Antar Rajya Bus Adda Samachar ... vs Govt. Of Nct Of Delhi & Others
2010 Latest Caselaw 1134 Del

                                         REPORTABLE
*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+          WRIT PETITION (CIVIL) NO. 3677 OF 1992

                        Reserved on : 19th November, 2009.
%                       Date of Decision : February 26th , 2010.

      ANTAR RAJYA BUS ADDA SAMACHAR
      PATRA VIKRETA UPBHOKTA COOPERATIVE
      STORE SOCIETY LTD.                      ..... Petitioner
                         Through Mr.D. K Rustagi, B.S. Bagga
                         advocates

                   Versus

      GOVT. OF NCT OF DELHI & ORS.       ..... Respondents

Through Mr. Sanjay Poddar, advocate.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be allowed to see the judgment?

      2. To be referred to the Reporter or not ?         YES
      3. Whether the judgment should be reported
      in the Digest ?                                    YES

SANJIV KHANNA, J. :

1. The petitioner-a cooperative society, in 1977 was granted licence

to sell newspapers, magazines, books in shop nos. S-31 and S-62 at

the Inter State Bus Stand Terminal, Kashmere Gate, New Delhi

(hereinafter referred to as ISBT Complex, for short) on a monthly

license fee of Rs.1700/- and Rs.1874/- respectively. The said licence

was for a specific period of five years. Subsequently, the petitioner was

also permitted to also sell newspapers, magazines, books on six trolleys

for each shop on a monthly fee of Rs.75/- per trolley.

2. The licence period expired in 1982 but instead of inviting fresh

WPC No.3677/1992 Page 1 bids, the Delhi Development Authority (hereinafter referred to as DDA,

for short) which was at that time managing and in control of ISBT

Complex decided to renew the licence by enhancing the license fee by

15%. Accordingly, the license was renewed/extended in 1982-83 for

shop nos. S-31 and S-62 @ Rs.2248/- and Rs.2400/- respectively. The

license fee of the trolleys remained the same.

3. This extended license period expired in 1988. The petitioner again

asked for extension of license period by enhancing the license fee

rather than fresh tenders and allotment by open competition. It is stated

in the writ petition that, DDA by their letters dated 6th December, 1991

and 17th December, 1991 informed the petitioner that the license fee

had been increased for shop nos. S-62 and S-31 with retrospective

effect from 23rd March, 1988 and 1st May 1988 as per details given

below :

Shop No. S-62

Srl. No. License period Fee (in Rs./p.m.)

1. 23.03.88-22.02.89 4,962

2. 23.03.89-22.02.90 5,210

3. 23.02.90-22.02.91 5,471

4. 23.02.91-22.02.92 10,942

Shop No. S-31

Srl. No. License period Fee (in Rs./p.m.)

1. 01.05.88-31.03.89 4,496

2. 01.04.89-31.03.90 4,721

3. 01.04.90-31.03.91 4,957

4. 01.04.91-29.02.92 9,914

WPC No.3677/1992 Page 2

4. In addition to the enhanced license fee, the petitioner was also

required to pay additional security deposit and furnish bank guarantee,

etc. The license fee payable for each of the six trolleys was increased

w.e.f. 1989 as per the details given below :

Shop no. S-62

Srl. No. License period Fee (in Rs./p.m.)

1. 23.03.88-22.02.89 172.66

2. 23.02.89-22.02.90 181.33

3. 23.02.90-22.02.91 190.33

4. 23.02.91-22.02.92 380.66

Shop no. S-31

Srl. No. License period Fee (in Rs./p.m.)

1. 01.05.88-31.03.89 172.66

2. 01.04.89-31.03.90 181.33

3. 01.04.90-31.03.91 190.33

4. 01.04.91-29.02.92 360.66

5. In case of the trolleys also, the petitioner was asked to pay

enhanced security deposit and furnish bank guarantee.

6. In the year 1991, DDA also invited tenders and allotted shops for

sale of book, magazines, etc. to other parties in the ISBT Complex.

7. Enhancement in license fee with retrospective effect and

allotment of new shops to third parties for selling books and magazines

prompted the petitioner to file the present writ petition. It is alleged that

the license fee cannot be enhanced from retrospective effect and the

enhancement is per se arbitrary. Another contention raised in the Writ

Petition is that the petitioner was given exclusive license to sell

WPC No.3677/1992 Page 3 magazines and books in ISBT Complex and the allotments made to Mr.

Harbans Lal and Mr.Suresh Mittal, respondent nos. 3 and 4 herein are

illegal.

8. The following prayers have been made in the Writ Petition:-

"(a) to issue any appropriate writ/order or direction thereby quashing the order dated 6th December, 1991 (filed as Annexure „B‟ and „C‟ of the respondent No.2 and the order dated 17.12.1991 (Annexure „D‟ and „E‟) passed by the respondent No.2.

(b) to issue any appropriate/writ/order or direction there by quashing/setting aside the order dated 14th September, 1992 whereby the respondent No.3 and 4 were permitted by respondent No.2 to ply the trollies beyond entry gate point.

(c) to issue writ of mandamous (sic) or in the nature of mandamous (sic) or any other writ/order or direction to the respondents No.1 and 2 thereby directing not to charge from the petitioner society more than the licence fees/lease money as per the rates applicable in November, 1988 or such other enhanced rate by 15% as per its policy till date in this regard.

produce the copy of the order dated 14.9.92 and other such record found relevant by this Hon‟ble Court.

(d) To award costs of the writ petition;

(e) To grant any other relief as this Hon‟ble court deems fit and proper under the facts and circumstances of the case in favour of the petitioner and against the respondents."

9. The writ petition came up for hearing on 16th October, 1992 and

WPC No.3677/1992 Page 4 vide order dated 20th October, 1992, show cause notice was directed to

be issued. Subsequently, interim orders were also passed under which

the petitioner was asked to make part payments from time to time. By

order dated 29th November, 1995, Government of NCT of Delhi was

impleaded as a respondent to the writ petition as management and

control of ISBT Complex was transferred to them. The writ petition was

admitted for hearing on the same date and the interim order has

continued though some payments have been made by the petitioner to

the Govt. of NCT of Delhi/DDA. The petitioner has continued to remain

in occupation of the said two shops and have continued to sell books,

magazines, through the said shops and trolleys till today.

10. Respondent nos. 3 and 4 have filed their counter affidavit but it

was stated by the learned counsel for the petitioner that their licences

were not renewed and to this extent prayer clauses (b) and (d) of the

writ petition have been rendered infructuous. However, it is noticed that

there is no document or evidence available to show and establish that

the petitioner was given exclusive license or monopoly rights at the

ISBT Complex. In the writ petition itself, the petitioner has stated that

some of their relatives had participated in other tenders and/had given

highest bids for two trolleys, but subsequently allotment/tender was

cancelled. The respondents on the other hand, have pointed out that

ISBT Complex was constructed and became operational in 1976 and at

that time the daily total traffic was about 500 buses. In 1993, the daily

traffic in ISBT Complex had increased to about 3000 buses and

WPC No.3677/1992 Page 5 approximately 8 lacs passengers/commuters used to visit the ISBT

complex every day. With a view to provide better facilities, the ISBT

Complex was divided into five blocks, namely, departure, arrival, link,

DTC and dhaba blocks. It was noticed that there were inadequate

facilities for sale of newspapers, magazines, etc. at arrival, dhaba and

DTC blocks, therefore fresh tenders were called for. Shop no.S-31 is

located in the departure block and shop no.62 is in the link block. The

said two shops were not sufficient to meet requirements of books,

magazines, newspapers, etc. in arrival, dhaba and DTC blocks.

11. The contention of the petitioner therefore that they had monopoly

or exclusive right for all times to come is without merit and has to be

rejected.

12. As noticed above, initially the license granted to the petitioner was

only for a period of five years w.e.f. 1977 and the said license expired in

1982. Without calling for fresh bids/tenders, the license was extended

for another period of five years till 1988 with nominal increase in license

fee from Rs.1874/- to Rs.2400/- in respect of shop no.S-62 and from

Rs.1700/- to Rs.2248/- in respect of shop no.S-31. There was no

increase in trolley fee. Subsequently, it was agreed in 1988 to

renew/extend the license for further period of five years. However, the

increased license fee was not fixed. The petitioner was asked to furnish

an undertaking that they shall pay additional license fee at the current

rate which may be determined by DDA. The petitioner in fact furnished

two separate undertakings in respect of shop nos.S-31 and S-62.

WPC No.3677/1992 Page 6 Photocopy of the said undertakings have been filed on record by the

DDA. The petitioner has concealed this fact in the writ petition and has

not stated that they had furnished undertakings. Thus, the petitioner

was fully aware when they applied for extension of license in 1988 that

DDA was yet to determine the current license fee. They gave an

undertaking that they shall pay additional license fee demanded from

them. The petitioner was fully conscious that the license fee from 1988

onwards is still to be determined and was to be enhanced. The

petitioner, therefore, cannot object to the license fee now claimed on the

ground that the same has been enhanced retrospectively.

13. On the question of quantum of enhancement, power of judicial

review is limited. The Court is not concerned with arithmetical

calculations but is primarily concerned whether the respondents have

taken and considered, due and relevant facts and have been fair. It is

not possible to accept the plea of the petitioner that this Court should

strike down enhancement of license fee as demanded by the

respondent vide letters dated 6th December, 1991 and 17th December,

1991. By these letters, the existing license fee for first three years from

1988 to 1991 was marginally enhanced by 5% each year and for the

current year 1991-1992 the license fee was doubled. Increase in the

current year was a substantial enhancement but one has to keep in

mind that the initial license was only for a period of five years and was

fixed by way of competitive bids made in 1977. This period was again

extended with nominal increase in license fee for another period of

WPC No.3677/1992 Page 7 five years till 1988. As noticed above, ISBT Complex was constructed in

1976. By 1993, there was an increase in the number of buses plying

daily from 500 buses to 3000 buses. About 8 lac

passengers/commuters were visiting ISBT Complex daily. The

respondent no1 is required to provide service to the passengers and

maintain ISBT and for this purpose they are entitled to earn from

persons allotted commercial space in the complex. It may be relevant to

state here that in the fresh tenders floated in the year 1991, Mr.Harbans

Singh and Mr.Suresh Mittal-respondent nos. 3 and 4, had quoted

license fee of Rs.4250/- p.m./for each trolley at entry gate plaza at the

departure block. The tender was accepted and allotments were made.

The said respondents have filed counter affidavit. Keeping in view the

tender submitted and the rates quoted by the said respondents, it

cannot be said that the license fee fixed by the DDA for the two shops

and the trolleys was exorbitant and abnormally high. In view the

increase in standard of living, scales of expenditure, increase in

prosperity, inflation and the market value of money and commercial

value of shops, etc., it cannot be said that the enhancement is per se

arbitrary and irrational. The petitioner cannot contend and claim that

increase in the license fee should be only 5% or 10% per year. Increase

in license fee has to be in tune with the market conditions and is an

administrative decision which can be reviewed by judicial proceedings

on the basis of well established legal principles and should not be

discriminatory, arbitrary or based on whims and fancies but should be

WPC No.3677/1992 Page 8 based upon relevant material and criteria. The petitioner and their

members is a commercial association engaged in trade of selling

newspapers, magazines, books, etc. and are earning money from the

said activities and are liable to pay license fee. The respondents should

not be compelled and asked to charge lower license fee so as to

subsidize commercial operations and increase profits of the petitioner.

Any such attempt will fall foul of Article 14 of the Constitution of India

and would be discriminatory and arbitrary. In normal course after expiry

of the term of a short-term commercial license given for a specific

period, fresh tender/bids should be invited. This promotes openness,

transparency and ensures that the authorities secure license fee

determined and based upon market conditions. It also gives opportunity

to third parties to conduct and do business. It ensures/promotes free

and fair competition which is essential and necessary. (Aggarwal &

Modi Industrial Pvt. Ltd and another v N.D.M.C (2007) 8 SCC 75). In

the present case, the petitioner wanted renewal of the license which

was issued to them for a limited period of five years in 1977. They

undertook and agreed to pay the license fee which would be determined

by the respondent DDA. The respondent DDA, keeping in view the

increase in number of buses plying daily, increase in

commuters/passengers at ISBT Complex, inflation, etc., decided to

charge doubled license fee. It was open to the petitioner to reject the

said offer and ask the respondent DDA to go for fresh bidding. The

petitioner did not make any such statement.

WPC No.3677/1992 Page 9

14. By Order dated 20th November, 2007, the respondents were

asked to place on record the policy decision pursuant to which the

license fee was enhanced in 1991. The respondents have not been able

to place on record the said policy decision. This is understandable as

the decision was taken in 1991 and the said order was passed on 20th

November, 2007. Further the said policy decision was taken by DDA

and subsequently the management came under the control of

Government of NCT of Delhi. In the said order, subsequent policy

decision dated 10th November, 1993 has been quoted. The first

paragraph of the said policy decision reads as under:-

"Prior to policy as laid down below, on expiry of licence period, 100% increase in the existing licence fee, or market rate, whichever is less, was applicable as per policy in the case of renewal/extension of licence in respect of Shops/Kiosks/Counters/ Stalls etc, etc. This policy has now been modified on 25.9.1992 under the approval of the Competent Authority. Under this policy, licence of Shops/Kiosks/Counters/Stalls etc.etc. at Inter State Bus Terminus Complex, Kashmere Gate, Delhi will continue till the currency of the contract or 31.12.1992, whichever is earlier. As such, the licence of Shops/Kiosks/Counters/Stalls etc. etc. will be extended/renewed on the expiry of the initial period of licence on payment of additional licence fee every year as indicated below:-

       i)     All allotments made through tender
              or at the market rate;    10% per annum;
       ii)    All allotments made in compassionate-5%per
              grounds;                  5% per annum;

(iii) All allotments made to old evictees; - 5% per anuum"

15. It is clear from the said paragraph that it was earlier decided that

WPC No.3677/1992 Page 10 on expiry of the license period, 100% increase on the existing license

fee or market rate whichever is less would be charged. This was

followed by another policy decision on 25th September, 1992, inter alia,

stating that extension/renewal would be on additional license fee which

would vary between 5% and 10% p.a. The respondents have also filed

on record the latest statement of accounts showing the license fee

demanded and paid from the petitioner from time to time since 1988 till

March, 2010. The respondents have been asking the petitioner to pay

license fee with 10% increase p.a. w.e.f. February, 1992 and 5% annual

increase as per the policy decision dated 16th September, 2004 w.e.f.

March, 1998 in respect of the two shops. In respect of the trolleys, the

respondent no.1 has been charging 10% increase in the license fee

w.e.f. February 1992. These policy decisions have been universally

applied and as per the respondents other licensees have accepted the

increase and paid the amount.

16. The petitioner had filed C.M. No. 12694/2006 for disposing of the

writ petition as settled/compromised. In this connection, petitioner had

relied upon letter dated 31st August, 2005 written by the respondent

Govt. of NCT of Delhi to pay outstanding amounts. It is stated that the

petitioner had paid the said amount in terms of letter dated 31st August,

2005, therefore the whole dispute stands resolved/settled. The

respondent in reply to the said application has stated that the licenses

were last extended in 1988 for 11 months and had expired in 1989. All

others, except the petitioner had accepted enhancement of license fee

WPC No.3677/1992 Page 11 in 1991 and the said policy was uniformly applied. Petitioner had filed

the present writ petition challenging the enhanced license fee and the

same has remained pending. On 17th March, 2005, the petitioner had

stated that they would be satisfied if the license fee was enhanced by

15% after every three years. On this basis, calculation was made and

communicated to the petitioner. This, however, did not mean that the

respondent had given up their claim for enhanced license fee as

communicated in December 1991.

17. In view of the aforesaid discussion, it is held that the petitioner is

not entitled to any relief in the present writ petition. It is clear that the

respondent have been wrongly denied their dues. Principle of actus

curiae neminem gravabit is applicable and the respondent should not be

made to suffer on account of the stay order. The petitioner will therefore

be liable to pay simple interest @ 8% p.a. on the defaulted amounts

from the date the license fee as demanded by the respondent became

due and payable till payment was/is made i.e. on reducing balance. In

case fresh tenders/bids are invited, Petitioner or their members will be

entitled to participate in the said tender/bid provided they pay the

arrears.

Writ Petition is accordingly disposed of. Respondent Govt. of NCT

of Delhi is also held entitled to costs of Rs.10,000/-.

                                                    (SANJIV KHANNA)
                                                        JUDGE
      FEBRUARY        26, 2010
      P

WPC No.3677/1992                                                      Page 12