JUDGMENT
R.S. Mongia, C.J.
1. The writ petitioner (now respondent) was settled with the Madhura Sand Mahal for a period from 12.J.1998 to 114-2000 for extraction of sand. The quantity of sand which could be extracted was 1050 cu ms. For certain reasons, to which reference will he made hereinafter, the writ petitioner could only extract 367 cu ms. within the stipulated period. He had asked for extension of the lease period for extracting the sand but the same was refused by the order dated 11-2-2000. By the said order it was also decided that sale notice be issued for the said Mahal.
2. Before the learned Single Judge it was averred that Immediately after the writ petitioner had started extracting sand and transporting the same from the mine to other places by trucks over the Khaspur-Silchar PWD Road, restrictions were imposed by the PWD not to ply heavy vehicles on the said road. Maximum load that was permitted to be carried by trucks was 6.00 m. tonnes. It was also averred that the respondents have not maintained the S. P.T. Bridge No- 1 /1 on Khaspur-Rajbari Road which stands on the gate way to the concerned Mahal, and it was in a dilapidated condition since long.
3. Before the learned Single Judge reliance was also placed on a letter dated 3.9.1999 from the Conservator of Forests, Southern Assam Circle, Silchar to the Chief Conservator of Forests, to highlight that the writ petitioner could not extract the entire quantity of sand because of the fault of the respondent, road communication as well as because of the dilapidated condition of the bridge etc. The letter reads as under:
“Letter No. FCB.24/Saud/BII/96-97/98-99 Dated the 3rd Sep/99
From: The Conservator of Forests, Southern Assam, Circle, Silchar.
To : The Chief Conservator of Forests (T), Assam, Kacharighat, Guwahati-1.
Sub: Prayer for stay of sale notice of Madhura Sand Mahal for 1996-98 and grant extension for a period of 2 (two) years.
Ref: Govt. letter No. FRS. 72/99/6 dated 29.8.1999. Sir,
With reference to above cited letter, I have the honour to request you kindly to refer to the letter no. A/ 146.9-70/7(ii) (Madhura Sand) dated 21.9.1999 from the PFQ Cachar Division on containing comments into the petition dated 24,8.1999 of Sri Adbul Khalique, Mahaldar of Modhura Sand Mahal for 1996-98 which is self explanatory. The DFO in his report has stated that the Mahaldar has paid 7th kist money arid the 8th and final kist is due on 1.104999. The Mahal period expires by 11.1.2000 and the Mahaldar has collected 367 m of sand against stipulated quantity of 1050 m leaving a balance 683 m of sand materials. The DFO in para 3 has stated the reason for non-collection of sand from the Mahal due to damage bridge road communication and scarcity of labour the department is not liable. The Govt, vide latter No. 22/99/6 dated 27.8. 1999 stayed the fresh sale of the Mohal for next term.
As the Mahaldar has received two years time for lifting of the materials from the Mohal, further extension of the Mohal is not reasonable as per Mohal rule. Since there is almost 4 months to the expiry of the Mohal period, the Mohaldar may be instructed to lift all the balance materials to the outside of the Mohal and Mohal may allowed to put on fresh sale at early date.
Yours faithfully,
Sd/-
Conservator of Forests,
Southern Assam Circles, Silchar.”
4. The learned Single Judge was of the view that though no fault of the respondent could be found in not extending the period of extraction in favour of the writ petitioner, yet according to the learned Single Judge, the writ petitioner was entitled to the refund of the lease money to the extent the sand had not been extracted, i.e., to the extent of 683 cu ms.
5. The writ petition was dismissed of on 29th.March 2000 and the refund was directed to be made to the writ petitioner not later than one month from the date of receipt of the certified copy ofihe judgment; but till date the payment has not been made. Even this writ appeal was filed after a delay of 303 days.
6. We have heard the learned counsel for the parties.
7. As to whether the non extraction of the entire quantity be the writ petitioner now respondent was because of the fault of the respondent, is purely a question of fact, which is to be determined on the basis of evidence.
8. As observed above, the allegation of the writ petitioner was that restrictions were imposed by the PWD for plying vehicles carrying more than 6m. tonnes on Khaspur-Silchar PWD Road and the bridge, to which reference has been made above, was also in a dilapidated condition for a pretty long time. The ban which was imposed by the PWD regarding plying of trucks was by the notification dated 29th November 1997, whereas the lease of the writ petitioner started on January 1999. It is also the case of the petitioner that the particular bridge was in a dilapidated condition for a pretty long time. It can be assumed that the dilapidated condition of the bridge was prior to the entering into contract between the parties. In other words, the writ petitioner had entered into contract with open eyes. On the other hand the state alsp cannot be left at their whims, for not keeping the roads or the bridges in proper order to enable free flow of traffic. In a walfare State, it is the bounden duty of the State Government to keep the means of communication like roads, bridges etc. in proper order.
9. We are of the view that non-extraction of the entire quantity can be said to some extent due to the inaction on the part of tile State. We are of the view, that in these circumstance by applying principles of tort, i.e., contributory negligence of the respondents, the writ petitioner in entitled to 50% of the value of the unextracted sand, i.e., 683 cu ms. According to the parties, the amount would be about Rs. 70,000- This will make Rs, 35,000 payable to the respondent/ writ petitioner. However, we find that despite the orders of the learned Single Judge to make the payment within one month, the payment has not been made till date and even the writ appeal was filed after 303 days of delay.
10. Taking these facts also into consideration, we are of the view that justice would be met if the appellant pays Rs. 40;000 in all to the writ petitioner towards the value of the enextracted sand.
11. The writ appeal is allowed to the aforesaid extent.
12. Though, the writ appeal stands disposed of in the above terms, the same is being kept .alive for the appellant to make payment to the writ petitioner (now respondent) by way Of crossed cheque or bank draft. For the purpose the appeal is adjourned to 27th November 2001.
13. Copy of this order, attested by the Bench Assistant, be given to the counsel for the State Govt.