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PETITIONER: GURSHARAN SINGH & ORS. ETC. ETC.

       Vs.

RESPONDENT: NEW DELHI MUNICIPAL COMMITTEE & ORS.

DATE OF JUDGMENT:       02/02/1996

BENCH: SINGH N.P. (J) BENCH: SINGH N.P. (J) MAJMUDAR S.B. (J)

CITATION:  1996 AIR 1175            1996 SCC  (2) 459  JT 1996 (1)   647        1996 SCALE  (1)615

ACT:

HEADNOTE:

JUDGMENT:                             WITH                WRIT PETITION NO.5331 OF 1983 Smt. Ashwani Sachdeva V. New Delhi Municipal Committee                       J U D G M E N T N.P. SINGH. J      These appeals  along with  a writ  petition  have  been filed on  behalf of  the different licensees of the shops in the shopping  complex known  as Palika Bazar which was built by   the   respondent,   New   Delhi   Municipal   Committee (hereinafter referred  to as  the ’N.D.M.C.’)  in  the  year 1976. The  whole complex  is centrally  air-conditioned.  It appears that  by  a  resolution  dated  29.11.1977,  N.D.M.C decided to  allot 98 shops to shopkeepers of Panchkuian Road because the  space occupied  by them  at the said Panchkuian Road was  required for  widening of  the said road. Again on 27.5.1978 the  Delhi Administration directed the N.D,M.C. to allot shops  to 98  stall-holders of  Panchkuian Road on the conditions agreed.  A plan of the said marketing complex was prepared and  published showing  98  shops  which  had  been reserved  for   the  shopkeepers   of  Panchkuian   Road  on preferential basis.  Tenders were  invited for  allotment of other  177   shops  divided  into  four  zones  and  further classified in  seven groups  for proper  identification.  In the advertisement it was stated that reserved shops were not being put  to tender  and  preference  for  allotment  of  a particular shop  in a  group will  be given  to the  highest tenderers. It  was also stated that only those tenders shall be considered which were above the reserved rate. One of the terms of allotment being term No.9 was as follows:      "only   those    trades   such   as      mentioned in  the trade zoning plan      shall be permitted to be run in the      shop. A  copy of the details of the

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    trade zoning  is appended  to  this      document as appendix ’A’." The aforesaid  zones were  demarcated on  the  plan  of  the shopping complex which had been prepared by the N.D.M.C. The persons submitting  tenders were required to state the trade which they  proposed to run in the shops. In the application forms it  had been  clearly mentioned that "only such trades as mentioned  in the  trade zoning plan shall be permitted." The applicant  was also required to give an undertaking that he had  carefully read the memorandum of information and the terms and  conditions of  the allotment   and  that  he  had agreed to  abide by the same. The shops were  to be given on licence for  a period  of five  years and    thereafter  the licence was  renewable subject  to increase  in  the licence fee by  10 per cent and on such terms and  conditions as may be laid down by the N.D.M.C. Different  reserved prices were fixed for  different shops.  The   appellants  in  different appeals including  the writ  petitioner filed  their tenders and indicated  the trade  which   they wanted  to run in the shops to  be allotted to them.  There is no dispute that the applicants while submitting the tenders, offered the licence fee at  a much  higher rate  than  what was mentioned as the reserved rate of licence fee in  respect of different shops. Thereafter letters  of allotment  were issued indicating the trade which  such licensee  could   carry in the shops which had been  allotted to  them. In  other words, the applicants whose tenders  were accepted  on   the rates offered by them were not  only required  to pay  the licence  fee offered by them and  accepted by  the N.D.M.C.,  but they  undertook to occupy the shops in different trading  zones and to carry on the trades  which were  specified to  be   carried on in the zones concerned.      So  far   the  Panchkuian   Road   stall-holders   were concerned, allotment of shops were made to them in the zones reserved for  them, but  they were  not subjected  to zoning restriction, the only restriction which was imposed on them was that  they had  to carry  on only  the permissible trade specified in Appendix ’A’ to the terms and conditions of the allotment. They  were to  pay the  licence  fee  also  at  a different rate which was admittedly at a lower rate than the licence fee  which had  been offered  and accepted  from the applicants who were allotted shops out of 177 shops referred to above.  It is  the case  of  the  N.D.M.C.  that  special consideration in  respect of  licence fee  as  well  as  the zoning restriction  in respect  of Panchkuian  stall-holders was made to induce and persuade them to move from Panchkuian Road to the Palika Bazar Shopping Complex so that the stalls occupied by  them could  be removed  and the widening of the road was facilitated. Similar concession was offered to some Tibetan stall-holders  at Janpath  requesting them  to  move from Janpath  to Palika  Bazar where shops had been reserved for them  in an  area known as Mini Market. The total number of the  stalls in  the Mini Market was 58. It is an admitted position that the allottees of the stalls in the Mini Market were not subjected to any zoning system, but like Panchkuian Road allottees  they were  permitted to  carry on only those trades which were permissible and had been enumerated in the aforesaid Appendix ’A’.      Later some  of the allottees out of 177 shops which had been subjected  to zoning  system, so  far the nature of the trade was  concerned and  who  had  specifically  agreed  in writing to  carry on the trades which had been specified for the trade zones of the marketing complex, in which shops had undertaking given by them and opened shops in those zones in respect of  trades which  had not  been specified  for those

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zones. In  other words, they opened shops to carry on trades of their  own choice  which was  not permissible  under  the terms of  the allotment  made in  their favour  by  N.D.M.C. Because of this, notices were issued to such shopkeepers who had violated the zoning system of the marketing complex.      The validity  of such  notices issued  by the  N.D.M.C. were questioned  by them  before the  Delhi High   Court.  A learned Judge of the High Court came to the  conclusion that the action of the N.D.M.C. was discriminatory  and arbitrary while insisting  the writ  petitioners to  conform and abide the agreement  in respect  of trade zoning  restrictions and to relax  the same  restrictions so far the stall-holders of Panchkuian Road  were concerned  who had been allotted shops in the  same marketing  complex. It  was also pointed out by the learned  Judge that  when several  allottees out  of 177 shops had  changed the  trade and had not followed the trade zoning restrictions,  there was  no justification  to insist others to  follow the same trade zoning restrictions. On the aforesaid finding,  the notices  issued by  the N.D.M.C.  to different shopkeepers  were quashed  and the  writ petitions were allowed.      On appeal  being filed by N.D.M.C., the Division  Bench set aside  the judgment  of the  learned  single  Judge  and reversed the  finding that  the action of the N.D.M.C. while insisting   for    the   trade   zoning   restriction,   was discriminatory  and   violative  of   Article  14   of   the Constitution, According  to the  Division Bench,  the stall- holders of  PanchKuian Road formed a class separate from the class of  allottees who  had been  allotted shops out of 177 shops. On  the finding  aforesaid, writ  petitions filed  on behalf of  the appellants  were  dismissed.  However,  three months time  was granted  to them  to revert  back to  their trade zoning  restriction and  to start  the trade for which the shops  had been  allotted to  them  in  different  zones within the marketing complex.      In the counter-affidavit which had been filed on behalf of the  N.D,M.C. (vide Civil Appeal No. 7503/83) it had been stated that  since 1950  onwards stalls  had been  put up on roads mentioned  in  the  said  counter-affidavit  including Panchkuian Road  and Janpath.  In  PanchKuian  Road  and  98 stalls had  been put.  It has  been further  stated  that  a decision was  taken that  shops be  reserved for  such stall holders of PanchKuian Road in lieu of their surrendering the stalls, because the lands beneath these stalls were required for use  of public  convenience. They  were  occupying  such stalls for  more than  three decades  and as such a decision was  taken   after   proper   examination   by   the   Delhi Administration along  with the  Government of India to allot 98   shops    to   such    98   stall-holders    for   their rehabilitation.They were  offered the shops in the aforesaid marketing complex,  which had  been reserved  for  them  and shown in  the Plan  also. The relaxation of the trade zoning restrictions was  meant to  induce them  to  move  from  the Panchkuian Road. For the same object even the licence fee in their case  was reduced.  Because  of  the  same  reason  no tenders were  invited   for the  98 shops  and tenders  were invited only in respect of 177 shops, which were allotted to the appellants  and others  on basis of tenders submitted by them. It was pointed out that appellants and other allottees of 177  shops knew very well from the Plan published and the notice inviting  tenders that 98 shops had been reserved for stall-holders of  Panchkuian Road.  In  spite  of  that  the appellants and  others offered  their tenders  at  different rates higher  than reserved rates which were accepted by the N.D.M.G. and  allotments of shops were made in their favour.

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In this  background, it  was not open to them to violate and contravene the  trade zoning  restrictions to which each one of them had specifically agreed.      The learned counsel appearing in different appeals took the  same   stand  before  this  Court  that  there  was  no justification on the part of the N.D.M.C. to make allotments of the  different shops  in the  same marketing  complex not only on  different rates  of licensing  fee, but  even  with different  trade   zoning  restrictions  which  per  se  was arbitrary as  equals had  been treated  as unequals, as such violative of  Article 14  of the  Constitution. According to the appellants, the Panchkuian Road stall-holders were in no way different  from the  appellants so  far their  claim for allotment of  the shops  in the  said marketing  complex was concerned. They  should also have been subjected to the same trade zoning  restrictions as  are specified in the Annexure ’A’ to  the terms and conditions of allotment and should not have been  allowed to carry on trades of their choice in the shops allotted  to them.  Similarly, there  could not be any conceivable justification for charging from them the licence fee at  a lower  rate than  what has  been charged  from the appellants and others similarly situated.      It   appears    the   Panchkuian   Road   stall-holders wererunning  the   stalls  on   the  lands   for  more  than threedecades which  were later  required for widening of the road and  a question  arose before the N.D.M.C. as to how to offer them  some attractive proposal to rehabilitate them so that they   can  move from  Panchkuian Road. This object was achieved   after proper negotiation, discussion and decision having  been   taken  in   consultation   with   the   Delhi Administration and Central Government to offer shops to them in the  new marketing  complex at a concessional licence fee and  without   trade  zoning  restrictions  subject  to  the condition that  they shall carry any of the trades specified in Annexure  ’A’ to  the  terms  and  conditions  of  offer. According to  us, the  allotment of  98 shops  to the stall- holders of  Panchkuian Road  was made  treating  them  as  a separate class, on a reasonable and rational basis. The land occupied by their stalls were required by the N.D,M.C. for a public purpose  i.e. for  the widening  of the  road. It was otherwise not  easy for  the N.D.M.C.  to throw  them out of Panchkuian Road  and after  proper deliberation  a  decision appears to  have been  taken to  induce them  to move out of Panchkuian Road to Palika Bazar. This object was achieved by lowering the  licence fee and making relaxation in the trade zoning restrictions  to some  extent which cannot be held in any manner as irrational, partial or biased so as to be held to  unreasonable.      Apart from  that even  if it is assumed that concession was  shown   to  such  stall-holders  by  the  N.D.M.C.  the appellants   cannot    make   grievance    in   respect   of discrimination under  Article 14 of the Constitution. Having agreed to  the terms  of allotment  they cannot legitimately claim that  they should  also be treated in the same manner. There appears  to be  some confusion in respect of the scope of Article  14 of the Constitution which guarantees equality before law  to all  citizens.  This  guarantee  of  equality before law  is a  positive concept and it cannot be enforced by a  citizen or  court in  a negative  manner. To put it in other  words,  if  an  illegality  or  regularity  has  been committed  in  favour  of  any  individual  or  a  group  of individuals, the  others cannot  invoke the  jurisdiction of the High  Court or of this Court, that the same irregularity or illegality  be committed  by the State an authority which can be  held to  be a State within the meaning of Article 12

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of the  Constitution, so far such petitioners are concerned, on the  reasoning that  they have  been denied  the benefits which have  been extended to others although in an irregular or  illegal   manner.  Such  petitioners  can  question  the validity of  orders which  are said  to have  been passed in favour of  persons who  were not  entitled to  the same, but they cannot  claim orders which are not sanctioned by law in their favour  on principle  of equality  before law. Neither Article 14 of the Constitution conceives within the equality clause this  concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced,  it shall  amount to directing to continue and perpetuate an  illegal procedure  or an  illegal  order  for extending similar  benefits to  others. Before a claim based on equality  clause is upheld, it must be established by the petitioner that  his claim  being just  and legal,  has been denied to  him, while  it has been extended to others and in this process there has been a discrimination. None of the 98 stall-holders  were   impleaded  as   parties  to  the  writ petitions. The  appellants questioned  the validity  of  the allotment of  98 shops  on concessional rates, without trade zoning  restrictions  in  favour  of  the  stall-holders  of Panchkuian Road,  but they  were primarily  interested  that same concessions in respect of licence fee and relaxation in trade zoning  restrictions, be  also extended  to them.  Any such claim  on their  behalf cannot  be entertained  on  the basis of  concept of  equality before  law as  enshrined  in Article 14 of the Constitution.      The Division  Bench of the High Court rightly dismissed the writ  petitions filed on behalf of the appellants on the finding that  there was  proper justification on the part of the N.D.M.C.  to make allotments of the shops which had been reserved for stall-holders of the PanchKuian Road.      lt may  mentioned that  the appellants  in some  of the appeals had  filed writ  rot petitions before the High Court making a  grievance that  although they were making payments at the  agreed rate  in terms  of the  acceptance  of  their tenders  and   were  also   observing   the   Drade   zoning restrictions, still they were suffering because of the other shopkeepers who  had violated the trade zoning restrictions, A direction  was sought for on the N.D.M.C. that they should not allow  the change  of the  trade, to those allottees who were violating  the scheme  of  trade  zoning  restrictions. Those writ  petitions were  allowed by  the  learned  single Judge along  with others.  But the  Division Bench dismissed even such writ petitions.      lt appears  that writ  petitions were filed as early as in the  year 1980  which were  allowed by the learned single Judge on  29th May  1981. The  appeal filed on behalf of the N.D.M.C.,against the said judgment was allowed on 18th March 1983.  This   Court  while   granting  leave  passed  orders regarding maintenance of status-quo in respect of the trades being carried  on by the appellants. Interim directions were given also  in respect  of payment  of licence  fee  at  the reserved rates  instead of  agreed rates  in many  ,appeals. Because of  these interim orders passed by the High Court as well as  this Court in most of the cases only payment of the licence fee  has been  made to  the N.D.M.C. at the reserved rates and  not at  the agreed  rates. After the dismissal of the appeals  and the  writ petition,  the appellants and the writ petitioner  are liable  to pay  the balance  amount  of arrears  which  runs  into  lakhs  of  Rupees  in  different appeals. As  such at the close of the hearing of the appeals an  alternative  submission,  was  made  on  behalf  of  the appellants that  in the  event of  dismissal of  appeals and

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writ petition,  this Court  should  direct  payment  of  the arrears  by   reasonable  instalments.   On  behalf  of  the N.D.M.C. claim  was made  for  interest  over  such  arrears contending that  N.D.M.C. should  not suffer  because of the interim orders  passed by  the High Court as well as by this Court.      In view  of  the  legal  maxim  "actus  curiae  neminem gravabit" which  means that  an act of court shall prejudice no  man,  N.D.M.C.  is  justified  in  making  a  claim  for interest. Over  the arrears  which have  remained unpaid for more than  12 years  because of the interim orders passed by this Court.  This aspect  of the matter has been examined by this Court  in the  case of  Raj Kumar  Dey  and  others  v. Tarapada Dey  and others,  (1987) 4 SCC 398. Although in the interim orders  it has  not been  stated that  in  event  of dismissal  of   the  appeals  and  the  writ  petition,  the appellants and  the writ  petitioner shall  be liable to pay interest over the arrears of the licence fee, but that shall not debar  this Court  from passing  any order in respect of payment of reasonable interest over the said amount.      Taking all  facts and  circumstances into consideration including the  lapse of more than 12 years since the appeals were filed  before this  Court and  the equities  arising in favour of one party or the other, we direct: 1. The  allottees will  pay licence  fee at  the agreed rate subject to revisions as per the terms of the licence deed. 2. If  the agreed  rate has  not been  paid  either  due  to interim order  passed by  any Court or otherwise and payment has been  made on  the basis  of reserved rate, then for the period when  the interim  order was  operative, so  far  the allottees who  have deviated from trade zone shall be liable to pay  simple interest  over the arrears for that period at the rate  of 12 per cent per annum and at the rate of 15 per cent simple interest for the remaining period. 3. Allottees  who have  not deviated from the trade zone and have paid  at the  agreed rate  throughout except the period when interim  orders of  the Court were operative, shall pay the balance  amount of  the arrears  of the agreed rate with simple interest at the rate of 6 per cent. 4. Arrears amounting upto Rs.2.25 lacs shall be paid in four equal quarterly  instalments on  or  before  31st  December, 1996. But  if the  arrear is  in excess  of Rs.2.25 lacs and upto Rs.5 lacs, then it shall be paid in six equal quarterly instalments on or before 30th June, 1997. In case, where the arrears is  above Rs.5 lacs, it shall be paid in eight equal quarterly instalments  on or before 31st December, 1997. The arrears shall  be calculated in terms of the above order for period upto  31st December 1995 by the Respondent - N.D.M.C. against each  allottee and  notice will  be served  on  such allottees within six weeks from today. 5. From the month of January 1996 the licence fee as revised in terms of the licence deed shall be paid. 6. The  allottees who  have deviated  from the  trade zoning restrictions, shall  revert back to the trade zone, allotted to them on or before 31st December, 1996. 7. No  damage shall  be paid  as claimed  on behalf  of  the Respondent - N.D.M.C. on account of cancellation of licence. 8. All  notices of cancellation shall be deemed to have been withdrawn after  the directions  aforesaid are complied with by the allottees or the allottee concerned. But in the event of failure to comply with any of the aforesaid directions it shall  be   open  to   the  N.D.M.C.  to  proceed  with  the cancellation of the licence of allottee concerned. 9. This  order shall not cover the dispute in respect of the resolution of  the Respondent  -  N.D.M.C.  dated  12.9.1991

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revising licence  fee from 10 per cent to 30 per cent on the expiry of  the licence  and payment  of  interest  over  the arrears from 15 per cent to 24 per cent. 10. In  respect of  the grievance  made  on  behalf  of  the allottees that  sales are  being made from the show windows. Mr. Ranjit  Kumar,appearing  for  N.D.M.C.pointed  out  that before the  learned single judge, N.D.M.C.took a clear stand in their affidavit filed that no persons shall be allowed to sell any  article through  the show window, it shall be used only for  display purpose  and N.D.M.C.  shall not implement the resolution  No.33 dated  15.1.1985 allowing  the persons displaying their  articles in  the show  windows to sell the articles.      Accordingly the  appeals  and  the  writ  petition  are dismissed subject  to the  directions given  above.  In  the facts and  circumstances of  the case,  there  shall  be  no orders as to costs.