Appeal No 529 of 1958
Appeal from the judgment and decree dated March 61956 of the Allahabad High Court in Civil Misc
Writ No 464 of 1954
C B Agwarwala K B Asthana and C P Lal for the appellants
M C Setalvad Attorney General of India A V Viswanatha Sastri and section P Varma for the respondent
August 22
The Judgment of the Court was delivered by SHAH J
Under a treaty between the East India Company and Nawab Asafuddaula the Province of Banaras was ceded about the year 1775 to the East India Company
The Company then granted a sanad to Raja Chet Singh the former ruler of Banaras and under that sanad the rights and powers previously held by Raja Chet Singh were conferred afresh
Raja Chet Singh granted in jagir pargana Syudpore Bhettree in perpetuity to his Diwan Ousan Singh as remuneration for services rendered to his family
Raja Chet Singh having renounced his gadi the East India Company confirmed the grant made by the Raja in favour of Ousan Singh
Raja Chet Singh was succeeded by Raja Mahip Narain Singh who executed a sanad in favour of Ousan Singh affirming the grant
Land revenue settlements were made in the Province of Banaras about the year 1789 90 but the jagirs including Syudpore Bhettree were excluded from that settlement
Ousan Singh died in or 216 about the year 1800 and his son Sheo Narain Singh succeeded to the jagir
In the enquiry held by the Collector of Ghazipore into the proprietary right claimed by the jagirdar under Regulation 11 of 1819 it was declared that the grant to Ousan Singh was for life only and did not confer a heritable or transferable tenure in the parganas
The decision of the Collector was confirmed by the Commissioner of Bihar and Banaras subject to the recommendation that Sheo Narain Singh should be maintained in possession of the parganas for life
The Government then directed in 1828 that a detailed settlement be made with the village zamindars and offered Sheo Narain Singh allowance for life of one half of the revenue to be assessed on the pargana
Sheo Narain Singh declined to accept the offer and commenced an action in the civil court contesting the validity of the order resuming the jagir
The Government considered the question afresh and resolved to revise the order of resumption and in July 1830 ordered that Sheo Narain Singh be considered Tahsildar of parganas Syudpore Bhettree and that the office be treated as hereditary devolving upon the descendants of the jagirdar and held so long as the incum bent did not infringe the privileges found to belong to other classes at the time of formation of the settlement
Sheo Narain Singh died before the resolution of the Government was communicated to him and he was succeeded by his son Harnarain Singh who withdrew the suit and signed a compromise incorporating the terms of the resolution
On August 19 1831 the Secretary to the Government addressed to the Agent of the Governor General at Banaras a letter requesting the Secretary to the Governor General in the Pension department to prepare the necessary documents relating to the grant of a sanad specifying that parganas Syudpore Bhettree were granted on an istmrar tenure to Harnarain Singh for his own benefit and of his heirs and successors in perpetuity_on condition of their 217 paying to Government 34ths of the Jamma which the revenue officers may in a resettlement of the parganas assess thereon and that all claims to proprietary right to any village or villages situate in the Raid parganas shall be fully enquired into and in the event of any such claims being established to the satisfaction of the Government the village or villages forming the subject of the claim shall be considered distinct from and independent of the grant and that a settlement shall be made with the proprietors as in other cases that the office of Tahsildar shall belong to Harnarain Singh and be hereditary in his family so long as the conditions prescribed for the duties of that office be not infringed and that in virtue of such office the separate proprietors shall continue to pay the Jamma which may be assessed on their villages through Harnarain Singh or such other member of the family as the Government may appoint provided that 14th of the Jamma of such separated villages shall be deducted from the payment to be made to the Government in lieu of all remuneration for discharging the duties of Tahsildar and provided further that until the settlement shall be completed Harnarain Singh shall continue to pay Jamma to Government
This proposal calling upon Harnarain Singh to bear all the expenses of the administration and any loss in collection which may occur departed from the terms of the compromise
Harnarain Singh refused to accept the offer of a sanad on the terms set out in that letter and also the office of Tahsildar
In the meanwhile proceedings for settlement were commenced and on November 16 1832 the Settlement Officer reported on the conclusion of a summary settlement of the parganas that in 166 mahals the village zamindars established proprietary rights and the revenue
assessed upon them was Rs 1281960
He further reported that 12 mahals of which the gross revenue was Rs 22840 were settled with the jagirdar at a reduced revenue of Rs 17130
Harnarain Singh having refused to undertake 218 the office of Tahsildar on the terms offered by the Government the Board of Revenue suggested that Harnarain Singh should receive 14th of the net collections after deducting from the gross collection the cost of Tahsil establishment thereby giving him an income of Rs 36322 8 0
The Board of Revenue recommended that a sanad be issued under the authority of the Lt Governor conferring the pension of Rs 36322 8 0 on Babu Harnarain Singh and his heirs in perpetuity
In a letter dated September 13 1837 it was recorded that the Lt Governor of NWF Province was of the view that it would be more conformable with the terms of the agreement if the allowance on Harnarain Singh s villages 12 mahals were given in the form of a remission of revenue to the amount of one fourth the Jamma being fixed at Rs 17130 instead of Rs 22940 and in the villages settled with zamindars 166 mahals Harnarain Singh be paid annually a pension of 14th of the collections after deducting the Tahsildari charge and on that footing Rs 30612 8 0 be granted to Harnarain Singh
By letter dated October 19 1837 from the Secretary to the Lt Governor NWF Province the Secretary to the Board of Revenue was informed that the Lt Governor had resolved to adopt the Board s recommendation made in their letter dated September 26 1837 and to allow Harnarain Singh 14th of the not collections after deducting the expenses of the Tahsildari establishment i e Rs 30 612 8 0 out of a net Jamma of the villages amounting to Rs 128960
About the 12 mahals settled with Hamarain Singh the allowance was directed to be made in the form of a remission of 14th of revenue assessed
Finally by letter dated September 14 1838 from the Secretary to the Sadar Board of Revenue to the Officiating Commissioner 5th Division Banaras it was stated that  what the Government intended to give is a clear fourth of the net revenue of the Pargana to the Muqurrureedar as pension
The letter further stated
219 2
The arrangement of paying a portion of that pension by a remission of revenue on certain mauzas settled as was supposed directly with the muqurrureedar was proposed by the Board and allowed by Government as a mere matter of convenience to the parties
Neither Government nor Board intended to alienate any part of the muqurrureedar s pen sion to his son or to any other person
If the mauzas supposed to have been settled with the muqurrureedar for his own use and behalf turn out to be held by another person on a distinct interest it will be necessary the Board observe to modify the arrangement previously allowed and to collect the whole assessed revenue of those mauzas as of all others  and when the same shall have been collected to pay the Muqurrureedar his clear fourth of the net collections
As however these mauzas were settled by the Government with the Muqurrureedar his responsibility for the Jumma any portion of revenue which may fall in arrear by person or the arrangement made by him or of the domes tic differences of his family must be made good from his pension before the assignment of the fourth share of the net collections can have effect
The Board must consider the Muqurrureedar as the owner of these villages during his life
With his family arrangements they have no concern
But if it will be his wish that the whole revenue be collected from these villages and one fourth be returned to him from the treasury instead of receiving tha t fourth in the shape of a remission he is at liberty to make the election
He is also the Board remark of course at liberty to cause those mauzas to be 220 transferred or sold in the case of arrear but his responsibility for the assessed Jumma as fixed by the act of settlement will remain the same
It is manifest that the recommendations made by the Board of Revenue and the Secretary to the Government in the lengthy correspondence varied from time to time but in the final letter it appears to have been made clear that an amount equivalent to 14th of the net revenue of the 166 mahals be given as pension annually to the jagirdar
A formal sanad though contemplated was it appears never issued but it is common ground that the allowance was paid through the Treasury Office of the Collector of Ghazipor year after year since the year 1838 to Harnarain Singh and his descendants
This allowance to the jagirdar of Syudpore Bhettree was called sometimes in the revenue papers malikana sometimes pension and sometimes a share in the revenue of the entire pargana 
In 1951 the U P Legislature enacted the Uttar Pradesh Zamindari Abolition and Land Reforms Act 1 of 1951 and relying upon section 6b of the Act the revenue authorities stopped payment of the allowance to the descendants of Harnarain Singh
The respondent who is a descendant of Harnarain Singh then presented Writ Petition No 464 of 1954 in the High Court of Judicature at Allahabad for a writ in the nature of mandamus calling upon the State of Uttar Pradesh to forbear from interfering with his right to regular payment of the pension allowance or malikana payable in
lieu of the hereditary estate of Harnarain Singh in respect of parganas Syudpore Bhettree and for an order for payment of the pension allowance or malikana as it fell due
The respondent claimed inter alia that by virtue of the notification issued under section 4 of the Act his right to receive the pension did not cease especially when the scheme of the Act and the principle of assessment did not contemplate payment 221 of compensation in respect of extinction of his right to the allowance and that in any event there was no nexus between the pension and the estates sought to be acquired under Act 1 of 1951 or the zamindari system so tight to be abolished because the pension was neither land nor Immovable property nor an estate within the meaning of the Act and being merely compensation payable to him in lieu of the rights of his ancestors over the estates comprised within the pargana Syndpore Bhettree it was not liable to vest in the State
The High Court rejected certain preliminary objections to the maintainability of the petition which objections are riot canvassed in this appeal and held that the right of the respondent to receive Rs 36330 per annum was not an estate within the meaning of the Act and that the right was not acquired under the Act nor did compensation fall to be paid for the same
In the view of the High Court under section 6 of the Act only the rights of the intermediaries in respect of land revenue of the lands comprised in the estate were extinguished and that the rights of third parties under a contract with the State not relating to the rights and privileges of intermediaries tenants or other persons having interest in land were not effected and the predecessors in interest of the respondent having been granted an allowance
annually in lieu of abandonment of the right to realise land revenue the arrangement did not come to an end because of the abolition of the zamindari under the Act
The question which falls to be determined in this appeal by the State of Uttar Pradesh is whether the right of the respondent to receive the allowance under the arrangement of the year 1838 was extinguished as a consequence ensuing from the vesting of the Sudpore Bhettree parganas in the State of Uttar Pradesh under section 4 of the Act
By the preamble
it was recited that the Act was enacted to provide for the abolition of the 222 zamindari system which involved intermediaries between the tiller of the soil and the State and for the acquisition of their rights title and interest and to reform the Law relating to land tenure consequent upon such abolition and acquisition and to make provision for other matters connected therewith
By s3 8 which was retrospectively are ended by Act 14 of 1958  estate was defined as meaning the area included under one entry in any of the registers described in cls
a to d and in so far as it relates to a permanent tenure holder in any register described in el
e of section 32 of the U P Land Revenue Act 1901 as it stood immediately prior to the coming into force of the Act or subject to the restrictions mentioned with respect to the register described in el
e in any of the registers maintained under any other Act Rule Regulation or Order relating to the preparation or maintenance of record of rights in force at any time and included share in or of an estate  Intermediary was defined as meaning with reference to any estate a proprietor under proprie tor sub proprietor the kadar permanent lessees in Avadh and permanent tenure holder of such estate or part thereof
Land was defined as meaning except in sections 143 and 144 as land held or occupied for purposes connected with agriculture horticulture or animal husbandry which included pisciculture and poultry farming
By s4 provision was made for vesting of estates in the State of Uttar Pradesh
By sub s1 it was enacted insofar as it is material that the State Government may by notification declare that as from a date to
be specified all estates situate in Uttar Pradesh shall vest in the State and from the date so specified all such estates shall stand transferred to and vest except as provided in the Act in the State free from all encumbrances
Section 6 provided for the consequences of an estate in the State
On the publication of a notification under section 4 of the Act notwithstanding anything contained in any contract or document or in any other law for the time being in force and nave as 223 otherwise provided in the Act the consequences set forth in clsa to j of section 6 were to ensue in the area to which the notification related
By cla all rights title and interest of intermediaries in every estate in such area and in the sub soil in such estate including rights if any in mines and minerals ceased and vested in the State
Clause b on which the dispute primarily turns provided  All grants and confirmations of title of or to land in any estate so acquired or of or to any right or privilege in respect of such land or its land revenue shall whether liable to resumption or not determine By cl
c all rents local rates and sayar in respect of any estate or holding therein for any period after the date of vesting and which but for the acquisition would be payable to an intermediary vested in and became payable to the State Government and not to the intermediary  and where under an agreement or contract made before the date of vesting any rent cess local rate or sayar for any period after that date had been paid to or compounded or released by an intermediary the same notwithstanding the agreement or the contract became recoverable by the State Government from the intermediary
By cls
d and e liability of intermediaries in respect of any estate incurred for any period prior to the date of vesting remained enforceable
By cl
f the interest of intermediaries in any estate was exempt from attachment or sale in execution of any decree or other process of any court and any attachment existing at the date of vesting or any order for Attachment passed before such date subject to the provisions of section 73 of the  ceased to be in force
By cl
a mortgages with possession on any estate or part of an estate on the date immediately preceding the date of vesting were to be deemed to have been substituted by simple mortgages without prejudice to the rights 224 of the State Government 
By el
h no claim or liability enforceable or incurred before the date of vesting by or against an intermediary for any money charged on or secured by a mortgage of an estate or part thereof was except as provided in 73 of the  to be enforceable against his interest in the estate
By el
i all suits and proceedings of the nature to be prescribed pending in any court at the date of vesting and  all proceedings upto any decree or order passed in any such suitor proceeding previous to the date of vesting were stayed
By cl
j all mahals and their subdivisions existing on the date immediately preceding the date of vesting and all engagements for the payment of land revenue or rent by a proprietor under proprietor sub proprietor co sharer or lambardar as such determined and ceased to be in force
Section 37 to 40 of the Act provided for the preparation of the Compensation Assessment Roll of intermediaries as respects mahals and for preparation of gross assets of mahals
It was on this Compensation Assessment Roll that the compensation payable for loss of interest of the intermediaries was to be computed and paid
Section 42 provided for computation of gross assets of an intermediary and section 44 for computation of the net assets of an intermediary
Section 45 provided that in the case of proprietors to whom section 78 of the UP Land Revenue Act 1901 applied or who were as
signers of land revenue whose
names were recorded in the record of rights maintained under cls
a to d of section 32 of the said Act under proprietors sub proprietors permanent tenure holders and permanent lessees in Avadh the provisions of sections 39 to 44 were to apply subject to such incidental changes and modifications as may he Prescribed and the gross assets and net assets of such intermediaries were to be computed accordingly  225 By the definition in section 3 8 of the Act an estate is an area included under one entry in the registers described in clsa to d of the Land Revenue Act
The High Court upheld the contention of the respondent that allowance paid to him could not be regarded as an estate
That view is not challenged before this Court by counsel for the State of Uttar Pradesh
The right to receive the allowance of Rs 30612 8 0 from the Government under the arrangement cannot in the absence of an express provision to that effect be called an area included under one entry in any of the registers described in the various clauses
The first part of section 6b does not therefore assist the claim made by the State
But of the 12 mahals the respondent was a proprietor  the land of the mahals was estate within the meaning of section 38 of the Act and by section 4 the right of the respondent in that estate stood vested in and transferred to the State
It is true that by the arrangement of the year 1838 confirming the earlier compromise remission of 25 as granted to the respondent s predecessors in respect of payment of land revenue
If the right of the respondent in the 12 mahals ceased the right to remission could not be converted into a positive right to receive the amount thereof notwithstanding the extinction of his right in those 12 mahals
The right to remission of land revenue was a right in respect of land revenue in the estate which stood vested in the State
The letters dated September 13 1837 October 19 1837 and June 15 1838 make it abundantly clear that the difference of Rs 5710 between the amount originally assessed and the Jamma recoverable was to be remission of revenue
The right of the respondent to the 12 mahals was transferred to the State by virtue of the notification under section 4 and the consequences set out in sub section
b of section 6 relating to those 12 mahals ensued
We are therefore unable to agree with the 226 High Court that for the amount of Rs 6710 which was treated as remissions the respondent was entitled to obtain relief on the footing that right was not affected by the issue of the notification under section 4 of the Act
The claim of the respondent in respect of the allowance granted as consideration for abandonment of the right to 166 mahals rests on a firmer ground
It is true that this allowance as computed as 14th share of the revenue assessed on the 166 mahals
But the respondent under the arrangement has no interest in the land of the 166 mahals or in the land revenue payable in respect thereof
By the order of the Government the right of Sheo Narain Singh to the entire pargana Syudpore Bhettree was resumed
Sheo Narain Singh challenged the authority of the Government to resume his interest in the Jagir and dispute pending in the civil court was compromised on the terms which were finalised in the year 1838 whereby Harnaram Singh and his descendants were given an allowance in amount equal to 14th of the net revenue of the 166 mahals
Because the annual allowance is equal to a fourth share of the net revenue of the mahals the right of the respondent does not acquire the character of an interest in land or in land revenue
Under the arrangement the entire land revenue was to be collected by the Government and in the collection Harnarain Singh and his descendants had no interest or obligation
As a consideration for relinquishing the right to the land and the revenue thereof the respondent and his ancestors were given an allowance of Rs 30612 13 0
The allowance was in a sense related to the land revenue assessed on the land ie it was fixed as a percentage of the land revenue  but the percentage was merely a measure and indicated the source of the right in lieu of which the allowance was given
The amount is described as pension in the letters dated September 14 1838 July 7 1837 and June 151838
The words used in el
b are undoubtedly wide 227 any right to a grant which has relation to land or land revenue would be determined by the operation of that clause
But the allowance to Harnarain Singh was not in respect of land or its revenue it was granted as consideration for settlement of a claim litigated in a civil court relating to that land
The primary object of the legislature as set out in the preamble of the Act was to abolish the zamindari system and to acquire the rights of the intermediaries and to pay compensation for acquisition of those rights
By section 4 estates in the area for which a notification was issued vest in the State free from all encumbrances and as a consequence of vesting the rights of intermediaries but not their preexisting liabilities are extinguished as from the date of vesting
Clauses ac to f and b expressly deal with the rights and obligations of interme diaries and the interaction thereon of the notification of vesting
Clause g deals with the derivative rights of mortgagees of estates
By el
i the mahals and sub divisions are obliterated and the engagements for payment of land revenue or rent by proprietors under proprietors sub proprietors co sharers and sub sharers cease
There is no express reference in section 6 b to the right of intermediaries  by the first part of that clause the grant and confirmation of title to land in an estate are determined and by the second part the rights and privileges in land or in the land revenue in the estates are determined
The key words of the second part of the clause are in respect of indicating a direct connection between a right or privilege and land in an estate or its revenue
The intention of the legislature is manifestly to extinguish estates and all derivative rights in estates and to extinguish the interest of intermediaries between the State and the tiller of the soil
If the grant or confirmation of title is in respect of a right or privilege to land in an estate or its revenue it must determine under cl
b  but a right to receive an allowance which is 228 granted in consideration of extinction of a right to land or land revenue does not by the force of cl
b determine
The allowance has not the quality of land or land revenue  its quantum only was measured by equating it with a fourth share in the net revenue of a part of land which was the subject matter of the suit in which the arrangement for payment of the allowance was made
Absence of a provision in the Act for payment of compensation for a right such as the one claimed by the respondent strongly supports the plea that the right is not intended to be acquired or extinguished
Section 37 to 44 deal with the assessment of compensation to be paid to intermediaries
Compensation Assessment Roll of intermediaries in respect of the mahals has to be prepared and detailed instructions in that behalf are contained in sections 39 to 44
By section 45 in computing the gross assets and net assets of proprietors who are assignees of land revenue and of under proprietors sub proprietors permanent tenure holders and permanent lessees in Avadh sections 39 to 44 of the Act are applicable subject to such modifications and incidental changes as may be prescribed
It is common ground that s78 of the U P Land Revenue Act has no application to Syudpore Bhettree pargana
To proprietors who are assignees of land revenue and whose names are recorded in the record of rights maintained under s32 cls
a to d the provisions of ss 39 to 44 may undoubtedly apply subject to modifications as may be prescribed and computation of their gross and net assets may be made accordingly
But the respondent is not an assignee of land revenue whose name is so recorded in the record of rights nor is he qua the allowance an under proprietor sub proprietor permanent tenure holder or permanent lessee
Section 45 is a machinery provision  it does not purport to extend the field of s6 by prescribing consequences which are not incorporated in that section
There is in s45 nothing to warrant the submission of counsel for the State that rights of a 229 land holder to receive allowances from the Government are extinguished even without compensation merely because he was an assignee of land revenue of some land or was a proprietor sub proprietor permanent tenure holder or permanent lessee in respect of other land in Avadh
The scheme for payment of compensation prescribed by sections 39 to 44 is extended to amongst others proprietors of land who are assignees of land revenue whose names are recorded in the record of rights maintained under cls
a to d of s32  but a person receiving an allowance from the State of the character received by the respondent is not a proprietor who is an assignee of land revenue and in any event if his name is not entered in the revenue record under cls
a to d of s32 the provisions relating to computation of gross and net assets will not apply to him
Absence of a provision in the Act for awarding compensation to persons holding interest such as the respondent has strongly supports the view that such interest was not to be extinguished by the operation of s6b of Act 1 of 1951
We accordingly hold that the High Court was right in granting the application preferred by the respondent insofar as it related to the allowance of Rs 30612 13 0 granted as a consideration for extinction of the right of Harnarain Singh to 166 mahals  but for reasons already stated we are unable to agree with the High Court that the respondent was entitled to receive in respect of the 12 mahals the land revenue which was remitted
The order passed by the High Court will therefore be modified and the petition of the respondent in so far as it deals with remission of land revenue in respect of the 12 mahals of Syudpore Bhettree will stand dismissed
The order of the High Court in respect of the allowance of Rs 30612 13 0 will stand confirmed
Subject to the above modifications the appeal will stand dismissed with costs
Appeal dismissed


Summary:
By the order of the then Government the right of S an ancestor of the respondent to the entire parganas Syudpore Bhettree was resumed
S challenged in a civil court the authority of the Government to resume his interest in the jagir
During the pendency of the dispute settlement proceedings were commenced and in 1832 the Settlement Officer reported that to 166 mahals of the Syudpore Bhettree pargana the village zamindars had established their proprietary rights and only on 12 mahals the proprietary right of S had been established
The dispute pending in the Civil Court was compromised and the terms were finalised in 1838 with H son of S who had died in the meantime
The terms inter alia were that for 214 166 mahals settled with the Zamindars H and his heirs in perpetuity be paid annually a pension of 14th of the collections after deducting the Tehsildari charges and for 12 mahals settled with H allowance be made in the form of remission of 14th of the revenue assessed
The Government under the settlement intended to give a clear fourth of the net revenue of the parganas as pension
The allowance and or pension was paid through Treasury Office year after year from 1838 to H and his descendants
In 1951 the UP Legislature enacted the Uttar Pradesh Zamindari Abolition and Land Reforms Act 1 of 1951 and under s6b of the Act the revenue authorities stopped payment of the allowance to the respondent
The respondent claimed that by virtue of the notification issued under s4 of the Act his right to receive pension did not cease because the pension was neither land nor immovable property nor an estate within the meaning of the Act and being merely compensation payable to him in lieu of the rights of his ancestors over the estates comprised within the pargana Syudpore Bhettree it was not liable to vest in the State
Held that the right to receive the allowance of Rs30612 8 0 for 166 mahals from the Government under the arrangement was not in respect of land or its revenue it was granted as consideration for settlement of a claim litigated in a civil court relating to that land and could not in the absence of an express provision to that effect be called an area included under one entry in any of the registers described in various clauses a to d of s32 of the UP Land Revenue Act 1901
The intention of the Legislature was to extinguish estates and all derivative rights in estates and to extinguish the interest of intermediaries between the State and the tiller of the soil
The grant of confirmation of title which is in respect of a right or privilege to land in an estate or its revenue it must determine under clb of s6 of the Act but a right to receive an allowance granted in consideration of extinction of a right to land or land revenue does not by the force of cl
b determine
The allowance has not the quality of land or land revenue its quantum only was measured by equating it with a fourth share in the net revenue of a part of land which was the subject matter of the suit in which arrangement for payment of the allowance was made
A person receiving an allowance from the State in consideration of extinction of a right to land or land revenue is not a proprietor who is an assignee of land revenue and in particular if his name is not entered in the revenue record under clsa to d of s32 of the UP Land Revenue Act 1901 the provisions relating to computation of gross and net assets will not apply to him
The Act does not intend to extinguish the right to receive allowance granted in 21 considerations of extinction of right to land or land revenue by the operation of s6b of the Act 1 of 1951
Held further that the respondent was a proprietor of the 12 mahals of the Syudpore Bhettree Parganas
The said 12 mahals were an estate within the meaning of s38 of the Act and by section 4 the right of the respondent in that estate stood vested in and transferred to the State
The right of the respondent in the 12 mahals having ceased the right of remission could not be converted into a positive right to receive the amount thereof