M. RAMAKRISHNA RAO, J.

( 1 ) IN this petition under articles 226 and 227 of the Constitution of India the petitioner has called in question the correctness and the legality of the order passed by the deputy commissioner, Annexure-C. He has sought for quashing the same on more than one ground. Before referring to the real question of law arising in this case it is better to refer to a few salient facts necessary to dispose of the writ petition. They are as follows: 4 acres of land in sy. No. 1336/6, situated in the village kengalapura, handanakere hobli, chikkanayakanahallitaluk, tumkur district, was granted by a competent authority in favour of mallanaika, (the petitioner herein) in proceedings No. Dep. Dcr. 61. 1951-52, dated 20th of june, 1952, under the erstwhile Mysore land grant rules, carved out of Mysore land revenue code (hereinafter referred to as the 'rules' ). The grant is subject to certain conditions including the condition incorporated in the grant that the grantee shall not alienate the granted land at any time to any person. The grantee was a person representing scheduled castes. It was free grant.

( 2 ) IT is an admitted fact that the granted land came to be sold in favour of hemlanaika (the 3rd respondent herein), by a registered sale deed dated 26-5-1977, for valuable consideration. It is stated that eversince the sale of granted land in favour of the 3rd respondent he has been enjoying the land.

( 3 ) AFTER coming into force of the Karnataka scheduled castes and scheduled tribes (prohibition of transfer of certain lands) Act, 1978 (hereinafter referred to as 'the act'), an application was presented by thimmanaika, son of the petitioner herein seeking for the relief under the Act, before the assistant commissioner, tiptur sub-division, tiptur. His case was that since the granted land came to be sold in favour of the 3rd respondent in contravention of the conditions of grant, sections 4 and 5 of the act would be attracted. Therefore, he has sought for a declaration declaring the transfer of granted land as null and void and to restore the granted land in his favour.

( 4 ) THERE is one factual position arising in the petition which I have got to clarify. Even though the original grantee mallanaika (the petitioner herein) had been very much present, it appears, on the advice made by the revenue authorities, his son thimmanaika, presented an application seeking for the relief in his favour. However, during the course of the enquiry it was made clear that the original grantee mallanaika had been alive and he would be entitled to the relief and not his son thimmanaika.

( 5 ) BEFORE the assistant commissioner it was contented that the granted land came to be sold after the expiry of period of 15 years and that therefore question of applying the Provisions of the act did not arise. However, the assistant commissioner held a detailed enquiry and passed an order as per Annexure-A declaring the sale of the granted land as null and void, as, according to him, the land was sold against the condition of the grant that the land shall not be alienated for ever and directing restoration of the land to the original grantee.

( 6 ) AGGRIEVED by this Order, the 3rd respondent-hemalanaika, filed an appeal inrsses tps/ptcl 4/1988-89 before the deputy commissioner, tumkur, under Section 5-a of the act. The learned deputy commissioner after hearing the learned counsel on both sides allowed the appeal by his impugned order Annexure-C , dated 25th march, 1991, by which he reversed the order of the assistant commissioner taking a different view from the one expressed by the assistant commissioner on the question of interpretation of the rule. In the operative portion of the order Annexure-C the learned deputy commissioner observed as follows:" on verification of the record it is made out that as per m. r. extract the land was granted in favour of the respondent in survey number 133/6 of kengalapura village to an extent of 4. 00 acres un

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