H. N. TILHARI, J. ( 1 ) HEARD learned counsel for the petitioner Sri vasudeva reddy for the petitioner as well as Sri ravivarma kumar for respondent 4 and Sri b. e. kotian, learned government Advocate for respondents 1 to 3. ( 2 ) BY this petition the petitioner has sought the following reliefs: a. Order declaring Rule 47 of the Mysore land revenue rules made under the land revenue code, 1888, which was in force in erstwhile State of Mysore as unconstitutional and void; b. For issuance of writ of mandamus or certiorari quashing the order dated 20-11-1986, Annexure-K passed by the special deputy commissioner, kolar, in case No. Ra. sc. st. 108 of 1985-86, as well as sought the quashing of the order dated 14-10-1985 passed by the assistant commissioner, chikkaballapur sub-division, chikkaballapur in case No. Lnd. Sc. St. (cmn) 570 of 1979-80 and for issuance of further writ or order this court deems fit. The order dated 20-11-1986 is the order passed by the special deputy commissioner, as an appellate court affirming the order dated 14-10-1985, passed by the assistant commissioner, whereby the assistant commissioner has declared that the sale of 4 guntas of land of sy. No. 8 had been void and stood forfeited to the government and it further ordered the eviction of the petitioner from the said land and for its resumption and recall in favour of respondent 4, a. Narayanaswamy to the writ petition. ( 3 ) IT is admitted by the petitioner that the land bearing sy. Nos. 7 and 8 of sonnasetti village, chintamani taluk, district kolar belong to the government-state. As per petitioner's case vide endorsement dated 31-8-1951, issued to respondent 4, it was revealed that in reply to the petition dated 30-11-1950, appealing against the order of revenue commissioner dated 31-8-1950, sanctioning alienation of 29 guntas of land of sy. No. 8 to Sri c. n. rukmoji rao mans for construction of the cinema theatre, it was informed and conveyed to them that it has been ordered that the grant of land for construction of cinema theatre will be limited to 17 guntas and that remaining 12 guntas will be available for grant to adikarnatakas for formation of the sites and that a. Narayanaswamy was allowed to occupy the area in which he had laid the foundation. It has further been averred that on a review petition being made, Sri rukmoji rao was informed, in modification of the previous government Order, as per endorsement dated 5-12-1952, it had been ordered that the grant of land made to Sri rukmoji rao was limited to 19 guntas and that 10 guntas will be available for building sites for harijans and respondent 4 may be permitted to occupy an area on which he laid foundation. The deputy commissioner, kolar has also issued a memo to the effect that 4 guntas of land of sy. No. 8 of sonnasettihalli village on which narayanaswamy had laid foundation has been confirmed and granted to narayanaswamy and he was permitted to remain in occupation and possession of 4 guntas of land of sy. No. 8. That subsequently Sri narayanaswamy, vide registered sale deeds dated 24-12-1955, 10-2-1958, 24-5-1959 and 18-10-1966 transferred by sale the entire 4 guntas of land, granted to Sri narayanaswamy. These transfer deeds were executed by narayanaswamy in favour of the petitioner and the petitioner had constructed 20 shops in the land. The assistant commissioner, chikkaballapur sub-division, chikkaballapur vide order dated 24-9-1970, held that the sale of the sites in favour of the petitioner or are in favour of the members of the petitioner's family are contrary to the Mysore land revenue rules as amended upto 1956 and came to the conclusion that the transfers were in violation of the rules and he also found that the petitioner sold another 2 guntas of land of sy. No. 8 granted to harijans, but finally he ordered that the entire 6 guntas of land be granted to the petitioner at the upset price of Rs. 20/- per square yard. The petitioner was also directed to pay a conversion fine of Rs. 500/- per acre under Rule 107 of the Mysore land revenue rules, 1966, vide order dated 24-9-1970. Petitioner's case is vide order dated 3-4-1972, government found that it would not be equitable to penalise the purchasers on the basis of a Rule which was not actually implemented in this particular case by issuing a certificate of grant incorporating condition of non-alienation and cancelled the notices issued to the petitioner. Petitioner's case is vide order dated 3-4-1972, government found that it would not be equitable to penalise the purchasers on the basis of a Rule which was not actually implemented in this particular case by issuing a certificate of grant incorporating condition of non-alienation and cancelled the notices issued to the petitioner. Subsequently, proceedings were initiated at the instance of respondent 4 under Karnataka scheduled castes/scheduled tribes (prohibition of transfer of certain lands) Act, 1978 and the assistant commissioner vide his order dated 14-10-1985 declared the sale of 4 guntas of land in sy. No. 8 to be void and to have stood forfeited to the government and ordered eviction of the petitioner from the said lands. The assistant commissioner directed resumption of the said land which had been granted to 4th respondent. That the petitioner felt aggrieved from the order dated 14-10-1985 passed by the assistant commissioner referred to above preferred the appeal and the special deputy commissioner vide his order dated 20-11-1986, Annexure-K to the writ petition, dismissing the appeal and affirmed the order passed by the assistant commissioner. ( 4 ) FEELING aggrieved from the order of the assistant commissioner and the deputy commissioner referred to above, the petitioner has filed this petition under article 226 of the Constitution of India and has prayed for grant of the reliefs as mentioned above. ( 5 ) ON notice being issued to the respondents, respondent 4 filed the counter-affidavit. Respondent 4 has denied the petitioner's case, but has asserted that when this petition was pending, the petitioner has filed eviction cases under the Provisions of the Karnataka Rent Control Act. Respondent 4 admitted that the assistant commissioner passed the order under Section 5 declaring the transactions of sale to be illegal, null and void and ordering resumption and restoration of the granted land, and the appeal therefrom was dismissed and the order of assistant commissioner was affirmed. The 4th respondent has taken further plea that the Provisions of act No. 2 of 1979 have overlapping effect, over all acts and rules and the rules of the state and centre and alleged that when it had declared certain alienation of the granted land to be void, the same became the property of the government and the government had power to resume it or to regrant or restore it to the original grantee. It was also asserted that Rule 47 was not ultra vires or at variance with the fundamental rights, nor inconsistent with the Provisions of the act. ( 6 ) I have heard learned counsel for the petitioner Sri h. k. vasudeva reddy. Sri vasudeva reddy contended that there was no grant of the land and the land could not be said to be granted land and therefore, act 2 of 1979 did not apply. It was submitted that act 2 of 1979 did not apply to the facts of the case. It was further submitted that Rule 47 was not consistent with the Provisions of the Mysore land revenue Act, 1888 and it is in conflict with the terms of the schedule-g to the Mysore land revenue Act, 1888, which is the form of sanad for building sites, which under Section 141 are granted. Learned counsel contended that there has been no non-alienation condition or bar of non-alienation and Rule 47 being in conflict with the contents of schedule-g, the said Rule was void. Learned counsel contended that the schedule attached to the Act, until it is contrary to the Provisions of the Act, it has to be taken to be forming part of the act and its provision is to be as effective as the Provisions of the act itself. Learned counsel referred to schedule-g to the act which contains the proforma of the sanad, which is granted in matters under sections 137 and 141 and contended that it provides that as per sanad for the building site, the tenure of the grantee and occupancy are both transferable and heritable and are continued by the government of mysore, without any objection or question as to title. Learned counsel contended that in view of these terms and conditions under the grant as per sanad granted to a grantee, the rights of occupancy granted under Section 137 or confirmed under Section 137 or 141 being transferable or heritable, the rider placed under Rule 47 of the rules, is to be taken to be ineffective and ultra vires and as such Rule 47 of the Mysore land revenue rules, really have been illegal, null and void and did not affect the right of the grantee to make alienation of the granted land or the granted building site. Learned counsel made reference to the Provisions of sections 3 (7), 135 and 141 of the act in this connection and also to the decision and observations of the Supreme Court in the case of M/s. Ujagar Prints and others v Union of India and others, and in the case of M/s. Aphali Pharmaceuticals Limited v State of Maharashtra and others, in order to emphasise that the schedule attached to the Act, qua the nature of the Provisions of the Act, and to show it becomes part and parcel of the act and any Rule inconsistent therewith are to be taken or held to be ultra vires. ( 7 ) THESE contentions of the learned counsel for the petitioner have been hotly contested by Sri ravivarma kumar. Sri ravivarma kumar contended that the land had been granted in favour of respondent 4 as per annexures-a, b and d to the writ petition. He further contended that the grant has been made free of cost. It was a grant of 4 acres of land of sy. No. 8. He contended that the grant had been made in favour of respondent 4, who was beyond doubt a person belonging to scheduled caste and grant being free grant, Rule 47 of the Mysore land revenue rules control the matter and applied to the case and he contended that sites granted are given free of cost and not to be alienated by the grantee to any other person. Sri ravivarma kumar further contended that section 141 of the act will not apply to the present case, nor there is any question of any benefit being available of schedule-g, to the present petitioner, as in the present case it is nobody's case that sanad had been granted in favour of respondent 4. Sri ravivarma kumar, further contended that Section 141 of the Act, per se reveals that a person may be entitled to take the sanad, provided he makes the necessary payment survey fee. It is after the payment of the survey fee that he may be entitled to receive from the deputy commissioner, sanad in the form of schedule g, specifying the plan, description, the extent and condition of the holding it is granted to the holder of a building site, after he has paid the survey fee. It is after the payment of the survey fee that he may be entitled to receive from the deputy commissioner, sanad in the form of schedule g, specifying the plan, description, the extent and condition of the holding it is granted to the holder of a building site, after he has paid the survey fee. ( 8 ) IN the present case nothing on record indicates that respondent 4 had paid survey fee and sanad in the form as in schedule-g was given to him. Sri ravivarma kumar contended that may it be that the order as indicated permitting and giving 4 guntas of site or granting 4 guntas of site in favour of respondent 4, was the grant with no specific condition relating to or controlling the transfer of land by the grantee and where the grant is silent about the conditions it is beyond doubt that Rule 47 of the rules which has been framed under Section 233, clause (1) of the act of 1888 will have the operation, where the land is one, the nature of which is of building site. Learned counsel further contended the Provisions of Section 4 and Section 11 of the Karnataka scheduled castes and scheduled tribes (prohibition of transfer of certain lands) Act, will have a overriding effect over any provision contrary to Section 4 or Section 11, be that provision in an order even of the court or other authority. Learned counsel further emphasised that in that view of the matter, the order impugned cannot be said to suffer from any error of law apparent on the record or of jurisdiction. ( 9 ) I have applied my mind to the contentions made by the learned counsels for the parties. The land at sy. Nos. 7 and 8 have been sites for the building purpose. A perusal of annexures-a, b and d per se reveals that the deputy commissioner has been pleased to grant 4 guntas of land of sy. No. 8 of sannasettihalli village, in favour of a. Narayanaswamy, on which he had laid down the foundation. It was confirmed and granted to him and he was permitted to remain in possession of that 4 guntas of land. It may be taken that this land had been granted or had been disposed of in favour of a. Narayanaswamy -respondent 4. Section 135 of the act reads as under:"135. It was confirmed and granted to him and he was permitted to remain in possession of that 4 guntas of land. It may be taken that this land had been granted or had been disposed of in favour of a. Narayanaswamy -respondent 4. Section 135 of the act reads as under:"135. It shall be lawful for the deputy commissioner or such other authority as the government may authorise in this behalf to dispose of lands set apart for building sites under Section 134, in such manner as may be directed by rules which the government may, from time to time, frame in that behalf, either subject to or exempt from liability to payment of land revenue, as may be directed by such rules". Section 135 provides that the land shall be disposed of in such manner as may be directed by the rules, which government may from time to time frame, the grant may be subjected to exemption from liability to pay the land revenue or may be exempted from payment. ( 10 ) SECTION 141 of the act reads as under:"141. Every holder of a building site as aforesaid shall be entitled, after payment of the said survey fee, to receive from the deputy commissioner without extra charge one or more sanads, in the form of schedule g, specifying by plan and description the extent and conditions of his holding: provided that, if such holder do not apply for such sanad or sanads at the time of payment of the survey fee or thereafter within six months from the date of the public notice issued by the deputy commissioner under the last proceeding Section, the deputy commissioner may require him to pay an additional fee not exceeding one rupee for each sanad. Every such sanad shall be executed on behalf of the government by such officer as may, from time to time, be lawfully empowered to execute the same". ( 11 ) A reading of Section 141 reveals that in order to been titled to have a sanad, one must be holder of a building site and he should have also made payment of survey fee then and then he will become entitled to receive the sanad in the specific form or the form to be specified in schedule-g, which will specify the conditions of his holding, as well as the extent of the holding. The expression 'holder' has been defined vide Section 3 (10) of the act. The expression signifies 'the person in whom a right to hold the land is vested, whether solely on his own account or wholly or partly in trust for another person, or for a class of persons or for the public. The expression 'building site' has been defined in Section 3 (7) of the act and it means a portion of land held for building purpose, whether any building be actually erected thereupon or not, and includes the open ground or courtyard enclosed by, or adjacent to, any building erected thereupon. ( 12 ) IN the present case till before the passing of the order annexures-a and b, it cannot be said that narayanaswamy was the holder of the building site. He no doubt was in possession and he had laid down foundation on an extent of 4 acres of land of sy. No. 8, but whether he was in possession with a right to hold the land, whether he was a person in whom the right to hold the land or the building site did vest till before the issuance of the order annexure-a, dated 31-8-1951 and 22-1-1953, I find that he had no right to hold the land till before the grant. No doubt he was in possession, but it does not come out that he was entitled to hold the land or he had the right to hold the land or the right was already vested in him and in such a case, there was no question of any sanad being granted under Section 141 of the act and it could not be said that the sanad should be presumed to have been granted as per schedule-g and the right that has been conferred was transferable. Had he been the holder of the building site from before, as per terms of the Act, prior to the date of order of grant, or of permission to make use of the land in august, 1951, or as per Annexure-D , in january, 1953, and had it been proved that the survey fee was paid by him, then it could be taken that he had been granted the sanad and the position might have been different. No doubt it could well be said that as laid down by their lordships of the Supreme Court in the cases of M/s. Ujagar prints limited, supra and M/s. Aphali pharmaceuticals limited, supra, that there being no conflict between the term of schedule-g and the Provisions of the Act, read with Section 70 of the Act, the grantee had full authority to transfer and the Rule 47 of the rules, to the contrary may be said to be not applicable to such a case, to the extent it was at variance with the terms of the tenure as indicated or as mentioned in the sanad in form-g, as per the schedule forming, part of the act. Schedule forming part of the act may be said to be effective as forming part of the act or schedule forming part of the rules may have the same effect as the rules, unless they are conflicting with the rules in case of schedule attached to the rules, or are in conflict with the Provisions of the act. But here the case is not like that. Here the grant has been made or the disposal of the site has been made under Section 135, whereunder 4 guntas land had been allotted and given to narayanaswamy, who had laid down the foundation thereon, may be even without right and he was permitted to remain in possession, subject to what condition he was so permitted and granted the right to occupy and make use of the land is not clear from these orders. But one thing is clear that the grant was made. So when the Provisions of the order granting land, happen to be silent and did not indicate the conditions, the Rule operating and governing such grants as then applicable would definitely control the grant. Rule 47 as it existed in the book or introduced as per amended notification dated 15th may, 1912, and amendment dated 13th of december, 1938. Rule 47 of the Mysore land revenue rules, reads as under: "47. Rule 47 as it existed in the book or introduced as per amended notification dated 15th may, 1912, and amendment dated 13th of december, 1938. Rule 47 of the Mysore land revenue rules, reads as under: "47. The occupancy of building sites shall ordinarily be sold by auction to the highest bidder whenever the deputy commissioner shall be of opinion that there is a demand for such sites: but the deputy commissioner may, in his discretion, dispose of the occupancy of such sites by private arrangement, either upon the payment of a price fixed by him or without charge as he shall deem fit. The sites given free shall not be alienated by the grantees to any other person". ( 13 ) THE Rule had been introduced by amendment, introduced in december, 1938 and had been in operation at the time the land was granted in 1951 or 1953. Section 135 itself provides that the grant shall be made in the manner as prescribed by the rules. This Rule specifically prescribes the manner of disposal of occupancy rights of building sites. It may ordinarily be sold by auction to highest bidder, but the deputy commissioner, has also been given discretion to dispose of the occupancy rights of such sites by private arrangements, either by payment of price fixed by him or without any charge, as he, in the circumstances, deems fit. Prescribing the manner a further condition has been put with reference to the manner of disposal of the land with the sites which are given free of cost, that alienees or say the grantees must know that they shall not alienate the land to any other person. ( 14 ) AS I have held that this grant is only under Section 135 of the act and not covered by Section 141 of the Act, the question of conflict with terms of sanad contained in the schedule-g and rule 47 does not arise for the reason that there is no proof that any sanad had been granted, apart from the fact that respondent 4 has not been owner, nor has been proved to be a holder of site on or immediately before the date, the grant was made in his favour. In this view of the matter, in my opinion, Rule 47 of the rules cannot be said to be in conflict with the Provisions of the act or the schedule thereto and, the Rule 47 has to operate and the bar against alienation provided under Rule 47 of the rules had been very much operative and effective with reference to the right of occupancy and make use of 4 guntas of land of sy. No. 8, which was granted in favour of a. Narayanaswamy respondent 4. ( 15 ) IN this view of the matter, the alienations that had been made by respondent 4 of the 4 guntas of land vide sale deeds dated 24-12-1955, 10-2-1958, 24-5-1959 and 18-10-1966, in my opinion, have rightly been held to have been made in violation and in breach of law, as contained in the rules, relating to grant of the building sites and that being the position, the said alienations made by the above mentioned registered sale deeds stood covered by the Provisions of Section 4 of the Act, which provides that any alienation or transfer of the granted land in breach of the conditions or terms of the grant or any breach of the terms of Provisions of law relating to the grant, whether alienations have been made before the commencement of act 2 of 1979 or thereafter shall be null and void and which further provides that such alienations shall not, nor shall be deemed to have ever, conferred any right or title in favour of the alienee-transferee. ( 16 ) THE further contention of the learned counsel relying on the orders Annexure-C , based on orders passed by the assistant commissioner contained in Annexure-F , dated 24-9-1970 and that of the government dated 3-4-1972 are of no assistance to the case of the petitioner, in view of the Provisions of sections 4 and 11 of act 2 of 1979. ( 17 ) THUS considered in my opinion, the order impugned contained in Annexure-J , dated 14-10-1985, passed by assistant commissioner under Section 5 of act 2 of 1979 and the order impugned dated 20-11-1986, passed by the special deputy commissioner, cannot be said to be suffering from any error of law or of jurisdiction. The orders appears to be perfectly valid and correct. The orders appears to be perfectly valid and correct. ( 18 ) THE order dated 14-10-1985 passed by the assistant commissioner, chikkaballapur sub-division, chikkaballapur and the order dated 20-11-1986 passed by the special deputy commissioner, appears to be perfectly legal, valid and do not appear to be suffering from any error of law or jurisdiction. ( 19 ) THUS considered, the writ petition is devoid of foree and it is hereby dismissed. No order as to costs --- *** --- .