JUSTICE ARINDAM SINHA

Asit Kumar Nayak v. State of Odisha and Ors.

Case Number: WP(C) No.11807 of 2012

Date of Decision: 18th November, 2022

In this case, the Petitioner had challenged final order of the State Level Scrutiny Committee, passed in fake caste certificate case (FCC no.21 of 2011). He submitted that the Investigating Officer (IO) did not afford his client opportunity in the purported investigation conducted. The Petitioner claimed that he belonged to scheduled tribe ‘Gondo’ while the Committee contended that the caste certificate was tampered with. The Petitioner had earlier moved to the Division Bench of this Court by WP(C) No.2003 of 2012, which was disposed of on order dated 8th February, 2012. There was direction for his client to have fair and reasonable opportunity of hearing and allow him to furnish the documents, if any. The Court had perused report of the IO, made before aforesaid direction of the Division Bench, to allow, inter alia, fair opportunity to petitioner. It appeared from the report that admission record of elder brother of petitioner, admitted to the school on 16th July, 1970, was verified by the IO and on requisition made, the Head Master had opined that the caste of petitioner’s said brother was ‘Guna’ in general category. the committee itself called for the original register and on perusal thereof found the tampering in the caste certificate.

It was observed by the Court that the photocopy was, therefore, accepted to be a true copy of the original. The committee felt necessity for looking at the original. It was not said in impugned final order, to have been shown to petitioner. This Court observed that Section 7(1) in Odisha Scheduled Castes, Scheduled Tribes and Backward Classes (Regulation of Issuance and Verification of Caste Certificates) Act, 2011 says, when it comes to notice that a person not belonging to any of the reserved category has obtained a false caste certificate, the committee may suo motu or otherwise, call for the record and enquire into the correctness of such certificate. There was no mention in impugned final report that this document was initially also produced by petitioner and erroneously relied upon, for issuance of the certificate. Where the law requires inquiry, to establish that a caste certificate obtained is fake, there should not have been pronouncement by the committee, without inquiry, that a document made in year 1944 and not part of the record, had been tampered with, to say it cannot be relied upon and disregard it.

Moreover, the Court observed that the father of petitioner had asserted his identity as belonging to scheduled tribe ‘Gondo’, in having had got the land so recorded. Position taken regarding father of petitioner, in year 1944 on him getting admission and thereafter by himself in recording his caste ‘Gondo’ in the RoR khata, is consistent. Thus, this petition was allowed.

Marwari Society v. State of Odisha and Ors.

Case Number: WP(C) No.11244 of 2016

Coram: Justice Arindam Sinha, Justice Sanjay Kumar Mishra

Date of Judgment: 16th December, 2022

In this case, the writ petition challenged the legality of a show-cause notice dated 28.03.2016 wherein the Government called upon the Petitioner to show cause as to why the said lease should not be determined under clause-4(i) of the lease deed and why the land should not be resumed and possession taken over by the Government. The long lease by deed dated 24th March, 2000 on premium of Rs.23,54,913/- for initial period of 90 years was executed in favour of Petitioner to build a house or houses and use the same for its office building and charitable dispensary only. However, it was alleged that the Petitioner was using the same for religious purposes like “Phoolon ki Holi” and “Sacred Thread Ceremony”.

The Petitioner vehemently argued that the lease was by a registered deed and Section 111 in Transfer of Property Act, 1882 provides for determination of lease by forfeiture. Further, there is nothing to show from the show-cause or impugned determination notice dated 23rd April, 2016 that any express condition providing right of re-entry to the lessor, was broken.

On the other hand, the Opposite Party contended that purpose of the lease was for constructing and using the building as office and charitable dispensary only. The Petitioner was issued show-cause notice after it was observed that the premises was being used for other purposes than what was specified. Since, the causes shown in the reply were not found satisfactory, the impugned determination notice was duly issued.

This Court held that the grant of lease was partly also with regard to ethnicity of the members. The deed was titled as, ‘Lease of Land to Religious, Educational and Other Institutions’ and hence, there is no way the State can say that celebrating a religious function in the premises on a day can amount to use by the lessee of the said land for any other purpose. The Court placed reliance on Maniruddin v. Chairman of Dacca (40 Calcutta Weekly Notes (CWN) 17) and observed that a natural person has the capacity to do all lawful things unless his capacity has been curtailed by some rule of law. Accordingly, the petition was allowed.