Bombay High Court
Shri. Chotelal Soukhilal Mishra vs Union Of India, Thr. Chairman ... on 4 August, 2016
Bench: V.A. Naik
WP 1770/16 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 1770/2016
Shri Chotelal Soukhilal Mishra,
Age 62 years, Occ: Business,
R/o Surendra Gad, Seminary Hills,
Nagpur. PETITIONER
.....VERSUS.....
1. Union of India,
Through Chairman Railway Board,
having office at Railway Bhawan,
Sansad Marg, New Delhi.
2. The Divisional Railway Manager,
South East Central Railway, Nagpur.
3.
Chief Commercial Officer,
South East Central Railway,
Bilaspur.
4. Senior Divisional Commercial Manager,
South East Central Railway, Kingsway,
Nagpur. RESPONDENTS
Shri A.S. Kilor, counsel for the petitioner.
Shri M.M. Agnihotri, counsel for the respondents.
CORAM :SMT.VASANTI A NAIK AND
MRS.SWAPNA JOSHI, JJ.
DATE : 4 TH AUGUST, 2016.
ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)
RULE. Rule made returnable forthwith. The petition is heard
finally at the stage of admission with the consent of the learned counsel
for the parties.
2. By this writ petition, the petitioner challenges the tender
notice, dated 09.02.2016 by which the respondents had invited the bids
for grant of license for a tea-stall in the Itwari Railway Station. Certain
other ancillary relief is also sought.
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3. The petitioner was granted a license for a tea-stall and a
license for the vending trolley by the respondents in the year 2010. In
this case, we are not concerned with the license granted to the petitioner
to operate the vending trolley in the Itwari Railway Station and we are
concerned with the license pertaining to the tea-stall only.
4. The tea-stall license was granted in favour of the petitioner
on 31.07.2010 and the term of the license was to expire after five years.
Before the expiry of the term of five years, several writ petitions
were filed in different High Courts against the action of the
respondents for granting the license, by inviting tenders. According to the
tea stall licensees, their licenses were liable to be renewed for five years,
specially in terms of the policy of the year 2010. The different High
Courts decided the writ petitions and the matters were carried to the
Hon'ble Supreme Court. The Hon'ble Supreme Court by the judgment
reported in (2016) 3 SCC 582 held that the licenses of the eligible
licensees were liable to be renewed. The Hon'ble Supreme Court held
that the allotment of State Largess to entrepreneurs, particularly the small
scale entrepreneurs should not be discriminatory and the States' approach
in such matters should be responsible, fair and non-discriminatory.
Since the matters were pending before the Hon'ble Supreme Court and
the High Courts, though the license of the present petitioner had
expired on 31.07.2015, the extension to the said license was granted by
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the respondents on two occasions, each for a term of six months.
The second term of extension was liable to expire on 25.05.2016. The
petitioner, a petty tea-stall owner, after becoming aware of the
judgment of the Hon'ble Supreme Court that the license could
be renewed, applied for renewal of the license, vide application
dated 24.02.2016. The said application was not decided by the
respondents and since the petitioner's license was to expire on
25.05.2016, the petitioner approached this Court with the aforesaid
prayers. According to the petitioner, it was never informed to the
petitioner by the respondents that there were some deficiencies or
lacunae in the application and, therefore, the license was not being
renewed. Since the license of the petitioner is not renewed, the petitioner
has approached this Court for a direction to the respondents to renew the
license of the petitioner as per the policy.
5. Shri Kilor, the learned counsel for the petitioner, submitted
that most of the license holders had not applied for renewal of license
within a period of six months before the expiry of the term of the license
as several matters pertaining to renewal of license were pending before
the different High Courts and the Hon'ble Supreme Court. It is stated that
the petitioner did not make an application for renewal of license within a
period of six months before the expiry of the term of five years as the
license of the petitioner was extended by the respondents on two
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occasions, each for a period of six months. It is stated that no sooner did
the Hon'ble Supreme Court render the judgment on 29.01.2016 and the
petitioners became aware that the license could be renewed, the
petitioner applied for renewal of license on 24.02.2016. It is stated that
the petitioner, a petty tea-stall owner, had no knowledge about the
observation of the Hon'ble Supreme Court in paragraph 30 of the
judgment that it would be necessary for a licensee seeking the renewal, to
file an affidavit mentioning therein that he does not possess any other
vending license. It is submitted that it was the duty of the respondents to
have informed the petitioner that the petitioner should have filed an
affidavit as observed by the Hon'ble Supreme Court in the penultimate
paragraph of the reported judgment. It is submitted that since the
Hon'ble Supreme Court has held that the action on the part of the
respondents in not granting the renewal of license to the members of the
respondents, is arbitrary, unreasonable, unfair and discriminatory, it
would be necessary to direct the respondents to consider the claim of the
petitioner for renewal of license. It is submitted that the petitioner is a
petty tea-stall licensee on the Itwari Railway Station and he earns his
livelihood by operating the same. It is stated that since there is a
provision for renewal of license and since the Hon'ble Supreme Court has
observed that the action on the part of the respondents in not renewing
the licenses of the stall owners on the railway stations is arbitrary and
discriminatory, this Court may direct the respondents to consider the
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application of the petitioner for renewal, after permitting the petitioner to
file an affidavit, as observed by the Hon'ble Supreme Court in paragraph
30 of the judgment.
6. Shri Agnihotri, the learned counsel for the respondents,
supported the action of the respondents. It is submitted that a licensee
cannot seek the renewal of license as of right. It is stated that as per the
policy of the year 2010, it is necessary for the licensee to apply for
renewal of license at least six months before the expiry of the term of
license and the petitioner had not made an application before six months.
It is submitted that after the Hon'ble Supreme Court had rendered the
judgment, the petitioner applied to the respondents for renewal of license
without filing an affidavit as is required to be filed, as per the observation
of the Hon'ble Supreme Court in paragraph 30 of the said judgment. It is
submitted that the petitioner has concealed a material fact in respect of
the subsistence of a vending trolley license in Itwari Railway Station, in
this writ petition. It is stated that in the circumstances of the case, the
writ petition is liable to be dismissed.
7. On hearing the learned counsel for the parties, we find that in
the circumstances of the case, a case is made out by the petitioner for
issuance of a direction to the respondents to consider the application filed
by the petitioner for renewal of license after permitting the petitioner to
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file an affidavit, as mentioned in paragraph 30 of the judgment of the
Hon'ble Supreme Court. Despite the policy of the year 2010, the
respondents had decided not to renew the tea-stall or the vending trolley
licenses throughout India and the Hon'ble Supreme Court had held in the
judgment cited supra that the provisions of the catering policy was
applicable to the respondents and the action of the respondents in not
granting renewal to the petty license holders is arbitrary, unreasonable,
unfair, discriminatory and unsustainable. It is clear from a reading of the
judgment of the Hon'ble Supreme Court that the Hon'ble Supreme Court
has in clear terms, disapproved the action of the respondents in adopting
a policy of not renewing the licenses. It is the case of the petitioner and
we believe that the petitioner did not file an application for renewal
before six months from the date of expiry of the previous license as
several matters pertaining to the renewal of licenses were pending in the
High Courts and also in the Hon'ble Supreme Court. It is not in dispute
that the respondents renewed the licenses of the petitioner on two
occasions, though there was no application for renewal of license on the
second occasion and the license was renewed till 25.05.2016. As soon as
the judgment was rendered by the Hon'ble Supreme Court, the petitioner
applied to the respondents for renewal of license for five years, on
24.02.2016. If the respondents were of the view that the petitioner's
application was not supported by an affidavit, as is required as per the
judgment of the Hon'ble Supreme Court, it was expected of the
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respondents to have at least conveyed to the petitioner that such an
affidavit needs to be filed. However, nothing was communicated from
the side of the respondents to the petitioner about the filing of the
affidavit and/or about the result of the application that was filed by the
petitioner. The petitioner was, therefore, constrained to file the instant
petition seeking a direction to the respondents to consider renewing the
license of the petitioner as per the policy of the year 2010 for five years.
In this Court, in the affidavit-in-reply, that is filed by the respondents on
09.06.2016, it is conveyed to this Court that the petitioner's application
for renewal cannot be considered as it is not supported by an affidavit, as
is required to be tendered in view of the judgment of the Hon'ble
Supreme Court. We believe the case of the petitioner that the petitioner
was not aware of the observations of the Hon'ble Supreme Court in
paragraph 30 in regard to the filing of the affidavit and the respondents
had also not conveyed this deficiency at any point of time to the
petitioner. The petitioner was and is ready to file such an affidavit. The
vending trolley license is already expired. In the circumstances of the
case, we find that it would be necessary to direct the respondents to
consider the application of the petitioner for renewal of the license after
permitting the petitioner to file an affidavit, as desired. Merely because
the respondents had floated a tender inviting bids for allotment of the
tea-stall in Itwari Railway Station, the relief cannot be denied to the
petitioner as this Court has, as early as on 14.03.2016, directed the
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respondents to maintain status quo and though the bids were
received, the bids are not even opened till date. We also do not find
any merit in the submission made on behalf of the respondents for
dismissal of the writ petition on the ground that the petitioner did not
disclose in the writ petition about the grant of the vending trolley license
in favour of the petitioner. We do not find that the said fact is a relevant
fact that is liable to be disclosed, while filing the writ petition, as the
claim of the petitioner is only in respect of the renewal of the tea-stall
license and the license of the vending trolley was about to expire when
the petition was filed. The submission made on behalf of the
respondents that as per the policy of the year 2010, allotment of
General Minor Units at A, B & C category stations, which includes the
Itwari Railway Station, which falls in category B since the year 2009, was
to be made only through open, competitive, two-packet tendering system
and, hence, the renewal cannot be granted to the petitioner in this case as
the process referred to hereinabove would be required to be followed,
is liable to be rejected at the threshold, as the said policy was framed
much before the respondents had granted the initial license to the
petitioner on 31.07.2010. The first license was granted to the
petitioner without following the competitive, two packet tendering
system on 31.07.2010 though the said policy was framed before the
said date and the policy was brought to the notice of the respondents.
Also such procedure could be followed where renewal cannot be granted.
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We find that the submission is absolutely ill-founded and is liable to be
rejected.
8. Hence, for the reasons aforesaid, the writ petition is allowed.
The impugned tender notice is hereby quashed and set aside. We direct
the respondents to decide the application filed by the petitioner for
renewal of the tea-stall license in the Itwari Railway Station within three
months, after permitting the petitioner to file an affidavit within a period
of fifteen days. The interim relief would operate till the application for
renewal is decided.
Rule is made absolute in the aforesaid terms with no order as
to costs.
JUDGE JUDGE
APTE
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