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2019 DIGILAW 579 (JHR)

Sukra Karmali v. State Of Jharkhand

2019-02-27

SUJIT NARAYAN PRASAD

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JUDGMENT 1. This writ petition is under Article 226 of the Constitution of India wherein the order dated 19.02.2018 passed in S.A.R. Revision No.20/2010 by the Court of Commissioner, South Chotanagpur Division, Ranchi is under challenge whereby and whereunder the order passed by the Additional Collector, Ranchi under its appellate jurisdiction on 22.02.2010 has been affirmed. 2. It is the case of the petitioner that he belongs to Lohra community, therefore he being in the category of Scheduled Tribe, hence any transfer of the land if made in contravention of provision of Section 46 of Chotanagpur Tenancy Act, 1908 will be said to be illegal, keeping that fact into consideration, an application has been filed under the provision of Section 71(A) of Chotanagpur Tenancy Act, 1908 for restoration of the aforesaid land in his favour. The schedule area regulation case has been initiated being S.A.R. Case No.166 of 1989- 90 wherein an order has been passed presuming the petitioner as Lohra on the basis of the customs and conventions. Against the said order, an appeal was preferred being S.A.R. Appeal No.07R15/2009-10 wherein vide order dated 22.02.2010 the order passed by the Special Office in S.A.R. Case No.166 of 1989-90 has been reversed on the ground that the record of rights i.e. Khatiyan, the land belongs to Lohar and it is the admitted case of the petitioner that he belongs to Lohra. 3. The petitioner being aggrieved with the said order has approached before the revisional authority by filing revision before the Commissioner, South Chotanagpur Division, Ranchi, who vide order dated 19.02.2018 has declined to interfere with the finding of the appellate authority against which the present writ petition has been filed. 4. 3. The petitioner being aggrieved with the said order has approached before the revisional authority by filing revision before the Commissioner, South Chotanagpur Division, Ranchi, who vide order dated 19.02.2018 has declined to interfere with the finding of the appellate authority against which the present writ petition has been filed. 4. Counter affidavit has been filed by the State-respondent wherein the stand has been taken that the Special Officer, Scheduled Area Regulation has not considered the entry made in the Khatiyan wherein the land in question has been recorded in the name of Raiyat who belongs to Lohar caste, but merely on the basis of the customs and conventions prevailing in between the Lohar and Lohra caste, the petitioner has been treated to be under the caste of Lohra and order of restoration has been passed, but the said fact has not been considered to be proper by the appellate as well as revisional authority for the reason that if there is any reference of caste in the Khatiyan, the same is treated to be the conclusive proof of the caste and merely on the basis of the customs and conventions, a caste of a particular person cannot be changed. Therefore, submission has been made that the order passed by the appellate as well as revisional authority suffers from no infirmity. 5. Having heard the learned counsel for the parties and on appreciation of their rival submissions it is evident from the material available on record that the petitioner claims to be the legal heir of the recorded raiyat where the caste of the predecessor in interest of the petitioner has been recorded as Lohar. 6. The petitioner treating himself to be a member of Lohra caste who belongs to the scheduled tribe category incorporated in the list of the scheduled tribe by the prejudicial order has filed an application for restoration of land under the provision of Section 71(A) of Chotanagpur Tenancy Act, 1908 and since according to the petitioner, transfer has been made in violation of the provision of Section 46 of the Chotanagpur Tenancy Act, 1908 which provides complete embargo for transfer of the land from tribal to non-tribal. 7. 7. The Special Officer, S.A.R. while initiating the proceeding under Section 71(A) of the Chotanagpur Tenancy Act, 1908 has passed order treating the claim of the petitioner as correct on the basis of the customs and conventions which is being followed amongst the member of Lohra and therefore, the Lohar and Lohra having treating to be equal and in consequence thereof, the order of restoration has been passed. 8. The petitioner being aggrieved with the aforesaid order has preferred appeal before the Additional Collector, Ranchi being S.A.R. Appeal No.07R15/2009-10 but the appellate authority by taking aid of the judgment pronounced by Hon''ble Apex Court in the case of State of Maharastra vs. Milind and Ors., reported in AIR 2001 SC 393 where the ratio has been laid down that the Lohar and Lohra are two different castes, Lohar belongs to backward class while Lohra belongs to Scheduled Tribe. 9. The appellate authority has not appreciated the reason of restoration since was passed upon the customs and conventions prevailing in the Lohar and Lohra communities and accordingly quashed the order passed by the Special Officer, Scheduled Area Regulation. 10. The petitioner thereafter has approached before the revisional authority being S.A.R. Revision No.20/2010 who after taking into consideration the legal position as has been laid by the Hon''ble Apex Court in the case of State of Maharastra (supra) has declined to interfere with the order passed by the appellate authority. 11. Learned counsel for the petitioner has tried to impress upon the Court by taking aid of the decree passed in Title Suit No.108 of 1992-99 wherein the petitioner has been treated to be in the caste of Lohra and therefore, submission has been made that there is conclusive finding by the competent court of Civil jurisdiction regarding his caste. 12. This Court has also examined the judgment passed by the competent court in the Title Suit No.108 of 1992-99 and has found that it is the dispute in between the family members and in the pretest, the judgment has been passed declaring the petitioner to be close relative of the title holder who has died issueless but it has no where been adjudicated that the petitioner is a Lohar by caste rather he has been reflected as Lohra. 13. 13. The issue of difference in caste of Lohar and Lohra was the subject matter before the Hon''ble Apex Court in the case of State of Maharastra (supra) wherein it has been laid down by Hon''ble Apex Court that Lohar and Lohra are two different communities, Lohar comes under the backward class while Lohra comes under the Scheduled Tribe. 14. The issue having been set at rest by Hon''ble Apex Court and it is the admission of the part of the petitioner that the land has been recorded as Lohar in the Khatiyan, therefore, merely on account of a caste certificate issued by the authority or the customs and conventions, the petitioner cannot be treated to be Lohar and even if any caste certificate has been issued, the same would not have its over-riding effect upon the entry made in the records of rights i.e. Khatiyan, which is the conclusive proof of the nature of land as to whether it belongs to the tribal or not ? 15. In view of the aforesaid aspect of the matter, the order passed by the Additional Collector as the Revisional Authority does not require any interference by this Court, accordingly, the writ petition fails and it is dismissed.