M/S. N.K. Mondal & Sons vs Union Of India & Ors
2022 Latest Caselaw 8300 Cal

                IN THE HIGH COURT AT CALCUTTA
                         Constitutional Writ Jurisdiction
                                 Appellate Side


Present :-
The Hon'ble Justice Moushumi Bhattacharya.

                            W.P.A 23113 of 2019

                          M/s. N.K. Mondal & Sons

                                       Vs

                            Union of India & Ors.


For the petitioner                           :     Mr. Ashoke Kr. Banerjee, Adv.
                                                   Mr. Ramdulal Manna, Adv.
                                                   Mr. Sabyasachi Mondal, Adv.
                                                   Mr. Sayan Mukherjee, Adv.
                                                   Mr. Swapan Kr. Mallick, Adv.
                                                   Mrs. Manju Manna, Adv.


For the respondent nos. 1 to 4              :      Mr. Dwijadas Chakraborty, Adv.


Last Heard on                               :      12.12.2022

Delivered on                                :      14.12.2022.

Moushumi Bhattacharya, J.

1. Rabindra Nath Mondal claims to be the proprietor of the petitioner, M/s.

N.K. Mondal & Sons. He claims that his father, late Nalini Kanta Mondal was

permitted to start a Tea stall at Uluberia Railway Station from July, 1956 in

terms of a letter dated 6.7.1956 issued by the Superintendent of Catering of

the South Eastern Railways. He says that in terms of a letter dated 29.4.1969,

the contract for carrying on a Tea stall at Uluberia Station was transferred from

Shri Nalini Kanata Mondal to M/s. N.K. Mondal & Sons. The licence fee was

revised with effect from 1.2.1973 and a licence was issued in favour of the

petitioner on 8.5.1984 for a period of 5 years from 1.7.1984 to 30.6.1987.

According to the statements made in the writ petition the licence expired on

and from 30.6.1987. Nalini Kanta Mondal who is the father of the present

proprietor Rabindranath Mondal died on 20th February, 1987 (the writ petition

does not specify the date). Disputes thereafter started between the present

proprietor of the petitioner and the Railway authorities with regard to renewal

of contract and payment of licence fee at the rate revised by the Railway.

2. The petitioner through its present proprietor, Rabindra Nath Mondal,

seeks recalling of a letter dated 13.9.2019 issued by the Senior Divisional

Commercial Manager, South Eastern Railway and removal of the seal put on

the tea stall standing in the name of the petitioner. By the said letter, the

authorities took a decision to temporarily seal all the catering units at Uluberia

station belonging to Rabindra Nath Mondal with effect from 16.9.2019.

3. Learned counsel appearing for the petitioner objects to sealing of the tea

stall run by Rabindra Nath Mondal on primarily two grounds. First, that the

impugned letter of 13.9.2019 is an instance of forcible possession without

following due process of law. Second, according to counsel, contrary to the

Railway's demand of Rs. 80,000/-, the petitioner actually owes a sum of Rs.

10,908.00/- to the Railways after deducting Rs. 69,092.00/- which has already

been paid to the Railways. Counsel submits that the petitioner is a "petty

manufacturer" who prepares tea-time snacks and savoury items and sells them

to the public and is hence not required to obtain any Food Licence under the

relevant law. Counsel relies on a judgment passed by a Co-ordinate Bench on

29.6.2001 wherein a letter dated 29.3.1993 issued by the Railways for revision

of the licence fee for running the tea stall was quashed. Counsel also relies on

a Co-ordinate Bench order of 5.9.2011 by which an Eviction Notice dated

4.7.2011 served on the petitioner was stayed and the Railways was restrained

from taking any further steps in connection with the said notice.

4. Learned counsel appearing for the respondent Railways, submits that the

father of the present proprietor was the original licensor and had taken lease of

two stalls for running a tea stall and a grocery shop at the Uluberia Station

platform. Counsel submits that the licence of the petitioner expired in 1992

and that the present proprietor does not have any subsisting agreement with

the Railways for continuing with the tea stall. Counsel further submits that the

present proprietor failed to pay any licence fee to the Railway Board for the tea

stall from the year 2000 onwards. The Railways was hence compelled to seal

the tea stall from 16.9.2019.

5. Upon hearing learned counsel appearing for the petitioner and the

Railways and considering the material which is before the Court, it is

undisputed that the petitioner, through its present proprietor, Rabindra Nath

Mondal, has not been able to show any Licence Agreement entered into

between the present proprietor and the Railways after 1992. The initial

agreement was with late Nalini Kanta Mondal and subsisted from July, 1984

till June, 1987. The Agreement was extended till 1992. Apart from the licence

not being renewed after 1992, it also appears that the petitioner has failed to

pay licence fees for running the tea stall since 2000. Petitioner filed the present

writ petition in 2019.

6. There is also a continuing dispute between the present proprietor of the

petitioner and the Railways on the amount outstanding in favour of the

Railways. While the petitioner says that it is only Rs. 10,908/- as of 2019, the

Railways insist that the petitioner owes Rs. 72,69,532/- as per a calculation of

the Railway Board through a Chartering Policy of Senior Administrative Grade

formula No. 37 of 2010 as mentioned in the respondents' Note. It is evident

that the parties have not been able to favourably meet at a middle point with

regard to the amount due to the Railways. In the absence of such agreement, it

is arguable whether the petitioner, through its present proprietor, can continue

to run the tea stall on the land belonging to the Railways without an existing

Licence Agreement or alternatively, or a renewed Licence Agreement and

without payment of licence fees from 2000 - 2019 - when the impugned letter

was served on the petitioner. The present proprietor of the petitioner claims a

right to run the tea stall in absence of the aforesaid.

7. The judgment of the Co-ordinate Bench dated 29.6.2001, relied upon by

the petitioner, was delivered against a letter of 29.3.1993 by which the Railway

informed the petitioner that of the expiry of the licence as of 30.9.1992. The

petitioner was also informed of the revised licence fee payable to the Railways.

The learned Single Judge, as his Lordship then was, was of the view that the

Railways could not take over possession of the tea stall without a show cause

notice to the petitioner and without serving an eviction notice to the petitioner

under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971.

The letter dated 29.3.1993 was hence quashed and the earlier interim order

passed by another Co-ordinate Bench on 7.7.2000 directing service of a show

cause notice to the petitioner and for the petitioner to pay Rs. 4,000/- pa to the

Railways, was confirmed. The aforesaid judgment cannot come to the

assistance of the petitioner since the Court was specifically of the view that the

impugned action taken by the Railways was bad in the absence of a show

cause notice and lacked due process under the Public Premises (Eviction of

Unauthorised Occupants) Act, 1971. The judgment was also passed on an

earlier notice of 29.3.1993 after which several facts of relevance have taken

place.

8. The second order relied upon, passed by a learned Judge, as his

Lordship then was, is of 5.9.2011. The said order was passed in relation to a

notice dated 4.7.2011 issued by the Estate Officer, South Eastern Railway

under section 4 of the Public Premises (Eviction of Unauthorised Occupants)

Act, 1971. The Court was pleased to stay the operation of the impugned notice

on the ground that the notice did not satisfy the mandatory requirements of

section 4 of the 1971 Act. This order is also of little assistance to the petitioner

since the order was restricted to an earlier notice of 4.7.2011.

9. The orders passed by a Co-ordinate Bench and of a Division Bench from

the notice which is under challenge in the present proceeding are of more

relevance. The petitioner filed an earlier writ petition being W.P. No. 18591 (W)

of 2019 challenging the very same letter which is now before the Court i.e. of

13.9.2019, by which the tea stall belonging to the present proprietor of the

petitioner was temporarily sealed. The learned Single Judge refused to pass

any interim order without affidavits being filed by the parties. The Court noted

that the petitioner failed to pay occupational charges of Rs. 4,000/- despite an

eviction decree subsisting against the petitioner. The order records the

disagreement with regard to the rate of occupational charges to be paid by the

petitioner to the Railways. This order was unsuccessfully challenged by the

present proprietor of the petitioner and the Division Bench by its order of

1.10.2019 gave the proprietor leave to make an appropriate offer for

consideration of the Railway authorities.

10. No subsequent or significant facts have taken place after the orders

passed in the earlier writ petition filed by the present proprietor of the

petitioner. The disputes with regard to the outstanding amount remain. The

present proprietor has not paid any amount by way of licence fee or

occupational charges for the tea stall from the year 2000 onwards. The

impugned letter was served on the petitioner on 13.9.2019 and the Railways

took a decision to temporarily seal the tea stall at Uluberia Station. It is

undisputed that the petitioner and its present proprietor were directed to pay

occupational charges of Rs. 4,000/- pa as an interim measure by the order

dated 7.7.2000. This order was confirmed by the judgment delivered on

29.6.2001. The Railways were however restrained from taking any steps until

an eviction order is passed against the petitioner under the provisions of the

1971 Act. This was duly done by the Railways on 4.7.2011. The petitioner

challenged the eviction order and enjoyed an interim stay thereof by the order

of 5.9.2011. The direction to pay the occupational charges of Rs. 4,000/- pa

however remained. The impugned letter dated 13.9.2019 states that the

petitioner has not paid the provisional occupational charges of Rs. 4,000/- pa

since 2000. The letter further records that the petitioner issued cheques to

"fictitious payees" which could not be enchased by the Railways. The petitioner

has no defence to these charges. A dispute with regard to the revised licence fee

cannot justify the petitioner's non-compliance of the orders passed by the

Court since 2000 onwards. The petitioner has not been able to show any basis

as to why the petitioner failed to pay the occupational charges for 19 years

from 2000-2019 until the impugned letter was issued to the petitioner.

Admittedly, the present proprietor of the petition did not inform the Railways of

the death of his father on 20th February, 1987.

11. There is also no answer to the other allegation made in the impugned

letter, namely, that the petitioner does not have a food licence for the Catering

Unit. This Court cannot disagree with the concerns raised by the Railways with

regard to the potential health hazard to the travelling public in the absence of a

food licence in favour of the petitioner running a tea stall. Together with the

unpaid occupational charges from 2000-2019, the impugned letter is found to

be tenable and justified. As such, there is no reason to recall or quash the

impugned letter. It should also be stated that a dispute with regard to the

outstanding amount payable to the Railways is not a matter which a Writ

Court can go into. It is up to the parties to sort out their differences and come

to a settlement as to the amount payable.

12. The judgments cited on behalf of the petitioner including Krishna Ram

Mahale (dead) by his LRs vs. Mrs. Shobha Venkat Rao; AIR 1989 SC 2097 and

Lalu Yeshwant Singh (dead) by his legal representative vs. Rao Jagdish Singh;

AIR 1968 SC 620 are on the proposition that a person in settled possession

cannot be dispossessed without taking recourse to the remedies available

under the relevant law. Since the Railways has taken steps under the Public

Premises (Eviction of Unauthorised Occupants) Act, 1971 and served a notice

of eviction on the petitioner on 4.7.2011 and has also waited 8 years thereafter

until the impugned letter of 13.9.2019, it cannot be said that the Railways have

proceeded against the petitioner or dispossessed the present proprietor of the

petitioner without following the procedure established by law.

13. WPA 23113 of 2019 is accordingly disposed of in terms of the above. The

petitioner and its present proprietor shall be at liberty of exploring a settlement

with regard to the occupational charges to be paid to the Railways from 2000

till September, 2019. The settlement will also be with regard to any other

amount outstanding to the Railways. The Railway authorities shall consider

opening of the temporary seal of the tea stall belonging to the present

proprietor of the petitioner upon the petitioner entering into a fresh Licence

Agreement with the Railway Board for running the tea stall.

Urgent photostat certified copies of this judgment, if applied for, be

supplied to the parties upon fulfillment of requisite formalities.

(Moushumi Bhattacharya, J)