N MARAPPA Vs. SHANTHAMA

JUDGEMENT

(1.) This appeal is filed by the unsuccessful writ Petitioner in W P No. 16941/2009 being aggrieved by the order of the learned Single Judge of this Court dt. 20th July 2009, wherein the learned Single Judge has declined to interfere with the order dt. 3.11.2006 passed by the second Respondent - Assistant Commissioner. Bangalore South sub-division under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribe (Prohibition of Transfer of Certain Land) Act. 1978 (hereinafter called as "Act" for short) setting aside the alienation which has been confirmed by the third Respondent- Special Deputy Commissioner. Bangalore district in appeal, by order dt. 10.7.2009.

(2.) The Writ Petition was filed by the Appellant herein contending that he purchased two acres of land in Sy. No. 10 (Resurvey No. 10/25) of Sonnanayakanapura village from one Siddappa son of Kempaiah. under a registered sale deed dt. 19.5.1982. It is averred in the application filed by the first Respondent herein under Section 5 of the Act before the second Respondent that her husband - Siddappa was granted four acres of land in Sy. No. 40 situated in Sonnanavakanapura village. Jigani Hobli. Anekal taluk as per The Saguvali Chit No. LND. SR. 842/1968-69 under DD. Rules, subject to the non-alienation condition for eve. However, her husband alienated the land in favour of the Appellant herein under the registered sale deed No. 309/82-83 dt. 19.5.1982. Wherefore, there is violation of the provisions of the Act and requested for restoration of the property in her favour. The Assistant Commissioner after hearing the parties and examining the records, held that the land was granted for an upset price of Rs. 50/- per acre to Siddappa and it was treated as a granted land during the year 1970 and the said land has been alienated during the year 1982 i.e., under the sale deed dated 19.5.1982 in favour of the Appellant herein. Thus, the land granted in favour of a Scheduled Caste person is alienated after coming into force of the Act (i.e., after 1.1.1979, the date on which the Act came into force). Wherefore, in view of Section 4(2) of the Act, no permission has been obtained from the Government as the alienation is subsequent to coming into force of the act and in view of the decision of this Court in the case of THIPPAIAH v. THE DEPUTY COMMISSIONER, 1996 ILR(Kar) 2361and since alienation is after coming into force of the Act, the same is without obtaining the permission, there is violation of Section 4(2) of the Act. Accordingly, allowed the application and ordered for restoration in favour of the first Respondent herein. Being aggrieved by the same, the Appellant herein preferred appeal to the Special Deputy Commissioner, Bangalore district under Section 5(A) of the Act and the Special Deputy Commissioner by order dt. 10th July 2009 held that the land was granted to Siddappa as a member of the Scheduled Caste and the same is alienated after coming into force of the Act and wherefore, the alienation is in violation of Section 4(2) of the Act. Admittedly, no previous permission from the Government is obtained before alienating the land. Accordingly, confirmed the order passed by the Assistant Commissioner and dismissed the appeal. Being aggrieved by the said order of the Special Deputy Commissioner confirming the order of the Assistant Commissioner, Writ Petition was filed by the Appellant herein. The learned Single Judge confirmed the order passed by the third Respondent -Special Deputy Commissioner who has confirmed the order of the second Respondent - Assistant Commissioner. Being aggrieved by the said order of the learned Single Judge this appeal is filed by the unsuccessful Writ Petitioner contending that the order passed by the Deputy Commissioner confirming the order of the Assistant Commissioner, is erroneous as the land was granted for an upset price and no condition could be imposed after coming into force of the Act. It is necessary to find out as to whether there is violation of condition of the grant and to consider the application filed under Section 5 of the Act. In support of his contentions, the learned Counsel for the Appellant has relied upon the decision of this Court in the case of Puttaveeraiah v. State Of Karnataka And Ors., 1996 3 KarLJ 34 (DB) wherein, while considering the application filed under Section 5 of the Act for violation of the conditions which was prior to coming into force of the Act, this Court has held that no condition can be imposed against the Rules which was prevalent at the time of grant and accordingly, upheld the alienation. In the said case, the alienation was made in violation of the non-alienatory clause for 15 years i.e., on 29th February 1978 the grantee transferred the land prior to coming into force of the Act i.e., on 1.1.1979.

(3.) Learned Counsel appearing for the Appellant further submitted that the Assistant Commissioner ought to have held that transfer of the granted land is not in violation of the condition of the grant and no order can be passed under Section 5 of the Act and wherefore, the order passed by the Special Deputy Commissioner confirming the order of the Assistant Commissioner ought to have been set aside and the learned Single Judge was not justified in dismissing the Writ Petition.