Shylendra Kumar, J.
1. These two writ petitions are by brothers, who had claimed as the legal heirs of one Nagamma, a person belonging to scheduled caste community and in whose favour an extent of 1 acre of land in Sy.No. 155 of Hoodi village K.R. Puram Hobli, Bangalore had been granted in terms of the sanction order dated 25-6-1952, issued by the Revenue Commissioner in No. D.Dis.C1.DR.177/51-52. The sanction order was one sanctioning the grant of land to an extent of 9 acres 39 guntas in the said survey number to nine persons mentioned in the order, who belong to adi-Karnataka community, i.e, an extent of 1 acre in favour of each person, in accordance with the Rules governing the grant of land to persons belonging to depressed class.
2. This sanction order was followed by an individual grant order dated 30-3-1954 in favour of the said Nagamma, granting her one acre of land subject to the condition that the land should not be alienated permanently, as the grant was free of cost, and further a saguvali chit was issued on 23-10-1954, where under also, the condition that the land cannot be alienated by the granted permanently had been mentioned.
3. It is such land that had been sold by the daughter of the original grantee Smt. Byramma in terms of the sale deed dated 16-4-1968 in favour of one Ramanujalu Reddy-father of the third respondent. It is in respect of this transaction, the petitioner in WP No. 31938 of 2004 had filed an application to the Assistant Commissioner under the provisions of Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short, the Act) praying for invalidation of the sale transaction and for resumption and restitution of the land etc. The Assistant Commissioner issued notice to the person in occupation of the land namely the third respondent herein and conducted an enquiry and found that the land in question had been granted in favour of said Nagamma, who belonged to scheduled caste, free of cost, subject to the condition that the land should not be alienated for good and such a land having been sold in terms of the sale transaction dated 16-4-1968, the transaction is clearly one attracting the provisions of Section 4(1) of the Act, as the sale was in violation of the condition of the grant and accordingly invalidated the transaction and directed resumption and restitution of the land to the applicant and for effecting necessary corrective entries in the revenue records.
4. Third respondent-son of the purchaser-preferred an appeal to the Deputy Commissioner, questioning the correctness of the order passed by the Assistant Commissioner. During the pendency of the appeal, the brother of the original applicant namely Mungappa-petitioner in WP No. 18125 of 2004-also joined the proceedings by seeking impleadment, as it was his claim that he had also interest in the land in question being a legal heir of the original grantee.
5. The Special Deputy Commissioner being of the view that the applicant had not placed material to show that the land was a granted land; that the Assistant Commissioner had merely relied on certain copy of the saguvali chit and mutation record, which were available before him; that the appellant has contested the position that the land was a granted land; that the Assistant Commissioner had not secured and verified this aspect and had not examined the original record and in this view of the matter, allowed the appeal and left the matter at it. It is against this order, the present this writ petitions are filed.
6. I have heard the submissions of Sri R. Shivachandra Naik, Learned Counsel for the petitioner in Writ Petition No. 18125 of 2004 and Sri M. Narayana Reddy, Learned Counsel for the petitioner in Writ Petition No. 31938 of 2004 and Sri Venkata Reddy, Learned Counsel for the third respondent-the son of the purchaser-as also Sri Bharamagouda B. Goudar, Learned Government Pleader.
7. Submissions on behalf of the petitioners is that the Deputy Commissioner has without taking care to look into the available records and without considering the materials that had also been placed by the applicant and his brother before the authorities, overlooking all such materials and without bothering to examine the effect of such records which were available before him, has simply set aside the order passed by the Assistant Commissioner observing that the original records were not available and that the Assistant Commissioner has not examined the original records and therefore the order requires to be set aside.
8. Sri Venkata Reddy, Learned Counsel appearing for the third respondent-purchaser, while supports the order passed by the Deputy Commissioner, has put forth a contention that assuming for argument's sake that some records were available to indicate that the land was a granted land in favour of a person belonging to a depressed class, until and unless the condition imposed in the grant order that the land cannot be alienated permanently, is supported by a Rule framed under the provisions of the Mysore Land Revenue Code, 1888 (for short, the Code), the condition by itself cannot operate; that in the absence of a rule, the officials of the Revenue Department are not competent to impose a condition of the nature of permanent alienation; that such a restriction cannot be imposed in a grant order independent of a Rule; that in the absence of a Rule enabling imposition of such condition on the grant itself, no condition can be imposed and at all events, the authorities were not justified in acting on the premise that the transaction was hit in view of Section 4 of the Act; that Section 4 is attracted only when there is a violation of condition and if in law no condition could have been imposed or if there cannot be a condition or at any rate a condition of which it can be said is a violation attracting Section 4 of the Act is in existence and therefore, the Deputy Commissioner even if sets aside the order passed by the Assistant Commissioner, it can be sustained even otherwise on such premise.
9. Though a request is made for filing an application by the third respondent, after the matter was heard at length for the purpose of summoning the records etc., I am not inclined to entertain such a request at this stage. If the third respondent wanted to peruse any records, it was open to him to peruse the same at the appropriate time before the authorities concerned. There is no question of this Court entertaining an application either for permitting the third respondent to examine any record or for directing the production of records for the purpose of perusal of the third respondent before this Court.
10. Though it is a fact that the writ petitions had been admitted by issuing rule, there was an express order as on 28-2-2005 directing the government pleader to secure the records within two weeks, the Learned Government Pleader submits that the records have not been received and seeks further time. I am not inclined to adjourn the matter any further, as the case has already been heard and it had been adjourned at the request of the Learned Counsel for the third respondent for making further submissions. It is for this reason I am not inclined to entertain any further application, but on the conclusion of the arguments, I proceed to pass the orders.
11. Sri Venkata Reddy, Learned Counsel for the third respondent has placed reliance of the decision of a Division Bench of this Court in the case of Mariyappa v. Dr. M. Thimmarayappa, 2004 (5) KLJ 255 for the proposition that in the absence of Rules, no condition can be imposed in a grant restricting the right of the grantee to alienate the granted land. I have perused the judgment of the Division Bench. The judgment was in the context of existence or otherwise of a Rule governing the grant of this nature as on 13-12-1936, the date when the land had been granted in the case under consideration by the Division Bench of this Court. In the present case, we are concerned with the Rule as it existed on the date of the grant viz., 30-3-1954 and also on the date of issue of saguvali chit as on 23-10-1954.
12. For yet another reason, the judgment of the Division Bench cannot be considered as an authority to govern the facts of the present case, inasmuch as the Division Bench proceeded on the premise that there was no such Rule framed under the provisions of the Code as on the date of the grant. This obviously made in para-13 of the judgment, which reads as under:
13. On the date of the grant, except this government order, there was no rule framed by the State Government. If that is so, in the absence of any such rule regulating conditions of grant, it cannot said that a Government order could put restriction on alienation of such grant. Further, as stated earlier, the restriction that could be imposed under Section 36 of the Code. In the absence of any such rule framed by the State Government, regarding disposal of the Government land, no reliance can be placed on the said Government order. Therefore, in our opinion, the decision referred to above has not laid down the correct proposition of law.
13. The decision of the Division Bench is, therefore, not helpful to the third respondent and does not have the effect of a precedent. The judgment was rendered on the premise that that there was no Rule. In the present case, the Learned Counsel for the petitioner drew the attention of the Court to the amendment effected to the Code in terms of the No. R.7594-604-LR.266-53-2, dated 4th August, 1953, which reads as under:
1. In Rule 43 of the Land Rules
(i) For Sub-rule (1), the following sub-rule shall be substituted:-
The Sub-division Officer may grant,
(i) either free or for an upset price to persons belonging to the Depressed Classes who do not own any land; and
xxx xxx xxx(iii) For Sub-rule (8), the following sub-rule shall be substituted:
'(8) the grant of lands under Sub-rules (1) and (5) to persons belonging to Depressed Classes for an upset price or reduced upset price and to poor persons not owning any land shall be subject to the condition that the land granted shall not be alienation for a period of twenty years from the date of the grant and the grantee shall also execute mutchalikas in the form prescribed by the Government, provided that such land may be accepted as security....
14. A rule of this nature clearly indicates that the Rules framed under the Code governing the grant were already in place as on the date when this notification was issued further amending the said Rule. Significance of this notification is that the grant is governed by Rule 43 as amended under this notification. The condition in respect of the grant of this nature is that such a land granted to a person belonging to a depressed class cannot be alienated for a period of 20 years.
15. In the present case, there is no dispute that the land has been granted in favour of a person belonging to scheduled caste and the available material on record amply demonstrates that it was a grant by the government to a person as a person belonging to depressed class. Provisions of Rule 43(1), (5) and (8) are necessary attracted and the condition that the land should not be alienated for a period of 20 years is imposed on the grant statutorily irrespective of what should have been read. In fact the grant order recites that the land should not be alienated permanently. Though the wording is not so in the grant order, I have taken the view that if the grant order imposes a more beneficial condition to the advantage of the grantee, then such a condition cannot be ignored.
16. Be that as it may, in the present case, the transaction of the year 1968, being within the period of 20 years from the date of grant, is necessarily and obviously in violation of the term of the grant and therefore the Assistant Commissioner was fully justified in invalidating this transaction in the light of the provisions of Section 4 of the Act. The Deputy Commissioner has unnecessarily without understanding the correct position of the law and on surmises and presumptions, proceeded to hold that in the absence of grant order or any material placed by the applicant to this effect before the Assistant Commissioner, the Assistant Commissioner could not have passed the order and invalidate the sale.
17. While this observation is contrary to the materials on record which indicates that the land was in the nature of a granted land to Nagamma, as the revenue records, not one, several indicate the original sanction of the Revenue Commissioner was in favour of 9 persons, who had been entitled for such grant of particular piece of land in Sy.No. 155; that while there were 14 aspirants, only 9 were found to be eligible, out of the total extent of 9 acres 39 guntas, each of the aspirant found eligible, was granted one acre of land and the remaining 39 guntas was reserved as it is and this was followed by individual grant orders and letters issued by the Special Deputy Commissioner and these are all material which are produced and available on record and it cannot be characterized that such materials are either inadequate or due to the mere imagination of any person. It is only a blind person who declines to see the obvious material in the form of all these orders, which, beyond any doubt, indicate that the land was a granted land. In fact the Deputy Commissioner even if he should have found that there was no material etc, should have remanded the matter and not left the matter at that. The manner in which the Deputy Commissioner has dealt with the order of the Assistant Commissioner in exercise of appellate jurisdiction leaves much to be desired. To say the least, the Special Deputy Commissioner has acted in a quixotic manner. It is proper that the State Government enquires into the manner in which the Deputy Commissioner conducts himself while discharging his duties and be satisfied about the bonafides of his conduct.
18. The Learned Counsel for the third respondent has raised a contention with regard to the legal sanction to what is known as Depressed Classes Rules, referred to in the order; that there is no Depressed Classes Rules that has been framed under the provisions of the Code and therefore, in the absence of such a Rule, no condition could have been imposed. The argument is to be noticed only to be rejected, as in fact there were no separate Rules known as Depressed Classes Rules. It is only such provisions governing the grant of land to depressed class persons as contained in the Code or Rules framed thereunder alone is referred to as Depressed Classes Rules. There are no separate Rules of this nomenclature. But it is part of the very Code that was governing the grant of land in favour of persons belonging to depressed classes i.e. the relevant Rules which were very part of the Mysore Land Revenue Code, 1888. Contention is accordingly rejected.
19. In the result, these writ petitions are allowed with cost of Rs. 2,000/- payable by the third respondent to each of these two petitioners. The impugned order passed by the Special Deputy Commissioner is quashed by issuing a writ of certiorari. The order passed by the Assistant Commissioner is restored. The Assistant Commissioner is directed to take further steps in accordance with law for resumption and restoration of the land in question to the petitioners-applicants in accordance with law. Rule issued and made absolute.