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PETITIONER: STATE OF KARNATAKA AND ORS.

       Vs.

RESPONDENT: K.V. KHADER

DATE OF JUDGMENT28/02/1990

BENCH: KANIA, M.H. BENCH: KANIA, M.H. SAHAI, R.M. (J)

CITATION:  1990 AIR 1225            1990 SCR  (1) 727  1990 SCC  (2) 271        JT 1990 (2)    91  1990 SCALE  (1)563

ACT:     Coorg Land Revenue Regulation, 1899--Regulations 29  and 30-Records    of   Rights--Change--Permissible    only    by order/direction of Chief Commissioner.

HEADNOTE:     About  250 acres of wooded evergreen land was  given  to the  ancestors of Respondent by grant over a  hundred  years ago  and a patta in respect thereof granting  the  aforesaid lands was given to them in 1912 and in that patta there  was an  endorsement  reading "redeemed  coffee  sagawall  malai" indicating that the trees on the land had been paid for.  In 1918,  it  appears that pursuant to an order passed  by  the Commissioner,  the  said entry had been  altered  to  "unre- deemed"  showing that the trees had not been paid  for.  The respondent applied for permission of appellant No. 1 to  cut and  remove some of the trees from the land granted  to  his ancestors.  The said application was rejected on the  ground that  the  seigniorage payable on the value  of  the  timber standing  on the land granted had not been paid  and  hence, before the trees could be cut and the timber removed, seign- iorage in respect of the trees had to be paid. The  respond- ent  thereupon  filed a suit in the Court  of  Civil  Judge, Madakeri for a declaration that the said land granted to him was  redeemed in tenure and hence no payment of  seigniorage could be demanded from him. The respondent claimed that  the alteration  of the relevant entry from ’redeemed’ to  ’unre- deemed’  in the record of rights pertaining to the lands  in question  was made under orders of the Commissioner and  not of  the Chief Commissioner as required under the  Regulation and hence the alteration was void having been directed to be made by an unauthorised person. The trial Court decreed  the suit  and granted the declaration. The appellants  preferred an  appeal against the said decision to the  District  Court but  the  appeal failed. Appellant’s further appeal  to  the High  Court  of  Karnataka was also  dismissed.  Hence  this appeal by special leave. Dismissing the appeal, this Court,     HELD:  The suit in the instant case were not  barred  as they  did not question the right of the Government  to  levy seigniorage nor the liabi-

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728 lity  of the plaintiffs to pay but the plea was that  seign- iorage had already been levied and paid. [731E]     Identical  orders  changing the word ’redeemed’  to  the word ’unredeemed’ in the relevant entries have been  unifor- mally  made in a large number of cases which  would  suggest that these changes were made pursuant to a special  revision of the record of rights in respect of a number of properties and  was not an individual change in a particular  entry  in the record of rights of a particular plot of land. [731G-H]     Under regulation 29 of the Coorg Regulation, this  could have been done only pursuant to a direction or order of  the Chief  Commissioner.  but no such order or  direction  of  a notification to that effect appears to be on the record. The result  is that the said change must be held to be  unautho- rised in law, void and of no legal effect. [732A-B]     State  of Mysore v. Kainthaje Thimmanna Enat  and  Ors., (1968) 2 Mysore Law Journal 227--referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2763  of 1987.     From  the  Judgment  and Order dated 5.2.  1987  of  the Karnataka High Court in R.S.A. No. 17/1987. R.B. Datar and P.R. Ramasesh for the Appellant. Dr. Y.S. Chitale and E.M.S.Anam for the Respondent. The Judgment of the Court was delivered by     KANIA, J. This is an appeal by special leave against the judgment and order of a learned Single Judge of the Karnata- ka High Court in Regular Second Appeal No. 17 of 1987  filed in the said High Court.     As we are generally in agreement with the reasoning  and conclusion  in  the  judgment of the  Karnataka  High  Court relied  upon  by the learned Single Judge  in  the  impugned judgment, the appeal can be disposed of shortly.     About 250 acres of wooded evergreen land in the district of  Coorg was given by a grant to the ancestors of  the  re- spondent  over a hundred years ago. The said district was  a Scheduled district under the 729 control  of the Governor-General of India. The terms of  the said grant which is very old are not available but there  is no  dispute that the said land was granted to the  ancestors of the respondent.     On November 1, 1899 Regulation No. 1 of 1899, called the Coorg  Land and Revenue Regulation, 1899 came into force  in the  district  of  Coorg. We propose to refer  to  the  said Regulation as the Coorg Regulation. It applied to the entire territories administered by the Chief Commissioner of Coorg. We may at this stage take a brief note of some of the  rele- vant provisions of the Coorg Regulation as they stood at the time  relevant  for the purpose of this  appeal.  The  Coorg Regulation was enacted in order to amend and declare the law in  force in Coorg in respect of the land and land  revenue. Regulation 4 of the Coorg Regulation prescribes the  classes of Revenue Officers. One of these is the Chief  Commissioner and  one  other is the Revenue Officer. Chapter  VI  of  the Coorg Regulation deals with the records of rights and annual records.  Regulation 29 in this Chapter provides that  there shall be a record of rights for every estate. Clause (2)  of Regulation  29  states  that when it appears  to  the  Chief Commissioner that a record of rights for an estate does  not exist  or that the existing record of rights for  an  estate

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requires  special revision, the Chief Commissioner shall  by notification direct that a record of rights be made or  that the  record of rights be specially revised, as the case  may be.  Regulation 30 inter alia provides that the  nature  and extent  of  the  interests of the  landholders,  tenants  or assigness  of land revenue in the estate shall be stated  in the record of rights. Regulation 35 deals with the  restric- tions  on  variations of entries in records  and,  generally speaking,  provides  that entries  in  records-of-rights  or annual  records  cannot  be varied  except  as  provided  in clauses  (a) to (c) ’thereof. Clause (a) of  Regulation  35, the  only possible relevant clause for the purposes of  this appeal,  provides that entries can be varied  in  accordance with the facts admitted of found by inquiry under Regulation 34 of the Coorg Regulation. Regulation 40 provides that  any person  who is aggrieved as to any right of which he  is  in possession  by  an entry in a record of rights  can  file  a declaratory suit to establish his right. Shri Gustav Hallet, Settlement Officer, Coorg made his report by way of  propos- als for Land Revenue Resettlement of the Province of  Coorg, on  February 18, 1910 to the Secretary to the Chief  Commis- sioner  of Coorg. The contents of the report shows  that  it was made after examining the revenue settlements made earli- er.  Pursuant  to the said report a patta was given  to  the ancestors  of the respondent in 1912 granting the  aforesaid lands  and  in that patta there was an  endorsement  reading "redeemed coffee sagawali malai". The word "sagawali" 730 means  cultivation and the word "malai" means "hill". It  is common  ground that the word "redeemed" used in  this  entry would show that the price of the standing timber on the said land had been paid by the grantee by the time when the patta was made. It may be mentioned here that in the settlement in Coorg  where  the  land was  granted  with  the  endorsement "unredeemed", it meant that the standing timber had not been paid  for and the grantee would have to pay for the same  if the  grantee wanted to cut the trees and remove  the  timber from the land. In 19 18 it appears that pursuant to an order made by the Commissioner the said entry has been altered  to "unredeemed" showing that the trees had not been paid for.     For  several years no problem arose because  it  appears that  there was no question arose of cutting any trees,  but later,  in recent years, the respondent applied for  permis- sion of appellant No. 1 to cut and remove some of the  trees from  the land granted to the respondent. The said  applica- tion was rejected on the ground that the seigniorage payable on the value of the timber standing on the land granted  had not  been paid and hence, before the trees could be cut  and the  timber  removed, seigniorage in respect  of  the  trees would  have to be paid. The respondent filed a suit  in  the Court  of Civil Judge, Madakeri for a declaration  that  the said land granted to him was redeemed in tenure and hence no payment  of seigniorage could be demaned in respect  of  the trees  to be cut and removed. In that suit,  the  respondent inter alia claimed that the alteration of the relevant entry from  "redeemed"  to "unredeemed" in the  record  of  rights pertaining to the said lands, made pursuant to the order  of the  Commissioner, was void as the procedure  prescribed  by law  had not been complied with the alteration in the  entry not having been directed to be made by an authorised person. The Trial Court decreed the said suit and granted the decla- ration. The appellants preferred an appeal against the  said decision  to  the  District Court but the  said  appeal  was dismissed. The appellants then preferred a Second Appeal  to the High Court of Karnataka which dismissed the same as  set

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out earlier.     We  find  that  the question which has  arisen  in  this appeal  arose  before a Division Bench of  the  Mysore  High Court  in  State of Mysore v. Kainthaje Thimmanna  Enat  and Others,  (1968)  2  Mysore Law. Journal 227.  It  is  common ground that the facts in that case are in pari materia  with the  facts in the present case. It was held by the  Division Bench that the presumption that the entries relating to  the change  of tenure should be taken to have been lawfully  and regularly made in the course of the performance of  official duties and in due compliance with 731 the  procedure  enjoined by law could not be drawn  in  that case. If the order in question for revision of the record of rights  had been one that was made in exercise of the  power under  Regulation 29 of the Coorg Regulation, which  is  the provision which should have been resorted to for the purpose of  preparation and revision of record of rights, the  order should  have been issued and published by the Chief  Commis- sioner of Coorg by notification and no such notification  or publication  of  the same in the official gazette  had  been shown  to the Court. The order for correcting the entry  was issued by the Commissioner and not by the Chief Commissioner as  enjoined  by Regulation 29 of the Coorg  Regulation  and there  was no reference on the record to any such  notifica- tion  having been issued under Regulation 29.  Moreover,  it was  not apparent who had made the alteration, altering  the word  "redeemed" to "unredeemed", in the Jambandi  Register. It  was further held that under Regulation 39, the  presump- tion  as regards the truth of the entries arises  only  when the  entries in the record of rights have been made  in  ac- cordance  with  law for the time being in force and  if  the provisions of the relevant rules had been complied with.  In the  case before the Division Bench, that presumption  could not  be  drawn,  because in the absence  of  a  notification issued  by  the Chief Commissioner, it was not  possible  to predicate  whether the procedure enjoined by the  rules  had been  followed at that time of effecting the change  in  the entry.  It  was  held that the suits in  question  were  not barred  by section 145 (vi) and (viii) of the Coorg  Regula- tion as the suits did not question the right of the  Govern- ment to levy seigniorage nor the liability of the plaintiffs to  pay but the plea was that seigniOrage had  already  been levied  and  paid. The suits were not barred by  time  under Article  14  of the Limitation Act, 1908 as  no  relief  was prayed  for in the nature of setting aside of an order of  a Government Officer but the claim made for a declaration that the  impugned order altering the entry was void and non  est and hence, liable to be ignored. We agree with these conclu- sions which were upheld on appeal by the District Court  and the High Court.     We  would,  however, like to give an  additional  ground which  supports the conclusion that the said change  in  the entry from the word "redeemed" to "unredeemed" was not  made according  to law. We find from a number of  judgments  that identical  orders changing the word "redeemed" to  the  word "unredeemed"  in the relevant entries have been  uniformally made  in  a large number of cases which would  suggest  that these  changes were made pursuant to a special  revision  of the  record of rights in respect of a number  of  properties and  was not an individual change in a particular  entry  in the record of rights of a 732 particular  plot of land. Under Regulation 29 of  the  Coorg Regulation,  this  could have been done only pursuant  to  a

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direction  or  order of the Chief Commissioner but  no  such order or direction or a notification to that effect  appears to be on the record. The result is that the said change must be  held  to  be unauthorised in law void and  of  no  legal effect.  In  view  of what is set out  earlier,  a  detailed discussion  regarding this contention is not called for.  We may  also point out that the same view regarding  a  similar change  of an entry in the record of rights was taken  by  a learned Single Judge of the Karnataka High Court in  Regular Second  Appeals  Nos.  693 and 694 of  1977.  Petitions  for special leave being Special Leave Petitions Nos. 38 12-13 of 1985  were preferred by the State of Karnataka  against  the said decision and the said petitions for special leave  were dismissed  summarily by this Court on 10th March,  1986.  In these circumstances, the only thing which surprises is  that the  State has again chosen to reagitate the  same  question before  this  court probably only because large  stakes  are involved.     In our opinion, there is no merit in the appeal and  the same is dismissed with costs. Y.    Lal                                             Appeal dismissed. 733