IN THE HIGH COU1T OF DELHI AT NEW DELHI Reserved on: May 31, 2010 Decision on: July 12, 2010 WRIT PETITION (CIVIL) 6494/2008 & CM APPL 12381/08 VIJENDER SINGH .... 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 dismiss#ed. 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 h [N TilE 1.I1GJI COURT OF DELI AT NEW DImil I • Reserved on: May 31, 2010 Dcciioii on July 1 ' 0 JO WRIT IE'IiT1ON (CIVIL) 9478/2007& CM AJII. 17858/07 WING COMMANDER M.P. SUIL -il (.RF1'D.) & ORS .... Petitioncis - . ... Through: Mr, Rakcsh 1ildu with Mr. Prakash (]autdrn, Advocate vc1-sus UN ION OF INDIA. & ANR . l..esporidents Through: Ms. Jyoh Smgh, Advocate • H WRIT PETITION (CIVIJ ) 9525/2007 & CM A I'PI 17931/07 • . . . . N .X. N.K. KRIST1AN KUMAR & ORS . PeHioners 1'hrough: (7 oJ. K. l)iganibar Singh. Advocale versus • 1. IN ION OF INI)IA & ANR Respondents Ilirougli: Ms .Jyot Singh, Advocate WRIT PETITiON 9546I007 & CM APPI I 7954/07 (CiVil) CI IANDRO DEV1 . .... .Petitioner 'Ilirough: Col. K. Digarnbar S ugh, i\dvocatc versus UN1ON OF 1NI.)IA & ANR Respondents Through: Ms. Jyoti Sing. h, Advocale Wifl'I' PE'FITION (('IVIL) 9568/2007 & CM APPI 17981/07 ) X. .1 IONY. CAP'I' .BAI 131R SINGI I II )IAN .... Pen loner Through: Col. K. Digambar Singh, Advocate . vel-sus N ION OF INDIA & ANR .... Respondents 'I'hrough : Ms. Jyoti Singh, Advocate WRit' PETFI'ION (('IVIL) 6447/2008 & CM AI'Pl. 12315/08 .JAODISI I PRASAI) .... PetOioner Ihrougli: ('ol. K. Eiganibar Singli, Advocate WI' (C) Nos. 9478107, 0525107, 9546107. 9568107, 6447/08, 6494108, 6761108, 7366109 & 14034109 Page .1 of 35 versus • UNION OF INDiA & ANR .... Respondents Through: Ms. Jyoti Singh, Advocate WRIT P ETiTION (CiVil ) 6494/2008 & CM AP II I 2381/08 VII LN1)FR SINGFI . .... Petitioner ihough: Ccl. K. Diglambar Singh, Advocate VCrS LIS UNION 01 INI )IA & AN ft RLpondLnt' • . . . . . flirough: Ms .Jyoti Singh, Advocate WRIT P1C1'I'IiON (CIVIL) 6761/2008 & CM AI'PL, 1 3ffl)5108 LX. HONY. SU13 MA] RAM PAL & ANR .... Petitioners • . lhrough: Mr. Rakesh Tilcki with Mr. Prakash Gautam, Advocate versus . . UN 1QN OF INDIA & ANR .... Respondents ihrough: Ms. Mancesha Dhir wit.11 Ms. Prccti I )ahaI and Mr. K.P.S. Koh i, Advocate . '0 WRI'F PETITION (CIVIL) 7366/2009 & CM AI'PL 3210/09 DLVAYANI'I . .... Petitioner [hi-ough: Col. K. Diganibar Smgh, Advoi:atc versus UN ION OF iNDIA & ANT . . .. Respondents Through: Ms. .Iyoii Singh, Advocate . . And WRIT PETITION (CI\'IL) 14034/2009 & CM AIPL 16083/09 . . I .X. SFP VIREN1)ER SINCI I .... Petitioner 'I'hroughi: Col. K. J)iganihar Singh, Advocate versus , 0•, UNiON OF iN DI A & AN R R espondents Thioiigh : Ms. Jyoti Singh, Advocate C(I)RAM: JUSTICE S. MURAL1D [JAR . WI' (C), Nos. 9478107, 9525107, 9546107, 9568107, . 6447/08, 6494/08, 6761108, 7366/09& 14034/09 Pogo 2 of 3 I. Whether r{e1joi -tei-s of local papers may he allowed to see the jucignient? Nd To be referred to the Reportei - or not? Ycs Whether the judgment should be i -eported Yes in Digest? JUDGEMENT The non-renewal of the liccnccs in respect of the shops located .1 the Shopping complex under the control of the lvi Lnistry of I )elè nec, t Jioou of india (Respondent No. 1) in lhvoor o the 1 e1itioflcrs pursuant to it policy decision made effective from 30 April 2007, is the SLIbjCC1 mattel of the challenge in this hatch of writ petitions. - -. Backgroii;id/uicEs • 2. The Petitioners belong to categories of ex-serviceirien (and their ldiiii ly members) who died either in war and/or while being in scrvicc and/or • h Nci battle disch Ii Ioi iving so ed c 1SL1 iltic S and/or ii ge om the iii ned ceS • . and/or those arniccl personnel who retire after rendering (mill ser\'icc. ilic case of I he Petitioners is that among various measures adopted by the • I )ireclorate General of, Rcsettlenient (')CR') was the allocation of the shops . 1p the areas manned and managed by the Station Commander in various localities in Delhi such ais S.P. Marg, .1 )elhi Canit., Arjon Viliar, • Dhaii Ia iKuan, Sliankar Vihar etc. It is stated that witti a view to streamline the allot imients wade of time •. - abme shops in the shopping complexes, the Rcspondciils have been issuing - guideliies from tinie to time known as Standing Operating Procedure ('SOP'). In terms of Clause 6 of the SOP issued on 1011 August 2001, as WP (C) No.. 9478107, 9525107, 9546107, 9568107, . 6447108, 6494108, 6761108, 7366109 & 14034109 ('age 3 of 35 • .. .. •: •: and whep any ol the shops lull vacant, the Station Commander at Station I ieadqiiarters was expected to give wide publicity through the )C R in local • newspaperS. The allotment of shops was to he done on yearly basis. Clause 11 1 the SOP dated 1 0''' August 200 1 providcd for priorities in the al lotnicni of shops. Various parameters have been laid down ior a I loin ciii. On meeting such parameters a person was given a licence br a penmi of I I . months subjcct to renewal. Clause 17 o:f the SOP dated 10" A u,usl 2001 reads as under: 17. Renewal of licence deed: kcncwal of, licence dccii will he done on the recommendation of i -csidcntial associations, which will he obtained three months in advance from the dale of expiry of licence deed by DI)A & QMG, Station. HQ l.?elhi Canti. It the rcconimendations are in lhvour of at lottce, I hen the . . . Station CoiTimaiidei may renew the licence ileed br the subsequent year. H owever, the 11 eence deed i nay he terminated at any time by the Station Coiniiiander at his discretion." . 'I. According to the Petitioners, tilt the policy of 1 3' April 2007 which is challenged in this petition was announced, as a. matter of pmcticc: the licences were being renewiid from time to time. Many of the Petitioners hpye beep pccupying the shops in their possession br over nie years. In lbct, the Petitioners including Wing Commander M . P.. Setln and two others in Arj Liii Vihar have been iii occupation of their respective shops br over 21 years. It is stated that in terms of Clausc 17 of the SOP only where the lesidepts' ASSocial!on did not favour any particLilan allottce of a shop, was the renewal withheld, in lerniS of Clause '25 of the S(.).P a (letai.illing illoilec W1' (C) Nos. 9478107, 9525107, 9546107, 9568107, • 6447/08, 6494108, 6761108, 7366109 & 14034109 • I'agi' 4 of 3S (2 has to he relèrred to the Estate 0 ilicer for the p01-110ses ot in nation ot evtctifl proceedings under the Public Premises (Fviction and Unauthorized Occupa!its) Acb 1971 ('PP'Act'). it is slated that 1982 omA'ards many ol the Petitioners wel c allotted their respective shops and licenec deeds were also exceuted. The licence deeds wcç lisf ç tended in the year 2000 and wci'e to expire in the latter pail of 2007 . II is stated that the Petitioners had legitimate expectation that the licence deeds may, indeed be renewed. I lowcvcr, on 131 April 2007 the new policy e I lective from 30 tii April 2007 was issued. Clause 18 oF the new policy reads as under: • . "18. Renewal of licence deed: Renewal of licence (Iced will be none on the recommendation of resident al associations, which will be obtained three months m advance from the date ph expiry or licepec deed by A QM G Slat ion Head Quarter, l)el hi Cantl . Il' the reconimendat i oiis are in ftivour of al lottee, then the Station Coiiimander may renew the licence (iced for the subsequent year. i.lowevcr, the licence rIced may be terminated at any time by the - Station Commander at iìis discretion. No extension bc'yond live years will he given under anycircUmstancc. the same person can apply aFter a gap of three years of clear break (not i-unning in any Army('olony oh NCR)." • ., . ,. In Icons of . the above (..lause 1,8, the niglit to get the licenecs renewed ininiediately on the expiry of live years has been withdrawn. 'the alloltees are expectd to apply again a Rem a iii niinum hi'eak ol three years. In terms ill/P (C) NOS. 9478107, 9525107, 9546107, 9568107, - . . 6447/08, 6494/08, 6761/08, 736/09 & 14034/09 . !'aye S of 35 • ol' the rvisec.1 policy, the Respondents issued letters to the Petitioners • declining renewal ol licenees. The copies of letters reqoiring the Petitionei-s • to \'acalc the shops under fheir occupation have been enclosed with the • '! petitiOn. Petitioner Nos. 1, 2 and 4 to 9 I Wing Commander M . P. SelIn (Rei(.), Is .JW() A.S. (ihadha, i'x. (INR Narender I )ev, Hx. Naik tinni K rislivan.-'l'P. • . Ix. Sepoy Dharam Chand, Smi. Chandro I )evi, Fx. Suhedar R K. Piiwir, • . •' Smi. Vimla Dcvi in W.P. (C) 9478 of 2007; Petitioher Nos. I, 2, 5, 9, 12, 14, 15 and 17 lEx. N.K. Iishan Kumar, U. (Reid.) Coloncl Rameshwar, Mrs, Vcena Muldiyar, Smt. Narangi Dcvi, l'ix. Sigrnn lshwai' Singh, I lony. Capt. (Reid.) I )hanraj Sharia, Mrs. Shakuntla I )cvi and Sriii, I .ilawai i in W.P. (C) 9525 of' 2007; Smt. Cliandro Dcvi, wi fe ol late N. K. I Ioslnyar Singh, the Petitioner in W.P. (C) 9546 of 2007; lix. I buy. ('ip1. l3alhi r • Singh, the ['etilioner in WI'. (C) 9568 ol 2007 were served vacation notices dated 2311 November 2007 requiring the said Petitioners to vacate the shops in their possession within one month. 1 bo\.vever, the Court is ir brined by • • the Respondents that Chandro Dcvi, Petitioner No. 7 ni W. P. (C) 9478 .o I' • '2007 fins a.tready vpcaled the shop III her possession. . Shnbltawati Dcvi, the wifb of , hx. I Ion1' Captain Sitpa! Yada\.', Pciitioi'icr • No, 11 in W. P. (C) 9478 of 2007 made a represcnlaliori to the Respondents requesting them to transfer the licence to the shop allotted to 11CY deceased husband to her. On 3111 October 2007, the Respondents in reply to iii is • • . . representation dated 1711 August 2007 stated that there was no poi icy In WI' (C) Nob. 9478107, 9525107, 9546107, 9568107, , • 6447108,6494108,6761108,7366109&1403410.9 • I'aqe6aj3.5 4. trans Icr the allotted shop from the original a! IOttc to the spouse in case ol the lormer's (leatli. The licence for the shop allotted to her (leceased • husband. had already expired on 911 August 2007. I Iowe\er, on compassionate grounds she was al owed to continue liii 3 1 ' Decernbcr • .• . • 2007. This stand was reiterated by the Respondents by a conimun ical ion . cltcd 3111 November 2007 in reply to the Petitioner's reprcscntat ion (Ilited • I 711 N OVCITibcr 2007. 6, 10. Shri Magan I .al, Petitioner No. 10 in W. P. (C) 94$', or 2007 whose licence expired on 27111 October 2007 and Shri Ilavman Singh, Petitioner NO. 18 in W,P. (C) 9525 of 2007 whosC licence expirxl on 25 November 2007 received vacation notices dated 2711 November 2007 requiring them io vacate the shops in their respective possession within one mqnth. Shri M . P. Singh, Pe(itioner No. 3 in W.P. (C) 9478 or 2007 received a simI tar flotiec on 2811 November 2007 aler his licence expired on 27" Noven her 2007. 1' he licence or Shri Jagdish Prasad, the Petitioner in W. P. (Civil) 641 7 ol 2008 expired on 1 4' August 2007. I Ic was served a vacation 11011cc by the Respondents on 21 °. May 2008 asking him to vaate 1.11C shop iii his possession by 25 June 2008. Similarly, the licence ol'Slil - I Virender Smg!'i, the Petitioner in W.1. (C) 6494 of 2008 expired on 19" January 2008. lIe was served a vacation notice dated 3i May 200$ asking him to vacate the shop ri his possession by 25'' June 2008. I however, the Respondents in lrmed the Court that the Petitioner ifI W. l C) 6494 or 200$ has already vacated the shop. The licencç oF Shri Ranipal, Petitioner No. I in \'V. P. (C) 6761 of" 200$ expired on 20h11 April 2008 and oF Shiri K ainesh\var Pi'asad WI' (C) No. 9478107, 9525/07, 9546107, 9568107, ' 6,447108, 6494108, 6761108, 7366109 & 14034109 ' Page 7 of 35 Singh, Petitlotier No. 2 in W.P. (C) 676] of 2008 on 28 " February 2008. • 'they were se1vd yacatiop notices on 8" May and 24" April 2008, i LSC( tivcly i cquu mg them to vacate the shops in then possession by I 61 September 2008, Smt. Devyanti Dcvi, the Pctitioner in W.P. (C) 7366 of 2008 was issued a vacation notice on i January 2009 when her licence had expired on 6hu1 July 2008. She was required to vacate the shop by 71 lCl .)rLiii'y 99 Ii The licence of Shri Virender Singh, the Petitioner in WI'. (C') I 403'h ol 2099 expired on 31 ' Januai' 2007. I l.owcvcr, by a letter dated 2 I • December 2006 the Respondents had cancelled his licence under para 15 oh' the licence deed due to subletting of the sho. By a letter dated 30" November 2007 he was asked to vacate the shop within 30 days. • Consequently, the Respondents served an eviction notice dated 1$" August . . 2008 on the Petitioner. . • . 12. 1.1. Col. (Rei(t) B.M. K.apoor, Petitioner No.4 in W.P. (C) 9525 of 2007 was serve.l a vacation notice on 1911 December 2007 while his licence had Ii, , . . . -, expired on 7 .luly 2007. Similarly, Lt. CoT: (Reid.) 1)1K. 1 )ebnath, Petitioner No. I in W.P. (C) 9525 of 2007 was served a vacation notice dated 14" August 2007 when his licence expired on 24" March 2008. Pcti(iner Nos. 3, 6, 7, II, 13 and 1 6 in W.P. (C) 9525 oF 2007 have also been served with similar \'aeation notices, which are in ipugned, a lIe, expi ry of their licences. • • WP (C) No,. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108,7366109 & 14034109 l'age 8 of 35 The Pelitk'ners' Case 3. II is submitted by the Petitioners that the very purpose of )G R allocating shops in favour of the Petitioners was to enable them to have sonic reasonable means of subsistence. It is stated that continued al lotnient was a role and non-renewal an exception. Continued allotment • II • automatically followed if there were no negative reports loin tile residents asoeia1 ionS. It is stated that primarily the Petitioners are sd Ii rig ciocery • items, eatables, vegetables, limited items of elccoical goods eic. iii their shops I hsc are m idc available to the icsidcnts of the localities \s h it cle1rcc shopptng complexes are located, at reasonable rales Ihe basic idea is to make available things of day-to-day use to the residents of these areas near thnir door steps. The very purpose of allocating these shops to various allottees was to enable the servicemen and their fhmily members to earn a • decept livtng. • I It is stated that the new policy macic c libel ye from 3011 April 2007 • gives a complete go-by to this philosophy. II introduced a break in the continuity of their rehabilitation process with the Raspondents ldsiflsinit the Petitioners to vacate the shops. 15. At the initial date of' hearing i.e. on 20111 December 2007, this Court passed the following order: • . "Issue not:ice. Ms. •lyoti Singli, Advocate accepts notice on behalf of Respondents. Counter alMdav it shall be H led withni two weeks. Rejoinder, II any, may be filed willnii two weeks thei'eaiter. W1' (C) Nüs. 9478107, 9525107, 9546107, 9568107, • 6447108, 6494108, 6761108, 7366109 & 14034109 • I'age .9 of 3S I 1st 011 8a LIII udi y 2OO CM APP1. 17830/2007 (stay) I have eonsidei-ed the materials on record. The applicants' grievance is that they were allotted the premises by the Respondents as a measure of rehabilitation, on account ol their being ex-serviceman or being war widows. It is contended that sudden change of po1 icy has gravely and irreparably affected them. I ,eared counsel fbi the Petitioners relicd upon the documents: [hey suggest that Respondents took a conscious decision tl.iai tIiL'altotiiIciit in case of, rehabilitation was understood as not to the subject of later cancellation. however, learned counsel for the Respondents has disputed the applicability of the documents. According to her, the letter pert2iine(1 to allotment of premiscs in Regimental Areas. It is not disputed that the allotment of these spaces were given as a measure of rehabilitation to the Pelitioners. The obtective of the new Sclicnie, it is • empbased, is to ensure availability of these premises to as many heneflciaries as possihie, having regard to the limited resources available with tlielbrce. It is contended that a large number of applications were filed and are pending consideration. While the discretion of public authority to allot the p!'emises with in its pOssessioil, control and ownersh p aid • ••, thd parameters 1br such treatment can never he denied yet the question here appears to he one of bahuicing competitive disadvantages, as it were. The debate here is • •, . whether having allotted the premises, as a nicasii.re ol rehabilitation, the Respondents can, after some tine reverse that process and insist that siieli allottecs who admittedly were eligible Ibr the benefit shoLild return the p1-emises and wait: for three more years to claim allotment br the same and other such spaces. I am of the opi lion that while the Respondents' power to tiaiyie'a policy ' WP (C) No.c. 9478107. 9525107, 9546107, 9568107, • 6447108, 6494108, 6761108, 7366109 & 14034109 • J'oq' .10 of 35 cannot be questioned yet the considerations which the authority has to kee1 in this reiard, ic. the level of prosperity (Ii' income attained by the allot tees who wci'e given premises earlier, the sufficiency, of such income to make them tide order the difficult sitLiation and other objective lactors can certainly be gone into undei' Ai -ticle 226 of thc Constitution. -. In view of the above, the Respondents are licichy restrained iroiii taking any steps to disposscss tile Petitioner during t!.ie pendency of fh is writ petit iiiii. Case of '(lie 1?espondents 16. In the counter affidavit hiled in W. P. (C) 95t16 of 2007, which is morc or less sinu lar to the counter affidavit filed in other petit ions, the Respondents have cafegorically stated that "the doiTnniint purposc of these shopping complex/centres is the welfare of the scrvicemcn and their l'amifles i'csic.ling in the vicinity thereof and NOT resettlei nent ol a war wio\v, a widow, battle casualty and ex-sei'viccnien wli cli is only anci I lai'y i'athei' than allot shop to outsiders. It may be farther reemphnsised that the ' shops in the shopping complexcs/slopping centres are il lotted on • ' contractual basis on the normal i'ental basis and no promise ins hcen held out to the allottees that thiir licence will be necessarily rcncwed/cxtcndcd • 1 7 Ihe u1tionale for changing the policy as set out in the SOP dated I UI • August 2001 is attributed to the i'equets made by a Iarqc number of war widows, widows, battle casualties and ex-scr\'iceinen approaching the Respoi idents for allotment of' shops in shopping ' eoi npl ecs/shopping centics It is tatcd that in a pciiod of five rilonflis, 47 iw11 appliieation • ' - - W (ç) Nps. 9478107, 9525107, 9546107, 9568107, ' 6447/08, 6494108, 6761108, 7366109 & 14034109 • i'aqi 11 ()13' were received but lone Of them could he enierlained sncc the cx isti iillottces Were continuing SinCe Inception iil(ilhe lli.iiilher oI 5110115 avai able was limited. ftc m-easons for the change in the policy as introduced in the SOP d Ocd 13 Api ii 2007 ai c stated to bc thc lol lowing i) assisting thosc faniilius registered in the w olin c IN Mr allonacrit of shops. (h) illegal sub-lettuig of shops by the existing a lottees whose Itcences have been kept renewed for a long duration. (e), the l3ct that: there is no il:icreasc in Ole number of slloppni; complexes even while the demand ibr allotment keeps increasing. (d) Since the allotment of shops IS a welfare measure, it is necessary to i otate the allocation SO that ajalger number of e\-SLI \ 0 in ii are S 18. The Respondents claim that the changed pohcy was made known to all I icencees including tile Petitioners in June 2007 iii the addi I innal a liidav ii tiled on 22"' 1"ehroary 2010, tIle Respondents have drawn a distinction IletWeell clilit shops (Regimental Shops) and 5110115 in sliolpno cenlros/complexes which are located in the "main illumed c(mplex". i'iieloscd with the affidavit is a copy of the 'Scales of J\ccnmiTiodation 1 9 8 :3 ('SOA 1983'). Regimental shops are autllorixed by pam 141 ot' the 0 S()A 1983 and provide for trades such as taiioi:, boot maker (i'13R), cycle repair and grocer (unit baniya and wet cailteeli). 'these unit shops "arc oleant purely for troops and their banlilies as a wel lire activity and are located in uilil lines wherein civilian populatloil has Ijillited or no access." WI' (C) Nos. 9478/07, 9525107, 9546107, 9568107, 6447/08, 6498108, 6761108, 7366109 & 14034109 I'aqe 12 oJ35 Flic additional aIli(iavIl proceeds to state that shops in slioppilig centres/complexes as described in para 3.42. 1 of SOA 1983 and arc located at military stations "where no civil shopping complex exists within a reasonablc distance from the main married complex. The trades can he selected out of catcgorics like aerated water, barber, book and stationary, car a n d scooter repair, cloth, chemist and druggist, dry cleaner; cycle, gas. barn iture, restaurpnt, milk dairy, bakery. vcgctah Ic and Irui ts and 1)1 her trades which meet the requirements of' the troops and their farnil es'' It is stated that these shops have a clientele of the (iepeiident civi han population also. The Respondents point out that t;hei -c are two,sub-categoncs of shops in shopping complexes/centres. One category is covered by p;ira 3.'12. I of • ' SOA 1983 , which are created on debance lad.ls Iron] go\/ernillei it hinds. The other category is shops crea(ed on defence lands using non public funds. On I ill September 2008, the Ministry of' Debance ('Mol)') Government ol India, brought out 'Guidel nies for running shopping centres/coniplexes and unit shops'. Pai21 8(b) ol the guidelines states that the I )efcrice Shoppiiiiz Centres/Complexes (Maintenance and Administration) Riilcs 2006 ('l )SC Ru Is 006 ') framed by (he Mof) and issued on I 3' lime 2006 would he • applicable to both categories of shopping eoiriplexcs, i.e., those created with go\/ernment funds and those with non public funds.. • 2 I. '[he DSC Rules, 2006 make it clear that they do not apply to Regimental shops created