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PETITIONER:

GURSHARAN SINGH & ORS. ETC. ETC.

Vs.

RESPONDENT:

NEW DELHI MUNICIPAL COMMITTEE & ORS.

DATE OF JUDGMENT: 02/02/1996

BENCH:

SINGH N.P. (J)

BENCH:

SINGH N.P. (J)

MAJMUDAR S.B. (J)

CITATION:

1996 AIR 1175 1996 SCC (2) 459

JT 1996 (1) 647 1996 SCALE (1)615

ACT:

HEADNOTE:

JUDGMENT:

WITH

WRIT PETITION NO.5331 OF 1983

Smt. Ashwani Sachdeva

V.

New Delhi Municipal Committee

J U D G M E N T

N.P. SINGH. J

These appeals along with a writ petition have been

filed on behalf of the different licensees of the shops in

the shopping complex known as Palika Bazar which was built

by the respondent, New Delhi Municipal Committee

(hereinafter referred to as the 'N.D.M.C.') in the year

1976. The whole complex is centrally air-conditioned. It

appears that by a resolution dated 29.11.1977, N.D.M.C

decided to allot 98 shops to shopkeepers of Panchkuian Road

because the space occupied by them at the said Panchkuian

Road was required for widening of the said road. Again on

27.5.1978 the Delhi Administration directed the N.D,M.C. to

allot shops to 98 stall-holders of Panchkuian Road on the

conditions agreed. A plan of the said marketing complex was

prepared and published showing 98 shops which had been

reserved for the shopkeepers of Panchkuian Road on

preferential basis. Tenders were invited for allotment of

other 177 shops divided into four zones and further

classified in seven groups for proper identification. In

the advertisement it was stated that reserved shops were not

being put to tender and preference for allotment of a

particular shop in a group will be given to the highest

tenderers. It was also stated that only those tenders shall

be considered which were above the reserved rate. One of the

terms of allotment being term No.9 was as follows:

"only those trades such as

mentioned in the trade zoning plan

shall be permitted to be run in the

shop. A copy of the details of the

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trade zoning is appended to this

document as appendix 'A'."

The aforesaid zones were demarcated on the plan of the

shopping complex which had been prepared by the N.D.M.C. The

persons submitting tenders were required to state the trade

which they proposed to run in the shops. In the application

forms it had been clearly mentioned that "only such trades

as mentioned in the trade zoning plan shall be permitted."

The applicant was also required to give an undertaking that

he had carefully read the memorandum of information and the

terms and conditions of the allotment and that he had

agreed to abide by the same. The shops were to be given on

licence for a period of five years and thereafter the

licence was renewable subject to increase in the licence

fee by 10 per cent and on such terms and conditions as may

be laid down by the N.D.M.C. Different reserved prices were

fixed for different shops. The appellants in different

appeals including the writ petitioner filed their tenders

and indicated the trade which they wanted to run in the

shops to be allotted to them. There is no dispute that the

applicants while submitting the tenders, offered the licence

fee at a much higher rate than what was mentioned as the

reserved rate of licence fee in respect of different shops.

Thereafter letters of allotment were issued indicating the

trade which such licensee could carry in the shops which

had been allotted to them. In other words, the applicants

whose tenders were accepted on the rates offered by them

were not only required to pay the licence fee offered by

them and accepted by the N.D.M.C., but they undertook to

occupy the shops in different trading zones and to carry on

the trades which were specified to be carried on in the

zones concerned.

So far the Panchkuian Road stall-holders were

concerned, allotment of shops were made to them in the zones

reserved for them, but they were not subjected to zoning

restriction, the only restriction which was imposed on them

was that they had to carry on only the permissible trade

specified in Appendix 'A' to the terms and conditions of the

allotment. They were to pay the licence fee also at a

different rate which was admittedly at a lower rate than the

licence fee which had been offered and accepted from the

applicants who were allotted shops out of 177 shops referred

to above. It is the case of the N.D.M.C. that special

consideration in respect of licence fee as well as the

zoning restriction in respect of Panchkuian stall-holders

was made to induce and persuade them to move from Panchkuian

Road to the Palika Bazar Shopping Complex so that the stalls

occupied by them could be removed and the widening of the

road was facilitated. Similar concession was offered to some

Tibetan stall-holders at Janpath requesting them to move

from Janpath to Palika Bazar where shops had been reserved

for them in an area known as Mini Market. The total number

of the stalls in the Mini Market was 58. It is an admitted

position that the allottees of the stalls in the Mini Market

were not subjected to any zoning system, but like Panchkuian

Road allottees they were permitted to carry on only those

trades which were permissible and had been enumerated in the

aforesaid Appendix 'A'.

Later some of the allottees out of 177 shops which had

been subjected to zoning system, so far the nature of the

trade was concerned and who had specifically agreed in

writing to carry on the trades which had been specified for

the trade zones of the marketing complex, in which shops had

undertaking given by them and opened shops in those zones in

respect of trades which had not been specified for those

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zones. In other words, they opened shops to carry on trades

of their own choice which was not permissible under the

terms of the allotment made in their favour by N.D.M.C.

Because of this, notices were issued to such shopkeepers who

had violated the zoning system of the marketing complex.

The validity of such notices issued by the N.D.M.C.

were questioned by them before the Delhi High Court. A

learned Judge of the High Court came to the conclusion that

the action of the N.D.M.C. was discriminatory and arbitrary

while insisting the writ petitioners to conform and abide

the agreement in respect of trade zoning restrictions and

to relax the same restrictions so far the stall-holders of

Panchkuian Road were concerned who had been allotted shops

in the same marketing complex. It was also pointed out by

the learned Judge that when several allottees out of 177

shops had changed the trade and had not followed the trade

zoning restrictions, there was no justification to insist

others to follow the same trade zoning restrictions. On the

aforesaid finding, the notices issued by the N.D.M.C. to

different shopkeepers were quashed and the writ petitions

were allowed.

On appeal being filed by N.D.M.C., the Division Bench

set aside the judgment of the learned single Judge and

reversed the finding that the action of the N.D.M.C. while

insisting for the trade zoning restriction, was

discriminatory and violative of Article 14 of the

Constitution, According to the Division Bench, the stall-

holders of PanchKuian Road formed a class separate from the

class of allottees who had been allotted shops out of 177

shops. On the finding aforesaid, writ petitions filed on

behalf of the appellants were dismissed. However, three

months time was granted to them to revert back to their

trade zoning restriction and to start the trade for which

the shops had been allotted to them in different zones

within the marketing complex.

In the counter-affidavit which had been filed on behalf

of the N.D,M.C. (vide Civil Appeal No. 7503/83) it had been

stated that since 1950 onwards stalls had been put up on

roads mentioned in the said counter-affidavit including

Panchkuian Road and Janpath. In PanchKuian Road and 98

stalls had been put. It has been further stated that a

decision was taken that shops be reserved for such stall

holders of PanchKuian Road in lieu of their surrendering the

stalls, because the lands beneath these stalls were required

for use of public convenience. They were occupying such

stalls for more than three decades and as such a decision

was taken after proper examination by the Delhi

Administration along with the Government of India to allot

98 shops to such 98 stall-holders for their

rehabilitation.They were offered the shops in the aforesaid

marketing complex, which had been reserved for them and

shown in the Plan also. The relaxation of the trade zoning

restrictions was meant to induce them to move from the

Panchkuian Road. For the same object even the licence fee in

their case was reduced. Because of the same reason no

tenders were invited for the 98 shops and tenders were

invited only in respect of 177 shops, which were allotted to

the appellants and others on basis of tenders submitted by

them. It was pointed out that appellants and other allottees

of 177 shops knew very well from the Plan published and the

notice inviting tenders that 98 shops had been reserved for

stall-holders of Panchkuian Road. In spite of that the

appellants and others offered their tenders at different

rates higher than reserved rates which were accepted by the

N.D.M.G. and allotments of shops were made in their favour.

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In this background, it was not open to them to violate and

contravene the trade zoning restrictions to which each one

of them had specifically agreed.

The learned counsel appearing in different appeals took

the same stand before this Court that there was no

justification on the part of the N.D.M.C. to make allotments

of the different shops in the same marketing complex not

only on different rates of licensing fee, but even with

different trade zoning restrictions which per se was

arbitrary as equals had been treated as unequals, as such

violative of Article 14 of the Constitution. According to

the appellants, the Panchkuian Road stall-holders were in no

way different from the appellants so far their claim for

allotment of the shops in the said marketing complex was

concerned. They should also have been subjected to the same

trade zoning restrictions as are specified in the Annexure

'A' to the terms and conditions of allotment and should not

have been allowed to carry on trades of their choice in the

shops allotted to them. Similarly, there could not be any

conceivable justification for charging from them the licence

fee at a lower rate than what has been charged from the

appellants and others similarly situated.

It appears the Panchkuian Road stall-holders

wererunning the stalls on the lands for more than

threedecades which were later required for widening of the

road and a question arose before the N.D.M.C. as to how to

offer them some attractive proposal to rehabilitate them so

that they can move from Panchkuian Road. This object was

achieved after proper negotiation, discussion and decision

having been taken in consultation with the Delhi

Administration and Central Government to offer shops to them

in the new marketing complex at a concessional licence fee

and without trade zoning restrictions subject to the

condition that they shall carry any of the trades specified

in Annexure 'A' to the terms and conditions of offer.

According to us, the allotment of 98 shops to the stall-

holders of Panchkuian Road was made treating them as a

separate class, on a reasonable and rational basis. The land

occupied by their stalls were required by the N.D,M.C. for a

public purpose i.e. for the widening of the road. It was

otherwise not easy for the N.D.M.C. to throw them out of

Panchkuian Road and after proper deliberation a decision

appears to have been taken to induce them to move out of

Panchkuian Road to Palika Bazar. This object was achieved by

lowering the licence fee and making relaxation in the trade

zoning restrictions to some extent which cannot be held in

any manner as irrational, partial or biased so as to be held

to unreasonable.

Apart from that even if it is assumed that concession

was shown to such stall-holders by the N.D.M.C. the

appellants cannot make grievance in respect of

discrimination under Article 14 of the Constitution. Having

agreed to the terms of allotment they cannot legitimately

claim that they should also be treated in the same manner.

There appears to be some confusion in respect of the scope

of Article 14 of the Constitution which guarantees equality

before law to all citizens. This guarantee of equality

before law is a positive concept and it cannot be enforced

by a citizen or court in a negative manner. To put it in

other words, if an illegality or regularity has been

committed in favour of any individual or a group of

individuals, the others cannot invoke the jurisdiction of

the High Court or of this Court, that the same irregularity

or illegality be committed by the State an authority which

can be held to be a State within the meaning of Article 12

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of the Constitution, so far such petitioners are concerned,

on the reasoning that they have been denied the benefits

which have been extended to others although in an irregular

or illegal manner. Such petitioners can question the

validity of orders which are said to have been passed in

favour of persons who were not entitled to the same, but

they cannot claim orders which are not sanctioned by law in

their favour on principle of equality before law. Neither

Article 14 of the Constitution conceives within the equality

clause this concept nor Article 226 empowers the High Court

to enforce such claim of equality before law. If such claims

are enforced, it shall amount to directing to continue and

perpetuate an illegal procedure or an illegal order for

extending similar benefits to others. Before a claim based

on equality clause is upheld, it must be established by the

petitioner that his claim being just and legal, has been

denied to him, while it has been extended to others and in

this process there has been a discrimination. None of the 98

stall-holders were impleaded as parties to the writ

petitions. The appellants questioned the validity of the

allotment of 98 shops on concessional rates, without trade

zoning restrictions in favour of the stall-holders of

Panchkuian Road, but they were primarily interested that

same concessions in respect of licence fee and relaxation in

trade zoning restrictions, be also extended to them. Any

such claim on their behalf cannot be entertained on the

basis of concept of equality before law as enshrined in

Article 14 of the Constitution.

The Division Bench of the High Court rightly dismissed

the writ petitions filed on behalf of the appellants on the

finding that there was proper justification on the part of

the N.D.M.C. to make allotments of the shops which had been

reserved for stall-holders of the PanchKuian Road.

lt may mentioned that the appellants in some of the

appeals had filed writ rot petitions before the High Court

making a grievance that although they were making payments

at the agreed rate in terms of the acceptance of their

tenders and were also observing the Drade zoning

restrictions, still they were suffering because of the other

shopkeepers who had violated the trade zoning restrictions,

A direction was sought for on the N.D.M.C. that they should

not allow the change of the trade, to those allottees who

were violating the scheme of trade zoning restrictions.

Those writ petitions were allowed by the learned single

Judge along with others. But the Division Bench dismissed

even such writ petitions.

lt appears that writ petitions were filed as early as

in the year 1980 which were allowed by the learned single

Judge on 29th May 1981. The appeal filed on behalf of the

N.D.M.C.,against the said judgment was allowed on 18th March

1983. This Court while granting leave passed orders

regarding maintenance of status-quo in respect of the trades

being carried on by the appellants. Interim directions were

given also in respect of payment of licence fee at the

reserved rates instead of agreed rates in many ,appeals.

Because of these interim orders passed by the High Court as

well as this Court in most of the cases only payment of the

licence fee has been made to the N.D.M.C. at the reserved

rates and not at the agreed rates. After the dismissal of

the appeals and the writ petition, the appellants and the

writ petitioner are liable to pay the balance amount of

arrears which runs into lakhs of Rupees in different

appeals. As such at the close of the hearing of the appeals

an alternative submission, was made on behalf of the

appellants that in the event of dismissal of appeals and

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writ petition, this Court should direct payment of the

arrears by reasonable instalments. On behalf of the

N.D.M.C. claim was made for interest over such arrears

contending that N.D.M.C. should not suffer because of the

interim orders passed by the High Court as well as by this

Court.

In view of the legal maxim "actus curiae neminem

gravabit" which means that an act of court shall prejudice

no man, N.D.M.C. is justified in making a claim for

interest. Over the arrears which have remained unpaid for

more than 12 years because of the interim orders passed by

this Court. This aspect of the matter has been examined by

this Court in the case of Raj Kumar Dey and others v.

Tarapada Dey and others, (1987) 4 SCC 398. Although in the

interim orders it has not been stated that in event of

dismissal of the appeals and the writ petition, the

appellants and the writ petitioner shall be liable to pay

interest over the arrears of the licence fee, but that shall

not debar this Court from passing any order in respect of

payment of reasonable interest over the said amount.

Taking all facts and circumstances into consideration

including the lapse of more than 12 years since the appeals

were filed before this Court and the equities arising in

favour of one party or the other, we direct:

1. The allottees will pay licence fee at the agreed rate

subject to revisions as per the terms of the licence deed.

2. If the agreed rate has not been paid either due to

interim order passed by any Court or otherwise and payment

has been made on the basis of reserved rate, then for the

period when the interim order was operative, so far the

allottees who have deviated from trade zone shall be liable

to pay simple interest over the arrears for that period at

the rate of 12 per cent per annum and at the rate of 15 per

cent simple interest for the remaining period.

3. Allottees who have not deviated from the trade zone and

have paid at the agreed rate throughout except the period

when interim orders of the Court were operative, shall pay

the balance amount of the arrears of the agreed rate with

simple interest at the rate of 6 per cent.

4. Arrears amounting upto Rs.2.25 lacs shall be paid in four

equal quarterly instalments on or before 31st December,

1996. But if the arrear is in excess of Rs.2.25 lacs and

upto Rs.5 lacs, then it shall be paid in six equal quarterly

instalments on or before 30th June, 1997. In case, where the

arrears is above Rs.5 lacs, it shall be paid in eight equal

quarterly instalments on or before 31st December, 1997. The

arrears shall be calculated in terms of the above order for

period upto 31st December 1995 by the Respondent - N.D.M.C.

against each allottee and notice will be served on such

allottees within six weeks from today.

5. From the month of January 1996 the licence fee as revised

in terms of the licence deed shall be paid.

6. The allottees who have deviated from the trade zoning

restrictions, shall revert back to the trade zone, allotted

to them on or before 31st December, 1996.

7. No damage shall be paid as claimed on behalf of the

Respondent - N.D.M.C. on account of cancellation of licence.

8. All notices of cancellation shall be deemed to have been

withdrawn after the directions aforesaid are complied with

by the allottees or the allottee concerned. But in the event

of failure to comply with any of the aforesaid directions it

shall be open to the N.D.M.C. to proceed with the

cancellation of the licence of allottee concerned.

9. This order shall not cover the dispute in respect of the

resolution of the Respondent - N.D.M.C. dated 12.9.1991

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revising licence fee from 10 per cent to 30 per cent on the

expiry of the licence and payment of interest over the

arrears from 15 per cent to 24 per cent.

10. In respect of the grievance made on behalf of the

allottees that sales are being made from the show windows.

Mr. Ranjit Kumar,appearing for N.D.M.C.pointed out that

before the learned single judge, N.D.M.C.took a clear stand

in their affidavit filed that no persons shall be allowed to

sell any article through the show window, it shall be used

only for display purpose and N.D.M.C. shall not implement

the resolution No.33 dated 15.1.1985 allowing the persons

displaying their articles in the show windows to sell the

articles.

Accordingly the appeals and the writ petition are

dismissed subject to the directions given above. In the

facts and circumstances of the case, there shall be no

orders as to costs.