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PETITIONER: STATE OF KARNATAKA AND ANR. ETC.

       Vs.

RESPONDENT: ELIZABETH MAYNE AND ANR. ETC.

DATE OF JUDGMENT08/04/1976

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) BEG, M. HAMEEDULLAH SINGH, JASWANT

CITATION:  1976 AIR 1651            1976 SCR  (3)1088  1976 SCC  (3) 418

ACT:      Redemption of  the  tree  growth  on  "Bane"  lands  by "Wargadars" or  their transferees/successors  in possession- Right of  redemption-The Coorg  Land and Revenue Regulations 1899, Section  97 and  the Karnataka  Forest Rules 1969 Rule 137 Karnataka Land Revenue Act 1967, s. 75-Scope of.

HEADNOTE:      "Bane lands"  are forest  lands granted for the service of the  "Warg",  holding  rice  fields  to  which  they  are allotted to  be held,  free of  revenue, for  grazing,  leaf manure/firewood and for timber required in the Warg, capable of being  alienated only along with the Warg lands u/s 97 of the Coorg Land and Revenue Regulation 1899, which is in pari materia with  Rule 151  A and B made under the Indian Forest Rules 1954.  The holders  of the  Bane Land had the right to redeem the  trees standing on such Bane lands subject to the payment of  seignorage etc.  Under Rule 137 of the Karnataka Forest Rules 1969, effective from 1st March 1969, redemption of the  growth on "Bane lands" was allowed on payment of 50% of the  value of  the timber.  Rule 137  was however deleted w.e.f. 15th January 1974.      The various appellants who were holders of "Bane Lands" challenged,  under  Art.  226.  the  orders  of  the  Forest authorities demanding  full value of the timber sought to be "redeemed" by them contending that (i) they had vested right to redeem  the trees  on Bane lands on payment of 50% of the value of timber under the Coorg Land and Revenue Regulations of 1899  and (ii)  Section 75  of the Karnataka Land Revenue Act, 1964 vested in them an absolute right in respect of the trees on  Bane lands  and the  Government therefore  had  no right even  to demand  50% of  the value. All the writs were accepted by  the Mysore  High Court  following  its  earlier decision  in   I.L.R.  (Karnataka)  1975  Vol.  25,  p.  443 (Ramaraju Naidu  v. Divl.  Forest officer)  holding that the Rules conferred  a right  on the  holders of  Bane lands  to redeem the trees standing on such lands on payment of 50% of the value  of the  timber to  the  State  along  with  other incidental charges.  The court  did not  express any opinion whether the  State had  no right  to demand 50% of the value under the  Karnataka and  Revenue Act  of 1964. Allowing the

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State appeal  against I.L.R.  (Karnataka) 1975  Vol. 25 page 443 the  Division Bench  held  [in  State  of  Karnataka  v. Ramaraju Naidu I.L.R. (Karnataka) 1975 Vol. 25 p. 1361] that (i) the  Bane holders  had no propriety right to the soil of Bane Land and to the trees standing thereon but only limited privilege to  collect grass  leaves timber etc. for domestic purposes (ii)  Even after  s. 75(1)  of the  Karnataka  Land Revenue Act  was enacted  the Bane  holders did  not  become holders or  occupants as defined in the Act and ownership of trees did  not accrue  to them  and (iii)  Section 79 of the Karnataka Land  Revenue Act  which preserved the preexisting privileges of Bane holders has no application to Bane lands. Keeping 15-1-74,  the date  of deletion  of Rule  137 of the Karnataka Forest  Rules 1969,  the Division  Bench,  however directed that  (1) the respondents who deposited before 15th January 1974,  50% of  the value  of timber as determined by the Forest  officer could  be granted  permits  to  cut  and remove timber, with liberty to the Forest officer to recover and any  differential amount  between the  50% of the actual value of  timber and  amount paid  on  the  basis  of  prior determination and  (ii)  those  respondents  who  have  made applications under  rule 137  before 15th  January 1974, but not deposited  the amount  could also  be granted permits on deposit of 50% of the value of timber.      Dismissing the State appeals, by certificate, the court ^      HELD: (1)  The learned  single judge in ILR (Karnataka) 1975 Vol.  25 p. 443 rightly did not express any view on the second question as to whether 1089 the Bane Land holders could ask for removal of trees without payment full  of value  u/s 75 of the Karnataka Land Revenue Act, 1964. [1091A]      Ramaraju  Naidu   v.  Divl.   Forest   Officer   I.L.R. (Karnataka) 1975, Vol. 25 p. 443 (partly affirmed).      (ii) The  directions given  by the  Division Bench  are explicable because  of 15th  January 1974 being taken as the dividing line  with regard  to persons who made payments and persons who  did not make payment consequent upon the repeal of Rule 137 of the Karnataka Forest Rules, 1969. [109lF]      [Their Lordships left open to the parties to urge their           rival contentions  on the  questions of the nature           and terms  of Bane  lands and right, if in future,           there will be any dispute between them, in view of           their  making  clear  that  the  observations  and           opinions of  the High  Court Division Bench should           not operate as res judicata]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeals Nos. 1867- 1924, 1952 of 1975 and 9 to 66 of 1976.      From the  Judgments and orders dated the 18-4-75, 28-4- 75 and  27-5-75 of the Mysore (Karnataka) High Court in Writ Appeal Nos.  1034-1039/74 and  116 to  143/75, 951-74,  922- 923/74, 32/75, 1035 of 1974 and 976 to 1033/74 respectively.      L. N. Sinha, Sol. General in C.A. No. 1891 and 1952 for the appellants  in C.As.  1867-1924  and  Respondent  in  CA 1952/75 and  K.S. Puttaswamy,  1st Addl. Government Advocate (In Cas. 1867-1924 and 1952/75) B. R. G. K. Achar.      S. G.  Sundaraswamy, K. S. Gourishanker and K. N. Bhatt for the  Appellants in C.As. 1952/75 and Respondents in C.A. 1891/75.      L. N.  Sinha, Sol.  General in (CA 9) K. S. Puttaswamy,

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Asstt. Addl.  Government Advocate,  Narayan Netter and B. R. G. K. Achar for the Appellants in C.As. 9 to 66 of 1976.      S. V.  Gupta (In  CA 1890/75),  S. S.  Javali and B. P. Singh for  Respondents in  CAs. 1875  to 79,  1882-83  1885, 1887-90, 1893,  1895, 1897, 1902-08, 1909, 1910, 1912, 1914, 1917, 1920,  1923-24/75 and  for R.  2 in  C.As. 1867, 1874, 1880-81, 1884,  1889-1901, 1903  1906-07 and 1921/75 and for Respondent in  Appeals Nos. 9, 13-18, 20, 21, 39-44, 54, 56, 58, 60-63 and for Respondent No. 1 in Cas 19, 22-23, 37, 43, 46, 51, 55, 59, 65 and Respondent No. 2 in C.As 38 of 1975.      The Judgment of the Court was delivered by      RAY, C.J.  These appeals  are by  certificate from  the judgment  dated   18  April,  1975  of  the  High  Court  of Karnataka.      The respondents were the petitioners in the High Court. The respondents  are either  holders of  Bane lands  in  the District of  Coorg or  holders of  such lands  who purchased timber standing on them from such holders.      The respondents  in  the  High  Court  asked  for  writ directing the  Divisional Forest  officer of  the  State  to issue permits to the respondents to remove trees standing on Bane lands as particularised in the petition. 1090      The Divisional  Forest Officer  refused permits  to the respondents to  cut trees and remove timber. The two grounds on which the respondents challenged the order of refusal are these. First,  the respondents  claimed a  vested  right  to redeem the  trees on Bane lands on payment of 50 per cent of the value  of timber under Coorg Land and Revenue Regulation of  1899   and  the  rules  framed  thereunder.  Second  the respondents claimed  that, by  section 75  of the  Karnataka Land Revenue  Act, 1964,  an absolute right was conferred on them in  respect of  trees on  Bane lands and the Government have no right even to demand 50 per cent of the value.      The learned  Single Judge referred to the provisions of Coorg Land  and Revenue Regulation of 1899 and in particular rule 97  thereof. The  learned  Single  Judge  came  to  the conclusion that  rules conferred  a right  on the holders of Bane land  to redeem  the trees standing on such Bane lands. He also  held that  under the  rules, the  respondents  were required to  pay 50  per cent  of the value of the timber to the State along with other incidental charges.      The contention  of the  State that  the Coorg  Land and Revenue Regulation,  1899 was  repealed and,  therefore, the respondents had  no right  under those Regulations to remove timber was repelled by the learned Single Judge. The learned Judge held  that section  202 of  the Karnataka Land Revenue Act of 1964 did not affect the right acquired by the holders of Bane  lands in  spite of  repeal of  the Coorg  Land  and Revenue Regulation  of 1899. In this view of the matter, the learned Single  Judge  did  not  consider  it  necessary  to express  any   opinion  on  the  second  contention  of  the respondents whether  under section  75 of the Karnataka Land Revenue Act of 1964, the State had no right to demand 50 per cent of the value.      The Division  Bench on appeal held that the respondents could be  divided into  two  categories.  As  to  the  first category,  the   Division  Bench  in  sub-paragraph  (1)  of paragraph 59  of the  judgment said that those who deposited before 15  January, 1974, 50 per cent of the value of timber as determined  by the  Divisional Forest  officer, could  be granted permits  to cut  and remove timber. If there was any difference between  the 50  per cent  of the actual value of timber and  the amount paid on the basis of determination by the Divisional Forest officer, the Divisional Forest officer

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would recover  the  difference  as  mentioned  in  the  said paragraph 59(1).      In sub-paragraph  (2) of  paragraph  59,  the  Division Bench  dealt  with  respondents  who  did  not  fall  within category 1, but made applications before 15 January, 1974.      The Solicitor  General appearing for the State with his usual fairness  said that he did not want to take up time of the Court  in going  into the  merits  of  the  appeals.  He accepted the  conclusions of  the High Court in paragraph 59 of the  judgment. The  result is that the conclusions of the High Court in paragraph 59 are affirmed.      The matter, however, does not end there because counsel for the  respondents submitted  that the Division Bench went into the nature and tenure of Bane lands and expressed views which are not correct 1091 and which in any event were not necessary for the purpose of the present case.      The learned  Single Judge  rightly did  not express any view on  the second  question as  to whether  the Bane  land holders could  ask for  removal of  trees without payment of full value.  The Division  Bench, however,  in paragraphs 16 and 20  dealt with the legal position of Bane lands prior to 1 November,  1899, in  paragraph 30  on the  legal  position between 1  November 1899  and 1 April 1964 and in paragraphs 36 and  43 on  the legal  position after  1 April  1964. The Division Bench  of the High Court in paragraphs 17 and 19 of the judgment dealt with Bane and Kumki lands and equated the same.      It may  be stated  here that  one of  the  respondents- Consolidated Coffee  Ltd., also  filed an  appeal  from  the judgment of  the High Court. The Solicitor General contended that the  Consolidated Coffee Ltd. was not competent to file an appeal  because the company had obtained relief and could not, therefore, attack the judgment.      Having heard the Solicitor. General and counsel for the respondents, we  are of  opinion that  the course adopted by the learned  Single Judge was correct. The Division Bench of the High  Court need  not have gone into the question on the nature and  tenure of  Bane lands  and expressed  opinion on rights  of   the  parties.   These  observations   were  not necessary.      We, therefore,  hold that  we affirm the conclusions of the Division  Bench of  High Court as stated in paragraph 59 of the  judgment and make it clear that the observations and opinions expressed  by the  Division Bench on the nature and tenure of Bane lands and rights of the parties will not bind the parties on these questions in future. It will be open to both parties, namely, the appellants and respondents to urge their rival  contentions on  these questions  if  in  future there will be any dispute between the parties.      The directions given by the Division Bench in paragraph 59 of  the judgment  will be  followed by  the parties.  The directions are  explicable because  of 15 January 1974 being taken as  the dividing  line with regard to persons who made payment and persons who did not make payment consequent upon the repeal of Rule 137 of the Karnataka Forest Rule, 1969.      The appeals  are dismissed.  Parties will  pay and bear their own costs. S.R.                                      Appeals dismissed. 1092