Y.Devendra Prasad vs The Senior Divisional Commercial ...
2022 Latest Caselaw 1558 AP

       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU


                      W.P.No.2167 of 2022
ORDER:

This writ petition is filed for the following relief:

"to issue a writ order or direction more particularly one in the nature of writ of Mandamus to declare the action of the Respondent No.1 in insisting the Petitioner to preclose the fruit juice stall in Platform No.4/5 (GMU No.14) for the purpose of renewing the fruit juice stall in Platform No.1 (GMU No.13) in terms of Circular No.22/2017 dated 05.03.2017 as arbitrary and illegal and consequently direct the Respondent No.1 to renew the fruit juice stall (GMU No.13) in Platform No.1 of Vijayawada Railway Station without insisting preclosure of the fruit juice stall (GMU No.14) located in Platform No.4/5 of Vijayawada Railway station in the interest of justice..."

This Court has heard Sri P.Nagendra Reddy, learned

counsel for the petitioner and Smt. K.Aruna, the standing

counsel for the Railways. The Assistant Solicitor General

supported the arguments of the standing counsel.

The brief case of the petitioner as set out by the learned

counsel is that pursuant to a bid dated 26.04.2013, the

petitioner submitted tenders for two fruit juice stalls on

Platform No.1, Vijayawada Railway Station. He was the

successful bidder for both. The letter of appointment dated

27.10.2016 was issued in respect of fruit stall No.13 of

Platform No.1. The petitioner has been continuing in

business and licence period of the same is extended upto

31.05.2022. As far as the second offer is concerned, it was

only accepted on 31.07.2018, but the location was changed to

Platform Nos.4/5. The petitioner started operation of second

stall also. The licence period of this stall is expiring on

07.09.2023. The case of the petitioner is that relying upon

circular No.22 of 2017, the Railway authorities are directing

him to surrender the lease for one of the two stalls allotted to

him. It is categorically stated and asserted by the petitioner

that he will not seek the renewal of the licence of the juice

stall in Platform Nos.4/ 5. He wants to continue at Platform

No.1 pursuant to the order dated 27.10.2016. He wishes to

seek extension for this licence only and wants to surrender

the second licence on 07.09.2023. The grievance of the

petitioner is that respondents are not renewing lease of the

first platform licence and are insisting on the surrender of the

second lease licence as a precondition for renewal. Learned

counsel argues that he was the successful bidder in auction

and both the licences were given pursuant to his participation

in the bid dated 26.04.2013. Therefore, he argues that

circular No.22 of 2017 cannot be applicable to the petitioner's

case. Apart from that, he also argues that respondent No.1

cannot insist the petitioner to foreclose his licence on

platform Nos.4/5 before 07.09.2023.

In reply to this, learned standing counsel for the

Railways argues that the Circular No.22 dated 15.03.2017

was issued keeping in view of the judgment of the Hon'ble

Supreme Court of India reported in Senior Divisional

Commercial Manager, South Central Railways and

others v. S.C.R.Caterers, Dry Fruits, Fruit Juice Stalls

Welfare Association and another1. She submits that

pursuant to the said decision, in order to prevent the multiple

licences being given to one individual, the decision was taken

and that it is as per the order of the Supreme Court only. It

is clearly submitted that the Railways do not want to harm

the petitioner but are giving him an option for surrendering

one of the two liences that he has. Therefore, for granting the

renewal, it is stated that the petitioner has to surrender one

of the two licences that he has. Learned standing counsel

therefore argues that the action of the respondent-Railway

authorities is correct and as per the law.

COURT:

This Court notices that there are two licences. Licence

No.1 of Platform No.1 is expiring on 31.05.2022. The

petitioner wants to extend the lease period for this and the

respondents are willing to extend the licence subject to their

conditions of surrendering one of the two licences. The

second lience of Platform Nos.4/5 is expiring on 07.09.2023.

The petitioner has gone on record stating that he will not seek

renewal of licence in Platform Nos.4/5.

The question now is whether the respondent-Railways

can unilaterally decide on this issue by modifying the terms

and conditions of the lience?.

(2016) 3 SCC 582

It is an admitted fact that the petitioner participated in

the bid dated 26.04.2013. Platform No.1 licence was issued

on 27.01.2016 since he was the successful bidder and for

Platform Nos.4/5 second licence was issued on 31.07.2018.

It is not the respondents' case that the petitioner is guilty for

this delay till July, 2018. Once the bid has been accepted, a

work order is issued and a concluded contract has come into

existence the petitioner has a right to continue as far as the

second licence is concerned till 07.09.2023, unless he

commits a breach etc., and the license is revoked as per the

agreement.

The judgment relied upon by the learned standing

counsel for the Railways was dealing with the Railway Board

Commercial Circular No.37 dated 09.08.2010 which talked of

renewal of agreements. The Hon'ble Supreme Court held that

all the bid licence holders are entitled to the renewal. The

action of the Railways in not granting the renewal was held to

be arbitrary, unfair and discriminatory. In the last para of

this judgment, it is mentioned that only those licencees who

can declare on affidavit that they do not have more than one

licence in their name or benami shall be eligible for renewal.

Pursuant to this decision, the circular dated 15.03.2017

is issued. In this circular in para (ii), it is clearly mentioned

that if the licensee holds more than one unit under a single or

multiple licenses, he or she shall forgo all other units except

the unit he wishes to be renewed.

In the opinion of this Court, the circular is not strictly

in accordance with the judgment of the Hon'ble Supreme

Court of India. The Hon'ble Supreme Court said that the

petitioners will be eligible for renewal of their liences if they

give an affidavit stating that they do not have more than one

licence. The Hon'ble Supreme Court never stated that a

person having more than one licence pursuant to a valid

bidding process shall have to forgo his claim to renew the

stall even before the period expires. The idea behind the

affidavit as mentioned by the petitioner is to prevent one

person from having multiple licenses, but it does not give the

rights to the Railways to unilaterally impose a condition that

a person will have to forgo his existing licence when he wants

an extension of another licence.

It is to be noticed that the terms and conditions of this

licence are the result of a competitive bidding held pursuant

to a notification of 2013. Once the contract is concluded and

the petitioner has been given the right to conduct the

business, unless and until the Railways demonstrate that

they have a right to unilaterally amend the term of an agreed

contract, they cannot insist on these sort of conditions. No

legal position or a clause in the agreed terms has been

brought to the notice of this Court for this proposition of law.

On the contrary the agreement states any amendment can be

with mutual consent only. The law on this issue is also well

settled.

In the case on hand, admittedly the petitioner does not

wish to renew the second licence beyond 07.09.2023. In that

view of the matter, this Court is of the opinion that the

impugned action of the Railways in insisting the petitioner to

pre-close his juice stall No.14 at platform Nos.4/5 of the

Vijayawada Railway Station is not correct. The petitioner is

entitled to an order as prayed for.

Therefore, the writ petition is allowed and the

respondents are directed not to insist on the petitioner pre-

closing the agreement for stall No.14 at platform Nos.4/5 of

Vijayawada Railway Station for the purpose of renewing the

fruit juice stall on platform No.1. No order as to costs.

As a sequel, the miscellaneous petitions if any shall

stand dismissed.

_________________________ D.V.S.S.SOMAYAJULU, J

Date : 30.03.2022.

KLP