Judgment :- 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. 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 over the possession of the granted land under M.R.22/84-85 and in any manner to the respondent, the said act of the Munisff Court Tarikere is hit by Section 4 and 5 of the SC/ST PTCL Act, 1978. 6. 5. That the Munisff Court, Tarikere has no power to hand over the possession of the granted land under M.R.22/84-85 and in any manner to the respondent, the said act of the Munisff Court Tarikere is hit by Section 4 and 5 of the SC/ST PTCL Act, 1978. 6. That this respondent have no right title interest and enjoyment over the said granted land without obtaining the previous permission from the government and the said transaction is within the non-alienation period of 15 years. 7. That the petitioner is the SC/ST people by Adi Karnataka Caste, he working as an agriculture coolie, land less and he have no means for his livelyhood and the petitioner has no wordly knowledge of the legal possession of the land granted to him and he is poor depressed class people and he illiterate person. 8. The respondent is much powerful in money and muscular power and also having sufficient and more landed properties. Wherefore, it is humbly prayed that this Hon’ble Court be pleased to restore the said granted land in Sy.No. measuring 3 acres of H.Rangapura Village, Kasapa Hobli, Tarikera Taluk, to the petitioner with free from all encumberances”. 6. It is not the contention of respondent nos. 4 and 5 that they had transferred the land in favour of Kalleshappa or inducted Kalleshappa in to lawful possession. The petition averments disclose that Kalleshappa entered possission and by playing fraud mortgaged the land to the Bank While borrowing the loan. 7. The provisions of the Act provide that only if a transfer is made by the grantee in violation of grant, then only the grantees can invoke Sections 4 and 5 of the Act for resumption and restoration of the land. In the absence such material, it was impermissible on the part of the Assistant Commissioner to entertain the application under Section 4 and 5 of the Act. 8. Sri Hosmath, learned counsel for respondent nos. 4 and 5 strenuously submitted that the mortgage effected by Kalleshappa in favour of the Bank was fraudulent, since it was granted land, unless the grantees have mortgaged in favour of the Bank, the exemption under Section 7 of the Act, Bank cannot be availed. The land being a granted land, the Assistant Commissioner has jurisdiction to exercise power under Section 4 and 5 to initiate resumption proceedings and restore the land to the grantees. 9. The land being a granted land, the Assistant Commissioner has jurisdiction to exercise power under Section 4 and 5 to initiate resumption proceedings and restore the land to the grantees. 9. Sri B.Veerappa, learned Government Advocate submits that, one Kalleshappa who was in possession of the land had mortgaged it to the Bank as tress-passer, he had no right to mortgage the granted land. Therefore, the order of the Assistant Commissioner is just and valid. Accordingly supported the findings of the learned Single Judge. 10. The provisions of Section 4 of the Act reads as follows: “4. Prohibition of transfer of granted lands:- (1) Notwithstanding anything in any law, agreement, contract or instrument, any transfer of granted land made either before or after the commencement of this Act, in contravention of the terms of the grant of such land or the law providing for such grant, or sub-section (2) shall be nulland void and no right, title or interest in such land shall be conveyed or be deemed ever to have conveyed by such transfer. (2.) No person shall, after the commencement of this Act, transfer or acquire by transfer any granted land without the previous permission of the Government. (3.) The provisions of sub-sections (1) and (2) shall apply also to the sale of any land in execution of a decree or order of a Civil Court or of any award or order of any other authority.” 11. The `Transfer’ is defend under Section 3 (e) in the following manner: “Transfer’ means a sale, gift, exchange, mortgage with or without possession), lease or any other transaction not being a partition among members of a family or a testamentary disposition and includes the creation of a charge or an agreement to sell, exchange, mortgage or an lease or enter into any other transaction.” 12. Section 4 of the PTCL Act pre-supposes that there should be a transfer of the granted land made either before or after the commencement of the Act, in contravention of the terms of the grant in which event such transfer is declared null and void and that the transferee of such granted land shall have no right, title or interest in the land. The word `Transfer’ is defind to be sale, gift, exchange, mortgage, lease or any other transaction other than the transaction petition. The word `Transfer’ is defind to be sale, gift, exchange, mortgage, lease or any other transaction other than the transaction petition. The combined reading of the PTCL Act, it becomes explicit that any transfer made by the grantee or by the legal heirs in contravention of the terms of grant would make such transfer null and void and the Assistant Commissioner will have jurisdiction to proceed for resumption of the land. In the present case, it is not the contention of respondent nos. 4 and 5 that they have transferred the land as defined under Section 4 and 5 that they have transferred the land as defined under Section 4 and 5 of the PTCL Act. It is not even the case of appellant that they have inducted Kaleshappa into lawful possession by any oral transaction. It discloses that Kalleshapppa is only a trespasser and he, by playing fraud got the revenue entries created in his favour and mortgaged the land in favour of Canara Bank. Since there is no transfer effected as required under the PTCL Act in favour of Kalleshappa whatsoever therefore the claim of Respondent Nos. 4 and 5 cannot be a subject matter for consideration under the provisions of the PTCL Act. Respondent nos. 4 and 5 if they have any valid title in respect of the land, they have to vindicate their right for seeking possession before the Civil Court in accordance with law. 13. In that view of the matter, the appeals are allowed.