KHALID SALEEM Vs. MANJAIAH

JUDGEMENT

(1.) IN this writ appeal the appellant has called in question the order of the learned Single Judge dated 17-3-2004 in W. P. No. 5591 of 2004 dismissing the writ petition (Khalid Saleem v Manjaiah ).

(2.) THE subject-matter in this appeal is four acres of land in Survey no. 653/p, Aldur Village, Chikmagalur District. This land was granted in favour of the father of the 1st respondent by name Boothaiah under a grant order dated 5-9-1951 at an upset price of Rs. 10/- per acre. The original grantee Boothaiah, sold the land in question in favour of the appellant under a sale deed dated 27-7-1971. After the demise of original grantee Boothaiah his son, the 1st respondent herein approached the 3rd respondent-Assistant Commissioner to declare the sale deed dated 27-7-1971 in favour of the appellant as null and void and put him in possession of the land in question under the provisions of the karnataka Scheduled Castes and Scheduled Tribes (Prohibition of transfer of Certain Lands) Act, 1978 (for short, 'the Act' ). The 3rd respondent-Assistant Commissioner initiated proceedings and issued notices. The appellant on receipt of notice from the 3rd respondent-Assistant Commissioner entered appearance through an Advocate. Despite grant of time the appellant has not filed any objections nor addressed arguments nor appeared before the Assistant Commissioner on the hearing dates. The Assistant Commissioner vide order dated 11-4-2001 held that the sale deed dated 27-7-1971 in favour of the appellant as null and void and directed to resume the land and to put the petitioner in possession of the same. Aggrieved by this order of the assistant Commissioner the appellant filed an appeal before the 4th respondent-Deputy Commissioner. The 4th respondent-Deputy commissioner by his order dated 6-1-2004 rejected the appeal filed by the appellant and confirmed the order of the Assistant Commissioner. The appellant being aggrieved by the order of the Deputy Commissioner approached this Court in W. P. No. 37230 of 2003 and the same came to be allowed on 13-10-2003 and the matter was remitted to the Deputy commissioner for fresh disposal in accordance with law.

(3.) AFTER remand from this Court, the appellant filed written arguments before the Deputy Commissioner. The Deputy Commissioner after considering the written arguments filed by the appellant again passed an order on 6-1-2004 dismissing the appeal by confirming the order of the Assistant Commissioner. Aggrieved by this order of the deputy Commissioner dated 6-1-2004, the appellant filed W. P. No. 5591 of 2004 contending that the grant in favour of the original grantee in the year 1951 was for an upset price. The authorities below have not given a clear finding as to whether the land was granted in accordance with the rule 43 (8) of the Rules under the Mysore Land Revenue Code, 1888. Without giving a finding on the nature of grant the authorities below concluded that permanent non-alienation condition is attracted to the grant in question. It is further, contended that prior to the sale in favour of the appellant in 1971 the original grantee on the security of the land in question obtained a loan from a co-operative society and committed default in payment of the loan by discharging the loan of grantee. The appellant purchased the land in question and therefore the sale in favour of the appellant cannot be held as invalid. The provisions of the act, is not applicable to the sale in favour of appellant. The learned single Judge by rejecting these contentions of the appellant dismissed the writ petition filed by the appellant vide order dated 7-3-2004. Hence this writ appeal.