Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 445 (ORI)

Gourahari Behera v. Chand Ram

2015-07-31

A.K.RATH

body2015
JUDGMENT Dr.A.K.RATH, J. - In this writ application under Article 226 of the Constitution of India, the petitioners have challenged, inter alia, the order dated 23.4.1999 passed by the Collector, Balasore-opposite party no.11 in O.L.R. Revision No.2 of 1988, vide Annexure-3, dismissing the same and thereby confirming the order dated 13.10.1988 passed by the Additional District Magistrate (LR), Balasore, opposite party no.10 in O.L.R. Appeal Case No.4 of 1984, vide Annexure-2. By the said order, the opposite party no.10 allowed the appeal and set aside the order dated 27.7.1984 passed by the Sub-Divisional Officer, Balasore-opposite party no.9 in O.L.R. Misc.9 of 1981, wherein it was held that the opposite parties 1 to 8 do not belong to scheduled tribe. 2. Sans details the case of the opposite party nos.1 to 8 is that Ram Chandra Ram the predecessors in interest laid an application before the Sub-Divisional Officer, Balasore-opposite party no.9 under Section 23 of the Orissa Land Reforms Act (hereinafter referred to as “O.L.R.Act”) praying for declaration that the sale deed dated 10.3.1971 executed in favour of Ram Chandra Behera, the predecessors in interest of the petitioners as void on the ground that the said sale deed was obtained from the applicant and his brother Purna Chandra Ram without obtaining the permission as required under Section 22 of the OLR Act and no consideration whatsoever was paid. The said application was registered as O.L.R. Misc. 9 of 1981.Pursuant to issuance of notice, the petitioners entered appearance and filed show cause denying the assertions made in the petition. It was stated that Ram Chandra Ram belongs to ‘Uran’ caste and was not scheduled tribe. Valid consideration money was paid. Further the objection case filed before the Consolidation Authorities was dismissed. It is further stated that after purchase, the land was mutated in favour of the vendee, whereafter final record of rights was published. 3. By order dated 27.7.1984, the Sub-Divisional Magistrate, Balasore-opposite party no.9 dismissed the case. Aggrieved by the said order, Ram Chandra Ram filed O.L.R. Appeal Case No.4 of 1984 before the Additional District Magistrate (LR), Balasore-opposite party no.10, which was allowed on 13.10.1988. The appellate authority held that ‘Oran’ and ‘Uran’ are common pronunciation in Oriya and, as such, the applicant belongs to scheduled tribe. The petitioners unsuccessfully challenged the said order before the Collector, Balasore in O.L.R. Revision No.2 of 1988, which was eventually dismissed. 4. The appellate authority held that ‘Oran’ and ‘Uran’ are common pronunciation in Oriya and, as such, the applicant belongs to scheduled tribe. The petitioners unsuccessfully challenged the said order before the Collector, Balasore in O.L.R. Revision No.2 of 1988, which was eventually dismissed. 4. Heard Mr.N.K.Dash on behalf of Mr.N.C.Pati, learned counsel for the petitioners and Mr.A.K.Sahoo, learned counsel for the opposite parties 1 to 7 and learned Additional Government Advocate for the opposite parties 9 to 12. 5. Two points really arise for consideration of this Court : (1) Whether roving inquiry is permissible to find out a particular caste belong to scheduled tribe ? (2) Whether the caste of the predecessors in interest of the opposite party nos.1 to 8 find place in the Constitution (Scheduled Tribes) Order, 1950 ? Point No.1 6. The subject matter of dispute is no more resintegra. In the State of Maharashtra Vrs. Milind and others, (2001) 1 SCC 4 , the Constitution Bench of the apex Court in paragraph-36 of the report held as follows:- “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 even though it is not specifically mentioned in the entry concerned 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 tribunals 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. 5. Decisions of the Division Benches of this Court in Bhaiya Ram Munda vs. Anirudh Patar & others and Dina v. Narain Singh did not lay down law correctly in stating that the enquiry was permissible and the evidence was admissible within the limitations indicated for the purpose of showing what an entry in the Presidential Order was intended to be. As stated in Position (1) above no enquiry at all is permissible and no evidence can be let in, in the matter.” Point No.2 7. The instant case is required to be examined on the anvil of the decision cited supra. In the application filed under Section 23 of the OLR Act as well as in the sale deed dated 10.3.1971, Ram Chandra Ram mentioned his caste as ‘Uran’. In the record of rights, his caste is also described as ‘Uran’, but the opposite parties 10 and 11 came to hold that ‘Oraon’ and ‘Uran’ are one and same. 8. The opposite party nos. 10 and 11 have travelled beyond their jurisdiction and made a roving inquiry that the caste ‘Uran’ and ‘Oraon’ are synonymous. It is not at all permissible to hold an inquiry in view of the authoritative pronouncement of the apex Court. By the impugned orders, the opposite parties 10 and 11 have virtually modified the list of scheduled tribes as specified in the notification issued under Clause 1 of Article 342 of the Constitution. The sale deed was executed on 2.3.1971, vide Annexure-5. After lapse of fifteen years, opposite party no.2, son of the vendor rose from the deep slumber and obtained a caste certificate wherein his caste is mentioned as ‘Uran’. The same is a self-serving document. The sale deed was executed on 2.3.1971, vide Annexure-5. After lapse of fifteen years, opposite party no.2, son of the vendor rose from the deep slumber and obtained a caste certificate wherein his caste is mentioned as ‘Uran’. The same is a self-serving document. It is apt to state here that in another O.L.R. Appeal No.17 of 1979, the A.D.M. Balasore, opposite party no.10 came to hold that the notification issued by the Government of India on 29.10.1956 shows that ‘Oram’ is scheduled tribe. There is no mention of ‘Uran’ in the said notification. Having held so, he came to a conclusion that the appellant therein do not belong to scheduled tribe. Though the said order was brought to the notice of the appellate as well as the revisional authority, but the same was brushed aside. 9. On a cumulative analysis of the discussions made above, a conclusion is irresistible that the caste of ‘Uran’ does not find place in the Constitution (Scheduled Tribes) Order, 1950 and as such Ram Chandra Ram the predecessors in interest of opposite parties 1 to 8 was not a scheduled tribe. The application filed by him under Section 23 of the OLR Act is thoroughly misconceived and a ruse. 10. In the wake of the aforesaid, the order dated 13.10.1988 passed by the Additional District Magistrate (LR), Balasore, vide Annexure-2, and order dated 23.4.1999 passed by the Collector, Balasore, vide Annexure-3, are hereby quashed. The writ application is allowed. No Costs. Application allowed.