ANTAR RAJYA BUS ADDA SAMACHAR PATRA VIKRETA UPBHOKTA COOPERATIVE STORE SOC.LTD vs. GOVT. OF NCT OF DELHI & OTHERS

REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI


+ WRIT PETITION (CIVIL) NO. 3677 OF 1992

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Reserved on : 19 November, 2009.
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% Date of Decision : February 26 , 2010.

ANTAR RAJYA BUS ADDA SAMACHAR
PATRA VIKRETA UPBHOKTA COOPERATIVE
STORE SOCIETY LTD. ..... Petitioner
Through Mr.D. K Rustagi, B.S. Bagga
advocates

Versus

GOVT. OF NCT OF DELHI & ORS. ..... Respondents
Through Mr. Sanjay Poddar, advocate.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ? YES
3. Whether the judgment should be reported
in the Digest ? YES

SANJIV KHANNA, J. :
1. The petitioner-a cooperative society, in 1977 was granted licence
to sell newspapers, magazines, books in shop nos. S-31 and S-62 at
the Inter State Bus Stand Terminal, Kashmere Gate, New Delhi
(hereinafter referred to as ISBT Complex, for short) on a monthly
license fee of Rs.1700/- and Rs.1874/- respectively. The said licence
was for a specific period of five years. Subsequently, the petitioner was
also permitted to also sell newspapers, magazines, books on six trolleys
for each shop on a monthly fee of Rs.75/- per trolley.
2. The licence period expired in 1982 but instead of inviting fresh
WPC No.3677/1992 Page 1


bids, the Delhi Development Authority (hereinafter referred to as DDA,
for short) which was at that time managing and in control of ISBT
Complex decided to renew the licence by enhancing the license fee by
15%. Accordingly, the license was renewed/extended in 1982-83 for
shop nos. S-31 and S-62 @ Rs.2248/- and Rs.2400/- respectively. The
license fee of the trolleys remained the same.
3. This extended license period expired in 1988. The petitioner again
asked for extension of license period by enhancing the license fee
rather than fresh tenders and allotment by open competition. It is stated
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in the writ petition that, DDA by their letters dated 6 December, 1991
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and 17 December, 1991 informed the petitioner that the license fee
had been increased for shop nos. S-62 and S-31 with retrospective
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effect from 23 March, 1988 and 1 May 1988 as per details given
below :
Shop No. S-62

WPC No.3677/1992 Page 2


4. In addition to the enhanced license fee, the petitioner was also
required to pay additional security deposit and furnish bank guarantee,
etc. The license fee payable for each of the six trolleys was increased
w.e.f. 1989 as per the details given below :

Shop no. S-62

Shop no. S-31

5. In case of the trolleys also, the petitioner was asked to pay
enhanced security deposit and furnish bank guarantee.
6. In the year 1991, DDA also invited tenders and allotted shops for
sale of book, magazines, etc. to other parties in the ISBT Complex.
7. Enhancement in license fee with retrospective effect and
allotment of new shops to third parties for selling books and magazines
prompted the petitioner to file the present writ petition. It is alleged that
the license fee cannot be enhanced from retrospective effect and the
enhancement is per se arbitrary. Another contention raised in the Writ
Petition is that the petitioner was given exclusive license to sell
WPC No.3677/1992 Page 3


magazines and books in ISBT Complex and the allotments made to Mr.
Harbans Lal and Mr.Suresh Mittal, respondent nos. 3 and 4 herein are
illegal.
8. The following prayers have been made in the Writ Petition:-
“(a) to issue any appropriate writ/order or
direction thereby quashing the order dated
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6 December, 1991 (filed as Annexure „B‟
and „C‟ of the respondent No.2 and the
order dated 17.12.1991 (Annexure „D‟ and
„E‟) passed by the respondent No.2.

(b) to issue any appropriate/writ/order or
direction there by quashing/setting aside
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the order dated 14 September, 1992
whereby the respondent No.3 and 4 were
permitted by respondent No.2 to ply the
trollies beyond entry gate point.

(c) to issue writ of mandamous (sic) or in
the nature of mandamous (sic) or any other
writ/order or direction to the respondents
No.1 and 2 thereby directing not to charge
from the petitioner society more than the
licence fees/lease money as per the rates
applicable in November, 1988 or such
other enhanced rate by 15% as per its
policy till date in this regard.

(d) to direct the respondent No.1 and 2
produce the copy of the order dated
14.9.92 and other such record found
relevant by this Hon‟ble Court.

(d) To award costs of the writ petition;

(e) To grant any other relief as this Hon‟ble
court deems fit and proper under the facts
and circumstances of the case in favour of
the petitioner and against the
respondents.”


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9. The writ petition came up for hearing on 16 October, 1992 and
WPC No.3677/1992 Page 4


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vide order dated 20 October, 1992, show cause notice was directed to
be issued. Subsequently, interim orders were also passed under which
the petitioner was asked to make part payments from time to time. By
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order dated 29 November, 1995, Government of NCT of Delhi was
impleaded as a respondent to the writ petition as management and
control of ISBT Complex was transferred to them. The writ petition was
admitted for hearing on the same date and the interim order has
continued though some payments have been made by the petitioner to
the Govt. of NCT of Delhi/DDA. The petitioner has continued to remain
in occupation of the said two shops and have continued to sell books,
magazines, through the said shops and trolleys till today.
10. Respondent nos. 3 and 4 have filed their counter affidavit but it
was stated by the learned counsel for the petitioner that their licences
were not renewed and to this extent prayer clauses (b) and (d) of the
writ petition have been rendered infructuous. However, it is noticed that
there is no document or evidence available to show and establish that
the petitioner was given exclusive license or monopoly rights at the
ISBT Complex. In the writ petition itself, the petitioner has stated that
some of their relatives had participated in other tenders and/had given
highest bids for two trolleys, but subsequently allotment/tender was
cancelled. The respondents on the other hand, have pointed out that
ISBT Complex was constructed and became operational in 1976 and at
that time the daily total traffic was about 500 buses. In 1993, the daily
traffic in ISBT Complex had increased to about 3000 buses and
WPC No.3677/1992 Page 5


approximately 8 lacs passengers/commuters used to visit the ISBT
complex every day. With a view to provide better facilities, the ISBT
Complex was divided into five blocks, namely, departure, arrival, link,
DTC and dhaba blocks. It was noticed that there were inadequate
facilities for sale of newspapers, magazines, etc. at arrival, dhaba and
DTC blocks, therefore fresh tenders were called for. Shop no.S-31 is
located in the departure block and shop no.62 is in the link block. The
said two shops were not sufficient to meet requirements of books,
magazines, newspapers, etc. in arrival, dhaba and DTC blocks.
11. The contention of the petitioner therefore that they had monopoly
or exclusive right for all times to come is without merit and has to be
rejected.
12. As noticed above, initially the license granted to the petitioner was
only for a period of five years w.e.f. 1977 and the said license expired in
1982. Without calling for fresh bids/tenders, the license was extended
for another period of five years till 1988 with nominal increase in license
fee from Rs.1874/- to Rs.2400/- in respect of shop no.S-62 and from
Rs.1700/- to Rs.2248/- in respect of shop no.S-31. There was no
increase in trolley fee. Subsequently, it was agreed in 1988 to
renew/extend the license for further period of five years. However, the
increased license fee was not fixed. The petitioner was asked to furnish
an undertaking that they shall pay additional license fee at the current
rate which may be determined by DDA. The petitioner in fact furnished
two separate undertakings in respect of shop nos.S-31 and S-62.
WPC No.3677/1992 Page 6


Photocopy of the said undertakings have been filed on record by the
DDA. The petitioner has concealed this fact in the writ petition and has
not stated that they had furnished undertakings. Thus, the petitioner
was fully aware when they applied for extension of license in 1988 that
DDA was yet to determine the current license fee. They gave an
undertaking that they shall pay additional license fee demanded from
them. The petitioner was fully conscious that the license fee from 1988
onwards is still to be determined and was to be enhanced. The
petitioner, therefore, cannot object to the license fee now claimed on the
ground that the same has been enhanced retrospectively.
13. On the question of quantum of enhancement, power of judicial
review is limited. The Court is not concerned with arithmetical
calculations but is primarily concerned whether the respondents have
taken and considered, due and relevant facts and have been fair. It is
not possible to accept the plea of the petitioner that this Court should
strike down enhancement of license fee as demanded by the
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respondent vide letters dated 6 December, 1991 and 17 December,
1991. By these letters, the existing license fee for first three years from
1988 to 1991 was marginally enhanced by 5% each year and for the
current year 1991-1992 the license fee was doubled. Increase in the
current year was a substantial enhancement but one has to keep in
mind that the initial license was only for a period of five years and was
fixed by way of competitive bids made in 1977. This period was again
extended with nominal increase in license fee for another period of
WPC No.3677/1992 Page 7


five years till 1988. As noticed above, ISBT Complex was constructed in
1976. By 1993, there was an increase in the number of buses plying
daily from 500 buses to 3000 buses. About 8 lac
passengers/commuters were visiting ISBT Complex daily. The
respondent no1 is required to provide service to the passengers and
maintain ISBT and for this purpose they are entitled to earn from
persons allotted commercial space in the complex. It may be relevant to
state here that in the fresh tenders floated in the year 1991, Mr.Harbans
Singh and Mr.Suresh Mittal-respondent nos. 3 and 4, had quoted
license fee of Rs.4250/- p.m./for each trolley at entry gate plaza at the
departure block. The tender was accepted and allotments were made.
The said respondents have filed counter affidavit. Keeping in view the
tender submitted and the rates quoted by the said respondents, it
cannot be said that the license fee fixed by the DDA for the two shops
and the trolleys was exorbitant and abnormally high. In view the
increase in standard of living, scales of expenditure, increase in
prosperity, inflation and the market value of money and commercial
value of shops, etc., it cannot be said that the enhancement is per se
arbitrary and irrational. The petitioner cannot contend and claim that
increase in the license fee should be only 5% or 10% per year. Increase
in license fee has to be in tune with the market conditions and is an
administrative decision which can be reviewed by judicial proceedings
on the basis of well established legal principles and should not be
discriminatory, arbitrary or based on whims and fancies but should be
WPC No.3677/1992 Page 8


based upon relevant material and criteria. The petitioner and their
members is a commercial association engaged in trade of selling
newspapers, magazines, books, etc. and are earning money from the
said activities and are liable to pay license fee. The respondents should
not be compelled and asked to charge lower license fee so as to
subsidize commercial operations and increase profits of the petitioner.
Any such attempt will fall foul of Article 14 of the Constitution of India
and would be discriminatory and arbitrary. In normal course after expiry
of the term of a short-term commercial license given for a specific
period, fresh tender/bids should be invited. This promotes openness,
transparency and ensures that the authorities secure license fee
determined and based upon market conditions. It also gives opportunity
to third parties to conduct and do business. It ensures/promotes free
and fair competition which is essential and necessary. ( Aggarwal &
Modi Industrial Pvt. Ltd and another v N.D.M.C (2007) 8 SCC 75). In
the present case, the petitioner wanted renewal of the license which
was issued to them for a limited period of five years in 1977. They
undertook and agreed to pay the license fee which would be determined
by the respondent DDA. The respondent DDA, keeping in view the
increase in number of buses plying daily, increase in
commuters/passengers at ISBT Complex, inflation, etc., decided to
charge doubled license fee. It was open to the petitioner to reject the
said offer and ask the respondent DDA to go for fresh bidding. The
petitioner did not make any such statement.
WPC No.3677/1992 Page 9


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14. By Order dated 20 November, 2007, the respondents were
asked to place on record the policy decision pursuant to which the
license fee was enhanced in 1991. The respondents have not been able
to place on record the said policy decision. This is understandable as
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the decision was taken in 1991 and the said order was passed on 20
November, 2007. Further the said policy decision was taken by DDA
and subsequently the management came under the control of
Government of NCT of Delhi. In the said order, subsequent policy
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decision dated 10 November, 1993 has been quoted. The first
paragraph of the said policy decision reads as under:-
“Prior to policy as laid down below, on expiry
of licence period, 100% increase in the
existing licence fee, or market rate,
whichever is less, was applicable as per
policy in the case of renewal/extension of
licence in respect of Shops/Kiosks/Counters/
Stalls etc, etc. This policy has now been
modified on 25.9.1992 under the approval of
the Competent Authority. Under this policy,
licence of Shops/Kiosks/Counters/Stalls
etc.etc. at Inter State Bus Terminus Complex,
Kashmere Gate, Delhi will continue till the
currency of the contract or 31.12.1992,
whichever is earlier. As such, the licence of
Shops/Kiosks/Counters/Stalls etc. etc. will be
extended/renewed on the expiry of the initial
period of licence on payment of additional
licence fee every year as indicated below:-

i) All allotments made through tender
or at the market rate; 10% per annum ;
ii) All allotments made in compassionate-5%per
grounds; 5% per annum;
(iii) All allotments made to old evictees; - 5%
per anuum ”

15. It is clear from the said paragraph that it was earlier decided that
WPC No.3677/1992 Page 10


on expiry of the license period, 100% increase on the existing license
fee or market rate whichever is less would be charged. This was
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followed by another policy decision on 25 September, 1992, inter alia,
stating that extension/renewal would be on additional license fee which
would vary between 5% and 10% p.a. The respondents have also filed
on record the latest statement of accounts showing the license fee
demanded and paid from the petitioner from time to time since 1988 till
March, 2010. The respondents have been asking the petitioner to pay
license fee with 10% increase p.a. w.e.f. February, 1992 and 5% annual
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increase as per the policy decision dated 16 September, 2004 w.e.f.
March, 1998 in respect of the two shops. In respect of the trolleys, the
respondent no.1 has been charging 10% increase in the license fee
w.e.f. February 1992. These policy decisions have been universally
applied and as per the respondents other licensees have accepted the
increase and paid the amount.
16. The petitioner had filed C.M. No. 12694/2006 for disposing of the
writ petition as settled/compromised. In this connection, petitioner had
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relied upon letter dated 31 August, 2005 written by the respondent
Govt. of NCT of Delhi to pay outstanding amounts. It is stated that the
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petitioner had paid the said amount in terms of letter dated 31 August,
2005, therefore the whole dispute stands resolved/settled. The
respondent in reply to the said application has stated that the licenses
were last extended in 1988 for 11 months and had expired in 1989. All
others, except the petitioner had accepted enhancement of license fee
WPC No.3677/1992 Page 11


in 1991 and the said policy was uniformly applied. Petitioner had filed
the present writ petition challenging the enhanced license fee and the
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same has remained pending. On 17 March, 2005, the petitioner had
stated that they would be satisfied if the license fee was enhanced by
15% after every three years. On this basis, calculation was made and
communicated to the petitioner. This, however, did not mean that the
respondent had given up their claim for enhanced license fee as
communicated in December 1991.
17. In view of the aforesaid discussion, it is held that the petitioner is
not entitled to any relief in the present writ petition. It is clear that the
respondent have been wrongly denied their dues. Principle of actus
curiae neminem gravabit is applicable and the respondent should not be
made to suffer on account of the stay order. The petitioner will therefore
be liable to pay simple interest @ 8% p.a. on the defaulted amounts
from the date the license fee as demanded by the respondent became
due and payable till payment was/is made i.e. on reducing balance. In
case fresh tenders/bids are invited, Petitioner or their members will be
entitled to participate in the said tender/bid provided they pay the
arrears.
Writ Petition is accordingly disposed of. Respondent Govt. of NCT
of Delhi is also held entitled to costs of Rs.10,000/-.

(SANJIV KHANNA)
JUDGE
FEBRUARY 26, 2010
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WPC No.3677/1992 Page 12