ORDER
D.V. Shylendra Kumar, J.
1. Petitioner is a person who is claiming title to a land that had been granted originally under the provisions of the Mysore Land Revenue Code (‘the Code’ for short). An extent of two acres of land had been granted on 21-1-1956 in favour of one Nagappa, a person belonging to Scheduled Caste community. At the time of granting the land, a condition had been imposed that the grantee should not alienate the land for a period of fifteen years from the date of grant as per condition No. 8 mentioned in the Grant Certificate which had been issued in Form 2, copy of which is produced as Annexure-A to the writ petition. Such a land had been sold on 3-6-1970 by the grantee in favour of the father of the petitioner by name S.M. Neelakantappa.
2. Subsequent to the enactment of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (‘the Act’ for short), the prescribed authority namely, the Assistant Commissioner in-charge of the Revenue Sub-Division, on noticing that a granted land had been transferred within a period of fifteen years from the date of grant, initiated action under Section 3 of the Act. The proceedings culminated in the order dated 18-10-2000 (copy at Annexure-C) whereby the Assistant Commissioner, declared the sale of the land in question by the original grantee on 3-6-1970 was being void for being in violation of the condition of the grant and directed restoration of the land to the original grantee.
3. As by that time the petitioner had succeeded to the interest of the purchaser being his son and being aggrieved by the order passed by the Assistant Commissioner, filed an appeal before the Deputy Commissioner as provided under Section 5-A of the Act. The Deputy Commissioner, though did not agree with the view expressed by the Assistant Commissioner that the grant was free of cost and was of the view that it was a grant for reduced upset price of Re. 1/- Annas 3 and Paise 3 and as such the period of prohibition for alienation of the land as per Rule 43(1)(a)(6)(a)(ii) as it prevailed at the time of grant was only ten years, nevertheless declined to interfere with the order dated 13-11-2000 passed by the Assistant Commissioner on the ground that the grantee had not obtained permission from the Government before effecting sale of the granted land and accordingly dismissed the appeal.
4. It is as against the said order of dismissal passed by the Deputy Commissioner the present writ petition is filed.
5. Sri Vijay Kumar, learned Counsel appearing for the petitioner has vehemently urged that the Deputy Commissioner having noticed that the sale effected on 3-6-1970 was beyond the period often years and not in violation or contravention of Rule 43(1)(a)(6)(a)(ii) of the Code, ought to have allowed the appeal and annulled the order passed by the Assistant Commissioner. Learned Counsel submits that the Deputy Commissioner should have directed the land to be restored to the purchaser and his successors. In this regard it is the submission of the learned Counsel for the petitioner that though the grant order itself had imposed a condition that the land should not have been alienated for a period of fifteen years from the date of grant, such a condition is in contravention or in variance with Rule 43(1)(a)(6)(a)(ii) of the Code, according to which and as it prevailed at the relevant point of time, if a land had been granted fixing an upset price for such grant, the period for which such land cannot be alienated was only upto ten years and not beyond and as in the instant case, the Deputy Commissioner had given a finding that the land had been granted at reduced upset price and as the sale was beyond the period often years contemplated under Rule 43(1)(a)(6)(a)(ii), it is only that period which can operate; that the condition imposed while granting the land is bad and as such ought to have allowed the appeal.
6. The submission is that such a condition cannot be imposed which is either at variance or in contravention of what is permitted under the Rule itself and at any rate even if such a condition is imposed, it is only the rule that can prevail and not the condition. If the period as indicated in the rule should be taken into consideration, learned Counsel submits that there is no violation of the condition of grant and as such the provisions of the Act are not attracted and there was no occasion for the Assistant Commissioner to take any action for resumption of the land under the provisions of this Act.
7. Learned Government Pleader appearing for the respondents 2 and 3 on the other hand has supported the orders passed by the authorities below. Learned Government Pleader has pointed out to the specific condition imposed in the grant order itself and has submitted that this condition necessarily operates as the condition imposed supplementing the condition of the prohibition or restriction imposed under Rule 43(1)(a)(6)(a)(ii) of the Code and is not derogatory of the rule.
8. On the prevailing facts, the only question that arises for consideration is as to whether the sale effected on 3-6-1970 could be construed as a sale in violation of the condition of the grant order itself. I am not in a position to accept the submission of the learned Counsel for the petitioner that the condition imposed under the grant to the effect that the land should not be alienated for a period of fifteen years cannot operate and that condition should be read down to bring it in conformity with the period mentioned in the Rule 43(1)(a)(6)(a)(ii) itself.
9. In the first instance, it is not clear as to whether the grant of land was at a reduced upset price as is indicated by the Deputy Commissioner in his order. The Deputy Commissioner has merely noticed that an amount of Re. 1-3-3P. had to be remitted to the Treasury. The grant order itself does not say that this is an upset price fixed for the land granted. Even assuming for argument’s sake that this is the upset price, the question is as to whether the condition of fifteen years of non-alienation imposed on the grantee operates in spite of what is provided for in Rule 43(1)(a)(6)(a)(ii). Rule 43(1)(a)(6)(a)(ii) reads as under.–
“43(1)(a)(6)(a) Every grant of land under Rule 43-A and every grant of registered occupancy of land under Clause (a) of Rule 43-H shall be subject to the condition.–
(i) xxx xxx xxx; (ii) Where the grant is made for an upset price or for a reduced upset price, that the land granted shall not be alienated for a period often years from the date of the grant: Provided that nothing in this sub-rule shall apply to.-- (i) the alienation of any land in favour of the State Government or a co-operative society as security for loans obtained for improvement of the land or for buying cattle or agricultural implements for the cultivation of the land; or (ii) the leasing of any land by a person who is a widow, a minor or who is subject to physical or mental disability".
10. If the land is granted free of cost, the period of non-alienation i.e., the period for which the land should not be alienated, is fifteen years and if for upset price, it is ten years. The object of a grant is to ensure that a person belonging to a Depressed Class and who has no source of sustenance and has no means to acquire a land of his own for his cultivation should be provided with land for such cultivation by the Government. It is only to ensure that the land is sustained with such a grantee, the conditions of non-alienation clauses are imposed. The period of prohibition of alienation has varied from time to time and at certain times the condition was one of a permanent non-alienation clause even as per the Rule.
11. Any condition that is imposed under the grant should be to subserve the rule and not in derogation of such a rule. Even assuming that at the relevant time the Rules stipulated the period of ten years as the period prohibiting alienation of the land granted at an upset price, the authority, while granting the land has imposed the condition that it should not be alienated for a period of fifteen years. A condition of this nature not merely subserves the object of the rule and fully complies with the requirement of Rule 43(1)(a)(6)(a)(ii) of the Code as it prevailed at that time, but in fact even goes beyond what is contemplated under the Rule. But, the condition can never be said as one in contravention or in derogation of the object of the grant of land nor in derogation of the further object of ensuring that the land is sustained to the grantee at least for some period. If such minimum period up to which the land should be retained by the grantee is extended by a condition imposed in the grant itself even over and above the period mentioned in Rule 43(1)(a)(6)(a)(ii), such a condition can never be said to be either derogatory or in any way detracting from the object and effect of the rule. I am of the view that the condition cannot be held to be a condition which is bad or which is in the teeth of the provisions of Rule 43(1)(a)(6)(a)(ii) and should be replaced by the period mentioned in Rule 43(1)(a)(6)(a)(ii). The condition does operate and if so the alienation as on 3-6-1970 is in violation of this condition imposed under the order of grant itself. If that is the legal position, then the order of the Assistant Commissioner resuming and restoring the land to the grantee is valid in law and the Deputy Commissioner could have only dismissed the appeal. Though the findings and reasons mentioned by the Deputy Commissioner in his order dated 19-11-2001 are not fully approved by this Court, there is no need for interference with this order.
12. Accordingly, this writ petition is dismissed.