# STATE OF MYSORE & ANR v. M. M. THAMMAIAH & ANR

- **Citation:** [1975] 1 S.C.R. 422
- **Court:** Supreme Court of India
- **Decided:** 1974-05-02
- **Case number:** Civil Appeal No. 1721 of 1971
- **Bench:** M. H. Beg, Y. V. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-mysore-anr-v-m-m-thammaiah-anr-6342
- **Pages:** 7

## Headnote

Mysore Land Revenue Act, 1964--Rules for Classifiers issued under ReguB
la/ion l of 1899-Rule 10.-Whether contains all express order reserving right
of Government to the trees on Bane lands,
Appellant No. 1 sold certain soft wood trees standing on hls 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 Division!
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
C
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 inconsistant with provisions of s. 75(1) of the Mysore Land Revenue
Act, 1%4. 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 oi' the trees
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standing on Bane lands in favour of the State Government.
On the question whether ruje 10 of the Rules for Cla~sifiers contains an
express reservation Of trees standing on Bane lands in favour of the State
Government.
HELD : Rule IO 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 Lmd Revenue Act,
1964.
Rule 10 is a part of the rules meant for the g_uidance of classifiers
for implementing the impending survey settlement. The rules called
"Rules
for Classifiers" contain instructions as to how the ylassifiers 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
the Govemment. The vCry nature and context of the Rules for Classifiers
would show that .they could not passi.bly c_oncern t]lemselves with a matter
regulating the vesting of a substantive nght hke the right of the State GGvemment 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 tho appeal. The question as
regards the validity of the rule is now academic.]
[428C·D]

## Text

422
STATE OF MYSORE & ANR.
A
v.
M. M. THAMMAIAH & ANR.
May 2, 1974
(M. H. BEG AND Y. V. CHANDRACHUD, JJ.J
Mysore Land Revenue Act, 1964--Rules for Classifiers issued under ReguB
la/ion l of 1899-Rule 10.-Whether contains all express order reserving right
of Government to the trees on Bane lands,
Appellant No. 1 sold certain soft wood trees standing on hls 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 Division!
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
C
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 inconsistant with provisions of s. 75(1) of the Mysore Land Revenue
Act, 1%4. 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 oi' the trees
D
standing on Bane lands in favour of the State Government.
On the question whether ruje 10 of the Rules for Cla~sifiers contains an
express reservation Of trees standing on Bane lands in favour of the State
Government.
HELD : Rule IO 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 Lmd Revenue Act,
1964.
Rule 10 is a part of the rules meant for the g_uidance of classifiers
for implementing the impending survey settlement. The rules called
"Rules
for Classifiers" contain instructions as to how the ylassifiers 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
the Govemment. The vCry nature and context of the Rules for Classifiers
would show that .they could not passi.bly c_oncern t]lemselves with a matter
regulating the vesting of a substantive nght hke the right of the State GGvemment 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 tho appeal. The question as
regards the validity of the rule is now academic.]
[428C·D]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1721 of 1971
and 1000 of 1972.
Appeals by certifiC'ate 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. Bym 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.
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MYSORE v. M. M. THAMMA!AH (Chandrachud, !.)
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 ,;alled M. M. Thammaiah and B. M. Kar)appa (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 .
Appell-ant 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 uuder
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 A~icle 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 Mvsorc 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 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.
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 rnme 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 Talu'k,
9-L177SupCl/75
424
SUPREME COURT REPORTS
(1975] 1 s.c.R.
which was once oa part cf 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 Commis"
'ioner of Coorg.
The Coorg Land and Revenue Regulation came into force in 1899
(Regulation I-A of !899). 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 pid .timber value when the grant was made
would enjoy the personal usufruct of the trees growing upon the land
for the purpose ior 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
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was allotted by the Rajas for each 'Warg'. Each rice-cultivated valley
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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 Gornrnment
for the re-settlement of survey and a notification was
accordingly
issued under Rule 49 of ReguJoation I of 1899.
In January, 1908
Rules were issued for the guidance of 'Classifiers' for implementation
of the re-settlement scheme.
These Rules can be found in AppenJix
B to the letter dated February 18, 1910 written by Gustav Haller,
Settlement Officer, Coorg, to the Secretary to the Chief Commissioner
()f 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 (jam~, sagu, jodi, jaghir, umbli)
of which ten acres may be cultivated free of assessment.
Ex10/anation.-These banes are still attached to their wet
lands, and have been obtained by the owners prior to 21st
Mny, 1886. Cultivation not exceeding ten acres is exempted
from assessment·
But there are a fe\v
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 uncultivrited no assessment C'an 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
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MYSORE v. M. M. THAMMAIAH (Chandrachud, J.)
425
situated, ~ll 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 1t mto 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 J 950, Coorg became a
Part 'C' State and on November I, 1956 it became a part of the new
S~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 kgislature 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 I 02 of that Act empowers the
State Government to make rules to carry out all or •any of the purposes
oi the Forest Act.
After the commencement of that Act the Mvsore
Forest Rules wer'~ promulgated by the State Government in i 969.
Rule 137 which is impugned by the appellants is in these terms :
"137. Redemption of trees in Bane lands in Coorg District-
(!) No holder of Bane lands who has not paid
the
timber value when the grant was made or subsequently, slrall
cut or remme any tree or timber or any other material
obtained from such tree for purposes other than those for
which the Banc 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 Mvsore 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 I of 1899.
Section 75 of the Land Revenu~ Act which
has an important bearing on the case provides for the nght to trees
in villages in which survey settlement has been mtroduced.
Learned counsel for the appellants urges that by virtue of the proV!Sioils contained in section 7 5 ( 1) of the Mysore Land Revenue Act.
1964 appellant No. 1 must be deemed to have becom~ .the owner of
trees standing on the Bane lands and therefore the DJVIs1onal Forest
Officer has no right under Ruk 137 of the Mysore Forest Ruks. 1969
to .ask for the payment of the timber value of the trees before they
426
SUPREME COURT REPORTS
[1975] l S.C.R.
can be cut and removed.
This argument requires an examination of
the terms of section 75 (1) which reads thns :
"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."
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This ?revision, in our opinion, admits of no doubt or difficulty. The
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cond1t10n precedent to the application of section 75 (I) 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
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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
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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
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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 lp. 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
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MYSORE v. M. M. THAMMAIAH (Chandrachud, J.)
427
that the settlement operations have begun." By Rule 4 the classification. of wet lan~s is to be taken up first and for that purpose various
details are reqmred 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 I 0 which begins with the recit•al : "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
Cl•assifiers'
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 1 O may
be said to refer to a historical fact.
The learned Advocate-General of Koarnatka 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 (I) AppelJaut No. I, not being an occupant, cannot claim the benefit of section
75 (I) of the Mysore Land Revenue Act, 1964; (2) th•at, concededly
owners of Bane lands like appellant No. I had no right to the trees
growing thereor. until April 1, 1964 when the Act of 1964 came into
force and section 75 (I) 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 I 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 inadequat~. They ~ave not
made avermer.ts necessary for a proper understandmg 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 claim~ i~ the writ petition. The State
Government by its counter-affidavit m the High Court rested content
428
SUPREME COURT REPORTS
[1975] 1 s.c.R.
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
011 vast tracts of forest areas and it ought to have shown a greater
concern for those rights. The upshot of the matter i.s 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.
B
We may also indicate that the only reiiei sought by the appellants
by their writ petition is that Rule 137 of the Mysore Forest Rules,
l '169 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)
C
Rules, 1973 notified on January 15, 1974. In spite of the deletion
"
cf 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 tne vindication of
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their rights.
Our judgment will conclude the question regarding the
mterpretation of Rule l 0 of the Rules for CJoassifiers 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 (l) of the Mysore Land Revenue Act, 1964.
Accordingly, we set aside the judgment of the High Court on the
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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 'ulidity of Rule 137 is now academic as the rule has been deleted. In the
circumstances of the case there will he 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.
A ppea/ allowed.