Gauhati High Court

Page No.# 1/18 vs The Union Of India And 3 Ors on 24 November, 2022

Page No.# 1/18

GAHC010186642019

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/5844/2019

DOLA DHAR AND 9 ORS.
W/O- LATE RANJIT DHAR, SHOP NO. 13, SHOPKEEPER OF SARGAM
SHOPPING COMPLEX, DINJAN CANTONMENT, P.S- CHABUA, DIST-
DIBRUGARH, ASSAM

2: MD. ISRAIL ANSARI
S/O- LATE RAHMAN ANSARI
SHOP NO. 4
SHOPKEEPER OF SARGAM SHOPPING COMPLEX
DINJAN CANTONMENT
P.S- CHABUA
DIST- DIBRUGARH
ASSAM

3: SUBHAS CHANDRA SARMA
S/O- LATE PRABHU DAYAL SARMA
SHOP NO. 3
SHOPKEEPER OF SARGAM SHOPPING COMPLEX
DINJAN CANTONMENT
P.S- CHABUA
DIST- DIBRUGARH
ASSAM

4: ARIF HUSSAIN
S/O- LATE RAHMAN ANSARI
SHOP NO. 7
SHOPKEEPER OF JHANKAR SHOPPING COMPLEX
DINJAN CANTONMENT
P.S- CHABUA
DIST- DIBRUGARH
ASSAM

5: NITYALAL DAS
S/O- LATE GOPAL DAS
Page No.# 2/18

SHOP NO. 5
SHOPKEEPER OF JHANKAR SHOPPING COMPLEX
DINJAN CANTONMENT
P.S- CHABUA
DIST- DIBRUGARH
ASSAM

6: BABUL DAS
S/O- SRI BIRESHWAR DAS
SHOP NO. 2
SHOPKEEPER OF JHANKAR SHOPPING COMPLEX
DINJAN CANTONMENT
P.S- CHABUA
DIST- DIBRUGARH
ASSAM

7: MONORANJAN DAS
S/O- NARENDRA CHANDRA DAS
SHOP NO. 10
SHOPKEEPER OF JHANKAR SHOPPING COMPLEX
DINJAN CANTONMENT
P.S- CHABUA
DIST- DIBRUGARH
ASSAM

8: KANCHAN SHAH
S/O- LATE RAM BHAROSE SHAH
SHOP NO. 6 AND 7
SHOPKEEPER OF JHANKAR SHOPPING COMPLEX
DINJAN CANTONMENT
P.S- CHABUA
DIST- DIBRUGARH
ASSAM

9: BIJOY GUPTA
S/O- LATE RAM NAVAMI GUPTA
SHOP NO. 35
SECTOR C/DAO
SHOPKEEPER OF SECTOR A AND C
DINJAN CANTONMENT
P.S- CHABUA
DIST- DIBRUGARH
ASSAM

10: BINOD GUPTA
S/O- LATE RAM NAVAMI GUPTA
SHOP NO. SECTOR A
SHOPKEEPER OF SECTOR A AND C
Page No.# 3/18

DINJAN CANTONMENT
P.S- CHABUA
DIST- DIBRUGARH
ASSA

VERSUS

THE UNION OF INDIA AND 3 ORS
THROUGH THE SECRETARY, TO THE GOVT OF INDIA, MIN OF DEFENCE,
NEW DELHI- 110001

2:THE CHIEF OF ARMY STAFF
SENA BHAWAN
NEW DELHI- 110001

3:THE STATION COMMANDER
STATION HQ
DINJAN
PIN- 900284
C/O- 99 APO

4:THE ADMINISTRATIVE COMMANDANT
STATION HQ
DINJAN
PIN- 900284
C/O- 99 AP

Advocate for the Petitioner : MR A DASGUPTA

Advocate for the Respondent : SC, C.G.C.

Linked Case : WP(C)/6227/2017

RUPAM PATIR and 8 ORS.
S/O- PADURAM PATIR
R/O- VILL- BAZARGAON
P.O- DEKARGAON
P.S- TEZPUR
DIST- SONITPUR
ASSAM
PIN- 784501

2: SABIR ALOM
Page No.# 4/18

S/O- MD. HAMID ALOM
R/O- BHATIR PORUA
NEPALI BASTI
P.O- SOLMARA
DIST- SONITPUR
ASSAM
PIN- 784501

3: JAGDISH SINGH
S/O- BIDESHI SINGH
R/O- BHITOR PORUA
P.S- TEZPUR
DIST- SONITPUR
ASSAM
PIN- 784501

4: LAL BAHADUR BISWAKARMA
S/O- TEK BAHADUR BISWAKARMA
VILL- KACHUBILL
P.O- MANSIRI
P.S- TEZPUR
DIST- SONITPUR
ASSAM

5: VIJAY SINGH
S/O- BIDESHI SINGH
R/O- BHITOR PORUA
P.S- TEZPUR
DIST- SONITPUR
ASSAM
PIN- 784501

6: UDIT SAHU
S/O- LATE NARAYAN SAHU
R/O- VILL- NOOR BARI TEA ESTATE
P.O- NIKAMUL SATRA
P.S- TEZPUR
DIST- SONITPUR
ASSAM

7: KRISHNA BAHADUR VISWAKARMA
S/O- DIL BAHADUR VISWAKARMA
R/O- BHITOR PORUA
P.S- TEZPUR
DIST- SONITPUR
ASSAM
PIN- 784501
Page No.# 5/18

8: NARAYAN THAKUR
S/O- LATE BUDHAN THAKUR
R/O- VILL- BHITORPORUA NEPALI BASTI
P.S- TEZPUR
DIST- SONITPUR
ASSAM

9: MIRA BORAH
D/O- GOPAL NATH
R/O- VILL- AAHATGURI
P.O- SOLMARA
P.S- TEZPUR
DIST- SONITPUR
ASSAM
VERSUS

THE UNION OF INDIA and 3 ORS.
REP. BY THE SECRETARY
MIN OF DEFENCE
NEW DELHI- 110001

2:THE CHIEF OF ARMY STAFF
SENA BHAWAN
NEW DELHI- 110001
3:THE STATION COMMANDER
STATION HEAD QUARTER
TEZPUR
PIN- 907213
C/O- 99 APO
4:THE COMMANDING OFFICER
1812 PIONEER UNIT
STATION HEAD QUARTER
TEZPUR
PIN- 907213
C/O- 99 APO
------------
Advocate for : MR.B D DAS
Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA and 3 ORS.

Linked Case : WP(C)/168/2021

KANCHAN MAZUMDAR AND 14 ORS
S/O RAMESH CHANDRA MAZUMDAR
CYCLE REPAIRING SHOP
SHOP NO. 47
JHANKAR SHOPPING CENTRE
Page No.# 6/18

DINJAN

2: BANWARILAL MANDIA

S/O LATE NATHURAM MANDIA
SCHOOL BOOK AND STORE
SHOP NO. 27 SARGAM SHOPPING CENTER
DINJAN

3: ON THE DEATH OF SURESH PRASAD HIS LEGAL HEIRS-
S/O KESHAV PRASAD
JEWELLERY AND COSMETICS
SHOP NO. 13
SARGAM SHOPPING CENTRE
DINJAN

3.1: SMT. USHA DEVI
W/O- LT. SURESH PRASAD

R/O- JEWELLERY AND CONSMETICS
SHOP NO. 13
SARGAM SHOPPING CENTRE
DINJAN
C/O- DINJAN CANTONMENT
P.O.- DINJAN
P.S.- CHABUA
DIST.- DIBRUGARH
ASSAM.

3.2: SUBHAM KUMAR
S/O- LT. SURESH PRASAD
R/O- JEWELLERY AND CONSMETICS
SHOP NO. 13
SARGAM SHOPPING CENTRE
DINJAN
C/O- DINJAN CANTONMENT
P.O.- DINJAN
P.S.- CHABUA
DIST.- DIBRUGARH
ASSAM.

4: RAM SINGH
S/O ASU SINGH
GIFTS STORE
SHOP NO. 5
SARGAM SHOPPING CENTRE
DINJAN
Page No.# 7/18

5: NIKUNJOY DAS

S/O RANA DAS
CYCLE REPAIRING SHOP
SHOP NO. 45
JHANKAR SHOPPING CENTRE
DINJAN

6: MOHAMMAD KALIM QURESHI

S/O JAAN MOHAMMAD
SHOP NO. 50
MUTTON AND CHICKEN SHOP
JHANKAR SHOPPING CENTRE
DINJAN.

7: PRANAB NAG
S/O SAMBHU CHANDRA NAG
HARDWARE AND GENERAL STORES
SHOP NO. 30
JHANKAR SHOPPING CENTRE
DINJAN

8: BIJOY LOHIA

S/O SHYAM SUNDAR LOHIA
ELECTRONIC AND XEROX SHOP
SHOP NO. 7
SARGAM SHOPPING CENTRE
DINJAN

9: SANJOY LOHIA
S/O SHYAM SUMDARF LOHIA
GIFT AND STATIONARY SHOP
SHOP NO. 6
SARGAM SHOPPING CENTRE
DINJAN

10: SURESH GUPTA

S/O JANARDHAN PRASAD GUPTA
SHOP NO. 16
GROCERY SHOP
SARGAM SHOPPING CENTRE
DINJAN

11: DEEPAK KUMAR SONOWAL
S/O LATE JIBESHWAR SONOWAL
Page No.# 8/18

SHOP NO. 17
SWEETS AND RESTAURANT SHOP
SARGAM SHOPPING CENTRE
DINJAN

12: ISMAIL ANSARI
S/O RAHMAN ANSARI
SHOP NO. 33
TAILORING
JHANKAR SHOPPING CENTRE

13: SHILANATH THAKUR
S/O BALAK THAKUR
SHOP NO. 2
BARBER SHOP
SARGAM SHOPPING CENTRE
DINJAN

14: PARSHURAM THAKUR
S/O SHANKAR THAKUR
SHOP NO. 35
BARBER SHOP
SARGAM SHOPPING CENTRE
DINJAN

15: DINESH THAKUR
S/O JAMUNA THAKUR
SHOP NO. 19
GROCERY SHOP
SARGAM SHOPPING CENTRE
DINJAN
ALL ARE C/O DINJAN CANTONMENT
P.O. DINJAN
P.S. CHABUA
DIST. DIBRUGARH
ASSAM.
VERSUS

THE UNION OF INDIA AND 3 ORS
THROUGH THE SECY. TO THE GOVT. OF INDIA
MINISTRY OF DEFENCE
NEW DELHI 110001

2:THE CHIEF OF ARMY STAFF
SENA BHAWAN
NEW DELHI 110001
3:THE STATION COMMANDER
Page No.# 9/18

STATION HEAD QUARTER
DINJAN
PIN 900284
C/O 99 APO
4:THE ADMINISTRATIVE COMMANDANT
STATION HEAD QUARTER
DINJAN
PIN 900284
C/O 99 APO
------------
Advocate for : MR B D DAS
Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS

Linked Case : WP(C)/6288/2017

BADAL DUTTA
S/O. LT. ASHUTOSH DUTTA
R/O. VILL. and P.O. NEPALI PATTY
P.S. TEZPUR
DIST. SONITPUR
ASSAM.

VERSUS

THE UNION OF INDIA and 3 ORS.
REP. 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
TEZPUR
PIN-907213
C/O. 99 APO.
4:THE COMMANDING OFFICER
1812 PIONEER UNIT

STATION HEAD QUARTER
TEZPUR
PIN-907213
Page No.# 10/18

C/O. 99 APO.
------------
Advocate for : MS.K L R YANTHAN
Advocate for : MRS. A GAYAN (CGC) appearing for THE UNION OF INDIA and 3
ORS.

Linked Case : WP(C)/6109/2019

RAJU DEKA
S/O- SRI DHANESWAR DEKA
R/O- DINJAN TINIALI
P.O. DINJAN
DIST- TINSUKIA
ASSAM

VERSUS

THE UNION OF INDIA AND 3 ORS.
THROUGH THE SECY.
TO THE GOVT. OF INDIA
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 PIN- 900284
C/O 99 APO
------------
Advocate for : MR. S C BISWAS
Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS.

Linked Case : WP(C)/326/2021

GAURANGA DEY
S/O- LT. MAKHAN CHANDRA DEY
TEA LEAF AND TRANSPORTATION SHOP
Page No.# 11/18

SHOP NO. 36
JHANKAR SHOPPING CENTRE
DINJAN
P.O. DINJAN
P.S. CHABUA
DIST.- DIBRUGARH
ASSAM
PIN- 786001

VERSUS

THE UNION OF INDIA AND 3 ORS
THROUGH THE SECY.
TO THE GOVT. OF INDIA
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
PIN- 900284
C/O.99 APO
------------
Advocate for : MR. S C BISWAS
Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS

BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

ORDER

24.11.2022

Heard Mr. B.D. Das, learned Senior Counsel assisted by Mr. S.C. Biswas, learned counsel for the petitioners. Also heard Ms. A. Gayan, learned CGC, Ms. Page No.# 12/18

B. Sharma, learned CGC and Mr. S.S. Roy, learned CGC for all the respondents.

2. The issue being the same in all the writ petitions, all the writ petitions are being disposed of by this common order.

3. The petitioners are lessees in respect of shop premises in shopping centres and regimental shops located within Army Cantonment areas/Military Service Stations, on the basis of licences issued to them by the respondents. The petitioners are aggrieved with the various notices issued to the petitioners, asking them to vacate their shops, as per the terms and conditions of the agreements signed by the petitioners and the respondents.

4. The petitioners' case is that they have been occupying their allotted shops and running their businesses for a number of years, on the basis of licences made for a period of 11 (eleven) months at a time. The prayer of the petitioners is to set aside the notices issued by the respondents, directing the petitioners to vacate the shops. The further prayer is to direct the respondent authorities to allow the petitioners to continue to run their businesses in their respective allotted shops.

5. Mr. B.D. Das, learned Senior Counsel for the petitioners submits that in terms of Rule 2(c) and 12 of the Defence Shopping Complexes (Maintenance and Administration) Rules, 2006, hereinafter referred to as the "2006 Rules", 60% of the shops in each shopping complex are to be reserved for (i) war- widows/widows of defence personnel killed while on duty, (ii) disabled soldier,

(iii) ex-servicemen and (iv) spouses/widows of ex-servicemen. The remaining Page No.# 13/18

40% of the shops are to be allotted to Government agencies and Civilians, whose spouse or dependent family members do not own any shops in the Cantonment in the complex/Military Station. He submits that as the petitioners have been allotted shops for running their businesses on the basis of the Rule 2(c) and 12(b)(ii) of the 2006 Rules, the respondent authority should renew the licences given to the petitioners to run their businesses. He also submits that guidelines for allotment of regimental shops, which has been clarified in the Notification dated 17.01.2018 issued by the Government of India, Ministry of Defence and the Notification dated 07.02.2018 issued by the Headquarters of Ministry of Defence (Army), which provides that 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., cannot be made applicable to the petitioners, who are Civilians. He also submits that the guidelines for allotment of regimental shops made vide Notifications dated 17.01.2018 and 07.02.2018 are not retrospective in nature and as such, not applicable to the petitioners.

6. Mr. B.D. Das also submits that in a similar matter, a Co-ordinate Bench, vide order dated 03.11.2022 passed in WP(C) No.5947/2017, has held that the issue of renewal of the licence for running regimental shops by Civilians, should be decided by the Station Commander of the concerned Station Headquarter, in view of the Clause 31 of the Memorandum of Agreement, which provided that the agreement would stand automatically closed and that it may not be renewed thereafter. The Coordinate Bench had construed the expression "may not be renewed", to mean there was a possibility of the agreement being renewed or not renewed. He accordingly prays that the petitioners may be given Page No.# 14/18

the liberty to approach the concerned Station Commander, who should decide whether the petitioners' licences should be renewed.

7. The learned CGCs, on the other hand, submit that the issue in hand has already been decided by the Division Bench of the Punjab & Haryana High Court, vide judgment and order dated 10.02.2020 passed in Civil Writ Petition No.18833/2019 (O&M) and other writ petitions. They submit that the judgment passed in Civil Writ Petition No.18833/2019 (O&M) has been upheld by the Hon'ble Supreme Court, vide order dated 04.02.2021 passed in Special Leave to Appeal (C) No(s). 5030-5032/2020. They further submit that the guidelines for allotment of regimental shops which has been clarified vide Notifications dated 17.01.2018 and 07.02.2018, clearly provides that there would be 100% reservation of regimental shops for war-widows/widows of defence personnel killed while on duty/disabled soldier/ex-servicemen and spouses/widows of ex- servicemen etc. They also submit that the shops allotted to some of the petitioners in shopping centres would come under the meaning of regimental shops, as has been interpreted by the Division Bench of the Punjab & Haryana High Court in Civil Writ Petition No.18833/2019 (O&M), which has been upheld by the Hon'ble Apex Court. They also submit that as the petitioners do not have any right to continue to do businesses in the shops earlier allotted to them, in terms of the guidelines for allotment of regimental shops and the clarifications made therein, the order dated 03.11.2022 passed in WP(C) No.5947/2017, directing the concerned Station Commander to consider renewal of the licences of the petitioners therein, cannot be applied to the facts of this case, as the decision of the Punjab & Haryana High Court and the Hon'ble Apex Court were not in the knowledge of the Co-ordinate Bench, while disposing of WP(C) Page No.# 15/18

No.5947/2017. They also submit that the petitioners are continuing to run their businesses only on account of interim orders passed by this Court, which is not sustainable in law. They also submit that some of the petitioners are not paying rent to the respondents.

8. I have heard the learned counsels for the parties.

9. The guidelines of IHQ of MoD (Army) New Delhi Dte Gen LW&E/Land (Policy & ANC) QMG Br letter No. B/89915/AP-2/2003 Land (Policy & ANC)/75

dated 28th September 2017 vide para 4(a), (b) and (c) clearly define Regimental Shops as "Unit Shops and Shopping Centres" that fulfil the following criteria :

      (i)     Constructed on A1 defence land.

      (ii)    Constructed through Public or non Public Funds.

(iii) Cater exclusively to military personnel and their families.

10. In Civil Writ Petition No.18833/2019 (O&M), Rajender Prasad Aggarwal and Others vs. Union of India and Others, the Division Bench of the Punjab & Haryana High Court passed it's judgment and order dated 10.02.2020 holding that the guidelines for allotment of regimental shops vide Notification dated 17.01.2018 excluded Civilians from being allotted the regimental shops, as it was reserved 100% for war-widows/widows of defence personnel killed while on duty/disabled soldier/ex-servicemen and spouses/widows of ex-servicemen etc. The Division Bench of the Punjab & Haryana High Court also held that the definition of a regimental shop made it clear that the regimental shop could be Page No.# 16/18

a unit shop or a shopping centre, which is (a) constructed out of public fund, non-public fund or re-appropriation of government buildings; (b) situated on A-1 defence land and (c) which caters exclusively to military personnel and their families. Thus the Division Bench of the Punjab & Haryana High Court found no ground to interfere with the Notification dated 17.01.2018, providing 100% reservation of allotment of regimental shops, which included unit shops and shopping centres to military personnel, their spouses, widows etc., thereby excluding allotment to Civilians. The judgment of the Punjab & Haryana High Court was not interfered with by the Hon'ble Supreme Court in Special Leave to Appeal (C) No(s). 5030-5032/2020, which was disposed of on 04.02.2021, by holding as follows :

"Heard counsel for the parties.

We do not wish to interfere with the impugned order passed by the High Court. The principal grievance of the petitioners overlooks the crucial fact that the Shopping Complex in question, wherein the petitioners had occupied shops at the relevant time had been constructed from public funds and on Defence land. In that case, it is not open to the petitioners to place reliance on the provisions of the Defence Shopping Complexes (Maintenance & Administration) Rules, 2006, which applies to shopping complexes constructed by using non-public funds, as is evident from the Rules read with letter dated 04.01.2011 referred to therein.

Accordingly, the grievance of the petitioners, in our opinion, is devoid on merits. Hence, these Special Leave Petitions deserve to be dismissed. However, we direct the respondents to return the goods belonging to the petitioners, seized during the eviction process, if any.

Besides, we impress upon the competent authority to waive the penalty, if any, pertaining to the shops which were occupied by the petitioners before eviction. Pending application(s), if any, stand disposed of."

11. Thus in terms of the Notification dated 17.01.2018, the petitioners can have no right for further renewal of their licences or allotment to regimental shops, which includes unit shops and shopping centre/complex, which are all within the Army Cantonment/Military Service Station areas.

Page No.# 17/18

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 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 Page No.# 18/18

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.

JUDGE

Comparing Assistant