JUDGMENT

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 condition attached to the assignment of kumki land made in favour of Respondent 1, was quashed.

2. The District of South Kanara was, before the re-organization of States in 1956, a part of the State of Madras. There are peculiar land tenures in that District. Wargs formed prior to Fasli year 1276 (corresponding 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". Owners of the Warg lands enjoy certain privileges in respect of kumki lands. Such privileges include the use of kumki lands for grazing cattle, cutting and collecting leaves, timber and other forest produce for agricultural and domestic purposes of the Kumkidar. These privileges are regulated by Rules framed under Section 26 of the Madras Forest Act (hereafter referred to as the Rules). They are not alienable except with the land to which they are attached. 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. 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. If an offence is committed 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, not exceeding Rs. 200/-, on the Kumkidar. Rule 5 (a) provides, inter alia, that the Kumkidar has a preferential claim for assignment of the Kumki land subject to predominant public interest.

3. Respondent No. 1, herein was a registered holder of Kadim Warg Lands Survey Nos. 90/8, 90/9, 8, 22, 24 etc. of Kakkunji village under Kadim Kumki Right. Subsequently, land in Survey No. 91/9 along with its appurtenant kumki rights, was purchased by him from one K. Y. Adiga. The plots in Survey Nos. 134/2 and 134/3, are adjacent to the Warg Lands of Respondent 1, and the latter had kumki rights in these plots.

4. 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. 134/2 and 134/3. 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. He therefore recommended the case to the Government for sanction. During the pendency of those proceedings, the State Government passed Order No. 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). The timber may be removed by the authorities of the Forest Department as in the case of any other lands."

5. Accordingly the Tehsildar, Udipi on September 9, 1964 communicated this order of assignment to Respondent 1:

" NOTICE

Sub: Assignment-Land-Udipi Taluk-Kakkunje village S. NO. 134/2 and 3 - grant under Kumki right - sanctioned.

"The lands S. 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 condition that 20 per cent of the timber limiting the value of Rs. 1000 shall be allowed to the petitioner and rest of the timber will be removed by the forest Department. He is therefore requested to give his consent to the removal of