1999 Supreme(SC) 407

1999(3) Supreme 414
Supreme Court of India
(From Himachal Pradesh High Court)
V.N. Khare & R.P. Sethi, JJ.
State of Himachal Pradesh -Appellant
versus
Raja Mahendra Pal & Ors. -Respondents
Civil Appeal No. 9495 of 1995
Decided on 31-3-1999
Counsel for the Parties :
For the Appellant : Naresh Kumar Sharma, Advocate.
For the Respondents : K.B. Rohtagi, Ms. Aparna Rohtagi, Advocates.

Important Points
1. Powers conferred upon the High Court under Article 226 of the Consti­tution cannot be invoked for enforcement of mere contractual rights arising out of an agreement. The constitutional Court should insist upon the party to avail of the alternative efficatious remedy of available.
2. An authority in described as quasi-judicial when it has some of the atributes of trappings of judicial functions, but not all; the primary test is as to whether the authority alleged to be a quasi judicial, has any express statutory duty to act judicially in arriving at the decision in question.
3. A ex-rulers of a State who has been given right to collect part of royalty from forest cannot be equate to a state so as to be entitled to get share in penalty, interest and damages etc levied by the State on the forest contractors.
4. Penalty, interest for delayed payment of royalty on forest produce and damages collected on account of damages caused to trees cannot be treated as royalty.

Headnote:Constitution of India-Article 226 - Writ jurisdiction-Pre-condi­tion to invoke-Jurisdiction can be invoked for enforcement of fundamental right or legal right but not for mere contractual rights-Exis­tence of alternative remedy would be a bar to invoke Article 226-However, existence of alternative remedy does not debar Court from granting appropriate relief under peculiar and special facts.

       Held : It is true that the powers conferred upon the High Court under Article 226 of the Constitution are discretionary in nature which can be invoked for the enforcement of any fundamental right or legal but not for mere con­tractual rights arising out of an agreement particularly in view of the existence of efficacious alternative remedy. The Constitutional Court should insist upon the party to avail of the same instead of invoking the extraordinary writ jurisdiction of the Court. This does not howev­er debar the Court from granting the appropriate relief to a citizen under peculiar and special facts notwithstanding the existence of alternative efficacious remedy. The existence of the special circum­stances are required to be noticed before issuance of the direction by the High Court while invoking the jurisdiction under the said Article. In the instant case, the High Court did not notice any special circum­stance which could be held to have persuaded it to deviate from the settled proposition of law regarding the exercise of the writ jurisdiction under Article 226 of the Constitution. For exercise of the writ jurisdiction, the High Court pressed into service the alleged fundamental right to livelihood of the respondent which was found to have been violated by not making him the payment of the amounts claimed in the writ petition. It is true that Article 21 of the Constitution is of utmost importance, violation of which, as and when found, directly or indirectly, or even remotely, has to be looked with disfavour. The violation of the right to livelihood is required to be remedied. But the right to livelihood as contemplated under Article 21 of the Constitution cannot be so widely construed which may result in defeating the purpose sought to be achieved by the aforesaid Article. It is also true that the right to livelihood would include all attributes of life but the same cannot be extended to the extent that it may embrace or take within its ambit all sorts of claim relating to the legal or contractual rights of the parties completely ignoring the person approaching the court and the alleged violation of the said right. The High Court appears to have adopted a very generous, general and casual approach in applying the right to livelihood to the facts and circumstances of the case apparently for the purpose of clothing itself with the power and jurisdiction under Article 226 of the Constitution. We are sure that if the High Court had considered the argument in the right perspective and in the light of various pronouncements of this Court, it would not have ventured to assume jurisdiction for the purposes of conferring the State largess of public money, upon an unscrupulous litigant who preferred his claim on his proclaimed assumption of being as important as the Government of the State and equal thereto. (Para 5)

       (ii) Administrative law-Quasi-judicial acts/quasi judicial authority-Test to determined nation of-Primary test is as to whether authority alleged to be quasi judicial has any express statutory duty to act judicially in ariving at the decision in question.

       Held : Quasi-judicial acts are such acts which mandate an officer the duty of looking into certain facts not in a way which it specially directs but after a discretion, in its nature judicial. The exercise of power by such tribunal or authority contemplates the adjudication of rival claims of the persons by an act of the mind or judgment upon the proposed course of official action as to an object of the corporate power, for the consequences of which the official will not be liable, although his act was not well-judged. A quasi-judicial function has been termed to be one which stands midway a judicial and an administrative function. The primary test is as to whether the authority alleged to be a quasi judicial, has any express statutory duty to act judicially in arriving at the decision in question. If the reply is in affirmative, the authority would be deemed to be quas-judicial, and if the reply is in the negative, it would not be. The dictionary meaning of the word ‘quasi’ is, “not exactly”. It follows, therefore, that an authority is described as quasi-judicial when it has some of the attributes or trappings of judicial functions, but not all. (Paras 7 & 8)

       (iii) Forest Act-Section 2-Constitution of India-Article 226 read with Article 21-Ex ruler of Himachal Pradesh assigned management of kutle­har forest-Forest produce could be sold by him at rates approved by forest department-Subsequent appointment of ruler as forest Superin­tendent-Entitled to 75 of royalty from forest produce-Himachal Pradesh forest corporation incorporated-Forest produce could be sold only to HPFC0-Price etc. fixed by pricing committee-Exruler’s claim that he was entitled to share interest on delayed payment, interest or interest, damages caused to trees etc treating him equal to State Government-Acceptance by High Court - Not sustainable - Exruler can­not be equated to State-Interest, penalty and damage are not royalty-No statutory rights enforceable under law existed in favour of appellant - Writ petition dismissed.

       Held : Whatever be the meaning of the word “royalty”, its connotation and use in the context of the case has to be understood in the light of the peculiar facts and attending circumstances. The practices prevalent for exploitation of the forest produce, cannot be ignored, which generally authorised the owner of the forest to recover the royalty for the felling of trees and extraction and utilisation of the other forest produce. The extension fee, interest, interest on interest, payment for out shaped illicit blazes, and damages cannot be held to be covered by the term “royalty” as used in item No. VIII of the proceedings of the Pricing Committee. The respondent No. 1 as already noticed could not be equated with the State Government of Himachal Pradesh and had no basis to claim the ownership in the trees grown in the Kutlehar forest after he accepted his appointment as a Forest Superintendent in the year 1958 under Section 2(2) of the Forest Act. The acceptance of his position as a Forest Superintendent in law, `a forest officer’ appointed under Section 2(2) of the Forest Act clearly established that the respondent No. 1 had accepted the State Government to be dominant owner of the property and that he was merely an officer appointed by the Government in exercise of its sovereign power. But for his position as a Forest Officer, he had no jurisdiction to deal with the forest or even enter into it. The ar­rangements made earlier in the form of conferment of rights upon his forefather stood extinguished and merged with his position as a Forest Officer of the State Government. He was entitled only to such benefits to which the forest officer is entitled. His entitlement in the present case was restricted only to the extent of sharing of the royalty and not for anything more. Even in the settlement report of 1916 which was amended on 30.7.1945 regarding Kutlehar Forest it was provided that all trees growing in the protected forest subject to the rights of Burtandars and to the other conditions and exceptions specified therein belonged to the Government which were assigned to the Raja so long as he abides the conditions of management or such other conditions as were specified at the time or which might be substituted by other terms at any time. (Para 9)

       The subjects covered by item Nos. XI, XII, XIII and XVII have thus to be understood in this context which leave no doubt in our mind that the said claims against the forest corporation covered by the afore­said items owed their origin to the exercise of the sovereign rights vested in the appellant State. No private citizen, unless specially authorised in that behalf under the provisions of law could prefer such claims. The High Court was, therefore, not justified in allowing the aforesaid claims in favour of the respondent No. 1. The observations in Para No. 21 of the impugned judgment are, therefore, bereft of any legal substance and thus cannot be upheld. We are, therefore, satisfied that the impugned judgment of the High Court cannot be sustained even on merits and is liable to be quashed inasmuch as no statutory right enforceable under law existed in favour of the respondent No. 1 regarding the enforcement of which a command could have been issued in the form of a writ of mandamus. (Paras 12 & 13)

       (iv) Royalty-Penalty, interest on late payment of royalty for felling forest trees etc and damages payable to government-Whether amount to royalty. (Paras 9 to 13)