Calcutta High Court (Appellete Side)

Bibha Ray vs The Union Of India And Others on 3 October, 2024

Author: Shampa Sarkar

Bench: Shampa Sarkar

03.10.2024
Sl. No.13
Court No.9
GB
                                 WPA 25118 of 2024

                                    Bibha Ray
                                         vs.
                            The Union of India and others

                 Mr. Md. Sarwar Jahan
                                                       ... for the petitioner
                 Mr. Asok Bhaumik
                                                     ... for the respondents

1. Affidavit-of-service filed in Court today, is taken on

record.

2. The petitioner prays for renewal of the agreement

and/or the licence, so that the petitioner can run her

stall from Malda Town station by extension for a

further period of 400 days. The licence of the

petitioner had expired sometime in August 2024. The

petitioner prays that a writ of mandamus be issued

upon the authorities, directing such extension, upon

taking note of the loss suffered during the Covid period.

3. Mr. Bhaumik, learned advocate representing the

railway authorities, submits that the agreement had

expired in August 2024. Taking note of the COVID

situation and the fate of such stall owners who were

jobless during the COVID period, extension was given

for a further period of 68 days from the date of expiry

of licence. The period of 68 days also expired in 2024.

It is further submitted that as per the agreement

entered into between the petitioner and the railway

authority, there was no scope for renewal of licence.

4. The petitioner counters such objection of Mr. Bhoumik,

inter alia stating that a scheme for renewal had been

published by the railways, later.

5. Be that as it may, it is submitted that the railway

authority has decided to go for fresh tender, upon

expiry of the term. The petitioner was also allotted the

stall being successful in a previous tendering process.

Thus, the petitioner cannot object to issuance of a fresh

tender notice.

6. It appears to this court that the Delhi High Court had

decided a matter similar in nature. Stall owners of

multi-purpose stalls had approached the Delhi High

Court with similar prayers for extension of licences.

The Delhi High Court was of the view that the property

of the railways could not be vested to the stall owners,

without a proper tendering process. Accordingly, the

writ petitions were dismissed, allowing the railway

authorities to take steps in accordance with law.

7. Under such circumstances, the prayer of the petitioner

for renewal of the licence/agreement which has

expired, cannot be granted. The decision of the Delhi

High Court is noted and accepted as the matter has

been decided in detail as to why the licence could not

be renewed. The relevant portions of the judgment are

quoted below:-

"31. It is evident from the perusal of the aforesaid letter dated 21.05.2020 that it takes into consideration the ground reality that there were variations across the stations regarding the impact of Covid-19. The actual date on which the stalls could be made operational, and the timeline for restoration of

passenger traffic, varied from station to station. It was directed that the period during which license was non-operational shall be treated as dies non period and the contract period shall be extended accordingly. As noticed above, the determination in this regard was left to be made by the respective zonal/divisional railways.

32. Taking into account the above, the concerned zonal/divisional railway had worked out the dies non period based on the ground realities prevalent at the concerned railway stations and have accordingly extended the license period. It cannot be said that the extent of extension to which the petitioners are entitled, has been worked out on a completely arbitrary basis. The contentions in this regard are devoid of merit.

33. The petitioners' reliance on a larger extension of tenure granted to certain licensees, is misplaced. The facts and circumstances which necessitate such action by the concerned zonal/divisional railways have to be tested independently. Notably, the petitioners have not impugned the aforesaid letter dated 21.05.2020 issued by the Railway Board. Instead, the petitioners have sought a writ of mandamus to be issued to the respondents to frame policy in a particular manner. Such a direction cannot be issued under Article 226 of the Constitution. In Rachna v. Union of India", it has been held as under:

"48. Judicial review of a policy decision and to issue mandamus to frame policy in a particular manner are absolutely different. It is within the realm of the executive to take a policy decision based on the prevailing circumstances for better administration and in meeting out the exigencies but at the same time, it is not within the domain of the courts to legislate. The courts do interpret the laws and in such an interpretation, certain creative process is involved. The courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for. The court is called upon to consider the validity of a policy decision only when a challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution or any other statutory right. Merely because as a matter of policy, if the Ist respondent has granted relaxation in the past for the reason that there was a change in the examination pattern/syllabus and in the given situation, had considered to be an impediment for the participant in the Civil Services

Examination, no assistance can be claimed by the petitioners in seeking mandamus to the Ist respondent to come out with a policy granting relaxation to the participants who had availed a final and last attempt or have crossed the upper age by appearing in the Examination 2020 as a matter of right"

34. In Vivek Krishna v. Union of India, it has been held as under:

"9. Even otherwise, a writ of Mandamus cannot be issued to direct the Respondents to enact law and/or to frame rules even under the wider powers conferred under Article 226 of the Constitution. A Mandamus lies for enforcement of a fundamental right or a statutory right, or the enforcement of a fundamental duty related to enforcement of a fundamental right or a statutory right. In exceptional cases, a writ may even lie for enforcement of an equitable right. The breach or threat to breach a fundamental, statutory or may be enforceable equitable right, is the sine qua non for issuance of a writ of Mandamus."

35. Once the respondents have disclosed the basis for working out the dies non period, this Court in exercise of the jurisdiction under Article 226 of the Constitution of India cannot get into intricacies of the factual situation subsisting at each railway station to virtually exercise appellate jurisdiction in respect of the extent of extension granted to individual licensees. It is noticed that individual license agreement executed between petitioner and the concerned railway authorities as well as the 2017 Policy (provisions of which are applicable to the licensees with whom the formal execution of the license agreement is yet to take place), contain an arbitration clause if the petitioners are aggrieved on account of insufficiency of extension on account of the Covid-19 situation or if they wish to claim damages on any account, they are at liberty to invoke the arbitration clause and initiate appropriate proceedings. The rights and remedies of the petitioners in this regard are kept open.

36. In the circumstances, this Court finds no merit in the present petitions and the same are accordingly dismissed. However, since the petitioners have been operating the concerned multi-purpose stall for a very long period of time, to enable the petitioners to make a transition and make alternative vending arrangement/s, this Court considers it apposite to grant a period of 3 months to the petitioners (from the date of the extended

license period after taking into account the dies non period; OR from the date of this judgment, whichever is later) to vacate the stalls in questions. It is directed accordingly.

37. The present batch of petitions is disposed of in the above terms.

38. All pending application/s also stands disposed of."

8. Under such circumstances, this court cannot interfere

with the policy of the railways to go for a fresh tender in

the matter of allotment of stalls and the existing stall

owners cannot claim a vested right of

renewal/extension. The petitioner is at liberty to

participate in the tender process. However, on

humanitarian grounds, no coercive measures against

the petitioner shall be taken for a period of three

months from the date of communication of this order.

Thereafter, the railways shall proceed, in accordance