1. By this petition petitioner has sought for writ of certiorari quashing the order dated 27-1-1997, passed by the Deputy Commissioner, Hassan.

2. The facts of the case in brief are that land bearing Sy. No. 19 measuring 4 acres 15 guntas of Rangapura Kavalu Village, Kasaba Hobli, Arsikere Taluk, Hassan District (hereinafter referred as the land in dispute) was allotted in favour of Venkatarama ‘Bhovi’ as also appears from Annexure-A to the writ petition filed by the petitioner.

3. As per Annexure-A the possession was handed over and as referred by Annexure-C also on 19-11-1963. The petitioner had purchased this land from the grantee vide sale deed dated 27-9-1980. It may be mentioned here that the grant was made on 28-5-1963. The grant certificate was issued on 19-11-1963. The Assistant Commissioner on an application being moved under Section 5 of the Act 2 of 1979 held that the transfer had been made after the expiry of 15 years during which period non-alienation clause did operate. The Assistant Commissioner found that the period of 15 years bar came to expire on 19-11-1978 and on that ground rejected the application. Feeling aggrieved from the order of the Assistant Commissioner, respondent 3, son of the original grantee filed an appeal and the Appellate Authority i.e, the Deputy Commissioner allowed the appeal, set aside the order of the Assistant Commissioner and held that the transfer was void because non-alienation clause was of permanent nature and not for a period of 15 years. The Deputy Commissioner also directed restoration of land in favour of three members i.e, heirs of grantee. Having felt aggrieved from the order of the Deputy Commissioner, the petitioner has come up in writ petition before this Court.

4. I have heard Sri A.V Gangadharappa, Counsel for the petitioner and Smt. Shantha Kumari, the learned Government Pleader. Learned Counsel for the petitioner contended before me that the Deputy Commissioner was wrong in taking the view that there was permanent bar against alienation. He contended that only 15 years bar was there against alienation and therefore the Deputy Commissioner was wrong in cancelling the deed on taking a wrong view. Learned Counsel further contended that the Appellate Authority had to record findings on the question whether the grantee did belong to the Scheduled Caste; whether the land was free grant or it was for full market value but as the findings have not been recorded, the order in appeal deserves to be quashed, and this Court may be pleased to allow the petition and quash the impugned order and remand the appeal for fresh decision to the Appellate Authority. The learned Counsel emphatically contended that after expiry of 15 years the grantee had vested right to transfer. I invited the attention of the petitioner's Counsel to Section 4(2) of the Act 2 of 1979. Learned Counsel for the petitioner very fairly submitted that so far as seeking previous permission of the Government is concerned, no previous permission either for transfer was sought by the transferor nor was previous permission sought by the alienee-petitioner from the State Government to acquire the granted land by transfer. This fairness of the learned Counsel is appreciated.

5. Writ jurisdiction of this Court under Article 226 of the Constitution is to be exercised when no doubt, there is error of law apparent or error of jurisdiction and from there emanates injustice to any party. This Court is not bound in every case to interfere under Article 226 of the Constitution. In the present case the document filed by the petitioner and the description of respondent 3 given in the writ petition itself shows that the grantee belonged to Bhovi Caste and it is the admitted position between the parties that as regards the State of Karnataka vide schedule relating to Scheduled Caste, Bhovis or Bovi's have been shown to belong to Scheduled Caste Community. Reference may be made here to Entry 5 of the Schedule as notified by Scheduled Caste, Scheduled Tribe Notification in the year 1950 and substituted by Section 63 of 1956. So even at the time when the grant was made in favour of the father of third respondent, Bhovi Community found place in the list of Scheduled Caste Communities and this again appears from the modified list which existed also at the time when the sale deed was made in favour of the present petitioner. That list is again indicated at page 49 of the book as compiled and made by Sri T.N Raghupathi as per Entry 22. So Bhovi no doubt has been one of the communities belonging to Scheduled Castes. It may be mentioned here that petitioner does not appear to have raised such plea that the grantee did not belong to Bhovi Caste. Annexure-A further indicates that no upset price was paid. It means it was a free grant. The deed certainly contains bar against alienation operative for 15 years even otherwise the rule as existed at that time and under it, it was so provided by Rule 43(g) clause (4). It is provided in Rule 43(g)(4) that where a grant is made free of cost or is made at a price which is less than the full market value, the grant shall be subject to the condition that the land shall not be alienated for a period of 15 years from the date of grantee's taking possession of the land after grant. So, position of law on the date of grant was that whether grants made as a free grant or for something less than the full market value, the bar against alienation was there and it was operative for 15 years under the aforesaid rule. Learned Counsel for the petitioner no doubt may be said to be correct that bar expired in November, 1978. But the learned Counsel failed to take note of Section 4 of the Act itself. Here in the present case the transfer has been made by the grantee on 27-9-1980. The Act 2 of 1979 did come into operation on 1st of January, 1979, and as per the effect thereof the transaction taking place subsequent to the date of enforcement of this Act 2 of 1979, no transfer of granted land could be made without previously obtaining the permission of the State Government that Section 4 of Act 2 of 1979 provides and reads as under:

“Notwithstanding anything in any law, agreement, contract or instrument, any transfer of granted land made either before or after the 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”.

“Sub-section (2): No person shall, after the commencement of this Act transfer or acquire by transfer any granted land without the previous permission of the Government”.

Sub-section (3): The provision of sub-sections (1) and (2) shall apply also to the sale of any land in execution of a decree or order of a Civil Court or of an award or order of any other authority”.

6. Learned Counsel contended that the law applicable on the date of grant was to be applicable and the rule provided bar of 15 years only and this section will not apply and the transfer in the present case had been made after expiry of 15 years and therefore was quite valid. Learned Counsel contended that prohibition contained in Section 4 is not applicable to the case or transfer which had been made in favour of the petitioner, I am unable to accept this contention.

7. The non obstante clause used in sub-section (1) clearly indicates that the bar contained against transfer or alienation sub-section (2) of Section 4 is to be operative, irrespective of anything contrary being provided under any law, agreement, contract or instrument. No doubt, prior to this Act under the Mysore Revenue Act, 1888 occupancy rights granted by the Government, as provided by Section 70 of the Act of 1888 have been made heritable and transferable. This section also provided that subject to the condition that if there is anything contrary to what is contained in Section 70 that will operate and the transfer shall be subject to that law. Even under Section 70 of the Mysore Revenue Act, the blanket power could have been granted. But this law which was operative on the date when the grant was made or transfer was made in favour of the petitioner has specifically provided that irrespective of what is provided in the earlier order, agreement or contract or law no granted land shall be transferred in contravention of the terms of grant or law permitting for such grant and further no transfer shall be made in contravention of sub-section (2) of Section 4 and if such transfer or contract is made, it shall be null and void and no right is to be deemed to have accrued to the transferee under the said transfer. No doubt Section 4(2) is prospective and it is not retrospective and it governs and operates over the transfer made or to be made after 1-1-1979 but sub-section (1) of Section 4 of Act 2 of 1979 is made retrospective as well. If transfer in the present case would have been earlier to 1-1-1979 there would have been substance in the contention of the learned Counsel. But here the transfer in favour of the petitioner had been made on 27th of September, 1980 when this provision was in operation. Sub-section (2) has specifically provided that no person shall after the commencement of this Act either transfer or acquire by transfer any granted land without permission of the State Government. The land in which occupancy rights are granted, the grantee does not get the ownership rights. Ownership of land always belongs to and remains vested in the Government, unless the grant has specifically conferred ownership rights on the grantee. This Act was enacted with the specific purpose and the same could be obtained by such bar against the transfer of granted land by the grantee being provided that transfer of land can only be made with the previously obtained permission of the Government. The purpose of the Act has been to prohibit the transfers of the granted land. From reading of sub-sections (1) and (2) of Section 4 of the Act in my opinion, the transfer in the present case having been made in the month of September, 1980 i.e, after the date of enforcement, in favour of the present petitioner, but as the parties i.e, neither alienee nor alienor did obtain the requisite permission of State Government, as such the transfer made by deed dated September 27, 1980 of granted land in petitioner's favour by the grantee or his heir because, under Section 4(1) of Act 2 of 1979 is null and void and is to be deemed not to have passed on any right or title in favour of the transferee with reference to the granted land. I may make it clear that this Act relates to the transfer of land granted to Scheduled Caste and Scheduled Tribe and to no other person as per definition given under the ‘granted land’ in the Act. Having thus considered in my opinion, the transfer made in favour of the petitioner of the granted land by the grantee or his heir in 1980 has been null and void and in view of Section 4(1) and (2) of the Act. When this is the position, no purpose will be served by quashing the impugned order on simple technical plea that the Appellate Authority has mistaken about the nature of bar against alienation. In one way the Deputy Commissioner may be right if we read Section 4(1) and (2) of the Act and bar is to continue for ever and the prohibition against transfer or bar against transfer will only stand removed on the permission being granted by the State Government permitting the grantee to transfer the land or permitting the alienee or prospective alienee to take or acquire the granted land by transfer. In the absence of any permission the bar will continue to operate and from this angle it may be said that the Deputy Commissioner was not wrong all together when he said that the bar was of permanent nature.

8. Thus considering in my opinion, the petition has got no force. Remand is to be made only where some injustice appears to have been done or some purpose of remand will be served. Here no purpose is going to be served by remand. I and the petition is devoid of merit and no purpose will be served by remanding the same.

9. The petition is dismissed as devoid of merits.