COLLECTOR OF ALIGARH Vs. SMRAM DEVI

JUDGEMENT

(1.) This is a plaintiff's appeal and arises out of a suit brought by the Collector of Aligarh as Manager of the Court of Wards which is in charge of the estate of a particular lambardar under Section 159 of the Tenancy Act, for recovery of arrears of revenue paid to Government by that lambardar on account of the revenue due from the remaining co-sharers of the mahal, all of whom were arrayed as defendants to the suit. The fact that the revenue was paid to Government by the lambardar and that the revenue so paid was due on account of the Share of the defendants admits of no doubt. Over and above the revenue paid, the claim was also for lambardari dues at the rate of 15 per cent. on the revenue payable in respect of the share of the defendants. The suit was decreed by the trial Court and it passed a decree against all the defendants for the entire amount claimed.

(2.) On appeal by the defendants the lower appellate Court has modified the decree of the trial Court in two respects: firstly, it has awarded the lambardari dues at the rate of Rs. 5 par cent. instead of Rs. 15 per cent. allowed by the trial Court; secondly, it has worked out the proportionate revenue payable by each of the defendants to the suit and has passed a decree specifying the liability of each of the defendants for the amount for which he was liable.

(3.) The decree of the lower appellate Court has been assailed before me on two grounds: Firstly, it is argued that the interpretation put by the lower appellate Court on Section 144 of Act 3 of 1901 is not correct and that Court has erred in holding that, notwithstanding any rules to the contrary made by the Local Government in pursuance of the power vested in it by Section 234 of the Act, the lambardar is not entitled to Lambardari dues at a rate exceeding Rs. 5 per cent. of the revenue payable. It is urged that the words "subject to rules made under Section 234" govern the latter provisions of the section including the provision, fixing the maximum of the lambardar's fee at Rs. 5 per cent. I am unable to agree with this contention. It appears to me that by Section 144 of the Act the Legislature fixed the maximum of lambardar's fee at Rs. 5 per cent, of the revenue, and all that was left to the Local Government, by rules framed under Section 234; was to fix the scale of such fees provided the scale so fixed did not exceed Rs. 5 per cent. The phrase "subject to rules made under Section 234" has to be read with the words "as the Local Government may prescribe," If the argument of the learned Government Advocate were to prevail, the necessary consequence would be to hold that the Legislature, while fixing the maximum of the lambardar's fee at 5 per cent, of the revenue, and leaving it to the Local Government to prescribe different scales with respect to different mahals, provided the maximum did not exceed Rs. 5 per cent, of the revenue, also subjected the maximum fixed by itself and the scale fixed by the Local Government to any rules to the contrary made by Section 234. This I find myself unable to do. The rules under Section 234 are made by the Local Government and it is those rules, which have to govern the scale of lambardar's fees, but those rules to be valid must be consistent with the provisions of Section 144 and as such the scale fixed by those rules cannot exceed Rs. 5 per cent, of the revenue. For these reasons, I am in agreement with the view taken by the learned District Judge on this point.