1. Petitioners 1 to 6 were holders of a Bane land of an extent of 14.90 acres in S. No. 142 of Valnur village, Somwarpet Taluk, Coorg District. Under a registered sale deed dated 14-10-1966, they sold that land to petitioner 7 for a sum of Rs. 20,000. On 16-10-1967 the Deputy Commissioner of Coorg (respondent 2) issued a notice (Ex. B) to petitioners 1 to 6 intimating them that that land was sold without the previous permission of the Government and in contravention of the provisions of Section 45 of the Coorg Land and Revenue Regulation, 1899, (hereinafter referred to as the Regulation) and called upon them to show cause why action should not be taken against them under Section 45 of the Regulation and the Rules issued thereunder (hereinafter referred to as the Rules). Ultimately the Govern-ment, by its order dated 29-8-1968 (Exhi-bit-D), accorded ex post facto sanction for the alienation of that land subject to payment of a Nazarana of 20% of the market value of that land (i. e., Rs. 4,000).
2. In this petition under Article 226 of the Constitution, the petitioners have prayed for quashing:
(i) the notice (Exhibit-B) dated 16-10-1967; and
(ii) the order of the Government Dt. 29-8-1988 (Exhibit-D).
3. They have also prayed for stricking down Sub-rule (1) of Rule 167 of the Rules as being ultra vires of the Regulation.
4. Before dealing with the contentions of the parties, we shall set out the nature of Bane lands and the relevant statutory provisions.
5. As pointed out by this Court in Ramashetty v. Appanna, 1959-37 Mys LJ 218, there is no statutory definition of the term 'Bane' in the Regulation. However Appendix-III to the Coorg Revenue Manual contains definitions of terms used in the Rules.
6. The term 'Bane' has been defined 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, fire-wood and timber required for the agricultural and domestic purposes of the cultivator so long as he continues in possession of the wet land.
7. The term 'Alienated Bane' has been defined as land originally granted as Bane, but which has become subject to assessment owing to its separation from the wet land for the service of which it was formerly held.
8. The terms 'Bane' and 'Warg' have been explained thus in Chapter-V of the Coorg Settlement Report, 1910:
'Bane'-- A considerable area of the adjacent forest land was considered necessary for grazing, leaf manure, firewood and timber for agricultural purposes, and was allotted by the Rajas for each ward in blocks varying from a few acres to 300 acres or more. These allotments were recorded in the revenue accounts of the Rajas 'Assistant' under the name 'bane'. This land may not ordinarily be cultivated, and only the usufruct of the tree growth is allowed.
'Warg'-- Each rice-cultivated valley is known as a 'kovu' divided in the Raja's (of Coorg) times into plots called 'wargs' averaging 1 1/2 acres in extent.
In 1959-37 Mys LJ 218, the following passage in Baden-Powell's book on Land Systems in British India, has been extracted at pages 222 and 223:
'The Bane ..... is destined to supply the ward-holder with grazing timber, fire-wood, 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 seignior age 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 saw 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 rather land which is held as an appendage to a warg or estate, or to a sale holding, in a sort of trust, or on condition for a certain use.'
9. In the note by Sir J. B. T,yall on Tenures in Coorg, printed as Appendix-IV to the Coorg Revenue Manual, the nature of 'Bane' has been explained thus:
'When Coorg was annexed in 1834 we found that in Coorg proper almost every warg or holding of rice fields had a block of adjacent forest land attached and said to be granted for the supply of wood, grass and vegetable manure. These blocks are demarcated with what are known as Raja's stones and are referred to in the Assistantor revenue records of wargs or holdings of rice fields maintained by the Raja's revenue officials (and still preserved) as appended to such holdings under the name of bane.
These banes varied in size from 300 acres or more to 4 or 5 acres, and their area bore no close proportion to the areas of the wargs to which they were attached.'
10. Chapter VII of the Regulation consisting of Sections 42 to 47, deals with Government rights in lands.
11. Section 42 provides, inter alia, that it shall be lawful for the Assistant Commissioner to dispose of lands which are the property of the Government in such manner as may be authorised by the Government.
12. Section 45 provides, inter alia, that 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, is prohibited and that if such land is alienated the Assistant Commissioner may summarily evict any person from land and take possession of them on behalf of the Government.
13. Sub-section (1) of Section 143 empowers the State Government to make rules not inconsistent with the Regulation or with any other enactment for the time being in force. Clauses (a) to (ee) of Sub-section (1) particularise matters in respect of which rules may be made. Clause (f) of that sub-section reads:
'Generally, for carrying out the purposes of this Regulation.'
14. The title of Chapter VI of the Rules is 'Lands held on Privileged Tenure'. Below that title, Sections 45 and 143 (1) (f) have been mentioned within brackets.
15. Sub-rule (1) of Rule 167, as amended in the year 1955 reads:
167. Privileged Bane and Hitlu lands.- (1) The alienator of privileged wet, bane or hitlu lands shall pay to the Government as nazarana, a sum equal to 20 per cent, of the market value of the land alienated.
16. After the formation of the new State of Mysore, uniform law relating to lands, land revenue and land revenue administration in the new State was brought about by the Mysore Land Revenue Act, 1964, (hereinafter referred to as the Revenue Act) which came into force on 1-4-1964.
17. Sub-section (2) of Section 79 of the Revenue Act provides, inter alia, that subject to the general or special orders of the Government, privileges that are being enjoyed either by custom or under any order such as privileges in respect of Jammu and bane lands in the Coorg District, shall continue.
18. By Sub-section (1) of Section 202 of the Revenue Act, several enactments and laws relating to land, land revenue and land revenue administration that were in force in different parts of the State, were repealed. The Regulation is one of the enactments so repealed. However, it is provided in the proviso to that sub-section that such repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under such repealed enactment or law.
19. Sub-section (2) of that Section provides, inter alia, that notwithstanding such repeal, any rule or order under any enactment or law repealed under Sub-section (I) shall be deemed to have been done under the corresponding provisions of the Revenue Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under the Revenue Act.
20. Mr. K. S. Gowrishankar, learned Counsel for the petitioner, contended that Sub-rule (1) of Rule 167 is ultra vires of the Regulation and hence void. Elaborating his contention, he argued that that sub-rule which provides, inter alia, that the alienor of Bane land shall pay Nazarana to the Government according to the market value of such land, cannot be said to carry out any purpose of the Regulation, because levy of such Nazarana is not contemplated by any section of the Regulation. It was also argued by Mr. Gowrishankar that Section 45 of the Regulation to which a reference is made in Chapter VI of the Rules, merely provides for the Assistant Commissioner granting permission for alienation of certain classes of lands and does not authorise levy of Nazarana for granting such permission.
21. On the other hand, the learned Government Pleader contended that the State is the owner of all Bane lands in Coorg District and that the holders of such lands have been conferred only certain privileges therein, that they have no authority to alienate such lands, and that it is open to the Government to demand Nazarana for conferring on them the right to alienate such lands. Elaborating his contention, the learned Government Pleader submitted that Bane lands (except alienated Bane lands) are held free of revenue and that only rights of a holder in such land, are to use it for grazing purposes or for leaf-manure, firewood and timber required either for his domestic purpose or for the purpose of cultivation of his wet lands to which such Bane land is attached, that his rights in a Bane land are purely personal to him and cannot be disassociated or separated from his holding of the wet land to which such Bane land is attached and that hence a holder of Bane land has no alienable interest in it. The learned Government Pleader added that when the State confers on the holder of a Bane land the right to alienate such land, the State has power to confer such right on such terms as it thinks fit and that Sub-rule (1) of Rule 167 provides that conferment or such right of alienation shall be subject to payment of Nazarana of 20 % of the market value of such land.
22. In reply to the arguments of the learned Government Pleader, Mr. Gowrishankar argued that the holder of a Bane land should be regarded as an owner of such land though there may be certain restrictions as to the mode of his enjoyment of such land that the State cannot be regarded as the owner of Bane lands which have been registered in the names of Wargadars of Warg lands to which such Bane lands have been attached.
23. For the purpose of this petition, it is unnecessary to go into the question whether the State is the owner of Bane lands which have been registered in the names of individuals or whether such holders should be regarded as owners thereof With certain restrictions and limitations as to the right of their enjoyment of such lands. From the very nature of Bane tenure, it is clear that the right of the holder of a Bane land is limited to enjoyment of such land for his domestic purpose or for the purpose of cultivation of the wet land to which such Bane land is attached. Hence, it is clear that the holder of a Bane [and has no right to alienate it, and thereby to separate it from such wet land.
24. It is not the case of petitioners I to 6 that the land sold by them to petitioner 7 was an Alienated Bane land for which assessment had been levied. As that land was free from revenue Assessment, it must be regarded as a land coming within the ambit of Section 45 of the Regulation which deals with lands on which land revenue has been wholly or partly assigned or released. That Section prohibits sale, gift, mortgage or otherwise of such lands except with the written permission of the Assistant Commissioner. Though Section 45 does not expressly provide that the Assistant Commissioner may demand payment of Nazarana before granting such permission, that Section provides that the permission of the Assistant Commissioner snail be subject to general or special orders of the State Government. Rule 167 framed by the Government providing for levy of Nazarana on an alienor of Bane land, can be regarded as a general order of the Government as contemplated under Section 45. We do not See why such general order should not impose a condition that an alienor of Bane land should pay a Nazarana before he can be granted permission to alienate such land.
25. Thus, Sub-rule (1) of Rule 167 can be regarded as being made for carrying out the purpose of Section 45 of the Regulation. Hence, that sub-rule is intra vires and not ultra vires of the Regulation.
26. However, Mr. Gowrishankar contended that levy of such Nazarana would amount to a tax on alienation of Bane lands, that levy of such tax has not been authorised by the Regulation and that levy of any tax without the authority of law, is prohibited under Article 265 of the Constitution. It was also contended by Mr. Gowrishankar that such Nazarana cannot be regarded as a fee because there is no service rendered by the State to an alienor in return for the Nazarana collected from him.
27. In Commr. of Hindu Religious Endowments, Madras v. Lakshmindra Thir-tha Swamiyar, : 1SCR1005 , B. K. Mukherjea, J., (as he then was), quoted with approval the following definition of tax by Latham, C. J., Matthews v. Chicory Marketing Board, 60 CLR 263 (Aus).
'A tax is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment 'for services rendered'.'
28. His Lordship, pointed out the essential characteristics of tax. Its first characteristics is compulsion, that is to say, it is imposed under statutory power without the tax-payer's consent and the payment is enforced by law. The second characteristics of tax is that it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax, that is to say, there is no element of 'quid pro quo' between taxpayer and the public authority.
29. Though Nazarana is required to be paid under Sub-rule (1) of Rule 167 for alienating Bane lands, it is a payment in return for a privilege granted by the Government to the holder of a Bane land. He had certain restricted and non-alienable rights in such land. In return for the payment of Nazarana, the State grants him the privilege of alienating a land which was inalienable according to the terms of the original grant. The quantum of Nazarana is in proportion to the market value of the Bane land permitted to be alienated. All these characteristics of Nazarana render it a payment in the nature of a royalty or premium, and take it out of the category of a 'tax' or 'impost'. Thus levy of Nazarana under Sub-rule (1) of Rule 167, is not hit by Article 265 of the Constitution.
30. It was next contended by Mr. Gowrishankar that even if levy of Nazarana was authorised by Sub-rule (1) of Rule 167, such levy ceased to be valid after the Regulation was repealed by the Revenue Act With effect from 1-4-1964.
31. Though the Regulation was repealed by Sub-section (1) of Section 202 of the Revenue Act, clause (b) of the proviso to sub-section, states that such repeal shall not affect rights, privileges, obligations and liabilities acquired accrued or incurred under any repealed enactment; and Subsection (2) of Section 202 saves rules made under repealed Act unless such rules are inconsistent with the provisions of the Revenue Act. Such rules shall continue to be in force until they are superseded by rules made under the Revenue Act.
32. Neither Sub-section (2) of Section 79 of the Revenue Act which provides for continuation of the privileges in Bane lands nor any other provision of the Revenue Act, is inconsistent with Sub-rule (1) of Rule 167. Nor has it been shown that any rule has been made under the Revenue Act superseding that sub-rule. Hence, Sub-rule (1) of Rule 167 continues to operate notwithstanding the repeal of the Regulation and the liability of an alienor of Bane land to pay Nazarana, continues to be valid.
33. As we have held that Sub-rule (1) of Rule 167 is not ultra vires of the Regulation and that that sub-rule continues to be in force even after the repeal of the Regulation, it follows that the impugned notice, Exhibit B, and the impugned Government order, Exhibit D, were in accordance with law.
34. All the contentions of the petitioner fail and we dismiss this petition. In the circumstances of the case we direct the parties to bear their own costs.