IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: May 31, 2010 Decision on: July 12, 2010 WRIT PETITION (CIVIL) 7366/2009 & CM APPL 3210/09 DEVAYANTI .... Petitioner Through: Col. K. Digambar Singh, Advocate versus UNION OF INDIA & ANR .... Respondents Through: Ms. Jyoti Singh, Advocate is CORAM: JUSTICE S. MURALIDHAR ORDER 12.07.2010 In terms of the common judgment rendered today in Writ Petition (Civil) 9478/2007 titled "Wing Commander M.P. Set/il (Retd.) & Ors v. Union of india & Another" along with eight connected writ petitions, this writ petition is dismissed with no orders as to costs. Application also stands dismissed. A copy of the judgment passed in W.P. (C) No. 9478 of 2007 be placed forthwith on the file. t'--lu S. MURALIDHAR, J JULY 12, 2010 rk Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified IN '111 E iHGU COURT OF DELII I AT NEW DEIJI I Reserved oil: Kiy 31, 20 10 Decision on: .luly 12 7 2010 WRJ1' PETITION (CIVIL) 9478/2007 & (;M APPI, 17858/07 WING COMMANDER MI'. SETftIJ (REI).) & ORS Pciitioners Jhrough: Mr. Rakesh Tikku with Mr. Prakasli Gautani. Advocate versus UNION OF INDIA & ANR .... Respondents Ihrough: Ms. J yo t i Si ngh, Advocate WIRII'F PETITION ((:IvIL) 9525/2007 & (:1\iAi'pI 1 7931/07 LX. N.K. KR1SHAN KUMAR & ORS .... Petitioners Jhrough: Go]......Diganibar Sing], Advocate versus UNION OF INDIA & ANR Rcspondcni:s ihrough: Ms. Jyoti Singh, Advocaic WRI' .F IETiiiON (CIViL) 9546/2007 & CM APPL 17954/07 CIJANDRO DE\'I .... Petinoner ilirough: Go]. K. I)igamhar Singh, Advocate versus UN ION 01' INDIA & ANR Respondents Through: Ms. Jyoti Singh. Advocate W1i'F PETJTJ(I)N (CIViL) 9568/2007 & CM Ai'I'L 1798.1/07 11A . HONY. CAPT BALBIR SJNGH .K.ADIAN .....Petitionci Through: Go]. K. f)iganibar Singh, Advocate versus UNION OF INDIA & ANi Respondents Through: M. .Iyoti Singh. Advocate WRIt' IEi'ITiON (CIVIL) 6447/2008 & CM Ai'l't 1231 5/08 .IAGI)ISJ-1 I'RASAD .... Petitioner Through: Go]. K. Digambar Singli, Advocate WP (C) No. 9478107, 9525/07, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 I'age 1 of 35 U versus I.JN JON OF iNDIA & ANR . Respondents ihrough: Ms. Jyoti Singh Advocate WRIT PETITION (CIVIL) 6494/2018 & CM AP1'I., I 2381/08 \'I.J];NJ)ER SJNGI-I Pelitioner Through: Col. K. 1)igambar Singh, Advocate versus UNION OF INDJA & ANR Rcsponcicnts ihrough : Ms. lyon Singh, Advocate WRIT PETITION (Ci\'J L) 6761/2008 & CM APPI I 300S/08 LX. 1-IONY. SUB MAJ RAM PAL & ANR . .... Petitioners ihrough: Mr. Rakesh uk ku with Mr. Prakasli (]autam, Advocate versus UNION OF IN])IA & ANR .... Respondcnis Through: Ms. Mancesha Dhir with Ms. Preeti Dala! and Mr. K.P.S. Koh!i, Advocate WRIT PETITION ((,- IVIl ) 7366/2009 & CM API'L 321 0/09 DF\'A YANTI .... Peti tinier 'Fhrough: (o! . K. l.)iganihar Sint;h, i\dvocatc versus UNION OF 1N1 IA & ANR .... Respondcnts Ihrougli : Ms. 1yon Singh, Advocate And WIiT PFTI1'iON (CiViL) 14034/2009 & CM APP1, 16083/09 LX. Sl--,',Il \'iRENDER SJNGH Petitioner ihrough: Go!. K. F)igambar Singh, Advocate versus UNION OF iNDIA & ANR Respondents 'I'hrough: Ms. .Jyoti Si ngh, Advocate (:oR.A,M: .IUSTJ('E S. MURA1.AI)I1AR WP (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 Paqc 2 of 35 0 \Vhether Reporters ol local papers may be allowed to see the judgment? No. To be referred to the Reporter or not? Yes Whei:her the judgnient should he reported Yes in Digest? .IUDG E1\1 ENI' Ihe nonrenewal of the licences in respect of the shops located in the shopping complex under the control of the Ministry of DelCnce, Un ion of in ia (Respondent No. I) in favour of the Petitioners pursuant to a poi icy de 'ision made effective from 30' Apn I 2007, is the subect matter of the chal ICOQc in iii is batch of writ pet ions. Ba ck ro an dfacts The Petitioners belong to categories of ex-servicemen (and their thmily members) who died either in war and/or while being in service and/or having suffered battle casuaLties and/or discharge from the armed forces and/or those arnieci personnel who retire after rendering frill service. The case of the Petitioners is that among various measures adopted by the I )ireeiorale General of Resettlement ('DGR') was the allocation of , the shops in the areas mannerl and managed by the Station Conirnander iii various localities in i)elhi such as S.I. Marg, Delhi Cantt, 1\rjun Vihar, I)hat.ila Kuan, Shankar Vihar etc. It is stated that with a view to streamline t.hc allotnients made of the above shops in the shopping complexes, the Respondents have been issuing guidelines from time to time known as Standing Operating Procedure 'SOP'). In terms of Clause 6 of the SOP issued or 1 011 August 200 I , as WP (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108. 7366109 & 14034109 . Paqe 3 of 35 and when any of the shops 1iI I vacant, the Station Commander at Station I leadquarters was expected 1:0 give wide publicil:y through the DGR in local newspapers. The allotment of shops was to be (lone on yearly basis. Clause I of the SOP dated 1 0' August 2001 provided for priorities in the allotment of shops. Various parameters have been laid clown for allotment. On meeting such parameters a person was given a licence for a period of II rionths si.iblccl to renewal. Clause 17 o F ihc SOP dated 0 August 2001 reads as uii (ICr: "17. Renewal of licence deed: Renewal of licence (Iced vi II he clone on the recommendation of resicicnhal associations, which will be obtained three months in advance from the dale of expiry of licence deed by DDA & QMG. Station. i-IQ Delhi Canit. if the recommendations are in fvour of al lottee, then the Station Commander may renew the licence deed for the subsequent year. However, the licence deed may be terminated at any time by the Station Commander at his discretion." 4. According to the Petitioners, till the policy of 1 311 April 2007 which is challenged in this petition was announced, as a matter of practice, the I icences were being renewed from time to time. Many of the Petitioners have been occupying the shops in their pOSSeSSIOn br Over nine years. In fict, the Petitioners including Wing Commander M.P. Sethi and two others in Arjun \/ihar have been in occupation of, their respecti\'e shops for over 21 years. It is stated that in terms of. Clause 17 of the SOP only where the Residents' Association did not favour any par icular allottec of a shop. was the renewal withheld, in terms of Clause 28 of the SOP a (lefaultinc allotlee WP (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 Page 4 of 35 has to be referre( to the Estate Officer fbr the purposes ot initiation of eviction proceedings under the Public Premises ft;viction and Unauthorized Occupants) Act. 1971 ('PP Act') It is stated that 1982 onwards man)' of the Petitioners were aIlo(tcd their respective shops and licence deeds were also executed. The licence deeds wcrc last cxtcnded in the year 2000 and were to expire in the latter part of 2007. It is stated that the Petitioners had legitimate expectation that the licence (leeds may indeed be renewed. I lowever, on I 3111 April 2007 the new policy effective from 30 ill April 2007 was issued. (:le 18 of the new policy reads as under: 18. Icncw'al of licence dcccl: Renewal of licence (feed will be done on the recommendation of residential aSsociatic)nS, which will be obtaiied three nionihs in advance from the date of expiry of licence deed by AQIVIG, Station Ilead Quarter, Delhi Canti. Ifthc recOmmendations are in favour o:f alloitee. then tIic Station Conmiandcr may renew the licence riced forthe subsequent year. I lowcver, the licence dee.i may be terminated at any time by the Station Commander at his discretion. No extension beyond live years will he given under any circumstance. Ihe saiie person can apply after a gap of minimum three years of clear break (not running in any Army Colony oINCR)." In teiiTis of the above Clause 18, the right to get the liccnccs renewed immediately on the expiry of live years has been withdrawn. The allottees are expected to apply again after a mini mum break OF three years. In tcrins WP (C) Nos. 9478107. 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 Paqe 5 of 35 Of the revised pol Icy, the Respondents issued letters to the Petit loners declining renewal of licences. ihe copies of letters requiring the Petiliorcrs to vacate the shops under their occupation have been encloSed with the petition. Petitioner Nos. I, '2 and 4 to 9 Wing Commander M.P. Sethi (Reid.), lx .JW() A.S. Chadha, Ex. (3NR 'Narender l)ev, Lx. Naik Unni Krishnan-TP, Ex. Sepoy Dharam Chand, Smt. Chandro Dcvi, Ex. Subcdar R.K . Pawar, Smt. Vimki Dcvi] in V.P. (C) 9478 of 2007 Petitioner Nos. 1, 2, 5, 9. 1 2, 14, 15 and 17 I l:x. N.K.. K.rishan Kuniar, I.I. (Rerd.) Colonel Raiicshwar, Mrs. \/ccria Mulc.liyar, Smt. 'Narangi Dcvi, Fjx. Sigrrin ]shwar Singh. I'lony. Capt. (Rctd.) Dhanraj Sharma, Mrs. Shakuntla Dcvi and Smi. Lilawati] Ill W.P. (C) 9525 of 2007; Smt. Chandro Dcvi, wife ot' late N.K. 1 loshiyar Singh, the Petitioner in W.P. (C) 9546 of 2007; Lx. I tony. Capt. l3alhir Singh. the Petitioner in W.I. (C) 9568 of 2007 were Servc(I \'acation notices dated 231 November 2007 requiring the said Petitioners to vacate ihc shops in their possession within one month. However. the Court is in formed by tl'ic Respondents that Chandro Dcvi, Petitioner No. 7 in W.P. (C) 9478 of 2007 has already vacated the shop in her posscssion. Shobhawat i l)evi, the wife of Ex . I-tony Captain Satpal Yadav, Petitioner No. II in W.I. (C) 9478 of 2007 made a representation to the Respondents requesting them to transfer the licence to the shop allotted to tier deceased husbard to her. On 3 ° October 2007, the Respondents in reply to this representation dated I 711 August 2007 stated that there was no policy to WP (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 Page 6 of 35 transler the allotted Shop from the original al louce to the spouse in case uI the irmer's death. The licence For tile shop allotted to her . deceased husband had already eXpired on I 9111 August 2007. I lowever, on Compassionate grounds she was allowed to Continue iii I 3 I December 2007. This stand was reiterated by the Respondents by a communication dated I 311 November 2007 in reply to the Petitioner's representation dated I 7 November 2007. 10. Shri i\4agan Lal. Petitioner No. 10 in W.P. (C) 947$ of 2007 whose licence expired on 2711 October 2007 and Shri Havrnan Singh, Petitioner No. 18 in W.P. (C) 9525 of 2007 whose licence expired on 25h11 November 2007 received vacation notices dated 27111 November 2007 requiring them to vacate the shops in their respective possession within one month. Shri NI P. Singh, Petitioner No. 3 in W.P. (C) 9478 of 2007 received a similar notice Oil 2811 November 2007 after his licence expired on 2711 November 2007. The licence of Shri .Iagdish Prasad, the Petitioner in A/. P. (Civil) 6447 of 2008 expired on 14111 August 2007. He was served a vacation notice by the Respondents on 21 SC May 2008 askiiig him to vacate the shop in his OS5CS5iOil by 25hh1 .Iune 2008. Similarly 1 the licence oF Shri Virender Singh, the Petitioner in W. P. (C) 6494 of 2008 expired on I 9111 January 2008. .1 Ic was served a vacation not ice dated 3° May 2008 asking hi Fl to vacate the shop in his posSeSsion by 25111 June 2008. l-lowever, the Respondents informed the Court that the Petitioner in W.P. (C) 6494 of 200$ has already vacated the shop. The licence of Shri Rampal, Petitioner No. 1 in W.P. (C) 6761 of 2008 expired on 2011 April 2008 and of Shri K.amcshwar Prasad WP (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 Paqe 7 of 35 Singh, Petitioner No. 2 in W.P. (C) 6761 of 2008 on 2811 February 2008. They were served vacation notices on 8111 May and 24' Ap!- Il 2008, respectively, requiring them to vacate the shops in their poSseSsion by I61 September 2008. Smi. Devyanti Dcvi, the PeI:itioncr in W.P. (C) 7366 ol 2008 was issued a vacation notice on S' January 2009 when her licence had expired on 6h11 July 2008. She was required to vacate the shop by 2111 February 2009. 11 The licence of Shri \'irendcr Singh, the Petitioner in W.P. (C) I 4034 of 2009 expired or 31 si January 2007. However, by a letter dated 21 December 2006 the Respondents had cancelled his licence under pam 15 of the licence deed due to sublctt:ing of the shop. By a letter dated 30111 November 2007 he was asked to vacate the shop within 30 days. Consequently, the Respondents served an eviction notice dated I $l August 200$ on the Petitioner. .12. 1 t. Cot. (Re(d.) B.M. Kapoor, Petitioner No. 4 in W.P. (C) 9525 of 2007 was served a \'aeation notice on I 9111 December 2007 while his licence had expired on 7 ' July 2007. Similarly, U. Col . (Retd.) I )..K . I )ebnath, Petitioner No. I in W. P. (C) 9525 of 2007 was served a vacation notice dated 14111 August 2007 when his licence expired on 24hh1 March 2008. Petitioner Nos. 3, 6, 7, 11, 13 and 16 in W.P. (C) 9525 of 2007 have also been served with si iii ar vacation notices, vli ich are mpugned, after cxpi ry of their I icerces. WP (C) Nag. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 . Page 8 of 35 The Peiiiione,w' case It is submitted by the Petitioners that the very pu1)ose of D(R, alkeating shops in favour of the Petitioners was to enable them to have some reasonable means ol subsistence. It is stated that continued allotment was a rule and non-renewal an exception. Continued allotment automatically Jollowed if there were no negative rcporth .11cm the residents' associations. It is stated that primarily the Pet tioners are selling grocery items, eatables, vegetables, limited items of clectrical goods etc. in their shops. 'Ihese are made available to the residents of the localities where defence shopping complexes are located, at reasonable rates. The bask idea is to make available things of day-to-day use to the residents of these areas near their door steps. 'fhe very purpose of allocating these shops to various allottecs was to enable the servicemen and their ftimily members to earn a decent living. It is stated that the new policy made effective from 30 April 2007 gives, a complete go-by to this philosophy. It introduced a break in the continuity o .f their rehabilitation process with the Respondents pressunsing the Petitioners to vacate the shops. At t lie initial (late of hearirg i.e. on 20 December 2007, this Court passed the following order: "Issue notice. Ms. .lyoti Singh, Advocate accepts notice Nile- on behalf of Respondents. Counter affidavit shall be lilcd within two weeks. Rejoinder, if any. may be tiled within two weeks therealler. W1' (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 I'oq' 9 of 35 List on 8tI February 2008. CM APPL 17850/2907 (slay) I have considered the materials on record. The applicants' grievance is that they were allotted the premises by the Respondents as a measure of rchahiliiaiion, On account at their being ex-serviccman or being war widows. II is èontendcd that sudden change of pot icy has gravely and irrcparably affected them. Learned counsel br the Petitioners relied upon the documents. They suggest that Respondents took a conscious decision that the at lotnient, in case of rehabilitation NvaS understood as not to the subject of later cancellation. However, learned counsel for the Respondents has disputed the applicability of the documents. Accordini to her, the letter pertained to allotment of premises in Rceimcntal Areas it is not disputed that the allotment of these spaces were given as a measLire of rehabilitation to the Petitioners. The objective of the new Schente, it is emphasized, is to ensure availability of these prciTiises to as many beneficiaries as possible, haviig regard to the limited resources available with the .torce. It is contended that a large number of applications were filed and are pending consideration. While the discretion of public aLithority to at lot the pnses within its possession, control and ownership and the parameters for such lreal:ment can never he denied yet he question here appears to be one of balancing competitive disadvantages, as it were. 'fhe debate here is whether haviiig allotted the premises, as a measure of , rehabilitation, the Respondents caii, alter some time reverse that process and insist that such allottecs who admittedly were eligible for the benefit should retui -n the premises and wait for three more years to claim at lotment fbr the same and other such spaces. I am of the opinion that while the Respondents' power to frame a pot icy WI' (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 Page 10 of 35 cannot he questioned yet the considerations which the authority has to keep in this regard, i.e. the level of prosperity or inComC attained by the aII.ottees who wcrc given premises earlier, the sufficiency of such income to make them tide order the difficult situation and other objective factors can certainly be gone into under Article 226 oI the Constitution. In view of the above, the Respondents are lierchy restrained from t:aking any steps to dispossess the Petitioner during the pendency of , this wrii petition." Case oft/ic Respondents In the counter affidavit filed in W. P. (C) 9546 of 2007, which is more or less similar to the counter affidavit filed in other peti ions, the Respor dents have categorically stated that ''the doniinani, purpose of ihcsc ft shopping complex/centres is the wet 6ire of the servicemen and their timil es residing in the vicinity thereof and NOT resettlement oh a war widow, a widow, battle casualty and ex-servicemen which is only ancillary rather than at lot shop to outsiders. It may be further ic-emphasised that the shops in the shopping complexes/shopping centres are allotted on contract LW1 basis on the normal rental basis and no promise has been held out to the allottees that their licence will be necessarily renewed/extended in perpetuity." The rationale for changing the policy as set out in the SOP dated I August 2001 is attributed to the requests made by a lat -ge number of war "-4' widows, widows, battle casualties and ex-scrviecnien approachine the Respondents for allotment of shops in shopping complexes/shopping centres. It is stated that in a period of five months, 47 such applications WP (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109& 14034109 I'oge ii of 35 were received but none of them could be entertained since the existing allottees were continuing since inception and the number of shops available was limited. Ihe reasons for the change in the policy as introduced in the SOP dated 1 3 (h April 2007 are stated to be the Ibilowing: assisting those families registered iii the waiting list lbr allotment of sliops. illegal sub-letting of shops by the existing allottees whose licences have been kept renewed for a long duration. the fct that there is no increase in the number of shoppine complexes even while the demand for allotment keeps increasing. since the allotment of shops is a wet fire measure, it is necessary to rotate the allocation SO that a larger number of ex-scrvicemen are bcncIitted. 18. The Respondents claim that the changed policy was made known to all licencecs including the Petitioners in June 2007. In the additional affidavit tiled on 22 l:el,niau_y 2010, the Respondents have drawn a (list inction between unit shops (Pegimental Shops) and shops in shopping cenlrcs/complexcs which are located in the "main malTicd complex''. l:ncloscd with the affidavit is a COPY of the 'Scales of Accommodation 1983 ('SOA 19831. Regimental shops are authorized by para 3.'l I of the SOA I 983 and provide for trades such as tailor, boot maker (NJ3R), cycle repair and grocer (uilit baniya and wet canteen). These unit sliops "are meant purely fbr troops and their families as a weliirc activity and are located in unit lines wherein civilian population has limited or no access." WP (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 Page 12 of 35 The additional affidavit proceeds to state that shops in shopping centres/complexes as descnbed in para 3.42.1 of SOA I 93 and are located at military stations ''where no civil shopping coniplex exists within it reasonable distance from the main married complex. The trades can be selected out ot categories like aerated watcr, barber, book arid stationary, car and scooter repair, cloth, chemist and druggist, dry cleaner, cycle, gas, furniture, restaurant, milk dairy, bakery, vegetable and 'fruits and other trades vli cli meet the requirements of the troops and their families." It is slated that these shops have a clientele of the dependent civilian population also. The Respondents point out that t;herc arc two sub-categories of shops in shoppuig complexes/centres. One category is covered by para 3,42. I of S(A I 983 which are created on defence lands From government funds. The other category is shops created on defence lands using non public ('unds. On 1 l September 2008, the 'Mini.try of Defence ('MoD') Government: of India, brought out 'Guidelines for running shopping centres/complexes and unit shops' .Para 8(b) of the guidelines states that the Defer cc Shoppiu Centres/Complexes (Maint:enance and Administration) Rules, 2006 (' DSC Rules 2006') framed by the MoE) and issued on I 35 .Jui'ie 2006 WOO Id he applicable to both categories of shopping complexes, i.e., those created with govei -nment funds and those with non public funds. 2 I . the I )SC Rules, 2006 make it clear that they (10 not apply to Regimental shops created exclusively for military personnel and their WP (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 Page 13 of 35 N) thmil es. Rule 2(c) defines a shopping complex to mean "a composite area comprising shops established on A-i or analogous defence iaiil under the management of the Army/Navy/Air lorce but would not include Regimental shops created exclusively for military personnel and their families." Under Rule 3(a) the existing alloitces were allowed to continue til I the expi ry of their licence period and such (1 those in unauthorized occupation of the shops, i.e., where the period of licence has expired, would be given six months time to vacate in terms of Rule 3(c) liiling which the [state Officer would initiate action to evict (bern in accordance with law. 22. Under Rule 7 no transfer was penTissible except in case ol demise of the allotice, in which case it would be transferred to the dependent/legal heir for the residual period of the licence. tJnder Rule 12, 60% of the shops in each shopping complex were to he reserved in the order of priority as under: war widows/vido'vs of defence personnel killed while on duty. disabled soldier ex-ser\'icemen spouses/widows of cx-serviccmen. [he remaining ,40% were to he allotted to the lollowing: Government agencies icluding public sector undertakings and civilians whose spouse or dependent thmi ly member (10 not own any shops in the coniplex/niilitary station/cantonment. WP (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034/09 Poqo .14 of 35 Any unal lotted shops in the 60/0 quota were to he considered for bein g g iven to the civil