Karnataka High Court
Brigadier Maletira A Devaiah (Retd.) vs State Of Karnataka on 25 July, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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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 THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 55534 OF 2013 (KLR-RES)
C/W
WRIT PETITION NO. 27143 OF 2013 (KLR-RR/SUR)
WRIT PETITION NO. 27144 OF 2013 (KLR-RR/SUR)
WRIT PETITION NO. 38470 OF 2013 (KLR-RES)
IN W.P.NO.55534/2013
BETWEEN
1. BRIGADIER MALETIRA A DEVAIAH (RETD.)
AGED ABOUT 63 YEARS
FLAT NO. 536, JALAVAYU TOWERS
NGEF LAYOUT, INDIRA NAGAR POST
Digitally signed BANGALORE-560038
by
NARAYANAPPA 2. MR CHAPPANDA K NANAIAH
LAKSHMAMMA
AGED ABOUT 68 YEARS
Location: HIGH
COURT OF KOLATHODU, BYGODU VILLAGE
KARNATAKA HATHUR POST
KODAGU-571218
3. COLONEL KALENGADA M GANAPATHY
AGED ABOUT 58 YEARS
A-102 MALAPRABHA
NATIONAL GAMES VILLAGE
KORAMANGALA
BANGALORE-560047
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WP No. 55534 of 2013
C/W WP No. 27143 of 2013
WP No. 27144 of 2013
AND 1 OTHER
4. MR BATTIYANDA A JAGADEESH
AGED 49 YEARS
NARIYANDAD VILLGE
CHEYANDANE POST
VIRAJPET
SOUTH COORG-571218
5. MR PALANGANDA T BOPANNA
AGED ABOUT 63 YEARS
144/1, THIRD CROSS, BYRASANDRA ROAD,
JAYANAGAR 1STBLOCK EAST
BANGALORE-560011
6. BALLACHANDA A NANAYYA
AGED ABOUT 73 YEARS
DECHOOR
MADIKERI-571201
7. BOLLARPANDA K BOPANNA
AGED ABOUT 29 YEARS
BEGUR VILLAGE
KARGUNDA POST
MADIKERI TALUK
KODAGU-571201
8. PATTAMADA I KALAPPA
AGED ABOUT 82 YEARS
CHARAMBANE POST
MADIKERI
KODAGU-571201
9. IMUDIANDA P CARIAPPA
AGED ABOUT 73 YEARS
SURLABE VILLAGE POST
SOMAVARPET TALUK
KODAGU-571274
10.PULLIANDA B CHINAPPA
AGED ABOUT 63 YEARS
MAGULLA VILLAGE
IMANGALA POST
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WP No. 55534 of 2013
C/W WP No. 27143 of 2013
WP No. 27144 of 2013
AND 1 OTHER
VIRAJPET
SOUTH KODAGU-571218
11.MACHIMANDA C APPACHU
AGED 66 YEARS
KAVADI VILLAGE
AMATHI POST
SOUTH KODAGU-571218
12.MACHETTIRA K MONAPPA
AGED 70 YEARS
NO.2637 (17/B) 36TH A CROSS
9THBLOCK, JAYANAGAR
BANGALORE-5600069
13.KARTHAMADA M POONACHA
AGED 60 YEARS
BIRUNANI VILLAGE & PO
VIRAJPET
S COORG-571215
14.MALACHIRA P SOMAIAH
AGED 59 YEARS
NALLOR VILLAGE
KIRGOOR POST
KODAGU-571215
15.KUTTANDA M CHENGAPPA
AGED 65 YEARS
C/O K M IYAPPA
SITA NIVAS
AMMATHI TOWN AND POST
KODAGU-571211
16.CHETTRUMADA M POONACHA
AGED 62 YEARS
NALOOR VILL
KIRGOOR PO
S KODAGU-571215
17.KAMBANDA M JAGADESH
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WP No. 55534 of 2013
C/W WP No. 27143 of 2013
WP No. 27144 of 2013
AND 1 OTHER
AGED 53 YEARS
BETOLI VILLAGE & PO
VIRAJPET
KODAGU-571215
18.ALARANDA B MADAPPA
AGED ABOUT 31 YEARS
NALADI VILL
KAKABE PO
MADIKERI
KODAGU-571218
19.KAMBEYANDA M NANJAPPA
AGED ABOUT 42 YEARS
KUNJILA VILLAGE
KAKABE PO-571212
20.ALLAYANDA S AIYAPPA
AGED ABOUT 52 YEARS
NALADI VILLA ,KAKABE PO
MADIKERI
KODAGU-571212
21.PATAMADA U AIYAPPA
AGED 28 YEARS
S/O SANNA PULIKOT PO & VILL
IYAGERI, MADIKERI
KODAGU-571212
22.BACIMANDA P CHINAPPA
AGED 36 YEARS
KAKABE PO
KUNJLA VILLAGE
MADIKERI
KODAGU-571212
23.MARCHANDA K THIMMAIAH
AGED ABOUT 56 YEARS
MARNDODA VILL & P O
YAVAKAPADI-571212
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WP No. 55534 of 2013
C/W WP No. 27143 of 2013
WP No. 27144 of 2013
AND 1 OTHER
24.BOLLAJIRA B AIYANNA
AGED ABOUT 31 YEARS
K BADAGA, FMKMC COLLEGE POST
MADIKERI-571201
25.AMMATANDA E MEDAPPA
AGED 29 YEARS
HAKATHUR VILL & POST
MADIKERI-571201
26.MACHAMADA K RAMESH
AGED ABOUT 56 YEARS
TAVALAGIRI VILLAGE
T SHETTIGERI POST
VIRAJPET
KODAGU-571218
27.MANNERA B NANJAPPA
AGED ABOUT 64 YEARS
HARIHARA VILL & POST VIRAJPET
KODAGU-571218
28.MALCHIRA C ASHOK
AGED ABOUT 52 YEARS
AIYAPPA TEMPLE ROAD
PONNAMPET
VIRAJPET
KODAGU-561218
29.KOTRANGADA N MANU SOMAIAH
AGED ABOUT 51 YEARS
KAMATAKERI VILLAGE
SRIMANGALA POST
VIRAJPET
KODAGU-561218
30.AJJAMADA A SUBRAMANI
AGED ABOUT 48 YEARS
KURCHI VILLAGE
SRIMANGALA POST
VIRAJPET
KODAGU-561218
31.BADMANDA D LAVA
AGED ABOUT 41 YEARS
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WP No. 55534 of 2013
C/W WP No. 27143 of 2013
WP No. 27144 of 2013
AND 1 OTHER
WEST NEMMALE
VIRAJPET
KODAGU-561218
32.HOTTENGADA R SOMANNA
AGED ABOUT 34 YEARS
HYSODULUR VILLAGE
HUDIKERI POST
VIRAJPET
KODAGU-561218
33.PUTHARIRA T KALAIAH
AGED 36 YEARS
CHETHALI VILLAGE AND POST
MADIKERI
KOKDAGU-561201
34.BALLEYADA G PRAKASH
AGED 32 YEARS
NAPOKULU VILL & POST
MADIKERI
KODAGU-561201
35.KORAVANDA C DEVAIAH
AGED ABOUT 30 YEARS
KADAGADAL VILL & PO
MADIKERI
KODAGU-561201
36.CHENDANDA C DEVAIAH
AGED 69 YEARS
BALGODU VILLAGE
BITANGALA POST
KODAGU DISTRICT-571218
37.THABBANGADA S CHITTIAPPA
AGED 68 YEARS
THAVALEGERI VILLAGE
T SHETTIGERI PO
VIRAJPET
SOUTH KODAGU-571218
...PETITIONERS
(BY SMT: SAROJINI MUTHANNA., ADVOCATE)
AND:
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WP No. 55534 of 2013
C/W WP No. 27143 of 2013
WP No. 27144 of 2013
AND 1 OTHER
1 . STATE OF KARNATAKA
REP BY IT SECRETARY
DEPARTMENT OF REVENUE
VIDHAN SOUDHA
BANGALORE - 1
2 . SECRETARY TO GOVERNMENT
DEPARTMENT OF PARLIAMENTARY
AFFAIRS AND LEGISLATION
VIDHAN SOUDHA
BANGALORE - 1
3 . DEPUTY COMMISSIONER
MADIKERI,
KODAGU 571 201
...RESPONDENTS
(BY SMT. SARITHA KULKARNI., HCGP A/W
SRI. VIKRAM HUILGOL., AAG)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO DECLARE THE IMPUGNED
KARNATAKA LAND REVENUE (THIRD AMENDMENT) ACT, 2011
ANNEX-A AS ULTRAVIRES THE CONSTITUTION AND THEREBY VOID
AND ISSUE A WRIT IN THE NATURE OF MANDAMUS AND ETC.
BETWEEN
SRI KOLATHANDA U RAGU MACHAIAH
AGED ABOUT 58 YEARS
SECOND RUDRAGUPPE VILLAGE
KANDANGALA POST
VIRAJPET TALUK
KODAGU 571 218
...PETITIONER
(BY SMT: SAROJINI MUTHANNA., ADVOCATE)
NC: 2024:KHC:29383
AND 1 OTHER
AND:
1 . STATE OF KARNATAKA
REP BY IT SECRETARY
DEPARTMENT OF REVENUE
VIDHAN SOUDHA
BANGALORE - 1
2 . SECRETARY TO GOVERNMENT
DEPARTMENT OF PARLIAMENTARY
AFFAIRS AND LEGISLATION
VIDHAN SOUDHA
BANGALORE - 1
3 . DEPUTY COMMISSIONER
MADIKERI,
KODAGU 571 201
...RESPONDENTS
(BY SMT. SARITHA KULKARNI., HCGP A/W
SRI. VIKRAM HUILGOL., AAG)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO DECLARE THE IMPUGNED
KARNATAKA LAND REVENUE (THIRD AMENDMENT) ACT, 2011 ANNX-
A NOTIFICATION NO. SAMYASHEE 53 SHASANA 2011, BANGALORE
DT.1.2.2013 AS ULTRAVIRES THE CONSTITUTION AND THEREBY
VOID AND ISSUE A WRIT IN THE NATURE OF MANDAMUS AND ETC.
BETWEEN
SRI KIMMUDIRA A RAVI CHENGAPPA
AGED ABOUT 50 YEARS
MADENAD VILLAGE & PO
MADIKERE TALUK
KODAGU-571201
...PETITIONER
(BY SMT: SAROJINI MUTHANNA., ADVOCATE)
NC: 2024:KHC:29383
AND 1 OTHER
AND:
1 . STATE OF KARNATAKA
REP BY IT SECRETARY
DEPARTMENT OF REVENUE
VIDHAN SOUDHA
BANGALORE - 1
2 . SECRETARY TO GOVERNMENT
DEPARTMENT OF PARLIAMENTARY
AFFAIRS AND LEGISLATION
VIDHAN SOUDHA
BANGALORE - 1
3 . DEPUTY COMMISSIONER
MADIKERI,
KODAGU 571 201
...RESPONDENTS
(BY SMT. SARITHA KULKARNI., HCGP A/W
SRI. VIKRAM HUILGOL., AAG)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO DECLARE THE IMPUGNED
KARNATAKA LAND REVENUE (THIRD AMENDMENT) ACT, 2011 ANNX-
A AS ULTRAVIRES THE CONSTITUTION AND THEREBY VOID AND
ISSUE A WRIT IN THE NATURE OF MANDAMUS AND ETC.
BETWEEN
1 . KETOLIRA P SOMANNA
AGED ABOUT 51 YEARS
YAVAKAPADI VILLAGE & PO
MADIKERI,
KODAGU-571212
2 . PANDANDA J. NARESH
AGED ABOUT 50 YEARS
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AND 1 OTHER
YAVAKAPADI VILLAGE & POST,
MADIKERI,
KODAGU-571212
3 . KALIYANDA A. AIYAPPA
AGED ABOUT 35 YEARS
KAKABE VILLAGE & P.O.
MADIKERI
KODAGU-57212
4 . MANAVATIRA SUNNY POOVAIAH
AGED ABOUT 46 YEARS
F2, CRESCENT OPULNET, 12THCROSS,
13THMAIN, BTM,2NDSTAGE,
BANGALORE-76
...PETITIONERS
(BY SMT: SAROJINI MUTHANNA., ADVOCATE)
AND:
1 . STATE OF KARNATAKA
REP BY IT SECRETARY
DEPARTMENT OF REVENUE
VIDHAN SOUDHA
BANGALORE - 1
2 . SECRETARY TO GOVERNMENT
DEPARTMENT OF PARLIAMENTARY
AFFAIRS AND LEGISLATION
VIDHAN SOUDHA
BANGALORE - 1
3 . DEPUTY COMMISSIONER
MADIKERI,
KODAGU 571 201
...RESPONDENTS
(BY SMT. SARITHA KULKARNI., HCGP A/W
SRI. VIKRAM HUILGOL., AAG)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO DECLARE THE IMPUGNED
KARNATAKA LAND REVENUE (THIRD AMENDMENT) ACT, 2011
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AND 1 OTHER
ANNEX-A AS ULTRAVIRES THE CONSTITUTION AND THEREBY VOID
AND ISSUE A WRIT IN THE NATURE OF MANDAMUS AND ETC.
THESE WRIT PETITIONS COMING ON FOR ORDERS AND
HAVING BEEN RESERVED FOR ORDERS ON 02.04.2024, THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CAV ORDER
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
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.
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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.
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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.
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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
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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.
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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:
80. All land liable to pay land revenue, unless
specially exempted.--All land, whether applied to
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
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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 to the
amendments being made, the names of all
members of the family were entered in the
revenue records in the 9th column. After the
amendment, the revenue authorities are
seeking for a partition deed, as also a 11-E
sketch demarcating the share of the person
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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 in 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
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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
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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 permission of the Assistant
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.
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;
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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
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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
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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 to their
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
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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
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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
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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 those
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 the
amendment, these lands were never taxed by
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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
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Powell, more particularly page 475 thereof,
which is reproduced hereunder for easy
reference:
6. Báné Lands.
(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 forest 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.)
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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
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Jamma Bane lands are held jointly and there
can be no partition of such unalienated Jamma
Bane lands. Her submission is that the
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 is a misnomer and
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
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refers to a Hukumnama issued by the then King
regarding one such land and submits that the
Jamma right holders paid only half the
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 free from
assessment and lands only in excess of 10
acres was assessed. Since most Bane lands had
remained uncultivated, to encourage
cultivation, 10 acres of such Bane lands used
for cultivation remained free from assessment.
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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 from
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 of
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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
ILR 1993 KAR 2959
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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.
13. Supposing unalienated Bane land is held by a
person, the sub-soil rights in which belong to
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
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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
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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 to abolish even 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
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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
the 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.
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(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
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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
lands.-Except with the permission of the Assistant
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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
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Moopil Nair v. State of Kerala2, more
particularly paragraphs 7, 8, 9 and 10 thereof
which are reproduced hereunder for easy
reference:
7. The most important question that arises for
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,
generally speaking, imposes a similar burden on
AIR 1961 SC 552 : 1960 INSC 255
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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.
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The second one does not make any income, but could
raise some crop after a disproportionately large
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
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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
Government in the matter of the selection or
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 from the
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.
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
also equally objectionable because it 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
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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
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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 the auction purchaser for the
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.
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
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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.
(1998) 6 Kant LJ 30
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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
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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
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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]
which is reproduced hereunder for easy
reference:
1963 Mys. LJ 487
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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.
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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
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landed property, whether ancestral or self acquired,
without the consent of his sons grandsons"
211. Daughters- The unmarried daughter takes
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.
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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.
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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 be undone by the 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.
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(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
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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 in the joint family property. The
restriction imposed on such members for
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
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(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
apply for membership 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
long as there is no amendment brought to the
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.
37. In our view, the High Court made a wrong approach
to the question of whether a bye-law like Bye-law 7 could
2005 (5) SCC 632 : 2005 INSC 208
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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.
39. The appellant Society was formed with the object of
providing housing to the members of the Parsi
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
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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 its 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 to that provision. Hence, the
restriction in that regard cannot be invalidated or ignored
by reference to Section 10 of the Transfer of Property
Act.
41. Section 10 of the Transfer of Property Act relieves a
transferee of immovable property from an absolute
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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 the Society. He possessed that
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.
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
of the Supreme Court in Gummanna Shetty v.
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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
AIR 1958 SC 956 : 1958 INSC 64
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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 on an intelligible differentia which
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 that the legislature
understands and correctly appreciates the needs of its
own people, that its laws are directed to problems
made manifest by experience and that its
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
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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.
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 and development of 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
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three several powers under heads (a), (b) and (c) of
that sub-clause have been conferred on the
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
organisation and development of educational
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
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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
come to clause 36. The power given to the
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
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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
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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
Kerala State; they form, however, a majority
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
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that persons who are alleged to be a minority must be
a minority in the particular region in which the
institution involved is situated)."
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
minority in the particular region in which the
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
entitled to establish and maintain educational
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
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educational institution of their choice imparting
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 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 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
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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
right to establish and maintain their own
educational institutions without any interference
or hindrance from the State. In other words, the
minorities should have the right to live, and
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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
minorities based on language or religion.
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 :
(1) The State is under a positive obligation to
give equal treatment in the matter of aid or
recognition to all educational institutions,
including those of the minorities, religious or
linguistic.
(2) The State is under a negative obligation as
regards those institutions, not to prohibit their
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establishment or to interfere with their
administration.
Clause (20) of the Bill violates neither of these
two obligations. On the other hand, it is the
contention of the minorities that must, if
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 that on their
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.
9.39. By relying on the above she submits that any
action of the State cannot negate the
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
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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
community derives spiritual satisfaction or
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
AIR 1962 SC 853
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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.
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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
AIR 1971 SC 1737 : 1971 INSC 142
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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
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and others9 , more particularly para 7, which
is reproduced hereunder for easy reference:
7. The third submission made on behalf of the
appellants is that 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 for 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 study and to regulate the
appointment and terms and conditions of teachers
1990 SCC (L&S)
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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 is
reproduced hereunder for easy reference:
AIR 1965 SC 183 : 1964 INSC 33
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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 the meetings urging upon the
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.
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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
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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
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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 this Act repeals any
enactment hitherto made or hereafter to be
made, then, unless a different intention appears,
the repeal shall not,-
(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
(e) affect any investigation, legal proceeding or
remedy in respect of any such, right, privilege,
obligation, liability, penalty, 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.
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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 the
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
1959 Mys.LJ 218
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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
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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
and 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 to the holder. Therefore, the
defendant's contention on this matter has no
force.
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
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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
1963 Mys.LJ 486
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487-489 which are reproduced hereunder for
easy reference:
"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 to contend that the suit is one for
readjustment or reallotment of the maintenance
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:
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"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 is excluded from the
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:
"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
the title to, the property of which partition is
sought;............"
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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
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Patedara and thereafter, maintenance division
holders, and now, after the 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 is
hereunder reproduced for easy reference:
"As the Coorg force was not a standing
army, it received no pay. Whilst on active duty as
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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 the
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
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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:
2013(7) SCR 863 : 2013 INSC 447
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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
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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
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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 that the
amendment was enacted with a view to confer
certain rights including the assessment of Bane
lands in the Coorg district.
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10.2. His submission is that by way of the
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 land in
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
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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
was forest land considered necessary for
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
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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
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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.-
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(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 for 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. (No permission is required for the
hypothecation of standing crops);
(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
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(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 is 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
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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 land
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.
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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.
(2012) 3 SCC 481
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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 of the Constitution which ostracises
arbitrariness, unreasonableness and irrationality.
The High Court failed to keep in mind the well-
defined limitations in consideration of the
constitutional validity of a statute enacted by
Parliament or a State Legislature.
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
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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 the fundamental 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."
18. Then dealing with the decision of this Court in
State of T.N. v. Ananthi Ammal [(1995) 1 SCC 519]
, a three-Judge Bench in McDowell and Co. [(1996)
3 SCC 709] observed in paras 43 and 44 of the
Report as under: (McDowell and Co. case [(1996) 3
SCC 709] , SCC p. 739)
"43. ... Now, coming to the decision in Ananthi
Ammal [(1995) 1 SCC 519] , we are of the opinion
that it does not lay down a different proposition. It
was an appeal from the decision of the Madras High
Court striking down the Tamil Nadu Acquisition of
Land for Harijan Welfare Schemes Act, 1978 as
violative of Articles 14, 19 and 300-A of the
Constitution. On a review of the provisions of the
Act, this Court found that it provided a procedure
which was substantially unfair to the owners of the
land as compared to the procedure prescribed by
the Land Acquisition Act, 1894, insofar as Section
11 of the Act provided for payment of compensation
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in instalments if it exceeded rupees two thousand.
After noticing the several features of the Act
including the one mentioned above, this Court
observed: (SCC p. 526, para 7)
'7. When a statute is impugned under Article 14
what the court has to decide is whether the statute
is so arbitrary or unreasonable that it must be
struck down. At best, a statute upon a similar
subject which derives its authority from another
source can be referred to, if its provisions have
been held to be reasonable or have stood the test
of time, only for the purpose of indicating what may
be said to be reasonable in the context. We proceed
to examine the provisions of the said Act upon this
basis.'
44. It is this paragraph which is strongly relied upon
by Shri Nariman. We are, however, of the opinion
that the observations in the said paragraph must be
understood in the totality of the decision. The use of
the word 'arbitrary' in para 7 was used in the sense
of being discriminatory, as the reading of the very
paragraph in its entirety discloses. The provisions of
the Tamil Nadu Act were contrasted with the
provisions of the Land Acquisition Act and ultimately
it was found that Section 11 insofar as it provided
for payment of compensation in instalments was
invalid. The ground of invalidation is clearly one of
discrimination. It must be remembered that an Act
which is discriminatory is liable to be labelled as
arbitrary. It is in this sense that the expression
'arbitrary' was used in para 7."
19. The High Court has not given any reason as to
why the provision contained in clause (d) was
arbitrary, unreasonable or irrational. The basis of
such conclusion is not discernible from the
judgment. The High Court has not held that the
provision was discriminatory. When the provision
enacted by the State Legislature has not been
found to be discriminatory, we are afraid that such
enactment could not have been struck down on the
ground that it was arbitrary or irrational.
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10.12. Relying on the above, he submits that a statute
enacted by the Central Parliament or State
legislature cannot be declared unconstitutional
unless there is a flagrant violation of the
provisions.
10.13. He relies on the decision of the Hon'ble Apex
Court in Ashoka Kumar Thakur v. Union of
India15, more particularly para 219, which is
produced hereunder for easy reference:
219. A legislation passed by Parliament can be
challenged only on constitutionally recognised
grounds. Ordinarily, grounds of attack of a legislation
is whether the legislature has legislative competence
or whether the legislation is ultra vires the provisions
of the Constitution. If any of the provisions of the
legislation violates fundamental rights or any other
provisions of the Constitution, it could certainly be a
valid ground to set aside the legislation by invoking
the power of judicial review. A legislation could also be
challenged as unreasonable if it violates the principles
of equality adumbrated in our Constitution or it
unreasonably restricts the fundamental rights under
Article 19 of the Constitution. A legislation cannot be
challenged simply on the ground of unreasonableness
because that by itself does not constitute a ground.
The validity of a constitutional amendment and the
validity of plenary legislation have to be decided purely
as questions of constitutional law. This Court in State
of Rajasthan v. Union of India [(1977) 3 SCC 592] said
: (SCC p. 660, para 149)
(2008) 6 SCC 1 : 2008 INSC 473
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"149. ... if a question brought before the court is purely
a political question not involving determination of any
legal or constitutional right or obligation, the court
would not entertain it, since the court is concerned
only with adjudication of legal rights and liabilities."
Therefore, the plea of the petitioner that the legislation
itself was intended to please a section of the
community as part of the vote catching mechanism is
not a legally acceptable plea and it is only to be
rejected.
10.14. By relying on the above, he submits that a law
passed by the legislature can only be
challenged on constitutionally recognized and
available grounds. Customs, traditions, and
unreasonableness are not grounds for such a
challenge.
10.15. He refers to the decision of the Hon'ble Apex
Court in Binoy Viswam v. Union of India16,
more particularly para 83 thereof, which is
reproduced hereunder for easy reference:
83. It is, thus, clear that in exercise of power of
judicial review, the Indian courts are invested with
powers to strike down primary legislation enacted
by Parliament or the State Legislatures. However,
while undertaking this exercise of judicial review,
the same is to be done at three levels. In the first
stage, the Court would examine as to whether
(2017) 7 SCC 59 : 2017:INSC:478
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impugned provision in a legislation is compatible
with the fundamental rights or the constitutional
provisions (substantive judicial review) or it falls
foul of the federal distribution of powers
(procedural judicial review). If it is not found to be
so, no further exercise is needed as challenge
would fail. On the other hand, if it is found that
legislature lacks competence as the subject
legislated was not within the powers assigned in
the List in Schedule VII, no further enquiry is
needed and such a law is to be declared as ultra
vires the Constitution. However, while undertaking
substantive judicial review, if it is found that the
impugned provision appears to be violative of
fundamental rights or other constitutional rights,
the Court reaches the second stage of review. At
this second phase of enquiry, the Court is
supposed to undertake the exercise as to whether
the impugned provision can still be saved by
reading it down so as to bring it in conformity with
the constitutional provisions. If that is not
achievable then the enquiry enters the third stage.
If the offending portion of the statute is severable,
it is severed and the Court strikes down the
impugned provision declaring the same as
unconstitutional.
10.16. By relying on Binoy Viswam's case he
submits that judicial review would require the
court to first examine whether the legislation is
compatible with the fundamental rights as
enshrined in the Constitution or falls foul
thereof. If it is not found to be so, no further
exercise is to be done. The only other aspect
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that could be checked is whether the legislature
lacks competence on the subject matter or not.
10.17. In the present case, there is no violation of any
fundamental right, nor can it be said that the
State legislature lacks competence. Therefore,
the challenge made is not sustainable.
10.18. He relies upon the decision of the Hon'ble Apex
Court in Jaya Thakur v. Union of India17,
more particularly para 66 and 74, which is
reproduced hereunder for easy reference:
66. For considering the issue with regard to validity of
the amendments, it will be apposite to refer to some of
the judgments of this Court delineating the scope of the
judicial review in examining the legislative functions of
the legislature.
74. It could thus be seen that the challenge to the
legislative Act would be sustainable only if it is
established that the legislature concerned had no
legislative competence to enact on the subject it has
enacted. The other ground on which the validity can be
challenged is that such an enactment is in
contravention of any of the fundamental rights
stipulated in Part III of the Constitution or any other
provision of the Constitution. Another ground as could
be culled out from the recent judgments of this Court is
that the validity of the legislative Act can be challenged
on the ground of manifest arbitrariness. However, while
2023 INSC 606
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doing so, it will have to be remembered that the
presumption is in favour of the constitutionality of a
legislative enactment.
10.19. Insofar as customs and traditions are
concerned, his submission is that the same
cannot be a ground to challenge the statute
duly enacted by a competent legislature. The
legislature has the authority to modify or
abolish customs by validly enacting laws. As an
example, he submits that there are various
customs which are not acceptable in society
today, which have also been criminalized, like
payment of dowry, child marriage, female
infanticide, etc. He relies on the decision in N.
Adithayan v. Travancore Devaswom
Board18 reported in para 9 thereof which is
reproduced hereunder for easy reference:
9. This Court, in Seshammal v. State of T.N. [(1972) 2
SCC 11 : (1972) 3 SCR 815] again reviewed the
principles underlying the protection engrafted in Articles
25 and 26 in the context of a challenge made to
2002(8) SCC 106: 2002 INSC 425
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abolition of hereditary right of Archaka, and reiterated
the position as hereunder : (SCC p. 21, paras 13-14)
"13. This Court in Sardar Syedna Taher Saifuddin
Saheb v. State of Bombay [AIR 1962 SC 853 : 1962
Supp (2) SCR 496] has summarized the position in law
as follows (pp. 531 and 532):
'The content of Articles 25 and 26 of the Constitution
came up for consideration before this Court in Commr.,
Hindu Religious Endowments v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt [AIR 1954 SC 282 : 1954
SCR 1005] , Mahant Jagannath Ramanuj Das v. State
of Orissa [AIR 1954 SC 400 : 1954 SCR 1046] ,
Venkataramana Devaru v. State of Mysore [AIR 1963
SC 1638 : (1964) 1 SCR 561] , Durgah Committee,
Ajmer v. Syed Hussain Ali [AIR 1961 SC 1402 : (1962)
1 SCR 383] and several other cases and the main
principles underlying these provisions have by these
decisions been placed beyond controversy. The first is
that the protection of these articles is not limited to
matters of doctrine or belief they extend also to acts
done in pursuance of religion and therefore contain a
guarantee for rituals and observances, ceremonies and
modes of worship which are integral parts of religion.
The second is that what constitutes an essential part of
a religion or religious practice has to be decided by the
courts with reference to the doctrine of a particular
religion and include practices which are regarded by the
community as a part of its religion.'
14. Bearing these principles in mind, we have to
approach the controversy in the present case."
10.20. By relying on the above, he submits that no
matter how longstanding or deeply rooted a
customary usage may be, the same cannot
prevail against a legislative enactment. A
custom cannot be held out as a source of law or
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law itself, contrary to the applicable law. He
refers to the decision in Animal Welfare
Board of India v. Union of India19, more
particularly para 32, which is reproduced
hereunder for easy reference:
32. In order to come to a definitive conclusion on this
question, some kind of trial on evidence would have been
necessary. It is also not Court's jurisdiction to decide if a
particular event or activity or ritual forms culture or
tradition of a community or region. But if a long-lasting
tradition goes against the law, the law courts obviously
would have to enforce the law. The learned counsel
appearing for the parties, however, have cited different
ancient texts and modern literature to justify their
respective stands. In public interest litigations, this Court
has developed the practice of arriving at a conclusion on
subjects of this nature without insisting on proper trial to
appreciate certain social or economic conditions going by
available reliable literature. In paras 53 and 73 in A.
Nagaraja [Animal Welfare Board of India v. A. Nagaraja,
(2014) 7 SCC 547: (2014) 3 SCC (Cri) 136] , there is
judicial determination about the practice being offensive
to the provisions of the Central statute. It would be trite
to repeat that provisions of a statute cannot be
overridden by a traditional or cultural event. Thus, we
accept the argument of the Petitioners that at the
relevant point of time when the decision in A. Nagaraja
[Animal Welfare Board of India v. A. Nagaraja, (2014) 7
SCC 547 : (2014) 3 SCC (Cri) 136] was delivered, the
manner in which Jallikattu was performed did breach the
aforesaid provisions of the 1960 Act and hence
conducting such sports was impermissible.
(2023) SCC Online 661 : 2023 INSC 548
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10.21. Relying on the above, he once again submits
that a legislation cannot be invalidated on the
ground that it violates customs.
10.22. He relies on the decision of the Hon'ble Apex
Court in Animal Welfare Board of India
cases (supra), referring to the above he
submits that a statute cannot be overwritten by
a traditional or cultural event, even if the same
is in conflict with the statute.
10.23. By referring to entry V of List 3 of Schedule-VII
he submits that the Parliament as well as the
State legislature is authorized to enact laws
relating to marriage, acquisition, divorce,
succession, joint family, partition, etc. which
were earlier governed by customs or personal
laws. Entry 5 of List 3 of Schedule-VII is
reproduced hereunder for easy reference:
5. Marriage and divorce; infants and minors;
adoption; wills, intestacy and succession; joint
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family and partition; all matters in respect of which
parties in judicial proceedings were immediately
before the commencement of this Constitution
subject to their personal law.
10.24. Insofar as the amendment to Section 80 of the
Act of 1964 is concerned, he submits that the
requirement of making payment of half the
assessment was on the ground that a Kodava
could be called for rendering military services at
any point of time. In the present circumstances,
there is no such forced conscription of Kodavas,
any services rendered to the military, be it any
branch is voluntary for which necessary
payments are made as per the prevalent salary
structure.
10.25. The amendment made to Section 80 is in
furtherance of the grant of full ownership by
way of amending subsection (20) of Section 2;
both of them are to be read together. Once full
ownership is granted under Subsection (20) of
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Section 2, full assessment has to be paid in
terms of Section 80. In the event of full
ownership not being sought for and the
occupant continuing to be a tenure holder the
restriction of tenure would continue to apply
requiring half assessment to be paid.
10.26. Customs and usages as also traditions cannot
be a ground for seeking exemption from
payment of tax since levy of tax is a sovereign
function of the State made in exercise of
sovereign powers in furtherance of a validly
enacted legislation. He refers to the decision in
K.B. Tea Product Pvt. Ltd. and Another vs.
Commercial Tax Officer, Siliguri and
Others20, more particularly paras 31 and 32
thereof which are reproduced hereunder for
easy reference:
(2023) SCC Online 615 : 2023 INSC 530
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31. The main submission on behalf of the
appellants is that as prior to 01.08.2001, the
appellants were availing the benefit of sales tax
exemption, the said right could not have been
taken away by virtue of amendment to Section
2(17) of the Act, 1994 on the ground of legitimate
expectation as well as by promissory estoppel.
Thus, it is the case on behalf of the appellants that
as on 01.08.2001, under the Act, 1994, when
Section 2(17) of the Act, 1994 came to be
amended, the appellants had a "vested right" and
therefore, the amendment to Section 2(17) of the
Act, 1994 shall not affect such "vested right" of
exemption from payment of sales tax, which the
appellants were availing prior to 01.08.2001.
32. However, it is required to be noted that this is
a case of claiming exemption from payment of
sales tax. As per the settled position of law, nobody
can claim the exemption as a matter of right. The
exemption is always on the fulfilment of the
conditions for availing the exemption and the same
can be withdrawn by the State. To grant the
exemption and/or to continue and/or withdraw the
exemption is always within the domain of the State
Government and it falls within the policy decision
and as per the settled position of law, unless
withdrawal is found to be so arbitrary, the Court
would be reluctant to interfere with such a policy
decision.
10.27. Relying on the above he submits that the court
has held that there can be no exemption
claimed for tax.
10.28. He submits that the Jamma tenure system is a
land tenure system and is not strictly a custom,
usage, or tradition and therefore, would not
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come within the purview of Article 29 of the
constitution. The Jamma land tenure system
not being in tune with the social context of
today, the State has carried out the necessary
amendments to include, by conferring absolute
rights and powers to the land holder. No ground
under Article 29 has been made out in regard
to the challenge in the present case.
10.29. He refers to the decision in Mohd. Hanif
Quareshi vs. State of Bihar21, more
particularly paras 12, 13 and 15 thereof which
are reproduced hereunder for easy reference:
12. Before we actually take up and deal with the
alleged infraction of the petitioners' fundamental
rights, it is necessary to dispose of a preliminary
question raised by Pandit Thakurdas Bhargava. It
will be recalled that the impugned Acts were made
by the States in discharge of the obligations laid
on them by Article 48 to endeavour to organise
agriculture and animal husbandry and in particular
to take steps for preserving and improving the
breeds and prohibiting the slaughter of certain
specified animals. These directive principles, it is
true, are not enforceable by any court of law but
nevertheless they are fundamental in the
AIR 1958 SC 731
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governance of the country and it is the duty of the
State to give effect to them. These laws having
thus been made in discharge of that fundamental
obligation imposed on the State, the fundamental
rights conferred on the citizens and others by
chapter III of the Constitution must be regarded
as subordinate to these laws. The directive
principles, says learned counsel, are equally, if not
more, fundamental and must prevail. We are
unable to accept this argument as sound. Article
13(2) expressly says that the State shall not make
any law which takes away or abridges the rights
conferred by Chapter III of our Constitution which
enshrines the fundamental rights. The directive
principles cannot over-ride this categorical
restriction imposed; on the legislative power of the
State. A harmonious interpretation has to be
placed upon the Constitution and so interpreted it
means that the State should certainly implement
the directive principles but it must do so in such a
way that its laws do not take away or abridge the
fundamental rights, for otherwise the protecting
provisions of chapter III will be "a mere rope of
sand". As this Court has said in the State of
Madras v. Smt Champakam Dorairajan [1951 SCC
351 : 1951) SCR 525, 531] , "The directive
principles of State policy have to conform to and
run as subsidiary to the Chapter on Fundamental
Rights".
13. Coming now to the arguments as to the
violation of the petitioners' fundamental rights, it
will be convenient to take up first the complaint
founded on Article 25(1). That article runs as
follows:
"Subject to public order, morality and health and
to the other provisions of this Part, all persons are
equally entitled to freedom of conscience and the
right freely to profess, practise and propagate
religion."
After referring to the provisions of clause (2)
which lays down certain exceptions which are not
material for our present purpose this Court has, in
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Ratilal Panachand Gandhi v. The State of Bombay
[(1954) SCR 1055, 1062-1063] explained the
meaning and scope of this article thus:
"Thus, subject to the restrictions which this article
imposes, every person has a fundamental right
under our Constitution not merely to entertain
such religious belief as may be approved of by his
judgment or conscience but to exhibit his belief
and ideas in such overt acts as are enjoined or
sanctioned by his religion and further to propagate
his religious views for the edification of others. It
is immaterial also whether the propagation is
made by a person in his individual capacity or on
behalf of any church or institution. The free
exercise of religion by which is meant the
performance of outward acts in pursuance of
religious belief, is, as stated above, subject to
State regulation imposed to secure order, public
health and morals of the people."
What then, we inquire, are the materials placed
before us to substantiate the claim that the
sacrifice of a cow is enjoined or sanctioned by
Islam? The materials before us are extremely
meagre and it is surprising that on a matter of this
description the allegations in the petition should
be so vague. In the Bihar Petition No. 58 of 1956
are set out the following bald allegations:
"That the petitioners further respectfully submit
that the said impugned section also violates the
fundamental rights of the petitioners guaranteed
under Article 25 of the Constitution in-as-much as
on the occasion of their Bakr Id Day, it is the
religious practice of the petitioners' community to
sacrifice a cow on the said occasion. The poor
members of the community usually sacrific one
cow for every 7 members whereas it would require
one sheep or one goat for each member which
would entail considerably more expense. As a
result of the total ban imposed by the impugned
section the petitioners would not even be allowed
to make the said sacrifice which is a practice and
custom in their religion, enjoined upon them by
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the Holy Quran, and practised by all Muslims from
time immemorial and recognised as such in India."
The allegations in the other petitions are similar.
These are met by an equally bald denial in
paragraph 21 of the affidavit in opposition. No
affidavit has been filed by any person specially
competent to expound the relevant tenets of
Islam. No reference is made in the petition to any
particular Surah of the Holy Quran which, in
terms, requires the sacrifice of a cow. All that was
placed before us during the argument were Surah
XXII, Verses 28 and 33, and Surah CVIII. What
the Holy book enjoins is that people should pray
unto the Lord and make sacrifice. We have no
affidavit before us by any Maulana explaining the
implications of those verses or throwing any light
on this problem. We, however, find it laid down in
Hamilton's translation of Hedaya Book XLIII at p.
592 that it is the duty of every free Mussulman,
arrived at the age of maturity, to offer a sacrifice
on the Yd Kirban, or festival of the sacrifice,
provided he be then possessed of Nisab and be not
a traveller. The sacrifice established for one
person is a goat and that for seven a cow or a
camel. It is therefore, optional for a Muslim to
sacrifice a goat for one person or a cow or a camel
for seven persons. It does not appear to be
obligatory that a person must sacrifice a cow. The
very fact of an option seems to run counter to the
notion of an obligatory duty. It is, however,
pointed out that a person with six other members
of his family may afford to sacrifice a cow but may
not be able to afford to sacrifice seven goats. So
there may be an economic compulsion although
there is no religious compulsion. It is also pointed
out that from time immemorial the Indian
Mussalmans have been sacrificing cows and this
practice, if not enjoined, is certainly sanctioned by
their religion and it amounts to their practice of
religion protected by Article 25. While the
petitioners claim that the sacrifice of a cow is
essential, the State denies the obligatory nature of
the religious practice. The fact, emphasised by the
respondents, cannot be disputed, namely, that
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many Mussalmans do not sacrifice a cow on the
Bakr Id Day. It is part of the known history of
India that the Moghul Emperor Babar saw the
wisdom of prohibiting the slaughter of cows as and
by way of religious sacrifice and directed his son
Humayun to follow this example. Similarly
Emperors Akbar, Jehangir, and Ahmad Shah, it is
said, prohibited cow slaughter. Nawab Hyder Ali of
Mysore made cow slaughter an offence punishable
with the cutting of the hands of the offenders.
Three of the members of the Gosamvardhan
Enquiry Committee set up by the Uttar Pradesh
Government in 1953 were Muslims and concurred
in the unanimous recommendation for total ban on
slaughter of cows. We have, however, no material
on the record before us which will enable us to
say, in the face of the foregoing facts, that the
sacrifice of a cow on that day is an obligatory
overt act for a Mussalman to exhibit his religious
belief and idea. In the premises, it is not possible
for us to uphold this claim of the petitioners.
15. The meaning, scope and effect of Article 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
Chiranjitlal Chowdhury v. The Union of India
[(1950) 1 SCR 869] and ending with the recent
case of Ramakrishna Dalmia v. Union of India [
CAs Nos. 455-457 and 657-658 of 1957, decided
on March 28, 1958] . It is now well established
that while Article 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 on an intelligible differentia
which 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
occupations or the like and what is necessary is
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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 that the legislature understands
and correctly appreciates the needs of its own
people, that its laws are directed to problems
made manifest by experience and that its
discriminations are based on adequate grounds. It
must be borne in mind that the legislature is free
to recognise degrees of harm and may confine its
restrictions to those cases where the need is
deemed 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. We, therefore, proceed to
examine the impugned Acts in the light of the
principles thus enunciated by this Court.
10.30. By referring to the above, he submits that there
is a presumption that any statute or enactment
is constitutionally valid, and it would therefore
be for the person who challenges the validity of
legislation to establish that the same is violative
of constitutional principles.
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10.31. He also refers to the decision in Noel Harper
vs. Union of India22, more particularly para
no. 141 which is reproduced hereunder for easy
reference:
141. It was vehemently urged that there is lack of
infrastructure at the designated bank and that the
bank branch is manned only by 40 odd personnel.
To buttress this plea, reference is made to the
observation made by Reserve Bank of India--that
voluminous data on foreign remittances will put an
extra financial burden on the Bank and increase its
costs including divert focus on monitoring of
suspicious transactions. This argument does not
commend to us at all. In digital banking
operations, it is not the head count dispensing
physical services that would matter, but the
effectiveness of the software is important. We are
also not impressed by the plea that for
organisations located in remote parts of the
country, there would be impediments and for that
reason, Section 7 violates test of fairness and
reasonableness. In any case, Respondent 3 (SBI)
has on affidavit explained as to the extent of
measures taken for ensuring efficient servicing of
FCRA accounts of all the registered
associations/account-holders. Respondent 3 has
also assured that if need arises, suitable corrective
measures including to upgrade the
facilities/services would be taken at its end.
Suffice it to observe that the argument under
consideration cannot be the basis to doubt the
constitutional validity of the provisions in the form
of Section 12(1-A) and Section 17(1), as amended
vide the Amendment Act. Needless to underscore
that Respondent 3 has stated on affidavit before
this Court that FCRA accounts opened in its
designated branch can be operated online on real-
(2022) SCC Online 434
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time basis without the need for physical presence
of the account-holder or its officials.
10.32. By relying on the above, he submits that mere
contention that the implementation of a statute
would give rise to a difficulty would not be a
valid ground to challenge the same.
10.33. He relies on the Affidavit of the Under Secretary
to the Revenue Department, Government of
Karnataka, which has been filed stating that in
terms of Cheekere Poovaiah's case, the
holders of unalienated Jamma Bane lands both
privileged and unprivileged were not entitled to
the following rights which a fully accessed
alienated bane lands would be entitled to:
10.34. The right to use and occupy the land was
conditional on the payment of the amount due
on account of land revenue for the same;
i. Right to transfer of occupancy rights;
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ii. Right to pass on occupancy rights to legal
heirs.
10.35. The Under Secretary has categorically stated in
the affidavit that by virtue of the impugned
amendment the holders of privileged and
unprivileged Jamma Bane lands are placed at
par with the occupants of unalienated fully
assessed lands, thereby being entitled to the
aforesaid three rights and also entitled to claim
all incidents of occupancy of the said lands. It is
stated that a holder could apply to the Revenue
Inspector and Tahsildar making an application
on that behalf, the Tahsildar would forward a
report to the Department of Survey to ascertain
possession over the concerned property and
verification of the family tree.
10.36. Sri. Vikram Huilgol, on instructions, submits
that only a verification of the family tree and
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possession is made and that there is no
requirement for a partition deed to be executed
and or that an 11E sketch be prepared as
regards the area falling to the share of the
applicant seeking registration of the partition
deed. His submission is that if a family tree is
provided along with the details of the
occupants, possession entry would be made in
column No.9 of the RTC. He categorically
submits that there is no requirement of a
partition deed to be executed nor is the State
forcing any Kodava family to execute a partition
deed for the purpose of registration of their
name into the revenue records. His submission
is placed on record.
10.37. Based on all the above, he submits that the
above petitions are to be dismissed.
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11. Reply affidavit has been filed by the Petitioners
reiterating some of the arguments which have been
advanced and it is reiterated that the revenue
Officers are seeking for partition deed and a 11-E
sketch for making entries into revenue records.
12. Heard Smt. Sarojini Muthanna, learned counsel for
the Petitioners and Sri. Vikram Huilgol, learned
Additional Advocate General along with Smt. Saritha
Kulkarni, learned HCGP for respondents. Perused
papers.
13. The points that would arise for consideration are:
1. Whether an amendment to the Statute can
be questioned on the basis of the
amendment being violative of customs,
usages and traditions?
2. Whether the Jamma Bane lands being
incapable of alienation is a customary
practice, or is it a concomitant
requirement of a land revenue system?
3. Whether by way of the impugned
amendment to sub-section (20) of Section
2 and Section 80 of the Karnataka Land
Revenue Act, 1964, there is a violation of
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any customary practice, usage or tradition
of the Kodava race?
4. Whether by way of introducing a new
enactment or by way of amendment to an
already existing enactment, can the
custom, usage or tradition be overridden,
prohibited or cancelled?
5. Is the amendment made to Subsection
(20) of Section 2 valid or not?
6. Is the amendment to Section 80 of the
Karnataka Land Revenue Act valid or not?
7. What is the effect of the impugned
amendment?
8. What Order?
14. I answer the above points as under
15. Answer to Point No.1: Whether an amendment
to the Statute can be questioned on the basis of
the amendment being violative of customs,
usages and traditions?
15.1. The submission of Smt. Sarojini Muthanna, the
learned counsel for the Petitioners is that the
impugned amendments which have been
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carried out are violative of the customs, usage,
and traditions of the Kodava community/race.
15.2. The submission is that the concept of partition
is not recognised amongst the persons
belonging to the Kodava race, if partition is
effected, then, the whole concept of a joint
family of Kodavas or the Kodava joint family
would be destroyed. The entire land and the
properties of a Kodava family are vested in the
entire family. There is no distribution of the
properties amongst the family members. In
view of the amendment, the revenue officers
are requesting and/or demanding that a
partition deed be provided for the purpose of
entry of names of the members of the family as
also a sketch showing the entitlement of a
member of the family, thus, essentially, forcing
a partition in a Kodava family by metes and
bounds. The submission is that since this
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demand is made for Jamma Bane land, the
partition deed would virtually apply to all the
properties including the Jamma Bane land
thereby constraining the persons belonging to
the Kodava race to violate the customs and
traditions of the Kodavas.
15.3. In this regard, she submitted that by reference
to various sources which have been reproduced
hereinabove viz., the Coorg Land Revenue
Regulations, 1899 ['CLRR' for short] and
authoritative books viz., Major General Rob.
Cole, A Manual of Coorg Civil Law, G. Richter's
Gazetteer of Coorg, Kodavas-a Pictorial by B.D.
Ganapathy, Karnataka State Kodagu District
Gazette' by Suryakanth Kamath, Land Systems
of British India' by B.H. Baden Powell amongst
others.
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15.4. That Kodavas are a patrilineal clan having a
family name, which is also called the house
name. The house name relates to an 'Aiyne
Mane' which is the dwelling house of the family.
All the members of the family reside together in
the 'Aiyne Mane'. They being engaged in
agricultural activities; they own lands called
'Warg land' (wet land). The 'Warg lands' are
lands which are attached to a 'Bane'(dry land).
The said 'Bane' is further classified as 'Jamma
Bane' and 'UmbliBane. All these lands, the
dwelling house belonging to the joint family is
owned, possessed and enjoyed by all members
of the joint family.
15.5. The property earlier stood in the name of the
elder of the family known as 'Patedara' with the
names of the other members of the family also
entered into the revenue records, thus,
evidencing right, title and interest of not only
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the 'Patedara' but also of all the joint family
members.
15.6. The Bane land though not initially belonging to
the family, was allotted to the family by the
Raja by issuing a 'Sisht' which was so issued
for the services to be rendered by the Kodavas
in the military campaigns of the Rajas. The
Kodavas were part of the reserve army and
could be called upon by the Raja to render
military service as regards which the Kodavas
were entitled to make use of the 'Bane land'
without paying any tax as if they were the
owners thereof.
15.7. With the passage of time and the advent of
coffee plantation, the 'Jamma Bane' land which
was to be used for grazing, manuring and
certain incidental activities pertaining to
agriculture where on an application was
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permitted to be made use for activities other
than the above viz., cultivation of coffee, once
such permission was granted. The 'Jamma
Bane' land was treated as alienated Jamma
Bane and the land which was not so permitted
continued to be unalienated 'Jamma Bane' land,
which continued to be attached to the Warg
land. These Jamma Bane lands whether
alienated or unalienated continued to be in the
possession, occupation and enjoyment of the
Kodava family and as such, formed the property
of the Kodava family.
15.8. In that background, it is contended that the
entries having been made of all the members of
the family in the revenue records, the property
belonging to the entire family with each
member of the family being a division holder,
by way of the amendment, a partition being
forced upon the family, there would be a
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requirement to divide the property by metes
and bounds for entry of the name of the
members of the family into the revenue records
since the very concept of a division holder could
be done away with, which confers rights on the
entire family.
15.9. The submission of Sri. Vikram Huilgol, learned
Additional Advocate General on behalf of the
State is that there was no ownership of the
property vested with the Kodavas insofar as
Jamma Bane land is concerned whether
alienated or unalienated. By way of the
amendment, the Kodavas or the joint family is
granted full ownership right as that of an
occupant and as such, a beneficial amendment
which acts in favour of the Kodavas. In terms of
the amendment, there is no requirement of any
partition being effected and/or a survey sketch
being produced delineating the property falling
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to the share of each of the family members for
entry of their name in the revenue records. His
further submission is that there is no mandate
requiring partition of the property belonging to
the Kodava race. The State has not sought to
interfere with any of the customs, practices or
tradition of the Kodavas. They can either
continue to be joint family holders or partition
as per their choice. There is no compulsion for a
partition by virtue of the impugned amendment.
15.10.It is in that background of the above, I have to
answer the points raised.
15.11.It is not in dispute that the Kodavas are a
military race and had provided military services
to the Raja for a time immemorial. It is also not
in dispute that the Raja could call upon the
Kodavas to render military services and during
the time that such military services was not
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rendered, there was no obligation on part of the
Raja to make payment of any salary to the
Kodavas. It is in that background that the land
was granted to the Kodavas by the Raja in the
form of Jamma Bane land by issuance of a
Sanad permitting the Kodavas to make use of
the land along with their Warg land for the
purposes of grazing, manuring, etc. Thus, these
lands were essentially not one which belonged
to Kodavas but belonging to the Raja who by
way of a Sanad granted a licence to the
Kodavas to make use of the land appurtenant
to their own land as regards which no tax was
liable to be paid by the Kodavas. The usage of
the land as also an exemption from making
payment of any tax was on account of the
military services required to be rendered by the
Kodavas to the Raja as and when called upon.
The Jamma Bane land though enured to the
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benefit of the Kodava family and could be used,
there is no absolute ownership confirmed on the
Kodavas by such Sanad or license to make use
of the land.
15.12.There can be no dispute in respect of various
authoritative texts cited by Smt. Sarojini
Muthanna. All those texts only indicate that the
Jamma tenure or the bane land are part of the
land of Kodavas. The issue in the present
matter is not as regards the Jamma tenure or
bane land or the entitlement of the Kodava
family to use the Jamma land appurtenant to
their land. That right is well recognised and the
Kodava family has been held to be entitled to
make use of the Jamma land appurtenant to
the Warg land. There is also no dispute as
regards the payment of land revenue or
concession in payment of land revenue since
that is not affected by the amendment per se.
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15.13.A Full Bench of this Court in Cheekere
Poovaiah's case while dealing with sub-soil
rights, more particularly mines and minerals,
came to a conclusion that those mines and
minerals would belong to the Government and
further came to a conclusion that there is no
ownership right of the holder in respect of
Jamma Bane land either privileged or
unprivileged. An exception is however made as
regards alienated bane land, in that, if the said
land had been alienated under the orders of the
authorities passed under Rule 136 of the CLRR,
the holder of such alienated bane would
become entitled to cultivate the bane land as a
separate holding on payment of full assessment
being entitled to full rights. In the event of the
land not being alienated, then whether
privileged or unprivileged, it is only a right of
usage which is vested with the occupant.
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15.14.The above being the finding of the Full Bench, it
is clear that all sub-soil rights as also right to
trees etc., vested with the Government and the
occupant had only the right for grazing,
manuring, collection of firewood and/or
incidental agricultural activities carried out in
respect of his/their Warg lands. Insofar as
alienated Jamma Bane land, the persons would
be a full owner. By way of the amendment, it is
seen that even as regards privileged or
unprivileged Jamma Bane land, occupancy
rights are recognised in terms of the
amendment. As a consequence thereof, full
assessment is required to be paid in respect of
this Jamma Bane land, including unalienated
Jamma Bane land as regards which occupancy
rights have been recognised under sub-section
(20) of Section 2.
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15.15.Insofar as partition or division of the property is
concerned, that is a matter which lies in the
sole discretion of the family members. If the
family members wish to continue as a joint
family for all time to come, there is no embargo
on doing so. However, the Kodavas are also
governed by the Mitakshara law of succession.
Each member of the family would be entitled to
assert his/her right in respect of the property of
the family and there cannot be an embargo
imposed by the State on the members of the
family not to partition and/or divide the
property among themselves.
15.16.The amendment as aforesaid only confers
complete ownership rights of the property
which is beneficial in nature. The aspect of
whether the family members want to carry out
a partition or not is left to the wisdom and sole
discretion of the family members.
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15.17.The contention of Ms. Sarojini Muthanna,
learned counsel for the Petitioners is that the
impugned amendment which has been now
effected is contrary to the customary practices
of the Kodavas. Hence, on that ground she
seeks for a declaration that the amendment is
unconstitutional. For this purpose, she refers to
Article 13 of the Constitution and contends that
in terms of Clause (a) of sub-clause (3) of
Article 13 of the Constitution, law would include
custom or usage and therefore, no amendment
could be made to a Statute contrary to the
custom or usage. Article 13 of the Constitution
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 Part, shall,
to the extent of such inconsistency, be void.
(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.
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(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 a
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.]
15.18.What Article 13 of the Constitution prescribes is
that law cannot be inconsistent with or in
derogation of the fundamental rights with
reference to the law introduced prior to coming
into force of the Constitution. Sub-Clause (1) of
Article 13 of the Constitution deals with all the
laws in force prior to coming into force of the
Constitution and mandates that any such law in
force in the territory of India inconsistent with
the provisions of Part III of the Constitution
shall to the extent of inconsistency be void.
Therefore, Sub-Article (1) of Article 13 of the
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Constitution would apply only in respect of laws
already in force and them being inconsistent
with Part III. Needless to say, sub-clause (1) of
Article 13 of the Constitution would not apply to
the present facts and situation. Sub-Clause (2)
of Article 13 of the Constitution mandates that
the State shall not make any law which takes
away or abridges the rights conferred by Part
III and any law made in contravention of sub-
clause (2) of the Constitution shall to the extent
of the contravention, be void, that is to say,
that any new law brought about by the State
shall not be in contravention of Part III and if
there is any violation of Part-III by any law
brought into force, to that extent, the new law
would be void.
15.19.Sub-Clause (3) is virtually a definition clause
and distinguishes between law and law
enforced. Clause (a) of sub-clause (3) of Article
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13 of the Constitution indicates that law would
include any Ordinance, Order, Bye-law, Rule,
Regulation, Notification, Custom or Usage
having the force of law. Clause (b) of sub-
clause (3) of Article 13 of the Constitution deals
with law in force and includes law passed by the
Legislature or other competent authorities in
the territory of India before the commencement
of the Constitution not previously repealed and
as such, deals with laws in force as on the date
on which the Constitution came into force.
Hence, Clause (b) of sub-clause (3) of Article 13
of the Constitution would also not be applicable
to the present facts.
15.20.Insofar as Clause (a) of sub-clause (3) of Article
13 of the Constitution as mentioned above, it is
virtually a definition clause defining what law
would mean and does not indicate that a
custom or usage cannot be overridden or
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substituted by a law. Reading of Clause (a) of
sub-clause (3) with sub-clause (1) and sub-
clause (2) of Article 13 of the Constitution
would only indicate that any law shall not be
inconsistent with or in derogation to Part III of
the Constitution. Clause (a) of sub-clause (3) of
Article 13 of the Constitution does not in any
manner save a custom or usage from any
statutory intervention by the Parliament or the
Legislature. It only mandates that no custom or
usage shall be inconsistent with or in derogation
of Part III of the Constitution.
15.21.As submitted by Shri. Vikram Huilgol, learned
Additional Advocate General, a law enacted by
the Central Parliament or State Legislature
cannot be declared unconstitutional unless it is
in flagrant violation of the provision of the
Constitution. For that purpose, there are
several tests that have been laid down in
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numerous decisions of the Hon'ble Apex Court.
There is no decision that has been placed on
record by the Petitioner to indicate that
substitution or cancellation of a custom or
usage would be a ground to challenge the
constitutional validity of a legislation that is
contrary to the custom or usage of a particular
class of persons.
15.22.As held by the Hon'ble Apex Court in Rakesh
Kohli's case (supra) and Ashok Kumar
Thakur's case (supra), as to what is required
for a statute to be declared as unconstitutional,
and the following are to be fulfilled:
i) It is violative of Article 14 of the
Constitution;
ii) Violative of the constitutional provision;
iii) The appropriate legislature did not have
the competence to make the law;
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iv) That it violates in particular the
fundamental rights enumerated in Part III
of the Constitution.
v) If the statute is so arbitrary or
unreasonable that it must be struck down.
vi) The term 'arbitrary' to be read as
'discriminatory'
vii) It unreasonably restricts the fundamental
rights under Article 19 of the Constitution
etc.,
15.23.As held by the Hon'ble Apex Court in Binoy
Viswam's case (supra), there is a three step
process required to be resorted to by a Court of
Law:
1) Examine as to whether the impugned
provision in a legislation is compatible with
the fundamental rights or the constitutional
provisions or it falls foul of the federal
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distribution of powers? If it is not found to
be so, no further exercise is needed to be
done and the challenge would fail. If it is
found that the Legislature lacks
competence, no further enquiry is needed
and such a law is to be declared as ultra
vires the Constitution.
2) If the impugned provision is violative of the
fundamental rights or other constitutional
rights;
3) If the first phase of enquiry is against the
statute, then in the second phase, the
Court would have to undertake the exercise
to see if the impugned provision can be
saved by reading it down so as to bring it in
conformity with the provision of the
Constitution, if possible to do so.
4) If the second stage is not possible, then in
that event if the offending portion of the
statute is severable, the court ought
to/may strike down such a severed portion,
if not, strike down the entire impugned
provision as unconstitutional.
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15.24.In the present case, it is not the case of the
Petitioner that the State Legislature does not
have the power to amend the Karnataka Land
Revenue Act. The ground of challenge as
indicated above is only as to whether, by way of
the amendment, the customs, traditions and
usage are infringed. As referred to supra and as
detailed out in the aforesaid decisions of the
Hon'ble Apex Court, such a ground is not
available.
15.25.The Hon'ble Apex Court in the Animal Welfare
Board of India's case (supra) has
categorically come to a conclusion that a
provision or a statute cannot be overridden by a
traditional or cultural event. In that matter, the
Hon'ble Apex Court was ceased of the challenge
to a ban on Jallikattu and came to a conclusion
that the practice of Jallikattu was violative of
the Prevention of Cruelty to Animals Act, 1960.
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This case would be an illustration of a
legislation overriding a tradition or a practice
resorted to by the general populace
15.26.There are several such enactments which have
been brought into force to get rid of social evils.
Some of the prominent ones that could be
referred to are the Dowry Prohibition Act, Child
Marriage Act, Hindu Succession Amendment Act
thereto, POCSO Act, etc. All these Legislations
in some manner or the other have been brought
into force by the Parliament and/or by the State
legislature to prohibit or in some cases
criminalise certain customs and traditions that
have been followed. It is up to the legislature in
its wisdom to decide on which custom, practice
or tradition is acceptable, being in accordance
with the requirement of the Constitution and
which are in violation of the fundamental rights
enshrined under the Constitution.
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15.27.If any such social, custom, practice or tradition
is violative of the fundamental rights enshrined
under the Constitution in terms of Clause (a) of
Sub-Clause (3) of Article 13 by itself, those
customs, traditions and usages would be void.
However, the Parliament or the State
Legislature can also bring about laws to
criminalise such practices and/or prohibit such
practices. Such action on part of the Centre or
the State cannot be questioned only on the
ground that the legislation or the Statute brings
about a situation to negate a custom or
tradition.
15.28.The contention that the CLRR and KLRA
recognise, provide and protect the customary
laws of Kodavas is again misconceived. The
submission made by Ms. Sarojini Muthanna,
learned counsel for the Petitioners that there is
a prohibition for alienation of the Jamma Bane
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land which forms part of the ancestral land on
account of customs and traditions and is
protected under CLRR and the subsequent KLRA
is not borne out by records.
15.29.A perusal of Section 45 of the CLRR would
indicate that even under the CLRR, there is a
possibility of permission from the Assistant
Commissioner for alienation of the lands and it
is only when such permission from the Assistant
Commissioner is not obtained that summary
eviction in case of alienation without such
permission is made can be resorted to. Thus,
Section 45 of the CLRR lays down the
consequences of alienation without permission
of the Assistant Commissioner and does not in
any manner impose any restriction or
prohibition on alienation.
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15.30.Section 100 of the CLRR also speaks of transfer
with the previous sanction of the prescribed
authority and does not impose a prohibition on
transfer but makes it only conditional upon
permission being granted.
15.31.Though the CLRR is recognized by the KLRA and
CLRR itself did not recognize any prohibition,
the question of the KLRA recognizing any
prohibition to support customary laws of the
Kodavas would not arise.
15.32.Article 245 of the Constitution of India which
has been pressed into service to challenge the
constitutional validity of the amendment would
also not in my considered opinion apply since
the same provides only for powers of the
Parliament to make laws for the whole or any
part of the territory of India and the legislature
of a State to make laws for whole or any part of
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the State. The State Legislature having made
the impugned laws which have an effect within
the State of Karnataka cannot be said to fall
foul of Article 245 of the Constitution.
15.33.The decision in Kerala Education Bill, 1957
was one rendered in a situation relating to
equality under Article 14 of the Constitution and
are relatable to Article 29 and 30 of the
Constitution which relates to cultural and
educational rights.
15.34.Though the Kodavas could be considered to be
a minority not only in the State of Karnataka
but across the country, the said provisions
could be attracted only if there was any
violation of the fundamental rights of the
Kodavas made on account of the amendment.
Except to contend that there is a violation of
the customary laws, there is no other further
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ground made out as regards violation of Article
28, 29 and 30 of the Constitution to make them
applicable to hold the amendment to be in
violation of the Constitution.
15.35.The decision in Sardar Syedna's case also in
my considered opinion would not be applicable
for the reason that, the decision was relating to
a practice to propagate a religion and its
religious practices wherein the Head of the
Muslim Bohra community was conferred certain
rights and powers to excommunicate persons of
the community who did not adhere to their
directions. This was held to be an essential
practice in order to maintain the discipline of
the Muslim Bohra community and in that
background the practice was upheld by the
Hon'ble Apex Court. There is no such question
involved in the present matter. Non-alienation
of land vested with the family is not one which
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is required for the purposes of propagating the
Kodava race and neither are the Kodavas
recognised as a separate religion in contrast to
Hinduism, further, they are also governed by
the Mitakshara School of Hindu Law. As
observed supra, the various treatises and
authoritative texts which have been referred to
by Ms. Sarojini Muthanna, learned counsel for
the Petitioners themselves envisage the
possibility of alienation albeit with prior
permission/sanction.
15.36.The reference to Article 51A(f) of the
Constitution to contend that there is a duty cast
on the State to preserve the rich heritage and
composite culture cannot be disputed.
Preservation of rich heritage and composite
culture would require that such a practice has
been recognised and continues to be in force
even as of today. In this case, the practice
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relates to the non-alienation of a joint family
property. As referred to Supra, at the cost of
reputation, it is once again reiterated that there
was never any prohibition for alienation so long
as prior sanction is obtained and this being in
the nature of a condition attached to a land
tenure cannot be contended to be an essential
customary, custom or practice of the Kodava
race. Thus, Article 51A(f) of the Constitution
also would not be applicable to the present
case.
15.37.The submission of Smt. Sarojini Muthanna,
learned counsel for the Petitioners, is that the
customary law is recognised under the CLRR
and as such, the partition of the property and
subsequent alienation, if any, made by the
person to whom the said portion of the property
falls to the share would be violative of Section
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45 of the CLRR, since the property is required
to be enjoyed by all members of the family,
cannot also be countenanced inasmuch as by
the recognition of full occupancy rights in terms
of sub-section (20) of Section 2, the entire
family would become the owner of the property.
The ownership is still not vested with individual
members of the family in terms of the
amendment.
15.38.Insofar as the further contention of Smt.
Sarojini Muthanna that without entry of the
name of each of the family members, no loan
could be obtained since no guarantees could be
issued by the family members is again
misconstrued. As afore observed, the property
continuing to be in the name of the family, the
names of the members of the family would also
be added to the revenue records. Their name
being present in the revenue records, would
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always enable them to apply for and obtain
necessary loans from the concerned banks.
15.39.Insofar as there being a prohibition for sale of
the property outside the patrilineal clan, the
pre-emption rights which are available under
Section 4 of the Partition Act, 1893 could be
exercised by the members of the patrilineal
clan.
15.40.Her submission that until now taxes were
exempted on the property and by way of the
impugned amendment, taxes are required to
be paid cannot be a ground to challenge such
statutory amendment. A fiscal aspect of any of
act or otherwise cannot be a ground for
challenge. Even otherwise, the exemption from
making payment of tax which was granted to
the Kodavas on account of the military service
expected to be rendered by them to the then
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Raja and subsequently to the British, there is
no such compulsion today for the Kodavas to
render military service. Such service today is
voluntary and not a forced service as was under
the Raja.
15.41.It would, however, be required for me to
recognise and take cognisance of the glorious
service rendered by members of the Kodava
race to the armed forces. I would also have to
commend the members of the Kodava race for
having voluntarily rendered such glorious
service and protecting the motherland. That
does not, however, mean that members of the
Kodava race would be forced to serve in the
military, in today's time and age, under the
Constitution of India, there is no concept of
forced conscription recognised in India.
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15.42.The invocation made of Article 13 of the
Constitution of India to contend that there is a
violation of customary rights, since customs or
usage are deemed to be law under Clause
(3)(a) of Article 13 of the Constitution of India
would also not enure to the benefit of the
Petitioners since the reference to Clause (3)(a)
of Article 13 of Constitution of India relates to
Clause (1) of Article 13 of Constitution of India
which speaks of all laws in force in the territory
of India and mandates that any law in force
which is inconsistent with the Provisions of Part-
III shall to that extent of inconsistency be void.
Thus, in terms of Clause (1) of Article 13 of the
Constitution of India, any law inconsistent,
including customary law or usage would be
rendered void. Clause 3(a) would not amount to
a restriction or embargo on the State to enact
any law contrary to the customs and usage.
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15.43.The decision in Jagdev Singh Sidhanti's case
was in relation to elections and malpractice
where the candidate had extorted for votes to
be granted to him in order to protect a
particular language. The same would also have
no bearing in the present facts and
circumstances.
15.44.A perusal of Rule 164 of the CLRR would make
it clear that there is in fact no prohibition for
alienation of the Jamma land. The only
requirement was that the person seeking for
sale was required to approach the Assistant
Commissioner. The Assistant Commissioner
could grant permission for sale, gift, mortgage
or release as contained therein. Thus, it is clear
that even under CLRR, there is a possibility of
alienation recognised and therefore it cannot be
now contended that the customs and traditions
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prohibit the alienation of the property belonging
to the joint family.
15.45.The decision in C.A. Nanjappa's case is relied
upon to contend that in terms of section 145 of
the CLRR, the prohibition for partition is not one
which can be a ground for challenge of the
amendment to sub-section (20) of Section 2 as
also the amendment to Section 80. By virtue of
the amendment to sub-section (20) of Section
2, full occupancy rights/full ownership is
granted. By virtue of amendment to Section 80,
the assessment/tax is collected. Neither of
these two amendments would explicitly or
implicitly permit partition. The aspect of
partition, if sought for by any member of the
family, the same could be contested on the
basis of Section 145 of the CLRR or any other
grounds which may be available to the parties.
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The said ground which has been contended to
be the natural consequences of the amendment
being made, cannot be accepted, more so, in
view of the submission made by the learned
Additional Advocate General, and in view of the
affidavit filed by the Under Secretary, Revenue
Department that there would be no requirement
for producing a partition deed or a survey
sketch/11-E sketch for the purpose of entry of a
member of a family in Column No.9 of the RTC.
Thus, without any partition being effected, the
names of any family member which has been
missed out or which is required to be added on
account of birth etc, and any name of a
member required to be deleted on account of
death etc, can be so done without a partition
being effected. Thus, I am of the considered
opinion that the impugned amendments do not
in any manner offend Section 195 of the CLRR
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and there is no mandatory requirement for
partition to be effected amongst the Kodava
family, post the impugned amendment.
15.46.Insofar as customs and traditions are
concerned, the submission made by the learned
Additional Advocate General that even during
times of the Raja and/or the British rule, a
partition could be effected as also properties
sold to a third party is sought to be
substantiated by reference to a Book 'Religion
and Society Among by the Coorg -South
India by M.N. Sreenivas' wherein it is stated
that the seller could pay 5% of the market
value of the property as Nazarana to the State,
for such sale, which was subsequently
enhanced to 20%. In this regard, even Rule
164 of the CLRR empowered the Assistant
Commissioner to permit the alienation of the
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jamma, jamma umbli, bhatamanya and jahghir
lands by way of sale, gift, mortgage or release
of maintenance shares etc. Thus, in my
considered opinion, it cannot now be contended
that there was always an embargo for a
member of a Kodava family to alienate his
property to a third party and/or for partition to
be effected amongst the members of the
Kodava family. Thus, in my opinion, there is no
custom, usage or tradition, which can be said to
be in existence prohibiting the alienation or
partition of the property of a Kodava family.
15.47.The decision of the Hon'ble Apex Court in
Adithayan's case and Animal Welfare Board
of India's case would in clear and categorically
terms establish that it is a legislative enactment
which is required to be given effect to, even if,
there are customary practices which have been
prevalent and accepted for a long period of
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time. It is the legislature which is supreme and
by way of the legislative enactment where a
particular custom is overridden, prohibited or
regulated, the same would not be a ground for
challenge unless the same is without legislative
competence or is violative of the fundamental
rights guaranteed under Part-III of the
Constitution.
15.48.In the present case, there being no doubt as
regards the competence of the legislature, more
so, when in terms of Entry 5 of List 3 of
Schedule-VII, it is the State which can enact
laws relating to marriage, divorce, succession,
joint family partition, land laws etc.
15.49.The origin of Jamma Bane land being on
account of issuance of a Sanad by the Raja
allotting or making available certain land for the
use of a member of the Kodava race or a
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Kodava family. The land granted by the Raja
being the wet land-warg land, there is only a
right granted to such Kodava family or a person
belonging to the Kodava race to make use of
the appurtenant land for the purpose of
grazing, manuring and any other agricultural
activities. This land being called Jamma Bane
land went with the Warg land and formed a kind
of land tenure inasmuch as on account of the
right to use this land, the member of Kodava
race and/or Kodava family was required to
render military service when called upon, and in
respect of this land, either tax was not required
to be paid or a concession in tax was made
available. Subsequently, the Jamma Bane land
was classified as privileged and unprivileged.
The privileged land being capable of being used
for the purpose of growing coffee, which arose
with the advent of coffee plantation in the
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country, and more particularly in that region.
The aspect of privileged and unprivileged land
came about on account of changed
circumstances and as a modification of the land
tenure of Jamma Bane. Subsequently, some of
the lands were permitted to be alienated as
regards which full assessment was required to
be paid and the lands which were not alienated
continued to be unalienated entitled to
concession in assessment. This classification of
alienated land is also a further modification of
the land tenure. The Kodava family having
established a Kaimada or a temple for ancestors
is not a part of the land tenure, nor is
demarcation of Thutengalas part of the land
tenure. This is only a manner of utilisation of
the bane land for such purposes which are non-
agricultural in nature, since those lands were
not fit for agricultural use, mainly for the reason
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that during those times, use of lands for
agriculture would only be from wet lands and
not dry lands.
15.50.Thus, I answer Point No.1 by holding that
neither a Statute nor an amendment to the
Statute can be questioned on the basis of the
Statute or amendment thereto being violative
of customs, usage or traditions. Any challenge
to a statute or amendment to a statue can only
be made on the basis of the available grounds
as indicated above, and as laid down by the
Hon'ble Apex Court in several decisions.
16. Answer to Point No.2: Whether the Jamma
Bane lands being incapable of alienation is a
customary practice, or is it a concomitant
requirement of a land revenue system?
16.1. Ms. Sarojini Muthanna, learned counsel for the
Petitioners has sought to contend that the
Jamma Bane lands are incapable of alienation,
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there is a prohibition on alienation. If the said
land is permitted to be alienated, the entire
edifice of the family system of Kodavas would
be destroyed. This aspect and contention would
have to be examined from the law and
documents on record; this has also, to some
extent, been considered by me in answer to
Point no.1.
16.2. A perusal of the Karnataka State Kodagu
District Gazette by Suryakanth Kamath relied
upon by the Petitioner would indicate that there
was a recommendation made not to permit the
Coorgis to sell their property, since that may
result in impoverished Coorgis to dispose off the
land to Europeans or natives of Mysore from
whom a service of the like rendered by Coorgis
could not be expected. That is to say that the
permission was not denied on the basis of any
customary practice but only on the ground of
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keeping the Kodavas sub-servient and render
military services which they were rendering to
the British by granting an exemption of
payment of taxes. The lands as could be seen
were classified as Sagu land and Jamma land,
which classification is made for the purpose of
land tenure and imposition of land revenue.
16.3. As could be seen from the reference made by
the learned counsel for the Petitioner herself
relating to the publication by B.H. Baden Powell
in 'Land Systems of British India'. The
reference made to Jamma land is as Jamma
tenure and reference made to Sagu is as
regards Sagu tenure. The Jamma Bane land
was not held to belong to the tenure holder but
belonged to the Government. The bane land
being appurtenant to the Jamma land or the
Sagu land were used for incidental purposes.
Subsequently, with the introduction of coffee,
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when the land was sought to be cleared for
growing coffee i.e., when the lands were being
disposed to coffee planters and it is in that
background, that certain Rules were introduced
permitting the Jamma Bane land to be used for
coffee cultivation provided no large trees were
removed.
16.4. Section 189 of Rob Cole's Manual deals with
what constitutes a division and prescribes that a
member is not to be considered as divided on
the simple execution of a deed but he must
have taken a share and lived apart.
16.5. Thus, even as per Rob Cole's manual, a division
of family is permitted. In terms of Section 192
of Rob Cole's Manual, if a division has taken
place, ceremonies are performed by the divided
member in his own residence. This again
indicates that division was permissible.
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16.6. From the above, it is seen that the classification
of the land is on the basis of the land tenure
system and not on the basis of customs or
usage of Kodavas as sought to be contended by
Ms. Sarojini Muthanna, learned counsel for the
Petitioners.
16.7. In that view of the matter, the concomitance of
the land tenure system would equally apply to
Jamma Bane land and not only the customs and
traditions.
16.8. Thus, I answer Point No.2 by holding that non-
alienation of the Jamma Bane land and the said
land going along with the Jamma land is a
concomitance of the land revenue system and
not based on customary practice.
17. Answer to Point No.3: Whether by way of the
impugned amendment to sub-section (20) of
Section 2 and Section 80 of the Karnataka Land
Revenue Act, 1964, there is a violation of any
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customary practice, usage or tradition of the
Kodava race?
above, having come to a conclusion that there
is no such essential customary practice
requiring that alienation of a joint family
property is prohibited and having come to a
conclusion that the permission which is required
to be obtained under the earlier CLRR and now
the KLRR by a member of a Kodava family to
alienate a property is a condition of land tenure,
I am of the considered opinion that by way of
the amendment to sub-section (20) of Section 2
and Section 80 of the Karnataka Land Revenue
Act, there is no violation of any customary
practice, usage or tradition of the Kodava race.
17.2. The decision in Kerala Education Bill, 1957
was one relating to minorities and the definition
thereof in terms of Article 25, 26, 29 and 30 of
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the Constitution of India with reference to
educational institutions and the fees collected
therein. The said decision would not in my
considered opinion be applicable to the present
case. The customs and traditions which were
considered in the Kerala Education Bill matter
was for the purpose of determination of who is
a minority and not otherwise.
17.3. The decision in Virendra Nath Gupta's case
also dealt with a linguistic minority institution
on the basis of the Article 29 and 30 of the
Constitution of India. The same would also have
no bearing in the present matter for the same
reason mentioned above.
17.4. The concept of privileged and unprivileged
tenure is also explained hereinabove. Privileged
is when no assessment is required to be paid
and unprivileged is one where assessment is
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required to be paid for usage by the Kodavas.
By way of the amendment, the distinction
between privileged and unprivileged has also
been removed. The Jamma land which had
been alienated earlier continues to be under the
ownership of the respective purchaser who if a
Kodava or not, would have obtained necessary
rights of ownership.
17.5. By way of the amendment, even the
unalienated land would now vest in the family
as full ownership. Thus, I am of the considered
opinion that this is a benefit which is provided
to the members of the Kodava race and by
virtue of amendment to sub-section (20) of
Section 2, full ownership right as an 'Occupant'
is granted to the members of the Kodava race
and/or the family owning the Jamma Bane land,
privileged or unprivileged. The amendment to
sub-section (20) of Section 2 being a beneficial
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amendment conferring full ownership rights
cannot be said to be in violation of the customs,
traditions and/or practices.
17.6. The customs and practices that Smt. Sarojini
Muthanna, learned counsel for the Petitioners
has contended is as regards to common usage
of the land belonging to the family, common
ownership of the said land and there being an
embargo on partitions being effected among the
family members.
17.7. The amendment per se does not in any manner
deviate from the above rights. The amendment
does not require members of a Kodava family
to execute a partition deed and/or produce a
survey sketch alienating the partition among
the family members. Insofar as this contention
is concerned, an affidavit has been filed by the
Under Secretary to the Revenue Department
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stating that there would be no requirement to
produce a partition deed or a survey sketch/11-
E sketch for entry of the name of a family
member in the revenue records so long as the
family tree and/or documents evidencing that
the person is belonging to that family is
produced, the name of such person would be
entered in the revenue records. This would
answer the apprehension on part of the
Petitioners inasmuch as the Under Secretary,
Revenue Department, has categorically stated
on oath that no partition deed is required nor is
a survey sketch/11-E sketch required to be
produced.
17.8. It is only on the basis of requirement to
produce the same that it has been contended
that the customs, traditions and practices of the
Kodavas are violated by the amendment. If
there is no requirement to produce partition
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deed and/or survey sketch/11-E sketch, the
question of any customs or traditions being
violated would not arise.
17.9. As submitted by Shri. Vikram Huilgol, learned
Additional Advocate General and as per the
affidavit of the Under Secretary, Revenue
Department, there being no requirement of a
partition to be effected and/or survey sketch or
a 11-E Sketch being required to be furnished by
way of the amendment, the property continues
to be that of the joint family , and there would
be no division of the property by virtue of the
amendment simplicitor. The choice of
continuing to be part of the joint family and for
the property to be continued as a joint family
property is that of the joint family members.
The amendment per se does not require any
such partition. Thus, there would be no
violation of customary law or Section 45 of
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CLRR which is also now part of the Land
Revenue Act.
17.10. Insofar as the submission that in the joint
family properties, there are Kaimadas [temple
for ancestors] and Thutengalas [family
graveyard] which are to be enjoyed by all the
members of the family. Firstly, as afore
observed, there would be no partition by way of
the amendment. Secondly, even if the members
of the family wish to partition, suitable
arrangements could be made insofar as
Kaimada and Thutengala are concerned. That
being a private arrangement between the
private parties, the amendment cannot be
questioned in that regard. The amendment does
not force anyone to partition the properties,
more so the Kaimada or the Thutengala. In the
event of a partition suit being filed all
contentions as are available can be raised.
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17.11.The exemption granted from making payment
of taxes being primarily on the requirement of
persons of the Kodava race to render military
service to the Raja whenever called upon and
now there being no such requirement, the claim
for non-payment of tax would not survive, nor
can it be countenanced in fact or law. By virtue
of the amendment under sub-section (20) of
Section 2, full ownership of the property is
granted to the family, whereas under the Raja
and/or the British, it was only a tenure in terms
of the 'Jamma' tenure of bane lands which had
been granted.
17.12.Now with full ownership of the land, an
obligation for making full payment of taxes on
the said land now fully owned by the family.
This obligation cannot, in my considered
opinion, be sought to be negated by relying on
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the historical aspect of forced military service
by members of the Kodava race.
17.13.The distinction sought to be made out by her in
respect of privileged and unprivileged tenure
would also no longer survive for consideration
in view of the full ownership of land being
granted by way of the amendment to sub-
section (20) of Section 2.
17.14.The aspect of privileged or unprivileged tenure
would have been necessary for consideration so
long as the land was under a tenure and not
under the full ownership. The tenure land could
be alienated or unalienated. Alienated land
could be used for growing coffee and
unalienated land would continue to be used for
activities incidental to agriculture.
17.15.Even though the alienated Jamma land less
than 10 acres was free from assessment and
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only land in excess of 10 acres would be
assessed and tax payable, I am of the
considered opinion that even the alienated
Jamma land which continued to be owned by
the Government and not by the family and now
the land being owned by the family, such
distinction of alienated or unalienated,
privileged or unprivileged lands would not enure
to the benefit of the Petitioners.
17.16.Insofar as the submission that partition would
be a resultant of the rights conferred on
individual members of the family which would
lead to the breaking down of the Kodava family
system and their customs or commercialization
which would have an impact on the
environmentally sensitive region, I am of the
considered opinion that the use of the land
would be regulated by the appropriate statute
applicable thereto and any 'permission',
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'sanctions' or 'no objection' which are required
for the utilisation of the land for commercial
purposes, which may have an impact on the
environment, would have to be adhered to and
complied with by any and all members of the
family.
17.17.The decision in Zoroastrian Cooperative
Housing Societies' case is invoked to contend
that a restriction amongst the Kodava race by
custom, in respect of alienation of the property
except within the patrilineal clan would be valid
and that the same is taken away by
amendment to sub-section (20) of Section 2
would also not be sustainable. Inasmuch as the
said decision was rendered in the background of
the fact that all the qualifications of a person to
become a member of the society, the bye-laws
mandating that it is only a member of
Zoroastrian faith who could become the
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member of the cooperative society and further
impose restriction on alienation of the property
to a person otherwise than belonging to the
Zoroastrian faith. In that decision, persons had
become members of the society voluntarily,
accepted the terms and conditions and bye-laws
of the society and therefore, the Hon'ble Apex
Court came to a conclusion that all members
are bound by the bye-laws of the society.
17.18.In the present case, though there may be a
custom or a usage among the Kodava race not
to partition the property, the same is a personal
property right of the members of the Kodava
race who may choose to partition or not, the
joint family properties. The decision in
Zoroastrian Cooperative Housing Societies'
case would therefore not be applicable to the
present facts and circumstances.
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17.19.The reference to DAV College Jalandhar's
case for ascertaining linguistic minorities would
also be of no assistance or relevance in the
present matter. The amendment to sub-section
(20) of Section 2 is not one based on linguistic
minority, but as regards the nature of the
Jamma Bane Land in Coorg, to either be owned
by persons of the Kodava race or by persons
belonging to any other community.
17.20.The impugned amendment is not made with
reference to a person belonging to the Kodava
race or otherwise and as such, whether the
members of the Kodava race would constitute a
separate linguistic minority or not would not be
relevant for the purpose of consideration in this
matter.
17.21.Article 51(A) of Part-IV is reproduced hereunder
for easy reference:-
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51A. Fundamental duties.--It shall be the duty of
every citizen of India--
(a) to abide by the Constitution and respect its ideals
and institutions, the National Flag and the National
Anthem;
(b) to cherish and follow the noble ideals which
inspired our national struggle for freedom;
(c) to uphold and protect the sovereignty, unity and
integrity of India;
(d) to defend the country and render national service
when called upon to do so;
(e) to promote harmony and the spirit of common
brotherhood amongst all the people of India
transcending religious, linguistic and regional or
sectional diversities; to renounce practices derogatory
to the dignity of women;
(f) to value and preserve the rich heritage of our
composite culture;
(g) to protect and improve the natural environment
including forests, lakes, rivers and wild life, and to
have compassion for living creatures;
(h) to develop the scientific temper, humanism and
the spirit of inquiry and reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of
individual and collective activity so that the nation
constantly rises to higher levels of endeavour and
achievement;
(k) who is a parent or guardian to provide
opportunities for education to his child or, as the case
may be, ward between the age of six and fourteen
years.
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17.22.The reference to Article 51(A) of the
Constitution of India being a duty cast on the
State to preserve the heritage of our composite
culture and the invocation thereof to contend
that the family traditions of the Kodava race,
which is the culture of the Kodavas, in order to
maintain their heritage, would also have no
bearing in the present matter, since by way of
the amendment, there is no violation of any
culture or heritage. By way of the amendment,
only the ownership rights are provided to the
family.
17.23.It is for the members of the family to protect
and preserve the rich heritage and culture of
the family and the Kodava race. Merely by way
of the impugned amendment, it cannot be
stated that the State has violated its duty to
preserve the rich heritage of the composite
culture of the Kodava race.
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17.24.A submission is made that Jamma Bane lands
are not government lands. It never belonged to
the Raja or the British and the British did not
hand it over to the Republic of India and as
such, it is contended that the land would
continue to be a private property and on that
basis it is contended by relying upon Article 294
(b) of the Constitution of India that there is a
duty cast upon the State to preserve these
private properties with regards to the customs
and traditions followed. Article 294 (b) of the
Constitution of India only speaks of the rights,
liabilities and obligations of the Government of
the domain of India and the Government of
each Governors' Province to be that of the
Government of India and the Government of
each corresponding States.
17.25.There is no such obligation contractual or
otherwise, requiring the State to continue the
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tenure of the land as Jamma Bane land so as to
invoke Article 294 (b) of the Constitution of
India. Similarly, Section 6 of the Karnataka
General Clauses Act, 1989, which deals with
repeal of any enactment, would also not be
applicable since there is no repeal which has
occurred. It is an amendment made in order to
provide full right, title and interest in the
property to members of the Kodava joint
family.
17.26.The decision in Sardar Syedna Taher
Saifuddin Saheb's case was one rendered in a
situation where excommunication was
permitted both as a punishment as also for
preservation of religious denomination and it is
in that background that it is held that the same
is protected under Article 25 and 26 of the
Constitution of India and the same cannot be
questioned. That was a challenge made
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specifically as regards power to excommunicate
for self-preservation of religious denomination.
In the present case, it cannot be said that the
amendment to sub-section (20) of Section 2
would not preserve any religious denomination
and/or bring about a division in the
denomination which are already adverted to
above. Hence, the decision in Sardar Syedna
Taher Saifuddin Saheb's case would also not
be applicable to the present facts.
17.27.In view of the above discussion, it is clear that
by way of the amendment what is achieved is,
to grant full ownership of the land to the
Kodava family including all division holders i.e.,
all members of the family in a land which earlier
had stood vested in the Government and the
Government was the owner thereof. This
conferment of full ownership in my considered
opinion cannot be said to be in violation of any
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custom, tradition or usage of the Kodava
community.
17.28.As such, I answer point No.3 by holding that by
way of the impugned amendment to sub-
section (20) of Section 2 and amendment to
Section 80 of KLRA, 1964, there is no violation
of any customary practice, usage or tradition of
the Kodava race.
18. Answer to Point No.4: Whether by way of
introducing a new enactment or by way of
amendment to an already existing enactment,
can the custom, usage or tradition be
overridden, prohibited or cancelled?
18.1. The contention of Ms. Sarojini Muthanna,
learned counsel for the Petitioners in regard to
this aspect is that a law cannot override any
custom, usage or tradition. The answer to this
has already been provided by Hon'ble Apex
Court Adithayan's case and Animal Welfare
Board of India's case, which would clearly and
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categorically indicate that it is the Legislative
enactment, which would have to be given effect
to and that the same would override any
customary practice, which had been prevalent
and accepted for a long period of time. It is the
Legislature, which is supreme and by way of
legislative enactment any particular custom can
be overridden, prohibited or regulated. Such
overriding of a custom will not be a ground to
challenge the legislation.
18.2. The grounds of challenge of a legislation have
been detailed hereinabove and laid down by the
Hon'ble Apex Court in many cases. An alleged
iolation of custom is not a valid ground for such
a challenge..
18.3. The above is also countenanced by several
other enactments which have been enacted to
get over certain social ills like dowry, child
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marriage, etc. Though these were customs and
traditions followed by different communities, by
introduction of the Dowry Prohibition Act as also
by introducing Section 498A into the erstwhile
Indian Penal Code and now Sections 85 & 86 of
the Bharatiya Nyaya Sanhita (for short, 'BNS'),
the demand for dowry not only has been
prohibited but has also been made a criminal
offence.
18.4. Section 494 of the erstwhile IPC and now
Section 82 of the BNS, criminalises bigamy.
Bigamy also was a custom practiced by many.
18.5. By introducing the Prohibition of Child Marriage
Act, 2006, marriage of a child/minor has been
prohibited and criminalised.
18.6. Prior to the introduction of said enactment,
child marriage was very much in vogue. Thus,
all these enactments have been brought about
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to bring about a social change, to overcome the
social ills and to ostracize and/or criminalise
certain practices which are contrary to the
rights guaranteed under Part III of the
Constitution of India.
18.7. These enactments though have done away with
certain customs, usage or traditions by
overriding, prohibiting or cancelling them have
been held to be valid.
18.8. I answer Point No.4 by holding that by way of
introducing a new enactment or by way of
amendment to an already existing enactment,
certain customs, usage or traditions as
prevalent then, can be overridden, prohibited or
cancelled by such a new enactment or
amendment to an existing enactment.
19. Answer to Point No.5: Is the amendment made
to Subsection (20) of Section 2 valid or not?
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19.1. Certain arguments have been advanced
contending that this Court in Cheekere
Poovaiah's case has not considered the
customary rights and religious practices of the
Kodavas and as such, the said judgment is not
correct. The judgement in Cheekere
Poovaiah's case having been rendered by the
Full Bench of this Court, the said judgment
would be binding not only on this Bench but
also on the Petitioners. The said judgement
having attained finality and no challenge having
been made thereto.
19.2. Though in Cheekere Poovaiah's case, mineral
rights and sub-soil rights were considered, the
basic consideration of the matter was on
account of the privileged and unprivileged
Jamma Bane land as also the alienated and
unalienated Jamma Bane land. The aspect of
sub-soil rights and mineral rights was
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considered in respect to payment of royalty to
the Government. The rights of the Government
as regards privileged and unprivileged Jamma
Bane land as also alienated and unalienated
Jamma Bane lands having been held to be
vested with the State and the said properties
having been held to be government land, it
cannot now be contended by the Petitioners
that the said judgment would only apply insofar
as mineral rights or subsoil rights.
19.3. In my considered opinion the said judgment
would apply to all Jamma Bane lands as
classified above. Be that as it may, as
submitted by the learned Additional Advocate
General, it is in order to provide full rights in
the property which in Cheekere Poovaiah's
case was held to be not available to the holder
of Jamma Bane land, that the present
amendment has been brought about. Thus,
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even on this ground, the entire family becoming
the owner of the land, the question of any of
the rights of the member of a Kodava family
being impinged upon does not arise.
19.4. As observed above, in answer to the earlier
questions, as also in answer to the present
question, by way of amendment of sub-section
(20) of Section 2, what is sought to be achieved
is grant of full ownership of land to the family
and the members of the family. In effect, by
way of amendment of sub-section (20) of
Section 2, ownership rights are conferred on
the occupant. This conferment of ownership
rights is over and above the existing rights. It
does not in any manner take away any right
vested in the individual or the family. There is
no disadvantage that the said amendment puts
upon the family or any individual member of
the family. The amendment to sub-section (20)
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of Section 2 does not in any manner violate or
impinge upon the rights guaranteed under
Chapter 3 of the Constitution. In fact, by way of
such amendment, full ownership rights have
been granted.
19.5. There is equality brought about between the
Kodavas and other occupants of the land
inasmuch as the Kodavas could not have filed
an application for regularization or grant of
occupancy rights as regards Jamma Bane land
prior to the impugned amendment. Whereas
persons residing in other parts of the State
could make application for grant of occupancy
rights as regards the land which they were in
occupation of in an authorized or unauthorized
manner.
19.6. Thus, I answer Point No.5 by holding that the
amendment of sub-section (20) of Section 2 is
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not violative of any law. Therefore, it has to be
held to be valid and in accordance with law.
20. Answer to Point No.6: Is the amendment to
Section 80 of the Karnataka Land Revenue Act
valid or not?
20.1. The contention Ms. Sarojini Muthanna, learned
counsel for the Petitioners is that in view of the
amendment to Section 80, the Kodavas would
now have to make payment of taxes/land
revenue/land assessment as regards the
Jamma Bane land which they were not paying
earlier on account of the tenure of the said land
having recognized as a custom and as such,
requiring the payment of taxes would be to the
detriment of the Kodavas.
20.2. The amendment to Section 80 of the KLRA is in
furtherance of the amendment made to sub-
section (20) of Section 2 of the KLRA. By way of
amendment to sub-section (20) of Section 2,
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full ownership rights have been provided for. It
is only prior to the grant of full ownership that
the land was not fully assessed to tax. That is
to say, by recognizing a concomitant of the land
tenure, whereunder the land owner namely a
Kodava was required to make payment of half
the assessment in view of the military services
required to be offered to the king. The condition
of recognition of the land tenure and the
condition for being eligible for reduced
assessment was the requirement of the Kodava
to provide military services to the King. As
regards the land over which full ownership was
not granted by the King to the Kodava or his
family.
20.3. By way of amendment to sub-section (20) of
Section 2 of the KLRA, firstly, full ownership
rights have been granted to a Kodava family as
regards the land owned by them and they
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would be entitled to the usage of the said land
as a full owner.
20.4. Secondly, the earlier condition for rendering
military services is no longer in existence, since
now, the recruitment made to any of the armed
forces is on the basis of examination and
selection process and not merely on the basis of
holding the land as a Jamma Bane.
20.5. The decision relied upon in this regard in the
Kunnathat Thatehunni Moopil Nair's case
would also not enure to the benefit of the
Petitioners. It was a case where the tax
imposed was held to be violative of Article
19(1)(F) of the Constitution of India since the
quantum of tax imposed was many times over
the income from the forest land. That case was
a challenge as regards the quantum and
imposition of unreasonable restriction, which
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could amount to being confiscatory in the event
of default in making payment of taxes. That
would not be the case here. The assessment of
the land being on an agricultural basis, it is not
the contention of any of the Petitioners that the
said assessment is more than the income that
could be earned.
20.6. By relying on Threesiamma Jacob's case, it is
contended that the Hon'ble Apex Court has held
that there is nothing in law which declares that
all mineral wealth sub-soil rights vest in the
State and further, 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.
Relying on the same, it is submitted that
Threesiamma Jacob's case impliedly
overruled Cheekere Poovaiah's case insofar
as the mineral rights are concerned. Even if
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that may be, without expressing any opinion on
the same, even if Cheekere Poovaiah's
judgement were said to be overruled, the same
would not enure to the benefit of the Petitioners
insofar as the challenge to the amendment to
sub-section (20) of Section 2 and amendment
to Section 80 are concerned, since neither of
these two amendments relate to any mineral or
subsoil rights.
20.7. Even if the judgement in Threesiamma
Jacob's case can be said to have overruled the
observations made by the Full Bench of this
Court in Cheekere Poovaiah's case as regards
to subsoil and mineral rights, the basis of
Cheekere Poovaiah's case is not taken away
inasmuch as the finding in Cheekere
Poovaiah's case that Jamma Bane land is
government land and not individual personal
property. That finding continues to hold the
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field and has not been distinguished or
overruled in Threesiamma Jacob's case.
20.8. By relying upon the decision in Rakesh Kohli's
case, the learned Additional Advocate General
has contended that it is only if a statute or
amendment has been enacted without
legislative competence or is in violation of any
of the fundamental rights guaranteed under
Part III of the Constitution of India that
enactment can be struck down.
20.9. Even as regards a challenge under Article 14 of
the Constitution of India when made, what the
Court would have to see is whether the Act or
amendment is violative of the equality clause or
equal protection clause enshrined therein. His
submission is that an enactment cannot be
struck down by only stating that it is arbitrary
or unreasonable. The same would have to be
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established to be violative of the fundamental
rights guaranteed under Part-III of the
Constitution and only then, such a statute could
be quashed and, on that basis, it is contended
that the Petitioners have not been able to
establish and/or satisfy this requirement.
20.10.The said decision of the Hon'ble Apex Court
would answer the contention raised by Smt.
Sarojini Muthanna, learned counsel for the
Petitioners contending that the amendment is
arbitrary and unreasonable on the ground that
by way of the amendment a member of the
Kodava family is now required to partition the
property in order to make an entry of his name
in the revenue records. Therefore, it is
contended that it is unreasonable. The first
aspect of requirement of partition and/or 11-E
sketch having been dealt with hereinabove, if
that aspect is eschewed, then the entire
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arguments of Smt. Sarojini Muthanna insofar as
the impugned amendment being arbitrary or
unreasonable, would not stand.
20.11.It is clear from the reading of the judgements
of the Hon'ble Apex Court in Rakesh Kohli's
case, Ashoka Kumar Thakur's case, Binoy
Viswam's case and Jaya Thakur's case that
the scope of challenge to an act of legislation is
limited. It is required for the person challenging
an enactment or amendment passed by the
legislature to establish that the said legislature
did not have the competency and/or that the
legislation is violative of Part-III of the
Constitution of India. If a legislature had a
competence to pass an enactment or an
amendment, then, there would be no further
requirement. It is only thereafter, that the
aspect of whether there is a violation of rights
guaranteed under Part-III of the Constitution of
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India can be made. In the present case, there is
no challenge to the competence of the
legislature, but the challenge is only on account
of the amendment allegedly violating
fundamental rights, customs and tradition.
20.12.In view of my above reasoning, I answer Point
No.6 by holding that the amendment to Section
80 of the KLRA is not violative of any
constitutional provisions or any law and
therefore is a valid law.
21. Answer to Point No.7: What is the effect of the
impugned amendment?
21.1. The contention of Ms. Sarojini Muthanna,
learned counsel for the Petitioners is that in
view of the impugned amendment, firstly, there
will be a breakup in the joint family system.
Secondly, the properties will be alienated.
Thirdly, as a consequence of both the above,
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the customs and traditions of the Kodava race
would be violated.
21.2. The decision in B. Mohammad's case, relied
upon in this regard, would also not enure to the
benefit of the Petitioners, since by way of the
amendment no right is taken away, but a right
of full ownership is conferred upon the Kodava
family as regards the lands owned by them. The
corresponding obligation being payment of
assessment/taxes. The ownership right now
conferred retrospectively, but the obligation on
payment of taxes/assessment being
prospective, i.e., from the date on which the
amendment came into operation , the decision
in B. Mohammad's case which relates to the
retrospective amendment would not apply.
21.3. The decision in Kongera T. Appanna's case
was one relating to the determination of cost of
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timber wherein it was held that the timber on
Jamma Bane land belongs to the Government
and ratable distribution of the cost of timber
was ascertained in the said matter. By virtue of
the amendment, once the Kodava family is
granted full ownership of the land. The
ownership of the timber, standing trees, etc.,
on the said land will also vest with the said
family/individual. That being so, the
Government will not have any right, title or
interest in the timbers, standing trees or
otherwise on the said property requiring the
calculations. Once the right of the family or
occupant are registered pursuant to sub-section
(20) of Section 2, the entire process of
calculation of timbers, trees or otherwise
situated in the Jamma Bane land, permission
for their sale and appropriation of the amounts
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thereof would no longer be required, unless any
other statutory provision mandates so.
21.4. One other effect of the amendment would be
that with the full ownership of the land being
vested with the family, the Government would
not have any right, title or interest over the
said property.
21.5. All the trees situated thereon and produced
thereof would vest with the owner of the land.
The question of the Government claiming any
seigniorage or the like, as regards the trees
grown on the said land would not arise. Any
permission required by the family or its
members for cutting any specific trees would
necessarily have to be obtained and the
procedure and formalities related thereto be
adhered to. However, the State cannot claim
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any ownership of anything grown on the said
land.
21.6. In view of my answers to the earlier points,
having come to a conclusion that the entire
family will be registered as an occupant of the
Jamma Bane land, I am of the considered
opinion that by way of the amendment, there
will be no requirement of partition to be
effected among the members of the family. This
is also borne out by the affidavit filed by the
Under Secretary to the Revenue Department,
Government of Karnataka, wherein it is
categorically stated that for the purpose of
registration of the name of a family member in
the RTCs, there would be no requirement for a
partition to be effected and/or for 11-E sketch
to be obtained as regards the area falling to the
share of each individual family members.
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21.7. By way of amendment, what is now only
achieved is that the entire family would be
registered as the occupant of the land including
Jamma Bane land. The names of all the
members of the family would also be entered
into in Column No.9 thereby recognizing the
rights of the entire family in respect of the
property owned by the family including Jamma
Bane land.
21.8. Whether they partition or not, whether they
continue as a single united family or not and in
the event of a partition being effected, which
portion of the property would come to which
member of the family and the rights of each
member of the family to offer prayers to their
ancestors as also to be buried/cremated in the
family property are not matters which are
covered by the amendment. These are aspects
which are best left to the wisdom of the family
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and its members. If all the members want to
continue to be joint, the family could continue as
a joint family property exercising ownership rights
over the entire property. If any member of the
family were to want to separate, the same would
have to be so done in accordance with an
agreement between the parties or in accordance
with law since the Kodavas are governed by the
Mitakshara branch of the Hindu law and as such,
would be governed by the Hindu Succession Act,
1956 as amended from time to time.
21.9. Ultimately the effect of the impugned amendment
is to confer full ownership rights over the Jamma
Bane land and does not in any manner compel
any member of the family to partition/separate
himself or herself from the family and/or for the
property to be divided by metes and bounds.
22. Answer to Point No.8: What order?
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22.1. In view of my answer to all the points above, I do
not find the amendment to be violative of any
law, let alone the Constitution of India. The
grounds of challenge made to the said
amendment, therefore, fail. The Petition stands
dismissed.
22.2. The concerned District Administration/District
Revenue Authority is hereby directed to issue a
circular giving clarity and stating in detail the due
process for entering the names of the joint family
land owners into the revenue records vis-à-vis
the amendment to Sub-section 20 of Section 2 of
the Karnataka Land Revenue Act, 1964. The same
to be complied with, within 30 days from the date
of receipt of this order.
Sd/-
JUDGE
PRS
