Delhi High Court

Antra Rajya Bus Adda Samachar ... vs Govt. Of National Capital ... on 23 November, 2010

Author: Manmohan

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      LPA 285/2010 & CM Nos. 7520, 11205/2010

ANTRA RAJYA BUS ADDA SAMACHAR
PATRA VIKRETA UPBHOKTA
CO-OPERATIVE STORE SOCIETY LTD.          ..... Appellant
                 Through: Mr. D.K. Rustagi, Advocate with
                          Mr. B.S. Bagga, Advocate.

                       versus

GOVT. OF NATIONAL CAPITAL
TERRITORY OF DELHI & ORS.                  ..... Respondents
                  Through: Mr. N. Waziri, Advocate with
                           Mr. Prem Mishra, Advocate.

                                      Reserved on: 09th November, 2010
%                                     Date of Decision: 23rd November, 2010


CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN

1. Whether the Reporters of local papers may be allowed to see the judgment?    No.
2. To be referred to the Reporter or not?                                       Yes.
3. Whether the judgment should be reported in the Digest?                       Yes.


                                JUDGMENT

MANMOHAN, J :

1. The present Letters Patent Appeal has been filed challenging the

judgment and order dated 26th February, 2010 passed by the learned

Single Judge whereby he has dismissed the Appellant's writ petition

being W.P.(C) No.3677/1992 with costs of ` 10,000/-.

2. Briefly stated the relevant facts of the present case are that in

1977, Appellant-co-operative society was granted a licence by Delhi

Development Authority (hereinafter referred to as "DDA") to sell

newspapers, magazines, books in two shops bearing Nos. S-31 and S-

62 at the Inter State Bus Terminus, Kashmere Gate, New Delhi

(hereinafter referred to as "ISBT Complex") on a monthly licence fee

of ` 1700/- and ` 1874/- respectively. The said licence was for a

period of five years. Subsequently, the Appellant was also permitted to

sell newspapers, magazines, books on six trolleys for each shop at a

monthly fee of ` 75/- per trolley. Clause 24 of a similar Licence

Agreement dated 10th November, 1993 upon which the Appellant

placed heavy reliance is reproduced hereinbelow:-

"24. That the licensor may at the request of Licensee renew the license for such further period on the terms and conditions as may be imposed by the licensor in the absolute discretion and subject to enhancement of license fee by 15% of the then existing licensee fee."

3. The tenure of licence was renewed every three years with fifteen

per cent increase in licence fee.

4. In 1988, the Appellant sought a renewal thereof on the same

terms. Their request was declined. However, subsequently they were

permitted by DDA to run their business from the premises occupied by

them, provided they furnish an undertaking that they would pay the

licence fee as may be determined by DDA. On 12th January, 1989, the

said undertaking was promptly furnished. Accordingly, DDA (then

managing the Bus Terminal) permitted the Appellant to continue on

licence basis with the condition that the licence fee as may be

determined by them would be paid by the Appellant. The licence fee

was determined by DDA in 1991. A demand was raised for payment of

licence fee as per the revised rates. However, instead of paying the

demand, the Appellant impugned the same in a writ petition in 1992.

5. By virtue of an interim order in the writ petition, the present

Appellant was permitted to make part payments to the respondents.

According to the respondents, the payment was observed more in

breach than in compliance and for the past many months no licence fee

has been paid by the Appellant at all.

6. Since the Appellant relied upon the respondent's policy dated

10th November, 1993, to contend that there was automatic renewal of

licence for an unlimited period on payment of 10% enhanced fee, the

relevant portion of the said policy is reproduced hereinbelow:-

"prior to policy as laid down below, on expiry of license period, 100% increase in the existing license fee, or market rate, whichever is less, was applicable as per policy in the case of renewal/extension of license in respect of Shops/Kiosks/Counters/Stalls etc. This policy has now been modified on 25.09.1992 under the approval of the Competent Authority. Under the policy, license 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 license of

Shops/Kiosks/Counters/Stalls etc. will be extended/renewed on the expiry of the initial period of license on payment of additional license fee every year as indicated below:-

i) All allotments made through tender or at the market rate; : 10% per annum

ii) All allotments made on Compassionate : 5% per annum

iii) All allotments made to old evictees : 5% per annum"

7. However, after a gap of eighteen years, a learned Single Judge of

this Court dismissed the writ petition filed by the Appellant holding that

there was no document or evidence to show and establish that the

Appellant had been given exclusive licence or monopoly rights at the

ISBT Complex. The learned Single Judge further held that the

Appellant had concealed before him the fact of furnishing of an

undertaking to pay additional licence fee as determined by DDA. The

learned Single Judge also found that the increase of licence fee as

demanded by the respondents was reasonable. While dismissing the

writ petition, the learned Single Judge directed the appellant to pay the

outstanding dues as determined by the respondents with simple interest

@ 18% per annum.

8. Mr. D.K. Rustagi, learned counsel for the Appellant submitted

that Clause 24 of the agreement and the policy dated 10 th November,

1993 stipulated automatic right of renewal of the licence for an

unlimited period. He further submitted that a Division Bench of this

Court in Bharat Catering Corporation & Anr. Vs. Union of India &

Ors.,100 (2002) DLT 640 (DB) had recognised the right to renewal of

licence as a valuable right and also enforceable so long as the same is

provided in the policy of the government/licensor. The relevant portion

of the said judgment is reproduced hereinbelow:-

"11. A licence granted in favour of a person may not be renewed but he has a right to be considered therefor.

In Principles of Judicial Review by De. Smith, Woolf and Jowell, published in 1999, it is stated:

"Non-renewal of an existing licence is usually a more serious matter than refusal to grant a licence in the first place. Unless the licensee has already been given to understand when he was granted the licence that renewal is not to be expected, non-renewal may seriously upset his plans, cause him economic loss and perhaps cast a slur on his reputation. It m ay therefore be right to imply a duty to hear before a decision not to renew irrespective of whether there is a legitimate expectation of renewal, even though no such duty is implied in the making of the original decision to grant or refuse the licence"

xxx xxx xxx

13. Renewal of a licence, as is well known, is a valuable right. Such a valuable right could not have been denied to the petitioners herein arbitrarily. It can be refused only on cogent and valid grounds. Licences are granted and renewed in terms of the provisions of a policy decision. The Competent Authority derives their power thereunder. They, thus, must act strictly in terms of the provisions thereof. Their actions must be fair, reasonable and equitable."

9. Mr. Rustagi also submitted that the respondents in the present

case had not placed on record any terms of the agreement between the

parties justifying increase of the licence fee by 100% as a pre-condition

for renewal of the licence. He pointed out that the respondents in the

counter affidavit had claimed that the basis of the increase was "the

decision of the authority." According to him, the impugned increase is

based on a decision of the officer of the respondents without any

backing of a policy and was thus not enforceable.

10. In our opinion, neither Clause 24 of the Agreement nor the policy

dated 10th November, 1993 confers upon the Appellant an automatic

right of renewal of licence for an unlimited period. We are of the view

that the policy dated 10th November, 1993 was not applicable when the

Appellant's licence had come up for renewal. In any event, the said

policy offers no assistance, as of today, to the Appellant inasmuch as it

was valid till the currency of the contract or 31st December, 1992,

whichever date was earlier.

11. Even judgment of Division Bench of this Court in Bharat

Catering Corporation & Anr. Vs. Union of India & Ors. (supra) is of

no help to the Appellant as it pertains to a catering contract which was

executed in accordance with the catering policy of 1992 wherein

licencee was given a right to seek extension for a further period of five

years subject to satisfactory performance by the licencee. In fact, in the

present case, the Appellant's renewal would be governed by the

agreement between the parties and in particular the undertaking dated

12th January, 1989 furnished by the Appellant.

12. Consequently, even if the right of renewal is held to be

enforceable, as contended by Mr. Rustagi, learned counsel for the

Appellant, then also by virtue of the undertaking dated 12th January,

1989, the licence would be liable to be extended only if the Appellant

agreed to pay licence fee as determined by the respondent licensor. The

said undertaking dated 12th January, 1989 is reproduced hereinbelow:-

Undertaking I, Mohan Kumar Son of Sh. Basanta Ram Resident of News Paper Co-op. Society Shop No.31, ISBT, K. Gate, Delhi, do hereby undertake as under:-

1. That after the expiry of license period of Shop No.31, I shall continue to pay the license fee at the existing rate and agree to pay additional amount equivalent to difference between current rate and rate as may be determined by the Delhi Development Authority in accordance with the decision of the Authority in this regard.

I shall also abide by the guidelines and the terms and conditions of the licensor, as may be imposed upon me. In case the rates determined by D.D.A. are excess of my paying capacity, I shall vacate the premises after giving notice of one month for the intervening period clear dues on the rates determined for consideration of Delhi Development Authority agreeing not to charge penalties for such surrender.

Executant Sd/-

Mohan Kumar (Cashier)

(emphasis supplied)

13. In our opinion, once the Appellant agreed to pay the licence fee

as determined by DDA, it cannot now contend that the licence fee could

not be revised at all or had to be revised in a particular manner. We

may mention that neither the Appellant was statutorily bound to take

the shops in question on licence nor the licence pertained to any

essential commodity without which the Appellant could not have

survived. In case, the licence fee determined by the respondents was

high or commercially unviable, then the Appellant should have vacated

the licenced premises.

14. We may also mention that a comparative chart has been filed by

the respondents to show that for the last three decades, the licence fee

paid by other similarly situated shop owners was many times higher

than that of the Appellant. The said chart is reproduced hereinbelow:-


  "Shop       Name of       Area     Before        Period      License       Outstandi
  No.         Licensee      in       increasing    when        fee after     ng
                            Sq.ft.   the           License     increasing    amount
                                     licensee      fee         100%          upto June
                                     fee           increased                 2010

  Shop        Kamlesh      140.94    Rs.563.00     20-May-89   Rs.1,126.00   Nil
  No.4        Jain

  Shop                     131.75    Rs.1,865.00   18-Jul-90   Rs.3,356.00   (Vacated)
  No.7        Kamlesh
              Jain


  Shop                                                         Rs.2,778.00
              Mohan Lal    140.94    Rs.1,389.00   4-Jun-89                  (Vacated)
  No.12

  Shop                                                         Rs.3,491.00
  No.15       Tulsi Dass   140.94    1,746.00      19-Nov-89                 (Vacated)





   Shop No.31 Newspaper Society       63.08     Rs.5,441.00    22-Feb-91 Rs.10,882.00      Rs.10,480,732.00

           6 Trollies with Shop No.31 36.00   Rs.1,254.00               Rs.2,508.00     o/s dues with 6 trollies.

  Shop           Bharat            56.66        Rs.1,376.00         11-Mar-91          Rs.2,752.00       (Vacated)
  No.42A         Bhushan

  Shop No.56     Ashwani
                 Kumar       & 60.35            Rs.3,306.00         2-Jan-88           Rs.6.154.00       (Vacated)
                 Kuldeep Raj

  Shop No.61     Vijay Kumar &                                                         Rs.8,266.00
                 Ved Parkash   168.03           Rs.4,113.00         21-Apr-91                            (Vacated)




  Shop No.63 Newspaper Society       143.17   Rs6,004.00       22-Feb-91 Rs.12,008.00         Rs.10,959,706.00

           6 Trollies with Shop No.62 36.00   Rs.1,254.00                 Rs.2,508.00      o/s dues with 6 trollies.

  Shop           Kailash           62.24        Rs.3,194.00         11-Mar-89          Rs.6,388.00       (vacated)
  No.63          Rani


                                                                                                                    "

15. Moreover, it is settled position of law that a person continuing in

possession of the premises after termination, withdrawal or revocation

of the licence continues to occupy it as a trespasser or as a person who

has no semblance of any right to continue in occupation of the

premises. (Refer to D.H. Maniar & Ors. Vs. Waman Laxman Kudav,

(1976) 4 SCC 118, para 10 and Puran Singh Sahni Vs. Sundari

Bhagwandas Kripalani & Ors.,(1991) 2SCC 180, para 31). In fact, in

Salmond & Heuston on the Law of Torts, 20th Edition, it has been

stated as under:-

"(2) Trespass by remaining on land Even a person who has lawfully entered on land in the possession of another commits a trespass if he remains there after his right of entry has ceased. To refuse or omit to leave the plaintiff's land or vehicle is as much a trespass as to enter originally without a right. Thus any person who is present by the leave and licence of the occupier may, as a general rule, when the licence has

been properly terminated, be sued or ejected as a trespasser, if after request and after the lapse of a reasonable time he fails to leave the premises. A reasonable degree of force may be used to control the movements of a trespasser or to eject him. This must be distinguished from the case of a person lawfully in possession of land who refuses or omits to give it up on the termination of his lease or other interest. A lessee holding over is no trespasser until demand made; for a trespass can be committed, as we shall see, only against the person in the present possession of the property."

(emphasis supplied)

16. We may also mention that the Appellant has not disputed before

us that the Appellant had suppressed the fact before the learned Single

Judge that it had given an undertaking dated 12th January, 1989. In our

opinion, this ground of suppression is itself sufficient to disentitle the

Appellant from any relief from this Court.

17. Consequently, we direct the Appellant to vacate the licenced

premises by 31st December, 2010. In case the Appellant does not

vacate the said shops and trolley space by the stipulated time, the

respondents would be at liberty to initiate appropriate proceedings in

accordance with law including contempt of Court proceedings against

the office bearers of the Appellant and seek dispossession of the

Appellant with police aid. However, as far as payment of outstanding

dues is concerned, liberty is granted to the respondents to initiate

appropriate recovery proceedings against the Appellant in accordance

with law. Accordingly, the present appeal and applications are disposed

of but with no order as to costs. Interim directions given vide order

dated 11th June, 2010 stand vacated.