PRABHUDEVARU, S/O SIDDALINGAIAH AND GANGADARAIAH S/O LATE BALEGOWDA Vs. SMT. THIMMAMMA, W/O LATE DASAPPA AND OTHERS

JUDGEMENT

(1.) THESE appeals are filed by the Petitioners in W.P. No. 14947/2008, being aggrieved by the order dated 14 6 -2010 passed by the learned Single Judge, wherein the learned Single Judge dismissed the writ petition confirming the order passed by the Deputy Commissioner.

(2.) THE brief facts of the case as are follows: The land bearing Sy. No. 12/1 measuring 2 acres 20 guntas situated at Honnashettyhalli village, Arasikere Taluk was granted in favour of Thimmabhcvi as per Darkhast Proceedings No. LND/SCST/ASK/67/43 dated 28 -4 -1944. Thereafter, the said property was mutated in the name of Thimmabovi in M.R. No. 7/45 -46. On 30 -5 -1961, Thimmabovi sold 20 guntas of land in favour of the father of the second Appellant, thereafter, on 12 -7 -1964, the said grantee sold 2 acres of land in favour of Bettegowda. On 11 -7 -1969, the Grandfather of the first Appellant purchased the said 2 acres of land from the said Bettegowda. In view of coming into force of the Karnataka Scheduled Caste & Scheduled Tribe (Prohibition of Transfer of Certain Lands) Act ('the Act' for short), the son of the original grantee Dasappa made an application for restoration of the land contending that the granted land has been alienated in contrary to the conditions of the grant. A notice has been issued to the purchaser. The purchaser filed W.P. No. 3268/1981 before this Court being aggrieved by the notice issued by the Assistant Commissioner. This Court, on 21 -9 -1982 dismissed the said writ petition. Thereafter, the Assistant Commissioner by an order dated 28 -11 -1984 rejected the application filed by Dasappa on the ground that the land granted has been alienated after expiry of the non -alienation period of 10 years. While granting the land, a condition imposed was that the land should not be alienated for a period of 10 years. That non -alienation period has already expired, hence the Act is not. applicable to the case and rejected the application. Thereafter, the said Dasappa made a representation to the Assistant Commissioner. Since the said representation was not considered, Dasappa filed a writ petition in W.P. No. 9750/2001. This Court by an order dated 10 -4 -2001 directed the Assistant Commissioner to consider the representation and pass appropriate order in accordance with law. In pursuance to the order passed by this Court, the Assistant Commissioner considered the application filed by the said Dasappa, by an order dated 8 -1 -2004 dismissed the application for restoration of the land on the ground that on 28 -11 -1994, the application filed by Dasappa was already rejected, and no appeal has been preferred against the said order. Hence, the application cannot be reconsidered. Being aggrieved by the order dated 8 -1 -2004 as well as the order dated 28 -11 -1984 passed by Assistant Commissioner, the said Dasappa preferred an appeal before the Deputy Commissioner. During the pendency of the appeal before the Deputy Commissioner, the said Dasappa died and Respondents 1 to 4 were brought oil record as legal representatives of the deceased Dasappa. The Deputy Commissioner after considering the matter and perusing the original grant orders found that the land in question was granted in the year 1944. The Mysore Land Revenue Code, 1888 was the Rule in force at the time of grant. As per Rule 43(8) of the said Code, the grant of land between the year 1938 to 1953 is subjected to non -alienation forever. In the instant case, the land was granted on 28 -4 -1944 and 1938 Rules are applicable. Hence, the granted land cannot be alienated forever. The Assistant Commissioner without verifying the said records dismissed the claim petition. Accordingly, the Deputy Commissioner by an order dated 28 -10 -2008, set aside the order passed by the Assistant Commissioner and ordered for restoration of the land to the legal representatives of the original grantee.

(3.) SRI . Swamy Shivaprakash, learned Counsel appearing for the Appellants contended that the order passed by the learned Single Judge confirming the order passed by the Deputy Commissioner is contrary to law. The son of the original grantee filed restoration application in the year 1979; the Assistant Commissioner rejected the said application on 28 -11 -1984 and the said order has become final. Suppressing the necessary facts, the Respondent, filed W.P. No. 9750/2001 and the matter was reopened and the Assistant Commissioner once again rejected the application on 8 -1 -2004 on the ground that the order dated 28 -11 -1984 has become final and no appeal has been preferred. The Respondents, who are the legal representatives of the deceased Dasappa preferred an appeal challenging the order dated 28 -11 -1984 as well as the order dated 8 -1 -2004 before the Deputy Commissioner. The Deputy Commissioner without condoning the delay allowed the appeal, which is contrary to law. The Respondents have also not produced any records or the grant certificate. In the absence of the same, the Deputy Commissioner ought not to have ordered for restoration of the land. The learned Single Judge without considering all these aspects of the matter, only on the ground that during the period of grant of land, 1938 Rules was applicable and there was permanent prohibition for alienation of the land as per the existing Rules, which is contrary to law and sought for setting aside the same by allowing this appeal.