Biju Ramesh and ors. Vs. the Chief Secretary, Department of Revenue, Government of Karnataka and ors. - Court Judgment

Excerpt:
constitution - grant - karnataka scheduled castes and scheduled tribes (prohibition of transfer of certain lands) act, 1978 - petition against common order made by second respondent-deputy commissioner whereby he has confirmed orders made by third respondent-assistant commissioner - high court did not find any findings in orders of assistant commissioner that grantees belong to scheduled castes (sc) or scheduled tribes (st) on any materials on record - in instant case court did not find any tangible material to hold that grantees belong to sc/st nor any findings recorded by assistant commissioner and deputy commissioner that grantees belong to sc/st - when there is no finding recorded by both authorities impugned orders made by them suffers from legal infirmity warranting interference in its writ jurisdiction - petition allowed. - admission to post graduate medical & dental courses: [mohan shantanagoudar,j] entrance test - karnataka conduct of entrance test for selection & admission to post-graduate medical & dental degree & diploma courses rules, 2006, rules 3, 10 & 2 - karnataka civil services rules, 1958, rule 61 - entrance test for admission of candidates - merit list allowing in-service candidates for counseling as per merit list or according to service seniority petitioners applied for entrance test merit list prepared based on performance in examination petitioners secured 2nd, 3rd and 4th rank -not allowed to participate in counselling as per their merit - authorities informed that they will be allowed to participate only after exhausting candidates who have completed five years of service, and four years slab though they are below in rank in merit list as the petitioners have completed 3 years of service - action of authorities in giving preference based on service seniority challenged sought counseling as per single merit list held, state in its wisdom thought that candidates who have passed entrance examination, candidates who have completed 5 years should be given preference to persons who have completed 4 years and persons who have completed 4 years services should be given preference to persons who have completed 3 years service. court does not find any illegality in government order. rules of conduct of entrance test of 2006 and rules of karnataka civil services rules operate simultaneously and have to be harmoniously constructed. object appears to give preference to seniors, juniors not get effected, inasmuch as, they may get seat under in-service quota in coming years. such a procedure will not violate the principles of law. - 2. heard the arguments of the learned counsel for the petitioners as well as the learned government pleader for the respondents 1 to 4 and carefully perused the case records with their assistance. even in the absence of the learned counsel for the respondents 5 to 22, the learned counsel for the petitioners as well as the learned government pleader took me through the case records including the impugned orders made by the second and third respondents. courtwill first have to be satisfied that the orders passed are sustainable. .the assistant commissioner, shimoga sub-division, shimoga, shall decide the matter in accordance with law and in the light of the observations made in this order after affording an opportunity to the parties to adduce such evidence as they deem it necessary'.6. as against this the learned government pleader for respondents 1 to 4 has contended that all these lands were granted to the persons belonging to harijans and the same have been sold without obtaining the prior permission of the state government after coming into force of the karnataka scheduled castes/scheduled tribes (ptcl) act, which clearly attracts contravention of section 4(2) of the said act and hence, both the authorities below were justified in passing the impugned orders. i have been taken through the impugned orders made by both the assistant commissioner as well as the deputy commissioner and i find that except making a general observation that the lands in question were granted to the persons belonging to scheduled castes or to harijans, there is no finding recorded by any of the statutory authorities by referring to the question of the caste to which the grantees belong to. 9. in the decision relied upon by the learned counsel for the petitioners in pedda reddy's case, supra, the division bench of this court has clearly held that the assistant commissioner cannot declare the sale of the land granted under the provisions of the rules as void unless he records a finding that the grant was made in favour of a person belonging to scheduled caste or scheduled tribe.orderb. padmaraj, j.1. since all these writ petitions filed by different petitioners are against the common order made by the second respondent-deputy commissioner at annexure-d whereby he has confirmed the orders made by the 3rd respondent-assistant commissioner as per annexure-c to c-4 involving common questions of law and facts, they are conveniently dealt with together and are disposed off by a common order.2. heard the arguments of the learned counsel for the petitioners as well as the learned government pleader for the respondents 1 to 4 and carefully perused the case records with their assistance. learned counsel for the respondents 5 to 22 being absent, he could not be heard in the matter. even in the absence of the learned counsel for the respondents 5 to 22, the learned counsel for the petitioners as well as the learned government pleader took me through the case records including the impugned orders made by the second and third respondents.3. the petitioners have filed an application under order 6, rule 16, order 13, rules 1 and 3 read with section 151 of the cpc, seeking amendment of the writ petitions. learned government pleader has no objection for allowing this application. even otherwise, the amendment sought for will in no way prejudice the rights and interests of the respondents. hence, the said application filed by the petitioners is allowed and they are permitted to carry out the amendment in the manner as proposed in the application to their writ petitions.4. the petitioners herein are purchasers of the land from the respondents 5 to 22. the description of the lands purchased by them has been narrated in detail in para 1 of the writ petitions. all these lands were granted to the respondents 5 to 22 somewhere in the year 1962-63. these lands that were granted to the respondents 5 to 22 are purchased by the petitioners 1 to 5 during february and march 1995 under various registered sale deeds. it is stated that the respondents 5 to 22 sold the land to the petitioners after a period of 32 years from the date of grant in their favour. ever since the date of purchase, the petitioners are stated to be in possession and enjoyment of the said lands, wherein they have alleged to have planted silver oak trees. while this was so, it is stated that the 4th respondent-tahsildar made a suo motu report of the said transactions between the petitioners 1 to 5 and respondents 5 to 22 to the 3rd respondent-assistant commissioner for initiating action under sections 4 and 5 of the karnataka scheduled castes/scheduled tribes (ptcl) act. on the basis of such report of the 4th respondent-tahsildar, the 3rd respondent-assistant commissioner initiated proceedings under sections 4 and 5 of the said act and issued notice to the petitioners herein. pursuant to such notice, the petitioners appeared before the assistant commissioner through an advocate. the 3rd respondent-assistant commissioner by his impugned orders at annexure-c to c-4, dated 17-7-1998, 13-7-1998, 20-7-1998, 24-7-1998 and 10-7-1998 has held the sale transaction between the petitioners 1 to 5 and the respondents 5 to 22 is null and void as the same is in contravention of section 4(2) of the act, and accordingly, he has ordered for resuming the land to the state government in accordance with section 5 of the said act. aggrieved, the petitioners herein preferred the appeals before the second respondent-deputy commissioner and the deputy commissioner who heard the appeals by his impugned order at annexure-d has dismissed the appeal and confirmed the orders of the assistant commissioner. hence, these writ petitions.5. learned counsel for the petitioners while assailing the impugned orders made by the second and third respondents has vehemently contended before me that there has been no findings recorded by any of the statutory authorities below that the grantees were persons belonging to scheduled caste or scheduled tribe. he further contended that the 3rd respondent-assistant commissioner who is the original authority to hold an enquiry has not held the enquiry in the manner as prescribed under law. these are the two main contentions canvassed on behalf of the petitioners for assailing the orders passed by the second and the third respondents. in support of his submissions, the learned counsel for the petitioners has relied upon the following decisions:(i) in the case of t.k. purushotham v. deputy commissioner, kodagu district, 2000(1) kld 582, the learned single judge of this court has held as under: 'unless a land comes within the framework of expression 'granted land', meaning land granted by the government to a person belonging to any of the scheduled castes or any of the scheduled tribes, it can't be said to be granted land and unless it is either prima facie shown or in case of dispute, it is so found by the authority, neither assistant commissioner can proceed under section 5 nor possession of the lands from person in possession of land can be taken by resumption, because neither section 4 nor section 5 will apply to land which is not a granted land, so it was a question first to be considered and decided by the authority, if there was a dispute raised. once it found to be granted land, no doubt, if alienation is found to be in breach of the terms of the grant or in breach of the law relating to grant or it may be in contravention of section 4(2), then it may be said to be null and void. the assistant commissioner has also to consider prima facie what was the date of the grant to apply the necessary rules, but in any case he had to record the finding: whether the grantee belonged to any of the scheduled castes or any of the scheduled tribes, then if the person in possession was other than the grantee or his legal heir, he could have acted and can act under section 5(3) of the act and raise presumption thereunder unless anything to the contrary is shown.the castes which are deemed to be scheduled castes and scheduled tribes are those castes and tribes which are deemed to be so under articles 341 and 342. the first ingredient to be considered is: to which caste the grantee belong and see to which are the communities which are mentioned in the list of scheduled castes and scheduled tribes under articles 341 and 342 for being deemed to be scheduled castes and scheduled tribes and grantee's caste, sub-caste or tribe is included, in either he may held to belong to either scheduled caste or scheduled tribe.harijan is a term wider connotation. it included in itself, every caste and a person of every community which has faith in lord almighty, who has got numerous names, hari, vishnu, ram, allah, rub, etc., so harijan' by itself is not for the purposes of the act included within the scheduled caste or scheduled tribe list or notifications'. (ii) in the case of h.n. puttaraju v. the government of karnataka, department of revenue, bangalore and ors., 1997(6) kar. l.j. 572, wherein the learned single judge of this court has held as under: 'the order sheet maintained by the assistant commissioner shows that the assistant commissioner has not conducted the enquiry as required under rule 3 of the rules. he has not recorded the statements of the parties. according to rule 3(5) of the rules, the assistant commissioner shall for the purpose of an enquiry under section 5, follow the procedure for a formal enquiry under section 33 of the karnataka land revenue act, 1964. ... in the circumstances, the order passed by the assistant commissioner without holding an enquiry is illegal.. . . when the order passed by the assistant commissioner is illegal, the deputy commissioner ought not to have confirmed the same in the appeal'. (iii) in the case of b.m. kalanaika v. the deputy commissioner, mysore district, mysore and ors., 1998(4) kar. l.j. 620, the learned single judge of this court has held as under'the finding that the allottee belongs to scheduledcaste/scheduled tribe is not based on any tangible evidence.the manner in which this finding has been recorded is whollyunjustified. . . . the requisite findings had not been recordedunder all the 3 heads. . . . the dominant purpose behind thelegislation was in order to restore the lands to persons belonging to weaker sections who have been deprived of theirlands and in instances where those persons are not traceable,the subsidiary intention was that if a breach has been committed, the land should be taken away from the wrong-doerand redistributed to persons belonging to the weaker sectionsthrough the medium of the lands vesting in the state. courtwill first have to be satisfied that the orders passed are sustainable. if the orders passed are not sustainable, then therewould be no question of upholding a situation whereby landscould vest in the state because the first ingredient is condition precedent. courts do remand matters in appropriate cases where the ends of justice would require a redetermination. this is an exception to the rule of finality which normally applies in judicial proceedings and it is not to be wrongly assumed that whenever orders are carelessly or hopelessly or lightly passed, that the high court or the appeal court will immediately give the state and its officers one more round of litigation to correct their so-called mistakes. one cannot lose sight of the fact that there are two parties in all litigations and showing unlimited and undue indulgence to one side correspondingly causes an equal amount of harassment and injustice to the opposite party which is a principle that the courts are required to carefully bear in mind. there are therefore situations in which a court would refuse a remand because a remand is an exception or an option and not a rule. on the facts of the present case, no useful purpose will be served by rerouting the litigation that has gone on for the last several years'. (iv) in the case of pedda reddy v. state of karnataka and ors., : ilr1993kar551 , the division bench of this court has held as under: 'the legal position is that the assistant commissioner cannot declare the sale of the land granted under the provisions of the rules as void unless he records the following findings: (i) that the grant was made in favour of a person belonging to scheduled caste or scheduled tribe;(ii) that the grant was either on upset price or a free grant or for a price less than for upset price; and(iii) that the alienation had taken place within the period of prohibition prescribed under the rules. we do not find any such findings in the orders of the assistant commissioner and the special deputy commissioner. the findings on the aforesaid points would be necessary for the purpose of exercising the jurisdiction under the said act and declaring the transaction of sale as void. thus, the findings of fact necessary for the purpose of exercising the jurisdiction, are not recorded by anyone of the authorities below. therefore, we are of the view that the orders of the assistant commissioner, the special deputy commissioner and also of the learned single judge cannot be sustained. . . the assistant commissioner, shimoga sub-division, shimoga, shall decide the matter in accordance with law and in the light of the observations made in this order after affording an opportunity to the parties to adduce such evidence as they deem it necessary'. 6. as against this the learned government pleader for respondents 1 to 4 has contended that all these lands were granted to the persons belonging to harijans and the same have been sold without obtaining the prior permission of the state government after coming into force of the karnataka scheduled castes/scheduled tribes (ptcl) act, which clearly attracts contravention of section 4(2) of the said act and hence, both the authorities below were justified in passing the impugned orders. he therefore, contended that the impugned orders made by the respondents 2 and 3 warrants no interference by this court in its writ jurisdiction.7. having heard the submissions on both sides and having carefully perused the case papers including the several decisions relied upon by the learned counsel for the petitioners, the short question that would arise for consideration is whether the impugned order made by the second respondent-deputy commissioner at annexure-d confirming the impugned orders made by the third respondent-assistant commissioner at annexure-c to c4 can be sustained in law.8. section 4(2) of the karnataka scheduled castes/scheduled tribes (ptcl) act, 1978, reads that no person shall after the commencement of this act, transfer or acquire by transfer any granted land without previous permission of the government. the said act came into force with effect from 1-1-1979. it is not in dispute that all these lands were purchased by the petitioners during february and march 1995 after the above said act came into force. now the question that would arise for consideration is whether the lands in question are granted lands within the meaning of the term 'granted land' as defined under section 3(1kb) which definition reads that ''granted land' means any land granted by the government to a person belonging to any of the scheduled castes or the scheduled tribes and includes the land allotted or granted to such person under the relevant law for the time being in force relating to agrarian reforms or land ceilings or abolition of inams other than that relating to hereditary offices or rights and the word 'granted' shall be construed accordingly'. it is to be seen therefore from the above definition of the granted land, the main stress is on a person belonging to any of the scheduled castes or scheduled tribes. that is to say the authorities constituted under the said act will get jurisdiction to initiate the proceedings if the grantee is a person belonging to scheduled caste or scheduled tribe. this is the first condition for invoking the jurisdiction under the above said act. in the above context, the legal position is that the assistant commissioner who is the original authority under the act, cannot declare the sale of the land granted under the provisions of the rules as void, unless he records a finding that the grant was made in favour of a person belonging to scheduled caste or scheduled tribe. i have been taken through the impugned orders made by both the assistant commissioner as well as the deputy commissioner and i find that except making a general observation that the lands in question were granted to the persons belonging to scheduled castes or to harijans, there is no finding recorded by any of the statutory authorities by referring to the question of the caste to which the grantees belong to. to be more specific, i do not find any findings in the orders of the assistant commissioner and the deputy commissioner that the grantees belong to scheduled caste or scheduled tribe based on any materials on re-cord. it is hardly required to be stated that first of all there should be a finding to that effect and the said finding should be based upon a tangible material available on record. in the instant case, i do not find any such tangible material on record to hold that the grantees belong to scheduled caste or scheduled tribe, nor i find any findings being recorded by the assistant commissioner and the deputy commissioner that the grantees belong to scheduled caste or scheduled tribe. when there is no such finding recorded by both the authorities, the impugned orders made by them suffers from legal infirmity warranting interference by this court in its writ jurisdiction.9. in the decision relied upon by the learned counsel for the petitioners in pedda reddy's case, supra, the division bench of this court has clearly held that the assistant commissioner cannot declare the sale of the land granted under the provisions of the rules as void unless he records a finding that the grant was made in favour of a person belonging to scheduled caste or scheduled tribe. in the instant case, i find no such finding recorded by both the authorities below. further, in another decision of this court relied upon by the learned counsel for the petitioners in b.m. kalanaika's case, supra, the learned single judge of this court has held that the finding that the allottee belongs to scheduled caste or scheduled tribe is not based on any tangible evidence, then the manner in which the said finding has been recorded is wholly unjustified. as i have already stated, even in these cases apart from the fact that there has been no findings recorded by both the authorities with reference to the grantees whether they belong to scheduled caste or scheduled tribe, there is no tangible material before the said authorities even to record such a finding. it would be of some relevance to mention here itself that even assuming that the tahsildar has made a report to that effect, there should be an enquiry by the authorities concerned before proceeding to hold the sale as null and void. further, if the authorities want to rely upon the report of the tahsildar for the purpose of holding that the grantees belong to scheduled caste or scheduled tribe, the said report must be made available to the petitioners and they must be afforded with an opportunity to have their say in the matter before proceeding to place reliance on such report. there is nothing on record to show that the report of the tahsildar was at any time made available to the petitioners. that apart, in these cases i find that there has been no enquiry conducted by the assistant commissioner in the manner as required under law before proceeding to pass the impugned orders at annexure-c to c4. in the decision relied upon by the learned counsel for the petitioners in the case of h.n. puttaraju, supra, it has been held that the order of the assistant commissioner must be preceded by formal enquiry in the manner as laid down in section 33 of the karnataka land revenue act and not holding such enquiry would render the order passed under section 5 of the act, illegal. the same is the case here. therefore, for the foregoing reasons, i am of the clear view that the impugned order made by second and third respondents at annexure-d and c to c4 are liable to be set aside and the matter will have to be remitted back to the 3rd respondent-assistant commissioner for fresh disposal in accordance with law.10. in the result therefore, these writ petitions filed by the petitioners succeeds. the rule is made absolute. the impugned orders made by the second and third respondents at annexure-d and c to c4 are hereby set aside and the matter stands remitted back to the third respondent-assistant commissioner for fresh disposal in accordance with law after affording opportunities to all the parties concerned including the petitioners and the respondents 5 to 22 herein. but in the circumstances, there is no order as to costs.

Judgment:
ORDER

B. Padmaraj, J.

1. Since all these writ petitions filed by different petitioners are against the common order made by the second respondent-Deputy Commissioner at Annexure-D whereby he has confirmed the orders made by the 3rd respondent-Assistant Commissioner as per Annexure-C to C-4 involving common questions of law and facts, they are conveniently dealt with together and are disposed off by a common order.

2. Heard the arguments of the learned Counsel for the petitioners as well as the learned Government Pleader for the respondents 1 to 4 and carefully perused the case records with their assistance. Learned Counsel for the respondents 5 to 22 being absent, he could not be heard in the matter. Even in the absence of the learned Counsel for the respondents 5 to 22, the learned Counsel for the petitioners as well as the learned Government Pleader took me through the case records including the impugned orders made by the second and third respondents.

3. The petitioners have filed an application under Order 6, Rule 16, Order 13, Rules 1 and 3 read with Section 151 of the CPC, seeking amendment of the writ petitions. Learned Government Pleader has no objection for allowing this application. Even otherwise, the amendment sought for will in no way prejudice the rights and interests of the respondents. Hence, the said application filed by the petitioners is allowed and they are permitted to carry out the amendment in the manner as proposed in the application to their writ petitions.

4. The petitioners herein are purchasers of the land from the respondents 5 to 22. The description of the lands purchased by them has been narrated in detail in para 1 of the writ petitions. All these lands were granted to the respondents 5 to 22 somewhere in the year 1962-63. These lands that were granted to the respondents 5 to 22 are purchased by the petitioners 1 to 5 during February and March 1995 under various registered sale deeds. It is stated that the respondents 5 to 22 sold the land to the petitioners after a period of 32 years from the date of grant in their favour. Ever since the date of purchase, the petitioners are stated to be in possession and enjoyment of the said lands, wherein they have alleged to have planted silver oak trees. While this was so, it is stated that the 4th respondent-Tahsildar made a suo motu report of the said transactions between the petitioners 1 to 5 and respondents 5 to 22 to the 3rd respondent-Assistant Commissioner for initiating action under Sections 4 and 5 of the Karnataka Scheduled Castes/Scheduled Tribes (PTCL) Act. On the basis of such report of the 4th respondent-Tahsildar, the 3rd respondent-Assistant Commissioner initiated proceedings under Sections 4 and 5 of the said Act and issued notice to the petitioners herein. Pursuant to such notice, the petitioners appeared before the Assistant Commissioner through an Advocate. The 3rd respondent-Assistant Commissioner by his impugned orders at Annexure-C to C-4, dated 17-7-1998, 13-7-1998, 20-7-1998, 24-7-1998 and 10-7-1998 has held the sale transaction between the petitioners 1 to 5 and the respondents 5 to 22 is null and void as the same is in contravention of Section 4(2) of the Act, and accordingly, he has ordered for resuming the land to the State Government in accordance with Section 5 of the said Act. Aggrieved, the petitioners herein preferred the appeals before the second respondent-Deputy Commissioner and the Deputy Commissioner who heard the appeals by his impugned order at Annexure-D has dismissed the appeal and confirmed the orders of the Assistant Commissioner. Hence, these writ petitions.

5. Learned Counsel for the petitioners while assailing the impugned orders made by the second and third respondents has vehemently contended before me that there has been no findings recorded by any of the statutory authorities below that the grantees were persons belonging to Scheduled Caste or Scheduled Tribe. He further contended that the 3rd respondent-Assistant Commissioner who is the original authority to hold an enquiry has not held the enquiry in the manner as prescribed under law. These are the two main contentions canvassed on behalf of the petitioners for assailing the orders passed by the second and the third respondents. In support of his submissions, the learned Counsel for the petitioners has relied upon the following decisions:

(I) In the case of T.K. Purushotham v. Deputy Commissioner, Kodagu District, 2000(1) KLD 582, the learned Single Judge of this Court has held as under:

'Unless a land comes within the framework of expression 'granted land', meaning land granted by the Government to a person belonging to any of the Scheduled Castes or any of the Scheduled Tribes, it can't be said to be granted land and unless it is either prima facie shown or in case of dispute, it is so found by the authority, neither Assistant Commissioner can proceed under Section 5 nor possession of the lands from person in possession of land can be taken by resumption, because neither Section 4 nor Section 5 will apply to land which is not a granted land, so it was a question first to be considered and decided by the authority, if there was a dispute raised. Once it found to be granted land, no doubt, if alienation is found to be in breach of the terms of the grant or in breach of the law relating to grant or it may be in contravention of Section 4(2), then it may be said to be null and void. The Assistant Commissioner has also to consider prima facie what was the date of the grant to apply the necessary rules, but in any case he had to record the finding: Whether the grantee belonged to any of the Scheduled Castes or any of the Scheduled Tribes, then if the person in possession was other than the grantee or his legal heir, he could have acted and can act under Section 5(3) of the Act and raise presumption thereunder unless anything to the contrary is shown.

The castes which are deemed to be Scheduled Castes and Scheduled Tribes are those castes and tribes which are deemed to be so under Articles 341 and 342. The first ingredient to be considered is: To which caste the grantee belong and see to which are the communities which are mentioned in the list of Scheduled Castes and Scheduled Tribes under Articles 341 and 342 for being deemed to be Scheduled Castes and Scheduled Tribes and grantee's caste, sub-caste or tribe is included, in either he may held to belong to either Scheduled Caste or Scheduled Tribe.

Harijan is a term wider connotation. It included in itself, every caste and a person of every community which has faith in Lord Almighty, who has got numerous names, Hari, Vishnu, Ram, Allah, Rub, etc., so Harijan' by itself is not for the purposes of the Act included within the Scheduled Caste or Scheduled Tribe list or notifications'.

(II) In the case of H.N. Puttaraju v. The Government of Karnataka, Department of Revenue, Bangalore and Ors., 1997(6) Kar. L.J. 572, wherein the learned Single Judge of this Court has held as under:

'The order sheet maintained by the Assistant Commissioner shows that the Assistant Commissioner has not conducted the enquiry as required under Rule 3 of the Rules. He has not recorded the statements of the parties. According to Rule 3(5) of the Rules, the Assistant Commissioner shall for the purpose of an enquiry under Section 5, follow the procedure for a formal enquiry under Section 33 of the Karnataka Land Revenue Act, 1964. ... In the circumstances, the order passed by the Assistant Commissioner without holding an enquiry is illegal.. . . When the order passed by the Assistant Commissioner is illegal, the Deputy Commissioner ought not to have confirmed the same in the appeal'. (III) In the case of B.M. Kalanaika v. The Deputy Commissioner, Mysore District, Mysore and Ors., 1998(4) Kar. L.J. 620, the learned Single Judge of this Court has held as under

'The finding that the allottee belongs to ScheduledCaste/Scheduled Tribe is not based on any tangible evidence.The manner in which this finding has been recorded is whollyunjustified. . . . The requisite findings had not been recordedunder all the 3 heads. . . . The dominant purpose behind thelegislation was in order to restore the lands to persons belonging to weaker sections who have been deprived of theirlands and in instances where those persons are not traceable,the subsidiary intention was that if a breach has been committed, the land should be taken away from the wrong-doerand redistributed to persons belonging to the weaker sectionsthrough the medium of the lands vesting in the State. Courtwill first have to be satisfied that the orders passed are sustainable. If the orders passed are not sustainable, then therewould be no question of upholding a situation whereby landscould vest in the State because the first ingredient is condition precedent.

Courts do remand matters in appropriate cases where the ends of justice would require a redetermination. This is an exception to the rule of finality which normally applies in judicial proceedings and it is not to be wrongly assumed that whenever orders are carelessly or hopelessly or lightly passed, that the High Court or the Appeal Court will immediately give the State and its officers one more round of litigation to correct their so-called mistakes. One cannot lose sight of the fact that there are two parties in all litigations and showing unlimited and undue indulgence to one side correspondingly causes an equal amount of harassment and injustice to the opposite party which is a principle that the Courts are required to carefully bear in mind. There are therefore situations in which a Court would refuse a remand because a remand is an exception or an option and not a rule. On the facts of the present case, no useful purpose will be served by rerouting the litigation that has gone on for the last several years'.

(IV) In the case of Pedda Reddy v. State of Karnataka and Ors., : ILR1993KAR551 , the Division Bench of this Court has held as under:

'The legal position is that the Assistant Commissioner cannot declare the sale of the land granted under the provisions of the rules as void unless he records the following findings:

(i) That the grant was made in favour of a person belonging to Scheduled Caste or Scheduled Tribe;

(ii) That the grant was either on upset price or a free grant or for a price less than for upset price; and

(iii) That the alienation had taken place within the period of prohibition prescribed under the Rules.

We do not find any such findings in the orders of the Assistant Commissioner and the Special Deputy Commissioner. The findings on the aforesaid points would be necessary for the purpose of exercising the jurisdiction under the said Act and declaring the transaction of sale as void. Thus, the findings of fact necessary for the purpose of exercising the jurisdiction, are not recorded by anyone of the authorities below. Therefore, we are of the view that the orders of the Assistant Commissioner, the Special Deputy Commissioner and also of the learned Single Judge cannot be sustained. . . The Assistant Commissioner, Shimoga Sub-Division, Shimoga, shall decide the matter in accordance with law and in the light of the observations made in this order after affording an opportunity to the parties to adduce such evidence as they deem it necessary'.

6. As against this the learned Government Pleader for respondents 1 to 4 has contended that all these lands were granted to the persons belonging to Harijans and the same have been sold without obtaining the prior permission of the State Government after coming into force of the Karnataka Scheduled Castes/Scheduled Tribes (PTCL) Act, which clearly attracts contravention of Section 4(2) of the said Act and hence, both the authorities below were justified in passing the impugned orders. He therefore, contended that the impugned orders made by the respondents 2 and 3 warrants no interference by this Court in its writ jurisdiction.

7. Having heard the submissions on both sides and having carefully perused the case papers including the several decisions relied upon by the learned Counsel for the petitioners, the short question that would arise for consideration is whether the impugned order made by the second respondent-Deputy Commissioner at Annexure-D confirming the impugned orders made by the third respondent-Assistant Commissioner at Annexure-C to C4 can be sustained in law.

8. Section 4(2) of the Karnataka Scheduled Castes/Scheduled Tribes (PTCL) Act, 1978, reads that no person shall after the commencement of this Act, transfer or acquire by transfer any granted land without previous permission of the Government. The said Act came into force with effect from 1-1-1979. It is not in dispute that all these lands were purchased by the petitioners during February and March 1995 after the above said Act came into force. Now the question that would arise for consideration is whether the lands in question are granted lands within the meaning of the term 'granted land' as defined under Section 3(1Kb) which definition reads that ''granted land' means any land granted by the Government to a person belonging to any of the Scheduled Castes or the Scheduled Tribes and includes the land allotted or granted to such person under the relevant law for the time being in force relating to agrarian reforms or land ceilings or abolition of inams other than that relating to hereditary offices or rights and the word 'granted' shall be construed accordingly'. It is to be seen therefore from the above definition of the granted land, the main stress is on a person belonging to any of the Scheduled Castes or Scheduled Tribes. That is to say the authorities constituted under the said Act will get jurisdiction to initiate the proceedings if the grantee is a person belonging to Scheduled Caste or Scheduled Tribe. This is the first condition for invoking the jurisdiction under the above said Act. In the above context, the legal position is that the Assistant Commissioner who is the original authority under the Act, cannot declare the sale of the land granted under the provisions of the rules as void, unless he records a finding that the grant was made in favour of a person belonging to Scheduled Caste or Scheduled Tribe. I have been taken through the impugned orders made by both the Assistant Commissioner as well as the Deputy Commissioner and I find that except making a general observation that the lands in question were granted to the persons belonging to Scheduled Castes or to Harijans, there is no finding recorded by any of the statutory authorities by referring to the question of the caste to which the grantees belong to. To be more specific, I do not find any findings in the orders of the Assistant Commissioner and the Deputy Commissioner that the grantees belong to Scheduled Caste or Scheduled Tribe based on any materials on re-cord. It is hardly required to be stated that first of all there should be a finding to that effect and the said finding should be based upon a tangible material available on record. In the instant case, I do not find any such tangible material on record to hold that the grantees belong to Scheduled Caste or Scheduled Tribe, nor I find any findings being recorded by the Assistant Commissioner and the Deputy Commissioner that the grantees belong to Scheduled Caste or Scheduled Tribe. When there is no such finding recorded by both the authorities, the impugned orders made by them suffers from legal infirmity warranting interference by this Court in its writ jurisdiction.

9. In the decision relied upon by the learned Counsel for the petitioners in Pedda Reddy's case, supra, the Division Bench of this Court has clearly held that the Assistant Commissioner cannot declare the sale of the land granted under the provisions of the rules as void unless he records a finding that the grant was made in favour of a person belonging to Scheduled Caste or Scheduled Tribe. In the instant case, I find no such finding recorded by both the authorities below. Further, in another decision of this Court relied upon by the learned Counsel for the petitioners in B.M. Kalanaika's case, supra, the learned Single Judge of this Court has held that the finding that the allottee belongs to Scheduled Caste or Scheduled Tribe is not based on any tangible evidence, then the manner in which the said finding has been recorded is wholly unjustified. As I have already stated, even in these cases apart from the fact that there has been no findings recorded by both the authorities with reference to the grantees whether they belong to Scheduled Caste or Scheduled Tribe, there is no tangible material before the said authorities even to record such a finding. It would be of some relevance to mention here itself that even assuming that the Tahsildar has made a report to that effect, there should be an enquiry by the authorities concerned before proceeding to hold the sale as null and void. Further, if the authorities want to rely upon the report of the Tahsildar for the purpose of holding that the grantees belong to Scheduled Caste or Scheduled Tribe, the said report must be made available to the petitioners and they must be afforded with an opportunity to have their say in the matter before proceeding to place reliance on such report. There is nothing on record to show that the report of the Tahsildar was at any time made available to the petitioners. That apart, in these cases I find that there has been no enquiry conducted by the Assistant Commissioner in the manner as required under law before proceeding to pass the impugned orders at Annexure-C to C4. In the decision relied upon by the learned Counsel for the petitioners in the case of H.N. Puttaraju, supra, it has been held that the order of the Assistant Commissioner must be preceded by formal enquiry in the manner as laid down in Section 33 of the Karnataka Land Revenue Act and not holding such enquiry would render the order passed under Section 5 of the Act, illegal. The same is the case here. Therefore, for the foregoing reasons, I am of the clear view that the impugned order made by second and third respondents at Annexure-D and C to C4 are liable to be set aside and the matter will have to be remitted back to the 3rd respondent-Assistant Commissioner for fresh disposal in accordance with law.

10. In the result therefore, these writ petitions filed by the petitioners succeeds. The rule is made absolute. The impugned orders made by the second and third respondents at Annexure-D and C to C4 are hereby set aside and the matter stands remitted back to the third respondent-Assistant Commissioner for fresh disposal in accordance with law after affording opportunities to all the parties concerned including the petitioners and the respondents 5 to 22 herein. But in the circumstances, there is no order as to costs.