1. This appeal involves a question of considerable importance under the Khoti Settlement Act, 1880.
2. The facts are not in dispute. The plaintiff and defendants Nos. 2 to 17 are co-sharers in the khotki of the village Kasheli in Ratnagiri District. Defendant No. 1 is a permanent tenant of khata No. 84 in that village. I may mention here that before the amendment of Section 3(4) of the Khoti Settlement Act, 1880, by Section 85(b) of Bombay Act IV of 1913, permanent tenants were styled 'occupancy tenants.' In accordance with the Recording officer's tharav or decision, defendant No. 1 and his predecessors were paying to the khot that (rent) at three times the survey assessment in respect of their khata No. 84. This went on till defendant No. 2 became the managing khot for 1935-36. Defendant No. 1 then made an application to the Recording-officer requesting that his liability in respect of khata No. 84 should be fixed at survey assessment and local fund cess only. Defendant No. 2 as the managing khot having given his consent to this change, the Recording-officer passed an order on July 30, 1935, granting the request with effect from 1935-1936. The plaintiff became the managing khot for 1936-37, and when he discovered this change, he filed this suit to have it declared that the order of the Recording-officer was void and not binding on him and ondefendants Nos. 3 to 17 and that they were entitled to recover that at three times the assessment as before and to have the amendment of the entry in the botkhat cancelled. Defendant No. 1, who was the only contesting defendant, contended that the suit was barred by Section 20 of the Khoti Settlement Act, 1880, that the consent of the managing khot was binding on all the khoti sharers and that the order passed by the Recording-officer was legal and valid. The trial Court upheld all these contentions and gave the plaintiff a decree for the recovery of only Rs. 2-7-9, the unpaid portion of the survey assessment and local fund cess due from defendant No. 1. In appeal the learned Assistant Judge held that the suit was barred under Section 20 of the Act and confirmed the decree of the trial Court.
3. Section 20(1) of the Khoti Settlement Act, 1880, provides that every entry in the settlement register or other records made by the Recording officer under Section 16, 17 or 18, and purporting to record- (a) the fact that the interest of any permanent tenant is or is not transferable otherwise than by inheritance, or (b) the liability of each privileged occupant to pay rent of the description and amount entered, shall be conclusive and final evidence of the fact or liability so recorded, subject to the provisions of Section 18 and to the result of any appeal against the entry to the Provincial Government under Sub-section (2). There is no doubt that the entry complained of is made by the Recording-officer in one of the 'other records', viz. botkhat, and it purports to record the liability of a privileged occupant to pay rent. It is admitted that no appeal against the order was made to the Provincial Government to have the entry altered. Hence the entry would be conclusive and final evidence of the privileged tenant's liability, provided it was made under Section 16, 17 or 18. The learned Assistant Judge has held that the entry is made under Section 17(a) read with Section 33(c), Rule II(1)(b). This rinding, however, does not fit in with the scheme of the Act.
4. Section 3(5) recognises three classes of privileged occupants, dharekaris, quasi-dharekaris and permanent tenants. Section 33, which appears in chapter IV under the heading, 'Privileged Occupants' Rents', lays down how the quantum of the rent payable by a privileged occupant is to be determined. A dharekari is to pay only the survey assessment of his land ; a quasi-dharekari is to pay something more ; and a permanent tenant is to pay whatever is entered in the survey records in accordance with the five rules given in Clause (c). Those survey records are maintained under Sections 16, 17 and 18 in part III of the Act, which deals with ' Survey and Settlement.' The heading of Sections 16 and 17 is ' Settlement Records,' while the heading of Sections 18 to 22 is ' Custody and Amendment of Records Determination of Disputes.' This makes it clear that Sections 16 and 17 are meant for the first entry in the settlement records and not for the amendment of the entries already made, for which provision is made in Section 18. The settlement records consist of the settlement register and other records prepared under Section 108 of the Bombay Land Revenue Code, 1879. Section IS provides for the entries to be made in the settlementregister. That register is to contain the area and assessment of each survey number, the names and tenure of the privileged occupants, if any, the names of the co-sharers of the khotki and other allied information, but not the description and amount of rent payable to the khot by each privileged occupant. That information is to be entered in 'other records' under Section 17(a). Clauses (b) and (c) of Section 17 provide: for entries regarding matters with which we are not concerned. In accordance with Section 17 (a) 'the description and amount of rent, if any, payable to the khot, by each privileged occupant according to the provisions of Section 33 ' are to be entered in the botkhat. The ruled in Section 33(c) provide not only for the first entries to be made under Section 17 but also for alterations in them under certain circumstances, which are to be entered under Section 18, Sub-sections (2) and (3), Section 18(2) contemplates two classes of cases where entries already made under Section 17 can be amended or altered. In the five cases specified in Sub-section (3) the Recording-officer may amend an entry without the consent of the privileged occupant or the khot, but in other cases he cannot amend or alter any entry without 'the consent of the parties affected thereby given in writing before him.' The entries to be made in accordance with Rules IV and V in Section 33(c) are included in the cases specified in Section 18(3) (d). Rule 11(1) provides for the entry of the rent at an amount fixed as determined by agreement of the parties either at the time of framing the survey record or at any other time, and Clause (b) requires that if it be at any other time, then the parties must appear in person or by duly authorised agent before the Recording-officer and consent to such entry. The learned Assistant fudge has construed this Clause (b) as including any entry made after the framing of the record whether an entry has already been made or not. But the scheme of the Act shows that a distinction is throughout maintained between an entry and an alteration or amendment of an entry. If no entry is made at the framing of the survey records under Rule 11(2) (a), then an entry to be subsequently made falls under Rule II(1)(b). But once an entry is made either at the framing of the survey record or subsequently, it can be altered or amended only under Section 18. The difference in the procedure for making the first entry and that for amending it is obvious. We are not here concerned with the alterations contemplated by Rules IV and V which fall under Section 18,Sub-section (3)(d). For the first entry to be made under Rule II(1)(b) at any time after the framing of the record the consent of the parties is sufficient. In Rule 11(3) it is provided that the word 'parties' in that rule means ' the tenant and the person who at the time of the agreement is the managing khot.' Even then the proviso empowers the other co-sharers in the khotki, having an interest exceeding three-eighths of the entire khotki, at the time of the nomination or appointment of the managing khot, to restrain his power to make an agreement with a permanent tenant regarding his rent. If no such restriction is placed upon his powers, the managing khot's consent binds all the co-sharers. But once an entry is made, it cannot be altered or amended under Section 18(2) except with the written consent of 'the parties affected thereby '.
5. In the present case it is expressly alleged in the plaint that the Recording-officer had made a tharav that the rent payable in respect of khata No. 84 was three times the assessment. That allegation was not traversed by defendant No. 1 in his written statement. Thus it may be taken as admitted that an entry had already been made in the record under Section 17(a) according to the provisions of Section 33(c), Rule 11(1)(a) or (b). Hence when the Recording-officer changed that entry at the instance of defendants Nos. 1 and 2, he must be deemed to have acted under Section 18(2) and not under Section 17(a).
6. I have already indicated the difference in the procedure under the two sections. When the first entry is to be made, all the sharers in the khotki are naturally anxious to see that the rent is properly entered in the survey records and they would take care to restrain the managing khot's powers under the proviso to Section 33(c), Rule II. But after the entry is once made, they may rest secure, since Section 18(2) would not allow any amendment or alteration without the written consent of all the parties affected thereby. I may point out here that in Krishnaji Narasinva v. KrishnajiNarayan I.L.R. (1896) 21 Bom. 467 Candy J. has similarly analysed the pertinent sections of the Act on these lines, but no useful purpose will be served by referring to it in detail as many of the pertinent sections have been materially altered by the Khoti Settlement Amendment Act, 1904.
7. In the present case when defendant No. 1 made his application in 1935, the Recording-offiicer seems to have thought that he had to fix the amount of the rent under Section 33(c), Rule II(1)(b), and was, therefore, satisfied with the consent of the managing khot, and he altered the entry that was already existing in the survey record. But, as I have already pointed out, he could make the alteration only under Section 18(2) and that required the written consent of all the parties affected thereby. The parties affected were evidently the tenant and all the co-sharers in the khotki. But Mr. Dharap for defendant No. 1 contends that the managing knot represents all the sharers and can give his consent on behalf of all. The powers of the managing khot are given in Section 26. Under that section he is ' to receive the inferior holders' rents, pay the Crown dues, and generally to perform all acts required by this Act or by any other law or rule having the force of law, to be performed by the khot.' Mr. Dharap argues that the giving of consent to a change in an entry in the survey record is an act required by Section 18(2) of the Act to enable the Recording-officer to make the change and hence that act can be performed by the managing khot. This argument finds some support in Ibrahim v. Krishnaji : AIR1924Bom459 . That was a case under Section 9 of the Act which provides inter alia that permanent tenancies shall be heritable, but shall not be otherwise transferable, without the consent of the khot, and it was held that the managing khot was entitled to give consent to the transfer of a permanent tenancy. Referring to the wording of Section 26, Macleod C.J. observed (p. 423):
The managing Khot would, therefore, be entitled to give consent, to the transfer of a permanent tenancy which is an act required by the Statute to be performed by the Khot in order to validate the transfer.
8. With profound respect, I think that this principle cannot be extended to all the cases where the consent of the khot is required under the Act. Thus Section 11 empowers the khot at any time to confer on any tenant the right of a privileged occupant of any class, or on a privileged occupant of one class, the right of a privileged occupant of a superior class. But where there are several co-sharers, this power cannot be exercised by the managing khot alone as is clear from Section 12 and Rule IV framed by Section 40(f) which requires that all the known khot sharers or their duly empowered attorneys should sign the application under Section 12.
9. Moreover under Section 18 the consent required for an alteration in the entry is not that of 'the khot' (as under Sections 9 and 11), but of 'the parties affected thereby '. Every co-sharer in the khotki is certainly affected by the alteration and his individual consent would, therefore, be required. In Rule II under Section 33(c) also the same word 'parties' is used, and it had to be expressly defined in sub-r. (3) that the word 'parties' meant 'the tenant and the person who at the time of the agreement was the managing khot.' A similar explanation would have been added to a. 18(2) if it was intended that the consent of the tenant and the managing khot was sufficient to enable the Recording-officer to alter or amend an entry already made in the survey records. It must, therefore, be held that the words ' parties affected thereby ' in Section 18(2) mean all the tenants and all the co-sharers in the khotki who are affected, so that once an entry is made in the survey records under Section 16 or Section 17, it cannot be changed, except in the cases specified in Section 18(5), unless all the parties, whether privileged occupants or co-sharers in the khotki, who are affected by the change,' give their written consent to it before the Recording-officer.
10. It follows that the Recording-officer acted without jurisdiction in amending the entry with regard to the rent payable in respect of khata No. 84 without taking the consent of all the co-sharers in the khotki. It is, however, argued that the entry having been made, whether under Section 17 or under Section 18, it is final and conclusive under 9. 20. But this finality would not attach to the entry if it is made without jurisdiction and is ultra vires. Before its amendment by Bombay Act III of 1904, old Section 17 itself provided 'any entry in any record duly made under this section shall be conclusive and final evidence of the liability thereby established.' This was considered in Krishnaji Narasinva v. Krisknaji Narayan 1.L.R. (1896) 21 Bom. 467 and it was held that an entry in the survey records made under Section 17 in disregard of the provisions of Section 33 could not be said to have been duly made and was not final and conclusive. I do not think that the Legislature intended to overrule this by omitting the word ' duly' Before the words ' made by the Recording-officer', in the present Section 20. The word 'made' necessarily means 'duly made', that is to say, made is exercise of the powers conferred by the provisions of the Act. An erroneous entry may be duly made and will be final under Section 20, but if it is ultra vires or made without jurisdiction, then it would be a nullity and can have no finality under that section. Although there may be no appeal against such a void entry, yet under Section 21 it will be binding on the parties affected by it until it is reversed or modified by a final decree of a competent Court.
11. It is now well settled by several cases decided under Article 14 of the first schedule to the Indian Limitation Act, 1908, that where an authority which purports to pass an order is acting without jurisdiction, the purported order is a mere nullity and it is not necessary for anybody, who objects to that order, to apply to set it aside. This principle1 was extended to cases under Section 11 of the Bombay Revenue Jurisdiction Act, 1876, in Abdullamiyan Abdul-tehman v. Government of Bombay (1942) 44 Bora. L.R. 577 where the learned Chief Justice observed (p. 590) :-.if once the Court holds that what on the face of it purports to be an order of a revenue Court is in fact a nullity, it can give rise to no rights and impose no obligations.
12. Thus in Malkajeppa v. Secretary of State for India I.L.R. (1911) 36 Bom. 325 where the Collector acting under the provisions of Section 37 of the Bombay Land Revenue Code, 1879, purported to deal with land which was prima facie the property of an individual who had been in peaceful occupation thereof, and not of Government, and pass an order with reference thereto, it was held that he was not dealing with that land in his official capacity, but was acting ultra vires.
13. In Alimuddin v. Jshan Chandra Dey I.L.R. (1906) Cal. 693 the Collector purported to pass an order under Section 116 of the Estates Partition Act (Bengal Act VIII of 1876). Under that section he could adopt only one of two courses, if any objection was raised before him that a particular plot of land did not appertain to the estate under partition, he could either strike off the partition or proceed with the partition, treating the disputed land as part of the estate. But the Collector, when certain persons objected that certain lands did not appertain to the estate under partition, passed an order excluding the disputed lands from partition, and it was held that the order was not such as he could pass under Section 116 and was consequently a nullity;.
14. Mr. Dharap points out that the order of the Recording-officer may be wrong, but as he purported to act in exercise of the powers under the Act, the entry made by him cannot be treated as a nullity, and in support of this he relies upon Bruusgaard Kiosteruds Dampskibs Aktieselskab v. Secretary of State (1939) 42 Bom. L.R. 532. The order complained of in that case was passed after a fair hearing given to both sides, and it imposed a penalty under Section 167(17) of the Sea Customs Act, 1878. It was contended that the claim for penalty based on measurements not taken on board the vessel as required by the Act, but some miles away from the board, was ultra vires, illegal and improper, and that, therefore, the order imposing the penalty was made without jurisdiction and was a nullity. In rejecting this contention B.J. Wadia J. observed (p. 549) :-.on the record before me I cannot say that the Customs officer acted ultra vires or in excess of his statutory authority. It was an order made by an officer of Government in his official capacity,purporting to act under the law, and it was of a quasi-judicial character, and within his power.
15. The distinction between the two classes of. cases was clearly pointed out in Mr. Justice Candy's observations quoted with approval on p. 436 of Nagu v. Salu I.L.R. (1890) 15 Bom. 424. That was a case of an order under Section 37 of the Land Revenue Code, 1879, passed after an inquiry, and he observed (p. 428):
The Collector evidently acted under Section 37 of the Bombay Land-Revenue Code, and in so acting he properly considered whether the ground in question was the property of individuals, and whether any rights were established in or over the same. Finding this in the negative he disposed of the land subject to the rules which governed his procedure. Had the order passed by him not been prima facie within the scope of his authority, ratione materia, then Section 135 would not apply. So, too, had he affected to deal with something in its nature or legal character beyond the range of his functions, his order would have been legally a nullity, and there would have been no need for plaintiff to bring a suit to set it aside.
16. In Dhanji v. The Secretary of State I.L.R. (1920) 45 Bom. 920 the occupancy of certain lands was granted by Government on condition that the lands should not be alienated. The grantee having made a contract for the transfer of some of the lands, the District Deputy Collector regarded it as a breach of the condition of the grant and| summarily evicted him under Section 79A of the Bombay Land Revenue Code. As the conditions necessary for the exercise of the power of summary-eviction conferred by Section 79A did not in fact exist, the action of the District Deputy Collector was held to be ultra vires. Crump J. observed (p. 926) :-
Where an officer of Government purports to act under a statutory authority but in fact acts in excess of that authority his act should be treated as nullity. It is perhaps simpler to say that the act is not an official act....
17. By parity of reasoning it must be held that in the present case also the Recording-officer has not acted in his official capacity. Under Section 18 he had not to give any decision, but only to alter an existing entry, in the survey records in accordance with the wishes of the parties affected thereby. He derived his power to make the alteration from the consent of the parties affected, and he had no such power if that consent was not forthcoming. The consent being thus a sine qua non, any alteration by him without such consent must be regarded as ultra vires and treated as a nullity, and the present suit to have it so declared is, therefore, not barred by Section 20.
18. The result is that the appeal succeeds and the plaintiff is entitled to the relief asked for by him. After deducting the amounts already received in respect of the rent for 1936-37 he has claimed Rs. 30-8-0 as due under the entry in the survey record before it was amended by the Recording Officer in 1935. The amount claimed by him is not disputed.
19. The appeal is, therefore, allowed and a decree will be passed in favour of the plaintiff declaring that the amendment of the entry in the survey record made on July 30, 1935, to the effect that khata No. 84 of Kasheli is liable to pay only the survey assessment and local fund is null and void and not binding on the plaintiff and defendants Nos. 3 to 17. They are entitled to recover that in respect of that khata in accordance with the entry as it stood before this amendment. The plaintiff shall recover from defendant No. 1 Rs. 30-8-0 and he should also recover his costs throughout from defendants Nos. 1 and 2. The other parties shall bear their own costs.