Bhoomireddy vs State of Karnataka and Others

The question which arises for consideration is whether it is possible to construe from an order of grant made in favour of the grantee from whom the petitioner has purchased the land, that the land was granted at an upset price or at a reduced upset price. Depending on the finding, on this question, the next question is whether in the facts and circumstances of the case it is possible to construe that restriction is imposed validly on the alienation of the land.

There is no dispute about the fact that the grant was made in the year 1966, the precise date being 25-6-1966, and the Saguvali chit was issued to the grantee on 31-1-1967. The Saguvali chit does not contain any condition imposing restriction on non-alienation. This is evident from the original Saguvali chits issued to the grantee.

It is also seen from these Saguvali chits that the lands were granted at an upset price of Rs. 100/-.

One more relevant condition contained in these Saguvali chits is that the grant is subject to rules in force at the relevant point of time.

We are concerned with the Rules which held the field at the time when grants were made and the Rules are Mysore Land Revenue (Amendment) Rules, 1960 (the Rules for short) brought into force by the erstwhile Government of Mysore in exercise of powers conferred by Section 233 of the Mysore Land Revenue Code, 1888. It is necessary to advert to Rule 43(G) which is relevant for the purpose of determining the issues in question. It reads:

Rule 43(G) Grant of lands under the preceding Rules shall be subject to the following conditions:

(1) In the case of grant of lands to applicants belonging to the Scheduled Castes and Scheduled Tribes, and to other applicants, who are unable to pay the occupancy price on account of poverty, the occupancy price may be waived up to rupees two hundred and the balance recovered in three annual instalments.

(2) ".........."

(3)".........."

(4) Where the grant is made free of cost, or is made at a price which is less than the full market value, the grant shall be subject to the condition that the land shall not be alienated for a period of fifteen years from the date of the grantee taking possession of the land, after the grant.

Provided that such land may be alienated with the previous sanction of the Government and subject to such conditions as the Government may specify, if the Government is of the opinion that in the circumstances of any case, it is just and reasonable to permit such alienation either for purposes of acquiring some other land or for any other purpose:

Provided further that nothing in this clause shall apply to:

(a) the alienation of any land in favour of the State Government or Co-operative Society as security for loans obtained for improvement of the land or for buying cattle or agricultural implements for the cultivation of the land, or alienation of any land in favour of the Indian Coffee Board as security for loans advanced by the Indian Coffee Board under the Coffee Development Plan;

(b) the leasing of any land by a person who is a widow, a minor or who is subject to physical or mental disability or who is a serving member of the armed forces.

The learned counsel appearing for the petitioner contended that the grantee belongs to Scheduled Caste and in accordance with Rule 43(G)(i) of the Rules occupancy price was waived upto Rs. 200/- and only the balance of Rs. 100/- was recovered from the grantee. What is sought to be pointed out is that the occupancy price which is prescribed in the grant is the upset price and it was Rs. 300/- per acre. What the granting authority did was it recovered only Rs. 100/- from the petitioner out of Rs. 300/- which represents the upset price. It is argued that Rs. 300/- being the upset price remained constant and what was waived was Rs. 200/- per acre and it was the right to recover that was waived to the extent of Rs. 200/- out of Rs. 300/-. In other words, it was contended that it is not a case of reduction of upset price or occupancy price.

It was also pointed out that under Rule 43(G)(4) the situation contemplated is the one where the land is granted free of cost or is granted at a price which is less than the full market value. It is submitted that the grant was not made at a price which is less than the full market value but the grant was made at the full market value of Rs. 300/- per acre. What was recovered from the petitioner is only Rs. 100/- per acre and this was in view of the discretion exercised by the granting authority under Rule 43(G)(i) of the Rule because the said Rule enables the granting authority to waive upto Rs. 200/- and to recover only the balance from the grantee. In other words, the contention is that, since the market value of the land was not altered and did not suffer any reduction, the granting authority could not have imposed any restriction on alienation of the granted land. In fact restriction is not found in the Saguvali chits. Such restriction is conspicuous by its absence in all the Saguvali chits issued to the original grantee from whom the lands were purchased by the petitioner.

On the other hand it was contended by the learned Government Advocate appearing for the respondents that it is necessary to look into Rule 43(L) of the Rules. Rule 43(L) reads:

"Notwithstanding anything contained in the preceding rules the Government may ''mo motu'' or on the recommendation of the Divisional Commissioner or the Deputy Commissioner if it is of the opinion that in the circumstances of any case or classes of cases it is just and reasonable to relax any of the foregoing provisions of these rules, it may by order direct such relaxation subject to such conditions as may be specified in the order, and thereupon land may be granted in such a case in accordance with such direction."

It is contended by the learned Government Advocate on the basis of Rule 43(L) that by virtue of relaxation of the Rules made under 43(L) the Government reduced the market value and proceeded to grant the land at Rs. 100/- per acre instead of Rs. 300/- which is the real market value.

Rule 43(L) empowers the Government to relax any of the foregoing provisions of the Rules and by order direct such relaxation subject to such conditions as may be specified in the order and thereafter land may be granted in such a case in accordance with such a direction. It is to be seen that what was relaxed under Rule 43(L) is the jurisdiction of grant of land by the revenue authorities and in the instant case, Rule 42 was relaxed to enable the Tahasildar to grant the lands to the petitioner''s vendor. I do not think that Rule 43(L) is of any assistance to the respondents. It does not throw any light on the question whether or not in the instant case the upset price has been reduced at the time the land was granted to the grantee.

It is not disputed that in the Government order it is explicit that to the extent of Rs. 200/- the upset price has been waived and liability to pay has been restricted to Rs. 100/- instead of Rs. 300/- per acre. In my opinion, this is waiver of a part of the money due, representing the total upset price and it does not amount to reduction of the upset price. Waiver cannot be equated with reduction. Rule 43(G)(4) also has no relevance to the grants made in favour of the petitioner''s vendor. In these circumstances I am of the opinion that there can be no restriction on alienation of land and the petitioner is justified in contending that the figure of Rs. 100/- mentioned in the Saguvali chits, is only the amount that is recoverable from the petitioner alter waiver of Rs. 200/- out of total upset price. Either under the Rules of 1960 or under Saguvali chit issued to the grantee there is no room for the assumption that there was a reduction in the upset price. It is therefore to be held that the grant made was free from prohibition on alienation. When the land is granted at an upset price the question of imposing restriction on the land does not arise because the grant of land at an upset price amounts to sale of the land.

For the above reasons, the writ petition is allowed and the impugned orders under Annexure-A dated 25-7-1986 passed by the 3rd respondent, and Annexure-B dated 14-8-1987 passed by the Special Deputy Commissioner, are quashed.