IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 236 of 2010 Jeewan Chandra Kholia ………….. Petitioner Versus Krishi Utpadan Mandi Samiti and others. .…...……. Respondents Present: Mr. P.S. Rawat, Advocate for Mr. Harendra Belwal, Advocate for the petitioner. Mr. J.C. Belwal, Advocate for the respondents. Coram : Hon’ble Barin Ghosh, Chief Justice Hon’ble V. K. Bist, Judge Date of Decision : 30.12.2010 Barin Ghosh, C. J. (Oral) For the period 1st January 2008 to 31st December 2009, Canteen No.11 was allotted in favour of the appellant. Appellant was required to pay a sum of ` 1,51,000/- as and by way of rent therefor. On 17th December 2009, an offer was given to the appellant to extend the allotment from 1st January 2010 to 31st December 2011 upon appellant depositing on or before 19th December 2009 rent payable therefor for the next twelve months with an increase of ten per cent and submission of a consent letter. Appellant submitted a consent letter on 19th December 2009. He purported to have sent a cheque for ` 1,56,811/- through courier on 18th December 2009. Subsequently, the consent so given was cancelled. Appellant, accordingly, approached the Court for a direction not to disturb the possession of the appellant of the allotted canteen upto 31st December 2011. By the judgment and order under appeal, the writ petition has been dismissed solely on the ground that the offer dated 17th December 2009, which was to be accepted by 19th December 2009, was not accepted, inasmuch as, though consent letter was submitted on 19th December 2 2009 but there is no evidence of tendering the rent on or before 19th December 2009. 2. In the appeal, the appellant has not been able to establish that the cheque in question was, in fact, tendered on or before 19th December 2009. In that view of the matter, there appears to be no agreement, in part performance whereof the appellant could remain in possession of the allotted canteen. 3. It was contended that on 21st December 2009, an advertisement was published for allotment of six canteens but the advertisement did not include the canteen which was allotted to the appellant. It was contended that the said conduct would suggest that the consent of the appellant having been accepted, it was decided to continue the allotment in favour of the appellant. It was also contended that payment of rent by 19th December 2009 was not the essence of contract, inasmuch as, the contract pertained to allotment of an immovable property. Time to pay advance rent for allotment of an immovable property may or may not be the essence of the contract and assuming the same was not so, but still the appellant was obliged to tender the advance rent. There is no evidence thereof. Only thereafter the contract could come into existence and in part performance thereof the appellant could continue to remain in possession of the allotted canteen from 1st January 2010. It is true that the advertisement dated 21st December 2009 did not indicate any intention of allotting the canteen, which was allotted to the appellant, but on 25th December 2009, a corrigendum thereto was published and thereby the canteen of the appellant was brought within the purview of the advertisement dated 21st December 2009. 4. It was lastly contended that on 24th December 2009, the consent letter of the appellant was rejected. It was contended that such rejection would show that the consent letter was accepted and unless the same was accepted, question of rejecting the same did not arise. 3 5. In the facts and circumstances of the case as narrated above, the rejection of the consent should be deemed to be for the failure on the part of the appellant to discharge his other part of the obligation, i.e. to tender the advance rent within the time specified in the offer. 6. In such view of the matter, we do not admit the appeal, the same is dismissed. ( V.K. Bist, J. ) ( Barin Ghosh, C.J.) 30.12.2010 P. Singh