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PETITIONER: REVENUE OFFICER & ORS.

       Vs.

RESPONDENT: PRAFULLA KUMAR PATI & ORS.

DATE OF JUDGMENT17/01/1990

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1990 AIR  727            1990 SCR  (1)  88  1990 SCC  (2) 162        JT 1990 (1)   155  1990 SCALE  (1)124

ACT:     Orissa   Land  Reforms  Act,  1960:  Sections   22   and 23--Land--Sale by a Scheduled Caste in favour of  non-Sched- uled  Caste--Requisite permission from Revenue  Officer  not obtained--Validity of.     Constitution of India,  1950: Article 341---The  Consti- tution   Scheduled   Castes   order,   1950--Schedule---Part XIII--Item No. 26-’Rajaka’ Caste--Whether ’Scheduled  Caste’ Caste not specified in the List--Effect of--Duty of Court to enquire. Words and Phrases: ’Rajaka ’--Meaning of.

HEADNOTE:     Respondent  No. 2, a scheduled caste, filed a  case  for restoration of lands sold to respondent Nos. 1, 3 and 4, non scheduled castes, on the ground that the sale was in  viola- tion  of section 22 of the Orissa Land Reforms Act, 1960  as the  requisite  permission of the Revenue  Officer  was  not obtained.  In the sale deed the  transferor--Respondent  was described as ’Rajaka’ while in the caste certificate he  was mentioned  as  ’ Dhoba’. The Revenue  Officer  rejected  the ease.     Respondent  No. 2 filed an appeal which was  allowed  by the  Additional  District Magistrate. Against the  order  of Additional  District Magistrate a revision was preferred  by respondent No. 1 which was dismissed by the Special Officer, Land Reforms by holding that merely because the word  ’Raja- ka’ does not find mention in the Scheduled Caste Order, 1950 does not exclude it from the purview of such an order.     In  the connected appeal respondent No. 5 filed  a  case for  restoration of land sold to respondent No. 1 which  was allowed by the Revenue Officer. The appeal filed by respond- ent  No. 1 was dismissed by the Additional  District  Magis- trate.  A  Revision preferred by Respondent No. 1  was  also dismissed by the Special Officer Land Reforms.     Respondent No. 1 filed writ petitions in the High  Court which quashed the orders made by the Special Officer,  hold- ing  that the Revenue Authorities committed a serious  error of law in holding that 89 ’Rajaka’ caste was included within the notified caste/commu-

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nity of Dhoba’.     In these appeals it was contended on behalf of transfer- ee-respondents that the Caste ’Rajaka’ mentioned in the sale deeds  cannot be taken to be synonym of caste  ’Dhoba’  men- tioned  in  Item 26 of the List in Scheduled  Castes  Order, 1950. Allowing the appeals, this Court,     HELD:  1.  Though the respondent Nos. 2 and 5  i.e.  the transferors  mentioned in the deeds of transfer their  caste as ’Rajaka’ there is no such caste mentioned in the  Consti- tution  (Scheduled  Castes)  Order, 1950.  In  such  circum- stances, it is necessary and also incumbent on the Court  to consider as to what caste they belong to. [96B]     B.  Basavalingappa v. D. Munichinnappa, [1965] 1  S.C.R. 316, followed.     2.  ’Rajaka’  is  the  literal  synonym  for  the   word ’Dhoba’-and according to the Purna Chandra Oriya Bhasakosh a which  is a recognised authority, the definition of  ’Dhoba’ is Rajaka-washerman. Therefore the submission that the caste ’Rajaka’  is  different  from caste ’Dhoba’ is  not  at  all sustainable. [96A]     3.  In the record of rights as well as the various  cer- tificates  issued by the revenue authorities and  the  local M.L.As  the transferors have been described as belonging  to ’Dhoba’ community. The irresistible conclusion that  follows is that the respondent--transferors belong to ’Dhoba’  caste which is one of the Scheduled Caste in the State of  Orissa. [96H, 97A]     3.1  Therefore the transfers made by respondent  Nos.  2 and 5 in favour of respondent No. 1, who admittedly  belongs to Brahmin caste, are hit by the provisions of Section 22 of the Orissa Land Reforms Act, 1960 in as much as the previous permission  in writing of the Revenue Officer had  not  been obtained to the alleged transfers. [95C]     [The  transferee--respondents  directed to  restore  the lands    in    question   to   the   possession    of    the transferor--respondents forthwith.] [97C]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.  1052-53 of 1990. 90     From the Judgment and Order dated 4,7.1986 of the Orissa High Court in OJC. Nos. 1007 and 1008 of 1983. A.K. Panda for the Appellants. Kundan Lal Jagga and K.K. Gupta for the Respondents. The following Order of the Court was delivered: ORDER Special leave granted. Agruments heard.     These  two  appeals on special leave arise  out  of  the common  judgment of the High Court of Orissa made in  O.J.C. Nos.  1007 and 1008 of 1983 decided on July 4, 1986  whereby the  High  Court set aside and quashed the  impugned  orders made by the Special Officer, Land Reforms, Central Division, Cuttack in O.L.R. Revision No. 131 of 1982 as well as O.L.R. No. 142 of 1982.     The  matrix  of the case in O.J.C. No. 1007 of  1983  is that  on  July 30, 1977, the respondent  No.  2,  Paramanand Sethi  filed  case No. 85 of 1977 under section  22  of  the Orissa  Land Reforms Act, against S/Shri B. Mohapatra,  Pra- fulla Kumar Pati and Gadadhar Pati (Respondent Nos. 1, 3 and 4) for restoration of lands sold to respondent Nos. 1, 3 and 4  on the ground that respondent No. 2 was a member  of  the

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Scheduled Caste (Dhoba Community) and the sales in  question were  hit by the provisions contained in section 22  of  the Orissa Land Reforms Act, 1960. The respondent No. 2 filed  a caste  certificate  of the Additional  Tehasildar,  Betanoti wherein  the  respondent  No. 2 was shown  as  belonging  to ’Dhoba’  by caste which is recognised as a Scheduled  Caste. He  also  filed the record of rights in the  name  of  Arjun Sethi, father of respondent No. 2 which showed the caste  of Arjun Sethi as ’Dhoba’.     The respondent No. 5, Smt. Nilamani Sethi, wife of  Late Bhanu  Sethi  also filed O.L.R. Misc. Case No.  21  of  1979 under  Section  22 of the Orissa Land  Reforms  Act  stating inter alia that the sale made by her in favour of respondent No.  1 who admittedly belonged to Brahmin Caste is  void  as the said sale was made without the permission of the Revenue Officer as mandatorily required under the provisions of  the aid  Act. She produced the Caste certificate issued by  tile Tehasildar,  Betanoti  which  showed that  she  belonged  to ’Dhoba’ caste 91 which is recognised as a scheduled caste. She further  filed two  caste  certificates  issued by the  two  M.L.As.  which certified that she belonged to a scheduled caste, (Dhoba).     The Revenue Officer, vide his order dated March 19, 1979 rejected the case No. 85 of 1977 filed by the respondent No. Paramanand  Sethi. The respondent No. 2 filed O.L.R.  Appeal No. of 1979 in the court of Additional District  Magistrate, Mayutbhanj and the same was allowed vide judgment and  order dated  December  1980. The  Additional  District  Magistrate while allowing the appeal observed as follows: "It is a known fact that there is no community called  ’Raj- aka’  community  which is different  from  Dhoba  community. Rajaka  is only a literary word for the common  term  Dhoba. While mentioning his caste as ’Rajaka’ the appellant has not ceased  to be a ’Dhoba’. The certificate given by the  Addl. Tehasildar, Betanoti and the entry in the R.O.R. confirm the assertion of the petitioner that he is a Dhoba by caste.  In the circumstances, the petitioner must be held to be a  S.C, person and for that matter, his brothers and mother are also the members of a S,C, According to Section 22 of the  Orissa Land Reforms Act previous permission from the Revenue  Offi- cer  should have been obtained by them  before  transferring their  lands  to the respondents. Since this  statutory  re- quirement  has not been met, the transfers are illegal.  The suit land must, therefore, be restored to the transferors."     Against the said judgment and order, the respondent  No. 1  filed O.L.R. Revision No. 131 of 1982 before the  Special Officer,  Land Reforms, Central Division, Cuttack, The  said Revision  Case was dismissed vide judgment and  order  dated March  4,  1983 on the finding that there  were  records  of competent  authorities like Addl. Tehasildar,  Betanoti  and the  record of rights showing that the caste  of  Paramanand Sethi is ’Dhoba’. it has been further observed that: "As  per the Oriya Bhasakosha the definition of  ’Dhoba’  is ’Rajaka--Washerman’.  Hence, there is no conflict  regarding what  is the meaning of ’Rajaka’. It is merely a synonym  of the word ’Dhoba’. The Sanskrit lot ’Dhoba’ is ’Rajaka’. Just because  the  word  ’Rajaka’ does not find  mention  in  the Presidential Order does not exclude it from the purview 92 of such an order. ’Dhobas’ are Scheduled Castes and ’Rajaka’ is  a  synonym of ’Dhoba’. Now, that the High Court  has  so eloquently  laid  down the law in this regard, there  is  no reason  to deny protection to the weaker sections on a  mere technicality.  ’This denial would be contrary to the  spirit

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of the Orissa Land Reforms Act, itself."     O.L.R. Misc. Case No. 21 of 1979 filed by the respondent No.  5,  Smt. Nilamani Sethi was allowed  vide  order  dated March 10, 1980 by the Revenue Officer directing the restora- tion of the suit lands to respondent No. 5 under Section  23 of  the Orissa Land Reforms Act. The respondent No. 1  filed O.L.R.  Appeal  No. 42 of 1980 in the  Court  of  Additional District  Magistrate, Mayurbhanj. ’The said appeal was  dis- missed  vide  judgment  and order dated  February  21,  1981 holding  that the transferor had amply proved that  she  was Dhoba  which is a Scheduled Caste by  producing  documentary evidence. She, therefore, does not cease to be a Dhoba  even if she has described herself in the various deeds as Rajaka. Since  the transfer of the suit lands had been made  to  the respondent  No. 1, Prafulla Kumar Pati who is a  brahmin  by caste  without  obtaining prior written  permission  of  the Revenue  Officer as required under Section 22 of the  Orissa Land Reforms Act, the transactions had been rightly declared as void by the Revenue Officer. ’The suit lands must  there- fore, be restored to the possession of the respondent No. 5.     Against this order, respondent No. 1 filed O.L.R.  Revi- sion  No. 142 of 1982 before the Special Officer,  Land  Re- forms, Central Division, Cuttack and the same was  dismissed vide judgment and order dated February 2, 1983.     The respondent No. 1 thereafter filed two writ petitions called  O.J.C. Nos. 1007 and 1008 of 1983 against the  judg- ments  and orders dated March 4, 1983 and February  2,  1983 respectively  passed by the Special Officer,  Land  Reforms, Central  Division, Cuttack. Both these writ  petitions  were heard and disposed of by a common judgment impugned in these two appeals on special leave whereby the High Court,  Orissa set aside and quashed the judgments and orders passed by the Special  Officer, I.and Reforms, Central  Division,  Cuttack and allowed the writ petitions observing inter alia that: "Considering  the  cases in hand in the light of  the  above discussions, I have no hesitation to come to the  conclusion that the Revenue Authorities have committed a serious 93 error of law in coming to the conclusion that ’Rajaka’ caste was included within the notified caste/community of  ’Dhoba’ as their nature of work was similar. Although it is unneces- sary  to make any further discussion, I must point out  that even  on  a  reference to the Bhashakosha it  could  not  be categorically said that ’Rajaka’ was a caste which could not be said to be a class of washerman as the Bhashakosha itself gives other meanings of this word."     Against this judgment and order, the instant appeals  on special  leave have been filed. Before proceeding to  decide the question whether the respondent Nos. 2 and 5, the trans- ferors  belonged to the scheduled caste--Dhoba Community  as mentioned in item No. 26 of the List of Scheduled Castes  in the  Scheduled Caste Order, 1950 in the State of Orissa,  it is  relevant  to refer to the provisions of Section  22  and Section 23 of the Orissa Land ,Reforms Act, 1960 (Orissa Act 16 of 1960): Section  22: Restriction on alienation of land by  Scheduled ’Tribes. (1) Any transfer of a holding or part thereof by  a raiyat, belonging to a Scheduled Tribe shall be void  except where it is in favour of-- (a) a person belonging to a Scheduled Tribe; or (b)  a person not belonging to a Scheduled ’Tribe when  such transfer is made with the previous permission in writing  of the Revenue Officer: Provided  that  in case of a transfer by  sale  the  Revenue Officer shall not grant such permission unless he is  satis-

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fied that a purchaser belonging to a Scheduled Tribe willing to  pay the market price for the land is not available,  and in  case  of a gift unless he is satisfied  about  the  bona fides thereof. (2)  The State Government may having regard to the  law  and custom applicable to any area prior to the date of commence- ment  of this Act by notification direct that  the  restric- tions provided in sub-S. (1) shall not apply to lands  situ- ated  in  such  area or belonging to  any  particular  tribe throughout the State or in any part of it. 94 (3) Except with the written permission of the Revenue  Offi- cer, no such holding shall be sold in execution of a  decree to any person not belonging to a Scheduled Tribe. (4) Notwithstanding anything contained in any other law  for the  time being in force where any document required  to  be registered  under  the provisions of Cl. (a) to Cl.  (e)  of sub-S.  (1)  of S. 17 of the Registration Act, 1908  (16  of 1908)  purports  to  effect transfer of a  holding  or  part thereof by a raiyat belonging to a Scheduled Tribe in favour of a person not belonging to a Scheduled Tribe, no register- ing officer appointed under that Act shall register any such document, unless such document is accompanied by the written permission of the Revenue Officer for such transfer. (5) The provisions contained in sub-Ss. 1 to 4 shall  apply, mutatis  mutandis,  to  the transfer of a  holding  or  part thereof of a raiyat belonging to the Scheduled Castes. (6) Nothing in this section shall apply (a) to any sale in execution of a money decree passed, or to any  transfer by way of mortgage executed, in favour of  any scheduled bank or in favour of any bank to which the  Orissa Co-operative  Societies  Act, 1962 (Orissa Act 33  of  1962) applies; and (b) to any transfer by a member of a Scheduled Tribe  within a Scheduled Area. Section  23: Effect of transfer in contravention of  S.  22. (1) In  the case of any transfer in contravention of the  provi- sions of sub-S. (1) of S. 22 the Revenue Officer on his  own information or on the application of any person interest  in the  land may issue notice in the prescribed manner  calling upon  the  transferor and transferee to show cause  why  the transfer should not be declared invalid.     Section  22 clearly enjoins that a person  belonging  to Scheduled  Tribe can not make a valid transfer of his  lands in  favour of a person not belonging to the Scheduled  Tribe without obtaining the-previous 95 permission in writing of the Revenue Officer to such  trans- fer. Subsection 5 of the said section further provides  that the provisions contained in sub-section 1 to 4 shall  apply, mutatis mutandis to the transfer of a holding or part there- of a raiyat belonging to the Scheduled Castes. Section  23-B of the said Act further provides that if the validity of the transfer of any holding or part thereof is in question,  the burden of proof that the transfer was valid shall,  notwith- standing  anything contained in any other law for  the  time being in force, lie on the transferee.     In this case, the transfers made by the respondent  Nos. 2  and 5 in favour of respondent No. 1, Prafulla Kumar  Pati who  admittedly  belongs  to Brahmin caste are  hit  by  the provisions  of Section 22 of the said Act in as much as  the previous  permission in writing of the Revenue  Officer  had not  been  obtained to the alleged transfers.  It  has  been submitted on behalf of the respondent Nos. 2 and 5 that they

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belong to Dhoba (Dhobi) community which is one of the Sched- uled Caste in the State of Orissa under the Scheduled  Caste Order,  1950. It has been further contended that the  father of  the respondent No. 2 has been recorded as  belonging  to Dhoba  community in the finally published record  of  rights which has been annexed as Annexure ’B’ to these appeals.  It has  also been submitted on behalf of the respondent Nos.  2 and 5 that the caste certificates granted by the  Tehsildar, Betanoti as well as by the two local M.L.As. clearly  estab- lished  that  the respondent Nos. 2 and 5  belong  to  Dhoba community and as such they are Scheduled Castes. Much  argu- ment  has  been advanced on the mentioning of the  caste  of these  two respondents as ’Rajaka’ in the alleged  deeds  on the ground that the caste ’Rajaka’ as mentioned in the  sale deeds  did not find place in the List and instead the  Caste ’Dhoba’  appears in Item 26 of the List of Scheduled  Castes in  the State of Orissa under the Constitution of  Scheduled Caste Order, 1950 as made under Article 341 of the Constitu- tion of India. It has been urged in this connection that the Caste ’Rajaka’ as mentioned in the deeds can not be taken to be  synonym of caste ’Dhoba’ and no evidence can be  adduced to  that effect to prove that ’Rajaka’ included  within  the notified  caste, commentary of ’Dhoba’ as held by  the  High Court.     We  are  unable to accept this  contention  advanced  on behalf of the respondent Nos. 1, 3 and 4 on the ground  that the caste of the respondent No. 2 and 5 was mentioned in the caste  certificates  granted by the Tehsildar,  Betanoti  as ’Dhoba’. Moreover, in the finally published record of rights the caste of the father of respondent No. 2 had been record- ed also as ’Dhoba’ which undoubtedly is a Scheduled 96 Caste  under the Scheduled Castes Order, 1950  issued  under the provisions of Article 341 of the Constitution of  India. It is also pertinent to mention that ’Rajaka’ is the literal synonym  for  the  word ’Dhoba’ and according  to  the  Puma Chandra  Oriya Bhasakosha which is a  recognised  authority, the definition of ’Dhoba’ is Rajaka-washerman. As such,  the submission  that the caste ’Rajaka’ is different from  caste ’Dhoba’ is not at all sustainable. It is pertinent to  refer in this connection to the observations of the Supreme  Court in  B. Basavalingappa v. D. Munichinnappa, [1965] 1 SCR  316 at 320 wherein it has been observed that: "Ordinarily  therefore  it would not have been open  in  the present case to give evidence that the Voddar caste was  the same  as the Bhovi caste specified in the Order  for  Voddar caste is not mentioned in brackets after the Bhovi caste  in the Order.          But  that  in  our opinion does  not  conclude  the matter  in the peculiar circumstances of the  present  case. The  difficulty  in the present case arises  from  the  fact (which  was not disputed before the High Court) that in  the Mysore  State as it was before the re-organisation  of  1956 there  was no caste known as Bhovi at all. The Order  refers to  a scheduled caste known as Bhovi at the Mysore State  as it  was before 1956 and therefore it must be  accepted  that there was some caste which the President intended to include after  consultation with the Rajpramukh in the  Order,  when the Order mentions the caste Bhovi as a scheduled caste.  It cannot  be  accepted that the President included  the  caste Bhovi in the Order though there was no such caste at all  in the  Mysore State as it existed before 1956. But when it  is not  disputed that there was no caste specifically known  as Bhovi in the Mysore State before 1956, the only course  open to  courts to find out which caste was meant by Bhovi is  to

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take evidence in that behalf."     In  the  instant case, referring to this  decision  even though  the  respondent Nos. 2 and 5  i.e.  the  transferors mentioned in the deeds of transfer their caste as  ’Rajaka’, there  is  no such caste mentioned in  the  Constitution  of Scheduled Caste Order, 1950. In such circumstances,  relying on the aforesaid observation of this Court, it is  necessary and also incumbent on the Court to consider as to what caste the respondent Nos. 2 and 5 belong to. Moreover, considering the record of 97 rights  as  well as the various certificates issued  by  the revenue authorities and the local M.L.As. referred to  here- inbefore  wherein  the transferors have  been  described  as belonging to ’Dhoba’ community, the irresistible  conclusion that  follows is that the respondents-transferors belong  to ’Dhoba’  caste  which is one of the Scheduled Caste  in  the State of Orissa.     In the premises aforesaid the judgment and order of  the High Court referred to in O.J.C. Nos. 1007 and 1008 of  1983 are  liable  to be set aside. We, therefore, set  aside  the same  and  affirm  the order of the  Special  Officer,  Land Reforms, Central Division, Cuttack passed in O.L.R. Revision No.  131 of 1982 and O.L.R. No. 142 of 1982. The  respondent Nos.  1, 3 and 4 are directed to restore the lands in  ques- tion to the possession of the respondent Nos. 2 and 5 forth- with. The appeals are allowed without any order as to costs. T.N.A.                                      Appeals allowed. 98