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WHEN IT IS NOT A FREE GRANT AND WHEN IT IS FOR UPSET PRICE KPTCL PROVISION ATTRACTION IS TO BE VERIFIED

Hanumanna vs Machappa ILR 1995 KAR 3507, 1996 (1) KarLJ 359 A plain reading of the above contents of the Grant Certificate (Annexure-A) would clearly indicate that it was not a free grant. On the other hand, it would indicate that the land had either been sold or granted for an upset price. There is nothing to indicate from the Grant Certificate that it was a free grant. When the grant is not made free of cost and it is made for an upset price, the condition embodied in the above Rule would clearly indicate that it shall not be alienated for a period of 10 years. It would be required to be stated here itself that the word "upset price" has been defined in Rule 43(2) of the Rules under the Mysore Land Revenue Code, which was in force from 1939 onwards and Rule 43(3) of the amended Rules, which were in force in 1956. Both the definitions are identical and they are extracted herein below :- "43(2). The "Upset Price" shall not be arbitrarily fixed but shall represent the actual market value of the land, as nearly as it can be ascertained by local enquiries and by the examination of records of sales of similar lands in the neighbourhood, and if necessary, of the registration statistics relating to them."

In this context, it has to be stated that in case where the land had been granted to persons belonging to Scheduled Castes or Scheduled Tribes, who are poor, under Rule 43-A(1), the Competent Authority can even waive Rs. 200/- out of the upset price; the balance being payable in annual instalments not exceeding three. Therefore, in the case of poor Scheduled Caste or Scheduled Tribe persons, the price may be fixed by waiving Rs. 200/- out of the upset price. The above definition would clearly indicate that the upset price would represent the actual market value of the land as nearly as it can be ascertained by local enquiries and by the examination of records of sales of similar lands in the neighbourhood and if necessary, of the registration statistics relating to them. But, at the same time, a discretion has also been given to the Competent Authority to reduce the price in the case of persons belonging to the Scheduled Castes and Scheduled Tribes, who are poor. The order of the Assistant Commissioner is, however, silent with regard to the nature of the grant. But, the Order of the Deputy Commissioner would clearly indicate vide Paragraph-2 that the land in question was actually granted to the first respondent as per Order No. HKF.20/59-60 on 29.12.1959 at an upset price. The learned Single Judge, however, on his own interpretation of the sum of Rs. 45/- mentioned in the Grant Certificate, came to the conclusion that the grant was free of cost. There is absolutely no scope for such interpretation having regard to a plain reading of the terms of the grant as incorporated in the preamble to the Grant Certificate, In fact, the learned Single Judge himself has stated in the course of his order that the Saguvali Chit (Annexure-A) does disclose that a sum of Rs. 45/- was collected from the grantee towards Kimmat and Phodi Fee. This would clearly indicate that in the Grant Certificate, the Kimmat and Phodi fee have been separately mentioned and the word 'Kimmat' in its common connotation would mean the 'price'. It may be that the price mentioned therein may not be equal to the market value of the land that was prevailing at the time of the grant, but it was certainly not a free grant. It is to be remembered that in the case of poor Scheduled Caste and Scheduled Tribe persons, even from the upset price, a sum of Rs. 200/- can be waived. Therefore, there was no scope for the learned Single Judge to have interpreted the grant as free of cost. In fact, under the Land Grant Rules, the term 'free grant' and the term 'upset price' are used in different context and in the case of poor Scheduled Caste or Scheduled Tribe persons, even out of the upset price, Rs. 200/- can be waived. Therefore, it is very clear from a plain reading of the contents of the Grant Certificate (Annexure-A), in the light of the provisions of the Land Grant Rules, that it was not a free grant and in all probability, it was for an upset price or for a reduced upset price. In fact, the Deputy Commissioner himself would observe in the course of his order that it was a grant for an upset price. Therefore, by no stretch of imagination, the grant in this Case can be regarded as a free grant. We are unable to share the view of the learned Single Judge that it was a free grant. We shall, therefore, conclude on the basis of the materials placed on record that it was not a free grant, but it was made for an upset price as has been stated by the Deputy Commissioner. That being so, the period of non-alienation would be 10 years and not 15 years as per the Rule stated supra. In this case, the first respondent had sold the land to the appellant after the expiry of the period of 10 years from the date of the Grant Certificate (the Grant Certificate was issued on 4.5.1967 and the land in question was sold on 24.8.1977). Therefore, in any event, there was no contravention of the terms of the grant and as such, the transaction in question was not hit by Section 4 of the Act. Therefore, the alienation made in favour of the appellant cannot be declared as null and void under Sections 4 and 5 of the Act as there was no contravention of the terms of the grant of such land or the law providing for such grant.

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