O. DYAMAPPA v. APPANNA BHOVI — 1993 DIGILAW 141 (KAR)

M. RAMAKRISHNA RAO, J. ( 1 ) IN this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the orders, Anncxurcs-B and C, made by the assistant Commissioner and the Deputy Commissioner, respondents 4 and 3 herein, respectively, and sought for quashing the same for the reasons set out in the grounds of the petition. ( 2 ) A few facts that arc necessary for the disposal of the petition are asfollows : the undisputed facts as disclosed from the averments of the petition and the impugned orders are that five acres of land in Sy. No. 21/6 situated in akkathangiyerakatte, Honnali Taluk, Shimoga District, was granted under darkhast in favour of Dasabhovi, father of Appanna Bhovi, respondent 1 herein, in proceedings No. M4. DCP. 19/1947-48 dated 12-8-1948 subject to certain conditions and thereafter saguvali chit was also issued in his favour. It is seen that the Deputy Commissioner granted the land in question applying the provisions of the Mysore Land Grant Rules prevalent as on the date of grant. One of the several grounds imposed in the grant was that the grantee shall not alienate the granted land for a period of 20 years. It was a free grant, and the antee was a member of Scheduled Caste. These facts are not disputed in the courts below. It is also not disputed that ignoring the condition of non-alienation for 20 years, the grantee Dasabhovi sold the granted land in favour of Hullikcre gururunanjappa, respondent-2 herein, by a registered sale deed dated 19-9-1962 for a consideration of Rs. 500/ -. Thus, the said Gurunanjappa had been enjoying the granted land by virtue of the sale in his favour. It is again undisputed that respondent 2 Gurunanjappa allowed Smt. Thimmakka, mother of Dyamappa, petitioner herein, to cultivate the land in question as a lessee for a certain period. Thus, this lady Thimmakka had been cultivating the land as a lessee. However, the land was continued to be in the name of Gurunanjappa. ( 3 ) THE case of the petitioner is that his mother Thimmakka approached the Land Tribunal, Honnali, seeking occupancy right in her favour in respect of the land in question on the ground that she was cultivating the land as a lessee. The land Tribunal in proceeding No. LRF. CR. ( 3 ) THE case of the petitioner is that his mother Thimmakka approached the Land Tribunal, Honnali, seeking occupancy right in her favour in respect of the land in question on the ground that she was cultivating the land as a lessee. The land Tribunal in proceeding No. LRF. CR. 4/1974-75 made an order 15-5-1976 granting occupancy in her favour over the said land. Thus, Thimmakka was in possession and enjoyment of the said land till her death and thereafter the petitioner was cultivating it. ( 4 ) IT is pertinent to note that the original grantee Dasabhovi having died, hisson Appanna Bhovi, respondent 1 herein, approached the Assistant commissioner with an application seeking to declare the alienation of the granted land made by his father in favour of respondent 2 Gurunanjappa as null and void under Section 4 of the Karnataka Scheduled Castes and Scheduled tribes (Prohibition of Transfer of Certain Lands) Act, 1978 ('the Act' for short) contending that it was made in contravention of the condition of the grant. ( 5 ) ON the said application, the Assistant Commissioner initiated the proceedings in No. PTCL. CR. 18/1985-86, notified all parlies including thimmakka, afforded an opportunity to all of them of being heard including filing objections to the claim of respondent 1 Appanna Bhovi and disposed of the matter by his order made as per Annexure-B declaring the alienation in favour of Gurunanjappa as void and directing restoration of the land in favour of the claimant Appanna Bhovi. This order was the subject-matter of appeal before the Deputy Commissioner by the petitioner herein in No. SC/st 174/1987-88. The Deputy Commissioner by his order, Annexure-C, made after hearing the learned counsel on both sides, dismissed the appeal upholding the view taken by the Assistant Commissioner. Hence this petition. ( 6 ) I have heard learned counsel on both sides. ( 7 ) SRI M. R. Naik, learned counsel for the petitioner, arguing vehemently, urged the following points for consideration : (1) Thimmakka, mother of the petitioner, havingbeen conferred occupancy over the land in question on the strength of the leasehold right held by her through the owner of the land has got indefeasible title to it under the Karnataka land Reforms Act, 1961 ('the Act of 1961' for short) and such a right cannot be taken away by the subsequent enactment, viz. , SC/st Act of 1978. , SC/st Act of 1978. In other words, the Assistant Commissioner has no jurisdiction to entertain the application for restoration of the land under the Act when the matter had already been concluded under the Act of 1961, (2) Assuming for the purpose of argument that in view of the overriding provisions of Section 11 of the Act, the Assistant Commissioner has jurisdiction to entertain an application for restoration of the granted land, yet the Act of 1961 being the earlier Act containing similar overriding provisions under Section 138 prevails over the subsequent Act of 1978 thereby the right, title and interest in the land in question acquired by Thimmakka by means of grant of occupancy right in her favour under the Act of 1961 and subsequently inherited by the petitioner herein cannot be taken away under the Act. (3) The Assistant Commissioner has failed to record a finding on whether appanna Bhovi, respondent 1 herein, was the son of Dasabhovi, original grantee, since Dasabhovi died issueless and hence respondent 1 could not have made an application as his L. R. for restoration of the land. (4) Both the authorities below failed to apply their mind to the facts of the case and consider the evidence on record in its proper perspective with reference to the relevant provisions of law applicable to the case. ( 8 ) THUS, the learned counsel submitted that the impugned orders, Annexures-B and C, error apparent on the face of record and in law, cannot be sustained and the same are liable to be quashed. ( 9 ) SRI Siddagangaiah, learned High Court Government Pleader for respondents 3 and 4, and Sri K. N. Dayalu, learned counsel for respondents 1 and 2, have argued in support of the impugned orders. ( 9 ) SRI Siddagangaiah, learned High Court Government Pleader for respondents 3 and 4, and Sri K. N. Dayalu, learned counsel for respondents 1 and 2, have argued in support of the impugned orders. Sri Siddagangaiah contended that the SC/st Act of 1978 being a special enactment with a declaration under Article 31 - C of the Constitution that it is for giving effect to the policy of the State towards securing the principles laid down in Article 46 of the Constitution will always prevail over any other law for the time being in force or any custom, usage or contract or any decree or order of a court, tribunal or other authority and that therefore the Land Reforms Act of 1961 even though it also contained a overriding provision over other enactments must yield to the Act of 1978. Thus applied the Act to the case on hand, the alienation of the granted land by the original grantee in favour of respondent 2 gurunanjappa being within the prohibitory period, the Assistant commissioner was right in declaring such an alienation as void under Section 4 of the Act, which cannot be interfered with in this petition under Article 226 of the Constitution. Sri Siddagangaiah lastly submitted that the tenancy claimed by Thimmakka was based on the lease held by her from Gurunanjappa who purchased the land within non-alienation period provided under the grant. Therefore, he cannot be called absolute owner of the land and unless he is the owner of the land having better title in law to it, he cannot lease the land to anybody. Despite this, he leased the land to Thimmakka on which the Tribunal granted her occupancy, which cannot be sustained in law. ( 10 ) THE learned counsel on both sides have relied upon certain authoritiesin support of their respective contentions. I will consider them hereinafterwards. ( 11 ) AS regards the contentions taken by Sri Naik, learned counsel for the petitioner, I do not see any force in any of them. In support of the first contention of Sri Naik that the Assistant Commissioner had no jurisdiction to entertain the application of the petitioner for restoration of the land under the act once respondents 3 and 4 were granted occupancy under the earlier Act of 1961, he has not been able to cite any authority. In support of the first contention of Sri Naik that the Assistant Commissioner had no jurisdiction to entertain the application of the petitioner for restoration of the land under the act once respondents 3 and 4 were granted occupancy under the earlier Act of 1961, he has not been able to cite any authority. On the other hand, this question has already been covered by the decision in Siddoji Rao v State of karnataka, 1983 (1) Kar. LJ. 478. It was a case where the grantee sold the granted land to D within the prohibitory period and D then leased it to the petitioner therein whose application for occupancy was allowed and in the meanwhile the grantee moved the Assistant Commissioner who declared the sale as null and void under the Act. On facts, it was held :"sections 4 and 11 give overriding effect to the Prohibition of Transfer of certain Lands Act, 1978, and the order of the Tribunal not with standing, the assistant Commissioner was right in declaring the sale void and restoring possession to respondent 3. " ( 12 ) THE Division Bench of this court to which 1 was a party in Bhagi Hengsuv Rocky Lasrado, 1990 (3) Kar. L. J. 575 : llr 1991 Kar, 2375, had the occasion to consider the overriding effect of Section 11 of the Act with reference to Rule 29-A of the Karnataka Land Grant Rules, 1969, by which alienations of lands granted to persons other than members of Scheduled Castes and Scheduled tribes are permitted. Interpreting the non-obstante clause contained in section 11 of the Act with reference to Rule 29-A, the Division Bench held in paragraph 17 as follows :"by a perusal of Section 11 of the Act, it is undoubtedly clear that the provisions of that section will have overriding effect over all other enactments. Therefore, the view that Rule 29-A validates the alienations made to persons other than SC/st also is incorrect and improper. On the other hand, in view of Section 11 of the Act, which will have overriding effect over all other enactments, Rule 29-A must yield to it. "while laying down that law, the Division Bench distinguished the ruling of another Division Bench of this Court in Laxmamma v State, 1983 (1) Kar. L. J. 417. On the other hand, in view of Section 11 of the Act, which will have overriding effect over all other enactments, Rule 29-A must yield to it. "while laying down that law, the Division Bench distinguished the ruling of another Division Bench of this Court in Laxmamma v State, 1983 (1) Kar. L. J. 417. The law so declared in Bhagi Hengsu's case holds the field as it is not overruled by the Supreme Court. ( 13 ) DEALING with the question whether the transferees of the granted lands purchased within the prohibitory period would have an indefeasible right in them or not, the Supreme Court in Manchegowda v State, 1984 (2) Kar. L. J. 1 (SC) has held in paragraph 19 as follows :"we have earlier noticed that title which is acquired by a transferee in the granted lands, transferred in contravention of the prohibition against the transfer of the granted lands, is a voidable title which in law is liable to be defeated through appropriate action and possession of such granted lands transferred in breach of the condition of prohibition could be recovered by the grantor. The right or property which a transferee acquires in the granted lands, is a defeasible right and the transferee renders himself liable to lose his right or property at the instance of the grantor. We have further observed that by the enactment of this Act and particularly Section 4 and Section 5 thereof, the legislature is seeking to defeat the defeasible right of the transferee in such lands without the process of a prolonged legal action with a view to speedy resumption of such granted lands for distribution thereof to the original grantee or their legal representatives and in their absence to other members of the Scheduled Castes and Scheduled Tribes communities. In our opinion, this kind of defeasible right of the transferee in the granted lands cannot be considered to be property as contemplated in Articles 31 and 31-A. The nature of the right of the transferee in the granted lands on transfer of such lands in breach of the condition of prohibition relating to such transfer, the object of such grant and the terms thereof, also the law governing such grants and the object and the scheme of the present Act enacted for the benefit of the weaker sections of our community clearly go to indicate that there is in this case no deprivation of such right or property as may attract the provisions of Articles 31 and 31-A of the Constitution. " (emphasis supplied) ( 14 ) THEREFORE, it is clear that right or title of the transferee to the granted land purchased by him in contravention of the condition of the grant is defeasible and ultimately the grantor has right to resume the land for the purpose of distribution of it to the original grantee or his legal representatives or, in their absence to other persons belonging to Scheduled Castes and scheduled Tribes. ( 15 ) CONSIDERING the reasonableness or otherwise of the condition of non-alienation imposed in the grant by the grantor vis-a-vis the contention that it was violative of Article 19 (l) (f) of the Constitution, the Supreme Court held in paragraph 17 as follows :"granted lands were intended for the benefit and enjoyment of the original grantees who happen to belong to the Scheduled Castes and Scheduled tribes. At the time of the grant, a condition had been imposed for protecting the interests of the original grantees in the granted lands by restricting the transfer of the same. The condition regarding the prohibition on transfer of such granted lands for a specified period, was imposed by virtue of the specific term in the grant itself or by reason of any law, rule or regulation governing such grant. It was undoubtedly open to the grantor at the time of granting lands to the original grantees to stipulate such a condition the condition being a term of the grant itself and the condition was imposed in the instrests of the grantee. Except on the basis of such a condition the grantor might not have made any such grant at all. Except on the basis of such a condition the grantor might not have made any such grant at all. The condition imposed against the trnsfer for a particular period of such granted lands which were granted esscntially for the benefit of the grantees cannot be said to constitute any unreasonable restriction. The granted lands were not in the nature of the properties acquired and held by the grantees in the sense of acquisition or holding, of property within the meaning of Article 19 (l) (f) of the Constitution. (emphasis supplied) ii was a case of a grant by the owner of the land to the grantee for the possession and enjoyment of the granted lands by the grantees and prohibition on transfer of such granted lands for the specified period was an essential term or condition on the basis of which the grant was made. It has to be pointed out that the prohibition on transfer was not for an indefinite period or perpetual. It was only for a particular period, the object being that the grantees should enjoy the granted lands themselves at least for the period during which the prohibition was to remain operative. Experience had shown that persons belonging to Scheduled Castes and Scheduled Tribes to whom the lands were granted were, because of their poverty, lack of education and general backwardness, exploited by various persons who could and would take advantage of the sad plight of these poor persons for depriving them of their lands. The imposition of the condition of prohibition on transfer for a particular period could not, therefore. , be considered to constitute any unreasonable restriction on the right of the grantees to dispose of the granted lands. The imposition of such a condition on prohibition in the very nature of the grant was perfectly valid and legal. " thus it is clear that the imposition of condition not to alienate the granted land for a period of 20 years, in the instant case, cannot be said to be unreasonable. It is perfectly valid and legal. ( 16 ) ADMITTEDLY, the owner of the land granted on 28-5-1949 in favour of Dasabhovi, father of Appannabhovi, respondent-1 here, was the Government. Hence it is a Government land. It is perfectly valid and legal. ( 16 ) ADMITTEDLY, the owner of the land granted on 28-5-1949 in favour of Dasabhovi, father of Appannabhovi, respondent-1 here, was the Government. Hence it is a Government land. The grant was subject to non-alienation of the granted land for a period of 20 years and violation of such a condition entitled the Government to resume the land from the transferee. So it is clear that as long as the prohibition runs against the transfer of the granted land, the grantee has no valid title to convey as till the expiry of the period of non-alienation, it is the Government that is the owner of the land and not the grantee. Therefore, any title or right over the granted land acquired by the transferee from the grantee during prohibition is a voidable title or right which in law is liable to be defeated through appropriate action and possession of such land transferred in breach of the condition of the grant could be recovered by the grantor. Thus it goes without saying that such an alienee has no valid title or right to lease such a land and if at all there is any lease made by the alienee of such a land, it cannot stand the test of law. ( 17 ) IN the instant case, the original grantee Dasabhovi sold the granted land to respondent 2 Gurunanjappa under a registered sale deed dated 19-9-1962, i. e. , within the prohibitory period of 20 years. Therefore, Gurunanjappa cannot have a valid title to the land on such sale and consequently the lease created by him in favour of Thimmakka, mother of the petitioner is invalid and cannot be acted upon. However, based upon such a lease, occupancy over the land in question was granted by the Tribunal in favour of Thimmakka, which is illegal and cannot be sustained in law. This is one aspect. Another aspect is that the land did not lose the characteristics of the Government land in view of the breach of the terms of the grant and hence it continued to be the Government land exempted from the purview of the Act of 1961 as contemplated in Section 107 thereof. ( 18 ) THAT apart, a Division Bench of the Madras High Court in State v oosman Haji and Co. ( 18 ) THAT apart, a Division Bench of the Madras High Court in State v oosman Haji and Co. , AIR 1970 Madras 27, dealing with the question whether the State was excluded from operation of the Madras City Tenants Protection act (3 of 1922), held as follows :"section 3 of the Government Grants Act prevails over the provisions of the madras City Tenants Protection Act (3 of 1922 ). The Slate is, therefore, not bound by the provisions of the Act (3 of 1922 ). It follows that the fair rent petitions filed by the lessees of Government land arc not maintainable against the landlord, the State. "the High Court was considering the overriding effect of Section 3 of the government Grants Act (XV of 1895) over the Madras City Tenants Protection act (3 of 1922 ). The Government Grants Act also known as Crown Grants act was enacted to explain the Transfer of Property Act, 1882, so far as relates to grant from the Government and to remove certain doubts as to the powers of the Government in relation to such grants. Section 3 of this Act reads :"3. Government grants to take effect according to their tenor. All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor any rule of law, statute or enactment of the Legislature to the contrary notwithstanding. "construing the over-riding effect of this section with reference to the Madras city Tenants Protection Act, the court held in paragraph 11 as follows : "the Privy Council referred to the first part of the preamble that it was intended to settle doubts which had arisen as to the effect of the Transfer of property Act and stated that the general words of Section 3 could not be read in their apparent generality and must be read with reference to the general context and could not be construed to extend to the relation between a sanad holder and his tenants. Thus as between the Government and the grantee, the terms of the grant would prevail notwithstanding any other law to the contrary. Thus as between the Government and the grantee, the terms of the grant would prevail notwithstanding any other law to the contrary. It is true, as pointed out in the said Privy Council decision and the calcutta decision just referred to, that Section 3 of the Government Grants act cannot be construed as to limit the statutory competence of the Provjn- cial Legislature under the Constitution Act. Thus a legislature can by express words, or by necessary implication, take away the effect of Section 3 of the Government Grants Act while enacting a particular legislation. But for section 3 of the Government Grants Act, the Madras City Tenants Act would apply to tenancies in respect of Government lands. The express provision contained in Section 3 of the Government Grants Act, taken along with the absence of any provision in the Madras City Tenants Protection Act extending the Act to the Government lands, either expressly or by necessary implication, can only lead to one inference, namely, that the provisions of the Madras City Tenants protection Act cannot be invoked contrary to the terms of the Government grants. (emphasis supplied) it may be pointed out that neither expressly nor by necessary implication does the Government Grants Act either stand repealed or has fallen into obsolescence, ( 19 ) AS already pointed out, in the instant case, the land in question continued to be the Government land. The Government in exercise of its power conferred on it by the Mysore Land Grant Rules granted the land in favour of thimmakka, mother of the petitioner, subject to certain conditions. Therefore, the terms of the grant prevail over any other rule of law, statute or enactment of the Legislature to the contrary notwithstanding. That is one thing. Another thing is that the Karnataka Land Reforms Act of 1961 has clearly provided a provision in Section 107 thereof not to apply the said Act to the Government lands. It reads :"107. Act not to apply to certain lands, (1) Subject to the provisions of Section 110, nothing in this Act, except Section 8, shall apply to lands (i) belonging to Government ; xx XX XX. Therefore, the intendment of the provisions of Section 107 of the Act of 1961 clearly goes to show that the said Act shall not be applicable to any land belonging to the Karnataka State Government. Therefore, the intendment of the provisions of Section 107 of the Act of 1961 clearly goes to show that the said Act shall not be applicable to any land belonging to the Karnataka State Government. Since the lands belonging to the government were granted by the competent authority under the relevant Land grant Rules subject to certain conditions regarding non-alienation, they continued to be the Government lands by virtue of the terms of the grant, and such lands having been transferred in contravention of the terms of the grant, the provisions of Sections 4 and 5 of the Act of 1978 are made applicable to declare such transfers as null and void and to restore the lands to the original grantees or their legal representatives or, in their absence, to persons belonging to scheduled Castes and Scheduled Tribes. That is the object of the Act. Thus, the assistant Commissioner has jurisdiction to entertain an application for restoration of lands of this kind. ( 20 ) IN the light of the decision of the Madras High Court and having regard to the provisions of Section 107 of the Act of 1961, it is not possible for this court to hold that Section 138 of the Act of 1961 prevails over the provisions of the Act of 1978. ( 21 ) IT is needless to say that the constitutional validity of the Act has been upheld by this court as well as the Supreme Court. It is an Act enacted to comply with the mandate of Article 46 of the Constitution. It also contains a declaration, as required by Article 31-C of the Constitution, under Section 2 of the Act that the provisions of this Act arc for giving effect to the policy of the state towards securing the principles laid down in Article 46 of the constitution. It is a law which is not inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 of the Constitution coming under Part III. On the other hand, it is a law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV and containing a declaration that it is for giving effect to such policy. On the other hand, it is a law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV and containing a declaration that it is for giving effect to such policy. Therefore, such a law cannot be deemed lo be void and questioned in any court on the ground that it does not give effect to such policy. ( 22 ) CONSIDERING the contention that the Act of 1978 was void and unconstitutional being violative of Article 13 (2) of the Constitution as it had taken away or abridged the rights conferred by Part III of the Constitution, the supreme Court in Manchegowda's case (supra) has clearly held that no rights guaranteed under Part III in particular Articles 13, 14, 19 (l) (f), 31 and 31 - A of the Constitution were taken away or abridged by the enactment of the Act. The supreme Court in paragraph 19 of the judgment which is extracted in paragraph 13 of this order has clearly held in Manchegowda 's case that this kind of defeasible right of the transferee in the granted lands cannot be considered to be property as contemplated in Articles 31 and 31 -A and hence there is in this case no deprivation of such right or property as may attract the provisions of articles 31 and 31-A of the Constitution. ( 23 ) ON the question of violation of Article 19 (l) (f), in paragraph 18, the supreme Court held :"the transferees of the granted lands from the original grantees acquired the lands improperly and illegally in contravention of the condition imposed on such transfers. Such transferees must have been aware and must in any event be deemed to have been aware of the condition regarding the prohibition on transfer and they cannot be considered to be bona fide transferees for value. Such persons acquired in the granted lands only a voidable title which was liable to be defeated and possession of such lands could be resumed from such transferees. Such a person who only acquires a defeasible legal right cannot make a grievance of any violation of Article 19 (1 ) (f) of the constitution, when the defeasible legal right is, in fact, defeated by appropriate legal action or by any suitable provision enacted in an Act passed by the competent legislature. Such a person who only acquires a defeasible legal right cannot make a grievance of any violation of Article 19 (1 ) (f) of the constitution, when the defeasible legal right is, in fact, defeated by appropriate legal action or by any suitable provision enacted in an Act passed by the competent legislature. It may further be noted lhat in most cases such transferees have after the transfer, which is liable to be avoided in accordance with law, enjoyed for a sufficiently long period, the benefits of lands transferred to them before the land could be recovered from them. Article 19 (l) (f), therefore, did not invalidate Section 4 of the Act. " (emphasis supplied) ( 24 ) CONSIDERING the contention that Sections 4 and 5 of the Act are violative of Article 14 of the Constitution, the Supreme Court in paragraph 22 has held :". . . . . . . . . . . . THIS Act has undoubtedly been passed for the benefit of members of the Scheduled Castes and Scheduled Tribes who are recognised as backward citizens and weaker sections in the country. There cannot be any manner of doubt that persons belonging to Scheduled Castes and Scheduled tribes can be considered to be separate and distinct classes particularly in the matter of preservation and protection of their economic and educational interests. In view of the peculiar plight of these two classes, the Constitution in Article 15 (4) makes specific mention of these two classes and in article 16 (4) speaks of backward class of citizens. One of the directive principles as contained in Article 46 of the Constitution enjoins that "the State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular of the Scheduled Castes and Scheduled Tribes and shall protect them from social injustice and all forms of exploitation. " The object of the Act is to protect and presene the economic interests of persons belonging to Scheduled Castes and Scheduled tribes and to prevent their exploitation. For the purpose of the present Act, the classification has a clear nexus to the object sought to be achieved. " The object of the Act is to protect and presene the economic interests of persons belonging to Scheduled Castes and Scheduled tribes and to prevent their exploitation. For the purpose of the present Act, the classification has a clear nexus to the object sought to be achieved. We are, therefore, of the opinion, that special provisions made for the resumption of the granted lands, originally granted to members of Scheduled Castes and Scheduled Tribes and restoration of the same to the original grantees or their heirs and legal representatives and failing them to other members of these communities do not infringe Article 14 of the Constitution. " (emphasis supplied) ( 25 ) THUS it is clear that the petitioner cannot have a grievance that his rights guaranteed under Part III of the Constitution are taken away or abridged by the enactment of the Act. It is an Act enacted to givecffect to the policy of the State towards securing all or any of the principles laid down in Part IV of the constitution and not to take away or abridge any of the rights conferred under part III thereof. Therefore, question of violation of Article 13 (2) of the constitution does not arise. ( 26 ) CONSIDERING the effect of Article 46 of the Constitution, the Supreme court held that two provisions relating to Fundamental Rights, viz. , Articles 15 and 29 (2) have, however, been amended by the Constitution (First amendment) Act, 1951, in order to give effect to the present Article, notwithstanding the existence of those two Fundamental Rights, to the contrary [please see (1951) SCR 525]. By virtue of this amendment, thus, it will be now possible for the Slate to make a special provision, e. g. , to build a State colony, for the habitation of Harijans, notwithstanding the bar against discrimination on the ground of caste (please see AIR 1952 Bom. 461 ). The supreme Court in Lingappa v State of Maharashtra, AIR 1985 SC 389 has held:"this article embodies the concept of 'distributive justice' which connotes, inter alia, the removal of economic inequalities and rectifying the injustice resulting from dealings or transactions between unequals in society. 461 ). The supreme Court in Lingappa v State of Maharashtra, AIR 1985 SC 389 has held:"this article embodies the concept of 'distributive justice' which connotes, inter alia, the removal of economic inequalities and rectifying the injustice resulting from dealings or transactions between unequals in society. This may be achieved by the State by lessening of inequalities by differential taxation, giving debt relief, distribution of property owned by one to many who have none by imposing ceiling on holdings, or by direct regulation of contractual transactions by forbidding certain transactions. It also means that those who have been deprived of their properties by unconscionable bargaining should be restored to their'property. Hence, a law invalidating transfers of land belonging to a member of the Scheduled Tribes to a nontribal and for restoration of such land to the transferor would be an implementation of this Article and is constitutionally valid. " ( 27 ) FROM what we have discussed hitherto, it is crystal clear that the Act of 1978 being a special legislation enacted to protect and preserve the economic interests of persons belonging to Scheduled Castes and Scheduled Tribes and. to prevent their exploitation prevails over any other law for the time being in force or any custom, usage or contract or any decree or order of a court, tribunal or other authority notwithstanding anything inconsistent therewith, and therefore the provisions of Section 138 of the Act of 1961 though contained overriding provisions over any other law must yield to the Act. Thus, the second ground urged by Sri Naik is also rejected. ( 28 ) SO far as the contention that Appanna Bhovi, respondent 1 herein, was not the son of original grantee Dasabhovi is concerned, neither there was a plea lakcn before the Assistant Commissioner nor was there any specific ground taken in the appeal before the Deputy Commissioner to enable them to record a finding on it. On the other hand, from the original records produced by Sri siddagangaiah, learned High Court Government Pleader, it is seen that in the application presented by Appanna Bhovi he has categorically stated that he is the son of Dasabhovi. This statement is not contradicted by the opposite party nor was the petitioner able to prove by producing evidence to the contrary that appanna Bhovi was not the son of Dasabhovi. This statement is not contradicted by the opposite party nor was the petitioner able to prove by producing evidence to the contrary that appanna Bhovi was not the son of Dasabhovi. Therefore, in the writ petition under Article 226 of the Constitution it is not possible for me to hold an enquiry afresh on the disputed question of fact. I am satisfied that there was enough evidence to show that Appanna Bhovi is the son of late Dasabhovi, original grantee. Both the fact finding authorities having been satisfied on this question granted the relief prayed for. I do not think that I can enter into a controversy in this petition on this question. Therefore, I reject this contention also. Perusal of the impugned orders and the evidence on record makes it clear that the authorities below have applied their mind to the facts of the case and the relevant provisions of law, considered the evidence on record in its proper perspective and, on being satisfied, made the orders impugned herein declaring the transfer of the land in question as null and void and directing restoration of the same to respondent 1 Appanna Bhovi. Therefore, there is no substance in the last contention also, ( 29 ) IN the result and for the reasons stated above, this writ petition fails and the same is hereby dismissed. No costs. ( 30 ) SRI Siddagangaiah, learned High Court Government Pleader, is permitted to file his memo of appearance for respondents 3 and 4 within two weeks. --- *** --- .