- (1.) IN view of the dif ference of opinion between Satish Chandra, J. and J. S. Trivedi, J., the following ques tion has been referred for opinion to me:- "On the facts and circumstances of the case, was the Malikana allowance granted to the appellant as compensation for acquisition of his proprietary title in the 135 villages?"
(2.) THE circumstances, in which the question arises, are as follows:- The appel- lant and his ancestors, the Rajas of Daiya, were the Taluqdars of Taluqa Daiya in Pargana Khairagarh, district Allahabad. It appears that, in the beginning of the nine teenth century or at the end of the eight eenth century, Pargana Khiragarh fell into arrears and was taken over by the Raja of Banaras who made it over to one Lal Odwant Singh. Lal Dokal Singh son of Lal Drigpal Singh, the Raja of Daiya, instituted a suit for the declaration of his rights and for possession over Taluqa Daiya. After about 27 years of litigation, by a decree of the King in Council, the suit was decreed, as a result of which Lal Dokal Singh obtained possession of Taluqa Daiya in 1837. About this time when Lal Dokal Singh obtained possession, settle ment proceedings under Regn. VII of 1822, as modified by Regulation IX of 1833, were going on. The settlement proceedings were being conducted by Mr. R. Mont gomery, Officiating Collector, Allahabad. He found that, in some of the villages of Taluqa Daiya, there were inferior proprie tors known as Moquddums whilst, in other villages, there were no such inferior pro prietors. In his report dated October 8, 1838 (Annexure 'A' to the counter-affida vit), Mr. Montgomery recommended that, in those villages where there were Moqud-dams, the settlement for payment of reve nue be made with the Moquddams and, in the villages where there were no inferior proprietors, the settlement for payment of revenue be made with the Rajas. This was accepted. Accordingly, in 135 villa ges, some of which lay in the district of Mirzapur but were subject to the settle ment proceedings, the settlement for pay ment of revenue was made with the Mo quddams or inferior proprietors and a Taluqdari allowance or Malikana was fixed for the Raja at 18% of the revenue. The Moquddams or inferior proprietors were required to deposit the revenue and over and above the revenue an amount equal to 18% of the revenue in the Government treasury. This 18% was paid to the Raja as Taluqdari allowance or Malikana. Sub sequently, the allowance was reduced to 10% of the revised revenue. A second settlement took place in 1876-77 and the same arrangement of settlement with the Moquddams for payment of revenue and for payment of Taluqdari allowance or Malikana to the Raja was continued. The payment of the Malikana continued to be made till the U. P. Zamindari Abolition and Land Reforms Act, 1951, came into force. The payment of Malikana was stopped by the Government with effect from July 1, 1952, on the ground that the allowance was in respect of the proprietary rights of the Rajas in the 135 villages and it determined under Section 6 (b) of the Act. The main ground, on which the stoppage of the payment of Malikana by the State Government is challenged, is that the Malikana was paid for the acquisition of the rights of the Raja of Daiya in the 135 villages and, therefore, it was not a right in respect of any interest in those villages which could be determined under Section 6 (b) of the U. P. Zamindari Abo lition and Land Reforms Act. The case set up by the State in opposition to this is that the proprietary rights of the Raja of Daiya were not acquired in the settle ment proceedings and that the Taluqdari allowance or the Malikana was payment towards dues in respect of the proprietary interest of the Raja in the 135 villages. The learned Single Judge, before whom the writ petition came up for hearing, was of the view that the right to Malikana in the present case was the right of the supe rior proprietor to receive 10% of the land revenue from the inferior proprietor through the State and was a right or privi lege in respect of the land or its land re venue. He accordingly held that this right was determined under clause (b) of Section 6 and dismissed the writ petition. The petitioner preferred a special appeal. The special appeal was heard by a Bench con sisting of Satish Chandra and Trivedi, JJ. Satish Chandra, J. was of the view that the appellant's case that the Malikana al lowance was paid as compensation for ac quiring the Taluqdar's title was not cor rect. According to him, by making pro vision for the payment of Malikana, the Government recognised the right of the Raja to receive an allowance from an in ferior proprietor and that the payment was secured to the advantage of the Raja by the arrangement that the interior proprietor will pay to the State Government and the State Government will then pay it to the Raja. He was accordingly of the opinion that the appeal should be dismissed. Tri vedi, J. was of opinion that the Malikana allowance was paid to the Rajas in lieu of their lost proprietary rights and, there fore, the allowance did not determine under Section 6 (b) of the U. P. Zamin dari Abolition and Land Reforms Act. On account of this difference of opinion, the Bench referred the above mentioned ques tion for opinion to a third Judge.
(3.) SRI Rajeshwari Prasad, learned counsel for the appellant, has argued the case before me at length. On his argu ments, the following three questions arise for consideration:- (i) Whether, in the settlement pro ceedings, the proprietary rights of the ap pellant's ancestor were acquired by the Government and whether he was given the Malikana allowance in lieu of the acquired rights; (ii) Whether in view of the decision of the Supreme Court in the State of Bihar v. Maharaja Pratap Singh Bahadur, AIR ]969 SC 164, the Malikana allowance in the present case cannot but be held to be in lieu of the acquisition or extinction of proprietary rights of the appellant's ances tors; and (iii) Whether on the settlement being made with the inferior proprietor, the pro prietary rights of the superior proprietor must necessarily come to an end? ;