Orissa High Court
Belmati Pradhan (Dead) And Others vs Jaya Krushna Singh Rai And Others ... on 29 March, 2019
Equivalent citations: AIRONLINE 2019 ORI 168, (2019) 1 ORISSA LR 1061
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
O.J.C. No.5170 of 2002
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Belmati Pradhan (dead) and others ............... Petitioners
---versus--
Jaya Krushna Singh Rai and others ............... Opp. Parties
For Petitioners : Mrs. Jyotsnamayee Sahoo, Advocate
For Opp. Party
Nos.3 to 6 : Mr. Swyambhu Mishra, A.S.C.
For Opp. Party No.7 : Miss Siva Mohanty, C.G.C.
For Opp. Party
Nos.1, 2, 8 to 17 : None
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P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
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Date of Hearing: 20.03.2019 │ Date of Judgment: 29.03.2019
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Dr. A.K. Rath, J. This petition challenges the order dated 30.3.2002
passed by the Collector, Balangir, opposite party no.5, in OLR Revision
No.8 of 2001. By the said order, opposite party no.5 allowed the revision
and set aside the order dated 16.11.2001 passed by the Additional District
Magistrate, Balangir, opposite party no.4, in OLR Appeal No.6 of 2001,
whereby and whereunder the appellate authority set aside the order dated
21.8.2000 passed by the Sub-Collector, Balangir, opposite party no.3, in
R.C. No.1/93.
2. Adumbrated in brief, opposite party nos.1 and 2 filed an
application under Sec.23 of the Orissa Land Reforms Act, 1960 ("OLR Act")
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before the Sub-Collector, Balangir, opposite party no.3, to declare the sale
deed void and restore possession, which was registered as R.C. No.1 of
1993. It is stated that they are scheduled tribe persons. They belonged to
caste 'Gond'. The land was recorded in the name of their father,
Chitrabhanu Singh Rai. The petitioners are non-scheduled tribe persons.
The father of opposite party nos.1 and 2 had transferred the land in favour
of the predecessor-in-interest of the petitioners by means of a registered
sale deed dated 27.10.65 without obtaining permission from the Revenue
Officer under Sec.22 of the OLR Act.
3. Pursuant to the notice, the petitioners, who are opposite
parties in the proceeding, appeared and filed show cause stating that the
petitioners, opposite party nos.1 and 2 herein, are Raj Gond by caste.
They do not belong to caste 'Gond'. The caste 'Raj Gond' is not included in
the Constitution (Scheduled Tribes) Order, 1950. 'Raj Gond' and 'Gond' are
two different castes. No permission was required for alienation of the land.
Their vendor, Chitrabhanu Singh Rai was a literate person. In the sale
deed, he described his caste as 'Raj Gond'. He was the ex-zamindar of
Loisingha. He sold the land in favour of Madhusudan Padhan, predecessor-
in-interest of the petitioners, by means of a registered sale deed for a
consideration of Rs.5040/- and delivered possession. Chitrabhanu Singh
Rai had also executed an agreement to sell in favour of one Bhaskar
Behera and others described his caste as 'Raj Gond'.
4. Parties led evidence, oral and documentary. In course of
hearing, the opposite party nos.1 and 2 stated that they belonged to
'Gond' by caste. But in the ROR, their caste has been mentioned as 'Raj
Gond'. Their father was the zamindar of Loisingha. In 1936 settlement, he
was bestowed with the title of "Raja" by the erstwhile Raja of Patna State.
After 1936 settlement, he used to write Raja before their caste, though he
belonged to 'Gond' caste. The opposite party no.3 came to hold that the
caste of opposite party nos.1 and 2 is 'Gond', not 'Raj Gond'. They
belonged to 'Gond' by caste. They are scheduled tribe persons. No
permission was accorded by the authority. The deed is void one.
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Accordingly, it restored the possession of the land to them and issued writ
of delivery of possession of the same. The petitioners filed OLR Appeal
No.6 of 2001 before the Additional District Magistrate, Balangir. The
appellate authority held that in the sale deed, Chitrabhanu Singh Rai has
mentioned his caste as 'Raj Gond'. No authority can interpret 'Raj Gond' as
'Chief Gonds' or it is synonymous to 'Gond'. The caste 'Raj Gond' does not
find place in the Constitution (Schedule Tribes) Order, 1950. No
permission under Sec.22 of the OLR Act is necessary for alienation of land.
Held so, it allowed the appeal. The opposite party nos.1 and 2 filed OLR
Revision Case No.8 of 2001 before the Collector, Balangir. The Revisional
Authority came to hold that 'Raj Gond' is synonymous to the caste 'Gond'.
Held so, it allowed the revision.
5. Counter affidavit has been field by the opposite party nos.3 to
5 stating inter alia that Chitrabhabu Singh Rai, vendor of the petitioners,
belonged to 'Raj Gond' and not 'Gond'. His caste has been recorded as 'Raj
Gond' in the settlement ROR of 1936 and 1976 respectively. The caste 'Raj
Gond' does not find place in the Constitution (Scheduled Tribes) Order,
1950. Raj Gond is not synonymous to the caste 'Gond'.
6. Heard Mrs. Jyotsnamayee Sahoo, learned Advocate, on behalf
of Mr. Manoj Kumar Mishra, learned Senior Advocate for the petitioners
and Mr. Swyambhu Mishra, learned A.S.C. for the opposite party nos.3 to
6 and Miss Siva Mohanty, learned C.G.C. for opposite party no.7. None
appeared for the opposite party nos.1,2, 8 to 17.
7. Mrs. Sahoo, learned Advocate for the petitioners, submitted
that Chitrabhanu Singh Rai was not a scheduled tribe person. Thus
permission under Sec.22 of the OLR Act was not a sine qua non for
alienation of the land. Elaborating the submission, she submitted that
caste of Chitrabhabu Singh Rai is 'Raj Gond'. Raj Gond and Gond are not
synonymous. The caste of Chitrabhanu Singh Rai has been mentioned as
'Raj Gond' in the sabik as well as hal settlement ROR. The caste 'Raj Gond'
has been inserted in the Constitution (Scheduled Tribes) Order in the year
2003. But the sale deed was executed in the year 1965. She placed
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reliance on the decision of the apex Court in the case of State of
Maharashtra vs. Milind and others, (2001) 1 SCC 4.
8. Learned A.S.C. and learned C.G.C. submitted that the caste
'Raj Gond' is not synonymous to 'Gond'. Thus no permission was required
for alienation of the land.
9. In Milind and others, the question arose before the
Constitution Bench that whether it is permissible to hold inquiry and let in
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 (Schedule Tribes) Order, 1950 ? The apex Court held:
"36. xxx xxx xxx
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 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 (1) of Article 342.
xxx xxx xxx"
10. In view of the authoritative pronouncement of the decision of
the Constitution Bench in the case of Milind, no roving inquiry is
permissible to ascertain as to whether the caste 'Raj Gond' is synonymous
to 'Gond'. The Sub-Collector, Balangir, opposite party no.3, as well as the
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Collector, Balangir, opposite party no.5, travelled beyond their jurisdiction
making roving inquiry. The same is impermissible.
11. In the ROR of the year 1936 as well as 1976, the caste of
Chitrabhanu Singh Rai has been mentioned as 'Raj Gond'. He alienated the
land in the year 1965 in favour of predecessor-in-interest of the
petitioners describing his caste as 'Raj Gond'. The caste 'Raj Gond' does
not find place in Constitution (Schedule Tribes) Order, 1950.
12. Sec.22 (1) of the OLR Act provides:
"22. Restriction on alienation of land by Scheduled Tribes:-
(1) Any transfer of holding or part thereof by a raiyat,
belonging to a Scheduled Tribe shall be void except where it is
in favour of -
(a) a person belonging to a Scheduled Tribe; or
(b) a person not belonging to a Scheduled Tribe when such
transfer is made with the previous permission in writing of the
Revenue Officer.
xxx xxx xxx"
13. Sec.23 of the OLR Act deals with effect of transfer in
contravention of Section 22.
14. Sec.22 as well as Sec.23 of the OLR Act shall not come into
play in view of the discussions made in the preceding paragraphs.
15. In the wake of aforesaid, the impugned order is quashed. The
writ application is allowed. There shall be no order as to costs.
.....................................
Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 29th March,2019/Basanta