Gauhati High Court
WP(C)/4506/2021 on 14 November, 2024
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/16
GAHC010141722021
2024:GAU-AS:11424
THE GAUHATI HIGH COURT
[THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH]
WRIT PETITION [C] NO. 4506/2021
Sri Sanju Dutta, S/o- Late Suresh Dutta,
R/o- H/No. 7, Bharksanagar Jyoti Path Baye
Lane - 3, Guwahati - 781018, Kamrup [M],
Assam.
..................Petitioner
-VERSUS-
1. The Union of India, Represented by the
Secretary to the Govt. of India, Ministry of
Railways, Rail Bhawan, New Delhi-
110001.
2. The Railway Board under the Ministry of
Railways, Rail Bhawan, New Delhi -
110001, represented by the Director
[Tourism and Catering].
3. The North East Frontier Railway, Maligaon,
Guwahati, Represented by its Chief
General Manager, Maligaon, Guwahati.
Page No. 2/16
4. The Principal Chief Commercial Manager,
N.F. Railway, Maligaon, Guwahati- 781011.
5. The Divisional Commercial Manager
[Commercial], N.F. Railway, Guwahati.
6. The Senior Station Superintendent
[Gazetted], Guwahati, Railway Station,
Guwahati.
...................Respondents
Advocates :
Petitioner : Mr. R. Dubey, Advocate.
Respondents : Mr. B. Sharma, Standing Counsel,
N.F. Railway
Date of Hearing : 12.11.2024 & 14.11.2024
Date of Judgment & Order : 14.11.2024
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER
By instituting the present writ petition under Article 226 of the Constitution of
India, the petitioner has sought to invoke the extra-ordinary and discretionary
jurisdiction of this Court to assail - [i] a Termination Notice dated 29.07.2021,
issued by the office of the Chief Commercial Manager, North-East Frontier
Railway, Maligaon, Guwahati; [ii] a Notice Inviting Tender [NIT] no. C-LMG-33-
2021 dated 09.08.2021, published by the respondent North-East Frontier [N.F.]
Railway; and [iii] a Vacation Notice dated 31.08.2021. By the Termination Notice
dated 29.07.2021, the petitioner's services as Commission Vender had been
terminated allegedly on the ground that his services were no longer required as
per the Catering Policy. By the NIT no. C-LMG-39-2021 dated 10.09.2021, the
respondent N.F. Railway invited e-Tenders from bidders for Catering Services at
General Minor Unit [GMU] no. GHYTS-7 located at Platform no. 4/5 between
Pillar no. 9-10 of Category A-1 Class for a period of five years. By the Vacation
Notice dated 02.09.2021, the petitioner was asked to vacate the departmental
stall located at Platform no. 4/5 between Pillar no. 9-10 of Guwahati Railway
Station within a period of ten days from the date of receipt of the Vacation
Notice in order to avoid complication at the time of handing over of the
departmental stall to the successful bidder.
2. The basis of such assailment for the petitioner is a Letter dated 22.03.2005,
issued by the Assistant Commercial Manager/Catering for the Chief Commercial
Manager.
3. It is the case of the petitioner that the family of the petitioner was running the
business as Commission Vendor from a departmental stall located at Platform
no. 4/5 between Pillar no. 9-10 of the Guwahati Railway Station since about the
year 1963, after entering into an arrangement with the respondent N.F. Railway
authorities. It has been stated that the father of the petitioner was appointed as
a Commission Vendor in the year 1963 and after being so appointed, the
petitioner's father was running the said stall as a Commission Vendor and on his
term being extended from time to time, he was running it till his death on
16.08.2004. By a Letter dated 22.03.2005, the petitioner had been informed to
the effect that the Competent Authority had accorded approval to transfer the
Vending Licence of the petitioner's father, Late Suresh Dutta as a Commission
Vendor for the departmental stall [tea stall] at Guwahati Railway Station under
the Departmental Catering Unit to his name with retrospective effect from
01.01.2005 to 30.06.2005, subject to the terms and conditions, mentioned
therein.
4. The petitioner's case is that the petitioner had put his best efforts to generate
maximum amount of revenue possible for the respondent N.F. Railway
authorities and to that and, he had made all sincere efforts to run the business
as Commission Vendor effectively and efficiently. It is the contention of the
petitioner that the petitioner was running it profitably without any complaint.
5. I have heard Mr. R. Dubey, learned counsel for the petitioner and Mr. B.
Sharma, learned Standing Counsel, N.F. Railway for all the respondents.
6. Mr. Dubey, learned counsel for the petitioner has contended that the petitioner
was running the business of Commission Vendor from the location at Platform
no. 4/5 between Pillar no. 9-10 of the Guwahati Railway Station on the strength
of the afore-stated Letter, that is, Letter dated 22.03.2005. The business was
run by the petitioner's family since last about six decades. Prior to 2005, the
petitioner was assisting his family as Commission Vendor in running the
departmental stall from the same location. Mr. Dubey has, thus, contended that
the petitioner was running the departmental stall since 2005 as a Commission
Vendor on his own and there was no complaint whatsoever as regards his
conduct and the business generated and commission earned by the petitioner
from the departmental stall as a Commission Vendor. As such, the actions on
the part of the respondent N.F. Railway authorities in deciding to terminate the
Commission Vendorship, first, by the Termination Notice dated 28.07.2021 and
thereafter, by directing the petitioner to vacate the departmental stall at
Platform no. 6/7 between the Pillar no. 3-4 vide the Vacation Notice dated
02.09.2021 are actions which are ex-facie arbitrary and unjust.
6.1. It is further submitted by Mr. Dubey that it is not open for the respondent N.F.
Railway authorities to float a tender for the said departmental stall and as such,
the NIT dated 09.08.2021 is liable to be set aside. Mr. Dubey has further
referred to the terms and conditions incorporated in the Letter dated 22.03.2005
and submitted that the impugned Termination Notice dated 29.07.2021 was,
however, withdrawn by the respondent N.F. Railway authorities and as on date,
the Commission Vendorship licence of the petitioner is subsisting. He has further
submitted that by the Vacation Notice dated 02.09.2021, the petitioner was
asked to vacate the departmental stall. Subsequently, during the pendency of
the writ petition, the petitioner had been removed from the departmental stall
and an alternative provision was made by making available to him another place
at the Guwahati Railway Station to relocate. It is further submitted by Mr. Dubey
that the location of the stall where he was asked to shift, is not conveniently
located so as to generate same kind of business and to earn similar amount
commission for the petitioner, as had been done by him from the previous
departmental stall, and the same would create a dent in the earnings of the
petitioner as a Commission Vendor and consequently, in the livelihood of the
petitioner. It is his contention that the respondent N.F. Railway authorities ought
to have provided him with a stall in a location which has a possibility of
generating similar business and to earn proportionate commission, which would
not be to the detriment of the petitioner.
6.2. Mr. Dubey has also referred to the Catering Policy 2005, the Catering Policy
2010 and the Catering Policy 2017, formulated by the Railway Board, as well as
a decision of the Hon'ble Supreme Court of India in Senior Divisional
Commercial Manager, South Central Railways and others vs. S.C.R. Caterers, Dry
Fruits, Fruit Juice Stalls Welfare Association and another, [2016] 3 SCC 582, to
support his contention that the respondent N.F. Railway authorities could not
have taken actions like termination vide Termination Notice dated 28.07.2021;
and issuance of the Vacation Notice dated 29.07.2021, in the given facts and
circumstances. Mr. Dubey has further referred to a decision of the Hon'ble
Supreme Court of India in Union of India and others vs. Munshi Ram, [2022] 8
SCC 392, to contend that it was incumbent on the part of the respondent N.F.
Railway authorities to inform the petitioner that he could be extended the
benefit of absorption. He has submitted that in the said case, the case of
Commission Vendors working in different Divisions/Zones in Railways were
considered for absorption.
7. Mr. Sharma, learned Standing Counsel, N.F. Railway has submitted that there
used to be three Commission Vendors at Guwahati Railway Station at one time.
The predecessors of the petitioner and the petitioner were one of the three such
Commission Vendors. The other two Commission Vendors were M/s Padmaraj
RJ and M/s Khokan Dey respectively. The case of the petitioner herein is
similarly situated with M/s Khokan Dey and less favourably than M/s Padmaraj
RJ and the issues relating to rights of a Commission Vendor like the petitioner
has already been adjudicated in a writ petition, W.P.[C] no. 4430/2021 [ Sri
Padmaraj RJ vs. The Union of India and others], decided on 12.12.2023. It is his
contention that out of the three Commission Vendors, only M/s Padmaraj RJ had
entered into an agreement with the respondent N.F. Railway authorities. In so
far as the petitioner is concerned, the petitioner was running the business as
Commission Vendor from the departmental stall at Platform no. 4/5 between
Pillar no. 9-10 on the strength of the Letter dated 22.03.2005, which provided
for termination on any date without assigning any reason or without any prior
notice. The status of the petitioner's Commission Vendorship is no different from
the Commission Vendorship of M/s Padmaraj RJ and the matter of Vendorship
Licence of M/s Padmaraj RJ has been decided by the Judgment and Order dated
12.12.2023 rendered in W.P.[C] no. 4430/2024 by not interfering with the
decision of the N.F. Railway authorities to relocate M/s Padmaraj RJ.
7.1. He has further submitted that the relationship of agency between a principal
and an agent are guided by the provisions of the Indian Contract Act and an
agent including a Commission Agent, has to act as per the direction of the
principal. The petitioner herein is a none but a Commission Agent under a
principal, which in the instant case is the respondent N.F. Railway. It is his
further contention that running the business as a Commission Agent in a
departmental stall would not create any right in favour of the petitioner to claim
that he should be allowed to run his business as a Commission Vendor from only
the departmental stall, located at Platform no. 4/5 between Pillar no. 9-10 of the
Guwahati Railway Station. It is at the discretion of the respondent N.F. Railway
as the Principal to relocate him to another location, that too, if any such a
location is available to be relocated and it is also permissible for the respondent
N.F. Railway authorities to terminate the Commission Vendorship of the
petitioner without assigning any reason or at any time.
7.2. Mr. Sharma has further contended that by the NIT dated 09.08.2021, the
respondent N.F. Railway authorities had taken a decision to invite e-Tenders
from eligible bidders for provisioning of catering services from General Minor
Unit [GMU] no. GHYTS-7 at Platform no. 4/5 between Pillar no. 9-10, earlier
used to be operated as a departmental stall. He has further submitted that one
of the reasons behind publication of the NIT is to generate more revenue for the
respondent Railways. He has canvassed that the departmental stall located at
Platform no. 4/5 between Pillar no. 9-10 wherefrom the petitioner was running
the business, belongs entirely to the respondent N.F. Railway and the petitioner
has no right in connection with the said stall. When the role of the petitioner is
limited to earning commission only, the decision to award the contract of
catering services at the newly named General Minor Unit [GMU] no. GHYTS-7 at
Platform no. 4/5 between Pillar no. 9-10 of Guwahati Railway Station cannot be
questioned by the petitioner. As such, the challenge to the NIT dated
09.08.2021 is not maintainable.
7.3. Mr. Sharma has canvassed that during the pendency of this writ petition, an
issue had arisen as to whether it would be possible to relocate the petitioner-
Commission Vendor to an alternate location in the same platform or in other
platforms of the Guwahati Railway Station. On the said issue, he had earlier
taken written instructions in the year 2022 from the respondent N.F. Railway
authorities. By a Letter bearing no. C/ACM/GHY/Departmental Stalls/2022 dated
18.08.2022, instructions were conveyed to the effect that two nos. of alternative
locations had been identified by the respondent N.F. Railway authorities in
Guwahati Railway Station for running two departmental catering units
respectively. However, at that time, construction works were being carried out
in those two locations. Mr. Sharma has submitted that subsequently, those stalls
at the alternate locations were made ready and the petitioner was offered one
of the two locations. But, it is the petitioner, who had declined to relocate
himself in one of the said two alternative stalls on the pretext that the possibility
of generating similar kind of revenue and earning equal commission would not
be possible therefrom. Mr. Sharma has further submitted that realizing the
Termination Letter dated 28.07.2021 bearing no. C/56/CD/Departmental
Catg/2021/Pt-1 was inadvertently issued the same was recalled immediately by
another Letter of even no. C/56/CD/Departmental Catg/2021/pt-1 dated
29.07.2021. It is further submitted by him, as adverted to in the affidavit-in-
opposition, that the departmental tea stall was running at a loss and it was one
of the main reasons for the Railway Administration to take a conscious decision
that the said stall would be converted to a General Minor Unit [GMU] after
earmarking it as per the policy of the Railways and to settle it in favour of the
successful bidder to generate more revenue therefrom on the basis of a
competitive bidding process and it was in that context, NIT dated 09.08.2021
was published to award the GMU to the successful bidder. Mr. Sharma has also
submitted that it is not a pleaded case of the petitioner that he was entitled to
be considered for absorption.
8. I have given due consideration to the rival submissions advanced by the learned
counsel for the parties. I have perused the materials brought on record by the
parties through their pleadings and have also gone through the decisions cited
at the Bar.
9. It is not in dispute that the inter-se arrangement between the Railway
Administration on one hand and the petitioner as a Commission Vendor on the
other hand, is similar to that of a principal and an agent. As per such inter-se
relationship of principal - agent, the Catering Unit Department of the Railway
Administration is to supply to the Commission Vendor the articles to be sold by
him and the Commission Vendor is to sell the same to the public traveling by
trains at a specified place or specified places and during the specified hours of
day/night at the rates fixed by the Railway Administration. The Commission
Vendors are not to sell any other articles or goods to the public travelling by the
trains, save and except the articles supplied to him by the Catering Unit
Department of the Railway Administration. The tariff rates of articles are to be
predominantly exhibited by the Commission Vendor at the place or places from
where sales are accepted. It is the Railway Administration who has undertaken
to supply the requisite equipments to the Commission Vendor so as to enable
the Commission Vendor to discharge his duties and functions satisfactorily and
efficiently and the Commission Vendor is to be held responsible for any damage
due to his negligence.
10. In the Letter dated 22.03.2005, it was specifically mentioned that the petitioner
as a Commission Vendor would be given commission over the sales on eatable
items at the prescribed rates circulated by the Railway Administration. It was
further provided that the petitioner would be directly under control and
supervision of a Designated Official of the Railway Administration and it would
be open for the officials of the Railway Administration to make inspection and
checking. It was laid down that the sales proceeds had to be deposited to the
Designated Official of the Departmental Catering Unit at Guwahati. It was
further made clear that the petitioner as a Commission Vendor would not derive
any benefit like absorption as a regular employee and his continuance as a
Commission Vendor would not establish any claim for further engagement in the
Railway. It was further set forth that any complaint from the members of the
public or staff would result in termination of his engagement as a Commission
Vendor and the Commission Vendor Licence would be terminated on any date
without assigning any reason or without any prior notice.
11. It is not in dispute that the stall located at Platform no. 4/5 between Pillar no. 9-
10 of the Gauhati Railway Station was a property and remains a property of the
respondent N.F. Railway. As a Commission Vendor, the petitioner was allowed
to run the departmental stall from the said location only and only on commission
basis without any other rights on the Railway property, that is, the departmental
stall at Platform no. 4/5 between Pillar no. 9-10 of the Guwahati Railway
Station. The inter-se arrangement between the parties herein which is on
commission basis, has clearly made the respondent N.F. Railway the principal
and the petitioner an agent, that is, Commission Vendor who is entrusted the
specific task to run the stall and earn commission.
12. In the writ petition, W.P.[C] no. 4430/2021 [M/s Padmaraj RJ vs. Union of
India], there existed a concluded agreement, which remained valid for a period
of five years from the date of its execution, with a provision for extension for a
further period on mutual contact or consent, subject to satisfactory performance
based on the rules, provisions, guidelines, instructions and directives of the
Railway prevailing at that point of time. In Clause 5 of the said agreement in
case of M/s Padmaraj RJ, it was provided that the Railway Administration had
reserved the right to introduce the rotational system of vending and the
Commission Vendor would raise no objection and would refrain from raising any
objection if the duties, place of work, etc. was changed by the Administration.
The Commission Vendor was required to perform his duties in the manner
stipulated by the Administration. The said clause further provided that the
Administration would have absolute right to assign any other additional
duty/assignment as the Administration would consider necessary in the event of
any emergency. The Court found that the inter-se arrangement between the
parties as per the agreement was that of the Principal, that is, the Railway
Administration and the Commission Vendor, that is, M/s Padmaraj RJ.
12.1. Such arrangement which existed between a Principal and a Commission Agent
came to be considered and found by this Court in W.P.[C] no. 4430/2021 [M/s
Padmaraj RJ vs. Union of India] in the following manner :-
14. ...... As per Section 182 of the Indian Contract Act, 1872, an agent is
a person employed to do any act for another, or to represent another
in dealings with third person and the person for whom such act is
done or who is so represented, is called the principal. Section 201 of
the Indian Contract Act, 1872 has provided for termination of agency
and as per Section 201 : 'Termination of Agency', an agency is
terminated by the principal revoking his authority; or by the agent
renouncing the business of the agency; or by the business of the
agency being completed; or by either the principal or agent dying or
becoming of unsound mind; or by the principal being adjudicated an
insolvent under the provisions of any Act for the time being in force
for the relief of insolvent debtors. The provisions contained in Section
202 have prescribed that where the agent has himself an interest in
the property which forms the subject-matter of the agency, the agency
cannot, in the absence of an express contract, be terminated to the
prejudice of such interest. The principal in terms of the Section 203,
can, save as is otherwise provided in Section 202, revoke the authority
given to his agent at any time before the authority has been exercised
so as to bind the principal. As per Section 205 where there is an
express or implied contract that the agency should be continued for
any period of time, the principal must make compensation to the
agent, or the agent to the principal, as the case may be, for any
previous revocation or renunciation of the agency without sufficient
cause. Section 206 has provided that reasonable notice must be given
of such revocation or renunciation, otherwise the damage thereby
resulting to the principal or the agent, as the case may be, must be
made good to the one by the other.
15. The provisions of Section 201, Section 202 and Section 205 of the
Indian Contract Act, 1872 came up for consideration by the Hon'ble
Supreme Court of India in Southern Roadways Ltd. Madurai vs. S.M.
Krishnan, reported in [1989] 4 SCC 603, where the appellant as the
principal, engaged the respondent as a commission agent for the
purpose of carrying out the business of the appellant. The commission
agent was provided with a godown to act as a commission agent of the
appellant. It has been held in S.M. Krishnan [supra] to the effect that
the principal has right to carry on business as usual after the removal
of his agent. The courts would rarely be willing to imply a term
fettering such freedom of the principal unless there is some
agreement to the contrary. The agreement therein between the parties
found to have not conferred any right on the commission agent -
respondent to continue in possession of the suit premises even after
termination of agency nor does it found to have preserved any right
for him to interfere with the business of the appellant. On the
contrary, it had been found that the commission agent - respondent
could be removed at any time without notice and after removal, the
appellant could carry on its business as usual. It has been held that
revocation of agency by the principal immediately terminates the
agent's actual authority to act for the principal unless the agent's
authority is coupled with an interest as envisaged under Section 202
of the Indian Contract Act. When agency is revoked, the agent could
claim compensation if his case falls under Section 205 or could
exercise a lien on the principal's property under Section 221 of the
Indian Contract Act. The agent's lien on principal's property
recognized under Section 221 could be exercised only when there is
no agreement inconsistent with the lien. It has been held that under
the terms of the contract of agency, the agent holds the principal's
property only on behalf of the principal and he acquires no interest
for himself in such property. The agent cannot be held to be holding
possession to deny principal's title to property nor he can convert it
into any other kind or use as agent's possession is the possession of
the principal for all purposes and the agent has no possession of his
own as his possession is called a caretaker's possession is the
possession of the principal.
13. In the case in hand, it has emerged indubitably that the petitioner herein is only
a Commission Vendor simpliciter without any kind of interest in the property in
question, that is, the departmental stall located at Platform no. 4/5 between
Pillar no. 9-10 of the Guwahati Railway Station. From the documents referred
hereinabove and the case papers, it has clearly emerged that by the impugned
Vacation Notice, the petitioner was asked to vacate the department stall. It has
further emerged that the petitioner has been granted an opportunity to relocate
himself to one of the two alternative locations identified by the respondent
Railway authorities to run his business as a Commission Vendor.
14. From the Tender Document of the NIT dated 09.08.2021, it has emerged that
the respondent N.F. Railway authorities had fixed the reserve price of the
General Minor Unit [GMU] @ Rs. 9,00,000/- per annum and the successful
bidder would be allotted licence to operate the GMU for a period of five years. It
is not a projected case of a petitioner that the revenue generated by him for the
respondent N.F. Railway as Commission Vendor is comparable to the reserve
price, to be earned by the respondent Railway authorities by allotting the GMU
at the same place. In the year 2017, the Railway Board, Ministry of Railway,
Government of India [GoI], with the objective to provide quality food to the
passengers of trains and to extend better catering services on trains, had
envisaged the Catering Policy - 2017 in supersession of earlier Catering Policies.
It was in pursuant to the Catering Policy - 2017, the stall located Platform no.
4/5 between Pillar no. 9-10 of the Guwahati Railway Station has been
categorized as a General Minor Unit [GMU] as in the meantime, the Guwahati
Railway Station has also been categorized as A-1 Class Railway Station. The stall
is undoubtedly a property of the respondent N.F. Railway. The reasons assigned
by the respondent N.F. Railway authorities for initiating the tender process to
award the GMU for provisioning of catering services are primarily for better
interests of the public, especially the railway passenger and also to maximize
revenue as per the Catering Policy - 2017. The decision of the N.F. Railway
authorities to initiate the tender process and to award the GMU by entering into
an arrangement for a period of five years in pursuance of the said Policy and to
maximize the revenue for it and to extend better services to the public cannot
be said to be a decision taken against the public interest. Even otherwise, the
courts exercising the power of judicial review under Article 226 of the
Constitution of India does not exercise any appellate power over such kind of
decision of an executive authority.
15. It has been brought to the attention of the Court that after evaluation of the
bids received in response to NIT no. C-LMG-33-2021 dated 09.08.2021, the
successful bidder was selected and after selection, a Letter of Acceptance [LoA]
for awarding the General Minor Unit [GMU] GHYTS no. 7 [Tea Stall] at Platform
no. 4/5 between Pillar no. 9-10 of the Guwahati Railway Station was issued in
favour of the selected bidder, M/s S.S. Enterprise on 17.03.2022 asking him to
complete the formalities, mentioned therein, and to execute the Contract-
Agreement. The selected bidder was also asked to deposit a licence fee of Rs.
9,96,999/- for the first year. After completion of the necessary formalities, a
Contract-Agreement was executed on 06.02.2023 between the N.F. Railway and
the selected bidder, whereby, the selected bidder was awarded the work of
Catering Services at the General Minor Unit [GMU] GHYTS no. 7 [Tea Stall] at
Platform no. 4/5 between Pillar no. 9-10 of the Guwahati Railway Station for a
period of five years with effect from 02.07.2022 to 01.07.2027 at a Contract
Value of Rs. 51,84,395/-. It has been informed that after execution of the
Contract-Agreement dated 06.02.2023, the said selected bidder has been
extending Catering Services from the General Minor Unit [GMU] GHYTS no. 7
[Tea Stall], located at Platform no. 4/5 between Pillar no. 9-10 of the Guwahati
Railway Station.
16. A finding has already been reached that the case in hand is not one where the
petitioner has got a legal right to act as a Commission Vendor of the respondent
N.F. Railway authorities from a particular departmental stall. Therefore, the legal
issue as regards the right of the petitioner to continue his business as a
Commission Vendor from the departmental stall located at Platform no. 4/5
between Pillar no. 9-10 of the Guwahati Railway Station has been found to be in
the negative against the petitioner as the petitioner as Commission Vendor has
no legal right to assert that he as such Commission Agent, can demand to run
that business from the particular departmental stall.
17. It is relevant to mention that the decision in Senior Divisional Commercial
Manager [supra] was rendered in connection with allotment of State largesse to
provide entrepreneurs, particularly small-scale subsistence entrepreneurs. In the
said decision, the Hon'ble Supreme Court has taken into consideration the right
to livelihood of weaker section of the society and it is in that context, it has
been held that the approach of the State should be fair and reasonable so as to
protect the right to means of livelihood and freedom of occupation of small
business units which completely depend upon earnings from their petty
business. The ratio of decision of Senior Divisional Commercial Manager
[supra] is found to be of no assistance to the case of the petitioner.
Consequently, this Court is of the considered view that it is not a case where
infringement of the rights to be protected under Article 14 and Article 21 of the
Constitution of India would be attracted. In any view of the matter, it is a case
where private interest of the petitioner is to give way to better administration of
the Railway properties which include the interest of maximization of the revenue
and extending better services including quality food, to the passengers. The
Hon'ble Supreme Court in Vasantkumar Radhakisan Vora [Dead] by his Legal
Heirs vs. Board of Trustees of the Port of Bombay and another, [1991] 1 SCC 761,
taking note of the legal proposition, has observed in para 20 to the effect that 'it
is well settled legal proposition that the private interest would always yield place
to the public interest'. The fact situation obtaining in the case in hand have
already been discussed above and from the observations made and the reasons
assigned, it is already found that the petitioner has no legal right to assert that
he can continue to act as a Commission Agent from the departmental stall
located at Platform no. 4/5 between Pillar no. 9-10 of the Guwahati Railway
Station and to assail the decision of the respondent N.F. Railway authorities to
allot the said stall on license basis pursuant to a competitive process in the
interest of better administration and for the purpose of earning higher revenue.
18. As regards Mr. Dubey's contention that the case of the petitioner could have
been given consideration in the light of the observations and directions given in
Munshi Ram [supra], the same after due consideration, is found not acceptable.
It is settled that even if a point which is a point of law is sought to be raised,
the same is required to be substantiated by facts and establish such facts by all
supporting materials which must appear from the writ petition. If the facts are
not pleaded or the materials in support of such facts are not annexed to the writ
petition, the Court should refrain from entertaining such point. The point raised
as regards absorption has not been taken in the writ petition and it has been
raised only in argument. A point raised during the course of argument without
any foundation in the writ petition is not to be entertained.
19. In view of the observations made, the findings recorded and the reasons
assigned above, this Court is of the unhesitant view that the challenge to the
NIT no. C-LMG-39-2021 dated 09.08.2021 and the Vacation Notice dated
02.09.2021 would fail. Resultantly, the writ petition suffers from lack of merits
and is, therefore, liable to be dismissed. It is accordingly dismissed. There shall,
however, be no order as to cost.
20. Before parting with, it is relevant to give a consideration to the plea raised by
the parties as regards relocation of the petitioner. A submission has been
advanced by the learned counsel for the petitioner that the relocation of the
petitioner from Platform no. 4/5 between Pillar no. 9-10 to any one of the two
alternative locations, as indicated by the Letter dated 18.08.2022, is likely to
bring serious effect in the generation of revenue and consequently, his earnings
of commission. This Court likes to observe that liberty stands reserved to the
petitioner to represent such causes before the respondent N.F. Railway
authorities and in the event of preferring any representation by the petitioner
highlighting such causes before the respondent N.F. Railway authorities, the
respondent N.F. Railway authorities should give a fair and just consideration to
such representation by taking into purview the inter-se arrangement, which
existed between the petitioner/family of the petitioner as a Commission Vendor
with the respondent N.F. Railway authorities since the year 1961. It is expected
that the respondent N.F. Railway authorities would consider the matter of
relocation of the petitioner as a Commission Vendor by taking into purview the
advantages and the disadvantages likely to be faced by the petitioner from all
standpoints including the aspects of generating sufficient commission for his
livelihood.
JUDGE
Comparing Assistant
