Orissa High Court

Roshanlal Kori vs Collector on 13 December, 2022

          ORISSA HIGH COURT : C U T T A C K
                       W.P.(C) NO.5318 OF 2009
                   An application under Articles 226 & 227 of
                        the Constitution of India.


Roshanlal Kori                                    : Petitioner

                                -Versus-

Collector, Jharsuguda & ors.                      : Opposite Parties


      For Petitioner                  : M/s.S.Mohanty, P.K.Mohanty
                                        & L.N.Patel

      For O.Ps.1 & 2                  : Mr.S.Ghosh, AGA

      For O.P.3                       : Ms.G.Majhi, Adv.

                                JUDGMENT

CORAM :

JUSTICE BISWANATH RATH

Date of Hearing & Judgment : 13.12.2022

1. The Writ Petition involves a challenge to the appellate order under

Annexure-3 passed in exercise of power under the Orissa Caste

Certificate (for Scheduled Caste and Scheduled Tribes) Rules, 1980 (in

short, "the Rules, 1980").

2. Background involving the case is, the Petitioner was undisputedly a

domicile in Madhya Pradesh. The Petitioner was living in the State of

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Odisha for quite number of years. In an attempt to be a land owner in the

State of Odisha, the Petitioner was engaged with the private O.Ps. for

purchasing their land by entering into a Registered Sale Deed in 2004.

The Sale Deed depicts both sides being Scheduled Castes with clear

recording of the same. It is after four years of the purchase of the land, it

appears, the Petitioner applied for a caste certificate under the provision

of the Rules, 1980. Further fact disclosed, the decision having been taken

on the request of the Petitioner after involvement of the R.I.report, the

Petitioner was provided with a caste certificate, vide Annexure-2. An

Appeal was brought in 2008. About three months after the private O.Ps.,

the Vendors involving the sale deed herein brought Appeal No.1/2008

under the provision of Rule 9 of the Rules, 1980. This Appeal was

disposed of, vide Annexure-3 by taking out the Caste Certificate standing

in favour of the Petitioner, vide Annexure-2.

3. Mr.Mohanty, learned counsel for the Petitioner taking this Court to

the involvement of detailed exercise attempted to submit that there has

already been compliance of the provision at Rules 5 and 7 of the Rules,

1980. Taking this Court to the disclosures in Annexure-2 and the inquiry

report, vide Annexure-5, Mr.Mohanty attempted to support his such claim

and in the process, contended that there has been wrong consideration of

the issue involving the Appeal.

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4. Ms.G.Majhi, learned counsel for O.P.3 in her attempt to challenge

the grounds raised by the Petitioner and taking this Court to the

observations of the Appellate Authority in Paragraph-3 of Page-28 of the

Brief and reading together with the provision at Rule 7 of the Rules, 1980

attempted to satisfy that for there is no involvement of a recommendation

by the Chairman of the Municipality, there is no compliance of the

provision at Rule 7 of the Rules, 1980. Ms.Majhi, learned counsel also

attempted to submit that on the utilization of the previous caste certificate

being a resident of Madhya Pradesh originally by taking support of the

decision of the Hon'ble apex Court in Action Committee vrs. Union of

India reported in 1994 SCC (5) 244. It is in the circumstance, Ms.Majhi

claimed dismissal of the Writ Petition.

5. This Court finds, the present dispute commenced on an attempt of

the Vendor already involved in a sale transaction with the Vendee, the

present Petitioner. This Court also records, there is clear material and the

Caste (Kori) the Petitioner held is declared as Scheduled Caste in the

Notification of President meant for both States, Odisha and Madhya

Pradesh as well. Looking to the nature of dispute involved herein having

the foundation in grant of caste certificate, vide Annexure-2 involving the

Application of the Petitioner and involving an exercise under the Rules,

1980, it is while also keeping in view the question raised by both Parties,

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this Court finds, there is no room for considering the Petitioner's caste in

other State. In purchase of the land by Registered Sale Deed, there should

not be any doubt that the Petitioner is not a permanent resident at least in

2008. Caste aspect however can be gone into by undertaking the exercise

required under the Rules, 1980. Rule 4 of the Rules, 1980 prescribes for

verification of caste. Rule 5 prescribes issuing such certificate after

proper verification based primarily on revenue records and if need be,

through reliable enquiries is made before issue of certificates. For

availability of R.I. report, this Court finds, there has been already met

with the provision at Rules 4 & 5. It is in the circumstance, this Court

finds, the observation of the Collector, Jharsuguda for non-compliance of

Rule 5 is contrary to the materials available on Record.

6. In the circumstance this Court finds, the only question remains to

be considered here as to whether there has been compliance of Rule 7 of

the Rules, 1980. While also keeping in view the objection of Ms.Majhi,

learned counsel for O.P.3 that there has been no compliance of this

provision, this Court here looking to the report taken note in the grant of

caste certificate, vide Annexure-5, finds for the submission of the R.I.

report, there has been attachment of statement of the Councilor of the

Municipality. This Court takes note the Rule 7 of the Rules, 1980, which

reads as follows :-

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"7. Recommendatory Authority- the following authorities for the purposes of these Rules may recommend of the competent authority for issue of caste certificates to the persons belonging to Scheduled Castes and Scheduled Tribes in the State of Odisha.

(1) The Sarpanch of the Grama Panchayat in respect of persons residing within the jurisdiction of the Grama Panchayat concerned.

(1-a) Chairman of the Municipality/Notified Area Council and Mayor of Municipal Corporation.

(2) Members of the Odisha Legislative Assembly in respect of persons belonging to their constituencies. (3) Members of Parliament from Odisha in respect of their constituencies;

Provided that the competent authority may issue caste certificates on the basis of the recommendation to the recommendatory authority. He may, however, cause such verification or enquiries as may be necessary for the purpose of his own satisfaction."

Reading the aforesaid provision, this Court finds, the Rule requires

involvement of a recommendation of the Chairman of the Municipality

considering the Petitioner is a resident in a municipal area.

7. It is in this view of the matter and for an attachment of a statement

of the Councilor, this Court finds, there is no compliance of the provision

at Rule 7 taken note herein. In the circumstance, this Court finds, there is

no proper grant of caste certificate, vide Annexure-2 and the Collector,

Jharsuguda is justified in so far as non-compliance of Rule 7 involved

herein.

8. In the circumstance, this Court interfering with that part of the

order of the Collector, Jharsuguda suggesting non-compliance of Rule 7

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