TMI Blog1987 (4) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... of the lessee ". The said clause 3 reads thus: " 3. The lessee shall pay to the Government in respect of all parts of the surface of the said lands which shall from time to time be occupied or used by the lessee under the authority of these presents rent at the rate of Re. 0-0-6 per annum per square yard of the area so occupied or used together with land revenue payable in respect of the land shown in Appendix 'A' during the period from the commencement of such occupation or use until the area shall cease to be so occupied or used and shall be restored to its original condition which rent shall be computed and shall be paid on each of the half-yearly dates hereinabove appointed for payment of the said certain half-yearly rent provided that no such rent shall be payable in respect of the occupation or use of the area comprised in any roads or ways existing on the said lands at the commencement of the term of this lease." The said clause 17 reads thus: "The lessee will at the expiration or sooner determination of the said term deliver up to the Government all mines, pits, shafts, inclines, drifts, levels, waterways, airways and other works (now existing) hereafter to be sun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lessors insisted on the restoration of the land to the original condition as far as possible. This should be ascertained by making enquiries from the Government as also from others doing similar business in the same area as the assessee or also other areas like Raniganj, Goa, Mysore, etc. If there was such liability, the further questions that should have to be answered were whether the assessee had made provisions in respect of ores mined in earlier years and, if not, why not. It was also necessary to find out whether the basis adopted by the assessee for the years in question in ascertaining the liability was a fair and reasonable one. Pursuant to the Tribunal's order, the Appellate Assistant Commissioner made a report. He did so after making enquiries with an officer of the Government of Maharashtra who stated that while the said clause 17 did not appear to impose any obligation on the assessee to restore the lands to their original condition, the said clause 3 did seem to indicate some such obligation. After considering the report, the Tribunal wrote its judgment. It found the said clause 3 to be clear and unequivocal and it imposed upon the assessee the obligation to fill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the estimated liability for " Restoration charges " was an eligible revenue expenditure under section 37(i) ? (ii) On the facts and in the circumstances of the case, whether the Tribunal was correct in law in holding that the liability, if any, under the lease agreement towards " Restoration charges " was not a part of the price paid for acquiring the lease and did not, therefore, constitute capital expenditure ? " The said clause 3, as has been pointed out, appears in Part V of the lease. Part V deals with the rents and royalties reserved by the lease. The said clause 3 provides for the surface rent payable by the lessee at the rate of Re. 0-0-6 per annum per square yard of the area occupied or used together with the land revenue payable in respect of the lands shown in Appendix A to the lease. It provides for the period during which such rent shall be paid thus : from the commencement of the occupation or use until the area ceases to be occupied or used and is " restored to its original condition ". It requires payment of rent on the half-yearly dates appointed for that purpose. It is submitted on behalf of the assessee that the words " shall be restored to its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above. The said clause 17 as analysed, therefore, does not, in any event, oblige the lessee to restore the lands to their original condition upon the determination of the lease, as is claimed by the assessee. Mr. Dastur, learned counsel for the assessee, drew our attention-to the interpretation placed upon the lease by the officers of the State Government as stated in the report of the Appellate Assistant Commissioner made pursuant to the interim order of the Tribunal. In our view, it was impermissible to ask one contracting party (the Government) how it interpreted the lease. Mr. Dastur submitted that this was permissible having regard to the judgment of the Supreme Court in Godhra Electricity Co. Ltd. v. State of Gujarat [1975] 1 SCC 199; AIR 1975 SC 32. The Supreme Court there said that when both parties subsequently said that by the word or phrase which, in the context, was ambiguous, they meant this, it only supplied a glossary as to the meaning of the word or phrase. Where the inquiry was as to the intention of the parties to be gathered from the language used, there was no reason why parties could not clear the latent ambiguity in the language by a subsequent interpret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed in other works of the like kind in the country ". The observations upon which Mr. Dastur relied were made by Lord Blackburn and Lord Watson. It was said by the former that it must be taken as perfectly settled ground that as of common right the surface land had a right to be supported by subjacent strata of minerals. In common right, the person who owned the surface had a right to have it properly supported below by minerals, and, if there were mineral workings under the surface, to have a proper support left for it by pillars. Lord Watson said that when the proprietor of the surface and the subjacent strata granted a lease of the whole or part of his minerals to a tenant, it was an implied term of the contract that support shall be given in the course of working to the surface of the land. Mr. Dastur submitted, upon the strength of this judgment, that there was an obligation upon every lessee of a mine de hors the terms of his lease to support the land and to restore it to its original condition. In so far as it relates to an obligation to support the land, in the sense that it should not be permitted to cave in, the submission is plausible. The judgment is not, however, an a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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