The upset price waiver does not alter the nature of the grant, and contravention of non-alienation conditions can lead to the nullification of a sale and restoration of the land.

M. RAMAKRISHNA RAO, J.

( 1 ) SUBJECT-MATTER of these two petitions is one and the same as also the contesting parties. Hence, i propose to dispose of them by the following common order.

( 2 ) THE question that arises for consideration in these petitions is whether theupset price imposed on the granl of land having been waived by the deputy commissioner in exercise of the powers conferred on him under the Karnataka land grant rules, the grant could be construed as a free grant.

( 3 ) FACTS of the case, in brief, are as follows:bheemla bai, mother-in-law of [he third respondent valibai, was granted four acres of land in sy. No. 37/8 situated in malligere village, channagiri taluk, shimoga district, by the competent authority under the Karnataka land grant rules subject to certain conditions. That grant was made on 29-11-1959 and saguvali chit also issued subsequently. While doing so, the competent authority imposed certain sum of money as upset price and the said amount was admittedly waived by the deputy commissioner under sub-rule (5) of Rule 43 of the land grant rules.

( 4 ) IT is again an admitted fact that the granted land came to be sold in favour of the petitioner under a registered sale deed dated 22-2-1971 for valuable consideration, and eversiincc the date of sale, he has. Been in possession and enjoyment of the same.

( 5 ) AFTER the coming into force of the Karnataka scheduled castes andscheduled tribes (prohibition of transfer of certain lands) Act, 1978 (the act for short), valibai, legal representative of bheemlabi, original grantee, sought before the assistant commissioner, reliefs under sections 4 and 5 of the act on the ground that the alienation was made in favour of the petitioner in contravention of the condition of the act and that therefore she was entitled for restoration of the granted land.

( 6 ) THE assistant commissioner having notified both parlies, held an enquiry,considered the evidence on record both oral and documentary and passed an order as per Annexure-A declaring the sale as null and void under Section 4 of the act and directing restoration of the land in favour of the said valibai as, according to him, the granted land was sold contrary to the condition of the grant that the land shall not be alienated for a period of 10 years. Aggrieved by the said Order, the petitioner filed an appeal under Section 5-a of the act before the deputy commissioner who, after hearing the learned counsel on both sides, dismissed the appeal affirming the view taken by the assistant commissioner, by his order made as per annexurc-b. Both these orders, annexurcs-a and b, arc challenged by the petitioner in \v. P. No. 17486 of 1990. He has sought for quashing them for the reasons staled in the petition filed on 22-8-1990.

( 7 ) AFTER the disposal of the appeal before the deputy commissioner on 9-8-1990,an eviction notice as per anncxure-c in No. Ri. k. cr. 261/90-91, dated 28-8-1990 was issued to the petitioner by the revenue inspector, respondent-3 in w. p. no. 19253/90 and thereupon on 31-8-1990 he went to the land, drew a mahazar as per anncxure-d in W. P. No. 19253/90, evicted the petitioner from the land, resumed the land to the government and then handed over the same to valibai. As against the above eviction notice and the mahazar, anncxures-c and d respectively, w. p, No. 19253 of 1990 has been filed by the petitioner.

( 8 ) A specific contention was taken before the deputy commissioner that thegrant was not a free grant, but on payment of upset price having regard to sub-clause (ii) of clause (a) of sub-rule (6) of Rule 43 prevailing as on the date of grant; that therefore, the period of non-alienation must be construed as 10 years instead of 15 years and that, construing the period so, the sale, having taken place after 10 years from the dale of grant, could not be invalidated, and as such sections 4 and 5 were not attracted to this case. The deputy commissioner considered the contention and rejected it. But

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