IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CLMA 8948/2010 With Writ Petition No. 1806/2010 (M/S) M/S New Capital Cinema … Petitioner. Versus Nagar Palika Parishad Nainital and another … Respondents. Mr. Sharad Sharma Senior Advocate assisted by Mr. Siddharth Shah, Advocate for petitioner. Mr. D.S. Patni, Advocate for respondent No.1. Mr. N.P. Shah, Standing Counsel for respondent No.2. (Hon’ble B.S. Verma, J. ) Heard Mr. Sharad Sharma, Senior Advocate assisted by Mr. Siddharth Shah, Advocate for the petitioner, Mr. D.S. Patni, Advocate for respondent No.1 and Mr. N.P. Shaha, Standing Counsel for respondent No.2. By means of this petition the petitioner has sought the following relief- (1) To issue a writ in the nature of certiorari to quash the letter dated 11.10.2010 issued by Additional Secretary Urban Development State of Uttarakhand (Annexure No.11 to the writ petition). (2) To issue a writ in the nature of mandamus directing the respondent Nagar Palika Nainital to renew and execute the lease deed of Ashok and Capital Cinema Hall in favour of the petitioner firm. Briefly stated the facts giving rise to this petition are that M/S New Capaital Cinema Nainital has been running the business of exhibition of movies in the property known as Ashoka Talkies and Capital Cinema situated in Mallital Nainital from the year 1930. Earlier the property was under the tenancy of petitioner. But pursuant to the litigation between the petitioner and Nagar Palika Nainital compromise was arrived at and fresh lease deed was executed between the petitioner and Municipal Board on 8th January 1997. Lastly the lease deed was renewed in favour of the petitioner on 8-6-1997 w.e.f. 1-6-1994 and it expired in the year 2004. The said 2 renewal was granted to the petitioner with the option of renewal for further 10 years at the agreed rent and terms between parties to the deed. After expiry of the said period the petitioner had applied for further renewal of a period of 10 years. The lease was not renewed by the Nagar Palika Parishad/respondent No.1. There was an arbitration clause in the lease agreement, therefore, the petitioner approached the arbitrator. The arbitration application was registered as No. 1/2003-04, New Capital Cinema Vs. Nagar Palika Parishad. The learned Arbitrator/Commissioner Kumaun Mandal gave his award on 1.8.2007 and directed the Municipal Board to proceed with tender process. Aggrieved by the order of the Arbitrator the petitioner filed objection before the Principal Civil Court, i.e. District Judge, U/S 34 of the Arbitration Act 1996. The objections were allowed on 28.7.2009 by the Additional District Judge/F.T.C. Nainital, against which the Municipal Board preferred appeal against the order passed U/S 36 of the Arbitration Act, which is still pending. It is pertinent to mention here that in the intervening period a P.I.L. was filed by Smt. Preeti Bisht. On 12.5.2009 the Division Bench of this Court vide interim order directed the Municipal Board to take steps to ensure that new style Multiplex or a Cineplex is made available in shortest possible time and contract be awarded on B.O.T. basis by the Municipal Board based on sound commercial viability. The petitioner preferred S.L.P. before the Apex Court and the same was dismissed by the Apex Court on 19-4-2010 with the observation that all the pending proceedings between the parties shall be disposed of on their own merits uninfluenced by the observations made in the impugned order. According to the petitioner after the dismissal of S.L.P. the order of Division Bench of this Court has no effect and the PIL was also disposed of on 18.8.2010 with direction to Nagar Palika Parishad to utilize the plots of land in question with or without the structures constructed thereon in the best possible manner and to the best use of the public as it may deem fit. It is informed by the counsel for the parties that some settlement is arrived at between the petitioner and the Nagar Palika 3 Parishad Nainital and on the basis of settlement the Nagar Palika Parishad passed resolution dated 12.8.2010 for extension of lease in favour of petitioner for 30 years. The said resolution was sent by the Nagar Palika Parishad to the Government for approval. Thereupon the Government vide impugned letter dated 11-10-2010 asked the Nagar Palika Parishad to invite tenders and thereafter send the proposal for the approval of the Government. Since the Nagar Palika Parishad has passed the resolution in favour of the petitioner, the State Government ought to have afforded opportunity to the petitioner and should have heard the petitioner prior to passing order for tendering process. Therefore, this action of the Government is violative of natural justice. In the above facts and circumstances of the case, the respondent No.2 is directed to afford an opportunity of hearing to the petitioner and after hearing the petitioner, it shall take a decision afresh in the matter, by passing a peaking and reasoned order, within four weeks from the date of production of certified copy of this order. Till the fresh decision is taken by the Government in the matter, the impugned order shall be kept in abeyance. With the said observation and direction, the writ petition is disposed of finally. Dated: 22-10-2010 (B.S. Verma, J. ) ISB