Orissa High Court
Case Details
ORISSA HIGH COURT : C U T T A C K W.P.(C) No.10258 of 2007 An application under Articles 226 & 227 of the Constitution of India, 1950 Ramketan Sahu : Petitioner -Versus- Collector, Jharsuguda & Ors. : Opposite Parties For Petitioner : M/s. U.K. Samal, B.R. Barik, S.P. Patra For Opposite Party Nos.1 to 3 For Opposite Party Nos.4 & 5 : Mr. S.P. Panda, Addl. Govt. Adv. : M/s. S.S. Chaini, S.K. Sahoo CORAM : JUSTICE BISWANATH RATH J U D G M E N T Date of hearing & judgment : 20.01.2023 1. 2.
Legal Reasoning
Heard the submission of learned counsel for respective parties. This writ petition involves the following relief:- “It is, prayed therefore, that this Hon’ble Court may graciously be pleased to:- a) A.D.M. it the writ application; b) Call for the record; Page 1 of 7 // 2 // c) Issue rule Nisi calling upon the opp. parties as to why the order passed by the Opp. Party No.1 to 3 under Annexure-1 to 3 shall not be quashed. d) If the Opp.parties do not show cause or shown insufficient cause, issue a writ in the nature of certiorari or any other appropriate writ/writs, order/orders, direction/directions in quashing the order passed by the Opp.Party No.1 to 3 under Annexure-1 to 3. And pass such other order(s) which will deem fit and proper for the ends of Justice.” 3. Background involved in this case is that husband of Opposite Party No.4 brought an application U/s.23 of the OLR Act, 1960 hereinafter in short be reflected as “the Act, 1960” in the Court of Sub-Collector, Jharsuguda against the Petitioner being registered as OLR Case No.19/2003. The case of the parties in the above OLR case was; Petitioner herein being a member of the General caste has purchased the suit land from one Purna Chandra Dharei claimed to be member of Scheduled Caste by registered sale deed No.1785 dated 12.12.2001, but in absence of due permission from the competent authority. In the application it is further alleged that there was inclusion of the name of the mother of Petitioner therein along with other co-sharers in the M.S. Khata. It is claimed in the application that all the land owners belong to ‘Paba’ by sub-caste clearly declared as scheduled caste in the presidential notification. It is on the premises that a sale deed is obtained involving the property belonging to scheduled caste in absence of prior permission of the competent authority, a prayer was made therein for allowing the proceeding U/s.23 of the Act, 1960 by evicting the Petitioner herein. In the OLR proceeding the Petitioner herein objected entertainability of the application on the basis of the disclosure of the caste of the vendor therein Page 2 of 7 // 3 // in the land records as ‘Paba’. Further for the clear disclosure in the sale deed thereby describing that vendor undisputedly a co-sharers belongs to the general caste and for sale deed involving vendor and vendee both belong to general caste, there was no need for applying provision in the OLR Act and there was no need for obtaining prior permission from the competent authority. Petitioner herein also took support of indication of caste of all shareholders in land records. This proceeding was, however, allowed by the competent authority thereby directing for eviction of the Petitioner. Being aggrieved by the order at Annexure-1 it appears, an appeal was preferred vide OLR Appeal No.1 of 2005. The appellate court involving all the parties decided the matter and while dismissing the appeal upheld the decision of the Sub-Collector vide Annexure-2. Thereafter a revision exercise was also undertaken before the revisional
Decision
authority and the same was dismissed resulting filing of the writ petition. 4. Mr. Samal, learned counsel for Petitioner basing on the foundation through the objection in the original proceeding in his opposition to the orders at Annexures-1, 2 & 3 contended that vendor involved herein deciding to sale its own share involving the property involved entered into the sale deed with clear disclosure of its caste through the land records available then. Mr. Samal, learned counsel for Petitioner submitted that there is disclosure of fact that undisputedly the land records disclose the vendor belonging to general caste, which fact has not been denied by Mr. Sahu, learned counsel for Opposite Party Nos.4 & 5 herein also. However taking this Court to the claim of husband of Opposite Party No.4 herein on the basis of a caste certificate granted only in favour of the husband of Opposite Party No.4 Mr. Samal, learned counsel for Petitioner submitted that there is no caste certificate involving Page 3 of 7 // 4 // the vendors disclosing that they belong to scheduled caste requiring sale transaction is in conformity of the provision at Section 22 of the Act, 1960. Mr. Samal, learned counsel further contended that since the vendor belongs to general caste being established through the record of rights, there is no room to consider the caste certificate in favour of Opposite Party No.4. Further taking this Court to the provisions at rule 5 of the Odisha Caste Certificate (for SC & ST) Rules, 1980 hereinafter in short be reflected as “the Rules, 1980” Mr. Samal, learned counsel for Petitioner submitted that even in issuing caste certificates, there is great relevancy on the indication of the caste of the person in the record of rights. Mr. Samal, learned counsel even disputed, when the record of rights clearly disclosed the caste of the vendor, under what premises Petitioner therein was provided with a caste certificate is not known. To substantiate his case in opposition to the orders at Annexures-1, 2 & 3 Mr. Samal, learned counsel for Petitioner taking this Court to the decision of the Hon’ble apex Court in the case of Punit Rai Vrs. Dinesh Chaudhary as reported in AIR 2003 SC 4355 and a decision of this Court in the case of Gauranga Naik Vrs. Collector, Sambalpur & Ors. as reported in 2010 (II) OLR 174 and reading through these decisions Mr. Samal, learned counsel for Petitioner attempted to submit that the decisions involved herein vide Annexures-1, 2 &3 are against the settled position of law through the above judgments even and further also in contrary to the provisions contained in rule 5 of the Rules, 1980 taken note hereinabove. Mr. Samal, learned counsel thus prayed for interfering in all the impugned orders. 5. Mr. Sahu, learned counsel for Opposite Party Nos.4 & 5 the initiator of Section 23 proceeding advancing his submission taking this Page 4 of 7 // 5 // Court to the pleadings in OLR case and in the original stage submitted that claim of the Petitioner in an exercise U/s.23 of the Act, 1960 is funded through a caste certificate in favour of the Petitioner undisputedly son of one of the co-sharers. It is for the support of the caste certificate of one of the vendors Mr. Sahu, learned counsel for Opposite Party Nos.4 & 5 attempted to justify the orders passed by all authorities. Mr. Sahu, learned counsel, however, admitted, neither his client was involved in the sale deed nor there was any attachment to the caste certificate in the sale transaction involved herein. In his support Mr. Sahu, learned counsel for Opposite Party Nos.4 & 5 relying on two decisions one of the Hon’ble apex Court in the case of Nara Raghava Rao Vrs. Nadiabasi Biswas as reported in AIR 1986 Orissa 255 and the other one of this Court in the case of 2013 (Supp.-II) OLR 308 and reading through the relevant paragraphs therein made an attempt to take support of the decisions to the case at hand in an attempt to justify the impugned orders herein. 6. Mr. Panda, learned State Counsel even though has no objection to the position of law involved herein, however, taking this Court to the observation and findings made by all the three courts attempted to justify the impugned orders. 7. Considering the submissions of the parties, this Court finds, undisputed fact remains here to be; neither Opposite Party Nos.4 & 5 are party to the sale transaction involved nor certificate in their favour was available or required to be considered during the sale transaction involved herein. The caste certificate so relied on had also nothing to do with the vendor. Husband of Opposite Party No.4 even has no case to establish, his predecessor and co-sharer belong to scheduled caste, however, the proceeding U/s.23 of the Act, 1960 was brought by a legal heir of one of Page 5 of 7 // 6 // the co-sharers and the sale transaction involved herein was made between the vendor and the vendee entering into a registered sale deed in taking support of a disclosures through the maintenance of the record of rights. There is clear disclosure by the vendor that the vendor did not belong to the scheduled caste, on the other hand belongs to general caste, which has again the support through the record of rights existing as of now. It is for the first time in a proceeding U/s.23 of the Act, 1960 the legal heir of one of the co-sharer the Opposite Party No.4 brings a surprise through the proceeding U/s.23 of the Act, 1960 on the support of a caste certificate granted in his favour. There is no material in the proceeding U/s.23 of the Act, 1960 at least to establish that the vendors and/or the predecessor of Opposite Party No.4 involving the sale deed belongs to scheduled caste and there has been suppression of material fact. Undisputedly the proceeding U/s.23 of the Act, 1960 is based on a 3rd party case without having any connection to the interest shown by the vendors or even establishing the caste of the vendors otherwise. This Court also takes into account the provision at Rule 5 of the Rules, 1980, this has a clear disclosure that there should be serious attachment to the caste of a person based on recording in the record of rights. For strong material available before entering into the registration aspect through the record of rights clearly disclosing that the vendor belongs to general caste, in the circumstance, this Court is of the opinion that no proceeding U/s.23 of the Act, 1960 would have been invited, unless until there is material disclosing that the vendors belong to scheduled caste and further unless such claim is brought by the vendor himself. This Court finds, the vendor involved herein even is not a party to any such proceeding nor the dispute involved any such question. Page 6 of 7 // 7 // 8. It is, at this stage of the matter, this Court taking into consideration the citations cited at Bar though finds, the decision shown by Mr. Samal, learned counsel for Petitioner through 2010 (II) OLR 174 supports the case of the Petitioners herein, however considering the decisions cited by Mr. Sahu, learned counsel appearing for Opposite Party Nos.4 & 5 so far as AIR 1986 Orissa 255 is concerned; this Court finds, this decision rather supports the case of the Petitioner. There is no room for considering the decision vide 2013(Supp.-II) OLR 308 to the case at hand. 9. In the circumstance, this Court finds, initiation of the proceeding U/s.23 of the Act, 1960 itself was bad. As a consequence this Court finds, any outcome in such proceedings also becomes bad. In the result this Court finds, there is mechanical disposal of the proceedings by all the three forums. This Court, accordingly, interfering in the orders at Annexurs-1, 2 & 3 sets aside the same. 10. The Writ Petition succeeds, however, there is no order as to costs. ……….………………… (Biswanath Rath) Judge Orissa High Court, Cuttack. The 20th January, 2023// Ayaskanta Jena, Senior Stenographer Page 7 of 7