A ~ IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: May 31, 2010 Decision on: July 12, 2010 WRIT PETITION (CIVIL) 14034/2009 & CM APPL 16083/09 EX. SEP VIRENDER S1NGH .... Petitioner Through: Go!. K. Digambar Singh, Advocate versus UNiON OF INDIA & ANIR .... Respondents Through: Ms. Jyoti Singh, Advocate S 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 I,,dia & Another" along with eight connected writ petitions, this writ petition is dismissed with no orders as to costs. Application also stands S dismissed. A copy of the judgment passed in W.P. (C) No. 9478 of 2007 be placed forthwith on the file. 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 N TB E 111GB COURT OF DELHi Al' N R\'V I)FI 1! I. Reserved on: May 31, 20 0 Decision on: iuiy 12, 2010 Wiul' 1.ETi'I'lON (Ci VIL) 9478/2007 & C.M AI1I I 7858/07 WING COMMAN.DI R M.P. SUTHI (.R Eli ).) & ORS . Pctflioners 'I'hrougli: Mr. .Rakcsh Iiki<o Mr. Prakash (]autam, Advocate vci.sus UN ION OF INTJI.A k ANR . Respondents Through: Ms. Jyotl Si ngh, Ad vocaic WRI1' I1LIii'ION (CIVIL) 9525/2007 & CM AII'I 17931/07 . .. FX. N.K. 1UUS11AN KUMAR & ORS .... Petitioners Ihrough: (To!. K. Digambar Singh, Advocate versus JNION OF INDIA & ANR Rcspondcrits through: Ms. Jyoti Singh, Advocate . 17954/07 WRI1' PETITION (CIVIl,) 9546/2007 & CM APVL (TIJANDRO DLVI . ....Petitioner Hirouigh: Cci. K. J.)igambar Siiigh, Ad\!ocatc vel.sus UN ION OF iNDiA & ANT . .....Respondents through: Ms. .Jyoti Singh, Advocate WilE PE'FITION (('IVIl ) 9568/2007 & (TM A PP .1 1 7981/07 1 ..HONY. CAPT 13AL131.R. SINGIl KAI)IAN ....PctitionL. . Through: Cot. K. Digar.nbar Siogli, Advocate \'ersus . tJN ION OF INDJ.A & ANR Respnndents hi oLiCh Ms lyoti Sineli Advoc 1k WRI1 ...'ETI'FION (CIVIL) 6447/2008 & CM. API9 12315/08 .1 A U 1)1 S H P RA SAL) . .... Peti toner through: Cot. K. Di.gambar Singh , Advocate WI' (C) Abs. 9478107, 9525107, 9546107, .9568107, 6447108, 64.94108, 6761109, 7366109 & 14034109 Pog .1 of 35 versus UNiON OF iNDiA & ANR ..... ResoniIents Thi -ough: Ms. Jyoli Singh, Aftvocaic WRiT PETITiON (CIVIL) 6494/2008 & CM APPL 12381/08 VIJ1N0IR. SIN6I-1 .... Pctiiioncr through: Cot. K. I )igambar S.ingh, Advocate VCFSL1S UNION OF INDIA & ANR. .... Respondents Ihrough : Ms. .Jyoti Si ngh, Advocate WRIT PIi'.ITION (CIVIL) 6761/2008 & CM APPI I 300/08 FX. NONY. SUI3 MAJ RAM PAL & ANR .... Pctitioncrs Ihrough : Mr. Rakesh Tikku with Mr. Prakash Gautam, Advocate versus UNION OF INDIA & ANR .... Respondeols through: Ms. Mancesha Dhir AT Ms;Preel.i Dalat and Mr. K.P.S. Kohh, Advocate WIUl' PETI'FION (CIvIL) 7366/2009 & CM AP1L 321 0/09 1) t VAY ANTI . .... PLII OonCi Ihrough: Cot. K. Digambar Sngh, /\oeate versus . . . UN ION OF INDiA & ANR Respondents through: Ms. Jyoti Singh, Advocate And WRfl .' PETITION (CiVIL) 14034/2009 & CM APP1, I 6)83/09 LX. SEP VIRENDER SINGI! . .... Petitionei: through: Cot. K. Digan bar Singh, ,'\cv:ute versus UNiON OF iNDIA & AN R Respondents Through: Ms. .Jyoti Singh, Advocate .. CORAM: JUSTICE S. MURAL11)11AR WI' (C) Nos. 9478107, 9525107,9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 . Paqo 2 oJ35 WhAer Repoi Ici s of local fDclpcl S may be allowed to see the judgment? No To he refelTed to the Reporter or not? Yc Whether the judgment should be reported Yes in Digest? .JU I)G EM ENJ'F I, The non-rencv'al of the liccnees in respect of the shops located in (lie shopping complex Ui'idei' the control of the l\niistry of l)efèricc, Union or India (Respondent No. I) in flivour of the Petitioncrs pursuant to a policy decision made eFFective lixm 301h April 2007, is the subject inatter of the . challenge in this batch of writ petitions. . /?a.'ki'ro,iiii/ ti:ct,c .2. The Petitioners belong to categories of ex-servicemen (and their Ibmnily members) who (lied either in war and/or while being in service amid/or 'having suffered battle casualties and/or cischarge from the armed forces and/or those armed personnel who retire alter rendering full service. IS case ol the Pctitioncrs is that among various measures adopted by the l.)irccioraie General of Resettlement ('DGR') was i:hc allocation of the shops in the ai'eas manned and managed by the Station Commander in vanous localities in Delhi such as S.J. Marg, l)elhi Cantt. Arjun Vihar, l)baula IKuan, Shankar Vihar etc. 3. Ii is stated that with a view to streamline the a! lolnienis niade of the above shops in the shopping complexes, the Respondents have been isso rig guidelines From time In lime known as Standing Operating Procei.ttire ('SOP'). In terms n!' Clause 6 of the SOP issmed on 0' 1, August 2001, as WP (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 .. , . I'oqi 3 of 35 • v1 and when any of the shops fill vacant the Station Conn -riander at Station • I Ieadqnarters was expected to give wide publicity through the I)C R in local ne\.vspapers. Ihe allotment of shops was to be done on yearly basis. Clause 11 of the SOP (i2itCd I 0 AUgL1S1 2001 provided For priorities in the allotment of shops. Various parameters have been laid down hr allotment. On mecong such parameters a perSOn was given a licence (or a period of I I months subjcct to renewal. Clause 17 of the SOP (fated 101 August 2001 reads as under: ''17. Renewal of licence deed: Renewal of licence deed will he done on the recommendation of residential assoeiations which v41l be obtained We months in advance from the date of cxpiry of licence deed by Dl )A & QMG, Station. FIQ Delhi Cantt if the recommendations are in favour of' alloitec, then tlie Station Commander may renew the licence deed For the However, licence deed be suhseqoent year. the nuty terminated at any time by the Station Coniinandcr at his discretion." LI. According to the Petit loners, till the policy of I 3 April 2007 which is challenged in this petition was announced, as a matter of' practice. tlìc licences were being renewed from lime to time. Many of the Petitioners have been occupying the shops in their possession for over nine years. In fct, the Petitioners including Wing Commander M P. Setli i and two others in Arjun Vihar have been in occupaUon of their respective shops 1'or over 21 years. 11 is staled that in terms of, Clnuse 17 of the SOt> only where the • • Residents Association did not f2iVOLir any pai't.icLilar at lonec of a shop. was, • the renfwal withheld. in terms of Clause 28 o ('the SO]> a de.lhi.i Iting a I bit cc WI' (C) Nos 9478107, 9525107, 9546107, 9568107, . 6447109, 6494108, 6761108, 7366109 & 14034103 I'age 4 of 3, has to be ILl Li ied to the I state 0 IILC1 IOi the pui P° ol miii itmon o eviction proceedings under the Public Premises ( fiction and Unauthorized Occupants) Act, 1971 ('PP Act'). It is stated that 1992 onwards many o I' the Pctitioncrs were allotted Ilicil respective shops and licence deeds were also executed. 'l'hc licence deeds were last extended in the year 2000 and were to expire in the latter part o ... 2007. It is stated that the Petitioners had legitimate expectation dial the licence (leeds may indeed he renewed. I- lowever, on I 31 April 2007 the new pot icy e hctive from 30 hi April 2007 was issued. Clai.ise 18 of t:hc new policy reads as cinder: • . ''18. Renewal of licence deed: Renewal oF licence deed Will he done on the reconiniendat ion of' resident al associations, which will be obtained three months in ' advance from the date nt expiry of licence deed by A QMG, Station FIend Quarter, Delhi Canti. I F de recommendations are in favour of' allottee, then the Station Commander may. renew the licence iieed for the subsequent year. I -I owever, the licence deed nay be terminated at any time by the Station Commander at his discretion. No extension beyond live years will be given under ally circumstance. The same pei'son can apply aler a gap OF imn mum three years of , clear break (not running in any Army Colony o( NCR )" In terms of the above Clause 18, the right to get the I ieenccs rencved . ironiediately on the expiry of Ove years has been wmihdrawn: the aftottees are expected 10 apply again altem' a iTiinhii cimn break o.l three years. In terms WP (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 /'age .5 of 35 of , the revised policy, the Respondents issuer letters to ilie PetitionerS declining renewal of licencgs. The copies ol letters reqwn ng the Pti liners to \'acal e the shops under their occupation have been enclosed with the petition. 8. Petitioner Nos. 1, 2 and 4 to 9 jWlng Commander M.P. Sethi (Reid.), lx. IWO A.S. Chadha, Rx. ONR Narender Dcv, Ex. Naik tinni K.rishnanfP. I:x . Sepoy Dharam Chand, Soil. Chandro Devi, lx . Subedar R K. Pawar, Snit. Vimla Dcvij in W.P. (C) 9478 of 2007; Petitioner Nos. 1, 2, 5, 9, .12, 14, 1,5 and 17 [Ex. N.K. Knshan Kumar, J.,t. (.R.ctd.) Colonel Rameshwar, Mrs. Veena Muldiyar, Smt. Nai -.angi Dcvi, Ex. Sigrnn lsh\var Singh, I tony. Capt.. (Reid.) I )hanraj Sharma, Mrs. Shakuntla I )evi and Smi . hklwanj in W.P. (C) 9525 ot 2007; Snit. Chandro Dcvi, 'vi Ic of late N. K. I loslnyar. Singh, tIm Petitioner in W.P. (C) 9546 ot 2007; I x. I lony, CEIpl ,.lalliir Singh, the Petitioner in W.P. (C) 9568 ot 2007 were served vacation notices dated 231 November 2007 requiring the said Petitioners to vacate the shops in their possession within one month. Ilowever, the Coio -t is in in -med by the Respondents that Chandro i)evi, Petitioner No. 7 ir W. P. (C) 9478 of 2007 has already vacated the shop in tier possession. Q. Shobbawali Dcvi, the wife of Rx. I boy Capfamn Suipal Yadav, Petitioner No. .1 I ill W.P. (C) 9478 of 2007 made a rCpresentat ion to lime Respondents requesting them to ti -ansfer the licence to the shop allotted to her deceased husband to tier. On 31i october 2007, the Respondents in reply to iii is representation dated I 7th August 2007 stated that there was no policy to W1' (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 1'age 6 of 3.', I • transler the allotted shop from the original allottee to the spoi.ise in case of • • .. the to . ntier , s death. I he licence for the shop allotted to her deceased husband had already expired on 1 911 August 2007. Flow\'er, on • compassionate grounds she was allowed to continue till 3 1 I )cccmbcr 2007. This' stand was reiterated by the Respondents by a communication • dated 311 Novembcr 2007 in reply to the Pctitioncr's representation (kited 17hh1 .N OVeiTibe r 2007. 10. $hri Magan I al, Petitioner No. 10 in W.P. (C) 9478 o 2007 whsc. licence expired on 27 October 2007 and Shri IIavman . Singh, Petitioner No. 1 8 in W.P. (C) 9525 of 2007 whose licence expired or 2511 November 2007 received vacation notices dated 27th November 2007 requiring them to vacate the shops in their respective possession within one nontli. Shri M :P. Sinth, Petitioner No. 3 in W.P. (C) 9478 of 2007 received a similar notice on 28111 November 2007 ader his licence expired on 27111 No\;eniber 2007. The licence of Shri .lagdish Pi'asacl, the Petitioner in W. P. ((.ivil) 6447 of 2008 expired oil 1 41 August 2007. He was served a vacation iiolice by the Respondents ori 21 s' May 2008 asking him to vacate the shop in his possession by25" June 2008. Simi lady, the licence of Shn Vrcnden Siogh. the Petitioner in WI'. (C) 6494 of 2008 expired on J 9111 January 2008. He was served a vacation notice dated 311 May 2008 asking him to vacate the shop in his possessioii by 25' .June 2008. However, the Respondents in formed the Court that the Petitioner in W.P. (C) 6/194 of 2008 has already vacated the shop. The licence ol Shri Ranipal, Petitioner No. 1 in W. P. (C) 6761 of 200$ expired on 20111 April 2008 and of Slin •Karneshwar Prasad WI' (C) Nos. 9478107, 9525107, 9546107, 9568/07, 6447108, 6494108, 6761108, 7366109 & 14034109 Page 7 of 35 Singli, Petitioner No. 2 in W.P. (C) 676.! oi 2008 in 28 Fehrwiry 2008. hey \vcr e served vacation notices on 8" May and 2411 April 2008, respectively, requiring them to vacate the sbop in their poSssioll by 16l, September 2008. Snit. Devyanti Dcvi, the PetitiOner in W.P. (C) 7366 of 2008 was issued a vacation notice on 15" .lanuary 2009 when her licence had expired on 6111 July 2008. She was required to vacate the shop b y 7ie February 2009. . . The licenre of Shri Virender Singh, the Petitioner in W. P. (C) 4031 of 2009 expired on 31 sE .JanLiary 2007. However, by a lcttee dated 2 C' December 2006 the Respondents had cancelled his iiccncc unde.r para is ot the licence deed due to subletting 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 18 A iIiust 2008 on the Petitioner. 1 .t. Col. (Rctd.) B.M. Kapoor, Petitioner No. 4 in W.P. (C) 9525 or 2007 was served a vacation notice on 19" December 2007 while his licence had expired on 7' .luly 2007. Similarly, Lt. Col. (Ret(L) 1). K. iebnath, Petitioner NC). I in W.P. (C) 9525 or 2007 was served a vacation .rotice (later! 10' August 2007 when his licence expired on 24'" March 2008, Petitioner NOS. 3, 6, 7, 11, 13 and 16 in W.P. (C) 9525 or 2007 have also I been served with similar vacation notices. \.vblch are imptgned, alter expiry of their I leer ces. WP (C) Nos. 9478107, 9525/07, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 Pags 8 of.3.S The Petitioners ' case I 3. It is suhmittcd by the Petitioners that the very purpose ol I )G P. at locating shops in lavour of the Petitioners was to enable theni to have some i-eiSOflIble means ci subsistence. It is stated that continued allotment was a rule and non-renewal an txcep1ion. Continued al lotrnent auloinatieally followed 1! them were no negative rep()rts Ironi the .rcsid'i,i.s associations. It is slated that prinian ly the Petitioners are selling grocery items, eatablcs, vcgetables, limited items of elcctrieal goods etc. in their shops. l'hese are made avai able to the residents oC ihe local i ties where dekaice shopping complexes are located, at reasonable rates Ihe basic idei is to make available things ni day-today use to the residents of these areas near their door steps. The very purpose ci allocating these shops to various'.., allotices was to enable the servicemen and their fbmily members to earn ii decent living. .. . 14. It is slated that the new policy made etThctivc ftom 30' April 2007 gives a complete go-by to this philosophy. II introduced a break in the continuity o 1 their rehabilitation process with the Respondents pmessnnsing the Petitioners to vacate the shops. I 5. At the initial date ol hearing i.e. on 20'" l)eceniher 2007, this Court Passed the thllowing order: "Issue notice. Ms. Jyoti Singh, Advocate aceept.s not ice on behalf ol Respondents. Counter aitidavit shall he tiled within two weeks. Retoiodcm, ii aiiy. may be tiled within two weeks thereaite.r. WI' (C) Noc. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 736610.9 & 14034/0.9 Page 9 of 35 IC 0 i ASt 011 8 I1' ebi LI ii y 200 CM, APPL 1785012007 (stay) I I-. 3 i- ... I . .. .. I...... I I IOVL U011,11 k_LI ULL II I II did IdI 31 dLIJIiI. I Id dill)! 1(3) Id, grievance is that they were allotted the premises by the Respondents as a measure of rehabthtation, on account of their being exserviccman or being wat- widows I is contended that sudden change o:i policy has gravely and irreparably aIiccted them. I ,earned counsel tor the Pci itiOnCLS relied upon the dOcuiTicflts. ihcy suggest that Respondents took a conscious decision thai the alloliucuc in case of, rehabilitation was understood as not to the subject of later cancellatitn. Nowever ; learned counsel (or die Respondents has disputed the applicability of the documents. According to her, the letter pertamed to allotment of premises in Regimental Areas. It is not disputed that the allotn.ient of, these spaces were gi veil as a meastrc of rehabilitation to the Petitioners. The objective of the new Scheme, it is emphasized, is to ensure availability oI. these premises to as many beneficiaries as possihle htving regard to the limited resources available with the Rirce. It is contended that a large number of applications were tiled and arc pending consideration. While the discretion of pLiblicaLithority to allot the rernises withui its possession, control and o\.vnersh I Ii and the liaianieters (or such treatment can never be denied yet the question here appears to be one ol balancing = competitive disadvantages, as it were. The debate here is whether having allotted the lciIs, as a measure of rehabilitation, the l..espondents can, alfer sonic t I rue reverse that process and insist that such al lottees who admittedly were eligible for the beneflt shoçild return the premises and wait for three more yeais to claim allotment for the same and other such spaces. 1 wii of the opinion that while the Respondents' power to lame a policy Wa (C) Nos. 9478107, 9525107, 9546107, 9568107, . 6447/08, 6494108, 6761108, 7366109 & 14034109 I'oqe 10 of 35 Ciniiot be questioned yet the considerations which the authorily has to keep in this regard, ic. the level of prosperity or income attained by the al lottees who were given premises earlier, the SuFfiCiency of such inc:omC to make them tide order the difficult situation and other objective 1ictors can certainly he gone into undef Article 226 of the Constitution. In view of the above, the Respondents arc hereby • restrained from taking ally steps to dispossess the Petitioner during the pendcncy oF tb is writ pet lion. Case of the Respondents In the counter allidavit tiled in W. P. (C) 95'16 oF 2007, which is more or less siri.ular to the counter a Ificlavit Filed in other petit ions, II ic lcspondents hav categorically stated that "the (lonhinarit purpose of these • sitopping complex/centres is the welfhre of. the servicemen and their thrill ics residing in the vicinity thetco I and NOT reseti lenient of a \ar widow, a widow, battle casualty find ex-servicemen which is only ineil lary • . rather than allot shop to outsiders. It may be fhrdher re-emphasised thai the shcs in the shopping coilhplexes/sl pping centres arc tl lotted on contractual basis on the normal. rental basis arid no poinise has been held out to the allottees that their licence will he necessarily renewed/extended in , . . The rationale for changing the policy as set oLit in the SOP dated 10" . . August 2001 is attributed to the requests made by a large nLirnbcr of war wido\vs, widows, battle casualties and ex-sei'vieernen appi'oachine, the Respondents for allotment of shops in shopping complexes/shopping .. . cent res. It is slated that in a period oF livc niontlis, 47 such aippl eat ions - WI) (C) Nos. 9478107, 9525107, 9546707, 9568/07, 6447106, 64.94108, 6761108, 7366109& 14034109 11 0q' 1.1 of 35 c were received but none of them could he ede -Itined since the existit allottees were continuing since inception and the number ol shops available • - was Ii rutted. 'l'he reasons lot- he change in the policy as I ntrodimeed ii the. SOP datcd 131 April 2007 are stated to be the fbI lowing: • (a) assisting those families registered in thc waiting list for allotment • of shops. • (Ii) illegal uh-letting of shops by the existing al lottees whose licences have been kept renewed For a long durat ion. the fbct that there is no increase in the number (11 sh'oppuig - eoriplexcs even whilc the demand For allotnierit keeps increasing. since the allotment of shops is a wel 1bre measure, it i necessary to rotate the allocation SO that a larger number of ex-serviccnicn are benclitted. 18. l'he Respondents claim that the changed policy was made knwn to all • 1 icencccs including the Petitioners in June 2007. In time additional a llidav i tiled on 2211 February 2010, the Respondents have drawn a distinction - between unit shops (Regimental Shops) aiid shops in siioppiui - cenlres/complexes which are located in the "i nai ii married COuiililCX'. Fnelosed with the affidavit is a copy of the 'Scales of Accommodation 1983 ('SOA 1983'). Regimental shops are authorized by pari 341 of the . SOA 11 983 and provide for trades such as tailor, boot maker (I :JIR), cycle - repair and grocer (unit baniya and wet canteen). These no it shops "are meant purely for troops and their Families as a welfare activity and are located in unit lows wherein civil tan population has h nit ted or no access' - w (C) Nos 9478107, 9525107, 9546107, 9568107, 6447108, 6494/08, 6761/08, 7366/09 & 14034/09 - I'age 12 of 3.5 • . 'l'Iie additioal alliclavil proceeds to state that shops in shopping centres/complexes as (leSCribed ip pam 3.42. o! SOA 1983 and arc located at mu itary stations "where no civil shopping complex exists within It reasonable distance from the main rnari -ied complex. The trades can be selccted out of categories like aerated water, barber, book and stalioOary,. car and scooter repair, cloth, chemist and druggist, dry cleinci-, cycle, gas, 'turn lure, restaurant, milk dairy, bakery, vcgctahle mci ii'uits itod oi.licr trades which meet the requirements oi the troops and their koni lies.'' It is staled that these shops have a clientele of the dependent civil an population also. The Respondents point out that t;liere aic two sub-categories ol' shops in shopping complexes/centres. One category is covered by pai 3.42. I ol" SOA I 983 which are created on defence land 'from guvernmert hinds. 'i'he other category is shops created on defence lands using. noi'i public funds, On I /11 September 2008, the Ministry of Defunce ('Mol)') Govcrnmcni ol India, brought out 'Guidelines for running shopping centres/complexes and unit shops'. Para 8(b) of' the guidelines states that the I )eE'enec Shoppiumui. Centres/Complexes (Maintenance and Adn'onistrdtmon) Rules, 2006 ('1 )SC Rules 2006') framed by the Mof) and issued on IT 11 June 2006 would he applicable to both categories of shopping complexes, i.e., those created with government funds and those with non public Funds. • '[he DSC Rules, 2006 make it clear that they do r1ot apply to Regitnenlal shops created exclusively for military personnel and heir WI' (C) No.s. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 . I'ag' .13 of 3.' P f '.:.. • . " • ', thinihes. Rule 2(c) deflnes a shopping complex 10 mean "a Colnposite area comprising shops established oil A-I or analugops (iclence land order the managcmcnt of the Army/Navy/Air lorce but \.votiid not include Regulenlal shops created exeRisively for inihtaiy peisoiinel and their fanniies." Under Rule 3(a) the existing alloltees were allowed to conliiiue • dli the expiry of thetr licence period aid