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2016 DIGILAW 1092 (ORI)

Paul Paik v. Collector, Gajapati, Paralakhemundi

2016-11-15

BISWANATH RATH

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JUDGMENT : Biswanath Rath, J. In assailing the impugned order, learned counsel for the petitioner has the sole grievance that admittedly the claim of the private opposite party being not notified as a sub-caste of a particular tribe, could not have been treated as a tribe. It is contended that even though such a contention was raised before the Courts below, the Courts below have failed in appreciating this legal aspect of the matter and decided the matter erroneously. Referring to the notification Entry-5 of the Constitution (Scheduled Tribe) order 1950, learned counsel for the petitioner submitted that the impugned order ought to be set aside and his possession should not be disturbed in exercise of power under the Regulation-II, 1956. 2. Learned Additional Government Advocate on the other hand, supporting the impugned orders contended that even though the petitioner belongs to the Sudha Sabar but for the caste Sabar appearing in Entry-5 Order 1950, should also be treated as Sabar and consequently, the provision of the Regulation-II of 1956 has been rightly applied in the case of the private opposite party leaving any scope for interfering in the impugned orders. 3. Considering the rival contentions of the parties, this Court finds there is no dispute that the plaintiff in the original proceeding initiated under Section 3(II) of the Regulation-II, 1956 belongs to the Sudha Sabar. In absence of specific notification bringing Sudha Sabar within the fold of Scheduled Tribe, no authority by their jurisdiction extend the benefit granted in favour of the Scheduled Tribe under the Regulation-II, 1956 by virtue of their order. Since the matter involves a proceeding under the Regulation-II, 1956, which ultimately protects the right of the Scheduled Tribe, it was incumbent on the part of the authority to first find out as to whether the petitioner belongs to Scheduled Tribe or not and after being satisfied that the private opposite party belongs to Tribe community, should have proceeded in the Regulation-II proceeding. From the submissions made by the respective parties, this Court nowhere finds, the private opposite party established that he belongs to Scheduled Tribe. It is on the other hand, there is an attempt to bring the Sudha Sabar to the fold of Sabar, which caste has been declared as Scheduled Tribe by virtue of the notification brought for the purpose. From the submissions made by the respective parties, this Court nowhere finds, the private opposite party established that he belongs to Scheduled Tribe. It is on the other hand, there is an attempt to bring the Sudha Sabar to the fold of Sabar, which caste has been declared as Scheduled Tribe by virtue of the notification brought for the purpose. This Court has the occasion to peruse the notification categorizing the caste and it nowhere finds the Sudha Sabar belongs to the Scheduled Tribe. In absence of which, the provision of Regulation-II, 1956 have no application. Consequently, the proceeding initiated under Regulation-II of 1956 was not maintainable. Under the circumstances and looking to the decision reported in AIR 2001 (SC) 393 , this Court finds the authorities below have erred in law and consequently, while setting aside both the impugned orders, this Court dismisses the original proceedings initiated at the instance of the private opposite party vide R.M.C. No. 114 of 1977. 4. The writ petition stands allowed. Parties to bear their own cost.