1. The question in this appeal is whether the penalty la vied by the Taluqdari Settlement-officer on the plaintiff-respondent was legal or illegal.
2. The two villages of Aghar and Chanothia are talukdari villages. They were under the management of the Taluqdari Settlement-officer who leased them for twenty-five years in 1906 and 1905 respectively to the plaintiff-respondent under the leases Exhibits 31 and 32. These leases stipulated payment of the rents on certain dates by the lessee. In 1922 default was undoubtedly made in respect of both the villages on the due dates, viz., February 25 in the case of Aghar and March 10 in the case of the other village. The Taluqdari Settlement-officer sent him a notice on April 8, 1922, which the respondent received on April 11, asking him to pay the rent within ten days. The payment was not made till April 24, the 22nd being Saturday. The trial Court held, and, in our opinion, rightly, that there was delay both in respect of the period in the two leases and of the period in the notice. Before the payment on the 24th was notified to the Taluqdari Settlement-officer in the Viramgam sub-treasury he imposed a penalty on April 25 of one-fourth of the amount due in respect of each village. That penalty the respondent paid under protest, and he brought the present suit to recover the amount from the Secretary of State in Council. The main issue in this suit was whether the Taluqdari Settlement-officer had a right to impose the penalty. The trial Court held that he had not. The defendant, the Secretary of State, appeals.
3. For the appellant reliance is placed on Section 33(2)(e) of the Gujarat Taluqdars Act (Bombay Act VI of 1888), and it is argued that the Taluqdari Settlement officer had power under Section 148 of the Bombay Land Revenue Code to impose the penalty, the respondent being the inferior holder as against the Taluqdari Settlement-officer a superior holder, while in respect of the tenants of the village the plaintiff respondent was the superior holder and they the inferior holders. The point at issue is, in our opinion, narrow. Under the definition 'superior holder' of Section 3, Clause (13) of the Bombay Land Revenue Code, it may be conceded that the Taluqdari Settlement-officer on the one hand and the plaintiff-respondent on the other were respectively superior and inferior holders. Further, while the village was under his management, the Taluqdari Settlement-officer had powers beyond those of the taluqdar himself under Section 33(2)(e) of the Gujarat Talqudars Act. But Section 148 under which alone the penalty up to twenty-five per cent, could be imposed in terms applies only in case of default of the payment of the land revenue within the prescribed time and not for default of rent. The fact that the Taluqdari Settlement-officer is during the period of his management vested with certain powers of the Collector under the Bombay Land Revenue Code does not ipso facto or necessarily make rent land revenue. As observed in Jinabhai v. The Collector (1925) 28 Bom. L.R. 416, the land revenue is nowhere expressly defined. Taking it in its plain meaning, land revenue must be taken to mean money payable to Government in respect of land. The rent in question is payable not to Government but to the Taluqdari Settlement-officer. It is the latter who pays to Government from the rents paid by the respondent. It is true that under Section 86 of the Bombay Land Revenue Code a superior holder is entitled to assistance upon a written application to the Collector in the manner prescribed in Chapter XI. But that does not necessarily mean that superior holders are entitled to levy a penalty for non-payment of rent because Government for non-payment of the land revenue are so entitled under Section 148 of the Bombay Land Revenue Code. As far as we know no such application had ever been made and certainly none has been allowed whether in the revenue or in the civil Court. No decisions have been cited to us to hold that superior holders in general are entitled to levy a penalty on inferior holders for delay in the payment of rent. The decision in Jinabhai v. The Collector may be distinguished, in our opinion, on two grounds. That was a case of a tenant who claimed to be a permanent tenant and resisted the enhancement of rent. There was no question as here of the failure to pay the rent, Nor does it appear from the report that the penalty was imposed, or that the Taluqdari Settlement-officer was held entitled to impose the penalty. The point is, as far as we know, novel, and in the present case, moreover, the amount had actually been paid before the penalty was imposed. The hardship in this particular case is, therefore, to a certain extent on the respondent. For instance even if the superior holder has no right under the Bombay Land Revenue Code to impose a penalty for default as against the inferior holder, it is always 'possible for him to do so by express terms in the lease. And if such a power is necessary in respect of these lands, the remedy would appear to be by the insertion of such an express agreement in the lease for the lessee to subject himself to such a penalty in default of payment on the due date. On the whole, therefore, we are of opinion that the conclusion of the learned Subordinate Judge was correct.
4. The appeal fails and is dismissed with costs.
5. I agree and have nothing further to add.