TaxTMI 
TaxTMI 
1976 (1) TMI 191
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....le, cutting and collecting leaves, timber and other forest produce for agricultural and domestic purposes of the Kumkidar. These privileges are regulated by Rules framed under Section 26 of the Madras Forest Act (hereafter referred to as the Rules). They are not alienable except with the land to which they are attached. No trees of the kind declared 'reserved' trees (excepting of Mango and Tamarind) can be cut by the Wargdar from the Kumki land without a permit issued by the Forest Officer or other person authorised by the Collector. Under these Rules, the Collector may on occurrence of abuse or violation of the rules, by order in writing, for reasons to be recorded, suspend or withdraw all or any of the privileges of 'Kumki' from individuals or from whole villages. If an offence is committed in a 'Kumki' land by reason of any negligence or default on the part of Kumkidar, the Collector may, after recording reasons, impose a penalty by way of fine, not exceeding Rs. 200/-, on the Kumkidar. Rule 5(a) provides, inter alia, that the Kumkidar. has a preferential claim for assignment of the Kumki land subject to predominant public interest. 3. Respondent No. 1....
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....ement of February 6* 1965, the Deputy Commissioner informed Respondent 1 that his request could not be acceded to. 7. Pursuant to the said condition, the Forest Department on October 18, 1965, issued a notice for the sale of the right to cut and remove trees from the kumki land in question. At the auction sale held on November 4, 1965, Respondent 2 herein purchased the tree growth for Rs. 22,000/-. 8. Thereafter, on November 22, 1965, Respondent 1 filed a petition under Article 226 of the Constitution in the High Court challenging the validity of the condition attached to the order of assignment in respect of trees in the kumki lands, contending that the Kumkidar's right to take leaves, trees and timber from the kumki lands in question is 'property' within the contemplation of Articles 19 and 31 of the Constitution and this right could not be abridged, curtailed or taken away by an executive fiat. Since the Government Order dated March 17, 1964, was not a 'law' within the contemplation of Articles 19 and 31, the condition attached to the order of assignment dated May 12, 1964, was violative of these Articles and as such was void and liable to be quashed. ....
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....ers of the Revenue Board under which the kumki rights are claimed. Consequently, the Government could by a subsequent order supersede or modify its earlier order. (iv) In any case, the order dated March 17, 1964, does not take away or abridge any property rights of Kumkidar. It only decides by a general order what are to be considered the requirements of kumkidar for agricultural or domestic purposes within the meaning of Rule 7(A) of the Rules. (v) (a) Even if the condition restricting the right of the kumkidar to the trees on the assigned land was invalid, the High Court should have quashed the entire order of assignment and remitted the case to the Tehsildar for reconsideration. The High Court was not right in quashing only the condition, and in maintaining the order of assignment sans condition. This condition was an integral part of the order of assignment which could be maintained or quashed as a whole. (v) (b) The High Court's order quashing only the condition and not the entire order of assignment, was not in accord with the relief prayed for in the writ petition. Reference has been made to the decision of this Court in R. M. D. Chamarbaugwall....
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.... to Fasli 1276 (corresponding to 1886 A. D.) is kumki land. Kumkidar is a person who is entitled to enjoy the kumki privileges. A kumkidar is necessarily either the registered holder, walawargdar or mul-genidar of the land to which the kumki privilege is attached. 17. Sub-para (4) of the Order says: "A kumkidar's privileges in the land are grazing his cattle, cutting and collecting leaves, timber and other forest produce for his agricultural and domestic purposes". 18. Sub-para (6) further makes it clear that within kumki limits, a kumkidar can temporarily cultivate dry crops on Government waste land. If he so cultivates land within kumki limits, he is not liable to pay any Hakkal. 19. Para. 10 lays down that any registered holder or walawargdar or mulgenidar who is a kumkidar of the land applied for should be given preference over all other applicants to the extent of those privileges. 20. Para. 14 provides that when kumki land is assigned on Darkhast to a kumkidar the value of the trees (except sandalwood) which stand on the land will be foregone and no compensation for sandalwood need be paid to persons having kumki privileges. 21. The High Court has held that....
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....t been able to get a copy of those Rules from anywhere. We are therefore unable to hold that the finding of the High Court, that the assignment of kumki land is not governed by the Land Grant Rules, 1960, is incorrect. 26. In the light of the above discussion, we have no hesitation in affirming the finding of the High Court that the condition with respect to trees in the assignment, was invalid and void. 27. The only question that remains to be considered is, whether the High Court should have quashed the order of assignment in toto or only the illegal part of it. This question depends on the exigencies of each case because this Court is not fettered in the exercise of its discretion by the technical rules relating to the issue of writs by the English Courts. The first point to be considered in the context of making an appropriate order or direction in such cases, is, whether the valid and the invalid portions of the order are severable, and if so, whether after excision of the invalid part, the rest remains viable and self- contained. In the instant case the illegal condition in the order of assignment is not an integral part of the assignment, in the sense, that its deletio....