Ramachandrappa vs Venkatarayappa and Others

The land measuring 4 acres in Survey No. 159 of Gadigavarapalli village, Chilakalanerpu Hobli, Chintamani Taluk, Kolar District, came to be granted by the Tahsildar to the 1st respondent who belonged to Scheduled Caste on 6-8-1961 with a condition that the same shall not be alienated within 15 years from the date of grant. The grantee sold 2 acres of the said land to the petitioner on 4-7-1969.

After coming into force the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, the 1st respondent filed an application before the Assistant Commissioner requesting (1) that the sale transaction between him and the petitioner dated 4-7-1969 be declared as void and (2) that the land be restored to him on the ground that the sale transaction hit by the provisions of 1978 Act.

On the basis of the said application, the Assistant Commissioner after verifying the records came to the conclusion that at the time of grant the non-alienation condition imposed was for a period of 15 years, whereas the sale took place within that period. Thus he held that the said sale hit by the provisions of 1978 Act. While so ordering he directed the land to be restored to the 1st respondent. On an appeal before the Deputy Commissioner by the petitioner, for the first time the contention was taken that the 1st respondent did not belong to Scheduled Caste either on the date of grant or on the date of sale, as, according to the petitioner, the 1st respondent''s caste on the date of grant was ''Bovi'' and not ''Bhovi''. While so contending it was argued by the petitioner before the Deputy Commissioner that the order of the Assistant Commissioner be set aside holding that 1978 Act has no application to the transaction between himself and the 1st respondent in respect of the land in question. The said contention of the petitioner regarding the 1st respondent''s caste was answered by the Deputy Commissioner to the effect that the 1st respondent belonged to Bovi Caste which is a Scheduled Caste and there was a non-alienation clause imposed for a period of 15 years. Then the Deputy Commissioner passed an order dismissing the appeal filed by the petitioner thus confirming the order of the Assistant Commissioner. These two orders are under challenge in this writ petition.

Once again the petitioner in this writ petition reiterated what he did before the Deputy Commissioner in contending that the 1st respondent on the date of grant or sale was not a person belonging to Scheduled Caste and as such the provisions of 1978 Act could not have been made applicable. According to the learned counsel for the petitioner, ''Bovi'' is different from ''Bhovi''.

Whereas Sri Rajendrakumar Sungay, learned counsel for the 1st respondent, and Smt. Meena Ramachandran, learned High Court Government Pleader, for Respondents-2 to 4, submitted that the said contention of the petitioner is untenable.

It is not in dispute that the 1st respondent belonged to the caste ''Bovi'' on the date of grant and on the date of sale. But the question is whether the caste described is ''Bhovi'' or ''Bovi''. In my view, when once a caste has been mentioned either as Scheduled Caste or Scheduled Tribe in the schedule to the Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976, which was given effect to in the State of Karnataka with effect from 27-7-1977, it is too much to contend that merely because there is difference in spelling in the Caste as enumerated in the schedule to the Act, a person does not belong to the Scheduled Caste. Difference in spelling will not alter the position of the caste. The Supreme Court in B. Basavalingappa v D. Munichinnappa and Others, AIR 1965 SC 1269 made it clear thus:

"It is true that the Order mentions only the caste ''Bhovi'' and not ''Boyi'' as found in the Government records. It is also true that where the same caste was spelt differently the different spellings have been provided in the Order and that in the case of Bhovi no such has been done. But here again difficulty arises because there was no caste known as Bhovi in the Mysore State as it existed in 1950 when the order was passed. As the President could not have included in the Order a non-existent caste, it means the word "Bhovi" relates to some caste in Mysore as it was before 1956. As the identity of that caste can be established only by evidence it would be open to the parties to give evidence and for the Courts to consider the evidence. (Held on a consideration "of the peculiar circumstances of the case the difference in spelling was of no importance)."

If the difference in spelling of a caste is made much about, then it will defeat the very benefit conferred under Article 341 or 342 of the Constitution of India. When the difference in spelling is possible because of various factors like language, region and other social factors, it is not proper to differentiate these two names, viz., ''Bovi'' and ''Bhovi''. If such a method is adopted, then it will be possible to say that ''Brahmana'' is different from ''Brahmin''; ''Lingayath'' is different from ''Lingavanth'' or ''Veerasaiva''; ''Hasalar'' is different from ''Hasalaru''; ''Muslim'' is different from ''Musalman'' or ''Mohamadan'' or ''Muhamadian''; ''Marwari'' is different from ''Marwadi'', etc.

In a case where a particular caste is called by different names and if one name is mentioned in the schedule to the Act and other names are left out though these are synonyms and indicate one and the same caste, it does not mean that the other names not enumerated in the schedule to the Act are different from the one enumerated in the schedule. Generally, the caste mentioned in the schedule to the Act includes its synonyms or equivalents though not enumerated therein. This has been made clear by the Supreme Court in Bhaiya Ram Munda v Anirudh Patar And Others, AIR 1971 SC 2533 wherein it has been held thus:

"If Patars are Mundas, because some sub-tribes of Mundas are enumerated in the Order and others are not, no inference will arise that those not enumerated are not Mundas. It cannot be said that because Patars a re not specifically mentioned in the List they cannot be included in the general heading Munda.

The name by which a tribe or sub-tribe is known is not decisive. Even if the tribe of: a person is different from the name included in the Order issued by the President, it may be shown that the name included in the Order is a general name applicable to sub-tribes.

Patars of Tamar District in Bihar are a sub-tribe of Mundas and they are not different from Mundas."

In the case of The Revenue Officer and Others v Prafulla Kumar Pati and Others, AIR 1990 SC 727, the Supreme Court has taken the similar view as the one taken in Bhaiya Ram Munda''s case AIR 1971 SC 2553 and in Basavalingappa''s case AIR 1965 SC 1269. While interpreting the scope of Sections 22, 23 and 23-B of the Orissa Land Reforms Act (Act No. 16 of 1960)-scope of Article 341 of the Constitution of India including the position of the caste ''Dhoba'' which is defined as Scheduled Caste in the Scheduled Castes Order, 1950 at Item No. 26-the Supreme Court held that the caste called ''Rajaka'' is synonym of caste called ''Dhoba'' and the sale by a person belonging to the caste ''Rajaka'' to a person belonging to brahmin caste without previous permission of the Revenue Officer is illegal as the said transfer is violative of Sections 22, 23 and 23-B of Act No. 16 of 1960. The Supreme Court held as follows:

"In this case the transfers made by the respondents 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 2 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 respondents Nos. 2 and 5 that they belong to Dhoba (Dhobi) community which is one of the Scheduled Castes 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 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 respondents Nos. 2 and 5 that the caste certificates granted by the Tahasildar, Betanoti as well as by the two local M.L.As. clearly establish that the respondents Nos. 2 and 5 belong to Dhoba community and as such they are Scheduled Castes. Much argument 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 Castes Order, 1950 as made under Article 341 of the Constitution of India. It has been urged in this connection that the caste ''Rajaka'' as mentioned in "the deeds cannot 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/community of ''Dhoba'' as held by the High Court.

We are unable to accept this contention advanced on behalf of the respondents Nos. 1, 3 and 4 on the ground that the caste of the respondents Nos. 2 and 5 was mentioned in the caste certificates granted by the Tahsildar, Betanoti as ''Dhoba''. Moreover, in the finally published record the rights the caste of the father of the respondent No. 2 had been recorded also as ''Dhoba'' which undoubtedly is a Scheduled Caste under the Scheduled Castes Order, 1950 issued under the provisions of Article 314 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 Purna Chandra Oriya Bhasakosh which is a recognised authority, the definition of ''Dhoba'' is Rajakawasherman. 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 p. 320: AIR 1965 SC 1269 at p. 1271 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 reorganisation of 1956 there was no caste known as Bhovi at all. The Order refers to a Scheduled Caste known as Bhovi as 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 take evidence in that behalf.''

"In the instant case, referring to this decision even though the respondents 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) 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 respondents Nos. 2 and 5 belong to. Moreover, considering the record of rights as well as the various certificates issued by the revenue authorities and the local M.L.As. referred to herein before 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 Castes in the State of Orissa."

In addition to this, if a person disputes such a position, it is for him to approach the proper forum and establish that a particular person does not belong to a particular caste. In the instant case the petitioner has not done so. On the other hand, the 1st respondent to substantiate his case produced before the Assistant Commissioner a caste certificate issued by a competent authority, namely, the Tahsildar, wherein it is certified that the 1st respondent belongs to Bovi caste which is a Scheduled Caste.

Hence, the writ petition is dismissed. No order as to costs.

Regarding hardship pleaded by the petitioner, it is appropriate to grant the petitioner some time to vacate and deliver vacant possession of the property to the 1st respondent.

Sri Reddappa, learned counsel for the petitioner, sought for a minimum period of 2 years to vacate and deliver the land in question. Whereas Sri Rajendrakumar Sungay, learned counsel for the 1st respondent, submitted that three months will be reasonable for the petitioner to vacate the land in question.

In view of the hardship pleaded by the petitioner, I feel it is just and proper to grant time till the end of October, 1991, to the petitioner to vacate and deliver the land in question to the 1st respondent without any protest.

Smt. Meena Ramachandran, learned High Court Government Pleader, is permitted to file her memo of appearance for Respondents-2 to 4 within 4 weeks.