KISHANLAL Vs. STATE OF U P

JUDGEMENT

(1.) THE petitioners are the auction purchasers of 37 plots enumerated in paragraph 1 of the writ petition situated in village Daulatpur (Kachhar) Pargana and Tahsil Bhognipur District Kanpur. These plots had been let out to them for removing morrum therefrom for a period of three years under an agreement dated 13th October, 1969. On 14th November, 1969, the petitioners moved an application before the respondents Nos. 1 and 2, namely, the State of Uttar Pradesh and the District Officer (Collector, Incharge) saying that the contractors of Jalaun were bringing their morrum for sale at Kanpur and they should be stopped. Thereafter, several letters in this behalf were written by them. Clause (4) of Part III of the Agreement provides that the State Government will not allow any person to store, stock or sell by any means, at Kanpur side villages and banks of river Jamuna, any sand and Morrum brought by anybody from the quarries situated in district Jalaun or any other districts. The applications made by the petitioners are based upon this cause. The petitioners made another application in July, 1971 relying upon clause 2 of Part III of the Agreement which provides that the failure on the part of the lessee/ lessees to fulfil any of the terms and conditions of this lease shall not give the State Government any claim against the lessee in so far as such failure arises from force majeure and if through force majeure the lessee suffers damages or losses or the lessee could not do mining operations for a certain period on the plots leased out, the same shall be met out by the State Government by deductions in the payments or royalty by the lessee and by extension of period of the lease. In this clause the expression "force majeure" means an act of God, War, insurrection, riot civil commotion, strike, earthquake, tide, storm, tidal wave, flood, lightening, washing away of minor minerals, non-availability of minor minerals, explosion, fire, actions of the river, any natural calamity and any other happening which the lessee could not prevent or control. In his application the petitioner stated that in the year 1970 minor minerals were not available and in the month of July, 1971, a heavy flood came in the river Jamuna due to which the stocks of 1970 of minor minerals, costing about Rs. one lac, were washed away and in accordance with clause (2) of Part III of the Agreement the petitioner was entitled to relief. As these applications were not being decided the petitioners moved the present writ petition.

(2.) DURING the pendency of the writ petition, the second respondent has rejected the petitioner's claims by his order dated 27-10-1972 a copy whereof has been filed as Annexure - 30 to the amendment application and arrears of instalments due from the petitioners have been ordered to be realised as arrears of land revenue. The petitioners have challenged the order of the District Magistrate as also the recovery proceedings.

(3.) FOR the reasons stated above, this petition succeeds and is allowed. The order of the District Magistrate dated 27-10-1972 (Annexure - 30 to the amendment application) is quashed. He is directed to restore the petitioner's claims to his own file and to dispose them of in accordance with law and in the light of the observations made hereinabove. I, however, make no order as to costs. Petition allowed.