VikramajitSen, Chief Justice
1. In W.P.No.28263/2004 the learned Single Judge was called upon to decide the question whether a grant of land made to a person whose caste was included in the list of Schedule Caste and Schedule Tribes subsequent to the Presidential Notification of the year 1950 would nevertheless come within the purview of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act 1977 (hereinafter referred to as the PTCL Act for the sake of brevity) which became operational on 01.01.1979.
2. Thelearned Single Judge had analyzed the decision in Obalegappa Versus the Deputy Commissioner ILR 1999 KAR 372 delivered by a Single Bench, as also the three Division Bench judgment in Krishnappa Versus State of Karnataka ILR 1982 KAR 1310, Mahalingappa Versus The Assistant Commissioner, Tarikere, WA No.2807/1991 decided on 07.11.1995 (unreported) and T.M. Rangaiah Versus Assistant Commissioner Tiptur ILR 2002 KAR 1987. Confronted with conflicting views in the opinion of the Division Benches, the learned Single Judge referred the writ petition before him to a Division Bench, purportedly under Section 9 of the High Court of Karnataka Act (for brevity, hereinafter referred to as the High Court Act) for clarifying and settling the legal position. By its Order dated 28.01.2011 the assigned Division Bench, while ostensibly expressing agreement with the Mahalingappaview,yet keeping in perspective the dichotomic opinion of the Division Benches, recommended the constitution of a Full Bench, in exercise of powers under Section 7 of the High Court Act. We have used the word ostensibly since a holistic reading of the Reference Order disclose that both the Division Bench views were respected by the Reference Court. It is in these circumstances, that the legal conundrum has arisen.
3. In the context of the controversy before us, we think it necessary to briefly comment on whether a Reference to the Full Bench was necessary or not? It has already been noted that the learned Single Judge had referred the writ petition itself to the Division Bench in exercise of power under Section 9 of the High Court Act for clarifying and settling the legal position. Section 8 of the High Court Act deals with the powers of Single Judge in Revisional jurisdiction and the proviso to sub section prescribes that the Single Judge may, if he thinks fit, instead of disposing of any case as aforesaid refer such case to a Bench of two Judges for hearing and disposal. The learned Single Judge was in seisin of a writ petition in contradistinction to a Revision and therefore, Section of the High Court Act was not applicable. It was perhaps for this reason that Section was pressed into operation, but a perusal thereof discloses that the option to refer the legal nodus to a Division Bench does not find enumeration therein. It rationally follows that it was incumbent on the learned Single Judge to decide the dispute involved in the Writ Petition despite being confronted with a chasm in the opinions expressed by two Division Benches. Judicial jurisprudence requires a Single Bench normally to follow and to apply the opinion already expressed by a Single Bench but in the event it is found to be overwhelmingly and irrepressibly unacceptable, it can direct that the matter be placed before the Chief Justice. This situation had not arisen before the learned Single Judge in the present case, but a rather far more piquant position divergent views of Division Benches. As we have already observed, the learned Single Judge was duty bound to decide the lis spelt out in the Writ Petition. Discernibly, therefore the High Court Rules may require reconsideration since they permit a reference if there is a disagreement with an existing view of a Single Judge, but not if the divergence is in the opinion of Division Benches. In the present case, a perusal of Mahalingappa discloses that, that decision was delivered without any reference to the co-ordinate Division Bench decision in Krishnappa. If there is an irreconcilable difference between two decisions of co-ordinate Benches the later one would partake the character of a per incuriam verdict and therefore would not have binding effect on the Single Judge. Mahalingappa proceeds on a factual matrix disparate to that obtaining in Krishnappa. However, the learned Single Judge also had the advantage of Rangaiah which in turn categorically comments that the question is no longer res integra as this question had been settled by a Division Bench of this Court in Krishnappa by holding that though the community Nayaka was not recognized as Scheduled Tribe as on the date of grant, yet the existence of the community as well as their underprivileged status not being in dispute and the grant of land having been made under the scheme, any sale of such land during the non-alienation period would be hit by the provisions of the PTCL Act. The learned Single Judge therefore, had no option but to apply the dictum laid down in Krishnappa reinforced in Rangaiah.
4. The position changes so far as the Division Bench is concerned. While it always had the option of declaring the unreported Mahalingappaas per incuriam, it nonetheless was empowered to refer the matter to a Full Bench under Section of the High Court Act on the postulation that it differs from the view taken by another Bench of the High Court on the same question. In the event, the referral Division Bench arguably expressed its preference for Mahalingappa, which as already reflected upon, had not been called upon to notice or consider Krishnappa. The referral Division Bench also had the advantage of the supporting and reinforcing opinion in Rangaiah. We clarify that in the absence of Krishnappa, Rangaiah would also be viewed as per incuriam. An abiding tenet of jurisprudence is that there must be certainty in the law, and a legal state of flux is jural anathema. It is for this reason that law normally expects adherence to a previous persuasion since society already stands sensitized to that extent and effect. However, there is another equally important consideration which is that ambiguity is an abhorrence, and owing to Krishnappanot having been cited before Mahalingappa, the controversy needs to be clarified.
5. Reflection is required on a vital question raised by the learned Single Judge with regard to the differences, if any, in Pre Constitutional Grants and Post Constitutional Grants. There can be no cavil that the employment of the epithets Schedule Cast or Schedule Tribe was not novel to the Constitution of India, as they had already been used in the Government of India Act, 1935. But they became precise terms of art and ubiquitous usage only after 1950; prior to which they were conceived of a interchangeable or synonymous with the phrases depressed classes or weaker sections etc. Article 366 (24) and (25) of our Constitution defines them with reference to Articles 341 and 342, which Articles postulate a definitive enumeration or specification in this context made by the President of India by public Notification. Sub-Article (2) of both Articles 341 and 342 empower Parliament to make laws for effecting inclusions or exclusions in the Presidential Notification; and this action of the Parliament cannot thereafter be varied by means of subsequent Notifications. The Constitution contains no indication of the raison detre behind the selection of Schedule Casts or Tribes. Article 46 emblazons, as one of the Directive Principles, that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes and shall protect them from social injustice and all forms of exploitation. It is obvious from this Article that weaker section contains the subsumption of Schedule Castes and Schedule Tribes, which is relevant for the interpretation to be imparted to pre and post Constitutional and grants. Article 15, which prohibits discrimination on the grounds of religion, race, caste, sex or place of birth, clarifies in sub-Article (4) that the State is not prevented from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. Article 16 ordains an identical situation in respect of equality of opportunity for all citizen in matters relating to employment or appointment to any office. It is apparent, therefore, that the terms backward classes or weaker sections is of the widest postulation and envelops even Scheduled Castes/Scheduled Tribes. This discussion becomes necessary because in pre-Constitutional Land Grants reference is ubiquitously made to depressed classes. Section 3 of the Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 [the PTCL Act for short] defines granted land as any land granted by the Government to a person belonging to Schedule Castes/Scheduled Tribes, or as an agrarian reforms or land ceilings or abolition of Inams; and the terms Schedule Castes/Scheduled Tribes have the meaning assigned to them in the Constitution. It also appears to us that this definition takes within its wings all grants made to Schedule Castes/Scheduled Tribe persons, regardless of whether they were for the market price or unconditional. This view does not lead to any unjust, unfair or inequitable state of affairs; because when permission or rather clearance for sale of grant lands is made under Section 4(2) of the PTCL Act, the Authority would be expected to accord it simply because the grants were made at market price and without any restrictive covenants. If Schedule Castes/Scheduled Tribes are only some amongst a plentitude of persons falling within the concept of depressed classes it is vainly arguable that the PTCL Act may have no application to the generality of depressed classes; ergo, the PTCL Act may not apply to pre-Constitutional Land Grants. This would create an anomalous situation in that the statutory protection would be missing for the depressed classes even though the Grant made to them had identical intendment to corresponding action for Schedule Castes/Scheduled Tribe. The Canons of statutory construction compel the Courts to prefer an interpretation which conduces implementation of the ethos of an anactment. Accordingly, it seems to us that Grants made in the pre-Constitution era to persons belonging to depressed classes would be covered by and fall within the ambit of the PTCL Act. In this state of flux, Grants made before the Constitution of India came into force must also be covered by the protective mantle of the PTCL Act. A rigid, pedantic or exclusionary interpretation is not warranted in a fluid and evolving milieu. In this regard reference to the opinion of the Constitution Bench in E.V. Chinnaiah Versus State of Andhra Pradesh (2005) 1 Supreme Court Cases 394 is extremely elucidatory. Their Lordships held that members of Scheduled Castes as contained in the Presidential Notification form a class by themselves and any further sub-classification or micro-classification is not Constitutionally contemplated. Splinterising of other backward communities as pondered upon in Indra Sawhney Versus Union of India 1992 Supp (3) SCC 217 cannot be extrapolated to Schedule Castes/Scheduled Tribes; tinkering with the enumeration in the Presidential Order 1950 even by State Legislature is unconstitutional.
6. ZileSingh Versus State of Haryana AIR 2004 SC 5842 no doubt concerns the possible retrospectivity of an amendment which inflicted a disqualification on any person having more than two children. The present debate is significantly and substantially dissimilar because retrospectivity is inherent in subsequent enumerations under Articles 341 and 342 since those selection are immutable or unalterable; all change therefore, is only clarificatory in content, because the endeavour of Parliament is to make the enumerations more detailed by mentioning sub-castes or the synonyms of the selected castes and tribes. The inclusion of new castes/tribes was intended by the framers of the Constitution to be impermissible, in order to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President as per the Constituent Assembly oration of Dr. Ambedkar, which stands accepted by the Apex Court at least twice, as in State of Maharashtra Versus Miland (2001) 1 SCC 4 and Chinnaiah (2005) 1 SCC 394. Only elaboration or elucidation is constitutionally kosher; expansion, enlargement or elongation of the enumeration is not so. Our understanding reveals that the frontiers of inclusion or exclusion of castes / tribes by Parliament under Article 341 (2) and 342 (2) have not been delineated by the Apex Court. It appears to us that logic directs that if the selection of castes and tribes is unalterable, retrospectivity will attach to every elaboration thereto. It also seems to us that this exercise is inevitable, inasmuch as the spelling of each caste varies from district to dialect, and translation from the vernacular to the English language invariably lacks precision and authenticity. Land grants to depressed classes or backward classes or Schedule Castes or Tribes, (it is our conclusion) whether prior or post the Constitution of India, must be treated identically and on parity.
7. It is in this background of the facts of the dispute that we caution against reading and distilling the dictum of a Judgment in isolation of the factual edifice upon which it was constructed. The ratio decedendi has to be drawn from the backdrop of the facts of a case, otherwise it constitutes obiter dicta. We shall therefore refer to the narration contained in the Writ Petition itself in which the asseveration is that the father of the petitioner was granted five acres of land on 23.12.1954 by a grant Certificate; that the grantee belongs to a Schedule Tribe and based on the same, the land could not be alienated for a period of 20 years as it was free of costs; and since the alienation on 10.02.1972 to the Respondent No.3 was in contravention of the 20 years embargo the PTCL Act was invokable; and hence the possession of the land should have been restored to the Petitioner being the legal heir of the original grantee. The Deputy Commissioner, exercising Appellate jurisdiction, held that since the grantee did not belong to a Schedule Tribe either on 23.12.1954 (date of grant) or on 10.02.1972 (date of sale), the PTCL Act was not attracted. The order of the Assistant Commissioner confiscating the land was cancelled. The grant, also nomenclature as Saguvali Chit, after translation from Kannada reads thus:
XXXX sanction is accorded of Deputy Commissioner in Memo No.DDC M4 DDM 93/54-55 date: 23.10.54,
EXF 3/54-55
Schedule 1, Form I
Schedule E Grant Certificate
Land Revenue Conditions
Whereas the unoccupied Government lands for the purpose of issue of occupancy rights to Sri. Basaiah, son of Sooraiah has purchased the land in the open auction or by payment of Government premium and as the said auction has been confirmed, since he paid the sale amount in full of Rs.273-11-9 to the Government treasury, I, Sri. V.M. Gangadharan, the Tahsildar of Challakere taluk hereby give permission to hold the possession and occupation of the said land to the said Basaiah son of Sooraiah. I confirm the allotment of that land to the said Basaiah, son of Sooraiah and his successors, legal representatives and heirs, subject to appeal or revision or cancellation or change. And in future upon the existing terms, the land tax shall be paid from time to time and subject to the following conditions:
1. Provided that, this tax shall be paid under the rules for the time being in force, from year to year, failing which this amount will be recovered by force or by initiating the proceedings under the rules of land revenue code and relevant rules.
2. Provided, that this certificate of ownership is no way affect the liability of the above said land such taxes and cesses other than land revenue as arrears as may be imposed by law, whether for general, municipal or other local purposes.
3. Provided also that the occupant or other lawful owner of the said land shall at all times hereafter with own expenses maintain, in good order, the boundary marks around and in the said land, failing which it shall be lawful for the State Government after due notice to cause the maintenance work of the said tank as far as his liability in this behalf extends and the repairs of the said boundary marks to be carried out and the cost of such maintenance work and such repair as a revenue demand from the said Basaiah son of Sooraiah or from the legal owner or other persons.
4. Provided also that nothing in the ownership meant contained shall affect the existing easementary or customary rights of the Government or of proprietors of the land adjoining or lying near the said land or of the villagers in common in all existing roads and paths and in streams of water running through or bounding the said land.
5. Provided also that on this land said Basaiah, son of Sooraiah or his representatives or heirs any right, title or in any way vest in any right in or to precious stones, gold and other minerals or coal or stone or rock containing or supposed to contain precious stones, gold or other minerals or coal known to exist or which may at any time hereafter be discovered on or under the said land or any part thereof all of which are hereby respectively reserved to the State Government subject to the conditions now in force or which may be prescribed in this behalf from time to time and subject to the conditions that the said occupant shall always be allowed to use free of charge any lime stone, granite and ordinary minerals other than metals or coal or precious stones which may be found on or under the said land and which may be supplied to the bonafide private use of the occupant and not removed for purposes of sale.
6. Provided also that the certificate of registration shall be subject to further right to sandal trees which are hereby reserved to the State Government except in so far as the Rules that are or may be framed in the matter of the grant of bonuses for such trees may permit.
7. Provided, subject to the conditions of Land Revenue Code or temporarily in force the other rules made there under or any other law for the time being in force.
8. This land shall not be alienated for 20 years to any others in any manner from this day and the said land shall be cultivated within three years from this day.
9. For the trench of 30 feets place shall be left and shall not cause disturbance after payment of cash.
District & Taluk Boundary Village Sy. No. Extent
Chitradurga Out of Sy.No.213
Challakere 05 acres 04 guntasOf Challakere village
North : Sy.No.181
South : Sy.No.213 remaining
East : S.No.214
West : S.No.213Remaining portion & Pit.
Hereby clearly mention the purpose of leaving the phot kharab.
Issued on this 23rd day of December 1954
C.A.No.292/97-8
Tahsildar
ChallakereTalu.
8. Land grants have been made in the present territories of the State of Karnataka for well over three score years, even in the pre-Constitution epoch, and to the depressed classes as well as the persons belonging to other strata of the society. So far as the former category is concerned, these grants were made for egalitarian reason, for the upliftment of the ostracized, marginalized, exploited and suppressed. The term Schedule Caste/ Scheduled Tribes, stand specified in The Constitution (Scheduled Castes) Order 1950, and in the Constitution (Scheduled Tribes) Order, 1950 promulgated by the President of India as postulated by Articles 341 and 342 of the Constitution of India. We are presently concerned with the following Entry
Constitution (Scheduled Tribes) Order 1950
(Part-II Rules and Orders under the Constitution)
Part VI Karnataka
38. Naikda, Nayaka, Chollivala Nayaka, Kapadia Nayaka, Mota Nayaka, Nana Nayaka [Naik, Nayak, Beda Bedar and Valmiki]
The Tribes mentioned in parenthesis were inserted by Act 39 of 1991 with effect from 19.04.1991. A reading of the Parliamentary Debates discloses that the insertion was necessitated not because fresh Tribes were sought to be introduced, but in order to clarify the enumeration by including different spellings of these Tribes. We shall only note that the narration of Naik, Nayak and Nayaka in all its variant spelling has remained constant since 1950; the changes merely introduced synonymous nomenclature. The fact that the Constitutional expectation, that reservations should eventually come to an end, further militates against the introduction of altogether new and distinct castes and tribes under this Article. The enumerations under these Articles constituted a shortlist consequent upon the conspectus of sections of society existing during the workings of the Constituent Assembly at or on the advent of our Constitution.
9. However, it was not only persons belonging to Scheduled Caste / Scheduled Tribe who were bestowed the favour of allotment of land; such allotment took place even under the Grow More Scheme, to mention only one. It is therefore necessary, in every case, to decipher whether the grant or Saguvali Chit was made in favour of depressed classes or Scheduled Castes / Tribes or generally to all sections of society. In the context of grants made to persons other than the Scheduled Caste/Scheduled Tribes infractions of any of its terms by alienation or transfer would by statutory device lead to the cancellation of the grant and/or the resumption of the land by the State. The PTCL Act applies in those instances where the grants have been made to the persons belonging to Scheduled Castes/Scheduled Tribes, but without the bestowal of any preference or concession, that is, at the then prevalent price. It therefore becomes necessary to go into the question whether the grant was made at an upset price or the market price.
10. It is with this short preface that we shall analyse the Single Judge decision in Obalegappato demonstrate that it does not concern itself with the controversy contained in the Reference, in view of the Constitution (Scheduled Tribe) Order, 1991 which came into effect on 19.04.1991. In Obalegappa the decision of the Appellate Authority directing resumption of the land to the Government instead of its restoration to the original grantee, was assailed by way of a writ petition. The grantee therein belonged to the Valmiki community which was included in the list of Scheduled Castes in the year 1991. The Writ Court remanded that matter to the Assistant Commissioner for fresh determination as to whether the land was granted free of cost or for upset price or reduced price. It is plain to us that the remand had no concern with whether the grantee enjoyed Scheduled Caste/ Tribe status or not. We do not find any observations as to whether a person belonging to Valmiki community would be able to enjoy these rights with retrospective effect. The learned Single Judge had not discussed either Krishnappaor Mahalingappa. In Mahalingappa the grant was made to one Govinda Naika and the learned Single Judge had in the impugned Order concluded that the grant had been made to the respondent who, as per the recitals in the Sale Deed, belonged to the Banjara community. The learned Single Judge upheld the concurrent findings of the Assistant Commissioner and the Deputy Commissioner restoring the land to the Grantee, on the basis of the Notification dated 08.08.1983 issued by the Government of Karnataka declaring Banjara, Lambani as Scheduled Castes. The Division Bench held that the PTCL Act was not attracted as the land in question did not fall within the definition of granted land since there was not finding by the Revenue Authorities as to whether the Grantee was a Scheduled Caste; and that the writ Court assumed this social status of the grantee because, Banjara was mentioned as Scheduled Caste in the 1983 Notification. The Division Bench set aside all three conclusions on the footing that as on the date of the grant, i.e., 22.12.1953, the grantee was not a person belonging to Scheduled Caste; and that the 1983 Notification could not have retrospective effect. The grant was made on 22.12.1953 and the sale took place just prior to the expiry of 15 years embargo i.e., on 22.04.1958. It seems to us that even if the PTCL Act was not attracted, the transaction would perforce, have to be declared as void inasmuch as it was manifestly violative of the terms of the grant itself, and consequently, the land would uncontrovertibly revert to the State. If the PTCL Act was invokable, the result would be that the sale transaction would still be invalid but the land would normally have to be returned to the Scheduled Caste/Tribe grantee, and not to the State. With due deference the Division Bench should not have assumed without any analysis, that the Notification could not have retrospective application.
11. The dimensions of the question before us is whether the inclusion of persons in the Scheduled Caste / Scheduled Tribe community subsequent to the execution of a grant would inexorably attract the provisions of the PTCL Act. We have already referred to the Constituent Assembly and the Parliamentary debates which, to our mind, disclose the raison detre for inclusion in the enumerations under Article 341 or 342 of the Constitution. This reasoning is also found in Minerva Mills Ltd., Versus Union of India (1980) 3 Supreme Court Cases 625 where, in a slightly different context, the Apex Court in paragraph-63 observed thus: If the discipline of Article 14 is withdrawn and if immunity from the operation of that Article is conferred, not only on laws passed by the Parliament but on laws passed by the Sate legislatures also, the political pressures exercised by numerically large groups can tear the country asunder by leaving it to the legislature to pick and choose favoured areas and favourite classes for preferential treatment. It is also relevant to recall that Article 334 of the Constitution envisages that reservation of seats to Scheduled Caste and Scheduled Tribe in the House of People and in the Legislative Assemblies of the State would cease to have effect on the expiry of a period of seventy years from the commencement of Constitution, which period has been extended from time to time by the Constitution (Forty-Fifth Amendment) Act, 1980, Constitution (Sixty-Second Amendment) Act, 1989 and Constitution (Seventy-ninth Amendment) Act, 1999, and now resting on the Constitution (95th Amendment) Act 2009. A considerable amount of litigation had been generated on the status of the Bhovi community in Karnataka, which has attained quietus after the Apex Court ruling in Basavalingappa Versus Munichinnappa, AIR 1965 SC 1269. The Bhovi caste finds mentioned in the Presidential Notification 1950, even in respect of the then Mysore State but the factual position was that there were no persons of this caste in the said state. Their Lordships found that in 1944 the Voddar / Vodda Caste decided to change their name to Bhovi and hence the latter epithet subsumed the former in all its cognate spellings including Boyi and Bovi. This exposition of the law was applied by the Division Bench of this Court speaking through Rajendra Babu (as the Learned Chief Justice of India then was) in Virupakshappa versus Hanumantha ILR 1994 KAR, 1270. It was noted by the Division Bench that the Government of Karnataka had issued order dated 27.03.1980 referring to Bhovi being synonomous to Od, Odde, Vaddar, Waddar or Woddar. This Order takes pains to clarify that it did not intend to alter or amend the Presidential Order but merely elucidate it. It also seems to us that the prescription of ten years for continuance of reservations for SC/ST is indicative of the parliamentary resolve that they should be time bound. It would therefore not be logical to hold that it was intended that this enumeration could be added to or augmented. Ergo the power of Parliament to include or exclude castes, races or tribes from the list of SC/STs under Article 341 & 342 has to be construed to permit clarification or inclusion of synonyms or alternate translations only. The exclusion of castes / tribes presents little or no difficulty as what was postulated was that this exercise would be conducted as and when the lot or status of any particular caste / tribes would improve appreciably, they would be removed from the list, in consonance with the purpose for prescription or period postulated in Article 334 of the constitution.
12. We have had the advantage of reading the erudite 1982 ruling in Krishnappain which the Division Bench had distilled six contentions urged before them of which, the 5th, viz., Section 4 of the Act does not invalidate alienation of granted lands which had been granted prior to the commencement of the Constitution, is germane for the present purposes. In that context it was opined by the Division Bench that the Scheduled Castes and Tribes enumerated in the Constitution existed prior thereto and were then referred to as depressed class viz., Harijan, Tribal people, Girijan, and the lands allotted to such persons corresponded to the term granted land as defined in Section 3 (b) of the PTCL Act. Reference is also required to be made to the Single Bench trilogy authored by Ramakrishna J, namely Basappa Versus Special Deputy Commissioner 1991 (2) Kar. L.J. 480, B. Sanjeevaiah Versus State of Karnataka 1991 (3) Kar. L.J. 28 and Madaiah Versus Assistant Commissioner, Ramanagar 1991 (3) Kar. L.J. 377 all three of which were predicated on the Division Bench ruling in Krishnappa. It was held by the Single Bench that grants made before the advent of the Constitution would fall within the ambit of granted land as defined in Section 3 of the PTCL Act if the grantee belonged to the depressed classes which was the term employed in the pre Constitution epoch and that the grant was for the upset price and not the market price. This enunciation of the law has been followed in Obalegappa, although without any mention of Krishnappa which had, in a manner of speaking, set the scene.
13. We shall now discuss Mahalingappa (Division Bench, 1995) in some detail. Two acres thirty three guntas of lands were granted to Govinda Naika, the father of the 4th respondent on 22.12.1953, with a prohibition for its sale within 15 years; but the grantee sold the land to the appellant in the duration of the moratorium. The Assistant Commissioner applied the PTCL Act to the transaction and ordered the restoration of land to the Government under Section 5 (b) of the PTCL Act and this was upheld in appeal by the Deputy Commissioner. Thereupon the appellant filed a writ of certiorari for quashing those decisions. The learned Single Judge adverted to his previous decision wherein he had noted that the Banjara and Lambani community were included as the Schedule Castes in the State of Karnataka on 09.08.1983. The learned Single Judge held that Thimma Naika, the son of the original grantee Govinda Naika, was a Scheduled Caste, since the Sale Deed itself mentioned him as Banjara. This decision was also challenged and the Division Bench held that since the Banjara community was included as a Scheduled Caste only in 1983, the PTCL Act did not have any application for the simple reason that the grantee was not a member of Scheduled Caste / Scheduled Tribe on the date of the grant. The Division Bench had noted that neither the Assistant Commissioner nor the Deputy Commissioner had returned a finding on the vital question whether the grantee belonged to a Scheduled Caste / Scheduled Tribe. In our opinion, the Division Bench could, at the highest, have remanded the matter for a determination on this point if it disagreed with the concurrent conclusion arrived at by the learned Single Judge and the two Authorities below. Indeed, the Division Bench ought not to have interfered with the aforementioned consistent conclusions that the grantee belonged to the Scheduled Caste / Scheduled Tribe named Banjara. Had the Division Bench referred to Part VI of Constitution (Scheduled Tribes) Order 1950 it would have noted that Nayaka community had been enumerated as a Scheduled Tribe even before the grant had been made on 22.12.1953. On facts therefore, the question which has been referred to us for determination had palpably not arisen at all. This question however is topical since the Division Bench has assumed that Govinda Naika belonged to Banjara caste merely because the learned Single Judge had held so. It was advisable, if not essential, to refer to the grant / saguvali chit itself which being in vernacular / kannada language, would always be pregnant to the possibility of tainted translation because of Anglicization. Failure to adhere to this exercise has led to an erroneous decision. The query we must be mindful of is how Naika/Nayaka in Kannada is to be spelt in English?. It could obviously be Naikda, Nayaka, Chollivala Nayaka, Kapadia Nayaka, Mota Nayaka, Nana Nayaka, or from 19.04.1991 Naik / Nayaka. Since Mahalingappa is not reconcilable with the already existing opinion of a co-ordinate Division Bench it would have to be treated as a decision per incuriam. So far as the Reference Bench is concerned, it had the advantage of Rangaiah where the Division Bench in 2002 rightly applied Krishnappa.
14. So far as the facts of the present case are concerned, the original grantees name was in vernacular / Kannada. How this is to be spelt in English is the abiding question that arises even before us. If we translate it as Naikda or Nayaka, then it was included in 1950 Presidential enumeration. If we are to translate it as Naika or Nayak then it is to be found in the subsequent amendment of 1991 only. The translation should have been made with greater case by the Assistant Commissioner and thereafter by the Deputy Commissioner. We are certain that the Schedule Tribe is the same, attracting only the variant spelling in the translation. Both the Assistant Commissioner as well as the Deputy Commissioner have erroneously concluded that since (Naika or Nayak) was included as a Schedule Tribe only in 1991, the grantee did not fall within the purview of the PTCL Act and erroneously restored the land to the State. This error would not have manifested had the two authorities perceived the legal position that all entries in the Constitution (Scheduled Tribes) Order 1950 original or subsequent are only elucidatory and clarificatory in nature. To sum up, after careful cogitation we are of the conviction that the view expressed by the Division Bench in Krishnappa and Rangaiah has to be preferred. In these circumstances, assuming that was included as a Schedule Tribe in 1991, we shall nevertheless answer the Reference by stating that every inclusion would have retrospective effect and would therefore revert back to the Presidential Notification of 1950.
The case be now listed before the Division Bench for further proceedings on 24.08.2012.
List of Cases Referred:
SUPREME COURT:
1. Basavalingappa Versus Munichinnappa AIR 1965 SC 1269
2. Indra Sawhney Versus Union of India 1992 Supp. (3) SCC 217
3. State of Maharashtra Versus Miland (2001) 1 SCC 4
4. Zile Singh Versus State of Haryana AIR 2004 SC 5842
5. E.V. Chinnaiah Versus State of Andhra Pradesh (2005) 1 SCC 394
6. Minerva Mills Ltd., Versus Union of India (1980) 3 Supreme Court Cases 625
DIVISION BENCH
7. Krishnappa Versus State of Karnataka ILR 1982 KAR 1310
8. Mahalingappa Versus The Assistant Commissioner, Tarikere WA.2807/1991 (D.D.7.11.1995) (unreported)
9. Virupakshappa Versus Hanumantha ILR 1994 KAR, 1270
10. T.M. Rangaiah Versus Assistant Commissioner Tiptur ILR 2002 KAR 1897
SINGLE BENCH
11. Basappa Versus Special Deputy Commissioner 1991 (2) Kar. L.J. 480
12. B. Sanjeevaiah Versus State of Karnataka 1991 (3) Kar. L.J. 28
13. Madaiah Versus Assistant Commissioner, Ramnagar 1991 (3) Kar. L.J. 377
14. Obalegappa Versus The Deputy Commissioner ILR 1999 KAR 1310
Sd/-
CHIEF JUSTICE
Sd/-
JUDGE
Per H.G. RAMESH J.,
15. I have had the benefit of reading the erudite judgment prepared by Honourable the Chief Justice. With utmost respect, I am unable to persuade myself to concur with the views expressed by His Lordship. Hence, I record my own views on the question referred to this Full Bench.
16. On a reference by a Division Bench of this Court, this writ petition is placed before this Full Bench. The question referred is as to whether, a land granted after commencement of the Constitution, to fall within the definition of granted land as defined under Section 3(1)(b) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (the Act for short), the grantee should belong to a Scheduled Caste or a Scheduled Tribe as on the date of grant or even notifying his caste as a Scheduled Caste or a Scheduled Tribe subsequent to the date of grant would also make the land a granted land?
16.1 In the context of the question referred, it is relevant to refer to the definitions of the words granted land, Scheduled Castes and Scheduled Tribes as defined under Sections 3(1)(b) & (d) of the Act; they read as follows:
3(1)(b) Granted Land means any land granted by the Government to a person belonging to any of the Scheduled Castes or the Scheduled Tribes and includes land allotted or granted to such person under the relevant law for the time being in force relating to agrarian reforms or land ceilings or abolition of inams, other than that relating to hereditary offices or rights and the word Granted shall be construed accordingly;
3(1)(d) Scheduled Castes and Scheduled Tribes shall have the meanings respectively assigned to them in the Constitution;
16.2. It is also relevant to state that Section 4 of the Act declares that any transfer of granted land made in contravention of the terms of the grant or the law providing for such grant as null & void and Section 5 of the Act provides for restoration of such land to the original grantee or his heirs.
17. There is divergence of opinion relating to the above question among the Division Benches of this Court. Hence, this reference.
17.1. A Division Bench in Mahalingappascase (W.A.No.2807/1991 D.D. 7.11.1995) has taken the view that a land to fall within the definition of granted land, the grantee should belong to a Scheduled Caste or a Scheduled Tribe as on the date of grant and notifying the grantees caste as a Scheduled Caste or a Scheduled Tribe subsequent to the date of grant will not make the land a granted land.
17.2. Two Division Benches of this Court in T.M. Rangaiah Versus AC, Tiptur Sub Division, Tiptur (ILR 2002 KAR 1897) and in S. Nachimuthu Gounder Versus H.B. Nagaraju (1999 (6) Kar L.J.1) have taken a contrary view that notifying the grantees caste as a Scheduled Caste or a Scheduled Tribe even subsequent to the grant would also make the land a granted land.
18. Re. validity of this Reference:
The learned Single Judge could not have held any of the Division Bench decisions of this Court referred to above as per incuriam in view of the law laid down by this Court vide paras 12 & 13 in Panchaxari Shidramappa Yeligar Versus S.T.S.S. (ILR 1998 KAR 3748). In view of divergent opinions of the Division Benches, the learned Single Judge was justified in referring the matter to a Division Bench in exercise of the power conferred on him under Section 9 of the Karnataka High Court Act, 1961. In this context, reference may be made to a Division Bench decision of this Court in K.H.D.C.L., Bangalore Versus D.L. Nanjundaswamy [2006 (6) KAR. L.J. 396 (DB)].
18.1. The Division Bench, noticing the divergence of opinion among the Division Benches, has referred the question to a Full Bench in exercise of the power under Section 7 of the Karnataka High Court Act, 1961 to resolve the controversy. I find no legal infirmity in the reference made by the learned Single Judge or by the Division Bench. Even otherwise, as we are examining the question referred to on merits and as there is no other Full Bench judgment on the question referred, the Validity of this reference, in my opinion, becomes academic as it is perfectly open to a Full Bench to consider the divergent opinions of the Division Benches referred to above and to lay down the correct law.
19. Re. pre-constitutional grants:
In respect of pre-constitutional grants, a Division Bench of this Court in Krishnappas case (ILR 1982 KAR 1310) has held that if the Government had granted land to any person belonging to a caste or a tribe which at the commencement of the constitution came to be included in the list of Scheduled Castes / Scheduled Tribes, such land should be regarded as coming within the ambit of the term granted land as defined in Section 3 (1)(b) of the Act. This view relating to pre-constitutional grants has held the field for the last three decades. It is a settled principle of law that a judgment, which has held the field for a long time, should not be unsettled. This is based on the principle of stare decisis.
20. Whether Mahalingappa is per incuriam?
The question now referred to this Full Bench re. post constitutional grants did not arise for consideration in Krishnappa. It is well settled that a decision is not an authority for the proposition which did not fall for its consideration. It is also a trite law that a point not raised before a Court would not be an authority on the said question. The view taken in Krishnappa re. pre-constitutional grants, in my opinion, has no bearing on matters relating to post constitutional grants; they stand on a different footing. Hence, Mahalingappa is not per incuriam for not noticing Krishnappa. Mahalingappa which was decided on 7.11.1995 was not brought to the notice of the Division Benches in Rangaiah&Nachimuthu which were subsequent to Mahalingappa. Therefore, in my opinion, all the judgments subsequent to Mahalingappa which dealt with post constitutional grants by taking a view contrary to the one taken in Mahalingappa are per incuriam.
21. Re. post constitutional grants:
Coming to the question referred to this Full Bench which relates to post constitutional grants, the definition of granted land quoted above clearly state that granted land means any land granted by the Government to a person belonging to any of the Scheduled Castes or the Scheduled Tribes. The plain language employed therein suggest that the grantee should belong to any of the Scheduled Castes or Scheduled Tribes as on the date of grant. In this context, it is relevant to refer to the following observations made by the Bombay High Court in Lachmanna Malanna Alurwar Versus Mah. Revenue Tribunal [(1992)94 BOM.L.R. 612] while considering a similar kind of a matter under the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974:
7. In other words, a person could be a member of the Scheduled Tribe as declared by the Presidential Order under Article 342 of the Constitution. The same Presidential Order was declared at the commencement of the Constitution and thereafter amended from time to time and ultimately stood further amended by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976 which as stated above came into force on 1st November, 1975 when the community Pradhan of respondents No.3 and 4 was declared as a Scheduled Tribe. Thus, on the day of the transaction of sale of the land in question on 11th May, 1962, respondents Nos.3 and 4 were not the members of Scheduled Tribe. They could not be given the status of being members of Scheduled Tribe retrospectively as was held by the Division Bench of this Court (B.N. Deshmukh and P.V. Nirgudkar, JJ.) in the case of Tukaram Laxman Gandewar Versus Piraji Dharamji Sidarwar, 1989 Mh. L.J. 815 in Writ Petition No.627-A of 1982 decided on 6.2.1989 at the Aurangabad Bench
(Underlining supplied)
22. In my opinion, any subsequent inclusion of any caste or tribe by Parliament to the lists of Scheduled Castes or Scheduled Tribes notified by The President under Articles 341(1) or 342(1) of the Constitution of India, whether the inclusion is elucidatory, clarificatory or otherwise, cannot have any retrospective effect unless it is expressly stated so in the amending act of the Parliament. This is because of its consequences on third parties legally vested rights in matters relating to immovable properties, in matters of public employment etc. Therefore, the view taken by this Court in Rangaiah & other cases that a subsequent inclusion of a caste or a tribe to the lists of Scheduled Castes / Scheduled Tribes will have retrospective effect is not correct in law.
22.1. On this aspect, it is relevant to refer to the following observations made by a Division Bench of the Bombay High Court in Tukaram L.Gandewar Versus Piraji D. Sidarwar [(1989) 91 BOM.L.R.338] in the context of an enactment similar to the Act in question :
10. The argument of Shri Dhuldhwaj that the provisions of Amendment Act No.108/1976 includes Naikada Caste in Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, and will have to be given retrospective effect to confer the benefit to the tribal under section 36A of the Maharashtra Land Revenue Code. It is not possible to accept this contention because in order to give retrospective effect there must be intention of the Parliament or Legislature expressed in so many words or such intention must be gathered by necessary implication from the language used therein. The wording of the Amendment Act is clear and there is nothing expressed regarding retrospective effect nor it is possible to gather such intention by necessary implication.
Reference can be made in this connection to the decision of Madhya Pradesh High Court in Mangilal and others Versus Registered Firm Mittilal Radheylal Restogi and Others (AIR 1978 M.P.160), where the provisions of this Amendment Act No.108/1976 were considered and it is held that the Amendment Act is not retrospective in effect.
(Underlining supplied)
22.2. I may further add that the view in Rangaiahis also not correct for the reason that it will not promote the constitutional validity of the Act as it will render the sale by a grantee illegal, whenever the grantees caste/tribe is notified as a Scheduled Caste or a Scheduled Tribe, notwithstanding the fact that the sale was perfectly valid and legal in all respects as on the date of sale. To put it differently, this view will have the effect of rendering the title of a transferee void, though it was not voidable at the time of sale. This is violative of the constitutional guarantees as held by the Honourable Supreme Court in Manchegowda (AIR 1984 SC 1151).
22.3. It is relevant to refer to the approach made by the Honourable Supreme Court in Manchegowdato prevent violation of the rights guaranteed by the Constitution by saving certain transfers, by construing Section 4 of the Act as not to have the effect of rendering void the title of any transferee which was not voidable at the date of the commencement of the Act. The following observations are relevant:
24. Since at the date of the commencement of the Act the title of such transferees had ceased to be voidable by reason of acquisition of prescriptive rights on account of long and continued user for the requisite period, the title of such transferees could not be rendered void by virtue of the provisions of the Act without violating the constitutional guarantee. We must, therefore, read down the provisions of the Act by holding that the Act will apply to transfers of granted lands made in breach of the conditions imposing prohibition on transfer of granted lands only in those cases where the title acquired by the transferee was still voidable at the date of the commencement of the Act and had not lost its defeasible character at the date when the Act came into force. Transferees of granted lands having a perfected and not a voidable title at the commencement of the Act must be held to be outside the pale of the provisions of the Act. Section 4 of the Act must be so construed as not to have the effect of rendering void the title of any transferee which was not voidable at the date of the commencement of the Act.
(Emphasis supplied)
22.4. It is also relevant to note that there is no provision in the Act for payment of any compensation to such bona fide purchasers whose title to the land was not voidable at the time of sale.
23. In the result, I answer the reference as follows :
In respect of post constitutional grants, a land to fall within the definition of granted land as defined under Section 3(1)(b) of the Act, the grantee should belong to a Scheduled Caste or a Scheduled Tribe as on the date of grant and notifying the grantees caste as a Scheduled Caste or a Scheduled Tribe subsequent to the date of grant will not make the land a granted land.