IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: May 31, 20^^ Decision on: July 12, 2010 WRIT PETITION (CIVIL) 9568/2007 & CM APPL 17981/07 EX. HONY. CAPT BALBIR SINGH KADIAN .... Petitioner Tlirough: Col. K. Digambar Singh, Advocate versus UNION OF INDIA & ANR .... Respondents Tlirough: Ms. Jyoti Singh, Advocate CORAM: JUSTICE S. MURALIDHAR j ORDER 12.07.2010 In tenns of the common judgment rendered today in Writ Petition (Civil) 9478/2007 titled 'Wing Commander M.P. 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. 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 IN l l!E HIGH COURT OF DFI.IH AT NEW DEEHl Reserved on: May 31, 2010 Decision on: July 12,2010 WIHT PE'l'ITlON (CIVIL) 9478/2{)()7 & CM APl'L 17858/07 WING COMMANDER M.P. Sl/TIJl (RL TD.) & ORS .... i'clilioncrs Through: Mr. Rakcsh Tildcu vvidi Mr. Prakash Gautam, Advocate versus LJGION OF INDIA & ANR n • n n Respondents Through: Ms. Jyoti Singh, Advocate WRI T PETITION (CIVIL) 9525/2007 & CM APPL 17931/07 EX. N.K. KRTSHAN KUMAR & ORS .... Petitioners Through: Col. K. Digambar Singh, Advocate versus UNION OF INDIA & ANR .... Respondents Tlrrough: Ms. Jyoti Singh, Advocate WRIT PETITION (CIVII,) 9546/2007 & CM APPL 17954/07 Cl IANDRO DEVI .... Petitioner Through: Col. K. Digambar Singh, Advocate versus UNION OF INDIA & ANR .... Respondents Through: Ms. .lyoti Singh, Advocate WRI T PETITION (CIVIL) 9568/2007 & CM APPL 17981/07 EX. IIONY. CAPT BALBIR SINGH RADIAN .... Petitioner Through: Col. K. Digambar Singh, Advocate versus UNION OF INDIA & ANR .... Respondents Through: Ms. Jyoti Singh, Advocate WRIT PETITION (CIVIL) 6447/2008 & CM APPL 12315/08 .lAGDISH PRASAD .... Petitioner Through: Col. K. Digambar Singh, Advocate WP (C) Nos. 9478/07, 9S2S/07, 9546/07, 9568/07, 6447/08, 6494/08. 6761/08, 7366/09 & 14034/09 Page 1 of 35 versus miON OF INDIA & ANR Rcsponclenls Through: Ms. .lyoli Singh, Advocate WRIT PETITTON (OIVIL) 6494/2008 & CiVl Al'RT 12381/08 VhlENDF-R SINGH I'clilioncr Through: Col. K. Digambar Singh, Advocate versus UNION OF INDIA & ANR • • n • Respondents Through: Ms. .Tyoti Singh, Advocate WRIT PETITTON (CIVIE) 6761/2008 & CM APPE 13005/08 EX. HONY. SUB MAJ RAM PAL & ANR .... Petitioners Through: Mr. Ralcesh Tikku with Mr. Prakash Gautam, Advocate versus UNION OF" INDIA & ANR .... Respondents Through: Ms. Maneesha Dhir with Ms. Preeti Dalai and Mr. K.P.S. Kohli, Advocate WlUT PETITION (CIVIE) 7366/2009 & CM APPE 3210/09 DEVAYANTI .■■■ Petitioner Through: Col. K. Digambar Singh, Advocate versus UNION OF INDIA & ANR .... Respondents Through: Ms. .lyoti Singh, Advocate And VS'RIT PETITION (CIVIE) 14034/2009 & CM APPE 16083/09 EX. SEP VIRENDER SINGH .... Petitioner Through: Col. K. Digambar Singh, Advocate versus UNION OF" INDIA & ANR .... Respondents Through: Ms. .lyoti Singh, Advocate CORAM: JIISTTCE S. MIJRAEIDIIAR WP (C) Nos. 9478/07, 9525/07, 9546/07, 9568/07, 6447/08, 6494/08, 6761/08, 7366/09 & 14034/09 Page 2 of 35 1. Whether Reporters of local papers may be allowed to see the judgment'? No 2. To be refeiTed to the Reporter or not? Yes 3. Wliether the judgment should be reported Yes in Digest? ■lUDGEMENL^ 1. The non-renewal of the licences in respect of the shops located in the shopping complex under the control of the Ministry of Dclencc, Union ol India (Respondent No. 1) in favour of the Petitioners pursuant to a policy decision made effective from 30"' April 2007, is the subject matter ol the challenge in this batch of writ petitions. Background facts 2. The Petitioners belong to categories of ex-servicemen (and their Ihmily 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 armed persomiel who retire after rendering lull service. Ihc case of the Petitioners is that among various measures adopted by the Directorate Generaf of Resettlement ('DOR') 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 Cantt., Arjun Vihar, Dhaula Kuan, Shankar Vihar etc. 3. It is stated that with a view to streamline the allotments made ol the above shops in the shopping complexes, the Respondents have been issuing guidelines Ifom time to time known as Standing Operating Procedure ('SOP').-In terms of Clause 6 of the SOP issued on lO"' August 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 sliops fall vacant, the Station C:ommander at Station T-Teadquarters was expected to give wide publicity through the IXiR in local newspapers. The allotment of shops was to be done on yearly basis, (dause 1 1 of the SOP dated lO"' August 2001 provided for priorities in the allotment of shops. Various parameters have been laid down tor allotment. On meeting such parameters a person was given a licence lor a period ol 1 1 months subject to renewal. Clause 17 of the SOP dated 10 August 2001 reads as under: "17. Renewal of licence deed: Renewal of licence deed will be done on the recommendation of residential associations, which will be obtained three months in advance from the date of expiry of licence deed by DDA & QMG, Station. liQ Delhi Cantt. If the recommendations are in favour ol allottee, 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 iris discretion." 4. According to the Petitioners,.till the policy of 13"' April 2007 which is challenged in this petition was announced, as a matter of practice, the licences were being renewed from time to time. Many of the Petitioners have been occupying the shops in their possession for over nine years. In fact, the Petitioners including Wing Commander M.P. Sethi and two others in Arjun Vihar have been in occupation of their respective 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 particular allottee of a shop, was the renewal witlrlreld. In terms of Clause 28 of the SOP a delaulting allottee WP (C) Nos. 9478/07, 9525/07, 9546/07, 9568/07, 6447/08, 6494/08, 6761/08, 7366/09 & 14034/09 Page 4 of 35 has to be referred to the Estate OlTicer for the purposes of initiation of eviction proceedings under the Public Premises (Eviction and Unauthori/.ed Occupants) Act, 1971 ('PP Act'). 5. It is stated that 1982 onwards many of the Petitioners were allotted their respective shops and licence deeds were also executed. 1 he licence deeds were last extended 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 deeds may indeed be renewed. ETowever, on 13"'' April 2007 the new policy effective from 30''' April 2007 was issued. 6. Clause IS of the new policy reads as under: "18. Renewal of" lieenee deed: Renewal of licence deed will be done on the recommendation of residential associations, which will be obtained three months in advance from the date of expiry of licence deed by AQMG, "Station Plead Quarter, Plelhi Cantt. If the recommendations are in favour of allottee, 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. No extension beyond five years will be given under any circumstance, "fhc same person can apply after a gap of minimum three years of clear break (not innning in any Army Colony of NCR)." 7. In terms of the above Clause 18, the right to get the licences renewed immediately on the expiry of five years has been withdrawn. The allottees are expected to apply again after a minimum break of three years. In terms WP (C) Nos. 9f78/07. 9525/07, 9546/07, 9568/07, 6447/08, 6494/08, 6761/08, 7366/09 & 14034/09 Page 5 nf 35 of the revised policy, the Respondents issued letters to the Petitioners declining renewal of licences. 1 he copies of letters requiting the Pctitioneis to vacate the shops under their occupation have been enclosed with the petition. 8. Petitioner Nos. I, 2 and 4 to 9 [Wing Commander M.P. Sethi (R.etd.), P..\. .IWO A.S. Chadha, Ex. CNR Marender Dev, Ex. Naik Unni ICrishnan-TP, Ex. Sepoy Dharam Chand, Smt. Chandro Devi, lix. Subedar R.K. Pawar, Smt. Vimla Devi] in W.P. (C) 9478 of 2007; Petitioner Nos. 1, 2, .7, 9, 12, 14, 15 and 17 [Ex. N.K. Ki'lshan Kumar, I.t. (Retd.) (.-.olonel Raraeshwar, Mrs. Veena Muldiyar, Smt. Narangi ]9evi, Ex. Siginn Ishwar Singh, llony. Capt. (Rctd.) Dhanraj Sharma, Mrs. Shakuntla Devi and Sml. Eilawati| in W.P. (C) 9525 of 2007; Smt. Chandro Devi, wife of late N.K. lloshiyar Singh, the Petitioner in W.P. (C) 9546 of 2007; fix. llony. Capt. Halbir Singh, the Petitioner in W.P. (C) 9568 of 2007 were served vacation notices dated 2.3''' November 2007 requiring the said Petitioners to vacate the shops in their possession within one month. However, the Court is informed by the Respondents that Chandro Devi, Petitioner No. 7 in W.P. (C) 9478 ol 2007 has already vacated the shop in her possession. 9. Shobhawati Devi, the wife of Ex. Hony Captain Satpal Yadav, Petitioner No. 11 in W.P. (C) 9478 of 2007 made a representation to Ihe Respondents requesting them to transfer the licence to the shop allotted to her deceased husband to her. On 3"' October 2007, the Respondents in reply to this representation dated 17"' yUigust 2007 staled that there was no policy to WP (Cj Nos. 9478/07, 9525/07, 9546/07, 9568/07, 6447/08, 6494/08, 6761/08, 7366/09 & 14034/09 Page 6 of 35 traasler the allotted shop from the original allottee to the spouse in case ol the former's death. The licence for the shop allotted to hei deceased husband had already expired on 19"' August 2007. Mowever, on compassionate grounds she was allowed to continue till .li " IDcccmbci 2007. This stand was reiterated by the Respondents by a communication dated 13"' November, 2007 in reply to the Petitioner's representation dated 17"'November 2007. 10. Shri Magan Lai, Petitioner No. 10 in W.P. (C) 9478 ol 2007 whose licence expired on 27"' October 2007 and Shri Havman Singh, Petitioner No. 18 in W.P. (C) 9525 of 2007 whose licence expired on 25"' November 2007 received vacation notices dated 27"' November 2007 requiring them to vacate the shops in their respective possession within one month. Shri M.P. Singh, Petitioner No. 3 in W.P. (C) 9478 of 2007 received a similar notice on 28"' November 2007 after his licence expired on 27"' November 2007. The licence of Shri Jagdish Prasad, the Petitioner in W.P. (Clivil) 6447 of 2008 expired on 14"' August 2007. He was seiwed a vacation notice by the Respondents on 2T" May 2008 asking him to vacate the shop in his possession by 25"' .June 2008. Similarly, the licence of Shri Vircndcr Singh, the Petitioner in W.P. (C) 6494 of 2008 expired on 19"' .Tanuary 2008. He was seiwed a vacation notice dated 3'" May 2008 asking him to vacate the shop in his possession by 25"' June 2008. However, the Respondents informed the Court that the Petitioner in W.P. (C) 6494 of 2008 has already vacated the shop. The licence of Shri Rampal, Petitioner No. 1 in W.P. (C) 6761 of 2008 expired on 20"' 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 8,14034/09 Page 7 of 35 Singh, Petitioner No. 2 in W.P. (C) 6761 ol 2008 on 28 hebiuaiy 2008. They were served vacation notices on 8''' May and 24 April 2008,' respectively, requiring them to vacate the shops in their possession by 16 September 2008. Smt. Devyanti Devi, the Petitioner in W.P. (C) 7.366 of 2008 was issued a vacation notice on 15*'' .lanuary 2009 when hei licence had expired on 6''' July 2008. She was required to vacate the shop by 2 February 2009. 11. The licence of Shri Virender Singh, the Petitioner in W.P. (C) 14034 of 2009 expired on 31" Januaiy 2007. However, by a letter dated 21" December 2006 the Respondents had cancelled his licence under para 15 of the licence deed due to subletting of the shop. 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 18"' August 2008 on the Petitioner. 12. Lt. Col. (Retd.) B.M. Kapoor, Petitioner No. 4 in W.P. (C) 9525 of 2007 was served a vacation notice on 19"'' December 2007 while his licence had expired on 7"' July 2007. Similarly, I.t. Col. (Retd.) D.K. Debnath, Petitioner No. 1 in W.P. (C) 9525 of 2007 was served a vacation notice dated 14''' August 2007 when his licence expired on 24"' March 2008. Petitioner Nos. 3, 6," 7, 1 1, 13 and 16 in W.P. (C) 9525 ol 2007 have also been served with similar vacation notices, which arc impugned, after 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 Pago 8 of 35 The Petitioners' case 13. it is submilted by Ihe Petitioners that the very purpose of T)(jR allocating shops in favour of the Petitioners was to enable theni to have some reasonable means o( subsistence. It is staled that continued allotment was a rule and non-renewal an exception. (Continued allotment automatically followed if there were no negative reports irom the residents' associations. It is stated that primarily the Petitioners are selling grocery items, eatables, vegetables, limited items of electrical goods etc. in their shops. These are made available to the residents ol the localities where defence shopping complexes are located, at reasonable rates. 1 he basic idea is to make available things of day-to-day use to the residents ol these areas near their door steps, 'fhe very purpose of allocating these shops to various allottees was to enable the seiwicemen and their family members to earn a decent living. 14. 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 of their rehabilitation process with the Respondents pressurising the Petitioners to vacate the shops. 15. At. the initial date of hearing i.e. on 20"' IDecember 2007, this (lourt passed the following order: "Issue notice. Ms. Jyoti Singh, Advocate accepts notice on behalf of Respondents. Counter affidavit shall be filed within two weeks. Rejoinder, if any, may be filed within two weeks thereafter. WP (C) Nos. 9478/07, 9525/07, 9546/07, 9568/07, 6447/08, 6494/08, 6761/08, 7366/09 & 14034/09 Page 9 oj 35 T.ist on 8"^ February 2008. CM APPL 17850/2007 (stay) T have considered the materials on record. Ihe applicants' grievance is that they were allotted the premises by the Respondents as a measure of rehabilitation, on account ot their being ex-ser"viceman or being war widows. It is contended that sudden change of policy has gravely and iiTcparably affected them. I.earncd counsel for the Petitionei-s relied upon the documents. They suggest that Respondents took a conscious decision that the allotment 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 pertained to allotment of premises in Regimental Areas. It is not disputed that the allotment of these spaces were given as a measure of rehabilitation to the Petitioners. The objective of the new Scheme, it is emphasized, is to ensure availability of 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 filed and are pending consideration. While the discretion of public authority to allot the premises within its possession, control and ownership and the parameters for such treatment can never be denied yet the question here appears to be one of balancing competitive disadvantages, as it were. The debate here is whether having allotted the premises, as a measure ol rehabilitation, the Respondents can, after some time reverse that process and insist that such allottees who admittedly were eligible for the benefit should return the premises and wait for three more years to claim allotment for the same and other such spaces. 1 am of the opinion that while the Respondents' power to frame a policy WP (C) Nos. 9478/07, 9525/07, 9546/07, 9563/07, 6447/08, 6494/08, 6761/08, 7366/09 & 14034/09 Poge 1" "f 35 A cannot be questioned yet the considerations which tlie authority has to keep in this regard, i.e. the level of prosperity or income attained by the allottees who were 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 of the Constitution. In view of the above, the Respondents arc hereby restrained fiom taking any steps to dispossess the Petitioner during the pendency of this writ petition." Case of the Respondents 16. 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 petitions, the Respondents have categorieaily, stated that "the dominant purpose of these shopping complex/centres is the welfare of the servicemen and their families residing in the vicinity thereof and NOT resettlement of a war widow, a widow, battle casualty and ex-sei-vicemen which is only ancillai7 rather than allot shop to outsiders. It may be (urther re-emphasised that the shops in the shopping complexes/shopping centres are allotted on contractual basis on the normal rental basis and no promise has been held out to the allottees that their iieence will be necessarily renewed/extended in perpetuity." 17. The rationale for changing the policy as set out in the SOP dated 10''' August 2001 is attributed to the requests made by a large number of war widows, widows, battle casualties and ex-sendcemen approaching 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. 9478/07, 9525/07, 9546/07, 9568/07, 6447/08, 6494/08, 6761/08, 7366/09 & 14034/09 Page 11 of 35 T 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. The reasons for the change in the policy as introduced in the SOP dated 13"' April 2007 arc stated to be the following: (a) assisting those families registered in the waiting list for allotment of shops. (b) illegal sub-letting of shops by the existing allottees whose licences have been kept renewed for a long dtiration. (c) the fact that there is no increase in the number of shopping complexes even while the demand (or 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-scrvicemen are benefitted. 18. The Respondents claim that the changed policy was made known to all licencees .including the Petitioners in .lune 2007. In the additional allidavit fded on 22'"' February 2010, the Respondents have drawn a distinction between unit shops (Regimental Shops) and shops in shopping centres/complexes which are located in the "main married complex . Enclosed with the affidavit is a copy of the 'Scales of Aeeommodation 1983 ('SOA 1983'). Regimental shops are authorized by para 3.41 of the SOA 1983 and provide for trades such as tailor, boot maker (FIHR), cycle repair and grocer (unit baniya and wet canteen). Ihese unit shops are meant purely for troops and their families as a welfare activity and are located in unit lines wherein civilian population has limited or no access." IVP (C) Nos. 9178/07, 9525/07,3546/07, 9568/07, 6417/08, 6494/08, 6761/08, 7366/09 & 14034/09 Pog" 19. The additional affidavit proceeds to state that shops in shopping centres/complexes as described in para 3.42.1 of SOA 1983 and are located at military stations "where no civil shopping complex exists within a reasonable distance from the main married complex. The trades can be selected out of eategories like aerated water, barber, book and stationary, car and scooter repair, cloth, chemist and druggist, dry cleaner, cycle, gas, lurniture, restaurant, milk daily, bakery, vegetable and fruits and other trades which meet the requirements of the troops and their families." It is stated that these shops have a clientele of the dependent civilian population also. 20'. The Respondents point out that there are two sub-categories of shops in shopping complexes/centres. One category is covered by para 3.42.1 ol SOA 1983 which are created on defence lands from government hinds. The other category is shops created on defence lands using non public funds. On 14"' September 2008, the Ministry of Defence ('MoD') Government of India, brought out 'Guidelines fbr running shopping eentre.s/eomplexes and unit shops'. Para 8(b) of the guidelines states that the Defence Shopping Centres/Complexes (Maintenance and Administration) Rules, 2006 ('DSC Rules 2006') framed by the MoD, and issued on 13"' .lUne 2006 would .be 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 Regimental shops created exclusively for military personnel and their WP (C) Nos. 9478/07, 9525/07, 9546/07, 9568/07, 6447/08, 6494/08, 6761/08, 7366/09 & 14034/09. Pog" 13 of 35 families. Rule 2(c) defines a shopping complex to mean "a composite area comprising shops established on A-1 or analogous defence land under the management of the Army/Navy/Air Force but would not include Regimental shops created exclusively for militai^ personnel and their Ihmihes." 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 of licence has expired, would be given six months time to vacate in terms of Rule 3(c) failing which the Estate Officer would initiate action to evict them in accordance with law. 22. Under Rule 7 no transfer was permissible except in case of demise of the allottee, in which case it would be transferred to the dcpcndent/lcgal heir for the residual period of the licence. Under Rule 12, 60% ol the shops in each shopping complex were to be reserved in the order ol priority as under: (i) war widows/widows of defence personnel killed while on duty. (ii) disabled soldier (ill) ex-servicemen (iv) spouses/widows of ex-serviccmen. 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 any shops in the complex/military station/cantonment. WP (C) Nos. 9478/07, 9525/07, 9546/07, 9568/07, 6447/08, 6494/08, 6761/08, 7366/09 & 14034/09 P<'0<^ ^ 2010 giving details of shops run by civilians in Delhi Cantomnenl. Photographs of some of. these shops were also enclosed. The basic contention of the Petitioners is that, if there is a shortage of shops lor allotment for those in the waiting list, then these civilians should be asked to vacate. Suhinissions of counsel 26. This Court has heard the submissions of Mr. Rakcsh 1 ikku, C,ol. K. Digambar Singh and Mi". Sanjay Rathi, learned counsel for the Petitioners and Ms. .lyoti Singh, learned counsel for the Respondents. 27. The central plank of the submissions on behalf ol the Petitioners is based on the doctrine of legitimate expectation. It is submitted that the aforementioned notices sent by the Respondents requiring the Petitioners to