JUDGMENT
Narendra Nath Tiwari, J.
Page 0975
1. This appeal is against the order/award passed by the Land Acquisition Judge-cum-Subordinate Judge-I, Doaltonganj (hereinafter referred to as L.A. Judge), whereby the learned Court below has directed to prepare award in favour of the respondent while awarding the reference under Section 30 of the Land Acquisition Act.
2. Learned L.A. Judge has based his finding on a purported decision of the Supreme Court of the year 1993, without giving the exact reference or even the names of the parties. Learned L.A. Judge concluded on the basis of his vague memory that the Apex Court has held ‘Lohar’ as the member of Scheduled Tribe and the applicant-respondent, being by caste Lohar, comes within the meaning of Scheduled Tribes and as such, any sale deed executed by the ancestors of the applicant-respondent in favour of the appellants-opposite parties is hit by the provisions of the Chhonagpur Tenancy Act and is void ab initio. Any rent receipt pursuant to the said registered sale deed cannot legalise the void document valid and that the opposite parties-appellants are held not entitled to get compensation on the basis of the sale deed followed by rent receipts.
Page 0976
3. The reference was made under Section 30 of the Land Acquisition Act by the District Land Acquisition Officer, Daltonganj, Palamau to the said Land Acquisition Judge to decide the claim between the applicant and opposite party for the purpose of award of compensation with respect to the land appertaining to Khata No. 11, Plot Nos. 124, 125, 245, 255, 39 and 230, measuring total area of 1.29 acres, situated at village Kurkutta, Dulsulma, Rajahara, Basariakalan, Hunsgara, Kamkam.
4. The said land was acquired for the purpose of construction of main canal under Butan Duba Project. The said and was claimed by the opposite party-appellants on the basis of registered sale deed of the year 1941-42 and followed by their continuous cultivating possession and payment of rent.
5. At the stage of preparation of award in favour of the appellants, the applicant-respondent, Panpati Loharin appeared and filed objection, claiming the said land on the ground that she is by caste Lohar and belongs to Scheduled Tribes and any transfer made by her ancestors without permission of the Deputy Commissioner are void ab initio and the purchasers having not acquired any right she is entitled to get the amount of compensation.
6. According to the opposite party-appellants, the applicant-respondent is by caste Lohar. ‘Lohar’ does not come under the category of Scheduled Tribes and transfer made by the recorded tenant, Ram Dayal Lohar, in favour of the applicant is perfectly valid and legal and they are entitled to get compensation of the said land.
7. Both the parties adduced their evidences; documentary as well as oral. The applicant in order to prove her case proved a Caste Certificate issued in the name of Puran Lohra and also brought on record Photostat copy of the list of backward classes in Bihar. The opposite party-appellants, on the other hand, brought on record sale deeds, Exts.-A to A/6, and rent receipts, Exts. B to B/5, in the name of Jitu Lohar and rent receipts were exhibited.
8. Learned Court below framed the issue as to whether the applicant being by caste Lohar, is a member of Scheduled Tribe.
9. Learned Court below, as aforesaid, observed that to his memory, the Supreme Court, in one case, has resolved the controversy sometime in the year 1993 holding that Lohars come within the meaning of Scheduled Tribes. On the basis thereof, learned Land Acquisition Judge held that the applicant’s ancestors are members of Scheduled Tribes, and the sale deeds executed by them are hit by Chotanagpur Tenancy Act and are void, ab initio and the rent receipts, which were subsequently granted by the Government cannot legalise the document, which is void, and thus answered the said reference in favour of the opposite parties.
10. Mr. Rohit Roy, learned Counsel, appearing on behalf of the appellants, submitted that the impugned order of the learned Land Acquisition Judge is wholly perverse, illegal and unsustainable. The finding of the learned Court below is not based on any evidence on record, rather the finding is based on mere conjecture, vague memory and surmises. Learned Counsel submitted that Lohars are members of Backward Page 0977 Classes and are not included in the category of Scheduled Tribe. There is no evidence or legal foundation to hold the respondent as a member of the Scheduled Tribe and to nullify the registered sale deed, rent receipt and right, title and long possession of the appellants. There is no such Supreme Court decision of the year 1993 as referred to and relied upon by learned L.A. Judge.
11. Learned Counsel submitted that it has been held by the Full Bench of the then Patna High Court, Ranchi Bench, in Bihar Lohar (Scheduled Tribes) Utthan Mahasabha, Samastipur and Anr. v. State of Bihar and Ors. And its analogous cases, reported in 1994 (2) PLJR 540, that Lohars are not covered by Article 322 Part-III of the Scheduled Castes and Scheduled Tribes Order, 1950 (Amendment Act 1976). The decision overruled the earlier decision of the said Court. He submitted that there is no iota of evidence to prove that the applicant is a member of Scheduled Tribes. The applicant has brought only one document on record i.e. Caste Certificate, but the same has not been marked, nor the same was proved by a competent witness. Learned Counsel referred to and relied on a decision of the Ranchi Bench of Patna High Court, as then was, in the case of Deo Narain Singh v. State of Bihar and Ors. reported in 1988 BLT (Rep) 17(Pat), in which it has been held that even on the report of Karamchari or Circle Officer without any valid proof, a person cannot be declared as a member of Scheduled Tribes and in the instant case, even the Caste Certificate, which has been brought on record, has not bean proved or marked as exhibit. There was no material on record to hold that the applicant-respondent, being by caste Lohar, is a member of Scheduled Tribes.
12. Learned Counsel, appearing on behalf of the respondent, on the other hand, urged that the learned Court below has rightly held that a decision was rendered in which the caste ‘Lohar’ was declared to be the member of Scheduled Tribe and as such, the learned Court below was right in holding that the applicant, being by caste Lohar, is a member of Scheduled Tribe. Learned Counsel submitted that though the Caste Certificate was not proved, the same was on record and it was not disputed that the applicant belongs to Lohar community. The fact admitted requires no proof. Learned Counsel submitted that though the decision of the Full Bench in the case of Bihar Lohar (Scheduled Tribes) Utthan Mahasabha (Supra) is in support of the appellant which overruled the earlier contrary decision, yet at the time when the order was passed in 1993, the said decision of the Full Bench had not come. The decision is of the year 1996 and is not applicable.
13. I have heard learned Counsel for the parties at length and considered their submissions, facts, evidences and materials on record. Learned Trial Court, on the basis of memory held that there was some decision of the Apex Court in the year 1993, but no such decision has been brought to the notice of this Court by learned Counsel for the respondent. The applicant-respondent claims her caste as ‘Lohar’. Her caste is not included in the list of Scheduled Tribes, specified by the President of India under the Scheduled Tribes and Scheduled Castes Order 1950. It has been clearly held by the Full Bench in Bihar Lohar (Scheduled Tribes) Utthan Mahasabha Page 0978 (Supra) that Lohars are members of Backward Classes and they are not the members of Scheduled Tribes.
14. In Nityanand Sharma and Anr. v. State of Bihar and Ors. reported in 1996 (2) PLJR SC-37, the Hon’ble Supreme Court held that the tribes or tribal communities or parts of or groups within such tribes or tribal communities specified by the President, after consultation with the Governor by the public notification, will be scheduled Tribes, subject to the law made by Parliament, which may, by law, include in or exclude from the list of Scheduled Tribes specified by the President. The list cannot be otherwise varied. It is for the Parliament to amend the law and the Schedule and include in and exclude from the Schedule, a tribe or tribal community or part of or group with in any tribe or tribal community for the State, District or region and its declaration is conclusive. The Court has no power to declare synonyms as equivalent to the Tribes in the Order or include in or substitute any caste/tribe etc. Therefore, ‘Scheduled Tribes’ as defined under Article 366(25) and Schedule as substituted by Amendment Act of 1976 are conclusive. Though evidence may be admissible to a limited extent of finding out whether the community which claims the status as Scheduled Caste or Scheduled Tribe, was, in fact, included in the concerned schedule, the Court is devoid of power to include in or excise from or substitute or declare synonyms to be of Scheduled Caste or Scheduled Tribe or parts thereof or group of such caste or tribe. In the said decision, the Supreme Court has further held that ‘Lohar’ is different from ‘Lohra’ or’ ‘Lohara’ and that has been included in the Scheduled Tribes Order 1950 and that Lohars belong to backward classes and they are not equivalent to ‘Lohra’ or ‘Lohara’. It has been further held that any contrary view taken by any Bench/Benches of Bihar High Court is erroneous. The consistent view of that Court that Lohars are not Scheduled Tribes and they are blacksmiths was approved by the Apex Court.
15. The Supreme Court has further held that it would give an insight into the consistent attempt by Lohar community to bear the mask of Scheduled Tribes Status and to masquerade as such for getting the constitutional benefits meant for the poor tribes, which the President in consultation with the Governor or Parliament has not granted to them and as such, status as Scheduled Tribe cannot be granted to O.B.Cs.
16. Learned L.A. Judge without taking into consideration the said legal aspects and without any sound basis has casually dealt with the case and has recorded perverse finding.
17. For the reasons aforesaid, the impugned order/award of the learned L.A. Judge cannot be upheld and is liable to be set aside.
18. The impugned order/award dated 12th May, 1994 passed in L.A. Case No. 76 of 1985 by the learned Court below is, thus, set aside. This appeal is allowed.
In the facts and circumstances of the case, there shall be not order as to costs.