LALA BENI RAM Vs. KUNDAN LALL

JUDGEMENT

(1.) THE appellant is the owner of the Jharia estate. In 1898 his predecessor granted a mining lease of a part of that estate to the predecessor of respondent 1. The terms of that lease are set out in a kabuliyat of 22nd October, 1898, which begins "This kabuliyat regarding Mourushi Mukarrari, i.e. permanent settlement on commission of coal land is executed to the following effect." The provision the meaning of which is in dispute in the present litigation is as follows : "1. That for the quantity of coal which I shall raise from the leasehold entire 1103 bighas 13 kathas of coal land of Ektra I shall pay commission, i. e., royalty on steam coal, rubble coal, hard coke and soft coke at the rate of 3 annas pet ton and for rubble and dust for burning bricks at 1 anna 6 pies per ton. Be it stated that I shall pay royalty at the present fixed rate for the coals, which will be despatched by the East Indian Railway line. But in rotate if the Bengal Nagpur Railway line is constructed and the freight of coal becomes less by 2 annas at least or more than what is fixed at present per ton. I shall pay royalty for those coals, which shall be despatched in the aforesaid manner at the said reduced freight, at 5 annas per ton on steam, steam rubble, soft coke and hard coke and 2 annas 6 pies per ton on rubble and dust for burning bricks. But if the said railway freight becomes less than 2 annas per ton, the amount which will be reduced will be enhanced on the rate of royalty at present fixed on steam, steam rubble, soft coke and hard coke and enhanced by half thereof on rubble and dust for burning coal."

(2.) THERE follows a number of other provisions for an annual minimum royalty, for interest, for hypothecation of the tenant's property at the colliery and for other matters which need not be farther referred to at this point

(3.) THE interpretation of the clause quoted above gave rise to litigation in 1910 between the then lessor and lessee. This litigation ended in an appeal to His Majesty in Council and the judgment of their Lordships was delivered on 8th March 1917, by Lord Parmoor. The question at issue was whether the lessor was entitled to the enhanced rate of royalty provided in that clause and after quoting the clause the judgment proceeded: "The royalty clause fixes a royalty of 3 annas per ton of steam coal, steam rubble, hard and soft coke, and of 1 anna 6 pies per ton of brick burning rubble and dust, raised and despatched or sold by the lessee. These latter words are important in construing the clause. A contrast is drawn between coal or rubble despatched and coal or rubble sold at the pit's month, and the claim for an enhanced royalty on coal is made in respect of coal despatched by rail. It does not appear and it is not material, whether at the date of the lease any coal was despatched in any other way than by rail. The only railway which served the coal field at the date of the lease was that of the East Indian Company. The clause provides that royalties at the present fixed rate should be paid on all coal despatched by the East Indian Company, subject, however, to a future contingency :-