DIVISIONAL FOREST OFFICER Vs. BISHWANATH TEA GO LIMITED

JUDGEMENT

(1.) This appeal by special leave arises out of a writ petition filed by the respondent Bishwanath Tea Co., Ltd., in the Assam and Nagaland High Court questioning the action of the appellant, the Divisional Forest Officer, Darrang Division, of recovering Rupees 7069.37 p. as royalty for cutting and felling trees from Tezalpatty grant No. 1 held under lease dated September 27, 1932, and for a mandamus directing the appellant to issue permits without insisting upon payment of royalty for the trees cut and felled from the area under lease.

(2.) Respondent Bishwanath Tea Co. Ltd. ('Company' for short), took on lease land admeasuring 1107.26 acres from the Government. The lease was executed between the Company and the Secretary of State for India. The lease in the first instance was for a period of 15 years commencing from April 1, 1932. The lease was to be exploited for cultivation and raising tea garden. The lease was subject to conditions set out therein and generally to Assam Land and Revenue Regulation and the rules made thereunder. On February 15, 1966, manager of the Company approached the appellant seeking permission to cut 7000 cubic feet of timber from Grant N. C. Tezalpatty No. 1 of Nagshankar Mouza, for utilising the same for building of staff and labourer's houses. By the reply dated April 4, 1966, the appellant noted that the timber was to be cut for constructing houses in Partabghur and Dekorai Tea Estates and that it was necessary to ascertain whether any of the aforementioned two Tea estates was situated within the grant evidenced by lease N. C. Tezalpatty No. 1. It was made clear that if it was not so, full royalty will be payable by the company for cutting, felling and removing timber. The manager by his letter dated April 23, 1966. informed the appellant that as the lessee is Bishwanath Tea Co. Ltd., it can cut and fell timber from any of its leased area to be utilised for its purposes in any other division. Therefore, the manager suggested that the permit must be issued without insisting on Payment of royalty. The appellant by his letter dated May 12, 1966, informed the manager that as the timber was required for use in Partabghur and Dekorai tea estates which were not within N. C. Tezalpatty Grant No. 1 of Nagshankar mouza from which timber was to be felled and cut, full royalty will be payable on timber so cut and removed because it was to be utilised for the purpose unconnected with the grant. For this assertion the appellant relied upon a portion of clause (2) of Part IV of the lease deed dated September 27, 1932. Correspondence further ensued between the parties and ultimately the respondent company paid an amount of Rupees 7069.37 p. as and by way of royalty under protest and then filed a petition under Article 226 of the Constitution in the High Court alleging that upon a true construction of the relevant clause of the grant as also proviso to Rule 37 of the Settlement Rules as the timber was required for the purpose connected with the exploitation of the grant, the company as lessee was entitled to cut and remove timber without payment of royalty and, therefore, the recovery of royalty being unsupported by law, the appellant was liable to refund the same. The company also prayed for a mandamus directing the present appellant who was respondent in the High Court for issuing permits without insisting on payment of royalty whenever timber was to be cut from the leased area for the purposes connected with the exploitation of the grant.

(3.) The appellant filed his return to the rule issued by the High Court. A preliminary objection was raised that the right claimed by the respondent flowed from the contract of lease and such contractual rights and obligations can only be enforced in civil Court. It was contended that apart from the fact that interpretation of the contract of lease is generally not undertaken by the High Court in exercise of its extraordinary jurisdiction under Art. 226. it was further contended that even if interpretation of the relevant clause of the lease as alleged on behalf of the respondent finds favour with the Court, yet facts will have to be investigated before any refund could be ordered or a blanket injunction could be granted for all times to come against the appellant from performing his duty, namely, of granted permit and recovering royalty.