SMT. KASTURI SAHU Vs. STATE

JUDGEMENT

(1.) IN this writ petition challenge has been made to the validity of order dated 29.09.2004 passed by the opposite party no. 3 -Additional District Magistrate, Mayurbhanj in O.L.R. Appeal No. 6 of 2003 under Annexure -2 and the order dated 18.03.2005 passed by the opposite party no. 4 -Collector & District Magistrate, Mayurbhanj in O.L.R. Revision No. 2 of 2004 under Annexure -3. Petitioner's case, in short, is that under Registered Sale Deed No. 1143 dated 01.05.1981, she purchased a piece of land from one Mohan Behera and one Sanatan Behera, uncle and father, respectively, of opposite party no. 5 and since the date of her purchase, she has been in possession of her purchased land. In the year 2002, opposite party no. 5 instituted OLR Case No. 3 of 2002 before the opposite party no. 2 -Sub -Collector, Panchipir, Karanjia claiming that the vendors of the writ petitioner being "Keuta" by caste are members of a scheduled caste and the said transaction in contravention of the Section - 23 of the OLR Act is void. The learned Sub -Collector passed order vide Annexure -1 rejecting the OLR case observing that the said transaction was made in the year 1981 when Keuta caste was not included in the schedule of the Constitution (Scheduled Castes) Order, 1950 (for short, 'the Order').

(2.) BEING aggrieved by the order of rejection, opposite party no. 5 preferred OLR Appeal Case No. 6 of 2003 before the opposite party no. 3, the Additional District Magistrate, Baripada, who allowed the appeal and directed that the land be restored to opposite party no. 5. Opposite party no. 3 allowed the appeal by order dated 29.09.2004 vide Annexure -2 on the ground that the Commissioner and Secretary, Government of Orissa, H&TW Department in his letter No. 12349 dated 23.04.1982 has clarified that Circular No. 17659 -H.T.W. dated 20.07.1981 regarding inclusion of Dhibara, Keuta and Kaibarta communities in the list of S.Cs. for the state of Orissa as per the judgment in O.J.C. No. 247 of 1978 rendered by the Orissa High Court was effective from the date of the judgment which was pronounced on 5.11.1979. It is not in dispute that in the Circular No. 17659 -H.T.W. dated 20.07.1981 addressed to all Collectors of the State it is instructed that in view of the judgment of the Orissa High Court in O.J.C. No. 247 of 1978, Keuta, Kaibarta and Dhibara communities have to be treated as synonymous names of 'Dewar' community which has already been specified in the Schedule in relation to the state of Orissa.

(3.) ON behalf of the petitioner, it is submitted that it is only by virtue of a presidential notification issued in exercise of powers conferred under Article - 341(1) of the constitution that any caste can be treated as scheduled caste in terms of Article - 366(24) and for that reason the caste Keuta could not have been treated as scheduled caste as on the date of Registered Sale Deed, i.e., 01.05.1981, in as much as the caste Keuta was included in paragraph -3 of the Schedule relating to state of Orissa for the first time in the year 2002. It is further submitted that the appellate as well as the revisional authority under the OLR Act could not have treated the petitioner's vendors as persons belonging to a schedule caste.