Delhi High Court: Expressing that a state of indecision could not have given rise to a legitimate expectation, Yashwant Varma, J., held that, while the petitioners undisputedly were illustrious and pre-eminent exponents in their respective fields of the classical arts, the Court was not shown any material which may justify the continued retention of public premises in Delhi or that they would be unable to propagate the classical arts in any other State or city of the nation.
The three petitions assail proceedings initiated by the respondents under Section 3B of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.
Petitions had challenged the show cause notices pursuant to which proceedings under Section 3B of the Act were commenced. The petitioners brought on record the final orders in terms of which, eviction came to be framed against them. On 4th February, 2022 the Court passed interim orders restraining the eviction of the petitioners.
It was stated that the petitioners were artists of repute and masters in their own right in varied fields of the Indian Classical Arts. In recognition of their standing of eminence and the invaluable contribution made by them for the propagation and preservation of classical art forms, they were allotted the premises in question under a discretionary quota by the respondents.
Even after the initial term of allotment expired decades ago, petitioners continued to remain in occupation of the premises.
Further, it was admitted that although no formal orders pertaining to the retention of the said premises were made by the respondents, petitioners were permitted to retain the same. Petitioners had occupied the premises pursuant to the allotments, except for petitioner 6 who was not the original allottee and had continued to occupy the premises which were licensed in favour of his illustrious father late Ustad Sabri Khan.
The petitioners had challenged the initiation of action by the respondents by contending that the premises had been licensed to them in terms of the policies as existing and considering the invaluable contribution made by them in the perpetuation of classical Indian art forms.
Central Government Standing Counsel, Mr Digpaul submitted that the Court must necessarily bear in mind the undisputed fact that all the petitioners have remained in the occupation of the premises for more than three decades having been inducted in possession, Further, it added that the continued occupation of the premises for periods ranging from 10 to 30 years and that too under a discretionary quota cannot possibly be countenanced or be viewed as conferring a right on the petitioner to occupy the premises in posterity.
Further, it contended that, the discretionary quota in respect of eminent artists stands restricted to 40 units. According to learned counsel, the continued retention of these units by the petitioners here also impedes the right of other artists and clearly restricts the right of the respondents to consider making fresh allotments in favour of deserving artistes.
Petitioners did not even pay the license fee which was due and they even failed to establish that they would fall within the ambit of the 2008 O.M.
Analysis and Discussion
“…the Court also deems it apposite to observe that its judgment rendered on this batch is neither liable to be viewed nor construed as the Court even momentarily doubting the eminence of the petitioners or refusing to acknowledge the invaluable contribution made by each of them for the preservation of classical art forms. They have undisputedly been indelibly connected with the preservation of our ancient culture and heritage itself. Their achievements have led to them being conferred with some of the highest civilian honours by a grateful nation.”
It was noted that the petitioner’s counsel with great passion and vehemence commended for accepting the submission that the legitimate expectation of the petitioners had been clearly violated by the respondents who failed to act fairly.
Keeping in mind the stature and eminence of the petitioners, it was incumbent upon the respondents to ensure that they were treated fairly and not unceremoniously asked to vacate the premises at the height of the raging pandemic.
This Court noted that the Supreme Court decisions have over a period of time held that a legitimate expectation in public law is founded on the expectation of public authorities being liable to act fairly and reasonably.
In the present matter, the allotment in a favor of the petitioners was made under a discretionary quota vesting in the respondents. That discretionary quota was itself subject to the directions issued by the Supreme Court in a public interest litigation. If one were to advert to the relevant provisions as they stood enshrined in the 1985 O.M., it becomes important to note that the same did not envisage an allotment continuing eternally. In fact, and to the contrary, Clause 2(g) thereof in unambiguous terms provided that the allotment would be for three years whereafter each allotment would fall for review. When the respondents proceeded to introduce the 2008 O.M., here again, it was clearly provided that the allotment would be for a maximum period of three years subject to a further extension being accorded in deserving cases for another equivalent term. It further stipulated that no further extensions would be considered.
The 2008 policy further postulated that only in those cases where the artists demonstrate the pursuit of his/her work during the entire period of allotment and a failure to obtain alternative accommodation would the period of maximum retention be relaxed based on the recommendation of the Selection Committee.
One of the memorandums issued by the respondents envisaged or were liable to be interpreted as conferring a right to continue in the public premises infinitely.
This Court failed to discern a legitimate expectation of the petitioners which may have been violated by the respondents.
Further, the Bench added that it failed to countenance any right arising in favour of the petitioners by virtue of the inaction on the part of the respondents. An expectation that the respondents would continue to remain passive or unassertive cannot be recognized as legitimate.
“…permissive occupation of the premises may have been of some relevance provided it was conceded to be based upon an affirmative decision taken in favour of the petitioners.”
Bench referred to the Supreme Court decision in Kerala State Beverages (M&M) Corpn. Ltd. v. P. Suresh, (2019) 9 SCC 710, wherein the notion of “substantive legitimate expectation” was explained.
High Court held that no right stood conferred upon the petitioners to occupy public premises indefinitely, the continued occupation of the premises was during the period when the respondents were engaged in undertaking comprehensive review and revision of the policy itself.
Validity of the Policy
Whether the change of policy can be said to be tainted by manifest arbitrariness?
In Court’s opinion, the decision taken by the Court was fair and objective.
As was noted by the Court in the preliminary parts of this decision, undisputedly, all the petitioners fell foul of the age criteria.
Further, it was added that, while the petitioners may be artists of eminence, in order to be recognized as being eligible to be granted the benefit under the discretionary quota, it was incumbent upon them to establish that their stay in Delhi was essential for the propagation of the classical arts and their individual disciplines. Petitioners abjectly failed to establish the said.
While the petitioners undisputedly are illustrious and pre-eminent exponents in their respective fields of the classical arts, the Court has not been shown any material which may justify the continued retention of public premises in Delhi or that they would be unable to propagate the classical arts in any other State or city of the nation.
The petitioners were served with individual notices terminating their existing allotments and it was only thereafter, that proceedings, as envisaged under Section 3B of the Act, were commenced.
It was also noted by the Court that, the petitioners remained in arrears of license fee commencing from 1987 and the amounts were in lakhs.
With regard to allotment which was never made to petitioner 6, the Court noted that he continued to occupy the public premises based on an allotment which was originally made in favour of his late and illustrious father. Hence, he had no right to occupy premises which were originally allotted to his father except for the period provided to heirs of deceased artistes.
Lastly, the Court concluded stating that in order to enable all the petitioners to make alternative arrangements and be able to exit the premises with dignity, an extension of a two month grace period to hand over the vacant possession was given. [Bharati Shivaji v. Union of India, 2022 SCC OnLine Del 622, decided on 25-2-2022]
Advocates before the Court:
For the Petitioners: Mr. Prashanto Chandra Sen, Sr. Adv. with Mr. Aman Raj Gandhi, Mr. Parthasarathy Bose and Ms. Ridhima Sharma, Advs.
For the Respondents: Mr. Ajay Digpaul, CGSC with Mr. Kamal R. Digpaul, Advs. for UOI.