STATE OF KARNATAKA AND ORS.versusK.V. KHADER

                   STATE OF KARNATAKA AND ORS.
                                                                                A
                                  v.
                            K.V. KHADER

                             FEBRUARY 28, 1990

,.                 [M.H. KANIA AND R.M. SAHA!, JJ.]                             B

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

           About 250 acres of wooded evergreen land was given to the
     ancestors of Respondent by grant over a hundred years ago and a patta
                                                                              c
     in respect thereof granting the aforesaid lands was given to them in
     1912 and in that patta there was an endorsement reading "redeemed
     coffee sagawali 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 "unredeemed" show- D
     Ing that the trees had not been paid for. The respondent applied for
     permission of appellant No. I 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, seigniorage in respect of the E
     trees had to be paid. The respondent 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
     ~he relevant entry from 'redeemed' to 'unredeemed' in the record of
     rights pertaining to the lands in qnestion was made under orders of the F
     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 C_ourt 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. G
     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-    H

                                          727
      728                    SUPREME COURT REPORTS            [1990] I S.C.R.

   lily of the plaintiffs to pay but the plea was that seigniorage had already     -1
A ·been levied and paid. [73IEJ

            Identical orders changing the word 'redeemed' to the word 'unre-
      deemed' in the relevant entries have been uniformally made in a large
      number of cases which would suggest that these changes were made
      pnrsuant 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 ofland. [73IG-H]
                                                                                    1
           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
c     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. [732A-B)

          State of Mysore v. Kainthaje Thimmanna Enat and Ors., (1968) 2
      Mysore Law .Journal 227-referred to.
D
            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.
E
            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 judg-
      ment and order of a learned Single Judge of the Karnataka 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 conclu-
0     sion 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 respondent over a
1-1   hundred years ago. The said district was a Scheduled district under the
                  STATE OF KARNATAKA v. K.V. KHADER [KANIA, J.]                729

         control of the Governor-General of India. The terms of the said grant
                                                                                      A
         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
r        district of Coorg. We propose to refer to the said Regulation as the
         Coorg Regulation. It applied to the entire territories administered by
                                                                                      B

         the Chief Commissioner of Coorg. We may at this stage take a brief
         note of some of the relevant 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.
                                                                                      c
-1       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 Regula-
         tion 29 states that when it appears to the Chief Commissioner that a         D
         record of rights for an estate does not exist or that the existing record
         of rights for -an estate i:_eguires special revision, the Chie(Commis-
r        sioner 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    E
         estate shall be stated in the record of rights. Regulation 35 deals with
         the restrictions on variations of entries in records and, generally speak-
         ing, 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      F
         facts admitted of found by inquiry uttder Regulation 34 of the Coorg
         Regulation. Regulation 40 provides that any pemm 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
         Haller, Settlement Officer, Coorg made his report by way of proposals
         for Land Revenue Resettlement of the Province of Coorg, on                   G
         February 18, 1910 to the Secretary to the Chief Commissioner of
         Coorg. The contents of the report shows that it was made after
         examining the revenue settlements made earlier. Pursuant to the said
         report a patta was given· to the anc.estors of the respondent in 1912
          granting the aforesaid lands and in 'that patta there was an endorse-
          ment reading "redeemed coffee sagawali malai". The word "sagawali"          H
      730                   SUPREME COURT REPORTS           [1990] I S.C.R.

  means cultivation and the word "malai" means "hill". It is common
A 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 1918 it appears that pursuant to an order made by the Com-
  missioner 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
C was no question arose of cutting any trees, but later, in recent years,
    the respondent applied for permission of appellant No. 1 to cut and
    remove some of the trees from the land granted to the respondent. The
    said application was rejected on the ground that the seigniorage pay-
    able on the value of the timber standing on the land granted had not
fi) 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
E 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 declara-
F ti on. The appellants preferred an appeal against the said decision to        l
    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 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: Jour-
      nal 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
Iii   course of the performance of official duties and in due compliance with
              STATE OF KARNATAKA v. K.V. KHADER [KANIA, J.l                  731


    the procedure enjoined by law could not be drawn in that case. If the
                                                                                     A
    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          B
    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 en joined by Regulation 29 of t_he Coorg
    Regulation and there was no reference on the record to any such
    notification having been issued under Regulation 29. Moreover, it was
    not apparent who had made the alteration, altering the word "redee-
    med" to "unredeemed", in the Jambandi Register. It was further held              c
    that under Regulation 39, the presumption as regards the truth of the
    entries arises only when the entries in the record of rights have been
    made in accordance 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,                 D
     because in the absence of a notification issued by the Chief Commis-
     sioner, 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 Regulation as the
    suits did not question the right of the Government to levy seignior.age          E
     nor the liability of the plaintiffs to pay but the plea was that seigrli\,r'.
     age 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
r
)
     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.        F
     We agree with these conclusions 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                    G
     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
    .Buggest 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           H
                           SUPREME COURT REPORTS            [1990) ; S.C.R.

A particular plot of land. 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 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
B 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 Regu-
  lar Second Appeals Nos. 693 and 694 of 1977. Petitions for special
  leave being Special Leave Petitions Nos. 3812-13 of i985 were prefer-
  red by the State of Karnataka against the said decision and the said
c petitions for special leave were dismissed summarily by this Court on
   iOth 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.

D        In our opinion, there is no merit in the appeal and the same is
    dismissed with costs.

    Y. Lal                                                Appeal dismissed.




                                                                                 )