Point of law : in case of a diverted land, the requirement of obtaining the permission under Section 4(2) of the Act does not arise as the permission has to be obtained only in respect of 'granted land' and the land on conversion no longer remains 'granted land.

ORDER :

The reference to this bench emanates from order dated 19.05.2021 passed by the learned Single Judge. The factual backdrop in which the reference has been made to this Bench needs mention.

2. The petitioners are the persons belonging to the schedule caste and lineal descendants of Late Konda alias Kondappa, namely father of petitioner Nos.13 and 14 and grandfather of remaining respondents. Aforesaid Late Konda was granted land bearing Survey No.45 measuring 5 acres and 3 guntas situate at Village Meenukunte, Jala Hobli, Devanahalli Taluk, vide Government Order dated 31.12.1927. The order of grant contained a condition with regard to non-alienation of land. On death of aforesaid Shri Konda, the land devolved on the petitioners. The respondent No.3 purchased the lands in question vide five registered sale deeds dated 31.10.1996 from the petitioners without obtaining prior permission from the Government under Section 4(2) of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter referred to as ‘PTCL Act’).

3. The petitioner No.1 filed an application before the Assistant Commissioner under Section 5 of the PTCL Act for restoration of the land. The Assistant Commissioner by an order dated 10.06.2008 held the sale deeds executed in favour of respondent No.3 as null and void and directed restoration of land in favour of the petitioners. The respondent No.3 thereupon filed an appeal before the Deputy Commissioner against order dated 10.06.2008, the Deputy Commissioner by an order dated 04.08.2010 inter alia held that the order of grant does not carry any restriction of alienation and the land in question was granted to predecessor of the petitioners, accordingly the appeal was allowed. The petitioner No.1 challenged the aforesaid order in a writ petition, which was decided by an order dated 28.01.2013 and the matter was remitted to the Assistant Commissioner for decision afresh as the nature of grant, date of grant and conditions of grant are to be verified. The Assistant Commissioner thereafter, by an order dated 06.04.2015 dismissed the application for restoration submitted by the petitioners. The petitioner preferred an appeal before the Deputy Commissioner who by an order dated 07.10.2016 dismissed the appeal. The aforesaid orders are challenged by the petitioners in this writ petition.

4. The learned single judge by an order dated 19.05.2021 noticed the following decisions :

(i) Kariyappa @ Kariyappa Vs. The A.C., Hassan, ILR 1997 Kar 1723;

(ii) Smt. Muniakkayyamma Vs. The Assistant Commissioner, 2005 (4) KCCR 2953.

(iii) The Tibetan Children’s Village Vs. Deputy Commissioners and others, W.P. No. 15802/2007 dated 07.04.2019.

(iv) Sri. Kumar and others Vs. State of Karnataka and Ors, in W.P. No.21977/2013 decided on 21.12.2020.

(v) Smt. Ningamma Vs. The Tibetan Children’s Village, W.A. No.4092/2017 dated 09.04.2019.

It was held that divergent views have been taken and the matter was referred for consideration by a larger bench.

5. Learned counsel for the petitioner while inviting the attention of this court to Section 95(2) of the Act and Section 4(2) of the PTCL Act submitted that both the aforesaid provision operate in different fields and the parameters for consideration of applications under both the provisions are different. It is further submitted that designated authorities under both provisions are different and therefore, the permission granted by the Deputy Commissioner under Section 95(2) of the Act cannot be construed as permission granted by the Government under Section 4(2) of the PTCL Act. It is also submitted that Section 4 of the PTCL Act begins with a non obstante clause and therefore, full effect has to be given to the provisions contained in Section 4(1) of the PTCL Act. It is urged that Section 4(1) of PTCL Act cannot be construed in the manner which defeats the object of Section 95(2) of the Act and vice versa. It is also urged that origin of the lan