JUDGMENT
Chandrashekaraiah, J.
1. This Writ Appeal is against the order of the learned Single Judge dated 21.11.2000 passed in W.P.10391/2000.
2. The parties in this appeal are referred to as arraigned in the Writ Petition.
3. The facts in this case are as follows:
A land measuring 4 acres in old Sy.No. 67 and new No. 130 of Nanjapura village, Jigani Hobli, Anekal Taluk, was granted in favour of the father of the petitioner on 13.12.1936, the said land was sold by the father of the petitioner in favour of the father of the 1st respondent under a registered sale deed on 19.6.1947. Consequent on coming into force of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain lands) Act, 1978 (hereinafter referred to as ‘the Act’), the petitioner made an application before the Asst. Commissioner for a declaration that the sale dated 19.6.1947 was void and for restoration of the possession of the said land. The Asst. Commissioner allowed the application by declaring the sale made by the father of the petitioner in favour of the father of the 1st respondent as void and ordered for restoration of possession. This order was challenged by the 1st respondent by way of an appeal before the Deputy Commissioner. The Deputy commissioner set aside the order of the Asst. Commissioner by dismissing the application filed by the petitioner holding that the petitioner is not entitled for the relief since the sale has not been made in violation of any of the conditions of the grant. This order was challenged by the petitioner by way of a Writ Petition before this Court. The learned Single Judge dismissed the Writ Petition confirming the Order of the Dy. Commissioner holding that as on the date of grant, there were no rules providing for imposition of conditions prohibiting alienation. This order is under challenge in this writ appeal.
Section 4(1) of the Act reads as follows :
“Not withstanding anything in any law agreement, contract of instrumental any transfer of granted land made either before or after commencement of this Act in contravention of the terms of the grant of such land or the law providing for such grant or Sub-section (2) shall be null and void and no right, title or interest in such land shall be conveyed nor be deemed ever to have conveyed by such transfer.”
4. From a reading of this section, it is clear that if there is any transfer in contravention of the terms of the grant of the land or law providing for such grant, the said transfer, by operation of law, becomes null and void.
5. In the instance case, the grant made in favour of the father of the petitioner is on 13.12.36. The father of the petitioner sold the said land in favour of the father of the 1st respondent under the registered sale deed dated 19.6.1947.
6. Now the point that arises for our consideration is; whether there is any violation of any conditions of the grant so as to say that the above said transaction is null and void ?
7. Admittedly, the grantee belongs to a scheduled caste. Further, it is also not in dispute that the grant is made on 13.12.36. No rule stipulating any period for non-alienation of such land had been framed then. Therefore, as on the date of the grant, what has to be seen is, whether any condition could have been imposed while granting the land.
8. This Court in the case of BANDYAMMA v. ASST. COMMISSIONER, ILR 1993 KAR 2694 relying upon the Government order dated 12.9.1929 held that the sale of land granted on 27.10.1937 in the year 1949 is within the prohibitory period and accordingly declared the said sale as null and void.
9. The learned Counsel appearing for the 1st respondent contends that the said Government order cannot be treated as the one authorised under the law to impose condition prohibiting alienation in the absence of any such rule providing for imposition of condition regarding alienation. In order to consider these rival contentions, it is just and necessary to refer to certain provisions of the Mysore Land Revenue Code, 1888.
Section 36 of the Code reads as follow:
” All public roads, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, the bed of rivers, streams, nalas, lakes and tanks, and all canals, and water courses and all standing and flowing water, and all lands wherever situated, which are not the property of individuals, or of aggregates of individuals legally capable of holding property, and except in so far as any rights of such individuals may be established in or over the same, and except as may be otherwise provided in any law for the time being in force, are and are hereby declared to be, with all rights in or over the same, or appertaining thereto, the property of Government and it shall be lawful for the Deputy Commissioner subject to the orders of the Revenue Commissioner to dispose of them, in such manner, as may be authorised by general rules sanctioned by Government, subject always to the right of way, and all other rights of the public or individuals legally subsisting.”
10. Section 233 provides for framing of the Rules by the State Government. Under this Rule, for the purpose of disposal of unoccupied Government land under Section 36 of the Code, the Government had the power to frame rules regulating the disposal of the Government land.
11. From a reading of Section 36, it is clear that the grant of Government land was required to be regulated by the Rules that might have been framed by the Government under Section 233 of the code. Admittedly there was no such rule as on the date of grant regulating the grant of the Government land. When the law prescribes a thing to be done in a particular manner, it should be done only in that matter. As stated earlier, the disposal of the Government land under Section 36 of the Code is by the Deputy Commissioner subject to the orders of the Revenue Commissioner as authorised by the rules. If that is so, in the absence of any such rule framed by the State Government regulating the grant of land, no condition could be imposed restraining alienation of land by an order issued in exercise of the executive power.
12. In the above said decision relied upon by the petitioner, there is also an observation to the effect that there were no rules as on the date of the grant. But the learned Judge relying upon the Government Order has held that there is violation of condition of grant. The Government Order referred to in the said judgment dated 12.9.29 reads as follows:
GOVERNMENT OF HIS HIGHNESS
The Maharaja of Mysore
GENERAL AND REVENUE DEPARTMENTS
G.O NO.R 2122-81/L.R.368-28-5, Bangalore,
Dated 12th September 1929.
Depressed Classess
Directs that the period within which lands granted on consessional terms should not be alienated or raised from ten to twenty years.
Read
1. Government Order No. R. 4850-8/L.R.261-72-141 dated 29th March 1924 and Government Order No. R. 869-75/ L.R 75-25-2 dated 18th August 1925 passing orders reg the grant of lands to depressed classes at concessional rates and directing that the lands granted should not be alienated by them for a period of 10 years.
2. Letter No. M5-161/27-28 dated 9th January 1928 from the Deputy Commissioner, Chitradurga District suggesting that the lands granted to the depressed classes may be given to them on a “restricted tenure” with the condition that such lands should not be alienated without the permission of the Deputy Commissioner etc. as in some parts of the Bombay Presidency.
3. Letters Nos. C3117/27-28 dated 6th February 1928 and No. C. 4800/28-29 dated 1st January 1929 from the Revenue Commissioner in Mysore furnishing his opinion on the points raised by the Deputy Commissioner, Chitradurga in the correspondence read above.
ORDER NO. R.2122-81/L.R.368-28-5
DATED 12th SEPTEMBER 1929
With a view to speed up the disposal of darkhasts and to prevent the possibility of interested parties exploiting the ignorant members of the Depressed classes, the Dy. Commissioner, Chitradurga Dist. Suggested the introduction of the system of granting lands to them on a “restricted tenure” on condition that the grantees should not alienate them with out the permission of the Dy. Commissioner, and stated that this system was prevalent in certain parts of the Bombay Presidency. The Revenue Commissioner who was consulted in the matter is not in favour of introducing this innovation. He however states according to the existing standing orders grants made to Adikarnatakas are subject to the condition that the grantees should not alienate them for a period of 10 years, and that to further safeguard their interests the period may be raised suitably, if need be, up to a maximum limit of 20 years. Government agree with the views of the Revenue C6mmissioner, and direct that the first proposal be dropped and the period within which the lands should not be alienated be raised from 10 to 20 years.”
B. NARAYANASWAMY IYENGAR
Offg. General Secretary to Government.
13. On the date of the grant, except this Government order, there was no rule framed by the State Government. If that is so, in the absence of any such rule regulating conditions of grant, it cannot be said that a Government Order could put restriction on alienation of such grant. Further, the restriction that could be imposed restraining alienation has to be authorised by the rules as provided under Section 36 of the Code. In the absence of any such rule framed by the State Government regarding disposal of the Government land, no reliance can be placed on the said Government order. Therefore, in our opinion, the decision referred to above has not laid down the correct proposition of law.
14. Hence, we are of the considered view that in the absence of any rules as on the date of the grant authorising the officer to impose any such conditions restraining alienation, the transaction in question is not hit by Section 4 of the Act.
15. Admittedly, the 1st respondent has been in possession of the land ever since from the date of the sale, i.e. from the year 1947. If that is so, it is not appropriate to disturb the said possession as he has been in continuous possession of the said land adverse to the interest of the State Government and the grantee.
The writ appeal is therefore dismissed.