Judgment :- 1. This writ petition has come up for further orders with the understanding that it may be taken up for disposal as was the tenor of the order passed on 15.6.2011, directing the matter to be listed before the court today after admitting the writ petition by issue of rule and permitting the respondents whether represented through counsel or otherwise to file objections, if any, to the main petition, in the meanwhile. 2. Petitioners are persons claiming as legal heirs of a grantee one Smt. Narasamma-a person belonging to depressed class community in whose favour had been granted an extent of 2 acres of land in Sy.No.11 of Pattanagere Village, Kengeri Hobli, Bangalore South Taluk in the year 1939-40 and such land had been subsequently sold by the grantee, Smt. Narasamma in favour of third respondent in this petition in the year 1972 to be precise on 23.2.1972 as per registered sale deed and after receiving consideration for the same. 3. However, the transfer was in violation of the condition of the grant as imposed statutorily on such grants in favour of persons belonging to depressed class which held the field during the relevant period, which Sri. Omkumar, learned Additional Government Advocate points out is one of prohibition forever from transferring such land in terms of rule 43[8] of the rules framed under section 233 of the Mysore Land Revenue Code, 1888. After the Karnataka Scheduled Caste & Scheduled Tribe [Prohibition of Transfer of Certain Lands] Act, 1978 [for short ‘the Act’] came into force, in terms of section 4 of the Act, such transaction gets invalidated under section 4 of the Act which is attracted to a transaction of this nature and reading as under: “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 null and 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. (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.” ensures voiding of sale transaction and also a fiction is created as though nothing was transferred in favour of the transferee and follow up action was required to be taken by the Assistant Commissioner in terms of section 5 of the Act reading as under: “5. Resumption and restitution of granted lands:- (1) Where, on application by any interested person or on information given in writing by any person or suo motu, and after such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under sub-section (1) of Section 4, he may:- (a) by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed: Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being hear; (b) restore such land to the original grantee or his legal heir. Where it is not reasonable practicable to restore the land to such grantee or legal heir, such land shall be deemed to have vested in the Government free from all encumbrances. The Government may grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accordance with the rules relating to grant of land. (1-A) After an enquiry referred to in sub-section (1) the Assistant Commissioner may, if he is satisfied that transfer of any granted land is not null and void pass an order accordingly. (2) Subject to the orders of the Deputy Commissioner under Section 5-A, any order passed under sub-sections (1) and (1-A) shall be final and shall not be questioned in any court of law and no injunction shall be granted by any court in respect of any proceeding taken or about to be taken by the Assistant Commissioner in pursuance of any power conferred by or under this Act. (3) For the purposes of this section, where any granted land is in the possession of a person, other than the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer which is null and void under the provisions of sub-section (1) of Section 4.” by holding an enquiry for the purpose of resuming the transferred land to the State and to restore it to the grantee or legal heirs of the original grantee. 4. Though such a duty is case on the Assistant Commissioner under section 5 of the Act, to act on his own or at the behest of the grantee or legal heirs of the grantee, it appears the practice is that the Assistant Commissioner seldom acts to perform his duty, but waits for either the grantee or legal heir of the grantee to petition him and activate him into action for holding an enquiry under section 5 of the Act! 5. Though it transpires that the grantee did take such steps way back in the year 1979 itself, it only resulted in the Assistant Commissioner dropping the proceedings by erroneously recording a finding that the subject land had been transferred beyond a period of thirty years from the date of the grant and therefore the transaction is saved as the provisions of the Act are not attracted, and passed orders to this effect in the year 1985 by which time the original grantee had died in the year 1984. 6. Quite obviously that was a setback to the grantee and the legal heirs of the grantee but there was a lull thereafter and for whatever reasons the legal heirs of the original grantee woke up very belatedly, only in the year 2004 and thought it proper to prefer an appeal before the Deputy Commissioner under section 5-A of the Act for getting over the order passed by the Assistant Commissioner dropping the proceedings and under the impugned order, the Deputy Commissioner has dismissed the appeal holding that the appeal is highly belated and though it proper to dismiss the appeal. 7. 7. It is under such circumstances, the present writ petition and though writ petition reached this court in the year 2004, it has been meandering slowly and has reached the stage of passing final orders only to day as in the interregnum it appears the third respondent had transferred subject land to fifth respondent as per the statement filed by the third respondent before the court i.e., transfer effected by the third respondent in favour of the fifth respondent on 28.8.2003 whereas on the other hand the writ petitioners were blissfully content to go ahead with the writ petition with the fourth respondent being on record perhaps may be under the impression that the fourth respondent is one such transferee etc., an application came to be filed subsequently seeking for impleading the subsequent purchaser as a party respondent to this petition and this court had directed issue of notice to the proposed respondent. 8. An attempt to effect service of notice on the fifty respondent-person in possession of the subject land as indicated by the third respondent before this court was an Herculean task for the writ petitioners as it has come on record that the fifth respondent who it appears is also a developer was not easy to be located and was quite adept at evading service of court notice and the orders passed by this court in this regard from 4.10.2007 upto 15.6.2011 reading as under is testimony for this state of affairs. “BSPJ: 04.10.2007 Counsel for the petitioner submits that he has filed an application praying to implead another person on record as additional respondent. Office to verify and list the application. MSGJ: 07.12.2007 Issue notice to proposed respondent on IA I/07. RVMJ: 23.10.2008 One week time is granted to do the needful. RVMJ: 11.02.2009 One week to do the needful. RMRJ: 18.06.2009 This application is by the writ petitioners who are seeking leave of the Court to cause notice of I.A. I/2007 on the proposed respondent by way of paper publication in Udayavani and Samyuktha Karnataka Kannada daily newspaper, Bangalore Edition. 2. The learned counsel for the applicants submits that though relief sought for is for substituted service by way of paper publication nevertheless in two newspapers, in this it may be restricted to one newspaper circulating in the said area i.e., Udayavani. 3. Heard the learned counsel for the applicants. 4. Perused the pleadings. 2. The learned counsel for the applicants submits that though relief sought for is for substituted service by way of paper publication nevertheless in two newspapers, in this it may be restricted to one newspaper circulating in the said area i.e., Udayavani. 3. Heard the learned counsel for the applicants. 4. Perused the pleadings. For the reasons stated therein, application is allowed. Applicants are permitted to cause notice of the I.A. 1/2007 on the proposed respondent by way of substituted service by publication in Udayavani Kannada daily newspaper, Bangalore Edition, on or before 29.06.2009, fixing the date of hearing as 15.7.2009. RMRJ: 08.07.2009 Memo dated 7.7.2009 is allowed. The order dated 18.6.2009 in Misc. W. 5463/2009 is modified fixing the date as 20.7.2009 to cause paper publication and fixing the date of hearing as 3.8.2009 and in all other respects shall remain unaltered. RMRJ: 03.08.2009 Registry to print the name of the proposed respondent. List on 4.8.2009. RMRJ: 04.08.2009 The paper publication in “Udayavani”, B’lore edition for service of notice on R4 a resident of Jayanagar, Bangalore, is unacceptable. The paper publication is rejected. Petitioner to take out steps for securing service of notice on proposed Respondent No.5. Having noticed the carrying out of amendment by scribbling on the first page of the memorandum of writ petition. The petitioner is directed to file an amended petition. Steps within one week. HNNDJ: At request one week’s time is granted. ABHJ: 17.8.2010 One week time is granted to do the needful. ABHJ: 11/11/2010 One week time is granted to do the needful SANJ: 10/03/2011 None appears for the petitioner. Post after two weeks. DVSKJ: 15-06-2011 ORDERS ON IA I/2007 This is an application filed by the writ petitioners seeking for impleadment of one M. Ravishankar, S/o late Muniswamy, Land Developer, R/at N.22nd Cross, 10th Main, Jayanagar 3rd Block, Bangalore-11, as the 5th respondent to the writ petition, in view of the version of the 3rd respondent in the writ petition as contained in Counter statement dated 9.8.2004 reading as under:- “6. This respondent submits that the petitioners have filed the above writ petition out of mala fides, prejudice and greed. This respondent submits that the petitioners have filed the above writ petition out of mala fides, prejudice and greed. This respondent after purchase has improved the land by spending huge sums of money, and has sold the land to one M. Ravishankar, S/o Late M. Muniswamy, Land Developer, 22nd Cross Road, 10th Main, III Block, Jayanagar, Bangalore 11, under registered sale deed dated 28.08.2003. He has not sold the land to Sri Gangadhar, who is wrongly impleaded as fourth respondent in this writ proceedings. The petition is bad for non-joinder of proper parties.” 2. Application though filed in the year 2007 has ripened for orders only now, it appears notice issued to the proposed respondent could never be served on the respondent hitherto. 3. Submission of Sri. Jagannatha, learned counsel for the petitioners is that the proposed respondent has meticulously avoided and in fact was evading receiving notice and with great effort and acumen the petitioners were successful in serving the notice on the proposed respondent only on 8.1.2001 as per the acknowledgment received in the registry for having served Sri. M. Ravishankar, S/o Late Muniswamy. 4. Respondent No.5 though served is not represented by counsel nor is present before the Court. 5. Sri. Vivekananda, learned counsel appearing for 3rd respondent has no objection for ordering the application. 6. Sri M. Srinivas, learned counsel who has filed power for 4th respondent submits that 4th respondent is unnecessary party to this proceeding and he is unnecessarily dragged into the proceedings. He further submits that either the writ petitioners should delete the name of 4th respondent or writ petition should be dismissed as against 4th respondent as 4th respondent has no stake in the subject matter. 7. On such submission, Sri. Jagannatha, learned counsel for the petitioners has filed a memo before the Court seeking permission to delete the name of the 4th respondent from the array of parties. 8. Memo received on record. Respondent No.4 deleted from the array of respondents at the risk of the petitioners. 9. I.A.I/2007 is ordered as there is no opposition from any quarter. Learned counsel for the petitioners is permitted to amend the cause-title to indicate this position. 10. Issue rule. 11. It is open to the respondents to file statement of objections, if any, within two weeks, on issue of rule in this petition, either represented by counsel or otherwise. 9. I.A.I/2007 is ordered as there is no opposition from any quarter. Learned counsel for the petitioners is permitted to amend the cause-title to indicate this position. 10. Issue rule. 11. It is open to the respondents to file statement of objections, if any, within two weeks, on issue of rule in this petition, either represented by counsel or otherwise. 9. When the matter is listed today and taken up for disposal, Sri. Vivekananda, learned counsel for the third respondent submitted that the third respondent though transferred the subject land in favour of the fifth respondent way back in the year 2003, the third respondent is nevertheless evincing interest to defend the proceedings as third respondent in terms of the sale deed executed in favour of the fifth respondent has the moral and legal responsibility to see that the fifth respondent gets valid, legal title to the property and therefore he is keen to defend the proceedings. 10. While Mr. Vivekananda, learned counsel for the third respondent requests for a short accommodation, to again loop up the law and to make further submissions, fifth respondent who is the person who it is said to be presently in possession of the subject land, even as per the version of the third respondent, has blissfully remained absent before this court and is non-responsive, typical of any developer who acquires any land, only to make a profit and if has already made the profits very silently and cleverly leaves the scene not to be seen thereafter! 11. No wonder in such state of affairs, 5th respondent is not surfacing before this Court either by himself or through the counsel but has blissfully avoided coming before the Court in spite of notice being served on the 5th respondent not merely through paper publication once earlier, but yet again by personal service, two years after the paper publication. 12. It is not as though the 5th respondent is ignorant of the proceedings. When the 3rd respondent-vendor is before the Court all along, it is obvious that the 5th respondent is equally aware of all this proceedings before this court, but has very cleverly remained distant from the proceedings for whatever reasons the 5th respondent may have. 12. It is not as though the 5th respondent is ignorant of the proceedings. When the 3rd respondent-vendor is before the Court all along, it is obvious that the 5th respondent is equally aware of all this proceedings before this court, but has very cleverly remained distant from the proceedings for whatever reasons the 5th respondent may have. The further submission of Sri Vivekananda, learned counsel for the 3rd respondent is that the 5th respondent has already developed the lands is yet another revelation to indicate that the 5th respondent was more busy in development aspect than to come before the Court and respond to the notice issued by this Court, but is quite prepared to take his chances, may be perhaps at the cost and peril of innocent third party buyers who get trapped by such developers. 13. Be that as it may, the present examination is only about the correctness and legality of the impugned orders passed by the statutory functionaries on the touchstone of the provisions of the Act and the consequence that follow due to the operation of Section 4 of the Act in respect of any transaction involving a granted land, which has been transferred in violation of the conditions of the grant. 14. All learned counsel appearing for the parties either for the writ petitioner or the 3rd respondent or the learned HCGP appearing for the statutory respondents did not dispute that the transaction by the grantee in the year 1973 is one in violation of the condition of grant as is statutorily imposed in terms of Rule 43(8) of the Act as noticed above. 15. When once this factual position is definite and therefore applicability of Section 4 of the Act is not in dispute, the legal consequence of voiding such a transaction happens automatically by the operation of law. The only duty that is required to be performed by an Asst. 15. When once this factual position is definite and therefore applicability of Section 4 of the Act is not in dispute, the legal consequence of voiding such a transaction happens automatically by the operation of law. The only duty that is required to be performed by an Asst. Commissioner is to take follow-up action under Section 5 of the Act by holding an enquiry for the purpose of resuming the land from the person in possession of the land, who is currently in possession of the land, of course after providing an opportunity to such current possessor of the land, so that such a person becomes aware that the land is being resumed to the State for the benefit of the original grantee or the legal heirs of the original grantee. 16. It is be borne in mind that the scheme of the Act does not envisage the Asst. commissioner to act for invalidating a transaction, but that happens by the operation of law and what the Asst. Commissioner is required to do is only to resume the land, on being satisfied that such legal consequence has resulted in terms of the provisions of Section 4 of the Act. 17. Unfortunately the revenue department which is flooded with corrupt, rampantly corrupt officials, functions with utmost waywardness and in an erratic manner. The revenue officials whether at the lowest level or at the highest level exercise the statutory powers and pass orders on various other considerations and seldom action consonance with the provisions of the statute and the law. In fact the revenue officials are a law unto themselves and it is high time that the State Government bestows its attention to the quixotic way of functioning of revenue officials who pass orders day in and day out and to reign them in, if rule of law is to prevail. 18. In spite of several indictments of the State Government in this regard by this Court, the State Government is very slow to react and such erroneous, illegal orders passed by wayward revenue officials keep flocking this Court everyday at the instance of the aggrieved persons. 19. An Asst. 18. In spite of several indictments of the State Government in this regard by this Court, the State Government is very slow to react and such erroneous, illegal orders passed by wayward revenue officials keep flocking this Court everyday at the instance of the aggrieved persons. 19. An Asst. Commissioner is required to act even suo motu under section 5 of the Act and in such a situation question of delay, if any in seeking action on the part of the Assistant Commissioner either by the grantee or legal heirs of the grantee cannot affect the first order to be passed by the Asst. Commissioner for resumption of the land to the State Government as it is only a follow-up action, as a sequel to the operation of the provisions of Section 4 of the Act. The provisions of Section 5-A of the Act, prescribing a period of limitation for filing an appear and the Deputy Commissioner dismissing the appeal on the ground of delay alone as the appeal is a belated appeal is nothing but a development, which is at cross purposes with the purpose and object of the Act, which is essentially achieved in Section 4 of the Act. 20. In fact if the object of the Act should be effectively achieved even the Deputy Commissioner should have been bestowed with suo motu powers to rectify a situation, whereas in the present case, the Asst. Commissioner has either overlooked to notice the correct legal position whether bona fide or for the other considerations or has remained inactive for long years, though the statute enjoins a duty on the Asst. Commissioner in the first instance to act even suo motu in terms of provisions of Section 5 of the Act in respect of transactions voided in Section 4 of the Act. 21. Quite naturally the Deputy Commissioner who found that the appeal against the order of the Asst. Commissioner had been preferred after a lapse of 18 years of the passing of the order by the Asst. Commissioner thought the appeal is highly belated and therefore dismissed the appeal in terms of his order dated 8.06.2004 (copy produced as Annexure A to the writ petition), and in this background, this writ petition is before this Court praying for relief. 22. Commissioner thought the appeal is highly belated and therefore dismissed the appeal in terms of his order dated 8.06.2004 (copy produced as Annexure A to the writ petition), and in this background, this writ petition is before this Court praying for relief. 22. The Act is a piece of social welfare legislative measure by the State and any order to be passed in proceedings to be taken under the Act are all for the purpose of achieving this object for the implementation of the provisions of the law. 23. Unfortunately, the assumption whether at the level of the executive or even at the level of the judiciary, steeped in traditional English concepts and legal provisions accustomed only with the adversary English legal system of the British legacy is slow to adopt to the constitutional scheme of judicial proceedings as envisaged under the Constitution of India and even while exercising writ jurisdiction under Articles 226 and 227 of the Constitution of India, High Courts inevitably tend to examine orders and actions of administrative and statutory functionaries on the touchstone of legal principles as evolved under an adversary English legal system! 24. This basic fallacy has resulted in a good number of social welfare legislative provisions being defeated before the Courts whether the object and attitude is more to save anything in favour of a person who had it earlier than to see the person losing something who he had already acquired whether by any overbearing act of a private individual or even by an act of a State in the sense, by the arbitrary exercise of the power and the same principle, while is equally applied when the desired result is achieved by the operation of a law made by the competent legislature! 25. In such a situation, the scope for examination is only as to whether the enabling statutory provisions is one conforming to the constitutional requirements or otherwise. 26. In the present situation, provisions of the Act having already been held to be within the constitutional parameters as opined by the Supreme Court in the decision of MANCHEGOWDA Vs. 25. In such a situation, the scope for examination is only as to whether the enabling statutory provisions is one conforming to the constitutional requirements or otherwise. 26. In the present situation, provisions of the Act having already been held to be within the constitutional parameters as opined by the Supreme Court in the decision of MANCHEGOWDA Vs. STATE OF KARNATAKA reported AIR 1984 SC 1151 , there is no scope for any further examination on this aspect whether by this court or other Courts in this Country to have a re-look into the reasonableness of the law but scope is only for an examination of the individual orders passed by the revenue authorities. The scope for examination even by this Court in respect of the orders passed by the revenue authority is only with regard to the nature of enquiry held under Section 5 of the Act for resumption of the land and not for confirming or interfering or re-examining a finding of fact recorded by either Asst. Commissioner or the Deputy Commissioner as though it is a wrong order passed by the Asst. Commissioner or in further appeal by the Deputy Commissioner, which achieves the legal position, such as voiding or invalidating a transfer in violation of the conditions subject to which a grant had been made. 27. That legal position has already been achieved by the operation of law i.e., Section 4 of the Act and if at all it is only the realization of what consequence results due to the operation of Section 4 of the Act in respect of any transaction, which no doubt is always based on the fact situation that prevails in respect of each transaction. 28. In such state of affairs, I am convinced that this a matter where the orders passed by the Asst. Commissioner as well as the Deputy Commissioner irrespective of the reasons assigned therein are orders which are not sustainable in law, particularly, for not recording legal position due to the operation of the provisions of Section 4 of the Act and being at variance to the legal position as is provided under Section 4 of the Act. 29. Commissioner as well as the Deputy Commissioner irrespective of the reasons assigned therein are orders which are not sustainable in law, particularly, for not recording legal position due to the operation of the provisions of Section 4 of the Act and being at variance to the legal position as is provided under Section 4 of the Act. 29. It is not in dispute that as of now, even as per the version of the 3rd respondent, the 5th respondent is in possession of the land and at any rate having been put in possession by the 3rd respondent under the transaction of the year 2003, can be presumed to be in possession etc. 30. When once the first transaction of the year 1972 is voided by operation of Section 4 of the Act, the other transaction automatically fall to ground including the later transaction of the year 2003. 31. In such a situation the only duty on the part of the Asst. Commissioner is to resume the land to the State Government and to ensure that it is restored to the legal heirs of the original grantee at the earliest. 32. In the circumstances, it is also found and held that there is no need for remanding the matter as the legal position is already recorded and so far as the question of the 5th respondent being put in possession is concerned, the 5th respondent having deliberately chosen to avoid the proceedings before this Court in this petition, there is no need to issue any further notice and it is the duty of the Asst. Commissioner to ensure follow-up action is taken in accordance with the procedure provided for under the Act and the rules and this order, in order to resume the land to the State and to restore it to the legal heirs of the original grantee in accordance with the provisions of the Act. Writ petition is allowed. 33. Rule made absolute. Impugned order dated 8.4.1985 passed by the Asst. Commissioner and the order dated 8.6.2004 passed by the Deputy Commissioner are quashed by issue of a writ of certiorari. 34. The State Government by Secretary is directed to ensure that the follow-up action is given effect to within a period of 3 months from the date of receipt of certified copy of this order to ensure that it is the Asst. 34. The State Government by Secretary is directed to ensure that the follow-up action is given effect to within a period of 3 months from the date of receipt of certified copy of this order to ensure that it is the Asst. Commissioner-2 the 2nd respondent acts to give effect to this order. 35. Registry is directed to furnish a copy of this order free of cost to Sri. R. Omkumar, learned AGA to enable him to forward a copy of the same to the Secretary in the State Government to the concerned department. List for further orders on 4.7.2011.”