S. Ravindra Bhat, J.@mdashThese petitions raise common questions of law, and are Therefore dealt with by the present judgment. For the sake of a full understanding of all issues, however, the facts relating to WP 3394/1994 are discussed.
2. The issue involved in these proceedings under Article 226 of the Constitution is with regard to the legality of the stand of the first respondent in refusing to allot certain shop premises to the petitioners. Facts pleaded in the writ petition
3. A commercial complex was constructed by the Government of India (first respondent referred to as ''''the Central Government'''') as one of the measures for the rehabilitation of displaced persons who fled to India, in the wake of Partition. The scheme envisioned allotment of shops in the complex, known as ''''Pleasure Garden'''' (hereafter ''''the complex'''') located opposite the Red Fort, Delhi. The allotment was on monthly rental basis. These, among other premises, was (and continues to be) under the supervision an management of the second respondent Director of Estates. Several original allottees of shops in the complex were apparently unable to conduct business or commercial activity. They sub-let the premises allotted to them. In this arrangement, the allotments continued in the name of the original allottee, and rent was paid on that basis; however actual possession was with the sub-lessee. This was irregular, and not impermissible as per terms of the allotment. The third respondent was originally allotted shop No 85. The Petitioner entered into partnership with him on 3rd October 1975. This arrangement was evidently a variant of the methods by which the original allot tee would part with possession of the premises. As per the pleadings, this partnership was dissolved on 3rd December 1975. The petitioner continued in possession of the shop. The third respondent withdrew from the picture.
4. Sometime in the mid nineteen seventies, the first two respondents conducted a survey of the complex, and found that nineteen shops had been sub-let or that their allottees had parted with possession by some other arrangement.
5. The Central Government took a policy decision to regularize the irregular occupation of the shops in the complex, and in premises located at other markets. The decision was detailed in an office order dated 13 July 1977, which was given publicity, as clarified on 2nd August 1978. Relevant portions of the said order [hereafter '''' the 1977 Order''''] are extracted below:
"OFFICE ORDER NO 1/77
Subject:- Market Instruction/ restoration/ regularisation of shops, flats, etc.- terms for In partial modification of the existing instructions, the following decisions have been taken with immediate effect:-
(a) **** ****
(g) In the case of regularisation in favor of partners, individual cases may be considered in relation to the proof which may be furnished by the party concerned that such a partnership had actually existed before the crucial date of 6.5.75 though for any reason, the request could not be made to the department before that date. The regularisation will be allowed at 50% above the pre-cancellation rates or above the economic rent/ license fee whichever is higher?"
The above policy was clarified by Office Order No 2/77, which stated that sub-lessees would be treated on the same basis as partners. This order (''''1978 order'''') also stated as follows:
"Accordingly, allotments in favor of actual occupants of shops, etc continuously since 6th May, 1975 or earlier may also be regularized subject to sufficient proofs being available in support thereof, even though for any reason, a request to this effect could not be made to this Directorate before that date."
6. Several persons, who, like the petitioner had occupied various premises by entering into irregular arrangements with the original allottees such as partnerships/ sub-leases, fell within the purview of the 1977 policy. The 1977 policy was general; it was not confined to any particular market or premises.
7. The petitioner avers that he submitted documents seeking regularisation of allotment of the premises in his name on 9-3-1979, to the Assistant Director in the office of Respondent No. 2. In this background, the petitioner and the original allottee, the Estate Officer issued Respondent No. 3 an eviction notice on 29-4-1980. Proceedings were initiated under the Public Premises ( Eviction of Unauthorized Occupants) Act, 1971 (hereafter ''''The 1971 Act''''). The petitioner was heard, and an eviction order was passed. He was dispossessed on 21 December, 1981. It is his case that ever since, he has been carrying on the business activity in watch repairs, from the vicinity of the premises. Apart from the petitioner and the petitioner in WP 757/97, no occupant of any other premises in the complex was actually evicted, though proceedings were initiated against them. According to the petitioner, the then Union Minister interceded, and ensured that physical dispossession of those other occupants did not ensue.
8. It appears that the occupants, through an Association represented against any precipitate action, and sought regularisation of the occupation of 19 shops. It is averred by the petitioner that as a result, the eviction proceedings were stayed. It is als o averred that the Union Minister decided that the allotments in favor of all such persons ought to be regularized, and had for that purpose, forwarded a list of names, in which the petitioner''s name, too, figured. The petitioner further alleges that He individual representation however, was not considered favorably by the officials; he consequently met the then Minister for Urban Development, Shri Abdul Ghafoor, who heard him, and by an order dated 27 July, 1986 allotted the shop in his favor. In the meanwhile, the file in respect of the petitioner case was lost; however, it was reconstructed, and the Minister had directed allotment in his favor. The petitioner lastly alleges that another policy was formulated, as per which, the benefit of regulari ation stood extended until 20th October, 1989.
9. In the above background, the respondents passed an order on 3rd June, 1994 allotting the shop to the fourth respondent. The petitioner challenges that action, and seeks appropriate relief of regularisation of allotment of the shop in his favor, based on the Minister''s order, in 1986. He also claims possession of the shop.
10. In an additional affidavit, filed in May, 1997, the Petitioner has also placed reliance upon the policy of the Central Government, published in January, 1996. The relevant portion of that policy, dated 29-12-1995 reads as follows:
"NOTICE
1.ownership rights were conferred on the 1134 shop, flats, stalls etc in Sarojini Nagar Market, Pleasure Garden Market, Kamla Market and New Central Market (known as Shankar Market) pursuant to the Government decision in July, 1978. A few shopkeepers in he se 4 markets who did not either accept the offer of ownership for various reasons or who were not eligible for ownership rights being unauthorized partners/ occupants having come into occupation after 6.5.1975, were left out at that time.
2. It has now been decided by the Government to grant ownership rights to the allottees/occupants of the following 4 markets who could not avail the offer of ownership earlier:
1.Sarojini Nagar Market
2.Pleasure Garden Market
3.Kamla Market
4.New Central Market
The following categories of persons would be entitled for consideration of grant of ownership rights:
(a) Original allottees.
(b) Allottees in whose names the shops have been regularized with consent of original allottees on or before 6.5.75.
(c) Actual occupants (with or without the consent of the original allottees) up to 20 October, 1989, where permission has not been given by the Directorate of Estates?''''
11. According to the petitioner, his claim for grant of ownership of the premises is covered by the later policy, which was designed for those occupants who could not avail the benefit under the previous policy; the cut off date stood extended to 20-10-1989, and the petitioner was entitled to benefit under the later policy. Stand of the Respondent Nos 1 and 2
12. It is averred in the reply of the Respondent Nos 1 and 2, (contesting respondents herein, and described as such) that the petitioner could not be given any benefit of regularisation either under the 1977 policy, the policy notified on 2-8-1978, or in the 1995 policy. They contend that the benefit was confined to those who had entered into partnership arrangements with original allottees on or before the crucial date, namely 6-5-1975, and continued in actual occupation of the premises. Apart from the terms of the policy, the respondents have also averred that in fact there was no order in favor of the petitioner, regularizing his occupation of the premises. It is alleged that the request for allotment in his favor was rejected on 23-1-1980. They avr that representations made by him were rejected as far back as on 16-2-1988. They have also relied upon another rejection letter dated 29-9-1993. The averments in the petition about allotment having been made in his favor have been categorically denied
13. The respondents admit in the counter affidavit that the then Minister had in fact desired that the petitioner be given benefit of regularisation, on 29.9.1986. They however state that upon examination of his case, it was found that he was not eligible, since he had entered into partnership after the cut off date, and that he had been evicted from the premises, in 1981. They rely on clause 8 of the License deed in favor of the third respondent for the contention that the partnership entered into, be when the original allottee and the petitioner amounted to violation of terms of the lease. Clause 8 reads as follows:
"The licenser(s) shall not permit the said premises or any part thereof being used by any other person for any purpose whatsoever without the previous consent in writing of the Government and in default thereof shall be liable for ejectment. The licensees) shall not introduce any partners nor shall he transfer possession of the premises or part thereof or otherwise carry on the business with any other person or assign transfer or otherwise alienate his interest in the premises
14. This court had, by its initial order, dated 11-8-1994, granted status quo in respect of possession of the premises. By an application, dated 11 February, 1997, the petitioner brought to the notice of the court that the respondents were seeking to auction the premises, in violation of the status quo order. Consequently, the proposed auction was stayed on 14-2-1997. The respondents thereafter filed an application, CM 2593/97 seeking vacation of stay. In this, it was brought to the notice of the court t at the auction of the premises was sought to be effected by virtue of directions of the Supreme Court in Shivsagar Tiwari v. Union of India1 (dated 11 October, 1996, hereafter referred to as ''''Tiwari''s case''''). It was pointed out that the class of allotments invalidated in that judgment covered allotment of the premises to the fourth respondent in 1994. Hence the premises had to be auctioned in terms of the Supreme Court''s directions.
15. Pursuant to various directions in these proceedings, the respondents produced the relevant records for consideration of the court. The issue of regularisation of occupancy by sub-lessee[s]/ partners was engaging the attention of the Central Government. A decision was taken on 6-5-1975 to regularize the occupants/ partners, on certain terms. This was embodied in the 1977 policy, as clarified in August, 1978. The nothings in the files reveal that regularisation of 19 shops in the complex had not taken pace until 1985- 86. These occupiers had come into possession after the cut off date [ 6-5-1975]. The proposal to review the cut off date and extend it was also pending in 1985-86. Eventually, a decision to regularize possession of such sub-lessees/partnes was taken in 1986. In the case of the petitioner, however, as also in the case of two other occupants, it was found that the relevant files were misplaced. All these materials, along with the petitioner''s request for regularisation, were put up for decision of the Union Minister, who, on 29th September, 1986, noted as follows:
"nos. 85, 271,these files are missing. It is not their fault, they be regularized as others."
However, the petitioners'' occupation was not regularized. Apparently, a representation was made to the Prime Minister''s Office, and the nothings reveal that the case could not be processed due to the files being untraced. Others however, got the benefit o regularisation; offers were dispatched to them, in that regard. The file also shows that the cut off date for consideration was sought to be extended to 4-12-1985, instead of the original date, 6-5-1975. Subsequently, there was a rethinking, and the Urban Development Ministry took a decision not to actually regularize any unauthorized occupant, or relax the cut off, until formulation of a general policy in that regard. The noting dated 20-1-1987 records that the proposal to extend the cut off date was dropped
"in view of the decision to transfer the markets under the administrative control of this directorate to local bodies
The same note records as follows:
"One of the shop No. 85 was got evicted and sealed. In respect of the other two shops stay was granted for taking any further action for eviction. The 16 shopkeepers were sent the offer for regularisation in pursuance of above orders of HM. However, when the case was put up to the then HM ( Shri Abdul Ghaffor) it was ordered by the HM that the regularisation may be kept pending till a general policy with regard to further extension of crucial date of 6-5-75 is decided. In pursuance of the above orders the cases of all the 19 shopkeepers have been kept in abeyance and no further action has been taken for regularisation of these shops including 16 shops to whom offer has been sent."
Finally, the noting for 14-6-1991, which was approved subsequently, records that the initial decision of the Minister to extend the cut off date and the decision to regularize some other shops, led to demand from a large number of unauthorized occupants; consequently the decision was shelved. Likewise, the proposal to transfer the markets to local bodies was dropped. The cabinet decided on 20 October 1989 to grant regularisation to actual occupants. The file, in respect of the petitioner, that
'''' The weakness of Shri Gulati''s case is that he is no longer functioning in the shop as he along with the original allottee had been evicted a decade ago in 1981. If at all any concession is to be given, it may be extended only to those who are continuing in the shop or who were the actual allottees but had been evicted because of some irregularities like arrears, unauthorized construction etc. etc. Shri Gulati has never been our allottee and as such he has no case of coming back to shop No. 85 PG Market "
This note went on to recommend that no further request or representation be entertained from the petitioner. The proposals in this note were accepted.
16. The allotment of shops to unauthorized occupants, in terms of the policy finalized by the cabinet, finally took place in 1998-99. The terms were worked out, and 50% extra license fee was recovered.
17. Shri K.P. Kapoor, learned counsel for the petitioner submitted that:
a] The petitioner''s case had been considered at the highest level, namely the Minister, who in 1986, directed that he ought to be extended the same treatment as the other 16 occupants who had entered into partnership after the cut off date. Once this fact is acknowledged, the decision of he respondents not to allot the premises to him, and subsequently allot the same to the fourth respondent is arbitrary, and amounts to discrimination.
b] The decision to allot the premises and regularize the petitioner having been taken by the highest authority, a vested right accrued in his favor, which could not be defeated by any later re-thinking or policy. The minister''s decision was given in the petitioner''s presence; Therefore, in its terms, at least the respondents were bound to allot the premises.
c] The petitioner in any case fulfilled the requirements of the 1995 policy, as he too had entered into partnership after the cut off date, i.e. 6th May, 1975. That policy was formulated for the purpose of inter alia, extending the benefit of regularisation of ownership to occupants who came into possession, but could not be covered by the earlier policy. Having regard to this objective, denial of regularisation, and possession was arbitrary.
18. Shri Kamal Sawhney, counsel for the respondents, submitted as follows:
a] The petitioner was not entitled to any relief, since he approached the court after an undue and unexplained delay. It was submitted that even if allowance were to be given for the period 1981 [ when the petitioner was evicted] to 1988 [ when the communication was admittedly addressed to him, rejecting the request] there is nothing to show why the petitioner waited until 1994 to approach the court. It is well settled that repeated representations do not extend the time required to approach the court. The petitioner was not diligent in seeking remedies, and Therefore cannot be given any discretionary relief under Article 226 of the Constitution of India.
b] The petitioner cannot claim any manner of right based on the noting or decision of the Minister. That was never officially communicated, or embodied in an order. Hence, it did not result in any enforceable right or claim in favor of the petitioner.
c] The decision not to allot the premises in favor of the petitioner was in line with the Cabinet''s policy of 1989, and as per the guidelines published in January, 1996. Those guidelines envisioned the continued actual occupation of the sub-leassee/partner. Since the petitioner had been evicted in 1981, he could not claim benefit of the policy. It is also contended that the eviction, or the policy has not been questioned.
d]After the decision in Tiwari''s case, it was necessary to auction the premises as per directions of the Supreme Court. Since the premises had been allotted to the fourth respondent in 1994, which was directed to be cancelled, the respondents are duty bound to dispose of the premises only through auction.
19. In the light of the above pleadings and materials, the following points arise for consideration:
i] Whether the petitioner is entitled to allotment of the premises in his name, on account of the decision by the Minister and whether any vested right accrued in terms of old policy;
ii] Whether the petitioner can secure allotment of the premises in terms of the1995 Policy;
iii] Whether the petition is not maintainable because of laches and the directions in Tiwari''s case. Point No. 1: Whether the petitioner is entitled to allotment of the premises in his name, on account of the decision by the Minister and whether any vested right accrued in terms of old policy;
20. The petitioner has placed heavy reliance on the decision of the Minster in his favor. As per his pleadings, the petitioner met the officials on several occasions, when the issue of regularisation of occupancy of sub-lessees/ partners was under consideration. He made several representations. According to the petitioner, his case was for some reason not considered because the relevant files were missing. When these facts were drawn to the notice of the Minster, he made a noting that the petitioner was not at fault, because his file was missing. He Therefore, directed that the petitioner''s case for regularisation too had to be processed along with the case of the others. These facts have not been disputed. Indeed, the records produced before court bear them out. The respondents on the other hand submit that though at one point the Minister undoubtedly directed consideration of the petitioner''s case, yet, no right accrued; on the contrary, after consideration of all cases, it was felt that till a general l regularisation policy was formulated, no action ought to be taken. Accordingly even the offers of regularisation in the complex, issued to the actual occupants were not processed. Therefore, until the formulation of the policy, there was no question of the petitioner''s case being given any primacy based on the Minister''s decision on the files. The issue Therefore is whether such orders/ nothings in the official records can confer rights or enforceable entitlements.
21. In Bachhittar Singh v. State of Punjab,2 this precise question arose for consideration of the Supreme Court, which held as follows:
"9. The question, Therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by clause (1) of Article 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file."
This view was followed in State of Bihar v. Kripalu Shankar,3 where it was held that:
''''nothings in a notes file, not only of officers but even that of a Minister will not constitute an order to affect others unless it is done in accordance with Article 166(1) and (2) and communicated to the person concerned. The above reasoning has been followed and applied in other decisions, namely Laxminarayan R. Bhattad v. State of Maharashtra,4 Bahadursinh Lakhubhai Gohil v. Jagdishbhai M. Kamalia5 and by this court, in CJ International Hotels Ltd-vs-New Delhi Municipal Committee6.
22. The petitioner undoubtedly made several representations before, as well as after his eviction. His case for regularisation was similar to those of the other 16 unauthorized occupants in the complex. The Minister, no doubt made some nothings which directed consideration of the petitioner''s case and grant of benefit as in the case of others. However, it is equally true that no official communication was addressed to or received by the petitioner. His case was linked with the others'' application for reguarization. In their cases, initially offers were dispatched; however after reexamination, they were not processed, and the entire matter was kept pending until finalization of a general policy, which was as per the Cabinet decision in 1989. In the light f these admitted facts, the noting of the Minster in the file, directing consideration of the petitioner''s representation, along with the others'' did not amount to an order of the Central Government, upon which he could found an enforceable claim. The authorities are categorical on this issue. Hence, the only conclusion to be drawn is that the nothings by themselves did not confer any right, as long as they remained as such. They were at best reflective of the prevalent thinking about extending the benefit of regularisation to the petitioner. We Therefore reject the contention that the authorities acted arbitrarily in not acting upon the nothings of the Minister. The case of the petitioner received consideration along with the others, who too were not given regularisation in 1986-87. Their cases were eventually processed under the later policy.
23. It has been argued on behalf of the petitioner that the decision of the Minister created a vested right in his favor, and that his application had been made in 1979 when admittedly he was in possession. Having regard to the purpose of the original Policy, the respondents were under a duty to consider his case, and extend regularisation, as well as ensure delivery of possession of the premises to him, as in the case of the others.
24. Before discussing the merits of this contention, it must be noticed that the primary objective of allotment of shops in the complex was as a rehabilitative measure in respect of displaced persons. Such of those allottees, who after securing allotments could not carry on business, contrary to the terms of the allotment, inducted sub-lessees, or partners. These sub-lessees or partners were conscious of the tenuous nature of their occupation. Yet, the Central Government decided, as a compassionate measure, to accept this reality, and regularize their occupation. For the purpose, a cut off date was prescribed, i.e. 6-5-1975. The petitioner admittedly did not qualify for the benefit under the old policy of 1977/78, since he had entered into partnership after the cut off date. Several other occupants in the complex too did not fulfill the criteria spelt out in the old policy. Hence, they represented to the Central Government. Initially, there was a proposal to extend the cut off date to December, 1985 in hose cases; however that was not pursued and as a matter of policy, it was decided to await the formulation of a general policy in respect of allotments in three other markets, where similar violations had taken place. Accordingly, the case of the petitioner too, was not processed.
25. A discussion of vested rights, (alleged to be inhering in the petitioner, as contended by him) Therefore in the present context, relating to grant of largesse upon concessional terms, and the regularisation of breaches (of terms and conditions), has to keep the above facts, as also the concerned object of the policy, in perspective. In Chief of Marketing (Marketing Division), Coal India Ltd. v. Mew at Chemicals and Tiny SSI Coal Pulverising Unit7, the Supreme Court, dealing with a submission of ''''vested rights'''' of an applicant for consideration of his case according to an old policy, held as follows:
"In our view, the High Court was also in error in concluding that the position prevailing on the date of the application must apply. It is settled law that there is no vested right when a person makes an application. The position prevailing at the time f the allotment is to apply. Before the allotment was made the circular dated 5-1-1995 had already been issued. The Coal Controller whilst allotting was bound to take note of that circular. The Joint Secretary by his fax dated 8-1-1996 had brought it to he notice of the Coal Controller. Thereafter, guidelines had also been issued on 23-4-1996. The Coal Controller was bound to take note of those guidelines also. We are unable to understand the reasoning given by the High Court that those guidelines had ben issued by a Director and thus could not be said to be guidelines issued by the Central Government".
26. At first blush, the contention of the petitioner is appealing. It is true that he had represented to the authorities in 1979. At that time he was in possession. His case, like the others, was treated as one of unauthorized occupancy, and eviction proceedings under the 1971 Act were initiated. The Minister too recommended his case. However, in fact the respondents, in respect of no one, took any final decision until the Union Cabinet formulated the terms of regularisation in 1989. As explained earlier the nothings or decisions of the Minister could not and did not confer any enforceable right in favor of the petitioner. Hence it would not be possible to hold that there was any vested right in his favor alone for consideration, as his application for regularisation was pending when the new policy was formulated. All the 19 cases in the complex were considered together. The only detail in the case of the petitioner was that he was physically evicted from the premises in 1981.In the light of the above discussion, we hold that the petitioner is not entitled to allotment of the premises in his name, because of the decision by the Minister and no vested right for consideration accrued in his favor.
Point No ii]: Whether the petitioner can secure allotment of the premises in terms of the 1995 Policy
27. The petitioner submits that having regard to the objective of the 1995 Policy, namely to regularize the occupation of sub-lessees/ partners who could not get the benefit of the old Policy, on account of the occupation being later than the previous cut off date, and the fact that his case was under consideration right through, he is entitled to regularisation.
28. The respondents have submitted that the petitioner''s case does not qualify for consideration in terms of the 1995 Policy, since admittedly he had been evicted in 1981. The effect of that order is that the petitioner accepted his status as an unauthorized occupant, and never challenged the order of the Estate Officer. Hence, he could not be said to be in ''''actual occupation'''' of the premises up to 20th October, 1989, as per the Policy of 1995.
29. The 1995 Order, as well as official records do point to the fact that the cases of all 19 occupants of the complex were being considered together at one time, pending formulation of a uniform policy for all such markets. It is equally true that the problem of violation of terms of the license by the original allottees, was endemic. The original policy prescribed a cut off date, viz 6-5-1975. The petitioner and other occupants could not secure the benefit since they were post May 1975 occupants. The nothings disclose that the Cabinet decision was to extend benefit to those who were in actual occupation. The relevant portion of the 22-12-95 Policy embodies this. The rationale for this appears to be that the objective of the exercise was to regularize occupation, and put them on uniform terms for future. Inherent Therefore in the scheme was the requirement of continued actual occupation. This is also apparent from a reading of the 1978 circular, which too speaks of actual occupancy. These policies and in constructions'' did not enable re-opening of cases of occupants, who had been evicted. Any decision to do so would perhaps have led to the further question about prescribing a cut off period for that purpose, namely in respect of those who were not in occupation, and had accepted orders of eviction.
30. It was at some stage sought to be argued that the petitioner was covered by the expression ''''actually occupied'''' until 20-10-1989. It was suggested that the objectives of the policy had to be kept in mind while construing the term, which meant that all those who ''''had been'''' in occupation till that date, and till any date prior to that period, who otherwise fell within the policy, were entitled to its benefit.
31. We are unable to accede to the submission of the petitioner. The terms of the policy of 1995 are clear; there is no scope for construing ''''actual occupation'''' in any manner other than their plain grammatical meaning. While courts can and often do interpret legislative measures, liberally, such exercises are undertaken when the expressions used are unclear or ambiguous. Here, that is not the case. If one keeps in mind the objectives of the Policy, namely to extend the benefit to those left out, but who ere in continued occupation, there is really no scope for departing from the literal interpretation.
32. Admittedly, the petitioner has not challenged (and we suspect, cannot challenge) the cut off date prescribed in the 1995 notification. Likewise, he has not challenged the eviction order; and his status as an unauthorized occupant. As held by the Supreme Court in Karam Pal v. Union of India,8
''''In the absence of challenge to the Rules and the Regulations, resultant situations flowing from compliance of the same are not open to attack''''.
The absence of challenge to the notification, of 1995, its cut off date, or its terms, as well as the acceptance by the petitioner of his status as an unauthorized occupant, and his subsequent eviction from the premises in 1981, preclude any assertion by him about the resultant situations. He could not have been considered for regularisation under the later, 1995 policy; he was not an actual occupant.
33. We may add that the policy of 1995 to the extent it is relevant for the purposes of this petition, do not disclose any arbitrariness or unreasonableness. In judicial review, the court cannot and does not sit in appeal over the merits of individual policies of administrative bodies; it is concerned only with reasonableness of the decision making process, and ensuring its fair, even handed enforcement or implementation. In Netai Bag v. State of W.B.,9 the Supreme Court held as follows:
" 20. The Government is entitled to make pragmatic adjustments and policy decision which may be necessary or called for under the prevalent peculiar circumstances. The court cannot strike down a policy decision taken by the Government merely because it feels that another decision would have been fairer or wiser or more scientific or logical. In
Therefore, the prescription of actual occupation by a partner inducted after 6-5-1975 is neither arbitrary nor discriminatory. We Therefore hold that the petitioner cannot secure allotment of the premises in terms of the 1995 Policy.
Point No 3: Whether the petition is not maintainable because of laches and directions in Tiwari''s case.
34. In view of the fact that the first two points have been considered on merits, this aspect acquires secondary importance. Nevertheless, we proceed to deal with it since the respondent made submissions on this aspect.35. The petitioner admittedly applied for regularisation in 1979. His application was however rejected in 1980. Thereafter, he was evicted from the premises in 1981. His case for approaching the court in 1994 is premised upon the consideration of his various representations, personal meetings with officials, Minster, etc. As seen earlier, though the petitioner was evicted in 1981, yet no action was taken to allot the premises to someone else. The premises were allotted in 1994, which is the occasion for he petitioner seeking relief from this court.
36. It is well settled that there is no hard and fast rule about what is ''''reasonable time'''' within which a litigant has to approach the court under Article 226 of the Constitution of India. A host of factors determines what is reasonable in that context. The nature of the case, particularly the right asserted, the conduct of the parties, the steps taken by them, all enter the judicial verdict. Yet, one important factor is the diligence and promptitude displayed by the petitioner in securing his remedies. f he slumbers, the court would decline relief.
37. In the present case, the petitioner was informed in 1980 and later, after the Minister''s decision, in the year 1988, that his request for regularisation was not being acceded to. During this period, in 1981, he was even evicted from the premises. Hence he could not rely on repeated representations to say that his case was ''''pending'''' and approach the court only in 1994. Admittedly, after his eviction, there was a cause of action, in that his status as unauthorized occupant stood concluded. Yet, he did not attempt to have those findings set aside, in furtherance of his claim to possession. Even if the period till 1988 is not considered, no Explanation is forthcoming why the petitioner did not approach the court till 1994, save the event of allotment in favour of the fourth respondent. It may be noticed that after eviction from the premises in 1981, there was no legal or equitable claim over the premises, inuring in favor of the petitioner. Hence he ought to have approached the court within reasonable to me from the rejection of his claim, in 1988. We Therefore hold that the petition is barred by laches.
38. The respondents submit that the allotment in favor of the fourth respondent had to be cancelled, since it was one of the classes of allotment that were the subject matter of consideration in Tiwari''s case. As per directions of the Supreme Court in that case, the shops/ premises allotted in 1994 were to be cancelled, and after formulation of a policy, allot them in accordance with it. The relevant portion of the judgment ( page 564 of the SCC report] is as follows:
"17. Now, to take care of the illegality, we have to take two steps. First, cancel the allotments. To decide as to who should get the shops/stalls, the Government would first consider whether its policy of 1994 and categorization made by it needs alter at on in any way. While undertaking this work, the Government would make such provisions in the policy which are just and fair. After the policy has been framed, the shops/stalls would be allotted as per the policy and by following a procedure having the section of law. In case it would be that any of the present allottees would not be the person so selected, he/she shall be asked to vacate the shop/stall by giving three months'' time. We would require the Government to formulate the policy within two month and thereafter to complete the exercise of allotment within two months. Till then, the present allottees would be allowed to continue".
It has been Therefore submitted that the allotment of the fourth respondent could continue only until the formulation of a policy. The policy of the Central Government, in respect of such cancelled allotments, was to allot the premises after an auction. uch being the case, it would not be possible to grant any relief to the petitioner.
39. We find force in the submission of the respondent. Admittedly, the premises had been allotted by the then Minister, to the fourth respondent. The legality of all such allotments were considered in Tiwari''s case. The Supreme Court held that such allotments were arbitrary, and directed their cancellation. Consequent directions for allotment/ disposal of those premises were made. Those directions squarely apply to the case here, since the premises in question have to be disposed off in terms of the order. As a result, any interference by this court, under Article 226 would result in going behind or acting contrary to the order in Tiwari''s case. We, Therefore, hold that the present petition under Article 226 is not maintainable for that reason.
40. It would be necessary to deal with a submission, not fully pressed, by the petitioner, to the effect that the respondents have acted in a discriminatory manner in that certain other persons were given allotments, even though they were not eligible. An application (CM 8864/97) was filed seeking a direction to produce the records pertaining to allotments made in the complex. This has been denied by the respondents, who have submitted that assuming without admitting that to be correct, if any wrong order allotment has been made, contrary to the policy existing at the relevant time, that would not clothe the petitioner with any legitimate grievance or cause of action.
41. In our opinion, the submission of the petitioner about discrimination, based on wrongful or illegal allotment in favor of others has no merit. It is settled law that one illegality or irregularity does not constitute a rationale for its perpetuation through the process of court, by recourse to Article 14. In State of Bihar v. Kameshwar Prasad Singh10:
"The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favor of any individual or group of individuals, others cannot claim the same illegality or irregularity on the ground of denial thereof to them. Similarly wrong judgment passed in favor of one individual does not entitle others to claim similar benefits.
42. We Therefore hold that even if it were to be assumed that there might have been some illegality in the allotment of certain shops, those actions would not constitute a legitimate cause for the petitioner to claim hostile discrimination, and seek relief.
43. As a result of the foregoing discussions and findings, we hold that the petition is not maintainable, and is Therefore rejected.
44. All pending applications have been rendered infructuous in view of the above findings, and are disposed off in terms of the judgment and order.
45. Rule discharged. Interim orders made in the proceedings stand vacated. There shall be no costs. IN W.P.(C) 757/97 and CMS 1856/97, 1367 and 8847/98
46. In this petition, a direction to quash the advertisement, issued on 6-2-1997, for disposal of shop No. 405, in the same complex (as in WP No. 3394/94) has been claimed. Apart from a few factual variations, the issues involved, and the policies/ instructions are the same as in the said petition.
47. The petitioner claims to be a partner of Shakuntala Devi Malhotra, who was allotted shop No 405 (the ''''premises'''') in 1965. According to her, the partnership was entered into on 5th July 1972, i.e. Prior to the cut off date initially prescribed, viz. 6th May 1975. It is alleged that the original allottee died in January 1977, and that at that time she was not in possession. The petitioner has alluded, in the pleadings, to some prior order canceling the allotment, which was withdrawn, in 1976. The petitioner received a notice dated 27th March, 1978 to the effect that she was an unauthorized occupant, and that in terms of the license deed issued to the original allottee, the license stood cancelled/ determined. Eventually, a show cause notice was issued, and proceedings were initiated under the 1971 Act, which culminated in the eviction of the petitioner on 17-2-1982. The petitioner avers that several representations were made by her, [as well as the Market Association] in regard to restoration of possession, and regularisation of allotment, in her favor. The petitioner avers that her requests were not heeded, because the respondents had taken a view that she had been unable to substantiate her claim for allotment with proper documents. She has, like in the case of the petitioner in WP 3394/1994, relied upon certain nothings in the files of the respondent by the Minister of State, particularly to the effect that the shop ought to be put to auction. The respondents had allotted the premises to one L. T seing. At that stage, in 1994, she had approached the court with a writ petition. However, she subsequently withdrew it with liberty to file another comprehensive petition. The allotment to L. Tsering was cancelled and allotment was sought to be made through auction. Hence the present petition. The relief claimed is a direction to allot the premises in her favor, and quash the decision to allot the premises through public auction.
48. The respondents did not file any return in these proceedings. However, their counter affidavit, in the previous proceedings initiated by the petitioner, is on record. They have averred that the request of the petitioner could not be acceded to because she had not submitted the relevant proof to establish a valid and functional partnership with the allottee before the cut off date, viz 6-5-1975. They also averred that the petitioner had been physically evicted from the premises in 1982, but had been continuing to conduct business outside the premises. She was eventually evicted from there too 1994.
49. Shri Rakesh Garg, appearing for the petitioner sought to distinguish the present case from the facts in WP 3394/94. He contended that the partnership in the present case had been entered into before the cut off date, and that the respondents themselves were aware of this position, as is evident from the various show cause notices issued to her and the original allottee, before the eviction from the premises. He Therefore submitted that the respondents could not claim that further proof was necessary before processing the petitioner''s case for regularisation.
50. On the issue of the actual continued occupation of the premises, learned counsel submitted that the eviction order could not come in the way for grant of relief, since it was a nullity from inception. He contended that the order being a nullity, could be ignored in any collateral proceedings, even though it is not impugned directly in any petition. This submission has also been pressed into service in order to get over the objection as to delay and laches, since the petitioner approached the court on y in 1994.
51. The facts of the present case to an extent present a somewhat different picture than those in WP 3394/94. However, in order to examine the merits, the petitioner has to satisfactorily explain the delay in approaching the court, which is identical as in that case. The only submission made- apart from merits, about the partnership being of a date prior to the original cut off date- is that though the eviction order is final, it is not binding. According to counsel that order is null and void, for the reason that the finding of unauthorized occupancy was premised on an unauthorized partnership, which in reality entitles the petitioner to the relief claimed in these proceedings.
52. The issue as to whether a void order is a nullity from inception, or has legal effect until an appropriately constituted proceeding is initiated, and a declaration made, has been discussed in several judgments. It has been held that though an order may be void, the willingness of a court to grant relief, in legal proceedings where the status of the order is debated would depend on a host of factors, impinging upon the conduct of the petitioner. This precise issue was considered in the context of the time taken by a litigant in approaching the court for relief, against a void order, after considerable delay, by the Supreme Court in State of Rajasthan v. D.R. Laxmi11 where the Court held as follows:
"10. The order or action, if ultra virus the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate ca e decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances
The above reasoning has been followed in subsequent cases.
53. In the present case, the order of refusal was made some time in 1978-79. Proceedings were initiated under the 1971 Act, leading to the petitioner''s eviction in 1982. She too, like the petitioner in WP 3394/94 did not impugn the eviction order; she too has relied upon nothings of the Minister, and approached the court only in 1994. The petition filed by her seeks allotment of the premises, and quashing of the decision to allot it by auction. No grievance has been made about the eviction, or the finality attached to her status as unauthorized occupant. Furthermore, in her case too, the allotment made in favor of L.Tsering was cancelled pursuant to directions of the Supreme Court in Tiwari''s case. We Therefore reject the contention that the finality of he eviction order can be ignored on the ground that it is a nullity.
54. In view of the foregoing discussion, we cannot be persuaded to take a view different than the one taken in WP 3394/1994. This petition too, has to fail as not being maintainable in view of Tiwari''s case; for the delay and laches of the petitioner in approaching the court under Article 226 and also for the reason that the petitioner''s status as unauthorized occupant has attained finality.
55. Accordingly, this petition too is rejected by following the reasons indicated in our judgment in WP 3394/1994.
56. All pending applications have been rendered infructuous in view of the above findings, and are disposed off in terms of this judgment and order.
57. Rule discharged. Interim orders made in the proceedings stand vacated. There shall be no costs.
