Karnataka High Court
G.S. Virupakshappa vs Sri Hanumantha And Others on 29 March, 1994
Equivalent citations: AIR1995KANT378, ILR1994KAR1270, 1995(2)KARLJ355, AIR 1995 KARNATAKA 378, (1995) 2 KANT LJ 355
ORDER
1. Respondent No. 1 filed an application as contemplated under S. 4 of the Karnataka Scheduled Castes/Scheduled Tribes (Prohibition of Alienation of Certain Lands) Act, 1979. The Assistant Commissioner who enquired into the matter rejected the application filed by the first respondent. Aggrieved by that order he preferred an appeal to the Deputy Commissioner who also dismissed his application. Thereafter the first respondent preferred a petition to this Court in W.P. No. 10934/88. This Court allowed the petition after recording the following findings: that certain lands had been granted to the first respondent pursuant to an order made as per Annexure A in the writ petition dated 16-2-1967 of 78 acres 5 guntas in Sy. No. 1 of Jarakabande Kaval in favour of 43 persons including the first respondent; that the order at Annexure-'A' discloses that the same was made in relaxation of R. 42 and in exercise of powers vested under R. 43(L) of Mysore Land Revenue (Amendment) Rules 1960; that the lands were granted on a report made by the Divisional Commissioner at an upset price of Rs. 500/- and reduction of Rs. 200/- was also given in each case since the applicants were grantees deemed to belonged to Scheduled Caste; that the first respondent's father sold the property in question on 9-7-1976 and the applicant herein purchased the same; that the land in question has been sold within the prohibited period; that the conditions imposed under R. 43 (G) were attracted even to cases of grant made under R. 43(L) of the Land Revenue (Amendment) Rules, 1960; that the land had been granted subject to payment of upset price with a waiver to an extent of Rs. 200/- per acre as the party concerned belonged to Scheduled Caste (Bovi Community); that the fact that in the Saguvali chit issued there was deletion of clause relating to prohibition of alienation clause was not of any materiality since there was a condition under the Rules itself prohibiting the sale within a particular period and the sale is made in contravention of the Rule; that the transaction was invalid and allowed the writ petition quashing the orders made by the Assistant Commissioner and the Special Deputy Commissioner. As against the order made by the learned single Judge an appeal was preferred and this Court disposed of the writ appeal upholding the order of the single Judge and dismissed the appeal. Thereafter an application for review of that order was filed by raising a question as to whether the original grantee, father of the first respondent belongs to 'Bovi' Community or 'Bhovi' Community which is a backward community or a scheduled caste community to attract the provisions of the Act. That application came to be summarily dismissed without setting out any reasons. The matter was carried in appeal by Special Leave to the Supreme Court and the Supreme Court after granting leave set aside the judgment of this Court in the writ appeal and remitted the matter to this Court for fresh consideration both on the question raised in the review petition and also the question raised in the writ appeal. It is also made clear, if necessary this Court may call for a finding from the lower authorities as to whether the original grantee belongs to 'Bhovi' community or 'Bhovi' community. It is thus this matter is before us.
2. Learned counsel for the appellant urged that the father of the first respondent was described to belong to 'Bovi' community which is not a scheduled caste but only a backward tribe and therefore the provisions of the Act are not attracted. It is urged that Bovis are not Scheduled Caste and that even if Bovis are scheduled caste, since their name has not been included in the Constitution "Scheduled Castes Order 1950" as applicable in the State of Karnataka, the father of the first respondent cannot be held to be a person belonging to Scheduled Caste.
3. In meeting this contention the learned counsel for the first respondent urged that the question whether a person belongs to Scheduled Caste or not is a question of fact and unless such question had been raised before the original authorities the matter could not have been raised for the first time in the review petition before this Court to be agitated, all along all the authorities and the learned single Judge had proceeded on the basis that the father of the first respondent belongs to Scheduled Caste and in this context relied upon a decision of this court in Thammannegowda v. State of Karnataka, (ILR 1993 Kar 2099). There a question of fact that the grantee belongs to Scheduled Caste or Scheduled Tribe not having been disputed earlier, this Court did not allow the party concerned to raise this question for the first time in the writ appeal. Perhaps in this case we would have adopted the same course but for the fact that the Supreme Court in the Civil Appeal referred to earlier directed the consideration of this question by this Court. Hence we proceed to consider this question as directed by the Supreme Court.
4. Learned counsel for the appellant referred to various Backward Classes reports of the Commissions and to the Presidential Order dated 27-7-1977 which had been issued under Section 1(2) of the Scheduled Caste and Scheduled Tribe Orders (Amendment) Act 1976 (Act No. 108 of 1976). In that notification at Sl. No. 23 Bhovi is included as a Scheduled Caste. It is urged on behalf of the appellants that when once an order issued in terms or Art. 341 of the Constitution, unless the same is amended by law or in the matter provided in such law in terms of Art. 341(2), the original list of Scheduled Caste and Scheduled Tribe cannot be varied. When the article specifically empowers the President to declare a group within a caste or Scheduled Caste in respect of a caste as a whole, it is no longer open to this Court to adjudicate upon whether a particular caste is also included in the same or not. It is urged that the object of Art. 341 is to avoid dispute as to whether a caste is a Scheduled Caste or not for the purpose of the constitution and the order in question having been issued in exercising of that power it is not open for this Court to determine whether a particular caste is Scheduled Caste within the meaning of Art. 341 nor is it open to this Courit to look at the terms of the order and decide what they mean.
5. This precise question arose for consideration at least in two decisions of the Supreme Court; (1) Basavalingappa v. D. Munichinnappa, and Bhaiya Ram Munda v. Anirudh Patar, . In the case of Basavalingappa v. Munichinappa the facts were that one Munichinnappa was elected from a constituency reserved for Scheduled Caste and he claimed to belong to Bhovi caste which was one of the Scheduled Castes mentioned in the Constitution (Scheduled Caste Order 1950) issued by the President under Art. 341 of the Constitution. In the election petition that was filed it was claimed that Munichinnappa belongs to Voddar Caste which was not mentioned in the order and on that account Munichinappa was not entitled to contest for the election from a Constituency reserved for Scheduled. Caste. Evidence was adduced before the Election Tribunal that Bhovi was sub-caste of Voddar Caste and as Munichinnappa did not belong to Bhovi sub-caste he did not contest the election from the said constituency. The High Court in the appeal that was filed before it, took the view although Voddar was not included in the Order yet considering the facts and circumstances as existed at the time when the order was passed in 1950, the Bhovi caste mentioned in the order was the same as Voddar caste. On that basis disposed the matter. The matter was carried in appeal to the Supreme Court. The Supreme Court in the aforesaid decision stated in 1950 when the Order was passed by the President there was no Caste in the Mysore State which was known as Bhovi and the order was not intended to recognise the caste which did not exist. It was, therefore, necessary to know which caste by the use of 'Bhovi' and for that purpose evidence was rightly permitted to be recorded and on that basis confirmed the order made by the High Court. Indeed in that case the Supreme Court stated as follows:
"As the President could not have included in the order a non-existent caste it means the word 'Bhovi' related to some caste in Mysore as it was before 1956 and we have, therefore, to establish the identity of that caste and that can only be done by evidence. In that connection the High Court has held that ever since the Order of 1946, the Voddar caste has been variously spelt as Boyi, Bovi and Bhovi in English, though the Kannada equivalent is one and the same."
On that basis confirmed the order made by this Court particularly taking the view no importance could be attached to the change in the spelling in the peculiar circumstances of the case.
6. The question that now arises for consideration is whether we could also hold that Voddar, Bhovi and Bovi are all synonymous to one another. Indeed this position is made clear in Bhaiya Ram's case mentioned earlier. This is how the Supreme Court summed up:
"The name by which a tribe or sub-tribe is known is not decisive. Even if, the tribe of a person is different from the name included in the Order issued by the President, it may be shown that the name included in the Order is a general name applicable to sub-tribes."
7. This Court, in M.P.F.A. 139 C/w 141 of 1963 out of which the decision in the case of Basavalingappa arose was carried to the Supreme Court, considered the matter elaborately as to the history of this caste. At para No. 7 of the judgment in Basavalingappa's case this aspect is referred that in the Mysore State as it was before the re-organisation of State there is no caste known as Bhovi at all. The order refers to Scheduled Caste known as Bhovi in the Mysore State as it was before 1956. Therefore it must be accepted that there was some caste which the President intended to include, when the Order mentions the caste Bhovi as a Scheduled Caste and it cannot be said that the President included the caste Bhovi in the Order though there was no such caste at all. When there was no caste specifically known as Bhovi in the State of Mysore, the only course open to the Court to find out which caste was meant by Bhovi is to take evidence in that behalf. After consideration of the evidence before Court it was held that a communication had been made to the then Government of Mysore as far back as in 1944 on behalf of the Voddar caste and that a resolution was passed by the Voddar caste at a conference in July, 1944 in which it was resolved that the name of that caste be changed from Voddar to Boyi. This resolution ultimately culminated in the order that the Government are pleased to direct that the community known as 'Vodda' in future be called 'Boyi' in all Government Communications and records. Since then it appears in all Government records the Voddar caste is known as Boyi and, therefore, it was reasonable to infer that the President issued the order on that basis. The name of the 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 as 'Boyi' it meant in view of the Order of the Mysore Government in Feb. 1946 to the effect that the Voddars had given up their original name and had changed to Boyis. Thereafter the Supreme Court dealt with the difference in the spellings of the same caste and again referred to the Government Order and when the same caste was spelt differently the different spellings was provided in the order. But in considering the question whether Voddar was meant by the the Caste Boyi included in the order arose and when we consider the difference in spellings, for it is not in dispute that there was no caste known as Bhovi in Mysore State as it existed in 1950 when the order was passed. On that basis concluded that Voddar caste was variously spelt as Boyi, Bovi and Bhovi.
8. Now the question that arises for consideration is whether there has been any change in the order made by the Government. In the order issued on 27-7-1977 at Sl. No. 23 Bhovi caste is included as a Scheduled Caste. Thereafter Government of Karnatake has issued an order on 27th March, 1980 showing the list of Scheduled Caste referring to Sl. No. 23 as Bhovi and equivalent words or synonyms as Od, Odde, Vaddar, Waddar and Woddar. However, it is made clear in the Order itself that this list is not intended and shall not be treated as an alternation or amendments of the schedule to the Presidential Order specifying Scheduled Caste and Scheduled Tribes in relation to the Karnataka State and therefore this order is not of such consequence. What was of consequence was, what was meant by Bhovi in the Presidential Order. But the Supreme Court already considered the same in Basavalingappa's case and has held that Bhovi caste will include Voddar which was also known as Boyi and Bovi. In that view we do not think it is open to the appellants to contend that the caste described as Bovi could not have been treated as scheduled caste. Whatever might have been the reference that have been made in the glossary of terms or series of reports that have been submitted to the Government by the Backward Class Commission, they may not be of much relevance as what we have to interprete is the order of the President issued under Article 341 of the Constitution. When that has already been done by the Supreme Court it is not open for us to re-examine that question.
9. Further there is ample intrinsic material in this case to show that the original grantee in this case had been treated as scheduled caste. Recommendation was made by the Deputy Commissioner to the Divisional Commissioner for grant of the lands in question. A reference was made therein on consideration of the report made by the Deputy Commissioner in sending a report to the Government by the Divisional Commissioner that the Government in the order dated 6-5-1958 had accorded sanction for disafforestation of 100 acres of forest under non-alienation scheme to Voddare of the locality and 50 actes for tanugya cultivation out of Mallegal Valley State Forest. Instructions were also issued in the said government Order that the request of Narasimha Bovi and others who were cultivating that lands should be considered at the time of grant of lands on permanent basis. Now Bovies are requesting for confirmation of land as they are in possession of the lands in question. The Divisional Commissioner noticed that the parties concerned are poor and depressed class persons and are in enjoyment of the lands from the year 1934-35 and are paying assessment, orders of Government confirming 78 acres 5 guntas in favour of 43 persons as shown in the enclosed list should be obtained for cultivation under non-alienation scheme. It was also recommended that they may be given certain remission. It was only thereafter the Government made an order as at annexure 'A' by which the lands in question were granted including to first respondent's father at an upset price of Rs. 500/- per acre and waiver of Rs. 200/- per year since the parties belong to Bovi Community. Under the Mysore Land Revenue (Amendment) Rules 1960 under which the grant was made such remission could be given to only persons belonging to Scheduled Caste and Scheduled Tribe and not to others. Prior to the advent of the Constitution Scheduled Caste were called as depressed class, at any rate in the State of Mysore. Bearing that aspect in mind the Divisional Commissioner made recommendation for grant of land and the Government also considered the Community to which the first respondent's father belonged to, gave such remissions. Therefore when the authorities right from the inception had treated that the first respondent's father the original grantee belonged to scheduled caste and made a grant on that basis we do not think for the first time it would be proper for us to re-open that issue and give a different finding. Therefor ewe have to proceed on the basis the original grantee did belonged to Bovi Community which is scheduled caste.
10. The next question that arises for consideration in this case is as to the scope of grant and whether a grant made under Rule 43 (L) of the Mysore Land Revenue (Amendment) Rules 1960 is controlled by the conditions imposable under Rule 43 (G) of the Rules. In support of the contention urged on behalf of the appellants it was brought to our notice a decision of this Court in Sodomy v. Chikke Gowda, 1991 (1) Kar LJ 210 wherein this Court had to consider an identical question when a grant had been made under Rule 43 (J) of the Rules, the said rule was interpreted by this Court and after noticing that the special feature of the grant is that the grantee concerned would have already been in possession and enjoyment for several years before and he would have invested money and time and engaged in cultivating the land even prior to the grant of land and therefore for such a grant falling under Rule 43 (J) no other conditions should be imposed as is evident from the nonobstante clause with which such rule begins.
11. Learned counsel for the appellants urged that in the present case also the original grantee who is in possession of the land and had been cultivating the same for a long time and therefore the conditions imposable under Rule 43 (G) is not attracted in the present case for the very reason that was stated in Siddamma's case and the non obstante clause therein is identical with the grant under Rule 43 (L) of the Act. It was further urged that Rule 43 (G) is a condition imposable in relation to grant that can be made under the proceedings i.e., Rules according prior to Rule 43-(G) and therefore would not be applicable to a case arising under Rule 43(L) when the Government exercises its own powers and no conditions attached thereto none of the conditions referred to are referable in Rule 43(G) would be attracted, particularly in the light of the non obstante clause occurring in the said Rule.
12. As to the interpretation and understanding of a non obstante clause the legal position is as follows:
"Non obstante clause does not supersede any other provision of law but merely removes obstruction that might arise out of the provisions of any other section or rule or law in the way of the operation of the enacting provisions to which such clause is attached."
This view is based on the decision of the Supreme Court in Aswini Kumar v. Arabinda Bose, . Explaining the scope thereof their Lordships stated it should first be ascertained what the enacting part of the section provides on a fair construction of the words used according to their natural and ordinary meaning and non obstante clause is to be understood as operating to set aide as no longer valid anything contained in the relevant existing laws which is inconsistent in that enactment. Rule 43 (L) reads as follows:
"Powers of Government:-- Notwithstanding anything contained in the preceding rules the Government may 'suo motu' or on the recommendation of the Divisional Commissioner or the Deputy Commissioner if it is of the opinion that in the circumstances of any case or classes of cases it is just and reasonable to relax any of the foregoing provisions of these rules, it may by order direct such relaxation subject to such conditions as may be specified in the order, and thereupon land may be granted in such a case in accordance with such direction."
Ignoring the non obstante clause the effect of the said provision is that if the Government is of the opinion that in the circumstances of any case or classes of cases it is just and reasonable to relax any of the foregoing provisions of the rules it may by order direct such relaxation subject to such conditions as may be specified in the order and thereupon land may be granted in such a case in accordance with such direction. In the present case the order of the Government referred only to Rule 42, that the grant had been made in relaxation of Rule 42. Rule 42 refers to power of different Revenue Officers in respect of grant of land. There is no relaxation of any other rule or conditions imposed. Indeed the scheme of the said Rules is lands could be granted under Rule 43 (C) as ordinary grants of lands to an individual who is poor, is a major or either a bona fide agriculturist cultivating land personally or bona fide intends to cultivate the land personally and 43 (D) refers to lands which are to be granted in identical circumstances to political sufferer and to educational institutions. thereafter Rule 43 (E) refers to certain reservation of land. Rule 43 (F) refers to order of priority and extent of land to be granted. Thereafter Rule 43 (G) refers to grant of lands referred to earlier would be subject to certain conditions, wherein sub-rule (4) specifically refers where the 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 fifteen years from the date of the grantee taking possession of the land, after the grant and there are certain other provisions to which reference is not required. Rule 43(H) refers to grant of land for cultivation of plantation crops and Rule 43 (J) refers to grant of land to persons to whom lands are leased on temporary basis. In the present case although the grantee had been originally in possession of the lands, had not been granted in exercise of power under Rule 43 (J) but in exercise of power under Rule 43 (L). In the case of ordinary grants of lands under Rule 43(C) occupancy price is fixed as set forth therein. Under R. 43(G)(1) in case of grant of lands to applicants belonging to Scheduled Caste and Scheduled Tribe the occupancy price may be waived up to Rs. 200/- and balance recovered. The Government has utilised this power in making the grant. When the grant is made at price less than the market value the grant is subject to non-alienation for 15 years from the date of taking possession. Therefore provisions of S. 43(J) cannot be applied nor the decision of the case of Siddamma is attracted to the present case. Rule 43(L) specifically empowers the Government to make the grant subject to such conditions as it may deem fit to impose when it makes a grant. All other conditions will be applicable except the conditions that are relaxed to such grantee. In the present case the only relaxation made is one of R. 42 which empowers the different revenue officers to grant land. The relaxation of that condition enables the Government itself to exercise power and it is specifically referred to in R. 43(L) that Government may relax such conditions in the foregoing provisions which are referable in R. 43(G) as well. In that view of the matter, we do not find much substance in the contention urged on behalf of the appellant. The appellant has failed in both the contentions urged before this Court. This appeal is liable to and is dismissed.
13. Appeal dismissed.