1. Sambo Patar Munda, son of Sagar Patar Munda 2. Paresh Nath Patar Munda v. 1. The State of Jharkhand through its Chief Secretary, having its office at Project
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 4839 of 2015 1. Sambo Patar Munda, son of Sagar Patar Munda 2. Paresh Nath Patar Munda, son of late Budha Patar Munda both resident of Village-Situ, Tola-Pilid, Under P.O., P.S.- Ichagarh, Dist.-Saraikella, Kharsawan .... Petitioners Versus 1. The State of Jharkhand through its Chief Secretary, having its office at Project Building, under P.O.-Dhurwa, P.S.- Jagarnathpur, Dist.-Ranchi 2. The Deputy Commissioner, Saraikella, having its office at Saraikella, under P.O. & P.S.-Saraikella, Dist.-Saraikella 3. Biloka Bala Mahatani, wife of Ganapati Mahto, resident of Village-Situ, Tola-Pilid, Under P.O., P.S.-Ichagarh, Dist.- Saraikella, Kharsawan …. Respondents P R E S E N T For the Petitioners For the Respondents
Legal Reasoning
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ….. : Mr. Ashok Kr. Pandey, Advocate : Mr. D.K. Malityar, Advocate : Mr. Shalini Shahdeo, AC to SC (L&C)-I : Mr. Ratnesh Kumar, SC (L&C) I : Mr. A.K. Das, Advocate : Mr. Shivam Utkarsh Sahay, Advocate : Mr. Ashok Kr. Yadav, Advocate By the Court:- 1. 2. ….. Heard the parties. This Writ Petition has been filed under Article 226 of the Constitution of India with a prayer to issue of appropriate writ(s), W.P. (C) No.4839 of 2015 1 order(s), direction(s) to set aside the order passed in S.A.R. Revision No. 49 of 2007 dated 17.07.2013 whereby and where under, the order passed in S.A.R. Case No. 22 of 2002-03 dated 17.05.2003 and order passed in S.A.R. Appeal bearing No. 08 of 2003-04 has been affirmed. 3. The brief fact of the case is that the father of the petitioners namely Sagar Patar Munda filed an application under Section 71A of Chota Nagpur Tenancy Act on the ground that the same was illegally grabbed by the respondent no.3 and the transfer made by the said father of the petitioners namely Sagar Patar Munda to the ancestors of the private respondents was in contravention to the provision of the Chota Nagpur Tenancy Act because the ancestors of the private respondents are not the members of the Scheduled Tribe whereas the petitioners and their fathers are members of the Scheduled Tribe being Patar Munda by caste. The undisputed fact remains that the father of the petitioners transferred the land to the ancestors of the private respondents on 28.10.1975. The S.A.R. Court considered the fact that “Patar Munda” was included in the Constitution (Scheduled Tribes) Order only in the year 2003 and on the date of transfer on 28.10.1975 persons belonging to Patar Munda caste were not the members of the Scheduled Tribe hence, there is no illegality in the said transfer. The same view was also taken by the Deputy Commissioner in the S.A.R. Appeal and also the Commissioner, Singhbhum (Kolhan) Division, Chaibasa. W.P. (C) No.4839 of 2015 2 4. Learned counsel for the petitioner drawing attention of this Court to the judgment of Hon’ble Supreme Court of India in the case of Bhaiya Ram Munda vs. Anirudh Patar & Ors. reported in (1970) 2 SCC 825 submits that in a case relating to election petition, the Hon’ble Supreme Court of India was of the view that Patars are the sub tribe of Munda and they are not different from Munda hence, they are the members of Scheduled Tribe. Hence, it is submitted that from the date of said judgment on 17.08.1970, persons belonging to the “Patar Munda” caste be treated as members of the Scheduled Tribe; therefore all the three authorities i.e. the S.A.R. Court, S.A.R. Appellate Court and the S.A.R. Revisional Court have committed illegality by holding that since the transfer was made on 28.10.1975 hence, as by that date the Patar Munda caste was not included in the Constitution (Scheduled Tribe) Order hence, the said transfer is legal and valid. Hence, it is submitted that the prayer as made in this writ petition be allowed. 5. Learned counsel for the State and the learned counsel for the private respondents on the other hand oppose the prayer. Learned counsel for the private respondents relied upon the judgment of Hon’ble Supreme Court of India in the case of State of Maharashtra vs. Milind & Ors. reported in (2001) 1 SCC 4, paragraph no.36 of which reads as under:- “36. In the light of what is stated above, the following positions emerge: W.P. (C) No.4839 of 2015 3 1. It is not at all permissible to hold any inquiry 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 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 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 v. Anirudh Patar [(1970) 2 SCC 825 : (1971) 1 SCR 804] and Dina v. Narain Singh [38 ELR 212 : (1968) 8 DEC 329] did not lay down law correctly in stating that the inquiry 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 inquiry at all is permissible and no evidence can be let in, in the matter. “(Emphasis supplied) and submits that in the said case, the Constitution Bench of Hon’ble Supreme Court of India has already held that the decision inter alia rendered by the Hon’ble Supreme Court of India in the case of Bhaiya Ram Munda vs. Anirudh Patar & Ors. (supra) did not lay down the law correctly. 6. It is further submitted by Mr. Das-the learned counsel for the private respondents that in view of the principle of law settled by the Constitution Bench of the Hon’ble Supreme Court of India in W.P. (C) No.4839 of 2015 4 the case of State of Maharashtra vs. Milind & Ors. (supra), law is well settled that the Scheduled Tribes Order must be read as it is and it is not open to the State Government 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 (I) of Article 342 of the Constitution of India. Hence, it is submitted that no illegality has been committed by the three authorities i.e. the S.A.R. Court, S.A.R. Appellate Court or the S.A.R. Revisional Court. Hence, it is submitted that this writ petition being without any merit be dismissed. 7. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that in view of the principle of law settled by the Constitution Bench of Hon’ble Supreme Court of India in the case of State of Maharashtra vs. Milind & Ors. (supra), this Court has no hesitation in holding that the members belonging to the Patar Munda caste can be treated as members of the Scheduled Tribe from the year 2003 when by the notification that the Patar Munda caste was included in the list of Scheduled Tribe order and not before that. Therefore, the three authorities being the S.A.R. Court, S.A.R. Appellate Court and S.A.R. Revisional Court have not committed any illegality by holding that since on 28.10.1975 the members of the Patar Munda caste were not the members of the Scheduled Tribe so no illegality has been committed in the transfer made by the father of the petitioner in favour of the W.P. (C) No.4839 of 2015 5 ancestors of the private respondents and the said transfer is not hit by provision of Chota Nagpur Tenancy Act. 8. As already indicated above, since the Constitution Bench of Hon’ble Supreme Court of India has already held that the judgment of Bhaiya Ram Munda vs. Anirudh Patar & Ors. (supra) has not laid down the correct law, this Court is of the considered view that there is no merit in this writ petition. 9. Accordingly, this writ petition being without any merit is dismissed. High Court of Jharkhand, Ranchi Dated the 11th June, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) W.P. (C) No.4839 of 2015 6