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Kishanlal and anr. Vs. the State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 4839 of 1972
Judge
Reported inAIR1976All206
ActsConstitution of India - Article 226
AppellantKishanlal and anr.
RespondentThe State of U.P. and ors.
Appellant AdvocateH.S. Nigam, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition allowed
Excerpt:
.....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. the district magistrate, however, has followed a procedure which is clearly illegal as it contravenes the principles of natural justice. --rejected as recommended by s. ' in my opinion, the district..........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,.....
Judgment:
ORDER

R.L. Gulati, J.

1. The petitioners are the auction purchasers of 37 plots enumeratedin paragraph 1 of the writ petition situated in village Daulatpur (Kachhar) Par-gana and Tahsil Bhognipur District Kan-pur. These plots had been let out to them for removing morrum therefrom for a period of three years under an ageement 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 Argeement provides that the State Government will not allow any person to store, stock or sell by any means, at Kanpur side villlages and banks of river Jamuna, any sand and Morrum brought by anybody from the quarries situate 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. It is not disputed that the District Magistrate is the competent authority authorised to deal with the claims arising out of the agreement between the parties and to determine the relief allowable to the petitioner. The District Magistrate, however, has followed a procedure which is clearly illegal as it contravenes the principles of natural justice. He passed on the claims of the petitioners to the Tahsildar for enquiry. The Tahsildar made enquiry only in respect of the loss caused due to the flood and did not make any enquiry with regard to the other claims. Even though he found that large quantity of the petitioners' stock bad been washed away due to the flood and that the petitioner had not been able to obtain any morrum due to rains for some time, he recommended that the petitioner's claim be rejected. This report was sent to the A. D. M. (Rural Area) who passed it on to the District Magistrate with the following remarks:--

'I agree with this report, Thekedar is not entitled to any remission. His application may kindly be rejected.' The District Magistrate disposed of the applications with the following observations:--

'Rejected as recommended by S. D. O.'

In my opinion, the District Magistrate was clearly exercising quasi-judicial powers inasumuch as he was dealing with a claim of the petitioners for compensation. He could not treat the matter marely as administrative and to dispose it of on the recommendations of the Tahsildar. Even if the District Magistrate chose to conduct the enquiry through the Tahsildar the proper thing for him was to have supplied a copy of the Tahsildar's report to the plaintiffs and thereafter to have heard them in the matter, allowing them an opportunity to produce such evidence as they liked. On the contrary, the District Magistrate merely endowed the report of the Sub-Divisional Officer without applying his own mind to thefacts of the case and without recording any finding of his own. This procedure has resulted in manifest injustice to the petitioners as they have been deprived of the opportunity of establishing their claim to the satisfaction of the District Magistrate, who is the final authority entitled to adjudicate upon the claims.

In Travancore Rayon Ltd. v. The Union of India (AIR 1971 SC 862) the Supreme Court has ruled that when judicial power is exercised by an authority normally performing executive or administrative functions, the Supreme Court insists upon disclosure of reasons in support of the order on two grounds: one that the party aggrieved in a proceeding before the High Court or the Supreme Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous, the other, that the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial powers. In view of this dictum of the Supreme Court the order passed by the District Magistrate becomes highly indefensible. He has not only not passed a speaking order but he does not seem to have applied his mind at all to the facts of the case. He seems to have abdicated his functions in favour of the Sub-Divisional Officer.

4. 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.


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