BALAKRISHNA, J. ( 1 ) THE legality and propriety of the order passed by the deputy commissioner, shimoga dated 24-6-1983 under Annexure-D is assailed in this writ petition. ( 2 ) THE land in question is admittedly abhoodan land which was originally owned by one parvatappa who gifted it away under a scheme launched by the government of Karnataka in 1955 under the name and style of bhoodan and vidyadan for educational institutions. Under the scheme an appeal was made to people to donate lands in order to enable agricultural training to be imparted to the pupils and such lands were taken possession of by the department of the government under valid gift deeds executed by donors in favour of the government. It appears that such lands became government lands and were exempted from the Provisions of Karnataka Land Reforms Act, except under Section 8 for the purpose of rent payable by the lessees. The income realised from the lands was utilised to subserve the aims and objects of the school which included training in agriculture etc. In terms of circulars issued from time to time by the department of the state government. ( 3 ) THE land which was under cultivation of the original owner parvatappa was leased out to different persons every year by the government department and in the instant case it was leased out in favour of respondent-1. These facts are not in dispute. But the dispute arose when order under Annexure-D came to be passed by the deputy commissioner, shimoga granting land in favour of the first respondent because he has been tenanting the lands since 18 years and also because the first respondent was in occupation of 6. 35 acres of land as a lessee having 3 brothers in his family. In the course of the Order, the deputy commissioner observed:"the land held by him including the land held as bhoodan tenant (cultivation lands) does not exceed the ceiling limit under the Provisions of the Land Reforms Act. Merely because he did not apply to the land tribunal his claim cannot be ignored being bhoodan tenant who is cultivating for the past 18 years paying gutta every year. "making these observations, the deputy commissioner proceeded to grant an extent of 2 acres and 26 guntas of arabilachi village for wet cultivation to the first respondent at an upset price of Rs. 3. "making these observations, the deputy commissioner proceeded to grant an extent of 2 acres and 26 guntas of arabilachi village for wet cultivation to the first respondent at an upset price of Rs. 3. 000/- per acre. ( 4 ) THE point for consideration is whether the land in question considering its nature and the purpose for which it was gifted by the donor could be granted by the state government to the first respondent who was cultivating the land on lease basis. ( 5 ) THE learned counsel appearing for the petitioner made it crystal-clear that there is absolutely no objection for the first respondent to continue in occupation and cultivation of the land deriving the benefits therein as a lessee. But the objection is to the grant of land conferring title on the first respondent. ( 6 ) THE reasoning of the deputy commissioner is irrational. If the land is capable of being the subject matter of occupancy rights, it is mandatory that the first respondent should have made an application in form No. 7 under the Provisions of the Karnataka Land Reforms Act and thereafter it was equally mandatory for the land tribunal to hold an enquiry and pass an order on merits in accordance with law after affording a reasonable opportunity of hearing to all the parties concerned. But it is not open to the state government to donate or grant lands at an upset price considering the nature of the land in question and the purpose for which it was gifted by the donor to the donee in the instant case. That the first respondent has been in cultivation of the land for over 18 years paying gutta regularly every year may be a good consideration for considering question of confirment of occupancy rights if an application had been made by the first respondent before the competent authority in form No. 7 and also subject to the application having been made within the time limit prescribed under the act. But that is not the case here. Hence, the question of confirment of occupancy rights does not arise. The observation of the deputy commissioner necessarily implies that a land in question in respect of which only occupancy rights could be granted cannot be the subject matter of on outright grant to the lessee because transfer of rights contemplated in both instances are inconsistent with one another. Hence, the question of confirment of occupancy rights does not arise. The observation of the deputy commissioner necessarily implies that a land in question in respect of which only occupancy rights could be granted cannot be the subject matter of on outright grant to the lessee because transfer of rights contemplated in both instances are inconsistent with one another. What could be the subject matter of grant of occupancy rights cannot be the subject matter of an outright grant under the land revenue act. The sympathetic consideration shown by the deputy commissioner no doubt is commendable. But unfortunately it is not consistent with law. Unregulated benevolence cannot be recognised by the court for, after all, where there is a conflict between equity and law, the latter should prevail. Having due regard to the facts and circumstances of the case, I am of the opinion that the order passed by the deputy commissioner under Annexure-D making an outright grant of land to the extent of 2 acres 26 guntas in survey No. 261 of arabilichi village to the first respondent is without jurisdiction. However, it is always open to the state government to consider the perpetuation of the lease granted in favour of the respondent-1 for cultivation of the land on terms agreed reciprocally to the best advantage of the technical institution whose interest is paramount. The ultimate benefactor is the educational institution and not the individual. ( 7 ) THE learned counsel Sri v. t. raya reddy appearing for respondent-1 submitted and vehemently contended that the order of the deputy commissioner under Annexure-D deserves to be confirmed for two reasons. The first reason is that the first respondent was cultivating the lands even before parvatappa gifted it away under a bhoodan movement and even now continues to be in possession, cultivation and occupation of the land as a lessee, previously under parvatappa and subsequently under the state government. It was sought to be made out that in order to defeat the claims of the first respondent that the gift deed was effected by parvatappa in favour of the government. This argument will not hold good because nothing prevented the first respondent from filing an application in form No. 7 before the land tribunal seeking confirment of occupancy rights. The first respondent has lost his remedy by default. This argument will not hold good because nothing prevented the first respondent from filing an application in form No. 7 before the land tribunal seeking confirment of occupancy rights. The first respondent has lost his remedy by default. As regards the second contention that alternate remedy is available under the statute and it was open to the petitioner to prefer an appeal before the tribunal and that since the petitioner has not exhausted the remedy, this is not a fit case for interference by this court, the answer is the well established principle of law that where an order is passed without jurisdiction, the plea of alternate remedy could not be a bar. In the instant case, the order passed by the deputy commissioner under Annexure-D is patently devoid of jurisdiction or in excess of the jurisdiction vested in the deputy commissioner. Therefore, this contention also cannot be accepted. ( 8 ) FOR the reasons stated above, the writ petition is allowed and the impugned order of the deputy commissioner under Annexure-D is quashed. However, the state government is at liberty to perpetuate the lease granted in favour of the first respondent on terms to be mutually agreed upon bearing in mind the best interest of the educational institute for whose benefit the land was gifted by the donor to the donee. It is to be emphasised that the interest of the institution as a benefactor is paramount in comparison with the interest of an individual lessee and it is not permissible to vest the right of ownership in any individual in so far as the lands in question are concerned. It is also made clear that by allowing this writ petition and quashing Annexure-D , it does not follow that the first respondent is liable for eviction. ( 9 ) THE state government is directed to refund the upset price paid by the first respondent to the state government in pursuance of the order under Annexure-D. ( 10 ) IN the interim order passed on ia. I by this court on 25-10-1983, the first respondent was directed to deposit a sum of Rs. 2,000/- on or before 30th june, 1984 and to continue to deposit at that rate for the subsequent period commencing from 1-7-1984 before the end of fasli year namely succeeding June of that year which, however, would be subject to the result of the writ petition. 2,000/- on or before 30th june, 1984 and to continue to deposit at that rate for the subsequent period commencing from 1-7-1984 before the end of fasli year namely succeeding June of that year which, however, would be subject to the result of the writ petition. It is also directed that all the deposits made by respondent-1 from time to time should not be paid to the petitioner or any other person. ( 11 ) NOW that the writ petition is allowed, it is hereby directed that all the deposits made by respondent-1 from time to time as directed by this court in the said order shall be paid to the petitioner for the benefit of the school. ( 12 ) SRI h. Kantharaj, learned high court government pleader is permitted to file his memo of appearance for respondents 2 and 4 within 2 weeks from today. Writ petition allowed. --- *** --- .