KHONDKAR ALI AFZAL Versus PROVINCE OF EAST PAKISTAN AND 2 OTHERS
1. SATTAR, J.‑ --The petitioner has obtained a Rule nisi upon the respondents to show cause why withholding of payment of permanent malikana in the Rajshahi Collectorate to him by the respondents should not be declared to be without lawful authority and is of no legal effect.
2. The case of the petitioner is that he was enrolled in 1921 as recipient in the Roll of Recipients of permanent malikana amounting to Rs. 1178‑10‑8 per annum of the Rajshahi Col lectorate. The Roll was renewed from time to time. The present Roll bears No. 33 which took effect from the 1st October 1957, and was issued in lieu of Roll No. 38 of 1940. The petitioner continued to draw payments till April 1959 and thereafter on or about May 1964, submitted a bill for payment of Rs. 589‑5‑4 being the amount payable for the period 1st October 1963 to 31st March 1964, to the Deputy Commissioner, Rajshahi through his bankers, the Rajshahi Central Co‑operative Bank Ltd. Simultaneously, with the submission of the said bill, the petitioner addressed a petition to the said respondent ex haustively setting out the grounds which clearly indicated that the petitioner was entitled to receive payment and that his right could not in any way be considered to have been affected by the East Bengal State Acquisition Act, 1950. On the 10th September 1964, the petitioner received a reply to the said petition which stated
3. " .malikana as prayed for by the petitioner is not admissible under Board's Memo. No. 180 (2) B. & A‑424‑58, which covers all kinds of malikana payments, temporary, heritable and pensionary."
4. It is said that the said memo. of the Board of Revenue contains a decision in relation to a petition for payment of malikana in the Noakhali and Tippei'a Collectorates and reads as follows:‑
5. "It has been opined by the Law Officers of Government that the `Malikana' as defined in rule 154 of the Board's Miscellaneous Rules, 1934, was allowed in consideration of the right of proprietors but with the acquisition of the proprietary right under the provisions of the East Bengal State Acquisition and Tenancy Act, 1950, the proprietors cannot now claim any malikana and are entitled to compensation in lieu thereof.
6. Accepting the advice of the Law Officers the Board has been pleased to direct that the malikana in the above mentioned case and similar others should not be paid and that the cases should be referred to the Settlement Officers for fixing the compensation under the provision of the E. B. S. A. and T. Act, 1950."
7. The petitioner has asserted that he has not been divested of the right to receive payment of malikana by the East Bengal State Acquisition and Tenancy Act inasmuch as the said right has not been acquired under, or affected by, and is not liable to be acquired under the said Act, since a recipient of permanent malikana cannot be characterised either as a "rent‑receiver" or as a "proprietor " in terms of the definition of those words in the said Act.
8. In this case, though the respondents have appeared, they have not filed any affidavit‑in‑opposition.
9. The real question that falls for determination is whether the right claimed by the petitioner, namely, to receive malikana per manently, is acquirable under the East Bangal State Acquisition and Tenancy Act (hereinafter called the Act) and, if so, how. It has been contended on behalf of the petitioner that malikana is not a rent‑receiving interest, and as it is not also an interest of any of the other kinds which are acquirable under the Act, the claim of the Provincial Government that it has ceased to be payable on account of acquisition of all acquirable interests under the Act is not sustainable. "Rent‑receiver", according to the Act, means "a proprietor or a tenure holder, and includes a raiyat, an under rafyat or a non‑agricultural tenant whose land has been let out and also the immediate landlord of a person who holds any land free of rent in consideration of some service to be rendered, but does not include a person in respect of such of his lands, as has been let out, together with any buildings standing thereon and necessary adjuncts thereto, otherwise than in perpetuity". There are authorities to show that malikana is not rent. Reference in this connection may be made to 8 C L J 300 and I L R 5Cal. 921.
10. In order to understand the nature of this right, we can profitably refer to a passage in Tagore's Law Lectures by Sarada Charan Mitra on the Land Law of Bengal. It reads as follows:‑
11. "I shall now say a few words on the right known as malikana. It is an allowance for proprietary right to a person who was owner or proprietor. The rules making the Decennial Settlement permanent directed that the proprietors, who might finally refuse to enter into engagements for the amount of revenue required of them, should be allowed malikana, in consideration of their proprietary rights, at the rate of ten per cent. on the Revenue, if the lands were let in farm. The amount of the malikana was payable by the farmer to the proprietor, in. addition to the amount payable to the Govern ment as revenue, in instalments according to the instalments of Government revenue. The Collectors were to realise the malikana in the same way as Government revenue, and the Government guaranteed the amount to the proprietors. In the event of the land being held khas by Government, the malikana was payable by the Collector at ten per cent. on the net collections, after defraying the malikana and other charges. In Bengal proper, instances of payment of malikana by Govern ment to any farmer are very rare, except in cases of recent temporary settlements specially of lands gained by accretion and assessed under Act IX of 1847. Grants of malikana are largely to be found in Behar.
12. Regulation VII of 1822, enacted for the Ceded and Conquered Provinces and Cuttack, rescinded "all provisions in the then existing Regulations regarding the allowance" known as mahkana. As we have already seen, the Regulation was extended to all the other provinces in Bengal by Regulations, the rate of malikana was required to be fixed by the Board of Revenue, but the rate was not to be under five nor above ten per cent. unless there was a special sanction of Government for a higher rate. The highest amount of revenue tendered by a farmer was the basis of calculation, and, when no tender was made, the net realisation of the previous year. But the rules laid down in these Regulations had only prospective effect and did not affect malikana holders who were entitled to malikana under Regulation VIII of 1793.
13. Malikana is a distinct proprietary right and is an interest in land. But it is not rent, nor has it the elements which constitute the idea conveyed by the word `rent'. A suit for malikana is a suit for money charged upon immovable property, and the period of limitation is twelve years from the time when the money sued for becomes due."
14. It will not be out of place to quote rule 154 of the Bengal Board's Miscellaneous Rules which runs as follows:
15. "154. Malikana is of two kinds (vide Chapter XII, pages 98‑100 of Mr. D. J. McNeile's memorandum on the Revenue Administration of the Lower Provinces of Bengal, 1873).
16. I.‑Malikana, or proprietary allowance, granted for estates of which the settlement is not made with the proprietors. This is fixed for the term of the settlement,‑(a) when tender of settlement is made to the proprietor, and his offer is not accepted, in which case the malikana is calculated on the amount of his offer, and (b) when tender of settlement is made to the proprietor, but the settlement is refused absolutely without any offer being made, in which case the net collections of the year immediately preceding form the basis of the calculation of the malikana. In both these cases also amount of malikana is not dependent on collections, malikana is fluctuating‑(c) when settlement is not offered to the proprietor, the malikana being then calculated on the net collections of each year (vide section 5 of Regulation VII of 1822).
17. II. Malikana which was allowed to zamindars in virtue of their right as proprietors, in consequence of the settlement of their estates, or lands out of their estates, with others. This is a compensation permanently granted to proprietors,‑(a) on account of the settlement of their estates with others, on their refusal ; (b) for lands given out of their estates rent free to others, by royal or other grants, which were never subsequently resumed ; and (c) for such lands which were subsequently resumed and assessed to revenue by Government and settled with the holders. It is of a pensionary nature, and does not depend on collections.
18. Malikana of the first class is payable for a term of years only, that is, during the currency of a settlement. In cases (a) and (b) the amount is fixed, while in cast (c) ,it may vary from year to year. Malikana of the second class is permanent."
19. The legal basis for the above rule appears to be some of the Provisions of Regulation VIII of 1793 (section 43) and Regulation VII of 1882 (section 5). Now we are to judge, in the light of the above quoted passages, what is the position of malikana vis‑a‑vis the Act. We accept the contention of Dr. Kamal Hossain that it is not an interest which is acquirable under section 3 of the Act. This section authorises the Provincial Government to acquire by notification published in the official Gazette all interests of such of the rent‑receivers as may be specified in the notification in their respective estates, taluks tenures, holding or tenancies as the case may be. We have already noticed that "rent‑receiver" means "a proprietor". "Proprietor" according to the Act means "a person owning, whether in trust or for his own benefit, an estate or part of an estate". The question that arises in this connection is : whether, on the publication of a notification under section 3, malikana which no doubt is a proprietary right, also vests in the Provincial Government. The scheme of the Act, as originally contem plated in section 3, was that all interests of such of the rent receivers as may be specified in the notification would be acquired by publication of notifications under section 3 of the Act. A notification under section 3 must have therefore reference to any estate, taluk tenure, holding or tenancy. The malikana 4 interest claimed by the present petitioner has not been shown to be referable to any particular estate, taluk or tenure. In this view of the matter, we are unable to accept the stand of the Provincial Government that the right claimed by the petitioner vested in it on publication of the general notifications under section 3 of the 2nd April 1956.
20. Learned Advocate. General has argued that, even if it is held that malikana claimed by the petitioner has not vested in view of what has been stated above, it is a encumbrance within the meaning of the Act and therefore it disappeared on publica tion of the general notifications of the 2nd April 1956. "Encumbrance", in relation to any estate, tenure, holding, tenancy or land, means any mortgage, charge, lien, sub‑tenancy, easement or other right or interest created by the holder thereof on such estate, tenure, holding, tenancy or land or in limitation of his own interest therein. We are unable to accept this contention of the learned Advocate‑General. We have noticed the history of malikana. It cannot be called a creation of the proprietor in limitation of his own interest in any estate, tenure, holding, tenancy or land.
21. The findings to which we have reached, however, do not clinch the issue. We find that section 36 of the Act provides that withstanding anything contained in section 35, in the case of a recusant proprietor of a temporarily settled private state, the malikana payable to such proprietor in the agricultural year referred to in sub‑clause (t) or sub‑clause (fi) of clause (a) of subsection (1) of section 35, as the case may be, shall be deemed to be the net income of such proprietor computed under section 35. This section is a clear indicator of the fact that the intention of the Legislature was that malikana interest also would be acquired. How then can it be acquired on a close examination of the different provisions of the Act, we are of the view that this right is acquirable under Chapter V of the Act. Section 44 of the Act lays down that notwithstanding any thing contained in any other law for the time being in force or in Chapter II of this Act or in any contract, but subject to the provisions of clauses (a), (b), (c) and (d) of subsection (4) of section 3 and subsection (3) of section 46‑E of the publication of a notification in the official Gazette under subsection (2) of sec tion 43, declaring that a Compensation Assessment Roll has been finally published, some consequences shall ensue. One of these consequences is that all the interests of all the proprietors in their respective estates, of all the tenure‑holders in their respective tenures and of all other rent‑receivers in the holdings or tenancies respectively let out by such rent‑receiver within the area to which such roll relates or in such parts of such estates, tenures or holdings, or tenancies, as the case may be, as are within such area including the interests of all such proprietors, tenure holders and other rent‑receivers in all lands comprised in such estates, tenures and holding or tenancies or part of such estates, tenures and holdings or tenancies within such area which are in the khas possession of such proprietors, tenure‑holders and other rent‑receivers and the interests of all such rent‑receivers in all sub‑soil including any rights to minerals in such estates, tenures and holdings or tenancies or part of such estates, tenures and holding or tenancies within such area other than the interests which have already been acquired under Chapter II or subsection (3) of section 46‑E shall, with effect from the first day of the agricultural year next following the date of publication of such notification in the official Gazette, be deemed to have been acquired by the Provincial Government and vest absolutely in the Provincial Government free from all encumbrances but subject to the rights of such proprietors, tenure‑holders and other rent‑receivers specified in clause (2).
22. We have already noticed that the recipient of a malikana has been described as a "recusant" proprietor in the Act. In this view of the matter, we are unable to accept the contention on behalf of the petitioner that this is not a proprietary right and therefore is not at all acquirable under the Act. "It is a proprietary right and is an interest in land". In this view of the matter, there is no escape from the conclusion that this right is acquirable under Chapter V of the Act.
23. In the present case, the petitioner has asserted that no compensation roll in respect of the petitioner's right has been prepared. This assertion is not denied. A Division Bench of this Court in the case of Shaha Md. alias Shah v. Province of East Pakistan and others (17 D L R 277) has held that, in order to acquire an C interest which is acquirable under Chapter V, it is necessary to prepare Compensation Assessment Roll in respect of such a right.
24. Regard being had to these facts, we are of the view that the interest claimed by the petitioner, though acquirable, has not yet vested in the Provincial Government or has beers acquired by it. In this view of the matter, we do not see how the Provincial Government can refuse to continue payment of the malikana to the petitioner until his right is acquired under Chapter V of the Act.
25. In the result, this Rule is made absolute and it is declared that the respondents have, without any lawful authority, refused to pay the malikana to the petitioner.
26. In view of the facts of this case, there will however be no order as to costs.
27. SALAHUDDIN AHMED, J. ---‑I agree.
28. A. B./s. A. H. Rule made absolute.