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2011 DIGILAW 1181 (KAR)

D. Kariyappa v. Thimmabovi

2011-12-05

A.S.BOPANNA, VIKRAMAJIT SEN

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Judgment :- 1. This appeal assails the order of the learned Single Judge dated 01.02.2011 passed in W.P. No. 4245/2010 (SC/ST) observing that there are concurrent findings of fact recorded by the Assistant Commissioner and the Deputy Commissioner to the effect that the land granted in favour of the original grantee was to a person belonging to the scheduled caste community, and therefore dismissed the writ petition. 2. Before us, the matter has been canvassed in great detail. Our attention has been drawn to the original order passed in the writ proceedings at the first instance, whereby the matter was remanded to the Assistant Commissioner to determine whether the original grantee belongs to the scheduled caste or scheduled tribe. It was pursuant thereto that the order which led to the filing of W.P.No.4245/10 came to be passed by the Assistant Commissioner on 29.07.2008. In that order, the Assistant Commissioner has returned the finding that Bovi community is a scheduled caste in Karnataka State. Inexplicably our attention has been drawn to the Constitution Bench decision in the case of MarrichandraShekhar Rao vs. Dean, Seth G.s. Medical College & Ors (1990) 3 SCC 130 . The said judgment militates against the submission made by the learned counsel for the appellant. It states that a person who is recognized as a member of Sc/ST in his original State will be entitled to all benefits under the Constitution in that State alone and not in all parts of the country where he migrates. 3. In the present case, learned counsel for the appellant contends that the original grantee hailed from Andhra Pradesh where the Bovi community is not a scheduled caste. Therefore, we have opined that MarriChandra’s case is totally against the submission made by the learned counsel for the appellant. The corollary to the judgment is that if a person belongs to a community, which in a particular State has been categorised as a scheduled caste community, he would be entitled to all the benefits enuring from such a determination regardless of the position that such a reservation does not exist in the State where he was born. The corollary to the judgment is that if a person belongs to a community, which in a particular State has been categorised as a scheduled caste community, he would be entitled to all the benefits enuring from such a determination regardless of the position that such a reservation does not exist in the State where he was born. Learned counsel then reads extensively from a judgment in the case of KumariMadhuri Patil vs. Additional Commissioner (1994) 6 SCC 241 which in fact is of no advantage to the appellant inasmuch as it prescribes the manner in which an investigation into whether a person belongs to a scheduled caste/scheduled tribe should be conducted. That would be relevant if the caste certificates produced before us are sought to be challenged by the appellant. 4. Mr.B. Veerappa, learned Additional Government Advocate draws our attention to Section 5(3) of the Karnataka Scheduled Caste and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 which casts an obligation on the purchaser to disprove that a grantee does not belong to scheduled caste. He also places reliance on the decision in the case of SadhanaLodh vs. National Insurance Co. Ltd. (2003 AIR SCW 930) to contend that concurrent findings of the Authority will nor call for interference. 5. So far as the order and the findings by the Assistant Commissioner is concerned, he has noted firstly that the appellant before us has failed altogether to produce any material in support of his contention that the original did not belong to scheduled caste/Bovi community. In a case such as the present one, there is a stipulation in the original grant itself that alienation is not permitted for a certain period. Therefore, the prospective buyer is put to caution as to whether the property should be purchased or not. Despite this caution, if the purchaser recklessly goes through with the sale transaction, he himself is to be blamed. 6. We think it relevant to advert to two orders previously passed by us, namely Chandra Naik vs. State of Karnataka and ors (W.A.No.16380/2011 disposed of on 10.11.2011) and SrinivasG. & Ors vs. Sri. Harish Kumar an ors (W.A.No.15234/2011) disposed of on 02.12.2011); we had applied the dictum established by their Lordships in ChindeGowda vs. Puttamma 2008(2) Kar.L.J.460 (SC). 6. We think it relevant to advert to two orders previously passed by us, namely Chandra Naik vs. State of Karnataka and ors (W.A.No.16380/2011 disposed of on 10.11.2011) and SrinivasG. & Ors vs. Sri. Harish Kumar an ors (W.A.No.15234/2011) disposed of on 02.12.2011); we had applied the dictum established by their Lordships in ChindeGowda vs. Puttamma 2008(2) Kar.L.J.460 (SC). The legal position is that a stipulation regarding non-alienation for a specified period or even in perpetuity can be challenged only by the grantee concerned and not by a third party including a subsequent purchaser, who cannot claim to be in a better position that the person from whom title is sought to be derived by him. 7. Returning to the order of the Assistant Commissioner dated 29.07.2008, he has taken into cognizance the caste certificate bearing No. 448 dated 09.08.1988 and 21.04.2006 issued by the Tahsildar to the son of the original grantee, by name Sri Govind, S/o Thimma Bovi. Keeping that in view, he has returned the finding that the grantee belongs to the scheduled caste-Bovi community. There is no perversity whatsoever in this conclusion. Therefore, the learned Single Judge committed no error in accepting the concurrent findings of the two subordinate authorities while dismissing the writ petition. The appeal is wholly without merit. The appeal is dismissed. Considering the amount of time spent, we ought to dismiss the appeal with costs. But, in the interest of justice, we desist from doing so. Misc.W.3400/2011 is disposed of as unnecessary.