Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA No.154 of 2012
with
W.P.(C) No.762 of 2012
RESERVED ON: February 24, 2012
% PRONOUNCED On: April 20, 2012
HOT „n‟ CHILLZ . . . APPELLANT
through : Mr. Sandeep Sethi, Sr.
Advocate with Mr. Tanmaya
Mehta, Advocate.
VERSUS
DELHI METRO RAIL CORPORATION . . .RESPONDENT
through: Ms. Anusuya Salwan,
Advocate with Ms. Renuka
Arora and Mr. Kunal Kohli,
Advocates.
CORAM :-
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
A.K. SIKRI (ACTING CHIEF JUSTICE)
1. This intra-Court appeal is preferred against the orders dated
13.02.2012 in the Writ petition no.762/2012 passed by the
learned Single Judge whereby the learned Single Judge did
not grant any ex parte interim stay and time is given to the
respondent to file the counter affidavit and matter is
adjourned to 21.05.2012. According to the appellant, non
grant of stay would defeat the very purpose of filing the writ
petition. This petition was listed for admission on 27.2.2012.
The counsel for respondent DMRC appeared on advance
LPA No.154 of 2012 Page 1 of 13
notice. It was accepted by counsel for both the parties that
arguments on stay application and decision thereon would
cover the main petition as well. Therefore, both the parties
agreed that Writ Petition may also be taken up for hearing.
Following order was accordingly passed:
“1. This appeal has been preferred against the order
dated 13th February, 2012 of the Learned Single Judge
of this Court in W.P.(C) No.762/2012 filed by the
appellant herein wherein notice has been issued but no
stay has been granted; instead respondent is
given time to file the counter affidavit and the matter is
adjourned to 21st May, 2012.
2. The appellant feels aggrieved by non-grant of the
interim stay. The submission of the appellant is that the
respondent has invited tenders for allotment of the
kiosks and the last date for submission of the tenders is
9th March, 2012 and in case the tender process is
not stayed, the very purpose of filing the writ petition
shall be defeated when the same would come up for
hearing on 21st May, 2012.
3. At the time of arguments it was felt that this Bench
will have to take view on the merits of the writ petition
itself.
4. In these circumstances with the consent of the
counsel for the parties W.P.(C) No. 762/2012 has also
been called and arguments in the writ petition have also
been advanced by the counsel for the parties.
5. We are conscious of the fact that the respondent has
not filed counter affidavit so far; however the counsel
for the respondent has made her submissions with
reference to the record.
6. Order in LPA No.154/2012 and W.P.(C) No. 762/2012
reserved.
CM No.3392/2012 (for stay)
LPA No.154 of 2012 Page 2 of 13
In view of the aforesaid position, this application has
become infructuous and is disposed of.”
2. Accordingly, we proceed to decide the Writ Petition as well,
along with the present appeal. We would like to record that
since counter affidavit has not been filed by the respondents,
the respondents produced the original record which was
perused by the Court at the time of hearing.
3. Facts in brief, sans unnecessary details, which led to the filing
of the Writ Petition may be first recapitulated. The appellant
was originally allotted 51 kiosks at 40 metro stations on the
Metro Line I (Dilshad Garden to Rithala), Line II (Jehangirpuri
to Central Secretariat) and Line III (as it then existed from
Yamuna Bank to Dwarka Sector 9). At these kiosks, which
were of varying sizes from 4 sq.mts. to 12 sq.mts., the
appellant makes commercial sale of precooked food and
beverages. These 51 kiosks wuld henceforth be referred to as
the existing kiosks/kiosks on existing stations. Thereafter,
vide letter dated 26.6.2009, the appellant wrote to the
respondent proposing the sale of drinking water on the
upcoming metro stations. As per the proposal, the appellant
would sell drinking water on loss basis @ ` 1 per glass of 200
ml. on the upcoming metro stations at kiosks of the size of 4
sq.mts. It was stated that the license fee for 2 sq.mts. would
be at commercial rates and for the remaining 2 sq.mts. it was
stated that the appellant would pay a license fee of 10% more
than the agency offering similar services. It was further
LPA No.154 of 2012 Page 3 of 13
stated that if the proposal of the appellant was accepted, the
appellant would also be willing to sell drinking water at all of
its existing allotted kiosks on the Line I, II and III stations
with reduced rent.
4. According to the appellant, the purpose behind selling water
at a loss basis was that the appellant would recover its
investment from the sale of commercial products at the same
kiosk. Thus, water was to be sold in an area of 2 sq.mts. and
in the remaining 2 sq.mts. the appellant would sell
commercial products so as to recover its investment. Vide
letter dated 27.7.2009, the respondent accepted the proposal
of the appellant to sell water at all kiosks – existing and
upcoming, subject to certain conditions. Some important
terms of the agreement are quoted as follows:
“(b) License fee of already allotted kiosk will not be
reduced, additional areas of 2 sqm @ ` 550/- per sqm
per month may be allotted at these locations depending
upon feasibility. However, it will be mandatory for the
licensee to make drinking water available at existing
kiosks as well even if the additional space could not be
provided.
(c) The license fee for water vending area (2 sqm)
will be charged @ 550 per sqm per month remaining
`
area (min. 2 sqm) will be charged as per policy for new
locations. Other maintenance charges and taxes will be
as per existing policy. The licensee fee, other
maintenance charges and refundable security deposit
will be increased by 5% on yearly basis.
xxx xxx xxx
(g) 2 sqm area is to be dedicated for water and
beverage vending and their storage.”
LPA No.154 of 2012 Page 4 of 13
5. The appellant states that a perusal of the agreement would
show that the appellant was to provide water at all kiosks,
existing and upcoming; at the existing stations, water was to
be provided and no reduction in license fee would be
provided; at the upcoming stations, the kiosks would have a
dedicated water vending area (2 sq. mts.) and a remaining
commercial area (2 sq. mts.); at upcoming stations, insofar
as the water vending area was concerned, a reduced rate of
licensee would be payable, and for the remaining commercial
areas, the normal commercial license fee would be payable.
6. As per the appellant, the entire basis for accepting the
proposal to sell water at a loss basis at the existing
commercial kiosks without any rate of reduced license fee and
selling water at a loss at upcoming stations, was that by doing
so, the appellant would get allotted kiosks at all upcoming
metro stations, where from the commercial area of 2 sq.mts.
per kiosk, the appellant would recover its investment. Thus,
the entire business model was that the loss from water
vending would be recovered in a two-fold manner, firstly,
from the commercial sales from the commercial area of 2 sq.
mts. Per kiosk at upcoming stations and secondly, bulk
vending, i.e., setting up of kiosks at all upcoming metro
stations. Accordingly, the entire success of the appellants
venture circled around the promise and agreement on the
part of the respondent to allot kiosks at all upcoming metro
stations.
LPA No.154 of 2012 Page 5 of 13
7. The Appellant accepted the aforesaid conditions vide its
letters dated 31.7.2009 and 18.1.2010. The respondent
thereafter issued letter dated 29.1.2010 stating as under:
“In continuation to your unconditional acceptance of
referred letter no. (1), you are directed to install water
vending kiosks on all recently commenced and
upcoming stations for existing kiosks, action to be
initiated as per referred no. (1) i.e. LOA.
Letter of Acceptance dated 22.7.2009 will constitute a
binding agreement with you and DMRC till the execution
of the final agreement. Copy of referred LOA is
attached.
With regard to you no. of kiosks exceeding 60
appropriate decision will be taken by DMRC as per
extant DMRC policy.”
8. On the basis of aforesaid facts and plea taken by the
appellant, the appellant claims that it is entitled to get the
kiosk at all the metro stations which have come up or are to
be established by the respondent. Grievance is that though
60 more stations have come up, the appellant is allotted only
13 thereof and the respondent vide letter dated 04.8.2011
have taken the stand that request for further allotment of
kiosk could not be considered in view of the DMRC Policy for
allotment of kiosk known as “Kiosk Policy”. Para 5 of this
Policy deals with existing allotment and reads as under:
“5. Existing allotments:
Cases where kiosks already allotted outside –
continue till natural or premature termination.
Renewals to be only taken up for those cases
where encroachment or nuisance is a problem
and aesthetic look of station is not compromised.
Renewals to be done with the approval of
LPA No.154 of 2012 Page 6 of 13
competent authority (General
Manager/Operations).
Cases where LOA already issued for spaces
allotted outside but the kiosk not installed at the
handed over site – No allotment should be done.
Either they may be relocated at alternate space
inside same station and if the alternate space is
not given then the security deposit taken for that
space may be refunded and license fee will not be
charged. The tenure will be co-terminus with the
main agreement.
Kiosks allotted to parties outside but removed
due to action of civic agencies – Alternate
locations may be provided inside same/alternate
station subject to availability and as per extant
scheme, to be co-terminus with the main
agreement. No extension of license period. If
the alternate space is not given then the security
deposit taken for that space may be refunded and
license fee will not be charged.
Spaces inside stations for which the LOA has
already been issued and kiosks are still to be
placed may be permitted, subject to availability
and feasibility of the space. In case there is any
change in the commitment made by DMRC, e.g. if
there is change in discount structure for license
fee because of spaces not being given by DMRC,
then the license fee will be charged as per the
discount structure already committed by DMRC.
Existing kiosks allotted under the extant discount
policy will be allowed to continue till the natural
or premature termination and the tenure of all
additional kiosks allotted under this scheme shall
be co-terminus with their respective original
agreements. Renewals of the existing kiosks can
be done after negotiating the rates and as per
mutually agreed terms and conditions. All
vacated sites will be offered under auctioning
scheme only.”
LPA No.154 of 2012 Page 7 of 13
9. Para 6 of the said Policy deals with pending allotments and
Para 7 stipulates how the future allotments would be made.
Relevant portion of Paras 6 and 7 are as under:
“6. Pending allotments:
In Noida – Anand Vihar line, allotment is to be
done as per published scheme on first-cum-first
serve basis/draw of lots, with no outside spaces &
a principle of only 4 food kiosks per station
without dilution of any criteria as in the published
scheme.
For Qutub Minar – Huda City Centre line, the
allotments will be made as per the published
scheme without any dilution in criteria as in the
scheme.
7. Future allotments:
Future allotments shall be done station wise
through a process of open tendering for big areas
and auction for standard kiosks without dilution of
any criteria and stringent verification of
identification, like requirement of PAN card, Bank
a/c & residential proof etc. All food kiosk shall
provide 200 ml of water @ ` 2/-.”
This Policy has been promulgated in February, 2011.
10. Submission of Mr. Sandeep Sethi, learned Senior Counsel
appearing for the appellant was that insofar as the appellant
is concerned, it had acquired a right to get the allotment in
future of the earlier concluded agreement and therefore,
allotment of these kiosks cannot be made only because the
DMRC has come up with the aforesaid policy. It was further
argued that even as per this Policy, the existing commitments
were to be fulfilled inasmuch as the Policy provides that even
where the Kiosks allotted to the parties were removed due to
LPA No.154 of 2012 Page 8 of 13
action of civic agencies and alternate locations to be provided.
He referred to the letter dated 26.8.2011 where the appellant
itself was given alternate kiosks site at Central Secretariat
Metro station on account of demolition of allotted kiosk at
New Delhi Metro Station by Northern Railway Authorities. In
that letter, it was mentioned that “this allotment shall be as
per extant kiosk policy”. He also argued that the Policy was
not cast in stone as relaxation in this Policy, many others
were allotted kiosks. The particulars whereof were given in
Ground (e) of the appeal.
11. Learned counsel for the respondent, on the other hand,
argued that no indeafisible right had accrued with the
appellant. The appellant had no legal right to claim allotment
of kiosk in its favour in respect of metro station which has yet
to come up. In this manner, it was argued, the appellant was
staking claims for allotment of kiosk to be built in future and
that too in the absence of any terms for such allotment and
therefore, it cannot be said that any concluded contract had
to come into operation. It was also argued that after the
“Kiosk Policy” was formulated in February, 2011 which was
aimed at achieving transparency, the respondent had a right
to follow that policy for any allotment thereafter. She further
submitted that the claim of the appellant was anti-competitive
and it should not have any monopolistic right. She also
brought to our notice the fact that the DMRC has categorized
the metro stations in three categories, i.e., A, B and C and
rate per sq.mts. for these three categories were fixed. It is
LPA No.154 of 2012 Page 9 of 13
also mentioned that for Category A, though the rate was
` 2,500/- per water kiosk, water kiosk was allotted @ ` 500/-
per sq.mts., i.e., at much concessional rate which was done to
take care of the cheaper rates at which the water was to be
sold and therefore, the appellant could not raise the bogey of
selling the water at loss. Further 20% discount was offered to
those who included the appellant, who had taken 20 or more
stations, out of which 50% or more Category B/C stations.
This discount went up to 25% if the kiosk space is taken on
40 or more stations. The appellant was the beneficiary of the
said discount as well.
12. It was further argued that there were various complaints
received not only qua the manner in which kiosk were allotted
earlier, but public complaints specifically against the appellant
were received as well. Commenting upon the inferior/sub-
standard quality of water was supplied by the appellant.
13. In respect of above, DMRC produced the relevant records for
our perusal.
14. We have considered the respective submissions with reference
to these records and the pleadings before us. We are inclined
to agree with the submission of the DMRC that no right
accrues in favour of the appellant in respect of all kiosks to be
build in future. There cannot be any agreement in law, when
no terms and conditions on the basis of which the Kiosks are
to be allotted were ever decided or agreed upon.
Furthermore, the extant Kiosk Policy as framed by the
respondent is not only in public interest, but would ensure
LPA No.154 of 2012 Page 10 of 13
transparency and open competition. The competition would
attract best persons who are able to sell quality stuff at
competitive rates and in the process, the DMRC would also be
able to get best price for kiosk. Once such a policy comes
into force, the DMRC has not only right, but is duty-bound to
make allotment in terms of Policy to avoid any allegations of
favouritism.
15. We do not find any force in the submissions of the learned
counsel for the appellant that Kiosk Policy is given a go-bye in
certain cases. Main target in this behalf was allotment of
space to M/s. Inter Globe Enterprises, who are given space to
set up retail outlets at various metro stations. Learned
counsel for the DMRC has produced the record relating to the
“allotment of spaces to M/s. Inter Globe – Hudson (USA) –
Retails stores” which included the Minutes of Negotiating
Committee Meeting. In the first instance, it may be
mentioned that this allotment relates to retail stores and not
kiosks and is, therefore, not even covered by the said Policy.
That apart, Minutes of Negotiation Committee Meeting reveal
that the Committee was influenced by the fact that since
DMRC is the first fully functional MRTS having state of art
stations, it was necessary for such a Body to provide and
maintain high standards of services to commuters and policy
decision was taken that national and international brands be
encouraged. M/s. Inter Globe Retail Pvt. Ltd. (Hudson, USA)
vide letter dated 02.2.2011 expressed their interest to have
an association with DMRC and requested for allotment of
LPA No.154 of 2012 Page 11 of 13
spaces to operate Hudson Brand retail outlets. Being an
international brand, the request was taken up for
consideration by a Committee constituted by DMRC. M/s.
Inter Globe Retail Pvt. Ltd. (Hudson, USA) gave their
presentation on 29.3.2011, which was highly appreciated and
thereafter formal discussion started. It was in that backdrop
that the proposal of M/s. Inter Globe Retail Pvt. Ltd. (Hudson,
USA) was considered.
16. We also find merit in the submission of the learned counsel for
the respondent that this cannot be treated as comparison with
the case of the appellant. We have also seen that hundreds
of commuters have made complaints against the quality of
water/product sold by the appellant. At the time when the
appellants had given their initial offer and allotted 51 kiosks at
40 metro stations, they took advantage of not only getting
the water kiosks allotted at much concessional rates, but in
respect of other kiosks, they availed 25% discount as kiosk
space was taken on 40 metro stations. Thus, they have
already been given the benefit of the previous allotments.
Giving them right to take the kiosks which are built up
thereafter and are to be built up in future more particularly
after the formulation of kiosk policy in February, 2011 is not
only anti-competitive, but against the public interest as well.
This Court, therefore, in exercise its extra-ordinary jurisdiction
under Article 226 of the Constituion cannot grant such a relief
to the appellant.
LPA No.154 of 2012 Page 12 of 13
17. This appeal as well as writ petition before the learned Single
Judge are accordingly dismissed with cost quantified @
` 20,000/-.
(ACTING CHIEF JUSTICE)
(RAJIV SAHAI ENDLAW)
JUDGE
APRIL 20, 2012
pmc
LPA No.154 of 2012 Page 13 of 13
+ LPA No.154 of 2012
with
W.P.(C) No.762 of 2012
RESERVED ON: February 24, 2012
% PRONOUNCED On: April 20, 2012
HOT „n‟ CHILLZ . . . APPELLANT
through : Mr. Sandeep Sethi, Sr.
Advocate with Mr. Tanmaya
Mehta, Advocate.
VERSUS
DELHI METRO RAIL CORPORATION . . .RESPONDENT
through: Ms. Anusuya Salwan,
Advocate with Ms. Renuka
Arora and Mr. Kunal Kohli,
Advocates.
CORAM :-
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
A.K. SIKRI (ACTING CHIEF JUSTICE)
1. This intra-Court appeal is preferred against the orders dated
13.02.2012 in the Writ petition no.762/2012 passed by the
learned Single Judge whereby the learned Single Judge did
not grant any ex parte interim stay and time is given to the
respondent to file the counter affidavit and matter is
adjourned to 21.05.2012. According to the appellant, non
grant of stay would defeat the very purpose of filing the writ
petition. This petition was listed for admission on 27.2.2012.
The counsel for respondent DMRC appeared on advance
LPA No.154 of 2012 Page 1 of 13
notice. It was accepted by counsel for both the parties that
arguments on stay application and decision thereon would
cover the main petition as well. Therefore, both the parties
agreed that Writ Petition may also be taken up for hearing.
Following order was accordingly passed:
“1. This appeal has been preferred against the order
dated 13th February, 2012 of the Learned Single Judge
of this Court in W.P.(C) No.762/2012 filed by the
appellant herein wherein notice has been issued but no
stay has been granted; instead respondent is
given time to file the counter affidavit and the matter is
adjourned to 21st May, 2012.
2. The appellant feels aggrieved by non-grant of the
interim stay. The submission of the appellant is that the
respondent has invited tenders for allotment of the
kiosks and the last date for submission of the tenders is
9th March, 2012 and in case the tender process is
not stayed, the very purpose of filing the writ petition
shall be defeated when the same would come up for
hearing on 21st May, 2012.
3. At the time of arguments it was felt that this Bench
will have to take view on the merits of the writ petition
itself.
4. In these circumstances with the consent of the
counsel for the parties W.P.(C) No. 762/2012 has also
been called and arguments in the writ petition have also
been advanced by the counsel for the parties.
5. We are conscious of the fact that the respondent has
not filed counter affidavit so far; however the counsel
for the respondent has made her submissions with
reference to the record.
6. Order in LPA No.154/2012 and W.P.(C) No. 762/2012
reserved.
CM No.3392/2012 (for stay)
LPA No.154 of 2012 Page 2 of 13
In view of the aforesaid position, this application has
become infructuous and is disposed of.”
2. Accordingly, we proceed to decide the Writ Petition as well,
along with the present appeal. We would like to record that
since counter affidavit has not been filed by the respondents,
the respondents produced the original record which was
perused by the Court at the time of hearing.
3. Facts in brief, sans unnecessary details, which led to the filing
of the Writ Petition may be first recapitulated. The appellant
was originally allotted 51 kiosks at 40 metro stations on the
Metro Line I (Dilshad Garden to Rithala), Line II (Jehangirpuri
to Central Secretariat) and Line III (as it then existed from
Yamuna Bank to Dwarka Sector 9). At these kiosks, which
were of varying sizes from 4 sq.mts. to 12 sq.mts., the
appellant makes commercial sale of precooked food and
beverages. These 51 kiosks wuld henceforth be referred to as
the existing kiosks/kiosks on existing stations. Thereafter,
vide letter dated 26.6.2009, the appellant wrote to the
respondent proposing the sale of drinking water on the
upcoming metro stations. As per the proposal, the appellant
would sell drinking water on loss basis @ ` 1 per glass of 200
ml. on the upcoming metro stations at kiosks of the size of 4
sq.mts. It was stated that the license fee for 2 sq.mts. would
be at commercial rates and for the remaining 2 sq.mts. it was
stated that the appellant would pay a license fee of 10% more
than the agency offering similar services. It was further
LPA No.154 of 2012 Page 3 of 13
stated that if the proposal of the appellant was accepted, the
appellant would also be willing to sell drinking water at all of
its existing allotted kiosks on the Line I, II and III stations
with reduced rent.
4. According to the appellant, the purpose behind selling water
at a loss basis was that the appellant would recover its
investment from the sale of commercial products at the same
kiosk. Thus, water was to be sold in an area of 2 sq.mts. and
in the remaining 2 sq.mts. the appellant would sell
commercial products so as to recover its investment. Vide
letter dated 27.7.2009, the respondent accepted the proposal
of the appellant to sell water at all kiosks – existing and
upcoming, subject to certain conditions. Some important
terms of the agreement are quoted as follows:
“(b) License fee of already allotted kiosk will not be
reduced, additional areas of 2 sqm @ ` 550/- per sqm
per month may be allotted at these locations depending
upon feasibility. However, it will be mandatory for the
licensee to make drinking water available at existing
kiosks as well even if the additional space could not be
provided.
(c) The license fee for water vending area (2 sqm)
will be charged @ 550 per sqm per month remaining
`
area (min. 2 sqm) will be charged as per policy for new
locations. Other maintenance charges and taxes will be
as per existing policy. The licensee fee, other
maintenance charges and refundable security deposit
will be increased by 5% on yearly basis.
xxx xxx xxx
(g) 2 sqm area is to be dedicated for water and
beverage vending and their storage.”
LPA No.154 of 2012 Page 4 of 13
5. The appellant states that a perusal of the agreement would
show that the appellant was to provide water at all kiosks,
existing and upcoming; at the existing stations, water was to
be provided and no reduction in license fee would be
provided; at the upcoming stations, the kiosks would have a
dedicated water vending area (2 sq. mts.) and a remaining
commercial area (2 sq. mts.); at upcoming stations, insofar
as the water vending area was concerned, a reduced rate of
licensee would be payable, and for the remaining commercial
areas, the normal commercial license fee would be payable.
6. As per the appellant, the entire basis for accepting the
proposal to sell water at a loss basis at the existing
commercial kiosks without any rate of reduced license fee and
selling water at a loss at upcoming stations, was that by doing
so, the appellant would get allotted kiosks at all upcoming
metro stations, where from the commercial area of 2 sq.mts.
per kiosk, the appellant would recover its investment. Thus,
the entire business model was that the loss from water
vending would be recovered in a two-fold manner, firstly,
from the commercial sales from the commercial area of 2 sq.
mts. Per kiosk at upcoming stations and secondly, bulk
vending, i.e., setting up of kiosks at all upcoming metro
stations. Accordingly, the entire success of the appellants
venture circled around the promise and agreement on the
part of the respondent to allot kiosks at all upcoming metro
stations.
LPA No.154 of 2012 Page 5 of 13
7. The Appellant accepted the aforesaid conditions vide its
letters dated 31.7.2009 and 18.1.2010. The respondent
thereafter issued letter dated 29.1.2010 stating as under:
“In continuation to your unconditional acceptance of
referred letter no. (1), you are directed to install water
vending kiosks on all recently commenced and
upcoming stations for existing kiosks, action to be
initiated as per referred no. (1) i.e. LOA.
Letter of Acceptance dated 22.7.2009 will constitute a
binding agreement with you and DMRC till the execution
of the final agreement. Copy of referred LOA is
attached.
With regard to you no. of kiosks exceeding 60
appropriate decision will be taken by DMRC as per
extant DMRC policy.”
8. On the basis of aforesaid facts and plea taken by the
appellant, the appellant claims that it is entitled to get the
kiosk at all the metro stations which have come up or are to
be established by the respondent. Grievance is that though
60 more stations have come up, the appellant is allotted only
13 thereof and the respondent vide letter dated 04.8.2011
have taken the stand that request for further allotment of
kiosk could not be considered in view of the DMRC Policy for
allotment of kiosk known as “Kiosk Policy”. Para 5 of this
Policy deals with existing allotment and reads as under:
“5. Existing allotments:
Cases where kiosks already allotted outside –
continue till natural or premature termination.
Renewals to be only taken up for those cases
where encroachment or nuisance is a problem
and aesthetic look of station is not compromised.
Renewals to be done with the approval of
LPA No.154 of 2012 Page 6 of 13
competent authority (General
Manager/Operations).
Cases where LOA already issued for spaces
allotted outside but the kiosk not installed at the
handed over site – No allotment should be done.
Either they may be relocated at alternate space
inside same station and if the alternate space is
not given then the security deposit taken for that
space may be refunded and license fee will not be
charged. The tenure will be co-terminus with the
main agreement.
Kiosks allotted to parties outside but removed
due to action of civic agencies – Alternate
locations may be provided inside same/alternate
station subject to availability and as per extant
scheme, to be co-terminus with the main
agreement. No extension of license period. If
the alternate space is not given then the security
deposit taken for that space may be refunded and
license fee will not be charged.
Spaces inside stations for which the LOA has
already been issued and kiosks are still to be
placed may be permitted, subject to availability
and feasibility of the space. In case there is any
change in the commitment made by DMRC, e.g. if
there is change in discount structure for license
fee because of spaces not being given by DMRC,
then the license fee will be charged as per the
discount structure already committed by DMRC.
Existing kiosks allotted under the extant discount
policy will be allowed to continue till the natural
or premature termination and the tenure of all
additional kiosks allotted under this scheme shall
be co-terminus with their respective original
agreements. Renewals of the existing kiosks can
be done after negotiating the rates and as per
mutually agreed terms and conditions. All
vacated sites will be offered under auctioning
scheme only.”
LPA No.154 of 2012 Page 7 of 13
9. Para 6 of the said Policy deals with pending allotments and
Para 7 stipulates how the future allotments would be made.
Relevant portion of Paras 6 and 7 are as under:
“6. Pending allotments:
In Noida – Anand Vihar line, allotment is to be
done as per published scheme on first-cum-first
serve basis/draw of lots, with no outside spaces &
a principle of only 4 food kiosks per station
without dilution of any criteria as in the published
scheme.
For Qutub Minar – Huda City Centre line, the
allotments will be made as per the published
scheme without any dilution in criteria as in the
scheme.
7. Future allotments:
Future allotments shall be done station wise
through a process of open tendering for big areas
and auction for standard kiosks without dilution of
any criteria and stringent verification of
identification, like requirement of PAN card, Bank
a/c & residential proof etc. All food kiosk shall
provide 200 ml of water @ ` 2/-.”
This Policy has been promulgated in February, 2011.
10. Submission of Mr. Sandeep Sethi, learned Senior Counsel
appearing for the appellant was that insofar as the appellant
is concerned, it had acquired a right to get the allotment in
future of the earlier concluded agreement and therefore,
allotment of these kiosks cannot be made only because the
DMRC has come up with the aforesaid policy. It was further
argued that even as per this Policy, the existing commitments
were to be fulfilled inasmuch as the Policy provides that even
where the Kiosks allotted to the parties were removed due to
LPA No.154 of 2012 Page 8 of 13
action of civic agencies and alternate locations to be provided.
He referred to the letter dated 26.8.2011 where the appellant
itself was given alternate kiosks site at Central Secretariat
Metro station on account of demolition of allotted kiosk at
New Delhi Metro Station by Northern Railway Authorities. In
that letter, it was mentioned that “this allotment shall be as
per extant kiosk policy”. He also argued that the Policy was
not cast in stone as relaxation in this Policy, many others
were allotted kiosks. The particulars whereof were given in
Ground (e) of the appeal.
11. Learned counsel for the respondent, on the other hand,
argued that no indeafisible right had accrued with the
appellant. The appellant had no legal right to claim allotment
of kiosk in its favour in respect of metro station which has yet
to come up. In this manner, it was argued, the appellant was
staking claims for allotment of kiosk to be built in future and
that too in the absence of any terms for such allotment and
therefore, it cannot be said that any concluded contract had
to come into operation. It was also argued that after the
“Kiosk Policy” was formulated in February, 2011 which was
aimed at achieving transparency, the respondent had a right
to follow that policy for any allotment thereafter. She further
submitted that the claim of the appellant was anti-competitive
and it should not have any monopolistic right. She also
brought to our notice the fact that the DMRC has categorized
the metro stations in three categories, i.e., A, B and C and
rate per sq.mts. for these three categories were fixed. It is
LPA No.154 of 2012 Page 9 of 13
also mentioned that for Category A, though the rate was
` 2,500/- per water kiosk, water kiosk was allotted @ ` 500/-
per sq.mts., i.e., at much concessional rate which was done to
take care of the cheaper rates at which the water was to be
sold and therefore, the appellant could not raise the bogey of
selling the water at loss. Further 20% discount was offered to
those who included the appellant, who had taken 20 or more
stations, out of which 50% or more Category B/C stations.
This discount went up to 25% if the kiosk space is taken on
40 or more stations. The appellant was the beneficiary of the
said discount as well.
12. It was further argued that there were various complaints
received not only qua the manner in which kiosk were allotted
earlier, but public complaints specifically against the appellant
were received as well. Commenting upon the inferior/sub-
standard quality of water was supplied by the appellant.
13. In respect of above, DMRC produced the relevant records for
our perusal.
14. We have considered the respective submissions with reference
to these records and the pleadings before us. We are inclined
to agree with the submission of the DMRC that no right
accrues in favour of the appellant in respect of all kiosks to be
build in future. There cannot be any agreement in law, when
no terms and conditions on the basis of which the Kiosks are
to be allotted were ever decided or agreed upon.
Furthermore, the extant Kiosk Policy as framed by the
respondent is not only in public interest, but would ensure
LPA No.154 of 2012 Page 10 of 13
transparency and open competition. The competition would
attract best persons who are able to sell quality stuff at
competitive rates and in the process, the DMRC would also be
able to get best price for kiosk. Once such a policy comes
into force, the DMRC has not only right, but is duty-bound to
make allotment in terms of Policy to avoid any allegations of
favouritism.
15. We do not find any force in the submissions of the learned
counsel for the appellant that Kiosk Policy is given a go-bye in
certain cases. Main target in this behalf was allotment of
space to M/s. Inter Globe Enterprises, who are given space to
set up retail outlets at various metro stations. Learned
counsel for the DMRC has produced the record relating to the
“allotment of spaces to M/s. Inter Globe – Hudson (USA) –
Retails stores” which included the Minutes of Negotiating
Committee Meeting. In the first instance, it may be
mentioned that this allotment relates to retail stores and not
kiosks and is, therefore, not even covered by the said Policy.
That apart, Minutes of Negotiation Committee Meeting reveal
that the Committee was influenced by the fact that since
DMRC is the first fully functional MRTS having state of art
stations, it was necessary for such a Body to provide and
maintain high standards of services to commuters and policy
decision was taken that national and international brands be
encouraged. M/s. Inter Globe Retail Pvt. Ltd. (Hudson, USA)
vide letter dated 02.2.2011 expressed their interest to have
an association with DMRC and requested for allotment of
LPA No.154 of 2012 Page 11 of 13
spaces to operate Hudson Brand retail outlets. Being an
international brand, the request was taken up for
consideration by a Committee constituted by DMRC. M/s.
Inter Globe Retail Pvt. Ltd. (Hudson, USA) gave their
presentation on 29.3.2011, which was highly appreciated and
thereafter formal discussion started. It was in that backdrop
that the proposal of M/s. Inter Globe Retail Pvt. Ltd. (Hudson,
USA) was considered.
16. We also find merit in the submission of the learned counsel for
the respondent that this cannot be treated as comparison with
the case of the appellant. We have also seen that hundreds
of commuters have made complaints against the quality of
water/product sold by the appellant. At the time when the
appellants had given their initial offer and allotted 51 kiosks at
40 metro stations, they took advantage of not only getting
the water kiosks allotted at much concessional rates, but in
respect of other kiosks, they availed 25% discount as kiosk
space was taken on 40 metro stations. Thus, they have
already been given the benefit of the previous allotments.
Giving them right to take the kiosks which are built up
thereafter and are to be built up in future more particularly
after the formulation of kiosk policy in February, 2011 is not
only anti-competitive, but against the public interest as well.
This Court, therefore, in exercise its extra-ordinary jurisdiction
under Article 226 of the Constituion cannot grant such a relief
to the appellant.
LPA No.154 of 2012 Page 12 of 13
17. This appeal as well as writ petition before the learned Single
Judge are accordingly dismissed with cost quantified @
` 20,000/-.
(ACTING CHIEF JUSTICE)
(RAJIV SAHAI ENDLAW)
JUDGE
APRIL 20, 2012
pmc
LPA No.154 of 2012 Page 13 of 13