Smt. Noor Jahan Begum And Another vs The Union Of India Thru Secy. And ...
2014 Latest Caselaw 8194 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A  F R 
 
Court No. - 10
 

 
Case :- WRIT - C No. - 216 of 2013
 

 
Petitioner :- Smt. Noor Jahan Begum And Another
 
Respondent :- The Union Of India Thru Secy. And Others
 
Counsel for Petitioner :- Vijay Gautam
 
Counsel for Respondent :- Govind Saran,Sc,Sudhir Bharti
 

 
Hon'ble Arun Tandon,J.

Hon'ble Arvind Kumar Mishra-I,J.

Heard Shri Vijay Gautam, Advocate on behalf of petitioner and Shri Sudhir Bharti, learned counsel on behalf of respondent-Railway Authority.

Petitioners before this Court, who are two in number seek quashing of the tender notice dated 14.12.2012 published by Senior Divisional Commercial Manager, Northern Railway, Moradabad and further a writ of mandamus directing the respondents to permit the petitioners to run and manage refreshment room at railway station Hapur as per the existing license conditions/fee.

It is the case of the petitioner that the petitioner's firm has been providing catering services at railway station Hapur since 1975 while running the refreshment room at platform no.1. According to the petitioners the agreement has been renewed from time to time. It is stated that the petitioner no.2 is the power  of attorney holder of Smt. Noor Jahan Begum and he is authorized to conduct the proceedings on her behalf. I

In the year 2005 a new catering policy was introduced by the Indian Railway whereby the catering business was handed over to the Indian Railway Catering and Tourism Corporation (hereinafter referred to as 'IRCTC'). It is stated that the petitioner has been permitted to pay the license fee as per the terms of the policy of 2005.

Under the new policy introduced by the Ministry of Railways on 31st July 2010 called Catering Policy of 2010, IRCTC has been asked to hand over all the contracts to the zonal railways. Thereafter the zonal railways have been directed to re-settle the license in accordance with the policy of 2010. By means of letter dated 9th August 2010 it has been provided that the existing contracts may be renewed for a period of six months and in the meantime the railways may take appropriate action as per para 16 & 17 of the catering policy of 2010.

It is the case of the petitioner that she had been depositing the requisite license fee and every time her license  had  been renewed for a period of six months. It is the case of the petitioner that the railway station at Hapur is not a viable station. There are little sales at the station and in case the advertisement, which  has been published in terms of the catering policy of 2010 is implemented, then persons like the petitioner who has been carrying on the said business of catering at the railway station for decades together will be put out of the business. It is submitted that the work and performance of the petitioner has been satisfactory. They have never committed any default in payment of the license fee.

With reference to the judgment of Andhra Pradesh High Court in Writ Petition No.14577 of 2013 decided on 6.8.2013, S.C.R. Caterers Vs Senior Divisional Commercial Manager, it is submitted that the railways is under a legal obligation to consider the application of petitioner for renewal of the contract before resorting to any fresh settlement.

Counsel for the respondent on the contrary points out that the catering policy of 2010 is a policy decision of the Ministry of Railways. The policy lays down a detailed criteria in the matter of transfer of rights to maintain catering halls/refreshment rooms etc. He submits that such policy decision of the Ministry of Railways need not be interfered with by the High Court unless, it is demonstrated that the policy violates any fundamental right or is per se arbitrary. He submits that there are no such pleadings in the present petition. Reference is also made to Clause 16 of the Policy of 2010 which lays down the terms of grant of license qua major units and general minor units. It is stated that Clause 16.1.1 contemplates that there shall be no renewal. Similar is the position under Clause 16.1.2. He explains it is only in respect of general minor units at A, B & C category stations renewal after expiry of the term of five years is contemplated on the conditions stipulated therein. It is also explained that under the new policy guideline, allotment has to be made through the process of tendering and reservation in the matter of allotment for various categories has also been provided for.

It is agreed between the parties that the license in respect of refreshment room in question falls within the definition of major units. Learned counsel for the Railway Board has also referred to the Circular dated 12/13 January 2012 which provides that after expiry of the existing period, allotment shall be made by calling for fresh tender applications. The process must be initiated well in time so that fresh allotments are finalized timely and further extension is not required.

We have heard counsels for the parties and gone through the records of the present writ petition.

From the preamble of the catering policy of 2010 it is apparently clear that the Ministry of Railways after observing the implementation of policy of 2005 resolved that it necessitated modification for the purpose of good standards and quality of the services provided, towards food and beverages to the passengers as well as in the matter of management of the static catering contracts dealing with the food and beverages at platforms etc. Under the said catering policy of 2010 an attempt has been made to ensure good quality and hygienic food. The railway stations with annual income of more than six crores are A category stations, those with income between three to six crores are B category stations and all suburban stations are C category station and so on. (Reference Page 187 of the paper book)

It is not in dispute that Hapur railway station has been categorized as a A category station. It is further not in dispute that the refreshment room at Hapur railway station answers the description of major unit within the policy of 2010. From Clause 14.1.1 it is apparent that all major units and general minor units at A, B & C category stations have to be settled through open, competitive, two-packet tendering system. From Clause 16 of the Policy of 2010 it is further apparent that the tenure of all major units including food courts, fast food units etc will be for a period of 5 years with specific condition that there will be no renewals.

We further find that the tenure of all AVMs will also be of 5 years with no renewal treating them as major units. It is only in respect of general minor units situate at A, B & C category station  the tenure has been provided as 5 years with a provision of renewal after expiry of the term on satisfactory performance etc.

From a simple reading of the aforesaid clause 16 it is apparent that so far as major units are concerned, the term of the contract has been fixed as 5 years with a specific condition that there shall be no renewal. It is not in dispute that the said norm will apply in respect of the refreshment centre at Hapur railway station, which is the subject matter of consideration in the present writ petition. We hold that the right of renewal which has been conferred under Clause 17 would only be attracted in respect of general minor units at A, B & C category stations and general minor units at D, E and F category stations. Clause 17 pertaining to renewal will have no application in respect of major units.

From the circular of railways dated 12/13 January 2012 it is further apparent that a decision has been taken that there should be no further extension of the allotment period after expiry of its time and fresh tender applications, be invited and fresh allotments be finalized timely, so that no further extension of existing contracts is necessitated. (Reference Page 190 of the paper book)

From the aforesaid policy decisions of the railway it cannot be doubted that fresh allotments have to be made in accordance with the catering policy of 2010 by inviting tenders. So far as major units are concerned, the tenure of the contract would be at the maximum of 5 years with no right of renewal. In view of the said policy decision which has not been demonstrated to be arbitrary or violative of any fundamental right guaranteed in favour of the petitioner, we see no illegality in the publication of the tender notice by the railways for settling the contract in respect of the refreshment room at Hapur station.

The judgment of the Andhra Pradesh High Court in the case of S.C.R. Caterers Vs Senior Divisional Commercial Manager relied upon by the learned counsel for the petitioner is clearly distinguishable, inasmuch as, the judgment deals with minor units at category A, B & C stations and even otherwise, we are of the opinion that in view of the circular of the railways dated 12/13 January 2012 there should not be a direction for renewal of the existing contract especially in the circumstance when the said circular is not under challenge. The catering contracts have necessarily to be settled afresh under the said circular of Railway Board.

So far as the plea raised by the petitioners in respect of the conditions of the tender notice requiring the prospective bidder to have a turn over of Rs.50 lakhs per year in respect of A category stations is concerned, we find that A category stations are those stations where annual income is more than 6 crores. If the railways having regard to the said annual income of the railway station has decided to have caterers who have turn over of Rs.50 lakhs in a year, it cannot be said that the railways has acted arbitrarily.

We may record that the railways can fix the essentials for a person to be eligible to be considered for the contract as it has the expertise for the purpose. This Court under Article 226 of the Constitution of India cannot enter into the correctness or otherwise of the decision so taken by the Railways. Judicial review in the policy matter is not contemplated except when it is established that its per se arbitrary or is outcome of favouritism or is in favour of selected few.

In the totality of circumstances on record, this Court finds no illegality in the tender notice which has been published by the Indian Railways for settling the contract of running and managing of the refreshment room at Hapur station in terms of the catering policy decision of 2010.

Writ petition lacks merit and is dismissed.

Interim order, if any, stands discharged.

Order Date :- 11.11.2014

himwan