste 'Keuta' was scheduled caste on the date of execution of the sale deed so as to require permission of the competent authority under Section 22 of the OLR Act for its validity. Admittedly, on the date of execution of the sale deed dated 24.05.1978, the caste 'Keuta' was not a scheduled caste as per the Presidential Order for the State, though subsequently it was included in the Presidential Order as per Government of India Notification dated 18.02.2002. It is the submission of the learned counsel for the petitioner that it is not permissible to hold an enquiry or to accept any evidence to decide or declare that any caste or community or part or group of any caste or community is included in the general name of a particular caste which is included in the presidential order. In this respect, he has made a reference to the constitutional bench decision of the apex Court reported in AIR 2001 Supreme Court 393 (State of Maharashtra v. Millind and others) In the case reported in (1990) 3 SCC 130 - Merri Chandra Sekhar Rao v. The Dean, Seth G.S.Medical College and others, the apex Court declared that: "subject to law made by the Parliament under Article 342, the tribes or tribal communities or parts of or groups within tribes or tribal communities specified by the President by public notification shall be final for the purpose of the constitution. They are the tribes in relation to that State or Union Territory and that any tribe or tribes or tribal communities or parts of or groups within such tribe or tribal communities, not specified therein in relation to that State, shall not be scheduled tribes for the purpose of the constitution." The view as aforesaid has also been approved in the case of Kumari Madhuri Patil and another v. Additional Commissioner Tribal Development and others : AIR 1995 Supreme Court. It is therefore clear that the name of a particular tribe or sub-tribe which has not been specifically included in the Presidential Order cannot by application of analogy or otherwise be said to be included in a particular tribe specified in the Presidential Order. It has been held by the apex Court in the case of State of Maharashtra (supra), as referred to above by the learned counsel for the petitioner, to the following effect. "10. By virtue of powers vested under Articles 341 and 342 of the Constitution of India the President is empowered to issue public notification for the first time specifying the castes. Races or tribes or part of or groups within castes, races, or tribes which shall, for the purposes of the Constitution be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State or Union Territory, as the case may be. The language and terms of Articles 341 and 342 are identical. What is said in relation to Article 341 mutatis mutandis applies to Article 342. The laudable object of the said Article is to provide additional protection to the members of the Scheduled Castes and Scheduled Tribes having regard to social and educational backwardness from which they have been suffering since a considerable length of time. The words 'castes' or 'tribes' in the expression 'Scheduled Castes' and 'Scheduled Tribes' are not used in the ordinary sense of the terms but are used in the sense of the definitions contained in Articles 366(24) and 366(25). In this view, a caste is a Scheduled Caste or a tribe is a Scheduled Tribe only if they are included in the President's Orders issued under Article 341 and 342 for the purpose of the Constitution. Exercising the powers vested in him, the President has issued the Constitution (Scheduled Castes) Order, 1950. In this view, a caste is a Scheduled Caste or a tribe is a Scheduled Tribe only if they are included in the President's Orders issued under Article 341 and 342 for the purpose of the Constitution. Exercising the powers vested in him, the President has issued the Constitution (Scheduled Castes) Order, 1950. Subsequently, some orders were issued under the said Articles in relation to Union Territories and other States and there have been certain amendments in relation to Orders issued, by Amendment Acts passed by the Parliament." It is clear from the above that the words 'caste' or 'tribes' in the expression 'Scheduled Caste' and 'Scheduled Tribe' is not used in ordinary sense of terms, but used in sense of definition contained in Article 366(24) and (25). In this view, the caste is a Scheduled Caste or a Tribe is a Scheduled Tribe only if they are included in the President's order issued under Article 341 and 342 for the purpose of the Constitution. Finally, in paragraph-35 of the judgment in the said case the apex Court held as follows: "35. In the light of what is stated above, the following positions emerge: 1. It is not at all permissible to hold any enquiry or let in any evidence to decide, or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even1hough it is not specifically mentioned in the concerned Entry in the Constitution (Scheduled Tribes) Order, 1950. 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 specifically 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 clause (1) of Article 342 only by the Parliament by law and by no other authority. 4. 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 clause (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 tribunal 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." In view of the position of the law as aforesaid, it cannot be said that the caste, 'Keuta' must be held to be synonymous to 'Dewar' and as such a scheduled caste on the date the sale in favour of the petitioner was effected. Since on the date of the sale the vendor, ancestor of opposite party Nos. 1 and 2, was not scheduled caste, no permission under Section 22 was required. Therefore, the sale was not void for want of such permission and, therefore, it cannot be restored in favour of opposite party Nos. 1 and 2. The impugned revisional order Annexure-4, is, therefore, set aside and the order passed by the appellate authority is restored. The writ application is accordingly allowed. Issue urgent certified copy. Appeal allowed.