Rajasthan High Court - Jaipur
Kishore Kumar vs R T D C Ltd And Ors on 1 July, 2013
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B. CIVIL WRIT PETITION NO.4180/2013 (Smt. Savitri Devi & Anr. Vs. The Raj. Tourism Development Corp. Ltd., Jaipur & Ors.) S.B. CIVIL WRIT PETITION NO.4232/2013 (Kishore Kumar Vs. Raj. Tourism Development Corp. Ltd., Jaipur & Ors.) S.B. CIVIL WRIT PETITION NO.4233/2013 (Vikas Vs. Raj. Tourism Development Corp. Ltd., Jaipur & Ors.) S.B. CIVIL WRIT PETITION NO.4234/2013 (M/s. Jhunjhunu Mahila Sahkari Upbhokta Bhandar, Jhunjhunu Vs. RTDC Ltd., Jaipur & Ors.) S.B. CIVIL WRIT PETITION NO.4659/2012 (Mahesh Kumar Jingar & Anr. Vs. The Raj. Tourism Development Corp. Ltd., Jaipur & Ors.) Date of Order : July 01, 2013 HON'BLE MR. JUSTICE ALOK SHARMA Mr. Hanuman Choudhary ] Mr. Lokesh Sharma ], for the petitioners. Mr. R.P. Singh, AAG with Mr. Dinesh Yadav, AAG with Mr. Amit Ojha and Mr. Amit Kuri, for the respondent-RTDC. BY THE COURT
1) All the aforesaid petitions involve a common question of law and therefore are being decided by this common judgment. The facts in SBCWP No.4180/2013, titled Smt. Savitri Devi & Anr. Vs. The Raj. Tourism Development Corp. Ltd., Jaipur & Ors., are being taken as the lead case for the reason that the respondent-The Rajasthan Tourism Development Corporation Ltd., Jaipur (hereinafter 'RTDC') being the contesting party has filed a detailed reply in the said petition in justification of its decision not to renew the licences granted to the petitioners following the expiry of their licence period in respect of each of them.
2) The facts of the case are that following an advertisement by the RTDC, as the owner of the Rajasthan Tourist Bungalow, Jhunjhunu, licences for a period of three years, to set up counter for the sale of specified wares within RTDC's premises were given out to each of the petitioners under the letters dated 06.02.2010. Identical licence agreements were thereafter executed on 29.03.2010. A copy of an such licence qua the petitioner Savitri Devi has been filed as annexure-3 to the writ petition. In terms of clause 3 of the licence agreement aforesaid, it was specifically provided that the licensor-RTDC would be in actual possession of the site in respect of which licence was being issued and the licensee would be entitled only to use the said site for the purpose of setting up a Gents' Parlor. It was also provided that the licensor, aside of having actual possession of the licensed site, would have the right to oversee the use of the licensed premises and carry out the necessary inspections when required. It was further provided that the licensee would be obliged to follow the directions issued by the licensor from time to time including any direction to relocate in respect whereof the licensee would have no right to object on any ground whatsoever. It was then provided that the term of the licence would be three years commencing 01.04.2010 and for the duration of the licence, the licensed premises would only be operated and used between 6:00 am to 10:00 pm each day. Condition No.14 of the licence agreement dated 29.03.2010 specifically provided that at the end of the licence period, the licensee would cease to have any right whatsoever over the licensed premises and so also in the event the license were to be revoked earlier. Condition No.17 of the licence agreement recorded the covenant that the licensee would have no interest in the licenced site except to use it strictly in terms of the licence agreement. Condition No.18 provided that the licensor would have the right to revoke the licence at any time without any reason if directed by the Managing Director of RTDC. Condition No.24 required that following the revocation of the licence or expiry of the licence period whichever was earlier, counters set up by the licensee on the licensed premises would be removed within 48 hours. Following the licence agreement dated 29.03.2010, the petitioners appear to have set up counters on the site/s in respect of which the licences were issued by the RTDC.
3) Vide letter dated 01.10.2012, the General Manager (F&B), RTDC informed the Manager, RTDC Tourist Bungalow, Jhunjhunu that subsequent to the expiry of the licence period of the sites in issue in respect of which licences were issued, the site were to be kept vacant. This entailed in effect a direction that the licences issued to the petitioners and others similarly situate were not to be renewed subsequent to the expiry of operating / current licence period/s.
4) The petitioners are aggrieved of the letter dated 01.10.2012 primarily on the ground that the said decision is contrary to the RTDC's own policy of 01.06.2008 whereunder a decision had been taken that after expiry of licence period in respect of licence issued in the first instance after an open auction, as in the case of the petitioners, the licence period would be further extended for a period of eight years on the condition of the licence fee being enhanced 20% in the first year following the expiry of the licence and thereafter on yearly enhancement of the fee as provided upto eight years. It has been submitted that albeit the Chairman & Managing Director of RTDC has indeed been conferred the discretion under the very said policy decision dated 01.06.2008 not to allow extension and put the sites to auction afresh, there was no good cause/ground with the Chairman & Managing Director of RTDC to invoke his discretion and not renew the licences issued to the petitioners under the agreement dated 29.03.2010 for a further period of eight years with enhancements in licence fees as provided for under the policy. It has been submitted that the petitioners have expanded substantial amounts in setting up the counters on the licenced sites and in the event the licences were not to be arbitrarily renewed in spite of a specific provision with regard thereof under the policy decision dated 01.06.2008, the petitioners would not only lose their capital investment in the counters constructed over the licensed site, but also be denied their right to earn a livelihood. It has been submitted that RTDC generates very substantial amounts from the licence fee paid by the petitioners and other similarly situated licencees and non-renewal of all licences at the RTDC Tourist Bungalow, Jhunjhunu is also contrary to public interest and occasioned by the mere whims and fancies of the Chairman & Managing Director of RTDC who is actuated in his action not so much by any reason of pubic interest or benefit to RTDC, but only by a desire to cause loss and damage to some of the petitioners who belong to a different political dispensation. And thereafter to give out the licences to his favoured persons. It has been submitted that the petitioners have already deposited the enhanced licence fee by post dated monthly cheques for the period 01.04.2013 to 31.03.2014. It has also been submitted that after having raised Pakka construction, necessary for setting up the counters, the petitioners have gained reputation and goodwill in the area which would be wholly negated and wasted in the event the petitioners were to be denied renewal of their licenses and required to vacate the present licensed premises.
5) Reply to the writ petition has been filed by the respondent-RTDC. It has been stated that in an identical case, i.e. SBCWP No.1557/1994 (Om Prakash Gupta Vs. State of Rajasthan & Anr.), where the licensee had sought renewal through the intervention of the Court, this Court had held that the issue of extension of the licence period was not a matter which could be treated as mandatory entailing a direction for extension and it was held that the issue of extension of licence period was a matter of discretion of the Chairman & Managing Director (apparently RTDC). It was held that it was not for the Court to substitute its discretion for that of Chairman & Managing Director of RTDC and direct him to extend the term of the licence granted to the petitioner in the said writ petition. It has been submitted that a legally correct view in a similar matter having already been taken by this Court with regard to the lack of sustainability of a writ seeking extension of licence period, this Court has no occasion to take a different view on the same issue and the writ petitions should therefore be dismissed in limine on this count alone. It has been then submitted that the right of renewal is not a vested or accrued right, but a licensee can only be entitled to the privilege of extension by the licensor, if the licensor in the fair exercise of its discretion is satisfied that in the obtaining facts and circumstances of a case, extension of licence is in its interest. It has been further submitted that aside of the extension of the licence period being a matter wholly within the discretion of the licensor, the petitioner No.1, Smt. Savitri Devi, is in breach of the conditions of licence agreement dated 29.03.2010 inasmuch as while she was allotted counter No.1 at the RTDC Tourist Bungalow, Jhunjhunu for establishing a Gents Parlor under the said licence agreement, she has proceeded to combine her business with respondent No.2, Pratap Singh, who was allotted counter No.2 for sale of general items under the licence agreement dated 29.03.2010. It has been submitted that under the terms and conditions of licence agreement, it was covenanted between the parties that counters for which licences had been issued were specifically to be used only for the items indicated and services detailed in the respective licences and there was a complete prohibition against the transfer of the licence or a different user being put thereto. It has been also submitted that the petitioners on the contrary, in contravention of the terms and conditions of the licence agreement, were found on an inspection of 29.03.2013 to be running counter Nos.1 and 2 jointly and counter No.2 licensed to petitioner No.2, Pratap Singh, in spite of being allowed only for sale general items was being used for running of the Gents' Parlor. It has been submitted that this fact by itself constitutes a breach of the conditions of the licences granted to the petitioners entitling the licensor to forthwith revoke the license on this ground. It has been stated that consequently the petitioners cannot in any event of the matter have any case for the renewal of their licences. It has further been submitted that the counters licensed to the petitioners as also other counters existing in the compound of the RTDC Tourist Bungalow at Jhunjhunu have been found to obstruct the entire view of the Tourist Bungalow itself owing to which the fundamental business of RTDC i.e. of boarding and lodging to the tourist has been adversely affected resulting in poor occupancy and obviously resultant losses. It has been submitted that the counters licenced on site also cause nuisance as they have unexpectedly partaken the character of a thadi market where the local persons crowd the licenced counters turning away potential visitors to the RTDC Tourist Bungalow at Jhunjhunu. Photograph demonstrating a completely restricted view of the RTDC Tourist Bungalow, Jhunjhunu due to the licenced counters has been annexed to the writ petition as annexure-R/1.
6) It has been submitted that RTDC' is desirous of developing its Tourist Bungalow at Jhunjhunu to attract visitors both local and foreign and for this purpose the ambience has to be recreated by keeping the sites presently licenced out for counters as vacant. It has been submitted that the decision to keep the counters vacant subsequent to the expiry of the licence period in respect of each of the licence, taken and communicated by the General Manager of RTDC to the Manager, RTDC, Jhunjhunu under the impugned letter dated 01.10.2012, is in the interest of Corporation and it is expected that it will result in generating of far better revenues for the RTDC Tourist Bungalow at Jhunjhunu. It has been further submitted that the policy decision dated 01.06.2008 to generally renew the licences is not cast in steel and leaves it to the discretion of the Chairman & Managing Director of RTDC not to allow renewal of licences first given out on the basis of an auction as in the present case. It has been pointed out that the Tourist Bungalow is a good source for generating revenue and a decision has thus been taken to improve the Bungalow and enhance its potential. It has been settled by a catena of decisions of the Hon'ble Supreme Court and this Court that in respect of financial decision making by the State or its instrumentalities, Writ Courts should not interfere except in clear cases of mala fide or unreasonableness. No such situation obtains in the present case. It has been submitted that even otherwise on the doctrine of legitimate expectation, the petitioners have no case in the overall obtaining facts and circumstances as detailed hereinabove. It is submitted that the claim of renewal / extension of period of licence cannot come in the way of the Corporation as the denial of renewal is likely to be more beneficial to the Corporation and in the public interest of development of tourism and generation of revenues for the RTDC.
7) It has been then submitted that renewal of a licence agreement is not a vested or accrued right. Mere hope or expectation to get a renewal even in terms of the policy enunciated on 01.06.2008 cannot entail the renewal of licence contrary to public interest, detailed hereinabove, as obtaining in the present case. It has been also pointed out that no permanent construction has been raised by the petitioners as it could not in fact be done in terms of terms and conditions of the licence agreement and the counters set up by the petitioners are made by the use of tin shed and wooden boards. Adverting to the terms and conditions of the licence agreement dated 29.03.2010, it has been submitted that the petitioners have no indefeasible right whatsoever for renewal and further the discretion of the Chairman & Managing Director of RTDC in terms of a policy decision not to renew the licence for the counter at RTDC Tourist Bungalow at Jhunjhunu is a valid, just and unassailable decision. It has been submitted that the question of financial loss and loss of livelihood of the petitioners is extraneous to the obtaining facts and legal position a complete non-sequitur as the terms and conditions of the licence a contract between the two parties categorically provided that the licensee of the counters at the RTDC Tourist Bungalow at Jhunjhunu would have no right whatsoever on the expiry of three years for which the licences were granted. It has been submitted that the purpose of grant of licence for the counter was to attract and facilitate the visitors at RTDC Tourist Bungalow at Jhunjhunu and to promote tourism in the State of Rajasthan but in their actual working the licensed counters have contrarily become an obstacle in attracting of visitors to the Tourist Bungalow. Due to the existing counters the visitors have been shunning the RTDC Tourist Bungalow, Jhunjhunu as the counters have become a source of nuisance, effectively work as a thadi market and this drives the tourists away. It has been submitted that for this reason, the communication dated 01.10.2012 by the General Manager to the Manager, RTDC, Jhunjhunu based on the policy decision of the RTDC ought not to be interfered with by the court in the exercise of its equitable and discretionary jurisdiction under Article 226 of the Constitution of India.
8) Negating allegations of mala fide and nepotism, it has been submitted that aside of the vagueness of the allegations, in terms of policy decision, the counters presently with the petitioners on expiry of their licence period shall not be allotted to any person whatsoever and the licensed site will be kept vacant for the overall betterment of the environment and ambience of RTD Tourist Bungalow at Jhunjhunu to attract tourists and generate revenues.
9) Rejoinder to the reply has been filed wherein the case set up in the writ petition has been reiterated. On the issue of the allegation in the reply that the petitioners are in breach of the conditions of licence agreement dated 29.03.2010, it has been submitted that the petitioners have the trade freedom and mere change of the user of the licensed premises even if contrary to the terms of the licence agreement dated 29.03.2010 cannot said to be a breach of the terms and conditions of the licence dated 29.03.2010. It has been reiterated that the letter dated 01.10.2012 under the hand of the General Manager, RTDC to the Manager, RTDC, Jhunjhbunu is wholly arbitrary being contrary to the RTDC's policy decision dated 01.06.2008 more so when the petitioners are willing to pay the enhanced licence fee in terms of the said decision. It has been submitted that RTDC has invited applications for fresh counter licence at its other Tourist Bungalows and yet the petitioners at Jhunjhunu are being denied the renewal of their licences arbitrarily and in a discriminatory manner. It has been submitted that the reason for non-renewal of licence is a misdirected and arbitrary with no potential of the Tourist Bungalow Jhunjhunu attracting more tourists inasmuch only two tourists appear to have visited the RTDC Tourist Bungalow at Jhunjhunu over one full year as they choose to stay at Mandawa Castle, Dundlod Castle and heritage Hotel in Jhunjhunu. Allegation of nuisance and a veritable thadi market as a result of the licences granted by RTDC to the petitioners and others have been emphatically denied.
10) Heard the counsel for the petitioners and the respondent-RTDC.
11) It is not in dispute that the present case relates to grant of licence for three years and then non-renewal thereof. For the purpose, reference to the Indian Easements Act, 1882 (hereinafter 'the Act of 1882') would be in place. Section 52 of the Act of 1882 defines licence as a right conferred by one (grantor) on the other (grantee) to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right be unlawful and the permission granted does not amount to an easement or an interest in the property. It is not the case of the petitioners that the right conferred under the licence dated 29.03.2010 amounts to a lease or an interest in a property or an easement. Section 60 of the Act of 1882 provides that a licence can be revoked by the grantor except in two situation provided for in clause (a) and (b) thereunder relating, one when the licence is coupled with a transfer of property and such transfer continues to be in force and the other, where the licensee acting upon the licence has executed a work of a permanent character and incurred expenses in the execution thereafter. The situations covered under clause (a) and (b) of Section 60 of the Act of 1882 cannot attract to the facts of the present case as a perusal of the licence dated 29.03.2010 does not evidence authorisation to the licencee to make permanent construction. Contrarily a wholistic reading of the conditions of the licence contraindicates making of construction of permanent character by the licence as where the licensee has been burdened with the obligation of unquestionably relocating to another site if required by the licensor. The averments of pakka construction in the writ petition are not supported by any condition authorising such construction under the terms of the licence and in any event have been controverted by the RTDC stating that the counters are made of wooden boards and frames and do not partake construction of permanent nature. The licence granted to the petitioners on 29.03.2010 is thus on the face of it a revocable licence. Section 61 of the Act of 1882 provides that the revocation of a licence may be express or implied. Section 62 of the Act of 1882 inter alia provides for situations when a licence would even be deemed to be revoked. Of relevance to the present case is clause (c) of Section 62 of the Act of 1882 which provides that a licence would be deemed to be revoked where it has been inter alia granted for a limited period on the expiry of such period. Clause (f) of Section 62 provides that a licence would also be deemed to be revoked where after being granted for a specific purpose, the purpose has inter alia been abandoned.
12) The licence granted to the petitioners was only for the period of three year ending on 31.03.2013. It is not in dispute that the said period has expired and in terms of Section 62(c) of the Act of 1882, the licence would also be deemed to be revoked. However in the present case even otherwise the licence being revocable, it was open for the RTDC as the licensor to revoke the licence. The Act of 1882 confers no legally enforceable right of renewal, of a revocable licence. This is the legal and factual position obtaining from the provision of the Act of 1882 leaving no room for the petitioners to agitate contrary to law, a case of non-renewal.
13) However, RTDC is an instrumentality of the State and consequently the question of arbitrariness, mala fide and discrimination in the non-renewal of the licences granted on 29.03.2010 would require address by this Court. From the facts on record, its transpires that the policy of 01.06.2008 did indeed provide ordinarily for extension for eight years of a licence first granted on the basis of auction with enhanced licence fee as provided for. Yet that is not the end of the matter as the policy dated 01.06.2008 itself provides that the Chairman & Managing Director of RTDC would retain his discretion not to renew the licence. Now it is well settled that discretion when vested in an officer of the State or its instrumentality has to be reasonably exercised. The issue of the inquiry thereof in the present case would be as to whether the discretion not to renew the licence of the counters licensees at the RTDC Tourist Bungalow at Jhunjhunu is reasonable and bona fide.
14) From the facts on record as agitated by the RTDC in its reply, in my considered opinion, the discretion not to renew the licences has been fairly exercised by the Chairman & Managing Director of RTDC in terms of policy decision of RTDC. It is evident from the reply of respondent-RTDC and evident from the record that RTDC has taken a view that the continuation of licences at RTDC Tourist Bungalow at Jhunjhunu would be to the gross disadvantage of RTDC and in fact entail a potential closure of the Tourist Bungalow itself. It is on record that it has been found that the licences granted entailed creation of a veritable thadi market which obscured the very view of RTDC Tourist Bungalow at Jhunjhunu resulting in a complete end to tourist traffic to the said facility. The petitioners in rejoinder to the reply also admitted to the fact that for last year only about two or three visitors have used the rooms and facility of RTDC's Tourist Bungalow at Jhunjhunu. This fact by itself is supportive of respondent-RTDC's case that the Tourist Bungalow at Jhunjhunu has been rendered completely useless in view of the environment which has been created in and around the bungalow owing to the grant of licence for the vending of different wares. The grant of licences for various counters had thus become a drag on the fundamental business of RTDC i..e of providing boarding and lodging to hordes of tourist visiting Shekhawati region where the Jhunjhunu Tourist Bungalow in issue is situate. In the facts of the case, in my considered view the non-renewal of licences of the petitioners cannot be held to be vitiated by an arbitrary non-exercise of discretion.
15) I also do not find any substance in the allegations of mala fides and nepotism made against the Chairman and Managing Director, RTDC. For one, the Chairman has not been impleaded in his personal capacity. Secondly, the allegations are vague in nature, without any material particulars and only an attempt to create unwarranted prejudice in the mind of the Court. In any event the allegations based on political affiliation are neither here nor there. No proof of political affiliation of all or any of the 19 licence holders affected by the communication dated 01.10.2012 has been proffered. Name of alleged favourites of the Chairman who are to be allegedly allotted the licenses in future not disclosed. Further the allegations for whatever their worth stand disabused by categorical averments in the reply and assertions of the learned AAG appearing for RTDC that the sites in respect of which the counters licences are not being renewed under RTDC's policy decision shall be left vacant and not allotted in future. I therefore do not find any ground based on mala fide and nepotism being made out in the writ petition.
16) An additional argument based on discrimination has been taken by the petitioners in the rejoinder and also agitated before this Court in the course of arguments. It has been stated that the respondent-RTDC is renewing similar counter licences in other Tourist Bungalows and yet is arbitrarily taking a different view on the issue of renewal of licences at the RTDC Tourist Bungalow at Jhunjhunu. Mr. R.P. Singh, AAG appearing for respondent-RTDC in reply has submitted that the case of the RTDC Tourist Bungalow at Jhunjhunu is unique in the sense that the counter licences granted have resulted in a veritable thadi market deterious to the interest of the business of running the Tourist Bungalow and consequently the case of the licencees in the RTDC Tourist Bungalow at Jhunjhunu cannot be treated at par with that of counter licencees in other Tourist Bungalow situated in different cities. Sr. Counsel has submitted that the issue of non-renewal of counter licences at the RTDC Tourist Bungalow at Jhunjhunu subsequent to the expiry of the initial licence period is not one of change of policy, but one of exercise of discretion as retained under the policy decision dated 01.06.2008. Sr. Counsel has then submitted that the discretion exercised for non-renewal of counter licences at RTDC Tourist Bungalow at Jhunjhunu has been fairly and justly exercised with reference to the facts obtaining. It has been further submitted that the situation of the RTDC Tourist Bungalow at Jhunjhunu being different from that of other Tourist Bungalow, no case of discrimination can remotely be made out as flat unrelenting parity is not visualized even as a constitutional imperative and different situations as obtaining on the ground can allow for different solutions. It is submitted that in this view of the matter, the argument of the counsel for the petitioners based on discrimination is without force.
17) In my considered opinion, there is substance in the submissions of the Sr. Counsel for the respondent-RTDC and in view of peculiar situation obtaining at the RTDC Tourist Bungalow at Jhunjhunu as detailed earlier in this judgment, this Court cannot, on the basis of parity without anything more, more particularly without pleadings as to specific situations obtaining at other Tourist Bungalow, interfere on the ground of discrimination with the decision not to renew the licences of the petitioners.
18) The Hon'ble Supreme Court in the case of Monnet Ispat and Energy Ltd. Vs. Union of India & Ors [(2012) 11 SCC 1] has held that where the decision of an authority is founded in public interest as per executive policy or law, courts would be reluctant to interfere with such decision even by invoking the doctrine of legitimate expectation. It has been further held that the legitimate expectation doctrine cannot be invoked to fetter changes in administrative policy if it is in the public interest to do so. The Hon'ble Supreme Court has further held that even where a case of legitimate expectation may be made out, an overriding public interest would eclipse it as personal benefit must always give way to public interest. In view of the clear enunciation of law, with reference to the facts of the present case I find that the doctrine of legitimate expectation also is of no aid to the case of the petitioners.
19) The upshot of the aforesaid discussion is that the petitioners licensees of the RTDC for three years relevant, now subsequent to expiry of the licence period would have no right to continue with their limited possession of the licenced premises. The Hon'ble Supreme Court in the case of Maria Margarida Sequeira Fernandes & Ors. Vs. Erasmo Jack De Sequeira (dead) through LRs [(2012) 5 SCC 370] has held that the court cannot grant any protection to a person qua his possession when he does not have a valid ownership, or a subsisting rent agreement or licence agreement in his favour. In this state of law this Court, finding that the petitioners would have no valid licence subsequent to expiry of the licence period, cannot allow the prayer of the petitioners that directions issue to the respondent-RTDC to regularise their occupancy over counters on permanent basis by converting the same into a lease of 99 years. Such a prayer is even otherwise misdirected and unsustainable. The function of courts is to recognize legal rights and ensure their enforcement not the creation of rights. This Court has no power or / jurisdiction to direct conversion of a three year licence (revocable in nature) into a 99 years lease.
20) Consequently, the writ petitions are without force and liable to be dismissed. Hence dismissed. Stay applications also stand dismissed.
(ALOK SHARMA), J MS/-
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.- Manoj Solanki, Jr. P.A