Jharkhand High Court
Smt. Kalawati Devi vs Union Of India Through General Manager on 3 September, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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W.P.(C) No. 3905 of 2024
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Smt. Kalawati Devi, aged about 71 years, w/o Late Dipti Singh,
resident of Dwarikapuri, Board No. 3, Power House Road No.3,
Chutia, P.O. + P.S. Chutia, District-Ranchi.
... ... Petitioner
Versus
1. Union of India through General Manager, South Eastern Railway,
Garden Rich, P.O. + P.S. Garden Rich, District-Kolkata-700043.
2. Chief Commercial Manager, South Eastern Railway, Garden Rich, P.O.
+ P.S. Garden Rich, District-Kolkata-700043.
3. Chief Commercial Manager, Catering, South Eastern Railway, Strained
Road, P.O. + G.P.O.-Kolkata, P.S. Strained Road, Kolkata, District-
Kolkata-700001.
4. Senior Divisional Commercial Manager, South Eastern Railway,
Ranchi Division, P.O. Hatia Railway Colony, P.S. Jagannathpur,
District-Ranchi.
5. Divisional Railway Manager, South Eastern Railway, P.O. Hatia
Railway Colony, P.S. Jagannathpur, District-Ranchi.
.... .... Respondents
CORAM: HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUN KUMAR RAI
.....
For the Appellant : Mr. Binod Singh, Advocate
For the Respondents : Mr. Anil Kumar, A.S.G.I.
Ms. Chandana Kumari, AC to A.S.G.I.
Mr. Ravi Prakash, C.G.C.
.....
C.A.V. on 29th August, 2024 Pronounced on 03/09/2024
Per Sujit Narayan Prasad, A.C.J.
Prayer:
1. The instant writ petition has been filed under Article 226 of the
Constitution of India for issuance of writ of certiorari for quashing of the
order dated 12.06.2024 passed by the respondent no.5, Divisional Railway
Manager, Ranchi, whereby and whereunder, the claim of the petitioner for
renewal of the license of the South Indian food Stall known as
"MaaKaAashirvad" at Platform No.1 at Ranchi Railway Station, has been
rejected while dealing with the representation dated 23.03.2024 filed by the
petitioner in pursuance of the order dated 14.03.2024 passed in W.P.(C)
No. 4019 of 2018. Further direction has been sought for upon the
respondent concerned to renew the license of stall of the petitioner, Catalog
No.RNCSALON5 for running the South Indian Stall known as
"MaaKaAashirvad" at Platform No.1 at Ranchi Railway Station or in
alternative to allot the same place/same food stall to the petitioner.
Facts:
2. The brief facts of the case as per the pleading made in the writ petition
which requires to be enumerated herein, reads as under:
The husband of the Petitioner namely, Dipti Singh, was allotted
South Indian food Stall at Platform No.1 at Ranchi Railway Station in the
year 1994, validity of the same was from 21.12.1994 to 28.12.1997 and
before expiry of the license of aforesaid food stall was renewed for five
years again i.e. up to 2002, but before the date of expiry of the license, the
husband of the petitioner namely, Dipti Singh, died on 15.11.2000. The
License of said Catering Unit was transferred in favor of the Petitioner
being the Legal Heir and widow wife of the deceased by the Railway
authority. The License was further renewed from 21.12.2002-20.12.2007,
by Adra Division, on the basis of her satisfactory performance and after
being satisfied that petitioner has paid all the dues.
Further, renewal of License of the petitioner was made for
further 03 Years, for the period from 21.01.2012-20.01.2015, as per
Catering Policy 2010, which came into effect on 21.07.2010.
It is the case of the writ petitioner that the license of the Catering
Stall of the petitioner was to be renewed for further 03 Years, as per
Catering Policy 2010 but, the Respondents have taken the Thumb
impression of the Petitioner on a written agreement and accordingly, the
extension of license for 90 Days for the period from 21.04.2015-
20.07.2015, was extended. Although, the Respondents were supposed to
renew the License for further 03 Years, but, the Respondents have not
informed the Petitioner for renewal of License of the Stall for 90 days,
moreover, there is no provision for extension of license only for 90 days as
the clause 16.2.1 of Catering Policy, 2010, talks about renewal of license
every 03 years.
Thereafter, vide letter dated 17.07.2015 issued by Senior D.C.M.,
Ranchi to Station Master, Ranchi Railway Station, directing therein, to take
steps to vacate the food stall of the Petitioner and all of sudden, on
21.07.2015, the Respondent No.5 alongwith the members of Railway
Protection Force came to the food stall and ousted the Petitioner
It is also the case of the writ petitioner that the respondents have
floated tender at least five times, at the cost of public exchequer, but till
date it has not been allotted to any one and the place/food stall is still
vacant and also the floating of the tender is against the Catering Policy,
2010 and other catering policy prevalent at the relevant time but on protest,
the said tender process was dropped.
Thereafter, the petitioner again made application to the
Respondents to renew her license in the light of the direction of the Apex
court given vide order dated 29.01.2016 in the case of Senior Divisional
Commercial Manager, South Central Railway & Ors. Vs. S.C.R. Caterers
& Anr., (2016) 3 SCC 582.
Thereafter, the Divisional Railway Manager vide letter dated
24.4.2017 had written letter to the Chief Commercial Manager, South East
Railway for implementation of Commercial Circular No. 22/2017 in the
case of the Petitioner stating therein that the provisions contained in said
circular are implementable in the case of Smt. Kalawati Devi (petitioner
herein) as she has approached for renewal of License declaring that she has
no other Catering Unit over Indian Railways.
The petitioner made several representations to the Respondents
to comply with the order of the Apex Court as well direction issued by the
Chief Commercial Manager vide Letter dated 20.6.2017 then, the
Divisional Commercial Manager, South Eastern, Ranchi Railway sent
Letter dated 15.12.2017.
The petitioner filed Writ Petition being W.P.(C) No.4019/2018
before this Court praying therein for issuance of the direction upon the
Respondents to renew the License of the Petitioner for running South
Indian Stall, known as "MaaKaAashirvad" at Platform No.1 at Ranchi
Railway Station, which is being run by the Petitioner since 1994, wherein,
the learned writ court directed the petitioner to submit a fresh
representation for allotment of South Indian Stall at Platform No. 1, at
Ranchi Railway Station and if such representation is submitted within two
weeks, the Respondents No.5 is directed to consider the same in
accordance with the law within three months from the date of the
receipt/production of the said representation.
The petitioner, in compliance of the order dated 14.03.2024,
made representation dated 23.03.2024, requesting therein to renew License
of Catalogue No.RNCSALON5, for running South Indian Stall, known as
"MaaKaAashirvad" at Platform No.1 at Ranchi Railway Station.
The respondent No.5 vide order dated 12.06.2024, in response to
representation dated 23.03.2024 made by the petitioner, has negated the
claim of the writ petitioner against which the present writ petition has been
filed.
3. It is evident from the factual aspect that the petitioner is the widow of the
original allottee of the South Indian food Stall situated at Platform No.1 at
Ranchi Railway station. The license which originally was granted in the
year 1994 was extended time to time. The husband of the petitioner had
died on 15.11.2000 and thereafter, the aforesaid food stall was transferred
in the name of the writ petitioner vide order no. 104 dated 12.01.2001 by
the Railway authority as per the Catering Policy, 2000 subject to
verification of claim. The arrears of license fee have also been paid by the
petitioner as was directed. The license was renewed further from
21.12.2002-20.12.2007. The Ranchi division of South Eastern Railway was
formed w.e.f. 01.04.2003 and in pursuance of the Catering Policy as was
issued by the Railway Board, the IRCTC took over the catering unit of
Ranchi Division.
The renewal for the license was made by the petitioner for
further three years for the period from 21.01.2012-20.01.2015 which was
as per the Catering Policy of 2010 but it was not renewed for three years
rather it was renewed for 90 days for the period s from 21.04.2015-
20.07.2015. The said extension was made by taking thumb impression of
the petitioner which was given in good faith, however, the respondent were
supposed to renew the license for further three years but it was not renewed
which led the petitioner to prefer a writ petition before this Court being
W.P.(C) No. 4019 of 2018 seeking a direction for renewal of the license.
The learned Single Judge of this court while disposing of the writ
petition has given liberty to the petitioner to approach before the concerned
authority who in turn was directed to take appropriate decision within a
reasonable period.
In pursuance thereof, the petitioner made representation based
upon which the ratio laid down by the Hon'ble Apex Court in Senior
Divisional Commercial Manager, South Central Railway & Ors. Vs.
S.C.R. Caterers & Anr. (supra) but the authority has rejected the claim by
passing an order on 12.06.2024 on the ground that the said claim is not
permissible since the case of the petitioner is not coming within the ambit
of Circular No. 22/2017 since on the day of its issuance, the petitioner has
ceased to be the licensee.
The aforesaid order has been questioned by filing the present
writ petition.
Argument on behalf of the Writ Petitioner:
4. Learned counsel for the writ petitioner has taken the ground that the
impugned order rejecting the claim of the writ petitioner by assigning the
reason that the case of the petitioner is not coming under the ambit of
Circular No. 22/2017 cannot be said to be just and proper reason in view of
the issue already been decided by the Hon'ble Apex Court in Senior
Divisional Commercial Manager, South Central Railway & Ors. Vs.
S.C.R. Caterers & Anr. (supra) wherein the Hon'ble Apex Court has been
pleased to held that the propositions of the Catering Policy, 2010 are
applicable to the respondents concerned.
5. It has been submitted that the Hon'ble Apex Court in the said judgment has
come to such conclusion in view of the provision at Para 16.1.3 of the 2010
Policy that the allotment of all General Minor Units at A, B and C category
stations shall be awarded for a period of five years with a provision for
renewal after every 3 years on satisfactory performance and payment of all
dues and arrears and withdrawal of court cases, if any. Allotment of all
General Minor Units at D, E and F category stations will be for a period of
5 years with a provision for renewal after every 5 years for a further period
of 5 years on satisfactory performance and payment of all dues and arrears
and withdrawal of court cases, if any.
6. It has been contended that based upon the aforesaid proposition and
decision taken by the Hon'ble Apex Court, the authority has come out with
a Circular being Circular No.22 of 2017, whereby and whereunder, the
provision has been made on the basis of the judgment passed by the
Hon'ble Apex Court in Senior Divisional Commercial Manager, South
Central Railway & Ors. Vs. S.C.R. Caterers & Anr. (supra) which is in
furtherance to the Catering Policy, 2010 for renewal of the license of the
contract subject to verification of the condition which is to be given by way
of declaration that the licensee is required to declare that he/she is not
holding more than one unit under a single or multiple licenses he/she shall
forgo all other units except the unit he/she wishes to be renewed.
7. It has been contended that the ground which has been taken in the
impugned order that the case of the petitioner is not coming within the
ambit of Circular No.22 of 2017 is absolutely incorrect and arbitrary
decision on the basis of the fact that when the said issue has already been
decided by the Hon'ble Apex Court upholding the judgment passed by the
Division Bench of the Andhra Pradesh High Court dated 12.09.2013
wherein the judgment passed by the learned Single Judge of the Andhra
Pradesh High Court on 16.08.2013 was upheld holding therein that the
Catering Policy, 2010 did not differentiate among the licensees based on
the number of years for which they have been carrying on their business. It
was further held that under the Catering Policy, 2010, the license fee is
liable to be revised based on the potentiality of each railway station and the
turnover of the licensees during the previous years.
8. The learned Single Judge of the Andhra Pradesh High Court has further
held that the members of the Welfare Association are entitled for renewal
of the licenses of the members subject to their satisfying the conditions
stipulated in Paras 16.1.3 and 16.2.1 of the Catering Policy, 2010.
9. It has been contended that the said judgment passed by the learned Single
Judge has been upheld by the Division Bench and subsequently by the
Hon'ble Apex Court.
10. The argument has been advanced that once the benefit of renewal has been
decided to be given by the judicial pronouncement of the Andhra Pradesh
High Court having been affirmed by the Hon'ble Apex Court, it is incorrect
on the part of the respondent concerned to take the ground that the case of
the petitioner is not coming within the ambit of Circular No.22 of 2017.
11. It has been contended that the Circular No.22 of 2017 cannot be said to be
an independent circular rather it is in furtherance to the Commercial
Circular No.35 of 2010 and reason for coming out with the Circular No.22
of 2017 is the order passed by the Hon'ble Apex Court which would be
evident from bare perusal of the said circular along with the judgment
passed by the Hon'ble Apex Court.
12. The argument has been advanced that the license of the petitioner has
expired in the year 2015 and as such, renewal application was filed but it
was not renewed on the garb of the condition available under Circular
No.22 of 2017 by taking the plea that the day when the Circular No.22 of
2017 has been issued, the writ petitioner cannot be considered to be the
allottee of the said stall.
13. Learned counsel for the petitioner, based upon the aforesaid ground, has
submitted that the decision so taken by the authority is not sustainable and
as such, the same is fit to be quashed and set aside.
Argument on behalf of the Respondents:
14. Mr. Anil Kumar, learned Additional Solicitor General of India appearing
for the respondent-Railway has taken the ground by raising objection with
respect to the prayer made in the writ petition.
15. It has been contended that there is no error in the impugned order passed by
the authority reason being that the day when the circular no.22 of 2017 has
been issued, the petitioner was not having locus to retain the possession of
the said stall.
It has been contended that the Circular No.22 of 2017 will only
be given effect to in favour of the allottees who are in the possession on the
basis of the valid allotment order.
16. The ground has been taken that the judgment has been delivered by the
Hon'ble Apex Court on 29.01.2016 the day when the lease of the writ
petitioner has already expired and as such, it is incorrect on the part of the
petitioner to take the ground that the judgment passed by the Hon'ble Apex
Court is applicable in the facts of the case of the petitioner.
17. Learnd ASGI has further argued that the petitioner is having no right to
claim the renewal of the said stall due to non-availability of any right said
to be accrued and based upon the aforesaid ground, it has been submitted
that the decision so taken by assigning the reason of non-availability of the
Circular No.22 of 2017 on the ground that the terms of the lease had
already been expired in the year 2015, therefore, cannot be said to suffer
from error.
Analysis:
18. This Court has heard learned counsel for the parties, gone across the
pleading made in the writ petition as also the affidavit filed on behalf of the
respondent as also the finding recorded by the respondent authority while
passing the impugned order.
19. The undisputed fact in this case is that the license which originally was
granted in the year 1994 in favour of the husband of the petitioner was
extended time to time. The husband of the petitioner had died on
15.11.2000 and thereafter, the aforesaid food stall was transferred in the
name of the writ petitioner vide order no. 104 dated 12.01.2001 by the
Railway authority as per the Catering Policy, 2000.
The license for the stall got expired in the year 2015 and
thereafter, the petitioner made application for renewal and when no
decision was taken, the petitioner preferred writ petition being W.P.(C)
No.4019 of 2018 seeking a direction for renewal of the license, wherein,
the learned Single Judge while disposing of the writ petition has given
liberty to the petitioner to approach before the concerned authority who in
turn was directed to take appropriate decision within a reasonable period
but the said claim was rejected by the respondent authority assigning the
reason that the Circular No. 22 of 2017 cannot be made applicable since the
license of the petitioner had already expired in the year 2015.
20. This Court, appreciating the argument advanced on behalf of the parties as
referred hereinabove, deems it fit and proper to refer first the Commercial
Circular No. 35 of 2010 (Catering Policy of 2010) which contain
conditions under 16.1.3 and 16.2.1 wherein it has been provided that the
license is to be renewed for the further period subject to fulfilment of
conditions, i.e., on satisfactory performance and payment of all dues and
arrears and withdrawal of court cases, if any.
21. Further, the Circular No. 22 of 2017 has come on 15.03.2017 wherein it
has been provided that the license of the licensees will be renewed subject
to compliance of condition stipulated in the aforesaid circular by giving a
declaration of having no license of more than one refreshment room at B
and below category stations or one catering stall or one trolley or one
Khomcha/Dallah/Chhabba/Wheel Barrow/Hand Barrow/Tray/Table/Tea
Balta at any Railway Station over Indian Railways in their name or benami
license.
22. The ground has been taken while rejecting the claim of the petitioner as
would appear from the impugned order that the Circular No.22 of 2017 is a
fresh circular and the petitioner is not fulfilling the criteria, as such, the
said circular is not applicable reason being that prior to coming into effect
of the said circular, the lease period of the stall in question had already
expired in the year 2015, therefore, this Court is of the view that the
following questions requires consideration:
(i) Whether the Circular No.22 of 2017 is an independent circular or it
is in furtherance to the Catering Policy of 2010?
(ii) Whether the right of the petitioner can be said to be not in existence
on the ground that the judgment passed by the Hon'ble Apex Court
in Senior Divisional Commercial Manager, South Central Railway
& Ors. Vs. S.C.R. Caterers & Anr. (supra) was delivered on
29.01.2016 which is after the expiry of the period of license of the
stall in question.?
(iii) Whether the judgment passed by the Hon'ble Apex Court on
29.01.2016 in the aforesaid case will be said to be effective from
29.01.2016 or will it relate back to the judgment passed by the
learned Single Judge of the Andhra Pradesh High Court which has
been upheld by the Hon'ble Apex Court.
23. All the issues since are co-related, as such, are being dealt with together.
24. The brief history leading to delivering the judgment in Senior Divisional
Commercial Manager, South Central Railway & Ors. Vs. S.C.R. Caterers
& Anr. (supra) needs to be referred herein as would be evident from the
said judgment that pursuant to the Catering Policy, 2010, the South Central
Railway granted renewal of licenses in favour of the licensees for a period
of three years with effect from 21.07.2010, the date on which the Catering
Policy, 2010 was made effective in respect of the General Minor Units
(GMUs) and Special Minor Units (SMUs) taken over from IRCTC, subject
to the conditions stipulated in Paras 16.1.3 and 16.2.1 of the Catering
Policy, 2010. The renewed licenses were to expire on 20.07.2013. On
26.04.2013, the Senior Divisional Commercial Manager, Vijayawada,
issued a bid notice inviting sealed bids on the single stage two-packet
system from food and catering service providers for provision of catering
services at the various GMUs of Categories 'A' and 'B' railway stations in
the Vijayawada Division. A similar Notification dated 03.05.2013 was
issued for establishment of catering stalls/fruits and fruit juice stalls in
SMUs in 'A1', 'A' and 'B' category railway stations.
Being aggrieved therewith, the respondent-association, the
members of which had existing licenses, filed a writ petition before the
Single Judge of the High Court of Judicature of Andhra Pradesh at
Hyderabad. The respondent Association urged that the said action of
inviting fresh bids is discriminatory and also contrary to the provisions of
the Catering Policy, 2010. The main plea of the respondent Association
was that in terms of the Catering Policy, 2010, the existing licensees were
entitled for renewal of their licenses for a period of three years, subject to
their satisfactory performance, payment of all dues and arrears and
withdrawal of court cases, if any.
The learned Single Judge of the Andhra Pradesh High Court vide
judgment and order dated 16.08.2013 came to the conclusion that the
Catering Policy, 2010 did not differentiate among the licensees based on
the number of years for which they have been carrying on their business. It
was further held that under the Catering Policy, 2010, the license fee is
liable to be revised based on the potentiality of each railway station and the
turnover of the licensees during the previous years. Since the license fee is
subject to continuous revision and does not remain stagnant, the question of
the Railways suffering any loss due to renewals would not arise. The
learned Single Judge held that the members of the Welfare Association are
entitled for renewal of the licences of the members subject to their
satisfying the conditions stipulated in Paras 16.1.3 and 16.2.1 of the
Catering Policy, 2010. For ready reference, paragraph-5 of the said
judgment is being referred as under:
"5. Vide judgment and order dated 16-8-2013 [S.C.R. Caterers, Dry
Fruits, Fruit Juice Stalls Welfare Assn. v. South Central Railways,
2013 SCC OnLine AP 168 : (2013) 5 ALD 553] , the learned Single
Judge came to the conclusion that the Catering Policy, 2010 did not
differentiate among the licensees based on the number of years for
which they have been carrying on their business. It was further held
that under the Catering Policy, 2010, the licence fee is liable to be
revised based on the potentiality of each railway station and the
turnover of the licensees during the previous years. Since the licence
fee is subject to continuous revision and does not remain stagnant, the
question of the Railways suffering any loss due to renewals would not
arise. The learned Single Judge held that the members of the Welfare
Association are entitled for renewal of the licences of the members
subject to their satisfying the conditions stipulated in Paras 16.1.3 and
16.2.1 of the Catering Policy, 2010. On appeal filed by the appellants,
the judgment and order of the learned Single Judge was upheld by the
Division Bench of the High Court in the writ appeals vide its judgment
and order dated 12-9-2013 [South Central Railways v. S.C.R.
Caterers, Dry Fruits, Fruit Juice Stalls Welfare Assn., 2013 SCC
OnLine AP 770] . Hence, the present appeals are filed by the
appellants."
25. The Railway filed appeal against the order of the learned Single Judge
before the Division Bench of the Andhra Pradesh High Court by way of
writ appeal which was dismissed on 12.09.2013. Thereby, the matter
travelled to the Hon'ble Apex Court. The Hon'ble Apex Court in the said
judgment has considered the provisions as contained in para-16.1.3 of the
Catering Policy, 2010 and after appreciating the rival submissions
advanced on behalf of the parties has been pleased to observe at paras-22,
23 and 24 that the contentions which had been advanced on behalf of the
respondent to the effect that the Railways had the right to enact the
Catering Policy, 2010. In terms of the said Policy, only such licensees who
were granted license under the 2010 Policy were entitled to get their
contracts renewed and the same benefit could not be extended to those
licensees who were granted license prior to the 2010 Policy.
As per the respondent-Railway who were appellant before the
Hon'ble Apex Court it has been submitted that according to the Catering
Policy, 2010, no provision is made for the renewal of the existing catering
units on the expiry of the term of the licenses. The renewal of the licenses
of the licensee under Para 16 of the Policy would apply only to licensees
who were allotted licenses under the Catering Policy, 2010. Further ground
has been taken that the renewals of the licenses by the Zonal Railways up
to 2013 was only meant to operate as a temporary arrangement till the
bidding and allocation process was finally completed. But, the aforesaid
plea of the appellant had not been accepted.
The aforesaid conclusion had been arrived at by taking note of
the Commercial Circular No. 37 dated 09.08.2010 which provides as
follows -
"1. Transfer of Licence Units:
.........
(d) Zonal Railways should renew all agreements which have expired
or are due for expiry in the next 6 months by giving an extension,
subject to a maximum extension of six months from the date of issue of
the Catering Policy, 2010."
It has been observed that the aforesaid circular clarifies that the
renewal of the licence is required to be granted to all the existing licensees
of the Minor Units as per Paras 16 and 17 of the Catering Policy, 2010. It
has also been observed that that the existing licensees need not be included
in the tender process.
26. The reference of another Circular dated 23.08.2011 issued by the Chief
Commercial Manager of South-Central Railway has also been taken
whereby direction was issued to all the Divisional Commercial Managers
and other subordinate officers of the South Central Railway to confirm that
the tenure of all GMUs and SMUs at 'A1', 'A' and 'B' category stations
shall be renewed after every 3 years on their satisfactory performance and
payment of all dues and arrears as per the 2010 Policy.
27. The Hon'ble Apex Court, based upon the aforesaid consideration as also by
taking note of the duty of every welfare State to generate employment has
been pleased not to interfere with the decision so taken by the learned
Single Judge of the Andhra Pradesh High Court and further it has been
clarified that only those licensees 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 licence fee. For ready
reference, paragraphs-24, 33 and 34 are being referred as under:
"24. The Circular dated 23-8-2011 issued by the Chief Commercial
Manager of South Central Railway directed all the Divisional
Commercial Managers and other subordinate officers of the South
Central Railway to confirm that the tenure of all GMUs and SMUs at
'A1', 'A' and 'B' category stations shall be renewed after every 3
years on their satisfactory performance and payment of all dues and
arrears as per the 2010 Policy. In view of the said circular, catering
licences of all the members of the respondent Association were
renewed till July 2013. On this aspect of the case, the learned Single
Judge of the High Court has held as under: (S.C.R. Caterers
case [S.C.R. Caterers, Dry Fruits, Fruit Juice Stalls Welfare
Assn. v. South Central Railways, 2013 SCC OnLine AP 168 : (2013) 5
ALD 553] , SCC OnLine AP)
"... While the 2010 Policy proper has not envisaged renewal of the
existing licences for a period not exceeding six months, the
Immediate Operative Instructions issued in commercial Circular
No. 37/2010 dated 9-8-2010 has directed the Zonal Railways to
renew the licences for a maximum period of six months from the
date of issue of the 2010 Policy. If the 2010 Policy is understood as
providing renewals only in respect of the licences issued under the
said Policy, there was no reason why Respondent 3 has not called
for tenders on the expiry of six months' period from the date of
coming into force of the 2010 Policy. Instead of calling for tenders,
Respondent 3 has renewed all the GMU and SMU licences for a
period of three years in terms of Paras 16.1.3 and 16.2.1 of the
2010 Policy. This was done even before Para 16.3 of the said
Policy was amended. Having understood the 2010 Policy in its true
spirit even before the amendment of Para 16.3, it is
incomprehensible that Respondent 3 projects the said Policy in a
different light by seeking to give it an interpretation which runs
contrary to its plain language. Nowhere in the 2010 Policy, the
licensees are classified into two categories, namely, those who
were granted licences prior to the commencement of the 2010
Policy and those who were granted licences after the said Policy.
On the contrary, all the GMUs and SMUs were treated under one
category. Irrespective of whether the licences were granted by the
Railways prior to 2005 or by Irctc from 2005 and by the Indian
Railways after 2010, renewal of licences is envisaged for all these
categories of licensees subject to their fulfilment of the three
requirements as referred to hereinbefore."
(emphasis supplied)
The findings of the learned Single Judge have been upheld by the
Division Bench and we do not find any reason to interfere with the
same.
33. Therefore, we have to hold that the provisions of the Catering
Policy, 2010 are applicable to the respondents concerned. The action
of the Railways in not granting renewals of the licences to the
members of the respondents is arbitrary, unreasonable, unfair and
discriminatory, and the same cannot be allowed to sustain in law.
34. For the reasons stated supra, this Court cannot interfere with the
impugned judgment and order [South Central Railways v. S.C.R.
Caterers, Dry Fruits, Fruit Juice Stalls Welfare Assn., 2013 SCC
OnLine AP 770] of the High Court. The civil appeals are dismissed.
The order dated 11-4-2014 [South Central Railways v. S.C.R.
Caterers, Dry Fruits, Fruit Juice Stalls Welfare Assn., 2014 SCC
OnLine SC 1639, wherein it was directed:"Heard the learned counsel
for the parties. Application for intervention is allowed. There shall be
stay of the order and the judgment of the High Court. The petitioners
are permitted to continue with the tender process and however, we
make it clear that the respondents shall not be displaced for the
present, so also the intervenors. Further, their continuance will be
subject to further orders after finalising the tender process. The
respondents are also permitted to participate in the tender. The
petitioners are permitted to seek further orders after finalisation of the
tender process."] granting stay of the impugned order shall stand
vacated. We, however, make it clear that only those licensees 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 licence fee. All pending applications are
disposed of."
28. It is thus evident that the issue of renewal has been decided by the learned
Single Judge of the Andhra Pradesh High Court by delivering judgment on
16.08.2013 which has been upheld by the Hon'ble Apex Court vide
judgment dated 29.01.2016 in the case of Senior Divisional Commercial
Manager, South Central Railway & Ors. Vs. S.C.R. Caterers & Anr.
(supra) wherein while upholding the view of the learned Single Judge as
also by making reference of the Circular No. 37 of 2010 dated 09.08.2010
and 23.08.2011 wherein decision was taken for renewal after every three
years of their satisfactory performance and payment of all dues and arrears
as per the Catering Policy of 2010.
29. The respondent-Railway, thereafter has come out with a Circular No.22 of
2017 which is in pursuance of the judgment passed by the Hon'ble Apex
Court in Senior Divisional Commercial Manager, South Central Railway
& Ors. Vs. S.C.R. Caterers & Anr. (supra). It is evident from the content
of the said circular which was issued on 15.03.2017 wherein as under para-
(ii) it has been decided for the purpose of renewal, one refreshment room at
B and below category stations or one catering stall or one trolley or one
Khomcha/Dallah/Chhabba/Wheel Barrow/Hand Barrow/Tray/Table/Tea
Balta shall be treated as one shop or one kiosk or one unit. If a licensee
holds more than one unit under a single or multiple licenses he/she shall
forgo all other units except the unit he/she wishes to be renewed.
It is further evident from para-(i) of the said Circular which starts
with the words "Notwithstanding any provision in Catering Policy 2010
and earlier catering policies, only those minor catering static unit licensees
would be eligible for renewal of their licenses who declare on affidavit that
they do not have the license of more than one refreshment room at B and
below category stations or one catering stall or one trolley or one
Khomcha/Dallah/Chhabba/Wheel Barrow/Hand Barrow/Tray/Table/Tea
Balta at any Railway Station over Indian Railways in their name or benami
license...".
30. The petitioner made an application for renewal but the same has been
rejected on the pretext that the case of the petitioner is not coming within
the ambit of Circular No.22 of 2017.
31. This Court fails to understand that on what basis the said reason has been
assigned when the respondent-Railway itself has taken a decision by
making insertion in the Catering Policy of 2010 for the purpose of renewal
of the license subject to fulfilment of conditions as has been referred in the
Circular No. 22 of 2017.
32. The learned Additional Solicitor General of India has taken the ground that
since the license was expired in the year 2015 and the Circular No. 22
came in the year 2017, as such, the day when the Circular No.22 of 2017
has come the petitioner was having no license in her favour.
33. The question which is to be considered whether the Circular 22 of 2017
issued on 15.03.2017 will be the primary consideration for consideration of
right of renewal of the petitioner or; the judgment passed by the Hon'ble
Apex Court in the case of Senior Divisional Commercial Manager, South
Central Railway & Ors. Vs. S.C.R. Caterers & Anr. (supra) on 29.01.2016
or; it will be on the day when the learned Single Judge of the Andhra
Pradesh High Court has passed the judgment, i.e., on 16.08.2013?
34. The creation of right will be said to be in favour of one party if the issue
has been decided based upon that the circular to that effect, if issued.
35. In the present case, the issue of renewal of the license was raised before the
Andhra Pradesh High Court by the association wherein the decision has
been taken vide judgment dated 16.08.2013 by the learned Single Judge of
the Andhra Pradesh High Court by giving a declaration of renewal of the
licenses. The said judgment has attained its finality up to Hon'ble Apex
Court vide judgment dated 29.01.2016 and as such, the question of
consideration of right of renewal will be taken into consideration from the
day when the issue has been decided by the constitutional court, i.e., High
Court of Andhra Pradesh which subsequently has been approved by the
Hon'ble Apex Court.
36. The aforesaid fact has also been taken into consideration on the principle of
merger since the order passed by the Andhra Pradesh High Court has been
upheld by the Hon'ble Apex Court and hence, the judgment passed by the
Hon'ble Apex Court will relate back to the date of the original order, i.e.,
the day when the Andhra Pradesh High Court has passed the judgment.
37. The admitted position herein is, as per the ground taken, that in the year
2015 the period of license of the petitioner was expired but the issue of
renewal since has already been decided by the Andhra Pradesh High Court
upheld by the Hon'ble Apex Court, hence, the expiry of the license in the
year 2015 will be immaterial and further the respondent Railway has come
out with the Circular No.22 of 2017 in compliance of the order passed by
the Andhra Pradesh High Court and the Hon'ble Apex Court wherein the
condition has been given for consideration of right of renewal of the license
subject to fulfilment of conditions as referred above.
38. It needs to refer herein that the petitioner is also pursuing her claim which
would be evident from the fact that earlier to the present writ petition, a
writ petition was filed in the year 2018 being W.P.(C) No. 4019 of 2018
and based upon the observation when the representation was filed which
was rejected
39. The question of not coming within the ambit of Circular No.22 of 2017
cannot be said to be justified in view of the fact that the said circular is not
an independent one and in supersession to the Catering Policy of 2010
rather it is in furtherance to the Catering Policy of 2010 and reason for
coming with the said circular is the judgment passed by the Andhra
Pradesh High Court upheld by the Hon'ble Apex Court in Senior
Divisional Commercial Manager, South Central Railway & Ors. Vs.
S.C.R. Caterers & Anr. (supra).
40. The aforesaid fact will be evident from the very content of the Commercial
Circular of 2017 which starts from "Notwithstanding any provision in
Catering Policy 2010" which does imply that the Circular No.22 of 2017 is
in continuation to the Catering Policy of 2010 which has been issued taking
into consideration the interest of the licensees whose licenses have expired
and are to be renewed subject to fulfilment of the conditions.
41. This Court, having discussed the fact in detail and coming to the order
passed by the authority, is of the view that the reason which has been
referred in the impugned order that the case of the petitioner is not coming
within the ambit of Circular No.22 of 2017, therefore, cannot be said to be
justified reasoning. Further, the reason has been assigned that the Circular
No.22 of 2017 cannot be given its retrospective application.
42. But, we have come to the conclusion that the Circular No. 22 of 2017 is in
furtherance to the Catering Policy of 2010 in order to take care of the
interest of the licensees whose licenses are to be renewed and as such, the
finding so recorded of its retrospective applicability is also not justified
rather the said circular will be said to be in continuation from the date when
the Catering Policy of 2010 has been notified.
43. Accordingly, all the issues have been answered.
44. We are conscious with the principle of issuance of writ of certiorari which
can only be issued if there is any error apparent on the face of the order or
the order is without jurisdiction. Reference in this regard be made to the
judgment rendered in the case of West Bengal Central School Service
Commission & Ors vs. Abdul Halim & Ors., reported in (2019) 18 SCC
39, wherein, at paragraph-30 it has been held which is being referred as
under:-
"30. In exercise of its power of judicial review, the Court is to see
whether the decision impugned is vitiated by an apparent error of law.
The test to determine whether a decision is vitiated by error apparent
on the face of the record is whether the error is self-evident on the
face of the record or whether the error requires examination or
argument to establish it. If an error has to be established by a process
of reasoning, on points where there may reasonably be two opinions,
it cannot be said to be an error on the face of the record, as held by
this Court in Satyanarayan vs. Mallikarjuna reported in AIR 1960 SC
137. If the provision of a statutory rule is reasonably capable of two
or more constructions and one construction has been adopted, the
decision would not be open to interference by the writ Court. It is only
an obvious misinterpretation of a relevant statutory provision, or
ignorance or disregard thereof, or a decision founded on reasons
which are clearly wrong in law, which can be corrected by the writ
Court by issuance of writ of Certiorari."
Likewise, the Hon'ble Apex Court in the case of T.C. Basappa
vs. T. Nagappa, reported in (1955) 1 SCR 250, wherein, it has been held
which is being referred as under:-
"An error in the decision or determination itself may also be
amenable to a writ of certiorari but it must be a manifest error
apparent on the face of the proceedings, e. g. when it is based on clear
ignorance or disregard of the provisions of law. In other words, it is a
patent error which can be corrected by certiorari but not a mere
wrong decision."
45. We have considered the impugned order on the basis of the aforesaid
principle and basing upon the discussion so made hereinabove, this Court is
of the view that the impugned order passed by the respondent- authority,
suffers from error and as such, the same needs to be interfered with.
46. Accordingly, the impugned order dated 12.06.2024 passed by the
respondent no.5, Divisional Railway Manager, Ranchi, is hereby quashed
and set aside.
47. It needs to be referred herein that while passing the order by this Court on
22.08.2024 the fact about issuance of tender has been brought to the notice
of this Court and when the counter affidavit was not filed even in spite of
the specific direction passed by this Court as would appear from the said
order, this Court on 28.08.2024 while deprecating the attitude of the
authority has restrained them from taking final decision with respect to the
tender which was scheduled on 29.08.2024. For ready reference the said
order dated 28.08.2024 is being referred as under:
"1. Reference may be made to order dated 5th August, 2024, on which
date the matter was heard on merit and after hearing learned counsel
for the parties, on the request of learned ASGI appearing for the
respondents-Railways, the matter was adjourned to be listed on 22nd
August, 2024 for filing counter affidavit.
2. For ready reference, the order dated 5th August, 2024 is quoted as
under:
1.The instant writ petition has been filed under Article 226 of the
Constitution of India whereby and whereunder the decision taken
by the Divisional Railway Manager, Ranchi dated 12.06.2024 has
been challenged, by which the claim of the petitioner for
allotment/renewal of the shop in question has been refused on the
ground that the case of the petitioner is not coming under the
ambit of Board's Commercial Circular No. 22/2017, since on the
date of its issuance the petitioner has ceased to be a licensee.
2.It has been submitted that reason for such decision, as per the
impugned order, is that the Board's Commercial Circular No.
22/2017 cannot be applicable with retrospective effect. The
argument has been advanced by referring to the insertion of a
particular clause in the policy decision which led the authority in
coming out with the Commercial Circular No. 22/2017 which is
based upon the judgment passed by Hon'ble Apex Court in the
case of Senior Divisional Commercial Manager, South Central
Railways & Ors. Vs. S.C.R. Caterers Dry Fruits, Fruit Juice
Stalls Welfare Association and Another [(2016) 3 SCC 582].
3.It has been contended that the Hon'ble Apex Court has
protected the right of such licensees whose licenses were either
terminated or not renewed for the purpose of renewal, subject to
the condition that an affidavit is to be filed by giving declaration
that he/she does not have a license of more than one Refreshment
Room at 'B' and below category station or one Catering Stall or
one Trolley at any Railway Station over Indian Railways in
his/her name or benami license.
4.The submission, therefore, has been made that Commercial
Circular No. 22/2017 cannot be said to be in supersession to the
circular issued in the year 2010 rather it is in furtherance to the
circular issued in the year 2010 by inserting a condition in
pursuance to the judgment passed by Hon'ble Apex Court in the
case of Senior Divisional Commercial Manager, South Central
Railways & Ors. Vs. S.C.R. Caterers Dry Fruits, Fruit Juice
Stalls Welfare Association and Another (supra) hence on that
count the impugned decision rejecting the claim of the petitioner
is improper/illegal.
5.Learned ASGI appearing for the respondents-Railways seeks
three weeks' time to seek instruction and file counter affidavit.
6.As prayed for, list this case on 22.08.2024."
3. When the matter was taken up on 22.08.2024, learned counsel for
the petitioner informed to this Court that on 5th August, 2024, the
learned ASGI has though took time to file counter affidavit but no
counter affidavit has been filed rather tender has been floated for the
purpose of settlement of the shop in question.
4. Upon this, Mr. Ravi Prakash, learned CGC appearing for the
respondents-Railways has submitted that the tender is to be opened on
29th August, 2024 and as such the matter may be posted on 28th
August, 2024 so that by that time the counter affidavit may be filed in
the matter.
5. This Court considering the submissions advanced by learned
counsel for the parties, adjourned the matter to be listed on 28th
August, 2024 within top five cases.
6. For ready reference order dated 22nd August, 2024, is quoted as
under:
1.Heard Mr. Vinod Singh, learned counsel appearing for the
appellant and Mr. Ravi Prakash, learned counsel for the
respondent-Railway.
2. The learned counsel for the appellant has submitted that the
order has been passed by this Court on 5th August, 2024 by
making reference to the judgment passed by the Hon'ble Apex
Court in the case of Senior Divisional Commercial Manager,
South Central Railways & Ors. Vs. S.C.R. Caterers Dry Fruits,
Fruit Juice Stalls Welfare Association and Another [(2016) 3
SCC 582] reported in and by taking note of the statement made
on behalf of the appellant regarding the implication of the
Commercial Circular No. 22 of 2017 upon which the learned
A.S.G.I. took time to seek instruction and to file counter-affidavit,
but the counter-affidavit has not been filed, rather, in the
meanwhile, the respondent have come out with a notice inviting
the application for the purpose of settlement of shop in question.
3. Mr. Ravi Prakash, learned counsel appearing for the Railway
has submitted that the said tender is to be open on 29th August,
2024 and as such, the matter may be posted on 28th August, 2024
so that by the time, the counter-affidavit shall be filed by serving
copy of the same advanced upon the learned counsel for the
appellant preferably by 27th August, 2024.
4. As such, let this case be listed within top 5 cases on 28th
August, 2024."
7. Today, when the matter has been taken up, Mr. Ravi Prakash,
learned CGC appearing for the respondentsrailways, on instruction,
has submitted that the matter may be decided on merit since he has
instruction not to file any counter affidavit. He has further submitted
that the matter may be heard at 12.30 p.m. today itself, but, prior to
that the learned ASGI has appeared and submitted that due to some
misconception, the counter affidavit could not be filed and sought for
time to file counter affidavit.
8. This Court has failed to understand that why there is confusion in
filing counter affidavit when it is the learned ASGI who himself has
sought for time on 5th August, 2024 to file counter affidavit and again
on 22nd August, 2024, Mr. Ravi Prakash, learned CGC took time to
file counter affidavit and the matter was listed today for adjudication
of issue on the basis of stand which would have been taken by the
respondents-railways in the counter affidavit. But, today no counter
affidavit has been filed which this Court considers to coming in the
way of dispensation of justice. The reason is also obvious that the
railways authorities particularly the D.R.M. who has floated the
tender wants to go by the process of tender, which is scheduled on
29th August, 2024 and perhaps for the said reason the counter
affidavit is not being filed.
9. The learned ASGI appearing for the respondentsrailways has
requested that matter may be posted tomorrow at 10.30 a.m. as a first
case.
10. As requested, let this matter be posted on 29th August, 2024 at
10.30 a.m. as a first case.
11. Considering the aforesaid facts into consideration, the
respondents are restrained from taking final decision with respect to
the tender, which is scheduled on 29th August, 2024."
48. This Court since has interfered with the impugned order by quashing and
setting it aside, as such, now the question is that in such circumstances,
whether the notice inviting tender afresh so far as the stall/shop in question,
i.e., South Indian food Stall known as "MaaKaAashirvad" at Platform No.1
at Ranchi Railway Station, is concerned, can be allowed to be sustained?
49. It would be evident from the reference as has been made in the order dated
22.08.2024 on behalf of the respondent-Railways that the notice has been
issued for allotment of the said shop/stall after rejecting the renewal of
license which is being sought for on behalf of the petitioner.
50. The question, therefore, is that when this Court has come to the conclusion
that the writ petitioner is entitled for renewal, as such, issuance of the said
tender notice afresh can be said to be justified?
51. The Hon'ble Apex Court while dealing with the judgment passed by the
learned Single Judge of the Andhra Pradesh High Court has come out with
the view that in such circumstances, the renewal of the lease is only an
option which has been upheld by the Hon'ble Apex Court as would be
evident from the reference of the paragraphs so made hereinabove.
The Hon'ble Apex Court when has accepted the view of the
learned Single Judge of the Andhra Pradesh High Court regarding the issue
of renewal of license of the members of the association by passing the
judgment dated 29.01.2016 upholding the judgment dated 16.08.2013
passed by the learned Single Judge of the Andhra Pradesh High Court then
the issuance of notice inviting application for settlement of the stall/shop in
favour of a third party when the writ petitioner is ready to furnish the
undertaking for the purpose of compliance of the conditions as stipulated in
the Catering Policy of 2010 which has been ratified in the Commercial
Circular No.22 of 2017 in pursuance of the order/judgment passed by the
Hon'ble Apex Court, according to the considered view of this Court, the
notice inviting application is nothing but in derogation with the direction
passed by the Hon'ble Apex Court in Senior Divisional Commercial
Manager, South Central Railway & Ors. Vs. S.C.R. Caterers & Anr.
(supra).
52. Accordingly, the tender which was notified so far as it relates to the
stall/shop in question, i.e., South Indian food Stall known as
"MaaKaAashirvad" at Platform No.1 at Ranchi Railway Station, in
consequence of the aforesaid conclusion, is also required to be quashed and
set aside.
53. Accordingly, the same is also quashed and set aside.
54. In the result, the writ petition stands disposed of with the aforesaid
observations and directions.
55. The respondents are directed to consider the claim of the writ petitioner
subject to fulfilment of the conditions as available in the Catering Policy of
2010 and the Commercial Circular No.22 of 2017, based upon the
observation made hereinabove, and take such decision in accordance with
law within a period of three weeks from the date of receipt/production of
copy of this order.
56. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, A.C.J.)
I Agree,
(Arun Kumar Rai, J.) (Arun Kumar Rai, J.)
Saurabh / A.F.R.
