SANJIV PRAKASH v. NEW DELHI MUNICIPAL COMMITTEE — 1981 DIGILAW 209 (DEL)

( 1 ) THIS judgment will dispose of Civil Writ Nos. 156, 590, 670, 684, 763 to 777, 811 to 817, 820, 932 to 937 of 1980 filed by various allottees of shops in a Shopping Complex known as Palika Bazar. ( 2 ) THE construction of Palika Bazar was taken in hand by the respondent- Committee some time in the year 1976. According to the learned counsel for the respondent initially it was envisaged that the shops which would be constructed in Palika Bazar, which market was to be fully airconditioned, would be allotted by inviting tenders from the public. Subsequently it appears that the policy of the respondent-Committee changed. It was decided that the shops in the said Shopping Complex should be allotted, by way of providing alternative accommodation, to the stall holders who had been carrying on their business since the year 1950. These stall holders were those who had put up stalls at the Panchkuin Road, Janpath and also to Tibetans who had put up their stalls at Janpath and in addition thereto it was also to accommodate some stall holders of Connaught Circus. ( 3 ) AFTER the Complex was ready it appears that the Tibetan Market Association as well as the Janpath Traders Association objected to shifting to Palika Bazar. Ultimately, it is only the stall holders of Panchkuin Road who gave the concurrence for shifting to the newly constructed Shopping Complex. It was accordingly decided by the Committee that 98 shops should be reserved in the Shopping Complex for providing alternative accommodation to the stall holders of Panchkuin Road. It was further decided by the respondent-Committee that in the first phase 177 shops should be allotted by inviting tenders. ( 4 ) IT is an admitted ease of the parties that tender notice in respect of allotment on licence basis of 177 shops was issued and widely published in various newspapers. In the advertisement it was, (Contd. on Col. 2) inter alia, stated that these shops were identified in seven groups consisting of (1) General Shops (2) Shops with 12 feet front space (3) Shops with water connections (4) Shops with water connection and 12 feet front space (5) Shops with additional heights (6) Shops with lofts, and (7) Shops with lofts and 12 feet front space, In the advertisement it was also stated that the entire Complex was centrally airconditioned. The tenderers were asked to make offers on per square foot per month basis for a shop in a particular group of shops. The offers were not to be made for individual shops. It was further stated that the reserve shops were not being put to tender and preference for allotment of a particular shop in a group will be given to the highest tenderers in descending order, only those tenders being considered which were above the reserve price. The advertisement further instructed that tender forms with terms and conditions should be obtained from the respondent-Committee and the last day for filing the tenders was 10th August, 1978 and they were to be opened on that very day at 3 P. M. ( 5 ) ONE of the terms contained in the aforesaid terms and conditions of allotment, being term No. 10, reads as follows: "only such trades as mentioned in the trade zoning plan shall be permitted to be run in the shop. A copy of the details of the trade zoning is appended to this document as appendix a . "in the aforesaid appendix a all the 306 shops which were there in the Shopping Complex were included. All of these shops were put into five different zones. It may be noticed that 98 shops which had been decided to be reserved for Panchkuin Road stall holders were not excluded from appendix a , The particulars of these shops are as under-The aforesaid zones were also demarcated on the plan of the Shopping Complex which had been prepared by the respondent-Committee. As per the plan, which has been placed on record by the respondent-Committee, every shop in the said Shopping Complex, including the 98 shops meant for Panchkuin Road stall holders, was included in one zone or the other. There were two areas in the said plan which were not included in any zone. These two areas were reserved for "tibetan Stall" and "vender Stall". In the application forms the tenderers were required to state the trade which they proposed to run in the shop. In the forms itself one of the notes which was added was as follows: "only such trades as mentioned in the trade zoning plan shall be permitted. These two areas were reserved for "tibetan Stall" and "vender Stall". In the application forms the tenderers were required to state the trade which they proposed to run in the shop. In the forms itself one of the notes which was added was as follows: "only such trades as mentioned in the trade zoning plan shall be permitted. "the applicant was also required to give an undertaking that he had carefully read the memorandum of information and the terms and conditions of the allotment and that he agreed to abide by the same. The shops were to be given on licence for a period of five years and thereafter the licence was renewable, subject to increase in the licence fee by 10%, and on such terms and conditions as may be laid down by the respondent-Committee. It might here be stated that in respect of all the shops, for which the tenders were invited, different reserve prices were fixed and these reserve prices were much less than the prices which were quoted by the tenderers. ( 6 ) ALL the petitioners, in the 33 writ petitions which are before me, filed their tenders within the stipulated period. Each one of the petitioners indicated the trade which he wanted to run in a shop which would be allotted to him. Petitioners in Civil Writ Nos. 156, 590, 670, 767, 769, 772, 777, 811, 814, 815, 932 and 935 were allotted shops prior to 22nd November, 1978. The other petitioners were allotted shops subsequent to that date. The relevance of the date, namely, of 22nd November, 1978, is that on that day shops were allotted to 70 out of the 98 stall holders who were at Panchkuin Road. ( 7 ) IN the letter of allotment to the tenderers the trade which they could carry on in the shop which was allotted to them was specifically mentioned. As far as the Panchkuin Road stall holders were concerned, they were not required to adhere to the zoning system. It was, however, specifically provided in the licence deeds in favour of the Panchkuin Road stall holders that they could carry on only those trades which were specifically mentioned in the aforesaid appendix a to the terms and conditions of allotment. It was, however, specifically provided in the licence deeds in favour of the Panchkuin Road stall holders that they could carry on only those trades which were specifically mentioned in the aforesaid appendix a to the terms and conditions of allotment. In other words, the Panchkuin Road stall holders could not carry on whatever trade they liked but, at the same time, they were not subjected to the zoning restriction and the only restriction which was imposed on them was that they had to carry on only the permissible trades. ( 8 ) AS already noted above, the Tibetan stall-holders of Janpath did not agree to shift to Palika Bazar. In the place which was reserved in the Palika Bazar for the Tibetan stall holders a Mini Market was constructed some time in the years 1978-79. The Mini Market was also constructed in the area which was reserved for "venders stalls". It is admitted that the total number of stalls in the Mini Market in both the areas is 58. It is further admitted that the allottees of the stalls in the Mini Market are notsubjected to any zoning system but, like the Panchkuin Road allottees, they are permitted to carry on only those trades which are permissible and are enumerated in the aforesaid Appendix a . It will be seen that neither the Panchkuin Road allottees nor the allottees in the Mini Market, were subjected to any trade zoning system, but all the other allottees were required to adhere to the zoning system, which meant that they could carry on only those trades which were specified in their licence deeds and they could not change the type of business which was so specified. ( 9 ) EXCEPT for the petitioners in C. W. Nos. 156, 590 and 684 of 1980 the other petitioners are those who changed the type of business which they had been licensed for. The new business, however, which has been started by them at the shops which were allotted, it is admitted, is such which is permissible in the Palika Bazar as per appendix a , but is not permissible to be carried out within the same zone in which they had been allotted shops. The new business, however, which has been started by them at the shops which were allotted, it is admitted, is such which is permissible in the Palika Bazar as per appendix a , but is not permissible to be carried out within the same zone in which they had been allotted shops. For example, some of the petitioners who had been allotted shops in Zone 4 have changed their trade and are now carrying on businesses which are permissible to be carried out in the other zones. These petitioners have been served with notices by the respondent-Committee for showing cause as to why the licences should not be cancelled. In the writ petitions filed by all these petitioners the challenge is to the aforesaid show cause notices. These petitioners have also prayed that the respondent should not enforce the zonal system and nor should it enforce the clause in the licence deed regarding the carrying on of a particular business in a particular zone as described in the licence agreement. In addition to the aforesaid relief, the petitioners in Civil Writ Nos, 590 and 670 of 1980 have prayed for two further reliefs. These petitioners have prayed that directions should be issued to the respondent to give 12 feet front space to the petitioners and further the respondent should not enforce the payment of the agreed licence fee but should fix a reasonable licence fee/rent in consonance with fundamental rule 45 and furthermore any excess which might have been paid on account of such re-fixation should be refunded to them. ( 10 ) THE cases of Ramesh Kumar in C. W. 156 G. R. Simon in C. W. 590 and of Neelam Gupta in C. W. 684 of 1983, are slightly different. None of these two allottees have violated the zoning system. The prayer made by them in the writ petitions is for the enforcement of the zoning system and in the alternative, for the reduction of the licence fee. In addition thereto Neelam Gupta in C. W. 684, has also prayed that 12 feet space in front of the shop should be given to her. The prayer made by them in the writ petitions is for the enforcement of the zoning system and in the alternative, for the reduction of the licence fee. In addition thereto Neelam Gupta in C. W. 684, has also prayed that 12 feet space in front of the shop should be given to her. It is, inter alia, contended by both these petitioners that they agreed to pay higher licence fee in order that they may be able to get a shop allotted in a zone of their choice and one of the main factors which weighed with them was the applicability of the zoning system, It is contended by these petitioners that the number of customers to their shops decreased because some of the allottees of shops in the other zones started doing similar business to the one of the petitioners, though strictly according to the zoning system they were not permitted to do so. These petitioners have invoked the principle of promissory estoppel. It has been contended by them that the respondent had specifically and unambiguously represented, through the terms conditions of allotment, of the permissible trades being carried on in each 7one and the respondent had failed to discharge its duty by permitting the zonal system not being strictly adhered to by the other shopkeepers including the Panchkuin Road allottees and the allottees in the Mini Market. It is further contended by these petitioners that on account of the failure of the respondent to enforce the trade restrictions the petitioners have suffered huge losses and their business prospects have been adversely and prejudicially affected. These petitioners have accordingly prayed for the strict enforcement of the zoning system with regard to all the shops in the Palika Bazar. They have also prayed for the reduction of the licence fee. ( 11 ) ON the aforesaid writ petitions being filed, an application under Order 1 Rule 10 and Section 151 Civil Procedure Code being C. M. No. 2613 of 1980 was filed in Civil Writ No. 670 of 1980. By this application it was prayed that the allottees in respect of 314 shops and allottees in the Mini Market should be impleaded as a party so that any judgment which is delivered by this Court is final and binding on all the Allottees. By this application it was prayed that the allottees in respect of 314 shops and allottees in the Mini Market should be impleaded as a party so that any judgment which is delivered by this Court is final and binding on all the Allottees. By my order dated 26th November, 1980 the prayer was allowed and all the allottees of different shops and stalls in Palika Bazar were impleaded as parties. The writ petitions were set down for hearing after all the newly added respondents had been duly served. ( 12 ) THE writ petitions came up for hearing on 9th and 10th February, 1981. During the course of arguments it was found that approximately only 1/4th of the shopkeepers to whom the shops had been allotted were carrying on trade in conformity with the zoning system Having regard to the conflicting interests, and in view of the realities of the situation, it was thought at that time, and it was agreed to by the petitioners, that either of the following two solutions would be agreeable to the petitioners: " (A) The respondent-Committee strictly enforces the zoning system in respect of the entire Shopping Complex, including the Mini Market and the 98 shops which had been allotted to the Panchkuin Road stall-holders. In the event of the zoning system being strictly enforced the petitioners will also comply with the zoning system and would pay the agreed licence fee. (b) In the alternative the zoning system may be done away with. All the allottees should be permitted to carry out any of the trades mentioned in Annexure A to the invitation to tender and they should be prohibited from carrying out any other trade. The Committee should re-fix the licence fee payable which should be fair and having regard to the changed circumstances andafter giving a reasonable opportunity to the allottees to be heard. Under no circumstances should the licence fee so re-fixed should be higher than the agreed licence fee which was payable by them as per the tender. This re-fixation of licence fee would not take place in the case of the Panchkuin Road stall-holders, who would be entitled to pay the preferential rate of licence fee which is not a subject matter of this dispute. This re-fixation of licence fee would not take place in the case of the Panchkuin Road stall-holders, who would be entitled to pay the preferential rate of licence fee which is not a subject matter of this dispute. "the learned counsel for the respondent wanted time as he felt that final decision as to whether anyone of the two alter-natives was acceptable or not could only be taken by the Administrator. Thereafter the petitions were adjourned twice. On 14th April, 1981 the learned counsel on behalf of the respondent stated that due to some misunderstanding the papers and the order of the Court had never been forwarded to the Lt. Governor for his opinion. It was clarified by my order dated 14th April, 1981 that the papers were to be sent to the Lt. Governor for his opinion as to whether any of the aforesaid two solutions put forth in the order dated 10th February, 1981 would be acceptable or not. A review petition was filed being C. M. No. 1230 of 1981 against my order asking for the papers to be sent to the Lt. Governor. By my order dated 24th April, 1981 this review petition was dismissed. On the request of the Committee contained in C. M. 1253 of 1981 the Committee was given one week s time more for forwarding the papers to the L. G. It appears this was not done. Thereafter on 4tb May, 1981 a request was made by Mr. Tandon on behalf of the respondent for three days more time to forward the papers. The request was, however, not acceded to by me. I have been informed that against my original order requiring the papers to be sent to the Lt. Governor a Letters Patent Appeal has been filed and a stay order granted. The result of the stay is that the respondent Committee heed not forward the papers to the L. G. for his opinion. As far as the respondent-Committee is concerned I have been informed by the learned counsel for the respondent that neither of the two solutions mentioned above seem to be acceptable to the respondent Committee. When asked by me as to whether there is any other solution which the respondent-Committee was able to suggest, the learned counsel for the respondent could not give any concrete proposal. ( 13 ) THE main attack of all the counsel, except Mr. When asked by me as to whether there is any other solution which the respondent-Committee was able to suggest, the learned counsel for the respondent could not give any concrete proposal. ( 13 ) THE main attack of all the counsel, except Mr. Bishamber Lal, was on the continuance of the trade zoning system. Before deciding this and the other questions which arise therefrom I may first dispose of a submission which has been made with regard to the alleged. entitlement to the possession of 12 feet front space in front of some of the shops, In this connection it has been contended that as per the advertisement the respondent-Committee had given the tenderers to understand that 12 feet space would be given to them in front of their shops. This space has not been given. The submission is that either the Committee should be directed to give the space or there should be a reduction in the licence fee ( 14 ) IN my opinion the contention of the petitioners in this behalf is clearly without any foundation. In the tender notice 7 different categories of shops had been enumerated. With regard to the shops with 12 feet front space the expressions which have been used in the tender are as follows: "shops with 12 feet front space" "shops with water connection and 12 feet front space", "shops with lofts and 12 feet front space",to my mind the reference to the "12 feet front space" is only to give an idea about the location of the shops in Palika Bazar. What is allowed is a shop and it is an admitted fact that the licence fee which is chargeable with reference to the square foot area is calculated only on the basis of the area of the shop and not of the shop plus the 12 feet front space. The plan of Palika Bazar which has been placed on record shows that in front of some of the shops, which have been described as shops with 12 feet front space, there is a clear passage of 12 feet or more space. For example, in front of shop Nos. 1 to 10 and 25 to 35 the space is much more than 12 feet and in front of shops Nos. For example, in front of shop Nos. 1 to 10 and 25 to 35 the space is much more than 12 feet and in front of shops Nos. 13 to 24 the space is about 12 feet and there is no shop opposite to any of these shops within a distance of less than 24 feet. On the other hand shops in zone 2 are located opposite to each other and the common passage in front of these shops is much less than 24 feet and is probably only 12 feet. The use of the words "12 feet front space" meant only that in front of the said shops there will be a passage which with be minimum of 12 feet width which will be exclusively used by the pedestrians. There was no promise or indication in the invitation to tender or in any terms and conditions that any space in front of the shops was to be allotted. In fact if the contention of the petitioners is accepted and 12 feet front space is exclusively allotted to the shopkeepers then in front of some of the shops there won t be any passage left at all for the pedestrians to pass. The petitioners are, therefore, not entitled to any relief by way of reduction of licence fee or otherwise in this regard. ( 15 ) FROM the tender notice as well as from the terms and conditions of allotment which have been-referred to here-inabove there can be no manner of doubt that one of the essential ingredients of the Palika Bazar was that all the 306 shops were placed under different zones. It is also evident that each zone described its own permissible trades, None of the trades mentioned in the zones were common to each other. To give an example, there were only 14 shops in zone 1-A wherein any one of the five permissible trades could be carried out. None of these five trades could be carried on in any other shop in any other zone. It is an admitted fact that the tenders were received from the petitioners and other allottees on the basis that there were to be zones in the Shopping Complex. None of these five trades could be carried on in any other shop in any other zone. It is an admitted fact that the tenders were received from the petitioners and other allottees on the basis that there were to be zones in the Shopping Complex. In view of the aforesaid documents the respondent cannot be heard to say that at the time when the tenders were invited it was not envisaged that the shops reserved for Panchkuin Road would not be subjected to the trade zoning system. ( 16 ) IT is after the tenders were received that allotment was made to Panchkuin Road stall-holders. At that time, as already noted, the said allottees from Panchkuin Road were not subjected to the zoning system. I am told that though 98 shops were reserved for Panchkuin Road stall-holders only about 70 shops were allotted. It is also an admitted fact that on the Tibetan stall-holders refusing to shift to Palika Bazar, Mini Market was put up in the space reserved for the Tibetan stall and Venders stall and the allottees of these 58 stalls were also not subjected to any zoning system. In view of these admitted facts, the contention on behalf of the petitioners is that they and other similar allottees cannot be compelled to adhere to the zoning system notwithstanding the fact that in the licence deed which has been issued in their favour it is specifically provided that the licencees will carry on only that trade which is specified in the licence deed. It is only Mr. Bishamber Lal who has contended in Civil Writ Nos. 156, 590 and 684 of 1980 that the zoning system should be strictly adhered to. I propose to deal with his submissions separately. ( 17 ) ON behalf of the petitioners it is submitted that by permitting the ex-Panchkuin Road stall-holders and the Mini Market allottees not to adhere to the zoning system it must necessarily imply that the zoning system has been abandoned by therespondent-Committee. In the alternative it is submitted that the allottees, like the petitioners, cannot be discriminated against and they cannot be compelled to adhere to the zoning system whereas the ex-Panchkuin Road allottees and allottees of Mini Market are not so restricted in carrying on their trades. In the alternative it is submitted that the allottees, like the petitioners, cannot be discriminated against and they cannot be compelled to adhere to the zoning system whereas the ex-Panchkuin Road allottees and allottees of Mini Market are not so restricted in carrying on their trades. It is also contended that, in any event, having regard to the fact that at the present moment the zoning system has in fact collapsed, as 70 shopkeepers from Panchkuin Road plus 58 allottees of Mini Market are not required to comply with the zoning system and also as about. 97 of the allottees like the petitioners have changed their trades. though unauthorisedly, the decision of the respondent-Committee not to permit the allottees to change their trades arid its insistence on seeking to impose the trade zoning scheme is clearly arbitrary, unfair and unjust and is, therefore, violative of Article 14 of the Constitution. It is also contended on behalf of the petitioners that the zoning system is per a restriction on the carrying on of a trade and this restriction has been imposed without the authority of law and is not a reasonable restriction. In the alternative it is submitted that even if it was a reasonable restriction at the time when it was imposed but due to the change in the circumstances which have taken place the continuation of the restriction is clearly unreasonable and, therefore, violative of Article 19 (1) (g) of the Constitution. ( 18 ) IT has been contended by Mr. Bhandare that the zoning system did not play a predominant part in making offers or accepting allotments and further there was no detriment which has been caused to the petitioners by the non-imposition of the zoning system on the Panchkuin Road shopkeepers and the Mini Market stall-holders. It is also contended by him that the petitioners and the Panchkuin Road stall-holders and the allottees of Mini Market are not similarly situate and, therefore, there will be no violation of Article 14 of the Constitution. It is also the submission of Mr. Bhandare that the remedy, if any, which was open to the petitioners was by way of a suit tor injunction or damages and not by way of a writ petition. ( 19 ) IN my opinion the respondent cannot insist on the petitioners adhering to the zoning system. It is also the submission of Mr. Bhandare that the remedy, if any, which was open to the petitioners was by way of a suit tor injunction or damages and not by way of a writ petition. ( 19 ) IN my opinion the respondent cannot insist on the petitioners adhering to the zoning system. This conclusion I am arriving at for the following reasons: 1. It is now settled law that the Government or the State cannot act arbitrarily while entering into contracts. It was observed by the Supreme Court in Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628 at p. 1637 as follows: "it must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in confirmity with standard or norm which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts quotas, licences etc. must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory. "having given up the scheme of zoning while making allotments to Panchkuin Road stall-holders and while making allotments of Mini Market stalls, in my opinion, it would be arbitrary as well as irrational to insist that the other allottees in the same market should continue to be subject to the zoning system. The market is under one roof. The shops are contiguous to each other. As it is, allotment has been made to Panchkuin Road stall-holders at a rate which is considerably lower than the licence tea which is being charged from the petitioners, This is because allotment is alleged to have been made to the Panchkuin Road stall-holders on no profit no loss basis. The shops are contiguous to each other. As it is, allotment has been made to Panchkuin Road stall-holders at a rate which is considerably lower than the licence tea which is being charged from the petitioners, This is because allotment is alleged to have been made to the Panchkuin Road stall-holders on no profit no loss basis. When Panchkuin Road stall-holders and the Mini Market stall-holders are not obliged to adhere to the trading restriction zones it will be arbitrary on the part of the respondent to insist that the petitioners and other similar allottees should continue to stick to the trades for which the drops had been allotted to them. 2. Initially the Panchkuin Road stall-holders might have formed a different class for the purpose of allotment These former stall-holders from Panchkuin Road were offered shops in Palika Bazar at the reserved rates. It was open to the stall-holders whether to accept the allotment or not. Once shops have been allotted to them they have, to my mind, thereafter to be treated similarly to the other allottees as far as the terms and conditions for carrying on the trade are concerned. There can be no possible objection to shops being allotted to Panchkuin Road stall-holders at a concessional rate. What is objectionable is that in the manner of carrying on of the trade these shopkeepers from Panchkuin Road are not being treated at par with the other allottees. The decision of the Committee of continuing to impose the restriction of trade zone on the petitioners is clearly violative of Article 14. At the time when tenders were invited the question of discrimination did not arise because, at that time, all the shops were included in the zoning system. It is only when preferential treatment was given to the Panchkuin Road stall-holders and the allottees of the Mini Market that the petitioners were discriminated against. To put it differently, after allotment had been made without zoning restrictions ill favour of Panchkuin Road and the Mini Market stall-holders the decision not to permit the petitioners to deviate from the zoning system is clearly an arbitrary decision. An arbitrary decision is per se violative of Article 14. To put it differently, after allotment had been made without zoning restrictions ill favour of Panchkuin Road and the Mini Market stall-holders the decision not to permit the petitioners to deviate from the zoning system is clearly an arbitrary decision. An arbitrary decision is per se violative of Article 14. In this connection reference may usefully be made to the following observations from the judgment of the Supreme Court in the case of E. P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555 (at page 583): "from a positivistic point of view. equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles. 14 and 16 strikeat arbitrariness in State action and ensure fairness and equality of treatment. "the aforesaid dictum has been reiterated with approval by the Constitution Bench of the Supreme Court in the case of Ajay Hasia v. Khalid Mujib Sehravardi, AIR 1981 SC 487 at P. 498. ( 3 ) THE third reason for my coming to the conclusion that the aforesaid condition is bad in law is that in view of the changed circumstances the continuation of the restriction is clearly unreasonable. It is contended by Mr. Rao, while relying upon L. K. Sugar Mills v Union of India, AIR 1959 SC 1124 at p. 1133, Jyoti Pershad v. Union Territory of Delhi, AIR 1961 SC 1602 at p. 1614, Golak Nath v. State of Punjab, AIR 1967 SC 1643 at p. 1655 and Leo Nebbia v. People of the State of New York (1933) 78 Law Ed 940 at p. 950, that a restriction which may originally be reasonable may subsequently be regarded as unreasonable. Carrying on of the trade zonewise might have been a reasonable restriction at the time when the tenders were invited. Carrying on of the trade zonewise might have been a reasonable restriction at the time when the tenders were invited. Apart from the fact that the Panchkuin Road allottees (70) and the Mini Market allottees (58) are not subjected to trade restriction, approximately 97 other allottees, who are subjected to trade restriction, and, including some of the petitioners, have changed their trades. It is evident that the Committee did not feel that the trade zoning was necessary any longer for otherwise there was no reason as to why the Panchkuin Road stall-holders and the Mini Market allottees should have been permitted not to adhere to the zoning system. In view of the fact that majority of the shopkeepers are either not required to or are not complying with the zoning system, and as the non-compliance of the zoning system is not causing any prejudice to the respondent Committee. its insistence of continuing the zoning system prima facie appears to be unreasonable. It is contended by Mr. Bhandare relying on State of Orissa v. Harinarayan Jaiswal, AIR 1972 SC 1816 that if the Government was the exclusive owner of the privileges, in the case of giving liquor licences, reliance on Art. 19 (1) (g) or Art. 14 became irrelevant. It was also observed that the citizens could not have any fundamental right to trade or carry on business in the properties or rights belonging to the Government. Apart from the question whether in view of the later decisions of the Supreme Court of the Larger Benches the aforesaid observations would still hold good, it has been pointed out, and in my opinion rightly so, by Mr. P. P. Rao that Harinarayan s case was one of grant of the liquor contracts and that cannot be a parallel to this case. It has been held that the licence is a property of the State and in fact, as observed by the Supreme Court in Nashirwar v. State of M. P. , AIR 1975 SC 360 , "the trade in liquor has historically stood on a different footing from other trades. Restrictions which are not permissible in other trades are lawful and reasonable so far as the trade in liquor is concerned. That is why even prohibition of the trade in liquor is not only permissible but is also reasonable. " ( 20 ) IT was also contended by Mr. Restrictions which are not permissible in other trades are lawful and reasonable so far as the trade in liquor is concerned. That is why even prohibition of the trade in liquor is not only permissible but is also reasonable. " ( 20 ) IT was also contended by Mr. Bhandare that zoning system did not play a predominant part. I am unable to agree with this submission. It is evident that the tenders were invited for allotment in different zones. The reserve rate also appears to have been fixed by the Committee zonewise. In any event all the tenderers were required to specify the trade which they were to carry on. In the licence deed it was specified that it is only the permissible trade which could be carried on by the licencee. A tenderer could not ask for a different trade to be permitted to be carried on in a zone in which such trade was not permissible. The petitioners have stated in the writ petitions that on account of giving up the zone restrictions they have suffered heavily. The zoning created some sort of a mini monopoly. It is difficult to believe that the system of zoning did not play a part in the making of offers by the applicants. The mere fact that in the "salient features" annexed to the tender there is no mention of the zoning system does not mean that the zoning system was not an essential part of the market. Actually the very fact that the respondent is insisting on the allottees to conform to the zoning system tends to show that the Committee did regard the zoning system as an essential part of the market. As already noted, subsequent to the tenders being received the Committee itself relaxed or abandoned the zoning system with regard to 98 shops reserved for Panchkuin Road and 58 shops meant for allotment in Mini Market. ( 21 ) IT is also contended by Mr. Bhandare that if a contract is voluntarily entered into then thereafter one term of the same cannot be struck down. It is also submitted by him, relying upon Lekhraj v. Deputy Custodian, Bombay, AIR 1966 SC 334 , that a writ of mandamus can issue only in case of a breach of statutory duty. Even if this be so mandamus can issue if there is violation of a fundamental right. It is also submitted by him, relying upon Lekhraj v. Deputy Custodian, Bombay, AIR 1966 SC 334 , that a writ of mandamus can issue only in case of a breach of statutory duty. Even if this be so mandamus can issue if there is violation of a fundamental right. With regard to the former submission the answer is provided by the Supreme Court itself in Vishundas Hundumal v. State of Madhya Pradesh, (1981) 2 SCC 410 . In that case certain permits had been issued by the Regional Transport Authority. One of the conditions in the case of some of the permit-holders was held to be discriminatory. It was observed that the discrimination had taken place because of an error or oversight. It was, inter alia, observed by the Supreme Court, in this regard, as follows : "conceding that this was discrimination unconsciously indulged into by inadvertence or oversight on the part of a governmental agency, by this order we only propose to rectify the same and not reject the whole scheme. Such an approach would bedestructive of a wholesome effort towards nationalisation of bus transport which is generally undertaken in public interest. When discrimination is glaring the State cannot take recourse to inadvertence in its action resulting in discrimination. The approach is, what is the impact of State action on the fundamental rights of citizen. In this case denial of equal protection is complained of. And this denial of equal protection flows from State action and has a direct impact on the fundamental rights of the petitioners. We, therefore propose to take a constructive approach by removing the discrimination by putting the present petitioners in the same class as those who have enjoyed favourable treatment by inadvertence on the part of the Regional Transport Authority. Accordingly we hereby direct that the order/conditions in permits curtailing the permits of the petitioners prohibiting them from passing over the overlapping portion of their route with the notified route be quashed and declared to be ol no consequence till all the operators including those excluded and similarly situated are similarly treated. " ( 22 ) IT was also contended by Mr. Bhandare that the petitioners had not suffered any detriment because of the Panchkuin Road allottees not being asked to adhere to the zoning system. " ( 22 ) IT was also contended by Mr. Bhandare that the petitioners had not suffered any detriment because of the Panchkuin Road allottees not being asked to adhere to the zoning system. It is further contended by him that there is no material which is placed on the record to show that any loss has been suffered on this account. This submission is not correct. For example in C. W. 590 of 1980 it has been categorically averred as follows: "one part of the market was thus free to carry on any trade whilst shopkeepers in another part of the market were required to carry on specified trades. This led to discrimination under the same roof to start with. "in C. W. 763 of 1980 it was, inter alia, submitted as follows: "as a result of discrimination of the respondent the petitioners are subjected to great hardship and irreparable injury. "in C. W. 684 of 1980 as well as in C. W. 156 of 1980 the quantum of loss which is alleged to have been suffered by the petitioners has also been stated. Whether in fact any loss has been suffered or not cannot be determined in these proceedings. It is, however, clear that averments have been made by the petitioners that on account of the Panchkuin Road allottees and the Mini Market allottees not being required to follow the zoning system the petitioners are suffering loss. This plea does not appear to be wholly incorrect because before me the learned counsel agreed that their clients would strictly adhere to and follow the zoning system in the event of the respondent-Committee imposing such a restriction on the Panchkuin Road allottees and the Mini Market allottees. ( 23 ) IN view of the fact that the respondent is not justified in insisting that the petitioners should follow the zoning system, the show cause notices which have been issued to the petitioners for cancellation of the licences on the ground that they have changed their trade will have to be quashed. ( 24 ) IN Civil Writ Petitions Nos. 158 and 648 of 1980 the contention of Mr. Bishamber Lal is that the petitioners have suffered loss because they have not violated the trade zone but other shopkeepers have started similar business in different zones though they were not permitted to do so. ( 24 ) IN Civil Writ Petitions Nos. 158 and 648 of 1980 the contention of Mr. Bishamber Lal is that the petitioners have suffered loss because they have not violated the trade zone but other shopkeepers have started similar business in different zones though they were not permitted to do so. According to him, the Committee is bound to enforce the zoning system and it is accordingly estopped from realising the full amount of the licence fee till the Committee is able to enforce the zoning system. In the alternative it is submitted that if the zoning system cannot be enforced then the rent should be reduced. In this connection reliance has been placed by him on a Full Bench decision of the Madras High Court reported as Coimbatore Municipality v. C. G. Subbiah, AIR 1980 Mad 130 . While dealing with the question of fixing fee for the various stalls which were allotted by the Municipality, it was observed as follows (at p. 138): "the Municipality being a statutory body must follow a rational basis in fixing the fee for the various stalls within the market. No doubt, it has the power to increase the totality of the fees. But, while distributing the same to the various stall holders, it must apply a uniform principle and should not depend upon the extent of the trade carried on in each stall. "there is considerable force in the aforesaid submission. The petitioners have adhered to the zoing condition which has been imposed on them. They cannot be made to suffer if any loss has been sustained by them. Whether any loss has been suffered by them or not cannot be gone into in these proceedings. If, however, any loss has been suffered by them on account of the other shopkeepers not following the zoning system then the petitioners would be entitled to the reduction of the licence fee. It is evident that in the circumstances of the present case the relief of directing the respondent to enforce the zoning system cannot be granted. It is less than 50% of the shopkeepers in Palika Bazar who are adhering to the zoning system. It is not practicable, taking the realities into consideration, to issue any such direction to the Committee. ( 25 ) WITH regard to the last contention of the petitioners, other than in C. W. Nos. 156. It is less than 50% of the shopkeepers in Palika Bazar who are adhering to the zoning system. It is not practicable, taking the realities into consideration, to issue any such direction to the Committee. ( 25 ) WITH regard to the last contention of the petitioners, other than in C. W. Nos. 156. 590 and 684 of 1980, relating to the reduction of licence fee, no such relief can be granted to them because the trade zoning can. no longer be applied to them. In fact before me the learned counsel did not insist on the reduction of the rent if they were permitted to change the trade like the Panchkuin Road allottees, ( 26 ) FOR the aforesaid reasons, the petitions are partly allowed. I quash the show cause notices which had been issued on the ground of the trade having been changed. I further hold that the condition of the trade zone which has been imposed by the respondent is no longer valid but the allottees cannot carry on any trade which is not specified in any of the zones mentioned in Appendix a to the terms and conditions attached to the tender. I further issue a writ of mandamus directing the Committee to refix the licence fee with effect from the date of filing of the petitions of the petitioners in C. W. Nos. 156, 590 and 684 of 1980 which should be fair having regard to the changed circumstances and after giving a reasonable opportunity to the allottees to be heard, within three months from today. It is clarified that under no circumstances should the licence fee so refixed be higher than the licence fee which was payable by them as per the tender. Petitioners shall also be entitled to costs.