ORDER
D.V. Shylendra Kumar, J.
1. This writ petition is by a purchaser who had purchased an extent of 1 acre of land in terms of sale deed dated 4-3-1970 of a land that had been originally granted free of cost in favour of a person belonging to Scheduled Caste Community in terms of grant order dated 21-12-1955.
2. Under the grant order, an extent of 2 acres had been granted in favour of one Sri Hanumappa, out of which an extent of 1 acre had came to be sold to the father of the petitioner in terms of sale deed dated 4-3-1970 and another extent of land also had been sold in the year 1995.
3. The legal heir of Sri Hanumappa viz., Dasappa had filed a case before the Assistant Commissioner under the provisions of Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 praying for invalidation of the sale transaction, for resumption of land to the State and for restitution in his favour. The Assistant Commissioner issued notice to the purchaser and held an enquiry and in terms of his order dated (SIC) 2-2002 copy at Annexure-F concluded that the sale transaction of the year 1995 should be held as invalid as this transaction had not been preceded by permission of the Government for such sale, nevertheless, saved the transaction of 1970 being of the view that the sale having taken prior to the provisions of the SC and ST Act coming into force, it is saved and declined to interfere with the sale transaction of the year 1970.
4. The aggrieved applicant had preferred an appeal to the Deputy Commissioner under Section 5-A of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978. The Deputy Commissioner examined the matter and found that the land had been granted free of cost, that it had been saddled with a condition of non-alienation for a period of 15 years and as the transaction was of the year 1970 which was within this period, the said sale was in violation of the condition, accordingly, the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act necessarily attracted and for such reasons, allowed the appeal, reversed the order of the Assistant Commissioner in rejecting the application for invalidating the sale transaction of the year 1970 and held that the transaction is hit by Section 4 of the Act and directed the Assistant Commissioner to take action for resumption of this one acre and also for restitution, etc.
5. Aggrieved by this order passed by the Deputy Commissioner, the present writ petition is filed.
6. Sri Sathyanarayana, learned Counsel appearing for the petitioner has put forth a two-fold contention. It is firstly urged that the land had been granted at an upset price, that if the grant is for an upset price, under the relevant Rules governing the grant at that point of time, the condition for non-alienation can only be for a period of ten years, that the sale transaction being after the expiry of this period of ten years sale, is not one in violation of the terms of grant and accordingly, the order of the Assistant Commissioner rejecting the application for invalidating the sale transaction in favour of the father of the petitioner was a proper order and did not call for interference by the Deputy Commissioner and therefore, the order of the Deputy Commissioner should be set aside and the order of the Assistant Commissioner be restored.
7. The second contention urged is that when the Deputy Commissioner had taken up the matter for disposal, he has specifically noticed that neither the appellant nor his Counsel was present but the learned Counsel for the respondent therein/petitioner before this Court had submitted that the Deputy Commissioner may proceed to pass order based on the argument and written submissions that had been filed on behalf of the respondent. Nevertheless, the Deputy Commissioner has proceeded to pass an order on merits of the matter in the absence of appellant or his Counsel; that particularly, in view of the law laid down by Full Bench of this Court in the case of K. Munishamappa v. State of Karnataka and Ors., : ILR1998KAR3849 . Therefore, the learned Counsel contended that for this reason also, the order of the Deputy Commissioner requires to be set aside and the matter requires to be remanded to the Deputy Commissioner for passing appropriate orders.
8. Another contention urged on behalf of the petitioner is that even when the Deputy Commissioner took up the matter for enquiry the land was already in possession of KIADB which had under a scheme, notified the land in question and the surrounding land for acquisition and notice having not been issued to the Board, orders could not have been passed by the Deputy Commissioner.
9. I have heard the learned Government Pleader for respondents 1 to 3, Sri Umesh, learned Counsel for respondent 4 and also Sri Arun, learned Counsel for respondent 5 - M/s. KIADB.
10. The learned Government Pleader and the learned Counsel for respondent 4 have supported the order of the Deputy Commissioner and pointed out that in view of a clear finding by the authorities, the land was a free grant and the condition of non-alienation for a period of 10 years is not the one which operates but only the larger period in respect of the free grant. In fact, the learned Government Pleader pointed out that if the land was a free grant in terms of [Rule 43(iii)(5)], the condition is non-alienation for a period of 20 years and therefore, the transaction of the year 1970 is clearly in violation of the conditions of grant.
11. There is no basis to accept the submission of the learned Counsel for the petitioner that either the grant was at an upset price or a reduced upset price and it is only condition of non-alienation for a period of 10 years that operated on the grant. Therefore, the first contention fails. Even, on a perusal of the order of the Assistant Commissioner it is revealed that the Assistant Commissioner himself had recorded a finding that the transaction of the year 1970 is also a void transaction as he had himself observed that:
If that is the finding of the Assistant Commissioner, he himself should have allowed the application in full and that is precisely what the Deputy Commissioner has not done in the appeal preferred by the appellant/legal heir of the grantee.
12. Insofar as the second contention is concerned, the embargo placed on the exercise of appellate power by the Deputy Commissioner while dealing with an appeal in the absence of the appellant or his Counsel Is that he should dismiss the appeal only for default and not by discussing the merits of the matter. This is because when an appeal is dismissed for default under Sub-rule (4) of Rule 5, the appellant can seek for restoration of such an appeal and by dismissing an appeal on merits, the appellant should hot be deprived of this opportunity.
13. However, in the present case what has happened is that the Deputy Commissioner has examined the merits of the appeal. The learned Counsel for the respondent-purchaser and present petitioner before this Court was very much available. The submissions of the learned Counsel for the respondent has also been taken into consideration by the Deputy Commissioner who was inclined to allow the appeal and hence, it does not make any difference as to whether the appellant or his Counsel was present before the Appellate Authority or not as the Deputy Commissioner was examining the merits of the appeal preferred by the appellant on the basis of the record itself.
14. It is not open for the respondent-present petitioner to contend that appeal should have been dismissed only for default and that the Deputy Commissioner should not have allowed the appeal even if the merits of the matter so warranted. I do not find any illegality or even irregularity in procedure, in the order passed by the Deputy Commissioner while allowing the appeal. The ratio of the Full Bench of this Court in the above cited case does not apply to the fact situation of this case.
15. Insofar as the third contention that the land at the time of enquiry by the Assistant Commissioner was already in the possession of M/s. KIADB is concerned, it is noticed from the records that it was very much a party at the appeal stage and therefore, it cannot be said that it was not aware of or nor was issued with any notice. Though Sri Arun, learned Counsel for M/s. KIADB seeks either for issue of certain direction or for some observation on the question of disbursement of compensation, particularly as it is the claim by M/s. KIADB that by the time the appeal order came to be passed, it had already disbursed the compensation in favour of the petitioner, I am of the view that it is not a matter which is required to be examined by this Court in this writ petition as the writ petition is being dismissed as one not warranting interference with the order passed by the Deputy Commissioner in the appeal.
16. In the result, petition fails. No merit- Accordingly, petition stands dismissed.