JUDGMENT
Mohan, C.J.
1. This case having been set down for being spoken to to-day, we heard learned Counsel on both sides and the Order made 20-7-1990 is recalled.
2. The property forming part of this Appeal originally belonged to one Maire Hengsu. She died leaving behind Chandu. The said Chandu executed a testament in favour of Rama Maistry, a person belonging to Scheduled Caste, who is the husband of the appellant. After the death of Chandu, Rama Maistry became entitled to the property, that was numbered as Survey No. 181-3. In the record of rights, name of Rama Maistry was shown as person in possession of the property.
3. The said Rama Maistry sold property to one Sunder Kunder under registered Sale Deed dated 27-10-1975. Thereafter, the property was sold in favour of the first respondent. On a complaint by the appellant to the Assistant Commissioner, he instituted proceedings under the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter called the Act). The Assistant Commissioner, third respondent herein, held that purchase was made in contravention of the grant and therefore he declared the same to be void and directed 4th respondent to take possession. Concerning this, the Writ Petition was filed in W.P.13789 of 1981. The learned single Judge held having regard to the facts that the grant was only in favour of a person belonging to the native of State of India, it will be valid and reversed findings of the Assistant Commissioner. It is in these circumstances, the present appeal.
4. The short question that arises for consideration in this appeal is whether the transfer of land, if taken place, contrary to the prohibition under Board Standing Order of the erstwhile Madras State, could be said to be void ab initio.
5. The matter arises in this way:
The Tahsildar, Udupi, granted an extent of 31 cents of land in Sy. No. 181-2A of Thonse West Village, Udupi Taluk, Dakshina Kannada District, in favour of Smt. Maire Hengsu as she was a member of Scheduled Caste, as per Annexure-l. It is no doubt true by a perusal of Annexure-l that the land was granted under Depressed Class Rules subject to certain conditions. One of the conditions of the grant was that the land shall not be alienated, without sanction from the State Government, to any person other than a British subject or a subject of a Native State. In that case, the grant shall become null and void. The grant was also subject to other conditions contained in the Revised B.S.O. No. 15 with special reference to Para-38 of the said Board Standing Order.
6. It is not in dispute that the grantee Smt. Maire Hengsu died leaving behind her only son Chandu who inherited the said property on the death of his mother. The said Chandu died leaving behind a will in favour of one Rama Maistry, husband of the appellant and he also belonged to Scheduled Caste.
7. After the death of Chandu, Rama Maistry became entitled to the property in question, which came to be renumbered as Sy. No. 181/3 and his name came to be entered in the record of rights as he was found to be in possession of the land at that time. A copy of the extract from the Record of Rights showing the name of Rama Maistry for the year 1967-68 is produced at Annexure-II.
8. It is also not in dispute that the said Rama Maistry sold the land to one Sunder Kunder under a registered Sale Deed dated 27-10-1975 and this Sale Deed came to be executed on account of fraud practised by the said Sunder Kunder, inasmuch as Sunder Kunder thereafter sold the said land to respondent-1 herein and both Sunder Kunder and respondent-1 do not belong to Scheduled Castes.
9. On the appellant approaching the Assistant Commissioner, proceedings came to be instituted under the Act. Her case was that the land was granted subject to certain conditions mentioned above and in contravention of the conditions the land was sold and therefore she was entitled for relief under the Act. The Assistant Commissioner, by his order dated 9-6-1982, held that the land was sold contrary to the conditions of the grant and therefore the alienation was null and void under Section 4 of the Act. He further directed to take possession and restore the same to the appellant.
10. Aggrieved by the said order, W.P. No. 13789 of 1981 was filed before this Court. The learned Judge by his order dated 4-11-1982 allowed the Writ Petition and set aside the order of the Assistant Commissioner. Hence this appeal.
11. By a perusal of the order under Appeal, it is seen that the learned single Judge in paragraph-3 observed:
“In W.P. No. 1413 of 1981 decided on 8-10-1982, I have examined the validity of a sale transaction in which a similar condition had been imposed and found that the same did not prohibit the alienation to a British subject or an Indian subject.”
Following the Decision rendered in W.P. No. 1413 of 1981, the learned Judge, by his order under appeal, allowed the Writ Petition and quashed the order of the Assistant Commissioner.
12. By a perusal of the Decision rendered in W.P. No. 1413 of 1981 by Puttaswamy, J., as he then was, it is seen that the relevant question required to be considered in a case like this, having regard to the provisions of Rule 29A of the Karnataka Land Grant Rules, 1969 (hereinafter referred to as the Rules), arose and without considering that aspect, the Writ Petition came to be disposed of.
13. However, the argument now advanced by the learned Counsel for the appellant is that Rule 29A which came to be incorporated to the Rules by amendment would not enure to the benefit of respondent-1 purchaser. He further contended that the view taken by the Division Bench in LAXMAMMA v. STATE OF KARNATAKA, 1983 (1) KLJ 417 was not correct as that Ruling would yield to the provisions of Section 11 of the Act.
14. With a view to examine this aspect, we extract the ruling in Laxmamma’s case:
“Rule 29A which opens with a non-obstante clause, declares that the provisions of any Rules that provided that the lands granted shall not be alienated except to the members of Scheduled Castes and Scheduled Tribes shall cease to operate from the date that Rule comes into force. The language of the Rule divorced from the context, provides for repealing the Rules that provided for a prohibition of alienation only to members of SC/ST from 17-10-1974, though the corresponding Rules in that behalf had earlier been repealed by the 1968 Rules itself.
71. Rule 29A did not contemplate repealing a Rule that had earlier been repealed, though that would be the textual meaning of the Rule divorced from the context. A literal meaning defeating the purpose of framing the Rule, cannot be placed and the Court must endeavour to ascertain the real intendment and object of framing the Rule and place a construction that would achieve the object of framing Rule 29A. Government has provided to delete the conditions imposed in the grant certificates to the effect that land granted to members SC/ST shall not be alienated to any other person other than the members of SC/ST from the date that Rule came into force i.e., from 17-10-1974. Even the learned Government Pleader appearing for the State supported this construction only.
72. On the above discussion, we hold that on and from
17-10-1974, the condition imposed in the grant certificates issued
to members of SC/ST to the effect that they shall not be alienated
to persons other than members of SC/ST stands deleted and any
alienation made thereafter to persons other than SC/ST would be
valid.”
15. The conclusion reached by the Division Bench interpreting Rule 39A that the condition imposed in the certificates regarding alienation would not come in the way of transfers effected on and from 17-10-1974 and alienations made thereafter to persons other than SC/ST would be valid, is incorrect. In this connection, it is necessary to extract Rule 29A. It reads:
“29A. Certain conditions not to apply –
Notwithstanding anything contained in Rule 40 of the Karnataka Land Grant Rules, 1969, the provisions of any Rule (repealed by the said Rule), that the land granted shall not be alienated except to the members of the Scheduled Castes or Scheduled Tribes shall, with effect from the commencement of the Karnataka Land Grant (Amendment) Rules, 1974, ceased to operate.”
16. Unfortunately, while reaching the conclusion interpreting Rule 29A as aforesaid, the Division Bench lost sight of Section 11 of the Act which is important to be considered at this juncture as it has overriding effect over all other enactments. It reads:
“11. Act to override other laws – The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom, usage or contract or any decree or order of a Court, Tribunal or other authority.”
17. Though in Laxmamma’s case this Section has been referred to, its effect has not been specifically considered by the Division Bench.
18. By a perusal of Section 11 of the Act, it is undoubtedly clear that the provisions of that Section will have overriding effect over all other enactments. Therefore, the view taken by the Division Bench that Rule 29A validates the alienations made to persons other than SC/ST also, is incorrect and improper. On the other hand, in view of Section 11 of the Act, which will have overriding effect over all other enactments, Rule 29A must yield to it.
19. In view of what is discussed above, we hold that the order under appeal cannot be sustained and the same is liable to be set aside.
20. In the result, we make the following order.
ORDER
This Writ Appeal is allowed in reversal of the Order of the learned single Judge and the order of the Assistant Commissioner is restored.
