IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 459 of 2007 Date of decision:15.12.2010. Dr. Rajeev Chanana … Petitioner. Versus The Commissioner & Anr. …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1. Yes. _______________________________________________________________ For the petitioner: Mr. Anuj Gupta, Advocate. For the respondents No. 1: Mr. Shrawan Dogra, Advocate. For the respondent No.2: Mr.Vivek Singh Thakur, Addl. AG. Deepak Gupta, J. (oral) By means of this petition, the petitioner has prayed that the respondent-Municipal Corporation be directed to execute a lease deed for 99 years for the premises in question which were auctioned in his favour. 2. Briefly stated, the facts of the case are that on 17.10.1994 the Municipal Corporation, Shimla (hereinafter to referred as the Corporation) published an advertisement inviting applications for transfer of ownership of shops on “lease hold basis (outright sale)” at three of its complexes. 3. The petitioner bid for shop No. 12 situated in Municipal Corporation Complex, Middle Bazar, Shimla. It is not disputed that he was the successful bidder and has deposited the amount in terms of bid. In fact, the petitioner was granted possession of the 1 Whether the reporters of the local papers may be allowed to see the Judgment? shop in question on 22.11.1994. A certificate was also issued by the Municipal Corporation certifying that shop No. 12, Middle Bazar, Commercial Complex had been allotted to the petitioner on lease hold basis for 99 years through auction against bid amount of Rs. 3,86,000/- which amount has been received in full. Thereafter Assistant Commissioner of the Municipal Corporation on 7.4.1999 sent a notice to the petitioner informing him that since the shop in question had been allotted to the petitioner on lease hold basis for 99 years, the petitioner was required to deposit 1.5 per cent of the lease amount for purpose of registration. Draft lease was also enclosed. The same was however never signed. 4. The petitioner thereafter has been calling upon the Corporation time and again to execute a lease deed for a period of 99 years. For more than 10 years he sent letters to the Corporation in this regard and finally sent a legal notice on 3.3.2006, but to no avail. Finally he was compelled to file the present petition in the year 2007. 5. The Corporation in its reply has not denied the fact that the petitioner was the successful bidder. It has also not disputed the right of the petitioner to have the lease deed executed in his favour in respect of the premises in question for a period of 99 years. However, according to the Corporation under the provisions of Section 157 (b) of the HP Municipal Corporation Act, 1994 the Municipal Corporation cannot execute a lease deed of any Municipal property without the approval of the State Government. The Municipal Corporation in its reply has stated and there is material on record to show that the Municipal Corporation sent repeated references to the State Government to grant approval in terms of Section 157 (b) referred to hereinabove. 6. The State did not file reply for almost two years and reply has been filed only yesterday and the stand now taken in the reply is that the Municipal Corporation is entitled to execute the lease deed in terms of “the Leasing out of Stalls/Shops constructed by the Municipalities in Himachal Pradesh Rules, 2001” According to the State Government as per these Rules the lease period cannot exceed 25 years. This reply shows total non application of mind by the official who has filed the affidavit on behalf of the State Government. The auction in question took place in the year 1994 about seven years prior to the promulgation of the Rules referred to in the reply. Therefore, these Rules are not applicable in the present case. In fact, the Municipal Corporation has placed on record a letter dated 9.7.2000 wherein it has clearly intimated the State Government that the Rules of 2001 cannot be made retrospectively applicable in the case of auctions which took place prior to the promulgation of the Rules. The State Government now wants to restrict the lease for a period of 25 years and wants to retain the power to extend the lease thereafter. When the auction was held, it was clearly held out to the intending purchasers/bidders that the property of the Municipal Corporation would be transferred on lease hold basis for 99 years. The bidders, including the present petitioner, obviously calculated the bid money by taking into consideration the fact that they would enjoy the property for a period of 99 years. This was the promise held out to them that they would enjoy the property for at least 99 years. In my mind, there can be no manner of doubt that the State Government cannot now retrospectively reduce the lease period to 25 years. 7. Needless to say that Stamp duty, Registration charges etc. shall be borne by the petitioner. The petitioner before the lease deed is executed shall ensure that all arrears of Municipal taxes and other amount(s) due to the Municipal Corporation are paid by him to the Municipal Corporation. In case any Municipal taxes or other dues are not paid by the petitioner prior to 30.3.2011, the Municipal Corporation shall be free not to execute the lease deed. In view of the above discussion, the petition has to be allowed and the Municipal Corporation is directed to send a fresh reference to the State Government along with a copy of this judgment within 15 days from the receipt of the copy of the judgment of this Court. Thereafter the State Government shall take appropriate action in line with this decision on or before 28th February, 2011. It is made clear that if till 28th February, 2011 State Government does not take any decision, the Municipal Corporation on its own shall execute the lease deed in favour of the petitioner for a period of 99 years from the date when the petitioner actually entered into possession of the premises. The needful be done positively by 31.3.2011. No order as to costs. ( Deepak Gupta ) Judge. 15th December, 2010 (guleria)