GOURAHARI NAIK Vs. ADDL DISTRICT MAGISTRATE

JUDGEMENT

(1.) THE petitioner who claims himself to be a person belonging to Scheduled Tribe being a 'Bhuyan' filed a case before opp. party No. 2 -oub -Divisioial Officer, Kaptipada, Mayurbhanj alleging that he had sold M -3 -3 -3 -8 of land pertaining to Plot Nos. 331 and 341 of Khata No. 57 in mouza Barhadiha under registered sale deed No. 1470 dated 1 -5 -1970 to one Sambhu Mohanto since deceased, the father of the present Opp. party Nos. 3 to 5. Since no permission 'was taken from the competent authority for effecting the aforesaid transfer, he filed an application on 10 -9 -1976 for declaring the sale void and for restoration of the land to his possession.

(2.) THE said application was registered as Regulation -ll Case No. 874 of 1976 in the Court of the opp. party No. 2 (S. D. O., Kaptipadi) in which two witnesses were examined on behalf of the petitioner and 3 witnesses were examined on behalf of opp. party Nos. 3 to 5 which included opp. parties Nos. 3 and 5 and another attesting witness to the sale deed, Opp. party No. 2, however, rejected the petition on the ground that the petitioner while seiling his land, described himself to be a person belonging to a caste namely 'Rajkula Bhuyan' and which does not find place in the schedule of the Presidential (Scheduled Tribas), 1950 and as such he is not a member of Scheduled tribe. The petitioner thereafter found that the finding of the opp. party No. 2 was due to his misreading of the evidence resulting commission of error on the face of the record as he wrongly read the evidence that the petitioner had stated not to be belonging to the Scheduled Tribe whereas such was not the case. The petitioner, accordingly preferred an appeal against the said order of opp. party No. 2 dated 31 -12 -1982 alleging therein that nowhere he had said that he did not belong to Scheduled Tribe and the opo. party No. 2 did commit an error appearent on the face of the record in that regard.

(3.) HOWEVER , on an application being filed by opp. party Nos. 3 to 5, the said ex parte order was set aside and the case was reheard and by his order dated 19 -3 -1984, the appellate authority (opp. party No. 1) held that since 'Rajkula Bhuyan' does not find place in the Presidential Schedule, the petitioner could not be said to be a person belonging to Scheduled Tribe and was not entitled to the benefit of Regulation -II of 1956 and rejected the appeal. Against that order dated 19 -3 -1984 of the Addl. District Magistrate - opp. party No. 1 passed on rehearing of the case, the petitioner prefers this writ application.