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The petitioner filed an application before the Assistant Commissioner, Tarikere Sub Division to cancel the sale deed dated 4.12.1995 and to hold sale as null and void and contrary to the provisions of Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (for short ' SC/ST (PTCL) Act. The Assistant Commissioner rejected the application for resumption and restoration.

2. The same was challenged before the Deputy Commissioner. The Deputy Commissioner allowed the appeal and remanded the matter to the Assistant Commissioner to reconsider the same. The Assistant Commissioner has reiterated the earlier order dismissing the application for resumption and restoration of the land which was confirmed by the Deputy Commissioner. Against which he preferred the writ petition. The writ petition also came to be dismissed by order dated 18.09.2017. Hence, he files this appeal.

3. The facts involved in this case are that land in question was allotted to the father of the appellant on 30.6.1957 in Sy.No.202 measuring 4 acres and father of the appellant again sold the land on 10.4.1974 to one Sudhakar and again he repurchased the same land on 20.06.1977. In order to meet the family necessities he made an application to the Assistant Commissioner under Section 3 (2) of the SC/ST (PTCL) Act . The same came to be rejected on the ground that the land was allotted in the year 1957 and was sold in the year 1974 after the period of non-alienation and hence it lost its character as 'granted land' for the purpose of SC/ST (PTCL) Act. Accordingly both the original authority and appellate authority rejected the application for resumption, which is again confirmed in the writ petition.

4. The grounds urged by the appellant are that the sale deed dated 10.04.1974 is not a sale, it is only a mortgage and he redeemed the same in the year 1977. Hence the transaction between the year 1974 and 1977 cannot be treated as alienation. The second ground is that the sale of land is hit by provisions of SC/ST (PTCL) Act because of non alienation condition. This aspect is not looked into by the Assistant Commissioner, Deputy Commissioner and the learned Single Judge. No permission was taken under Section 4(2) of the Act for transferring the property and therefore alienation is hit by provisions of the Act. In the circumstances, it is submitted that the impugned orders passed by the Assistant Commissioner and also confirmed by the Deputy Commissioner and the learned Single Judge are contrary to the provisions and unsustainable. Hence, he submits that the order of the learned Single Judge may be set aside and direct the Assistant Commissioner to restore the land.

6. We have heard the learned counsel appearing for both parties and also gone though the order passed by the learned Single Judge. The reasons assigned by the Assistant Commissioner to reject the case of the appellant and as discussed by the Single Judge, the grant was made in the year 1957 and the first sale was made after 15 years of the condition. It is observed by the learned Single Judge that by virtue of repurchase, it loses its character as a granted land for the purpose of Section 4 of the SC/ST (PTCL) Act. The said reasons assigned by the Assistant Commissioner and the learned Single Judge is well founded and same is to be accepted. As per Section 3 (e) of the Act "Transfer" means a sale, gift, exchange, mortgage (with or without possession), lease or any other transaction not being a partition among members of a family or a testamentary disposition and includes the creation of a charge or an agreement to sell, exchange, mortgage or lease or enter into any other transaction. Therefore, 'mortgage' also comes within the definition of Section 3(e). The said sale made is after 15 years. Hence, para 23 of the judgment in Machegowda (supra), is relevant to be extracted, which is as follows: