Judgment

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 called M. M. Thammaiah and B. M. Kariappa (herein called the appellants), against the State of Mysore and the Divisional Forest Officer, South Coorg Division, Hunsur, Mysore (herein caled the respondents). Civil Appeal 1721 of 1971 is filed by the State of Mysore and the Divisional Forest Officer.

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. 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 came 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.

5. The lands in question were granted to appellant No.1 by the Raja of Coorg and are situated in the village of Nemmale, Virajpet Taluk, which was once a part of 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 order issued by the Chief Commissioner of Coorg.

6. The Coorg Land and Revenue Regulation came into force in 1899 (Regulation I-A of 1899), 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 paid timber value when the grant was made would enjoy the personal usufruct of the trees growing upon the land for the purpose for 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.

7. The term Bane land is not defined in the Coorg Land and Revenue Regulation, 1899 but it would a