Ex. Sep Virender Singh v. Union of India & Ors

ORDER

12.07.2010 In terms of the common judgment rendered today in Writ Petition (Civil) 9478/2007 titled "Wing Commander M.P. Set/il (Retd.) & Ors v. Union of I,,dia & Another" along with eight connected writ petitions, this writ petition is dismissed with no orders as to costs. Application also stands S dismissed. A copy of the judgment passed in W.P. (C) No. 9478 of 2007 be placed forthwith on the file. S. MURALIDHAR, J JULY 12, 2010 rk 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 TB E 111GB COURT OF DELHi Al' N R\'V I)FI 1! I. Reserved on: May 31, 20 0 Decision on: iuiy 12, 2010 Wiul' 1.ETi'I'lON (Ci VIL) 9478/2007 & C.M AI1I I 7858/07

WING COMMAN.DI R M.P. SUTHI (.R Eli ).) & ORS . Pctflioners 'I'hrougli: Mr. .Rakcsh Iiki<o

Mr. Prakash (]autam, Advocate vci.sus UN ION OF INTJI.A k ANR . Respondents Through: Ms. Jyotl Si ngh, Ad vocaic WRI1' I1LIii'ION (CIVIL) 9525/2007 & CM AII'I 17931/07 . .. FX. N.K. 1UUS11AN KUMAR & ORS .... Petitioners Ihrough: (To!. K. Digambar Singh, Advocate versus JNION OF INDIA & ANR Rcspondcrits through: Ms. Jyoti Singh, Advocate . 17954/07

WRI1' PETITION (CIVIl,) 9546/2007 & CM APVL (TIJANDRO DLVI . ....Petitioner Hirouigh: Cci. K. J.)igambar Siiigh, Ad\!ocatc vel.sus UN ION OF iNDiA & ANT . .....Respondents through: Ms. .Jyoti Singh, Advocate WilE PE'FITION (('IVIl ) 9568/2007 & (TM A PP .1 1 7981/07 1 ..HONY. CAPT 13AL131.R. SINGIl KAI)IAN ....PctitionL. . Through: Cot. K. Digar.nbar Siogli, Advocate \'ersus . tJN ION OF INDJ.A & ANR Respnndents hi oLiCh Ms lyoti Sineli Advoc 1k WRI1 ...'ETI'FION (CIVIL) 6447/2008 & CM. API9 12315/08 .1 A U 1)1 S H P RA SAL) . .... Peti toner through: Cot. K. Di.gambar Singh , Advocate WI' (C) Abs. 9478107, 9525107, 9546107, .9568107, 6447108, 64.94108, 6761109, 7366109 & 14034109 Pog .1 of 35 versus UNiON OF iNDiA & ANR ..... ResoniIents Thi -ough: Ms. Jyoli Singh, Aftvocaic WRiT PETITiON (CIVIL) 6494/2008 & CM APPL 12381/08 VIJ1N0IR. SIN6I-1 .... Pctiiioncr through: Cot. K. I )igambar S.ingh, Advocate VCFSL1S UNION OF INDIA & ANR. .... Respondents Ihrough : Ms. .Jyoti Si ngh, Advocate WRIT PIi'.ITION (CIVIL) 6761/2008 & CM APPI I 300/08 FX. NONY. SUI3 MAJ RAM PAL & ANR .... Pctitioncrs Ihrough : Mr. Rakesh Tikku with Mr. Prakash Gautam, Advocate versus UNION OF INDIA & ANR .... Respondeols through: Ms. Mancesha Dhir AT Ms;Preel.i Dalat and Mr. K.P.S. Kohh, Advocate WIUl' PETI'FION (CIvIL) 7366/2009 & CM AP1L 321 0/09 1) t VAY ANTI . .... PLII OonCi Ihrough: Cot. K. Digambar Sngh, /\oeate versus . . . UN ION OF INDiA & ANR Respondents through: Ms. Jyoti Singh, Advocate And WRfl .' PETITION (CiVIL) 14034/2009 & CM APP1, I 6)83/09 LX. SEP VIRENDER SINGI! . .... Petitionei: through: Cot. K. Digan bar Singh, ,'\cv:ute versus UNiON OF iNDIA & AN R Respondents Through: Ms. .Jyoti Singh, Advocate .. CORAM: JUSTICE S. MURAL11)11AR WI' (C) Nos. 9478107, 9525107,9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 . Paqo 2 oJ35 WhAer Repoi Ici s of local fDclpcl S may be allowed to see the judgment? No To he refelTed to the Reporter or not? Yc Whether the judgment should be reported Yes in Digest? .JU I)G EM ENJ'F I, The non-rencv'al of the liccnees in respect of the shops located in (lie shopping complex Ui'idei' the control of the l\niistry of l)efèricc, Union or India (Respondent No. I) in flivour of the Petitioncrs pursuant to a policy decision made eFFective lixm 301h April 2007, is the subject inatter of the . challenge in this batch of writ petitions. . /?a.'ki'ro,iiii/ ti:ct,c .2. The Petitioners belong to categories of ex-servicemen (and their Ibmnily members) who (lied either in war and/or while being in service amid/or 'having suffered battle casualties and/or cischarge from the armed forces and/or those armed personnel who retire alter rendering full service. IS case ol the Pctitioncrs is that among various measures adopted by the l.)irccioraie General of Resettlement ('DGR') was i:hc allocation of the shops in the ai'eas manned and managed by the Station Commander in vanous localities in Delhi such as S.J. Marg, l)elhi Cantt. Arjun Vihar, l)baula IKuan, Shankar Vihar etc.

¶3Ii is stated that with a view to streamline the a! lolnienis niade of the above shops in the shopping complexes, the Respondents have been isso rig guidelines From time In lime known as Standing Operating Procei.ttire ('SOP'). In terms n!' Clause 6 of the SOP issmed on 0' 1, August 2001, as WP (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 .. , . I'oqi 3 of 35 • v1 and when any of the shops fill vacant the Station Conn -riander at Station • I Ieadqnarters was expected to give wide publicity through the I)C R in local ne\.vspapers. Ihe allotment of shops was to be done on yearly basis. Clause 11 of the SOP (i2itCd I 0 AUgL1S1 2001 provided For priorities in the allotment of shops. Various parameters have been laid down hr allotment. On mecong such parameters a perSOn was given a licence (or a period of I I months subjcct to renewal. Clause 17 of the SOP (fated 101 August 2001 reads as under: ''17. Renewal of licence deed: Renewal of licence deed will he done on the recommendation of residential assoeiations which v41l be obtained We months in advance from the date of cxpiry of licence deed by Dl )A & QMG, Station. FIQ Delhi Cantt if the recommendations are in favour of' alloitec, then tlie Station Commander may renew the licence deed For the However, licence deed be suhseqoent year. the nuty terminated at any time by the Station Coniinandcr at his discretion." LI. According to the Petit loners, till the policy of I 3 April 2007 which is challenged in this petition was announced, as a matter of' practice. tlìc licences were being renewed from lime to time. Many of the Petitioners have been occupying the shops in their possession for over nine years. In fct, the Petitioners including Wing Commander M P. Setli i and two others in Arjun Vihar have been in occupaUon of their respective shops 1'or over 21 years. 11 is staled that in terms of, Clnuse 17 of the SOt> only where the • • Residents Association did not f2iVOLir any pai't.icLilar at lonec of a shop. was, • the renfwal withheld. in terms of Clause 28 o ('the SO]> a de.lhi.i Iting a I bit cc WI' (C) Nos 9478107, 9525107, 9546107, 9568107, . 6447109, 6494108, 6761108, 7366109 & 14034103 I'age 4 of 3, has to be ILl Li ied to the I state 0 IILC1 IOi the pui P° ol miii itmon o eviction proceedings under the Public Premises ( fiction and Unauthorized Occupants) Act, 1971 ('PP Act'). It is stated that 1992 onwards many o I' the Pctitioncrs were allotted Ilicil respective shops and licence deeds were also executed. 'l'hc licence deeds were last extended in the year 2000 and were to expire in the latter part o ... 2007. It is stated that the Petitioners had legitimate expectation dial the licence (leeds may indeed he renewed. I-lowever, on I 31 April 2007 the new pot icy e hctive from 30 hi April 2007 was issued. Clai.ise 18 of t:hc new policy reads as cinder: • . ''18. Renewal of licence deed: Renewal oF licence deed Will he done on the reconiniendat ion of' resident al associations, which will be obtained three months in ' advance from the date nt expiry of licence deed by A QMG, Station FIend Quarter, Delhi Canti. I F de recommendations are in favour of' allottee, then the Station Commander may. renew the licence iieed for the subsequent year. I -I owever, the licence deed nay be terminated at any time by the Station Commander at his discretion. No extension beyond live years will be given under ally circumstance. The same pei'son can apply aler a gap OF imn mum three years of , clear break (not running in any Army Colony o( NCR )" In terms of the above Clause 18, the right to get the I ieenccs rencved . ironiediately on the expiry of Ove years has been wmihdrawn: the aftottees are expected 10 apply again altem' a iTiinhii cimn break o.l three years. In terms WP (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 /'age .5 of 35 of , the revised policy, the Respondents issuer letters to ilie PetitionerS declining renewal of licencgs. The copies ol letters reqwn ng the Pti liners to \'acal e the shops under their occupation have been enclosed with the petition.

¶8Petitioner Nos. 1, 2 and 4 to 9 jWlng Commander M.P. Sethi (Reid.), lx. IWO A.S. Chadha, Rx. ONR Narender Dcv, Ex. Naik tinni K.rishnanfP. I:x . Sepoy Dharam Chand, Soil. Chandro Devi, lx . Subedar R K. Pawar, Snit. Vimla Dcvij in W.P. (C) 9478 of 2007; Petitioner Nos. 1, 2, 5, 9, .12, 14, 1,5 and 17 [Ex. N.K. Knshan Kumar, J.,t. (.R.ctd.) Colonel Rameshwar, Mrs. Veena Muldiyar, Smt. Nai -.angi Dcvi, Ex. Sigrnn lsh\var Singh, I tony. Capt.. (Reid.) I )hanraj Sharma, Mrs. Shakuntla I )evi and Smi . hklwanj in W.P. (C) 9525 ot 2007; Snit. Chandro Dcvi, 'vi Ic of late N. K. I loslnyar. Singh, tIm Petitioner in W.P. (C) 9546 ot 2007; I x. I lony, CEIpl ,.lalliir Singh, the Petitioner in W.P. (C) 9568 ot 2007 were served vacation notices dated 231 November 2007 requiring the said Petitioners to vacate the shops in their possession within one month. Ilowever, the Coio -t is in in -med by the Respondents that Chandro i)evi, Petitioner No. 7 ir W. P. (C) 9478 of 2007 has already vacated the shop in tier possession. Q. Shobbawali Dcvi, the wife of Rx. I boy Capfamn Suipal Yadav, Petitioner No. .1 I ill W.P. (C) 9478 of 2007 made a rCpresentat ion to lime Respondents requesting them to ti -ansfer the licence to the shop allotted to her deceased husband to tier. On 31i october 2007, the Respondents in reply to iii is representation dated I 7th August 2007 stated that there was no policy to W1' (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 1'age 6 of 3.', I • transler the allotted shop from the original allottee to the spoi.ise in case of • • .. the to . ntier , s death. I he licence for the shop allotted to her deceased husband had already expired on 1 August 2007. Flow\'er, on • compassionate grounds she was allowed to continue till 3 1 I )cccmbcr 2007. This' stand was reiterated by the Respondents by a communication • dated 311 Novembcr 2007 in reply to the Pctitioncr's representation (kited 17hh1 .N OVeiTibe r 2007.

¶10$hri Magan I al, Petitioner No. 10 in W.P. (C) 9478 o 2007 whsc. licence expired on 27 October 2007 and Shri IIavman . Singh, Petitioner No. 1 8 in W.P. (C) 9525 of 2007 whose licence expired or 2511 November 2007 received vacation notices dated 27th November 2007 requiring them to vacate the shops in their respective possession within one nontli. Shri M :P. Sinth, Petitioner No. 3 in W.P. (C) 9478 of 2007 received a similar notice on 28111 November 2007 ader his licence expired on 27111 No\;eniber 2007. The licence of Shri .lagdish Pi'asacl, the Petitioner in W. P. ((.ivil) 6447 of 2008 expired oil 1 41 August 2007. He was served a vacation iiolice by the Respondents ori 21 s' May 2008 asking him to vacate the shop in his possession by25" June 2008. Simi lady, the licence of Shn Vrcnden Siogh. the Petitioner in WI'. (C) 6494 of 2008 expired on J 9111 January 2008. He was served a vacation notice dated 311 May 2008 asking him to vacate the shop in his possessioii by 25' .June 2008. However, the Respondents in formed the Court that the Petitioner in W.P. (C) 6/194 of 2008 has already vacated the shop. The licence ol Shri Ranipal, Petitioner No. 1 in W. P. (C) 6761 of 200$ expired on 20111 April 2008 and of Slin •Karneshwar Prasad WI' (C) Nos. 9478107, 9525107, 9546107, 9568/07, 6447108, 6494108, 6761108, 7366109 & 14034109 Singli, Petitioner No. 2 in W.P. (C) 676.! oi 2008 in 28 Fehrwiry 2008. hey \vcr e served vacation notices on 8" May and 2411 April 2008, respectively, requiring them to vacate the sbop in their poSssioll by 16l, September 2008. Snit. Devyanti Dcvi, the PetitiOner in W.P. (C) 7366 of 2008 was issued a vacation notice on 15" .lanuary 2009 when her licence had expired on 6111 July 2008. She was required to vacate the shop b y 7ie February 2009. . . The licenre of Shri Virender Singh, the Petitioner in W. P. (C) 4031 of 2009 expired on 31 sE .JanLiary 2007. However, by a lcttee dated 2 C' December 2006 the Respondents had cancelled his iiccncc unde.r para is ot the licence deed due to subletting of the shop. By a letter dated 30111 November 2007 he was asked to vacate the shop within 30 days. .

Consequently, the Respondents served an eviction notice dated 18 A iIiust 2008 on the Petitioner. 1 .t. Col. (Rctd.) B.M. Kapoor, Petitioner No. 4 in W.P. (C) 9525 or 2007 was served a vacation notice on 19" December 2007 while his licence had expired on 7' .luly 2007. Similarly, Lt. Col. (Ret(L) 1). K. iebnath, Petitioner NC). I in W.P. (C) 9525 or 2007 was served a vacation .rotice (later! 10' August 2007 when his licence expired on 24'" March 2008, Petitioner NOS. 3, 6, 7, 11, 13 and 16 in W.P. (C) 9525 or 2007 have also I been served with similar vacation notices. \.vblch are imptgned, alter expiry of their I leer ces. WP (C) Nos. 9478107, 9525/07, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 Pags 8 of.3.S The Petitioners ' case I 3. It is suhmittcd by the Petitioners that the very purpose ol I )G P. at locating shops in lavour of the Petitioners was to enable theni to have some i-eiSOflIble means ci subsistence. It is stated that continued allotment was a rule and non-renewal an txcep1ion. Continued al lotrnent auloinatieally followed 1! them were no negative rep()rts Ironi the .rcsid'i,i.s associations. It is slated that prinian ly the Petitioners are selling grocery items, eatablcs, vcgetables, limited items of elcctrieal goods etc. in their shops. l'hese are made avai able to the residents oC ihe local i ties where dekaice shopping complexes are located, at reasonable rates Ihe basic idei is to make available things ni day-today use to the residents of these areas near their door steps. The very purpose ci allocating these shops to various'.., allotices was to enable the servicemen and their fbmily members to earn ii decent living. .. .

¶14It is slated that the new policy made etThctivc ftom 30' April 2007 gives a complete go-by to this philosophy. II introduced a break in the continuity o 1 their rehabilitation process with the Respondents pmessnnsing the Petitioners to vacate the shops. I 5. At the initial date ol hearing i.e. on 20'" l)eceniher 2007, this Court Passed the thllowing order: "Issue notice. Ms. Jyoti Singh, Advocate aceept.s not ice on behalf ol Respondents. Counter aitidavit shall he tiled within two weeks. Retoiodcm, ii aiiy. may be tiled within two weeks thereaite.r. WI' (C) Noc. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 736610.9 & 14034/0.9 IC i ASt 011 8 I1' ebi LI ii y 200 CM, APPL 1785012007 (stay) I I-. 3 i- ... I . .. .. I...... I I IOVL U011,11 k_LI ULL II I II did IdI 31 dLIJIiI. I Id dill)! 1(3) Id, grievance is that they were allotted the premises by the Respondents as a measure of rehabthtation, on account of their being exserviccman or being wat-widows I is contended that sudden change o:i policy has gravely and irreparably aIiccted them. I ,earned counsel tor the Pci itiOnCLS relied upon the dOcuiTicflts. ihcy suggest that Respondents took a conscious decision thai the alloliucuc in case of, rehabilitation was understood as not to the subject of later cancellatitn. Nowever ; learned counsel (or die Respondents has disputed the applicability of the documents. According to her, the letter pertamed to allotment of premises in Regimental Areas. It is not disputed that the allotn.ient of, these spaces were gi veil as a meastrc of rehabilitation to the Petitioners. The objective of the new Scheme, it is emphasized, is to ensure availability oI. these premises to as many beneficiaries as possihle htving regard to the limited resources available with the Rirce. It is contended that a large number of applications were tiled and arc pending consideration. While the discretion of pLiblicaLithority to allot the rernises withui its possession, control and o\.vnersh I Ii and the liaianieters (or such treatment can never be denied yet the question here appears to be one ol balancing = competitive disadvantages, as it were. The debate here is whether having allotted the lciIs, as a measure of rehabilitation, the l..espondents can, alfer sonic t I rue reverse that process and insist that such al lottees who admittedly were eligible for the beneflt shoçild return the premises and wait for three more yeais to claim allotment for the same and other such spaces. 1 wii of the opinion that while the Respondents' power to lame a policy Wa (C) Nos. 9478107, 9525107, 9546107, 9568107, . 6447/08, 6494108, 6761108, 7366109 & 14034109 I'oqe 10 of 35 Ciniiot be questioned yet the considerations which the authorily has to keep in this regard, ic. the level of

prosperity or income attained by the al lottees who were given premises earlier, the SuFfiCiency of such inc:omC to make them tide order the difficult situation and other objective 1ictors can certainly he gone into undef Article 226 of the Constitution. In view of the above, the Respondents arc hereby • restrained from taking ally steps to dispossess the Petitioner during the pendcncy oF tb is writ pet lion. Case of the Respondents In the counter allidavit tiled in W. P. (C) 95'16 oF 2007, which is more or less siri.ular to the counter a Ificlavit Filed in other petit ions, II ic lcspondents hav categorically stated that "the (lonhinarit purpose of these • sitopping complex/centres is the welfhre of. the servicemen and their thrill ics residing in the vicinity thetco I and NOT reseti lenient of a \ar widow, a widow, battle casualty find ex-servicemen which is only ineil lary • . rather than allot shop to outsiders. It may be fhrdher re-emphasised thai the shcs in the shopping coilhplexes/sl pping centres arc tl lotted on contractual basis on the normal. rental basis arid no poinise has been held out to the allottees that their licence will he necessarily renewed/extended in , . . The rationale for changing the policy as set oLit in the SOP dated 10" . . August 2001 is attributed to the requests made by a large nLirnbcr of war wido\vs, widows, battle casualties and ex-sei'vieernen appi'oachine, the Respondents for allotment of shops in shopping complexes/shopping .. . cent res. It is slated that in a period oF livc niontlis, 47 such aippl eat ions - WI) (C) Nos. 9478107, 9525107, 9546707, 9568/07, 6447106, 64.94108, 6761108, 7366109& 14034109 11 0q' 1.1 of 35 c were received but none of them could he ede -Itined since the existit allottees were continuing since inception and the number ol shops available • - was Ii rutted. 'l'he reasons lot- he change in the policy as I ntrodimeed ii the. SOP datcd 131 April 2007 are stated to be the fbI lowing: •

(a) assisting those families registered in thc waiting list for allotment • of shops. •

(Ii) illegal uh-letting of shops by the existing al lottees whose licences have been kept renewed For a long durat ion. the fbct that there is no increase in the number (11 sh'oppuig - eoriplexcs even whilc the demand For allotnierit keeps increasing. since the allotment of shops is a wel 1bre measure, it i necessary to rotate the allocation SO that a larger number of ex-serviccnicn are benclitted.

¶18l'he Respondents claim that the changed policy was made knwn to all • 1 icencccs including the Petitioners in June 2007. In time additional a llidav i tiled on 2211 February 2010, the Respondents have drawn a distinction - between unit shops (Regimental Shops) aiid shops in siioppiui - cenlres/complexes which are located in the "i nai ii married COuiililCX'. Fnelosed with the affidavit is a copy of the 'Scales of Accommodation 1983 ('SOA 1983'). Regimental shops are authorized by pari 341 of the . SOA 11 983 and provide for trades such as tailor, boot maker (I :JIR), cycle - repair

and grocer (unit baniya and wet canteen). These no it shops "are meant purely for troops and their Families as a welfare activity and are located in unit lows wherein civil tan population has h nit ted or no access' - w (C) Nos 9478107, 9525107, 9546107, 9568107, 6447108, 6494/08, 6761/08, 7366/09 & 14034/09

- I'age 12 of 3.5 • . 'l'Iie additioal alliclavil proceeds to state that shops in shopping centres/complexes as (leSCribed ip pam 3.42. o! SOA 1983 and arc located at mu itary stations "where no civil shopping complex exists within It reasonable distance from the main rnari -ied complex. The trades can be selccted out of categories like aerated water, barber, book and stalioOary,. car and scooter repair, cloth, chemist and druggist, dry cleinci-, cycle, gas, 'turn lure, restaurant, milk dairy, bakery, vcgctahle mci ii'uits itod oi.licr trades which meet the requirements oi the troops and their koni lies.'' It is staled that these shops have a clientele of the dependent civil an population also. The Respondents point out that t;liere aic two sub-categories ol' shops in shopping complexes/centres. One category is covered by pai 3.42. I ol" SOA I 983 which are created on defence land 'from guvernmert hinds. 'i'he other category is shops created on defence lands using. noi'i public funds, On I /11 September 2008, the Ministry of Defunce ('Mol)') Govcrnmcni ol India, brought out 'Guidelines for running shopping centres/complexes and unit shops'. Para 8(b) of' the guidelines states that the I )eE'enec Shoppiumui. Centres/Complexes (Maintenance and Adn'onistrdtmon) Rules, 2006 ('1 )SC Rules 2006') framed by the Mof) and issued on IT 11 June 2006 would he applicable to both categories of shopping complexes, i.e., those created with government funds and those with non public Funds. • '[he DSC Rules, 2006 make it clear that they do r1ot apply to Regitnenlal shops created exclusively for military personnel and heir WI' (C) No.s. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 . I'ag' .13 of 3.' P f '.:.. • . " • ', thinihes. Rule 2(c) deflnes a shopping complex 10 mean "a Colnposite area comprising shops established oil A-I or analugops (iclence land order the managcmcnt of the Army/Navy/Air lorce but \.votiid not include Regulenlal shops created exeRisively for inihtaiy peisoiinel and their fanniies." Under Rule 3(a) the existing alloltees were allowed to conliiiue • dli the expiry of thetr licence period aid such of those in unauthorized occupal;ion of thc shops, ic., where the periud o.F licence has expired, would • be given six moths time to vacate in terms uI Rule 3(c) holing which the I •:ine Officer wol.dd mitiate action to evict, them in accordance with law.

¶22Under Rule 7 no transfer was permissible except. in case ol (.lenuise (11 l.hc al 011cc, in which case it would be translerred to Ilie dependent/legal heir let the residual 1eriod of the licence. Under Rule 12, 60% ol' tile shops , S •. • , in each shqpping complex were to be ieseived in the order of priority as under: war widows/widows of defence peisoilnel killed while on duly. (liSabI ed Si) ldier ex-servicemen spouses/widows ol ex-serviccmcn. Ille reinaililg dO% were to he allotted to tile tollowing: (i ) Government agencies including 110111 ic sector iindci -lakinps and

(ii) civilians whose spouse or dependent hillli ly member do not own any shops in the complex/military stalion/cantunillenl. . WP (C) Nas. 9478107, 9525107, 9546107, 9568107, • • 6447108, 6494108, 6761108, 7366109& 14034109 I'oq'.14oJ35 • Any onal k)lted shops in the 60% c1l.lota Were to be ColiSidered lbr Nein the eivIian CategOi-y. • tjnder Rule 13, allotment was to be given under licence for a period ol three years. Further allotmcnt was to be made "strictly under the Rules • framed herein." Under Rule 18, on termination of ilie licerice, I the shops were not vaeaterl, action was to be initiated, under the PP Act. binder Rule 25(a) any matte! not covered by the DSC 2006 would be decided by the Mol) in consultation with the Director General of the I )e lbncc I siales and the I leadquar ers ni tIic Army/Navy/A i.r l'oree. A further additional affidavit was filed on 27 April 2010 c Ian tyiu that the shops in Army I lospital, Raj Rifle Centre, I 3ase I lospi tLd, 'Pal lavi Shopping Complex, Tam-us CSD Canteen, Army 1 Ieadquarters and Parade Gi-ound are Regimental shops to be administered by their respective commandants. These were dilTererit horn . Station slioppm'; eon'ip!exes • . where tIre shops allotted to the Petitioners Were located. Statist ies oF tie • . applications received for al lotnient ol shops and the actual allotilicrits made From 2005 till date have been set out to show that only 0% of the app! icants have been a! lotted due to LinavadLilhIlity ut shops, the last aft cmvii was filed in response to new [acts stated in the Reioinder by the Petitioners on 30 'h March 2009 listing out some of the shops occupied by civihans. 23, Ihe Petitioners also f1ed an additional 'rejoinder a fl'idavi t on I 2h May • - • WP (C) Nos. 9478107, 9525/07, 9546707, 9568107, • ' 6447108, 6494/08, 6761108, 7366109 & 14034109 Page .1 of 33 2010 giving , details ol ShopS run by civilians in I )clhi Cahtonmeni. Photographs of some of these shops were also enclosed. the basic coi'ilcntioi'i ol the Peii tioners is that, if there is a shorlaec of shops r allotment (or those in the waiting list, then these clvi hans should be LiSked to vacate. S,,I,,,ii.vsio,is of counsel 26 I hi, ( out t has hcai ri the subniissions ol Mr. R ikcsh Ii kku ( ol K. Digambar Singh and Mr. Sanjay Ratio, learned counsel hir die Pciil ioners and Ms. .Iyoti Singh, learned counsel (or the Respondents.

¶27the central plahk of the submissions ui'i behalf of the Petitioners is based on the doctrine of legitipiate expectation. It is submitted that the aforementioned notices seit by the Respondents requiring the Petitioners to vacate the shops in question are arbitrary and unreasonable. The rcfLisll by i:hc Respondents to renew the l'ctitioners' liccnces is stated to be arbitrary and vilative ol' Article 14 of the Constitution when tested on the touchstone of the doctrine of legitimate expectations.

¶29There is both a procedural and substantive component to ' die riglit, assertvd. ihe procedure hollowed here is that cacti ot the i'etit oners has been given thirty days' advance notice to vacate and hand ove! vacant 05SCS5I01i ol the premises. This is exactly what the terms ol the licence stipulate. However, it is coniended that the Petitioners were not aware \Vhefl such licence was issued that there would he no i -encwal after Ove ycars and WP (C) No.c. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034/09 Paqo 16 of 35 I • • there0)re such requirement can only apply 10 We whose liciices Were • .• issued for the lirst lime alter the new Policy doled 1311 April 2007 conic into force i.e. 30Ih April 2007. In othei-words a conditionality, oF nou-icucwiil oiler fivc yearS, cannot be applied retrospectively to the Pet itionci s. The pi'occdure followed by the Respondents is attacked for its unfairness. It is ubmittcd by the Petitionei-s that had they known in advance that such a live-year i-ole wol4ld be applicd then they could have made aitci -nat ye arrangements Well according to them requires some time. 29, l'lic ductrinc Of legitimate expectation is i n\'okcc.l as rcgards the • subst:antive eor tent of the policy it is contended that. notwithstanding thcsc were I icences for a year at a time, as a matter af practice the I iccnccs were being rcnewed year after year by followuig the pre-mTended policy as expressed in Clause 17 of the SOP dated 10111 August 2001. In other words, there was a legitimate expectation even this time around that TO licences would be renewed. The frustration of this lcgiti male expectation is said to attract Aiticic 14. • • - 30 7 Independent of the ground based on lcgiti nate expectit on, it is • submitted that the policy to restrict the initial liceree period to fi\;e years, after the licence has already been renewed in terms of the existing policy • • . i.e. the SOP catcd h August 2001, is arbitrary since it runs contrary to the ver object of f'i(1ing rehabilitation to th cx-scrviccmcn and their I i-elatives lio having set up shops, cannot be expected to suddenly \.vind up their business and move on. Given the restrictions as to the price at which WP (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 , !'aqe 17 of 3' they can sell their col -ilmodi ties, and the advanced agc at wh cli sonic are, they cannot he expected to find alternative means of , livelihood. l'hcy cannot be reasonably expected to have made substantial im fits Ill the short • period that would help them to sustain themselves after losing their shops. Also, alternative commercial space in the same ni-ca, or any other area, would be unaffordabic. They would he back to hcing reduced to penpry which will defeat the object of their being extended a welfare iiieasiirc h)r sustenance. A commercial shop has. to be i-un on borrowings and ii takes Some lime to even break even. It cannot be abruptly stopped at the end of live years gist about 'when it is possible to make some pro Mis. Being iiiadc to wait for three years lhcica her beIbre re-applying, only compounds the - • .. ' uncertagity and is based on a non-understanding of how the remit trade in goods works. It is submitted that the period of , Ove years, wli cli has been arbitrarily ixed, çloCS not subserve the purpose and object oh the wel Ibre measure and therefore is also irrational. Forcing the Petitioners to make (II UIILU;L U; - IV1LU;llLU;I1 WIIU IIIcLy VU; WdILIIIC III UIL CIUCUC, UIIU ILILtI granting them shops Ibr a maximum period of Ove years, does not help cither group of' cx-scrvicemcn. It is submitted that there is no supervening pLil3l ic interest that justi Mes such a drastic change in the policy. The answer .0 the demand for allotment of' such shops was perlips to construct moie shops or decrease the existing quota of 40% lbr civilians instead of ctir1.itl pg the licence period of the shops given to the ex-servicerrcn. 31 The other limb of this argument is that there cannot be a discrimination between 'regimental' shops and shops in a commercial shopping complex as both are alier all as a measure oLwellare and arc ni-i defence land. W1' (C) No. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108. 7366109 & 14034109 I'agi' 18 nf35 IL, : 2. Appcari ng for the Resliondents Ms .Jyoti S ingh, earned counsel rst suhmits that ihe cause of , action in the present petition adn ittedly ai ises oul • ol and seeks the continuation of , a contractual agreement and therefore a WI it pet lion under Adicle 726 oI the ( onstilution seek no suJl ci el is not maintainabIe. 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 elcan hands and arc trying to uoslcad thc • - Court that they have been alloUcci "regimental shops' as against shops iii a shopptng complex. It is pointed out that policy for allotment makes a clear - (.hstincfion between 'regimental shops' and shops in a 'shopping complex'. While the forrnet' may be said to he allotted by way oF rehabilitation, the • shops in a shopping complex are for the ranulies residing in the vicinity whet e there are no shops at a reasonable distance. •

¶33s. Singh emphasized that the shops in question were given under-licence deeds (or terms of 11 months renewable at the discretion of the • Statin Comm,nder. It is subniitted thai. thcrc is a growing demand ftoni the very same categories or exscm-\'iccn1en and their fbn:uly iiicmnhcrs, who l.iave becorric eligible later br the allotment olsl.iops on licence basis. Ii is clairiied that there is a waiting list ul such prospective attottecs (,ivcn 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 pomted out that there are S • • • • • tither ex-servmcemen equally deserving in the queuc and cannot ppssihly be • accommodated unless thecorrent occupiers are asked to vacate. It is denied that the norircfhsal to renew the licences is either arl)i trary or niala lide as WP (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 alleged, it IS iurti er denied that any speci.Iic unequivocal promise was macic - OF assurance given to any of the allottees that the shops \.VOL1Id he allotted br Ii Ic. or in perpetuity. 34 Statistics giving details of allotment of shops in the shopping complexes have l')een produced by the Respondents which show that agaii'ist 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 reccivcd lc)r 2010, while there has been no allotment since there is no vacancy. With this background of kicts, this Court is Cal]Cd upon to examine whether the policy decision announced by the Respondents eliiset ye 30hu April 2007 is arbitrary or unreasonable and whether the non-renewal oF the I iccnces in favour of the Petitioners is arbitrary or unreasonable. Preliminary objections as to mnaintwn'abilily The scope of the jurisdiction of this Court under Article 226 oF the Constitution to review a policy decision is limited. The Court normally clues ncq uiierlerc in the mailers of flolicy except where it directly i ripaets on fundamental rights. i'he right being asserted here is essentially the right to - be i reated fairly and reasonably. To tl:iat extent the judicial rcvicw ol the impugned actions of the Respondents is indeed permissible. i\Iso, the scope of the proceedings under the PP Act is limited to showing why rhc continued occupation of the shops is i'iot unauthorized and why the occupier should not be asked to pay penal rates ctunng sLich period ol Lcnauthorizedl - WI' (C) Nos. 9478107, 9525107, 9546107, 9568107, - 6447108, 5494108, 5761108, 7355109 & 14034/09 Poqe 20 of 35 occupation. A challenge cannot he raised in proceedings under the PP Ad to the viii itlity 91 any POlICY change or to the impugned orders on the ground that they are arbitrary and violate Article 14 In other words the rci ncdy under 111C PP Act is neither an efficacious nor in altcrnat I \'c remedy to I he present pChitions. The preliminary objections of i.hc Rcspoi dents as to maiiIainability of these petitions arc accordingly overruled. Le,itun ate expectation :7. Turning to the merits, the Inst issue to be considered is whether the impugned actions arc rendcrcd arbitrary in that they frustrate the 1c;i t male expectations, both procedural and substantive, of the Petitioners 1111.15 rendering heiim arbitrary and unreasonable urtdcr Article I OLIr Supreme Court has developed tile doctrine of legitimate expectation largely on the basis of the decisions of the courts in Ingland. In Council of Civil Service Unions v. Minister fir Civil Service 1984 All El? 935, it was contended by the tJiliOns that an employee had a legitimate expectation that the Minister would lollow the CXiStillg practice of consultitug the Unjons betore their membersh ill could he withdrawn. It was explained that the procedural part of time expectation was that tlie appropriate procedure, incluidumg an opportilility of being heard would he lollowed, before the benc lit or time advantage was withdrawn. The substantive part was that a 1 -cpresen1ul Oil was made that the belle lit of a sLibstailil ye nature would either be granted or . - coiltinued arid Ilot substantially varied. It could be a representation to the individual or generally to a class of persom-is. The Australian 1.1 igli Court ill A/torn ey General fr New South J'Vales v. Quin 1990 (64) AnsI LII? 327 apprehended that "to strike down the exercise of adnunistrative power Wi' (C ivo.c. 9478107, 9525107, 9546107, 9568107, '6447108, 6494/08, 6761108, 7366109&14034109 '. Page 21 oJ35 solely 0 1-1 the ground of avoiding the disappointment of legitimate expectations of' an individtiail would be Ao Set the c iirts adr ill on a = featureless sea of pragmatism. Moreover the notion ol a legitimate expectation (fhl jog short of a legal right) is too nebulous to form a basis or invalidating the exercise of a power when its exercise otiicrwisc accords with liw The Uousc of I ords in Re 1 wdlap 1984 (3) 'Ill I I? 801 III rcjccied the argument that thcre was any substantivc lcgitirLitc expectation that the .policy relating to parole For certain categoi-y oF prisoners coti Id riot he changed and required prior consultation. It was held that ''the I nost that a convicted prisoner can legitimately expect is that his case be ex aniincd individually in the light of' whatever policy the Sccrctary oF State sees 'it to adopt provided always that the adopted policy is a law Nil exercise o I' the discretion con FeiTed upon him by the statute. Any oilier view would cntai I the conclusion that the unfettered discretion conferred by statute upon the ' mnster cn in SOWC cases he restricted SO as to hamper, or even to prevent changes of policy." . .

¶38'[lie above was the stage of m IV developent ni the law when in ai'jpoti Co-operative Group housing Society i'. Union 01 india (1992) -/ SCC 477 the Stiprepie Coi;irt adopted the principle to grant relict' to the Petitioners in tat ease. The facts were that the existing list 01 . eo-operat n c societies Ior a llotn'ient of land was altered under a changed policy by reckoning the . seniority with reference to the clatc of approval of' the Final list by the legisti'ar. '[lie Supreme Court accepted the argunierit that a fketed societies had a legitimate expectation that the past consistent practice would be i/i/P (C) Nos, 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 I'oqp 27 of.35 lo I lowcd p nt iculcii ly since the Respondcnts iii Lcd to Aim ai ty 0\ cii ding P UI) lie i ft ores t. 39 lii Fwd (]oiporation of.bulia i'. J(aiiuidhen u Cattle Feet! Jndusi,iex

(1993) 1 SCC 71 the action of the appellant in refusitin, to accept [lie R cspondent s highct tcndei Ioi purchase of slock kiii i tced I ood qi u was chal longed. It was suhmitted that there culd not be any subsequent negc)tultion to iiiprove upon the highest bid aDd that the person ollcnng the ligbc'st louder had a legitimate expectation that the bid wot.il (I be acccpled. Negativiiig the plea of the Respondent it was held that, "X. The mere reasonthle or legitimate expectation ol it citi',en, in such it situation, may not by itself he a distnict en lorceihlc right, hut failure to consider anc.i give dLle weieht to it may • rcnder the decision arbitrary, and this is how the requirement til due consideration of a. legitimate expectation fonis part ot the principle of non-arbitrariness, a necessary concoirutant of , the title of law. [very legitimate expectation is a relevant factor requiring due consideration in a fair decision making process. Whether thd expectation ol the claimant is reasonable or '- V legiti male in the context is a qoespon. of fact iii each case. V Whenever the question arises, it is to he detenni ted not V V according to the claimants perception but in larger pnhlic V V interest wherein other more important considerations roiiy

outweigh what would otherwise have been the legil iinate . V expectation of the clainiant. A hona tide decis:ion 01 the public ant hority reached in this manner would satisf the req.ui cii tcnt ,1 of non-arbitrariness and withstand judicial scrutiny. VlVlie doctrine of legitimate expectation gets assimilated in the nile of la1 w and operates in our legal system in this manner and to tins : V V , eNtent.' V V V V . WP (c) Nos. 9478107, 9525107, 9S46/Q7, 9568107, V • • V, • V 6447/08, 49'°?, /08, 7366/09 & .14034/09 V Pa 73 of 3!> • V

¶40ihe doctrine was ftirther develope(i in (Jnwn ot Indu, v hindu s/wi Developnzenl Corporation (1993) 3 SCC 499 whet -c it was explained in pam 2,8 thai: 'Jhc Icgitmacy of an. cxpcctation can he in lciTcd only ifit is founded on the sanction of law or c:stom or an estahl shed piocedure 'followed in regular and natural. sequence. Aga li -i it is' distinguishable from-a genuine expectation. Such cxpectatinil should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and t herelore it does riot amount to right in the convent:ional • setise. - It was ftirther explainec.l in para 33: 'The doctrine does not give scope to AS inheC straightaway - S from the administrative authorities as no crystalise.l right as - Sc IS uivolved. The protection of such legitimate expectation • - : does not rcqt.lirc ihc ftilfillmcnt of the expectation where an overriding public interest requires otherwise. in other words where a person's legitimate expectation is not ftilii lied by taking • - a particular decision then decision-maker shOLlId justify the - - den at of stch expeitation by showing some overrating pcihl ic • - - interest. Fherefbre even if substantive protect momi of such expectation is contemplated that clues not grant an absolute right in a particular iii Ii. simply ensures the. cmmcunmsiamiccs in whicli that expectation may be denied or restricted. A case of legitimate expectalion would arise \-Vhcrm a body by rcprcscrtation or by past Iiracticc aroused expectation wli ich it - - would he within its POVFS to lullilI. 11Th protectiomi is limited to that extent and 'a judicial review can he within those limits." WP (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366/09 & 14034109 j) q ' 24 oJ3, 'I I A 11cr emphasising that the burden was on the person who bases his claim on the doctrine of legitimale expectation to satis f.y that there has been it representation or a past practice that has gi'en risc to such expectation, it must be Shown that the decision ol the authority was ''arbitrary, unreasonable and not taken in prlic interest''. it was observed: "I F it is a qucstion of policy, even by way of change ol 01(1 policy, the courts ear not H ' inlcr.Icie with the decision'. 1 ven I the court was sat s tied that it case of legitimate expectation was made out, it can grant i -cl ief only where the Rul are to give an opportimity of hearing prior to such decision has resulted m R !iti -e o Ijustice. . .

¶42In Madras City Wine Merchants' Association v. Slate of TA'. (1994) 5 - SC'C 509 the licence holders invoked past practice to claim it legitonate

• • expect at ion of renewal o I' bar I icences under the lami I Nadu Prohibition

Act, 1937 read with the Tamil Nadu (Vending in Har) Rules 1992. l3eloi e the bar lieencecs could apply for renewal, a policy -decision \\':15 tLiken not to renew their licences. It was held that cvcp under the earlier policy, it licence under the Bar Rules was only for a period of one year aiid renewal was based on payment of 15% more than the "pnvi lcge aniouiil at wInch the sale ol he privilege was con lirmed the previous year''. Renewal for the dird year was on payiiei1 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 qLiestloii,of legitimate expectai ion would arise." It was observed that the expectation that the licence would be .. . - renewed at best was at best "a hope". WP (C) Nos. 9478107, 9525107, 9546707, 9568107, 6447/08, 642108, 6761108, 7366109 & 14034109 - . .1•

¶43'the law regarding legitimate expectation was discussed iii gi-eat detalt theica 11cr in Pun/ui, Coinniuizicatw;,s v. Union of India (1999) 4 SCC • 727. the hicL were thai the Asian Development Uank ('Al )l') acrced to lend to the Government ol' lndia US $11.3 million for providine dicital • wireless telecom theility to 36,000 identified vi lagcs in lasteni UP. the • appel hint and another cofl'ipany were short-listed a her exiiminal ion 0 1 lie offers of scvcral Indian and Ibreigri eompinics. I lowever, a high level committee thereafter disqualified the appellant to enable the call I ig of, fresh

lenders on the basis of the analog system. The Union of India look a policy • decision not to avail the ADB loan. The previous tenders were accordingly cancelled. The appellant invoked legitimate expectation of a subsiani n'e nature to urge that that even if the goverpnient was Cundino the projCcI on ' • its own, the policy could not he changed and the orignial tender noli heat ion • could not he abandoned. Negttiving these arguments, it was held ti al: ' "change in policy can tleleat a substantive legitimate expectation lit can he JLIsti lied on Wednesbiii -v reasonableness (Associated Pro i'incial Pictures houses Ltd. v. Wed,k'shziry Corp 119481 / 1(11 223 (]A). We have noticed that in Ihn'/u,ctan Dei'e/opiiieiil C'oipoicilioii case, also it was laid down that the decisioi'i nmker • has the choice in the balancing of the pros and cons relevant to the change in policy. It is, therctbre, clear thai the choice of lie policy is for the decision-maker and not hr the Court, the legitimate substantive expectation mei:cly permits the ( mini to flnd out if the change in pot icy, which is the cause fbi' dcldii ing ihc !egitimate expectaIic)n is irrational or perverse or one which • no reasonable person could have made''. 4z1. 'Ilie above law has been reiterated in a large number of eases in dificrcnt contexts. The most recent udgment being Jushir Sing/i Chliahru WI' (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 Poqe 26 of 35 expectation of being allotted residential plots only on the basis of past practice of the Punjab Small Industries and hxport Corporation I Id. was iier itived by the SLIprcrnc Court.

C E 0

¶45To coi.npleie this narration, it must be noticed that the' lrgIish courts cont inuc to redraw the contours of the doctrine. I aws Ii III I? (on the applu.iilioii of Bhatt Muip/zy (a tHin) v Indcpciulent Asssoi 120081 TW( A (u 755 pointed out the difficulties in di dWiflO the line between subsi intive legitimate expect ition md 01 din u y judici ii 1 eVlLW of i new policy, I Ic explained that while the latter might m equmi e application of I he traditional i'Vcdneshu;-y mjtandard of review, substantive icgitiniate expectation would require a more involved consideration, lie ohserved: • I It seems to mc however, that on the face of it the cistenee of pronusc Or practice oi prcscit and futLire substantive policy serves as a somewhat fragile boundary by yhich to set Ii mils to suhstanlivc lcgitim ite expect Woos Once set in p11cc C i' / 1 policy of a-public authoi -ity, not subject to a statcd terminal dat.c or terminating event, may no doubt he expected to continue in eflect unlil rational grounds fiat ts cessation arise. A promise of its continuance, if it points to no particular date or future event to mark the end of the pohcy, represents little more than this ordinary expectation. And nothing-is a(lcled by referring to a practice of the policy 10 operation over time. (emphasis supplied) 1i I .aws I .1 proceeiied to observe: "Ai.mthority shows that where a-substantive expectation is to run the promise or liractice which is its genesis is not merely a WP (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 eflcction oI the 01 dincuy fa t (as I have put it) that a policy witti 10 terminal date or terminating event willeontini.ie in ehect until rational grounds for its cessation arise. Rather it must constitute a specific undertaking, directed at a particular individuai or group, by which the relevant policy's continuance is assured." (emphasis suppicd) 'i'lic upshot of' the above discussion, pai'tici.ilarly in the realm of policy making, is that the burden is on the Petitioners who claim legitiniat expectation to show that there was a specific representation made that their licences would he renewed •foi - an indefinite period notwithstanding (lause 17 ol the earl icr policy as this was the standard practice; that there was a • legitimate expectation that the change in the policy restricting the ruaxiunin i period to live years would be only after giving them an oppoi -tunity of' being heard; that. the changed policy has frustrated the suhstani i\'c legi Ii nate Ppectaton thus renderuig the decision not to renew the I icences arhi tinny and unmasonahl e. 'Ibis Court finds that the Petitioners have not been able to, in I he fbsi ilaec, sbpw that there is any specific represçntation either to any of' them or to all of thcni gcnci ally that then licences \Vould stand iUloiiidtid 111)1 rgnewed year after year by the Respondents. The mere fiic t that as a mailer of' practice the licences were renewed does not constitute the specific representation by the Respondents to each of' them that indeed their I iccmiccs would he renewed!. The renewal, it i nust be recalled, was only hr a year iii i time and was ui accordance with the prevailing policy and ClaLise 17. In ('ithci - words, the only 'i'epi -escntotion' on 'assurance' to each ol' them was that at lIme niost the licence would be renewed [or one more year at die WP (C) Alas. 11478107, 9525107, 9546107, 9568107, 6447108,6494108, 6761108, 7366109&14034109 . Paqe28 of 35 disci coon of the Respondent No c!iaIlcne was laid to ( lausu 17 o I the SOP (late I () August 2001 which left it to the discretion of, the Respondents to renew the licence at the end of a year. Ilie reasons for the change in the policy as cxpl4ined by the Respondents appear to this Court to constitute SO [uicient justibeation I& such cliange. .l'hc seopc of judicial rcvicw of such policy change is indeed limited. Unlcss it is shown to he not illIofmcd by any ucasonable criterion or not being in pohf ic I igercst the ( (lull cqinuot and should not intei fci c ( ivcn the I'act lb ii the nun thu of , shopping complexes is unlike'y to increase, and the waiting list of applicants is a growing one, the concern of the Respondents that those cx-seiicen1 en waiting in the expectation of allo1ient of a shop should also he - accounted for, cannot be said to be an unrcasonabl.e one. loth groups of cx - servieenieii, ic, the present allottees and those awaiting allotnient are from the same 'catchment'. The demand for shops far exceeds tile supply. 'there has to be a balancing of these two sets of 'expectations' - Ii the Respondents take a eat I and decide to change the policy so that the chances of those in the queue w'aiting fr allotment of shops i rnproves, Ilie Court cannot be expected to judicially review such policy. As explained in Madras Ciii' Wine Merchants', 10 question of legitimate expectation would arise if there is a change ill policy or the position isaltered by a rule or icgislation. 48 'l'he Petitionrs have not questioned the )SC Rules 2006 or (ie Guidelines issued in September 2008. It appeais that each of these Petitioners has been a hcnehciary of renewal of, licence several times over. iaeh of i-hem has been granted renewal for more than three years which is tile maxipmm period of licence envisaged under Rule 13 of the .1 )SC Rules. - WP (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 S SS' It has been made clear in Clause 8 of the September 2008 (luidel ines that the DSC Rules would apply to the shopping complexes covered by 3.42.1. @1 SOA 1983. Consequently, even procedural ly, none ol the Petitioner can harbour a legitimate expectation of being consulted before a change in the policy. or the afotenientioned reasons, this Court nciatives the plea that ihie mpugned changed poi icy as announced by the SOP dated 13` 11 April 2007 frostrai:cs any legitimate expectation, either substantive or proccdinl, of the Petitioners and is therefore rendered arbitrary or unreasonable. I/!z/JUIIe(I orders neither discrwiuiatory 1701(bi1I'(IIJ' The SOJ\ .1983, the DSC Rules 2006 and the Guidel ncs date September 2008 leave no manner of doubt that . Regimental shops (unit shops) arc distniçt and different than shops in shopping complexes and boih sets ol shops arc not govcincd by the same conditions. The plea oh ihc Pctitoncrs that there is any discrimination, on this score does not ocr it acceptance. The classification of such shops into two distinct categories appears 0) he based on rafional criteria subserving di l]rcni obiecis. Regi neilal shops are essentially (or providing (Ia) ly needs o i troops. Shopping complexes serve the civilian population as well. The haet that the DSC Rules 2006 proVide a 40 1X, quota fbi' civilians in shopping complexes (Rule 12), which Rule has not been challenged, is a pointer to the lact that

1.1.1c shops in shopping complexes are not meant exclusively lbr cx- - . servicemen. The 60% quota for the ex-servicetnen is indeed it wcl hue WP(C) Nos. 9478107, 9525107, 9546107, 9568107, . . 6447108, 6494108. 6761108, 7366109 & 14034109 I'aqe 30 of 35 nicasurc and thei elot c thu e cannot be any \'LstLd H gi it Of hCi .Flg allotted si.ich shops. The fact that civilians have been allotted Some ol the shops is therefore consistent with the above proviSion in the J)SC Rules 2006. The contention of the Petitioners that any shortaLtC in the shops aval table or allotment to ex-serviccmcn can be made up by askinr the civilians to vacate the shops allotted to them is thcrchire niisconceived. . SI '!'his Court is unable to find the decision or the Respondents to restrict the licence pei'iod in respect of shopS in shopping coinplexcs to live years with the opportunity of again applying alter a break of three years to he • .:" . . a ,' gitlici' chcrintinatory or arbitrary. Also, any prejudice that may he caused to the Petitioners in whose cases the licences were i'eriewcd prior to the cliuigc in the policy has been ncuti'alized by the fact that they have coot inued in • possession for nearly thi'ee years thereal'ter (amounting to more than two renewals) under the interim orders of this Court. As regards those Pet p ioner seeking transfer of the existing licence in their capacity as widows ol ex-servicemen, they would be governed by Rule 7 ol the I )$C Rules 2006 and in any event, they too have ,continLled to be in the prenuses • . kir beyond the period of licence under the uterirti orders oil Ii is Coui't

¶5213e6)t'e concluding this poi'tion of the judgment, this Court woi.ild I Ike to observe that thei'e are at present at least live documents that govern the : licence granted to the allottee of a shop in a shopping complev lArsu we have the SOA 1983,

para 342, I of which describes what a shopping complex is. 'l'hen there is the licence deed itsiIf NOW sets out Sonic of the W1' (C) Nos. 9478107, 9525/07, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 Page 31 of 3,5 • ,. apphcable terms ai nd conditions. Then there arethe DSC Rules 2006. 'lucre appro's 10 be some inconsistency between the Rules and the condi ions of' the licence I hen we h ive the Guidelines of 4h epternbcr 2008 ( I iuc 8 of which in fhct statcs that the [)SC rules 2006 will apply 1.0 shopping coniplexcs covcrcd by para :3 A2. I of the SOA 1983. I asily, the SOPs which are ISSUCd from lime to time. In flict. it is the SOP elated 3" April 2007 that has given risc to these set of petitions. For ihe purposes of grant açl i-ehleWli of licehces there is some Inconsistency iii these live documents which icqunc to be icconciled by the Rcspondnts Althouh the Pcti1ionci have Ihemsel \/C5 1101 raised ay objection on this Score, this Court hinds that any !lct!lsiStency between the DSC rules 2006 and the SO P is not to the advantage of any of the Petitioners here as each of lheni has already overstayed their respective periods of hccnee by many years. Nevertheless, it is imperative for the Respondents to reconcile these different documents - . and bri 11 g out a un i lorm set of Rules xte,ision of tune to vacate the shops

53.

The tiu'ther aspect to be considered is of the hare ship Caued by these Petitioners by relatively sudden change of policy. Considering that many of the Petitioners have been getting their hicenees renewed for the past several years, the announcement made in June 2007 of a policy made et'betive 30hI April 2007, stating that there would be no renewal beyond ii\'e years foist have nideed Come 05 an unpleasant suqlrise. ftc nature of retail trade is such that plost shpp keepers have to buy stock Oil credit and are ,,ndei COnStliili as to hqLiidity. Unless sufficient time is given for \fadiitiflg the shops, it will undoubtedly cause severe prejudice. It is understandable tLiif Jirtdirg alternative commercial space to run a shop niay neither he easy WP (C) -Nps. 94781oJ, PS2SIO7, 9546107, 9568107,

. 6a47/08; 6494/08, 6761/08, 7366109 & 14034/0.9 Pogi, 32 of 3.5 nor aitordable in the cases of the Petitioners before the Court .1 .lowever, given the nLtmber ol years they have enjoyed the henelit, the need to give the others in the queue a similar opportunity would outweigh such hardship. liaving said that, with a change in policy having been made atler nearly six years, a time period of thirty days to vacatc the pren.iiscs cmrioi he said to be a reasonable one. tinder Rule 3() of the DSC Rules 2006, the existing altottees were allowEd to continue till the expiry o I . their licence period and such of those in unwthorized Occupation of the shopv i.e., where the period of licence has expired, \vould bcgiven sx months time to vacate in terms of Rule 3(c) failing which the Estate Officer would initatc action to evict them in accordance with law. The minimuni iliTie to vacate the shops in (lucsliori having been set out in Rule 30) itself ought to be six months and therefore the impugned notices giving the Petitionei -s ' th i -ty days ti inc for the purpose were contrary to the above provision in the I )SC Rules 2006. H owever, as a result of the interim orders the Petitioners have cool inued well beyond the six months' period. In the pecriliar facts and circumstances of the case, as far as the Petitioners before the Court are concerned, this Court is oi the view that a further period of IN months must be given to each of them to vacate the shops raider their occupation. This would not include si.ieh of those Petitioners which have vacated the shops during the pendency of the P1 ease L4/P (C) Abs. 9478107, 9525107, 9546/07 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 I'age 33 of 35 • : . It is accordingly directed that cacli of these Pctitioners, except We who hrve already vacated the shops allotted to them, shall he given six months' time In vacate the shops in their respectivc occupation. In other . words, fhy should hand over the ShopS on or before I 51 January 2011. This would be fui-ther subject In each of them Ii 1mg an at lidavut helore this • (;1 undertaking that (i) they will hand over vacant and peace hit possession of be shop(s) 111 then occupation on or bet OiL 15th I inn ii y 2011

(ii) that they will promptly pay the licence be as and when it ku Is due, (iii) and further they will not sublet the preniues or induct any other person or entfy into (he shop(s) in their occupation. it is made clear that this i.indertaki ng should he filed with in ten days from today, i.e., on or be lore " .luly 2011 failing which it would bi open to the Respondents to • . toi-jhwjth initiate procecdiiigs undcr the PP Act for cvictioui ol the Petitioners. Where such pro ecdings have already been initiated and such of • those Petitioners file the above undertaking \.vilhin the time granted by the • Cou.irt, the PP Act proceedings would rcrnain.stayed till 151 .Ianuary 201 I or upon the Petitioners violating any of the terms of the i.indertak tog. It is needless to say that where the Petitioners aller giving the undertakine to Ii is CoLiri, violate any of the terms of the undertaking, they will he liable to be proceeded with forthwith both for contempt of court and proceedings under the PP Act. _• Ii is made clear that the directions issued by the Court granting One to the Petitioners to vacate the shops under their occupation is lir nited only to the Petitioners before the Court who have not vacated the premises and is not to be treated as a precedent for any, other tillotice. [lie allotments made WI' (C) No.c. 9478107, 9525107, 9546107, 9568101, • 6447108, 694/08, 6761108, 7366109 & 14034109 I'aqe 34 of 3.' ji of , shops in shopping ConlpIexcs hei CattLi would sit LIly hc iii R uti d OR C with the DSC Rules 2006 and the other relevant instrumenis which have 1en referred to earliet-, as amended from time to time.

¶5For all the above mentioned reasons and subject to the directions issued, i.Iic writ petitions arc L1ISOOSSCd. [he interini or(Jers stand \/aCate(l and the pending applications stand disposed ofT S. MURAlilflIAR, 1tJiY 12, 2.1)10 rk "• ': I • - WP (C) Nos. 9478107, 9525107, 9546107, 9568107, 6447108, 6494108, 6761108, 7366109 & 14034109 • Paqo 3.5 of 3.5 •

A ~ IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: May 31, 2010 Decision on: July 12, 2010 WRIT PETITION (CIVIL) 14034/2009 & CM APPL 16083/09 EX. SEP VIRENDER S1NGH .... Petitioner Through: Go!. K. Digambar Singh, Advocate versus UNiON OF INDIA & ANIR .... Respondents Through: Ms. Jyoti Singh, Advocate S CORAM: JUSTICE S. MURALIDHAR