(Through Hybrid Mode) vs State Of Odisha And Others
2023 Latest Caselaw 153 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                       W.P.(C) No.15048 of 2022
                        (Through Hybrid mode)
   Kunalata Nayak                            ....               Petitioner

                                  -versus-

   State of Odisha and others                ....         Opposite Parties


   Advocates appeared in this case :

   For Petitioner :                Mr. H. K. Mohanta, Advocate
                                   Mr. Niranjan Lenka, Advocate

   For Opposite Parties :          Mr. Y.S.P. Babu, AGA
                                   Mr. A. K. Sharma, AGA
                                   Mr. Sourya Sundar Das,
                                   Senior Advocate, Amicus Curiae
                                   Mr. Jagamohan Pattanaik, Advocate
                                   Mr. Ayushman Pattnaik, Advocate
                                   Mr. Jyotiranjan Behera, Advocate

              CORAM: JUSTICE ARINDAM SINHA
                           JUDGMENT

04.01.2023

1. Mr. Mohanta, learned advocate appears on behalf of petitioner

and submits, impugned is order dated 8th October, 2021 made by the

Sub-Collector in Misc. Certificate Appeal no.01 of 2019. He submits,

the Tahsildar duly issued caste certificate to his client but private

opposite party no.6 filed purported appeal. The Sub-Collector had no

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jurisdiction to enter upon and adjudicate on the allegations made

against his client since, verification of caste certificate can only be

done by the State Level Scrutiny Committee. He hands up order

dated 2nd November, 2022 made by this Bench in WP(C) no.24104

of 2022 (Baijanti Malik vs. State of Odisha and others) to submit,

the position stands settled. Text of the order is extracted and

reproduced below.

"1. Mr. Das, learned advocate appears on behalf of petitioner and submits, his client's caste certificate was purported to be cancelled by impugned order dated 29th August, 2022 made by the Additional Tahasildar. He relies on section 7 in Odisha Scheduled Caste, Scheduled Tribe and Backward Classes (Regulation of issuance and verification of Caste Certificate) Act, 2012 to submit, only the Scrutiny Committee can cancel caste certificate. He relies on view of coordinate Bench by Judgment dated 20th May, 2022 in W.P.(C) no.3373 of 2022 (Namita Sagaria vs. State of Odisha and others) saying that the Act makes it clear, only Scrutiny Committee constituted under it has been empowered to verify genuineness of caste certificate.

2. Mr. Nanda, learned advocate, Additional Government Advocate appears on behalf of State.

3. Clear jurisdictional error committed by the Tahasildar is apparent. Said office could not have cancelled the caste certificate. As such, impugned order is set aside and quashed.

4. The writ petition is allowed and disposed of."

// 3 //

2. Mr. Das, learned senior advocate, present in Court, submits,

Odisha Scheduled Castes, Schedule Tribes and Backward Classes

(Regulation of issuance and verification of Caste Certificates) Act,

2012 says under sub-section (2) in section 1 that it shall come into

force on such date the State Government may, by notification in the

official gazette, appoint. Clause(d) in section 2 gives meaning of

competent authority as to be notified and includes all competent

authorities already designated before the commencement. Section 17

says, save as otherwise provided, provisions of the Act shall be in

addition to provisions of any other law for the time being in force. He

submits further, in spite of probing search, he could not find any

notification of appointed date, from when the Act came into

operation. He submits still further, ratio decidendi in Namita Sagaria

(supra) is that only the State Level Scrutiny Committee could go into

verification of caste certificates and, inter alia, declare it to be fake.

3. Mr. Behera, learned advocate appears on behalf of private opposite

party no.6 and draws attention to order dated 24th November, 2020 made by

same co-ordinate Bench in WP(C) no.27451 of 2020 (his client's case) and

submits, State had represented to Court that the Collector and District

Magistrate, Nayagarh is the appellate authority to be approached. His client

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withdrew the writ petition and went to the Sub-Collector, who duly made

impugned order.

4. Court, on requirement of further assistance from Mr. Das appoints

him as amicus curiae. Query put to him is, consequence of Namita

Sagaria (supra) in the situation, where there does not appear to be

notification of appointed date for coming into force of the 2012 Act. Mr.

Das submits, under rule 8 in Odisha Caste Certificate (for Scheduled Castes

and Scheduled Tribes) Rules, 1980 it is only the competent authority, who

issued the certificate, shall have the right to cancel the same and pass order

for revocation of the benefits that might have been acquired by the person

concerned. Rule 6 provides for the offices of the competent authority. He

submits, the Sub-Divisional Magistrate/Sub-Divisional Officer mentioned

at (3) in rule 6 is the Sub-Collector. However, in the case at hand, the caste

certificate having had been issued by the Tahsildar, it could not have been

cancelled by the Sub-Collector. It is irrelevant that the Act of 2012 has not

been notified to have come into force on an appointed date because

competent authority provided by the Act are to be also notified, in addition

to the authorities mentioned in the sub-ordinate legislation being the Rules

of 1980.

5. Mr. Sharma, learned advocate, Additional Government Advocate

also present in Court hands up notification dated 23rd September, 2019

published by authority in the official gazette on 4th October, 2019. It

// 5 //

appears the notification is of draft rules. It says the rules are proposed to be

made in exercise of power conferred by section 18 of the 2012 Act (Odisha

Act 8 of 2014). This tends to confirm that the Act of 2012 has not been

notified to have come into effect on an appointed date. The rules were also

notified as 'draft'.

6. What emerges is that the cancellation by impugned order was

made by an authority not sanctioned by the Rules of 1980. The Tahsildar,

having issued the caste certificate to petitioner, could only have entered

into a verification regarding cancellation of it and not the Sub-Collector.

Impugned order is set aside and quashed.

7. Court appreciates assistance rendered by amicus curiae and Mr.

Sharma.

8. The writ petition is allowed and disposed of.

(Arindam Sinha) Judge Prasant