Dr. Arijit Pasayat, J.

1. Heard learned counsel for the parties.

2. Challenge in this appeal is to the order passed by a Division Bench of the Karnataka High Court dismissing the writ appeal filed under Section 4 of the Karnataka High Court Act (in short the ‘High Court Act’). Challenge in the writ appeal was to the order passed by a learned Single Judge in Writ Petition No. 180897/95 dated 9.9.1998.

3. Factual background in a nutshell is as follows:-

The Government land measuring 30 guntas in extent in Sy. No.96/12 of Heggur village, T.N.Pura Taluk was originally granted temporarily to R-1’s husband Lingaiah on 26.9.1959 for upset price at the rate of Rs. 500/- per acre allowing him to pay the same within the specified time and subject to the condition that on payment thereof the grant shall be confirmed in his favour. It transpires from the impugned orders of the authorities below that because of poverty the grantee could not make payment of the upset price in time and the same was, therefore, made payable in three equal instalments by order dated 24.8.1961. On payment of the said price, the temporary grant of the land was confirmed in his favour by order dated 10.10.1962 imposing the condition that the same shall not be alienated by him for a period of 15 years. In violation of this condition the said land was sold by the grantee on 16.2.1965 to one Manche Gowda whose children, in turn, sold the same to appellant on 22.5.1972.

After the Scheduled Caste and Scheduled Tribe (Prohibition of Transfer of Certain Lands Act (the –Act in short) came into force, R-1 made his application to Respondent No. 2 Asst. Commissioner seeking resumption of the said land under Section 5 of the Act on the ground that the same had been alienated by her late husband in breach of the said non-alienation condition. On enquiry, the order dated 19.7.1993 was passed by the Asst. Commissioner holding the said sale null and void and directing appellants eviction from the land for its restoration to Respondent No. 1, since her husband grantee was undisputedly a member belonging to the Scheduled Caste. On appeal by the appellant, the said order of Asst. Commissioner came to be confirmed by respondent No.3 Deputy Commissioner by his order dated 13.3.1995. The appellant, therefore, sought for quashing of both orders on the ground that both the authorities below have erred in declaring null and void the said sale dated 16.2.1965 made by the grantee in favour of Manche Gowda on application of sub-rule (4) of Rule 43-G of Mysore Land Revenue (Amendment) Rules, 1960.

4. The stand of the appellant before the High Court was that Rule 43 G(4) was inapplicable in respect of the said granted land, as the correct rule applicable was sub-rule (J) of Rule 43. It was stated that the Deputy Commissioner had indicated that the land was initially granted on the basis of temporary lease which came to be confirmed by a subsequent order in favour of the lessee. Since the initial grant was on lease basis which came to be confirmed by a subsequent order, the correct Rule applicable in that event is Rule 43(J) and not Rule 43G(4). It was further canvassed that once the grant was under Rule 43(J) any condition imposing ban on alienation thereof will be inopeative and unenforceable. The stand of the State Government was that the grant of land in favour of respondent’s late husband was made not under Rule 43-J but it was in fact under Rule 43-G. The High Court held the authorities were right in holding that the grant of land was under Rule 43-G and not under Rule 43-J. Accordingly, the writ petition was dismissed. Before the Division Bench of the High Court, the stand taken before the learned Single Judge was reiterated but was rejected.

5. In support of the appeal, learned counsel for the appellant submitted that the correct Rule is Rule 43-J and not 43 (G) (4). Therefore it is submitted that a different scheme is applicable.

6. Similar issue was considered by this Cour