- (1.) SUSHIL Harkauli, J. The facts relevant for decision of this writ petition, as appearing from the record are that the petitioner was granted a lease for excava tion of sand from Zone number 5 of the river Yamuna for an area of 452 acres. Pursuant to the auction by which the lease was settled with the petitioner, an agree ment between the State and the petitioner dated 13-2-1994 was entered into, a copy of the agreement has been filed as Annexure-1 to this writ petition.
(2.) THE period of lease was from 13-2-1994 till 30-9-1994. THE total amount of royalty/lease money was Rs. 15,05,700/-out of which Rs. 7,52,850/- was deposited immediately by the petitioner at the time of execution of the agreement in Form number MM-6 in accordance with Rule 39 of U. P. Minor Mineral (Concession) Rules. THE balance amount of Rs. 7,52,850/- was required by the agreement to be deposited in two installments of Rs. 3,76,425/- each on or before 30-4-1994 and 31-7-1994. THE petitioner started work of excavation but did not deposit the first installment of Rs. 3,76,425/- which was to be deposited by 30-4-1994. THE petitioner has alleged that by letter dated 4-7-1994 the officer- in-charge of Kumbh Mela re quired the petitioner to stop excavation work immediately. According to the counter-affidavit, the document, which has been filed as An-nexure-5, which bears the date 4-7-1994, but it has been referred to in para 11 of the writ petition as dated 21- 7-1994, as ac curate copy. However, it is admitted in Para 15 of the counter-affidavit that wire less message No. 104/khadan dated 20-7-1994 to stop mining work due to non depositing royalty installments, was sent. It is not the case in the counter- affidavit that the petitioner continued with excava tion work after the wireless message. On the contrary it is alleged in Para 15 of the counter-affidavit that the Tehsildar reported after the wireless message that no excavation work in Zone number 5 was being done and no stock of sand was deposited by the lease holder at the time of inspection. Therefore, it is admitted case of the parties that before the date of expiry of contract i. e. 30-9-1994 could arrive the petitioner was stopped from excavation work with effect from 20-7-1994. By the impugned order in this writ petition the recovery certificate for the entire balance amount of Rs. 7. 5 lacs has been issued for realisation as arrears of land revenue.
(3.) THE learned counsel for the petitioner has argued that since the petitioner was not allowed to work during the entire contract period, therefore, the whole amount of lease, cannot be demanded or recovered from the petitioner. THE learned Standing counsel appearing for the respondent has not been able to point out the provisions in the agreement or any provision of law under which the respon dents would to be entitled to recover the entire lease money when they have not permitted the petitioner to operate the lease for the entire period. However, the learned counsel for the petitioner has further submitted that this Court should direct deduction in the lease money sought to be recovered proportional to the period by which the lease period was cut short.;