Orissa High Court
Trilochan Sethi vs State Of Odisha And Others .... Opp. ... on 9 May, 2023
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO. 21371 OF 2022
Trilochan Sethi .... Petitioner
Mr. Niranjan Panda, Advocate
-versus-
State of Odisha and others .... Opp. Parties
Mr. Dillip Kumar Mishra,
Additional Government Advocate
(For Opp. Party Nos. 1 to 4)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 09.05.2023 6. 1. This matter is taken up through hybrid mode.
2. The Petitioner in this writ petition seeks to assail the order dated 16th July, 2022 (Annexure-2) passed in OLR Revision Case No.1 of 2022, whereby the Collector, Subarnapur, held that the sale deed executed in favour of Opposite Party No.5, namely, Sekh Abdul Thoba, on 13th August, 2002 is not invalid as the vendor was not a scheduled caste on the date of such execution.
3. Mr. Panda, learned counsel for the Petitioner submits that father of the Petitioner, namely, Uchhaba Sethi, executed a sale deed in favour of Opposite Party No.5. The Petitioner is the Keuta by caste and belongs to Scheduled Caste community. The purchaser, namely, Opposite Party No.5, is not a Scheduled Caste person. As such, permission under Section 22 of the Orissa Land Reforms Act, 1960 (for short 'the Act') should have Page 1 of 5 // 2 // been taken before execution of the sale deed. Since RSD No.796 dated 13th August, 2002 was executed in favour of Opposite Party No. 5 without obtaining permission from the competent authority under the Act, the same is void ab initio. Accordingly, application under Section 23-A of the Act was filed to declare the sale deed to be null and void. The said petition was dismissed vide order dated 13th July, 2016 holding that the vendor, namely, Uchhaba Sethi, was not a Scheduled Caste person on the date of execution of the sale deed. Assailing the same, the Petitioner filed OLR Appeal Case No.1 of 2016, which was also dismissed by learned Additional District Magistrate, Sonepur vide order dated 26th August, 2021. Being aggrieved, the Petitioner filed OLR Revision Case No. 1 of 2022 under Section 59 of the Act and the impugned order under Annexure-2 has been passed.
3.1 It is his submission that the authorities under the Act were under a misconception that the executant of RSD No.796 dated 13th August, 2002 was not a Scheduled Caste person on the date of such execution, held the sale deed to be valid. It is further submitted that the Petitioner belongs to caste 'Keuta', which was incorporated in the Presidential Order as per the Government of India Notification dated 18th February, 2002. Since the sale deed was executed thereafter, i.e. 13th August, 2002, the authorities under the Act have committed error of fact and law holding the transaction to be valid. In support of his case, he relied upon the case law in the case of Bikal Rout -v-
Page 2 of 5// 3 // Dhobani Bewa W/o. Daitari Behera and others, reported in 2014 (II) OLR 1116, in which this Court observed as under:
"The only point that arises is whether the caste 'Keuta' was scheduled caste on the date of execution of the sale deed so as to require permission of the competent authority under Section 22 of the OLR Act for its validity. Admittedly, on the date of execution of the sale deed dated 24.05.1978, the caste 'Keuta' was not a scheduled caste as per the Presidential Order for the State, though subsequently it was included in the Presidential Order as per Government of India Notification dated 18.02.2002."
(emphasis supplied) He also relied upon the case law in the case of Bijay Kumar Jally -v- Member, Board of Revenue and others, reported in 2010 (II) OLR 1010, wherein this Court at paragraph-5 observed as under:
5. Law is well settled that no authority other than the Parliament by law can amend the Presidential Order. Neither the State Government nor the Courts or Tribunals or any other authority can assume jurisdiction to hold enquiry or take evidence to declare that a caste or a tribe or a part of or a group within a caste or tribe is included in the Presidential Order in one entry or the other although they are not expressly & specifically included in the said order. The Amending Act of 2002 was published on 18.2.2002 & entry No.24 was substituted by adding 'Dhibara', 'Keuta', 'Kaibarta' to 'Dewar'. A bare reading of the Statement of Objects & Reasons reveals that the amendment was by way of modification which became necessary in view of the directives of this Court in the case of Narayan Behera v. State of Orissa (OJC No. 247 of 1978) & the Apex Court in the case of Bhaiya Ram Munda v.
Anirudh Patar & others reported in AIR 1971 SC 2533. In the case of Zile Singh v. State of Haryana & others reported in AIR 2004 SCW 5842 wherein the Apex Court has held as follows..............".
(emphasis supplied) Page 3 of 5 // 4 // He, therefore, submits that it is crystal clear that on the date of execution of the sale deed, the caste 'Keuta' had already been incorporated in the list of Scheduled Caste. This material aspect was lost sight of by the authorities under the Act. Hence, the impugned order under Annexure-2 is liable to be set aside.
4. Mr. Mishra, learned Additional Government Advocate, on the other hand, submits that the date on which the caste 'Keuta' was incorporated in the list of Scheduled Caste is relevant for our discussion. A copy of the Gazette Notification of the Government of India has been enclosed to the counter affidavit. Referring to the Gazette Notification of the Government of India dated 18th December, 2002, it is submitted that the caste 'Keuta' was incorporated as Entry No.24 in the list of Scheduled Caste. The sale deed in question was executed on 13th August, 2002. As such, there is no illegality in the impugned order under Annexure-2.
5. Considering the rival contentions of learned counsel for the parties and on perusal of the record, it appears that the validity of sale in question requires consideration keeping the date of entry of caste 'Keuta' in the list of Scheduled Caste. On perusal of the Gazette Notification of the Government of India annexed to the counter affidavit filed by the State, it is crystal clear that it has been incorporated as Entry No.24 in the scheduled caste list pursuant to the Government of India Gazette Notification dated 18th December, 2002. The date of entry as reflected in the above cited case law may be a typographical error. Thus, there is no iota of doubt that on the date of Page 4 of 5 // 5 // execution of the sale deed, the caste 'Keuta' was not included in the list of Scheduled Caste, as alleged by the Petitioner.
6. Accordingly, I find no infirmity in the impugned order under Annexure-2. Hence, the writ petition being devoid of any BIJAY Digitally signed by merit stands dismissed.
KUMA BIJAY SAHOO KUMAR Urgent certified copy of this order be granted on proper R Date:
2023.05.11 application.
SAHOO +05'30' 14:02:02 (K.R. Mohapatra) Judge bks Page 5 of 5