TMI Blog1981 (5) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 of 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. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyalty. The High Court overruled the preliminary objection observing that the court was not called upon to decide any complicated question of fact and the question for decision before the Court was whether the company was entitled to enforcement of its legal right under the proviso to rule 37 of Settlement Rules. The Court further observed that even though part of the proviso to rule 37 of the Settlement Rules was incorporated in the lease itself, nonetheless what the Court had to consider was the interpretation of a statutory rule and that is the function of the Court under Article 226. On merits the High Court held that as the grant N.C. Tezalpatty No. I was in favour of M/s. Bishwanath Tea Co. Ltd., the company was entitled to cut and fell timber from N.C. Tezalpatty grant area for its use in other tea gardens, namely, Partabghur and Dekorai and even if the latter two gardens were outside N.C. Tezalpatty Grant No. 1, yet they being under the ownership and management of the company, felling of trees from the area of one grant for utilisation at other places would fall within the second part of the proviso to rule 37 in that the felling and removal of timber was for use not unc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... removed for use unconnected with exploitation of the grant during the period of the lease or renewed lease. The implication of the negative covenant would be that if timber is removed from the leased area connected with the exploitation of grant, there would be no liability to pay royalty on such timber. The respondent claimed to remove timber without the liability to pay royalty in exercise of the right reserved under Cl. 2 thus interpreted. In para 5 of the Writ Petition filed by the respondent in the High Court, a reference has been made to the aforementioned term in the lease deed. It was further stated that the respondent paid the royalty under protest which it was not liable to pay as the timber was urgently required for the purpose of the business of the Company in connection with the grant. These averments in the petition would show that the respondent claimed the right to remove timber without the obligation to pay royalty as flowing from the grant evidenced by the lease. Anticipating a possible contention about the jurisdiction of the High Court to entertain a writ petition for enforcement of contractual obligation, the respondent contended that the levy of royalty had n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the payment, whereupon the grantor of the lease agreed that the grantee will have to pay timber valuation at full rates on all timber sold or removed for sale and on all timber removed for use unconnected with exploitation of the grant during the period of his lease or renewed lease but the grantee will not have to pay royalty for timber felled and removed for purpose connected with the grant. It thus can be demonstrably established that the respondent was trying to enforce through the writ petition the right to remove timber without the liability to pay royalty not under the proviso to Rule 37 which was merely an enabling provision, but the specific term of lease agreed to between the parties. Proviso to Rule 37 may not be incorporated in an indenture of lease. If incorporated after fulfilling pre-condition it becomes a term of lease. The High Court, in our opinion, therefore, was in error in posing a question to itself as to whether the applicant (respondent herein) was entitled to the enforcement of legal right under the proviso to Rule 37 of the Settlement Rules. The camouflage successfully worked, but once this cloak is removed, it unmistakably, transpires that the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is executive action unsupported by law or even in respect of a Corporation where there is a denial of equality before law or equal protection of law. The Corporation can also file a writ petition for enforcement of a right under a statute. As pointed out earlier, the respondent (Company) was merely trying to enforce a contractual obligation. To clear the ground let it be stated that obligation to pay royalty for timber cut and felled and removed is prescribed by the relevant regulations. The validity of regulations is not challenged. Therefore, the demand for royalty is unsupported by law. What the respondent claims is an exception that in view of a certain term in the indenture of lease, to wit, Clause 2, the appellant is not entitled to demand and collect royalty from the respondent. This is nothing but enforcement of a term of a contract of lease. Hence, the question whether such contractual obligation can be enforced by the High Court in its writ jurisdiction. Ordinarily, where a breach of contract is complained of, a party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed, or the party may su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that there is violation of his rights under the contract and that such violation of contractual obligation cannot be remedied by a writ petition. That exactly is the position in the case before us. Therefore, the High Court was in error in entertaining the writ petition and it should have been dismissed at the threshold. In substance, this was a suit for refund of a royalty alleged to be unauthorisedly recovered and that could hardly be entertained in exercise of the writ jurisdiction of the High Court. As the High Court has also disposed of the case on merits after overruling the preliminary objection, it is but meet that we may examine the case on merits and that itself would demonstrably show the dangerous course adopted by the High Court in examining rights and obligations claimed under the contract without proper or adequate material or evidence to reach a conclusion, more so when the petition raised disputed questions of facts which needed investigation. Respondent No. 1 had entered into a lease dated September 27, 1932 with the Secretary of State for India. Part II of the lease describes the land leased to the respondent. The description is as under; N. C. Teng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, Partabghur Garden where the houses for the workmen were to be constructed was situated outside the area covered by the grant, as also outside the Revenue Division in which the leased area is located. The High Court got over this difficulty by observing that the grant being in favour of an incorporated company, it can cut and remove timber from leased area for use at any place which is owned, managed or controlled by the company and it is immaterial whether one is directly connected with the other or not. If the timber is being felled from the area of one grant to be used at some other place where the Company is carrying on its operation, the benefit of the removal of timber without payment of royalty would be available to the Company anywhere in the world. To stretch this logic a little further, it would mean that if the respondent (Company) is to set up a tea garden outside India, it can as well cut and remove timber from N.C. Tezalpatty, Grant No. 1 in Assam to the place outside India without the obligation to pay royalty. The fallacy underlying the approach of the High Court becomes self-evident. It is immaterial that the grantee was the Company. The specific provision is th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
