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PETITIONER: STATE OF MYSORE & ANR.

       Vs.

RESPONDENT: M. M. THAMMAIAH & ANR.

DATE OF JUDGMENT02/05/1974

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. BEG, M. HAMEEDULLAH

CITATION:  1974 AIR 1375            1975 SCR  (1) 422  1974 SCC  (2) 281

ACT: Mysore Land Revenue Act, 1964--Rules for Classifiers  issued under  Regulation  1 of 1899--Rule 10--Whether  contains  an express order reserving right of Government to the trees  on Bane lands.

HEADNOTE: Appellant No. 1 sold certain soft wood trees standing on his lands  consisting partly of Bane lands for  a  consideration and  asked the Divisional Forest Officer for the issue of  a permit  in the name of the buyer permitting him to  cut  and remove  the timber.  The Divisional Forest Officer  informed appellant  no.  1 that the Bane lands held by him  were  not redeemed and that no permission could be granted for cutting and  removing the timber unless the timber value  was  paid. In  a  petition  under  Art  226  of  the  Constitution  the appellant challenged the constitutional validity of rule 137 of Mysore Forest Rules, 1969 and contended that the rule was inconsistent with provisions of s. 75(1) of the Mysore  Land Revenue  Act, 1964.  The High Court upheld the  validity  of the  rule  but  held that the appellant was  liable  to  pay timber value of only such trees as were in existence at  the time of the Survey Settlement of 1910.  It further held that rule  10  of the rules for classifiers contains  an  express reservation of the trees standing on Bane lands in favour of the State Government. On the question whether rule 10 of the Rules for Classifiers contains  ,in express reservation of trees standing on  Bane lands in favour of the State Government. HELD : Rule 10 of the Rules for Classifiers does not contain an express order reserving the right of the State Government to the trees growing on Bane lands within the meaning of  s. 75(1)  of the Mysore Land Revenue Act, 1964.  Rule 10  is  a part of the rules meant for the guidance of classifiers  for implementing  the  impending survey settlement.   The  rules called  "Rules for Classifiers" contain instructions  as  to how the classifiers should conduct themselves in making  the survey settlement. [426F-H] The  second paragraph of the explanation to rule 10  by  its very  language refers to a state of affairs that,is  assumed to  exist  and  does  not  contain  any  express  order   or declaration regarding the reservation of trees in favour  of

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the  Government.  The very nature and context of. the  Rules for  Classifiers  would show that they  could  not  possibly concern themselves with a matter regulating ’,he vesting  of a  substantive right like the right of the State  Government to the trees upon Bane lands.  At best rule 10 could be said to refer to a historical fact. [427C-D] [Rule  137  was deleted during the pendency of  the  appeal. The  question  as regards the validity of the  rule  is  now academic.] [428C-D]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1721 of 1971 and 1000 of 1972. Appeals by certificate from the judgment and order dated the 18th  March, 1971 of the Mysore High Court in W.P.  6394  of 1969. S.   S. Javali, K. S. Gouri Shankar and B. P. Singh, for the appellants. R.   N. Byra Reddy, Karnataka (in C.A. No. 1721/71 only) and M. Veerappa, for the respondents. G. B. Pai, C. S. Rao and P. C. Bhartari, for the intervener. 423 The Judgment of the Court was delivered by CHANDRACHUD,  J. These are two cross-appeals by  certificate granted  by the High Court of Mysore under Article  133  (1) (b)  of the Constitution and they arise out of its  judgment dated  March 18, 1971 in Writ Petition 6394 of 1969.   Civil Appeal  1000  of 1972 is filed by two persons called  M.  M. Thammaiah and B. M. Kariappa (herein called the appellants), against  the  State  of Mysore  and  the  Divisional  Forest Officer, South Coorg Division, Hunsur, Mysore (herein called the respondents).  Civil Appeal 1721 of 1971 is filed by the State of Mysore and the Divisional Forest Officer. Appellant No. 1, M. M. Thammaiah, is the holder of immovable properties  consisting partly  of "Bane lands",  situate  at Nemmale  in the district of Coorg.  On October 17,  1968  he sold  certain  soft-wood  trees standing  on  his  lands  to appellant 2 for a sum of Rs. 20,000.  On September 23,  1969 he  made  an  application to respondent  2,  the  Divisional Forest  Officer,  for the issue of a permit in the  name  of appellant  No. 2 allowing him to cut and remove the  timber. Respondent  2 informed appellant No. 1 that the  Bane  lands held  by him were not redeemed and that no permission  could be  granted for cutting and removing the timber  unless  the timber  value was paid under Rule 137 of the  Mysore  Forest Rules of 1969. Aggrieved  by this order the appellant filed a  petition  in the   High  Court  of  Mysore  under  Article  226  of   the Constitution  challenging the constitutionality of Rule  137 of  the Mysore Forest Rules.  They contended that  the  Rule was  violative  of Article 19(1) (f) and Article 31  of  the Constitution,  that it was inconsistent with the  provisions of  section 75(1) of the Mysore Land Revenue Act,  1964  and that  it was beyond the rule making powers conferred by  the Mysore  Forest Act, 1963.  By that petition  the  appellants prayed that a direction be given to respondent 2 to issue in favour of appellant No. 2 the permit asked for. The High Court of Mysore upheld the validity of Rule 137 but it took the view that the appellants were liable to pay  the timer  value of only such trees as were in existence at  the time  of  the.  Survey Settlement of 1910.  The  High  Court directed  the  forest authorities to determine  which  trees were in existence in 1910 and held that the appellants would

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be entitled to get the required permit after payment of  the timber value of those trees.  Both parties were partly  hurt by  the judgment of the High Court and they  have  therefore filed  these  two  cross-appeals.   The  contention  of  the appellants  is that they are entitled to the permit  to  cut and remove the timber without payment of any timber value at all while the contention of the State Government is that  no distinction  can be made as between trees existing  in  1910 and those which came into existence later and therefore  the appellants  are liable to pay the timber value of the  trees before being permitted to cut and remove the timber. The lands in question were granted to appellant No. 1 by the Raja  of Coorg and are situated in the village  of  Nemmale, Virajpet Taluk, LI77SupCI/75 424 which was once a part of the princely State of Coorg.  Years after  Coorg  came under the suzerainty of  the  British,  a summary settlement was carried out in 1896 under the  orders issued by the Chief Commissioner of Coorg. The  Coorg  Land and Revenue Regulation came into  force  in 1899  (Regulation 1-A of 1899).  Rule 97 (1-A) of the  Rules issued  under the Coorg Land Revenue Rules  provided,  inter alia,  that the holder of Bane land who has not  paid,timber value  when  the  grant was made would  enjoy  the  personal usufruct of the trees growing upon the land for the  purpose for  which the grant was made.  Further, the trees  ,growing on  the  land were not to be cut or removed  for  any  other purpose without the permission of the Assistant Commissioner and without prior payment of timber value.  Such payment was called ’Seignorage’ for redemption of timber. The  term ’Bane land’ is not defined in the Coorg  Land  and Revenue  Regulation,  1899  but it  would  appear  from  the Explanation  contained in Chapter V of the Coorg  Settlement Report, 1910 that a considerable area of forest lands  which was  deemed  necessary for grazing and leaf manure  and  for providing  firewood  timber for  agricultural  purposes  was allotted by the Rajas for each ’Warg’.  Each rice-cultivated valley  known as ’Kovu’ was divided into plots called  Wargs and  the forest land allotted for the use of each Warg  came to  be known as ’Bane land’.  Ordinarily, the Bane land  was not intended to be brought under ,cultivation. On  October 9, 1906 sanction was accorded by the  Government for  the  resettlement  of survey  and  a  notification  was accordingly  issued under Rule 49 of Regulation 1  of  1899. In  January,  1908  Rules were issued for  the  guidance  of ’Classifiers’ for implementation of the resettlement scheme. These  Rules can be found in Appendix B to the letter  dated February  18,  1910  written by  Gustav  Haller,  Settlement Officer,  Coorg, to the Secretary to the Chief  Commissioner of Coorg.  Rule 10 which is directly in point reads thus :               "Rule  10 The following terms are  at  present               used for lands held for coffee cultivation               (a)   Unalienated  banes  (jama,  sagu,  jodi,               jaghir,  umbli)  of  which ten  acres  may  be               cultivated free ’of assessment.               Explanation.-These banes are still attached to               their wet lands, and have been obtained by the               owners  prior to 21st May, 1886.   Cultivation               not  exceeding  ten  acres  is  exempted  from               assessment.   But there are a few  exceptional               cases, (i) Europeans who own such banes cannot               claim this privilege, (ii) a few Native coffee               planters  have  also been debarred  from  this               privilege.   As long as the bane  is  unculti-

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             vated no assessment can be levied.               The owner of such bane has the exclusive right               of cutting ’and felling without any charge for               his    own    domestic    and    ;agricultural               requirements in the village in which the  warg               is               425               situated,  all  wood and timber on  his  bane,               except sandalwood, which remains the  property               of Government.  But he has no right to cut  or               fell timber for sale or barter, or for the use               of any one but his own household servants,  or               to remove it into another village even for his               own    use   without   permission    of    the               Commissioner.   Firewood  may  be  removed  to               another  village under a pass granted  by  the               Forest Officer."               On the enactment of the Constitution in  1950,               Coorg became a Part ’C’ State and on  November               1, 1956 it became a part of the new St-ate  of               Mysore  (now  Karnataka).  The  existing  laws               continued  to  be in force in the  Coorg  area               until the enactment of uniform laws in the new               State of Mysore.               The  Mysore  legislature  enacted  the  Mysore               Forest  Act,  5 of 1964, "to  consolidate  and               amend  the law relating to forests and  forest               produce  in the State of Mysore." Section  102               of  that Act empowers the State Government  to               make  rules  to carry out all or  any  of  the               purposes   of  the  Forest  Act.   After   the               commencement  of  that Act the  Mysore  Forest               Rules were promulgated by the State Government               in  1969.  Rule 137 which is impugned  by  the               appellants is in these terms :               137.  Redemption  of  trees in Bane  lands  in               Coorg District-               (1)   No  holder  of Bane lands who  has  ’not               paid the timber value when the grant was  made               or subsequently, shall cut or remove any  tree               or timber or any other material obtained  from               such  tree for purposes other than  those  for               which  the Bane land was assigned,  i.e.,  for               the  service of the wet land attached  to  the               Bane land for their bona fide               domestic   use.               (2)   Holders  of  Bane  lands  intending   to               redeem the trees except   sandalwood  on  such               Bane lands, either fully or partially, may  do               so either by payment of the timber value or by               permitting  the Forest Department  to  extract               and dispose of the trees." On  April 1, 1964 the Mysore legislature enacted the  Mysore Land Revenue Act, 12 of 1964, "to consolidate and amend  the law relating to land and the land revenue administration  in the State of Mysore".  Section 202 of that Act provides  for the repeal of enactments specified in the Schedule, in which is included the Coorg Land and Revenue Regulation 1 of 1899. Section  75 of the Land Revenue Act which has  an  important bearing  on  the  case provides for the right  to  trees  in villages in which survey settlement has been introduced. Learned  counsel for the appellants urges that by virtue  of the provisions contained in section 75(1) of the Mysore Land Revenue  Act,  1964 appellant No. 1 must be deemed  to  have become  the  owner of trees standing on the Bane  lands  and

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therefore  the Divisional Forest Officer has no right  under Rule  137  of the Mysore Forest Rules, 1969 to ask  for  the payment of the timber value of the trees before they 426 can   be  cut  and  removed.   This  argument  requires   an examination of the terms of section 75(1) which reads thus               "75.   Right  to trees in villages,  to  which               survey. settlement has been introduced.-(1) In               any  village or portions of a village  if  the               original survey settlement has been  completed               before the commencement of this Act, the right               of  the State Government to all trees  in  any               land,  except  trees  reserved  by  the  State               Government  or by any Survey Officer,  whether               by express order made at or about the time  of               such  settlement or by notification  made  and               published at or any time after such settlement               shall  be deemed to have been conceded to  the               occupant." This  provision,  in  our opinion, admits  of  no  doubt  or difficulty.   The condition precedent to the application  of section  75(1) is admittedly satisfied in this case  because in regard to the village of Nemmale where the Bane lands  of the   1st  appellant  are  situated,  the  original   survey settlement  was  completed  before April 1,  1964  when  the Mysore Land Revenue Act came into force. By  section 75(1) the right of the State Government  to  all trees  in any land shall be deemed to have been conceded  to the occupant except in regard to trees reserved by the State Government  or  by any Survey Officer either by  an  express order  made at or about the time of such settlement or by  a notification  made and published at or any time  after  such settlement. The first question which then arises is whether there is  an express  order  made at or about the time  of  the  original survey  settlement by which the right to trees  standing  on Bane  lands was reserved by the State Government or  by  any Survey Officer.  The High Court has held that Rule 10 of the Rules  for Classifiers contained in Appendix B to the  Coorg Settlement  Report, 1910 contains an express reservation  of the  trees  standing on Bane lands in favour  of  the  State Government.   Learned  counsel appearing for  the  State  of Mysore has also placed strong reliance on Rule 10 in support of  the  State’s contention that the  particular  trees  are vested in it. We find it difficult to agree that Rule 10 can be read as an ’express order’ reserving the right of the State  Government to  the  trees, within the meaning of section 75(1)  of  the Mysore  Land  Revenue Act, 1964.  Rule 10 is a part  of  the Rules meant for the guidance of Classifiers for implementing the  impending survey settlement.  The Rules  called  "Rules for   Classifiers"  contain  instructions  as  to  how   the Classifiers  should conduct themselves In making the  survey settlement.  For example, Rule 1 says that "Such  classifier will take up a village which will be assigned to him by  the Settlement  officer  and  will  work  in  it  until  it  is, completed." Rule 2 enjoins the Classifiers to have with them the  village  map, the latest jamabandi register,  the  crop inspection  registers and the mutation register at the  time of  making the survey.  Rule 3 requires the  Classifiers  to "post  in a conspicuous place of the. village a copy of  the Chief Commissioner’s Notification announcing 427 that  the settlement operations have begun." By Rule  4  the classification of wet lands is to be taken up first and  for

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that  purpose various details are required to be entered  in Form  A.  Rule  5  contains  instructions  as  to  how   the Classifiers  should  fill up that Form.  Rules 6,  7  and  8 contain  instructions  regarding  the  inquiries  which  the Classifiers must make at the time of survey settlement.   By Rule 9 the Classifiers are required to attend to the work in regard  to coffee plantations after completing the  work  in regard to the wet lands. Then  comes  Rule 10 which begins with the  recital  :  "The following  terms  are  at present used for  lands  held  for coffee  cultivation".   Clause  (a) of the  Rule  refers  to ’unalienated  banes,  and  the Explanation  to  that  clause contains information about such banes.  The second paragraph of  the Explanation on which the State relies in support  of its alleged right to the trees, by its very language  refers to a state of affairs that is assumed to exist and does  not contain  any  express  order or  declaration  regarding  the reservation of trees in favour of the Government.  The  very nature and context of the ’Rules for Classifiers’ would show that  they  could  not possibly concern  themselves  with  a matter  regulating the vesting of a substantive  right  like the  right  of  the State Government to the  trees  on  Bane lands.   At  best,  Rule  10  may be  said  to  refer  to  a historical fact. The  learned  Advocate-General of Karnatka who  appeared  in this  appeal  at a later stage was not able to  support  the decision of the, High Court on the construction of Rule  10. But  he  argued  that  (1) Appellant No.  1,  not  being  an occupant,  cannot claim the benefit of section 75(1) of  the Mysore  Land Revenue Act, 1964; (2) that, concededly  owners of Bane lands like appellant No. 1 had no right to the trees growing  thereon  until April 1, 1964 when the Act  of  1964 came into force and section 75(1) is not intended to  confer on holders of Bane lands a right or privilege not enjoyed by them till then; (3) that sections 75(1) and 79(2) of the Act of  1964  must be read together and so read they  show  that only  certain  privileges enjoyed by holders of  Bane  lands were saved by that Act; and (4) that,, in any event, Rule 97 (1-A)  of the Rules issued under the Coorg Land and  Revenue Regulations 1 of 1899 is either in the nature of an  express order or a notification within the meaning of section  75(1) of  the  Act  of  1964, by which  the  right  of  the  State Government to the trees growing on Bane lands was reserved. These  arguments  have been controverted by  Mr.  Javali  on behalf  of  the appellants and by Mr. Pai on behalf  of  the interveners.  In the present state of the record it is.  not possible  to  entertain and examine the submissions  of  the Advocate-General.  But that is not entirely the fault of the State Government.  The writ petition filed by the appellants in  the High Court is utterly sketchy and inadequate.   They have not made averments necessary for a proper understanding of  their  case,  they have not  disclosed  the  source  and authority of the claim made by appellant No. 1 to the  trees and  they  have not traced the history of  the  right  which appellant  No.  1 claims in the writ  petition.   The  State Government by its counter-affidavit in the High Court rested content 428 with  formal denials of the appellants’ claim though, it  is true,  there  was not much to deny or  traverse.   The  writ petition  raised important questions affecting the right  of the  State  Government to trees standing on vast  tracts  of forest  areas and it ought to have shown a  greater  concern for those rights.  The upshot of the matter is that there is no  material  on  the  record to enable  us  to  decide  the

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contentions raised by the parties except the one relating to the construction of Rule 10 of the Rules for Classifiers. We  may  also indicate that the only relief  sought  by  the appellants  by their writ petition is that Rule 137  of  the Mysore  Forest  Rules, 1969 be struck down as  it  infringes Article 19(1) (f) and Article 31 of the Constitution and  is inconsistent  with section 75(1) of the Mysore Land  Revenue Act,  1964.  That rule was deleted, during the  pendency  of this appeal, by the Karnataka Forest (Amendment) Rules, 1973 notified  on January 15, 1974.  In spite of the deletion  of the Rule, the appellants did not seek the permission of this Court to amend the writ petition.  The only relief sought by the appellants has thus become infructuous. In  these  circumstances, we have decided  to  relegate  the parties to such remedies as they may be advised to adopt for the vindication of their rights.  Our judgment will conclude the question regarding the interpretation of ’Rule 10 of the Rules  for Classifiers only.  That rule does not contain  an ’express order" reserving the right of the State  Government to  the trees growing on Bane lands, within the  meaning  of section 75(1) of the Mysore Land Revenue Act, 1964. Accordingly, we set aside the judgment of the High Court  on the  construction  of  Rule 10 and  since,  apart  from  the validity  of Rule 137 of the Mysore Forest Rules 1969,  that is the only question decided by the High Court we allow  the appeal.  The question as regards the Validity of Rule 137 is now  academic  as  the  rule  has  been  deleted.   In   the circumstances  of  the  case there will be no  order  as  to costs.   Parties  will be at liberty to  agitate  the  other questions  in  such proceedings as they may  be  advised  to take. P.B.R.            Appeal allowed. 429