Judgment:
ORDER
1. Heard the petitioner's Counsel as well as the Government Pleader-Smt. Shantha Kumari, appearing for respondents 1 to 3.
In this present case, in spite of service of notice, respondents 5 and 6, have not put any appearance. Respondent 4, service of notice on him has been dispensed with, as the land which he had granted to the grantee, he had transferred it to respondents 5 and 6. Therefore, respondent 4's interest is represented by these respondents 5 and 6.
2. The facts of the case in the nutshell are that the land was granted to Eradimma Bhovi, son of Thimma Bhovi, in 1957. The land that was granted measured 2 acres of Sy. No. 15/11, vide the order dated 17-6-1957. According to the petitioner, that the grant of land was subject to non-alienation condition, that is, land should not be alienated in any manner to any person for a period of 15 years. The grantee prior to the expiry of 15 years, on 1-12-1968, transferred the land to one Nanjamma, that is, respondent 6 and said Nanjamma, transferred that land to Hanumakka and Mara Bhovi, vide sale deed dated 12-2-1969. Bettaswamy Gowda, alleged to have taken the land on purchase from the grantee and Bettaswamy, in his turn, sold the land, taken by him from grantee, in favour of Narasimaiah by registered sale deed dated 30-10-1970 and Narasimaiah, sold that very property to Basave Gowda, on 20-2-1975 and Basave Gowda thereafter, sold that very property to one Ningegowda. Anyhow, proceedings were initiated under Section 5 of the Act, but the Assistant Commissioner vide his order dated 12-3-1991, after remand of the matter for decision afresh, held that original grantee belonged to Waddar Caste and that Waddar Caste did not belong to the Schedule Caste Community and dropped the further proceedings, though he had taken the view that the grant was a free grant. The Assistant Commissioner dropped theproceedings under Section 5 of the Act having held that the grantee did belong to Waddar Caste and Waddar Caste was not one of the castes included in the Schedule Caste.
3. Feeling aggrieved from order of the Assistant Commissioner, the petitioner filed the appeal before the Deputy Commissioner. The Deputy Commissioner under Section 5A of the Act 2 of 1979, dismissed the appeal as not maintainable, as the right to appeal had been conferred to the person, against whom order under Section 5(1)(a) or 5(1)(b) of the Act was granted, that is, right to appeal was conferred on the person, who was an alienee and transfer made in his favour, under Section 5(1) had been held to be null and void and the land was resumed either by the Government or its possession was restored to the grantee, but no right was conferred on the person, whose application under Section 5, had been dismissed as not maintainable and proceedings thereunder were dropped. Feeling aggrieved from the orders of the two authorities, the petitioner has come up before this Court by way of this writ petition.
4. The learned Counsel for the appellant submitted that in case, this Court agrees with the view or opinion of the 1st Appellate Court that appeal was not maintainable, it may be pleased to quash the order of the Assistant Commissioner, whereunder, he had dropped the proceedings under Section 5, taking the view that the Waddar Community did not belong to Schedule Caste. The only contention that has been made by the petitioner's Counsel with great emphasis is that Waddar Community belonged to the Schedule Caste as Waddar Community, same community which is known as Bhovi.
5. Learned Counsel for the petitioner invited my attention to the decision of their Lordships of the Supreme Court in the case of B. Basavalingappa v D. Munichinnappa and Others, inviting my attention to the observations made in paragraph 10 and also to another decision of the Division Bench of this Court in the case of G.S. Virupakshappa v Hanumantha and Others, in support of his contention that Vodda or Waddar are synonymous with Bhovi and both castes belonging to Waddar Community. The Bhovi is synonymous to Waddar and has to be treated asSchedule Caste. The learned High Court Government Pleader-Smt. Shanta Kumari, states that the appellate order is within jurisdiction, that the Assistant Commissioner was right in dropping the proceedings under Section 5, of the Act as being not maintainable. In my opinion, there is some substance in the contentions of the learned High Court Government Pleader.
6. The language of Section 5A conferring rights of appeal against order of resumption of land or against order of restoration of land to the grantee or against order of resumption of land, the person aggrieved from that order, namely, the alienee has been conferred right of appeal, but no appeal at that time had been provided from an order dropping the proceedings under. Section 5. This power under Article 226 of the Constitution is wide enough to correct the error committed by the Assistant Commissioner and to issue proper directions.
7. In the present case, the proceedings under Section 5 had been dropped on the ground that the grantee belonged to Waddar Community and it was not included in the Scheduled Caste list. This is the only ground on which the proceedings had been dropped. Bhovi community is no doubt, one of the communities mentioned and included in the Scheduled Caste list. The question is: whether Voddar or Waddar Community is nothing but Bhovi community included in list of Scheduled Castes.
8. In the case of B. Basavalingappa, supra, their Lordships observed:
'It seems that a resolution was passed by the Voddar Caste at a conference in July, 1944, in which it was resolved that the name of the Caste be changed from Waddar to Bhovi or Boyi. This resolution was processed in the Secretariat. Eventually an order was passed on February 2, 1946 in these terms:
'Government is pleased to direct that the community known as Vodda be in future called Boyi in all Government communications and records'.
Para 9. Since then it seems that in all Government records the Voddar Caste has been known as Boyi, for it is not disputed that Voddar and Vodda are the same. It seems, therefore, reasonable to infer when the Presidentmade the order in 1950 after consultation with the Rajpramukh of Mysore whom he was bound to consult under the Constitution before passing the order with respect to the State of Mysore that the Caste Vodda was included in the order as Bhovi because of the order of the then Government of Mysore of February, 1946. We shall deal with the difference in spelling later but it does appear that the caste Voddar was not mentioned as such in the order because the name of that caste was changed in 1946 for all Government purposes by the order of the then Government of Mysore. Therefore, if the order had mentioned the caste 'Boyi' there would have been no difficulty in holding that it meant the Voddar Caste in view of the order of the then Mysore Government of February, 1946 to the effect that the Voddars had given up their original name and had changed it to Boyi from 1946'.
Giving this history of the Voddar and Bhovi Communities, their Lordships of the Supreme Court held that Voddar Caste has been thoroughly spelt as Bovi, Bhovi, Boyi in English, though Kannada equivalent is one and same. . . .Thus, the Supreme Court's case very clearly mentions that Vodda was nothing else. Their Lordships of the Supreme Court further observe:--
'In the circumstances therefore, we agree with the High Court that respondent 1, though Voddar by Caste belongs to the Schedule Caste of Bhovi mentioned in the order'.
Thus, their Lordships of Supreme Court has been pleased to hold Voddar Caste is one which is described as a Scheduled Caste Bhovi in the List/Schedule. That same view has been again expressed in the case of Virupakshappa, supra, by observing that Bovi, known as Bhovi or Boyi, synonymous to Vodda, Waddar and Voddar treated as Scheduled Castes.
9. In this view in my opinion, the Assistant Commissioner, by taking the erroneous view of law to the effect that grantee did not belong to Scheduled Caste or Scheduled Tribe, illegally refused to exercise the power vested in him, under Section 5 of Act 2 of 1979 and in not proceeding with further enquiry in the matter. That the order passed by Assistant Commissioner being on refusal to exercise jurisdiction vested in it on the basis of its erroneous decision of jurisdictional question vide ChaubeJagdish Prasad v Ganga Prasad Chaturvedi , Roshan Lal v Ishwar Das, Smt. Munni Devi v Gokal Chand, Mohammed Hasnuddin v State of Maharashtra, the order of the Assistant Commissioner is liable to be quashed.
Thus considered, this writ petition is allowed and the order of Assistant Commissioner dated 12-3-1991, is hereby quashed by issue of writ of certiorari. The direction in the nature of writ of mandamus is issued to the Assistant Commissioner to proceed with the settled position that petitioner did belong to Waddar Community, in Kannada whether it is spelt as Waddar or Voddar, it is something as Bhovi Community mentioned in the Scheduled Caste Order, 1950 and Waddar or Bhovi Communities are belonging to no caste other than the Scheduled Caste and subject to above, the authority may try other questions, whether the grant was a free grant or it was a grant for reduced upset price or it was a price something more than the full market value and if bar against alienation has been violated or not and decide the case accordingly.
10. In the result, this writ petition is allowed. Costs made easy.