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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 Caste' 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 as 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 d'etre behind the selection of Schedule Castes 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 land 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 Scheduled Castes/Scheduled Tribes, or as an agrarian reforms or land ceilings or abolition of Inams; and the terms Scheduled 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 Caste/Schedule 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 Scheduled 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 Scheduled Caste/Scheduled Tribe. The canons of statutory construction compel the Courts to prefer an interpretation which conduces implementation of the ethos of an enactment. 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 -Vs- State of Andhra Pradesh (2005) 1 Supreme Court Cases 394 is extremely elucidatory. Their Lordship's 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 -Vs- Union of India 1992 Supp (3) SCC 217 cannot be extrapolated to Scheduled Caste/Scheduled Tribes; tinkering with the enumeration in the Presidential Order 1950 even by State Legislature is unconstitutional.

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 nomenclatured as 'Saguvali Chit', after translation from Kannada reads thus:

10. It is with this short preface that we shall analyse the Single Judge decision in Obalegappa to 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 the 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 Krishnappa or 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 no finding by the Revenue Authorities as to whether the Grantee was a Schedule 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 uncontrovertably 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.

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 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 coordinate 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.