JAGAT NARAYAN, J - (1.) THESE are connected appeals arising out of a suit for the recovery of a sum of Rs. 1161/- instituted by Zorawarmal respondent No. 1 against Manglaram and the State of Rajasthan which was decreed in part by the Munsif Nimbahera. The decree was confirmed on appeal by the District Judge, Partabgarh,
(2.) THERE are stone quarries in the Tehsil of Nimbahera which are leased out to miners in small portions. These miners themselves work the quarries and sell the stone to dealers. The stone is transported to the dumps of these dealers near the railway station on bullock carts. Royalty is levied by the State on the stone which is taken out and the rate of royalty is fixed in terms of bullock cart loads of stone. The contract for collection of royalty is given by public auction and the contractor gets the right of collecting royalty on the stone which is taken out by the lessees. Manglaram defendant No. 1 was the royalty collection contractor of Nimbahera Tehsil for a period of three years from 1. 4. 54. He had taken this contract on payment of Rs. 39,251/- per annum. The rate of royalty fixed was Rs. 2/- per cart load for stone which was to be exported out of Nimbahera Tehsil and rupee one per cart load for stone which was to be consumed within the Tehsil. Ex. B. 3 is the contract which was entered into between Manglaram and the State. The following terms of this contract are relevant for purposes of this case - " (1) The State Government hereby grant to the contractor authority to collect royalty on stones from the quarry holders or from person taking the stone from such quarry holders as]the case may be who has got to pay royalty on stones despatched or taken from the leased area at the rate specified in the schedule annexed. (5) The contractor should mate the royalty collection at the quarry mouth or within the boundary of Tehsil Nimbahera if not paid on quarry mouth. (10) In case any body has already paid royalty on any stone the contractor will not charge royalty taxation on the same stones. (13) Stones (Chhaja, pathar) free of royalty will be allowed to only those cultivators who will obtain a certificate of his being a bona fide cultivator from the Panchayat of the village where he resides or if there be no Panchayat from a revenue officer not lower than the rank of Naib Tehsildar of the localities. The Panchayat or the Naib Tehsildar will issue such a certificate on the verification of the fact of his being a bonafide cultivator by a Panch of that village or neighbouring village or where there is no Panchayat the Patwari. (24) If any quarry man evades payment of royalty or helps the cartmen in evasion of royalty payment his license or quarry permit will be liable for cancellation and case will be conducted against him by the contractor under sec. 379 I. P. C. if permissible by law. " On 25. 10. 54 the plaintiff sent notice Ex. 1 to Manglaram. It was stated in this notice that Manglaram had started collecting royalty from 1. 4. 54 on the pretext that he was authorised to do so by the Government under a contract, that he was representing that he would not allow any bullock cart loaded with stone taken out of the quarry to move out of the leased area unless royalty was paid but that he had not shown either the original contract or a copy of it and 'from this the inference was that an unauthorised tax was being collected by him under coercion which was unlawful. Manglaram was asked to refund the royalty collected by him from Zorawarmal till then which was stated to be a sum of Rs. 1140/ -. Manglaram sent a reply Ex. 4 dated 30th October, 1954 to this notice. It was mentioned in this reply that Manglaram was the royalty collection contractor for the Tehsil of Nimbahera who was duly authorised by the State to collect royalty. It was further stated in this reply that Manglaram was not bound to show the original contract to every one who wanted to see it and that if Zorawarmal had any doubt about his being a duly authorised contractor he might make an inquiry from the Government about it. On 15. 11. 54 the present suit was instituted against Manglaram alone. It was alleged that the latter had collected a sum of Rs. 1161/- from Zorawarmal as royalty, on the representation that he had taken a royalty collection contract from the State. It was further alleged that this amount was recovered under coercion because if he had not paid it he would not have been allowed to transport stone from the quarries and his business would have come to a standstill and loss would have been caused to him. It was asserted that Manglaram had no right to collect royalty (1) because he did not hold a contract for collecting the same, and (2) even if he had the necessary authority from the State to do so the realisations made by him were illegal. It was however not stated in the plaint as to why (if Manglaram was the duly authorised royalty collection contractor) it was not legal on his part to realise royalty from Zorawarmal on stone quarried from mines in Nimbahera Tehsil. In his written statement Manglaram asserted that he was the duly authorised royalty collection contractor and was legally entitled to collect royalty which he had actually collected from Zorawarmal. He denied having collected royalty under coercion and stated that it was paid voluntarily. In reply to paras 3 and 4 of the plaint Mangla Ram admitted having received royalty on 580 bullock carts at Rs. 2/- per cart and on 1 bullock cart at rupee one per cart, but stated that he did not remember the names of the lessees from whom the stone was purchased and on whose behalf Zorawar Mal had paid this royalty. Manglaram also pleaded that the State of Rajasthan was a necessary party to the suit. The plaintiff thereupon impleaded the State as defendant No. 2. The learned Civil Judge who tried the case framed seven issues on 5. 2. 55. The plaintiff himself had not stated in his plaint why the collection of royalty made by Mangla Ram was invalid. In the notice Ex. 1 all that was alleged was that the realisation was invalid because Mangla Ram was not the duly authorised royalty collection contractor. This ground was repeated in the plaint and another ground was also added in which it was stated that even if Mangla Ram was the duly authorised collection contractor the collections of royalty made by him from Zorawar Mal Were illegal. In this state of uncertainty as to what the case of the plaintiff was Mangla Ram had to make a guess as to the grounds on which the plaintiff might base his claim. After the framing of issues he filed an application to amend his written statement so as to clarify what was already stated by him in para 3 of his written statement and to take a legal plea with regard to his liability. This amendment was allowed by the trial court on 9. 12. 55 and the following two pleas were added to the written statement : - (1) That Zorawar Mal paid royalty on behalf of the lessees of the quarries and not on his own behalf and is consequently not entitled to maintain the suit. (2) That Mangla Ram realised royalty as an agent of the State and is not liable to refund it. Two further issues incorporating the above two pleas were added on 19. 1. 56. As the burden of proof of the material issues arising in the suit was placed on the defendants they were directed to lead evidence. Mangla Ram examined himself and four other witnesses. Out of them Abdul Hameed D. W. 1 and Moti D. W. 2 are his own servants who were employed by him for collecting royalty on stone quarried from the mines in Nimbahera Tehsil. Lachhman D. W. 3 and Jhala D. W. 4 are mine diggers who have taken quarries on lease from the State in the area of Nimbahera. All these witnesses stated that since Mangla Ram became the royalty collection contractor royalty was collected at the quarry mouths. They also said that the lessee of the mine was responsible for the payment of royalty, that sometimes he paid the royalty himself but when he did not have funds to pay it, the royalty was paid by the dealers on his behalf and the payment was adjusted towards the price of the stone. No attempt was made on behalf of the plaintiff to challenge the statements of these witnesses on these two points in cross-examination. After the examination of the evidence of the defendants Zorawarmal examined himself and five other witnesses. None of these witnesses stated that in Mangla Ram's time royalty was collected elsewhere than at the quarry mouths. Zorawar Mal did not say that he did not pay royalty on behalf of the lessees from whom he had purchased the stone. Nor did he say that the amount of royalty paid by him was not adjusted towards the price of the stone. So far as the alleged coercion in realising royalty is concerned he stated that he and his men paid royalty to the extent of Re. 1/- per cart voluntarily to Mangla Ram and his men. The five other witnesses examined on behalf of Zorawar Mal are also lessees of quarries in Nimbahera Tehsil. They stated generally that they neither paid any royalty nor were liable to pay it, that it was Zorawar Mal who was responsible for the payment of royalty and he paid it on his own behalf and that they took the price of stone from him without making any allowance for the royalty paid by him. The learned Munsif held that Zorawar Mal paid royalty on his own behalf and not on behalf of the lessee. He however decreed the suit only for the refund of Rs. 580/8/- because Zorawar Mal said in his statement in court that he voluntarily paid royalty at rupee one per cart but was not willing to pay it at Rs. 2/-per cart. Even on this basis he should have decreed the suit for Rs. 580/- as admittedly Zorawar Mal took 581 cart loads of stone and was liable to pay Rs. 581/- as royalty at Re. 1/-per cart. Further the decree was passed against both the defendants. Against this decree both the defendants preferred separate appeals. Both these appeals were dismissed by the learned District Judge. The learned District Judge has given the following reasons for holding that Zorawar Mal did not pay royalty on behalf of the lessees but paid it on behalf of himself - (1) The interim agreement Ex. A. 1 entered into between Mangla Ram and the State says that royalty will be recovered from every person taking stone from the mines. It does not say that royalty will be recovered from the lessees of the mines. The evidence given by the plaintiff and his witnesses that royalty was recovered from Zorawar Mal on his own behalf and not on behalf of lessees is therefore true. Further the lessees examined on behalf of Mangla Ram are not those from whom Zorawar Mal purchased stone. But the lessees examined on behalf of the plaintiff are the persons from whom he purchased stone on which he paid royalty in respect of which the present suit has been brought. (2) The receipts for the royalty were in the possession of Zorawar Mal and not in the possession of the lessees. The receipts do not show that the amount was paid on behalf of somebody else. The evidence on record shows that the lessees of quarries in Nimbahera Tehsil are poor mine diggers who generally take advances from the dealers and the price of stone is adjusted towards these advances. They do not maintain any accounts. It was not disputed before me that the State is legally entitled to collect royalty on the stone which is quarried and that under the law the lessee is liable to pay it. It is clear that the lessees examined on behalf of Zorawar Mal are ignorant of the true legal position. What their evidence goes to prove is only this that actual payment of the royalty is generally made by the dealers. As they themselves did not know that they were responsible for payment of the royalty and not Zorawar Mal their statements to the effect that Zorawar Mai did not pay royalty on their behalf but paid it on his own behalf, are of no legal significance. On account of their ignorance they were incompetent to depose about it. It is not disputed that royalty was collected on a particular quantity of stone only once. It appears from the evidence on record that neither the lessees, nor the traders, nor even the officers of the Mining Department were aware of the real nature of the levy termed "royalty". They did not even know from whom it was recoverable. Under clause (1) of the contract executed by the State in favour of Mangla Ram the latter was authorised to recover royalty from the lessee or from the person taking the stone.
(3.) THE lessees in this area were poor miners who dug their own stone. THEy could not maintain accounts. THEy generally remained in debt and took advances from traders to whom they sold the stone quarried by them with the result that the price of stone was adjusted towards repayment of the loans. Royalty was paid by the traders and not by the lessees. It was fixed at so much per cart load and could only be assessed when the stone was loaded in carts. THE lessees being generally indigent could have only paid the royalty after borrowing money from the traders. THE inference from these facts is that royalty which is payable by the lessee is passed on to the purchaser in the usual course of business and is actually paid to the State by the trader. This payment is in law on behalf of the lessee who is liable to pay the royalty. In this connection I may refer to the decision of a Division Bench of this Court in Bheru Lal vs. The State of Rajasthan (1) in which a similar inference was drawn relating to the collection of royalty in Nimbahera Tehsil. The finding of the learned District Judge that royalty was collected from Zorawar Mal under coercion is also against the weight of the evidence on record. Zorawar Mal himself admitted in his statement in court that he paid royalty to the extent of rupee one per cart voluntarily. Now it was not his case either in notice Ex. 1 or in the plaint that he was liable to pay royalty at Re. 1 /- per cart. There was thus no question of his being willing to pay royalty at Re. 1/- per cart and being unwilling to pay it at Rs. 2/- per cart which was the prescribed rate. As I have pointed out above neither Zorawar Mal nor his legal adviser knew that royalty was not payable by the trader. The trader had always been paying it. There was therefore no occasion for Zorawar Mal not to pay voluntarily royalty at the rate fixed by the State. It appears that Zorawar Mal's legal adviser thought that royalty was a tax and as there was no law authorising its imposition, the collection of it was unconstitutional. It was on that basis that notice Ex. 1 was sent by the legal adviser of Zorawar Mal to Mangla Ram. That was also the case put forward in the plaint. It was not asserted that royalty was not recoverable from the trader but was recoverable from the lessee. It was no doubt alleged in notice Ex. 1 that if Zorawar Mali does not pay royalty he will not be allowed to remove stone and his business would be ruined. This was admitted by Mangla Ram. This is not enough to prove that royalty was paid under coercion. As I have shown above the statement of Zorawar Mal and the other circumstances of the case go to show that royalty was paid by the plaintiff at the prescribed rate voluntarily and the present suit was only filed as a test case. There is another aspect of the matter also. The present suit could only be maintainable under sec. 72 of the Contract Act. The remedy provided under this section is only an equitable one and is not available where it will not be equitable to make a refund to the plaintiff of the money paid by him under a mistake, the mistake being that he thought that royalty was payable by the lessee. If royalty had been recovered by the State from the lessee, the latter would have sold the stone to the trader at a higher rate passing on the royalty to him. The trader would have in that case also to pay at the same rate for the stone at which he has paid now, only with this difference that whereas he has now paid part as price and part as royalty he would in the other case pay the whole amount as price. The trader has thus not suffered in any way by the recovery of the royalty from him directly. On the other hand it is not possible for the State to recover the royalty from the lessee now. Secs. 68 to 72 of the Contract Act fall under Chapter V the heading of which is "of certain relations resembling those created by contract". They are generally referred to as quasi-contracts, under the common Law in England. Lord Wright has described the nature of quasi-contract in the following words: - "it is clear that any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English law are generally different from remedies in contract or in tort, and are now recognised to fail within a third category of the common law winch has been called quasi-contract or restitution. " ;