THEMMAMMA v. DEPUTY COMMISSIONER, TUMKUR — 1997 DIGILAW 492 (KAR)

H. N. TILHARI, J. ( 1 ) THIS petition is by the alienee, who had purchased the granted land from respondent 3, vide, sale deed dated 5-4-1968 and 28-5-1969, challenging the orders passed by the assistant commissioner dated 25-4-1992, Annexure-B to the writ petition and the order of the deputy commissioner in appeal dated 15-2-1996. The petitioner has sought quashing of these orders by issue of writ of certiorari and also prayed for direction to be issued to the respondents not to dispossess the petitioner from 2 acres of land of sy. No. 44/1 and new No. 78 of bydarahalli village, tiptur taluk, tumkur district. ( 2 ) THE facts so far as concerned there is not much dispute. petitioner's counsel admitted that the father of respondent 3 namely mudalaiah in whose favour the land was granted on 16-5-1949 vide, annexure-a, belonged to adi-dravida caste. learned counsel for the petitioner contended that there is no dispute that so far as the grant is concerned. It was a free grant and that in 1949, as per Rule 43 (g) of the Mysore land revenue code, the grantees were prohibited for ever from making any transfer of the granted land. Only exception was that the granted land could be offered and be accepted as a security for the loan taken from the government or from co-operative societies or co-operative banks. It has also been provided it was limited to the loans taken for the purpose of improving the granted land. Except for this clause, there had been permanent bar against alienation of the granted land. Learned counsel for the petitioner contended before me that the grantee did not belong to the scheduled caste, though at the time of the grant, he belonged to adi-dravida community. Learned counsel for the petitioner contended that the concept of scheduled caste came into picture and operation only after 26th of january, 1950, when the Constitution of India came to be enforced and as such during 1949, it cannot be said that the grant was made in favour of a scheduled caste person, as there did not exist any such thing as scheduled caste. Learned counsel for the petitioner contended that this is the sole and only point he can urge in this case and he urges that this is an important point to be considered. Learned counsel for the petitioner contended that this is the sole and only point he can urge in this case and he urges that this is an important point to be considered. ( 3 ) THE contention of the petitioner's counsel has very hotly been contested by learned government pleader Smt. Shantha kumari. The learned government pleader contended that the expression 'depressed class' used refers to the persons or communities coming under the schedule prepared or issued under the constitution. The learned government pleader contended that here it only means that scheduled caste under the act should be taken to mean to be the castes which were later on taken and categorised as scheduled caste in the list issued by the president or amended subsequently and if the caste of the person has been such which has been included in the scheduled caste, the grant shall be taken and deemed to have been made in favour of scheduled caste for the purpose of act No. 2 of 1979 that is Karnataka scheduled castes and scheduled tribes (prohibition on transfer of certain lands) Act, 1979 and adi-dravida caste is beyond doubt included in the list of scheduled caste and the act did apply and as the grant was a free grant of land and there was complete non alienation clause, therefore transfer of the granted land made by the grantee in favour of the petitioner vide, sale deed dated 28-5-1969 was rightly held to be illegal, invalid, null and void. ( 4 ) I have applied my mind to the contentions made by learned counsels for the parties. No doubt the granted land as contended by petitioner's counsel has been defined under Section 3, sub-section (1), clause (b) to mean "any granted land by the government to a person belonging to any of the scheduled castes or scheduled tribes and includes land allotted or granted to such person under the relevant law for the time being in force, relating to agrarian reforms or lands, ceilings or abolition of inams, other than that relating to hereditary offices or rights and the word 'granted' shall be construed accordingly". ( 5 ) NO doubt the expression granted land only is confined to the land granted by the government to a person or any person belonging to either scheduled caste or scheduled tribes and to none else. ( 5 ) NO doubt the expression granted land only is confined to the land granted by the government to a person or any person belonging to either scheduled caste or scheduled tribes and to none else. The expression scheduled caste has been defined in clause (d) of Section 3 (1) of the act that is Karnataka scheduled castes and scheduled tribes (prohibition on transfer of certain lands) Act, 1978 (act No. 2 of 1979) clause (d) of Section 3 of the act reads :"scheduled castes and scheduled tribes" shall have the meaning respectively assigned to them in the constitution". in the Constitution of india, vide, article 366, clauses (24) and (25), the expression "scheduled castes" and "scheduled tribes" have been defined. Article 366, clause (24) reads as under: (24) "scheduled castes" means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be scheduled castes for the purposes of this constitution. similarly the expression "scheduled tribes have been defined under clause (25) of article 366 of the constitution. It reads (25) "scheduled tribes" means such tribes or tribal communities or parts of or groups within such tribal communities as are deemed under article 342 to be scheduled tribes for the purposes of this constitution. ( 6 ) "scheduled castes" expression per se indicates that it refers to the castes, races, tribes, parts of groups, within such castes, races and tribes which under article 341 are deemed to be scheduled castes. Similarly scheduled tribes or tribal communities or parts thereof which are deemed under article 342 have been described to the scheduled tribes for the purpose of the constitution. Scheduled caste by itself is not a single caste. The expression takes within itself various castes which are deemed to be scheduled castes under article 341. Similarly scheduled tribes or tribal communities or parts thereof which are deemed under article 342 have been described to the scheduled tribes for the purpose of the constitution. Scheduled caste by itself is not a single caste. The expression takes within itself various castes which are deemed to be scheduled castes under article 341. Article 341 of the Constitution provides as under:" (1) president may, with respect to any state or union territory and where it is a state, after consultation with the governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be scheduled castes in relation to that state or union territory, as the case may be; (2) parliament may by law include in or exclude from the list of scheduled castes specified in a notification issued under clause (1) any caste, race or tribe, or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification". ( 7 ) A reading of article 341 clearly reveals that the expression "scheduled caste" consists of castes and those castes which the president by notification notifies or specifies to be scheduled caste are deemed to be scheduled castes for the purpose of the Constitution and those castes which are added or included in the list of scheduled castes by act of parliament by amending the list, they may also be categorised as scheduled castes or in order to determine whether a person did belong to scheduled castes at the time the act did come into force that is act No. 2 of 1979, we have to take into view these definitions under the act and the constitution. Here the definition with reference to the granted land, it must mean that the land granted to the persons belonging to the castes or belonging to such castes which after coming into force of the Constitution have been notified to be scheduled castes by the president of India or which has subsequently been included in the list of scheduled castes issued under article 341. So what has to be looked into with reference to the granted land is whether the person in whose favour the grant has been made, that is the grantee did belong to such castes at the time of the grant, which caste had subsequently been included in the list of scheduled castes, notified by the president under article 341 or included subsequently by act of parliament, amending the list under article 341 (2) of the constitution, and if answer is in affirmative that the person did belong to such caste, race or tribe which has been notified under article 341 (1) or which has been included in the list issued under article 341 (1) or list amended under article 341 (2) of the Constitution and finds place in that list of scheduled caste issued under article 341 of the constitution, either originally or amended prior to the coming into force of act No. 2 of 1979, then land if it has been granted to such a person even before coming into force of the constitution, shall be taken and be deemed to be the grant in favour of a person belonging to scheduled caste, though it may be that at that time there was no such list of castes as list of the scheduled castes. The scheduled castes list no doubt has been issued after 1950, but for the purpose of the Act, as per definitions referred to above, it will be deemed to have been referring to the castes or those castes, races or tribes, which had been included after coming into force of the Constitution in the list of scheduled caste communities notified by the president, or in the list issued by the president as amended by subsequent law of the parliament. ( 8 ) IN the present case the grantee that is the father of respondent 3 beyond doubt belonged to adi-dravida caste and when he did belong to adi-dravida caste, and that caste had been included as per notification issued by the president in the list of scheduled castes, it will have to be read that the land was granted to a person belonging to a caste which had been declared after coming into force of the Constitution to be scheduled caste. ( 9 ) IN that view of the matter, in my opinion it can be held and has rightly been held by the authorities that the grantee, that is, the father of respondent 3 did belong to a caste which has been termed as scheduled caste. That being so, the Provisions of the act including Section 4 would have applied and were rightly applied. When there was a permanent bar of alienation and transfer had been made by the grantee in petitioner's favour irrespective of the fact that there had been complete ban or bar against alienation of the granted land, then in such circumstances it was within the jurisdiction of the assistant commissioner under Section 4 of the Act, to declare the transfers or sale to be null and void and to have ordered restoration of the possession of the land in favour of the grantee. thus considered in my view the two sale deeds dated 5-4-1968 and 28-5-1969, have rightly been held under Section 4 of the act t o be null and void and that thereunder no title has passed on in favour of the transferee nor any title is to be deemed to have been transferred in favour of the transferee or passed, so orders passed under Section 5 of act No. 2 of 1979, have been perfectly valid and justified. No other point has been pressed. The writ petition is hereby dismissed as being devoid of any merits. Costs made easy. --- *** --- .