Cox India Limited vs Government Of Nct Of Delhi And Ors.
2003 Latest Caselaw 655 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. This judgment would dispose of the aforementioned two writ petitions filed by the petitioner. The petitions are in connection with the non-grant of an L-52 license for retail sale of Indian made foreign liquor (IMFL)/beer in Delhi. The petitions have been taken up together as the parties are common and similar issues arise. The grievance of the petitioner in both the petitions is that its applications for L-52 licenses have been rejected arbitrarily without giving an opportunity of hearing to the petitioner before the rejection orders were passed. The petitioner also claims that it has been discriminated against.

2. Before the facts of the case are set out, a little background would be necessary. In the National Capital Territory of Delhi liquor licenses in Form L-2 for retail trade of IMFL/Beer and in Form L-10 for retail sale of country liquor were being granted to government owned bodies only. However, with a view to liberalise and partially privatize the retail trade of liquor in Delhi, the Government of NCT of Delhi decided to grant licenses in Form L-52 for retail sale of IMFL/Beer to private vendors for the licensing period 2002-2003.

3. There are nine districts in the National Capital Territory of Delhi and it was decided to grant at least five licenses in each district subject to a maximum of 70 licenses. The terms and conditions for grant of licenses were finalised by the respondents and applications for grant of these L-52 licenses were invited by public notice on 12.7.2002. In all 514 applications were received till the last date, i.e. 2.8.2002. These applications were scrutinised with reference to the terms and conditions and 230 applications were found to be complete in all respects. The list of eligible applications was displayed district-wise on 8.11.2002 on the notice board of the Excise Department. A public notice giving the same information was also issued in the newspapers in which the public notice inviting applications for L-52 licenses had been notified. It was also indicated that the draw of lots were scheduled to be held on 12.11.2002 at 2 p.m in Dr. Ambedkar Auditorium, Andhra Bhawan, New Delhi.

4. The respondents also decided that the 70 licenses to be granted would be distributed in the following manner:-

"Seven licenses each would be granted in two districts in which the number of applications were the least. In the other seven districts eight licenses each were proposed to be given. Insofar as New Delhi and North East districts were concerned only two and seven applications respectively were received in respect thereof. As such, the number of eligible applications being less or equal to the number of licenses to be granted, no draw was scheduled to be held in respect of these two districts. The eight successful applicants in each of the remaining seven districts were chosen through draw of lots which were conducted on 12.11.2002 in the presence of the eligible applicants, media and under the supervision of three Secretary level officers of the respondent No.1."

5. The petitioner had submitted two applications for the grant of L-52 licenses. One was in respect of the proposed L-52 vend at No. F.399, Khajoori Khas Colony, main Wazirabad Road, Delhi-110094 which fell in the North-East District. This is the subject matter of CW 7805/2002. The other application of the petitioner was in respect of the grant of L-52 licenses for running a retail IMFL Vend at Shop No.20, Shopping Centre, Karampura, New Delhi-110015 (West District). This is the subject matter of CW 8044/2002.

6. Both these applications were rejected on separate grounds as would be indicated hereinbelow. The petitioner, being aggrieved by such rejection has filed the present writ petitions.

7. Before I consider each of the writ petitions separately the common issues that arise can be referred to at this stage. The portions of the Terms and Conditions which would be relevant for the purposes of these writ petitions are set out as under:-

"TERMS AND CONDITIONS FOR THE GRANT OF license IN FORM L. 52( RETAIL VEND OF INDIAN MADE FOREIGN LIQUOR/BEER IN PRIVATE SECtor) FOR THE LICENCING PERIOD 2002-2003 (FROM THE DATE OF ISSUE OF L-52 license TILL 30-6-2003) FOR THE RETAIL SALE OF INDIAN MADE FOREIGN LIQUOR/BEER IN THE NATIONAL CAPITAL TERRItorY OF DELHI.

Applications for grant of L-52 license have been invited by a public notice dated 12-07-2002. Only those applications which are complete in all respects and are received in the office of the Commissioner of Excise, Government of NCT of Delhi (hereinafter called "the Commissioner") before 6.00 p.m. Of 31.07.2002 shall be considered for the grant of the license. Incomplete applications shall be liable to be rejected without notice.

licenses in Form L-52 for the retail sale of various brands of Indian made foreign liquor/beer as approved or registered by the statutory authority in the National Capital Territory of Delhi shall be granted for the licensing period 2002-2003 (hereinafter called the "the licensing period") in accordance with the following terms and conditions:-

1. ELIGIBILITY TO HOLD license

1.1 license shall be granted to the following:-

(a) Companies registered under the Companies Act,1956;

(b) Partnership firms registered under the Partnership Act, 1932;

(c) Co-operative Societies registered under the relevant Co-operative Societies Act;

(d) Sole proprietors.

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1.5 The applicant, in case of sole-proprietorship and one of the partners in the case of a partnership firm, must be a resident of Delhi. In case of companies/firms their offices must be registered in Delhi with any Government agency (Sales Tax/Income Tax, etc.) for more than five years. In case of cooperative societies, it must be registered with the Registrar, Cooperative Societies, Delhi for more than five years.

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2. PROCEDURE TO APPLY

2.1. Applications in the prescribed form (Annexure I) along with other relevant documents for license shall be made to the Collector of Excise, Delhi (hereinafter referred as "the Collector").

2.2. Applicant will submit the following Along with the application:-

(a) Proof of lawful possession of the proposed shop i.e., ownership/lease/rental documents etc.

(b) An affidavit in the form given in Annexure II declaring that -

(i) he is in actual physical possession of the shop for which he has made an application for grant of L-52 license.

(ii) there is nothing adverse against the applicants as       per the provisions of rule 7 of Delhi  Intoxicants License and  Sale Rules, 1976. 
 

(c) A lay out plan of the area in which the shop is located, clearly showing the proposed shop.
 

(d) An earnest money of Rs 2.5 lacs by way of a Demand Draft in favor  of the Collector of Excise, Delhi.
 

(e) A solvency certificate of Rs 25 lacs issued by Sub-divisional  Magistrate/a Scheduled commercial bank.
 

(f) Income tax clearance certificate.
 

(g) Domicile certificate/Proof of registered office being in Delhi.
 ............ 
 

3. GRANT OF license
 

3.1  The Government of National Capital Territory of Delhi has decided to grant L-52 license for retail trade of Indian made foreign liquor/beer in Delhi for five shops in each revenue district subject to a maximum of seventy.
 

3.2 All the applications for the grant of L-52 license shall be subject to the acceptance by the competent authority who may accept or reject any application without assigning any reason. The licensing authority shall be under no obligation to grant any license for which application has been made.

3.3 All applications received in the office of the Commissioner before the specified time and date will be scrutinized and eligible applications will be sorted out district-wise.

3.4. If on scrutiny, any application is found incomplete, vague, confusing or not as per the terms and conditions, the same shall be summarily rejected and the decision of the Government shall be final.

3.5. Selection of the eligible applications for grant of license will be made by holding draw of lots.

3.6 The result of the draw will be flashed on the same day on the bottom of home page of our website http://delhigovt.nic.in of the Excise Department of Government of NCT of Delhi (hereinafter referred to as" the Department".)

3.7. Unsuccessful applications will be rejected and earnest money will be refunded to the applicant by cheque by registered post within a period of thirty days from the date of drawn."

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(emphasis in the form of italics added)

8. The original file pertaining to the grant of these licenses was produced in Court and photo copies of the relevant portion of the file being pages 31/N to 40/N have been filed and taken on record. From the noting thereon (Page 31/N), it appears that after the applications for grant of L-52 Licenses were received on 2.8.2002, initially the Finance Minister had ordered that, after consideration, if any application was found to be deficient, the applicant would be given one week's time to rectify the deficiency and a personal hearing should also be granted to the applicant by the Collector, Excise before rejecting the application. From the said note, it further appears that on the basis of this a preliminary scrutiny was done and the same was submitted to the Chief Minister who ordered that only those applications which were complete in all respects should be entertained. Accordingly, in compliance with these orders of the Chief Minister a scrutiny of applications was done in order to categorise them into two categories:- (1) those applications with fundamental lacunae that contravene the terms and conditions laid out in the application form and (2) those applications which basically conform to the terms and conditions set out in the application form and which may be treated as complete. After the scrutiny was done, in a meeting held on 19.9.2002 by the Commissioner (CEELT), ten objections/deficiencies were listed as being merely technical which did not make the applications liable for rejection. In the same meeting, it was decided that the following objections/deficiencies constituted fundamental lacunae as per the terms and conditions and made the application liable for rejection:-

"(i) if electricity connection/water is not there.

(ii) if clause (8) in the Affidavit as notified vide corrigendum dated 19.07.2002 is not mentioned.

(iii) if applicant is a sole proprietor but the Solvency Certificate is in joint names of two or more persons.

(iv) if an agreement to sell has not been registered to prove the ownership.

(v) if the Solvency Certificate has not been issued by a scheduled commercial bank or competent authority.

(vi) if the Domicile Certificate is more than six months old from the last date of the receipt of the applications i.e. 02.08.2002.

(vii) if the rent agreement is conditional to the effect that applicant will be given shop if he is successful in the draw of lots.

(viii) if more than two persons have applied in respect of the same premises/shop since possession is unclear in both cases.

(ix) if only photocopy of attested photocopy of solvency certificate of Rs. 25 lacs has been submitted."

This was put up for approval and further directions by the said Commissioner (CEELT) on 30.9.2002. The Finance Minister in his noting dated 9.10.2002 indicated that he had received representations that applications which had been rejected were not in conformity with the terms and conditions and, accordingly, he directed the Principal Secretary (Finance) to review and advise. In the subsequent note of the Commissioner of Excise dated 10.10.2002 which is at pages 34/N to 36/N, it was pointed out that the Finance Minister had, inter alia, received representations for the following grounds of rejection:-

(a) Cases where an agreement of sale has not been registered to prove ownership and

(b) non-submission of Domicile Certificate by the applicant proprietory firm/partnership firm with regard to one of the persons/partner of the firm.

In respect of these objections, it was noted that after review it was recommended that "since it had not been explicitly mentioned in the terms and conditions that the arrangement to sell needs to be registered and since the most important issue is the possession of the shop, the application should not be rejected on this ground. The Department will modify its scrutiny accordingly". Insofar as the question of non-submission of Domicile Certificate by the applicant/proprietory firm/partnership firm was concerned, after noting that Clause 1.5 of the terms and conditions were clear and express, it was decided that it would be appropriate to reconsider this ground for rejection. Accordingly, the Commissioner of Excise by his said Note dated 10.10.2002 requested that a decision in this regard be taken so that the department could finalise the list of successful applicants and proceed with the draw of lots. As regards the question of rejection on the ground that the agreement to sell has not been registered, it was decided that rejection of this ground was unfair and the department was directed to modify its scrutiny accordingly. As regards the issue of non-submission of Domicile Certificate, although initially the Principal Secretary (Finance) in his note had submitted that this ground of rejection need not be reconsidered, he subsequently submitted that if there was difficulty in obtaining Domicile Certificates then it could be produced within fifteen days of the submission of the application or at least two to three days before the draw of lots. This was approved by the Finance Minister and to this extent Clause 1.5 stood modified and accordingly, non-submission of domicile certificate by individuals - sole proprietors/partners in registered firms - in the first instance would not be a ground for rejection. In the ultimate analysis it appears from the noting that at page 39/N that the Government had reviewed the ground for rejecting application for grant of L-52 licenses and it had been, inter alia, decided (so much as is relevant) that :-

"1. xxxxx

2. That no application be rejected on the ground that the agreement to rent has not been registered.

3. That time till 5th November be allowed to those applicants whose applications are liable to be rejected on the ground of non-submission of Domicile Certificate, to produce the same.

It was decided that the scrutiny team would ascertain the number of applications which have been rejected on the sole ground of non-submission of Domicile Certificate. A letter would thereafter be sent to those applicants allowing them time till 5th November, 2002 to produce the Domicile Certificate. Taking into consideration domicile certificates received in the office till 6.00 PM of 5th November, 2002, all the five scrutiny teams would re-scrutinize the applications allotted to them with reference to the conditions waived by the government. The final list of rejected and accepted applications would be submitted to Collector Excise by the scrutiny teams by 6th November, 2002 after including the applications which have been rejected on the grounds mentioned at Sl. No. 1,2 and 3 above. The final list of the valid applications shall be displayed on the notice board of this office and would be submitted to the Finance Minister for his information."

Thereafter, it was also decided that the draw of lots would be held on 12th November, 2002. As stated above, the draw of lots was in fact held on 12.11.2002 and the licenses were granted as indicated above.

9. In this backdrop, I now take up the individual grievances in the two writ petitions.

CW 7805/2002

9.1 As indicated above the petitioner had applied for grant of L-52 License at No. F-399, Kajoori Khas Colony, Main Wazirabad Road, Delhi-110094. This application was rejected by an order dated 8.11.2002 issued by the Collector (Excise). The operative portion of the order reads as under:-

"The documents submitted by the above applicant have been scrutinized as per the requirement laid down in terms and conditions for grant of L-52 license and after the scrutiny the following discrepancies have been found:

1. The affidavit filed is in the personal capacity of the person through whom the application has been filed and is not on behalf of the company.

2. The rent agreement dated 1.8.02 and the NOC of the land lord is not in favor of the company.

The application is rejected because of the above mentioned deficiencies/discrepancies. The applicant be informed accordingly and his earnest money be refunded."

9.2 It is apparent that on scrutiny it was found that the affidavit filed along with the application was in the personal capacity and not on behalf of the company whereas the applicant was the company, i.e. the petitioner. The second discrepancy which was found to be a fetter to the petitioner's application was that the rent agreement in respect of the proposed shop and the no objection certificate of the landlord was not in favor of the petitioner. These lacunae were considered to be a fundamental nature and the applications were rejected.

9.3 The affidavit that was required was in terms of Clause 2.2 (b) of the terms and conditions and was to be in the form given in Annexure II to the said terms and conditions. The affidavit that was supplied by the petitioner was that of one Shri Jagdish Chander Aggarwal. It is the respondents' contention that the petitioner company was the applicant and, therefore, the affidavit should also have been of a person on behalf of the petitioner company. It is apparent from a perusal of the affidavit which is at page 48 of the paper book that although it bears stamp at the bottom of the page which says -

"For Cox India Limited

Director/Authorised Signatory"

and the said Shri Jagdish Chander Aggarwal has signed, the affidavit portion does not show that Shri Jagdish Chander Aggarwal has signed it in his capacity as the representative of the petitioner. This, according to the learned counsel for the petitioner is a mere technicality inasmuch as the affidavit is in a printed proforma and has been filled in accordingly. Since somebody has to represent the company the affidavit has to be of an individual. He further submits that the affidavit has been signed by Shri Jagdish Chander Aggarwal for the petitioner company as its Director/Authorised Signatory and this affidavit should be construed as an affidavit on behalf of the petitioner who was the applicant in the said L-52 license. On examination of the said affidavit it does appear to me that there is some substance in what the learned counsel for the petitioner has submitted. The affidavit clearly discloses that it has been signed by the said Shri Jagdish Chander Aggarwal who is a Director and is also an authorised signatory for the petitioner company. In these circumstances, it would be a mere technicality to suggest that the affidavit is not of the petitioner and is by the said Shri Jagdish Chander Aggarwal in his personal capacity and not as a Director/Authorised Signatyory of the petitioner company.

9.4 However, this will not improve the case of the petitioner inasmuch as the second ground of rejection of the application appears to me to be insurmountable insofar as the petitioner is concerned. The rent agreement, a copy whereof has been filed at pages 49 to 50 of the paper book, clearly shows that it is between Shri Jagdish Chander Aggarwal, S/O Shri Om Prakash Aggarwal (in his personal capacity) and Shri Brij Mohan (owner). There is no mention in the rent agreement either in the description of the parties or in the recital or in the main body thereof to the effect that the tenancy is in favor of the petitioner company. On the contrary, the tenant has been shown to be Shri Jagdish Chander Aggarwal and the tenancy is in his favor in his individual capacity. On the basis of this document, the petitioner would not be in a position to establish tenancy in its favor. In this case also there is a rubber stamp to the effect "For Cox India Limited -- Director/Authorised Signatory" and the said Shri Jagdish Chander Aggarwal has signed thereon. This, however, does not change the nature of the rent agreement which clearly indicates Shri Jagdish Chander Aggarwal to be a tenant and not the petitioner company. Coming now to the No Objection Certificate (at page 51 of the paper book) issued by the landlord/owner, I find that in paragraph 2 thereof it is clearly stated that Shri Jagdish Chand Aggarwal s/o Shri Om Prakash Aggarwal, 51/18 Old Rajinder Nagar, Delhi-60 is the tenant in respect of the built up shop bearing property No. F-399, Khajoori Khas Colony, Main Wazirabad Road, Delhi-110094. Even the No Objection that has been granted is in the following terms:-

"I have no objection if Shri Jagdish Chand Aggarwal apply for retail wine shop in the above-said tenanted shop"

It is apparent that the landlord recognises only Shri Jagdish Chand Aggarwal as the tenant and there is no mention of the petitioner company at all. Secondly, the No Objection for running the retail shop in the tenanted premises has also been granted in favor of Shri Jagdish Chand Aggarwal in his personal capacity and there is no mention of the petitioner company at all. In these circumstances, it is clear that the second ground of rejection as contained in the impugned speaking order has to sustained.

9.5 Learned counsel appearing on behalf of the petitioner next urged that even if these were assumed to be discrepancies the petitioner should have been given an opportunity to remove the same. He further submitted that in respect of the term/condition with regard to the submission of Domicile Certificate, the Respondents had relaxed the same and had permitted the applicants to submit Domicile Certificates even after the last date of submission of applications. The petitioner drew my attention to paragraph XIIA of the amended writ petition wherein it is stated as under:

"XIIA: That the respondents had adopted the procedure and practise of informing other applicants for grant of license about the deficiency/deficiencies in their application forms an also afforded an opportunity to remove the same, however, the respondents adopted a completely arbitrary and discriminatory approach while dealing with the application form of the petitioner as the respondents neither informed the petitioner about the alleged deficiency nor afforded any opportunity to remove the same. The petitioner has been able to lay hands on one of such letter issued by the respondents to one of the applicants and the copy of the same is annexed hereto and is marked as Annexure P-7."

Annexure P-7 referred to in the above paragraph is a letter issued to one Subhash Chand informing him that his application was liable to be rejected because of non-submission of Domicile Certificate and he was advised to furnish the same latest by 6 p.m. of 5.11.2002 failing which the application would be rejected without giving any further notice. On the basis of this, the Learned counsel for the petitioner has urged that when leniency was shown to persons such as Subhash Chand by permitting him to cure defects why was the petitioner not given the same latitude. This, according to him, itself smacks of arbitrariness and discrimination and entitles the petitioner to the relief claimed in the petition. In reply to the specific averment with regard to the relaxation in the period for submission of Domicile Certificate the respondents in the counter affidavit in paragraph XII-XIIA have this to say:

"XII-XIIA. The contents of paras XII & XIIA of the petition are partly denied. The Government which had approved the Terms and Conditions for grant of L-52 licenses, subsequently decided to grant an opportunity to those applicants whose applications were liable to be rejected on the sole ground of non-submission of original domicile certificate, to produce the same. However, no such opportunity was accorded to those applicants whose applications were getting rejected on account of any other deficiency/discrepancy. The contentions of the petitioner that the respondents have adopted a discriminatory approach while dealing with the Application Form of the petitioner is wholly misplaced and an opportunity was accorded to those applicants whose application was complete in all other aspects but was liable to be rejected because of non submission of domicile certificate of the proprietor/one of the partners of the partnership firm. The petitioner, in comparing his case with such cases has tried to mislead this Hon'ble Court. Those applicants whose applications were being rejected on any other ground, apart from non submission of domicile certificate, were not accorded any opportunity. The case of non availability of domicile certificate was a general problem faced by a number of applicants and in that view of the matter it was decided to grant an opportunity to those applicants whose applications were liable to be rejected on the sole ground of non submission of original domicile certificate or to produce the same."

9.6 It is apparent from the above as well as from the nothings on the file which were discussed earlier that while there was an initial proposal mooted by the Finance Minister to permit all applicants, after notice and after personal hearing, to correct deficiencies in their applications within a week before the Collector Excise rejected the same, this never saw the light of day. This question of removal of defects and personal hearing was not part of the initial and original terms and conditions. Moreover, the Chief Minister had categorically ordered that only those applications which were complete in all respects should be entertained. The question of informing parties of deficiencies or defects did not arise. Neither did the question of giving an opportunity of personal hearing. As indicated above, there was some latitude shown in respect of the submission of Domicile Certificates inasmuch as there was a general representation that applicants had difficulties in obtaining the Domicile Certificates in time. In view of this the time for submitting Domicile Certificate was extended for all persons concerned. It applied only to those applicants who had not submitted Domicile Certificates by the closing date, i.e. 2.8.2002. Obviously, since it pertains to non-submission of Domicile Certificates, this relaxation has no relevance in respect of those who had already submitted their Domicile Certificates. In view of this it is apparent that the action taken by the respondents in extending the date for submission of Domicile Certificates was not unreasonable or arbitrary. There were reasons and circumstances which warranted such a decision. It could not be considered to be a decision which no reasonable person or authority could have taken. Accordingly, I find that it was neither arbitrary nor unreasonable. Moreover, the petitioner cannot rely upon such extension of the date for submitting Domicile Certificates as a ground to claim relaxation in the terms and conditions in respect of the deficiencies on the basis of which the petitioner's application was rejected by the impugned order dated 8.11.2002.

CW 8044/2002

10.1 In this writ petition, as mentioned above, the petitioner company had applied for an L-52 License for a retail outlet at Shop No. 20, Shopping Center, Karampura, New Delhi-110015. This application of the petitioner was also rejected by an order dated 11.11.2002 passed by the Collector Excise. Copy of the order is annexed to the writ petition as "Annexure P-4" and is at page 51 of the paper book. The material portion of the order is as under:-

"The documents submitted by the above applicant have been scrutinised as per the requirement laid down in the terms and conditions for grant of L-52 license and after the scrutiny the following discrepancies have been found:-

1. Proof of office for more than 5 years in Delhi not filed.

The application is rejected because of the above mentioned deficiencies/discrepancies. The applicant be informed accordingly and his earnest money be refunded."

10.2 It is apparent that the ground on which the application of the petitioner was rejected was that proof of office for more than five years in Delhi had not been filed. The learned counsel for the petitioner while referring to the contents of paragraph 4 of the petition submitted that the petitioner company was incorporated and registered under the Companies Act, 1956 with the Registrar of Companies in Delhi in July 1987. Thereafter, with effect from 2.11.1998 the registered office was shifted within Delhi itself to the present registered office at 51/18, Old Rajinder Nagar, New Delhi and the required Form 18 under the Companies Act, 1956 and the Rules made there under was also issued. Accordingly, the learned counsel for the petitioner submitted that on the date of the application, i.e. 1.8.2002 the petitioner had an office in Delhi for more than five years inasmuch as the petitioner Company was registered with the Registrar of Companies in Delhi since July, 1997. Thus, as a matter of fact the petitioner did have an office for more than five years in Delhi on the date on which the petitioner made the application for L-52 license.

10.3 While this may be true as a matter of fact, it is also true that the petitioner had not submitted any proof of the same. However, it is submitted on behalf of the petitioner that it was under the bona fide impression that in case the application form of the petitioner was lacking in any respect and/or there was any discrepancy in any respect the petitioner would be informed about the same and the petitioner would be accorded the opportunity to do the needful in order to avoid the rejection of the application. On this expectation the petitioner felt that it would, in the very least, be informed about any discrepancy which it could immediately cure. In this context, it is suggested that if it were pointed out to the petitioner that the proof of office for more than five years in Delhi had not been filed and that this was being regarded as a material deficiency then he could have immediately within a few days filed the Form 18 as well as certificate of incorporation to show that the petitioner had an office in Delhi for more than five years. Unfortunately, this opportunity was not granted to the petitioner and the application was rejected by the said order dated 11.11.2002. Thus, according to the petitioner he has been dealt with unfairly, in violation of the principles of natural justice and has been discriminated upon. Accordingly, the petitioner seeks quashing of the impugned order dated 11.11.2002.

10.4 The learned counsel for the petitioner further submitted that when time for submitting Domicile Certificate was extended and non-submission thereof did not straightway result in rejection the petitioner should also have been given an opportunity to submit the proof of having a registered office for more than five years in Delhi. The learned counsel appearing on behalf of the respondents submitted that the extension of time granted for submission of Domisile Certificate had application to individuals and not to companies. The reason why the extension of time was granted was because there was some difficulty in obtaining the Domicile Certificates in time. However, insofar as the companies are concerned, the certificate of incorporation as well as Form 18 is always available with the company and could have and should have to be submitted in the first instance in accordance with the terms and conditions of the application. The petitioner company could have also submitted copies of their Sales Tax Returns, Income Tax Returns etc. to establish that they had registered office in Delhi for more than five years.

10.5 From an examination of the terms and conditions which have been set out earlier, it is clear that at the very begining it is mentioned that only those applications which are complete in all respects would be considered for grant of licenses. It is further stipulated that incomplete applications shall be liable to be rejected without notice. These caveats were known to all the applicants. Clause 1.5 of the terms and conditions clearly stipulated as under:

"1.5 The applicant, in case of sole-proprietorship and one of the partners in the case of a partnership firm, must be a resident of Delhi. In case of companies/firms their offices must be registered in Delhi with any Government agency (Sales Tax/Income Tax, etc.)for more than five years. In case of cooperative societies, it must be registered with the Registrar, Cooperative Societies, Delhi for more than five years."

From this Clause, it is apparent that while in the case of a proprietorship concern or a firm, it was necessary that either the sole proprietor or any one of the partners of the partnership firm, as the case may be, was a resident of Delhi. The Domicile Certificate was for the purpose of certifying such residence or domicile of such person in Delhi. The Certificate was required to be submitted along with the application in terms of Clause 2.2 (g). Insofar as companies were concerned, it is clear that they had to satisfy the condition that their offices must be registered in Delhi with any government agency for more than five years. This proof of registered office being in Delhi was also required to be submitted in terms of Clause 2.2 (g) of the terms and conditions. There was no difficulty in obtaining such proof and they are normally available with companies. The Domicile Certificate to be submitted by individuals and the proof of registered office in Delhi in the case of companies are two entirely different documents. There was some difficulty with regard to the obtaining of Domicile Certificates and a delay was being cause inasmuch as the authority concerned was taking time to issue such certificates. As indicated above, it is under these circumstances that the time for submission of Domicile Certificates was extended and non-submission thereof in the first instance was not recorded as a ground for rejection. The requirement of proof of registered office stood on an entirely different footing and the non-submission thereof in the first instance made the application liable for rejection. In this view of the matter, there is no substance in the arguments advanced on behalf of the petitioner.

10.6 Moreover, the application of the petitioner being admittedly incomplete, it was in any event liable to be rejected without any recourse to the petitioner. The terms and conditions were clear. Nor has it been alleged that on behalf of the petitioner that there was any ambiguity in the condition requiring proof of registration in Delhi for over five years. In this context it would be instructive to note the observations of the Supreme Court in the case of Monarch Infrastructure (P) Ltd v. Commissioner Ulhasnagar Municipal Corporation: where one of the tenderers under an alleged mistaken impression submitted a notarised photocopy of a demand draft instead of the original demand draft towards earnest money deposit. His tender was rejected on the ground that the original draft had not been submitted. Upholding the rejection of the tender offer, the Supreme Court had this to say:-

"13. Now it is necessary to consider the case of Ramchand Mahadeo Rao. One of the conditions to make offer is regarding the earnest money deposit for a sum of Rs 1.70 crores in the form of a crossed demand draft/pay order or cash. Ramchand Mahadeo Rao got prepared a cheque for Rs. 1.70 crores as required from the bank and submitted the tender just before the expiry of the time on 19-4-2000. He further alleges that in haste and confusion misplaced the demand draft and was in a wrong impression that a mere photocopy of the draft duly notarised will be sufficient and, therefore, he submitted photocopy of the demand draft along with other relevant documents. The conditions of the "notice inviting tender" is that the same should be accompanied by a demand draft/pay order or cash and in no other form. It is (sic not) clear from the statement made by him as to in what manner he could gather an impression that a photocopy of the demand draft duly notarised would be sufficient nor could it be said (sic denied) that it is naïve to accept a mere statement that the demand draft for a sum of Rs 1.70 cores obtained for the purpose of submitting the same along with the tender documents could be misplaced in the manner suggested in the application. Therefore, the Municipal Corporation is justified in rejecting the tender offer made by Ramchand Mahadeo Rao as not fulfillling the conditions of the Tender Notice.

10.7 It must also be noted that the petitioner has not alleged any mala fides against the respondents nor is it a case where the condition of proof of office has been relaxed for some and not for others. There is no discrimination within the same class of applicants and, therefore, the action of the respondents in rejecting the application of the petitioner cannot be faulted. There is no error in the decision making process. There is no arbitrariness or unreasonableness. The terms and conditions as stipulated have been followed and the rejection is on the basis of these terms and conditions.

11. In Air India Ltd. v. Cochin International Airport Ltd: the Supreme Court held that:-

"In a commercial transaction of a complex nature what may appear to be better, on the face of it, may not be considered so when an overall view is taken. In such matters the court cannot substitute its decision for the decision of the party awarding the contract."

In Tata Cellular v. Union of India: the Supreme Court pointed out that the modern trend points to judicial restraint in administrative action and emphasized that the court does not sit as a court of appeal but merely reviews the manner in which the decision was made. As I find no fault in the decision making process, no interference with the impugned orders is called for.

12. In view of the foregoing discussion and reasons, the writ petitions are dismissed with no orders as to costs.