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2003 DIGILAW 1064 (KAR)

K. v. RAJASEKARAPPA VS THE TAHASILDAR AND ORS.

2003-12-16

N.K.JAIN, N.KUMAR, V.G.SABHAHIT

body2003
K. V. RAJASEKARAPPA VS. THE TAHASILDAR AND ORS. ( 1 ) THIS Reference has been placed before us today as per the order of the Chief Justice dated 8. 12. 2003. ( 2 ) THE necessary facts of the case are: the land in Sy. No. 286 of Kotekere Village, Gundlupet taluk was granted during 1960-61 in favour of Dodda Madaiah as a lease grant and subsequently it was granted by the Deputy commissioner by order dated 8. 12. 1963. Thereafter the said land was purchased by the petitioner under a registered sale deed on 3. 2. 1975 and is in possession of the same. However, the Tahsildar initiated enquiry for the alleged violation of the terms of grant. The 2nd respondent - Asst. Commissioner vide order dated 19. 12. 1963 has held that the sale is in violation of the provisions of Karnataka Schedule Caste and Schedule Tribe (Prohibition of Transfer of Certain lands) Act. On appeal being filed, the Deputy Commissioner dismissed the said appeal on 28. 2. 2001. The same was challenged in Writ Petition. The learned Single Judge by a detailed order considered that there being contradictory opinions in the two Full Bench decisions, the same required reconsideration and thus referred the matter to a Larger Bench by order dated 28. 10. 2003 to consider the following questions. 1. Whether Rule 43-G of the Mysore Land Revenue Rule stipulating imposition of conditions regarding non-alienation etc. , in respect of the lands granted to the persons specified therein, is special Rule or not? if it is a special Rule, is it not in conflict with Rule 43j which does not stipulate imposition of any such conditions to the grants made thereunder? 2. Whether Rule 43-J of Rules of 1960 not providing for imposition of condition regarding non-alienation and other conditions on the granted lands, is not contrary to Section 3 of the government Grants Act, 1898 and Section 39, 233 and 234 of Mysore Land Revenue Code, 1888 and can it have the over-riding effect of them, as the rule being sub-ordinate legislation? ( 3 ) WHETHER Rule 43 (J) is not violative of Article 14 of the Constitution of India and contrary to rule 43 (E), 43 (G) for not providing imposition of conditions regarding non-alienation etc. , as provided in Rule 43 (G) in respect of the lands leased and thereafter granted? ( 3 ) WHETHER Rule 43 (J) is not violative of Article 14 of the Constitution of India and contrary to rule 43 (E), 43 (G) for not providing imposition of conditions regarding non-alienation etc. , as provided in Rule 43 (G) in respect of the lands leased and thereafter granted? ( 4 ) IS not Rule 43 (J) liable to be struck down as opposed to the ublic policy and contrary to section 3 of the Government Grants Act and the Rules framed under Section 39 and 233 of mysore Land Revenue Code in view of the decisions reported in AIR1986 SC 1571 , (1986 )3 Complj1 (SC ), 1986 Lablc1312 , (1986 )II LLJ171 SC , 1986 (1 ) SCALE799 , (1986 )3 SCC156 , [1986 ]2 SCR278 , 1986 (2 )SLJ320 (SC ) AND AIR1991 SC 101 , (1991 )1 Complj1 (SC ), JT1990 (3 )SC 725 , 1991 lablc91 , (1991 )I LLJ395 SC , 1991 Supp (1 )SCC600 , [1990 ]supp1 SCR142 , 1991 (1 )SLJ56 (SC )? 3. Both the parties submit that the points referred to us do not require reconsideration as they have already been answered in the decision of the Full Bench. Before the learned Single Judge, two Full Bench decisions have been cited viz. , (1) CHIKKA KULLEGOWDA v. STATE OF karnataka AND ORS. , ILR1997 KAR 1753 , 1998 (1 )Karlj142 smt. HAMBAMMA v. THE STATE OF KARNATAKA. , ILR 1999 KAR 261 4. The learned Counsel for the petitioner submits that there is no conflict between the two judgments and the points in issue have been considered in the second judgment and there is no necessity to consider it again. The question for consideration before the learned Single Judge is whether the grant falls under Rule 43 (J) of the Mysore Land Revenue (Amendment) Rules, 1960 or not. Rule 43 (J) as held is a special rule pre-supposed a lease in favour of the grantee. So Rule 43 (J) is a special rule as held in both the Full Bench decisions. A perusal of the relevant Rule 43 reveals that alienation clause has been made available to all other preceding sub-rules under this rule. Rule 43 (J) as held is a special rule pre-supposed a lease in favour of the grantee. So Rule 43 (J) is a special rule as held in both the Full Bench decisions. A perusal of the relevant Rule 43 reveals that alienation clause has been made available to all other preceding sub-rules under this rule. The Full Bench of this Court in Smt. HAMBAMMA's case (supra) has held that Rule 43 (J) is an independent provision and the conditions stipulated under Rule 43 (G) are not applicable for grants made under Rule 43 (J ). It was further observed that "there are no grounds for us to differ from the view taken by the Full Bench in this regard". The learned Counsel further submits that once the point in controversy is considered by the Full Bench, the learned Single Judge should have followed the same rather than referring the matter again to the Full Bench for reconsideration. ( 5 ) IT is well settled that a Single Bench is bound to follow the decision of a co-ordinate single bench so also of a Division Bench or Full Bench. The Single Bench/division Bench is bound to follow the decision of Full Bench or Larger Bench to maintain the judicial propriety. However, on the facts, a decision can be distinguished as each case depends upon the facts of its own. In the instant case the learned Single Judge treating the decisions of the Full Bench to be of divergent views has referred the matter for reconsideration. As stated by the respective Counsel for the parties, there is no divergent view, rather the point has already been covered by the Full bench. A reference can also be made to the decision of the Five Judges Bench of this Court in w. P. 22025/99 and connected cases disposed of on 23. 8. 2002. The Apex Court in PRADIP chandra PARIJA v. PRAMOD CHANDRA PATNAIK, AIR 2002 SC 296 considered the law and precedent on the point observed that as per the precedent, a smaller Bench routinely cannot doubt the decision of a larger Bench and refer the same to a still larger Bench and such feeling of the Single Judge is not approved. ( 6 ) THE paramount consideration is that the grantee should enjoy the property not from the date of grant but from the date of possession. ( 6 ) THE paramount consideration is that the grantee should enjoy the property not from the date of grant but from the date of possession. Ultimately the question to be considered is whether the condition of temporary grant has been complied with or not before making grant permanently. Once the condition has been complied with, the grant can be made under Section 43 (J), which is to be decided by the concerned authority. But grants under Rules 43 (J) and 43 (G) come under a distinct class and separate category. This has been decided by the Full Bench, which is not disputed by Counsel for either of the parties. As stated the grantee is dead. Be that as it may. The points under consideration are set at rest. Under the circumstances, in our humble opinion, the reference was not necessary. We find no ground for reconsideration. The matter may be placed before the learned Single Judge for disposal.