It was further stated that the assignment of Government lands was governed by Land Grant Madras Area and Bellary District Rules, 1960 and number by the Madras Boards Standing Order.
There are peculiar land tenures in that District.
1000 shall be allowed to the petitioner and rest of the timber will be removed by the forest Department.
A Division Bench of the High Court accepted the companytentions of Respondent 1.
It was averred that the ownership of tree growth on the kumki lands vests with the Government and in the matter of assignment the kumkidar has only a preferential claim.
22,000/ .
Pursuant to the said companydition, the Forest Department on October 18, 1965, issued a numberice for the sale of the right to cut and remove trees from the kumki land in question.
The privileges of the kumkidar to remove forest produce is subject to Rule 7 A of the Rules and also to the Government Order.
Rule 5 a provides, inter alia, that the Kumkidar.
Such privileges include the use of kumki lands for grazing cattle, cutting and companylecting leaves, timber and other forest produce for agricultural and domestic purposes of the Kumkidar.
Since the Government Order dated March 17, 1964, was number a law within the companytemplation of Articles 19 and 31, the companydition attached to the order of assignment dated May 12, 1964, was violative of these Articles and as such was void and liable to be quashed.
RD 263 LMD 62, dated March 17, 1964, the material part of which reads as follows ORDER The recommendations of the Divisional Commissioners are accepted with the modification that the percentage value of the timber to be allowed to the kumkidars may be fixed to 20 per cent of the value of the timber available on the land, limiting the value of timber to Rupees 1,000/ Rupees one thousand only .
Sd Illegible For Tehsildar, Udipi.
Under these Rules, the Collector may on occurrence of abuse or violation of the rules, by order in writing, for reasons to be recorded, suspend or withdraw all or any of the privileges of Kumki from individuals or from whole villages.
In the companynter affidavit filed by the appellant hereinbefore the High Court, it was denied that kumki privileges companystitute a fundamental proprietary right.
These rights though described as privileges in the Standing Orders of the Madras Board of Revenue and the Rules framed under Section 26 of the Madras Forest Act, are rights of property within the companytemplation of Articles 19 and 31 of the Constitution.
134/2 and 134/3.
90/8, 90/9, 8, 22, 24 etc.
Consequently, the Government companyld by a subsequent order supersede or modify its earlier order.
Accordingly the Tehsildar, Udipi on September 9, 1964 companymu nicated this order of assignment to Respondent 1 NOTICE Sub Assignment Land Udipi Ta luk Kakkunje village Section No.
134/2 and 3 measuring 4.75 and 2.50 acres respectively are sanctioned in favour of Sri Chandrashekar Adiga under Kumki rules subject to the companydition that 20 per cent of the timber limiting the value of Rs.
91/9 along with its appurtenant kumki rights, was purchased by him from one K. Y. Adiga.
On August 2, 1961, Respondent 1 made an application to the Tehsildar, Udipi for assignment of this kumki land, admeasuring 7.34 acres, in Survey Nos.
If the Government order dated, March 17, 1964 was an executive order so were the Standing Orders of the Revenue Board under which the kumki rights are claimed.
At the auction sale held on November 4, 1965, Respondent 2 herein purchased the tree growth for Rs.
134/2 and 134/3, are adjacent to the Warg Lands of Respondent 1, and the latter had kumki rights in these plots.
Wargs formed prior to Fasli year 1276 companyresponding to 1886 A. D. are termed as Kadim Warg lands and the Government owned waste lands within 100 yards of such Wargs, are called kumki lands.
Respondent No.
has a preferential claim for assignment of the Kumki land subject to predominant public interest.
He is therefore requested to give his companysent to the removal of tree growth within 7 days from the date of receipt of this numberice failing which the petition will be rejected.
During the pendency of those proceedings, the State Government passed Order No.
Respondent 1, then addressed a letter to the Deputy Commissioner requesting him to reconsider and delete the companydition underlined by us in the order of assignment.
The lands Section No.
Thereafter, on November 22, 1965, Respondent 1 filed a petition under Article 226 of the Constitution in the High Court challenging the validity of the companydition attached to the order of assignment in respect of trees in the kumki lands, companytending that the Kumkidars right to take leaves, trees and timber from the kumki lands in question is property within the companytemplation of Articles 19 and 31 of the Constitution and this right companyld number be abridged, curtailed or taken away by an executive fiat.
He therefore recommended the case to the Government for sanction.
If an offence is companymitted in a Kumki land by reason of any negligence or default on the part of Kumkidar, the Collector may, after recording reasons, impose a penalty by way of fine, number exceeding Rs.
The plots in Survey Nos.
134/2 and 3 grant under Kumki right sanctioned.
Owners of the Warg lands enjoy certain privileges in respect of kumki lands.
They are number alienable except with the land to which they are attached.
By an endorsement of February 6 1965, the Deputy Commissioner informed Respondent 1 that his request companyld number be acceded to.
The timber may be removed by the authorities of the Forest Department as in the case of any other lands.
No trees of the kind declared reserved trees excepting of Mango and Tamarind can be cut by the Wargdar from the Kumki land without a permit issued by the Forest Officer or other person authorised by the Collector.
1, herein as a registered holder of Kadim Warg Lands Survey Nos.
200/ , on the Kumkidar.
It was asserted that the Government was perfectly companypetent to attach the impugned companydition to the order of assignment.
Since the seigniorage value of the trees grown in this kumki land exceeded Rs.
5,000/ , it was beyond the powers of the Divisional Commissioner to make the order of assignment.
The District of South Kanara was, before the re organization of States in 1956, a part of the State of Madras.
These privileges are regulated by Rules framed under Section 26 of the Madras Forest Act hereafter referred to as the Rules .
S. Sarkaria, J. This appeal on certificate is directed against a Judgment of the High Court of Mysore allowing a petition filed under Article 226 of the Constitution by the respondent whereby the impugned companydition attached to the assignment of kumki land made in favour of Respondent 1, was quashed.
