ORDER
Ramakrishna, J.
1. In this petition under Articles 226 and 227 of the Constitution, the petitioner has questioned the correctness of the orders passed by the Assistant Commissioner and the Deputy Commissioner at Annexures ‘A’ and ‘B’ respectively.
2. The undisputed facts as disclosed in the averments of the Writ Petition and the impugned orders are that Thimmanna, the 4th respondent was granted 1 acre 23 guntas of land in Survey No. 13/21 situate in HatiKatte Village, Bhadravathl Taluk, Shimoga District by an order made by the Tahsildar, Bhadravathi dated 30th August 1975 in proceedings No.DAR.179/72-73. The Saguvall chit also came to be issued as per the order of the Assistant Commissioner dated 1-2-1975. By a Registered Sale deed dated 16-2-1976 the petitioner purchased the said land for valuable consideration.
After coming into force of the Karnataka Scheduled Castes and Schedule Tribes (Prohibition of Transfer of Certain Lands), Act, 1978, (the Act for short), the 4th respondent has moved the third respondent Assistant Commissioner seeking for the benefit of the said Act. The Assistant Commissioner, having held an enquiry, passed an order on 27-10-1983 holding that the transfer of land by 4th respondent in favour of the petitioner was in contravention of the condition of the grant and therefore the said transaction was null and void, and directing restoration of the land to 4th respondent.
Aggrieved by the said order, the petitioner preferred an appeal before the Deputy Commissioner who dismissed the appeal confirming the view expressed by the Assistant Commissioner and rejecting the other contentions raised by the appellant. Therefore, the petitioner approached this Court seeking for relief.
Sri Rudregowda, learned Counsel for the petitioner, who took me through the impugned orders, urged two contentions in support of the petition.
1. The Assistant Commissioner, the 3rd respondent, was in error in construing the transaction of the sale as void, in as much as the grant of land in favour of 4th respondent was on payment of upset price and therefore, the non-alienation clause could not apply, in the instant case.
2. The fourth respondent is not entitled for the relief under the Act, as he is not a scheduled caste person.
3. The Assistant Commissioner has committed wrong in directing the Tahsildar to take possession of the land in question and handover the same to the 4th respondent-the applicant.
Sri Rudragowda, learned Counsel for the petitioner relying upon Rule 43(g) of the Land Grant Rules submitted that the grant of land is subject to payment of upset price. The imposition of prohibition from alienation cannot be attached. Such an imposition can be attached only if the grant is free of cost.
4. It is not disputed that the land was granted in the year 1975 and therefore the Karnataka Land Grant Rules, 1969 with their amendments are made applicable. Rule 9 provides:
“The grant of lands under these rules (for agricultural purposes) shall be subject to the following conditions namely:-
(1) the grantee shall not alienate the land for a period of fifteen years from the date of taking possession:
Provided that he may, after a period of five years, with the previous permission of, and subject to such conditions as may be specified by the Deputy Commissioner, alienate the whole or any portion of such land. But, however, the Deputy Commissioner shall not grant such permission unless he is satisfied that the alienation is for the purpose of acquiring other land or for improving the remaining land and the grantee credits to Government; an amount equal to fifty per cent of the market value of such land as on the date of sanction of such alienation as determined by the Deputy Commissioner.”
5. Having regard to the proviso to Rule 9, Sri Rudregowda, argued that the language employed in the proviso goes to show that, with the permission of the authority, and after paying the amount equal to fifty per cent of the market value of such land, the grantee can alienate the land in question. This contention has no force. First of all, it is not the case of the petitioner that he has sought for such permission from the Deputy Commissioner to alienate the land. Secondly, we have to take into account the upset price payable as ordered by the Competent Authority for the purpose of grant and this upset price cannot be equated to the market value as referred to in the operative portion of the proviso. In the instant case a sum of Rs. 798/- was ordered to be paid as upset price, back assessment and O.D. fee to the Government. This upset price of the amount shown therein cannot be construed as the market value of the land in question. In order to appreciate this contention we can conveniently refer to Rule 12 of the Rules. Rule 12 deals with the price payable for the lands granted under these Rules:
Rule 12:- (1) In respect of lands granted under this Rule for the purpose of agriculture:-
1. The price payable for dry lands and rainfed wet land shall be, not less than fifty times and not more than two hundred times the land revenue payable on such land;
2. The price payable for garden lands or wet lands with assured irrigation facilities from tanks or channels shall ordinarily be not less than rupees five hundred and not more than two thousand five hundred rupees per hectare.”
For the purpose of construing the upset price referred to in Rule 12, assessment of dry land, wet land etc., are taken into consideration and based upon this actual revenue certain percentage is fixed for the category of dry land and others as the upset price. Therefore, the price referred to in Rule 12 cannot be construed as the market value. In the instant case, I am of the opinion that a sum of Rs. 798/- is inclusive not only of the upset price payable by the grantee but also the back assessment and O.D. fee. Therefore, the question of construing the upset price as the market value of the land in question is out of purview of Rule 12, Inasmuch as the upset price referred to in the Land Grant Rules cannot be equated with the market value of the land in question.
6. Since there is specific prohibition of alienation under Rule 9, which I have already extracted above, the grantee cannot alienate the land for a period of 15 years. In the instant case, within a period of one year from the date of grant, the grantee sold the land in question for a sum of Rs. 6,000/-. Therefore, the conclusion reached by the Assistant Commissioner that there is contravention of condition of grant, thereby attracting the provisions of Section 4 of the Act is justified. Therefore, the first contention fails.
7. The second contention also should fail because Thimmanna, the 4th respondent, who appeared before the Assistant Commissioner, stated on oath on 16-9-1983 that he is a person belonging to Bhovi Caste, which is classified a Scheduled Caste. By a perusal of the original records, this factum can be gathered- Therefore the contention that the 4th respondent-grantee is not a Scheduled Caste person has no force.
8. There is some force in the third contention of Sri Rudregowda, inasmuch as Section 5 of the Act confers exclusive poweron the Assistant Commissioner and it is not open to Assistant Commissioner to delegate their powers either to the Tahsildars or to other Officers to execute their orders, as held by a Division Bench of this Court in LAKSHMAMMA v. STATE OF KARNA-TAKA 1983(1) KLJ 417. In that view of the matter, the direction given to the Tahsildar. In the operative portion of the impugned order Annexure-A to take possession of the land and to hand over the same to the 4th respondent within 15 days time cannot be sustained. At this stage learned Counsel for the 4th respondent brought to my notice that pursuant to the order issued by the Competent Authority, a Mahazar was drawn on 26-12-1987, by the Revenue inspector, and he was put in possession of the land.
9. Sri Rudregowda, learned Counsel for the petitioner, however submits that the said Mahazar is disputed by the petitioner.
10. Sri Rudregowda, submitted that after purchase of the land the petitioner invested a large sum of money and effected improvements to the land; that the authorities will have to take into account the actual improvements made, at the time of taking possession of the land in question, and that therefore, a direction may be issued to the Assistant Commissioner to draw up a Mahazar, as to the actual improvements said to have been made by the petitioner to the land in question, at the time of taking possession.
Hence, I make the following:-
ORDER
The Writ Petition is partly allowed. I uphold the impugned orders passed by the Assistant Commissioner and Deputy Commissioner at Annexures ‘A’ and ‘B’ respectively. However, it is open to the authorities concerned to take appropriate action for taking possession of the land in question in accordance with law. Ordered accordingly. The Assistant Commissioner is directed to draw a Mahazar, at the time of taking possession of the land from the petitioner, as to the actual improvements made by him to the land in question.