G S VIRUPAKSHAPPA Vs. HANUMANTHA

JUDGEMENT

(1.) Respondent No. 1 filed an application as contemplated under S.4 of the Karnataka Scheduled Castes/ Scheduled Tribes (Prohibition of Alienation of Certain Lands) Act, 1979. The Assistant Commissioner who enquired into the matter rejected the application filed by the first respondent. Aggrieved by that order he preferred an appeal to the Deputy Commissioner who also dismissed his application. Thereafter the first respondent preferred a petition to this Court in W. P. No. 10934/ 88. This Court allowed the petition after recording the following findings: that certain lands had been granted to the first respondent pursuant to an order made as per Annexure A in the writ petition dated 16-2-1967 of 78 acres 5 guntas in Sy. No. 1 of Jarakabande Kaval in favour of 43 persons including the first respondent; that the order at Annexure-'A' discloses that the same was made in relaxation of R. 42 and in exercise of powers vested under R. 43(L) of Mysore Land Revenue (Amendment) Rules 1960; that the lands were granted on a report made by the Divisional Commissioner at an upset price of Rs.500/- and reduction of Rs. 200/- was also given in each case since the applicants were grantees deemed to belonged to Scheduled Caste; that the first respondent's father sold the property in question on 9-7-1976 and the applicant herein purchased the same; that the land in question has been sold within the prohibited period; that the conditions imposed under R. 43(G) were attracted even to cases of grant made under R. 43(L) of the Land Revenue (Amendment) Rules, 1960; that the land had been granted subject to payment of upset price with a waiver to an extent of Rs. 200/- per acre as the party concerned belonged to Scheduled Caste (Bovi Community); that the fact that in the Saguvali chit issued there was deletion of clause relating to prohibition of alienation clause was not of any materiality since there was a condition under theRules itself prohibiting the sale within a particular period and the sale is made in contravention of the Rule; that the transaction was invalid and allowed the writ petition quashing the orders made by the Assistant Commissioner and the Special Deputy Commissioner. As against the order made by the learned single Judge an appeal was preferred andthis Court disposed of the writ appeal upholding the order of the single Judge and dismissed the appeal. Thereafter an application for review of that order was filed by raising a question as to whether the original grantee, father of the first respondent belongs to 'Bovi' Community or 'Bhovi' Community which is a backward community or a scheduled caste community to attract the provisions of the Act. That application came to be summarily dismissed without setting out any reasons. The matter was carried in appeal by Special Leave to the Supreme Court and the Supreme Court after granting leave set aside the judgment of this Court in the writ appeal and remitted the matter to this Court for fresh consideration both on the question raised in the review petition and also the question raised in the writ appeal. It is also made clear, if necessary this Court may call for a finding from the lower authorities as to whether the original grantee belongs to 'Bhovi' community or 'Bhovi' community. It is thus this matter is before us.

(2.) Learned counsel for the appellant urged that the father of the first respondent was described to belong to 'Bovi' community which is not a scheduled caste but only a backward tribe and therefore the provisions of the Act are not attracted. It is urged that Bovis are not Scheduled Caste and that even if Bovis are scheduled caste, since their name has not been included in the Constitution "Scheduled Castes Order 1950" as applicable in the State of Karnataka, the father of the first respondent cannot be held to be a person belonging to Scheduled Caste.

(3.) In meeting this contention the learned counsel for the first respondent urged that the question whether a person belongs to Scheduled Caste or not is a question of fact and unless such question had been raised before the original authorities the matter could not have been raised for the first time in the review petition before this Court to be agitated, all along all the authorities and the learned single Judge had proceeded on the basis that the father of the first respondent belongs to Scheduled Caste and in this context relied upon a decision of this court in Thammannegowda v. State of Karnataka, (ILR 1993 Kar 2099). There a question of fact that the grantee belongs to Scheduled Caste or Scheduled Tribe not having been disputed earlier, this Court did not allow the party concerned to raise this question for the first time in the writ appeal. Perhaps in this case we would have adopted the same course but for the fact that the Supreme Court in the Civil Appeal referred to earlier directed the consideration of this question by this Court. Hence we proceed to consider this question as directed by the Supreme Court.