("··. \~ IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: May 31, 2010 Decision on: July 12, 2010 WRIT PETITION (CIVIL) 6761/2008 & CM APPL 13005/08 EX. HONY. SUB MAJRAMPAL & ANR .... Petitioners versus Through: Mr. Rakesh Tikku with Mr. Prakash Gautam, Advocate UNION OF INDIA & ANR .... Respondents Through: Ms. Maneesha Dhir with Ms. Preeti Dalal and Mr. K.P.S. Kohli, Advocate 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 MP. Sethi (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. JULY 12, 2010 rk S. MURALIDHAR, J 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 THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: May :11, '.01ll Decision on: July 17.. !.0 10 WJUT PETlTION (CIVIL) 947S/201l7 & CIVI API'L l7S5X/07 WlNCi COMMANDFR M.P. Sl·Tlll (Rl·:TD.) & 01\S ... Petitioners Through: Mr. Rakesh Tikku with Mr. Prakash Ciautam, Advocate versus lJN!ON OF lNDli\ & ANI< .... Respondents Through: Ms. Jyoti Singh, Advocate WRIT PETITION (CIVIL) 9525/20()7 & CM APl'L 179::11/07 FX. N.K. KRfSHAN KUMAR & ORS .... Petitioner.~ Through: CoL K. Digambar Singh. Advoca1c versus UNION OF INDIA & ANR .... l\csponclcllts Through: Ms. Jyoti Singh, AdvocatL; WRIT PI~TITION (CIVIL) 954612007 & CM APPL 17954/07 CllANDRO DEVl .... Petitioner Through: CoL K. Digambar Singh, 1\dvocatc versus UN JON OF TNDlA & ANR .... Respondents Through: Ms. Jyoti Singh, Advocate WlUT PKITfiON (CIVIL) 9568/20()7 & CM APPL 171JX l/07 LX. IJONY. CAPT BALBlR SlNC)ll 10\DlAN .... l'etitioncr Through: CoL K. Digarnbar Singh, Advocate versus UNION OF INDIA & ANR .... Respondents Through: Ms. Jyoti Singh, Advocate WRIT PETITION (CIVIL) 6447/2008 & CM APPL l2Jl3/HX JAGD!SII PRASAD .... Petitioner Through: Col K. Digambar Singh, /\clvocatc WP {C) Nos. 9478/07, 9525/07, 9546/07, 9568/07, 6447/08, 6494/08, 6761/08, 7366/09 & 14034/09 Page 1 of 3!> versus UNION OF INDIA & ANR --- I<espondcnts Through: Ms. Jyoti Singh, Advocate WRIT PETITION (CIVIL) 6494/2008 & CM APPL 12181/08 VIJI~NDER SLNCill __ .Petitioner Through: Col. K. Digambar Singh, Advocate versus UNION OF INDIA & ANR .... Respondents Through: Ms . .lyoti Singh, Advocate WlUT PETITION (CIVIL) 6761/2008 & CM Al'l'L 13005/08 EX. IIONY. SUB MAJ RAM PAL & ANR ____ Petitioners versus Through: Mr. Rakesh Tikku with Mr. Prakash Gautam, Advocate UNION OF INDIA & ANR .... 1\espondents Through: Ms. Maneesha Dhir witl1 Ms_ l'reeti Dalal and Mr. K.P.S. Kohli, Advocate WRIT PETITION (CIVIL) 736612009 & CM Al'PL 3210/09 DHVAYANTI versus ____ Petitioner Through: Col. K. Digambar Singh, Advocate UNION or fNDfA & ANR .... Respondents Through: Ms. Jyoti Singh, Advocate And WRIT PETITION (CIVIL) 1403412009 & CM APPL 16083/09 I ~x_ SFP VIRENDFR SJNGJ I ____ Petitioner Through: Col. K. Digambar Singh, Advocate versus UNION OF INDIA & ANR . __ Respondents Through: Ms. Jyoti Singh, Advocate CORAM: JUSTICE S. MlJRALIDIIAR WP (C) Nos. 9478/07, 9525/07, 9546/07, 9568/07, 6447/08, 6494/08, 6761/08, 7366/09 & 14034/09 Page 7 of 35 1. 2. 3. Whether Reporters of local papers may be allowed to sec the judgment'7 To be rcfened to the Reporter or not? Whether the judgment should be reported in Digest? .JlJDGEMI<~NT No Yes Yes 1. The non-renewal or the licences in respect ot" the shops locau.:d in the shopping complex under the control or the Ministry ot" De knee. lJnion ol" india (Respondent No. l) in Cavour oC the Petitioners pursuant to a policy decision made effective fi·om 30 11 ' J\pril 2007. is the subject matter ot" the challenge in this batch of writ petitions. Background facts 2. The Petitioners belong to categories or ex-servicemen (and their l~t111ily members) who died either in war and/or while being in service and/or having suf'f"ered battle casualties and/or discharge fi·om the anned f"orces and/or those armed personnel who retire after rcmlcring t"ull service. The case o I the Petitioners is that among various measures adopted by the Directorate General of Reselllement ('DGR ') was the allocation of the shops in the areas manned and managed by the Station Commander in various localities in Delhi such as S.P. Marg, Delhi Canll., J\rjun Vibar. Dhaula Kuan, Shankar Vihar etc. 3. It is stated that with a view to streamline the allotrnents made of" the above shops in the shopping complexes, the Respondents have been issuing guidelines 1i·om time to time known as Standing Operating Procedure ('SOP'). ln terms or Clause 6 of the SOP issued on 10'1' J\ugust 2001. as WP {C) Nos. 9478/07, 9525/07, 9546/07, 9568/07, 6447/08, 6494/08, 6761/08, 7366/09 & 14034/09 Page 3 of 35 and when any of the shops fall vacant, the Station Commander at Station lleadquarters was expected to give wide publicity through the DGR in local newspapers. The allotment of shops was to he done on yearly basis. Clause 11 of the SOP dated 1 Otli August 1.001 provided f"or priorities in the allotment of shops. Various parameters have been laid clown for allotment. On meeting such parameters a person was given a licence Cor a period of I I months subject to renewal. Clause 17 of the SOP dated 1 0' 1 ' August 200 I reads as lmder: "17. Renewal of licence deed: 1Zencwa1 or licence deed will be done on the recommendation or residential associations, which will be obtained three months in advance from the date of expiry of licence deed by DDA & QMG, Station. HQ Ddhi Cantt. ll. the recommendations arc in favour of allottee, then tl1c Station Commander may renew the licence deed l·or the subsequent year. However, the licence deed 111ay be terminated at any time by the Station Com111ander at his discretion." 4. According to the Petitioners, till the policy of 13 1li April 2007 which is challenged in this petition was announced, as a matter or practice, the licences were being renewed from time to time. Many of the Petitioners have been occupying the shops in their possession l"or over nine years. J n fact, the Petitioners including Wing Conunander M.l'. Sethi and two others in Arjun Vihar have been in occupation of their respective shops f"or over!. 1 years. It is stated that in tcnllS of Clause 17 or the SOP only where the Residents' Association did not favour any pa1iicular allottee of' a shop, was the renewal withheld. In terms of Clause 2S ofthe SOP a dchtulting allot1cc WP (C) Nos. 9478/07, 9525/07, 9546/07, 9568/07, 6447/08, 6494/08, 6761/08, 7366/09 & 14034/09 Poge 4 of 35 has to be referred to the Estate Officer for the purposes or .initiation or eviction proceedings under the Public Premises (l ~viction and Unauthori/ed Occupants) Act, 1971 (' PP Act'). 5. lt is stated that 1982 onwards many of the Petitioners were allotted their respective shops and licence deeds were also executed. The licence deeds were last extended in the year 2000 and wne to expire in the latter part of 2007. It is stated that the Petitioners had legitimate expectation that the licence deeds may indeed be renewed. llowever. on 13' 11 April 2007 the new policy effective from 30Lh April 2007 was issued. 6. CIa use 18 of the new policy reads as under: "'18. Renewal of licence deed: Renewal of licence.: deed will be done on the recommendation of residenlial associations, which will be obtained three months in advance from the date or expiry of licence deed by AQMC~. Station !lead Quarter, Delhi Cantt. If the recommendations arc in Cavour of allottee, then thc Station Commandcr may renew the licence deed for the subsequent ycar. llowcvcr, the licence deed may be terminated at any time by the Station Commander at his discretion. No extension bcyond five years will be given under any circumstance. The satltc person can apply after a gap of minimum threc ycars of' clear break (not running in any Army Colony or NCR)." 7. In tcrms of the above Clause 18, thc right to gct ihc I iccnccs rcncvvcd immediately on the expiry of live years has been withdravm. The allottees are expected to apply again ai'Ler a minimum break oi' thrcc ycars. In tcnns WP (C) Nos. 9478/07, 9525/07, 9546/07, 9568/07, 64117/08, 6494/08, 6761/08, 7366/09 & 14034/09 Page!;, af 3!:> \~ or the revised policy, the Respondents issued letters to the Petitioners declining renewal or licences. The copies of letters requiring the Petitioners to vacate the shops under their occupation have been enclosed with the petition. S. Petitioner Nos. 1, 2 and 4 to 9 [Wing Commander M.l'. Sethi (Rete!.), l•:x . .IWO J\.S. Chadha, Ex. GNR Narender Dev, l·:x. Naik lJnni Krishnan-TP. 1-:x. Sepoy Dharam Chand, Smt. Chandro Devi, l·:x. Subedar R.K. Pawar, Smt. Vimla Devi] in W.P. (C) 9478 of 2007; Petitioner Nos. I, 2. 5, 9. 12, 14, 15 and 17 jFx. N.K. Krishan Kumar, Lt. (Retd.) Colonel Rameshwar, Mrs. Vccna Muldiyar, Smt. Narangi Devi, Ex. Sigmn lshwar Singh, IIony. Capt. (Retd.) Dhanraj Sharma, Mrs. Shakuntla Dcvi and Smt. Lilawati I in W.P. (C) 9525 of 2007; Smt. Chandro Devi, wife or late N.K. lloshiyar Singh, the Petitioner in W.P. (C) 9546 of 2007; l~x. llony. Capt Halhir Singh. the Petitioner in W.P. (C) 956S of2007 were served vacation notices dated 23'd November 2007 requiring the said Petitioners to vacate the shops in their possession within one month. llowever, the CoUJi is inl(mncd by the Respondents that Chandra Dcvi. Petitioner No. 7 in W.P. (C) 9478 ol· ·2007 has already vacated the shop in her possession. 9. Shobhawati Dcvi, the wife ofEx. llony Captain Satpal Yadav, Petitioner No. II in W.P. (C) 9478 of2007 made a representation to the Respondents requesting them to transfer the licence to the shop allotted to her deceased husband to her. On 3'd October 2007, the Respondents in reply to this representation dated 17' 11 August 2007 slated that there was no pol icy to · WP {C) Nos. 9478/07, 9525/07, 9546/07, 9568/07, 6447/08, 6494/08, 6761/08, 7366/09 & 14034/09 Page 6 of 35 transt'er the allotted shop hom the original allottee to the spouse in utse o 1· the former's death. The licence Cor the shop allotted lo her deceast:d husband had already expired on 19'li August 2007. llowever, 011 compassionate grounds she was allowed to continue till 3 1 '1 December 2007. This stand was reiterated by the Respondents by a communication dated l3 1li November 2007 in reply to the Petitioner's representation dated 1 7'1' November 2007. 10. Shri Magan Lal, Petitioner No. 10 in W.P. (C) 947X or 2007 wh<ise licence expired on 27'li October 2007 and Shri Ilavman Singh, Petitioner No. 18 in W.I'. (C) 9525 of 2007 whose licence expired on 25 1h November 2007 received vacation notices dated 2ih November 2007 requiring them to vacate the shops in their respective possession within one month. Sht·i M.P. Singh, Petitioner No. 3 in W.P. (C) 9478 or 2007 received a similar notice on 2.'\ 11' November 2007 after his licence expired on 27 11' November 2007. The licence of Shri Jagdish Prasad, the Petitioner in W.P. (Civil) ()4117 or 2008 expired on 14 11 ' August 2007. flc was served a vacation notice by the Respondents on 21 '' May 2008 asking him to vacate the shop in his possession by 25' 11 June 2008. Similarly, the licence of Shri Vircndcr Singh, the Petitioner in W.P. (C) 6494 of 2008 expired on 19' 11 .January 2008. lie was served a vacation notice dated 3"1 May 2008 asking him to vacate the 1 · 1 · · l 5111 s 10p 111 11s possession JY 2_ June 2008. llowever, the Respondents ini(mncd the Com1 that the Petitioner in W.l'. (C) 6494 or 2008 has already vacated the shop. The licence or Shri Rampal, Petitioner No. 1 in W.l'. (C) 6761 ol" 2008 expired on 20t 11 April 2008 and of Shri Kameshwar Prasad WP (C) Nos. 9478/07, 9525/07, 9546/07, 9568/07, 6447/08, 6494/08, 6761/08, 7366/09 & 14034/09 Page 7 of 3S Singh, Petitioner No. 2 in W.P. (C) 6761 of 2008 on 28 1 1! February 2008. They were served vacation notices on 8 1 1t May and 24 111 April 2008, respectively, requiring them to vacate the shops in their possession by 16 111 September 2008. Smt. Dcvyanti Devi, the Petitioner in W.P. (C) T\(16 of" 2008 was issued a vacation notice on 15' 11 January 2009 when her licence had expired on 611t July 2008. She was required to vacate the shop by 2 11 d February 2009. ~ 11. The licence of Shri Virender Singh, the Petitioner in W.P. (C) HOY! oC 2009 expired on 31 ' 1 January 2007. However, by a letter dated 21 ' 1 December 2006 the Respondents had cancelled his licence under para 15 or the licence deed due to subletting of the shop. By a letter dated 30 111 November 2007 he was asked to vacate the shop within 30 days. Consequently, the Respondents served an eviction notice dated 18 111 /\ugust 2008 on the Petitioner. 12. Lt. Col. (Retd.) B.M. Kapoor, Petitioner No.4 in W.P. (C) CJ525 or 2007 was served a vacation notice on 19'1t December 2007 while his I iccncc had expired on i 11 July 2007. Similarly, Lt. Col (Retd.) D.K. Dcbnath, Petitioner No. 1 in W.P. (C) 9525 oC 2007 .was served a vacation notice dated 14 111 August 2007 when his licence expired on 24 111 March 2008. Petitioner Nos. 3, 6, 7, 11, 13 and 16 in W.P. (C) 9525 or /.007 have also been scrvcd with similar vacation notices, which arc impugned, afkr expiry of their licences. WP {C) Nos. 9478/07, 9525/07, 9546/07, 9568/07, 6447/08, 6494/08, 6761/08, 7366/09 & 14034/09 Page 8 of 3:, ( I The Petitioners' case 13. It is submitted by the Petitioners that the very puq1ose or I)() R allocating shops in favour of the Petitioners was to enable them lo have some reasonable means of subsistence. It is slated that continued allotment was a rule and non-renewal an exception. Continued allotment automatically followed ifthcrc were no negative rcpmis rromtiJL: residents' associations. It is stated that primarily the l'l;titioncrs are sL:Iling groL:ery items, eatables, vegetables, limited items of ekctrical goods de. in t!JL:ir shops. These are made available to the residents of the localities where defence shopping complexes are located, at reasonable rates. The basic idea is to make available things of day-to-day use to the residents or these areas ncar their door steps. The very purpose of allocating these shops to various alloticcs was to enable the servicemen and their family members to earn a decent living. 14. It is stated that the new policy made effective fi-om :l0' 1 ' J\pril 2007 gives a complete go-by to this philosophy. 11 introduced a break in the continuity of their rehabilitation process with the Respondents pressurising the Petitioners to vacate the shops. 15. J\t the initial date of hearing Le_ on 20 1h December 2007, this Court passed the following order: "Issue notice. Ms. Jyoti Singh, J\clvocatL: accepts notice on behalf of Respondents_ Counter aJlidavil shall he lilcd within two weeks. Rejoinder, if any, may be lilcd within two weeks thereaCLer. WP {C) Nos. 9478/07, 9525/07, 9546/07, 9568/07, 6447/08, 6494/08, 6761/08, 7366/09 & 14034/09 Page 9 of 35 List on 8'h February 2008. CM APPL 17850/2007 (stav) f have considered the materials on record. The applicants' grievance is that they were allotted the premises by the Respondents as a measure of rehabilitation, on account of" their being ex-serviceman or being war widows. lt is contended that sudden change of policy has gravely and ineparably affected them. Learned counsel ICJr the Petitioners relied upon the documents. They suggest that Respondents took a conscious decision that the allotlllc!lt in case of rehabilitation was understood as not to the subject or later cancellation. llowever, leamed counsel for the Respondents has disputed the applicability of the documents. According to her, the letter pertained to allotment of premises in Regimental Areas. It is not disputed that the allotment or these spaces were given as a measure of rebabilitation to the Petitioners. The objective of the new Scheme, it is emphasized, is to ensure availability or these premises to as many beneficiaries as possible, having. regard to the limited resources available with the force. It is contended that a large number of" applications were liled and arc pending consideration. While the discretion of" public authority to <tllot the premises within its possession, control and ownership ancl the parameters for such treatment can never be clcnied yet the question here appears to be one oC balancing competitive disadvantages, as it were. The debate here is whether having allotted the premises, as a rneasun.: or rehabilitation, the Respondents can, aii.er some time reverse that process and insist that such alloUccs who admittedly were eligible for the benefit should return the premises and wait for three more years to claim allotment f"or the same and other such spaces. I am of" the opinion that while the Respondents' power to Ji·ame a policy WP {C) Nos. 9478/07, 9525/07, 9546/07, 9568/07, 6447/08, 6494/08, 6761/08, 7366/09 & 14034/09 l'oge 10 of 3.; ( I .r- cannot be questioned yet the considerations which the authority has to keep in this regard, i_c_ thc level ol· prosperity or income attained by the allollees who wcrc given premises earlier, the surriciency or such income to make them tide order the difficult situation and other objective factors can ce1iainly be gone into under J\1iiclc 226 of the Constitution. ln view of the above, the Respondents arc hcrcby restrained ii·orn taking any steps to disposscss the Petitioner during the pendency of this writ pctition_" Case of tlze Respondents 1 G. In the counter affidavit lilcd in W. P_ (C) 95!JG or 1007, which is morc or less similar to the counter affidavit filed in other petitions, thc Respondents have categorically stated that "the dominant purpose of thcsc shopping complex/centres is the welfare or the servicemen and their families residing in the vicinity thereof and NOT resetllelllenl or a war widow, a widow. battle casualty and ex-servicemen which is only ancillary rather than allot shop to outsiders_ It may he further t-e-emphasisccl that thc shops in the shopping complexes/shopping ccntrcs arc allottcd on contractual basis on the normal rental basis and no promise has been held out to the allottccs that their licence will be ncccssarily rcncwcd/cxtcndcd in pcrpciuity." 17_ The rationale for changing the policy as set out in the SOP dated I 0' 1 ' August 2001 is attributed to the requests made by a 1argc numhcr of war widows. widows, battle casualties and ex-servicemen approaching the Respondents for allotment of shops in shopping cotuplcxes/shopping centres. It is stated that in a period of live months, 4 7 such applications WP {C) Nos. 9478/07, 9525/07, 9546/07, 9568/07, 64117/08, 611911/08, 6761/08, 7366/09 & 14034/09 Page 11 of 3.'> were received but none of them could be entertained since the existing allotlees were continuing since inception and the number oC shops available was limited. The reasons for the change in the policy as introduced in the SOP dated 13th April 2007 are stated to be the Collowing: (a) assisting those families registered in the waiting I ist for allotment of shops. (b) illegal sub-letting of shops by the existing allollees whose licences have been kept renewed for a long duration. (c) the fact that there is no increase in the number of' slropping complexes even while the demand for allotment keeps increasing. (d) since the allotment of shops is a welfare measure, it is necessary to rotate the allocation so that a larger number of ex -servicemen arc benefi1.1ed. 18. The Respondents claim that the changed policy was made known to all licencees including the Petitioners in June 2007. In the additional arlidavit tiled on 22m 1 February 2010, the Respondents have drawn a distinction between unit shops (Regimental Shops) and shops 111 shopping centres/complexes which arc located in the "mam married complex". Enclosed with the affidavit is a copy of the 'Scales of Accommodation 1983 ('SOA 1983'). Regimental shops arc authorized by para 3.41 of the SOA 1983 and provide for trades such as tailor, boot maker (FJ3]:{), cycle repair and grocer (unit baniya and wet canteen). These unit shops "arc meant purely for troops and their f~tmilies as a welfare activity and an: located in unit lines wherein civilian population has limited or no access." WP {C) Nos. 9478/07, 9525/07, 9546/07, 9568/07, 6447 jOB, 6494/08, 6761/08, 7366/09 & 14034/09 Page .1l of 3'> 19. The additional affidavit proceeds to state that shops in shopping centres/complexes as described in para 3.42.1 of SO/\ 1983 and arc located at military stations "where no civil shopping complex exists within a reasonable distance Crom the main married complex. The trades can be selected. nut of categories like aerated water, barber, book and stationary, car and scooter repair, cloth, chemist a~1d druggist, dry cleaner, cycle, gas, furniture, restaurant, milk dairy, bakery, vegetable and fruits and other trades which meet the requirements of the troops and their l~tmilies." It is stated that these shops have a clientele of the dependent civilian population also. 20. The Respondents point out that there arc two sub-categories of shops in shopping complexes/centres. One category is covered by para 3.42.1 ol" SO/\ 1983 which are created on defence lands fi·om government funds. The other category is shops created on defence lands using non public funds. On l!Jrli September 2008, the Ministry of Dclcncc ('Mol)') Clovcrnmcnt ol· fndia, brought out 'Guidelines lor running shopping centres/complexes and unit shops'. Para 8(b) of the guidelines states that the DcCcncc Shopping Centres/Complexes (Maintenance and Administration) Rules, 200(J ('DSC Rules 2006') framed by the MoD and issued on l3 1 !t .June 200CJ would he applicable to both categories of shopping complexes, i.e., those created with government funds and those with non public funds. 21. The DSC Rules, 2006 make it clear that they do not apply to H.egimental shops created exclusively for military personnel and thci 1· WP (C) Nos. 9478/07, 9525/07, 9546/07, 9568/07, 6447/08, 6494/08, 6761/08, 7366/09 & 14034/09 Page 13 of 3S families. Rule 2(c) defines a shopping complex to mean "a composite area comprising shops established on A-I or analogous defence land under till: management of the Am1y!Navy/Air Force but would not include Regimental shops created exclusively for military personnel and thc11· families." Under Rule 3(a) the existing allottees were allowed to continue till the expiry of their licence period and such of those in unauthorized occupation of the shops, i.e., where the period or licence has expired. would be given six months time to vacate in terms or Rule 3(c) railing which the !·:state Orricer would initiate action to evict them in accordance with law. 22. Under Rule 7 no transfer was permissible except in case of dc:1nisc or the allottee, in which case it would be transferred to the dcpmdent/legal heir for the residual period of the licence. Under Rule 12, GO% or the shops in each shopping complex were to be reserved in the order or priority as under: (i) war widows/widows of defence personnel kilkd while on duty. ( i i) disabled soldier (iii) ex-servicemen (iv) spouses/widows of ex-servicemen. The remaining 40% were to be allotted to the following: (i) Government agencies including public sector undertakings and (ii) civilians whose spouse or dependent family member do not own ::my shops in the complex/military station/cantonment. WP (C) Nos. 9478/07, 9525/07, 9546/07, 9568/07, 611117/08, 611911/08, 6761/08, 7366/09 & .14034/09 Pag" 111 of 35 Any unallotled shops in the 60% quota were to be considered !"or being given to the civilian category. 23. Under Rule 13, allotment was to be given under licence