Research › Browse › Judgment

Karnataka High Court · body

1971 DIGILAW 91 (KAR)

M. M. THAMMAIAH v. STATE OF MYSORE

1971-03-18

CHANDRASHEKHAR, RANGE GOWDA

body1971
CHANDRASHEKHAR, J. ( 1 ) PETITIONER-1 is holder of a 'bane' land in Virajpet Taluk in Coorg district. He had sold timber standing on that land to petitioner-2. and he made an application to the Divisional Forest Officer, South Coorg division, (Respondent-2) for issue of a permit in the name of petitioner-2 to cut and remove such timber. Respondent-2 intimated petitioner-1 that as the land was not redeemed, he (respondcnt-2) had directed the Valuation officer. Virajpet, to value such timber under Rule 137 of the Mysore forest Rules, 1969. ( 2 ) IN this petition under Art. 226 of the Constitution, the petitioners have prayed for striking down Rule 137 of the Mysore Forest Rules, 1969, (hereinafter referred to as the Forest Rules) as invalid. They have a]so prayed for a mandamus directing respondent-2 to issue a permit to the petitioners for conveying such timber. The Consolidated Coffee Ltd. . Pollibetta, Coorg District, who has filed a similar petition which is still pending, sought for permission to intervene in this petition. We permitted that Company to intervene in this petition. Sri A. C. Nanjappa, its learned Counsel, addressed arguments supplementing those of Mr. K. S. Gowrishankar, learned Counsel for the petitioners. ( 3 ) BEFORE dealing with the contentions of the parties, we shall briefly set out the nature of Bane land and the relevant provisions of the Mysore land Revenue Act, 1964, the Rules under the Coorg Land and Revenue regulation, 1899, the Mysore Forest Act. 1963. and the Mysore Forest rules, 1969. ( 4 ) AS pointed out by this Court in Ramashetty v. Appanna, 1959 Mys. L. J. 218, there is no statutory definition of 'bane' in the Coorg Land and Revenue Regulation, 1899. The terms 'warg' and 'bane' have been explained thus in chapter V of the Coorg Settlement Report, 1910: "warg" - "each rice-cultivaed valley is known as a 'kovu' divided in the Raja's (of Coorg) times into plots called 'wargs' averging about 1-1/2 acres in extent. ""bane" - ''a considerable area of the adjacent forest land was considered necessary for grazing, leaf manure, firewood and timber for agricultural purposes, and was allotted by the Rajas for each ward in blocks varying from a few acres to 300 acres or more. These allotments were recorded in the revenue accounts of the Rajas 'sists' under the name 'bane'. ""bane" - ''a considerable area of the adjacent forest land was considered necessary for grazing, leaf manure, firewood and timber for agricultural purposes, and was allotted by the Rajas for each ward in blocks varying from a few acres to 300 acres or more. These allotments were recorded in the revenue accounts of the Rajas 'sists' under the name 'bane'. This land may not oridnarily be cultivated, and only the usufruct of the tree growth is allowed. "rule 97 (1-B) of the Rules issued under the Coorg Land and Revenue regulation, 1899, (hereinafter referred to as the Coorg Revenue Rules) provides, inter alia, that the holder of Bane land who has not paid timber value when the grant of such land was made, enjoys the personal usufruct of the trees growing upon the land for the purpose for which the grant was made, i. e. , for the service of the wet land attached to the Bane and for the private use of wargdar; and that trees growing on such land shall not be cut or removed for any other purpose without the permission of the Assistant Commissioner and without the prior payment of the timber value. Such payment is called 'seignorage' for 'redemption' of timber. As pointed out by this Court in Rama Setty v. Appanna (1), the seignorage represents not the full value of such timber, but a part of such value fixed from time to time. ( 5 ) THE relevant portions of Rule 137 of the Forest Rules read: 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 and for their bonafide 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. (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. Sub-rule (16) of that Rule provides that where the Forest Department has extracted timber in Bane land, the sale proceeds of timber and other materials after deducting transport, incidental and supervision charges, shall be divided into two halves and that one half of it shall be payable to the holder of Bane land while the other half shall be credited to the Forest Revenue. ( 6 ) AFTER the formation of the new State of Mysore, uniform law relating to land, land revenue and land revenue administration in the new state of Mysore, was brought about by the Mysore Land Revenue Act, 1964. That Act came into force on 1-4-1964. Sub-Sec. (1) of Sec. 202 of that Act repealed several enactments and laws relating to land, land revenue and the land revenue administration in different parts of the State. The Coorg Land and Revenue Regulation, 1899, is one such repealed enactment. Sub-sec. (2) of that section provides, inter alia, that notwithstanding such repeal, any rule or regulation under any enactment or law repealed by sub-sec. (1), shall be deemed to have been done or taken under the corresponding provisions of that Act and shall continue to be in force accordingly unless and until superseded by anything done or any action under that Act. Sub-Sec. (1) of Sec. 75 of the Mysore Land Revenue Act, which deals with right to trees, reads: (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. Mr. Mr. Gowrishankar contended that whatever might have been the legal position as to rights of the holder of Bane land, in regard to trees standing thereon, alter the Mysore Land Revenue Act, 1964, came into force on 1-4-1964, such holder became entitled to all trees standing on such lands under sub-sec. (1) of Sec. 75 of the Land Revenue Act, as such trees had not been reserved by the State Government or by any Survey officer at the time of the original Survey Settlement. It was further contended by Mr. Gowrishankar that as the right to such trees had been conceded to the holder of Bane lands, Rule 137 of the Forest Rules cannot validly provide that a holder of a Bane land who has not paid the timber value when that land had been granted, shall not cut and remove trees or timber in such land without payment of the timber value and without obtaining the permission of the Forest Department. In other words, Mr. Gowrishankar contended that a rule made under the Mysore Forest Act cannot be inconsistent with the rights conferred under Sec. 75 of the mysore Land Revenue Act. ( 7 ) ON the other hand, the learned Government Pleader contended that sec. 75 of the Mysore Land Revenue Act does not confer on the holder of bane land the right to trees standing thereon where the right to such trees had been reserved by the State Government in any original Survey settlement completed before the commencement of this Act or by any notification made and published by the Government at any time after such settlement and that the Government had reserved the right to trees in Bane lands at the time of the Survey Settlement in Coorg in about the year 1910. ( 8 ) IN support of his contention, the learned Government Pleader referred to Rule 10 of the Rules for Classifiers in Appendix-B to the Coorg settlement Report, 1910. In the letter dated 18-2-1910 addressed by the settlement Officer, Coorg, to the Secretary to the Chief Commissions, coorg, it is stated that during his visit to the province of Coorg in january 1908, the Chief Commissioner of Coorg closely examined the draft rules for the guidance of Classifiers and that they were finally issued in the light of his instructions. The relevant portion of Rule 10 reads: 10. The relevant portion of Rule 10 reads: 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 uncultivated no assessment can be levied. ( 9 ) 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 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 Department. We think the learned Government Pleader is right in contending that under Rule 10 of the aforesaid Rules, the then Government of Coorg had reserved at the time of the Survey Settlement in 1910 the right to trees in unalienated Bane lands except to the extent to which such trees are required for the agricultural, domestic and bonafide personal requirement to the holders of respective Bane lands. Under Sec. 75 of the Mysore Land Revenue Act, trees standing on lands shall be deemed to have been conceded to the occupant of such lands only where such trees have not been reserved by the Government at or about the time of original Survey Settlement or by any notification made or published at, or any time after such settlement. Under Sec. 75 of the Mysore Land Revenue Act, trees standing on lands shall be deemed to have been conceded to the occupant of such lands only where such trees have not been reserved by the Government at or about the time of original Survey Settlement or by any notification made or published at, or any time after such settlement. ( 10 ) AS the right to trees in Bane lands had not been conceded to the holders of Bane lands (except for the service of wet lands attached to bane or for bona fide domestic or personal use), Rule 137 of the Forest rules which prohibits holders of Bane lands from cutting or removing trees on Bane lands without obtaining permission of the Forest authorities and without payment of timber value, cannot be said to be inconsistent with the provisions of S. 75 of the Mysore Land Revenue Act. ( 11 ) IT was also contended by Mr. Gowrishankar that Rule 137 of the forest Rules, is violative of Art. 19 and Art. 31 of the Constitution. As trees in Bane lands are the property of the Government, the restriction that the holders of Bane land should not cut such trees without permission of the Forest authorities, cannot be said to affect the right of such holders to acquire, hold and dispose of property under Art. 19 (1) (f ). The restriction that a holder should before cutting trees thereon, pay the value of such timber, cannot also be said to be violative of Art. 31 of the Constitution because such timber is the property of the Government and not of the holders of Bane land, until it is redeemed. ( 12 ) IT was next contended by Mr. Gowrishankar that Rule 137 of the forest Rules is ultra vires of the Mysore Forest Act. Elaborating this contention, Mr. Gowrishankar submitted that Rule 137 does not come within any of the purposes for carrying out which, rules are empowered to be made under the Forest Act. Under each of Chapters-Ill to XII of the Mysore Forest Act, the State government has been conferred power to make rules for purposes of the respective Chapter. But Sec. 102 which occurs in Chapter-XII confers general powers on the State Government to make rules. That section reads :- 102. Under each of Chapters-Ill to XII of the Mysore Forest Act, the State government has been conferred power to make rules for purposes of the respective Chapter. But Sec. 102 which occurs in Chapter-XII confers general powers on the State Government to make rules. That section reads :- 102. General powers to make rules.- (1) The State Government may by notification, make rules to carry out all or any of the purposes of the Act. (2) In particular and without prejudice to the generality of the foregoing power, rules may be made.- (a) to prescribe and limit the powers and duties of any forest Officer under the Act; (b) to regulate the procedure of Forest Settlement Officers; (c) for the preservation, reproduction and disposal of trees, timber and other forest produce belonging to Government, but grown on lands belonging to or in the occupation of private persons; (d) to regulate the rewards to be paid to officers and informers out of the proceeds of fines and confiscation under the Act or otherwise. ( 13 ) ONE of the purposes specified in clause (c) of sub-sec. (2) of Sec. 102, is disposal of trees, timber and other forest produce belonging to the government but grown on lands belonging to or in the occupation of the private persons. In our opinion, this clause is wide enough to include disposal of trees and timber in Bane lands because such trees belong to the Government but are grown on lands in the occupation of private persons. Thus Rule 137 can be related to rule making power under clause (c) of sub-sec. (2) of Sec. 102. We are unable to accept the contention of Mr. Gowrishankar that Rule 137 is ultra vires of the Mysore Forest Act. ( 14 ) IT was next contended by Mr. Gowrishankar that even assuming that the right of the Government to trees standing on Bane lands had not been conceded to holders of such Bane lands, the reservation of trees by the government can extend only to such trees as were existing at the time of the oirginal Survey Settlement in the year 1910 and that trees that have grown on Bane lands subsequent to such Settlement, cannot be regarded as belonging to the Government but must foe regarded as belonging to holders of such Bane lands. ( 15 ) IN support of this contention, Mr. ( 15 ) IN support of this contention, Mr. Gowrishankar relied on the decision of a bench of the Bombay High Court in Emperor v. Yeliappa Ramangowda, (1920) 22 Bom. L. R. 884. There, the respondents had been convicted of a breach of rule 2 framed by the Bombay Government under Sec. 75 (c) of the Indian forest Act. The breach consisted in his having cut certain sandalwood trees grown on his occupancy holding. The question that arose for decision was whether trees which came into existence on his holding long after the first Survey Settlement, could be said to be the property of the government. Sec. 40 of the Bombay Land Revenue Code is in pari materia with Sec. 75 of the Mysore Land Revenue Act. Shah, J. , who delivered the leading judgment, said that there is nothing in the language of Sec. 40 of the Bombay Land Revenue Code to show that all future growths of sandalwood trees would belong to the Government and that the language of that Section would apply ordinarily to the existing growths of reserved trees at the date of the settlement and that all future growths belonged to the occupant. His Lordship added that trees in question in that case which were not shown to have been in existence at the date of the Survey Settlement, belonged to the occupant. Hayward, J. , in his concurring and separate judgment, said that it had not been shown that the reservations under Sec. 40 of the Bombay land Revenue Code, were ever intended to cover growths subsequent to the Survey Settlements and that it would be contrary to the ordinary rule of construction to apply the reservations for anything that was not then in existence. His Lordship added that if it had been intended by the reservation to include trees that might be grown on that land subsequent to the Survey Settlements, there would have been an explicit special provision to that effect. ( 16 ) WE think the legal position under Sec. 75 of the Mysore Land Revenue act is the same as under Sec. 40 of the Bombay Land Revenue Code in regard to trees that were not in existence at or about the time of original survey Settlement but which came into existence subsequently. ( 16 ) WE think the legal position under Sec. 75 of the Mysore Land Revenue act is the same as under Sec. 40 of the Bombay Land Revenue Code in regard to trees that were not in existence at or about the time of original survey Settlement but which came into existence subsequently. The reservation of trees in Bane lands under Rule 97 (1-b) of the Coorg revenue Rules and under Rule 137 of the Forest Rules, must be understood to be confined only to those trees which were in existence at the time of the Survey Settlement of 1910 and not in regard to trees that came into existence after 1910. In regard to trees which came into existence after 1910, we think there is no need for a holder of Bane land to redeem such timber. ( 17 ) BEFORE fixing the value of timber which a holder of Bane land should pay for cutting and removing trees on such lands, the Forest authorities have to determine which trees were in existence at or about the time of the Survey Settlement of 1910 and which trees came into existence subsequent to such Settlement. It is only in respect of the former category of trees, the Forest authorities can call upon the holder of Bane land to pay the value of such trees. ( 18 ) MR. A. C. Nanjappa appearing for the intervener, contended that rule 137 of the Forest Rules, is invalid on the ground that it is violative of principles of natural justice. Elaborating this contention, Mr. Nanjappa argued that that Rule does not require the Forest authorities to hear the holder of Bane land before determining which trees were in existence at or about the time of the Survey Settlement or in determining the kind of trees standing on such land and the value of such trees. No doubt, Rule 137 of the Forest Rules, does not expressly provide that the Forest authorities should hear the holder of Bane land before making such determination. No doubt, Rule 137 of the Forest Rules, does not expressly provide that the Forest authorities should hear the holder of Bane land before making such determination. But if any dispute arises beteween the forest authorities and the holder of Bane land as to whether a particular tree or trees was or were in existence at or about the time of the Survey settlement of 1910 or as to the kind of tree and the value thereof, there is, in our opinion, an implied duty cast on the Forest authorities to hear the holder of such land before making such determination. ( 19 ) AN pointed out by Gajendragadkar, C. J. , who spoke for the Bench in Lala Shri Bhagavan v. Ram Chand, AIR 1965 SC 1767 , it is not necessary that a statutory provision conferring power on an authority or body to deal with the rights of citizens must expressly impose on such authority or body, an obligation to follow the principles of natural justice. Such an obligation may in some cases be inferred from the scheme of the relevant statute, its material provisions, the nature of the power conferred on the authority or body, the nature of the rights of citizens affected by the decision of such authority or body and other relevant circumstances. ( 20 ) THERE is nothing in Rule 137 which prohibits or prevents the holder of Bane land being heard before determining such disputed questions. As Rule 137 can be construed in a manner consistent with principles of natural justice, that Rule cannot be held to be void on the ground of its being violative of principles of natural justice. ( 21 ) IN the light of our conclusions stated above, the prayer of the petitioners that the Forest authorities should be directed to issue them unconditionally a permit to remove the timber from the land of petitioner-1, cannot be granted. The Forest authorities are entitled to ask for payment of seignorage in respect of those trees which were in existence on such land at or about the time of the Survey Settlement of 1910. With these observations, we dismiss this petition. In the circumstances of this case, we direct the parties to bear their own costs. --- *** --- .