Subrata Ghosh vs The Union Of India And 6 Ors
2023 Latest Caselaw 537 Gua

                                                                Page No.# 1/6

GAHC010030672023




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/819/2023

         SUBRATA GHOSH
         S/O LATE BALARAM GHOSH, NEAR OLD HAFLONG RAILWAY STATION,
         P.O.-NEW HAFLONG, P.S.-HAFLONG, DIST-DIMA HASAO, ASSAM, PIN-
         788819, REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE, SANJIB
         DAS, AGED ABOUT 47 YEARS



         VERSUS

         THE UNION OF INDIA AND 6 ORS.
         THROUGH THE SECRETARY, MINISTRY OF RAILWAYS, RAIL BHAWAN,
         RAISINA ROAD, NEW DELHI

         2:THE GENERAL MANAGER
          NORTH-EAST FRONTIER RAILWAY
          MALIGAON
          GAUHATI-781011

         3:THE CHIEF COMMERCIAL MANAGER (PM AND CATERING)
          NORTH-EAST FRONTIER RAILWAY
          MALIGAON
          GAUHATI-781011

         4:THE DIVISIONAL COMMERCIAL MANAGER
          N.F. RAILWAY
          LUMDING
         ASSAM-782447

         5:THE DIVISIONAL RAILWAY MANAGAER (CATERING)
          N.F. RAILWAY
          LUMDING
         ASSAM-782447
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            6:THE STATION SUPERINTENDENT
             NEW HAFLONG STATION
             DIMA HASAO DISTRICT
             HAFLONG-788819

            7:THE OFFICER-IN-CHARGE
             RAILWAY PROTECTION FORCE
             NEW HAFLONG RAILWAY STATION
             DIMA HASAO DISTRICT
             HAFLONG-78881

Advocate for the Petitioner   : MR. P K GOSWAMI

Advocate for the Respondent : DY.S.G.I.




                                   BEFORE
                  HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

                                          ORDER

14.02.2023

Heard Shri P.K. Goswami, learned Senior Counsel assisted by Ms. B. Choudhury, learned counsel for the petitioner.

The grievance of the petitioner is the act of the Railway Authorities in putting a lock in the Refreshment Room, New Haflong Railway Station which was permitted to be run by the petitioner.

It appears that a matter pertaining to running of small businesses by vendors was resolved by the Hon'ble Supreme Court vide a judgment dated 29.01.2016 in the case of Senior Divisional Commercial Manager South Central Railways and Ors. vs. S.C.R. Caterers, Dry Fruits, Fruit Juice Stalls Welfare Association & Anr reported in 2016 3 SCC 582. In paragraph 34 of the said judgment, the following have been observed.

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"34. For the reasons stated supra, this Court cannot interfere with the impugned judgment and order of the High Court. The civil appeals are dismissed. The order dated 11.04.2014 granting stay of the impugned order shall stand vacated. We, however, make it clear that only those licenses may be eligible for renewal of their licences who can declare on affidavit that they do not have the licence of more than one shop or kiosk in their name or benami licence at the railway stations with periodical reasonable increase of license fee. All pending applications are disposed of."

The petitioner had to approach this Court on an earlier occasion by filing WP(C)/ 6385/2016 which was disposed of vide order dated 20.01.2021. This Court while disposing the aforesaid writ petition had made the following observation:

"From the arguments advanced by the learned counsel for the parties,

it is apparent that both the parties are claiming a right to operate the refreshment room in the New Haflong Railway Station. However, from the materials available on record, it is not possible for this Court to conclusively decide as to which of the contesting parties has the right to operate the refreshment room on the basis of a valid license. At the same time, this Court, cannot also ignore the fact that the petitioner herein is admittedly operating a "Tea Stall" from the New Haflong Railway Station on being permitted by the Railway authorities and, therefore if the respondents take a decision to evict him from the said refreshment room even for a valid reason, the same has to be done only after following the due process of law.

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Situated thus, I find sufficient force in the submission of Mr. Choudhury that his client cannot be evicted from the refreshment room without following the due process of law.

By referring to the communication dated 13.04.2017 issue by the Station Master (Annexure-5 to the writ petition), Mr. Choudhury has argued that although license originally issued to his client had not been renewed, yet, since sufficient space is available in the railway station, having regard to the backdrop of the case and the long history of association of both the parties in running the refreshment rooms in the Haflong Station, an attempt should be made by the authorities to consider the possibility of mutual existence of both the parties inside the Railway Platform. The said statement of Mr. Choudhury appears to be very attractive but in the absence of better particulars, no specific direction can be issued by this Court to the respondent authorities on such behalf.

Having regard to the limited nature of the grievance expressed by the petitioner, I dispose of the writ petition, without expressing any opinion on the claims and counter claims of the contesting parties, by providing that the respondent authorities shall not evict the writ petitioner from the refreshment room under his occupation, without following the due process of law. If, however, the authorities are of the view that in past experiences and the services of the petitioner can be and needs to be utilized for the benefit of the passengers commuting through the New Haflong Railway Station, then in that event, it would be open for them to explore the possibilities of assigning designated spaces to both the parties in the New Haflong Railway Station, subject to payment of proper license fee. A decision in this regard be taken by the respondent no. 4 as expeditiously Page No.# 5/6

as possible."

The learned Senior Counsel for the petitioner has contended that without any notice or opportunity, the lock has been affixed on the door of the refreshment room, a photograph of which has been enclosed to the writ petition as Annexure-A.

It is submitted that in view of the clear direction of the Hon'ble Supreme Court in the case of S.C.R. Caterers (supra) such action is per se illegal.

On the other hand, Shri K. Gogoi, learned CGC appearing for the Railways has submitted that the judgment of the Hon'ble Supreme Court is distinguishable inasmuch as the said judgment pertains to the policy of 2010 whereas in the instant case, there is a change in policy and presently the matters were covered by a policy of 2017. He submits that under the present policy there is a decision to go for a tender process for allotment of similar amenities on the Railway platforms.

Issue notice of motion, returnable on 17.03.2023.

Shri Gogoi, the learned C.G.C. accepts notice on behalf of all the respondents.

Extra copies be served upon Shri Gogoi, the learned C.G.C. by tomorrow, i.e., 15.02.2023.

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Heard the learned counsel on the interim prayer.

Considering the fact that the act of putting the lock was not preceded by any notice or opportunity, this Court is of the prima facie view that there is gross violation of the principles of natural justice.

Further, the balance of convenience would be in favour of having the refreshment room opened, till such time, the matter is resolved.

Accordingly, it is directed that the lock put on the refreshment room in the New Haflong Railway Station be opened forthwith and the petitioner be allowed to run the same.

The aforesaid direction however would be subject to the instructions / averments that would be made by the Railways which would be considered by this Court.

JUDGE

Comparing Assistant