JAYANNA Vs. DEPUTY COMMISSIONER

JUDGEMENT

(1.) (for himself and on behalf of V. Jagannathan, J.):- 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 Scheduled Castes and Scheduled 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 1-1-1979.

(2.) THE learned single Judge had analyzed the decision in Obalegappa v. The Deputy Commissioner, ILR 1999 Kar 372 delivered by a single Bench, as also the three Division Bench judgments in Krishnappa v. State of Karnataka, ILR 1982 Kar 1310, Mahalingappa v. The Assistant Commissioner, Tarikere, WA No. 2807/1991 decided on 7-11-1995 (unreported) and T. M. Rangaiah v. Assistant Commissioner Tiptur, ILR (2002) 1 Kar 1897. 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 28-1- 2011 the assigned Division Bench, while ostensibly expressing agreement with the Mahalingappa view, 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 discloses that both the Division Bench views were respected by the Reference Court. It is in these circumstances, that the legal conundrum has arisen.

(3.) THE position changes so far as the Division Bench is concerned. While it always had the option of declaring the unreported Mahalingappa as per incuriam, it nonetheless was empowered to refer the matter to a Full Bench under Section 7 of the High Court of Karnataka 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 Krishnappa not having been cited before Mahalingappa, the controversy needs to be clarified.