Karnataka High Court
T John vs State Of Karnataka on 17 February, 2026
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 4500 OF 2012 (GM-FOR)
BETWEEN
1. T JOHN
AGED ABOUT 78
SINCE DEAD BY LR's
P1A SHEELA SAMUEL
W/O SAMUEL MATHAI
SINCE DEAD BY LR'S
P1A(i) SAMUEL MATHAI NOORAMAL
S/O MATHAI NOORAMAL
AGED ABOUT 60 YEARS
P1A(ii) JOHN SAMUEL
S/O SAMUEL MATHAI
AGED ABOUT 28 YEARS
Digitally signed
by SHWETHA P1A(iii) MANASA SAMUEL
RAGHAVENDRA
D/O MATHAI SAMUEL
Location: HIGH
COURT OF AGED ABOUT 23 YEARS
KARNATAKA
ALL ARE RESIDING AT
#33, ST JOHN ROAD CROSS
RUKMANI COLONY,
BANGALORE NORTH
SIVAN CHETTY GARDENS
BANGALORE NORTH
BANGALORE-560042.
P1B SHIJI BALU PAUL
AGED ABOUT 54 YEARS
W/O BALU PAUL
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21, KAIRALI APARTMENTS
PANAMPALLY NAGAR
ERNAKULAM
PANAMPALLY NAGAR
KERALA-682036.
2. THOMAS P JOHN
AGED ABOUT 53 YEARS
S/O T JOHN
3. PAUL P JOHN
AGED ABOUT 50 YEARS
S/O T JOHN
4. BIJU P JOHN
AGED ABOUT 48 YEARS
S/O T JOHN
PETITIONERS 2 TO 4 ARE
R/AT GANAPATHI STREET
MADIKERI 571201
KODAGU
... PETITIONERS
(BY SRI. S.R. KAMALACHARAN., ADVOCATE)
AND
1. STATE OF KARNATAKA
REPRESENTD BY SECRETARY TO
GOVERNMENT
DEPARTMENT OF REVENUE
M S BUILDING
DR. AMBEDKAR VEEDHI
BANGALORE - 560001
2. THE SECRETARY TO DEPARTMENT
DEPARTMENT OF FOREST AND ECOLOGY
M S BUILDING
DR. AMBEDKAR VEEDHI
BANGALORE - 560001.
3. THE CONSERVATOR OF FORESTS
KODAGU CIRCLE, MADIKERI
KODAGU DISTRICT
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4. THE DEPUTY CONSERVATOR OF FORESTS
VIRAJPET DIVISION
VIRAJPET
KODAGU DISTRICT
5. THE DEPUTY COMMISSIONER
KODAGU DISTRICT
MADIKERI
6. PATTACHARUVANDA VIJU MUTHAPPA
S/O P.B. CHINGAPPA,
AGED 41 YEARS,
R/AT CHALAVARU VILLAGE,
MADIKERI TALUK
KODAGU DISTRICT.
.... RESPONDENTS
(BY SRI. PRADEEP C.S., AAG., A/W
SRI. MAHANTESH SHETTAR., AGA FOR R1 TO R5;
SRI. T.A. KARUMBAIAH., ADVOCATE FOR R6)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF WRIT OF CERTIORARI OR ANY OTHER WIRT, QUASHING
THE ORDER PASSED BY THE THIRD RESPONDENT DATED 16.12.2011
AS PER ANNEXURE S AND ALSO THE SHOW CAUSE NOTICE DATED
16.12.2011 ISSUED BY THE THIRD RESPONDENT AS PER ANNEXURE
T.
THIS WRIT PETITION COMING ON FOR ORDERS AND HAVING
BEEN RESERVED FOR ORDERS ON 18.12.2025, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
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CAV ORDER
1. The petitioners are before the Court seeking for the
following reliefs:
a. ISSUE a Writ In the nature of Writ of Certiorari or
any other writ, quashing the order passed by the
third respondent in case no. Bhoomi (SL) CR
66/2005-2006 dated 16-12-2011 as per
ANNEXURE-S and also the Show Cause Notice
bearing no. Bhoomi (SL) CR 66/2005-2006 dated
16-12-2011 issued by the third Respondent as per
ANNEXURE - T.
b. ISSUE a Writ in the nature of Writ of Mandamus or
any other Writ, directing the Respondents to
comply with the orders passed by this Hon'ble
Court, in Writ Petition No.4013/2007 dated 15-3-
2009 as per ANNEXURE-L; AND
c. ISSUE such other writ, order or direction as this
Hon'ble Court deems fit in the facts and
circumstances of the case including an order as to
cost in the interest of justice and equity.
2. The Petitioners assert that an extent of 488.06 acres
of land situated at Chelavara Village, Napoklu Hobli,
Virajpet Taluk, Kodagu District, comprising the
following survey numbers originally belonged to the
Pattacharavanda family.
• Sy.No.129/3 - 9.74 acres
• Sy.No.154/8 - 2.24 acres
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• Sy.No.154/31 - 40.00 acres
• Sy.No.154/32 - 35.00 acres
• Sy.No.154/33 - 35.00 acres
• Sy.No.154/34 - 120.00 acres
• Sy.No.154/35 - 97.00 acres
• Sy.No.154/36 - 104.42 acres
• Sy.No.170 - 16.54 acres
• Sy.No.173 - 5.00 acres
• Sy.No.174 - 3.78 acres
• Paradeena land in Sy.No.154/2 - 19.34 acres
3. It is their case that these lands were granted more
than 300 years ago by the erstwhile Rulers of Coorg.
The lands were allegedly classified as Jamma Sagu
Malai lands, a category historically associated with
hereditary cultivation rights, particularly for
plantation crops such as cardamom. According to the
Petitioners, the grantees and their susccessors
cultivated cardamom and other plantation produce,
paying assessment initially to the Rajas of Coorg and
subsequently to the Coorg Government after
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administrative transition. The Petitioners thus trace
their claim not merely to a private transaction, but to
an asserted pre-colonial grant, continued under
successive sovereign administrations. However, it is
admitted that due to arrears of land revenue, the
Government is stated to have resumed possession of
the lands in the year 1926 for recovery of dues.
4. Following resumption for arrears, the Coorg
Government, acting through its Revenue Authorities,
conducted a public auction under the provisions of
the Coorg Land and Revenue Regulations in 1926.
One Palekanda Medappa, then serving as District
Judge, emerged as the highest bidder. Upon
completion of auction formalities, Sale was
confirmed, Possession of the lands was delivered;,
Revenue records were mutated in his name. The
Petitioners rely upon this auction as a fresh root of
title, contending that the State itself alienated the
lands through a lawful public process.
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5. In 1941, Palekanda Medappa executed a registered
sale deed in favour of Sri.Emmanuel Thomas
Rampuram. The sale is stated to have been effected
pursuant to orders of the Commissioner of Coorg.
Consequent mutation proceedings were undertaken,
and the revenue records were transferred in the
name of Sri Emmanuel Thomas Rampuram. He
remained in possession and enjoyment of the lands,
paying land revenue and cultivating the property.
The Petitioners emphaside this long, undisturbed
possession as indicative of recognition of proprietary
or at least transferable rights.
6. In 1975, Sri.Emmanuel Thomas Rampuram sought
permission from the Deputy Commissioner to remove
certain standing trees. The request was refused,
thereby giving rise to a dispute regarding the nature
and extent of his rights. He pursued remedies
through, an appeal before the Karnataka Appellate
Tribunal; and Institution of O.S. No.4 of 1978 before
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the Civil Judge, Madikeri the suit sought declaration
of title and allied reliefs.
7. The Trial Court partly decreed the suit, declaring that
Sri.Emmanuel Thomas Rampuram was entitled to
enjoy the lands as a Malai holder, that he could
cultivate cardamom and exercise rights as a
Mallegar. However, the Court declined to declare him
absolute owner of the tree growth. Thus, the Trial
Court recognised limited tenure rights but declined to
confer full proprietary rights over forest produce.
8. Aggrieved by the denial of full ownership over trees,
Sri.Emmanuel Thomas Rampuram preferred R.A.
No.7 of 1978. The First Appellate Court allowed the
appeal and declared that he was absolute owner of
both land and trees, reasoning that title flowed from
the 1926 auction sale conducted by the Government.
This judgment elevated his status from that of a
tenure-holder to that of absolute owner.
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9. The Government of Karnataka challenged the
appellate judgment in RSA No.466 of 1980. This
Court allowed the Second Appeal and restored the
decree of the Trial Court. The legal consequence of
the Second Appeal was that recognition of rights only
as Jamma Sagu Malai holder, Rejection of absolute
ownership over tree growth, Restriction of rights to
cultivation and enjoyment subject to tenure
conditions. A Special Leave Petition was filed before
the Supreme Court and was dismissed.
Consequently, the decree of this Court attained
finality.
10. Thereafter, Sri.Emmanuel Thomas Rampuram and
his children transferred the lands to Petitioner No.1.
Following the transfer, Mutation entries were
effected, Petitioner No.1 was recorded as Jamma
Malai holder; Possession and cultivation continued.
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11. The Petitioners assert that they stepped into the
shoes of their predecessor, subject to the rights
recognised in RSA No.466 of 1980.
12. A Public Interest Litigation in W.P. No. 36630 of 2003
was instituted concerning Jamma lands across Coorg
District. The Division Bench appointed the Chief
Secretary as Commissioner to inspect Jamma lands
and submit a report. Upon submission of the report,
directions were issued to the Deputy Commissioner
to initiate steps to alter revenue records and record
such lands as Government forest lands. The
Petitioners impleaded themselves in the PIL. This
Court permitted them to file objections and challenge
any adverse action taken pursuant to the report.
13. The Deputy Commissioner invoked Section 136 of
the Karnataka Land Revenue Act, 1964, and directed
deletion of the name of Petitioner No.1 from revenue
records. The Tahsildar implemented the order. The
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Petitioners challenged these actions in W.P.No.4013
of 2007. This Court held that:
13.1. The change of entries was illegal;.
13.2. It lacked statutory authority;
13.3. It was unsupported by material evidence;
13.4. The Chief Secretary's report, insofar as it
concerned Petitioners' lands, was contrary to
record and made without proper enquiry.
13.5. Thus, administrative action altering revenue
entries was judicially invalidated.
14. Subsequent to the directions issued by the Division
Bench in the Public Interest Litigation requiring
enquiry into the status of Jamma lands in Kodagu
District, further proceedings were initiated at the
administrative level.
15. The Petitioners specifically contended that the
enquiry, if any, ought to have been conducted strictly
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by the authorities who were respondents in W.P.
No.36630 of 2003 and who were directly bound by
the judicial directions issued therein. It was their
case that Respondent No.3 herein was neither a
party to the PIL proceedings nor expressly authorised
by the Court to undertake independent adjudicatory
proceedings affecting their rights. According to the
Petitioners, any such unilateral exercise of power
would amount to assumption of jurisdiction not
conferred either by statute or by judicial mandate.
16. Notwithstanding these objections, Respondent No.3
proceeded to initiate and conduct an enquiry
concerning the subject lands and thereafter passed
orders adverse to the Petitioners. In substance,
Respondent No.3:
16.1. recorded a finding that lands classified as
Jamma Malai lands fall within the ambit of
"statutory forest" under the scheme of the
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Karnataka Forest Act, 1963. The finding
appears to have been premised on the
historical character of such lands, their alleged
forest attributes, and the contention that
cultivation rights did not divest the State of
underlying ownership or forest character. This
determination effectively re-characterised the
lands from revenue tenure lands to forest
lands, thereby altering the legal regime
governing them.
16.2. Proceeding on the premise that the lands
constituted forest lands belonging to the
Government, Respondent No.3 invoked Section
82 of the Karnataka Forest Act, 1963. The
provision pertains to forfeiture or cancellation of
leases or grants in cases of breach of conditions
or unauthorised occupation. By invoking this
provision, Respondent No.3 treated the
Petitioners not as tenure holders recognised
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under revenue law, but as lessees or grantees
holding under forest law, thereby subjecting
their rights to a different statutory framework.
16.3. On the basis of the above conclusion,
Respondent No.3 proceeded to declare
forfeiture of what was described as leasehold
rights of the Petitioners. This action had the
effect of extinguishing their possessory and
cultivation rights, which had earlier been
recognised, though in limited form, by judicial
pronouncement in RSA No.466 of 1980.
17. The Petitioners contend that such forfeiture:
17.1. Proceeds on an erroneous assumption that their
rights were mere leasehold rights under the
Forest Act;
17.2. Ignores the binding effect of earlier civil
decrees and subsequent judicial orders;
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17.3. Transcends the jurisdictional limits of the
authority.
18. In addition to the forfeiture proceedings, Respondent
No.3 directed the Petitioners to pay land rent in
respect of the subject property, thereby treating
them as persons liable under a subsisting lease or
occupation arrangement under forest administration.
The Petitioners assert that such demand is internally
inconsistent with the order of forfeiture and is
unsustainable in law, particularly in light of prior
recognition of their status as Jamma Malai holders
under revenue jurisprudence.
19. The culmination of the aforesaid proceedings was the
interim order dated 16.12.2011 passed in Case No.
Bhoomi (SL)/CR-66/2005-06. The said order forms
the principal subject matter of challenge in the
present writ petition. The Petitioners contend that
the impugned order:
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19.1. Is without jurisdiction;
19.2. Violates principles of natural justice;
19.3. Runs contrary to earlier judicial determinations;
19.4. Seeks to indirectly nullify the effect of the order
dated 15.03.2009 passed in W.P. No. 4013 of
2007.
20. It is in the above circumstances that the Petitioners
have approached this Court, seeking quashing of the
impugned order and consequential reliefs.
21. The Petitioners have challenged the said order in the
present proceedings, and additionally seek
compliance with the earlier order dated 15.03.2009
passed in W.P. No. 4013 of 2007.
22. Sri. Kamalacharan, learned counsel appearing for the
petitioners, would submit that;
22.1. There are two portions of property, one is the
Jamma Malai Land, the other is the Patta Land
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in Sy.No. 154/2, which was never Jamma Malai
Land, but a freehold land owned by the family
of Sri. Emmanuel Thomas Rampuram, as
regards which there could be no restriction on
use.
22.2. Insofar as 19.34 acres in Sy.No.154/2 is
concerned, he submits that the respondents
have absolutely no jurisdiction and as such,
they cannot have any claim or complaint on the
use thereof. His submission is that it is in this
land that a coffee estate is being grown, which
the petitioners are entitled to do so.
22.3. Insofar as the balance land is concerned, he
submits that the rights of the Mallegar in the
said land as Jamma Malai Land has been
recognised in O.S.No.4 of 1978, and that
aspect is saved under Section 202 of the KLR
Act, 1964.
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22.4. His submission is that though the holder of the
Jamma Malai Land may not be the absolute
owner, but such holder is entitled to hold the
lands and cultivate Cardamom on the said
property, which cannot be disturbed.
22.5. This judgment of the trial Court was set aside in
a Regular Appeal by the District Court.
However, in RSA No.466 of 1980 the judgment
of the trial Court was confirmed, and it was
held that the property in question being Jamma
Malai Lands, the possessory rights as also the
the right to grow Cardamom by the Jamma
Malai Landholder was recognised and
confirmed. This right being affirmed in RSA
No.466 of 1980 that right cannot be sought to
be negated by the respondents on the ground
that there is a lease rent to be paid and/or that
there is a violation by the petitioners.
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22.6. The right of the petitioners in respect of the
Jamma Malai Land having been dealt with by
this Court firstly in RSA No.466 of 1980 and
secondly in WP No.4013 of 2007, he submits
that the respondent could not have held
otherwise than what has been held by this
Court. The doctrine of res judicata and the
principles of judicial propriety preclude the
respondents from contending contrary to or in
defiance of the judgments of this Court.
22.7. He relies upon the decision of this Court in
Chief Secretary to Government of
Karnataka v. Pongere Kariappa1 more
particularly para 14 and 15 thereof, which are
reproduced hereunder for easy reference;
14. Un reported decision in R.F.A. No. 655/1989
dated 30.11.1990 by the Bench consisting
Justice N. Venkatachala and Justice Murlidhar
Rao was brought to my notice which directly
applies on the point and facts are similar. This is
what the Bench observed:--
1
ILR 1999 Karn. 1023
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"the lands originally belonged to one Chennappa
Somiah, who fell in arrears in payment of land
revenue. The lands were auctioned by the
revenue authorities. Plaintiff's father was the
auction purchaser. The sale certificates are
produced as Ex. P3 and P4. Defendants
contested the suit by filing written statement,
however they did not lead any evidence. After
assessing the evidence, the Court below decreed
the suit.
In addition to the sale certificates at Ex. P3 and
Ex. P4, the plaintiff has produced the
'Jamabandi' statement at Ex. P2, which makes it
clear that Sy. No. 13/6, 13/7, 13/39 and 13/3A
are described as "Sagu Bane" lands. In the
auction sale certificates all lands are described
as "Sagu lands" and it is not indicated that they
are unredeemed lands. In the circumstances,
the Court below was justified in holding that the
timber was given after the sale. So far as Sy.
No. 39/2 is concerned, it does not find a place in
Exts. P3 and P4 and no other document of title is
produced."
Here also it is to be seen that the defendant do
not lead any evidence nor produced any
documents. Another reference was made to the
decision made in O.S. No. 118/1994 where the
facts are same if not similar. There also the
plaintiff have purchased the suit property in a
public auction sale and that the plaintiff claimed
right over the land, the Government contended
that though the tenure of suit land was
mentioned as 'Jamabhandi' as it appeared in
Jamabhandi register, the right of timber was not
sold to the plaintiff. An issue was framed in that
case as to whether the public auction sale held
on 19.8.1932 was an absolute sale and whether
the plaintiff has acquired absolute right over the
suit schedule property? The issue was answered
in affirmative in favour of the plaintiff. Finally
the Court held that the defendant Government
are liable to issue the require permission for
felling and cutting or removing the trees without
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taking seigniorage rate subject to the conditions
stipulated under the Karnataka Forest Act or the
rules framed thereunder. This Judgment was
delivered by the Civil Judge, Madikeri on
15.4.1997 and the Government having decided
not to file an appeal as per the Order of the
authorities made available to this Court.
Therefore the contention of the
Respondent/plaintiff that the Government cannot
adopt the double standard with reference to the
same type of the land as the same applicable to
the present case has to be upheld, and there is
no answer from the Government as to why the
different yardstic applied to the present
appellant when it is not made applicable to the
other case. But there is no answer from the
appellants.
15. It was also brought to the notice of this
Court that Rule-109 of the Coorg Revenue
Manual/Regulation as has been amended. I am
reproducing the un-amended provisions and as
well as amended provision:--
Un-amended
"The word interest of the defaulter alone therein,
as those interests existed immediately before
the attachment of the property was notified,
shall be sold, and no encumbrances created, or
grants or contracts made, by him in good faith
before the notification." was replaced by the
word such property.
amended clause (rule)
"Effect on encumbrances of sale of property for a
sum other than an arrears due in respect
thereof:-- When immovable property is brought
to sale under this chapter for the recovery of
anyc other sum than an arrears due in respect
thereof, such property shall, except in the cases
hereinafter excepted, be sold free of all
encumbrances, and all grants and contracts
previously made by any person other than the
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purchaser in respect of the property shall
become void as against the purchaser."
That means when the property is brought to sale
any other right conferred upon anybody
including the Government shall remain
extinguished. In fact this is in line with Section-
110 of the Regulation which is also reproduced
herewith:--
110- Effect of sale on lands held revenue free or
at favourable rates:-- When Jama or umbli land,
or other land held wholly or partially free of
revenue, is sold under this Chapter, Whether for
recovery of an arrears due in respect thereof or
for the recovery of any other sum, the privileges
attaching to the tenure of the land with respect
of the assessment of land-revenue shall be
extinguished by the sale:
This makes it clear that whenever auction
sale is held by the Government, all the
properties in the Lands of a person who fell short
in land revenue arrears, shall be brought to sale
and the properties shall be free from any
commitment on the land and it shall be held as
absolute property of the auction purchaser. This
amendment was not brought to the notice of the
Court, especially in I.L.R. 1992, Karnataka page-
910.
22.8. Learned Counsel for the Petitioners placing
reliance on the decision of this Court in
Pongere Kariappa case, submits that the
principles laid down therein directly apply to the
facts of the present case. In paragraph 14 of
the said judgment, this Court considered an
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earlier unreported decision in R.F.A. No.
655/1989 dated 30.11.1990. In that case:
22.8.1. The original landholder had fallen into
arrears of land revenue.
22.8.2. The lands were brought to public
auction by the revenue authorities.
22.8.3. The plaintiff's father purchased the
lands in auction.
22.8.4. Sale certificates were produced.
22.8.5. Revenue records described the lands
as "Sagu lands".
22.8.6. The Government did not produce
contrary evidence.
22.9. The Court held that once the lands were sold in
public auction and the sale certificates were
issued, the purchaser acquired valid rights over
the property. The Court further observed that in
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the absence of any evidence from the
Government, the findings of the Trial Court
could not be disturbed. Learned Counsel
submits that the factual situation in the present
case is similar. Here also:
22.9.1. The lands were brought to public
auction by the Government in 1926.
22.9.2. The auction purchaser Mr.Medappa
was put in possession.
22.9.3. Revenue entries were mutated.
22.9.4. The State did not establish any
reserved right inconsistent with the
auction.
22.10. He therefore contends that the effect of such
public auction sale is to transfer full rights in
the property to the auction purchaser, subject
only to what is expressly reserved. It is further
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submitted that reference was made in Pongere
Kariappa to a decision in O.S. No. 118/1994,
where similar issues arose. In that case:
22.10.1. The plaintiff had purchased the land
in public auction.
22.10.2. The Government contended that
timber rights were not sold.
22.10.3. The Civil Court framed a specific
issue as to whether the auction sale
was absolute.
22.10.4. The Court held in favour of the
plaintiff and declared that the sale
was absolute.
22.10.5. The Government was directed to
grant permission for felling trees
without insisting upon seigniorage
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charges, subject to statutory
conditions.
22.10.6. The Government chose not to file an
appeal.
22.11. Learned Counsel submits that this
demonstrates that the Government cannot
adopt different standards for lands of similar
nature. If in one case the Government has
accepted the effect of public auction as
absolute, it cannot take a contrary stand in
another case involving similar facts. According
to him, applying one standard in one case and
a different standard in another amounts to
arbitrary action.
22.12. Learned Counsel further draws attention to
paragraph 15 of the said judgment, wherein
Rule 109 of the Coorg Revenue Regulation
was discussed. He submits that after the
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amendment, the Rule clearly provides that
when immovable property is brought to sale
for recovery of any sum, such property shall
be sold free from all encumbrances, and all
prior grants and contracts shall become void
as against the purchaser. The submission is
that once the Government itself brings
property to sale for arrears of revenue, the
purchaser acquires the property free from
prior commitments and encumbrances.
22.13. Rule 109 of the Coorg Land and Revenue
Regulations, 1899, which is reproduced
hereunder for easy reference;
109. When immoveable property is brought to
sale under this Chapter for the recovery of any
other sum than an arrear due in respect
thereof, such property shall, except in the cases
hereinafter excepted, be sold free of other all
encumbrances, and all grants and contracts
previously made by any person other than the
purchaser in respect of the property shall
become void as against the purchaser.
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22.14. Learned Counsel further places reliance on
Rule 109 of the Coorg Land and Revenue
Regulations, 1899 and submits that the Rule
provides that when immovable property is
brought to sale under the relevant Chapter for
recovery of any sum other than an arrear due
in respect thereof, such property shall be sold
free of all encumbrances, except in specified
cases. It further states that all grants and
contracts previously made by any person
other than the purchaser in respect of the
property shall become void as against the
purchaser.
22.15. Relying on the above provision, learned
Counsel submits that the legislative intent is
clear. When the Government brings property
to public auction under statutory authority,
the purchaser acquires the property free from
prior encumbrances. Any prior grants,
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contracts or interests, except those saved by
law, cease to bind the purchaser.
22.16. It is submitted that in the present case, the
land was auctioned in 1926 by the
Government itself for recovery of arrears of
revenue. Therefore, by operation of Rule 109,
the property vested in the auction purchaser
free from prior encumbrances. The State
cannot now assert surviving restrictions
inconsistent with the statutory effect of the
auction sale.
22.17. Learned Counsel submits that Rule 109
reinforces the principle that a statutory
auction conducted by the Government carries
legal consequences. Once the sale is
confirmed and possession delivered, the
purchaser steps into ownership of the interest
conveyed, subject only to the legal character
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of the tenure, and not subject to undisclosed
or subsequently invented limitations.
22.18. Accordingly, the Respondents cannot now
contend that the land was incapable of
transfer or that restrictive conditions survived
the auction in the absence of any express
reservation in the sale itself.
22.19. Learned Counsel also relies upon Section 110
of the Coorg Regulation, which provides that
when revenue-free or concessional land is sold
under the Chapter, the privileges attached to
such tenure stand extinguished by the sale.
According to him, the combined reading of
amended Rule 109 and Section 110 of the
Regulations, makes it clear that when land is
sold in public auction for arrears of revenue all
prior privileges are extinguished, the
purchaser acquires full rights, the property
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cannot thereafter be subjected to inconsistent
claims by the Government.
22.20. On the basis of the above principles, learned
Counsel submits that, the lands in question
were sold in public auction by the Government
in 1926, Sale certificates were issued, revenue
entries were made in favour of the purchaser,
the purchaser and his successors remained in
possession. Therefore, the Government
cannot now contend that the lands continue to
carry restrictions inconsistent with the effect
of such an auction sale.
22.21. He further submits that the amendment to
Rule 109 was not brought to the notice of the
Court in certain earlier reported decisions, and
therefore, the correct legal position must now
be applied.
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22.22. It is contended that once the property was
sold in public auction for recovery of land
revenue, the rights of the purchaser stood
crystallised, and the respondents cannot
reopen or dilute those rights by invoking
provisions of the Karnataka Forest Act or by
demanding lease rent. His submission is that
once the sale by auction takes place, the land
becomes freehold, and even the rights of the
Government are extinguished. Thus, he
submits that the respondent-State authorities
cannot claim any right in the said property.
22.23. Learned Counsel for the Petitioners submits
that the core issue raised by the respondents
is whether the lands in question constitute
forest land. He contends that the respondents
have wrongly relied upon historical
notifications without examining their legal
effect.
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22.24. It is submitted that the notification dated
15.03.1887 included a large extent of the then
Coorg Province as "protected forest."
However, according to learned Counsel, this
notification was only a preliminary notification
and did not amount to a final declaration of
forest. He further submits that by judgment
dated 07.10.1904, the Commissioner of Coorg
held that the subsequent notification dated
26.05.1902 superseded the earlier notification
dated 15.03.1887. Therefore, according to
him, the earlier notification of 1887 cannot
now be relied upon to claim that the petition
lands are forest lands.
22.25. It is also contended that under the
15.03.1887 notification, almost the entire
Kodagu (Coorg) District was identified as a
proposed protected forest. However, such a
proposal was never fully implemented or
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finalised in accordance with the law. Hence,
mere reference to the 1887 notification is,
according to the Petitioners, legally
unsustainable.
22.26. Learned Counsel refers to Section 28 of
the Indian Forest Act, 1878, said section is
reproduced hereunder for easy reference;
28. Formation of village-forests.
(1)The State Government may assign to any
village-community the rights of Government to
or over any land which has been constituted a
reserved forest, and may cancel such
assignment. All forests so assigned shall be
called village-forests.
(2)The State Government may make rules for
regulating the management of village-forests,
prescribing the conditions under which the
community to which any such assignment is
made may be provided with timber or other
forest-produce or pasture, and their duties for
the protection and improvement of such forest.
(3)All the provisions of this Act relating to
reserved forests shall (so far as they are not
inconsistent with the rules so made) apply to
village-forests.
22.27. By relying on Section 28 he submits that
forest status cannot arise merely by proposal
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or preliminary notification. According to him,
the scheme of the Forest Act requires:
22.27.1. A proper enquiry into existing rights;
22.27.2. Determination of claims of individuals
and communities;
22.27.3. Recording of such rights; and
22.27.4. Issuance of a final notification
declaring the land as reserved or
protected forest.
22.28. It is submitted that unless a final declaration
is made after such enquiry, the Government
cannot assert that the land has become forest
land. In the absence of a final notification,
private rights remain unaffected.
22.29. Learned Counsel submits that the notification
dated 15.03.1887 was only a preliminary step
intended to initiate enquiry. It did not
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extinguish or abridge the rights of individuals,
including those of the Petitioners or their
predecessors. He contends that no final
declaration was issued in respect of the
petition lands pursuant to that notification, no
rights were determined or recorded against
the Petitioners' predecessors, therefore, the
rights of the Petitioners continued unaffected.
22.30. It is submitted that after the 1887 notification,
the only relevant development was the
notification dated 26.05.1902 proposing
constitution of the Padinalaknad Ghat
Reserved Forest. This notification was
published on 02.06.1902.
22.31. Under this notification, H.S. Mullins was
appointed as Forest Settlement Officer to
enquire into the nature and extent of rights
claimed within the limits of the proposed
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reserve forest. The Forest Settlement Officer,
issued a proclamation stating that no new
rights could be created within the proposed
reserve area, issued notice dated 18.03.1903
calling upon persons claiming Jamma Malai
rights to produce evidence in support of their
claims.
22.32. Learned Senior Counsel submits that
ultimately, on 20.04.1906, the Padinalaknad
Reserved Forest was notified, and the
notification was published on 01.05.1906.
Crucially, he submits that the lands of the
Petitioners were excluded from the final
notification. According to him the petition
lands do not fall within the list of Jamma
Malais included in the Padinalaknad Reserved
Forest, since they were not included in the
final declaration, they cannot now be treated
as forest land.
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22.33. It is therefore contended that once the final
notification was issued and the petition lands
were not included therein, the respondents
cannot rely on earlier preliminary notifications
to claim forest status.
22.34. In conclusion, learned Counsel submits that,
the 1887 notification was only preliminary and
stood superseded, the 1902 notification
initiated enquiry, the final notification of 1906
did not include the petition lands, no final
declaration was ever made declaring the
petition lands as protected or reserved forest.
Therefore, according to him, the respondents
cannot now assert that the lands are forest
lands or exercise powers under the Karnataka
Forest Act in respect of the said lands.
22.35. Learned Counsel submits that the map
produced before this Court clearly shows that
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the petition lands are not contiguous with any
notified forest area. On the contrary, the lands
are interspersed with privately owned lands
and even a village settlement. According to
him, forest land is normally identifiable as a
continuous block. Since the petition lands are
surrounded by private holdings and
habitations, they cannot be treated as part of
any reserved forest.
22.36. He reiterates that the only final notification
which can be relied upon is the notification
dated 20.04.1906, by which the Padinalaknad
Reserved Forest was declared. He submits
that no final notification was issued pursuant
to the 15.03.1887 notification, the 20.04.1906
notification does not include or refer to the
petition lands, therefore, the petition lands
cannot be treated as reserved forest.
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22.37. Learned Counsel refers to the Forest
Department's Working Plan issued in the year
2015 and submits that the petition lands are
not included within the reserved forest area
described therein. According to him, if the
lands were truly reserved forest, they would
necessarily form part of the Working Plan.
Their exclusion shows that the lands are not
treated by the Department itself as forest
land. He further submits that the question
whether the lands are forest lands was
already examined and settled in W.P. No.4013
of 2007.
22.38. It is submitted that pursuant to directions of
the Chief Secretary in the PIL, the Deputy
Commissioner initiated proceedings under
Section 136(3) of the Karnataka Land
Revenue Act, 1964, and revised the revenue
entries suo motu. The said action was
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challenged in W.P. No.4013 of 2007. By order
dated 13.03.2009, a Co-ordinate Bench of this
Court quashed the orders of the Deputy
Commissioner and held that the petition lands
were outside the forest area. According to
learned Counsel, once this Court has held that
the lands are not forest lands, there can be no
restriction on the Petitioners exercising their
recognised rights.
22.39. He also submits that in O.S. No.4 of 1978, the
Civil Court had confirmed the right of the
Petitioners' predecessor to hold the land and
cultivate cardamom. Thus, the finding in W.P.
No. 4013 of 2007 reinforces the earlier civil
court decree.
22.40. It is further submitted that in Writ Appeal No.
375 of 2011, the Division Bench did not
disturb the finding of the learned Single Judge
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that the lands are not forest lands. The
Division Bench only permitted, the State
Government's name to be entered as owner in
Column No.11 in respect of Jamma Malai
lands and the Petitioners' right to cultivate
cardamom to be recorded, in terms of RSA
No. 466 of 1980. According to him, the
Division Bench did not reverse the finding that
the lands are outside the forest area.
22.41. In view of the decisions in O.S. No. 4 of 1978,
RSA No. 466 of 1980, W.P. No. 4013 of 2007
and W.A. No. 375 of 2011, learned Counsel
submits that the only issue that could possibly
arise is whether Jamma Malai lands are
transferable. He contends that such a question
cannot be decided by forest authorities. It
would require adjudication by a competent
civil court or this Court. Even assuming the
lands are Jamma Malai lands, since it has
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already been held that they are not forest
lands, the forest authorities would have no
jurisdiction to decide upon transferability.
22.42. Learned Counsel relies on Pongere
Kariappa's case to contend that Jamma
Malai lands are transferable. According to him
a subsequent purchaser acquires the same
rights as the previous Jamma Mallegar, so
long as cardamom is cultivated, there is no
violation, such rights cannot be taken away by
administrative action. It is submitted that in
RSA No. 466 of 1980, the Government did not
take the stand that the lands are reserved or
protected forest. Since such a stand was not
taken in the earlier suit, the Government
cannot now change its position and contend
that the lands are forest lands. According to
him, if such a plea was available, it ought to
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have been raised earlier. Not having done so,
the State is precluded from raising it now.
22.43. Learned Counsel further submits that even
assuming the 1887 notification is considered,
a clarification had been issued that the
notification would not apply to lands where
private rights and privileges are involved.
Since the Petitioners are private parties with
recognised rights, the said notification would
not apply to their lands. This submission is
made in the alternative to the primary
argument that there was no final notification
affecting their lands.
22.44. He refers to the statement produced as
Annexure-H along with the writ petition to
show that the petition lands are outside the
Padinalaknad Reserved Forest. It is submitted
that this aspect was brought to the notice of
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the Conservator of Forests, but no finding was
recorded on this issue and the material was
ignored.
22.45. Learned Counsel strongly disputes the
direction to pay lease rental by treating
Jamma Malai tenure as a lease. He submits
that historically, Jamma Malai lands were
subject only to concessional assessment, no
lease rent was ever paid, even under the
Coorg Land and Revenue Regulations,
concessional assessment alone was levied.
When the Pattacharavanda family defaulted in
payment of land revenue, the lands were
attached and sold in public auction in 1926.
Thereafter, Sri Palekanda Medappa purchased
the lands, he conveyed them to Sri Emmanuel
Thomas Rampuram, the property ultimately
came to Petitioner No.1. At no point during
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this entire period was any lease rental
demanded or paid.
22.46. Therefore, the conclusion of the Conservator
of Forests that lease rent is payable is,
according to learned Counsel, contrary to both
historical practice and law. Since no lease
rental was ever payable, the question of
forfeiture for non-payment does not arise. It is
submitted that the respondents are
attempting to take over the property by
introducing a new theory of lease rental,
which was never raised in earlier proceedings.
This issue was not raised in O.S. No. 4 of
1978, R.A. No. 7 of 1978, RSA No. 466 of
1980, or W.P. No. 4013 of 2007.
22.47. According to learned Counsel, principles
analogous to Order II Rule 2 of the Code of
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Civil Procedure would apply, and issues not
raised earlier cannot now be introduced.
22.48. He further submits that the present
contentions are being raised for the first time
after the State failed in earlier rounds of
litigation. According to him, the impugned
findings are mala fide, contrary to the record,
and unsustainable in law.
22.49. He relies upon the decision of the Hon'ble
Apex Court in State of U.P. v. Johri
Mallegar2, more particularly para 21 thereof,
which is reproduced hereunder for easy
reference;
21. The provisions of the Code of Criminal
Procedure which are statutory in nature govern the
field. The State of Uttar Pradesh, however, for
reasons best known to it amended sub-section (1)
of Section 24 of the Code of Criminal Procedure as
a result whereof, the State is not required to
consult the High Court before appointing a Public
Prosecutor for the High Court. Similarly, sub-
sections (4), (5) and (6) of Section 24 have also
2
(2004) 4 SCC 714
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been deleted purported to be on the ground that
similar provisions exist in the Legal
Remembrancer's Manual. The Legal
Remembrancer's Manual is merely a compilation of
executive orders and is not a "law" within the
meaning of Article 13 of the Constitution of India.
22.50. He relies upon the decision of the Hon'ble
Apex Court in G.J. Fernandez v. State of
Mysore3, more particularly para 12 thereof,
which is reproduced hereunder for easy
reference;
12. Taking first the contention with respect to
the Code not being followed in the matter of
tenders, the question that arises is whether this
Code consists of statutory rules or not. The
High Court has observed that the so-called rules
in the Code are not framed either under any
statutory enactment or under any provision of
the Constitution. They are merely in the nature
of administrative instructions for the guidance
of the department and have been issued under
the executive power of the State. Even after
having said so, the High Court has considered
whether the instructions in the Code were
followed in the present case or not. Before
however we consider the question whether
instructions in the Code have been followed or
not, we have to decide whether these
instructions have any statutory force. If they
have no statutory force, they confer no right on
any body and a tenderer cannot claim any
rights on the basis of these administrative
instructions. If these are mere administrative
instructions it may be open to Government to
take disciplinary action against its servants who
3
AIR 1967 SC 1753
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do not follow these instructions but non-
observance of such administrative instructions
does not in our opinion confer any right on any
member of the public like a tenderer to ask for
a writ against Government by a petition under
Article 226. The matter may be different if the
instructions contained in the Code are statutory
rules. Learned counsel for the appellant is
unable to point out any statute under which
these instructions in the Code were framed. He
also admits that they are administrative
instructions by Government to its servants
relating to the Public Works Department. But
his contention is that they are rules issued
under Article 162 of the Constitution. Now
Article 162 provides that "executive power of a
State shall extend to the matters with respect
to which the legislature of the State has power
to make laws". This Article in our opinion
merely indicates the scope of the executive
power of the State; it does not confer any
power on the State Government to issue rules
thereunder. As a matter of fact wherever the
Constitution envisages issue of rules it has so
provided in specific terms. We may for
example, refer to Article 309, the proviso to
which lays down in specific terms that the
President or the Governor of a State may make
rules regulating the recruitment and the
conditions of service of persons appointed to
services and posts under the Union or the
State. We are therefore of opinion that Article
162 does not confer any power on the State
Government to frame rules and it only indicates
the scope of the executive power of the State.
Of course, under such executive power, the
State can give administrative instructions to its
servants how to act in certain circumstances;
but that will not make such instructions
statutory rules which are justiciable in certain
circumstances. In order that such executive
instructions have the force of statutory rules it
must be shown that they have been issued
either under the authority conferred on the
State Government by some statute or under
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some provision of the Constitution providing
therefor. It is not in dispute that there is no
statute which confers any authority on the
State Government to issue rules in matters with
which the Code is concerned; nor has any
provision of the Constitution been pointed out
to us under which these instructions can be
issued as statutory rules except Article 162. But
as we have already indicated, Article 162 does
not confer any authority on the State
Government to issue statutory rules. It only
provides for the extent and scope of the
executive power of the State Government, and
that coincides with the legislative power of the
State Legislature. Thus under Article 162, the
State Government can take executive action in
all matters in which the legislature of the State
can pass laws. But Article 162 itself does not
confer any rule making power on the State
Government in that behalf. We are therefore of
opinion that instructions contained in the Code
are mere administrative instructions and are
not statutory rules. Therefore even if there has
been any breach of such executive instructions
that does not confer any right on the appellant
to apply to the Court for quashing orders in
breach of such instructions. It is unnecessary
for us to decide whether there has been in fact
a breach of any instruction contained in the
Code with respect to tenders and we do not
therefore so decide. But assuming that there
has been any breach that is a matter between
the State Government and its servant, and the
State Government may take disciplinary action
against the servant concerned who disobeyed
these instructions. But such disobedience did
not confer any right on a person like the
appellant, to come to Court for any relief based
on the breach of these instructions. It is for this
reason that we are not referring to the Code,
though the High Court did consider whether
there was any breach of these administrative
instructions and came to the conclusion that
there was no breach. In the view we take it is
unnecessary for us to consider this, for we are
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of opinion that no claim for any relief before a
court of law can be founded by a member of the
public, like the appellant, on the breach of mere
administrative instructions.
22.51. Learned Counsel, placing reliance upon the
decisions of the Hon'ble Supreme Court in
Johri Mal and G.J. Fernandez, submits that
statutory provisions alone govern the field and
that executive instructions, manuals or
departmental guidelines cannot override
statutory law. In Johri Mal, the Hon'ble
Supreme Court specifically held that the Legal
Remembrancer's Manual, being merely a
compilation of executive instructions, does not
constitute "law" within the meaning of Article
13 of the Constitution of India.
22.52. Relying on the above principle, learned
Counsel submits that in the present case also
the respondents are attempting to rely upon
administrative directions, internal circulars,
working plans and executive instructions of
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the Forest Department to curtail or extinguish
the rights of the Petitioners. According to him,
the rights of the Petitioners flow from
statutory provisions, civil court decrees and
final judicial pronouncements. Such rights
cannot be diluted or taken away by executive
interpretation. Unless there is a clear
statutory provision authorising the
respondents to act in the manner they have,
the impugned action cannot be sustained.
22.53. It is further submitted that any attempt to
treat Jamma Malai tenure as a "lease", or to
impose lease rental on the basis of
departmental understanding, without
statutory backing, is impermissible in law.
22.54. Learned Counsel contends that executive
instructions, forest working plans or
departmental practices cannot override the
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provisions of the Karnataka Land Revenue Act,
1964, the binding decree in O.S. No.4 of
1978, the judgment of this Court in RSA
No.466 of 1980, the findings rendered in W.P.
No.4013 of 2007 and affirmed in W.A. No.375
of 2011.
22.55. It is therefore submitted that the respondents
cannot, by administrative action, enlarge their
jurisdiction or alter the legal character of the
lands. In the absence of statutory authority,
the impugned proceedings are liable to be set
aside.
22.56. By further reliance on G.J. Fernandez,
learned Counsel submits that the Hon'ble
Supreme Court has categorically held that
administrative instructions issued under
executive power do not have the force of
statutory rules unless framed under a specific
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statutory or constitutional provision conferring
rule-making authority. The Court clarified that
executive instructions are not "law" within the
meaning of Article 13. A breach of such
administrative instruction does not confer
enforceable rights upon members of the public
and may, at best, give rise to internal
administrative consequences. The Hon'ble
Court further observed that Article 162 of the
Constitution defines only the extent of
executive power and does not confer rule-
making power.
22.57. Applying the above principles, learned Counsel
submits that the respondents are seeking to
justify the imposition of lease rental and the
exercise of powers under the Karnataka Forest
Act by relying upon departmental circulars,
forest working plans, executive directions and
internal manuals. None of these instruments,
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according to him, have statutory force. They
are not framed under any specific statutory
provision and cannot override the statutory
framework of the Karnataka Land Revenue
Act, 1964, the binding civil court decree in
O.S.No.4 of 1978, the judgment in RSA
No.466 of 1980, or the findings rendered in
W.P.No.4013 of 2007 and affirmed in
W.A.No.375 of 2011. Accordingly, he submits
that the impugned action is without authority
of law and unsustainable.
22.58. He relies upon the decision of the Hon'ble
Apex Court in Manuelsons Hotels (P) Ltd.
v. State of Kerala4, more particularly para
19 and 20 thereof, which are reproduced
hereunder for easy reference;
19. In fact, we must never forget that the
doctrine of promissory estoppel is a doctrine
whose foundation is that an unconscionable
departure by one party from the subject-matter of
4
(2016) 6 SCC 766
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an assumption which may be of fact or law,
present or future, and which has been adopted by
the other party as the basis of some course of
conduct, act or omission, should not be allowed to
pass muster. And the relief to be given in cases
involving the doctrine of promissory estoppels
contains a degree of flexibility which would
ultimately render justice to the aggrieved party.
The entire basis of this doctrine has been well put
in a judgment of the Australian High Court in
Commonwealth of Australia v. Verwayen
[Commonwealth of Australia v. Verwayen, (1990)
170 CLR 394 (Aust)] , by Deane, J. in the
following words:
"1. While the ordinary operation of estoppel by
conduct is between parties to litigation, it is a
doctrine of substantive law, the factual ingredients
of which fall to be pleaded and resolved like other
factual issues in a case. The persons who may be
bound by or who may take the benefit of such an
estoppel extend beyond the immediate parties to
it, to their privies, whether by blood, by estate or
by contract. That being so, an estoppel by conduct
can be the origin of primary rights of property and
of contract.
2. The central principle of the doctrine is that the
law will not permit an unconscionable--or, more
accurately, unconscientious--departure by one
party from the subject-matter of an assumption
which has been adopted by the other party as the
basis of some relationship, course of conduct, act
or omission which would operate to that other
party's detriment if the assumption be not
adhered to for the purposes of the litigation.
3. Since an estoppel will not arise unless the party
claiming the benefit of it has adopted the
assumption as the basis of action or inaction and
thereby placed himself in a position of significant
disadvantage if departure from the assumption be
permitted, the resolution of an issue of estoppel
by conduct will involve an examination of the
relevant belief, actions and position of that party.
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4. The question whether such a departure would
be unconscionable relates to the conduct of the
allegedly estopped party in all the circumstances.
That party must have played such a part in the
adoption of, or persistence in, the assumption that
he would be guilty of unjust and oppressive
conduct if he were now to depart from it. The
cases indicate four main, but not exhaustive,
categories in which an affirmative answer to that
question may be justified, namely, where that
party:
(a) has induced the assumption by express or
implied representation;
(b) has entered into contractual or other material
relations with the other party on the conventional
basis of the assumption;
(c) has exercised against the other party rights
which would exist only if the assumption were
correct;
(d) knew that the other party laboured under the
assumption and refrained from correcting him
when it was his duty in conscience to do so.
Ultimately, however, the question whether
departure from the assumption would be
unconscionable must be resolved not by reference
to some preconceived formula framed to serve as
a universal yardstick but by reference to all the
circumstances of the case, including the
reasonableness of the conduct of the other party
in acting upon the assumption and the nature and
extent of the detriment which he would sustain by
acting upon the assumption if departure from the
assumed state of affairs were permitted. In cases
falling within Category (a), a critical consideration
will commonly be that the allegedly estopped
party knew or intended or clearly ought to have
known that the other party would be induced by
his conduct to adopt, and act on the basis of, the
assumption. Particularly in cases falling within
Category (b), actual belief in the correctness of
the fact or state of affairs assumed may not be
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necessary. Obviously, the facts of a particular
case may be such that it falls within more than
one of the above categories.
5. The assumption may be of fact or law, present
or future. That is to say, it may be about the
present or future existence of a fact or state of
affairs (including the state of the law or the
existence of a legal right, interest or relationship
or the content of future conduct).
6. The doctrine should be seen as a unified one
which operates consistently in both law and
equity. In that regard, "equitable estoppel" should
not be seen as a separate or distinct doctrine
which operates only in equity or as restricted to
certain defined categories (e.g. acquiescence,
encouragement, promissory estoppel or
proprietary estoppel).
7. Estoppel by conduct does not of itself constitute
an independent cause of action. The assumed fact
or state of affairs (which one party is estopped
from denying) may be relied upon defensively or it
may be used aggressively as the factual
foundation of an action arising under ordinary
principles with the entitlement to ultimate relief
being determined on the basis of the existence of
that fact or state of affairs. In some cases, the
estoppel may operate to fashion an assumed state
of affairs which will found relief (under ordinary
principles) which gives effect to the assumption
itself (e.g. where the defendant in an action for a
declaration of trust is estopped from denying the
existence of the trust).
8. The recognition of estoppel by conduct as a
doctrine operating consistently in law and equity
and the prevalence of equity in a Judicature Act
system combine to give the whole doctrine a
degree of flexibility which it might lack if it were
an exclusively common law doctrine. In particular,
the prima facie entitlement to relief based upon
the assumed state of affairs will be qualified in a
case where such relief would exceed what could
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be justified by the requirements of good
conscience and would be unjust to the estopped
party. In such a case, relief framed on the basis of
the assumed state of affairs represents the outer
limits within which the relief appropriate to do
justice between the parties should be framed."
(emphasis supplied)
20. The above statement, based on various earlier
English authorities, correctly encapsulates the law
of promissory estoppel with one difference--under
our law, as has been seen hereinabove,
promissory estoppel can be the basis of an
independent cause of action in which detriment
does not need to be proved. It is enough that a
party has acted upon the representation made.
The importance of the Australian case is only to
reiterate two fundamental concepts relating to the
doctrine of promissory estoppel--one, that the
central principle of the doctrine is that the law will
not permit an unconscionable departure by one
party from the subject-matter of an assumption
which has been adopted by the other party as the
basis of a course of conduct which would affect
the other party if the assumption be not adhered
to. The assumption may be of fact or law, present
or future. And two, that the relief that may be
given on the facts of a given case is flexible
enough to remedy injustice wherever it is found.
And this would include the relief of acting on the
basis that a future assumption either as to fact or
law will be deemed to have taken place so as to
afford relief to the wronged party.
22.59. By relying on Manuelsons Hotels's case, he
submits that in the said decision doctrine of
promissory estoppel has been elaborately
explained. The Hon'ble Supreme Court has
held that the law will not permit an
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unconscionable departure by one party from
an assumption, whether of fact or law,
present or future, which has been adopted by
another party as the basis of a course of
conduct. The Court further clarified that, the
assumption may relate to legal rights or the
state of the law, relief under the doctrine is
flexible and intended to prevent injustice, it is
sufficient if a party has acted upon the
representation made, the doctrine operates to
prevent unfair or oppressive conduct.
22.60. Relying upon the above principles, learned
Counsel submits that in the present case , the
Government conducted a public auction in
1926, the auction purchaser was put in
possession, revenue entries were mutated,
the State did not treat the land as forest land
for decades, no lease rent was demanded at
any point of time, Civil court decrees
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recognised cultivation rights, revenue
authorities continued entries accordingly.
According to him, these consistent acts and
omissions of the State created a clear
assumption that, the lands are not reserved
forest, the Petitioners' predecessors had lawful
cultivation rights, no lease rent was payable,
the tenure was recognised and transferable.
22.61. The Petitioners and their predecessors acted
on this assumption for nearly a century. They
cultivated cardamom, transferred the
property, and invested in the land on the basis
of the State's conduct and judicial recognition
of their rights. It is therefore submitted that
the State cannot now, after decades, turn
around and assert that the land is forest land,
that the tenure is a lease, that lease rentals
are payable, that forfeiture can be ordered.
Such a change in stand, according to learned
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Counsel, would amount to an unconscionable
departure from the position consistently
adopted by the State.
22.62. Learned Counsel submits that even if the
assumption relates to a question of law,
namely, the legal status of the land, the
doctrine of promissory estoppel applies. The
State conducted the auction, accepted
assessment, allowed mutations, defended
litigation without pleading forest status, did
not challenge transfers for decades. These
actions, according to him, amount to a clear
representation, express or implied, that the
lands were not treated as reserved forest
lands. The Petitioners, having acted upon this
representation, would suffer serious prejudice
if the State is now permitted to depart from it
is the submission.
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22.63. Learned Counsel submits that the Hon'ble
Supreme Court has emphasised that relief
under the doctrine of promissory estoppel
must be flexible and aimed at preventing
injustice. In the present case, permitting the
State to change its position would defeat long-
recognised rights, disturb settled possession,
undermine judicial finality, result in manifest
injustice.
22.64. On the strength of Manuelsons Hotels,
learned Counsel submits that the respondents
are estopped from reclassifying the land as
forest land, imposing lease rentals, declaring
forfeiture, acting contrary to prior judicial
findings. Accordingly, the impugned
proceedings are liable to be set aside on the
ground that the State is bound by its past
conduct and representations.
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22.65. He relies upon the decision of the Hon'ble
Apex Court in Subbegowda v.
Thimmegowda5, more particularly para 5, 6
and 9 thereof, which are reproduced
hereunder for easy reference;
5. In Raj Bajrang Bahadur Singh v. Thakurain
Bakhtraj Kuer [AIR 1953 SC 7] this Court was
called upon to examine what the testator had
intended the legatee to take under a Will in the
context of the expressions like malik kamil
(absolute owner) and naslan bad naslan
(generation after generation) having been used
in the Will in reference to the interest which
was sought to be demised. This Court held that
such words, though descriptive of a heritable
and alienable estate in the donee and
connoting full proprietary rights, may not have
been used with the intention of conferring
absolute rights if there could be something in
the context or in the surrounding
circumstances to permit such an inference
being drawn:
"In cases where the intention of the testator is
to grant an absolute estate, an attempt to
reduce the powers of the owner by imposing
restraint on alienation would certainly be
repelled on the ground of repugnancy; but
where the restrictions are the primary things
which the testator desires and they are
consistent with the whole tenor of the Will, it is
a material circumstance to be relied upon for
displacing the presumption of absolute
ownership implied in the use of the word
'malik'."
5
(2004) 9 SCC 734
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6. For the interpreter of documents it is
common knowledge that a transfer of property
or a creation of interest therein may be
accompanied by conditions, covenants or
restraints. Condition may be condition
precedent -- a condition which must be
performed before the grant or alienation takes
effect to create an interest in property, or may
be condition subsequent -- a condition which
has an effect of enlarging or defeating the
interest already created or vested. In either
case the condition will be annexed with the
estate and would run with the same. In Philip
John Plasket Thomas v. CIT [AIR 1964 SC 587]
, AIR vide para 14, this Court has dealt with
conditions -- precedent and subsequent, in the
context of gift of shares. A covenant is not
annexed with the estate and runs independently
of it which may give rise to a cause of action for
specific performance or for an action in
damages. A restraint or a limitation has the
effect of curtailing the quantum of the estate
affected thereby.
9. A conditional transfer or a settlement
accompanied by conditions is not unknown to
the law of real property. It is permissible in law
to annex or encumber any grant or alienation
with condition or limitation which will operate
and the Court will give effect to it unless there
is some provision of law which annuls or
invalidates such condition, restraint or
limitation. None has been brought to our notice.
22.66. By relying on Subbegowda, he submits that
the Hon'ble Supreme Court examined the
nature of estates and interests created in
property and clarified the distinction between:
Absolute ownership, Conditional grants,
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Estates subject to limitations or restraints.
The Hon'ble Supreme Court held that even
where expressions suggesting full ownership
are used, the surrounding circumstances and
the tenor of the instrument must be examined
to determine the true nature of the rights
conferred.
22.67. It was further held that, a grant may be
subject to conditions precedent or conditions
subsequent, such conditions run with the
estate, a restraint or limitation may curtail the
quantum of the estate, vonditional transfers
are legally permissible unless prohibited by
law.
22.68. Relying upon the above principles, learned
Counsel submits that Jamma Malai tenure is a
recognised form of conditional or limited
estate. According to him:
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22.69. The holder is not an absolute owner in the
fullest sense, the estate is subject to certain
limitations, namely cultivation of cardamom,
there is no right over standing timber, the
tenure is subject to assessment. However, the
existence of limitations does not mean that
the estate is void, nor does it mean that it can
be treated as a mere lease unless expressly
declared so.
22.70. It is submitted that the Civil Court in O.S.No.4
of 1978, and this Court in RSA No.466 of
1980, have already interpreted the nature of
the estate and held that it is a limited but
valid right to cultivate cardamom. Therefore,
the tenure is neither an absolute ownership;
nor a lease under the Forest Act. It is a limited
estate recognised in law.
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22.71. Learned Counsel submits that if the
Government intended to annex any condition
such as payment of lease rent or forfeiture for
non-payment, such condition ought to have
been expressly provided under law; or
incorporated in the grant; or recognised in
earlier proceedings. No such condition,
according to him, has been shown. In the
absence of any statutory provision invalidating
the tenure or imposing additional obligations,
the limited estate recognised by courts must
be respected.
22.72. Learned Counsel submits that the respondents
cannot, by administrative interpretation,
enlarge or alter the nature of the tenure. If
the estate is a limited estate with defined
rights and restrictions, as recognised by
judicial decree, it cannot now be converted
into a leasehold estate under the Forest Act or
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a tenure liable to forfeiture for alleged non-
payment of lease rent. Such an alteration
would amount to changing the very character
of the estate without authority of law.
22.73. Relying upon Subbegowda, learned Counsel
submits that a limited estate is legally valid,
conditions, if any, must be lawful and
traceable to statutory authority, courts must
give effect to the true nature of the estate as
recognised earlier, the respondents cannot
impose new conditions or treat the estate
differently from what has already been
judicially declared. Accordingly, the impugned
proceedings, insofar as they seek to re-
characterise the tenure or impose forfeiture,
are unsustainable.
22.74. He relies upon the decision of the Hon'ble
Apex Court in V.B Rangaraj vs. V.B.
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Gopalkrishnan and others6, more
particularly para Nos.8, 12, 13, 15 and 18
thereof, which are reproduced hereunder for
easy reference;
8. Whether under the Companies Act or Transfer
of Property Act, the shares are, therefore,
transferable like any other movable property.
The only restriction on the transfer of the shares
of a company is as laid down in its Articles, if
any. A restriction which is not specified in the
Articles is, therefore, not binding either on the
company or on the shareholders. The vendee of
the shares cannot be denied the registration of
the shares purchased by him on a ground other
than that stated in the Articles.
12. In Chapter 16 of Gore-Browne on
Companies (43rd edn.) while dealing with
transfer of shares it is stated that subject to
certain limited restrictions imposed by law, a
shareholder has prima facie the right to transfer
his shares when and to whom he pleases. This
freedom to transfer may, however, be
significantly curtailed by provisions in the
Articles. In determining the extent of any
restriction on transfer contained in the Articles, a
strict construction is adopted. The restriction
must be set out expressly or must arise by
necessary implication and any ambiguous
provision is construed in favour of the
shareholder wishing to transfer.
13. In Palmer's Company Law (24th edn.)
dealing with the 'transfer of shares' it is stated
at pages 608-09 that it is well settled that unless
the Articles otherwise provide the shareholder
6
(1992) 1 SCC 160
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has a free right to transfer to whom he will. It is
not necessary to seek in the Articles for a power
to transfer, for the Act (the English Act of 1980)
itself gives such a power. It is only necessary to
look to the Articles to ascertain the restrictions,
if any, upon it. Thus a member has a right to
transfer his share/shares to another person
unless this right is clearly taken away by the
Articles.
15. Dealing with 'restrictions on transfer of
shares' in Penington's Company Law (6th edn.)
at page 753 it is stated that shares are
presumed to be freely transferable and
restrictions on their transfer are construed
strictly and so when a restriction is capable of
two meanings, the less restrictive interpretation
will be adopted by the court. It is also made
clear that these restrictions have to be embodied
in the Articles of Association.
18. Hence, the private agreement which is relied
upon by the plaintiffs whereunder there is a
restriction on a living member to transfer his
shareholding only to the branch of family to
which he belongs in terms imposes two
restrictions which are not stipulated in the
article. Firstly, it imposes a restriction on a living
member to transfer the shares only to the
existing members and secondly the transfer has
to be only to a member belonging to the same
branch of family. The agreement obviously,
therefore, imposes additional restrictions on the
member's right to transfer his shares which are
contrary to the provisions of the Article 13. They
are, therefore, not binding either on the
shareholders or on the company. In view of this
legal position, the finding recorded by the courts
below that the sale by defendant 1 of his shares
to defendants 4 to 6 is invalid as it is in breach
of the agreement, is erroneous in law. In view of
our above finding, it is unnecessary to go into
the question whether the High Court was
justified in directing the transfer of shares by
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defendants 4 to 6 to the plaintiffs even if its
finding that the sale was invalid was correct.
In the circumstances, the appeals are allowed,
the decree of the High Court is set aside and the
plaintiffs' suit is dismissed with costs.
22.75. Learned Counsel further placing reliance on
the decision of the Hon'ble Supreme Court in
V.B. Rangaraj v. V.B. Gopalkrishnan and
Others, submits that the Hon'ble Supreme
Court in the said judgment laid down a
fundamental principle relating to
transferability of property interests. The Court
held that property, including shares, is
presumed to be freely transferable unless
there is a specific restriction imposed by law
or expressly provided in a binding instrument.
Any restriction on transfer must be clearly set
out. It cannot be inferred or implied. If a
restriction is ambiguous, it must be construed
in favour of transferability.
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22.76. The Hon'ble Supreme Court further held that a
private agreement imposing additional
restrictions beyond what is expressly provided
in law or in the governing document cannot
bind parties or override statutory rights.
Restrictions on transfer must have a clear
legal foundation. They cannot arise merely
from understanding, practice, or executive
interpretation.
22.77. Relying on the above principle, learned
Counsel submits that although the case dealt
with shares under company law, the
underlying doctrine is of general application,
transferability is the rule; restriction is
the exception. A restriction must be
expressly provided by statute or by a legally
binding instrument. It cannot be assumed.
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22.78. In the present case, no statutory provision
has been shown prohibiting transfer of Jamma
Malai rights. The Respondents rely on
historical descriptions of limited rights and
departmental understanding, but no express
statutory bar has been placed before this
Court.
22.79. He submits that, just as in Rangaraj case,
where restrictions not contained in the Articles
were held unenforceable, any attempt here to
impose restrictions not expressly contained in
statute must fail. A limitation on enjoyment
does not automatically become a prohibition
on transfer.
22.80. Accordingly, learned Counsel submits that the
Respondents cannot invalidate the transfers
on the basis of implied, inferred, or
administratively conceived restrictions. Unless
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there is a clear statutory provision declaring
the tenure non-transferable, the presumption
of transferability must prevail.
22.81. Based on the above he submits that the writ
petition is required to be allowed and releifs
sought are to be granted.
23. Sri.Pradeep.C.S., learned Additional Advocate
General would submits that;
23.1. Insofar as Prayer-B in the writ petition is
concerned, it is submitted that the same does
not survive for consideration. The order dated
15.03.2009 passed in W.P. No. 4013 of 2007
was set aside in Writ Appeal No. 375 of 2011,
and therefore no further relief can be claimed
on that basis.
23.2. It is submitted that the Hon'ble Division Bench
in W.A. No. 375 of 2011 directed that the name
of the State Government be recorded as owner
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in respect of lands bearing Sy.Nos. 129/3,
154/5, 170, 154/8, 173 and 174 of Chelavara
Village, Napoklu Hobli, Virajpet Taluk, Kodagu
District, measuring in all 468 acres and 72
cents. The Hon'ble Division Bench further
directed that in Column No. 11 of the revenue
records, the rights of the respondents (present
Petitioners) are to be recorded only to the
extent that they have a right to cultivate
cardamom on the land in question.
23.3. Learned Counsel submits that the Hon'ble
Division Bench applied the decision in RSA No.
466 of 1980 and clarified that what remains
open for consideration is only the question
whether the respondents therein (present
Petitioners) have any right to inherit the land or
claim the right to cultivate the same on the
strength of sale deeds executed in their favour.
The Hon'ble Division Bench left it open to the
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competent authority to examine such questions
in accordance with law.
23.4. It is further submitted that the impugned order
and the show cause notice issued by the forest
authorities are in accordance with law and do
not call for interference. According to the
respondents, the land in question falls within
the boundaries of the protected forest declared
under Section 28 of the Indian Forest Act,
1878, pursuant to Notification No. 13 dated
15.03.1887 issued by the Chief Commissioner
of Coorg and published in the Coorg District
Gazette on 01.06.1887.
23.5. Learned Counsel contends that the Jamma
Mallegars never possessed or claimed rights of
alienation, transfer or sub-lease. Therefore,
when the auction was conducted for recovery of
land revenue, only the limited rights of the
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Jamma Mallegars were brought to sale. No right
greater than what was held by the Jamma
Mallegars could vest in the auction purchaser,
namely Sri Palekanda Medappa. The only right
available under Jamma Malai tenure, according
to the respondents, was the limited right to
cultivate cardamom by indigenous methods,
without ownership over the land or timber.
Consequently, Sri Palekanda Medappa could not
have acquired any proprietary right beyond
such limited cultivation right.
23.6. It is further submitted that the subsequent sale
by Sri.Palekanda Medappa in favour of
Sri.Emmanuel Thomas Rampuram, and the
later sale in favour of Petitioner No.1, were
without authority insofar as they purported to
convey greater rights than those originally held.
The principle of law, according to the
respondents, is that no person can convey a
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better title than he himself possesses. If
Sri.Palekanda Medappa purported to convey
rights beyond his limited tenure, the remedy of
the purchaser, if any, lies against the vendor
and not against the State. Mere payment of
land revenue by subsequent purchasers does
not confer title, nor does it create proprietary
rights in forest land.
23.7. He places reliance on the order passed in T
JOHN S/O THOMAS & Ors., vs. STATE OF
KARNATAKA& Ors7., more particularly para
20 thereof, which is reproduced hereinunder for
easy reference;
20. It is not in dispute that the limited right in
jamma malai lands of a holder is the
cultivation of cardamom, if it can really be
called cultivation, which alone is permitted.
The holder has no proprietary right over the
lands or the tree growth. The petitioners
admittedly are not claiming any larger right
and such right having been recognised by the
judgment and decree in the civil suit between
erstwhile holders and the State Government
and which right has been alienated in favour of
7
WP No.4013 of 2007 dated 13.03.2009
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the petitioners and the finding as regards the
right of the holder having attained finality in
view of the judgment of this Court in the
second appeal, the present finding that the
jamma malai lands are part of the reserved
forest is not supported by any material placed
on record. The reference to the history of
jamma malai lands and the manner in which
the jamma malais have been declared as
protected forests under the relevant legislation
does not establish that the present lands of the
petitioners were also notified and declared as
part of the reserved forest.
23.8. Learned AAG by relying on T. John S/o
Thomas & Ors., submits that this Court
observed that the limited right of a holder of
Jamma Malai land is confined to the cultivation
of cardamom. It was specifically held that the
holder has no proprietary right over the land or
over the tree growth. The Court further noted
that though such a limited right may have been
recognised in earlier civil proceedings, the claim
of larger proprietary rights cannot be sustained
unless supported by material showing that the
lands were not part of a reserved forest.
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23.9. Relying upon the above decision, learned
Counsel submits that the legal position is clear
that a Jamma Mallegar possesses only a limited
right of cultivation. There is no proprietary right
in the land itself and no ownership over the tree
growth. Therefore, even assuming that such
limited right has been recognised in earlier
proceedings, it cannot be expanded into full
ownership or transferable proprietary title.
23.10. It is contended that the Petitioners cannot claim
greater rights than those available to a Jamma
Mallegar. At best, what could have been
alienated was only the limited cultivation right.
Any attempt to assert broader ownership rights,
or to resist regulatory control of the State on
that basis, is contrary to the settled position of
law.
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23.11. Learned AAG reiterates that, at the highest,
what could have been transferred in favour of
the auction purchaser was only the limited right
to cultivate cardamom, and even such right,
according to him, could not have been lawfully
transferred, as the land forms part of protected
forest pursuant to Notification dated
15.03.1887. It is submitted that the Chief
Secretary of Karnataka, after visiting Kodagu
District and verifying the relevant records,
submitted a report pursuant to directions issued
in the Public Interest Litigation. The directions
issued thereafter, including recording the name
of the Government and classifying the land as
forest land, were based on such verification and
cannot be termed unilateral or arbitrary.
23.12. It is further submitted that in W.P. No. 4013 of
2007, this Court directed entry of the name of
the Government as owner in respect of Jamma
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Malai lands. Therefore, the Deputy
Commissioner and Tahsildar merely carried out
the directions flowing from the report of the
Chief Secretary and the judicial orders.
According to him, such action cannot be
faulted.
23.13. Learned Counsel categorically submits that the
respondents do not contend that the land is
reserved forest; however, they deny the
Petitioners' contention that the land is not
forest land. According to him, the land in
question is protected forest as distinguished
from reserved forest. Even protected forest, it
is submitted, is forest land requiring
preservation and protection under law. Since
the land is forest land, the Conservator of
Forests, being a competent forest officer, had
jurisdiction to conduct enquiry and pass
appropriate orders. The enquiry conducted,
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according to him, is lawful and within statutory
authority.
23.14. On the above basis, learned Counsel submits
that the Petitioners have no valid title to the
property and have been in unlawful occupation
and enjoyment thereof. It is contended that
their actions amount to violation of Rule 22 of
the Karnataka Forest Rules, 1969, punishable
under Rule 43 of the said Rules read with
Section 35 of the Karnataka Forest Act, 1963.
Consequently, the impugned proceedings are
justified and do not warrant interference.
23.15. Rule 22 of the Forest Rules are reproduced
hereunder for easy reference;
22. Management of village forests.- The
management of village forest transferred to or
vested in the Village Panchayat under Sections
42 and 46 of Karnataka Village Panchayat and
Local Boards Act, 1959 shall be governed by the
following rules.-
(1) The Panchayat shall meet for deliberation at
least once in a month and record the
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proceedings of the meeting in a book maintained
for the purpose, which shall be signed by the
Chairman of the Panchayat who shall forward
copies of the record proceedings to the Range
Forest Officer and Tahsildar.
(2) Any resolution of the Panchayat may be
cancelled by the Range Forest Officer, if it is
considered to be against the principles of forest
conservation and protection or by the Tahsildar
if it is considered to be against the interest of
the community or illegal for reasons to be stated
by them in writing. An appeal shall lie to the 3
[Deputy Conservator of Forests] against the
decisions of the Range Forest Officer, and to the
Deputy Commissioner against the decisions of
the Tahsildar.
(3) Every Panchayat shall maintain regularly
such accounts and books and in such form as
may be prescribed by the Deputy Commissioner
and submit such of them to the Tahsildar at such
periods as the Deputy Commissioner may direct.
The account shall be audited once a year under
the orders of the Tahsildar.
(4) No wood and other forest produce shall be
removed from the village forest except under
and in accordance with the permit issued by the
Panchayat either free or for a fixed fee. The
permit shall be in the form prescribed by the 1
[Deputy Conservator of Forests] or supplied by
the 2 [Deputy Conservator of Forests] on
payment of cost. The Panchayat shall determine
what forest produce may be removed free, the
purpose for which and the conditions under
which it may be taken and may prescribe a scale
of fees for the removal of produce which the
Panchayat does not permit to be the taken fee of
charge and the purpose for which it may be
removed.
(5) Permits, free or otherwise, may be issued by
the Panchayat or any person authorised by it.
The Panchayat may prescribe the check-posts at
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which the produce shall be brought for
inspection and where permits shall be checked
or recovered. The permit or licence shall be
obtained before any felling, conversion,
collection or removal is commenced. The permit
holder must comply with the rules and
conditions entered in the permit. The permit
shall be valid only within the limits of the village
panchayat.
(6) The Panchayat may sell by public auction all
forest produce in the village forest except
Sandalwood, Rosewood and Teak, subject to
confirmation by the Chairman of the Panchayat
in consultation with the Range Forest Officer.
(7) The Panchayat shall have control over all the
grazing areas such as 'gomal lands', 'forest
pasture', 'revenue waste' and such other lands in
the village forests within the limits of the village
or groups of villages for the benefit of which
such village forests have been constituted.
Grazing shall be free in all the gomal lands in the
village forests, but in respect of the other lands
included in the village forests, the Panchayat
may allow free grazing or levy such fees as shall
from time to time be determined by it, subject
to the approval of the Deputy Commissioner.
(8) The Panchayat may prepare each year a list
of all the cattle in the village and fix the limit of
cattle per hectare after taking into consideration
the area available for grazing in the village
forest.
(9) The Panchayat may regulate grazing in
village forest by alternate closing and opening of
arrears for such periods as it deems proper
having regard to the number of cattle and the
area available.
(10)The Panchayat shall set apart certain
portions of the grazing area available in the
village forest for the exclusive use of sheep and
goats.
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(11)The Panchayat may permit grazing of the
cattle of the neighbouring villages, after
consideration of surplus grazing area, if any,
available at its disposal.
(12)The Panchayat shall decide whether to
permit or refuse grazing of the cattle of the
professional graziers and the fee that may be
levied on such cattle.
(13) The Panchayat may impound the cattle
allowed to enter the forest contrary to the rules.
(14) The Panchayat may stop the exercise of
any of the privileges in the forest by the villagers
and exclude the cattle of such persons from the
forest, if they fail to pay the dues of the
Panchayat or to conform to any of the rules
made by the Panchayat.
(15) The Panchayat may close any portion of the
forest for grazing or for the exercise of any other
privileges and against any class of cattle for any
period considered necessary with the approval of
the Tahsildar.
(16) The Panchayat may divide the forest into
blocks and work each of them in rotation in
accordance with the Working Plan or Working
Scheme drawn up for the purpose by the Range
Forest Officer and approved by the 1 [Deputy
Conservator of Forests].
(17) Lands included in a village forest shall not
ordinarily be given out for cultivation or for any
others purpose without the consent of the
Panchayat.
(18) The Panchayat shall suitably demarcate the
boundaries of the village forest and maintain the
demarcation in good condition.
(19) The Panchayat shall improve the condition
of the growing stock and plant, fuel, timber,
manurial and other economically important trees
in the forest and in this respect they will be
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guided by the advice of officers of the Forest
Department.
(20) The Panchayat shall improve the condition
of pasturage by undertaking measures such as
rotational grazing, introduction of nutritive
varieties of grass, growth of fodder, species of
trees and such other measures as may be
suggested by Agriculture, Animal Husbandry and
Forest Departments.
(21) Sale proceeds of grass and other forest
produce, compensation amounts recovered in
the composition of forest offences and all
contributions made shall be constituted into a
'Village Forest Fund' which should be deposited
in the Government Savings Bank in the name of
the Panchayat. The Chairman and any other
member of the Panchayat authorised by the
Panchayat shall jointly operate upon the account
whenever necessary. The funds shall be used
solely for the purpose of protection and
improvement of the village forest.
(22) The Sub-Deputy Conservator of Forest
Officer or the Range Forest Officer shall inspect
the village forest and the accounts pertaining
thereto at least once a year and report the result
of such inspection to the Deputy Commissioner
under intimation to the 2 [Deputy Conservator of
Forests].
(23) The Tahsildar of the Taluk and the local
Range Forest Officer shall once in every six
months jointly inspect the village forests, check
the accounts of the Panchayat and scrutinise the
general policy adopted by the Panchayat in
working the forests. A joint inspection report
should be submitted to the Conservator of
Forests and the Deputy Commissioner.
(24) The 3 [Deputy Conservator of Forests], the
Assistant Commissioners, the Forest Sub-
Divisional Officers and the Tahsildars may also
during their tours inspect the village forests in
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their jurisdiction and the accounts and registers
maintained by the Panchayat.
23.16. Learned AAG further places reliance on Rule 22
of the Karnataka Forest Rules, 1969, which
governs the management of village forests
transferred to or vested in the Village
Panchayat under Sections 42 and 46 of the
Karnataka Village Panchayat and Local Boards
Act, 1959. He submits that Rule 22 lays down
an elaborate statutory framework for the
regulation, supervision and control of village
forests, including:
23.16.1. Regulation of removal of forest
produce only under permit;
23.16.2. Control over grazing and forest
produce;
23.16.3. Maintenance of accounts and audit;
23.16.4. Inspection by Forest Officers and
Revenue Authorities;
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23.16.5. Prohibition against giving land for
cultivation without consent;
23.16.6. Implementation of working plans
approved by forest authorities;
23.16.7. Establishment of a Village Forest
Fund;
23.16.8. Regular inspection and supervision by
forest officials.
23.17. Learned Counsel submits that the scheme of
Rule 22 clearly demonstrates that lands
classified as village forests or protected
forests are subject to regulatory control and
management under the Forest Department.
Even if such lands are not declared as
reserved forests, they remain forest lands
governed by statutory rules.
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23.18. According to him, if the lands in question fall
within the category of protected forest or
village forest, then any use of the land,
including cultivation, removal of produce, or
transfer, must conform to the regulatory
framework prescribed under Rule 22 and the
Karnataka Forest Act, 1963.
23.19. It is therefore contended that the Petitioners
cannot assert absolute or unrestricted rights
over the lands. Even assuming that limited
cultivation rights exist, such rights are subject
to statutory regulation. Any activity
inconsistent with forest management
principles, including unauthorized transfer or
commercial exploitation beyond permitted
limits, would amount to violation of the Rules.
23.20. Learned Counsel submits that the impugned
action is traceable to the statutory scheme
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governing protected forests and village
forests, and therefore cannot be characterised
as arbitrary or merely administrative. On the
above grounds, it is submitted that the
proceedings initiated by the forest authorities
are lawful and within the statutory framework.
23.21. Learned AAG further refers to Section
99(1)(d) of the Karnataka Forest Act, 1963
read with Rule 69 of the Karnataka Forest
Rules, 1969, to submit that a Forest Officer
not below the rank of a Forest Ranger is
authorised to conduct enquiry under the Act
and the Rules. It is contended that the
present Enquiry Officer is above the rank of
Forest Ranger and is therefore fully competent
in law to initiate and conduct the proceedings
in question.
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23.22. It is further submitted that the Petitioners
have planted coffee in a portion of the land,
despite having no right to do so. According to
the respondents, the limited right available to
a Jamma Mallegar is confined to cultivation of
cardamom and does not extend to planting
coffee or changing the nature of cultivation.
Such planting of coffee, it is contended,
amounts to unauthorised use of forest land
and constitutes violation of the provisions of
the Karnataka Forest Act and the Rules
framed thereunder.
23.23. Planting coffee in a protected forest is a non-
forestry activity and, in this regard, he refers
to Section 2 (iv)(a) of the Forest Conservation
Act 1980, which is reproduced hereunder for
easy reference;
2. Restriction on the de-reservation of
forests or use of forest land for non-forest
purpose:
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(i) to (iii) xxxx
(iv) that any forest land or any portion thereof
may be cleared of trees which have grown
naturally in that land or portion, for the purpose
of using it for reafforestation.]
[Explanation. [Substituted by the Forest
(Conservation) Amendment Act (69 of 1988),
Section 2 (15.3.1989)] - For the purpose of this
section, "non-forest purpose" means the
breaking up or clearing of any forest land or
portion thereof for-
(a)the cultivation of tea, coffee, spices, rubber,
palms, oil-bearing plants, horticultural crops or
medicinal plants;
23.24. Learned AAG further submits that the act of
planting coffee in a protected forest
constitutes a non-forest activity. In this
regard, he places reliance on Section 2 of the
Forest (Conservation) Act, 1980, particularly
the Explanation to Section 2, which defines
"non-forest purpose." It is pointed out that
under the Explanation to Section 2, "non-
forest purpose" includes the breaking up or
clearing of any forest land for the cultivation
of tea, coffee, spices, rubber, palms, oil-
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bearing plants, horticultural crops or medicinal
plants.
23.25. On this basis, it is contended that cultivation
of coffee on forest land is expressly classified
as a non-forest purpose under the statute.
Therefore, even assuming that the Petitioners
had limited rights of cultivation of cardamom
under Jamma Malai tenure, such rights cannot
extend to planting coffee, as coffee cultivation
falls within the category of non-forest activity.
It is submitted that any use of forest land for
non-forest purpose requires prior approval of
the Central Government under Section 2 of
the Forest (Conservation) Act, 1980. In the
absence of such approval, the planting of
coffee is unauthorised and in violation of
statutory provisions. Accordingly, the
respondents contend that the Petitioners have
altered the nature of the land and engaged in
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a prohibited activity, thereby justifying the
initiation of proceedings under the Karnataka
Forest Act and the Rules framed thereunder.
23.26. His contention is that this Court in WP
No.4013 of 2007, having held that the land is
Jamma Malai Land it is only eight rights which
flow to the Mallegar namely;
i) that the jammamalegars possess no
proprietary right in the jamma males;
ii) that in virtue of a grant made by the Coorg
Rajas they possess the right to cultivate
cardamoms therein according to the
indigenous method, which may be improved
but not radically altered;
iii) that they have no right to minor forest
produce therein except in so far as relates to
the use of canes, wattes, nettipai and
kuvalai leaves, creepers and fiber for
purposes ancillary to cardamom cultivation;
iv) that they possess no right to shoot within
the males or the reserved forest;
v) that they have right of access to the males
by defined routes as may be necessary for
purposes connected with the cultivation of
cardamoms;
vi) that they possess the right to fell such
timber as may be necessary for the
preparation of cardamom plots and for the
construction of buildings within the males for
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the housing of themselves and their
labourers and the storage of the cardamom
produce collected;
vii) that they possess the right to utilise other
forest produce for the construction of the
buildings mentioned under item (ui) and to
cut firewood for their own use within the
males and for the purpose of drying
cardamoms spot; and on the
viii) that for themselves and their labourers they
possess the light to consume within the
males a reasonable quantity of toddy drawn
from the Baine palms growing therein.
23.27. On the basis of the above, learned Counsel
submits that there is no right of alienation,
transfer or sub-lease attached to Jamma Malai
tenure. The rights of Sri Palekanda Medappa,
even assuming he acquired such rights in
auction, were limited to the above
enumerated rights. He could not have
conveyed greater rights than he possessed.
Consequently, the subsequent sale in favour
of Sri Emmanuel Thomas Rampuram, and
thereafter in favour of Petitioner No.1, could
not confer proprietary title.
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23.28. It is contended that both Sri Palekanda
Medappa and Sri.Emmanuel Thomas
Rampuram purported to sell property over
which they had no ownership. Therefore, the
Petitioners cannot claim any proprietary right
in the lands in question. At best, they could
claim only such limited cultivation right as was
originally available to the Jamma Mallegars,
and nothing beyond that. On this basis, it is
submitted that the Petitioners have derived no
legal title to the land and cannot resist the
regulatory jurisdiction of the forest
authorities.
23.29. Learned AAG submits that in W.P. No. 4013 of
2007, this Court only held that the lands in
question are not part of a reserved forest.
According to him, there was no finding that
the lands are not protected forests under
Section 28 of the Indian Forest Act, 1878. He
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contends that the lands fall within the
boundaries of the protected forest notified
under Notification dated 15.03.1887,
published in the Coorg District Gazette on
01.06.1887, issued under Section 28 of the
Indian Forest Act, 1878. Therefore, even if the
lands are not reserved forest, they are
statutory forest lands by virtue of being
protected forest.
23.30. It is further submitted that the respondents
have consistently maintained that the lands
are protected forest and not reserved forest. A
protected forest, according to him, also falls
within the ambit of the Karnataka Forest Act,
1963. Consequently, Section 64(a) of the
Karnataka Forest Act is attracted, and the
forest authorities are competent to exercise
jurisdiction in respect of such lands. On this
basis, learned Counsel submits that the
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impugned action is traceable to statutory
authority and does not suffer from want of
jurisdiction.
23.31. He refers to Section 33 of the Karnataka
Forest Act 1963, which is reproduced
hereunder for easy reference;
33. Power to make rules for district
forests.--
(1) Subject to all rights now legally vested in
individuals and communities, the State
Government may, for any district or portion of a
district, make rules to regulate the use of the
forest produce or of the pasturage of any land at
the disposal of Government and not included in a
reserved or village forest.
(2) Without prejudice to the generality of the
foregoing power such rules may,--
(i) declare that certain trees not classed as
reserved trees shall be granted to cultivating
raiyats on favourable rates of seigniorage;
(ii) provide for placing any area at the disposal of
Government under special protection in view of
its subsequent settlement and constitution as a
reserved forest or for any other purpose, and
prescribe the conditions and penalties attendant
on such special protection;
(iii) regulate or prohibit the grant of land and its
clearing and breaking up for cultivation or other
purposes;
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1[(iiia) prohibit unauthorised occupation of
land for any purpose;]1 1. Inserted by Act 10 of
1989 w.e.f. 16.3.1989.
(iv) regulate or prohibit the kindling of fires and
prescribe the precautions to be taken to prevent
the spreading of fires;
(v) regulate or prohibit the felling, cutting,
girdling, marking, lopping, tapping or injuring by
fire or otherwise of any trees, the sawing,
conversion, and removal of trees and timber and
the collection and removal of other forest
produce;
(vi) regulate or prohibit the quarrying of stone or
gravel, the burning of lime or charcoal, the
smelting of ore, or the boiling of catechu;
(vii) regulate or prohibit the cutting of grass and
pasturing of cattle, and prescribe the payments
(if any) to be made for such cutting or pasturing;
(viii) regulate or prohibit hunting, shooting,
beating or driving for game, fishing, poisoning or
driving for game, fishing, poisoning or dynamiting
water, and setting traps or snares;
(ix) regulate the disposal of timber and other
forest produce whether by sale or by free grant;
(x) prescribe the fees, royalties or other
payments for such timber and other forest
produce and the manner in which they shall be
levied.
(3) In making a rule under this section, the State
Government may provide that a person guilty of
contravention thereof shall, on conviction, be
punishable with imprisonment which may extend
to one month, or with fine which may extend to
two hundred rupees, or with both.
(4) The land placed under special protection
under a rule made in pursuance of clause (ii) of
sub-section (2), shall be called "protected forest"
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and shall be duly notified as such in the official
Gazette.
23.32. Learned AAG further refers to Section 33 of
the Karnataka Forest Act, 1963, which
empowers the State Government to make
rules regulating the use of forest produce and
pasturage of land at the disposal of the
Government and not included in a reserved or
village forest. It is submitted that under sub-
section (2) of Section 33, the State
Government is authorised, inter alia, to:
23.32.1. Place any area under special
protection pending its settlement or
constitution as reserved forest or for
any other purpose;
23.32.2. Regulate or prohibit grant of land
and its clearing for cultivation or
other purposes;
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23.32.3. Prohibit unauthorised occupation of
land;
23.32.4. Regulate or prohibit felling of trees
and removal of forest produce;
23.32.5. Prescribe fees, royalties and other
payments.
23.33. Sub-section (4) further provides that land
placed under special protection under clause
(ii) of sub-section (2) shall be called
"protected forest" and shall be duly notified as
such in the Official Gazette. On the basis of
the above provision, learned Counsel submits
that lands falling within the scope of Section
33 are statutorily recognised as protected
forests once notified. The object of the
provision, according to him, is to safeguard
such lands and enable the State Government
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to frame appropriate rules for regulation and
protection.
23.34. It is therefore contended that any land coming
within the ambit of Section 33(2), once
notified under sub-section (4), becomes
protected forest and the Forest Department is
under a statutory duty to preserve and protect
such lands. Consequently, the forest
authorities are competent to regulate use,
prohibit unauthorised cultivation, and initiate
proceedings in case of violation.
23.35. On this basis, it is submitted that the land in
question falls within the category of protected
forest and is subject to the regulatory
framework of the Karnataka Forest Act, 1963.
23.36. He refers to Rule 141 of the Karnataka Forest
Rules, 1969 which is reproduced hereunder for
easy reference;
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141. Trees on lands assigned for
cultivation before 1865 in Coorg District.-
Teak, Rosewood, Ebony and Poon trees, which
have not been paid for and which stand on land
assigned before 1865, shall not be cut,
removed or sold by the holders without the
written permission of the 1 [Deputy
Conservator of Forests] and without payment of
the value of the trees. The conditions
mentioned under Rule 137 shall apply to the
removal of trees on these lands.
23.37. Learned AAG further places reliance on Rule
141 of the Karnataka Forest Rules, 1969,
which provides that Teak, Rosewood, Ebony
and Poon trees standing on lands assigned
before 1865 in Coorg District cannot be cut,
removed or sold by the holders without
written permission of the Deputy Conservator
of Forests and without payment of the value
of such trees. The Rule also makes applicable
the conditions prescribed under Rule 137 for
removal of trees.
23.38. By referring to Rule 141, learned Counsel
submits that even in respect of lands
historically assigned, the holder does not
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possess an unrestricted right to remove
timber. According to him, a Jamma Malai
holder cannot remove timber at will and is
confined strictly to the limited rights
historically recognised. He reiterates that the
only substantive right available is cultivation
of cardamom according to the indigenous
method. The holder may tap Bagani palms for
toddy for self-consumption, subject to excise
regulations, but cannot sell such toddy to third
parties. Beyond these limited rights, it is
submitted, no proprietary or commercial
rights exist.
23.39. Learned Counsel further submits that Jamma
Malais, even if treated as distinct enclosures
within forest areas, do not cease to form part
of forest land. According to him, such
classification does not confer ownership or
transferable title upon the holders, but merely
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recognises limited cultivation privileges within
forest boundaries.
23.40. On the basis of the above, learned AAG
submits that the Petitioners have no
proprietary right over the land. Their rights, if
any, are limited and conditional. The
impugned order passed by the Conservator of
Forests is, according to him, in conformity
with the Karnataka Forest Act, 1963 and the
Rules framed thereunder. Consequently, the
writ petition is liable to be dismissed.
24. In rejoinder, Sri.Kamalacharan., learned counsel for
the petitioner, would submit that:
24.1. The arguments advanced by the Respondents
are legally unsustainable and contrary to the
record and prior binding judgments. At the
outset, the Respondents rely heavily on the
judgment in W.A. No. 375 of 2011 and
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contend that the earlier order in W.P. No.
4013 of 2007 was set aside. This submission
is incorrect. The Hon'ble Division Bench did
not hold that the lands are forest lands. It
only directed that the name of the
Government be entered in Column No.11 of
the revenue records in respect of Jamma Malai
lands, while specifically preserving the
Petitioners' right to cultivate cardamom as
recognised in RSA No. 466 of 1980. The
Hon'ble Division Bench did not declare the
lands as protected forest nor did it expand the
powers of the Forest Department. Therefore,
the Respondents cannot rely on that judgment
to justify the present action.
24.2. The Respondents now argue that the lands are
protected forest under Section 28 of the
Indian Forest Act, 1878. This stand is
inconsistent with their earlier position. In RSA
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No. 466 of 1980, the State did not contend
that the lands were protected forest. In W.P.
No. 4013 of 2007, the State mainly argued
that the lands were reserved forest, a
contention that failed. Having failed earlier,
the State now changes its stand and asserts
protected forest status. Such shifting positions
cannot be permitted, especially when earlier
proceedings have attained finality.
24.3. The notification dated 15.03.1887 relied upon
by the Respondents was only a preliminary
notification. There is no material to show that
a final declaration was issued including the
petition lands after determination of private
rights. On the contrary, the final notification
dated 20.04.1906 relating to Padinalaknad
Reserved Forest did not include the petition
lands. The Respondents cannot rely on an old
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preliminary notification while ignoring later
developments.
24.4. The Petitioners do not dispute that Jamma
Malai tenure confers limited rights. However, a
limited right does not mean that it is non-
transferable. RSA No. 466 of 1980 recognised
the right to cultivate cardamom. It did not
declare such right to be non-transferable. No
law has been shown which prohibits transfer
of Jamma Malai rights. In fact, after the
auction in 1926, revenue records were
mutated and transfers were recognised for
decades without objection from the State. The
State cannot now question transfers that it
had accepted for nearly a century.
24.5. The Respondents argue that Sri Palekanda
Medappa could not transfer more rights than
he possessed. However, the auction sale was
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conducted by the Government itself. Sale
certificates were issued and possession was
delivered. The relevant Coorg Regulations
provided that properties sold in revenue
auction were sold free from prior
encumbrances. The Government cannot
conduct an auction, collect money, allow
possession for decades, and later deny the
legal consequences of its own act. If the
auction was invalid, the State ought to have
challenged it within time. It cannot indirectly
invalidate it now.
24.6. The reliance on Section 33 of the Karnataka
Forest Act is also misplaced. That provision
applies only when land is specifically notified
as protected forest under Section 33(4). No
such notification covering the petition lands
has been produced. Mere existence of power
does not prove its exercise.
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24.7. Similarly, Rule 22 of the Karnataka Forest
Rules applies only to village forests vested in
Panchayats. The petition lands were never
vested in a Village Panchayat. Therefore, Rule
22 does not apply.
24.8. Rule 141 merely restricts cutting of certain
valuable trees without permission. The
Petitioners are not claiming unrestricted
timber rights. This rule does not convert the
land into forest land nor does it extinguish
cultivation rights.
24.9. The Respondents also rely on the Forest
(Conservation) Act, 1980 and argue that
planting coffee amounts to non-forest activity.
This argument assumes that the land is forest
land, which has not been established. Unless
the land is first shown to be forest land under
law, the provisions of the Forest
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(Conservation) Act cannot be invoked.
Moreover, the Petitioners' right to cultivate
has already been recognised. Change of crop
cannot automatically make the occupation
illegal in the absence of a clear statutory
prohibition.
24.10. The reliance on Section 99 of the Karnataka
Forest Act and Rule 69 regarding the
competence of the enquiry officer does not
cure the defect of jurisdiction. Authority to
hold an enquiry presupposes that the land
falls within the Act. If the land is not lawfully
established as forest land, the enquiry itself is
without jurisdiction.
24.11. The Respondents further rely on departmental
reports and working plans. However, as held
by the Hon'ble Supreme Court in Johri Mal
and G.J. Fernandez, executive instructions
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and departmental manuals do not override
statutory provisions or judicial decisions. The
Petitioners' rights have been recognised by
civil courts and affirmed by this Court. Such
rights cannot be curtailed by administrative
interpretation.
24.12. The allegation that the Petitioners are in illegal
occupation is wholly unfounded. The
Petitioners trace their title through a
Government auction sale, registered sale
deeds, long possession and judicial
recognition. The State accepted revenue,
recognised entries and never treated the land
as forest land in earlier proceedings. It is not
open to the State now to describe such
possession as unlawful.
24.13. For nearly a century, the conduct of the State
consistently indicated that the lands were not
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reserved forest and that limited cultivation
rights existed. The Petitioners and their
predecessors acted on that basis. The State
cannot now change its position to the
prejudice of the Petitioners.
24.14. Learned Counsel further submits that Sri
Emmanuel Thomas Rampuram had instituted
O.S. No. 4 of 1978 after purchasing the land
from the auction purchaser, Sri Palekanda
Medappa. The revenue records had already
been mutated in his name at that time. The
State Government was arrayed as Defendant
No.1 in the said suit.
24.15. It is significant, according to learned Counsel,
that in that suit the State did not contend that
transfer of Jamma Malai land was prohibited
or impermissible. The suit was contested. It
was decided by the Trial Court. It went in
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appeal. It reached this Court in RSA No. 466
of 1980. At no stage, neither before the Trial
Court, nor before the First Appellate Court,
nor before this Court in Second Appeal, did
the State raise a plea that the transfer of
Jamma Malai rights was invalid or prohibited
in law.
24.16. In that background, learned Counsel submits
that it is not open to the State at this belated
stage to introduce a completely new
contention that the transfer itself was void or
impermissible. If such a plea was available, it
ought to have been raised in the earlier
proceedings. Having failed to do so, and the
matter having attained finality, the State
cannot now reopen the issue indirectly
through forest proceedings.
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24.17. Learned Counsel further submits that no
statute or rule has been placed before this
Court which expressly prohibits transfer of
Jamma Malai rights. The Respondents have
repeatedly asserted that the tenure is non-
transferable, but no specific provision of law
has been shown which imposes such a bar.
24.18. Even in the decision referred to by the learned
Additional Advocate General in Totiyana
Ponnappa, a copy of which has not been
placed on record, the eight rights enumerated
do not contain any express prohibition against
transfer. The rights are described as limited,
but limitation is not the same as prohibition of
transfer. In the absence of a clear statutory
restriction, transfer of a limited estate cannot
be presumed to be invalid.
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24.19. Therefore, learned Counsel submits that the
contention regarding non-transferability is
without legal foundation and cannot be
permitted to defeat rights which have already
been recognised by judicial decrees that have
attained finality.
24.20. His submission is that petitioners being
holders of Jamma land "a holder" is defined
under the Coorg Land and Revenue
Regulations in terms of Rule 3 (6), which is
reproduced hereunder for easy reference;
3(6) "holder" or "landholder" signifies
the person who is in possession of a bolding
or any share or portion thereof or in the
enjoyment of any part of the profits thereof
and who is bound by law, contract or local
usage to pay land-revenue direct to the
Government, but does not include a tenant:
24.21. Learned Counsel further submits that the
Petitioners are holders of Jamma Malai land
within the meaning of the Coorg Land and
Revenue Regulations. By referring to Rule
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3(6) of the said Regulations, which defines a
"holder" or "landholder" as a person who is in
possession of a holding or any portion thereof,
or who enjoys any part of its profits, and who
is bound by law, contract or local usage to pay
land revenue directly to the Government. The
definition specifically excludes a tenant.
24.22. Relying on this definition, learned Counsel
submits that the Petitioners squarely fall
within the meaning of "holder." They are in
possession of the land. They enjoy the profits
derived from cultivation. They are liable to pay
land revenue directly to the Government.
Therefore, their status is that of landholders
under the Coorg Land and Revenue
Regulations, and not that of tenants or mere
licensees.
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24.23. It is submitted that this statutory definition is
significant. A holder is recognised as a person
directly accountable to the Government for
revenue. The definition does not describe such
person as a lessee of forest land. Nor does it
indicate that the holder's possession is
precarious or subject to arbitrary termination.
24.24. Accordingly, learned Counsel submits that the
Petitioners' status as "holders" under the
Coorg Land and Revenue Regulations
reinforces their lawful possession and
recognised tenure, and it is not open to the
Respondents to re-characterise them as
unauthorised occupants or mere cultivators
without legal standing.
24.25. His submission is that there cannot be implied
restriction on sale, any owner or holder can
sell the property unless there is a specific Bar
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for such sale. It refers to Section 6 of the
Transfer of Property Act, which is reproduced
hereunder for easy reference;
6. What may be transferred.-- Property of
any kind may be transferred, except as
otherwise provided by this Act or by any other
law for the time being in force,--
(a)The chance of an heir-apparent succeeding
to an estate, the chance of a relation obtaining
a legacy on the death of a kinsman, or any
other mere possibility of a like nature, cannot
be transferred;
(b)A mere right of re-entry for breach of a
condition subsequent cannot be transferred to
any one except the owner of the property
affected thereby;
(c)An easement cannot be transferred apart
from the dominant heritage;
(d)All interest in property restricted in its
enjoyment to the owner personally cannot be
transferred by him;
(dd)A right to future maintenance, in
whatsoever manner arising, secured or
determined, cannot be transferred;
(e)A mere right to sue cannot be transferred;
(f)A public office cannot be transferred, nor
can the salary of a public officer, whether
before or after it has become payable;
(g)Stipends allowed to military naval, air-force
and civil pensioners of the Government and
political pensions cannot be transferred;
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(h)No transfer can be made (1) in so far as it
is opposed to the nature of the interest
affected thereby, or (2) for an unlawful object
or consideration within the meaning of section
23 of the Indian Contract Act, 1872 (9 of
1872), or (3) to a person legally disqualified to
be transferee;
(i)Nothing in this section shall be deemed to
authorise a tenant having an untransferable
right of occupancy, the farmer of an estate in
respect of which default has been made in
paying revenue, or the lessee of an estate,
under the management of a Court of Wards, to
assign his interest as such tenant, farmer or
lessee.
24.26. Learned Counsel further submits that there
can be no implied restriction on transfer of
property. According to him, any owner or
lawful holder of property is entitled to transfer
his interest unless there is a clear and specific
statutory bar prohibiting such transfer. In this
regard, he refers to Section 6 of the Transfer
of Property Act, 1882, which lays down the
general rule that property of any kind may be
transferred, except as otherwise provided by
that Act or by any other law for the time being
in force. Section 6 then specifically
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enumerates certain categories of interests
which cannot be transferred, such as a mere
chance of succession, a mere right to sue,
certain personal rights, public offices, and
other interests expressly restricted by law.
The provision also makes clear that a tenant
having an untransferable right of occupancy
cannot assign such right if it is declared to be
untransferable by law.
24.27. Relying on Section 6, learned Counsel submits
that the law proceeds on the presumption of
transferability. Transfer is the rule; prohibition
is the exception. If a right is to be treated as
non-transferable, the restriction must be
expressly provided either in the Transfer of
Property Act itself or in some other law for the
time being in force. It is submitted that no
provision has been shown to this Court
declaring Jamma Malai rights to be
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untransferable. There is no statute, rule, or
regulation placed on record which expressly
prohibits sale of such limited interest. The
Respondents merely assert non-
transferability, but assertion is not law. In the
absence of a clear statutory bar, the Court
cannot infer an implied prohibition. Learned
Counsel therefore submits that Section 6 of
the Transfer of Property Act supports the
Petitioners' case. Since Jamma Malai rights do
not fall within any of the prohibited categories
enumerated under Section 6, and no other law
has been produced prohibiting transfer, the
sale transactions cannot be treated as void
merely on assumption or implication.
Accordingly, the contention of the
Respondents that the transfers were invalid is
without legal basis and deserves to be
rejected.
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24.28. He refers to the decision of the Hon'ble Apex
Court in Subbegowda v. Thimmegowda8,
more particularly para 5, 6 and 9 thereof,
which are reproduced hereunder for easy
reference;
5. In Raj Bajrang Bahadur Singh v. Thakurain
Bakhtraj Kuer [AIR 1953 SC 7] this Court was
called upon to examine what the testator had
intended the legatee to take under a Will in the
context of the expressions like malik kamil
(absolute owner) and naslan bad naslan
(generation after generation) having been used
in the Will in reference to the interest which
was sought to be demised. This Court held that
such words, though descriptive of a heritable
and alienable estate in the donee and connoting
full proprietary rights, may not have been used
with the intention of conferring absolute rights
if there could be something in the context or in
the surrounding circumstances to permit such
an inference being drawn:
"In cases where the intention of the testator is
to grant an absolute estate, an attempt to
reduce the powers of the owner by imposing
restraint on alienation would certainly be
repelled on the ground of repugnancy; but
where the restrictions are the primary things
which the testator desires and they are
consistent with the whole tenor of the Will, it is
a material circumstance to be relied upon for
displacing the presumption of absolute
ownership implied in the use of the word
'malik'."
8
(2004) 9 SCC 734
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6. For the interpreter of documents it is
common knowledge that a transfer of property
or a creation of interest therein may be
accompanied by conditions, covenants or
restraints. Condition may be condition
precedent -- a condition which must be
performed before the grant or alienation takes
effect to create an interest in property, or may
be condition subsequent -- a condition which
has an effect of enlarging or defeating the
interest already created or vested. In either
case the condition will be annexed with the
estate and would run with the same. In Philip
John Plasket Thomas v. CIT [AIR 1964 SC 587]
, AIR vide para 14, this Court has dealt with
conditions -- precedent and subsequent, in the
context of gift of shares. A covenant is not
annexed with the estate and runs independently
of it which may give rise to a cause of action for
specific performance or for an action in
damages. A restraint or a limitation has the
effect of curtailing the quantum of the estate
affected thereby.
9. A conditional transfer or a settlement
accompanied by conditions is not unknown to
the law of real property. It is permissible in law
to annex or encumber any grant or alienation
with condition or limitation which will operate
and the Court will give effect to it unless there
is some provision of law which annuls or
invalidates such condition, restraint or
limitation. None has been brought to our notice.
24.29. By relying on Subbegowda's case, he
submits that the Hon'ble Supreme Court in the
said judgment explained an important
principle relating to transfer of property. The
Court held that even where an estate is
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limited or subject to conditions, such estate
remains valid and transferable unless there is
a specific legal prohibition. The Court also
clarified that a transfer may be accompanied
by conditions, limitations or restraints. A
condition may restrict the manner of
enjoyment of the property, but such
restriction does not automatically make the
estate inalienable unless the law expressly
prohibits transfer.
24.30. The Hon'ble Supreme Court further observed
that conditional transfers are recognised in
law. The Court will give effect to such
conditions unless there is some statutory
provision which annuls or invalidates them. In
other words, limitation of rights is not the
same as prohibition of transfer. A limited
estate is still an estate in property. Relying on
the above principles, learned Counsel submits
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that Jamma Malai tenure, even if treated as a
limited estate with restrictions on enjoyment,
remains an interest in property. The limitation
that cultivation must be of cardamom, or that
timber rights are restricted, does not
automatically mean that the interest cannot
be transferred. Unless there is a specific
statutory bar against transfer, such limited
interest remains transferable.
24.31. It is further submitted that the Respondents
have not placed before this Court any
statutory provision declaring Jamma Malai
rights to be non-transferable. The eight rights
referred to by the Respondents describe the
scope of enjoyment, but nowhere do they
impose a prohibition on alienation.
24.32. Therefore, applying the principles laid down in
Subbegowda, he submits that:
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24.32.1. A limited estate can validly exist in
law;
24.32.2. Conditions attached to such estate
regulate enjoyment, not
transferability;
24.32.3. In the absence of a statutory
prohibition, sale of such limited
interest is legally permissible.
24.33. Accordingly, the Respondents' contention that
the transfers are void merely because the
estate is limited is without legal basis and
contrary to the law declared by the Hon'ble
Supreme Court.
24.34. Learned Counsel further submits that there is
no absolute or statutory restriction that
Jamma Malai land can be used only for
cultivation of cardamom. The historical
position must be understood in context. In the
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1800s, coffee cultivation in Coorg was
minimal. At that time, cardamom was the
principal commercial crop grown in the region.
Over time, with changes in agricultural
practices, climatic understanding, and
commercial viability, coffee cultivation
expanded significantly in Coorg,
Chikkamagaluru and Hassan districts.
24.35. He submits that agricultural usage of land
necessarily evolves with climatic conditions
and economic realities. The introduction of
coffee into Coorg was a later development.
Landholders, including holders of Jamma Malai
lands, began cultivating commercial crops
such as coffee, cardamom, pepper, arecanut
and other plantation crops based on suitability
of soil and climate. The right recognised by
courts was a right of cultivation. It was not a
rigid and frozen right confined forever to a
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single crop irrespective of changing
agricultural conditions.
24.36. It is further submitted that Sri Emmanuel
Thomas Rampuram had approached the
Coffee Board and obtained permission to
cultivate coffee in a portion of the land. This
demonstrates that the activity was undertaken
transparently and not clandestinely.
24.37. Insofar as the Petitioners are concerned, it is
specifically submitted that coffee is cultivated
in about 20 acres in Sy.No.154/2 (now
Sy.No.154/2B). This land is Paradeena Banne
land. It is neither Jamma land nor Jamma
Malai land. It has always been treated
separately. The Chief Secretary's report does
not classify Sy.No.154/2 as Jamma Malai land.
The Jamabandi Register describes this land as
unredeemed Paradeena land. A registered sale
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deed in favour of Petitioner No.1 evidences
title to this land. Further, the list of Jamma
lands produced by the Forest Department for
Kodagu District does not include Sy.No.154/2.
Therefore, the Respondents cannot now
contend that this land is Jamma Malai or
forest land. It stands on a different footing
altogether.
24.38. Learned Counsel also submits that merely
because certain portions of Jamma Malai land
may not be suitable for cultivation of
cardamom due to physical or environmental
reasons, those portions do not cease to belong
to the holder. The right recognised is a right in
respect of the land as a whole, subject to
limitations. Inability to grow cardamom in
every portion due to terrain or climatic
conditions does not divest the holder of rights
over such portions. Accordingly, the
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contention that cultivation of coffee
automatically renders possession illegal, or
that the entire holding becomes unauthorised
on that basis, is without legal or factual
foundation.
24.39. In this regard, he relies upon the judgment
dated 07.10.1904 passed by the
Commissioner of Coorg para 53 thereof,
which is reproduced hereunder for easy
reference;
53. As to the question whether it is legitimate
to excludo portions of the original grant upon
which cardamoms for physical reasons cannot
be cultivated, the answer must I think be in the
negative. Though what the Raja bad in view
was merely the growth and collection of
cardamoms, and though this major right cannot
possibly be exercised in such areas, yet,
subsidiary rights may be capable of excrcise
therein. It would therefore, I think, be illegal to
make any such exclusion from the original grant
without the consent of the occupant. At the
same time I must remind the appellants that if
the retention of such areas is administratively
inconvenient and not reasonably requisito in
their interests is producers of cardamoms, there
is no reason why they should not be assessed
at special rates. The matter is therefore
obviously a fitting subject for compromise.
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24.40. Learned Counsel by relying on the judgment
dated 07.10.1904 passed by the
Commissioner of Coorg, submits that the
Commissioner clearly held that it would be
illegal to exclude portions of the original grant
merely because cardamom cannot be
cultivated there for physical reasons. Even if
the principal object of the grant was
cultivation of cardamom, the land as granted
could not be reduced or curtailed without the
consent of the occupant.
24.41. The Commissioner recognised that although
cardamom may not be capable of cultivation
in every portion of the land, subsidiary rights
could still be exercised in those areas.
Therefore, exclusion of such portions from the
grant was held to be impermissible. At the
highest, the matter could be addressed
administratively, including by assessment at
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special rates, but not by unilateral reduction
of rights.
24.42. Relying on this historical and authoritative
interpretation, learned Counsel submits that
once the right to cultivate cardamom was
recognised, the land as a whole remained with
the holder. If physical or climatic conditions
make cultivation of cardamom impracticable in
certain portions, that cannot result in
forfeiture or loss of those portions.
24.43. He further submits that there is no express
restriction prohibiting cultivation of other
suitable crops. The original limitations were
framed at a time when coffee cultivation was
not prevalent in Coorg. Coffee was introduced
later, and Coorg has since become one of the
finest coffee-producing regions in the country.
Agricultural practice evolves with time and
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climate. A right of cultivation cannot be
artificially frozen to the agricultural conditions
of the nineteenth century.
24.44. It is submitted that cultivation of coffee is a
lawful agricultural activity. It contributes to
the economy and generates revenue for the
State. In the absence of a specific statutory
prohibition applicable to the petition lands, the
Petitioners' right to grow coffee cannot be
interfered with merely on the ground that
historically cardamom was grown.
Accordingly, learned Counsel submits that the
Respondents' attempt to treat cultivation of
coffee as unlawful is contrary to historical
interpretation, statutory framework and
practical agricultural reality.
24.45. Learned Counsel further reiterates that there
has never been any lease deed executed by
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the Government either in favour of the
predecessors of the Petitioners or in favour of
Petitioner No.1. At no point of time has the
Government treated the tenure as a lease. No
lease rent or ground rent has ever been
demanded or paid. What existed historically
was a grant subject to assessment, not a
lease arrangement.
24.46. It is submitted that for decades, the
predecessors of the Petitioners paid only land
revenue as assessed. No separate lease rental
was imposed. It is only after the present
round of litigation commenced that the
Respondents have sought to characterise the
tenure as a lease and claim lease rent or
ground rent. Such a belated re-
characterisation of the tenure is
impermissible. A tenure cannot retrospectively
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be converted into a lease merely to justify
imposition of rental liability.
24.47. Learned Counsel further submits that the
issue of transfer has already been recognised
in RSA No. 466 of 1980 and in W.A. No. 375
of 2011. The Government participated in
those proceedings. It did not challenge the
validity of the transfers. The courts recognised
the Petitioners' predecessor as the holder
entitled to cultivate. Having allowed the
matter to attain finality, the Government
cannot now contend that the property was
non-transferable.
24.48. It is also submitted that reliance on the
Karnataka Forest Manual, 1976 is wholly
misplaced. The Manual does not have statutory
force. It is only a compilation of executive and
administrative instructions meant for internal
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guidance. Under Article 13 of the Constitution,
only law having statutory force can restrict
property rights. Executive instructions cannot
override statutory provisions or judicial
decisions. The Government cannot impose
restrictions on holding or transfer of Jamma
Malai lands based on a Manual introduced in
1976, long after the auction sale of 1926 and
long after successive transfers had been
recognised.
24.49. Finally, learned Counsel submits that in
O.S.No.4 of 1978, in the first appeal, and in
RSA No. 466 of 1980, the Government never
contended that Jamma lands were non-
transferable or that only descendants of the
original grantees could hold them. That issue
was never raised. Having failed to raise such a
contention in earlier proceedings, the
Government cannot now introduce it in
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collateral proceedings. Litigation must attain
finality, and parties are bound by the stands
taken earlier. Accordingly, the plea of non-
transferability and the attempt to treat the
tenure as a lease are both without legal
foundation and deserve to be rejected.
24.50. In this regard, he relies upon the decision in
State of U.P. v. Johri Mal9, more particular
para 21 thereof, which is reproduced
hereunder for easy reference;
21. The provisions of the Code of Criminal
Procedure which are statutory in nature govern
the field. The State of Uttar Pradesh, however,
for reasons best known to it amended sub-
section (1) of Section 24 of the Code of
Criminal Procedure as a result whereof, the
State is not required to consult the High Court
before appointing a Public Prosecutor for the
High Court. Similarly, sub-sections (4), (5) and
(6) of Section 24 have also been deleted
purported to be on the ground that similar
provisions exist in the Legal Remembrancer's
Manual. The Legal Remembrancer's Manual is
merely a compilation of executive orders and is
not a "law" within the meaning of Article 13 of
the Constitution of India.
9
(2004) 4 SCC 714
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24.51. His submission is that the Government itself
having auctioned the Jamma lands in the year
1926 under Regulation 106 and 108 of the
Coorg Land and Revenue Regulations 1899,
the said land having been conveyed to
Sri.Palekanda Medappa absolutely and without
any conditions attached, the respondents
cannot now contend that there is a restriction
on transfer.
24.52. Regulation 106 and 108 are reproduced
hereunder for easy reference;
106. (1) After an order of the [Assistant
Commissioner] confirming a sale has become
final in manner aforesaid, the [Assistant
Commissioner] shall put the purchaser into
possession of the property sold, and shall grant
him a certificate to the effect that he has
purchased that property,
(2) Till the purchaser is put into possession, the
property shall remain under attachment.
(3) The certificate granted under sub-section
(1) shall be deemed to effect a valid transfer of
the property, but need not be registered as a
conveyance.
(4) Any suit brought against the certified
purchaser on the ground that the purchase was
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made on behalf of another person not the
certified purchaser shall be dismissed with
costs.
(5) The person named in the certificate as the
purchaser of any immoveable property shall be
liable for all instalments of revenue falling due
in respect of the property after the order
confirming the sale has become final.
108. (1) Subject to the provisions of this
section with respect to engagements made
between the defaulter and his tenants,
immoveable property brought to sale under this
Chapter for the recovery of an arrear due in
respect due thereof shall be sold free of all
incumbrances, and all grants and contracts
previously made by any person other than the
purchaser in respect of the property shall
become void as against the purchaser.
(2) The provisions of section 91 with respect to
the validity or invalidity, as against the
Government, of such engagements as are
referred to in that section shall, so far as they
can be made applicable, apply, as against the
purchaser, to such engagements as have been
made between the defaulter and his tenants:
Provided that an engagement, which has
not before the sale been declared under that
section to be void, shall not be liable to be set
aside otherwise than by suit at the instance of
the purchaser.
24.53. He submits that Regulation 106 makes the
legal consequence of a confirmed revenue sale
abundantly clear. Once the Assistant
Commissioner confirms the sale and the order
attains finality, the purchaser must be put in
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possession of the property and granted a
certificate of purchase. The Regulation
expressly states that such a certificate shall be
deemed to effect a valid transfer of the
property and need not be registered as a
conveyance. In other words, the transfer flows
directly from the statute itself. The title does
not depend upon any separate deed. The sale
certificate operates as a statutory conveyance.
24.54. The Regulation further provides that the
certified purchaser becomes liable for future
revenue and that any suit alleging that the
purchase was benami must fail. These
provisions, according to learned Counsel,
demonstrate that the law intended to confer
finality and certainty upon a Government-
conducted revenue sale.
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24.55. He then refers to Regulation 108, which
provides that immovable property brought to
sale for recovery of arrears shall be sold free
of all encumbrances and that all prior grants
and contracts made by any person other than
the purchaser shall become void as against
the purchaser. The legislative intent is
therefore unmistakable, once the property is
sold in a statutory auction, it passes to the
purchaser free from previous burdens, subject
only to the nature of the tenure recognised by
law.
24.56. Learned Counsel submits that when these two
Regulations are read together, the position is
clear. The 1926 auction was conducted by the
Government itself. The sale was confirmed. A
sale certificate was issued. Possession was
delivered. Revenue records were mutated. By
operation of Regulation 106, a valid statutory
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transfer came into existence. By virtue of
Regulation 108, the property stood conveyed
free of prior encumbrances.
24.57. In such circumstances, the State cannot now
contend that the property was inherently
incapable of transfer or that the purchaser
acquired no legally transferable interest. If the
tenure were truly non-transferable, the
Government could not have auctioned it. If
any restriction was intended to survive the
sale, it ought to have been expressly
preserved at the time of sale. No such
reservation has been shown.
24.58. Accordingly, learned Counsel submits that the
1926 auction resulted in a valid statutory
transfer of the interest held in the land. That
interest, though limited in nature as
subsequently clarified by judicial decisions,
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was nonetheless capable of transfer in the
absence of an express statutory prohibition.
The present attempt to question the validity of
the auction or the subsequent transfers is
therefore contrary to the statutory framework
itself.
24.59. He submits that once the Government
exercised its statutory power to bring the
property to sale and conveyed the same to Sri
Palekanda Medappa, the purchaser acquired
whatever rights were capable of being
conveyed under the law. The Government
cannot now turn around and argue that the
land was inherently non-transferable or that
the purchaser acquired no transferable
interest.
24.60. Although reference has been made to
Regulations 106 and 108, learned Counsel
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clarifies that the relevant scheme of the Coorg
Regulations contemplated attachment and
sale of property for default in payment of
revenue. Once such sale is conducted by the
Government itself and the purchaser is put in
possession and revenue records are mutated,
the State cannot later impose additional
unwritten conditions.
24.61. He submits that a Government auction sale
carries with it a presumption of legality and
finality. If the tenure was truly inalienable, the
Government could not have auctioned it at all.
Having auctioned the property, received
consideration, issued sale certificates, and
allowed the purchaser and his successors to
remain in possession for decades, the State is
estopped from contending that the transfer
was invalid.
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24.62. In simple terms, the Government cannot sell
the property in 1926 and then, nearly a
century later, argue that the property was
never capable of being sold. Accordingly,
learned Counsel submits that once the land
was brought to public auction for revenue
default and conveyed to the auction
purchaser, all rights in respect of that holding
vested in the purchaser to the extent
permitted by law. The present contention of
non-transferability is therefore inconsistent
with the State's own earlier conduct.
24.63. Learned Counsel further submits that if there
had in fact been any legal restriction
prohibiting transfer of Jamma Malai land, the
Government ought not to have conducted the
auction in 1926. Alternatively, at the very
least, the Government ought to have
expressly imposed such a restriction in the
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sale certificate or in the conveyance in favour
of Sri Palekanda Medappa. No such condition
was imposed. The sale was conducted by the
Government itself, possession was delivered,
and revenue entries were mutated. In the
absence of any express restriction at the time
of sale, it is impermissible for the State to now
contend, nearly a century later, that the
property was inherently non-transferable.
24.64. He then turns to the issue of "protected
forest." Learned Counsel reiterates that the
Respondents rely only on the notification
dated 15.03.1887 (referred to in submissions
as 15.02.1887), which was merely a proposal.
It was not a final notification issued after
completion of enquiry. A proposal cannot, by
itself, convert private or granted land into
protected forest. The law requires a final
declaration after due enquiry into rights. In
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this regard, he places reliance on the
judgment of the Commissioner of Coorg dated
07.10.1904, wherein it was clearly observed
that without completion of enquiry and final
declaration, rights of occupants cannot be
curtailed.
24.65. Learned Counsel further submits that the
Working Plan of the Virajpet Forest Division
for the year 2015 has been placed on record.
The said working plan specifically identifies
reserved forest areas village-wise. In
Chelavara Village, only Sy.No.176 is shown as
reserved forest. None of the survey numbers
belonging to the Petitioners are shown as
reserved forest.
24.66. As regards protected forest, the working plan
lists only three properties in Chelavara Village
as protected forest. None of the Petitioners'
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lands are included in that list. Further, even
the list of Jamma Malai holders within
Padinalaknad Reserved Forest does not
include the subject properties. A portion of
Sy.No.5 belonging to one Bovrienda
Chinnappa is shown as falling within
Padinalaknad Reserved Forest, but the
Petitioners' lands are not.
24.67. On the basis of these official records, learned
Counsel emphatically submits that the
Petitioners' lands are neither reserved forest
nor protected forest, nor do they form part of
the Padinalaknad Reserved Forest. The
Respondents' contention to the contrary is not
supported by statutory notification or official
records and therefore cannot be sustained.
24.68. By referring to the judgment in OS 4 of 1978,
he submits that the trial Court has unequally
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declared that the properties are Jamma Malai
properties and those rights are saved under
Section 202 of the Karnataka Land Revenue
Act 1964. Section 202 is reproduced
hereunder for easy reference;
202. Repeal and Savings.--(1) The
enactments specified in the Schedule, and any
other law corresponding to this Act are hereby
repealed: Provided that subject to the
provisions of this Act, the repeal shall not
effect,--
(a) the previous operation of any such
enactment or law or anything duly done or
suffered thereunder;
(b) any right, privilege, obligation or liability
acquired, accrued or incurred under such
enactment or law;
(c) any penalty, forfeiture or punishment
incurred in respect of any offence committed
against such enactment or law;
(d) any investigation, legal proceeding or
remedy in respect of such right, privilege,
obligation, liability, penalty, forfeiture or
punishment as aforesaid;
and any such investigation, legal
proceeding or remedy may be instituted or
enforced and any such penalty, forfeiture, or
punishment may be imposed as if such
enactment or law had not been repealed.
(2) Notwithstanding anything contained in the
proviso to sub-section (1) but subject to any
notification issued under section 201, anything
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done or any action taken (including any
appointment, or delegation made, land
revenue, non-agricultural assessment, fee or
cess, settled, fixed or imposed, notification,
order, instrument or direction issued, rule or
regulation made, certificate obtained or
permission granted) under any enactment or
law repealed by sub-section (1) shall be
deemed to have been done or taken under the
corresponding provisions of this Act and shall
continue to be in force accordingly unless and
until superseded by anything done or any action
taken under this Act.
[(2A) Notwithstanding anything contained in
sub-section (1) or sub-section (2) or in any
enactment or law repealed by sub-section (1)
or any other law, in respect of any order made
or proceedings disposed of by any officer
subordinate to the Divisional Commissioner
under any enactment or law, repealed by sub-
section (1) or any rule or order made under
such enactment or law, no appeal shall lie to
the Divisional Commissioner, but an appeal
shall lie to the tribunal as if the Tribunal were
the appellate Authority under such enactment,
law, rule or order, and such appeal shall be
disposed of by the Tribunal in accordance with
the provisions of such enactment, law, rule or
order.]
(3) Any reference in any enactment or law or in
any instrument to any provision of any of the
enactment or law repealed by sub-section (1)
shall, unless a different intention appears, be
construed as a reference to the corresponding
provision of this Act.
(4) Any custom, usage or order prevailing in
any area of the State, at the time of the
commencement of this Act, and having the
force of law therein shall, if such custom, usage
or order is repugnant to, or inconsistent with
any of the provisions of this Act, cease to be
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operative to the extent of such repugnancy or
inconsistency.
24.69. Learned Counsel submits that Section 202 of
the Karnataka Land Revenue Act, 1964
assumes central importance in the present
case. Though the Act repealed earlier
enactments, including the Coorg Land and
Revenue Regulations, the repeal was not
intended to disturb vested rights or undo
actions lawfully taken under the repealed
laws.
24.70. He submits that Section 202(1) clearly
provides that repeal shall not affect the
previous operation of the earlier enactments,
nor shall it affect any right, privilege,
obligation or liability acquired or incurred
thereunder. In other words, rights that had
already accrued under the Coorg Regulations
continue to remain valid and enforceable even
after repeal.
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24.71. He further points out that Section 202(2)
strengthens this protection by declaring that
anything done or any action taken under the
repealed enactments, including notifications,
orders, certificates, assessments, permissions
or other instruments, shall be deemed to have
been done under the corresponding provisions
of the 1964 Act and shall continue in force
unless specifically superseded.
24.72. Learned Counsel submits that this provision
directly protects the 1926 auction sale
conducted under the Coorg Regulations. The
sale was confirmed. A certificate was issued.
Possession was delivered. Revenue entries
were mutated. All these were acts duly done
under the repealed law. By operation of
Section 202, such acts are deemed to
continue under the present statutory
framework.
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24.73. He emphasises that repeal does not erase
history. It does not extinguish accrued rights.
It does not invalidate transfers validly effected
under earlier law. Unless there is a specific
provision in the 1964 Act annulling those
rights, they continue to subsist.
24.74. He further submits that there is no provision
in the Karnataka Land Revenue Act, 1964
declaring Jamma Malai rights extinguished or
rendered non-transferable. In the absence of
inconsistency, the rights recognised under the
earlier regime continue by statutory
protection.
24.75. Accordingly, learned Counsel submits that the
State cannot rely upon repeal of the Coorg
Regulations to reopen or unsettle rights that
stood created, recognised and acted upon
decades ago. Section 202 preserves
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continuity, stability and finality, and the rights
flowing from the 1926 auction and subsequent
judicial recognition remain protected in law.
24.76. In O.S.No.4 of 1978, the Trial Court
categorically held that the properties in
question are Jamma Malai lands. The Court
examined the historical tenure and expressly
recognised the nature of rights attached to
such lands. It was further held that those
rights stand protected under Section 202 of
the Karnataka Land Revenue Act, 1964. He
refers to Section 202, which is a saving
provision. The section makes it clear that
repeal of earlier enactments does not affect
rights, privileges, obligations or liabilities
acquired or accrued under such enactments. It
further provides that anything done or any
action taken under repealed laws shall be
deemed to have been done under the
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corresponding provisions of the Karnataka
Land Revenue Act, 1964, and shall continue in
force unless lawfully superseded.
24.77. Relying on this provision, learned Counsel
submits that the rights attached to Jamma
Malai tenure, as recognised under the earlier
Coorg Regulations, stood preserved even after
the coming into force of the Karnataka Land
Revenue Act, 1964. Those rights were not
extinguished by repeal. They continued by
virtue of the statutory saving clause.
24.78. He further submits that the Trial Court in O.S.
No. 4 of 1978 clearly held that the holder of
Jamma Malai land is not the absolute owner in
the sense of having full proprietary rights, but
is entitled to hold the land and cultivate
cardamom therein. It was also held that the
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holder does not have title over the tree
growth standing on the land.
24.79. Importantly, the plaintiff in that suit, Sri
Emmanuel Thomas Rampuram, was not the
original grantee. He was a transferee. The first
transferee was Sri Palekanda Medappa, the
auction purchaser in 1926. Sri Emmanuel
Thomas Rampuram had acquired the property
from him under a registered sale deed.
Despite this position, the Trial Court
recognised and affirmed the rights of Sri
Emmanuel Thomas Rampuram as holder. The
State was a party to that suit. The Court did
not declare the transfer void. It did not hold
that the tenure was inalienable. On the
contrary, it recognised the transferee's rights
as holder, subject to limitations. Learned
Counsel therefore submits that the very
recognition of rights in favour of a transferee
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by a competent Civil Court necessarily
negates the present contention of the
Respondents that Jamma Malai tenure is non-
transferable. If the tenure had been legally
incapable of transfer, the Civil Court would
have so held. No such finding was rendered.
24.80. Accordingly, the rights having been judicially
recognised and saved under Section 202 of
the Karnataka Land Revenue Act, 1964, the
Respondents cannot now contend that the
transfers were void or that the Petitioners
derive no lawful right from their predecessors.
24.81. Learned Counsel further submits that even in
RSA No. 466 of 1980, this Court, while
allowing the appeal filed by the State, did not
negate the right of Sri Emmanuel Thomas
Rampuram to hold the land. He submits that
this Court in the said Second Appeal clarified
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the legal position by holding that the land in
question is Jamma Malai land and that the
holder possesses only a limited right, namely,
the right to cultivate cardamom. The Court
restricted the extent of proprietary claims,
particularly in respect of tree growth.
However, the Court did not hold that Sri
Emmanuel Thomas Rampuram had no right to
hold the land at all. It did not declare the
transfer void. It did not direct dispossession.
It did not hold that the tenure was incapable
of being transferred. On the contrary, the
effect of the judgment was to define the
nature and extent of the right, not to
extinguish it. The limited right of cultivation
was affirmed. The status of the holder was
recognised. The only restriction imposed was
with regard to ownership over trees.
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24.82. Learned Counsel therefore submits that RSA
No. 466 of 1980 actually supports the
Petitioners' case. It conclusively determined
the nature of the tenure as Jamma Malai and
confirmed that the holder has a subsisting
right to cultivate cardamom. The Respondents
cannot now reinterpret the said judgment as if
it nullified the holding itself.
24.83. Accordingly, it is submitted that the rights of
Sri Emmanuel Thomas Rampuram, as
recognised and defined in RSA No. 466 of
1980, continue to enure to the benefit of the
Petitioners as his successors in interest.
24.84. He refers to the decision of the Hon'ble Apex
Court in Subbegowda v. Thimmegowda10
more particularly para 5, 6 and 9 thereof,
which are reproduced hereunder for easy
reference;
10
2004 (9) SCC 734,
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5. In Raj Bajrang Bahadur Singh v. Thakurain
Bakhtraj Kuer [AIR 1953 SC 7] this Court was
called upon to examine what the testator had
intended the legatee to take under a Will in the
context of the expressions like malik kamil
(absolute owner) and naslan bad naslan
(generation after generation) having been used
in the Will in reference to the interest which
was sought to be demised. This Court held that
such words, though descriptive of a heritable
and alienable estate in the donee and
connoting full proprietary rights, may not have
been used with the intention of conferring
absolute rights if there could be something in
the context or in the surrounding
circumstances to permit such an inference
being drawn:
"In cases where the intention of the testator is
to grant an absolute estate, an attempt to
reduce the powers of the owner by imposing
restraint on alienation would certainly be
repelled on the ground of repugnancy; but
where the restrictions are the primary things
which the testator desires and they are
consistent with the whole tenor of the Will, it is
a material circumstance to be relied upon for
displacing the presumption of absolute
ownership implied in the use of the word
'malik'."
6. For the interpreter of documents it is
common knowledge that a transfer of property
or a creation of interest therein may be
accompanied by conditions, covenants or
restraints. Condition may be condition
precedent -- a condition which must be
performed before the grant or alienation takes
effect to create an interest in property, or may
be condition subsequent -- a condition which
has an effect of enlarging or defeating the
interest already created or vested. In either
case the condition will be annexed with the
estate and would run with the same. In Philip
John Plasket Thomas v. CIT [AIR 1964 SC 587]
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, AIR vide para 14, this Court has dealt with
conditions -- precedent and subsequent, in the
context of gift of shares. A covenant is not
annexed with the estate and runs
independently of it which may give rise to a
cause of action for specific performance or for
an action in damages. A restraint or a
limitation has the effect of curtailing the
quantum of the estate affected thereby.
9. A conditional transfer or a settlement
accompanied by conditions is not unknown to
the law of real property. It is permissible in law
to annex or encumber any grant or alienation
with condition or limitation which will operate
and the Court will give effect to it unless there
is some provision of law which annuls or
invalidates such condition, restraint or
limitation. None has been brought to our
notice.
24.85. Learned Counsel once again places reliance on
the decision of the Hon'ble Supreme Court in
Subbegowda v. Thimmegowda, and
submits that the Hon'ble Supreme Court in the
said decision has explained an important
principle of property law, namely, that an
interest in property may be limited,
conditional or subject to restraints, and yet
remain a valid and enforceable estate. The
Court clarified that a grant may be
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accompanied by conditions, either precedent
or subsequent, and such conditions run with
the estate. The existence of limitations does
not invalidate the transfer unless there is a
specific statutory provision annulling such
condition or restraint.
24.86. The Hon'ble Supreme Court further observed
that a conditional transfer or settlement is
recognised in law and is enforceable unless
there is some legal provision declaring it void.
The Court emphasised that limitations
regulate the enjoyment of property; they do
not automatically render the estate non-
transferable.
24.87. Relying on the above principles, learned
Counsel submits that in the present case, the
nature and extent of rights in Jamma Malai
lands have already been judicially determined
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in O.S.No.4 of 1978 and clarified in RSA
No.466 of 1980. The rights were recognised
as limited, particularly confined to cultivation
of cardamom and without proprietary rights
over tree growth. Those limitations define the
character of the estate. They do not prohibit
transfer of that limited interest. He submits
that once a Court of competent jurisdiction
has determined the nature of rights attached
to the property and such determination has
attained finality, those rights form the legal
character of the estate. It is permissible in law
for such limited estate to be transferred, and
the transferee steps into the shoes of the
transferor subject to the same limitations.
24.88. Unless there is a specific statutory provision
annulling or prohibiting such transfer, the
estate as defined by judicial pronouncement
continues to operate. No such prohibitory
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provision has been brought to the notice of
this Court.
24.89. Accordingly, learned Counsel submits that the
Respondents cannot now seek to invalidate
the transfer or deny the Petitioners' status as
holders when the nature of the estate has
already been settled and has attained finality.
24.90. He relies upon the decision of this Court in
Chief Secretary to Government of
Karnataka v. Pongere Kariappa11, more
particularly para 14 and 15 thereof, which is
reproduced hereunder for easy reference;
14. Un reported decision in R.F.A. No. 655/1989
dated 30.11.1990 by the Bench consisting
Justice N. Venkatachala and Justice Murlidhar
Rao was brought to my notice which directly
applies on the point and facts are similar. This is
what the Bench observed:--
"the lands originally belonged to one Chennappa
Somiah, who fell in arrears in payment of land
revenue. The lands were auctioned by the
revenue authorities. Plaintiff's father was the
auction purchaser. The sale certificates are
11
ILR 1999 Karn., 1023
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produced as Ex. P3 and P4. Defendants
contested the suit by filing written statement,
however they did not lead any evidence. After
assessing the evidence, the Court below decreed
the suit.
In addition to the sale certificates at Ex. P3 and
Ex. P4, the plaintiff has produced the
'Jamabandi' statement at Ex. P2, which makes it
clear that Sy. No. 13/6, 13/7, 13/39 and 13/3A
are described as "Sagu Bane" lands. In the
auction sale certificates all lands are described
as "Sagu lands" and it is not indicated that they
are unredeemed lands. In the circumstances,
the Court below was justified in holding that the
timber was given after the sale. So far as Sy.
No. 39/2 is concerned, it does not find a place in
Exts. P3 and P4 and no other document of title is
produced."
Here also it is to be seen that the defendant do
not lead any evidence nor produced any
documents. Another reference was made to the
decision made in O.S. No. 118/1994 where the
facts are same if not similar. There also the
plaintiff have purchased the suit property in a
public auction sale and that the plaintiff claimed
right over the land, the Government contended
that though the tenure of suit land was
mentioned as 'Jamabhandi' as it appeared in
Jamabhandi register, the right of timber was not
sold to the plaintiff. An issue was framed in that
case as to whether the public auction sale held
on 19.8.1932 was an absolute sale and whether
the plaintiff has acquired absolute right over the
suit schedule property? The issue was answered
in affirmative in favour of the plaintiff. Finally
the Court held that the defendant Government
are liable to issue the require permission for
felling and cutting or removing the trees without
taking seigniorage rate subject to the conditions
stipulated under the Karnataka Forest Act or the
rules framed thereunder. This Judgment was
delivered by the Civil Judge, Madikeri on
15.4.1997 and the Government having decided
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not to file an appeal as per the Order of the
authorities made available to this Court.
Therefore the contention of the
Respondent/plaintiff that the Government cannot
adopt the double standard with reference to the
same type of the land as the same applicable to
the present case has to be upheld, and there is
no answer from the Government as to why the
different yardstic applied to the present
appellant when it is not made applicable to the
other case. But there is no answer from the
appellants.
15. It was also brought to the notice of this
Court that Rule-109 of the Coorg Revenue
Manual/Regulation as has been amended. I am
reproducing the un-amended provisions and as
well as amended provision:--
Un-amended
"The word interest of the defaulter alone therein,
as those interests existed immediately before
the attachment of the property was notified,
shall be sold, and no encumbrances created, or
grants or contracts made, by him in good faith
before the notification." was replaced by the
word such property.
amended clause (rule)
"Effect on encumbrances of sale of property for a
sum other than an arrears due in respect
thereof:-- When immovable property is brought
to sale under this chapter for the recovery of
anyc other sum than an arrears due in respect
thereof, such property shall, except in the cases
hereinafter excepted, be sold free of all
encumbrances, and all grants and contracts
previously made by any person other than the
purchaser in respect of the property shall
become void as against the purchaser."
That means when the property is brought to sale
any other right conferred upon anybody
including the Government shall remain
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extinguished. In fact this is in line with Section-
110 of the Regulation which is also reproduced
herewith:--
110- Effect of sale on lands held revenue free or
at favourable rates:-- When Jama or umbli land,
or other land held wholly or partially free of
revenue, is sold under this Chapter, Whether for
recovery of an arrears due in respect thereof or
for the recovery of any other sum, the privileges
attaching to the tenure of the land with respect
of the assessment of land-revenue shall be
extinguished by the sale:
This makes it clear that whenever auction sale is
held by the Government, all the properties in the
Lands of a person who fell short in land revenue
arrears, shall be brought to sale and the
properties shall be free from any commitment on
the land and it shall be held as absolute property
of the auction purchaser. This amendment was
not brought to the notice of the Court, especially
in I.L.R. 1992, Karnataka page-910.
24.91. Learned Counsel once again relies on
Pongere Kariappa, and submits that in the
said case, this Court considered a situation
where lands were brought to public auction by
the revenue authorities on account of arrears
of land revenue. The purchaser acquired the
property through a Government-conducted
auction. The Government later attempted to
restrict or deny certain rights, including rights
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relating to timber. However, this Court held
that where land is sold in public auction by the
State itself, and sale certificates are issued,
the purchaser acquires the rights conveyed
under such sale.
24.92. The Court also noticed that in similar cases,
the Civil Court had held that auction sales
conducted by the Government were absolute
in nature. It was further held that the
Government could not apply different
standards to similar lands. Once it accepted
the legal consequences of auction sale in one
case, it could not take a contrary stand in
another case involving the same category of
land. The Government, having chosen not to
challenge such decisions, could not
subsequently adopt a different yardstick.
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24.93. Learned Counsel further refers to the
amended Rule 109 of the Coorg Revenue
Manual/Regulation. He submits that the
amendment clearly provides that when
immovable property is brought to sale for
recovery of dues, such property shall be sold
free of encumbrances, and previous grants or
contracts in respect of the property become
void as against the purchaser. He also refers
to Section 110 of the Coorg Regulations,
which provides that when Jama or other land
is sold under the Chapter, the privileges
attaching to the tenure stand extinguished by
the sale.
24.94. According to learned Counsel, the combined
effect of these provisions is that once the
Government brings property to sale for
revenue default, the property passes to the
auction purchaser free from prior
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encumbrances. The purchaser holds the
property in his own right, subject only to the
legal character of the tenure and not subject
to undisclosed restrictions.
24.95. He submits that in Pongere Kariappa, this
Court has properly examined the effect of the
Coorg Land and Revenue Regulations,
including the provisions relating to auction
sale. The decision clarifies what rights flow
from such sale and how the Government's
own act of auction impacts the character of
the title conveyed.
24.96. Relying on the above, learned Counsel
submits that the 1926 auction conducted by
the Government in the present case must be
understood in the same legal framework.
Once the State auctioned the property for
revenue arrears and conveyed it to Sri
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Palekanda Medappa, it cannot now contend
that the purchaser acquired no transferable
interest or that hidden restrictions survive the
sale.
24.97. Accordingly, he submits that the ratio in
Pongere Kariappa squarely supports the
Petitioners' case and must guide this Court in
determining the legal effect of the 1926
auction under the Coorg Land and Revenue
Regulations.
24.98. On that basis, he submits that the petitions
required to be allowed, the right of the
petitioners to hold the land recognised, the
right of the petitioners to transfer the land to
be declared, so also the right of the
petitioners to grow coffee along with
cardamom be declared.
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25. Heard Sri.S.R.Kamalacharan, learned counsel for the
Petitioners and Sri.Pradeep.C.S., learned Additional
Advocate General for Respondents No.1 to 5.
Perused papers.
26. The points that would arise for consideration are;
1. Whether the lands in question are forest
lands in law, and if so, whether they stand
validly declared as Reserved Forest or
Protected Forest under the applicable
statutory framework?
2. Whether the Notification dated 15.03.1887
or any subsequent proceedings culminated
in a final and legally enforceable
declaration affecting the petition lands?
3. What is the true legal character of Jamma
Malai tenure, whether it constitutes a
limited but transferable estate, a purely
personal cultivation right, or a leasehold
interest under forest law?
4. What is the legal effect of the public
auction conducted in 1926 under the Coorg
Land and Revenue Regulations, and
whether the auction purchaser acquired
transferable rights in the holding?
5. Whether the transfers from the auction
purchaser to subsequent transferees,
including the Petitioners, are valid and
legally sustainable?
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6. Whether the nature and extent of rights in
the petition lands stand conclusively
determined by the judgments in O.S. No. 4
of 1978, RSA No. 466 of 1980, W.P. No.
4013 of 2007 and W.A. No. 375 of 2011,
and whether the Respondents are
precluded from re-agitating those issues?
7. Whether the Respondent authorities had
jurisdiction to initiate the impugned
enquiry, invoke the provisions of the
Karnataka Forest Act, 1963, and demand
lease rental or treat the tenure as a lease?
8. Whether the impugned order dated
16.12.2011 and the connected proceedings
are liable to be quashed as being without
jurisdiction, contrary to binding judicial
determinations, or otherwise
unsustainable in law?
9. What order?
27. I answer the above points as follows:
28. Answer to Point No. 1: Whether the lands in
question are forest lands in law, and if so,
whether they stand validly declared as
Reserved Forest or Protected Forest under the
applicable statutory framework?
28.1. Sri. S.R. Kamalacharan, learned counsel for the
Petitioners, submits that the lands in question,
situated at Chelavara Village, Napoklu Hobli,
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Virajpet Taluk, Kodagu District, comprising
survey numbers 129/3, 154/8, 154/31, 154/32,
154/33, 154/34, 154/35, 154/36, 170, 173,
174, and Paradeena land in Sy.No.154/2, are
not forest lands in law. According to him, the
lands have never been validly declared as
either a Reserved Forest or Protected Forest
under any applicable statutory framework.
28.2. Learned counsel contends that the notification
dated 15.03.1887, relied upon by the
Respondents, was only a preliminary
notification and did not amount to a final
declaration of forest. He submits that by the
judgment dated 07.10.1904, the Commissioner
of Coorg held that the subsequent notification
dated 26.05.1902 superseded the earlier
notification dated 15.03.1887. Therefore, the
1887 notification cannot now be relied upon to
claim that the petition lands are forest lands.
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28.3. It is further submitted that under the 1887
notification, almost the entire Kodagu (Coorg)
District was identified as a proposed protected
forest. However, such a proposal was never
fully implemented or finalised in accordance
with the law. Mere reference to the 1887
notification is, according to the Petitioners,
legally unsustainable.
28.4. Learned counsel refers to Section 28 of the
Indian Forest Act, 1878, and submits that
forest status cannot arise merely by proposal or
preliminary notification. According to him, the
scheme of the Forest Act requires: a proper
enquiry into existing rights; determination of
claims of individuals and communities;
recording of such rights; and issuance of a final
notification declaring the land as a reserved or
protected forest. Unless a final declaration is
made after such an enquiry, the Government
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cannot assert that the land has become forest
land. In the absence of a final notification,
private rights remain unaffected.
28.5. Learned counsel submits that after the 1887
notification, the only relevant development was
the notification dated 26.05.1902 proposing the
constitution of the Padinalaknad Ghat Reserved
Forest, published on 02.06.1902. Under this
notification, H.S. Mullins was appointed as
Forest Settlement Officer to enquire into the
nature and extent of rights claimed within the
limits of the proposed reserve forest.
Ultimately, on 20.04.1906, the Padinalaknad
Reserved Forest was notified and published on
01.05.1906. Crucially, the petition lands were
excluded from the final notification. Since they
were not included in the final declaration, they
cannot now be treated as forest land.
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28.6. Learned counsel further submits that the map
produced before this Court clearly shows that
the petition lands are not contiguous with any
notified forest area. On the contrary, the lands
are interspersed with privately owned lands and
even a village settlement. Forest land is
normally identifiable as a continuous block.
Since the petition lands are surrounded by
private holdings and habitations, they cannot
be treated as part of any reserved forest.
28.7. Learned counsel refers to the Forest
Department's Working Plan issued in the year
2015 and submits that the petition lands are
not included within the reserved forest area
described therein. If the lands were truly
reserved forest, they would necessarily form
part of the Working Plan. Their exclusion shows
that the lands are not treated by the
Department itself as forest land.
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28.8. It is further submitted that in W.P. No. 4013 of
2007, a Co-ordinate Bench of this Court
quashed the orders of the Deputy
Commissioner and held that the petition lands
were outside the forest area. Once this Court
has held that the lands are not forest lands,
there can be no restriction on the Petitioners
exercising their recognised rights. The Division
Bench in Writ Appeal No. 375 of 2011 did not
disturb this finding.
28.9. Sri. Pradeep C.S., learned Additional Advocate
General appearing for Respondents No.1 to 5,
submits that the land in question falls within
the boundaries of the protected forest declared
under Section 28 of the Indian Forest Act,
1878, pursuant to Notification No. 13 dated
15.03.1887 issued by the Chief Commissioner
of Coorg and published in the Coorg District
Gazette on 01.06.1887.
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28.10. Learned AAG categorically submits that the
Respondents do not contend that the land is a
reserved forest; however, they deny the
Petitioners' contention that the land is not
forest land. According to him, the land in
question is protected forest as distinguished
from reserved forest. Even a protected forest, it
is submitted, is forest land requiring
preservation and protection under law.
28.11. It is submitted that the Chief Secretary of
Karnataka, after visiting Kodagu District and
verifying the relevant records, submitted a
report pursuant to directions issued in the
Public Interest Litigation. The directions issued
thereafter, including recording the name of the
Government and classifying the land as forest
land, were based on such verification.
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28.12. Learned AAG further refers to Section 33 of the
Karnataka Forest Act, 1963, which empowers
the State Government to make rules regulating
the use of forest produce and pasturage of land
at the disposal of the Government and not
included in a reserved or village forest. Sub-
section (4) further provides that land placed
under special protection under clause (ii) of
sub-section (2) shall be called "protected
forest" and shall be duly notified as such in the
Official Gazette.
28.13. On the basis of the above provision, learned
counsel submits that lands falling within the
scope of Section 33 are statutorily recognised
as protected forests once notified. The forest
authorities are competent to regulate use,
prohibit unauthorised cultivation, and initiate
proceedings in case of violation.
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28.14. In rejoinder, Sri. Kamalacharan submits that
the reliance on Section 33 of the Karnataka
Forest Act is misplaced. That provision applies
only when land is specifically notified as a
protected forest under Section 33(4). No such
notification covering the petition lands has been
produced. The mere existence of power does
not prove its exercise. He further reiterates that
the Working Plan of the Virajpet Forest Division
for the year 2015 specifically identifies reserved
forest areas village-wise, and in Chelavara
Village, only Sy.No.176 is shown as reserved
forest. None of the survey numbers belonging
to the Petitioners are shown as reserved or
protected forest.
28.15. I have carefully considered the rival
submissions and perused the material on
record. The central question under this Point is
whether the petition lands can be classified as
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forest lands, and if so, whether they have been
validly declared as Reserved Forest or Protected
Forest under the applicable statutory
framework.
28.16. At the outset, it is necessary to understand the
statutory scheme governing the declaration of
forests. The Indian Forest Act, 1878, which was
the applicable legislation at the material time,
provided a detailed and structured procedure
for the constitution of both reserved forests and
protected forests. Under Section 28 of the said
Act, the Local Government was empowered to
declare any land at the disposal of the
Government to be a protected forest. However,
such a declaration required compliance with the
statutory procedure, including the
determination of existing rights.
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28.17. Section 28 of the Indian Forest Act, 1878 has
been reproduced hereinabove.
28.18. A plain reading of Section 28 makes it clear
that for land to be declared as protected forest,
two conditions must be satisfied: first, the land
must be forest-land or waste-land not included
in a reserved forest; and second, the land must
be the property of the Government, or the
Government must have proprietary rights
therein, or the Government must be entitled to
the whole or any part of the forest-produce
thereof. Even then, a formal notification in the
Official Gazette is mandatory.
28.19. The Respondents rely on the notification dated
15.03.1887 issued by the Chief Commissioner
of Coorg. This notification proposed to declare a
large extent of the then Coorg Province as
"protected forest." However, a critical
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distinction must be drawn between a
preliminary or proposed notification and a final
declaration. The Petitioners' contention that this
notification was only a preliminary step
intended to initiate an enquiry, and not a final
declaration, is well-founded.
28.20. The judgment dated 07.10.1904 passed by the
Commissioner of Coorg assumes significance.
In that judgment, the Commissioner held that
the subsequent notification dated 26.05.1902
superseded the earlier notification dated
15.03.1887. This finding has not been shown to
have been set aside or reversed. If the 1902
notification superseded the 1887 notification,
then the legal foundation upon which the
Respondents base their claim of "protected
forest" stands considerably weakened.
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28.21. Furthermore, the notification dated 26.05.1902
proposed the constitution of the Padinalaknad
Ghat Reserved Forest. A Forest Settlement
Officer was appointed to enquire into the nature
and extent of rights claimed within the
proposed area. After completion of the
statutory process, the Padinalaknad Reserved
Forest was notified on 20.04.1906 and
published on 01.05.1906. This was a final
notification issued after due enquiry in
accordance with law.
28.22. The Petitioners' contention that their lands were
excluded from the final notification of 1906 is
supported by the material on record. The list of
Jamma Malais included in the Padinalaknad
Reserved Forest does not include the subject
properties. Annexure-H produced along with
the writ petition shows that the petition lands
are outside the Padinalaknad Reserved Forest.
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This material was brought to the notice of the
Conservator of Forests, but no finding was
recorded on this issue and the material was
ignored.
28.23. I am also persuaded by the fact that the Forest
Department's own Working Plan issued in 2015
does not include the petition lands within the
reserved forest area. In Chelavara Village, only
Sy.No.176 is shown as a reserved forest. As
regards a protected forest, the Working Plan
lists only three properties in Chelavara Village
as protected forest, and none of the Petitioners'
lands are included. The Working Plan is an
official document of the Forest Department
itself. If the Department's own records do not
treat the petition lands as forest land, the claim
that they constitute protected forest is difficult
to sustain.
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28.24. The Respondents have relied upon Section 33
of the Karnataka Forest Act, 1963. While
Section 33(4) provides for notification of
protected forests, the Respondents have not
produced before this Court any notification
under Section 33(4) covering the petition lands.
The mere existence of power under Section 33
does not establish its exercise. The burden lies
on the Respondents to demonstrate that the
petition lands have been duly notified as a
protected forest. No such notification has been
placed on record.
28.25. It is pertinent to note that in W.P. No. 4013 of
2007, a Co-ordinate Bench of this Court
examined the question and held that the
petition lands were outside the forest area. The
relevant observations in the said order,
particularly paragraph 20 thereof which is
reproduced hereunder for easy reference:
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20. It is not in dispute that the limited right in
jamma malai lands of a holder is the
cultivation of cardamom, if it can really be
called cultivation, which alone is permitted.
The holder has no proprietary right over the
lands or the tree growth. The petitioners
admittedly are not claiming any larger right
and such right having been recognised by the
judgment and decree in the civil suit between
erstwhile holders and the State Government
and which right has been alienated in favour of
the petitioners and the finding as regards the
right of the holder having attained finality in
view of the judgment of this Court in the
second appeal, the present finding that the
jamma malai lands are part of the reserved
forest is not supported by any material placed
on record. The reference to the history of
jamma malai lands and the manner in which
the jamma malais have been declared as
protected forests under the relevant legislation
does not establish that the present lands of the
petitioners were also notified and declared as
part of the reserved forest.
28.26. This finding is by way of a judicial
pronouncement by a Co-ordinate Bench of this
Court. The learned AAG submits that W.P. No.
4013 of 2007 only held that the lands are not
part of a reserved forest and did not address
whether they are protected forests. While there
is some force in this distinction, the fact
remains that no material has been placed
before this Court to demonstrate that the
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petition lands were ever subjected to a valid
notification under Section 28 of the Indian
Forest Act, 1878 or Section 33(4) of the
Karnataka Forest Act, 1963.
28.27. The Respondents' case essentially rests on the
1887 notification. However, as discussed above,
that notification was only a preliminary
proposal. It was superseded by the 1902
notification. The final notification of 1906, which
completed the statutory process, did not
include the petition lands. The Department's
own Working Plan does not treat the lands as
forest land. No separate notification under
Section 33(4) of the Karnataka Forest Act has
been produced.
28.28. In the light of the above analysis, I am of the
considered view that the petition lands have not
been validly declared as Reserved Forest or
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Protected Forest under the applicable statutory
framework. The Respondents have failed to
establish that the lands are forest lands in law.
The 1887 notification, being a preliminary
proposal that was superseded and never
finalised insofar as the petition lands are
concerned, cannot serve as the legal basis for
treating the lands as a protected forest.
28.29. The map produced before this Court further
supports this conclusion. The petition lands are
surrounded by private holdings and habitations,
and are not contiguous with any notified forest
block. This physical characteristic is consistent
with the finding that the lands were never
validly declared as forest.
28.30. Accordingly, I answer Point No. 1 by holding
that the lands in question are not forest lands
in law. They have not been validly declared as
a Reserved Forest or Protected Forest under the
applicable statutory framework.
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29. Answer to point No.2: Whether the Notification
dated 15.03.1887 or any subsequent
proceedings culminated in a final and legally
enforceable declaration affecting the petition
lands?
29.1. Sri.Kamalacharan, learned counsel for the
Petitioners, submits that the notification dated
15.03.1887 was only a preliminary notification
proposing to declare a large extent of Coorg
Province as a protected forest. It did not
amount to a final declaration and did not, by
itself, convert any land into forest land.
29.2. It is submitted that the judgment dated
07.10.1904, passed by the Commissioner of
Coorg, clearly held that the subsequent
notification dated 26.05.1902 superseded the
earlier notification of 1887. Once the 1887
notification stood superseded, it cannot now be
revived or relied upon to claim forest status
over the petition lands.
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29.3. Learned counsel further submits that the 1902
notification initiated the process for the
constitution of the Padinalaknad Ghat Reserved
Forest. A Forest Settlement Officer was
appointed. Enquiries were conducted. Rights
were determined. Ultimately, on 20.04.1906,
the Padinalaknad Reserved Forest was notified
and published on 01.05.1906. The petition
lands were not included in this final notification.
Since the only lawful process culminated in a
final notification which excluded the petition
lands, no valid declaration of forest status was
ever made in respect of these lands.
29.4. Learned counsel also submits that a clarification
had been issued that the 1887 notification
would not apply to lands where private rights
and privileges are involved. Since the
Petitioners are private parties with recognised
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rights, the said notification would not apply to
their lands.
29.5. It is further submitted that Section 28 of the
Indian Forest Act, 1878 contemplated a
structured process. A mere proposal cannot
extinguish private rights without completion of
the statutory procedure, including enquiry,
determination and final declaration. In the
absence of completion of such process, the
lands retain their pre-existing character.
29.6. Sri. Pradeep C.S., learned AAG, submits that
the notification dated 15.03.1887 issued under
Section 28 of the Indian Forest Act, 1878
constituted a valid declaration of a protected
forest. According to him, the petition lands fall
within the boundaries of the protected forest
declared under this notification. He contends
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that the lands were and continue to be
protected forest by virtue of this notification.
29.7. It is submitted that the Respondents have
consistently maintained that the lands are a
protected forest and not a reserved forest. The
distinction between a reserved forest and a
protected forest is material. While the petition
lands may not have been included in the
Padinalaknad Reserved Forest notification of
1906, their exclusion from that notification does
not affect their status as a protected forest
under the earlier notification of 1887.
29.8. Learned AAG submits that Respondent No.3 in
the impugned enquiry had recorded a finding
that lands classified as Jamma Malai lands fall
within the ambit of "statutory forest" under the
scheme of the Karnataka Forest Act, 1963. The
finding was premised on the historical character
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of such lands and the contention that
cultivation rights did not divest the State of
underlying ownership or forest character.
29.9. This Point requires the Court to trace the chain
of notifications and proceedings to determine
whether any valid and legally enforceable
declaration of forest status was ever made in
respect of the petition lands.
29.10. The chronological sequence of events is as
follows:
29.10.1. First, the notification dated
15.03.1887 was issued by the Chief
Commissioner of Coorg under Section
28 of the Indian Forest Act, 1878,
proposing to declare a large portion
of the Coorg Province as a protected
forest. This notification was published
on 01.06.1887. However, the scope
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of this notification was extraordinarily
wide, covering almost the entire
Kodagu District. Its nature was that
of a preliminary step, intended to
initiate an enquiry process.
29.10.2. Second, the notification dated
26.05.1902 was issued proposing the
constitution of the Padinalaknad Ghat
Reserved Forest and was published
on 02.06.1902. The Commissioner of
Coorg, by his judgment dated
07.10.1904, held that this notification
superseded the earlier notification of
1887 in respect of the areas covered
thereby. This finding is significant
because it establishes that the 1887
notification did not have a continuing
independent operation, at least
insofar as areas covered by the
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subsequent notification are
concerned.
29.10.3. Third, H.S. Mullins was appointed as
Forest Settlement Officer to conduct
the statutory enquiry. The Forest
Settlement Officer issued a
proclamation and notice dated
18.03.1903 calling upon persons
claiming Jamma Malai rights to
produce evidence in support of their
claims. This demonstrates that a
proper statutory process was being
followed.
29.10.4. Fourth, on 20.04.1906, the
Padinalaknad Reserved Forest was
notified and the notification was
published on 01.05.1906. This was
the final notification issued after
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completion of the statutory process
of enquiry and determination of
rights.
29.11. The critical fact is that the petition lands were
not included in the final notification of 1906.
This has two consequences. First, the process
initiated by the 1902 notification reached its
logical conclusion with the 1906 final
notification. Whatever was not included in the
final notification was excluded from the
reserved forest. Second, since the 1887
notification was superseded by the 1902
notification (as held by the Commissioner of
Coorg in 1904), the petition lands could not
continue to derive forest status from the
superseded notification.
29.12. The judgment dated 07.10.1904, passed by the
Commissioner of Coorg, is an authoritative
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historical determination that cannot be lightly
disregarded. The Commissioner, after
considering the rival contentions, clearly held
that the 1902 notification superseded the 1887
notification. This finding has stood for over a
century and has not been shown to have been
reversed or set aside by any competent
authority.
29.13. Furthermore, in paragraph 53 of the said
judgment, the Commissioner also dealt with the
question of exclusion of portions of original
grants. The Commissioner held: "As to the
question whether it is legitimate to exclude
portions of the original grant upon which
cardamoms for physical reasons cannot be
cultivated, the answer must I think be in the
negative. Though what the Raja had in view
was merely the growth and collection of
cardamoms, and though this major right cannot
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possibly be exercised in such areas, yet,
subsidiary rights may be capable of exercise
therein. It would therefore, I think, be illegal to
make any such exclusion from the original
grant without the consent of the occupant."
29.14. This observation is significant. Even the
Commissioner of Coorg, who was the highest
administrative authority at the time, recognised
that portions of the grant could not be
unilaterally excluded, and that subsidiary rights
existed even in areas where cardamom could
not physically be cultivated. This is consistent
with the recognition of private rights in the
petition lands.
29.15. The Respondents' attempt to rely on the 1887
notification, while conceding that the lands are
not a reserved forest, creates an internal
inconsistency. If the statutory process that
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commenced with the 1887 notification was
completed through the 1902 notification, the
Forest Settlement Officer's enquiry, and the
final notification of 1906, then the result of that
process is binding. Lands excluded from the
final notification cannot be treated as protected
forest by reverting to the superseded 1887
notification.
29.16. The principles laid down by the Hon'ble
Supreme Court in G.J. Fernandez v. State of
Mysore are also applicable by analogy. The
Hon'ble Court emphasised the importance of
statutory authority for government action.
Executive interpretation or administrative
convenience cannot substitute for statutory
compliance. If the statutory process did not
result in a declaration affecting the petition
lands, administrative action cannot achieve
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indirectly what the statute did not accomplish
directly.
29.17. Additionally, the Working Plan of the Virajpet
Forest Division (2015) does not include the
petition lands as either a reserved forest or a
protected forest. This is an official document of
the Forest Department itself. It is a
contemporaneous record that reflects the
Department's own understanding of the status
of the lands. The exclusion of the petition lands
from the Working Plan is powerful evidence that
no valid declaration was ever made in respect
of these lands.
29.18. The clarification referred to by learned counsel
for the Petitioners, that the 1887 notification
would not apply to lands where private rights
and privileges exist, further supports the
Petitioners' case. The Petitioners' predecessors
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held recognised private rights in the lands,
which were later confirmed in O.S. No. 4 of
1978 and RSA No. 466 of 1980. Such lands
with subsisting private rights could not be
swept into the broad ambit of the 1887
notification.
29.19. In the light of the above analysis, I hold that
the notification dated 15.03.1887 did not
culminate in a final and legally enforceable
declaration affecting the petition lands. The said
notification was preliminary in nature. It was
superseded by the notification dated
26.05.1902. The final notification dated
20.04.1906, which was the culmination of the
statutory process, excluded the petition lands.
No other valid notification under Section 28 of
the Indian Forest Act, 1878 or Section 33(4) of
the Karnataka Forest Act, 1963 has been
produced in respect of the petition lands.
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29.20. Accordingly, I answer Point No. 2 by holding
that the notification dated 15.03.1887 and the
subsequent proceedings did not culminate in
any final and legally enforceable declaration
affecting the petition lands.
30. Answer to Point no.3: What is the true legal
character of Jamma Malai tenure, whether it
constitutes a limited but transferable estate, a
purely personal cultivation right, or a leasehold
interest under forest law?
30.1. Sri.Kamalacharan, learned counsel for the
Petitioners, submits that Jamma Malai's tenure
constitutes a recognised form of conditional or
limited estate in property. According to him, the
holder is not an absolute owner in the fullest
sense, but the estate is subject to certain
defined limitations, namely cultivation of
cardamom, no right over standing timber, and
liability to assessment. The existence of such
limitations does not mean that the estate is
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void or that it can be treated as a mere lease,
unless expressly declared so by law.
30.2. Learned counsel places reliance on the decision
of the Hon'ble Supreme Court in Subbegowda
v. Thimmegowda, and submits that the
Hon'ble Court examined the nature of estates
and interests created in property and clarified
the distinction between absolute ownership,
conditional grants, and estates subject to
limitations or restraints. It was held that even
where expressions suggesting full ownership
are used, the surrounding circumstances and
the tenor of the instrument must be examined
to determine the true nature of the rights
conferred. It was further held that a grant may
be subject to conditions precedent or conditions
subsequent, such conditions run with the
estate, and conditional transfers are legally
permissible unless prohibited by law.
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30.3. Learned counsel submits that the Civil Court in
O.S. No. 4 of 1978, and this Court in RSA No.
466 of 1980, have already interpreted the
nature of the estate. It was held that the holder
has a limited but valid right to cultivate
cardamom. The tenure is neither an absolute
ownership nor a lease under the Forest Act. It
is a limited estate recognised in law. If the
Government intended to annex any condition,
such as payment of lease rent or forfeiture for
non-payment, such a condition ought to have
been expressly provided under law, or
incorporated in the grant, or recognised in
earlier proceedings.
30.4. Learned counsel further submits that the
Petitioners are "holders" within the meaning of
Rule 3(6) of the Coorg Land and Revenue
Regulations, which defines a "holder" or
"landholder" as a person who is in possession of
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a holding or any portion thereof, or who enjoys
any part of its profits, and who is bound by law,
contract or local usage to pay land revenue
directly to the Government. The definition
specifically excludes a tenant. The Petitioners
squarely fall within this definition, being in
possession, enjoying the profits derived from
cultivation, and liable to pay land revenue
directly to the Government.
30.5. Learned counsel also relies upon Section 6 of
the Transfer of Property Act, 1882, which
provides that property of any kind may be
transferred, except as otherwise provided by
that Act or by any other law for the time being
in force. He submits that the law proceeds on
the presumption of transferability. Transfer is
the rule; prohibition is the exception. No
provision has been shown to this Court
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declaring Jamma Malai rights to be
untransferable.
30.6. It is further submitted that if there had been
any restriction on transfer, the Government
would have raised this plea in O.S. No. 4 of
1978 or RSA No. 466 of 1980. No such plea
was raised. The Civil Court recognised the
transferee's rights as holder. The Government
participated in those proceedings and did not
challenge the validity of the transfers.
30.7. Sri. Pradeep C.S., learned AAG, submits that
Jamma Malai tenure confers only a limited right
of cultivation of cardamom. The holder has no
proprietary right over the land or the tree
growth. He places reliance on the order in W.P.
No. 4013 of 2007, wherein this Court observed
that the limited right in Jamma Malai lands of a
holder is the cultivation of cardamom, and the
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holder has no proprietary right over the lands
or the tree growth.
30.8. Learned AAG further submits that the Jamma
Mallegars never possessed or claimed rights of
alienation, transfer or sub-lease. Therefore, the
tenure is merely a personal cultivation privilege
that cannot be transmitted through sale or
transfer. He refers to the eight rights of a
Jamma Mallegar, which include: (i) no
proprietary right in the Jamma Males; (ii) right
to cultivate cardamoms according to indigenous
method; (iii) no right to minor forest produce
except for purposes ancillary to cardamom
cultivation; (iv) no right to shoot within the
Males; (v) right of access by defined routes;
(vi) right to fell timber necessary for cardamom
plots and buildings; (vii) right to use forest
produce for construction and firewood; and
(viii) right to consume toddy from Baine palms.
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According to him, none of these rights include a
right of alienation.
30.9. It is further contended that the tenure amounts
to a form of lease or licence from the
Government, as the underlying ownership
always remained with the State. The holders
were permitted to cultivate on terms set by the
sovereign authority. Therefore, the State
retains the right to regulate, control and even
terminate the tenure for breach of conditions.
30.10. The determination of the true legal character of
Jamma Malai tenure is central to the resolution
of most issues in this case.
30.11. Jamma Malai tenure has deep historical roots in
the erstwhile Coorg (Kodagu) Province. It
originated as a grant made by the erstwhile
Rulers of Coorg, recognising the right of certain
communities to cultivate cardamom in
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designated areas. The tenure was not created
by statute; it antedated British administration
and was recognised and continued by
successive sovereign authorities. This historical
origin is important in understanding the nature
of the rights involved.
30.12. The nature of this tenure was authoritatively
examined by the Commissioner of Coorg in his
judgment dated 07.10.1904. That judgment
recognised that the holders possessed defined
rights, including the right to cultivate
cardamom, subsidiary rights relating to minor
forest produce ancillary to cardamom
cultivation, and the right to fell timber for
preparation of cardamom plots and construction
of buildings within the Males. The judgment
also recognised limitations, namely that the
holders were not absolute proprietors and had
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no right over tree growth beyond what was
necessary for cardamom cultivation.
30.13. The Civil Court in O.S. No. 4 of 1978 examined
these rights in the context of a suit instituted
by Sri Emmanuel Thomas Rampuram, and held
that he was entitled to enjoy the lands as a
Malai holder, cultivate cardamom, and exercise
rights as a Mallegar. However, the Court
declined to declare him absolute owner of the
tree growth. In RSA No. 466 of 1980, this Court
affirmed the Trial Court's findings. The legal
effect was recognition of a limited estate, not
absolute ownership, but a subsisting right of
cultivation and enjoyment.
30.14. The question now is whether this limited estate
is: (a) a transferable estate; (b) a purely
personal cultivation right incapable of transfer;
or (c) a leasehold interest under forest law.
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30.15. Regarding the characterisation as a leasehold
interest: The Respondents seek to treat the
tenure as a lease under the Forest Act, and on
that basis claim the right to demand lease rent
and declare forfeiture. This characterisation is
wholly untenable. A lease presupposes a
contractual relationship between the lessor and
the lessee, with defined terms, duration, rent,
and conditions. No lease deed has ever been
executed between the Government and the
Petitioners or their predecessors. No lease rent
has ever been demanded or paid at any point in
the history of this tenure. The tenure originated
from a sovereign grant, not from a contractual
arrangement. The Government itself has never
treated it as a lease in any of the earlier
proceedings, including O.S. No. 4 of 1978, RSA
No. 466 of 1980, or W.P. No. 4013 of 2007.
The attempt to re-characterise the tenure as a
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lease at this late stage is without any legal
foundation.
30.16. Regarding the characterisation as a purely
personal right: The Respondents contend that
the eight rights of a Jamma Mallegar do not
include a right of alienation, and therefore the
tenure is personal and non-transferable.
However, the absence of an express mention of
the right of alienation in the enumeration of
eight rights does not automatically make the
tenure non-transferable. The eight rights
described the scope of enjoyment of the estate;
they do not constitute an exhaustive code
governing all aspects of the tenure, including
transferability.
30.17. The decision of the Hon'ble Supreme Court in
Subbegowda v. Thimmegowda, is directly
applicable. The Hon'ble Court held that a
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transfer of property or a creation of interest
therein may be accompanied by conditions,
covenants or restraints. A condition may
restrict the manner of enjoyment, but such a
restriction does not automatically render the
estate non-transferable. The Court further held
that a conditional transfer or settlement
accompanied by conditions is recognised in law,
and the Court will give effect to such conditions
unless there is some provision of law which
annuls or invalidates them.
30.18. Applying the principles in Subbegowda, the
Jamma Malai tenure is a limited estate with
conditions attached to enjoyment, namely
cultivation of cardamom and absence of
proprietary rights over timber. These conditions
regulate the mode of enjoyment. They do not
prohibit transfer. A limitation on the quantum of
the estate is different from a prohibition on
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alienation. Unless there is a specific statutory
provision declaring the tenure non-transferable,
the interest remains capable of being
transferred, such transfer however, shall be
subject to the limitations of Tenure.
30.19. No such statutory prohibition has been placed
before this Court. The Respondents have
asserted non-transferability but have not cited
any provision of the Coorg Land and Revenue
Regulations, the Karnataka Land Revenue Act,
1964, or any other statute which expressly
prohibits transfer of Jamma Malai rights.
30.20. On the contrary, Section 6 of the Transfer of
Property Act, 1882 provides that property of
any kind may be transferred, except as
otherwise provided by that Act or by any other
law. The exceptions listed in Section 6 do not
include Jamma Malai tenure. In the absence of
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an express statutory bar, the general rule of
transferability applies.
30.21. In V.B. Rangaraj case, the Hon'ble Supreme
Court laid down a fundamental principle relating
to transferability of property interests. The
Hon'ble Supreme Court held that property,
including shares, is presumed to be freely
transferable unless there is a specific restriction
imposed by law or expressly provided in a
binding instrument. Any restriction on transfer
must be clearly set out. It cannot be inferred or
implied. If a restriction is ambiguous, it must be
construed in favour of transferability.
30.22. The Hon'ble Supreme Court further held that a
private agreement imposing additional
restrictions beyond what is expressly provided
in law or in the governing document cannot
bind parties or override statutory rights.
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Restrictions on transfer must have a clear legal
foundation. They cannot arise merely from
understanding, practice, or executive
interpretation.
30.23. Transferability is the rule; restriction is the
exception. A restriction must be expressly
provided by statute or by a legally binding
instrument. It cannot be assumed.
30.24. In the present case, no statutory provision has
been shown prohibiting transfer of Jamma Malai
rights. The Respondents rely on historical
descriptions of limited rights and departmental
understanding, but no express statutory bar
has been placed before this Court. A limitation
on enjoyment does not automatically become a
prohibition on transfer.
30.25. The Respondents cannot therefore invalidate
the transfers on the basis of implied, inferred,
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or administratively conceived restrictions.
Unless there is a clear statutory provision
declaring the tenure non-transferable, the
presumption of transferability must prevail.
30.26. Furthermore, Rule 3(6) of the Coorg Land and
Revenue Regulations defines a "holder" as a
person in possession of a holding who is bound
to pay land revenue to the Government, and
specifically excludes a tenant. This definition
recognises the holder as a person with a
substantive interest in land, not as a licensee or
lessee with a precarious title. The Petitioners
fall squarely within this definition.
30.27. The historical practice also supports the finding
of transferability. The Government itself
conducted a public auction in 1926 and sold the
Jamma Malai lands to Sri.Palekanda Medappa.
If the tenure were truly non-transferable, the
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Government could not have auctioned it. What
is also of significance is that there is no
particular qualification for a Jamai Malai tenure
holder, Sri Palekanda Medappa was admittedly
a District Judge in full-time employment and
not a cardamom grower.
30.28. The Government thereafter accepted the
mutation of revenue entries. It accepted
subsequent transfers. It contested O.S. No.4 of
1978 without raising the plea of non-
transferability. It did not raise this issue in RSA
No. 466 of 1980 either. The State's own
conduct over nearly a century is inconsistent
with the claim of non-transferability made now.
30.29. The principles laid down in Manuelsons Hotels
case relating to promissory estoppel, are also
attracted. The Hon'ble Supreme Court held that
the law will not permit an unconscionable
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departure by one party from an assumption
which has been adopted by the other party as
the basis of a course of conduct. The State
conducted the auction, accepted assessment,
allowed mutations, defended litigation without
pleading non-transferability, and did not
challenge transfers for decades. These acts
created a clear assumption that the tenure was
transferable. The Petitioners and their
predecessors acted on this assumption for
nearly a century. Permitting the State to depart
from this position now would amount to
unconscionable conduct.
30.30. Accordingly, I hold that Jamma Malai tenure
constitutes a limited but transferable estate in
property. It is not a mere personal cultivation
right, nor is it a leasehold interest under forest
law. It is an estate recognised by long historical
practice, defined by judicial pronouncements,
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and capable of transfer in the absence of any
express statutory prohibition.
30.31. I answer Point No.3 by holding that the Jamma
Malai tenure is a limited but transferable estate,
conferring upon the holder the right to cultivate
cardamom and exercise associated subsidiary
rights, subject to the limitations recognised in
O.S.No.4 of 1978 and RSA No.466 of 1980. It is
neither a purely personal cultivation right nor a
leasehold interest under forest law.
31. Answer to Point No. 4: What is the legal effect
of the public auction conducted in 1926 under
the Coorg Land and Revenue Regulations, and
whether the auction purchaser acquired
transferable rights in the holding?
31.1. Sri.Kamalacharan, learned counsel for the
Petitioners, places reliance on the decision of
this Court in Pongere Kariappa case, and
submits that the principles laid down therein
directly apply to the present case. In that case,
this Court considered a situation where lands
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were brought to public auction by the revenue
authorities on account of arrears of land
revenue and held that the purchaser acquired
valid rights over the property.
31.2. Learned counsel further draws attention to Rule
109 of the Coorg Revenue Regulation (as
amended), which provides that when
immovable property is brought to sale for
recovery of any sum, such property shall be
sold free from all encumbrances, and all prior
grants and contracts shall become void as
against the purchaser. He also relies upon
Section 110 of the Coorg Regulation, which
provides that when revenue-free or
concessional land is sold under the Chapter, the
privileges attached to such tenure stand
extinguished by the sale.
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31.3. It is submitted that the combined reading of
amended Rule 109 and Section 110 makes it
clear that when land is sold in public auction for
arrears of revenue: all prior privileges are
extinguished; the purchaser acquires full rights;
the property cannot thereafter be subjected to
inconsistent claims by the Government.
31.4. Learned counsel contends that once the
property was sold in public auction for recovery
of land revenue, the rights of the purchaser
stood crystallised. The Government cannot
reopen or dilute those rights by invoking
provisions of the Karnataka Forest Act or by
demanding lease rent. His submission is that
once the sale by auction takes place, the land
becomes freehold and even the rights of the
Government are extinguished.
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31.5. Sri. Pradeep C.S., learned AAG, contends that
the Jamma Mallegars never possessed or
claimed rights of alienation, transfer or sub-
lease. Therefore, when the auction was
conducted for recovery of land revenue, only
the limited rights of the Jamma Mallegars were
brought to sale. No right greater than what was
held by the Jamma Mallegars could vest in the
auction purchaser. The principle of law,
according to the Respondents, is that no person
can convey a better title than he himself
possesses.
31.6. It is submitted that the only right available
under Jamma Malai tenure was the limited right
to cultivate cardamom by indigenous methods,
without ownership over the land or timber.
Consequently, Sri Palekanda Medappa could not
have acquired any proprietary right beyond
such limited cultivation right.
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31.7. The question under this Point is the legal effect
of the public auction conducted in 1926.
Specifically, whether the auction purchaser, Sri
Palekanda Medappa, acquired transferable
rights in the holding.
31.8. The admitted factual position is as follows: The
Pattacharavanda family held the Jamma Malai
lands. They fell into arrears of land revenue.
The Coorg Government, acting through its
Revenue Authorities, conducted a public auction
under the provisions of the Coorg Land and
Revenue Regulations in 1926. Sri.Palekanda
Medappa, then serving as District Judge, was
the highest bidder. The sale was confirmed by
the competent authority. Possession was
delivered. Revenue records were mutated in his
name.
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31.9. The legal effect of such auction sale must be
determined with reference to the Coorg Land
and Revenue Regulations, 1899, which
governed the process.
31.10. In Pongere Kariappa case, Rule 109 was
considered and declared that when immovable
property is brought to sale under the Chapter
for recovery of a sum, such property shall be
sold free of all encumbrances, and all prior
grants and contracts made by any person other
than the purchaser shall become void as
against the purchaser. A statutory revenue sale
is not a conditional or tentative transaction.
Once the sale is conducted in accordance with
law and confirmed, the property passes to the
purchaser free from pre-existing
encumbrances. Any prior arrangement
inconsistent with the purchaser's title stands
extinguished as against him. Section 110 of the
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Coorg Regulations, which provides that when
Jama or other land held revenue-free or at
concessional rates is sold under the Chapter,
the privileges attaching to the tenure in respect
of assessment of land revenue shall stand
extinguished by the sale.
31.11. When Rule 109 and Section 110 are read
together, the statutory effect of a revenue sale
becomes evident. The sale not only transfers
the interest of the defaulter but also clears the
property of prior encumbrances and
extinguishes certain privileges attaching to the
earlier tenure. The purchaser acquires the
property by operation of law and holds it
subject to the legal character of the tenure as it
stands after the sale.
31.12. In the present case, the 1926 auction was
conducted by the Government itself. Once the
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sale was confirmed and the purchaser was put
in possession, the statutory consequences
under Rule 109 and Section 110 followed. The
property vested in the auction purchaser free
from prior encumbrances. The State cannot
now contend that undisclosed restrictions
survived the sale.
31.13. The statute itself declares the effect of the sale.
The Government, having invoked the statutory
mechanism of revenue recovery and sale, is
bound by the consequences of its own action.
The legal position flowing from Rule 109 and
Section 110 cannot be diluted by subsequent
executive interpretation or administrative
position.
31.14. A combined reading of these provisions makes
it clear that when Jamma lands are brought to
sale by the Government for recovery of revenue
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arrears, the effect of the sale is to extinguish all
prior privileges and encumbrances. The
property is sold free from prior commitments.
The purchaser acquires the property in his own
right.
31.15. In Pongere Kariappa case, this Court
specifically considered these provisions and
held that once the lands were sold in public
auction and sale certificates were issued, the
purchaser acquired valid rights over the
property. This Court further held that the
Government cannot adopt different standards
for lands of a similar nature. If in one case the
Government accepted the effect of public
auction as absolute, it cannot take a contrary
stand in another case involving similar facts.
31.16. The Respondents invoke the principle that no
one can give a better title than what he
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possesses. According to them, only the limited
cultivation right could have been transferred in
the auction. However, this argument overlooks
a fundamental distinction. The auction was not
a private transaction between two individuals
where the principle of would ordinarily apply. It
was a sale conducted by the sovereign
authority of the State, under statutory
authority, for recovery of public dues. The
Coorg Regulations specifically prescribed the
legal consequences of such sale, including the
extinguishment of prior privileges and
encumbrances.
31.17. When the State itself, acting under its statutory
authority, brings property to sale and the sale
is confirmed, the State is bound by the legal
consequences of its own act. The Regulations
provide that the property is sold free from
encumbrances. The State cannot, having
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conducted the sale, collected the consideration,
delivered possession, and mutated the records,
later contend that the purchaser acquired
nothing of value.
31.18. The decision in Pongere Kariappa strongly
supports the Petitioners' case. In that case, this
Court noticed that in similar cases involving
Sagu lands, the Civil Court had held that
auction sales conducted by the Government
were absolute in nature. The Government chose
not to appeal in some of those cases. This
Court observed that the Government could not
apply different yardsticks to similar lands.
31.19. It is also significant that the auction sale of
1926 was never challenged by the Government.
No proceedings were initiated to set aside the
sale or to declare it void. The Government
accepted the sale, allowed the purchaser and
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his successors to remain in possession,
mutated the revenue records, and accepted
land revenue payments for decades. This
conduct is wholly inconsistent with the present
contention that the auction purchaser acquired
only a tenuous, non-transferable right.
31.20. In the light of the statutory provisions of the
Coorg Land and Revenue Regulations, the
decision in Pongere Kariappa case, and the
conduct of the State spanning nearly a century,
I hold that the public auction conducted in 1926
vested in the auction purchaser, Sri.Palekanda
Medappa, transferable rights in the holding. The
effect of the auction was to convey the Jamma
Malai rights, including the right to cultivate and
enjoy the property, subject to the limitations
inherent in the tenure as judicially determined.
The purchaser acquired a transferable estate,
and the prior encumbrances and privileges
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attaching to the tenure stood extinguished by
the sale.
31.21. I answer Point No.4 by holding that the public
auction conducted in 1926 under the Coorg
Land and Revenue Regulations had the legal
effect of transferring the Jamma Malai rights to
the auction purchaser, who acquired
transferable rights in the holding.
32. Answer to Point No. 5: Whether the transfers
from the auction purchaser to subsequent
transferees, including the Petitioners, are valid
and legally sustainable?
32.1. Sri.Kamalacharan, learned counsel for the
Petitioners, submits that in 1941, Sri Palekanda
Medappa executed a registered sale deed in
favour of Sri Emmanuel Thomas Rampuram.
The sale was effected pursuant to orders of the
Commissioner of Coorg. Revenue records were
transferred in the name of Sri Emmanuel
Thomas Rampuram. He remained in possession
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and enjoyment of the lands, paying land
revenue and cultivating the property.
32.2. Learned counsel submits that Sri Emmanuel
Thomas Rampuram was a party to O.S. No. 4 of
1978, in which the Government was Defendant
No.1. The Trial Court recognised his rights as
holder. The Government did not contend in that
suit that the transfer was invalid. In RSA No.
466 of 1980, this Court affirmed the recognition
of the holder's rights. At no stage did the
Government challenge the validity of the
transfers.
32.3. It is further submitted that the property was
subsequently transferred to Petitioner No.1.
Following the transfer, mutation entries were
effected. Petitioner No.1 was recorded as
Jamma Malai holder. Possession and cultivation
continued.
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32.4. Learned counsel relies upon Subbegowda v.
Thimmegowda to contend that a limited
estate is valid and capable of transfer. He
further relies upon Section 6 of the Transfer of
Property Act, 1882, and submits that in the
absence of a specific statutory bar, the transfer
is valid.
32.5. Sri. Pradeep C.S., learned AAG, contends that
the subsequent sale by Sri Palekanda Medappa
in favour of Sri Emmanuel Thomas Rampuram,
and the later sale in favour of Petitioner No.1,
were without authority insofar as they
purported to convey greater rights than those
originally held. The principle, according to the
Respondents, is that no person can convey a
better title than he himself possesses. If Sri
Palekanda Medappa purported to convey rights
beyond his limited tenure, the remedy of the
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purchaser lies against the vendor and not
against the State.
32.6. It is submitted that both Sri.Palekanda
Medappa and Sri.Emmanuel Thomas Rampuram
purported to sell property over which they had
no ownership. Therefore, the Petitioners cannot
claim any proprietary right in the lands. At
best, they could claim only such limited
cultivation right as was originally available to
the Jamma Mallegars.
32.7. Having held under Point No.3 that Jamma Malai
tenure constitutes a limited but transferable
estate, and under Point No.4 that the 1926
auction conveyed transferable rights to the
auction purchaser, the question of validity of
subsequent transfers follows logically.
32.8. The chain of title is as follows: (a) The
Pattacharavanda family held the Jamma Malai
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lands. (b) In 1926, the Government auctioned
the lands for revenue arrears. Sri Palekanda
Medappa was the auction purchaser. (c) In
1941, Sri.Palekanda Medappa executed a
registered sale deed in favour of Sri.Emmanuel
Thomas Rampuram, pursuant to orders of the
Commissioner of Coorg. (d) Sri Emmanuel
Thomas Rampuram and his children thereafter
transferred the lands to Petitioner No.1.
32.9. At each stage, the transfer was effected by a
registered sale deed, revenue records were
mutated, and the transferee was recognised as
the holder. The Government accepted these
mutations and did not challenge the transfers.
32.10. The Respondents' argument that the transfers
are invalid because the auction purchaser could
not convey more than he possessed has already
been addressed under Point No.4. The auction,
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conducted by the Government under the Coorg
Regulations, had the effect of conveying
transferable rights. Sri.Palekanda Medappa
acquired a valid and transferable estate. His
subsequent sale to Sri.Emmanuel Thomas
Rampuram conveyed the same estate.
32.11. What is particularly significant is the conduct of
the Government in O.S.No.4 of 1978.
Sri. Emmanuel Thomas Rampuram was the
plaintiff in that suit. He was a transferee, not
the original grantee. The Government was
arrayed as Defendant No.1. Despite being a
party, the Government did not contend that the
transfer was invalid or that the tenure was non-
transferable. The Trial Court recognised and
affirmed the rights of Sri Emmanuel Thomas
Rampuram as the holder. This recognition
necessarily implies acceptance of the validity of
the transfer.
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32.12. In RSA No. 466 of 1980, this Court affirmed the
Trial Court's findings. The Court defined the
nature of the right, limited cultivation right
without absolute ownership over trees, but did
not hold that Sri Emmanuel Thomas Rampuram
had no right to hold the land at all. The Court
did not declare the transfer void. It did not
direct dispossession. The status of the holder
was recognised. The only restriction imposed
was with regard to ownership over the trees.
32.13. As observed in the submissions, the
Government did not challenge the validity of
transfers in any of the earlier proceedings.
Having failed to raise such a contention in
O.S.No.4 of 1978, in R.A. No.7 of 1978, or in
RSA No.466 of 1980, the Government cannot
now introduce this plea in collateral
proceedings. Principles analogous to
constructive res judicata and Order II Rule 2 of
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the Code of Civil Procedure prevent a party
from raising issues which could and ought to
have been raised in earlier proceedings.
32.14. The reliance by learned counsel for the
Petitioners on Section 6 of the Transfer of
Property Act, 1882 is well-placed. The section
establishes the general principle that property
of any kind may be transferred, except as
otherwise provided by that Act or by any other
law. No statutory provision prohibiting the
transfer of Jamma Malai rights has been shown.
The exceptions enumerated in Section 6 do not
cover such rights. The general rule of
transferability therefore applies.
32.15. The principles laid down in Subbegowda case
further support this conclusion. The Hon'ble
Supreme Court held that conditional transfers
are recognised in law. The Court will give effect
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to conditions annexed to an estate unless there
is some provision of law which annuls or
invalidates them. Limitations regulate
enjoyment; they do not prohibit transfer. In the
present case, the limitations recognised in RSA
No.466 of 1980, cultivation of cardamom, no
absolute ownership over trees, are conditions
regulating enjoyment. They do not prohibit the
transfer of the limited estate.
32.16. I am also persuaded by the fact that the
Government itself conducted the 1926 auction
and sold the property. If the tenure were truly
non-transferable, the Government could not
have auctioned it. Having sold the property,
collected the consideration, and allowed the
purchaser to remain in possession, the
Government is estopped from now contending
that the property was non-transferable. The
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principles of promissory estoppel, as explained
in Manuelsons Hotels case, squarely apply.
32.17. Accordingly, I hold that the transfers from the
auction purchaser to subsequent transferees,
including the Petitioners, are valid and legally
sustainable. Each transfer conveyed the limited
estate comprising the Jamma Malai rights,
subject to the limitations defined in the judicial
pronouncements. The transferees stepped into
the shoes of their predecessors, acquiring the
same rights and being subject to the same
limitations.
32.18. I answer Point No.5 by holding that the
transfers from the auction purchaser to
subsequent transferees, including the
Petitioners, are valid and legally sustainable.
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33. Answer to Point No.6: Whether the nature and
extent of rights in the petition lands stand
conclusively determined by the judgments in
O.S. No. 4 of 1978, RSA No. 466 of 1980, W.P.
No. 4013 of 2007 and W.A. No. 375 of 2011,
and whether the Respondents are precluded
from re-agitating those issues?
33.1. Sri.Kamalacharan, learned counsel for the
Petitioners, submits that the nature and extent
of rights in the petition lands have been
conclusively determined by the following
judicial pronouncements: (a) O.S. No. 4 of
1978, wherein the Trial Court recognised the
right to hold the land and cultivate cardamom;
(b) RSA No. 466 of 1980, wherein this Court
confirmed the limited right of cultivation and
rejected the claim of absolute ownership over
trees; (c) W.P. No. 4013 of 2007, wherein a
Co-ordinate Bench held that the lands are
outside the forest area and quashed the orders
of the Deputy Commissioner; and (d) W.A. No.
375 of 2011, wherein the Division Bench
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directed that the State's name be entered as
owner while preserving the Petitioners' right to
cultivate cardamom.
33.2. Learned counsel submits that the doctrine of
res judicata and the principles of judicial
propriety preclude the Respondents from
contending contrary to or in defiance of the
judgments of this Court. The right of the
Petitioners having been dealt with by this Court
in RSA No. 466 of 1980 and in W.P. No. 4013 of
2007, the Respondents could not have held
otherwise.
33.3. It is further submitted that once a court of
competent jurisdiction has determined a
question of fact or law, and such determination
has attained finality, the parties are bound by
it. The Respondents participated in all the
earlier proceedings. They contested the suits
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and writ petitions. They raised their
contentions. The Courts considered those
contentions and rendered findings. Those
findings are binding.
33.4. Learned counsel relies upon the decisions in
State of U.P. v. Johri Mal, and G.J.
Fernandez v. State of Mysore, to submit that
statutory provisions govern the field and
executive instructions or departmental
guidelines cannot override statutory law or
judicial determinations.
33.5. Sri.Pradeep C.S., learned AAG, submits that
insofar as Prayer-B in the writ petition is
concerned, the order dated 15.03.2009 passed
in W.P.No.4013 of 2007 was set aside in Writ
Appeal No.375 of 2011, and therefore no
further relief can be claimed on that basis.
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33.6. It is submitted that the Division Bench in W.A.
No.375 of 2011 directed that the name of the
State Government be recorded as owner in
respect of the petition lands measuring 468
acres and 72 cents. The Division Bench further
directed that in Column No.11, the rights of the
Petitioners are to be recorded only to the extent
of cultivation of cardamom. The Division Bench
left it open to the competent authority to
examine the question of whether the Petitioners
have any right to inherit the land or claim
cultivation rights on the strength of sale deeds.
33.7. Learned AAG submits that in W.P.No.4013 of
2007, this Court only held that the lands are
not part of a reserved forest. There was no
finding that the lands are not protected forests.
The Respondents have consistently maintained
that the lands are protected forest, and this
question remains open.
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33.8. This Point requires careful analysis of the earlier
judicial pronouncements and their binding
effect on the present proceedings.
33.9. O.S.No.4 of 1978: The suit was instituted by
Sri.Emmanuel Thomas Rampuram against the
Government. The Trial Court declared that Sri
Emmanuel Thomas Rampuram was entitled to
enjoy the lands as a Malai holder and could
cultivate cardamom and exercise rights as a
Mallegar. The Court declined to declare him
absolute owner of tree growth. This decree
defined the nature of rights in the holding. The
Government was a party. The matter went
through the appellate process up to this Court
in Second Appeal.
33.10. RSA No.466 of 1980: This Court allowed the
Second Appeal filed by the Government and
restored the Trial Court's decree. The effect was
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to confirm that the rights were limited to
cultivation and enjoyment as Jamma Malai
holder, without absolute ownership over tree
growth. This judgment attained finality. A
Special Leave Petition before the Supreme
Court was dismissed. The legal position as
determined in this judgment is binding on the
parties.
33.11. The findings in RSA No.466 of 1980 are
conclusive on the following points: (a) the lands
are Jamma Malai lands; (b) the holder has a
right to cultivate cardamom; (c) the holder
does not have absolute proprietary rights over
tree growth; (d) the holder's right of cultivation
was recognised and not denied. These findings
were rendered after full hearing and appellate
review. They constitute res judicata between
the parties.
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33.12. W.P. No. 4013 of 2007: A Co-ordinate Bench of
this Court examined the actions of the Deputy
Commissioner, who had invoked Section 136 of
the Karnataka Land Revenue Act, 1964, and
directed deletion of the Petitioner's name from
revenue records. This Court held that: (a) the
change of entries was illegal; (b) it lacked
statutory authority; (c) it was unsupported by
material evidence; (d) the Chief Secretary's
report, insofar as it concerned the Petitioners'
lands, was contrary to record and made without
proper enquiry. The Court observed that the
lands were not part of the reserved forest, and
quashed the orders of the Deputy
Commissioner.
33.13. W.A. No. 375 of 2011: The Division Bench
partly modified the order of the learned Single
Judge. The Division Bench directed that: (a) the
name of the State Government be entered as
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owner; (b) the Petitioners' right to cultivate
cardamom be recorded in Column No. 11 in
terms of RSA No. 466 of 1980; (c) it was left
open to the competent authority to examine the
question of transferability.
33.14. The learned AAG is correct that the Division
Bench left open the question of transferability.
However, the Division Bench did not hold that
the lands are forest lands. It did not reverse the
finding of the learned Single Judge on the
nature of the lands. The Division Bench's
direction was limited to the manner of
recording entries in revenue records and the
preservation of the right to cultivate cardamom.
33.15. The cumulative effect of these judgments is as
follows. First, the nature of the tenure, Jamma
Malai, is conclusively established by O.S. No. 4
of 1978 and RSA No. 466 of 1980. Second, the
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right to cultivate cardamom is confirmed and
cannot be denied. Third, the finding that the
lands are not reserved forest stands affirmed.
Fourth, the question of whether the lands are
protected forest was not conclusively
determined by the earlier judgments, but as
held under Points No. 1 and 2 above, the
Respondents have failed to establish that the
lands are protected forest.
33.16. The principles laid down in State of U.P. v.
Johri Mal case, are relevant. The Hon'ble
Supreme Court held that statutory provisions
govern the field, and that executive
instructions, manuals or departmental
guidelines cannot override statutory law. The
Legal Remembrancer's Manual, being merely a
compilation of executive orders, does not
constitute "law" within the meaning of Article
13 of the Constitution. Applying this principle,
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the Respondents cannot rely upon departmental
circulars, forest working plans, or executive
instructions to override the rights confirmed by
judicial pronouncements.
33.17. Similarly, in G.J. Fernandez v. State of
Mysore, the Hon'ble Supreme Court
categorically held that administrative
instructions issued under executive power do
not have the force of statutory rules unless
framed under a specific statutory or
constitutional provision conferring rule-making
authority. The Court clarified that Article 162 of
the Constitution defines only the extent of
executive power and does not confer rule-
making power. A breach of such administrative
instructions does not confer enforceable rights
and may, at best, give rise to internal
administrative consequences.
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33.18. In the present case, the Respondents' attempt
to rely upon the Karnataka Forest Manual, 1976
and departmental practices to curtail or
extinguish the Petitioners' rights is directly
contrary to the principles in Johri Mal and G.J.
Fernandez. The Manual does not have
statutory force. It is only a compilation of
executive instructions. Under Article 13 of the
Constitution, only law having statutory force
can restrict property rights. The rights of the
Petitioners flow from judicial pronouncements
that have attained finality. Such rights cannot
be diluted by executive interpretation.
33.19. Accordingly, I hold that the nature and extent
of rights in the petition lands stand largely
determined by the earlier judgments. The
tenure as Jamma Malai land, the right to
cultivate cardamom, and the finding that the
lands are not reserved forest, are conclusively
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established. The Respondents are precluded
from re-agitating the question of the nature of
the tenure and the subsistence of cultivation
rights. The Respondents cannot, by
administrative action or executive
interpretation, override these judicial
determinations.
33.20. I answer Point No. 6 by holding that the earlier
judgments conclusively determine the essential
features of the Petitioners' rights, and the
Respondents are precluded from re-agitating
those settled questions.
34. Answer to Point No. 7: Whether the Respondent
authorities had jurisdiction to initiate the
impugned enquiry, invoke the provisions of the
Karnataka Forest Act, 1963, and demand lease
rental or treat the tenure as a lease?
34.1. Sri. Kamalacharan, learned counsel for the
Petitioners, submits that Respondent No.3
(Conservator of Forests) was neither a party to
the PIL proceedings in W.P. No. 36630 of 2003
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nor expressly authorised by the Court to
undertake independent adjudicatory
proceedings affecting the Petitioners' rights.
Any such unilateral exercise of power amounted
to the assumption of jurisdiction not conferred
either by statute or by judicial mandate.
34.2. Learned counsel contends that the direction to
pay lease rental by treating Jamma Malai
tenure as a lease is unsustainable. Historically,
Jamma Malai lands were subject only to
concessional assessment. No lease rent was
ever paid. Even under the Coorg Land and
Revenue Regulations, concessional assessment
alone was levied. At no point during the entire
period of possession spanning nearly a century
was any lease rental demanded or paid.
34.3. It is submitted that the Respondents are
attempting to take over the property by
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introducing a new theory of lease rental, which
was never raised in earlier proceedings. This
issue was not raised in O.S.No.4 of 1978,
R.A.No.7 of 1978, RSA No.466 of 1980, or
W.P.No.4013 of 2007. Principles analogous to
Order II Rule 2 of the Code of Civil Procedure
apply, and issues not raised earlier cannot now
be introduced.
34.4. Learned counsel submits that the invocation of
Section 82 of the Karnataka Forest Act, 1963,
which pertains to forfeiture or cancellation of
leases or grants, is wholly misplaced. This
provision presupposes that the land is forest
land and that the holder is a lessee or grantee
under the Forest Act. Neither condition is
satisfied in the present case. The lands have
not been shown to be forest lands, and the
tenure is not a lease.
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34.5. Sri. Pradeep C.S., learned AAG, submits that
the Conservator of Forests, being a competent
forest officer, had jurisdiction to conduct
enquiry and pass appropriate orders. He refers
to Section 99(1)(d) of the Karnataka Forest Act,
1963 read with Rule 69 of the Karnataka Forest
Rules, 1969, and submits that a Forest Officer
not below the rank of a Forest Ranger is
authorised to conduct an enquiry under the Act
and the Rules. The present Enquiry Officer is
above the rank of Forest Ranger and is
therefore fully competent.
34.6. Learned AAG submits that since the land is a
protected forest, the Conservator of Forests had
jurisdiction under Section 64(a) of the
Karnataka Forest Act, 1963. The forest
authorities are competent to exercise
jurisdiction in respect of such lands.
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34.7. It is further submitted that the Petitioners have
planted coffee in a portion of the land, despite
having no right to do so. The limited right
available to a Jamma Mallegar is confined to
the cultivation of cardamom and does not
extend to planting coffee. Such planting of
coffee amounts to unauthorised use of forest
land and constitutes a violation of the
Karnataka Forest Act and the Forest
(Conservation) Act, 1980.
34.8. Learned AAG refers to Rule 22 of the Karnataka
Forest Rules, 1969 to submit that the scheme
clearly demonstrates that lands classified as
village forests or protected forests are subject
to regulatory control. He also refers to Rule
141, which restricts cutting of certain valuable
trees without permission of the Deputy
Conservator of Forests.
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34.9. The question of jurisdiction is fundamental and
goes to the root of the matter. If the
Respondent authorities lacked jurisdiction to
initiate the impugned proceedings, the orders
passed therein are nullities, irrespective of their
merits.
34.10. The jurisdiction claimed by the Respondents is
derived from the Karnataka Forest Act, 1963
and the Rules framed thereunder. However, the
applicability of these provisions presupposes
that the land in question is forest land. As held
under Points (i) and (ii), the petition lands have
not been validly declared as either Reserved
Forest or Protected Forest. If the lands are not
forest lands, the entire jurisdictional foundation
of the proceedings collapses.
34.11. The Respondents rely on Section 99(1)(d) of
the Karnataka Forest Act, 1963 read with Rule
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69 of the Karnataka Forest Rules, 1969.
However, the authority to hold an enquiry
under these provisions presupposes that the
land falls within the Act. If the land is not
lawfully established as forest land, the enquiry
itself is without jurisdiction, regardless of the
rank of the enquiry officer. Competence of the
officer is a question of personal jurisdiction; the
threshold question is whether the subject-
matter falls within the Act at all. Since the lands
are not established as forest lands, the
provisions of the Karnataka Forest Act do not
apply to them, and the enquiry is without
subject-matter jurisdiction.
34.12. Respondent No.3 invoked Section 82 of the
Karnataka Forest Act, 1963. This provision
pertains to the forfeiture or cancellation of
leases or grants in cases of breach of conditions
or unauthorised occupation. The invocation of
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Section 82 is predicated on two assumptions:
first, that the land is forest land; and second,
that the Petitioners hold under a lease or grant
from the Forest Department. Both assumptions
are erroneous. The lands have not been
established as forest lands. The tenure is not a
lease but a limited estate recognised by judicial
pronouncements. No lease deed was ever
executed. No lease rent was ever demanded or
paid. The attempt to treat the Jamma Malai
tenure as a lease for the purpose of invoking
Section 82 is an attempt to fit the facts into a
statutory provision that was not designed for
such a situation.
34.13. The demand for lease rental is also without a
legal basis. As discussed earlier, the tenure has
historically been subject only to concessional
assessment under the Coorg Land and Revenue
Regulations. At no point in nearly a century of
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possession was lease rent demanded. The
introduction of a demand for lease rent at this
stage, based on a novel re-characterisation of
the tenure, is not supported by any statutory
provision or earlier judicial determination.
34.14. The Respondents' reliance on Rule 22 of the
Karnataka Forest Rules, 1969 is misplaced.
Rule 22 governs the management of village
forests transferred to or vested in Village
Panchayats. The petition lands were never
vested in a Village Panchayat. Therefore, Rule
22 does not apply to the present case. It is
surprising that this Rule was relied upon, given
that it has no connection to the facts at hand.
34.15. As regards Rule 141 of the Karnataka Forest
Rules, 1969, which restricts cutting of certain
valuable trees on lands assigned before 1865,
the Petitioners do not claim unrestricted timber
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rights. This Rule does not convert the land into
forest land, nor does it vest the Forest
Department with jurisdiction to conduct
forfeiture proceedings. It merely imposes a
restriction on tree-felling, which is a different
matter altogether.
34.16. The reliance on Section 2(iv)(a) of the Forest
(Conservation) Act, 1980 is also premature.
The Explanation to Section 2 defines "non-
forest purpose" to include cultivation of coffee.
However, this provision applies only to forest
land. Unless it is first established that the land
is forest land, the provisions of the Forest
(Conservation) Act cannot be invoked. As held
under Points No.1 and 2, the lands have not
been established as forest land. Therefore, the
cultivation of coffee, even if it has taken place,
does not attract the provisions of the Forest
(Conservation) Act.
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34.17. Furthermore, it is pertinent to note that the
Petitioners' counsel has specifically submitted
that coffee is cultivated in about 20 acres in
Sy.No.154/2 (now Sy.No.154/2B). This land is
Paradeena Banne land. It is neither Jamma land
nor Jamma Malai land. It has always been
treated separately. The Chief Secretary's report
does not classify Sy.No.154/2 as Jamma Malai
land. The Jamabandi Register describes this
land as unredeemed Paradeena land. A
registered sale deed in favour of Petitioner No.1
evidences title to this land. The list of Jamma
lands produced by the Forest Department for
Kodagu District does not include Sy.No.154/2.
As such, the Petitioners have freehold rights
over this land, and there can be no restriction
on its use.
34.18. The Petitioners' counsel has further contended
that the impugned proceedings amount to an
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indirect attempt to nullify the effect of the order
dated 15.03.2009 passed in W.P. No. 4013 of
2007. While the Division Bench in W.A. No. 375
of 2011 modified certain aspects of that order,
the core finding regarding the nature of the
lands remains undisturbed. The forest
authorities cannot achieve through
administrative proceedings what the earlier
judicial process did not accomplish.
34.19. Accordingly, I hold that the Respondent
authorities lacked jurisdiction to initiate the
impugned enquiry, invoke the provisions of the
Karnataka Forest Act, 1963, demand lease
rental, or treat the tenure as a lease. The entire
proceedings were without a jurisdictional
foundation. Since the lands are not forest
lands, the Karnataka Forest Act has no
application. The tenure not being a lease,
Section 82 of the Act could not be invoked. The
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demand for lease rent has no statutory or
historical basis.
34.20. I answer Point No.7 by holding that the
Respondent authorities had no jurisdiction to
initiate the impugned enquiry or invoke the
provisions of the Karnataka Forest Act, 1963.
35. Answer to Point No.8: Whether the impugned
order dated 16.12.2011 and the connected
proceedings are liable to be quashed as being
without jurisdiction, contrary to binding judicial
determinations, or otherwise unsustainable in
law?
35.1. Sri. Kamalacharan, learned counsel for the
Petitioners, submits that the impugned order
dated 16.12.2011 passed in Case No. Bhoomi
(SL)/CR-66/2005-06 is: (a) without
jurisdiction; (b) violative of principles of natural
justice; (c) contrary to earlier judicial
determinations; and (d) an indirect attempt to
nullify the effect of the order dated 15.03.2009
passed in W.P. No. 4013 of 2007.
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35.2. Learned counsel submits that Respondent No.3
recorded a finding that Jamma Malai lands fall
within the ambit of "statutory forest," invoked
Section 82 of the Karnataka Forest Act, 1963,
declared forfeiture of leasehold rights, and
directed payment of land rent. Each of these
actions, according to him, is without legal
authority.
35.3. It is submitted that the impugned findings are
mala fide, contrary to the record, and
unsustainable in law. The Respondents are
raising contentions for the first time after the
State failed in earlier rounds of litigation.
35.4. Learned counsel relies on the decision of the
Hon'ble Supreme Court in V.B. Rangaraj, and
submits that the writ petition is required to be
allowed and the reliefs sought are to be
granted.
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35.5. Sri. Pradeep C.S., learned AAG, submits that
the impugned order and the show cause notice
issued by the forest authorities are in
accordance with law and do not call for
interference. According to the Respondents, the
enquiry was conducted by a competent officer,
the findings are based on material, and the
actions are traceable to the statutory
framework governing protected forests.
35.6. It is submitted that the Petitioners have no
valid title to the property and have been in
unlawful occupation and enjoyment. Their
actions amount to a violation of Rule 22 of the
Karnataka Forest Rules, 1969. Consequently,
the impugned proceedings are justified and do
not warrant interference by this Court in the
exercise of writ jurisdiction.
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35.7. The impugned order dated 16.12.2011 was
passed in Case No. Bhoomi (SL)/CR-66/2005-
06 must be assessed in the light of the findings
rendered under Points No.1 to 7 above.
35.8. As held under Point No.1, the petition lands are
not forest lands. They have not been validly
declared as Reserved Forest or Protected
Forest. As held under Point No.2, the
notification dated 15.03.1887 did not culminate
in a final and legally enforceable declaration
affecting the petition lands. As held under Point
No.3, the Jamma Malai tenure is a limited but
transferable estate, not a lease under forest
law. As held under Point No. 4, the 1926 public
auction conveyed transferable rights. As held
under Point No.5, the subsequent transfers are
valid. As held under Point No.6, the earlier
judicial pronouncements have established the
essential features of the Petitioners' rights. As
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held under Point No. 7, the Respondent
authorities had no jurisdiction to initiate the
proceedings.
35.9. The impugned order is vitiated on multiple
grounds.
35.10. First, want of jurisdiction. Respondent No.3
proceeded on the basis that the petition lands
are forest lands falling within the Karnataka
Forest Act, 1963. This foundational premise is
erroneous. The lands have not been validly
declared as forest lands. Without a valid
declaration, the provisions of the Karnataka
Forest Act do not apply, and Respondent No.3
had no jurisdiction to conduct the enquiry or
pass orders affecting the Petitioners' rights.
35.11. Second, the impugned order re-characterises
the Jamma Malai tenure as a lease. This re-
characterisation is contrary to the judicial
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determinations in O.S.No.4 of 1978 and RSA
No.466 of 1980. The Civil Court recognised the
tenure as a limited estate with cultivation
rights. This Court in Second Appeal confirmed
that characterisation. At no point in any of the
earlier proceedings was the tenure treated as a
lease. The impugned order's attempt to impose
a leasehold framework on an estate that has
been judicially determined to be of a different
character is impermissible.
35.12. Third, the demand for lease rent is without a
statutory or historical foundation. No lease
deed was ever executed. No lease rent was
ever demanded or paid throughout the entire
history of this tenure, spanning nearly a
century. The introduction of a demand for lease
rent at this late stage, based on a novel theory,
is arbitrary and unsupported by law.
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35.13. Fourth, the declaration of forfeiture under
Section 82 of the Karnataka Forest Act, 1963 is
equally without foundation. Section 82 applies
to leases or grants under the Forest Act. The
Petitioners do not hold under a lease or grant
from the Forest Department. Their title traces
to a Government auction sale, registered sale
deeds, and judicial recognition. Section 82
cannot be applied to extinguish rights that are
of a fundamentally different character.
35.14. Fifth, the impugned order effectively seeks to
circumvent the earlier judicial pronouncements.
The Petitioners' rights were recognised in O.S.
No. 4 of 1978. The tenure was judicially
characterised in RSA No. 466 of 1980. The
illegal alteration of revenue entries was
quashed in W.P. No. 4013 of 2007. The Division
Bench in W.A. No. 375 of 2011, while modifying
certain entries, preserved the Petitioners' right
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to cultivate cardamom. The impugned order
disregards all these judicial pronouncements
and attempts to achieve by administrative
action what could not be achieved through
judicial proceedings.
35.15. Sixth, the principles laid down by the Hon'ble
Supreme Court in Johri Mal, and G.J.
Fernandez case, are directly applicable.
Executive instructions, departmental manuals,
and administrative interpretations cannot
override statutory provisions or binding judicial
determinations. The impugned order is
essentially an exercise in administrative
re-interpretation of settled judicial findings,
which is impermissible.
35.16. Seventh, the principles of promissory estoppel,
as explained in Manuelsons Hotels case, are
attracted. The State conducted the auction in
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1926, accepted assessment, allowed mutations,
defended litigation without pleading forest
status, and did not challenge transfers for
decades. This conduct created a clear and
consistent assumption on which the Petitioners
and their predecessors relied. The State cannot
now unconscionably depart from this position.
35.17. Eighth, the decision of the Hon'ble Supreme
Court in V.B. Rangaraj case, also supports the
Petitioners' case, the general proposition that
once rights in property are established and
recognised, they cannot be taken away without
due process of law, and more so by contending
that there is a restriction on transfer,
transferability is the rule, restriction is an
exception.
35.18. The contention of the learned AAG that the
Petitioners are in unlawful occupation is wholly
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unfounded. The Petitioners trace their title
through a Government auction sale, registered
sale deeds, long possession spanning nearly a
century, and judicial recognition in multiple
proceedings. The State accepted revenue,
recognised entries, and never treated the land
as forest land in earlier proceedings. To
describe such possession as unlawful is to
disregard the entire history of the matter and
the judicial pronouncements rendered therein.
35.19. As regards the cultivation of coffee, I have
already noted that coffee is cultivated in
Sy.No.154/2, which is Paradeena Banne land
and not Jamma Malai land. In respect of this
land, there can be no restriction whatsoever.
Even in respect of Jamma Malai lands, the
historical position must be understood in
context. The right to cultivate was not
expressly confined to a single crop for all time.
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The Commissioner of Coorg in his 1904
judgment, held that portions of the grant could
not be excluded merely because cardamom
could not physically be cultivated there.
Agricultural practices evolve with time and
climate. However, the specific question of
whether cultivation of crops other than
cardamom on Jamma Malai lands is permissible
requires examination in appropriate
proceedings with proper evidence. For the
purpose of the present writ petition, it is
sufficient to hold that the impugned order,
insofar as it invokes the Forest (Conservation)
Act, 1980 on the assumption that the land is
forest land, is without jurisdictional foundation.
35.20. In summary, the impugned order dated
16.12.2011 and the connected proceedings
suffer from: (a) want of jurisdiction; (b)
erroneous re-characterisation of the tenure; (c)
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contravention of binding judicial
determinations; (d) absence of statutory basis
for the demand of lease rent; (e) improper
invocation of Section 82 of the Karnataka
Forest Act, 1963; and (f) violation of the
principles of res judicata and promissory
estoppel.
35.21. Accordingly, I answer Point No. 8 by holding
that the impugned order dated 16.12.2011 and
the connected proceedings are liable to be
quashed.
36. Answer to Point No.9: What order?
36.1. I have answered Point No.1 by holding that the
lands in question are not forest lands in law.
They have not been validly declared as a
Reserved Forest or Protected Forest under the
applicable statutory framework. The
Respondents have failed to produce any valid
notification under Section 28 of the Indian
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Forest Act, 1878 or Section 33(4) of the
Karnataka Forest Act, 1963 in respect of the
petition lands. The Working Plan of the Forest
Department itself does not include the petition
lands.
36.2. I have answered Point No.2 by holding that the
Notification dated 15.03.1887 did not culminate
in a final and legally enforceable declaration
affecting the petition lands. The said notification
was a preliminary proposal. It was superseded
by the notification dated 26.05.1902, as held
by the Commissioner of Coorg in his judgment
dated 07.10.1904. The final notification dated
20.04.1906 (Padinalaknad Reserved Forest)
excluded the petition lands. No other valid
notification has been produced.
36.3. I have answered Point No.3 by holding that the
Jamma Malai tenure constitutes a limited but
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transferable estate in property. It is not a
purely personal cultivation right, nor is it a
leasehold interest under forest law. The holder
has a right to cultivate cardamom and exercise
associated subsidiary rights, subject to the
limitations recognised in O.S. No. 4 of 1978 and
RSA No. 466 of 1980. The tenure is transferable
in the absence of any express statutory
prohibition.
36.4. I have answered Point No.4 by holding that the
public auction conducted in 1926 under the
Coorg Land and Revenue Regulations had the
legal effect of transferring the Jamma Malai
rights to the auction purchaser, who acquired
transferable rights in the holding. The combined
effect of amended Rule 109 and Section 110 of
the Coorg Regulations, as interpreted in Chief
Secretary to Government of Karnataka v.
Pongere Kariappa, ILR 1999 Karn. 1023, is
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that the property was sold free from prior
encumbrances.
36.5. I have answered Point No.5 by holding that the
transfers from the auction purchaser to
subsequent transferees, including the
Petitioners, are valid and legally sustainable.
Each transfer conveyed the limited estate
comprising the Jamma Malai rights. The
Government participated in earlier proceedings
without challenging the validity of the transfers.
No statutory provision prohibiting transfer has
been shown.
36.6. I have answered Point No.6 by holding that the
nature and extent of rights in the petition lands
stand substantially determined by the
judgments in O.S. No. 4 of 1978, RSA No. 466
of 1980, W.P. No. 4013 of 2007 and W.A. No.
375 of 2011. The Respondents are precluded
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from re-agitating the settled questions
regarding the nature of the tenure and the
subsistence of cultivation rights. Executive
instructions and departmental manuals cannot
override these judicial determinations.
36.7. I have answered Point No.7 by holding that the
Respondent authorities had no jurisdiction to
initiate the impugned enquiry, invoke the
provisions of the Karnataka Forest Act, 1963,
demand lease rental, or treat the tenure as a
lease. Since the lands are not forest lands, the
Karnataka Forest Act has no application. The
tenure not being a lease, Section 82 of the Act
could not be invoked.
36.8. I have answered Point No.8 by holding that the
impugned order dated 16.12.2011 and the
connected proceedings are liable to be, and are
hereby, quashed. The order suffers from a want
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of jurisdiction, erroneous re-characterisation of
the tenure, contravention of binding judicial
determinations, absence of a statutory basis for
lease rent, and improper invocation of Section
82 of the Karnataka Forest Act, 1963.
36.9. In view of the findings and answers rendered
above, and for the reasons discussed in detail
under each Point for Determination, I pass the
following
ORDER
i. The Writ Petition is allowed.
ii. The impugned order dated 16.12.2011
passed by Respondent No.3 in Case No.
Bhoomi (SL)/CR-66/2005-06, as per
Annexure-S, is hereby quashed and set
aside.
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iii. The Show Cause Notice dated 16.12.2011
issued by Respondent No.3 bearing No.
Bhoomi (SL)/CR-66/2005-06, as per
Annexure-T, is hereby quashed and set
aside.
iv. It is declared that the petition lands
comprising Sy.No.129/3, 154/8, 154/31,
154/32, 154/33, 154/34, 154/35, 154/36,
170, 173, 174, and Paradeena land in
Sy.No.154/2 of Chelavara Village, Napoklu
Hobli, Virajpet Taluk, Kodagu District,
have not been validly declared as
Reserved Forest or Protected Forest under
the applicable statutory framework.
v. It is declared that the Petitioners are
holders of the Jamma Malai lands and are
entitled to cultivate cardamom and
exercise the rights recognised in O.S.No.4
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of 1978 and affirmed in RSA No. 466 of
1980.
vi. It is declared that the transfers from the
auction purchaser to subsequent
transferees, including the Petitioners, are
valid and legally sustainable.
vii. Insofar as Sy.No.154/2 (Paradeena Banne
land) is concerned, the Petitioners have
freehold rights and the Respondents have
no jurisdiction over the same.
viii. The Respondents are directed to refrain
from initiating any proceedings against
the Petitioners in respect of the petition
lands under the Karnataka Forest Act,
1963, or demanding lease rental or
treating the tenure as a lease, in view of
the findings rendered herein.
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ix. The Respondent authorities shall comply
with the directions issued in W.A. No. 375
of 2011 in respect of recording the
Petitioners’ right to cultivate cardamom in
Column No. 11 of the revenue records, in
terms of the decree in RSA No. 466 of
1980.
x. Pending applications, if any, stand
disposed of.
SD/-
(SURAJ GOVINDARAJ)
JUDGE
SR
List No.: 2 Sl No.: 59
