Rajender Prasad Aggarwal And Others vs Union Of India And Others

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Ravi Shanker Jha, CJ

This petition has been filed by the petitioners praying for quashing the notification dated 17.01.2018 (Annexure P-3) issued by respondent No.1

providing 100% reservation to ex-servicemen and other categories of defense personnel(s) in relation to allotment of regimental shops on the ground

that providing of 100% reservation has obliterated the right of the petitioners to seek allotment of those shops and is therefore violative of the

petitioners’ fundamental rights under Articles 14 & 19 of the Constitution of India.

The petitioners have also prayed for quashing the impugned notice dated 30.04.2019 (Annexure P-10 colly) issued by the respondents asking the

petitioners to vacate the shops allotted to them being arbitrary, illegal and against the principle of natural justice.

The petitioners have also prayed for issuance of a writ in the nature of mandamus directing the respondents not to deviate from the earlier policy of

allotment of shops in cantonment areas, regimental areas and other institutions and defence establishments.

All these petitions involve similar and identical issues and are, therefore, heard and decided concomitantly.

The undisputed facts are that the petitioners were allotted shops in Chakra Suvidha Complex, Chandimandir military station, Panchkula. Though

initially the petitioners had been granted lease for occupying those shops for a period of one year, however, subsequently from 2015 onwards, the said

shops were given on licence pursuant to a licence agreement entered into between the parties for 11 months. Concededly, the licence period and even

the extensions have since expired on 30.11.2018. Significantly, vide notification/order dated 17.01.2018 (Annexure P-3) issued byÂ

the respondents, a policy decision was taken to allot all the shops in the regimental centres/stations to the war widows/widows of defence personnel

killed while on duty/disabled soldier/Ex-servicemen and spouses/widows of Ex-Servicemen etc. Accordingly, the respondents have issued notices to

the petitioners to vacate the shops occupied by them vide impugned notices dated 30.04.2019 annexed as Annexure P-10 (colly) along with Civil Writ

Petitions No. 18833 of 2019 and 19996 of 2019.

Learned senior counsel appearing for the petitioners submits that the petitioners have been in occupation of the shops in question since long and

prior to issuance of the notification/order dated 17.01.2018, the policy prevalent in the establishment envisaged reservation only up to 30% of the shops

for Ex-servicemen, their widows etc. And pursuant to the said policy, the petitioners were allotted the shops in their occupation in the military area.

However, the respondents’ authorities have now unilaterally taken an arbitrary decision to reserve all the shops i.e. 100% of the shops for

allotment to the Ex-servicemen, their widows, defence personnel(s) and other army related defence categories.

Learned senior counsel appearing for the petitioners further submits that the said policy dated 17.01.2018 is arbitrary, unreasonable and causes

discrimination for it violates the fundamental rights of the petitioners owing to 100% reservation in favour of Ex-servicemen, their widows and other

defence personnel and related categories excluding the petitioners who have been doing business in the said shops for the last several decades.

Learned senior counsel further submits that the policy decision dated 17.01.2018 in any case relates to and is only confined to the regimental shops

in various formations/establishments under the Army, whereas the petitioners have been allotted shops in a shopping complex for doing their business,

to which the said policy does not apply. Thus, learned senior counsel submits that respondents authorities by wrongly applying the said policy to the

shops occupied by the petitioners situated in a shopping complex, have issued the impugned notices for vacating those shops which are contrary to law

and are arbitrary.

Learned senior counsel appearing for the petitioners further submits that the shops in question are situated in the shopping complex and are not

regimental shops and therefore, the impugned notices dated 30.04.2019 based on a policy, which is not applicable to the petitioners, deserve to be

quashed. And the petitioners are entitled to continue in occupation of the shops.

Learned senior counsel appearing for the petitioners on the basis of the aforesaid submissions has prayed for a direction to adhere to the earlier

policy for allotment of shops under cantonment areas, regimental areas and other institutions and defence establishments.

Learned Additional Solicitor General of India appearing for the respondents-Union of India submits that the shops in question are situated in Chakra

Suvidha Complex, Chandimandir Military Station, Panchkula and not in the cantonment area, as alleged by the petitioners. He further submits that the

shops in question are regimental shops and the policy in question dated 17.01.2018 is fully applicable to the shops occupied by the petitioners. It is

submitted that in recent times, number of causalities in the armed forces have increased and therefore, the respondents with a view to provide

necessary support to the family of Ex-servicemen have formed a policy with 100% reservation of regimental shops for the war widows/widows of

defence personnel killed while on duty/disabled soldier/Ex-servicemen and spouses/widows of Ex-Servicemen etc. It is submitted that in such

circumstances, a policy decision taken by the respondents’ authorities with a view to achieve the specific object is in accordance with the

constitutional mandate and therefore, the contentions to the contrary deserve to be rejected.

He further submits that the petitioners are mere licencees and their licence period has already expired on 30.11.2018. It is stated that as per the

provisions of law the impugned notices to vacate the shops in question have been issued to the petitioners on 30.04.2019 affording them three

months’ time to vacate the same. Thus, the impugned notices are issued in accordance with law and the challenge thereto deserves to be rejected.

He further submits that as per the provisions of the rules governing regimental shops, which have been annexed as Annexure P-3 with the petition,

it is evident that regimental shops are constructed on A-1 defence land which caters exclusively to the military personnel and their families. It is

submitted that as per the specific terms of the licence agreement Annexure R-7 dated 14.03.2018, the petitioners had been permitted to sell their

products from the allotted shops on the terms and conditions detailed in the licence; for the welfare of troops and their dependents in the military

station. It is also submitted that as per the document Annexure P-17 filed by the petitioners, this fact was further clarified by the authorities on

06.06.2018 by emphasizing that shops allotted to the petitioners are exclusively meant for defence personnel and their families as a welfare measure.

It is submitted that in such circumstances the policy dated 17.01.2018 (Annexure P-3) is clearly applicable to the shops in occupation of the petitioners

and the impugned notices issued by the authorities for vacating those shops are in accordance with law.

We have heard learned counsel for the parties at length.

Before we advert to the issues raised in the petitions, it is worth noticing that these petitions were filed giving reference of certain interims orders

passed by the Delhi High Court and the Madhya Pradesh High Court in respect of similar and identical issues. During the course of hearing, learned

senior counsel appearing for the petitioners has fairly stated before this Court and placed on record the orders passed by Delhi High Court finally

deciding and dismissing the similar petitions.

From a perusal of the decision of Delhi High Court rendered in the case of W.P.(C ) No. 6026 of 2018 and CM No. 23417 of 2018 DANISH

AKHTAR V. UNION OF INDIA AND ANOTHER, it is evident that Delhi High Court has dismissed the petition assailing the impugned notification

dated 17.01.2018 (Annexure P-3) and has also upheld the notice of vacation. From the aforesaid, it is evident that similar challenge made by identically

placed persons before Delhi High Court has suffered dismissal and the similar grounds raised before the said Court were considered and rejected.

From a perusal of the licence agreement entered into between the parties, it is evident that licence was for the period 01.01.2018 to 30.11.2018

and option to renew the same was with the respondents. The licence further provided that in case the licencee wanted to seek renewal, he was

required to file an application requesting therefor six months prior to expiry of the licence. It is also evident from the licence Annexure R-7 that

petitioners had accepted the conditions mentioned in the licence restricting sale of their products for the welfare of troops and their dependents,

separated families, Veer Naris and Veterans in the military station. In such circumstances, as the lease agreement between the parties had come to

an end, the petitioners never applied for renewal, the respondents authorities, who had an option to even refuse renewal, issued notices for vacation of

the shops and in terms of the licence agreement dated 30.04.2019, the petitioners were granted three months’ time to vacate. Thus, in the given

facts, we are of the considered opinion that the licence granted to the petitioners has come to an end and that the respondents have duly followed the

procedure for terminating and for seeking vacation of the shops and therefore, the same is in accordance with law and cannot be found fault with.

As far as the challenge to the letter/notification dated 17.01.2018 (Annexure P-3) is concerned, it is evident that the shops in question are situated

in the military station and that the authorities with a view to provide support to the war widows/widows of defence personnel killed while on

duty/disabled soldier/Ex-servicemen and spouses/widows of Ex-Servicemen etc., have taken a policy decision to reserve 100% regimental shops for

allotment to the aforesaid categories.

The object and purpose of the notification is laudable. Furthermore, it cannot be disputed that the categories for which the benefit is provided is

required to be given the same by the army establishment itself and therefore, the decision is in furtherance of the object sought to be achieved. Quite

apart from the above, the contention of the petitioners that the impugned notification results in violating the petitioners’ fundamental rights under

Articles 14 & 19 of the Constitution of India, is patently misconceived inasmuch as the impugned notices do not deprive or deny the petitioners from

doing business or earning their livelihood but only provides that regimental shops situated in the military station would be reserved 100% only for the

specific categories mentioned therein. The petitioners are free to undertake any business or earn their livelihood in any area outside the military

station. Therefore, in such circumstances, the contention of the petitioners that they have been totally prohibited from doing business by the impugned

notification, is factually misconceived. In the wake of the above, we do not find force in the submissions of the petitioners or any ground to declare the

impugned notification violative of Articles 14 and 19 of the Constitution of India.

As far as the contention of the petitioners regarding applicability of the impugned notification dated 17.01.2018 to the shops in occupation of the

petitioners situated in the shopping centre is concerned, it is observed that as per the documents filed by the petitioners themselves Annexure P-3 as

well as the respondents as Annexure R-3, the regimental shop has been defined to mean a shop constructed out of public fund, non-public fund or re-

appropriation of government buildings on A-1 defence land which caters exclusively to military personnel and their families and that such a regimental

shop can be a unit shop or shopping centre. The said documents also define the unit shops and shopping centres.

A perusal of the definition of the regimental shop makes it clear that the regimental shop, which could be a unit shop or a Shopping Centre, is one

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.

From a perusal of the licence agreement Annexure R-7 dated 14.03.2018, it is clear that there was a specific stipulation in the licence that the

shop situated in Chakra Suvidha Complex, Chandimandir, Military Station, was granted to the petitioners for sale of their products for welfare of

troops and their dependents, separated families, Veer Naris and Veterans in the station. The document Annexure P-17 dated 06.06.2018 issued by the

respondents reiterates that the shops allotted to the petitioners were exclusively meant for the defence personnel and their families as a welfare

measure and that no civilian/unauthorized person should be entertained.

From the aforesaid it is apparent that the shop in question was allotted to exclusively cater to military personnel and their families. It is also an

undisputed fact that the shops are situated on A-1 defence land, in a military station. It is also undisputed that the shops have been constructed by the

respondents and in such circumstances, even though it is situated in a Shopping Centre, it is a regimental shop as it squarely falls within the three

requirements as mentioned and stipulated in the definition of regimental shops contained in the guidelines for allotment of shops issued by the

respondents vide Annexure P-3 and R-3 respectively.

In view of the aforesaid facts prevailing in the present case, it is evident that the shops in question are regimental shops. It is pertinent to note that

from a perusal of the petitions, it is also evident that there is no averment, assertion or factual foundation laid by the petitioners in the petitions to claim

or establish that the shops in question are not regimental shops. Though, a feeble attempt in this regard has been made in the replication filed by the

petitioners, however, in view of the facts narrated in the preceding paragraphs, it is evident that the shops in question are regimental shops. Thus, the

notification dated 17.01.2018 (Annexure P-3) is fully applicable to the same.

In such circumstances, we are also of the considered opinion that the impugned notices dated 30.04.2019 issued by the respondents’

authorities to the petitioners to vacate the shops relying on the notification dated 17.01.2018 (Annexure P-3) cannot be found fault with and are in

accordance with law. We are also of the opinion that the notices to vacate the shops are also in accordance with the procedure prescribed by law.

At this stage, learned counsel appearing in CWP No. 19682 of 2019, prays that he be permitted to withdraw the petition qua petitioner No.4, for

the petition on his behalf was filed under a misconception. He submits that a formal application in this regard shall be moved. The prayer of the

learned counsel is accepted and liberty is granted to move a formal application on behalf of petitioner No.4 in this regard.

In the wake of the above, all the writ petitions are dismissed being bereft of merit, except CWP No. 19682 of 2019 on behalf of petitioner No.4, to

enable him to move the necessary application, as indicated above, for withdrawal of the petition.