Sukra Karmali Son Of Late Sabur ... vs The State Of Jharkhand
2023 Latest Caselaw 2650 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                (Letters Patent Appellate Jurisdiction)

                            LPA No. 368 of 2020

Sukra Karmali son of Late Sabur Karmali, aged about 62 years old, Resident
of Village Buti and Post Office- Dumardaga, P.S. Ranchi (Sadar), District,
Ranchi                                ......     Petitioner/ Appellant
                                      Versus
1. The State of Jharkhand
2. The Commissioner, Ranchi, Post Office and Police Station- Ranchi,
District- Ranchi
3. The Additional Collector, Ranchi, Post Office and Police Station- Ranchi,
District- Ranchi
4. The Learned Special Officer, Scheduled Area Regulation, Ranchi, Post
Office and Police Station- Ranchi, District- Ranchi
5. Pankaj Kejriwal son of Sri Puroshottam Kejriwal, resident of Lake
Avenue, Kanke Road, Post Office- Kanke, Police Station- Gonda District
Ranchi                                        ... Respondents/ Respondents
                              ---------------

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
     HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

For the Appellant             : Mr. Abhishek Kumar Dubey, Advocate
For the State                 : Mrs. (Dr.) Vandana Singh, Sr. SC-III
                                Mr. Sandeep Verma, AC to Sr. SC III
For the Respondent No.5       : Mr. Ramit Satendra, Advocate
                                Mr. Subhneet Jha, Advocate
                        ---------------
                                    Order No. 07/ Dated: 07th August 2023
Per, Anubha Rawat Choudhary, J.

I.A. No. 337 of 2021 This application has been filed under section 5 of the Limitation Act for condoning the delay of 580 days in filing the present Letters Patent Appeal.

2. Being satisfied of the cause shown by the appellant in filing this appeal, delay of 580 days in filing this appeal is condoned.

3. I.A. No. 337 of 2021 is allowed.

LPA No. 368 of 2020

4. This appeal has been filed challenging order dated 27 th February 2019 passed by the learned writ Court whereby the writ petition filed by the appellant has been dismissed.

5. The appellant had challenged the order dated 19th February 2018

passed in S.A.R. Revision No. 20 of 2010 passed by the learned Commissioner, South Chotanagpur Division, Ranchi whereby the appellate order dated 22nd February 2010 passed by the Additional Collector, Ranchi has been affirmed and the revision petition has been dismissed.

6. The dispute revolves around the point as to whether the petition seeking restoration of land under section 71-A of Chotanagpur Tenancy Act, 1908 was maintainable at the instance of the appellant. Admittedly, a petition under section 71-A of Chotanagpur Tenancy Act, 1908 is maintainable only at the instance of a person belonging to Scheduled Tribe community. The appellant claims to belong to the community 'Lohara' - a Scheduled Tribe.

7. Before proceeding further, it would be important to deal with the judicial pronouncement in connection with the status of 'Lohar' and 'Loharas' or 'Lohras'.

8. In Three-Judge Bench of the Hon'ble Supreme Court reported in "Nityanand Sharma and Another v. State of Bihar and Others" (1996) 3 SCC 576 it has been held in paragraph no. 20 of the report that 'Lohars' belong to 'Other Backward Class' and that they are not 'Schedule Tribes'. It has further been held that the Court cannot give any declaration that 'Lohars' are equivalent to 'Lohras' or 'Loharas'. It has also been held that any contrary view taken by any Bench/Benches of Bihar High Court is erroneous. It was also observed that except in some stray cases, there is a consistent view of the Courts that 'Lohars' are not 'Schedule Tribes', they are 'blacksmith'. Paragraph no. 20 of the aforesaid judgment is quoted as under:

"20. Accordingly, we hold that Lohars are an Other Backward Class. They are not Scheduled Tribes and the Court cannot give any declaration that Lohars are equivalent to Loharas or Lohras or that they are entitled to the same status. Any contrary view taken by any Bench/Benches of Bihar High Court, is erroneous. It would appear that except some stray cases, there is a consistent view of that Court that Lohars are not Scheduled Tribes. They are blacksmiths. We approve the said view laying down the correct law."

9. Upon going through the aforesaid judgment, this Court finds that the Hon'ble Supreme Court has taken note of earlier judgment decided on

15th September 1990 in CA No. 4631 of 1990 (Shambhu Nath v. State of Bihar) wherein it was held that that 'Lohar' community is a 'Scheduled Tribe' which was followed by another SLP arising out of a writ petition being CWJC No. 1034 of 1991 dated 21 st September 1992 wherein a similar view was taken and there were other orders of the High Court wherein 'Lohars' were held to be belonging to 'Scheduled Tribe' including one writ petition decided on 20th September 1993 in CWJC No. 3390 of 1992. However, in the aforesaid judgment "Nityanand Sharma" (supra) the Hon'ble Supreme Court held that in "Shambhu Nath" case the Hon'ble Supreme Court did not intend to lay down any law that 'Lohars' are 'Scheduled Tribe' Thus the law was ultimately declared and settled that 'Lohars' belong to 'Backward Class' community and that 'Lohra' or 'Lohara' are Scheduled Tribes. Thus, it is apparent that till the pronouncement of judgment dated 02nd February 1996 in the case of "Nityanand Sharma" (supra) there were conflicting view in connection with the status of 'Lohar' and 'Loharas' or 'Lohras' in the then State of Bihar.

10. The aforesaid judgment passed in the case of "Nityanand Sharma"

was again considered by the Hon'ble Supreme Court in Five-Judge Bench in the case of "State of Maharashtra v. Milind and Others" (2001) 1 SCC 4 wherein it was held that Halba/Koshti could not be treated to be a sub-tribe of Halba/Halbi.

11. Now coming to the facts of this case, in the year 1989-90 an application under the provisions of section 71-A of Chotanagpur Tenancy Act, 1908 for restoration of land was filed by the appellant which was numbered as S.A.R. Case No. 166 of 1989-90. The said case was decided by an ex-parte order dated 10th September 1991 whereby the authority held that the appellant was belonging to a member of Scheduled Tribe community and directed restoration of land to the appellant. The property involved in the present case was recorded in the name of ancestor of the appellant namely, Aghnu Karmali and as per khaitan i.e record of rights, he was belonging to the community, namely, 'Lohar' - a Backward Class. As is apparent from the order dated 10th September 1991, the appellant had applied

for restoration of land by claiming himself as 'Lohar' but ultimately, he claimed to be a member of Schedule Tribe community.

12. The order of restoration of land to the appellant was challenged before the appellate authority being S.A.R Appeal No. 07 R15 of 2009-10 and the appellate authority was of the considered view that the application filed under section 71-A can be filed only by the person belonging to Scheduled Tribe community and was also of the view that the property was recorded in the name of the ancestor of the present appellant namely, Aghnu Karmali, who was belonging to the community 'Lohar', a backward caste. The appellate authority considered the entry in khaitan i.e record of rights to be a conclusive proof and also took into consideration the aforesaid judgment passed by the Hon'ble Supreme Court in "State of Maharastra v. Milind and Others" AIR 2001 SC 393, and allowed the appeal.

13. The appellate order was challenged by the present appellant before the revisional authority which was numbered as S.A.R Revision Case No. 20 of 2010. The revisional Court considered the following:-

"1. In khatiyan caste is "Lohar".

2. Sukra Lohar sold his lands to Basant Vihar through registered deed no. 2389 dated 27th February 1989.

3. He also sold 5 katha land of khata no. 3 plot no. 295 to Dhyanandan Mishra and further 5 katha land to Shail Mishra in the year 2002. In all sale deed Sukra Karmali and Rushni Devi showed themselves as Lohar.

4. Block Office, Kanke issued caste certificate of Lohar (Backward Class) vide letter no. 555 dated 10th June 2008 in favour of Kundo Devi, d/o late Amrit Lohar. Whereas, Ranchi Anchal issued caste certificate of Lohra (Scheduled Tribe) to Sukra Karmali vide letter dated 164 dated 13th April 1988. Both are from same ancestors-khatiyani raiyat. Hence, certificate of Lohra of appellant is doubtful.

14. The revisional authority refused to interfere with the appellate order by recording that the ancestor of the present appellant, namely, Aghnu Karmali, the recorded tenant, belongs to the community called 'Lohar' and some portions of the property was sold in the year 1988 and 1989 and from perusal of such deeds it would appear that the family members of the appellant belong to 'Lohar' community. It was also found that some of the members of the same family were having the caste certificate of backward class showing that they belong to

'Lohar' community and the caste certificate which was issued to the appellant on 13th April 1988 shows that he belongs to Scheduled Tribe community. The revisional authority recorded that in different documents different caste was mentioned in connection with the family members of the common ancestor, namely, Aghnu Karmali and accordingly the learned Commissioner was of the view that the caste which was recorded in the record-of-rights was to be taken into consideration. The learned Commissioner ultimately held that the application under section 71-A of the Chotanagpur Tenancy Act, 1908 was itself not maintainable as the appellant does not belong to a Scheduled Tribe community.

15. The learned writ Court has also taken note of the aforesaid facts and circumstances of the case and has considered the materials which were produced by the appellant and has refused to interfere with the order passed by the revisional authority by which the order of the appellate authority was affirmed.

16. The learned counsel for the appellant has tried to impress upon this Court that there was a declaration in connection with the caste of the appellant by civil Court in Title Suit No.108 of 1992/ renumbered as Title Suit No. 6 of 99 decided on 08th June 2001. This Court finds that in the said title suit the earlier ex-parte order passed in SAR Case No. 166 of 1989-90 decided in favour of the appellant, which is now the subject matter of this case, was also one of the materials for consideration. The records of the case also indicate that the appellant was also a party in another Title Suit No. 138 of 1992 dealing with specific performance of contract in which decree was passed on 04th July 1995 (annexure-6) wherein he was described as belonging to 'Lohar' community.

17. The appellate authority and the revisional authority have taken into consideration that as per the khaitan i.e record of rights, the ancestor of the appellant belongs to the community 'Lohar', a backward class and not 'Lohara', a schedule tribe. The appellate authority has also held that entry in khaitan i.e record of rights is conclusive proof. The revisional authority has also taken into consideration that the appellant has given his caste status as 'Lohar', a backward class in

different documents including while executing sale deeds in connection with his properties and caste status of 'Lohar' has been issued to other persons belonging to the common ancestor.

18. During the course of hearing, inspite of specific question put to the learned counsel for the appellant, he is not in a position to answer as to how different caste status of the appellant/his family members is reflecting in various documents/orders in which the appellant is a party including the sale deeds executed by him declaring himself as belonging to the community 'Lohar'. Moreover, it is not in dispute that the basic document i.e the record of rights has recorded the caste of the ancestor of the appellant as 'Lohar' and not 'Lohara'. It appears that the appellant has been using his caste status as 'Lohar' or 'Lohara' as per his convenience. While selling the property, he uses the caste status as 'Lohar' and for claiming restoration of land he uses the caste status as 'Lohara'.

19. This Court is of the considered view that the stand taken by the Deputy Commissioner as well as the Commissioner that the status of the appellant belonging to Scheduled Tribe community was in doubt and therefore, they have rightly taken into consideration the caste which was recorded in the record-of-rights of the ancestor namely, Aghnu Karmali as 'Lohar' and held that the application for restoration of land under section 71-A was not maintainable at the instance of the appellant.

20. As a cumulative effect of the aforesaid findings, the impugned order passed by the learned writ court dismissing the writ petition does not call for any interference. This appeal is accordingly dismissed.

(Shree Chandrashekhar, J.)

(Anubha Rawat Choudhary, J.) Jharkhand High Court, Ranchi Dated: 07th August 2023 Tanuj/N.A.F.R