Delhi High Court
A.A. Catering Co. A Firm ... vs Union Of India (Uoi), Through ... on 24 March, 2006
Author: M B Lokur
Bench: C.J., M B Lokur
JUDGMENT
Madan B. Lokur, J.
1. The Petitioners have made a very limited challenge to the Catering Policy, 2005 issued by the Ministry of Railways of the Government of India under its Commercial Circular No. 8 of 2005 dated 16th March, 2005 (for short the 2005 Policy).
2. In an earlier policy circulated by Commercial Circular No. 26 of 2004 dated 5th October, 2004 (for short the 2004 Policy), the Railways had provided, in Clause 8 thereof, a ceiling limit on holdings. The relevant portion of the 2004 Policy reads as follows:
8. CEILING LIMIT ON HOLDINGS
Major catering units are as under:
(a) All Mobile Catering Units including Rajdhani/ Shatabdi Express and other mail and express trains,
(b) Restaurants/refreshment rooms at all Category 'A' stations excluding attached facilities like stalls/trolleys if any existing at present,
(c) Multi outlet food plazas/food courts or
(d) Single outlet fast food centres
A business group/firm/company or individual can hold a maximum of 15% units of each type of major catering units as mentioned above and overall ceiling of 10% of total major units.
3. The change made in the 2005 Policy, with which we are concerned, is the deletion of the words 'business group'. It was the contention of the Petitioners that the deletion of these words deserves to be struck down and consequent advertisements issued for awarding catering contracts under the 2005 Policy should be quashed. Additionally, the Petitioners submit that the change has been made to favor Respondent No. 4 M/s R.K. Associates.
4. Justifying the deletion of the words 'business group', Respondent No. 2 stated on affidavit as follows:
Further the answering respondent itself while examining various aspects of the new policy asked for certain clarifications from Railway Board. One such clarification was the definition of the words 'Business Group'. On 16th October, 2004, the Managing Director of IRCTC wrote to the Railway Board requesting that the legal opinion from the Legal Directorate of Railway Board may be obtained so as to clarify the definition of 'Business Group' since IRCTC had been unable to locate any legal definition of the term 'Business Group'.
This aspect, with regard to the definition of the 'Business Group' was considered at the various levels of the Railway Board and the Legal Adviser to the Railway Board gave his opinion on 3rd November, 2004 stating, inter-alia, that there is no uniform treatment of the concept 'Business Group' and different indices are used in different areas of law to decide what would constitute the group. Giving his detailed reasons the Legal Adviser advised that the words 'Business Group' appearing in para 8 of the catering policy appeared to be superfluous in the present context. In view of the opinion of the Legal Adviser it was decided by the Railway Board to delete the words 'Business Group' from para 8 of the catering policy which was re-promulgated as the catering policy 2005.
5. Of course, the Railways have also denied that the deletion of the words 'business group' was intended to favor M/s R.K. Associates.
6. Criticizing the stand taken by the Railways, it was contended by learned Counsel for the Petitioners that the words 'business group' have a definite legal connotation and the view expressed by the Legal Adviser of the Railways is not only incorrect but mala fide. It was also submitted that the view of the Legal Adviser of the Railways betrays a complete lack of legal knowledge.
7. We are of the view that it is not necessary for us to go into this aspect of the matter since what is sought to be challenged is a policy decision taken by the Railways to delete the words 'business group'. Unless it is shown to us that the deletion of these words is arbitrary or totally irrational, we would be loathe to interfere by adding words to the policy which have consciously been deleted by the Railways who are the framers of the policy.
8. The Railways have mentioned in their written submissions that catering policies have been in existence even prior to the 2004 Policy and the words 'business group' came to be inserted only in the 2004 Policy. It appears, therefore, that because of what was perceived by the Railways as uncertainty in the definition of the words 'business group', it was decided to delete these words from the 2005 Policy leaving intact the pith and substance of Clause 8 of the 2004 Policy.
9. Learned counsel for the Petitioners relied on Union of India and Anr. v. International Trading Co. and Anr. to contend that it is not as if governmental policy is inviolable 'Article 14 of the Constitution applies to governmental policy as well. Similarly, reliance was placed on State of Rajasthan and Ors. v. Lata Arun to argue that the Court can examine whether a policy decision is taken on a fair, rational and reasonable ground. While this is undoubtedly so, the Supreme Court has also cautioned that the Court does not have the expertise to correct an administrative decision. If a review of an administrative decision is permitted the Court will be substituting its own decision for that of the government, without the necessary expertise, and the decision of the Court may itself be fallible. Therefore, the Court merely reviews only the decision making process and exercises restraint in administrative action. [See Tata Cellular v. Union of India (1994) 6 SCC 651].
10. Looking at the matter from this point of view, it can hardly be said, and indeed no such contention was urged, that the decision making process of the Railways was faulty. They may have received faulty legal advice, but that is not enough reason to set aside a governmental policy. The question to be asked is: does the overwhelming public interest require interference. The answer must be in the negative, since we have not been shown any serious prejudice to the public interest by the deletion of the words 'business group' in the 2005 Policy. Significantly, the 2005 Policy does not dilute the ceiling on holdings and the open tender/bidding process remains transparent and intact, both requirements being in public interest.
11. It was contended by learned Counsel for the Petitioners that Respondent No. 4 lacks adequate credentials, is cornering business and is even otherwise acting contrary to Clause 8 of the 2005 Policy. If this is so, a case- by-case examination will have to be conducted and the writ jurisdiction of this Court is hardly the appropriate forum for this. The Supreme Court has cautioned that 'Public interest litigation is a weapon that has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest, an ugly private malice, vested interest and/or publicity-seeking is not lurking'. [See Dattaraj Nathuji Thaware v. State of Maharashtra and Ors. and Gurpal Singh v. State of Punjab and Ors. .
12. Keeping in mind the above principles laid down by the Supreme Court, we find no merit in the writ petition. Accordingly, the same is dismissed.
