Orissa High Court
Sri Kartika Dalai vs Collector on 4 February, 2019
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No.13822 of 2018
In the matter of an application under Article 226 of the Constitution of
India.
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Sri Kartika Dalai .... Petitioner
Versus
Collector, Balasore & others .... Opposite parties
For Petitioner ... Mr. Prasanta Kumar Mohanty 2
and Mr. P. K. Pradhan, Advocates
For Opposite Party ... Mr. R.P. Mohapatra, AGA
Nos.1 to 3
For Opposite Party ... Mr. Rama Chandra Jena and
No.4 Mr. M. R. Padhi, Advocates
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing and judgment : 04.02.2019
Dr. A.K.Rath, J This petition challenges the order dated 10.10.2013,
passed by the Sub-Collector, Balasore, opposite party no.3 in OLR Case
No.5 of 2005, rejecting the prayer of the petitioner to restore the land
under Sec.23 of the Orissa Land Reforms Act (in short 'Act').
2. The case of the petitioner is that he is a schedule caste
person. His caste is 'Dandachhatra Majhi'. The land in question has
been sold to Paramananda Barik, opposite party no.4 by his brothers
and mother without obtaining permission from the competent authority
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as required under Sec.23 of the Act. He is in possession of the land.
The opposite party no.4 is trying to dispossess him from the land. With
the above factual scenario, he filed an application under Sec.23 of the
Act before the Sub-Collector, Balasore.
3. Pursuant to issuance of notice, the opposite party no.4
entered appearance and filed his show-cause stating inter alia that the
vendor of the opposite party no.4 is not a party to the case. The
petitioner does not belong to schedule caste category. In the Major
Settlement ROR as well as in the registered sale deed, the caste of the
vendors had mentioned as 'Khandayat'. He had purchased the land
from the petitioner's co-sharers. Permission under Sec.22 of the Act is
not sine qua non to sale the land.
4. The Sub-Collector came to hold that the petition is not
maintainable. The enquiry report of the Tahasildar reveals that the
caste of the petitioner has been mentioned as 'Dandachhatra Majhi'. In
the Record of Rights, the caste has been mentioned as 'Khandayat'. The
petitioner is in possession over his share for an area of Ac0.02½ dec.
and opposite party no.4 is in possession of an area of Ac0.07½ dec. of
land out of total area of Ac0.10 dec. The vendors of opposite party no.4,
who are the co-sharers of the petitioner, have no objection with regard
to possession of the said land by the opposite party no.4. The interest of
the petitioner has not been hampered. The vendors of opposite party
no.4 have not filed any petition under Sec.23 of the Act for restoration
of the suit land in their favour. In the event the suit land is restored to
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the vendors or legal heirs of the vendors, it will not enure to the benefit
of the petitioner. The petitioner has failed to substantiate that the
vendors of opposite party no.4 belong to schedule caste. Held so, it
rejected the petition.
5. Heard Mr. Prasanta Kumar Mohanty 2, learned counsel for
the petitioner, Mr. R.P. Mohapatra, learned Additional Government
Advocate for the State and Mr. Rama Chandra Jena, learned counsel
for the opposite party no.4.
6. Mr. Mohanty, learned counsel for the petitioner submits
that petitioner is a schedule caste person. He belongs to 'Dandachhatra
Majhi'. The caste 'Dandachhatra Majhi' has been subsequently added to
the Constitution (Scheduled Caste) Order (Second Amendment) Act,
2002 by way of amendment. The amendment is clarificatory in nature.
It will relate back to the year 1950.
7. Per contra, Mr. R.P. Mohapatra, learned Additional
Government Advocate for the State submits that the amendment shall
take effect from the date of amendment.
8. Per contra, Mr. R. C. Jena, learned counsel for the opposite
party no.4 submits that petitioner is not a schedule caste person. The
Record of Rights vide Ext.1 reveals that he belongs to 'Khandayat' by
caste. The vendors of the opposite party no.4 have not filed any
application for restoration of the suit. Since they are 'Khandayat' by
caste, the amendment made to the Constitution (Scheduled Caste)
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Order (Second Amend) Act, 2002, has no application to the facts of this
case.
9. Admittedly, the opposite party no.4 has purchased the
lands from the brothers and mother of the petitioner by means of three
registered sale deeds dated 4.5.2001, 21.12.2001 and 16.3.2005
respectively. The Record of Rights reveals that the vendors of the
opposite party no.4 are 'Khandayat' by caste. The sale deeds also reveal
the same. The opposite party no.4 cannot make a roving enquiry to find
out the caste of the vendors. The opposite party no.4 is a bonafide
purchaser of value. The Records of Right reveal that the brothers of the
petitioner belong to 'Khandayat' by caste. The amendment made to the
Constitution (Scheduled Caste) Order (Second Amend) Act, 2002 has no
application to the facts of this case. The impugned order does not suffer
any infirmity or illegality, warranting interference of this Court.
10. In the wake of the aforesaid, the writ application, sans
merit, deserves dismissal. Accordingly, the same is dismissed. There
shall be no order as to costs.
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DR. A.K.RATH, J.
Orissa High Court, Cuttack. Dated 4th February, 2019/Uks