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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S).11360-11361  OF 2017) (Arising out of SLP (C) NO(S).33396-33397 OF 2011)

CHANDRO DEVI & ETC.           … APPELLANT(S)

VERSUS

UNION OF INDIA AND ORS.               …RESPONDENT(S)

J U D G M E N T  

Deepak Gupta, J.

CIVIL APPEAL NO. 11360 OF 2017 (Arising out of SLP (C) NO. 33396 OF 2011)

1. Leave granted.

2. This appeal is directed against the judgment dated 25th

November, 2011 passed in Review Petition No.694 of 2011,

whereby  the  Division  Bench  of  the  Delhi  High  Court

dismissed  the  review  petition  and  refused  to  recall  the

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judgment  dated  29th July,  2010  passed  in  Letters  Patent

Appeal No.513 of 2010, which was dismissed, upholding the

judgment  of  the  learned  Single  Judge,  dated  12th  July,

2010.

3. At the outset, it would be pertinent to mention that a

number of  writ petitions were filed by the petitioners who

were either ex-servicemen, who had suffered injuries during

war  or  active  service  or  had  retired  after  rendering  full

service.   Some  of  the  writ  petitioners  like  Chandro  Devi

(appellant herein) were family members of the deceased army

personnel, who had died in war etc..

4. The  original  writ  petitioners  were  rehabilitated  by

allocating  them  shops  in  those  colonies  where  defence

personnel reside.  These colonies were being managed by the

Station Commander.  In Delhi such colonies are located at

S.P. Marg, Delhi Cantt., Arjun Vihar, Dhaula Kuan, Shankar

Vihar etc.  It is not disputed that as per the lease deed(s)

entered  between  the  writ  petitioners  and  the  Station

Commander, the leases were granted to the petitioners only

for  a period of 11 months,  but there was a clause in the

lease deed that it could be renewed.  On 13th April, 2007 a

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policy was introduced, which provided that the lease should

not be extended beyond 5 years under any circumstances.

However,  the persons whose leases were cancelled after  5

years could apply for grant of fresh lease after 3 years. The

leases of the leaseholders were cancelled since they had held

the shops on lease for more than 5 years.

5. The petitioners challenged non-renewal of their leases

and claimed that they were entitled to renewal thereof.  The

learned Single Judge dismissed the writ petitions.  The letter

patent appeals filed by the lessees including the appellant

herein were dismissed by the Division Bench.   Some of the

original  writ  petitioners  filed  special  leave  petitions  before

this Court, which were dismissed.  However, the petitioners,

who had approached this Court, were granted time to vacate

the  premises  up  to  30th  November,  2011  on  their  filing

usual  undertaking  in  this  regard.   Some  of  the  writ

petitioners like Chandro Devi, the present appellant, did not

approach this Court.  After the decision by this Court, one

set of review petition(s) was filed by the persons, who had

approached this Court and another review petition was filed

by Chandro Devi, who had not approached this Court.  The

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review  petitions  were  time  barred  but  the  delay  was

condoned.  These review petitions were dismissed leading to

the  filing  of  a  number  of  special  leave  petitions  and  one

contempt petition.   

6. On 17th July, 2017 we had dismissed the Special Leave

Petition (Civil) Nos.4078 of 2011 and 3982 of 2012.  We had,

however,  ordered  that  we  would  consider  the  case  of

Chandro Devi and Surendra Kumar.  As far as the case of

Surendra  Kumar  is  concerned,  i.e.  Contempt  Petition

Nos.508-509 of 2014, the same was disposed of separately

vide order dated 4th September, 2017.  This leaves only the

case of Chandro Devi.  She had admittedly not approached

this Court in the earlier round of litigation.   

7. The main argument raised on behalf of the appellant by

Shri  Rajeev Dhavan,  learned senior  counsel  appearing  for

the  appellant  is  that  the  judgments  of  both  the  learned

Single Judge as well as the Division Bench are based on a

letter dated 4th September, 2008.  On the top of this letter

the words ‘DGL’ in capital letters are typed and, according to

the appellant,  this means ‘Draft Government Letter’.   It is

urged that this letter, which was only a draft letter, was held

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out to be the guidelines of the Government and based on this

letter the learned Single Judge as well as the Division Bench

dismissed the writ petitions.  According to the appellant, this

was a fraud committed by the Union of India upon the court

and since this  is  a fraud, the whole  action based on this

fraud  is  vitiated.   There  can  be  no  dispute  with  the

proposition that if there is fraud, which leads to passing of a

judgment, then fraud vitiates all actions taken consequent to

such fraud and this would mean that the judgment would be

set aside.  However, before setting aside the judgment, we

must come to the conclusion that the action was fraudulent.

Every wrong action is not a fraudulent action.   Assuming

that the letter dated 4th September, 2008 was only a draft

letter,  it  does  not  mean  that  this  letter  was  fraudulently

introduced by the Union of India.  In the letter placed before

the court the word ‘DGL’ find mention.  It may be true that

the counsel for the Union of India did not inform the court

that  the  words  ‘DGL’  stood  for  ‘Draft  Government  Letter’,

but, it is equally true that even the counsel for the appellant

did not make any efforts to find out what the words ‘DGL’

stood  for.   Even  the  Court  did  not  look  into  this  aspect.

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Fraud has to be pleaded and proved.  Mere allegations of

fraud made for the first time in this Court are not sufficient.

We  are  not,  in  any  manner,  approving  the  action  of  the

Union of India in putting forth this letter before the Court.

However,  it  cannot  be  said  that  this  improper  act  is  a

fraudulent  action on the  part of  the Union of  India.   The

learned Single Judge as well as the Division Bench did place

reliance on this letter and since this letter is now said to be a

draft  government  letter  only,  we  may  ignore  it  for  the

purposes of deciding this case.  Even if we were to ignore

this letter, the appellant cannot benefit.  We may point out

that  clause  17  of  the  Standard  Operating  Procedure  (for

short ‘SOP’) dated 10th August, 2001, which even as per the

appellant was applicable, reads as follows : “17.  Renewal of licence deed: Renewal of licence deed  will  be  done  on  the  recommendation  of residential associations, which will be obtained three months in advance from the date of expiry of  licence deed by DDA & QMG, Station.   HQ Delhi  Cantt.   If  the  recommendations  are  in favour of allottee, then the Station Commander may renew the licence deed for the subsequent year.   However,  the  licence  deed  may  be terminated  at  any  time  by  the  Station Commander at his discretion.”

8.  It was the case of the appellant that till the policy of

13th  April,  2007  was  introduced,  as  a  matter  of  course

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renewals were being granted.  This policy became effective

from  30th April,  2007.   Clause  18  of  the  policy  reads

as follows: “18. Renewal  of  licence  deed:  Renewal  of licence  deed  will  be  done  on  the recommendation  of  residential  associations, which will be obtained three months in advance from the date of expiry of licence deed by AQMG, Station  Head  Quarter,  Delhi  Cantt.   If  the recommendations are in favour of allottee, then the Station Commander may renew the licence deed  for  the  subsequent  year.   However,  the licence deed may be terminated at any time by the  Station Commander  at  his  discretion.   No extension beyond five years will be given under any circumstance.  The same person can apply after  a  gap  of  minimum  three  years  of  clear break (not running in any Army Colony of NCR).”

(emphasis supplied)

9. In the meantime, a letter dated 25th February, 2005

was sent by the government of India to the Chief of the Army

Staff [Annexure P/28].  Relevant portion of this letter reads

as follows:

“(v) The  management  of  all  such  complexes will be exercised by the Government through the concerned Services who will be fully accountable for  the  proper  maintenance  of  their  accounts and assets as per norms fixed in this regard.

(vi) Guidelines/Rules  regarding  operation, maintenance and allotment of shops,  accounts etc.  shall  be  formulated  by  the  Ministry  of Defence.

3. All  other  terms  and  conditions  of Government letter  No. 11026/5/2001-D(Lands) dated 04-1-2001 will  remain unchanged.   The

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amendments as at 2(v) above will be applicable from  01-4-2005  or  from  the  date  when  the Guidelines/Rules as in 2(vi)  above are framed, whichever is later.”

10.  The main ground taken by the appellant herein is that

in  view  of  letter  dated  25th  February,  2005  the  Station

Commander had no authority to issue the second SOP for

management  and  control  of  shopping  complexes  on  13th

April, 2007.  In our view, this contention is totally misplaced.

No doubt, vide letter dated 25th February, 2005 the Ministry

of  Defence  proposed  to  take  over  the  management  of  all

shopping complexes and to frame guidelines in this regard,

but as per Para 3 of this letter, amendments to clause 2(v)

would be applicable from 1st April  2005 or from the date

when the guidelines/rules, as envisaged in clause 2(vi) are

framed, whichever is later.  The Ministry of Defence issued

Defence  Shopping  Complexes  (Maintenance  and

Administration) Rules in the year 2006.  It is the case of the

appellant herself that these Rules are not applicable to shops

constructed on defence lands by public funds.  Therefore, as

per  the  appellant,  these  rules  are  not  applicable  to  the

present  case.   Vide  letter  dated 4th September,  2008 the

guidelines were circulated. The appellant contends that this

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was  only  a  draft  government  letter  and,  therefore,  these

guidelines are also not applicable to them.  If that be so, it

clearly  means  that  no  guidelines  have  been  framed  with

regard  to  the  shops  on  defence  lands  created  out  of

government funds.  If no fresh guidelines have been framed

then amended clause 2(v) would not come into play.  Then

SOP of 2001 would be applicable and that can be amended

by  the  Station  Commander  himself.   The  SOP  of  2007

provides that no shops will be leased out for a period of more

than 5 years.   It  was urged by Mr.  R.  Balasubramanian,

learned counsel appearing for the respondents, that this has

been done to ensure that immediately on suffering a loss,

ex-servicemen or their family members are rehabilitated for a

certain period of time and after they have been rehabilitated

and earned for 5 years they can earn their own livelihood

without any support from the Army and other persons, who

had suffered during this period, can be given this benefit.

There is nothing arbitrary in this policy.  The learned Single

Judge  dealt  with  this  issue  specifically.   He  has  made

reference to clause 17 of the SOP of 2001 and clause 18 of

the SOP of 2007 and held as follows:

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“7. In terms of the above Clause 18, the right to get  the  licences  renewed  immediately  on  the expiry of  five  years has been withdrawn.   The allottees  are  expected  to  apply  again  after  a minimum break of three years.  In terms of the revised policy, the Respondents issued letters to the  Petitioners  declining  renewal  of  licences. The copies of letters requiring the Petitioners to vacate  the  shops  under  their  occupation  have been enclosed with the petition.”

11. Before  the  learned  Single  Judge,  the  appellant  had

raised  her  claim  on  the  basis  of  principle  of  legitimate

expectation  and  this  was  rejected  by  the  learned  Single

Judge in the following terms: “47. This Court finds that the Petitioners have not  been able  to,  in the first  place,  show that there is any specific representation either to any of  them or  to  all  of  them generally  that  their licences would stand automatically renewed year after year by the Respondents.   The mere fact that  as a  matter  of  practice  the  licences  were renewed  does  not  constitute  the  specific representation  by  the  Respondents  to  each  of them  that  indeed  their  licences  would  be renewed.  The renewal, it must be recalled, was only for a year at a time and was in accordance with  the  prevailing  policy  and  Clause  17.   In other  words,  the  only  “representation”  or “assurance”  to  each  of  them  was  that  at  the most the licence would be renewed for one more year  at  the  discretion  of  the  Respondent.   No challenge was laid to Clause 17 of the SOP dated 10th August, 2001, which left it to the discretion of the respondents to renew the licence at the end of a year.  The reasons for the change in the policy as explained by the Respondents  appear to this Court to constitute sufficient justification for such change.  The scope of judicial review of such policy change is indeed limited.  Unless it is shown to be not informed by any reasonable criterion  or  not  being  in  public  interest,  the Court  cannot and should not  interfere.   Given the fact that the number of shopping complexes is  unlikely  to  increase,  and the  waiting  list  of

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applicants is a growing one, the concern of the Respondents that those exservicemen waiting in the  expectation of  allotment  of  a  shop  should also be accounted for, cannot be said to be an unreasonable  one.   Both  groups  of exservicemen,  i.e.,  the  present  allottees  and those  awaiting  allotment  are  from  the  same “catchment”.  The demand for shops far exceeds the supply.  There has to be a balancing of these two sets of “expectations”.   If  the Respondents take a call and decide to change the policy so that the chance of those in the queue waiting for allotment of shops improves, the Court cannot be expected to judicially review such policy.  As explained  in  Madras  City  Wine  Merchant,  no question of legitimate expectation would arise if there  is  a  change  in  policy  or  the  position  is altered by a rule or legislation.

48. The Petitioners have not questioned the DSC Rules,  2006  or  the  Guidelines  issued  in September, 2008.  It appears that each of these Petitioners has been a beneficiary of renewal of licence  several  times over.   Each of  them has been granted renewal for more than three years which  is  the  maximum  period  of  licence envisaged under Rule 13 of the DSC Rules.  It has  been  made  clear  in  Clause  8  of  the September, 2008 Guidelines that the DSC Rules would apply to the shopping complexes covered by  3.42.1  of  SOA  1983.   Consequently,  even procedurally, none of the Petitioner can harbour a  legitimate  expectation  of  being  consulted before change in the policy.”   

12. It is true that in Para 48 of the judgment the learned

Single  Judge  also  referred  to  the  Defence  Shopping

Complexes  (Maintenance  and  Administration)  Rules,  2006

and the guidelines issued in 2008, but the Court also found

that the change in the SOP in limiting the maximum period

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of lease to 5 years was not arbitrary or irrational.  We may

refer to the following findings of the learned Single Judge:

“51. This Court is unable to find the decision of the Respondents to restrict the licence period in respect of shops in shopping complexes to five years  with  the  opportunity  of  again  applying after  a  break  of  three  years  to  be  either discriminatory or arbitrary.  Also, any prejudice that may be caused to the Petitioners in whose cases  the  licences  were  renewed  prior  to  the change in the policy has been neutralised by the fact that they have continued in possession for nearly three years thereafter (amounting to more than two renewals) under the interim orders of this Court.  As regards those Petitioners seeking transfer of the existing licence in their capacity as  widows  of  ex-servicemen,  they  would  be governed by Rule 7 of the DSC Rules 2006 and in any event, they too have continued to be in the  premises  far  beyond  the  period  of  licence under the interim orders of this Court.”

13.  This judgment of the learned Single Judge was upheld

by the Division Bench and also by this Court though in a

petition filed by some other petitioner.  On going through the

SOPs of 2001 and 2007, we do not find that the appellant

had any vested right to continue in possession even after 5

years.   Even,  as  per  the  SOP  of  2001,  the  Station

Commander was to renew lease from year to year and there

was no inherent right to continue as a lessee in perpetuity.

These leases have been determined in a non-discriminatory

and non-arbitrary manner.  We, therefore, find no merit in

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this  appeal,  which  is  dismissed  accordingly.  Pending

application(s), if any, stand(s) disposed of.

CIVIL APPEAL NO. 11361  OF 2017 (Arising out of SLP (C) NO. 33397 OF 2011)

14.  Leave granted.

15. In  addition  to  the  reasons  given  hereinabove,  this

appeal  is  also  liable  to  be  dismissed  and  is  dismissed,

because of the following two additional reasons:

(i) That the appellants in this appeal had earlier filed

review  petition  which  was  dismissed  and,

thereafter,  they  filed  second Review Petition  No.

717 of 2011, which was rightly dismissed by the

Delhi  High  Court  as  not  maintainable  being  a

second review petition;

(ii) That  the  appellants  had  approached  this  Court

and their special leave petition was dismissed by

this  Court  on  04.02.2011.   However,  the

appellants were granted time till  30th November,

2011 to vacate the premises on their furnishing

undertaking.  They availed of the benefit granted

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to them and now they cannot be permitted to raise

fresh grounds in this appeal.

16. Pending application(s), if any, stand(s)  disposed of.

....................................J. (MADAN B. LOKUR)

....................................J. (DEEPAK GUPTA)

New Delhi September  8, 2017