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State of Kerala and ors. Vs. C.M. Sebastian - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKerala High Court
Decided On
Case NumberWrit Appeal No. 291 of 1977
Judge
Reported inAIR1978Ker155
ActsConstitution of India - Article 226
AppellantState of Kerala and ors.
RespondentC.M. Sebastian
Appellant AdvocateGovt. Pleader
Respondent Advocate V. Bhaskaran Nambiyar,; C.R. Natarajan,; M.K. Anandakris
DispositionAppeal allowed
Cases ReferredRadhakrishna Agarwal v. State of Bihar
Excerpt:
commercial - writ in contract - article 226 of constitution of india - contract concluded between state and petitioner - rights accrued were purely contractual - rights have no relevance with statutory duty - liabilities of parties governed by terms of contract - party complained breach of contract by state - extra ordinary jurisdiction of writ cannot be issued. - - we fail to see how an application of this type for executive intervention with a statutory authority's discretion in the matter of granting & permit was called for or happened to be made. hence the complaint of the petitioner is well founded......clause 3 of ex. p-l lease deed is binding on the first respondent and the respondents are bound to issue permit to the petitioner for the removal of the rosewood logs felled and kept in the poothundy estate under the terms and conditions as laid down in ext. p-l; (iii) to issue a writ of mandamus or other appropriate writ, order or direc-tion, compelling the respondents to issue a permit to the petitioner to remove the rosewood logs of 12 marked rosewood trees that were felled by the petitioner pursuant to ex. p-2 after paying the seigniorage as provided in ex, p-l lease-deed; (iv) to issue an interim direction to the 3rd respondent to issue permit to the petitioner for the removal of the rosewood logs felled by him as per the sanction accorded to him as per ex. p-2 order of the 3rd.....
Judgment:

Gopalan Nambiyar, C. J.

1. We regret our inability to agree with the learned Judge who allowed the writ petition of the 1st respondent and held that Under Ext, P-l document the provision Was categoric that the seigniorage fee is leviable at the rates mentioned and not at something to be estimated de hors the provisions of the document. The learned Judge pronounced that the writ petitioner was entitled to issue of a transport permit and that the value to be realised for timber was only at the rate of Rs. 3/- (sic Rs. 4/-?) per candy and that on the petitioner paying the same in accordance with the conditions in Ext. P-l the respondent would issue the transport permit to, the petitioner ex-peditiously and without delay. The State of Kerala and the Chief Conservator of Forests, and the Divisional Forest Officer, Nenmara have come up in appeal.

2. The controversy hinges round the construction of a term in Ext. P-l lease, executed by and between His Highness the Maharaja of Cochin and one George S. Duppen on 16-7-1877 (the learned Government pleader submitted that 1877 shown in the copy Ext. P-l is a mistake for 1867), in respect of about 409 Acres of the Nelliampathi tract of forest land known as 'Nelliccolla' situated on the Nelliampathi Range, and containing a number of teak, ebony, and blackwood trees. These were excepted from the demise in the preambulary part of the document, Clause (3) of the lease-deed provided:

'3. Teak, ebony and blackwood trees excepted and reserved out of the grant hereby made, shall be felled and removed within six months from the date hereof, otherwise the same shall become and be the property of the said George S. Duppen, His Heirs, and Assigns, he or they, paying to His Highness, His Heirs, Successors and Assigns for the same aroyalty of three rupees for candy for Ebony, and blackwood and of four rupees per candy for teakwood'.

Admittedly, the teak trees with which we are concerned in this application were not felled and removed within six months mentioned in the above clause. There is also no controversy that the rights of His Highness the Maharaja of Cochin to receive the royalty has now devolved upon the Kerala Government. By Ext. P-2 proceedings dated 22-11-1975 from the Chief Conservator of Forests, Nenmara to the Director Poothundu Plantations (P.) Ltd., sanction was accorded to fell 12 (twelve) marked rosewood trees in the estate, in pursuance of the application by the Estate dated 15-6-1975 recited in Ex. P-2, and subject to the conditions of the lease-deed. The writ petitioner is stated to have got the right of cutting the above trees, under a power-of-attorney from the Estate and an assignment of the cutting permit in his name on 3-12-1975 by the District Forest Officer, Nenmara. It appears that he felled the trees and stacked the logs in the Estate, and on 16-7-1976, sold the logs to a third party at Ernakulam. When he approached the Divisional Forest Officer, Nenmara for issue of a permit and for transportation of the logs the Officer had certain doubts and reservations to be cleared which delayed the issue of the permit. The petitioner thereupon seems to have presented Ext. P-3 petition dated 20-4-1976 setting out the above facts to the Minister for Forests, Kerala, praying to issue directions to the Divisional Forest Officer, for issuing a permit for transportation of the logs after receiving the security as per conditions in the registered lease-deed. We fail to see how an application of this type for executive intervention with a statutory authority's discretion in the matter of granting & permit was called for or happened to be made. But we notice that by Ext. P-4 dated 21-7-1976 which is a copy of the letter from the Secretary to the Government to the Chief Conservator of Forests, the latter's letter dated 20-5-1976 was recalled, and it was stated that a royalty of Rs. 3/- per candy for ebony and blackwood trees and of Rs. 4/- per candy for teak-wood alone could be collected as seigniorage rate as per condition in the lease deed. The letter stated that the removal of timber may be allowed on payment of value as per condition 3 of the lease deed in modification of the general terms laid downin G. O. Rt. No. 2161/62/Agr. dated 6-10-1962. By Ex. P-5 of the same date the writ petitioner was informed that suitable instructions had been issued to the Chief Conservator of Forests. Things apparently did not again move ex-peditiously enough; for, we find that Ex. P-6 petition dated 28-8-1976 was filed by the petitioner again before the Minister stating that the Divisional Forest Officer had still some misgivings and praying for necessary direction to the Officer for removal of difficulties. This was responded to by Ex. P-7 communication dated 27-1-1977 informing the writ petitioner that the Divisional Forest Officer 'had suitable instructions. Not still succeeding to get the necessary transport permit, or not being able to remove the timber logs, the writ petitioner filed Ex. P-8 petition dated 3-2-1977 before the Chief Conservator of Forests requesting necessary instructions to the Divisional Forest Officer, Nenmara to issue the transport permit. This resulted in Ex. P-9 order dated 4-2-1977 which recalled G. O. Rt. 290/77 dated 27-1-1977 in which the Government had ordered to issue the permit after realising full seigniorage fee at the existing rate of cent per cent valuation. The writ petitioner was directed to contact the Divisional Forest Officer, Nenmara. A copy of the G. O. dated 27-1-1977 referred to in Ext. P-9 has been filed along with the counter-affidavit of the 1st respondent as Ex. Rule 1. That has referred to an earlier G. O. Rt. 2161'/62/Agrl. dated 6-10-1962. on the basis of which orders were issued to receive the current seigniorage value of the timber trees.

3. In the writ petition the prayers were:

'(i) To issue a writ of certiorari or other appropriate writ, order or direction calling for the papers leading to Ex. P-9 communication from the 2nd respondent and G. O. Rt. No. 290/77/Ad dated 27-1-1977 issued by the 1st respondent and referred to in Ext. P-9 and quashing the G. O. and Ext. P-9;

(ii) To declare that Clause 3 of Ex. P-l lease deed is binding on the first respondent and the respondents are bound to issue permit to the petitioner for the removal of the rosewood logs felled and kept in the Poothundy Estate under the terms and conditions as laid down In Ext. P-l;

(iii) To issue a writ of mandamus or other appropriate writ, order or direc-tion, compelling the respondents to issue a permit to the petitioner to remove the rosewood logs of 12 marked rosewood trees that were felled by the petitioner pursuant to Ex. P-2 after paying the seigniorage as provided in Ex, P-l lease-deed;

(iv) To issue an interim direction to the 3rd respondent to issue permit to the petitioner for the removal of the rosewood logs felled by him as per the sanction accorded to him as per Ex. P-2 order of the 3rd respondent and after paying the royalty as laid down in Exhibit P-l lease deed; pending final disposal of the above original petition;

(v) To issue such other writ, order or direction as this Hon'ble Court deems fit and proper in the interests of justice; and

(vi) To award the costs of this O. P. to the petitioner.'

4. The learned Judge held after stating the facts that Ex. P-l was unequivocal and that the blackwood and ebony trees had to be paid for, only at Rs. 3/- per candy for all time and that the insistence on stipulating the rate having regard to the prevailing conditions was unsustainable. The learned Judge felt that it was very difficult to read any such intention against the express terms of the document, and that the document was categoric on the point. The learned Judge concluded:

'Hence the complaint of the petitioner is well founded. The petitioner is entitled to the issue of transport permits and the value to be realised for the timber is only at the rate of Rs. 3/- per candy. On petitioner making the payment in accordance therewith the respondents will see that transport permits are issued to the petitioner expeditiously and without any delay.Allowed as above. No costs.'

5. From what we have stated it would be noticed that while the Officer entitled to deal with the question whether the writ petitioner was entitled to the transport permit in respect of the timber logs or not, was engaged in considering and dealing with the matter, there were repeated attempts to forestall his decision and action and to interfere with his discretion by executive or administrative directions from the Government or the superior authority. For the one thing, these appear to have been Improper. Our attention was not called to the statutory provisions or other rules or directions under which the application fortransport permit had to be dealt with and disposed of, and the considerations to be borne in mind by the authority in dealing with and disposing of such an application. But we see that the authority was subjected to conflicting orders of the Government. Ext. R-l dated 27-1-1977 is one order; and that expressly recites that it is passed in supersession of all orders issued on this matter. It has recited a prior order dated 6-10-1962, which, we see, has been modified in Ext. P-4 order. Then there was Ext. P-9 which recited Ex. R-l. In these circumstances and under these conditions, we are not inclined to cavil at the doubts or misgivings which assailed the Divisional Forest Officer, Nen-mara. Nor can we approve the writ petitioner's attempts at repeatedly filing petitions before the Minister or the Chief Conservator, of Forests and getting them to issue orders either interfering with the discretion of the authority charged with the duty of issuing permits, or forestalling the decision of such authority.

6. That apart, we do not think this is a matter in which this Court can interfere in proceedings under Article 226 for construing and expounding purely a term in the contract Ext. P-l. The learned Government Pleader for the State cited to us the recent decision of the Supreme Court in Radhakrishna Agarwal v. State of Bihar (AIR 1977 SC 1496), where, after an analysis of the relevant decision the Court observed thus (at pp. 1500, 1501}:

'12. The Patna High Court had, very rightly, divided the types of cases in which breaches of alleged obligation by the State or its agents can be set up into three types. These were stated as follows :--

'(i) Where a petitioner makes a grievance of breach of promise on the part of the State in cases where on assurance or promise made by the State he has acted to his prejudice and predicament, but the agreement is short of a contract within the meaning of Article 299 of the Constitution;

(ii) Where the contract entered into between the person aggrieved and the State is in exercise of a statutory power under certain Act or Rules framed thereunder and the petitioner alleges a breach on the part of the State; and

(iii) Where the contract entered into between the State and the personaggrieved is non-statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract, and the petitioner complains about breach of such contract by the State.'

In the light of the principles thus stated by the Supreme Court it was held that the case considered fell within the third category where, questions of alleged breach of contract were involved, and, on the strength of the decisions in AIR1973 SC 964. AIR 1966 SC 334, and AIR1974 Pat 230, no writ or order can issue under Article 226 of the Constitution, to compel the authorities to remedy a. breach of contract pure and simple. Here too, there is no question of assurance or promise by the State to issue, a transport permit on which the writ petitioner can be said to have acted; the case does not fall in the second category, and can only fall in the third. For that reason, we think, the learned Judge was wrong in interfering under Article 226 and issuing the writ as directed,

7. We hesitate to agree with the learned Judge that the terms of Ext. P-l are categorical and do not and cannot admit of any doubt. Under the terms of Ext. P-l, teak, ebony and blackwood trees are excepted from the subject-matter of the demise. Under Clause (3) these trees are to be cut, felled, and removed within six months of Ext. P-l; otherwise they are to become the property of the lessee, the lessee Paying to the lessor, his heirs successors and assignees, royalty at the stipulated rate. This admittedly was not done. It appears to require at least some consideration whether the payment recited was necessary before the property would pass. If it was and the same was not done within six months of 16-7-1867 (date of Ex. P-l) and the question of payment of seigniorage arises more than a century later, are the parties tied down to the rates stipulated in the document If, on default of cutting within six months, property in the standing timber automatically passed to the lessee, could there be any question of paying seigniorage at all But there seems to be no such case. We refer to these aspects without expressing any opinion only to show that it was inappropriate for this Court to enter into these regions of contract-law, and seek to expound a contractual term in proceedings under Article 226 of the Constitution.

8. We allow this appeal, set aside the judgment of the learned Judge and direct that O. P. No. 783 of 1977 will stand dismissed. We make no order as to costs.


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