Case: Uberoi Mohinder Singh and Associatesv. State of Haryana and Others,. With Doon Construction Company Vs. State of Haryana and Others

heard learned counsel for the parties at length. From a perusal of the entire correspondence placed on record we are fully convinced that there was no fault on the part of the appellant and he was insisting even before the execution of the agreement dated May 26, 1977 that the quarry of Yamuna sand be handed over after obtaining clearance from the Flood Control Department as the entire quarrying area lay within the protected area as is borne out from Annexure I dated November 19, 1976. The appellant under the pain of forfeiture of his security amount as well as the first instalment as contained in Rule 33 was left with no other option than to execute the deed in From L within one month from the date of communication of acceptance of bid. It is pertinent to note that soon after the acceptance of the bid in favour of the appellant, he was repeatedly making a request to the respondents to hand over possession of the area and to grant him no objection certificate from Executive Engineer (Flood and Irrigation). Copy of letter Annexure V dated August 8, 1977 written by the Director of Industries to the appellant itself makes a mention in the following terms "With reference to your letter dated July 8, 1977 on the above subject I have to inform you that the Dikshit Award is yet to be implemented and at present the whole of the revenue estate of Basantpur falls within Haryana State. Under the authority of the contract you can extract the sand after getting permission from the Executive Engineer, Flood Division, Faridabad. You are, therefore, liable to pay the contract money from May 27, 1977 the date of commencement of contract agreement." * The contents of the above letter clearly go to show that the appellant was authorised to extract the sand after getting permission from the Executive Engineer Flood Division, Faridabad. Annexure VI dated January 28, 1978/February 6, 1978 written to Senior District Industries Officer also goes to show that a joint inspection was made on the spot and the appellant was given to understand that no mining operation could be permitted within the area of revenue estate of Basantpur because of various flood control preventive measures undertaken by the Flood Control Department unless no objection certificate and possession was delivered by the Flood Control Department. The appellant had clearly mentioned in the aforesaid letter that he would inform regarding the results of his efforts in obtaining no objection certificate. Thereafter vide Annexure VII dated January 28, 1978/February 6, 1978, he submitted an application to the Executive Engineer (Flood and Irrigation) for granting no objection certificate for undertaking the quarrying work within the river bed of Jamuna flowing in the revenue estate of Basantpur. A copy of the aforesaid letter was event sent to the Chief Minister in which the difficulty was pointed out even for future and it was suggested that in order to avoid all these complications it was desirable that a prior consultation was done between the Department of Industries and Flood Control Department and only those areas should be auctioned which did not affect the flood control preventive measures. It is important to note that the Executive Engineer vide Annexure VIII dated February 15, 1978 did not grant no objection certificate but simply directed the appellant to remain in touch with the Industries Department in this connection10. All the above correspondence unmistakably goes to show that the appellant was driven from pillar to post but was not given no objection from the Flood Control Department nor it was made feasible for him to excavate or take out sand from any area of the village. The appellant has not been able to take out or excavate a single particle of sand from the leased out area and the difficulty in this regard was pointed out not only after the execution of the agreement but even prior to such execution. In facts and circumstances of the case, there was no fault on the part of the appellant and his bona fides are evident inasmuch as he had deposited a sum of Rs. 47, 750 even before the execution of the agreement and was always ready and willing to perform his part of the contract, but the Flood Control Department was not giving clearance and as such the performance of the contract itself was made inexecutable by the respondent. Clause 26 of the agreement as well as Rule 61 of the Rules do not apply in the present case. There is no question of payment of any compensation to start quarrying operation in the present case. The minor mineral i.e. sand was to be lifted from the surface itself and it was admittedly the property of the government. We do not find any force in the arguments of the learned counsel for the respondents that the appellant was benefited in not starting the excavation as the prices of sand were going high. The above inference is based on mere conjecture and is not supported by any material nor such plea has been taken in the counter filed by the respondents. We are unable to appreciate as to how the appellant was at all benefited in not excavating even a single price of sand even though he had already deposited a substantial amount of Rs. 47, 750 with the respondents11. We are thus clearly of the view that the respondents are neither entitled to forfeit any amount nor to demand any further money from the appellant under the alleged agreement dated May 26, 1977 12. The case M/s. Doon Construction Company in the abovementioned writ petition filed under Article 32 is almost identical with the appellant except that it took the contract in an auction for the period September 17, 1978 to March 31, 1981. The contract amount in its case is Rs. 2, 70, 000 per annum and it had deposited a sum of Rs. 1, 35, 050 in all

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. We have heard learned counsel for the parties at length. From a perusal of the entire correspondence placed on record we are fully convinced that there was no fault on the part of the appellant and he was insisting even before the execution of the agreement dated May 26, 1977 that the quarry of Yamuna sand be handed over after obtaining clearance from the Flood Control Department as the entire quarrying area lay within the protected area as is borne out from Annexure I dated November 19, 1976. The appellant under the pain of forfeiture of his security amount as well as the first instalment as contained in Rule 33 was left with no other option than to execute the deed in From L within one month from the date of communication of acceptance of bid. It is pertinent to note that soon after the acceptance of the bid in favour of the appellant, he was repeatedly making a request to the respondents to hand over possession of the area and to grant him no objection certificate from Executive Engineer (Flood andcontents of the above letter clearly go to show that the appellant was authorised to extract the sand after getting permission from the Executive Engineer Flood Division, Faridabad. Annexure VI dated January 28, 1978/February 6, 1978 written to Senior District Industries Officer also goes to show that a joint inspection was made on the spot and the appellant was given to understand that no mining operation could be permitted within the area of revenue estate of Basantpur because of various flood control preventive measures undertaken by the Flood Control Department unless no objection certificate and possession was delivered by the Flood Control Department. The appellant had clearly mentioned in the aforesaid letter that he would inform regarding the results of his efforts in obtaining no objection certificate. Thereafter vide Annexure VII dated January 28, 1978/February 6, 1978, he submitted an application to the Executive Engineer (Flood and Irrigation) for granting no objection certificate for undertaking the quarrying work within the river bed of Jamuna flowing in the revenue estate of Basantpur. A copy of the aforesaid letter was event sent to the Chief Minister in which the difficulty was pointed out even for future and it was suggested that in order to avoid all these complications it was desirable that a prior consultation was done between the Department of Industries and Flood Control Department and only those areas should be auctioned which did not affect the flood control preventive measures. It is important to note that the Executive Engineer vide Annexure VIII dated February 15, 1978 did not grant no objection certificate but simply directed the appellant to remain in touch with the Industries Department in this connection10. All the above correspondence unmistakably goes to show that the appellant was driven from pillar to post but was not given no objection from the Flood Control Department nor it was made feasible for him to excavate or take out sand from any area of the village. The appellant has not been able to take out or excavate a single particle of sand from the leased out area and the difficulty in this regard was pointed out not only after the execution of the agreement but even prior to such execution. In facts and circumstances of the case, there was no fault on the part of the appellant and his bona fides are evident inasmuch as he had deposited a sum of Rs. 47, 750 even before the execution of the agreement and was always ready and willing to perform his part of the contract, but the Flood Control Department was not giving clearance and as such the performance of the contract itself was made inexecutable by the respondent. Clause 26 of the agreement as well as Rule 61 of the Rules do not apply in the present case. There is no question of payment of any compensation to start quarrying operation in the present case. The minor mineral i.e. sand was to be lifted from the surface itself and it was admittedly the property of the government. We do not find any force in the arguments of the learned counsel for the respondents that the appellant was benefited in not starting the excavation as the prices of sand were going high. The above inference is based on mere conjecture and is not supported by any material nor such plea has been taken in the counter filed by the respondents. We are unable to appreciate as to how the appellant was at all benefited in not excavating even a single price of sand even though he had already deposited a substantial amount of Rs. 47, 750 with the respondents11. We are thus clearly of the view that the respondents are neither entitled to forfeit any amount nor to demand any further money from the appellant under the alleged agreement dated May 26, 1977