Ex.Hony.Capt Balbir Singh Kadian v. UOI &Anr

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 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. 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 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

¶1Whether Reporters of local papers may be allowed to see the judgment'? No

¶2To be refeiTed to the Reporter or not? Yes

¶3Wliether the judgment should be reported Yes in Digest? ■lUDGEMENL^

¶1The 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

¶2The 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.

¶3It 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 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."

¶4According 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 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').

¶5It 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.

¶6Clause 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)."

¶7In 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, 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.

¶8Petitioner 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.

¶9Shobhawati 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, 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.

¶10Shri 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 6447/08,6494/08,6761/08, 7366/09 8,14034/09 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.

¶11The 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.

¶12Lt. 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. 6447/08, 6494/08, 6761/08, 7366/09 « 14034/09 Pago 8 of 35 The Petitioners' case

¶13it 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.

¶14It 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.

¶15At. 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. 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, 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

¶16In 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."

¶17The 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 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.

¶18The 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"

¶19The 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.

¶21The DSC Rules, 2006 make it clear that they do not apply to Regimental shops created exclusively for military personnel and their 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.

¶22Under 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. 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

¶26This 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.

¶27The 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 vacate the shops in question are arbitrary and unreasonable. The rcRisal by the Respondents to renew the Petitioners' licences is stated to be arbitrary and violative of Article 14 of the Constitution when tested on the touchstone of the doctrine of legitimate expectations.

¶28There is both a procedural and substantive component to the right asserted. The procedure followed here is that each of the Petitioners has been given thirty days' advance notice to vacate and hand over vacant possession of the premises. This is exactly what the terms of the licence stipulate. T lowever, it is contended that the Petitioners were not aware when such licence was issued that there would be no renewal after live years and WP (C) Nos. 9478/07, 9525/07, 9546/07, 9563/07,

¶32Appearing for the Respondents Ms. .lyoti Singh, learned eounsel first submits that the cause of action in the present petition admiltedly arises out of and seeks the continuation of a contractual agreement and therefore a writ petition under Article 226 of the Constitution seeking such relief is not maintainable. Secondly, it is submitted that the Petitioners have an efficacious remedy under the PP Act. Thirdly, it is submitted that-the Petitioners have not come with clean hands and are tiying to mislead the Court that they have been allotted "regimental shops" as against siiops in a shopping complex. It is pointed out that policy for allotment makes a clear distinction between 'regimental shops' and shops in a 'shopping complex'. While the former may be said to be allotted by way ol rehabilitation, the shops in a shopping complex are for the families residing in the vicinity where there are no shops at a reasonable distance.

¶33Ms. Singh emphasized that the shops in question were given under licence deeds for tenns of 1 1 months renewable at the discretion of the Station Commander. It is submitted that there is a growing demand from the veiy same categories of ex-servicemen and their family members, who have become eligible later for the allotment ol shops on licence basis. It is claimed that there is a waiting list of such prospective allottees. (liven that the number of shops are limited, and in order to ensure equal treatment, the policy of 30"' April 2007 has been devised. It is pointed out that there are other ex-seiwicemen equally deserving in the queue and cannot possibly be accommodated unless the current occupiers are asked to vacate. It is denied that the non-refusal to renew the licences is either arbitrary or mala lide as ^3 of 35 alleged. It is further denied that any specific unequivocal promise was made or assurance given to any of the allottees that the shops would be allotted for life or in perpetuity.

¶34Statistics giving details of allotment of shops in the shopping complexes have been produced by the Respondents which, show that against 87 applications received in the year 2005 only 4 shops were allotted, against ,37 applications received in the year 2009, 3 shops were allotted, and 26 applications have already been received for 2010, while thcie has been no allotment since there is no vacancy.

¶35With this background of facts, this Court is called upon to examine whether the policy decision announced by the Respondents effective 30 April 2007 is arbitrary or unreasonable and whether the non-rcncwal of the licences in favour of the Petitioners is arbitrary or unreasonable. Preliminary objections as to maintainability

¶36The scope of the jurisdiction of this Court under Article 226 of the Constitution to review a policy decision is limited. The Court normally does not interfere in the matters of policy except where it directly impacts on fundamental rights. The right being asserted here is essentially the right to be treated fairly and reasonably. To that extent the Judicial review of the impugned actions of the Respondents is indeed permissible. Also, the scope of the proceedings under the PP Act is limited to showing why the continued occupation of the shops is not unauthorized and why the occupier should not be asked to pay penal rates during such period of unauthorized occupation. A challenge cannot be raised in proceedings under the hP Act \^' to the validity of any policy change or to the impugned orders on the ground that they are arbitrary and violate Article 14. In other words the remedy under the PP Act is neither an efficacious nor an alternative remedy to the present petitions. The preliminai7 objections of the Respondents as to maintainability of these petitions arc accordingly overruled. Legitimate expectation

¶31Turning to the merits, the first issue to be considered is whether the impugned actions are rendered arbitrary iit that they Irustratc the legitimate expectations, both procedural and substantive, of the I'etitioners thus rendering them arbitrary and unreasonable under Article 147 Our Supreme Court has developed the doctrine of legitimate expectation largely on the basis of the decisions of the courts in Rngland. In Council of Civil Service Unions v. Minister for Civil Service J9S4 All LR 935, it was contended by the Unions that an employee had a legitimate expectation that the Minister would follow the existing practice of consulting the Unions before their membership could be withdrawn. It was explained that the proccduial pait of the expectation was that the appropriate procedure, including an opportunity of being heard would be followed, before the benelit or the advantage was withdrawn. The substantive part was that a representation was made that the benefit of a substantive nature would cither be granted or continued and not substantially varied. It could be a representation to the individual or generally to a class of persons. 1 he Australian High C.ouit in Attorney General for New South Wales v. Quin J990 (64) Aust L.IR 327 apprclicndcd that "to strike down the exercise of adminislrative power "f -JX solely on the ground of avoiding the disappointment of legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism. Moreover the notion of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis foi invalidating the exercise of a power when its exercise otherwise accords with law." The House of Lords in Re Findliiy 19S4 (3) All ER 801 IIL rejected the argument that there was any substantive legitimate expectation that the policy relating to parole for certain category ol prisoneis could not be changed and required prior consultation, ft was held that the most that a convicted prisoner can legitimately expect is that his case be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute. Any other view would entail the conclusion that the unfettered discretion conferred by statute upon the minister can in some cases be restricted so as to hamper, or even to pi event changes of policy."

¶38The above was the stage of development of the law when in Navjyoii Co-operative Group Housing Society v. Union oj India (1992) 4 SCC 477 the Supreme Court adopted the principle to grant relief to the Petitioners in that case. The facts were that the existing list of co-operative societies for allotment of land was altered under a changed policy by reckoning the seniority with reference to the date of approval of the final list by the Registrar. The Supreme Court accepted the argument that affected societies had a legitimate expectation that the past consistent practice would be WP (C) Nos. 3478/07, 9525/07, 9546/07, 9568/07, followed particularly since the Respondents failed to show any overriding public interest.

¶39In Food Corporation of India v. Kamadhenu Cattle Feed Industries

(1993) 1 see 71 the action of the appellant in refusing to accept the Respondent's highest tender for purchase of stocks of damaged food grains was challenged. Tt was submitted that there could not be any subsequent negotiation to improve upon the highest bid and that the person oflering the highest tender had a legitimate expectation that the bid would be accepted. Negativing the plea of the Respondent it was held that, "8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct eniorceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision ruaking process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would other-wise have been the Icgitirrratc expectation of the claimant. A bona frde decision of the public authority reached in this nranner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the r'ulc of law and operates in our legal system in this nranner and to this extent."

¶40The cioclrine was tiirlher developed in Union of India v. Uindiistan Development Corporation (1993) 3 SCC 499 where il was explained in para 28 dial: "The legitimacy of an expectation can be inferred only il it is founded on the sanction of law or custom or an establishetl procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectabie. i-.vei-y sucii legitimate expectation does not by itsell Iruclify into a right and therefore it does not amount to a right in the ct)nventional sense." It was further explained in para 3.2; "The doctrine does not give scope to claim relief straightaway from the administrative authorities as no crystaliscd right as such is involved. The protection of such legitimate expectation does not require the fulfillment of the expectation where an overriding public interest requires otherwise. In other words where a person's legitimate expectation is not fulfilled by taking a particular decision then decision-maker should Justify the denial of such expectation by showing some overrating public interest. Therefore even if substantive protection of such expectation is contemplated that does not grant an absolute right to a particular person. It simply ensures the circumstances in which that expectation may be denied or restricted. A case ol legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfill. The protection is limited to that extent and a judicial review can be within those limits." WP (C) Nos. 917S/07, 9525/07, 9546/07, 9568/07, I'aga 24 oj 35

¶41Alter emphasising that the burden was on the person wlio bases his claim on the doctrine of legitimate expectation to satisly that theie has been a representation or a past practice that has given rise to such expectation, it must be shown that the decision of the authority was "arbitrary, unreasonable and not taken in public interest". It was observed; "11 it is a question of policy, even by way of change ol old policy, the couits cannot interfere with the decision". Hven if the court was satislied that a case o( legitimate expectation was made out, it can grant reliel only wheie the failure to give an opportunity of hearing prior to such decision has resulted in failure of justice.

¶42In Madras CAtyj Wine Merchants' Association v. Slate ofT.N. (J')94) 5 see 509 the licence holders invoked past practice to claim a legitimate expectation of renewal of bar licences under the 1 amil Nadu Prohibition Act, 1937 read with the Tamil Nadu (Vending in liar) Rules 1992. Before the bar licencees could apply for renewal, a policy decision was taken not to renew their licences. It was held that even under the earlier policy, a licencc under the Bar Rules was only for a period ol one year and renewal was based on payment of 15% more than the "privilege amount at which the sale of the privilege was confirmed the previous year". Renewal for the third year was on payment of 10% more than the privilege amount. It was held that "if there is a change in policy or in public interest the position is altered by a rule or legislation, no question of legitimate expectation would arise." It was observed that the expectation that the licence would be renewed at best was at best "a hope". I'agc. 25 of 35

¶43The law regarding legitimate expectation was discussed in great detail thereafter in Punjab Communications v. Union oj India (1999) 4 SCC

¶727The facts were that the Asian I^evelopment r3ank ('ADB') agreed to lend to the Govemment of India US $1 13 million for pioviding digital wireless telecom facility to 36,000 identified villages in hastcrn IJ.P. Ihe appellant and another company were short-listed after examination ol the offers of several Indian and foreign companies. However, a high level committee thereafter disqualified the appellant to enable the calling of fresh tenders on the basis of the analog system. The Union of India took a policy decision not to avail the ADB loan. Ihe previous tendeis weie accoidingly cancelled. The appellant invoked legitimate expectation of a substantive nature to urge that that even if the govemment was funding the project on its own, the policy could not be changed and the original tender notification could not be abandoned. Negativing these arguments, it was held that: "change in policy can defeat a substantive legitimate expectation if it can be justified on Wednesbiuy reasonableness (^Associated Provincial Pictures Houses Ltd. v. Wednesbury Corp fl948J 1 KB 223 CA). We have noticed that in Hindustan Development Corporation case, also it was laid down that the decision makei has the choice in the balancing of the pros and cons relevant to the change in policy. It is, therefore, clear that the choice of the policy is for the decision-maker and not for the Court, The legitimate substantive expectation merely permits the Court to find out if the change in policy, which is the cause for defeating the legitimate expectation is imational or perverse or one which no reasonable person could have made".

¶44'flic above law has been reiterated in a large number of cases in dilforent contexts. The most recent Judgment being .lasbir Singh Clibabra WP (C) Nos. 9478/07, 9S2S/07, 9546/07, 9568/07, V. Slate of Punjab 2010 (2) SCALE 754, where the plea of legitimate expectation of being allotted residential plots only on the basis of past practice of the Punjab Small fndustries and Export Corporation Ltd. was negatived by the Supreme Court.

¶45To complete this narration, it must be noticed that the lingiish courts continue to redraw the contours of the doctrine. Laws IJ in R (on the application of Bhatt Murphy (a firm) v. Independent Assessor I200HJ EWCA Civ 755 pointed out the difficulties in drawing the line between substantive legitimate expectation and ordinary judicial review of a new policy. He explained that while the latter might require application of the traditional Wednesbuiy standard of review, substantive legitimate expectation would require a more involved consideration. He observed: "ft seems to me, however, that on the face of it the existence of a promise or practice of present and future substantive policy serves as a somewhat fragile boundary by which to set limits to substantive legitimate expectations. Once set in place, every policy of a public authority, not subject to a stated terminal date or terminating event, may no doubt be expected to continue in effect until rational grounds for its cessation arise. A promise ol" its continuance, if it points to no particular date or future event to mark the end of the policy, represents little more than this ordinary expectation. And nothing is added by referring to a practice of the policy in operation over time." (emphasis supplied) I.aws L.I proceeded to observe: "Authority shows that where a substantive expectation is to run the promise or practice which is its genesis is not merely a rage 27 of 35 i retleclion of the ordinary fact (as 1 have put it) that a policy with no terminal date or terminating event will continue in effect until rational grounds for its cessation arise. Rather it must eoiistitute a spccillc iindertaldng, directed at a particular individual or group, by which the relevant policy s continuance is assured." (emphasis supplied)

¶46The upshot of the above discussion, particularly in the realm of. policy making, is that the burden is on the Petitioners who claim legitimate expectation to show that there was a specific representation made that their licences would be renewed for an indefinite period notwithstanding (dausc 17 of the earlier policy as this was the standard practice; that there was a legitimate expectation that the change in the policy restricting the maximiini period to five years would be only after giving them an opportunity of being heard; that the changed policy has frustrated the subsfantive legitimate expectation thus rendering the decision not to renew the licences arbitrary and unreasonable.

¶47This Court finds that the Petitioners have not been able to, in the first place, show that there is any specific representation either to any of them or lo all of them generally that their licences would stand automatically renewed year alter year by the Respondents. The mere fact that as a matter of practice the licences were renewed does not constitute the specific representation by the Respondents to each of them that indeed their licences would be renewed. The renewal, it must be recalled, was only for a year at a time and was in accordance with the prevailing policy and Clause 17. In other words, the only 'representation' or 'assurance' to each of them was that at the most the licence would be renewed for one more year at tlie WP (Cj Nos. 9478/07, 9525/07, 9546/07, 9568/07, >'age 28 of 35 discretion of the Respondent. No challenge was laid to Clause 17 ol the SOP date lO"' August 2001 which left it to the discretion of the iiespondents to renew the licence at the end of a year. I he reasons (oi the change in the policy as explained by the i^cspondents appear to this Court to constitute sufficient justification for .such change, 'fhe scope of Judicial review of such policy change is indeed limited. Unless it is shown to be. not informed by any reasonable criterion or not being in public interest, the Court cannot and should not interfere. Given the fact that the number oi shopping complexes is unlikely to increase, and the waiting list of applicants is a growing one, the concern of the Respondents that those ex-servicemen waiting in the expectation of allotment of a shop should also be accounted for, cannot be said to be an unreasonable one. lloth groups of ex-servicemen, i.e, the present allottees and those awaiting allotment are from the same 'catchment'. The demand for shops far exceeds the supply, 'fherc has to be a balancing of these two sets of'expectations'. If the Respondents take a call and decide to change the policy so that the chances ol those in the queue waiting for allotment of shops improves, the Court cannot be expected to judicially review such policy. As explained in Mudriis City kVi/ie Merchants', no question of legitimate expectation would arise if there is a change in policy or the position is altered by a rule or legislation.

¶48The'- Petitioners have not questioned the USC Rules 2006 or the Guidelines issued in September 2008. It appears that each ol these Petitioners has been a beneficiary of renewal of licence several times over, fach of them has been granted renewal for more than three years which is the maximum period of licence envisaged under Rule 1.1 oi the DSC Rules. It has been made clear in Clause 8 of the September 2008 Guidelines that, the DSC Rules would apply to the shopping complexes covered by 3.42.1 of SOA 1983. Consequently, even procedurally, none of the Petitioner can harbour a legitimate expectation of being consulted before a change in the policy.

¶49For the aforementioned reasons, this Court negatives the plea that the impugned changed policy as announced by the SOP dated 13''' April 2007 fmstrates any legitimate expectation, either substantive or procedural, of the Petitioners and is therefore rendered arbitrary or unreasonable. Impugned orders neither discriminatory nor arbitrary

¶50The SOA 1983, tire DSC Rules 2006 and the Guidelines date 4"' September 2008 leave no manner of doubt that Regimental shops (unit ' shops) are distinct and different than shops in shopping complexes and both sets of shops are not governed by the same conditions. The plea of the Petitioners that there is any discrimination on this score does not merit acceptance. The classification of such shops into two distinct categories appears to be based on rational criteria subserving different objects. Regimental, shops, are essentially for providing daily needs of troops. Shopping complexes seiwe the civilian population as well. '1 he fact that the C , DSC Rules 2006 provide a 40% quota for civilians in shopping complexes (Rule 12), which Rule has not been challenged, is a pointer to the fact that the shops in shopping complexes are not meant exclusively for ex-sei-vicemen. The 60% quota for the ex-servicemen is indeed a welfare 7*-. of sliops in shopping complexes herealler winhd strictly be in accoi'dance with the DSC: Rules 2006 and the other relevant instruments which have been refeiTcd to earlier, as amended from time to time.

¶58For all the above mentioned reasons and subject to the directions issued, the writ petitions are dismissed. The interim orders stand vaeated and the pending applications stand disposed ol. S. IMURALIDIIAR, .1 JULY 12, 2010 rk 6447/08, 6494/08, 6761/08, 7366/09 S 14034/09 ''agp 35 of 35

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