The State Of Himachal Pradesh Chief ... vs Ravinder Kumar Sankhayan (Dead) .

In CMP No.1043/2005 we have ordered today that the applicant therein be allowed to intervene in these proceedings. In that application, the applicant has offered to take the property, Ashiana and Goofa Restaurants situated at the Ridge, Shimla on a monthly lease amount of Rs.2,50,000/-/- (annual lease amount of Rs.30 lacs). This offer of the aforesaid applicant is against the present lease money of Rs.2,86,992/- per annum which works out to 7 Rs.23,916/- per month as is being paid by H.P. Tourism Development Corporation. As per the Statement of Accounts filed by respondent No.2 HPTDC actually it has been in arrears with respect to the payment of aforesaid lease amount also at the aforesaid rate and the amount of arrears, has been worked out at Rs.18,50,361/- as on 31st March, 2005.

As per the aforesaid affidavit, as well as the aforesaid statement of offers and also as per the comparative statement of tenders filed as Annexure R-2/B to the aforesaid affidavit, it clearly transpires that M/s. N&S Resorts, The Mall, Shimla has offered the highest rate of Rs.6,51,000/- per month. The Committee constituted by the Corporation, as is evidently clear from the perusal of Annexure R-2/B, has also recommended that the offer of M/s N&S, The Mall Shimla may be accepted.

Learned counsel for all the parties submit that they have no objection to this application being allowed to the limited and the only extent of the applicant herein being permitted to intervene in the proceedings. We order accordingly. The other prayers made in the application are declined.

The application is disposed of.

With a view thus to attract the best offers and to ensure that the property is given on lease/license basis which will be in best public interest and also in the interest of Corporation, we direct respondent No.2 to publish and also in the interest of Corporation, we direct respondent No.2 to publish advertisements in three leading newspapers within ten days from today inviting offers from interested parties for obtaining the aforesaid property on lease/license basis. In the advertisements so published, respondent No.2 shall ensure that the last date of receipt of offers is not later than 30th June, 2005.

H.P. Tourism Development Corporation and the intervener herein, both are at liberty to respond to the invitation of respondent No.2 in the aforesaid advertisement and to submit their respective offers. The submission of offers by the HPTDC and by the intervener shall be without prejudice to their rights and contentions in this case. It is, however, also specifically made clear that if they both, or anyone of them, fails to offer in response to the aforesaid invitation to offer, they shall be doing so entirely at their own risk and responsibility.

In the best interest of the Corporation as well as in best public interest, therefore, we approve of the recommendation of the Committee constituted by the Corporation and direct the Corporation to lease out the premises in question in favour of the highest bidder. All the consequences accordingly shall also follow including the consequence of H.P. Tourism Development Corporation being asked to vacate the premises without any loss of time. Actually from today onwards for whatever period the H.P. Tourism Development Corporation continues to remain in occupation of the premises, it shall be its obligation to pay to the Municipal Corporation the monthly lease amount at the rate as has now been offered by M/s N&S Resorts for the period that it remains in occupation.

We also wish to observe and direct that the Municipal Corporation, Shimla shall ensure, before leasing out the property to M/s. N&S Resorts, that the interests of the Corporation are fully secured and protected in so far as ensuring the payment of the lease money to the Corporation by M/s. N&S Resorts is concerned. It may, therefore, insist on receiving advance payment from the aforesaid party or security or taking such other steps. The purpose, of course, is to ensure that the lease money being offered by the aforesaid party is paid to the Corporation regularly and without any delay.

List after three months. On the next date, the Commissioner shall file his latest affidavit giving us the status report in compliance to the aforesaid directions. CMP NO.1341 of 2005 All the parties in this petition may file reply to this application in four weeks.” 12

13. In our opinion, the only relief that could have received the attention of the High Court was to direct the Municipal Corporation to recover its outstanding legal dues from various governmental authorities and individuals, namely, prayer clause (II) of the writ petition. However, the emphasis in the writ petition in this behalf is only with regard to the dues recoverable from HPTDC in respect of the subject premises. Assuming that there are outstanding dues payable by HPTDC to the Municipal Corporation, that matter could be resolved with the intervention of the State. In that, if HPTDC is financially incapable of settling the claim/demand of the Municipal Corporation, the State may have to provide financial assistance to HPTDC to the extent necessary, failing which the 17 Municipal Corporation will be left with no other option but to take recourse to statutory remedies for recovery of its dues from HPTDC in relation to the subject premises. Since the State has also come up in appeal against the decision of the High Court, it must take initiative to find out a suitable solution in accordance with law, expeditiously and within a reasonable time, failing which it may be open to the Municipal Corporation to resort to recovery proceedings against HPTDC and including eviction of HPTDC from the suit premises consequent to termination of the contract inter partes.

14. In light of these observations, nothing would survive for consideration in the writ petition as filed before the High Court, which is still pending for final decision. As a result, besides setting aside the impugned judgment and orders dated 24th May, 2005 and 5th July, 2005, respectively, we are inclined to dispose of the said writ petition with the aforementioned observations. Thus, the Writ Petition No.555 of 2004, filed in the High Court of Himachal Pradesh at Shimla, be deemed to have been disposed of accordingly. 18

15. The only other issue that remains to be addressed is about the amount of earnest money paid by the impleaded respondent N & S Resorts by way of banker’s cheque dated 27th June, 2005 in the sum of Rs.10 lakhs. Since the tender process in which the impleaded respondent had participated, was subject to the outcome of the pending legal proceedings, no right would accrue to it in the stated premises except to get refund of the amount paid as earnest money for participating in the Court directed tender process. The amount so paid by the impleaded respondent shall be refunded to it, with interest at the rate of 9% per annum (equivalent to the bank rate for fixed deposits prevailing at the time the deposit was made) from the date of deposit till its realization. The Municipal Corporation shall forthwith refund such amount to the impleaded respondent N & S Resorts but not later than twelve weeks from today, failing which the Municipal Corporation shall be liable to pay interest at the rate of 12% per annum from the date of deposit till the date of its realization. 19

16. We, accordingly, allow these appeals in the above terms, with no order as to costs.

..……………………………...CJI.

March 28, 2018.