Arun Sharan vs Uoi & Ors.
2011 Latest Caselaw 3870 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                        Judgment delivered on: August 10,2011


                          W.P.(C) No. 7881/2010


Arun Sharan                            ......Petitioner

                Through:          Mr. Kundan Kumar, Adv.

                            Vs.

UOI & Ors.                             ......Respondent

              Through:            Mr. Jatan Singh, Adv.


HON'BLE MR. JUSTICE KAILASH GAMBHIR



1. Whether the Reporters of local papers may
    be allowed to see the judgment?                            No
2. To be referred to Reporter or not?                          No


3. Whether the judgment should be reported
     in the Digest?                                            No




KAILASH GAMBHIR, J.Oral:
*

1. By this petition filed under Article 226 of the

Constitution of India, the petitioner seeks to challenge the

order dated 30.10.2010 passed by the learned District Judge

IV, whereby the appeal filed by the petitioner under Section 9

of the Public Premises (Eviction of Unauthorized Occupants)

Act was dismissed.

2. Brief facts of the case relevant for deciding the

present petition are that the father of the petitioner Sh.Kirpal

Saran, was allotted a fruit stall on the first floor in Nirman

Bhawan on 28.5.1965, which licence was renewed from time

to time. That the father of the petitioner expired on 23.6.2007

and the respondent terminated the licence in respect of the

said stall. That the petitioner applied to the respondent for

the regularization of the said stall which was rejected and

eviction proceedings were initiated against him and an

eviction order dated 27.8.2010 was passed against him by the

learned Estate officer. That the petitioner preferred an

appeal against the order of the learned Estate Officer which

vide order dated 31.10.2010 was dismissed and feeling

aggrieved with the same, the petitioner has preferred the

present petition.

3. Mr..Jatan Singh, learned Standing Counsel for the

respondent/UOI submits that the petitioner has no legal right

over the stall/fruit shop in question which was allotted in

favour of his father. Counsel also submits that so far the right

of the petitioner to inherit licence of the said stall is

concerned, the policy of the Government is confined only to

the shops which are situated in various commercial markets

under the administrative control of the Directorate of

Estates. In support of his arguments, counsel has placed

reliance on the office order dated 21.02.1976. The contention

of counsel for the respondent is that the said office order is

only applicable to commercial markets and the stall, which

was allotted in favour of the father of the petitioner, on

license basis is not located in any of the commercial markets.

4. Mr. Kundan Kumar, learned counsel for the

petitioner, on the other hand, submits that the father of the

petitioner late Shri Kirpal Saran was allotted the said fruit

stall w.e.f. 28.05.1965 and since then he has been in

continuous and uninterrupted possession of the same where

he was running his fruit shop. Counsel also submits that the

license of the father of the petitioner was renewed by the

respondents from time to time and no complaint of violation

or breach of any terms & conditions of the license deed was

ever made by the respondents against the father of the

petitioner. Counsel also submits that the petitioner being his

son was also assisting his father in running the said business.

It is the case of the petitioner that the said license of the

father of the petitioner was cancelled by the respondents

merely on account of the fact that his father had expired on

23.06.2007. It is also the case of the petitioner that for the

last more than 40 years, the said shop was under the

occupation of the father of the petitioner and the same had

been the only source of livelihood of the father of the

petitioner and his family members. Counsel has also placed

reliance on a similar extension granted by the Dy. Director of

Estate vide their letter dated 2.11.2010 in respect of a fruit

stall which is located on the first floor of Shastri Bhawan,

New Delhi. Claiming parity with the renewal of the license of

the said case, counsel for the petitioner submits that the

petitioner cannot be discriminated against to deny the

renewal in favour of the petitioner by the respondents.

5. I have heard learned counsel for the parties.

6 It is not in dispute between the parties that the

stall in question was allotted by the respondent in favour of

Late Shri Kirpal Saran, father of the petitioner in the year

1965 and the said licence in favour of Mr. Kirpal Saran

continued from time to time and last agreement in favour of

the said allottee was executed by the respondent on

21.5.2004. The petitioner has claimed that he had been

assisting his father in his business of running the fruit shop

from the said stall for the last many years and therefore he

was in joint possession of the said shop with his father. It is

also not in dispute that the allotment of the said stall was

cancelled only because of the death of the original licensee

i.e. Mr. Kirpal Saran who had expired on 23.6.2007 and not

because of any violation on the part of the licensee or the

present petitioner of any terms and conditions of the licence

agreement. It is also not the case of the respondent that the

petitioner or the licensee had ever defaulted in making

payment of the licence fee. The licence which was last

renewed in favour of the father of the petitioner also came to

an end on 21.5.2007 and thereafter no fresh agreement of

licence was executed although the same was not terminated

during the life time of the original licensee who died about a

month later i.e. on 23.6.2007 from the date of the expiry of

the said agreement. It is also not in dispute that after the

death of his father, the petitioner had filed an application on

3.11.2008 to seek regularization of the said stall in his name

but the said request of the petitioner was rejected by the

respondent on the ground that the said stall in question

was not a designated shop. It is a settled legal position that

the petitioner invoking the writ jurisdiction of this court has

to establish clear and enforceable right in his favour and

correspondingly invasion or violation of such a legal right by

the State or the instrumentalities of the State. The father

of the petitioner was a licensee and his last license as per

the agreement dated 21.5.2004 was for the period

w.e.f.1.1.94 to 21.5.2007. Although no further agreement in

writing was executed between the said licensee and the

respondent but at the same time the license of the said fruit

stall was also not revoked by the respondent during the life

time of the father of the petitioner. The reason for revocation

of the said licence is primarily on account of death of the

licensee and the license being not heritable by the legal

heirs. There cannot be any quarrel with the proposition

that the license is a personal right granted to a person to

do something upon the immovable property of the granter

and it does not amount to the creation of an interest in the

property itself. The licence therefore is purely a permissive

right and is personal to a licensee and such a right being not

heritable cannot devolve upon the legal heris. In the teeth

of this settled legal position, the petitioner cannot claim any

right on the licensed stall in his capacity as a legal heir of

late Shri Kirpal Saran. It has been time and again held by

the Apex Court that the action of the State or

instrumentalities of the State cannot be based on whims and

fancies and cannot be discriminatory to say the least and has

to fulfill the mandate of Article 14 of the Constitution of

India. The Apex Court in the case of New India Assurance

Company vs. Nusli Neville Wadia (2008)3SCC279 held that if

the landlord is a State within the meaning of Article 12 of the

Constitution of India then it is required to prove fairness and

reasonableness on its part in initiating a proceeding and that

its action has to meet the constitutional requirements of

Article 14 of the Constitution of India. This was further

reiterated by this court in the case of Kamla Bhargava & Anr.

vs Life Insurance Corporation of India & Ors. W.P. (C) No.

12718/2009 decided on 20.1.2011 and then in Damyanti

Verma vs. Life Insurance Corporation of India WPC

4342/2007 decided on 25.7.2011 that the action of the State

has to satisfy the requirements of the test of fairness,

reasonableness, which are the basic postulates of Article 14

of the Constitution of India and cannot be totally arbitrary

and capricious. There cannot be thus any dispute that the

action taken by the State against any of its lessee/licensees

must not be unreasonable, whimsical, unfair, unjust or

tainted with arbitrariness or capriciousness Nevertheless, the

respondent being a Government Department in the present

case thus cannot be seen to be adopting different

parameters for similarly placed persons.

7. During the course of the hearing of the present

petition, counsel for the petitioner brought to the notice of

this court that in an identical placed case, the respondent

had renewed the licence in favour of the legal heir where

also the fruit stall on the first floor of Shastri Bhawan was

licensed in favour of one Mr. Madan Lal Gupta and after his

demise the licence was renewed in favour of his wife Smt.

Shakuntala Devi. This renewal of the licence in favour of

Smt. Shakuntala Devi has not been denied by the respondent.

However, the respondent in its short affidavit filed through

Dy. Director of Estates has taken a strange stand by

stating that they are not in a position to say how the said

fruit stall was allotted to a private person and under what

circumstances the license was renewed in favour of the wife

of the deceased licensee. With such a stand taken by the

respondent, it is quite manifest that for two licencees, one in

Nirman Bhawan and the other one in Shastri Bhawan

different parameters have been adopted by the respondent

and in the absence of any explanation coming forth the

denial of renewal of license in favour of the petitioner is

discriminatory on the very face of it. Counsel for the

respondent has also taken a stand that so far the heritability

of the licence is concerned, as per their policy the same is

confined only to the shops in the commercial markets and not

for stalls located in the Government buildings. Counsel has

also taken a stand that in fact there is no policy in place to

grant rights to the legal heirs of the licensed stalls located in

various Government buildings. Even if this contention of the

counsel for the respondent is taken as correct, then also the

Government cannot be seem to be adopting a different

yardstick for the similarly situated persons. In the absence

of any justification given by the respondent as to why and

how the licence in favour of Smt. Shakuntala Devi was

renewed and why not in the case of the petitioner, this court

is of the considered view that interest of justice would be

best served if the licence of the petitioner is also renewed

by the respondent at least for a period of three years so as to

enable him to run the fruit stall, from the same space from

where he was earlier operating and if the said space has

already been occupied by the concerned Ministry, then

some other reasonable space of equal measurement on the

same floor be made available to the petitioner within a period

of one month from the date of this order.

8. In the light of the above discussion, the

impugned order dated 30.10.2010 is hereby set aside.

9. In terms of the above order, the present petition

is allowed.

AUGUST 10 , 2011                  KAILASH GAMBHIR, J