Gauhati High Court
WA/389/2022 on 14 December, 2022
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GAHC010256202022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WRIT APPEAL NO. 389 OF 2022
Sri Raju Deka,
S/o Sri Dhaneswar Deka,
R/o Dinjan Tiniali,
P.O. Dinjan
Dist- Tinsukia, Assam
......APPELLANT
-Versus-
1. Union of India
Represented by the Secretary,
Ministry of Defence, New Delhi-110001
2. The Chief of Army Staff,
Sena Bhawan, New Delhi-110001
3. The Station Commander,
Station Head Quarter, Dinjan
Pin 900284, C/O 99 APO
4. The Administrative Commandant,
Station Head Quarter, Dinjan
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Pin- 900284, C/o 99 APO
RESPONDENTS
PRESENT
HON'BLE THE CHIEF JUSTICE MR. R.M. CHHAYA
HON'BLE MR. JUSTICE SOUMITRA SAIKIA
For the appellants : Mr. S.C. Biswas
Advocate
For the respondents : Ms. A. Gayan
Central Government Counsel
Date of hearing and judgment : 14th of December, 2022
JUDGMENT & ORDER
R.M. Chhaya, C.J.
Heard Mr. S.C. Biswas, learned counsel for the appellant. Also heard Ms.
A. Gayan, learned Central Government Counsel, appearing for all the
respondents.
2. Feeling aggrieved and dissatisfied by the judgment and order dated
24.11.2022 passed by the learned Single Judge in WP(C) 6109/2019 and other
connected writ petitions, the original writ petitioner has preferred this intra-
Court appeal.
3. Mr. S.C. Biswas, learned counsel for the appellant has taken this Court to
the factual matrix and has contended that as per the policy of the respondent
authorities the regimental shops are to be allotted only to war-widows/widows
of defence personnel killed while on duty/disabled soldier/ex-servicemen and
spouses/widows of ex-servicemen etc. Though the appellant is in possession of
the shop since 2001, the authorities have wrongly resorted to eviction
proceedings and on that ground it was contended that the appeal be allowed.
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4. Mr. S.C. Biswas, learned counsel for the appellant also alternatively
submitted that as the appellant is doing his business and earning his livelihood,
abruptly to vacate and find out another alternative place would be very difficult
for him and therefore, some reasonable time be granted to vacate the premises
occupied by the appellant as an alternative measure. Mr. Biswas contended that
this Court may take lenient as well as humanitarian view and grant time of one
year to the appellant to vacate the shop.
5. Ms. A. Gayan, learned Central Government Counsel appearing for the
respondents has opposed this appeal and has also opposed grant of further time
and has contended that the issue is well settled as observed by the learned
Single Judge and no leniency deserves to be shown.
6. No other or further contentions/submissions or grounds have been raised
by the learned counsel appearing for both the parties.
7. Considering the submissions made and on perusal of the impugned
judgment and order, it clearly appears that the guidelines issued by the
respondent authorities clearly lays down the eligibility criteria for running a
regimental shop including a unit shop or a shopping centre. Learned Single
Judge has considered the same and has also taken into consideration the
judgment and order of the Hon'ble Apex Court passed in Special Leave to
Appeal (C) No(s).5030-5032/2020 which came to be disposed of on 04.02.2021
and has rightly come to the conclusion that the appellants as licensee have no
right for further renewal of their licences de hors the policy decision taken by
the respondent authorities. The learned Single Judge after considering the
aforesaid has observed in paragraphs 12, 13 and 14 as under;
"12. On perusing the licences given to the petitioners for running their shops for
a period of 11 months at a time, it is seen that in Clause 2, it is stated that the
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licence is purely temporary for a period of 11 months and is renewable after 11
months at the discretion of the Administrative Commandant. Clause 21 of the
licence states that the licence may be renewed for a further period of 11 months
with the consent of both the parties. As such, the renewable of a licence is a
discretionary power and has to be done with the consent of both the parties.
However, with the issuance of the Notification dated 17.01.2018, providing
100% reservation for allotment of regimental shops which includes a unit shop
and a shopping centre/complex to the war-widows/widows of defence
personnel killed while on duty/disabled soldier/ex-servicemen and
spouses/widows of ex-servicemen etc, it is clear that the 40% reservation for
shops, earlier given to the Government agencies and Civilians in terms of the
2006 Rules has been done away with. Further, in view of the Punjab &
Haryana High Court judgment and the observation of the Hon'ble Supreme
Court in the order dated 04.02.2021, the Notification dated 17.01.2018 is
applicable to the facts of these cases.
13. In view of the reasons stated above, this Court is of the view that no case
has been made out for this Court to exercise it's discretion, especially when the
licences of the petitioners have expired more than a year back. In view of the
above reasons, this Court is of the view that the order dated 03.11.2022 passed
by this Court in WP(C) No.5947/2017, directing the Station Commander, Station
Headquarter, Tezpur to consider the case of the petitioners therein, with regard
to their prayer for renewal of the licence, is not applicable to these cases, as the
learned Coordinate Bench was not made aware of the judgment of the Division
Bench of the Punjab & Haryana High Court, in Civil Writ Petition
No.18833/2019 (O&M) and the order passed by the Hon'ble Supreme Court in
Special Leave to Appeal (C) No(s). 5030-5032/2020.
14. Consequently all the writ petitions stand dismissed. All the interim orders
passed earlier in these writ petitions stand vacated. However, the respondent
authorities are directed to give the petitioners at least 2 (two) months' time to
vacate their allotted shops."
8. We are in total agreement with the observations made by the learned
Single Judge. The authorities are duty bound to make allotment as per the
policy and the scheme applicable and the appellant has no inherent right to
continue in occupation and insisting for renewal of his licence. Hence, this
appeal being bereft of merit deserves to be dismissed and is hereby dismissed.
9. However, considering the alternative submission and also taking into
account the fact that the appellant is in possession of the shop in question as
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licensee since the year 2001, we deem it fit to grant time to the appellant to
vacate his shop within a reasonable time.
10. Accordingly, while dismissing the appeal, we hereby grant time to the
appellant to vacate the shop occupied by him latest by 30.06.2023 on condition
that the appellant shall file an undertaking on oath stating that he would vacate
the shop occupied by him latest by 30.06.2023. Meanwhile, the appellant shall
make any alteration of any kind and shall not transfer the possession to
anybody. Such undertaking shall be filed within a period of 2 (two) weeks from
today. If no such undertaking is filed, the respondents are at liberty to take
appropriate steps against him.
11. With these observations, this appeal stands dismissed.
Parties to bear their own costs.
JUDGE CHIEF JUSTICE
Comparing Assistant
