CHANDRASHEKHAR, J.

( 1 ) PETITIONERS 1 to 6 were holders of a Bane land of an extent of 14. 90 acres in S. No. 142 of Valnur village, Somwarpet Taluk, Coorg District. Under a registered sale deed dated 14-10-1966, they sold that land to petitioner-7 for a sum of Rs. 20,000. On 16-10-1967 the Deputy Commissioner of Coorg (Respondent-2) issued a notice (Ex. B) to petitioners 1 to 6 intimating them that that land was sold without the previous permission of the Government and in contravention of the provisions of S. 45 of the coorg Land and Revenue Regulation, 1899 (hereinafter referred to as the regulation) and called upon them to show cause why action should not "be taken against them under S. 45 of the Regulation and the Rules issued thereunder (hereinafter referred to as the Rules ). Ultimately the Government, by its order dated 29-8-1968 (Ex-D), accorded ex-post facto sanction for the alienation of that land subject to payment of a Nazarana of 20% of the market value of that land (i. e. , Rs. 4,000 ).

( 2 ) IN this petition under Art. 226 of the Constitution, the petitioners have prayed for quashing: (i) the notice (Ex-B) dated 16-10-1967; and (ii) the order of the Government dated 29-8-1968 (Ex-D ). They have also prayed for striking down sub-rule (1) of Rule 167 of the Rules as being ultra vires of the Regulation. Before dealing with the contentions of the parties, we shall set out the nature of Bane lands and the relevant statutory provisions. As pointed out by this Court in ramashetty v. Appanna, 1959 Mys. L. J. 218. there is no statutory definition of the term 'bane' in the Regulation. However, appendix-III to the Coorg Revenue Manual contains definitions of terms used in the Rules.

( 3 ) THE term 'bane' has been defined as forest land granted for the service of the holding of wet land to which it is allotted to be held free of revenue by the cultivator for grazing and to supply leaf manure, firewood and timber required for the agricultural and domestic purposes of the cultivator so long as he continues in possession of the wet land. The term 'alienated Bane' has been defined as land originally granted as Bane, but which has become subject to assessment owing to its separation from the wet land for the service of which it was formerly held. The term 'bane' and 'warg' have been explained thus in Chapter-V of the Coorg Settlement Report, 1910:" 'bane'-A considerable area of the adjacent forest land was considered necessary for grazing leaf manure, firewood and timber for agricultural purposes, and was allotted by the Rajas for each ward in blocks varying from a few acres to 300 acres or more. These allotments were recorded in the revenue accounts of the Raja's 'sists' under the name 'bane'. This land may not ordinarily be cultivated, and only the usufruct of the tree growth is allowed. 'warg'-Each rice-cultivated vally is known as a 'kovu' divided in the Raja's (of Coorg) times into plots called 'wargs' averaging 1 acres in extent. "in Rama Setty v. Appanna, (l) the following passage in Baden- powell's book on Land Systems in British India, has been extracted at pages 222 and 223:" The Bane. . . . . . is destined to supply the warg-holder with grazing timber, fire-wood, and herbage which he burns on the rice-fields to give ash-manure to the soil. But the produce must be strictly used for the supply of agricultural and domestic wants of the holder; and if timber, etc. , is sold, the tenure is infringed, and Government has a right to demand seignorage on the wood. . . . . . In the janmmaterune, as the bane is included in the sanad, it is virtually a part of the property. In the sagu tenure, there is no sanad; but the attached area of bane must be held and used subject to the same conditions. Under these circumstances, the bane cannot be regarded as actually the property of the tenure-holder, nor, on the other hand, as land at the disposal of Government. It is rather land which is held as an appendage to a warg or estate, or

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