M/S Apple Valley Resort Private ... vs State Of Himachal Pradesh And ...
2023 Latest Caselaw 5748 HP

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CWP No. 8958 of 2011 Reserved on: 03.05.2023 Decided on: 12.05.2023 __________________________________________________________

.

M/s Apple Valley Resort Private Ltd. ...Petitioner

Versus

State of Himachal Pradesh and others ...Respondent

__________________________________________________________ Coram

The Hon'ble Mr. Justice Satyen Vaidya, Judge

1 Whether approved for reporting? Yes

______________________________________________________ For the petitioner: Mr. R.L. Sood, Senior Advocate, with Ms. Sanjeevani Sood, r Advocate.

For the respondents: Mr. Mohinder Zharaick, Additional Advocate General.

Satyen Vaidya, Judge

Petitioner has prayed for following substantive

reliefs:

(a) Identify, demarcate on the spot the leased

property measuring 1 bigha adjoining to Khasra No. 7299 situate in Phati Kharahal,

Kothi Kais (Daunsa-Ri-Bihal) Tehsil and District Kullu, which was leased in favour of the petitioner-Company vide Registered Lease Deed dated 5.2.2002 (Annexure PC) and to thereafter again handover actual

Whether reporters of Local Papers may be allowed to see the judgment?

possession of the same on the spot after its proper demarcation and thereafter to mutate the same in favour of the petitioner- Company and effect necessary entries in the

.

Revenue Record.

(b) Direct the respondents to execute and

register a lease deed in favour of the petitioner-Company for a further period of 15 and half years commencing from the

date of its execution and registration in respect of the land described in para (a) supra.

(c) Restrain the respondents from interfering in

the peaceful use, occupation and enjoyment of the leased land adjoining to Khasra No.

7299, situate in Phati Kharahal, Kothi Kais, Tehsil and District Kullu."

2. Brief facts necessary for adjudication of the

petition are as under:

2.1 Petitioner is running a tourist resort on the right

bank of river Beas under the name and style of M/s Apple

Valley Resort Private Ltd. in Village Mohal, District Kullu,

H.P. Petitioner proposed to link its resort with highway on

the left bank of river Beas with a rope-way/cable-car and

for such purpose approached the respondents for grant of

lease of a piece of Government land measuring 1 bigha on

the left bank of river Beas abutting the highway.

.

Respondents accepted the proposal of petitioner and leased

a piece of land measuring 1 bigha abutting khasra No. 7299

in Village Daunsa-Ri-Bihal, Phati Kharahal, Kothi Kais,

Tehsil and District Kullu, H.P. A lease deed was executed

and registered on 5.2.2002 whereby the above noted piece

of land was leased to petitioner for a period of 10 years. The

leased money was settled at Rs.1056/- per annum.

2.2 Respondent No.2 cancelled the lease deed

executed in favour of the petitioner and such fact was

communicated to the petitioner vide communication dated

18.2.2005. The cancellation was made on the premise that

the lease was in contravention of provisions of the H.P.

Lease Rules, 1993.

2.3 Petitioner assailed communication dated

18.02.2005 before this Court by way of CWP No. 543 of

2005. The petition filed by the petitioner was decided on

12.06.2007 by this Court in following terms:

"The respondents have not pointed out which Rule or terms and conditions of the

lease have been violated by the petitioner. The bald assertion made in letter dated 18.2.2005 is that the lease is cancelled as per the H.P. Lease Rules, 1993 without mentioning what particular rule has been violated. The lease could only be cancelled once executed as per

.

H.P. Lease Rules, 1993 if there was violation

of any of the terms and conditions of the lease.

The upshot of the above discussion is

that the petitioner has not been heard before the cancellation of lease vide letter dated 5.2.2005. The petitioner on the basis of the promise held out had altered his position, thus attracting the principles of promissory

estoppel.

Accordingly, the writ petition is allowed. Annexure PK dated 18.2.2005 is quashed and set-aside. The respondents are directed not to

interfere with the possession of the petitioner in any manner while raising the infrastructure

for the purpose of operation of cable car/bridge on Khasra No. 7299 situate in Daunsa-Ri-Bihal, Phati Kharahal, Kothi Kais, Tehsil and District Kullu, H.P. There shall be

no order as to costs."

2.4 As evident from the concluding para of above

noted judgment, directions were issued to the respondents

not to interfere with the possession of the petitioner in

Khasra No. 7299. Later, it was found to be a clerical error

as no portion of Khasra No. 7299 had ever been leased in

favour of the petitioner. Even otherwise, the land comprised

in Khasra No. 7299 belonged to private parties, who by way

of Civil Review No. 16 of 2009 had sought the review of

judgment passed in CWP No. 543 of 2005. The review was

allowed on 14.6.2010 and the operative portion of the

judgment was modified in following terms:

.

"Accordingly, the writ petition is allowed. Annexure PK dated 18.2.2005 is quashed and set-aside. The respondents are directed not to interfere with the possession of the

petitioner in any manner while raising the infrastructure for the purpose of operation of cable car/bridge on the land adjoining to Khasra No. 7299 situate in Daunsa-Ri-Bihal, Phati Kharahal, Kothi Kais, Tehsil and

District Kullu, H.P."

3. The grievance of the petitioner is that despite the

passing of judgment dated 12.6.2007, in CWP No. 543 of

2005 and the order dated 14.06.2010 in Civil Review No. 16

of 2009, the respondents failed to identify the leased land

and thus prevented the petitioner to commence the work for

which the lease was granted. Having failed to get redressal

of its grievances, petitioner has again approached this Court

by way of instant petition for the reliefs as noticed above.

4. The petitioner has contended that the fruits of

lease have been denied to it by such acts of omission and

commission on part of the respondents in which petitioner

was neither contributory nor accessory. Petitioner claims

that since he has been divested from the right to use the

leased land without any fault on his part, he was entitled

for renewal of lease for a further period of 15 years. At the

time of hearing, learned Senior Counsel representing the

.

petitioner on instructions even offered to pay lease money at

prevailing rates.

5. Initially, respondent No.2 submitted his short

reply in pursuance to orders passed by this Court on

15.10.2011. It was submitted that after passing of the

orders by this Court on 12.6.2007 and 14.6.2010, the

matter was referred to Principal Secretary (Revenue) to the

Government of Himachal Pradesh from where the

instructions were received to resume the land immediately

after expiry of lease period of 10 years. The department of

Forest had raised objection with respect to the grant of

lease of forest land without prior approval under Forest

Conservation Act, 1980. It was also submitted that the

nature of forest land could not be converted as per the

orders dated 12.12.1996 of Hon'ble Supreme Court passed

in CWP No. 202 of 1996. Sh. Arun Sharma, owner of Apple

Valley Resort Pvt. Ltd. had encroached upon 0-00-18 bigha

of land in Kais-3 Forest. The encroached land is at a

distance of 95 "Karam" from Khasra No. 7299 and at a

distance of 35 "Karam" from leased land in question. The

Collector under the H.P. Public Premises and Land (Eviction

.

and Rent Recovery) Rules, 1971 had already passed eviction

order in respect of the encroached land. Further, the

specific stand of respondent No.2 was that the petitioner

had not undertaken any civil work on the leased land to

establish the cable rope way. Petitioner had instead raised

some structure on encroached land.

6. Later, a detailed joint reply on behalf of all the

respondents has also been filed. The contents of short reply

as noticed above, find elaboration in said reply.

Additionally, it has further been submitted that the

petitioner was required to utilize the leased land for the

purpose it was leased within six months from its allotment

as per Clause 4 (e) of the lease deed, but petitioner had

failed to comply with the said condition. No steps were

taken by the petitioner to install the cable car. Non-

attestation of mutation could not have precluded the

petitioner from undertaking the work for which the land

was taken on lease. It is also the case of respondents that

the petitioner had failed to procure 'No Objection

Certificates' from Forest Department, Town and Country

Planning Department and HPPWD.

.

7. I have heard learned counsel for the parties and

have also gone through the records of the case carefully.

8. Undeniably, the lease granted by the respondents

in favour of the petitioner was held as valid transaction by

this Court vide judgment dated 12.6.2007 passed in CWP

No. 543 of 2005. It was specifically held that the lease could

only be cancelled, once executed as per the H.P. Lease

Rules, 1993, if there was violation of any of the terms and

conditions of the lease. Another ground that had weighed

with this Court was that the petitioner was not heard before

cancellation of lease deed. The principle of promissory

estoppel was also applied against the respondents. The

aforesaid judgment of this Court attained finality as the

respondents did not choose to assail it.

9. Thus, respondents cannot now be heard to say

that the lease executed in favour of petitioner in the year

2002 was not legal and valid transaction. Nonetheless, the

period of lease granted in favour of the petitioner by the

respondents was ten years and said period expired in 2012.

The question, thus, arises with respect to efficacy of terms

of said lease even after the expiry of its terms.

.

10. Lease is a consensual agreement and the parties

thereto derive rights and obligations under the terms of the

contract of lease. Nothing can be obligated against any of

the parties to the contract of lease beyond the agreed terms.

11. Petitioner herein has sought Mandamus against

respondents. The Mandamus can be issued against public

authority(ies) in case they refuse or fail to perform their

duties or to fulfill their legal obligation(s). Hence, petitioner

firstly has to prove existence of any such duty cast upon the

respondents and thereafter has to prove refusal of

performance on their part.

12. Looking at the facts of case and material

available on record there is nothing to suggest or to infer

that respondents were under any legal obligation to extend

the period of lease in favour of petitioner. There was no

condition in the first lease deed executed between petitioner

and respondents that the period of ten years would be

subject to extension. Respondents also are not under any

legal obligation to grant a fresh lease to the petitioner.

13. The allegation of the petitioner that it was

.

prevented from utilizing the lease period due to acts of

omission and commission on part of the respondents need

not be gone into by this Court in the instant proceedings for

the reasons firstly, that the issue involves intricately

disputed question of facts, secondly, the parties had

specifically agreed to refer such matters to arbitration of the

Commissioner i.e. the Commissioner of the concerned

division as per Clauses 13 and 14 of the lease deed and

lastly, even if, the contention of petitioner is upheld, the

inevitable consequence necessarily will not be issuance of

mandamus as sought in the petition.

14. Petitioner also cannot be held entitled to its

prayer (c) as it cannot be held to be in possession of the

land once leased to petitioner. The identity of such land was

not clear and for such reason only petitioner had made

prayer (a) in the instant petition. Even otherwise after lapse

of lease period petitioner cannot be granted any such relief

in exercise of jurisdiction under Article 226 of the

Constitution of India.

15. In result, the petition fails and the same is

.

dismissed.

The writ petition stands disposed of, so also the

pending miscellaneous application(s), if any.

    12th May, 2023                                   (Satyen Vaidya)




          (GR)                                            Judge