Judgment

SHAH, C.J.I. : The Divisional Forest Officer, Kamrup Division, Assam invited tenders for the purchase of monopoly rights to quarry stone from certain areas, including Narangi Stone Quarry Mahal, for the period July l, 1963 to June 30, 1964. Mool Chand Sarougi-hereinafter called the respondent submitted a tender accompanied by the requisite deposit of Rs. 100/- as earnest money, and offered the rate of Rs. 5.25 per rupee of royalty. The tender submitted by the respondent was accepted and for the minimum quantity of 1,25,800 cft. of stone allotted to the respondent out of the quarry he was to pay Rupees 31,250/-. Intimation of acceptance of the tender was given to the respondent on July 13, 1963.

2. One Baputi Ram, a member of a Scheduled Tribe, appealed against the order of the Divisional Forest Officer accepting the tender, to the Government of Assam and obtained a stay order. After about three months he declined to prosecute the appeal and his appeal was dismissed. The respondent then declined to accept the settlement of the quarry.

3. The Divisional Forest Officer invited fresh tenders. The offers made were not however accepted and tenders were invited again. On January 10, l964 a settlement was made for a minimum quantity of 50,000 cft. for the period from January 25, 1964 to June 30, 1964 for Rs. 10,000/-.

4. The Divisional Forest Officer, thereafter, sought to recover the amount of Rs. 31,250/- for which the tender of the respondent was accepted as arrears of land revenue in the manner provided by S. 75 of the Assam Forest Regulation VII of 1891. The respondent then moved a petition in the High Court of Assam for an order quashing the proceeding for recovery of the amount demanded. The High Court held that the amount claimed was not recoverable under the provisions of the Assam Forest Regulation. VII of 1891 and passed an order quashing the proceeding for recovery and issued a mandamus to the Divisional Forest Officer, Kamrup Division not to proceed with the recovery. The State of Assam has appealed to this Court with certificate granted by the High Court.

5. Section 75 of the Assam Forest Regulation VII of 1891 provides:

All money, other than fines, payable to Crown under this Regulation, or under any rule made thereunder or on account of the price of any forest produce, or of expenses incurred in the execution of this Regulation in respect of any forest produce, may, if not paid when due, be recovered under the law for the time being in force as if it were an arrear of land revenue".

The amount claimed to be due from the respondent is not on account of the price of any forest produce, or of expenses incurred in the execution for recovery of any forest produce. The amount is also not due in the execution of the Regulation. So far there is common ground. It was claimed, however, that the amount was due under rule 10 promulgated in exercise of power under the Regulation and on that account it was recoverable as an arrear of land revenue Rule 10 provides:

"No lease for any fixed period giving the right of removing India rubber, cane, kutcha or cutch, lac, agar, ivory, or any other forest produce shall be given otherwise than in accordance with the general or special orders of the Conservator who is empowered to authorise sales in respect of such leases by auction, tender or any other method at such rates as he may decide in his discretion."

The Rule in our judgment does not apply to recovery of the amount alleged to be due for failure to carry out the obligations of the tender by proceedings under the Assam Forest Regulation 1891. It is again difficult to hold that "stone" is forest produce within the meaning of the Act. In any event the Rule does not give rise to any liability to pay a sum of money. It merely imposes a limitation upon the power of the officers of the Forest Department to grant leases in respect of certain forest produce, The lease may not be granted except in accordance with the general or special orde