SRI KOLATHANDA U RAGU MACHAIAH v. STATE OF KARNATAKA

Judgment

1. The Petitioner in W.P.No.55534/2013 is before this Court seeking for the following reliefs: a. Declare the impugned The Karnataka Land Revenue (Third Amendment) Act, 2011 Annex-A as ultra-vires the constitution and thereby void and issue a writ in the nature of mandamus. b. Direct the respondents & its officers not to enforce or impugned give effect to the provisions of the Amendment Act Annex-A Notification No. Samyashee 53 Shasana 2011, Bangalore dt.1.2.2013. c. Direct the respondents to refrain from asking holders of Jamma Bane lands to obtain partition deeds of their ancestral joint family properties in order to include their names as occupants in the revenue records. d. Direct the respondents to administer the customary laws applicable to the privileged Jamma-Wargs and Bane lands irrespective of whether it is alienated or unalienated, privileged in Kodagu district. - 12 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER e. Declare the holders of Jamma Bane whether alienated or unalienated, privileged or unprivileged being part of their Sannads as owner occupants of the Banes. f. Any other order/orders or direction as this Hon’ble Court deems fit in the nature and circumstances of the case in the interest of justice.

2. The petitioner in W.P.No.27143/2013 is before this Court seeking for the following reliefs: a) Declare the impugned The Karnataka Land Revenue (Third Amendment) Act, 2011 Annex-A Notification No. Samyashee 53 Shasana 2011, Bangalore dt.1.2.2013 as ultra-vires the constitution and thereby void and issue a writ in the nature of mandamus. b) Direct the respondents & its officers not to enforce or give effect to the provisions of the impugned Amendment Act Annex-A Notification No. Samyashee 53 Shasana 2011, Bangalore dt.1.2.2013. c) Direct the respondents to refrain from asking holders of Jamma Bane lands to obtain partition deeds of their ancestral joint family properties in order to include their names as occupants in the revenue records. d) Direct the respondents to administer the customary laws applicable to the privileged Jamma-Wargs and Bane lands irrespective of whether it is alienated or unalienated, privileged in Kodagu district. e) Declare the holders of Jamma Bane whether alienated or unalienated, privileged or unprivileged being part of their Sannads as owner occupants of the Banes. - 13 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER f) Any other order/orders or direction as this Hon’ble Court deems fit in the nature and circumstances of the case in the interest of justice.

3. The Petitioner in W.P.No.27144/2013 is before this Court seeking for the following reliefs: a) Declare the impugned Karnataka Land Revenue (Third Amendment) Act, 2011 Annex-A as ultra-vires the constitution and thereby void and issue a writ in the nature of mandamus. b) Direct the Respondents & its officers not to enforce or give effect to the provisions of the impugned Amendment Act Annex-A Notification No. Samyashee 53 Shasana 2011, Bangalore dt.1.2.2013. c) Direct the Respondents to refrain from asking holders of Jamma bane lands to obtain partition deeds of their ancestral joint family properties in order to include their names as occupants in the revenue records. d) Direct the respondents to administer the customary laws applicable to the privileged Jamma Wargs and Bane lands irrespective of whether it is alienated or unalienated, privileged in Kodagu district. e) Declare the holders of Jamma Bane whether alienated or unalienated, privileged or unprivileged being part of their Sannads as owner occupants of the Banes. f) Any other order/orders or direction as this Hon’ble Court deems fit in the nature and circumstances of the case in the interest of justice. - 14 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER

4. The Petitioner in W.P.No.38470/2013 is before this Court seeking for the following reliefs: a) Declare the impugned The Karnataka Land Revenue (Third Amendment) Act, 2011 Annex-A as ultra-vires the constitution and thereby void and issue a writ in the nature of mandamus. b) Direct the respondents & its officers not to enforce or give effect to the provisions of the impugned Amendment Act Annex-A Notification No. Samyashee 53 Shasana 2011, Bangalore dt.1.2.2013. c) Direct the respondents to refrain from asking holders of Jamma Bane lands to obtain partition deeds of their ancestral joint family properties in order to include their names as occupants in the revenue records. d) Direct the respondents to administer the customary laws applicable to the privileged Jamma Wargs and Bane lands irrespective of whether it is alienated or unalienated, privileged in Kodagu district. e) Declare the holders of Jamma Bane whether alienated or unalienated, privileged or unprivileged being part of their Sannads as owner occupants of the Banes. f) Any other order/orders or direction as this Hon’ble Court deems fit in the nature and circumstances of the case in the interest of justice.

5. The Petitioners belong to the Kodava race (Coorg race). They claim to represent their respective Okka or joint family as shareholders of the joint family - 15 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER properties of their respective clan. The lands owned by the joint family are customary privileged Jamma land tenures governed by customary laws that prohibit partition and alienation of these traditional lands, which they claim to be peculiar to the Coorgis/Kodava race.

6. The Petitioners are aggrieved by the Karnataka Land Revenue (III) Amendment Act 2011, by virtue of which an explanation is added to Subsection (20) of Section 2 of the KLR Act as under: (20) “Occupant” means a holder in actual possession of unalienated land other than the tenant: Provided that where the holder in actual possession is a tenant, the landlord or superior landlord, as the case may be, shall be deemed to be the occupant; Explanation.—A ryotwari pattadar in the Mangalore and Kollegal Area and Bellary District, a pattadar or shikmidar in the Gulbarga Area and a holder or land-holder including Jamma Bane privileged and un-privileged, Umbli land in the Coorg District shall be deemed to be an occupant of such land for purposes of this Act. - 16 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER

7. Further amendment is made to Section 80 of the KLR Act where after the words “wherever situate” the following words are added “including unalienated Jamma Bane land held by the occupant in Coorg district” which after amendment reads as under: land, whether applied

80. All land liable to pay land revenue, unless specially exempted.—All agricultural or other purposes and wherever situate, including un-alienated Jamma Bane land held by the occupant in Coorg District, is liable to the payment of land revenue to the State Government according to the provisions of this Act, except such as may be wholly exempted under the provisions of any special contract with the Government or any provision of this Act or any other law for the time being in force. Provided that the State Government may, by notification or order and subject to such conditions if any, as may be specified therein, for reasons to be recorded in writing, exempt either prospectively or retrospectively any class of lands in any area or areas or any part thereof from the payment of land revenue.

8. The Petitioners claim that these two amendments would disrupt the Kodava joint family, in furtherance of such amendment, the Revenue authorities are insisting the joint family members furnish a partition - 17 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER deed for the purpose of entry of their name in the revenue records as ‘Occupant’, thereby forcing the joint family to execute a partition deed, when in fact they do not intend to do so. Such a demand is contrary to the customary and religious practice of the Kodava race and it is in that background that the Petitioners have filed the above petitions challenging the amendment.

9. Smt. Sarojini Muthanna, Learned Counsel for the Petitioners would submit that,

9.1. The amendments made are ultra vires the constitution thereby void. Prior amendments being made, the names of all members of the family were entered in the revenue records in the 9th column. After the amendment, revenue authorities are seeking for a partition deed, as also a 11-E sketch demarcating the share of the person - 18 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER who wants his name to be entered in the revenue records. Failure to furnish the above has resulted in not entering the names of such family members the revenue records, thereby constraining and in fact, coercing the Kodava family to execute a partition deed, divide the property by metes and bounds, get a survey sketch done and thereafter place on record the partition deed and 11E sketch, and it is only thereafter that the entry is made in the revenue records.

9.2. Once a partition is executed and entry made in the revenue records, a joint family member who is registered as an occupant is treated as an absolute owner of the property, which has resulted in such occupants transferring the property to third parties, which is opposed to customary laws of Kodavas inasmuch as the properties are required to be retained as a joint - 19 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER family property for the use and benefit of all members of the joint family. By alienating a portion of the property to third parties, the other members of the family are deprived of the usage of the said property. This is contrary to Section 100 of the KLR Act, which is reproduced hereunder for easy reference:

100. Occupancy not transferable without sanction of prescribed authority nor liable to process of a Civil Court.— In any case, where an occupancy is not transferable without the previous sanction of the prescribed authority and such sanction has not been granted to a transfer which has been made or ordered by a Civil Court or on which the Court’s decree or order is founded,— (a) such occupancy shall not be liable to the process of any Court and such transfer shall be null and void; and (b) the Court, on receipt of a certificate under the hand and seal of the Tahsildar, to the effect that any such occupancy is not transferable without the previous sanction of the prescribed authority and that such sanction has not been granted, shall remove the attachment or other process placed on or set aside any sale of or affecting such occupancy.

9.3. She further submits that this is also contrary to the erstwhile Coorg Land Revenue Regulations, 1899 [‘CLRR’ for short], more particularly - 20 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER Section 45 and 145, which are reproduced hereunder for easy reference: 45 Summary eviction in case of alienation of certain lands :- Except with the Assistant the permission of Commissioner recorded in each case in writing under the general or special orders of the State Government, the alienation of lands of which the land revenue has been wholly or partly assigned or released by sale, gift, mortgage or otherwise, and also sales, gifts, mortgages or release of maintenance shares of such lands in a family patta in favour of members of the the Assistant Commissioner may summarily evict any person from such lands if so alienated and take possession of them on behalf of the Government. 'Family' for the purpose of this section means and includes direct descendants in the male line of the original grantee of the land. family are prohibited and

145. Bar of suits in certain matters :- Except as otherwise provided by this Regulation, no suit shall be brought in any Civil Court in respect of any of the following matters, namely. (i) the limits of any land which has been defined by a Revenue Officer as land to which this Regulation does or does not apply; (ii) any claim to compel the performance of any duties imposed by this Regulation or by any other enactment for the time being in force or any Revenue Officer as such; (iii) any claim to the office or emoluments of parpattigar or Village Officer or in respect of any injury caused by exclusion from such office, or to compel the performance of the duties or a division of the emoluments thereof; - 21 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER (iv) any notification directing the making or revision of a record-of- rights; (v) the framing of a record-of-rights or annual record, or the preparation, signing or attestation of any of the documents included in such a record; (vi) the correction of any entry in a record-of-rights, annual record or register of mutations; (vii) any notification of a general assessment having been sanctioned by the Central Government; (viii) the claim of any person as to liability for an assessment of land revenue or of any other revenue under this Regulation; (ix) the amount of land revenue to be assessed on any holding under this Regulation; (x) the amount of, or the liability of any person to pay, any other revenue to be assessed under this Regulation, or any cess, charge or rate to be assessed on any holding under this Regulation or under any other enactment for the time being in force; (xi) any claim to hold free of revenue or at favourable rates any land, mills, fisheries or natural products of land or water; (xii) any claim connected with or arising out of the collection of the land revenue by the Government or the enforcement by the Government of any process for the recovery thereof; (xiii) any claim to set aside on any ground, other than fraud, a sale for the recovery of an arrear of land revenue or any sum recoverable as an arrear of land revenue; (xiv) the amount of, or the liability of any person to pay, any fees, fines, costs or other charges imposed under this Regulation; (xv) any claim for the partition of an estate or holding or any question as to the allotment of land, when such estate, holding or land is one of which the land revenue has been wholly or partly assigned or released, or which is held as joint family property by persons of the Coorg race, or any claim for the - 22 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER distribution of land revenue on partition, or any other question connected therewith, not being a question as to the partibility of, or the title to, the property of which partition is sought. (xvi) any claim arising out of the liability of an assignee of land revenue to pay a share of the cost of collecting or reassessing such revenue.

9.4. The Kodava joint family is forced to do the above, as without the entry of all the names of all the members of the joint family in the revenue records, such a member cannot approach any Bank for crop loan and, more importantly without the name being entered into in the revenue records, no exemption is given to any member of the Kodava Race in respect of arms licence, for which verification is made upon the entry of their name in the revenue records.

9.5. Each Kodava ‘Okka’ (family) holding comprises of an ‘Aiyne Mane’ [main dwelling house] and a ‘Kaimada’ [temple for ancestors] located in the - 23 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER said land which belongs to the entire joint family. On all occasions, both auspicious and inauspicious, as also during festivals, prayers are offered at these Kaimadas ancestors who are known as ‘Karona’. Each and every member of the family is entitled to offer prayers to their ancestors. The Kodavas being ancestor worshippers, an alienation if made, of the land where the Kaimada is located would deprive all family members of their entitlement to ancestral worship, which is an essential practice of the Kodavas.

9.6. Kodavas are a separate ethnic minority having a distinct lifestyle, culture, tradition and custom, which is now upset by the impugned amendment. Apart from an Aiyne Mane and a Kaimada in the common lands, a ‘Thutengalas’ i.e. family graveyard is maintained. All members of the family are buried in that land - 24 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER which is also part of the Jamma land. This land was also held in common by the joint family.

9.7. Once partition is effected this land would fall to the share of one particular family member, thus again disrupting the family activities. In the event of the said land being alienated and or the person to whose share this land falls under a partition deed, not permitting other family members to offer their prayers and or worship their elders, the rights of the other family members would be adversely affected.

9.8. Jamma Bane lands are privileged tenures in terms of Rule 164 of the CLRR, their inclusion under Subsection (20) of Section 2 would undo the Kodava customary laws. This aspect had been recognized by the British during their administration of the Coorg area and as such, no member of the joint family can seek or - 25 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER transfer any land without the consent and concurrence of all other elder members of the family. Furthermore, there was a prohibition in transferring any land outside the patrilineal clan of the family, thus, the transfer was within the clan, safeguarding the interest of all members of the family. Jamma Bane lands were used for the purpose of preparing leaf manure, grazing of cattle, etc. and thus, were used as a part of this warg land (wet land). The manure generated from the Bane lands are used in the warg land, the cattle used to till the wet land would graze in the Bane land, etc.

9.9. Each Kodava family has a family name, which is also called the house name, which is used by each of the members of the family. The owner and/or occupant of the land in Coorg is not an individual member but an abstract family name/house name, and the other members of - 26 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER the family are treated as division holders or maintenance division holders who can use the land and the produce made therein for their maintenance.

9.10. The elder of the family is the ‘Patedara’ in whose name the property is registered by including the Bane land into a regular land, the said Bane land would become amenable to the imposition of tax even though there is no cultivation envisaged as regards the Bane lands. Jamma lands are of two varieties, alienated and unalienated. Alienated Jamma Bane lands were used for cultivation of coffee and unalienated Jamma lands are attached to a paddy field or warg, sometimes it is called Jamma wargs which are only used for leaf manure and grazing of cattle, there being no cultivation in such lands. Until amendment, these lands were never taxed by - 27 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER the British or the Kings or, even after independence, by the Government, it is only now that these lands are sought to be taxed by way of the impugned amendment.

9.11. In this regard she relies upon page 520 of ‘the Karnataka State Kodagu District Gazette’ by Suryakanth Kamath, which is reproduced hereunder for easy reference: The real object of enforcing these restrictions is vividly described in a letter to the Government of India dated 12.9.1865 and it was approved by the Government of India. “In regard to sale of Jamma lands, I am prepared to admit its advisability. Many impoverished Coorgs might wish to dispose off their lands (jamma) but I think official sanction to such a step should be withheld as hitherto as I believe it would be fraught with danger to the nationality of Coorgs and the tenure itself, of which the conditions of service are a mani feature, would be abrogated by permitting such land to fall into the hands of Europeans or natives of Mysore from whom a service like that rendered by Coorgs could not be expected”.

9.12. She also relied on the publication of ‘Land Systems of British India’ by B.H. Baden - 28 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER Powell, more particularly page 475 thereof, reproduced hereunder for easy reference:

6. Báné Lands. forest

(It has already been mentioned that with every holding of jamma land (and the same is true also of ságu land) in Coorg proper, the holder acquires the use of an appurtenant plot of 'báné land that is, a plot of land varying (and not always according to the size of the principal holding) from 4 or 5 to 300 acres. It is now, by rule, limited to double the area of the principal holding. The báné is located on the slopes above the valley where the rice- cultivation is, or somewhere near it, and it is destined to supply the warg-holder with grazing, timber, firewood, and above all with bamboos, branches, and herbage, which he burns on the rice- fields to give ash-manure to the soil. But the produce must be strictly used for the supply of the agricultural domestic wants of the holder; and if timber, &c., is sold, the tenure is infringed, and Government has a right to demand seignorage on the wood. Sandal-wood trees found in báné land are always reserved as the property of Government. In the jamma tenure, as the báné is included in the sanad, it is virtually a part of the property. In the ságu tenure there is no sanad; but the attached area of báné must be held and used subject to the same conditions. Under these circumstances, the báné cannot be regarded as actually the property of the tenure-holder, nor, on the other hand, as land at the disposal of Government. It is rather land which is held as an appendage to a warg or estate, or to a ságu holding, in a sort of trust, or on condition for a certain use.) - 29 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER Had the báné so remained, there would be nothing more to be said about it. In old days, in Central Coorg at any rate, no one wanted to cut trees for sale, for they had no market value; no one cultivated the báné, beyond raising a few orange or plantain-trees, or ploughing up parts where it was possible to raise a little dry cultivation which was not thought worthy of notice; hence the báné, as an appendage, did not subject the holding to any further revenue- assessment. But in time the land became more valuable, and people began to sell the trees, or what is more, to cultivate coffee. So long as this was done without general clearing, it did little harm; but in time, as larger clearances were made, the utility and natural purpose of the báné were threatened; and moreover the people soon attempted to alienate the land itself, selling or leasing it to coffee- planters; and when this was found profitable, fictitious 'wargs' were imagined and báné applied for under that pretence, and then used for coffee-planting. The question of preventing these abuses soon arose, and 'báné' rules are now in force as regards assessment. It has for some years been allowed, as a concession, to cultivate coffee on ten acres in the báné without charge; and in 1875 a further concession was made to 'jamma' báné, so that coffee might be cultivated even in excess of ten acres provided that the bushes were planted under the natural forest without removing the large tree. All cultivation in excess of this is assessed.

9.13. Even though the Warg lands are held separately and even though alienated Jamma Bane lands are also held separately, the unalienated - 30 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER Jamma Bane lands are held jointly and there can be no partition of such unalienated Jamma Bane lands. Her submission privileged Jamma lands or lands of privileged tenants, though are heritable, are not transferable. By effecting a partition, the very purpose of such privileged tenure is lost. Her submission is that the usage of the word privileged itself a misnomer misconstrued. Privilege is not defined under the Act, the word is used very loosely and has undergone changes from time to time.

9.14. Initially Jamma lands were granted to a member of the Coorg race by the then King for the services rendered in the Army by such member of the Coorg race and due to the lands being so granted and being privileged and being of the privileged tenure, the assessment of the said land was also on a reduced basis. She - 31 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER refers to a Hukumnama issued by the then King regarding one such land and submits that the Jamma right holders paid only half assessment in terms of the sannad issued by the King.

9.15. Section 45 of the CLRR restricts the sale of the property. The CLRR also provided for retention of the land in the family by not assessing the entire land.

9.16. Even as regards the alienated Jamma land, which is used for coffee plantation, 10 acres of coffee cultivated area was assessment and lands only in excess of 10 acres was assessed. Since most Bane lands had remained uncultivated, encourage cultivation, 10 acres of such Bane lands used for cultivation remained free from assessment. - 32 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER

9.17. The land used for cultivation was called ’privileged saguvali’ and the lands which were not so used continued to be called “’Jamma Bane’”. It is the land which was used for agricultural purposes but was also assessed to tax, those lands were called unprivileged Bane lands, thus the use of the terms ‘privileged’ and ‘unprivileged’ was only to indicate whether the land was subject to assessment of tax or not.

9.18. In the year 1974 this exemption assessment was withdrawn and even privileged Jamma Bane lands were made amenable for full assessment, however the nomenclature of privileged Jamma Bane and unprivileged sagu bane has continued. She submits that this being the distinction, she relies on the Full Bench of this Court in the case of Cheekere Kariyappa Poovaiah -v- State - 33 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER Karnataka1, more particularly paras 11, 12, 13, 18, 19 and 22 thereof, which are reproduced hereunder for easy reference:

11. The aforesaid scheme of the Coorg Regulation and the clear picture of different types of Jama Banes which is projected bring-out one salient fact, that in case of privileged or unprivileged Banes which were not alienated and erstwhile Bane holders of such Bane lands continued to have limited privileges qua the Bane lands held by them viz., that they had to use the attached Bane for servicing the holding of the wet land which was held by them on Jama tenure and that he could use this Bane for grazing, supply of firewood and timber required for the domestic and agricultural purposes of the cultivator, so long as he continues in possession of the wet land, and he could use this Bane for aforesaid limited purpose without any liability to pay any land revenue. It is also pertinent to note that in such privileged or unprivileged Bane, the concerned holder had no interest or right in the sub-soil of the Bane as clearly laid-down by Section 47 of the Regulations referred to earlier. He had also no interest in the wood of the trees standing on the Bane save and except taking wood for the limited domestic purposes, and for purposes of agriculture. He had no right to take the wood of trees for any commercial or other purposes unless he has paid the full timber value for cutting such trees, meaning thereby the trees were clearly shown to have been belonging to the Government, the timber of which could not be utilised by Bane holder unless he pays full price for the timber of such trees. This amounted to sale of timber wood by the Government to the concerned Bane holder. Such Banes held on privilege tenure also could not be alienated without paying nazarana as per Rule 167 to the Government. That also indicated that such Bane holders had no proprietory interest in the land and when they wanted to alienate such privileged Bane lands held by them they had to pay nazarana to the Government apart from obtaining permission from the concerned authority under Section 45 and if that was not done he would be 1 ILR 1993 KAR 2959 - 34 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER liable to be summarily evicted from such Bane, as that would be considered to be a Bane land, land revenue of which was considered to be wholly released. Therefore, on a conjoint reading of Sections 42, 45 and 47(1) of the Regulation and Rule 167 of the Rules framed thereunder, it becomes clear that holder of a Jama Bane land which was not alienated and which was either a privileged Bane or unprivileged Bane, was not proprietor of this Bane. But he had limited privilege as indicated in the definition of Bane found in the Regulation and therefore in the light of Section 42 such unalienated privileged or unprivileged Bane continued to vest in the Government.

12. This conclusion of ours is not in any way whittled down by sub-section 2 of Section 47 of the Regulation as it deals with a situation wherein for exercising any sub-soil rights in Bane lands mentioned in sub-section 1 Section 47, it becomes necessary either for the Government or any person acquiring rights from the Government to acquire any land in the holding or enjoyment of others. Then such land can be acquired under the provisions of Land Acquisition Act, 1894. This sub-section 2 naturally contemplates acquisition of some other lands and not acquisition of Bane lands itself as it continued to remain in the ownership of the Government. Working of sub-section 2 of Section 47 could better be highlighted by an illustration. in which belong the sub-soil rights

13. Supposing unalienated Bane land is held by a person, Government. The Government enters into a contract with a Contractor permitting him to mine subsoil mineral found in the Bane-land and if such contractor had to approach the Bane land through the land of somebody else, then to the extent somebody else's land viz., neighbour's land is to be utilised by way of passage for approaching the Bane land, that much portion of the land in possession of the neighbour could be acquired under the Land Acquisition Act, Section 47(2) cannot be read to mean that compensation is to be paid to the holder of unalienated Bane land by acquiring the Bane land as that situation would never arise in view of the fact that Bane land itself remains vested in the State.

18. The aforesaid provisions of 1964 Act clearly show that even after Coorg Regulation was repealed when the 1964 Act came into force, if a holder of Jamma - 35 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER Bane land, whether privileged or unprivileged was holding the said Jama Bane land in the same condition then his privileges in Jama Bane land which existed earlier viz., utilising this land as an appendage to warg Jama holding for servicing the said warg and for enjoying privilege free of land revenue and also utilising the Bane land, for grazing of his cattle and for supplying leaf manure, fire-wood, timber required for domestic and agricultural purposes of the cultivator so long and he continued in possession of the wet land, were all preserved and continued to remain vested in him even after 1964 Act. That position is exemplified by Section 79 especially sub-section 2 thereof to which we have already made reference. Therefore, the status- quo-ante regarding privileges of Jama Bane land holder qua Jama Bane land as such as existed during the operation of 1899 Regulation continued to operate after 1964 Act but it never got enlarged into full-proprietory ownership of such holders qua their Jama Bane land. On the contrary the right to trees growing on the land which had continued to vest in the Government earlier did not get divested nor did it vest in Jamma Bane holder under 1964 Act and even sub-soil which did not vest in the Jama Bane holder under 1899 Regulation also did not get vested in the Jamma Bane holder. On the other hand as per Section 70 of the Act they all continue to remain vested absolutely in the State Government. We must however add one rider to this position. If, during the time of operation of 1899 Coorg Regulation or even priori thereto, the Jama Bane land had ceased to be a Jamma Bane as such and had become an alienated Bane and had got detached from the Service yoke of the warg land to which earlier it was attached and if it was fully assessed, irrespective of the fact whether such separation of the Jamma Bane from the warg land to which it was attached was sanctioned under Rule 136 of the Coorg Rules by Deputy Commissioner or not, and whether any penal assessment was levied on such Jamma Bane holder or not, such Bane land holder could not be said to be having only limited privileges qua such alienated Banes. On the contrary if the Jamma Bane holder was the holder of any alienated Bane on the coming into force of Karnataka Land Revenue Act, 1964, he became an occupant of such fully assessed erstwhile Jamma Bane land and was entitled to all the rights and obligations of an occupant-holder of an unalienated land paying full assessment to the Government and therefore he became an occupant of such land within the meaning of - 36 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER Section 2(20) of the Act and got all the rights of such occupant as laid down by Sections 99 and 101 of the Act. In this connection we may also refer to one aspect of the matter which was brought to our notice and on which there cannot be any controversy.

19. During the time when Regulation 1899 was holding the field and even thereafter on many occasions the State of Karnataka acquired the rights of Jamma Bane land holders under Land Acquisition Act. Our attention was invited to the Coorg Gazette of 1956 to show a few samples of such Notifications. One such Notification found at page-39 of the Coorg Gazette refers to Government Notification dated 30-12-1955 seeking to acquire one privileged Jamma Bane land Survey No. 24/1 under the provisions of Land Acquisition Act. Similarly, at page No. 89 is found a Notification dated 2.2.1956 by which certain privileged Jamma Bane lands were sought to be acquired under Section 4(1) of the Land Acquisition Act 1894. Third such Notification is found at page No. 93. It refers to acquisition of privileged Jamma Bane land under Section 4(1) of the Land Acquisition Act. Similarly, such another Notification dated 20-2-1956 is found at page 94 of the Gazette. At page 117 is found a Notification dated 6.3.1956 seeking to acquire privileged Jamma Bane lands under Section 6 of the Land Acquisition Act 1894. Relying on these Notifications it was vehemently contended by learned Counsel for the Petitioners that these acquisition proceedings themselves show that the Government Authorities treated holders of privileged Jamma Bane lands as having proprietory interests, otherwise there would have been no occasion for the Government to acquire these lands. Now, it must be noted that even a privileged Jamma Bane holder had some interest or privilege in the Jamma Bane land though he may not be a full proprietor thereof. As we have noted earlier he had certain privileges flowing from his occupation of privileged Jamma Bane land. This type of privileges would necessarily show some restricted interest in these lands. If the Government wanted these privileges and concessions which were otherwise giving some interest to the Jamma Bane holders, then they had to acquire such interests in these lands under Land Acquisition Act, and obviously compensation was payable to such privileged Jamma Bane holders by evaluating their limited interest and not the full interest as the proprietor. Therefore, from the mere fact that these to abolish even - 37 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER privileged bane lands were put to acquisition it cannot be inferred of necessity that holders of such Jamma Bane lands were treated by the Government to be the full owners of such lands. As we have seen earlier except these limited privileges and concessions in privileged Jamma Bane lands they had no right in the sub-soil, they had no ownership of the trees growing thereon. They cannot even cultivate these lands. Therefore, they had merely the right to enter upon the lands to collect the leaves to utilise as manure or for collecting wood for domestic or agricultural purposes and nothing more. This limited privilege or right, if had to be acquired, had to be evaluated and paid for, consequently the acquisition notifications covering these lands would be an equivocal act and cannot be treated to be acknowledging the full proprietory right of privileged jamma bane holders in such lands. It is axiomatic that a full proprietory ownership of land would entitle the owner to be the proprietor of all the sub-soil rights upto the centre of the earth, all surface rights on the land, all the rights in the usufruct of the land, full rights in all the trees standing on the land save except reserve trees and he would be owner of the air-column upto the sky over that land. Such types of rights were never made available to the privileged or unprivileged Jamma Bane land holder during the time of Britishers after 1834 who administered Coorg nor during the time from 1899 when Coorg Regulation held field and also never thereafter when 1964 Karnataka Act was enacted.

22. Now the stage is reached for us to have a stock of the situation. The aforesaid discussion regarding the rights of the Bane land holders in the back-ground of the relevant periods during which the Bane tenure existed in erstwhile Coorg State and thereafter leads us to the following conclusions: (i) So long as Jamma Bane land owner occupied the Bane land as an adjunct of the warg land to which it remained attached, he had a limited interest or right in the said Jamma Bane land, namely, to enjoy the privilege of non-payment or revenue, privilege of grazing his cattle in the land, privilege of taking leaf manure from the leaves of the trees standing on the land for the purpose of supplying it as a manure to its warg land, privilege of taking fire wood and timber fire wood and timber required for his agricultural and domestic purposes. - 38 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER (ii) Such privileges enjoyed by the Jamma Bane holder do not entitle him to any sub-soil rights in the Jamma Bane land nor had he any interest of right in the standing trees and he could not utilise these trees for commercial purpose without payment of full timber value to the Government. He was also not the owner of the air column above the surface of the land. If the holder of a privileged Bane land sought to alienate his land he had to follow the procedure laid down by Rule 167 of Coorg Land Regulation 1899, which held the field prior to 1964 and if that was not done, the holder of privileged Jamma Bane land becomes liable to be summarily evicted as per Section 45 of the Coorg Land Regulation 1899, during the time when the said Regulation held the field. iii) Once such Jamma Bane land ceases to be a Jamma Bane, whether privileged or unprivileged and became an alienated Bane, on the Jamma Bane being detached from the service of the Warg land under the orders of the authorities passed under Rule 136 of the Coorg Rules, the holder of such alienated Bane becomes entitled to cultivate the Bane land as a separate holding on payment of full assessment and his rights and obligations qua such land became that of an occupant of an unalienated fully assessed lands and he became entitled to all the rights and subject to all obligations of holder of such land governed by the provisions of Coorg Regulation of 1899, in the first instance, and later under the Karnataka Land Revenue Act, 1964. iv) Even if a Jamma Bane holder got his Bane land detached from the warg land by voluntarily putting the land under cultivation of coffee or any other crop, and got it fully assessed and paid such assessment, even if he had not obtained orders of the authorities under Rule 136 of the Coorg Land Revenue Rules, the Bane land held by him had to be treated as alienated Bane and all that he had to pay to the Government was full assessment as well as penal assessment if any that could be imposed on him and full timber value as laid down by Rule 136(5) of the Rules framed under the Coorg Land Revenue Regulation, 1899, and the alienated Bane held by him was not liable to be forfeited to the Government. ANSWERS - 39 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER In view of the aforesaid conclusion to which we have reached, it becomes obvious that the Point No. 1 will have to be answered in the negative by holding that holders of Jamma Bane lands both privileged and unprivileged are not full owners thereof but have limited privileges qua these lands as indicated above, subject to the rider that once these Jama Bane Lands became alienated Bane, the holders of such alienated Bane became entitled to the rights and obligations of occupants of unalienated fully assessed lands and were governed for that purpose by the provisions of the Coorg Land and Revenue Regulations so long as they held the field and thereafter they were entitled to the rights and subject to the obligations of the holder and occupant of unalienated fully assessed lands as per the Karnataka Land Revenue Act, 1964.

9.19. Relying on the above, she submits that the Court has committed an error by holding that the Jamma Bane lands are government lands, but no such claim has been made regarding Sagu Bane lands.

9.20. Rule 164 of the CLRR read with Section 45 and 143(f) and 145(xv) prohibits partition and alienation of privileged land by way of sale, gift, mortgage or release without permission of the Chief Commissioner. The said provisions are reproduced hereunder for easy reference:

45. Summary eviction in case of alienation of certain the Assistant lands.-Except with the permission of - 40 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER Commissioner recorded in each case in writing under the general or special orders of the State Government, the alienation of lands, of which the land revenue has been wholly or partly assigned or released by sale, gift, mortgage or otherwise, (and also sales, gifts, mortgages or release of maintenance shares of such lands in a family patta in favour of members of the same family are prohibited and the Assistant Commissioner may summarily evict any person from such lands if so alienated and take possession of them on behalf of the Government. 'Family' for the purpose of this section means and includes direct descendants in the male line of the original grantee of the land. 143 Power to make rules. (f) generally, for carrying out the purposes of this Regulation.] 145 Bar of suits in certain matters. (xv) any claim for the partition of an estate or holding or any question as to the allotment of land, when such estate, holding or land is one of which the land revenue has been wholly or partly assigned or released, or which is held as joint family property by persons of the Coorg race, or any claim for the distribution of land revenue on partition, or any other question connected therewith, not being a question as to the partibility of, or the title to, the property of which partition is sought.

9.21. On that basis she submits that the distinction between the privileged and unprivileged lands had been done away with in the year 1974, the reference to privileged tenure could only be to those enumerated under Rule 164 of the CLRR.

9.22. She refers to the decision of the Hon’ble Apex Court in the case of Kunnathat Thatehunni - 41 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER Moopil Nair v. State of Kerala2, more particularly paragraphs 7, 8, 9 and 10 thereof which are reproduced hereunder for easy reference: that arises

7. The most important question consideration in these cases, in view of the stand taken by the State of Kerala, is whether Article 265 of the Constitution is a complete answer to the attack against the constitutionality of the Act. It is, therefore, necessary to consider the scope and effect of that Article. Article 265 imposes a limitation on the taxing power of the State insofar as it provides that the State shall not levy or collect a tax, except by authority of law, that is to say, a tax cannot be levied or collected by a mere executive fiat. It has to be done by authority of law, which must mean valid law. In order that the law may be valid, the tax proposed to be levied must be within the legislative competence of the legislature imposing a tax and authorising the collection thereof and, secondly, the tax must be subject to the conditions laid down in Article 13 of the Constitution. One of such conditions envisaged by Article 13(2) is that the legislature shall not make any law which takes away or abridges the equality clause in Article 14, which enjoins the State not to deny to any person equality before the law or the equal protection of the laws of the country. It cannot be disputed that if the Act infringes the provisions of Article 14 of the Constitution, it must be struck down as unconstitutional. For the purpose of these cases, we shall assume that the State Legislature had the necessary competence to enact the law, though the Petitioners have seriously challenged such a competence. The guarantee of equal protection of the laws must extend even to taxing statutes. It has not been contended otherwise. It does not mean that every person should be taxed equally. But it does mean that if property of the same character has to be taxed, the taxation must be by the same standard, so that the burden of taxation may fall equally on all persons holding that kind and extent of property. If the taxation, imposes a similar burden on generally speaking, 2 AIR 1961 SC 552 : 1960 INSC 255 - 42 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER everyone with reference to that particular kind and extent of property, on the same basis of taxation, the law shall not be open to attack on the ground of inequality, even though the result of the taxation may be that the total burden on different persons may be unequal. Hence, if the legislature has classified persons or properties into different categories, which are subjected to different rates of taxation with reference to income or property, such a classification would not be open to the attack of inequality on the ground that the total burden resulting from such a classification is unequal. Similarly, different kinds of property may be subjected to different rates of taxation, but so long as there is a rational basis for the classification, Article 14 will not be in the way of such a classification resulting in unequal burdens on different classes of properties. But if the same class of property similarly situated is subjected to an incidence of taxation, which results in inequality, the law may be struck down as creating an inequality amongst holders of the same kind of property. It must, therefore, be held that a taxing statute is not wholly immune from attack on the ground that it infringes the equality clause in Article 14, though the courts are not concerned with the policy underlying a taxing statute or whether a particular tax could not have been imposed in a different way or in a way that the Court might think more just and equitable. The Act has, therefore, to be examined with reference to the attack based on Article 14 of the Constitution.

8. It is common ground that the tax, assuming that the Act is really a taxing statute and not a confiscatory measure, as contended on behalf of the Petitioners, has no reference to income, either actual or potential, from the property sought to be taxed. Hence, it may be rightly remarked that the Act obliges every person who holds land to pay the tax at the flat rate prescribed, whether or not he makes any income out of the property, or whether or not the property is capable of yielding any income. The Act, in terms, claims to be “a general revenue settlement of the State” (Section 3). Ordinarily, a tax on land or land revenue is assessed on the actual or the potential productivity of the land sought to be taxed. In other words, the tax has reference to the income actually made, or which could have been made, with due diligence, and, therefore, is levied with due regard to the incidence of the taxation. Under the Act in question we shall take a hypothetical case of a number of persons owning and possessing the same area of land. One makes nothing out of the land, because it is arid desert. - 43 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER The second one does not make any income, but could raise some crop after a disproportionately investment of labour and capital. A third one, in due course of husbandry, is making the land yield just enough to pay for the incidental expenses and labour charges besides land tax or revenue. The fourth is making large profits, because the land is very fertile and capable of yielding good crops. Under the Act, it is manifest that the fourth category, in our illustration, would easily be able to bear the burden of the tax. The third one may be able to bear the tax. The first and the second one will have to pay from their own pockets, if they could afford the tax. If they cannot afford the tax, the property is liable to be sold, in due process of law, for realisation of the public demand. It is clear, therefore, that inequality is writ large on the Act and is inherent in the very provisions of the taxing section. It is also clear that there is no attempt at classification in the provisions of the Act. Hence, no more need be said as to what could have been the basis for a valid classification. It is one of those cases where the lack of classification creates inequality. It is, therefore, clearly hit by the prohibition to deny equality before the law contained in Article 14 of the Constitution. Furthermore, Section 7 of the Act, quoted above, particularly the latter part, which vests the Government with the power wholly or partially to exempt any land from the provisions of the Act, is clearly discriminatory in its effect and, therefore, infringes Article 14 of the Constitution. The Act does not lay down any principle or policy for the guidance of the exercise of discretion by the Government in respect of the selection contemplated by Section 7. This Court has examined the cases decided by it with reference to the provisions of Article 14 of the Constitution, in the case of Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar [(1959) SCR p. 279] . S.R. Das, C.J., speaking for the Court has deduced a number of propositions from those decisions. The present case is within the mischief of the third proposition laid down at pp. 299 and 300 of the Report, the relevant portion of which is in these terms: “A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In determining the question of the validity or otherwise of such a statute the Court will not strike down the law out of hand only because no classification appears on its face or because a - 44 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER the matter of discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the the selection or Government classification. After such scrutiny the Court will strike down the statute if it does not lay down any principle or policy for guiding the exercise of discretion by the Government in the matter of selection or classification, on the ground that the statute provides for the delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situate and that, therefore, the discrimination is inherent in the statute itself”. (p. 299 of the Report). The observations quoted above unanimous judgment of this Court apply with full force to the provisions of the Act. It has, therefore, to be struck down as unconstitutional. There is no question of severability arising in this case, because both the charging sections, Section 4 and Section 7, authorising the Government to grant exemptions from the provisions of the Act, are the main provisions of the Statute, which has to be declared unconstitutional. equally because objectionable

9. The provisions of the Act are unconstitutional viewed from the angle of the provisions of Article 19(1)(f) of the Constitution, also. Apart from the provisions of Sections 4 and 7 discussed above, with reference to the test under Article 14 of the Constitution, we find that Section 5-A is imposes unreasonable restrictions on the rights to hold property, safeguarded by Article 19(1)(f) of the Constitution. Section 5-A declares that the Government is competent to make a provisional assessment of the basic tax payable by the holder of unsurveyed land. Ordinarily, a taxing statute lays down a regular machinery for making assessment of the tax proposed to be imposed by the statute. It lays down detailed procedure as to notice to the proposed assessee to make a return in respect of property proposed to be taxed, prescribes the authority and the procedure for hearing any objections to the liability for taxation or as to the extent of the tax proposed to be levied, and finally, as to the right to challenge the regularity of assessment made, by recourse to proceedings in a higher civil court. The Act merely declares the competence of the Government to make a provisional assessment, and by virtue of Section 3 of the Madras Revenue Recovery Act, 1864, the landholders - 45 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER may be liable to pay the tax. The Act being silent as to the machinery and procedure to be followed in making the assessment leaves it to the executive to evolve the requisite machinery and procedure. The whole thing, from beginning to end, is treated as of a purely administrative character, completely ignoring the legal position that the assessment of a tax on person or property is at least of a quasi-judicial character. Again, the Act does not impose an obligation on the Government to undertake survey proceedings within any prescribed or ascertainable period, with the result that a landholder may be subjected to repeated annual provisional assessments on more or less conjectural basis and liable to pay the tax thus assessed. Though the Act was passed about five years ago, we were informed at the Bar that survey proceedings had not even commenced. The Act thus proposes to impose a liability on landholders to pay a tax which is not to be levied on a judicial basis, because (1) the procedure to be adopted does not require a notice to be given to the proposed assessee; (2) there is no procedure for rectification of mistakes committed by the Assessing Authority; (3) there is no procedure prescribed for obtaining the opinion of a superior civil court on questions of law, as is generally found in all taxing statutes, and (4) no duty is cast upon the Assessing Authority to act judicially in the matter of assessment proceedings. Nor is there any right of appeal provided to such assessees as may feel aggrieved by the order of assessment.

10. That the provisions aforesaid of the impugned Act are in their effect confiscatory is clear on their face. Taking the extreme case, the facts of which we have stated in the early part of this judgment, it can be illustrated that the provisions of the Act, without proposing to acquire the privately owned forests in the State of Kerala after satisfying the conditions laid down in Article 31 of the Constitution, have the effect of eliminating the private owners through the machinery of the Act. The petitioner in petition No. 42 of 1958 has been assumed to own 25 thousand acres of forest land. The liability under the Act would thus amount to Rs 50,000 a year, as already demanded from the petitioner on the basis of the provisional assessment under the provisions of Section 5- A. The petitioner is making an income of Rs 3100 per year out of the forests. Besides, the liability of Rs 50,000 as aforesaid, the petitioner has to pay a levy of Rs 4000 on the surveyed portions of the said forest. Hence, his liability for taxation in respect of his forest land amounts - 46 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER to Rs 54,000 whereas his annual income for the time being is only Rs 3100 without making any deductions for expenses of management. Unless the petitioner is very enamoured of the property and of the right to hold it, it may be assumed that he will not be in a position to pay the deficit of about Rs 51,000 every year in respect of the forests in his possession. The legal consequences of his making a default in the payment of the aforesaid sum of money will be that the money will be realised by the coercive processes of law. One can, easily imagine that the property may be sold at auction and may not fetch even the amount for the realisation of which it may be proposed to be sold at public auction. In the absence of a bidder forthcoming to bid for the offset amount, the State ordinarily becomes realisation of the outstanding taxes. It is clear, therefore, that apart from being discriminatory and imposing unreasonable restrictions on holding property, the Act is clearly confiscatory in character and effect. It is not even necessary to tear the veil, as was suggested in the course of the argument, to arrive at the conclusion that the Act has that unconstitutional effect. For these reasons, as also for the reasons for which the provisions of Sections 4 and 7 have been declared to be unconstitutional, in view of the provisions of Article 14 of the Constitution, all these operative sections of the Act, namely 4, 5-A and 7, must be held to offend Article 19(1)(f) of the Constitution also. the auction purchaser

9.23. Relying on the above, she submits that both the amendment, the object, and the reasons of the Amendment Act are vague, and do not provide any reasons to bring about legislation to change the situation. The KLR Act preserves the rights, privileges, obligations and liability acquired, accrued or incurred under the CLRR, which can - 47 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER be seen and gathered from Section 202(1)(b) of the KLR Act which is reproduced hereunder for easy reference: “202(1)(b) any right, privilege, obligation or liability acquired, accrued or incurred under such enactment or law;”

9.24. She refers to a decision of the Division bench of this Court in the case of B. Mohammad v. Deputy Commissioner, Mangalore3, more particularly para 28, 29 and 30 thereof, which are reproduced hereunder for easy reference:

28. Four rules are laid down in Heydon's case [(1584) 3 Co. Rep 7a.] in the matter of Interpretation of statutes. They are:

1. What was the Common law before the making of the Act:

2. What was the defect and mischief for which the Common law did not provide;

3. What remedy the Parliament has resolved and appointed to cure the defect;

4. The true reason of the remedy.

29. These principles have gained acceptance in various judicial pronouncements. The object of Rule 29A has to be understood keeping in mind the abovesaid rules. 3 (1998) 6 Kant LJ 30 - 48 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER Rule 29a was enacted to prevent a specific mischief noticed by the Legislature. If we follow what is stated in para 72 of Laxmamma's case [1983 (1) K.L.J. 417], then undoubtedly the object of Rule 29A would be defeated. It was never the intention of the rule makers to permit a grantee of a government land to alienate the grant even to the members of the Scheduled Caste/Tribe on and after 17.10.1974. There was no statutory recognition of such right hitherto, and by means of the Rule, such a condition imposed in any grant at the time of the grant was done away with. The legislature was of the view that these grantees are members of the weaker sections of the society; that they are exploited classes; that special statutory protection is needed to safeguard their interest; that land was granted to landless people and if alienation is allowed unchecked, then the object of the very grant would be defeated; that these persons should not be persons without any land even to erect a homestead. Act 2 of 1979 and its precurser Rule 29A were legislated with intention to achieve the above objects. Therefore, any interpretation to be piaced to the rule should be to further the object of the legislation and to prevent any mischief being perpetuated by persons with vested interest.

30. Therefore, the opinion of the Bench in respect of the questions framed is as follows: (1) No; Rule 29A is not deemed to have been obliterated from backdate (retrospectively) in view of Section 4 and 11 of Karnataka Act 2 of 1979. (2) In view of Rule 29A of the rule referred to supra, clause 12 of the condition referred to above continued to exist as modified. (3) on and after 17.10.1974 i.e., the date with effect from which date Rule 29A was introduced and till 1.1.1979 the date of coming into force of Act 2 of 1979 referred to above, all transactions were subject to the said Rule 29A.

9.25. She submits that the amendment now made is contrary to both the CLRR and KLR Act. The - 49 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER CLRR and the KLR Act provide for customary laws of Kodavas in Coorg viz., Section 45, 110, 143 and 145 and Rules 97(2), 135, 136, 164 and 167 of CLRR, which are continued in Section 220, 75(1), 79(2), 80, 100, 202(1)(b) and 202(4) of the KLR Act. Any law cannot violate customary laws. The present impugned amendment, being in violation of customary law, falls foul of Article 245 of the Constitution. Article 245 is reproduced hereunder for easy reference:

245. Extent of laws made by Parliament and by the Legislatures of States (1)Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. (2)No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.

9.26. The Jamma land tenure is a quasi-feudal tenure requiring payment of only half the revenue - 50 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER assessment, and the male family members being required to provide military services in return to the King.

9.27. She submits that this Court in a decision in the case of C.A. Nanjappa -v- C.M. Thimaya4 has categorically held that Coorgis are governed by the Mitakshara School of Hindu law as modified by Coorg customary law, thereby accepting the existence of Coorg customary laws which would override and or modify the Mitakshara law.

9.28. She reiterates that the Coorg customary law prohibits partition, alienation and/or division of the family, and in this regard, she relies on Section 107 of Maj.Gen.Rob Cole’s ‘A Manual of Coorg Civil Law’ [‘Cole’s Manual’ for short] reproduced hereunder for easy reference: 4 1963 Mys. LJ 487 - 51 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER

107. Some have claimed that all such coffee estates, however, acquired, should belong to the house, or the member to leave the house and live separately; but the former is opposed to usage and the long established custom of self-acquiring property, and the latter would be tantamount to a division of family which is prohibited.

9.29. She submits that the division of property would tantamount to the division of the family itself. In this regard, she relies on Sections 189 and 192 of Rob Cole’s Manual which are reproduced hereunder for easy reference:

189. What Constitutes division-A member is not to be considered as divided off from the family on the simple execution of a deed or list of partition or on his merely living apart; but he must have taken his share and lived apart.

192. Although the residence and partaking of food may be separate, the family may still be united. The marriages, celebration of the Hutri and other feasts, the performance of the funeral rites and must occur in the chief house or family residence if the family be one and undivided. If division has taken place such ceremonies are performed by the divided member in hi own residence; and he also selects a separate burial ground. The mode of performing the above ceremonies will therefore be a guide as to whether a family is divided or not. - 52 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER

9.30. She submits that division of property is not recognized among Kodava/Coorg race. In this regard she relies on the Rob Cole’s Manual. By relying on Sections 105 and 211 of Cole’s Manual she submits that the Coorgis zealously guarded the right to ancestral property and continued the family name of the Patedara clan. Sections 105, 115 and 211, are reproduced hereunder for easy reference:

105. Mode of acquiring self-property- The mode laid down to be followed in acquiring self-property is worth enquiring into, and will show how jealously the Coorgs have guarded the rights of ancestral property and the law of primogeniture. At the time of ploughing and sowing and of harvesting, all the members of the family are bound to devote their whole time to the ancestral property. At the other seasons the Kikkaruru are only bound to give half the day, morning or afternoon, to the work of the house, and spend the other half as they like. During such leisure hours, if they cultivate pepper, ginger, turmeric, oranges, plantain etc, and from the profits purchase cattle, pigs, fowl etc, such property is considered self-aquired. If such cultivation be carried on lands belonging to the house, one-tenth of the produce or value thereof has to be given to the house. If one other lands, the whole goes to the Kikkaruru.

115. Alienation not allowed-Division of property is not recognised among Coorgs, and no one can alienate any property landed or personal without the consent of all the members of the family. A father cannot alienated - 53 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER landed property, whether ancestral or self acquired, without the consent of his sons grandsons"

211. Daughters- The unmarried daughter precedence. If there be more than one married daughter, any one may be selected, and a marriage by Mukka purje be adopted, and here descendants would bear the ancestral name and not that of the father. The property cannot be divided amongst the unmarried daughters. This shows how tenacious the Coorg are of the idea of continuing the family name. In the event of all the daughter being married, a son of any of them may be selected to be adopted into and to represent the family becoming extinct. In the event of the absence of those relations whose action in the matter is necessary, the more distant kindred, or the villagers in their absence, may authorise such marriage and adoptions

9.31. Due to the tyrannical rule of Raja Chikkaveera Rajendra, Coorgis turned to the British, who had assured them that the civil and religious rights of the Coorgis shall be respected. Thus, she submits that even the British having recognized the civil and religious usage of the Kodavas, never interfered with the practice thereof, the amendment now made will cause disruption in the civil and religious usages of the Kodavas. - 54 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER

9.32. She refers to a Book by the name, Kodavas-a Pictorial by B.D. Ganapathy and by referring to page 12, 16, 18, 20, 24, 62 and 82 again reiterates that a Jamma Bane land belongs to a family, has an Aiyne mane, a Kaimada and a Thutengala and all the family members gather on auspicious and inauspicious occasions to offer their prayers.

9.33. The fragmentation of the land on account of partition would also result in commercialization of the land which would lead to the denudation of trees, and the construction of irregular and unauthorized buildings. Thus, she submits that this amendment would act contrary to the requirement of maintaining the ecologically sensitive variation in a proper manner. She submits that this is the reason why there have been landslides in the recent past in the district of Coorg. - 55 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER

9.34. The custom of Coorg requires to be protected and in this regard she refers to the treatises by Salmond Jurisprudence and submits that the power of customary law is equal to that of statutory law and a custom may not only supplement but also derogate statutory law. On this ground, she submits that the customs which have been practiced by the Kodavas cannot undone impugned amendment. The Kodavas would be entitled to act contrary to the statutory law by following their customs.

9.35. She refers to Article 13 of the Constitution of India which is reproduced hereunder for easy reference:

13. Laws inconsistent with or in derogation of the fundamental rights (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Pan, shall, to the extent of such inconsistency, be void. - 56 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER (2)The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3)In this article, unless the context otherwise requires- (a)"law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b)"laws in force" includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. (4)Nothing in this article shall apply to any amendment of this Constitution made under article 368.

9.36. By referring to clause (2) of Article 13 of the Constitution of India she submits that the State shall not make any law which takes away the rights conferred by Part-III and by referring to clause 3(a) of Article 13 she submits that law includes customs and usage in the territory of India. Thus, she submits that the customs and traditions have the same value as a statutory law in force. There is a restriction/embargo on the State to enact any law contrary to - 57 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER customary traditions, and even if there is a law enacted, the customs and traditions would prevail over such statutory law.

9.37. The customary law of Kodavas restricts them from alienating the joint family property, there is no individual right for any member of the family family property. The restriction imposed on such members alienation is not an absolute restraint inasmuch as a member wishes to sell his share in the property, which has not been delineated, can do so in favour of other members of the joint family, thereby preserving the joint family of the Kodavas. In this regard she relies upon the decision of the Apex Court in the case of Zoroastrian Coop. Housing Society Ltd. v. District Registrar, Coop. Societies - 58 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER (Urban)5, more particularly para 25, 37, 38, 39, 40, 41, 42 and 44 which are reproduced hereunder for easy reference:

25. It is true that it is very tempting to accept an argument that Articles 14 and 15 read in the light of the preamble to the Constitution reflect the thinking of our Constitution-makers and prevent any discrimination based on religion or origin in the matter of equal treatment or employment and to apply the same even in respect of a cooperative society. But, while being thus tempted, the court must also consider what lies behind the formation of cooperative societies and what their character is and how they are to be run as envisaged by the various Cooperative Societies Acts prevalent in the various States of this country. Running through the Cooperative Societies Act, is the theory of area of operation. That means that membership could be denied to a citizen of this country who is located outside the area of operation of a society. Does he not have a fundamental right to settle down in any part of the country or carry on a trade or business in any part of the country? Does not that right carry with it, the right to in any cooperative society irrespective of the fact that he is a person hailing from an area outside the area of operation of the society? In the name of enforcing public policy, can a Registrar permit such a member to be enrolled? Will it not then go against the very concept of limiting the areas of operation of cooperative societies? It is, in this context that we are inclined to the view that public policy in terms of a particular entity must be as reflected by the statute that creates the entity or governs it and on the rules for the creation of such an entity. Tested from that angle, so is no amendment brought to the long as there Cooperative Societies Acts in the various States, it would not be permissible to direct the societies to go against their bye-laws restricting membership based on their own criteria. for membership

37. In our view, the High Court made a wrong approach to the question of whether a bye-law like Bye-law 7 could 5 2005 (5) SCC 632 : 2005 INSC 208 - 59 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER be ignored by a member and whether the authorities under the Act and the Court could ignore the same on the basis that it is opposed to public policy being against the constitutional scheme of equality or non-discrimination relating to employment, vocation and such. So long as the approved bye-law stands and the Act does not provide for invalidity of such a bye-law or for interdicting the formation of cooperative societies confined to persons of a particular vocation, a particular community, a particular persuasion or a particular sex, it could not be held that the formation of such a society under the Act would be opposed to public policy and consequently liable to be declared void or the society directed to amend its basic bye-law relating to qualification for membership.

38. It is true that our Constitution has set goals for ourselves and one such goal is the doing away with discrimination based on religion or sex. But that goal has to be achieved by legislative intervention and not by the court coining a theory that whatever is not consistent with the scheme or a provision of the Constitution, be it under Part III or Part IV thereof, could be declared to be opposed to public policy by the court. Normally, as stated by this Court in Gherulal Parakh v. Mahadeodas Maiya [1959 Supp (2) SCR 406 : AIR 1959 SC 781] the doctrine of public policy is governed by precedents, its principles have been crystallised under the different heads and though it was permissible to expound and apply them to different situations it could be applied only to clear and undeniable cases of harm to the public. Although, theoretically it was permissible to evolve a new head of public policy in exceptional circumstances, such a course would be inadvisable in the interest of stability of society. the members of

39. The appellant Society was formed with the object of the Parsi providing housing community, a community admittedly a minority which apparently did not claim that status when the Constituent Assembly was debating the Constitution. But even then, it is open to that community to try to preserve its culture and way of life and in that process, to work for the advancement of members of that community by enabling them to acquire membership in a society and allotment of lands or buildings in one's capacity as a member of that society, to preserve its object of advancement of the community. It is also open to the members of that community, who came together to form the cooperative society, to prescribe that members of that community for whose benefit the society was formed, alone could aspire - 60 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER to be members of that society. There is nothing in the Bombay Act or the Gujarat Act which precludes the formation of such a society. In fact, the history of legislation referred to earlier, would indicate that such coming together of groups was recognised by the Acts enacted in that behalf concerning the cooperative movement. Even today, we have women's cooperative societies, we have cooperative societies of handicapped persons, we have cooperative societies of labourers and agricultural workers. We have cooperative societies of religious groups who believe in vegetarianism and abhor non-vegetarian food. It will be impermissible, so long as the law stands as it is, to thrust upon the society of those believing in say, vegetarianism, persons who are regular consumers of non-vegetarian food. Maybe, in view of the developments that have taken place in our society and in the context of the constitutional scheme, it is time to legislate or bring about changes in Cooperative Societies Acts regarding the formation of societies based on such a thinking or concept. But that cannot make the formation of a society like the appellant Society or the qualification fixed for membership therein, opposed to public policy or enable the authorities under the Act to intervene and dictate to the society to change fundamental character.

40. Another ground relied on by the authorities under the Act and the High Court to direct the acceptance of Respondent 3 as a member in the Society is that the bye- law confining membership to a person belonging to the Parsi community and the insistence on Respondent 2 selling the building or the flats therein only to members of the Parsi community who alone are qualified to be members of the Society, would amount to an absolute restraint on alienation within the meaning of Section 10 of the Transfer of Property Act. Section 10 of the Transfer of Property Act cannot have any application to transfer of membership. Transfer of membership is regulated by the bye-laws. The bye-laws in that regard are not in challenge and cannot effectively be challenged in view of what we have held above. Section 30 of the Act itself places restriction in that regard. There is no plea of invalidity attached restriction in that regard cannot be invalidated or ignored by reference to Section 10 of the Transfer of Property Act. that provision. Hence,

41. Section 10 of the Transfer of Property Act relieves a transferee of immovable property from an absolute - 61 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER restraint placed on his right to deal with the property in his capacity as an owner thereof. As per Section 10, a condition restraining alienation would be void. The section applies to a case where property is transferred subject to a condition or limitation absolutely restraining the transferee from parting with his interest in the property. For making such a condition invalid, the restraint must be an absolute restraint. It must be a restraint imposed while the property is being transferred to the transferee. Here, Respondent 2 became a member of the Society on the death of his father. He subscribed to the bye-laws. He accepted Section 30 of the Act and the other restrictions placed on a member. Respondent 2 was qualified to be a member in terms of the bye-laws. His father was also a member of the Society. The allotment of the property was made to Respondent 2 in his capacity as a member. There was really no transfer of property to Respondent 2. He inherited it with the limitations thereon placed by Section 31 of the Act and the bye-laws. His right to become a member depended on his possessing the qualification to become one as per the bye-laws of qualification. The bye-laws provide that he should have the prior consent of the Society for transferring the property or his membership to a person qualified to be a member of the Society. These are restrictions in the interests of the Society and its members and consistent with the object with which the Society was formed. He cannot question that restriction. It is also not possible to say that such a restriction amounts to an absolute restraint on alienation within the meaning of Section 10 of the Transfer of Property Act. the Society. He possessed

42. The restriction, if any, is a self-imposed restriction. It is a restriction in a compact to which the father of Respondent 2 was a party and to which Respondent 2 voluntarily became a party. It is difficult to postulate that such a qualified freedom to transfer a property accepted by a person voluntarily, would attract Section 10 of the Act. Moreover, it is not as if it is an absolute restraint on alienation. Respondent 2 has the right to transfer the property to a person who is qualified to be a member of the Society as per its bye-laws. At best, it is a partial restraint on alienation. Such partial restraints are valid if imposed in a family settlement, partition or compromise of disputed claims. This is clear from the decision of the Privy Council in Mohd. Raza v. Abbas Bandi Bibi [(1932) 59 IA 236 : AIR 1932 PC 158] and also from the decision in Gummanna Shetty v. the Supreme Court - 62 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER Nagaveniamma [(1967) 3 SCR 932 : AIR 1967 SC 1595] . So, when a person accepts membership in a cooperative society by submitting himself to its bye-laws and secures an allotment of a plot of land or a building in terms of the bye-laws and places on himself a qualified restriction in his right to transfer the property by stipulating that the same would be transferred back to the society or with the prior consent of the society to a person qualified to be a member of the society, it cannot be held to be an absolute restraint on alienation offending Section 10 of the Transfer of Property Act. He has placed that restriction on himself in the interests of the collective body, the society. He has voluntarily submerged his rights in that of the society.

44. In view of what we have stated above, we allow this appeal, set aside the judgments of the High Court and the orders of the authorities under the Act and uphold the right of the Society to insist that the property has to be dealt by Respondent 2 only in terms of the bye-laws of the Society and assigned either wholly or in parts only to persons qualified to be members of the Society in terms of its bye-laws. The direction given by the authority to the appellant to admit Respondent 3 as a member is set aside. Respondent 3 is restrained from entering the property or putting up any construction therein on the basis of any transfer by Respondent 2 in disregard of the bye-laws of the Society and without the prior consent of the Society.

9.38. She also relies upon a decision in The Kerala Education Bill, 1957. vs Unknown6, more particularly paras 15, 19, 20, 21 and 41, which are reproduced hereunder for easy reference:

15. The true meaning, scope and effect of Art. 14 of our Constitution have been the subject-matter of discussion and decision by this Court in a number of cases beginning with the case of Chiranjit Lal Chowdhuri v. The Union of India and others ([1950] S.C.R. 869). In Budhan Choudhry v. The State of 6 AIR 1958 SC 956 : 1958 INSC 64 - 63 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER Bihar a Constitution Bench of seven Judges of this Court explained the true meaning and scope of that Article. Recently in the case of Ram Krishna Dalmia and others v. Sri Justice S. R. Tendolkar ([1959] S.C.R. 279), the position was reviewed at length by this Court by its judgment delivered on March 28, 1958, and the several principles firmly established by the decisions of this Court were set out seriatim in that judgment. The position was again summarised in the still more recent case of Mohd. Hanif Quareshi v. The State of Bihar ([1959] S.C.R. 629), in the following words :- "The meaning, scope and effect of Art. 14, which is the equal protection clause in our Constitution, has been explained by this Court in a series of decisions in cases beginning with Chiranjit Lal Chowdhury v. The Union of India ([1950] S.C.R. 869) and ending with the recent case of Ram Krishna Dalmia v. Sri Justice S. R. Tendolkar ([1959] S.C.R. 279). It is now well- established that while Art. 14 forbids class legislation it does not forbid reasonable classification for the purposes of legislation and that in order to pass the test of permissible classification two conditions must be fulfilled, namely, (i) the classification must be founded differentia which intelligible distinguishes persons or things that are grouped together from others left out of the group and (ii) such differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification, it has been held, may be founded on different bases, namely, geographical, or according to objects or the occupations or the like and what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. The pronouncements of this Court further establish, amongst other things, that there is always a presumption in favour of the constitutionality of an enactment and that the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. The courts, it is accepted, must presume legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may continue its restrictions to those cases where the need is deemed - 64 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER to be the clearest and finally that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation." In the judgment of this Court in Ram Krishna Dalmia's case ([1959] S.C.R. 279) the statutes that came up for consideration before this Court were classified into five several categories as enumerated therein. No useful purpose will be served by re-opening the discussion and, indeed, no attempt has been made in, that behalf by learned counsel. We, therefore, proceed to examine the impugned provisions in the light of the aforesaid principles enunciated by this Court. development

19. Reference has already been made to the long title and the preamble of the Bill. That the policy and purpose of a given measure may be deduced from the long title and the preamble thereof has been recognised in many decisions of this Court and as and by way of ready reference we may mention our decision in Biswambar Singh v. The State of Orissa ([1954] S.C.R. 842, 855) as an instance in point. The general policy of the Bill as laid down in its title and elaborated in the preamble is "to provide for the better organisation educational institutions providing a varied and comprehensive educational service throughout the State." Each and every one of the clauses in the Bill has to be interpreted and read in the light of this policy. When, therefore, any particular clause leaves any discretion to the Government to take any action it must be understood that such discretion is to be exercised for the purpose of advancing and in aid of implementing and not impeding this policy. It is, therefore, not correct to say that no policy or principle has at all been laid down by the Bill to guide the exercise of the discretion left to the Government by the clauses in this Bill. The matter does not, however, rest there. The general policy deducible from the long title and preamble of the Bill is further reinforced by more definite statements of policy in different clauses thereof. Thus the power vested in the Government under clause 3(2) can be exercised only "for the purpose of providing facilities for general education, special education and for the training of teachers". It is "for the purpose of providing such facilities" that the - 65 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER development three several powers under heads (a), (b) and (c) of that sub-clause have been conferred on Government. The clear implication of these provisions read in the light of the policy deducible from the long title and the preamble is that in the matter of granting permission or recognition the Government must be guided by the consideration whether the giving of such permission or recognition will enure for the better educational organisation institutions in the State, whether it will facilitate the imparting of general or special education or the training of teachers and if it does then permission or recognition must be granted but it must be refused if it impedes that purpose. It is true that the word "may" has been used in sub-clause (3), but, according to the well known rule of construction of statutes, if the existence of the purpose is established and the conditions of the exercise of the discretion are fulfilled, the Government will be under an obligation to exercise its discretion in furtherance of such purpose and no question of the arbitrary exercise of discretion can arise. [Compare Julius v. Lord Bishop of Oxford ([1880) 5 app. Cas 214)]. If in actual fact any discrimination is made by the Government then such discrimination will be in violation of the policy and principle deducible from the said Bill itself and the court will then strike down not the provisions of the Bill but the discriminatory act of the Government. Passing on to clause 14, we find that the power conferred thereby on the Government is to be exercised only if it appears to the Government that the manager of any aided school has neglected to perform the duties imposed on him and that the exercise of the power is necessary in public interest. Here again the principle is indicated and no arbitrary or unguided power has been delegated to the Government. Likewise the power, under clause 15(1) can be exercised only if the Government is satisfied that it is necessary to exercise it for "standardising general education in the State or for improving the level of literacy in any area or for more effectively managing the aided educational institutions in any area or for bringing the education of any category under their direct control" and above all the exercise of the power is necessary "in the public interest". Whether the purposes are good or bad is a question of State policy with the merit of which we are not concerned in the present discussion. All that we are now endeavouring to point out is that the clause under consideration does lay down a policy for the - 66 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER to clause 36. The power given guidance of the Government in the matter of the exercise of the very wide power conferred on it by that clause. The exercise of the power is also controlled by the proviso that no notification under that sub-clause shall be issued unless the proposal for the taking over is supported by a resolution of the Legislative Assembly - a proviso which clearly indicates that the power cannot be exercised by the Government at its whim or pleasure. Skipping over a few clauses, we Government by clause 36 to make rules is expressly stated to be exercised "for the purpose of carrying into effect the provisions of this Act". In other words, the rules to be framed must implement the policy and purpose laid down in its long title and the preamble and the provisions of the other clauses of the said Bill. Further, under clause 37 the rules have to be laid for not less than 14 days before the Legislative Assembly as soon as possible after they are made and are to be subject to such modifications as the Legislative Assembly may make during the session in which they are so laid. After the rules are laid before the Legislative Assembly they may be altered or amended and it is then that the rules, as amended become effective. If no amendments are made the rules come into operation after the period of 14 days expires. Even in this latter event the rules owe their efficacy to the tacit assent of the Legislative Assembly itself. Learned counsel appearing for the State of Kerala submitted in picturesque language that here was what could be properly said to be legislation at two stages and the measure that will finally emerge consisting of the Bill and the rules with or without amendment will represent the voice of the Legislative Assembly itself and, therefore, it cannot be said that an unguided and uncontrolled power of legislation has been improperly delegated to the Government. Whether in approving the rules laid before it the Legislative Assembly acts as the Legislature of Kerala or acts as the delegate of the Legislature which consists of the Legislative Assembly and the Governor is, in the absence of the standing orders and rules of business of the Kerala Legislative Assembly, more than we can determine. But all that we need say is that apart from laying down a policy for the guidance of the Government in the matter of the exercise of powers conferred on it under the different provisions of the Bill including clause 36, the Kerala Legislature has, by clause 15 and clause 37 provided further safeguards. In this connection we must bear in - 67 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER mind what has been laid down by this Court in more decisions than one, namely, that discretionary power is not necessarily a discriminatory power and the abuse of power by the Government will not be lightly assumed. For reasons stated above it appears to us that the charge of unconstitutionality of the several clauses which come within the two questions now under consideration founded on Art. 14 cannot be sustained. The position is made even clearer when we consider the question of the validity of clause 15(1) for, apart from the policy and principle deducible from the long title and the preamble of the Bill and from that sub-clause itself, the proviso thereto clearly indicates that the Legislature has not abdicated its function and that while it has conferred on the Government a very wide power for the acquisition of categories of schools it has not only provided that such power can only be exercised for the specific purposes mentioned in the clause itself but has also kept a further and more effective control over the exercise of the power, by requiring that it is to be exercised only if a resolution is passed by the Legislative Assembly authorising the Government to do so. The Bill, in our opinion, comes not within category (iii) mentioned in Ram Krishna Dalmia's case ([1959] S.C.R. 279) as contended by Shri G. S. Pathak but within category (iv) and if the Government applies the provisions in violation of the policy and principle laid down in the Bill the executive action will come under category (v) but not the Bill and that action will have to be struck down. The result, therefore, is that the charge of invalidity of the several clauses of the Bill which fall within the ambit of questions 1 and 3 on the ground of the infraction of Art. 14 must stand repelled and our answers to both the questions 1 and 3 must, therefore, be in the negative.

20. Re. Question 2 : Articles 29 and 30 are set out in Part III of our Constitution which guarantees our fundamental rights. They are grouped together under the sub-head "Cultural and Educational Rights". The text and the marginal notes of both the Articles show that their purpose is to confer those fundamental rights on certain sections of the community which constitute minority communities. Under clause (1) of Art. 29 any section of the citizen residing in the territory of India or any part thereof having a distinct language, script or culture of its own has the right to conserve the same. It is obvious that a minority - 68 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER community can effectively conserve its language, script or culture by and through educational institutions and, therefore, the right to establish and maintain educational institutions of its choice is a necessary concomitant to the right to conserve its distinctive language, script or culture and that is what is conferred on all minorities by Art. 30(1) which has hereinbefore been quoted in full. This right, however, is subject to clause 2 of Art. 29 which provides that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

21. As soon as we reach Art. 30(1) learned counsel for the State of Kerala at once poses the question : what is a minority ? That is a term which is not defined in the Constitution. It is easy to say that a minority community means a community which is numerically less than 50 per cent., but then the question is not fully answered, for part of the question has yet to be answered, namely, 50 per cent. of what ? Is it 50 per cent. of the entire population of India or 50 per cent. of the population of a State forming a part of the Union ? The position taken up by the State of Kerala in its statement of case filed herein is as follows:- "There is yet another aspect of the question that falls for consideration, namely, as to what is a minority under Art. 30(1). The State contends that Christians, a certain section of whom is vociferous in its objection to the Bill on the allegation that it offends Art. 30(1), are not in a minority in the State. It is no doubt true that Christians are not a mathematical majority in the whole State. They constitute about one-fourth of the population; but it does not follow therefrom that they form a minority within the meaning of Art. 30(1). The argument that they do, if pushed to its logical conclusion, would mean that any section of the people forming under fifty per cent. of the population should be classified as a minority and be dealt with as such. Christians form the second largest community in form, however, a majority Kerala State; community in certain area of the State. Muslims form the third largest community in the State, about one- seventh of the total population. They also, however, form the majority community in certain other areas of the State. (In I.L.R. (1951) 3 Assam 384, it was held - 69 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER that persons who are alleged to be a minority must be a minority in the particular region in which the institution involved is situated)." in the particular region The State of Kerala, therefore, contends that in order to constitute a minority which may claim the fundamental rights guaranteed to minorities by Art. 29(1) and 30(1) persons must numerically be a in which the minority educational institution in question is or is intended to be situate. A little reflection will at once show that this is not a satisfactory test. Where is the line to be drawn and which is the unit which will have to be taken ? Are we to take as our unit a district, or a sub-division or a taluk or a town or its suburbs or a municipality or its wards ? It is well known that in many towns persons belonging to a particular community flock together in a suburb of the town or a ward of the municipality. Thus Anglo-Indians or Christians or Muslims may congregate in one particular suburb of a town or one particular ward of a municipality and they may be in a majority there. According to the argument of learned counsel for the State of Kerala the Anglo-Indians or Christians or Muslims of that locality, taken as a unit, will not be a "minority" within the meaning of the Articles under consideration and will not, therefore, be to establish and maintain educational entitled institutions of their choice in that locality, but if some of the members belonging to the Anglo-Indian or Christian community happen to reside in another suburb of the same town or another ward of the same municipality and their number be less than that of the members of other communities residing there, then those members of the Anglo-Indian or Christian community will be a minority within the meaning of Arts. 29 and 30 and will be entitled to establish and maintain educational institutions of their choice in that locality. Likewise the Tamilians residing in Karolbagh, if they happen to be larger in number than the members of other communities residing in Karolbagh, will not be entitled to establish and maintain a Tamilian school in Karolbagh, whereas the Tamilians residing in, say, Daryaganj where they may be less numerous than the members of other communities residing in Daryaganj will be a minority or section within the meaning of Arts. 29 and 30. Again Bihari labourers residing in the industrial areas in or near Calcutta where they may be the majority in that locality will not be entitled to have the minority rights and those Biharis will have no - 70 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER their choice institution of imparting educational education in Hindi, although they are numerically a minority if we take the entire city of Calcutta or the State of West Bengal as a unit. Likewise Bengalis residing in a particular ward in a town in Bihar where they may form the majority will not be entitled to conserve their language, script or culture by imparting education in Bengali. These are, no doubt, extreme illustrations, but they serve to bring out the fallacy inherent in the argument on this part of the case advanced by learned counsel for the State of Kerala. Reference has been made to Art. 350A in support of the argument that a local authority may be taken as a unit. The illustration give above will apply to that case also. Further such a construction will necessitate the addition of the words "within their jurisdiction" after the words "minority groups". The last sentence of that Article also appears to run counter to such argument. We need not, however, on this occasion go further into the matter and enter upon a discussion and express a final opinion as to whether education being a State subject being item 11 of List II of the Seventh Schedule to the Constitution subject only to the provisions of entries 62, 63, 64 and 66 of List I and entry 25 of List III, the existence of a minority community should purposes of all laws of that State be determined on the basis of the population of the whole State or whether it should be determined on the State basis only when the validity of a law extending to the whole State is in question or whether it should be determined on the basis of the population of a particular locality when the law under attack applies only to that locality, for the Bill before us extends to the whole of the State of Kerala and consequently the minority must be determined by reference to the entire population of that State. By this test Christians, Muslims and Anglo- Indians will certainly be minorities in the State of Kerala. It is admitted that out of the total population of 1,42,00,000 in Kerala there are only 34,00,000 Christians and 25,00,000 Muslims. The Anglo-Indians in the State of Travancore-Cochin before the re- organisation of the States numbered only 11,990 according to the 1951 Census. We may also emphasise that question 2 itself proceeds on the footing that there are minorities in Kerala who are entitled to the rights conferred by Art. 30(1) and, strictly speaking, for answering question 2 we need not enquire as to in all circumstances and - 71 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER what a minority community means or how it is to be ascertained.

41. But then, it was argued that the policy behind Art. 30(1) was to enable minorities to establish and maintain their own institutions, and that that policy would be defeated if the State is not laid under an obligation to accord recognition to them. Let us assume that the question of policy can be gone into, apart from the language of the enactment. But what is the policy behind Art. 30(1) ? As I conceive it, it is that it should not be in the power of the majority in a State to destroy or to impair the rights of the minorities, religious or linguistic. That is a policy which permeates all modern Constitutions, and its purpose is to encourage individuals to preserve and develop their own distinct culture. It is well- known that during the Middle Ages the accepted notion was that Sovereigns were entitled to impose their own religion on their subjects, and those who did not conform to it could be dealt with as traitors. It was this notion that was responsible during the 16th and 17th Centuries for numerous wars between nations and for civil wars in the Continent of Europe, and it was only latterly that it came to be recognised that freedom of religion is not incompatible with good citizenship and loyalty to the State, and that all progressive societies must respect the religious beliefs of their minorities. It is this concept that is embodied in Arts. 25, 26, 29 and 30. Article 25 guarantees to persons the right to freely profess, practice and propagate religion. Article 26 recognises the right of religious denominations to establish and maintain religious and charitable institutions. Article 29(1) protects the rights of sections of citizens to have their own distinct language, script or culture. Article 30(1) belongs to the same category as Arts. 25, 26 and 29, and confers on minorities, religious or linguistic, the their own educational institutions without any interference or hindrance from the State. In other words, the minorities should have the right to live, and to establish and maintain - 72 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER should be allowed by the State to live, their own cultural life as regards religion or language. That is the true scope of the right conferred under Art. 30(1), and the obligation of the State in relation thereto is purely negative. It cannot prohibit the establishment of such institutions, and it should not interfere with the administration of such institutions by the minorities. That right is not, as I have already pointed out, infringed by Clause (20). The right which the minorities now claim is something more. They want not merely freedom to manage their own affairs, but they demand that the State should actively intervene and give to their educational institutions the imprimatur of State recognition. That, in my opinion, is not within Art. 30(1). The true intention of that Article is to equip minorities with a shield whereby they could defend themselves against attacks by majorities, religious or linguistic, and not to arm them with a sword whereby they could compel the majorities to grant concessions. It should be noted in this connection that the Constitution has laid on the State various obligations in relation to the minorities apart from what is involved in Art. 30(1). Thus, Art. 30(2) provides that a State shall not, when it chooses to grant aid to educational institutions, discriminate against institutions of religion. minorities based on Likewise, if the State frames regulations for recognition of educational institutions, it has to treat all of them alike, without discriminating against any institution on the ground of language or religion. The result of the constitutional provisions bearing on the question may thus be summed up : language or (1) The State is under a positive obligation to give equal treatment in the matter of aid or recognition institutions, to all educational including those of the minorities, religious or linguistic. (2) The State is under a negative obligation as regards those institutions, not to prohibit their - 73 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER establishment or administration. interfere with that must, Clause (20) of the Bill violates neither of these two obligations. On the other hand, it is the contention of the minorities accepted, result in discrimination by the State. While recognised institutions of the majority communities will be subject to clause (20), similar institutions of minority communities falling within Art. 30(1) will not be subject to it. The former cannot collect fees, while the latter can. This surely is discrimination. It may be stated that learned counsel for the minorities, when pressed with the question contention Art. 45 must become a dead letter, answered that the situation could be met by the State paying compensation to the minority institutions to make up for the loss of fees. That serves clearly to reveal that what the minorities fight for is what has not been granted to them under Art. 30(2) of the Constitution, viz., aid to them on the ground of religion or language. In my opinion, there is no justification for putting on Art. 30(1) a construction which would put the minorities in a more favoured position than the majority communities. that on

9.39. By relying on the above she submits that any action of the State cannot negate customary law/practice of a citizen and in this case, the customs and traditions practised by the Kodava people.

9.40. She relies upon the decision of the Apex Court in Sardar Syedna Taher Saifuddin Saheb - 74 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER vs. State of Bombay7, more particularly para 59 and 62 and submits Article 25 of the Constitution gives every person a right to achieve his purpose, practice and propagate religion, as such the Kodava race is also required to freely practice the civil and religious usages even if such practice is contrary to the law. Paras 59 & 62 are reproduced hereunder for easy reference:

59. It is admitted, however, in the present case that the Dai as the head of the denomination has vested in him the power, subject to the procedural requirements indicated in the judgment of the Privy Council, to excommunicate such of the members of the community as do not adhere to the basic essentials of the faith and in particular those who repudiate him as the head of the denomination and as a medium through which the satisfaction or community derives efficiency immediately from the God-head. It might be that if the enactment had confined itself to dealing with excommunication as a punishment for secular offences merely and not as an instrument for the self preservation of a religious denomination the position would have been different and in such an event the question as to whether Articles 25 and 26 would be sufficient to render such legislation unconstitutional might require serious consideration. That is not the position here. The Act is not confined in its spiritual 7 AIR 1962 SC 853 - 75 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER operation to the eventualities just now mentioned but even excommunication with a view to the preservation of the identity of the community and to prevent what might be a schism in the denomination is also brought within the mischief of the enactment. It is not possible, in the definition of excommunication which the Act carries, to read down the Act so as to confine excommunication as a punishment of offences which are unrelated to the practice of the religion which do not touch and concern the very existence of the faith of the denomination as such. Such an exclusion cannot be achieved except by rewriting the section.

62. Coming back to the facts of the present petition, the position of the Dai-ul-Mutlaq, is an essential part of the creed of the Dawoodi Bohra sect. Faith in his spiritual mission and in the efficacy of his administration is one of the bonds that hold the community together as a unit. The power of excommunication is vested in him for the purpose of enforcing discipline and keep the denomination together as an entity. The purity of the fellowship is secured by the removal of persons who had rendered themselves unfit and unsuitable for membership of the sect. The power of excommunication for the purpose of ensuring the preservation of the community, has therefore a prime significance in the religious life of every member of the group. A legislation which penalises this power even when exercised for the purpose above-indicated cannot be sustained as a measure of social welfare or social reform without eviscerating the guarantee under Article 25(1) and rendering the protection illusory. - 76 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER

9.41. She refers to the decision in DAV College Jalandhar vs. State of Punjab8, more particularly para 9, 10 and 18 which are reproduced hereunder for easy reference:

9. Though there was a faint attempt to canvas the position that religious or linguistic minorities should be minorities in relation to the entire population of the country, in our view they are to be determined only in relation to the particular legislation which is sought to be impugned, namely that if it is the State Legislature these minorities have to be determined in relation to the population of the State. On this aspect Das, C.J., in Kerala Education Bill case speaking for the majority thought that there was a fallacy in the suggestion that a minority or section envisaged by Article 30(1) and Article 29(1) could mean only such persons as constitute numerically, minority in the particular region where the educational institution was situated or resided under local authority. He however, thought, it was not necessary to express a final opinion as to whether education being the subject-matter of Item 11 of the State list, subject only to the provisions of Entries 62, 63, 64 and 66 of List I and Entry 25 of List III, the existence of a minority community should in all circumstances and for purposes of all laws of that State be determined on the basis of the population of the whole State or whether it should be determined on the said basis only when the validity of a law extending to the whole State is in question or whether it should be determined on the basis of a population of a locality when the law under that Act applies only to that locality, because in that case the Bill before the Court extended to the whole of the State of Kerala and 8 AIR 1971 SC 1737 : 1971 INSC 142 - 77 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER consequently the minority must be determined by reference to the entire population of that State.

10. It is undisputed, and it was also conceded by the State of Punjab, that the Hindus of Punjab are a religious minority in the State though they may not be so in relation to the entire country. The claim of Arya Samaj to be a linguistic minority was however contested. A linguistic minority for the purpose of Article 30(1) is one which must at least have a separate spoken language. It is not necessary that that language should also have a distinct script for those who speak it to be a linguistic minority. There are in this country some languages which have no script of their own, but nonetheless those sections of the people who speak that language will be a linguistic minority entitled to the protection of Article 30(1).

18. Now coming to the question whether the Arya Samajis have a distinct script of their own bye-law 32 of their constitution shows that the proceeding of all meetings and sub-committees will have to be written in Arya Bhasha — in Hindi language and Devnagri character. All Aryas and Arya Sabhasads should know Arya Bhasha, Hindi or Sanskrit. The belief is that the name of the script Devnagri is derived from Deva and therefore has divine origin. From what has been stated it is clear that the Arya Samajis have a distinct script of their own, namely Devnagri. They are therefore entitled to invoke the right guaranteed under Article 29(1) because they are a section of citizens having a distinct script and under Article 30(1) because of their being a religious minority.

9.42. She refers to the decision in Virendra Nath Gupta and others vs Delhi Administration - 78 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER and others9 , more particularly para 7, which is reproduced hereunder for easy reference:

7. The third submission made on behalf of the appellants the additional essential qualification regarding knowledge of Malayalam was prescribed in contravention of the Rules and this was done with a view to oust the appellants who were the senior teachers fully equipped with other essential qualifications for appointment to the post of Vice-Principal. While considering this question we cannot overlook the fact that the institution is a linguistic minority institution, its object is to promote the study of Malayalam and to promote and preserve Malayalee dance, culture and art. Article 29 of the Constitution of India guarantees right of linguistic minorities having a distinct language, script and culture of their own and, it also protects their right to conserve the same. Article 30 of the Constitution guarantees the right of minorities whether based on religion or language to establish and administer educational institutions of their choice. A linguistic minority has not only the right to establish and administer educational institution of its choice, but in addition to that it has further constitutional right to conserve its language, script and culture. In exercising this right a linguistic minority may take steps for the purpose of promoting its language, script or culture and in that process it may prescribe additional qualification teachers employed in its institution. The rights conferred on linguistic minority under Articles 29 and 30 cannot be taken away by any law made by the legislature or by rule made by executive authorities. However, the management of a minority institution has no right to maladminister the institution, and it is permissible to the State to prescribe syllabus, curriculum of appointment and terms and conditions of teachers study and regulate 9 1990 SCC (L&S) - 79 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER with a view to maintain a minimum standard of efficiency in the educational institutions. This is the consistent view of this Court, as held in a number of decisions where the scope and extent of minority's right to manage its institutions were considered. See In re the Kerala Education Bill, 1957 [1959 SCR 995 : AIR 1958 SC 956] ; Ahmedabad St. Xaviers College Society v. State of Gujarat [(1974) 1 SCC 717 : (1975) 1 SCR 173] ; Lilly Kurian v. Sr. Lewina [(1979) 2 SCC 124 : 1979 SCC (L&S) 134 : (1979) 1 SCR 820] ; Frank Anthony Public School Employees' Association v. Union of India [(1986) 4 SCC 707 : (1987) 2 ATC 35] ; Y. Theclamma v. Union of India [(1987) 2 SCC 516] ; All Bihar Christian Schools Association v. State of Bihar [(1988) 1 SCC 206] . Though minority's right under Articles 29 and 30 is subject to the regulatory power of the State, but regulatory power cannot be exercised to impair the minority's right to conserve its language, script or culture while administering the educational institutions. An institution set up by the religious or linguistic minority is free to manage its affairs without any interference by the State but it must maintain educational standards so that the students coming out of that institution do not suffer in their career. But if the recognised minority institution is recipient of government aid, it is subject to the regulatory provisions made by the State. But these regulatory provisions cannot destroy the basic right of minority institutions as embodied under Articles 29 and 30.

9.43. She refers to the decision in Jagdev Singh Sidhanti v. Pratap Singh Daulta10 , more particularly para 26 thereof, which reproduced hereunder for easy reference: 10 AIR 1965 SC 183 : 1964 INSC 33 - 80 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER

26. It is in the light of these principles, the correctness of the findings of the High Court that Sidhanti was guilty of the corrupt practice of appealing for votes on the ground of his language and of asking the voters to refrain from voting for Daulta on the ground of the language of Daulta may be examined. The petition filed by Daulta on this part of the case was vague. In para 11 of his petition it was averred that Sidhanti and his agents made a systematic appeal to the audience to vote for Sidhanti and refrain from voting for Daulta “on the ground of religion and language”, and in para -12 it was averred that in the public meetings held to further the prospects of Sidhanti in the election, Sidhanti and his agents had made systematic appeals to the electorate to vote for him and refrain from voting for Daulta “on the ground of his religion and language”. A bare perusal of the particulars of the corrupt practice so set out in paras 11 and 12 are to be found in Schedules. ‘C’ and ‘D’ clearly shows that it was the case of Daulta that Sidhanti had said that if the electorate wanted to protect their language they should vote for the Hariana Lok Samiti candidate. Similar exhortations are said to have been made by the other speakers at the various meetings. It is stated in Schedule ‘D’ that resolutions were passed at Government to “abolish Punjabi from Hariana”, that many speakers said that the Hariana Lok Samiti will fight for Hindi for Hariana and that they were opposed to the teaching of Punjabi in Hariana. These exhortations to the electorate to induce the Government to change their language policy or that a political party will agitate for the protection of the language spoken by the residents of the Hariana area do not fall within the corrupt practices of appealing for votes on the ground of language of the candidate or to refrain from voting on the ground of language of the contesting candidate. the meetings urging upon - 81 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER

9.44. By relying on the above Judgments, she submits that the fundamental duties not only apply to the citizens but also to the State inasmuch as in terms of Article 51-A(f), there is a duty cast on the state to preserve the rich heritage of composite culture. The State by way of impugned amendment has done away with the culture of Kodavas thereby violating Article 51-A(f), which is reproduced hereunder for easy reference: 51-A. Fundamental duties – (f): to value and preserve the rich heritage of our composite culture;

9.45. She submits that the claim of the State that Jamma Bane lands are government lands are completely false inasmuch as the Bane lands of Coorg were never the properties of the British government nor of the Rajas. The Banes continued to be under private ownership of the - 82 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER joint family, the British, never being the owner, had not handed over the bane land to the Indian government after the independence. The government lands under the CLRR were called paisari land. Jamma Bane land having a distinct name, not being a paisari land, is not a government land. Under Article 294(b) there is an obligation on the State to preserve the customs and traditions of the Kodavas which is reproduced hereunder for easy reference: 294(b): all rights, liabilities and obligations of the Government of the Dominion of India and of the Government of each Governor's Province, whether arising out of any contract or otherwise, shall be the rights, liabilities and obligations respectively of the Government of India and the Government of each corresponding State,

9.46. By referring to Section 6 of the Karnataka General Clauses Act, 1899, she submits that repeal of any enactment will not affect any rights, privileges or obligations acquired, accrued or incurred under any enactment so - 83 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER repealed. Thus, she submits that the repeal of CLRR will not take away the rights invested with the Kodavas. Section 6 of the Karnataka General Clauses Act, 1899 is reproduced hereunder for easy reference:

6. Effect of repeal.- Where this Act or 1 [any Mysore Act or Karnataka Act]1 made after the commencement of repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not,- this Act (a) revive anything not in force or existing at the time at which the repel takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactments so repealed; or liability, penalty, (e) affect any investigation, legal proceeding or remedy in respect of any such, right, privilege, obligation, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed. - 84 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER

9.47. She submits that customary law continues to be administered even after the Constitution came into being. In this regard, she refers to a decision in S.N. Rama Shetty & others vs. Kongera T. Appanna11, pages 222 and 223, which are reproduced hereunder for easy reference “Whatever might be the quantity of timber and fire-wood cut by the defendant, it is urged that it was the property of Government and not that of the plaintiff and that therefore the defendant is not liable for damages to the plaintiff. This argument is founded on the character of the holding of what is known as 'bane' land in Coorg. In Appendix 3 'Definitions' given in the Coorg Revenue Manual, 'bane' is described as 'forest land granted for the service of the holding of wet land to which it is allotted, to be, held free of revenue by the cultivator for grazing, and to supply leaf manure, firewood and timber required for the agricultural and domestic purposes of cultivator, so long as he continues in possession of the wet land." Such bane may be attached to wet land held under jama tenure, umbli tenure or sagu tenure. The lands held in jama or umbli tenure are not fully assessed and are not alienable while land held under sagu terfure is alienable. Since the bane is granted only for the purpose of making limited use of the forest produce and the holder has no right to cut and remove the timber out of 11 1959 Mys.LJ 218 - 85 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER the bane land or for purposes other than for the service of the main holding, it is urged that the timber is the property of Government. The Coorg Land and Revenue Regulation 1899 does not define any of the tenures mentioned above and the definition referred to above is not, strictly speaking, a statutory definition. There is nothing in the above Regulation to alter or affect the character of any of the above tenures. We have therefore to see what the character of a bane tenure is as understood by customary law and practice. In Baden-Powell's book on Land Systems in British India, it is stated as follows:- "The bane......is destined to supply the warg-holder with grazing, timber, firewood, and herbage which he burns on the rice-fields to give ash-manure to the soil. But the produce must be strictly used for the supply of the agricultural and domestic wants of the holder; and if timber, etc., is sold, the tenure is infringed, and Government has a right to demand seignorage on the wood....... In the jamma tenure, as the bane is included in the sanad, it is virtually a part of the property. In the sagu tenure, there is no sanad but the attached area of bane must be held and used subject to the same conditions. Under these circumstances, the bane cannot be regarded as actually the property of the tenure holder, nor, on the other hand, as land at the disposal of Government. It is which is held as an appendage to a warg or estate, or to a sagu holding, in a sort of trust, or on condition for a certain use”. In the Note by Sir J. B. Lyall on Tenures in Coorg, printed as Appendix IV in the Coorg Revenue Manual, there is nothing to indicate any difference from what is stated above in regard to the character of a bane holding. It would therefore - 86 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER appear that bane land held in association with privileged, warg holding like jamma and umbli land is in the possession and dominion of the holders and that though they have no right to cut the timber and dispose it of for purposes other than for the service of the main holding they can do so subject to payment of seignorage and that there is no absolute prohibition to their cutting the timber. In fact, the rules framed in regard to this matter both under the Coorg Land and Revenue Regulation and the Forest Regulation provide for the cutting of the timber by the holder on payment of seignorage for the 'redemption' of the timber they do not contemplate Government permitting any one other than the holder to cut or remove timber. The seignorage itself represents not the full value of the timber, but a part of the value fixed from time to time presumably with reference to the prevailing rates at the time of the promulgation of the rules. It is also significant to note that in the rules promulgated in 1953, provision is made for extraction and disposal of timber through Government agency and that the holder is entitled to 50 per cent of the net proceeds. The nature of the tenure and the above rules appear to indicate that the holder has at least dominion over the timber and whatever his accountability to Government may be, any third party who interferes with the bane land is accountable defendant's contention on this matter has no force. the holder. Therefore, As regards the rates, the learned Judge has adopted the rates given in the plaint since the rates fetched at the sales held by the Forest Department at Hunsur on 18-2-48 were higher than the rates mentioned in the plaint. The defendant has examined some witnesses to speak to the rates but their evidence is of little value. D. W. 2 Basaviah says that one Baliah has filed a suit against him claiming Rs. 2-4-0 per cubic foot of honne timber. He says nandi was sold at Re. 1 and - 87 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER rose-wood at Rs. 2-4-0 per cubic foot. He has not maintained any accounts. D. W. 3 Anniah who is in the timber trade speaks about timber sales, a statement of which is contained in a letter dated 23-6-49 (Ex. B-7) addressed to him by the proprietors of Gowri Shankar Mills, Hassan, to whom he says he had supplied timber. Neither his account books nor his customers' account books are produced. The rates in the letter can hardly be taken into consideration as evidence. D.W. 4 Subbaraya Setty speaks to the rates as mentioned in Ex. B-4 which purports to be a statement of account sent by him to the defendant. It is dated 25-1-49. It no doubt mentions the rates at which different varieties of timber were sold. But this witness has not produced his accounts and the rates mentioned in the statement of account contained in the letter can hardly He has also produced Ex. B-8, a as evidence. be regarded communication dated. 28-2-48 from the Chief Forest Officer, Coorg. Amongst the varieties of timber mentioned in it, the only relevant variety for which the rate is given is Biti and the rate is Rs. 2-3-0. But the dimensions of the logs are not given. Apart from the evidentiary value to be attached to a communication like this, it is difficult to take the rate into consideration in the absence of details regarding the dimensions of the logs, for the rate would depend on them also. Thus we are left with the rates fetch- ed in the Forest Departmental sale. There is no reason to dispute their correctness or authenticity”.

9.48. She relies on a decision in C.A. Nanjappa vs. C.M. Thimmaya12, more particularly pages 12 1963 Mys.LJ 486 - 88 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER 487-489 which are reproduced hereunder for easy reference: the suit to contend “The short point for consideration in this appeal is whether the finding of the learned District Judge that the suit filed by the appellants in a Civil Court is not maintainable by virtue of S. 145 of the Coorg Land and Revenue Regulation, is correct. It is idle for the appellants is one readjustment or the maintenance reallotment of provision among the members of the Coorg family and not for a partition of the properties. The parties are Coorgis. They are governed by Mitha- kshara School of Hindu Law as modified by the Coorg Customary Law. The suit as brought now is clearly one for partition of the suit schedule properties which are admittedly joint family properties. It is not maintainable by virtue of S. 145 of the Coorg Land and Revenue Regulation. The contention of the appellants that the suit as brought by them is not a suit for partition as contended by the respondents but is only a suit for readjustment of the maintenance division effected on 10-10-1923 is an after- thought. We are unable to accept the contention of the learned Counsel for the appellants that once the trial Court allowed the amendment prayed for by the appellants and permitted them to delete the word 'Partition' in paragraph (7) of the plaint and to add the fresh allegations to the effect that the suit is only for increased maintenance, the suit cannot be considered to be one for fresh partition. There is no substance in the said contention. The allegations made by the appellants in the plaint make it abundantly clear that the suit is one for readjustment or reallotment of the properties allotted to the two branches under the deed dated 10-10-1923. Even on the basis that the suit is one for readjustment of the properties the suit is not maintainable. S. 145 of the Coorg Land and Revenue Regulation unmistakably ousts the jurisdiction of the Civil Courts to entertain such suits. In para 160 of his book "A Manual of Coorg Civil Law" Major General Rob. Cole, Superintendent of Coorg dealing with the question whether a partition of the joint family proper- ties amongst the members of the Coorg family could be effected has stated: - 89 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER "Partition not allowed-It was not customary among Coorgs to acquire or hold land, houses, &c., separately. Since about 1805 how- ever some families quarrelled and appealed to the former Rajas, who directed that they should in accordance with the Hindu Law be allowed to divide. Subsequentto our assumption of the Government of the country several other families have similarly applied to the Courts and obtained decrees for partition; whilst others have divided off amicably amongst themselves. In 1858 the Thakkas and headmen of the. Coorgs represented the loss and ruin occasioned to their ancient houses by this innovation and system of partition; and the Judicial Commissioner in additional Spl. A. S. No. 117 of 1958-59 passed a decree declaring that division was contrary to the ancient custom of Coorg and ever since division has been strictly inter directed." The learned Counsel for the appellants is not able to point out to us any decision of any Court which has taken a contrary view. S. 145 of the Coorg Land and Revenue Regulation prohibits division of the joint family properties amongst the members of the Coorg family whether it be a partition or other allotment amongst the members of the family. According to the section a suit for allotment of the joint family properties even for purposes of maintenance jurisdiction of a Civil Court. S. 145 of the Coorg Land and Revenue Regulation in so far as it relates for our purpose reads thus: is excluded "145. Bar of suits in certain matters-Except as otherwise pro- vided by this Regulation no suit shall be brought in any Civil Court, in respect of any of the following matters, namely….. (xv) any claim for the partition of an estate or holding or any question as to the allotment of land when such estate holding or land is one of which the land- revenue has been wholly or partly assigned or released or which is held as joint family property by persons of the Coorg race or any claim for the distribution of land revenue on partition or any other question connected therewith not being a question as to the partibility of, or to, sought;…………” the property of which partition - 90 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER The above provision is quite clear. It is idle for the appellants to contend that in spite of such a clear provision the jurisdiction of a Civil Court to deal with the allotment of the joint family properties of a Coorg family is within the jurisdiction of a Civil Court. The learned District Judge, is, therefore, justified in holding that the suit filed by the appellants was not maintainable and dismissing the same.”

9.49. Relying on the above judgements she submits that the lands granted by the King under the Jamma Tenure system became the property of the house/family and not of the individual, and any grant made by the King is to be enjoyed by all members of the family. It is the family name that is entered in the SYST records as an abstract owner. In the said records the name of Patedara of the family who is managing the affairs of the family is entered into. The names of all other family members, i.e. maintenance division members, are entered in the 6th column of the Jamma Bandi. Upon computerization, the family name is shown at the head of the list in the 9th column, followed by the name of - 91 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER Patedara and thereafter, maintenance division holders, and now, after impugned amendment, a partition deed with a revenue sketch is insisted for entry of the name of any maintenance division holder.

9.50. A Sannad was granted for every holding which would also include a Jamma Bane which was held at half the ordinary assessment by the eldest member of the family.

9.51. By referring to G. Richter’s Gazetteer of Coorg, page 252, she submits that since Coorg had no standing army, the Kodavas who rendered military service were not paid any salary whilst on active duty, instead Kodavas were allowed to make use of Jamma Bane land at half assessment. The said extract hereunder reproduced for easy reference: “As the Coorg force was not a standing army, it received no pay. Whilst on active duty as - 92 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER guards or during warfare, the soldiers were maintained at the public expense, and being remarkable for their predatory habits, they largely shared with the Rájahs in the spoil. Without discipline and organization, the Coorgs displayed their strength chiefly behind their stockades and Cadangas. In the open field they rarely faced the attacks of regular troops.”

9.52. She submits that the issue in question in Cheekkere’s case was as regards entitlement of the government to the mines and minerals in the subsoil of Bane land. There is no distinction made between the Jamma Bane land or other Bane lands. However, this court singled out Jamma Bane land and held Jamma Bane land to be government land, which is not correct. As aforesaid, she submits that Jamma Bane land was never government land. She further submits that Cheekere Poovaiah’s decision (supra) would not apply to the present case since that was one relating to the sub-soil rights, more particularly relating to - 93 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER minerals in the sub-soil, which vests with the government. If there are no minerals in the land and the land is used for agricultural activities and or customary religious practices of Kodavas, the State cannot have any right on such a land. Thus, even if the decision in Cheekere Poovaiah’s case is accepted to be correct, she submits that the decision would only apply in regard to mineral rights in the sub-soil and not as regards rights of ownership by the entire family in Jamma Bane land.

9.53. She refers to the decision in the case of Threesiamma Jacob & others -v- Geologist Department of Mining & Geology & others13, more particularly paras 51, 54, 55 and 57 thereof which are reproduced hereunder for easy reference: 13 2013(7) SCR 863 : 2013 INSC 447 - 94 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER

51. The other material which prompted the High Court to reach the conclusion that the subsoil/minerals vest in the State is (a) recitals of a patta which is already noted by us earlier (in para 12) which states that if minerals are found in the property covered by the patta and if the pattadar exploits those minerals, the pattadar is liable for a separate tax in addition to the tax shown in the patta and (2) certain standing orders of the Collector of Malabar which provided for collection of seigniorage fee in the event of the mining operation being carried on. We are of the clear opinion that the recitals in the patta or the Collector's standing order that the exploitation of mineral wealth in the patta land would attract additional tax, in our opinion, cannot in any way indicate the ownership of the State in the minerals. The power to tax is a necessary incident of sovereign authority (imperium) but not an incident of proprietary rights (dominium). Proprietary right is a compendium of rights consisting of various constituent, rights. If a person has only a share in the produce of some property, it can never be said that such property vests in such a person. In the instant case, the State asserted its 'right' to demand a share in the 'produce of the minerals worked' though the expression employed is right - it is in fact the Sovereign authority which is asserted. From the language of the BSO No.10 it is clear that such right to demand the share could be exercised only when the pattadar or somebody claiming through the pattadar, extracts/works the minerals - the authority of the State to collect money on the happening of an event - such a demand is more in the nature of an excise duty/a tax. The assertion of authority to collect a duty or tax is in the realm of the sovereign authority, but not a proprietary right.

54. Mines and Minerals Act is an enactment made by the Parliament to regulate the mining activities in this country. The said Act does not in any way purport to declare the proprietary rights of the State in the mineral wealth nor does it contain any provision divesting any owner of a mine of his proprietary rights. On the other hand, various enactments made by the Parliament such as Coking Coal Mines (Nationalisation) Act, 1972 and Coal Bearing Areas (Acquisition and Development) Act, 1957 make express declarations under Section 4 and 7 respectively26 providing for acquisition of the mines and rights in or over the land from which coal is obtainable. If the understanding of the State of Kerala that in view of the provisions of the Mines and Minerals Development (Regulation) Act, 1957, the proprietary rights in mines - 95 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER stand transferred and vest in the State, it would be wholly an unnecessary exercise on the part of the Parliament to make laws such as the ones mentioned above dealing with the nationalisation of mines.

55. Even with regard to the minerals which are greatly important and highly sensitive in the context of the national security and also the security of humanity like uranium - the Atomic Energy Act, 1962 only provides under Section 527 for prohibition or regulation of mining activity in such mineral. Under Section 1028 of the Act, it is provided that the Government of India may provide for compulsory vesting in the Central Government of exclusive rights to work those minerals. The said Act does not in any way declare the proprietary right of the State.

57. For the above-mentioned reasons, we are of the opinion that there is nothing in the law which declares that all mineral wealth sub-soil rights vest in the State, on the other hand, the ownership of sub-soil/mineral wealth should normally follow the ownership of the land, unless the owner of the land is deprived of the same by some valid process. In the instant appeals, no such deprivation is brought to our notice and therefore we hold that the appellants are the proprietors of the minerals obtaining in their lands. We make it clear that we are not making any declaration regarding their liability to pay royalty to the State as that issue stands referred to a larger Bench.

9.54. She submits that even after the KLR Act and Rules substituted the CLRR, the rights created under CLRR could not be taken away. Section 202 of the Repeal and Savings clauses of KLR saves all rights, privileges, obligations and liability accrued or incurred, this aspect has not - 96 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER been considered in Cheekere Poovaiah’s case, and there is a mistake committed by treating unalienated Jamma Bane land as government lands or government grants which is not. She submits that Cheekere Poovaiah’s case is per incurium passed in ignorantia and subsilentio arrived at a conclusion.

9.55. On the basis of the above, she submits that the above writ petitions are required to be allowed and the reliefs sought for granted.

10. Sri. Vikram Huilgol, learned Additional Advocate General submits that,

10.1. By referring to the statement of objections, and the Amended Act, he submits amendment was enacted with a view to confer certain rights including the assessment of Bane lands in the Coorg district. - 97 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER

10.2. His submission that by way of amendment, certain rights have been conferred on the Kodavas, the amendment is a beneficial legislation which seeks to confer proprietary rights on landholders of Bane Kodagu/Coorg. By way of amendment, the persons in possession of Bane land will be registered as ‘Occupants’ entitling them to full ownership of the said land, bringing about uniformity in the State’s land revenue system.

10.3. The State, being of the opinion that the Kodavas were deprived of their full ownership of Jamma Bane land, has sought to confer such full ownership, there are no rights which are being taken away by the State in respect of the said lands and on this basis he submits that no Kodava can be aggrieved by the rights which have been conferred under the Amended Act, and it is for this reason that in the last decade - 98 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER or so only a few persons like the Petitioners have challenged the amendment, in terms of Sub-section (20) of Section 2 of the KLR Act

10.4. Jamma tenure is originally granted towards military service or semi-military service; under the said tenure, the land was held on payment of half assessment and as a consideration for which military service was required to be rendered to the ruler as and when demanded. Such tenure was in respect of wetlands known as warg measuring 1.5 acres each in which rice was cultivated and the adjoining bane which forest land considered necessary grazing, leaf manure, firewood, and timber for agricultural purposes.

10.5. Bane land under the Jamma tenure was free from assessment for upto 10 acres known as ‘Privileged Bane’, while in respect of wet lands - 99 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER adjoining the Bane, the tenure holder was to pay half of the assessment. It is in that background, due to there being no requirement to make payment of assessment, Jamma tenure was considered to be a privileged tenure.

10.6. His submission is that there was no restriction as such for alienation, many of the Kodava families had obtained decrees of partition from the then Raja and or the Courts, effected partition and thereafter proceeded to sell their individual extent of land.

10.7. By referring to the publication Religion and Society Among by the Coorg –South India by M.N. Srenivas 1952 edition, he submits that if all adult members of the lineage consented to alienation, the Patedara of the family was required to make an application - 100 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER before the Revenue Authorities seeking permission to alienate the land, the seller had to pay 5% of the market value of the property as Nazarana to the State which subsequently was enhanced to 20%.

10.8. The land once transferred/alienated, the Jamma property was treated as sagu property and amenable for regular assessment. This practice having been followed, he once again reiterates that there was no prohibition for sale of Jamma Bane land. He also refers to Rules 164-167 of the CLRR and submits that the rules permitted to alienate Jamma Bane land. Rule 164 and 167 reads as under:

164. Jama, Umbli, Bhatamanya and Jaghir lands.-(1) The Assistant Commissioner may permit the alienation of of jama, jama umbli, bhatamanya and jaghir lands land also sale, gift, mortgage or release of maintenance shares of such lands in a family patta other than bhatamanya lands in favour of the members of the same family] in the following circumstances, without reference to the Chief Commissioner.- - 101 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER (a) Subletting of wet land for not more than 15 years, with a proportionate part of the attached bane, if desired; (b) Mortgage as security loans advanced by Government under the Land Improvement Loans Act, 1883, or the Agriculturists' Loans Act, 1884, as amended by Coorg Act III of 1936; (c) Mortgage as security for loans advanced by Co- operative Credit Societies for purposes for which loans might have been made under those Acts; (d) Exchange for lands held on privileged tenure or on full assessment on condition that the transaction is to the mutual advantage of the party or parties concerned, the lands exchanged are ap- proximately equal in value and the transfer is ratified by the performance of the ghatti ceremony. In such case, the tenure will change with the ownership; (e) Hypothecation for not more than 15 years, of future crops. The mortgagee may be required to give security for the payment of revenue during the currency of the mortgage. hypothecation of standing crops); (No permission required (f) The permanent alienation of bhatamanya lands to a Brahmin; (g) Sale, gift, mortgage or release of maintenance shares of jama, umbli or jaghir lands in a family patta in favour of the members of the same family, provided that all the adult male members in the family and where there are minors, the guardians, agree to the transaction. (2) If such land is leased without the permission of the Assistant Commissioner, he shall refer the case to the Chief Commissioner for orders. The Chief Commissioner may either.- (a) Resume the land and, if he thinks fit, regrant it to the occupier on sagu tenure; (b) Charge sagu rate for the term of the lease, in which case the privileged rate shall ordinarily be revived on termination of the lease; or - 102 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER (c) If the circumstances are unobjectionable, give sanction to the lease, the privileged rate being maintained. (3) If the Chief Commissioner resumes land and regrants it to the occupier under clause (2)(a) above, he may, before the regrant is made, recover land and timber-value under the ordinary provisions of the rules, or a proportion of such value as he thinks reasonable. (4) Lands held on waram tenure (i.e., sublet for short periods on terms of a division of crop between landholder and tenant) will not be deemed to be alienated within the meaning of Section 45 of the Coorg Land and Revenue Regulation.

167. [Privileged wet, bane or hithlu lands. (1) The alienator of privileged wet, ban thithlands shall at the Governments Nazarana, a sum equal to twenty per cent of the market value of the land alienated.] (2) Jaghir banes and hitlus may be cultivated free of assessment without limit, and without the permission of the Assistant Commissioner. (3) On the hitlus of Yedavanad specified in the Raja's sist accounts, and not alienated by their original grantees or their representatives, cultivation of not more than 10 acres is allowed free of assessment: Provided that the land so cultivated shall be in a compact block. (4) In other respects the provisions of Rules 136 and 139 apply to privileged banes and hitlus.

10.9. His submission that amendment was introduced taking into account the change in the societal conditions, including the factors such as breakdown of joint family system, mobility of the citizens, disbursal of members - 103 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER from ancestral land, diverse economic pursuits of the members of the family, employment and or business interests outside the district of Coorg, etc.

10.10. By referring to the Cheekere Poovaiah’s case, he submits that the Full Bench of this Court held that both holders of privileged and unprivileged Jamma Bane lands are not full owners but have limited rights, the belonging to the government. Once Jamma Bane lands are alienated, the holders of such lands are entitled to all rights and are subject to liability of full ownership including full assessment of the land. He submits that the full Bench has recognized the alienation of Jamma Bane land as common place and as such, the consequences of alienation over rights and liabilities of Jamma Bane land have been categorically laid down in the said decision. - 104 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER

10.11. On account of the Full Bench imposing certain restrictions on holders of Jamma Bane land, the State has now by amending Subsection (20) of Section 2, done away with such restrictions, introduced a system of registering the holder of Jamma Bane land as an occupant and thereby conferring full ownership on the said holder without alienation, thus by virtue of the amendment, all holders/occupants of alienated or unalienated as well as unprivileged bane lands including Jamma Bane land, are placed at par. On such registration as an occupant, even the government cannot claim any ownership in the said land and the said land would exclusively belong to the registered owner. He refers to the decision of the Hon’ble Apex Court in the case of State of Madhya Pradesh vs. Rakesh Kohli14, more particularly para nos. 14 (2012) 3 SCC 481 - 105 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER 15, 16, 17, 18, and 19 thereof which are reproduced hereunder for easy reference:

15. In our opinion, the High Court was clearly in error in declaring clause (d), Article 45 of Schedule I-A of the 1899 Act which was brought in by the M.P. 2002 Act as violative of Article 14 of the Constitution of India. It is very difficult to approve the reasoning of the High Court that the provision may pass the test of classification but it would not pass the requirement of the second limb of Article 14 ostracises the Constitution which arbitrariness, unreasonableness and irrationality. The High Court failed to keep in mind the well- defined constitutional validity of a statute enacted by Parliament or a State Legislature. consideration of limitations

16. The statute enacted by Parliament or a State Legislature cannot be declared unconstitutional lightly. The court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so glaring that the legislative provision under challenge cannot stand. Sans flagrant violation of the constitutional provisions, the law made by Parliament or a State Legislature is not declared bad.

17. This Court has repeatedly stated that legislative enactment can be struck down by court only on two grounds, namely (i) that the appropriate legislature does not have the competence to make the law, and (ii) that it does not (sic) take away or abridge any of the fundamental rights enumerated in Part III of the Constitution or any other constitutional provisions. In McDowell and Co. [(1996) 3 SCC 709] while dealing with the challenge to an enactment based on Article 14, this Court stated in para 43 of the Report as follows: (SCC pp. 737-38) “43. … A law made by Parliament or the legislature can be struck down by courts on two grounds and - 106 - NC: 2024:KHC:29383 WP No. 55534 of 2013 C/W WP No. 27143 of 2013 WP No. 27144 of 2013 AND 1 OTHER fundamental two grounds alone viz. (1) lack of legislative competence, and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground. … if an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of rights guaranteed by sub-clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or the other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom.”