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2016 DIGILAW 1056 (ORI)

Naik Biro v. Rasa Paik

2016-11-08

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. This writ petition has been filed assailing the impugned order dated 25.8.1993 passed by the Officer on Special Duty (Land Reforms), Paralakhemundi in R.M.C. No.400/89. 2. Learned counsel for the petitioner submitted that since the private opposite party became a Scheduled Tribe by virtue of a notification of the Union of India in the year 1991, the suo motu proceeding initiated under Section 3(A) of the Regulation-2 of 1956 is not maintainable. There is no dispute that the suo motu proceeding under Section 3(A) of the Regulation-2 of 1956 was initiated on the report of the R.I., Chelligada as against the petitioner in the year 1989. As appears the case was registered as R.M.C. No.400/89. Pleadings made in this writ petition and the discussions made in the impugned order, make it clear that the petitioner had a clear case with regard to the private opposite party No.1 was not even declared as Scheduled Tribe on the date of initiation of the proceeding and therefore, there was no question for initiating such a proceeding. Learned counsel for the petitioner further submitted that the private opposite party was not included in the schedule meant for Scheduled Tribe published by the Union of India and also produced a clarification of the Joint Director-cum-Deputy Secretary to Government issued on 8th February, 1991 letter No.4255/HTW Dated BBSR 8th February, 1991/Emg. IV-31/90 clarifying therein that the community Sudha Sabar and Jara Sabar have not been declared as Scheduled Tribe by the Government of India. 3. Considering the rival contentions of the parties, it appears the trial Court has observed as follows : “According latest notification Sudha Sabar and Jara Sabar are scheduled tribe. In her argument, the learned advocate has pointed out that the notification dt.1991 have no legal hearing in view of the several decision of our High Court and Supreme Court. The learned advocate has admitted that it has come into force during 1991. Since the proceeding is heard during 1993, the latest notification of 1991 that Sudha Sabar comes under Scheduled Tribe is to be accepted.” 4. Further from the discussions made by the authority in the impugned order under Annexure-1, it also becomes clear that there was no material available with the authority establishing the claim of the private opposite party belongs to the Scheduled Tribe Community. 5. Further from the discussions made by the authority in the impugned order under Annexure-1, it also becomes clear that there was no material available with the authority establishing the claim of the private opposite party belongs to the Scheduled Tribe Community. 5. Considering the rival contentions of the parties and after perusal of the clarification issued by State Government in the Department of Harijan and Tribal Welfare on 8th February, 1991 and looking to the claim of the parties involved in this case, it clearly appears that there was no notification bringing in the private opposite party to the fold of the Scheduled Tribe Community on the date of institution of the case. Under the circumstances, this Court holds the proceeding vide R.M.C. No.400/89 as void and consequently, while allowing this writ petition, this Court sets aside the impugned order under Annexure-1 to this petition. 6. Accordingly, the writ petition stands allowed with the direction indicated hereinabove. Parties to bear their respective costs.