ORDER
S. B. Majmudar, C. J.
1. This Writ Appeal has been referred to a Full Bench for resolving a short question as to whether, after the enactment of the Karnataka Land Revenue Act, 1964, by which the Coorg Land and Revenue Regulations, 1899 were repealed, an
application can still be filed under Regulation 127 of the Coorg Land and Revenue Regulations, 1899, 18 years after such repeal.
2. Few relevant facts leading to these proceedings may be noted at the out-set.
The appellants arc the original writ petitioners who filed Writ Petition No. 4797/83 in this Court being aggrieved by the order dated 7-2-1983 passed by the 3rd respondent — the Deputy Commissioner, Kodagu District, Madikeri. By the said order, the 3rd respondent entertained the application filed under Regulation 127 of the Coorg Land and Revenue Regulations, 1899, and observed that partition of the concerned lands, which were privilege jama bane lands, can be effected. The learned single Judge, after hearing the parties, came to the conclusion that such an application was maintainable. He, however, partly allowed the writ petition on the ground that while exercising the jurisdiction under Regulation 127 of the said Regulations, the Deputy Commissioner, respondent No. 3 herein, could not have himself effected the partition and should have appointed arbitrators for doing the said work.
3. The learned counsel for the appellants submitted that the learned single Judge had patently erred in law in taking the view that the Coorg Land and Revenue Regulations, 1899, survived and Regulation 127 thereof could be still resorted to, almost 18 years after it was repealed by the Karnataka Land Revenue Act, 1964. He also submitted that for taking the aforesaid view, the learned single Judge has relied upon the decision of this Court in Nandinaravanda Medappa v. Nandinaravanda Ganapathy reported in (1979) 2 Kant LJ 22. It was submitted that Regulation 127 was a procedural provision. It was not saved by Section 202 of the Karnataka Land Revenue Act, 1964.
4. We have heard the learned counsel for the parties on these aspects. Having given our consideration to the arguments advanced before us, we have reached the conclusion that the learned single Judge, with respect, was in error when he took the view that despite the repealing of the Coorg Land and Revenue
Regulations, 1899,in 1964, application under Regulation 127 of the said Regulations could be filed and that the application dated 24-6-1982 filed by respondents Nos. 1 and 2 was maintainable before the authorities which could function under the repealed Coorg Land and Revenue Regulations, 1899. The reasons are obvious. Regulation 127 read as under:
“127. Power to refer to arbitration. (1) A Revenue Officer may, with the consent of the parties, refer to arbitration any dispute arising before him in any matter under this Regulation.
(2) The Assistant Commissioner may, without the consent of the parties, refer to arbitration any dispute arising before him under this Regulation with respect to –
(a) any matter of which an entry is to be made in any record or register under Chapter VI; or
(b) the limits of any estates or of any holding, field or other portion of an estate; or
(c) the property to be divided at a partition or the mode of making partition.”
It is found in Chapter XI dealing with arbitration. A mere look at the said provision shows that it was a procedural provision. It may be conveniently read with Regulation 145 of the said Regulations found in Chapter XII which dealt with supplemental provisions. Regulation 145 dealt with bar of suits in certain matters and provided that except as otherwise provided by this Regulation, no suit shall be brought in any Civil Court in respect of any of the following matters, namely,
(i) …..
(xv) any claim for the partition of an estate or holding or any question as to the allotment of land, when such estate, holding or land is one of which the land-revenue has been wholly or partly assigned or released, or which is held as joint family property by persons of the Coorg race, or any claim for the distribution of land-revenue on partition, or any other question connected therewith, not
being a question as to the partibility of, or the title to, the property of which partition is sought.
5. Reading Regulation 127 read with Regulation 145(xv), it becomes clear that both these provisions dealt with the question as to whether the Revenue Officer acting under the Coorg Land and Revenue Regulations, 1899, could be approached for resolving a dispute and whether such dispute was outside the jurisdiction of the Civil Court. It, therefore, can be easily seen that Regulation 127 was purely a procedural provision and if that procedural provision is applied for resolving a given dispute, then the logical corollary of exclusion of the jurisdiction of Civil Court under Regulation 145 would follow, but not otherwise. Therefore, the moot question is whether (he procedural provision under Regulation 127 could be invoked after the repealing of the main Regulation itself. As noted earlier, the said Regulation got repealed by the enactment of the Karnataka Land Revenue Act, 1964. Section 202 of the said Karnataka Act deals with repeal and savings. It will be useful to extract Section 202(1) and (2) in extenso at this stage:
“202. Repeal and savings. — (1) The enactments specified in the Schedule, and any other law corresponding to this Act are hereby repealed:
Provided that subject to the provisions of this Act, the repeal shall not affect-
(a) the previous operation of any such enactment or law or anything duly done or suffered thereunder;
(b) any right, privilege, obligation or liability acquired, accrued or incurred under such enactment or law;
(c) any penalty, forfeiture or punishment incurred in respect of any offence committed against such enactment or law;
(d) any investigation, legal proceeding or remedy in respect of such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted or enforced and any such penalty, forfeiture, or punishment may be imposed as if such enactment or law had not been repealed.
(2) Notwithstanding anything contained in the proviso to sub-section (1) but subject to any notification issued under Section 201, anything done or any action taken (including any appointment, or delegation made, land revenue, non-agricultural assessment, fee or cess, settled, fixed or imposed, notification, order, instrument or direction issued, rule or regulation made, certificate obtained or permission granted) under any enactment or law repealed by sub-section (I) shall be deemed to have been done or taken under the corresponding provisions of this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under this Act”.
The Coorg Land and Revenue Regulations, 1899, is specified at Sl. No. 15 in the Schedule to S. 202. Therefore, it is obvious that the entire Regulation has been repealed. Now if at all Regulation 127 can get saved by the Proviso to sub-sec. (1) of Section 202, at Clause (b), which provides that subject to the provisions of the Act, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under such enactmenl or law, it is nobody’s case that any application under Regulation 127 was earlier filed during the time the Coorg Regulation was in force and any order was passed therein. All that was sought to be done was that an application for the first time was moved under Regulation 127 on 24-6-1982, 18 years after the said Regulation was repealed by the Karnataka Act of 1964. Such an application, which sought to invoke the procedural provision which no longer existed, could obviously be not maintainable. We may usefully refer to a decision of the Supreme Court in the case of State of Karnataka v. Mrs. Elizabeth Mayne . In that case, Chief Justice A.N. Ray, speaking for the Supreme Court, had an occasion to consider the question about the rights which could be said to have been
accrued under this very Regulation of 1899 which was repealed by the Karnataka Act of 1964. A Division Bench of this Court held that S. 202 of the Karnataka Land Revenue Act of 1964 did not affect the right acquired by the holders of Bane lands to cut and remove timber in spite of repeal of the Coorg Land and Revenue Regulation of 1899. That part of the decision of the Division Bench was approved by the Supreme Court in para 14 of the Report. It is obvious that the present case is hot one of those types of cases. No right has accrued under the Coorg Regulation to any of the parties. For the first time an application w’as moved under Regulation 127 of the repealed Regulation, in 1982. The reliance placed by the learned single Judge in the Judgment under appeal on an earlier Judgment of another learned single Judge of this Court in Nandinaravanda Medappa’s case (1979) 2 Kant LJ 22(supra), is, in our view, of no assistance. In the said decision, the learned single Judge has observed as under:
“Bane lands are forest lands and only certain privileges are granted in these lands and those privileges Would go with the cultivation of the wet lands and there is a specific mode provided in the Coorg Revenue Manual as to the mode of separate enjoyment of those bane lands, in case, wet lands ate divided among the members of the family. These privileges are saved by S. 79(2) Karnataka Land Revenue Act. Hence a civil suit for partition of bane land is not maintainable.”
6. With respect, it is difficult to agree with this conclusion to which the learned single Judge reached in the aforesaid case. S. 79(2) of the Karnataka Land Revenue Act, 1964, reads as under:
“79(1) …..
(2) Notwithstanding anything contained in sub-section (1) but subject to such general or special orders that may be issued by the State Government from time to time, the privileges that are being enjoyed either by custom or under any order such as privileges in respect of Kumki lands, Bane lands and Kane lands in South Kanara District, Betta lands and Hadi lands in North Kanara District, Kan and
Soppina Betta lands in Mysore Area, Jamma and Bane in Coorg District and Motashal wet lands in Hyderabad Area shall continue.”
7. All that Section 79(2) says is that the privileges that are being enjoyed either by custom or under any order such as privileges in respect of Kumki lands, Bane lands, etc., shall continue. The thrust of this provision is that whatever privileges were enjoyed by an erstwhile Bane land holder would not be affected by the passing of the Karnataka Act of 1964 and that they would continue. But that does not mean that the procedural provision of the Coorg Regulation would continue. That is not the scope and ambit of the said section. Therefore, with respect, more is read in this connection by the learned single Judge who decided the case reported in (1979) 2 Kant LJ 22, when the learned single Judge held that a civil suit for partition is not maintainable because of Section 79(2) of the Karnataka Act. The said decision, in our view, does not lay down correct law on the point. Once this conclusion is reached, it becomes obvious that the judgment under appeal cannot be sustained and it must be held that after the repeal of the Coorg Regulation by the Karnataka Act of 1964, the procedural provisions like Regulation 127, do not survive any further and cannot be resorted to by any of the parties. The prohibition regardingjurisdiction of the Civil Court to entertain such dispute would also not survive. We, however, make it clear that as and when the dispute of the present type is taken up for resolution before the competent Court, it will be for such Court to decide whether such dispute can be resolved and we should not be understood to have held that such type of lands can be validly partitioned. This question is not before us in this appeal and, therefore, we have not decided the same. We are constrained to observe this because the learned single Judge while taking the view that Regulation 127 of the Coorg Regulation could be pressed in service, has made certain observations about the partibility of such land. As we have taken the view that Regulation 127 of the Regulation itself does not apply, all other observations of the learned single Judge on the merits of the dispute
naturally cannot survive and we, on our own, also do not propose to make any observations on the merits of the controversies between the parties. In short, all these questions are kept open for resolution by a competent Court as and when such dispute is raised before it.
8. Subject to these clarifications and observations, this appeal is allowed. The order dated 22-2-1990 passed by the learned single Judge in Writ Petition No. 4797/83* is se( aside and the writ petition will stand allowed in terms of what is stated herein-above. There will be no order as to costs.
9. Sri M.N. Seshagiri Rao, the learned High Court Government Advocate, is permitted to file his memo of appearance on behalf of respondent No. 3 within four weeks from today.
10. Appeal allowed.