K. Sreedhar Rao, A.C.J.

1. The material facts disclose that, the land bearing sy.No.13 (New No.107) of H.Rangapura Village, Tarikere Taluk, Chickmagalur, measuring 3 acres each was granted in the year 1971 to respondents 4 and 5. One Kalleshappa said to be in possession of the said land, mortgaged the said property in favour of Canara Bank, Tarikere and took loan. Upon default, the Bank filed a suit in OS 55/78 for recovery of the mortgaged money. The property was notified for public auction by Court sale. The appellant purchased the said property in the public auction on 13.7.1984.

2. Respondent nos.4 and 5 made an application under Sections 4 and 5 of the Karnataka SC & ST (Prohibition of Transfer of Certain Lands) Act, 1978 (for short `the PTCL Act’). The Assistant Commissioner upon hearing both the parties found that the purchase made by the appellant herein is in contravention of the provisions of the PTCL Act and therfore, forfeited the land and directed restoration to respondent nos. 4 and 5. The Deputy Commissioner in Appeal No.PTL 10/2009-10 and PTL 11/2009-10 set aside the order of the Assistant Commissioner and rejected the applications of respondent nos. 4 and 5.

3. Respondent nos. 4 and 5 filed write petitions before this Court challenging the orders of the Deputy Commissioner. It was argued before the learned Single Judge that Section 7 of the Act exempts the auction sale held by the Bank and that the purchaser gets the valid title and that the provisions of the Act would not apply to such transaction. Learned Single Judge rejected the contention and held that the exemption under Sec.7 does not apply to the transaction in question. Therefore, allowed the writ petition.

4. In Write petition, it was contended that, respondent nos. 4 and 5 have consented for mortgage and have signed the mortgage deed and therfore, on the basis of the said mortgage deed it becomes evident that respondent nos. 4 and 5 have mortgaged the land or consented for mortgaging the land in favour of the Bank. Therefore, on the basis of said fact, Section 7 would apply and respondent nos. 4 and 5 cannot challenge the sale held in favour of the appellant in Court auction. This fact was not canvassed before the Assistant Commissioner nor before the Deputy Commissioner. It appears for the first time urged in the writ petition by the appellant herein. The appellant aggrieved by the order of the learned Single Judge has filed this writ petition.

5. The counsel for the appellant strenuously contened that there was no transfer made by respondent nos. 4 and 5 in favour of Kalleshappa as envisaged under the Act. Therefore, the provisions of the Act do not apply. In this regard, a reference is made to the petition/application field by respondent nos. 4 and 5 before the Assistant Commissioner under Section 4 and 5 of the PTCL Act which reads thus:

“Application under Section 4 and 5 of SC/ST Act, 1978 the applicant begs to submit as follows:

1. That for the purpose of service of notices etc., from this Honourable Court the addresses of the parties as stated in the cause title. The additional address of the petitioner that may be served on his counsel Sri K.R.Gurupaappa, Advocate, Tarikere.

2. That the land bearing SY.No.13 (New No.107) measuring 3 acres of H.Rangapura, Kasaba Hobli, Tarikere Taluk, was granted under darkasth to the petitioner under order of the Tahsildar, Tarikere vide NO.DARK S.L.28/70-71 dated 24.7.1971 with a condition that the land should not be alienated for a period of 15 years.

3. That the petitioner was not mortgaged the granted land to any bank manner.

4. That the respondent is in possession and enjoyment of the said granted land on the strength of M.R.22/84-85, the said M.R. 22/84-85 is in favour of the respondent, it is not known to the petitioner. The respondent played the fraud in this behalf; the petitioner has no Knowledge about all these things.

5. That the Munisff Court, Tarikere has no power to hand ov