Case: State Of Mysore &amp; Anr Vs. M. M. Thammaiah &amp; Anr

2. Appellant No.1, M. M. Thammaiah claims to be the holder of immovable properties consisting partly of "Bane lands", situate of 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 1969.3. Aggrieved by this order the appellants filed a petition in the High Court of Mysore under Article 226 of 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.4. The High Court of Mysore upheld the validity of Rule 137 but it took the view that the appellants were liable to pay the timber 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 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.

Reasoning:
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 States contention that the particular trees are vested in it.15.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 instruction as to how the Classifiers should conduct themselves in making the survey settlement. For example, Rule 1 says that "Each 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 conspicious place of the village a copy of the Chief Commissioners Notification announcing that the settlement operations have begun". By Rule 4 the classification of wet lands is to be taken up first and for 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.The learned Advocate-General of Karnataka 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 Section 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 I-A 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.18. These arguments have been controverted by Mr. Javali on behalf of the appellants and by Mr. Pal 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 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 contentions raised by the parties except the one relating to the construction of Rule 10 of the Rules for Classifiers.19. 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.20. 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.