Rajasthan High Court

M/S Sachchmal And Sons A Firm vs Union Of India on 25 January, 2022

Bench: Inderjeet Singh

     HIGH COURT OF JUDICATURE FOR RAJASTHAN
                 BENCH AT JAIPUR

             S.B. Civil Writ Petition No. 8805/2020

M/s Sachchmal And Sons A Firm, Through Proprietor Ramesh
Chand Bachani Aged 70 Years R/o 1/239 Scout Field Colony,
Housing Board, Sawaimadhopur.
                                                                ----Petitioner
                                Versus
1.    Union Of India, Through Secretary, Ministry Of Railway,
      New Delhi.
2.    West Central Railway, Through General Manager, Jabalpur.
3.    Divisional Railway Manager, West Central Railway, Kota.
4.    Assistant Commercial Manager, West Central Railway,
      Kota.
                                                             ----Respondents

Connected With S.B. Civil Writ Petition No. 17787/2019 Geeta Devi W/o Late Shri Hari Prasad Sharma, Aged About 81 Years, By Caste Bramhin, Resident Of 603, Near Madarsa And Station, Guhana, Tehsil Neema Ka Thana, District Sikar (Raj.) Presently Working At Stall No. 8, Platform No. 1, West Central Railway, Kota Junction, Kota (Raj.)

----Petitioner Versus

1. The Union Of India, Through The General Manager, West Central Railway, Head Quarter Office, Jabalpur (M.p.)

2. The Divisional Railway Manager, West Central Railway, Kota Division, Kota (Raj.)

3. The Senior Divisional Commercial Manager, West Central Railway, Kota Division Kota (Raj.)

4. Station Director, West Central Railway, Kota Junction, Kota (Raj.)

----Respondents S.B. Civil Writ Petition No. 2721/2020

1. Pradeep Sharma S/o Late Mool Chand Sharma, Aged About 47 Years, By Caste Brahmin, R/o Station Road, Bharatpur

2. Harish Chand Sharma S/o Late Shri Mool Chand Sharma, Aged About 50 Years, By Caste Brahmin, R/o Station Road, Bharatpur

----Petitioners Versus

1. Union Of India, Through Its Secretary, Ministry Of Railway, New Delhi.

2. West Central Railway Through Its General Manager,

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Jabalpur.

3. Divisional Railway Manager, West Central Railway, Kota

4. Indian Railway Catering And Tourism Corporation Limited (Government Of India Enterprises), Through Its Managing Director, 19Th Floor, Bank Of Baroda, 16 Parliament Street, New Delhi.

5. Indian Railway Catering And Tourism Limited (Government Of India Enterprises), Through Regional Manager, Regional Office, Iind Floor, Bank Of India, Building Area Heels, Bhopal

6. Station Superintendent, West Central Railway, Bharatpur Junction.

----Respondents S.B. Civil Writ Petition No. 3619/2020 Kewal Singh, A Firm Through Proprietor Kewal Singh Son Of Nathu Singh, Aged 54 Years, R/o In Front Of Girls Higher Secondary School, Mala Road Kota Junction-324002.

----Petitioner Versus

1. Union Of India, Through Secretary, Ministry Of Railway, New Delhi.

2. West Central Railway Through General Manager, Jabalpur.

3. Divisional Railway Manager, West Central Railway, Kota.

4. Assistant Commercial Manager, West Central Railway, Kota.

----Respondents S.B. Civil Writ Petition No. 3624/2020 Krishan Kumar Nagar, Firm Through Power Of Attorney Holder Lalit Kumar Nagar Son Of Krishan Kumar Nagar, Aged About 37 Years, Resident Of Jain Mandir Road Gurdawara, Kota Junction- 324002.

----Petitioner Versus

1. Union Of India, Through Secretary, Ministry Of Railway, New Delhi.

2. West Central Railway Through General Manager, Jabalpur.

3. Divisional Railway Manager, West Central Railway, Kota.

4. Assistant Commercial Manager, West Central Railway, Kota.

----Respondents

S.B. Civil Writ Petition No. 3627/2020 Suraj Mal Meena, A Firm Through Proprietor Jugal Kishore Son Of Suraj Mal Meena, Aged 53 Years R/o Dhanmal Ji Ka Hatta Neemgajn Madi Kota Junction-324002.

                                                                ----Petitioner



                                        (3 of 13)                   [CW-8805/2020]


                                 Versus

1. Union Of India, Through Secretary, Ministry Of Railway, New Delhi.

2. West Central Railway Through General Manager, Jabalpur.

3. Divisional Railway Manager, West Central Railway, Kota.

4. Assistant Commercial Manager, West Central Railway, Kota.

----Respondents S.B. Civil Writ Petition No. 3630/2020 Chandrabhan And Sons, A Partnership Firm Through Partner Chitresh Agrawal Through Power Of Attorney Holder Rakesh Agrawal Son Of Kanchilal Agrawal, Aged About 45 Years, Resident Of Savitri Sadan, Fci Road, Opposite Natraj Takij, Kota Junction-324002.

----Petitioner Versus

1. Union Of India, Through Secretary, Ministry Of Railway, New Delhi.

2. West Central Railway Through General Manager, Jabalpur.

3. Divisional Railway Manager, West Central Railway, Kota.

4. Assistant Commercial Manager, West Central Railway, Kota.

----Respondents S.B. Civil Writ Petition No. 3724/2020 Pushpa Bai A Firm, Through Proprietor Pushpa Bai W/o Kishan Singh R/o 302, Gali No. 3, Dadwara, Rangpur, Kota Junction- 324002

----Petitioner Versus

1. Union Of India, Through Secretary, Ministry Of Railway, New Delhi.

2. West Central Railway Through General Manager, Jabalpur.

3. Divisional Railway Manager, West Central Railway, Kota.

4. Assistant Commercial Manager, West Central Railway, Kota.

----Respondents S.B. Civil Writ Petition No. 3726/2020 Krishanlal A Firm, Through Proprietor Krishan Lal, Through Power Of Attorney Pawan Sharma Son Of Krishan Lal Aged 42 Years R/o Near Rubber Factiory, Gurunank School Road, Bheemganj Mandi Kota Junction-324002

----Petitioner Versus

1. Union Of India, Through Secretary, Ministry Of Railway,

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New Delhi.

2. West Central Railway Through General Manager, Jabalpur.

3. Divisional Railway Manager, West Central Railway, Kota.

4. Assistant Commercial Manager, West Central Railway, Kota.

----Respondents S.B. Civil Writ Petition No. 3728/2020 Ashok Kumar Gopal, A Firm Through Proprietor Ashok Kumar Son Of Gopla Lal, Aged 54 Years R/o Riddhi Siddhi Nagar, Rangpur Road, Bhadena, Kota Junction-324002.

----Petitioner Versus

1. Union Of India, Through Secretary, Ministry Of Railway, New Delhi.

2. West Central Railway Through General Manager, Jabalpur.

3. Divisional Railway Manager, West Central Railway, Kota.

4. Assistant Commercial Manager, West Central Railway, Kota.

----Respondents S.B. Civil Writ Petition No. 3731/2020 S I Khan, A Firm Through Power Of Attorney Holder Jitesh Kriplani Son Of Harish Kriplani Rakesh, Aged About 35 Years, Resident Of C-11 Indra Colony J N Marshal Mala Road, Kota Junction-324002.

----Petitioner Versus

1. Union Of India, Through Secretary, Ministry Of Railway, New Delhi.

2. West Central Railway Through General Manager, Jabalpur.

3. Divisional Railway Manager, West Central Railway, Kota.

4. Assistant Commercial Manager, West Central Railway, Kota.

----Respondents S.B. Civil Writ Petition No. 4885/2020 M/s Kanhaiyalal Tea Stall K. Patan, A Firm Through Proprietor Kanhaiyalal Son Of Bhairunsingh Ji, Age 69 Years, R/o Gurudware Ke Samne, Raj Kesar Hotel Ke Piche, Kota Junction- 324002.

----Petitioner Versus

1. Union Of India, Through Secretary, Ministry Of Railway, New Delhi.

2. West Central Railway Through General Manager, Jabalpur.

3. Divisional Railway Manager, West Central Railway, Kota.

4. Assistant Commercial Manager, West Central Railway,

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Kota.

----Respondents S.B. Civil Writ Petition No. 13410/2020 M/s. Kailash Chand Sharma, Through Proprietor Hanuman Sahai Sharma S/o Shri Satyanarayan Sharma, Aged 67 Years, Plot No. Ha-19, Ranthamore Road, Sawaimadhopur

----Petitioner Versus

1. Union Of India, Through Secretary Ministry Of Railway New Delhi

2. West Central Railway Through General Manager, Jabalpur

3. Divisional Railway Manager, West Central Railway, Kota

4. Station Manager, West Central Railway, Sawaimadhopur

----Respondents

S.B. Civil Writ Petition No. 794/2022

Om Prakash Nagar S/o Udailal Nagar, Aged About 61 Years, R/o Seth Dan Mal Ji Ka Katla , Kota Junction

----Petitioner Versus

1. Union Of India, Through Secretary, Ministry Of Railway, New Delhi.

2. West Central Railway, Through General Manager, Jabalpur.

3. Divisional Railway Manager, West Central Railway, Kota.

4. Assistant Commercial Manager, West Central Railway, Kota.

----Respondents

S.B. Civil Writ Petition No. 797/2022

Sugna Bai W/o Prahlad Meena, Aged About 50 Years, R/o Poonam Colony Gali No. 6, Near Shiv Mandir , Kota Junction Through Power Of Attorney Vinod Kumar Meena S/o Prahalad Meena Aged 30 Years R/o Poonam Colony Gali No. 6, Near Shiv Mandir , Kota Junction .

----Petitioner Versus

1. Union Of India, Through Secretary, Ministry Of Railway, New Delhi.

2. West Central Railway, Through General Manager, Jabalpur.

3. Divisional Railway Manager, West Central Railway, Kota.

4. Assistant Commercial Manager, West Central Railway, Kota.

                                             (6 of 13)                   [CW-8805/2020]


                                                                   ----Respondents

S.B. Civil Writ Petition No. 799/2022

Mohammad Idris Son Of Mohammad Ismile, Aged About 56 Years, R/o Nehru Nagar, Tel Ghar Building, Rangpur Road Kota Junction.

----Petitioner Versus

1. Union Of India, Through Secretary, Ministry Of Railway, New Delhi.

2. West Central Railway, Through General Manager, Jabalpur.

3. Divisional Railway Manager, West Central Railway, Kota.

4. Assistant Commercial Manager, West Central Railway, Kota.

----Respondents

For Petitioner(s) : Mr. Bipin Gupta, through V.C.

Mr. J.K. Moolchandani, through V.C. Mr. Sanjay Kumar Sharma, through V.C.

For Respondent(s) : Mr. Shailesh Prakash Sharma, through V.C.

Mr. P.C. Sharma, through V.C.

Ms. Nidhi Khandelwal, through V.C., for Union of India

HON'BLE MR. JUSTICE INDERJEET SINGH Order

25/01/2022

1. These writ petitions since involve common question of facts

and law, hence with consent of the parties, have been heard

together and are being decided by the present common order.

2. To examine the controversy, the facts, on request of the

parties, have been noticed from S.B. Civil Writ Petition

No.8805/2020, as such the prayer made in this writ petition is

reproduced here as under:

"It is, therefore, most respectfully prayed that Your Lordships may graciously be pleased to

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allow this writ petition and retrospective revision of license fee as demand vide order dated 17.12.2019 may kindly be quashed and set aside and the respondents may be directed to revise license fee prospectively and not retrospectively.

Any other appropriate order or direction which this Hon'ble Court deems fit and proper may kindly be passed in favour of the petitioner". Cost of the writ petition may also be awarded to the petitioner."

3. By way of these writ petitions, the petitioners have

challenged the order dated 17.12.2019 (Annexure-2) passed by

the respondents whereby the arrears of licence fee have been

demanded by the respondents from the petitioners. It is revealed

from the record that the vending licence was issued by the railway

administration in favour of the petitioners for selling products at

various railway stations in the State of Rajasthan and all the

petitioners are having the vending licence and they have been

doing business for a considerable long time and their licences were

renewed by the respondents from time to time and in the year

2010 the respondents formulated and issued Catering Policy,

2010. A litigation came up for consideration before the Hon'ble

Supreme Court with regard to Catering Policy, 2010 in the matter

of Senior Divisional Commercial Manager, South Central

Railways & Ors. Vs. S.C.R. Caterers, Dry Fruits, Fruit Juice

Stalls Welfare Association & Anr. reported in 2016 (3) SCC

582 and after examining the controversy the Hon'ble Supreme

Court held in Paras-33 & 34 as under;

"33. Therefore, we have to hold that the provisions of 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.

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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 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."

4. Thereafter, a writ petition No.373/2017 was filed before the

Hon'ble Supreme Court by the vendors, titled as Vendors Co-

operative Society Ltd. & Ors. Vs. Union of India, which was

decided on 30.10.2018 and following order was passed;

"These matters arise out of the relief granted by this Court to the associations of caterers, dry fruits, fruit juice stalls owners etc., on the railway platforms, vide judgment dated 29.1.2016 in the case of Senior Divisional Commercial Manager, South Central Railways and Others Vs. S.C.R. Caterers, Dry Fruits, Fruit Juice Stalls Welfare and Another (2016) 3 SCC 582.

Paragraph (34) of the aforesaid judgment which has given rise to some confusion is read thus:

"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 11.4.2014 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."

In effect, this Court directed that licensees who hold more than one licence

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shall be eligible for renewal of only one licence.

Now, as a matter of fact, licensees who have been doing business on the railway platforms are not merely individual persons but are co-operative societies, partnership firms and HUF. Each of these associations of persons held or hold more than one licence. The authorities interpreted our observation to mean that all these associations of persons mentioned above would also be entitled to only one licence. That was plainly not our intention. As can be seen from the entire judgment in Senior Divisional Commercial Manager, South Central Railways and Others (supra), the idea was to increase employment amongst those who have opted for this business. It is in this context that this Court declined to continue several licences in the name of one person. Obviously if licences over and above are distributed to other applicants who want to do the same business, more people would be employed.

This Court did not consider the case of associations of persons like the Co- operative societies, partnership firms and HUF which held more than one license. If the judgment in Senior Divisional Commercial Manager, South Central Railways and Others (supra) is implemented without regard to the purpose, it would result in reducing employment by restricting the number of licences to these associations of persons to one. In other words, co-operative societies etc., which hold more than one licence would be entitled to only renew one licence and would have to give up the others.

In these circumstances, we are constrained to direct that the number of existing licences in addition to one, held by the co-operative societies, partnership firms and HUF, shall be allowed to be renewed as before in accordance with the existing policy.

The case for the co-operative societies appears to us to be obvious. As regards the partnerships firms are concerned it is well settled that a partnership is a compendious name for all the partners and in essence, a partnership firm really consists of the number of individuals who are its partners. Reference has been made to the following cases in this regard:

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N. Khadervali Saheb (Dead) by Lrs. & Anr. vs. N.Gudu Sahib (Dead) & Anr. - (2003)3 SCC 229 and Commissioner of income Tax, West Bengal vs. A.W.Figgies & Co. and Others-SCR 1954 SC 171.

There is no reason why a partnership of several partners can have only one licence.

Similarly in the case of HUF, it is quite possible and it is quite often the case that the HUF may consist of several body of individuals who could all be doing business under the several licences held by such HUF.It would amount to imposing an undue liability on members of the HUF if they were prevented from having licences in their own names merely because they were members of the HUF. We accordingly direct that the aforesaid associations of persons viz., the co- operative societies, partnership firms and HUF, in respect of the units covered by the judgment in Senior Divisional Commercial Manager, South Central Railways and Others (supra), shall be entitled to renewal of all the licences they hold as on the date of the expiry of those licences.

With the aforesaid directions, these writ petitions are disposed of."

5. After the clarification was made by the Hon'ble Supreme

Court with regard to Catering Policy, 2010 in the year 2018, the

respondents issued a letter dated 09.07.2018 to their officers with

regard to implementation of CC-22 of 2017 in terms of Renewals

of Existing Catering Units and in pursuance thereto the

respondents have issued the order dated 17.12.2019 by which

they have revised the licence fee based on sales assessment from

the year 21.07.2016 to 20.07.2019.

6. Hence, these writ petitions have been filed by the petitioners

challenging the order dated 17.12.2019.

7. Counsel for the petitioners submits that the licences of the

petitioners have already been renewed by the respondents in the

year 2017 by charging minimum 10% increase in the licence fee

according to the Policy and the petitioners have already deposited

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the minimum 10% increase in the licence fee as demanded by the

respondents as per the Catering Policy of 2010. Counsel further

submits that by renewing the licences of the petitioners, the

respondents are estopped to charge the increase in the licence fee

and increase in the licence fee can only be demanded in the year

2020 at the time of renewal of their licences. Counsel further

submits that the order passed by the respondents is

discriminatory in nature as the same has been passed in the State

of Rajasthan only.

8. Counsel appearing on behalf of the respondents submits that

the respondents have demanded the increased licence fee and

issued demand notice to the petitioners with regard to depositing

the arrears of licence fee as per the Catering Policy, 2010. Counsel

relied upon certain provisions of the Catering Policy, 2010 with

regard to renewal of licence, more particularly clause-17.5 & 18.3

which read as under;

"17.5 The licence fee shall be revised and reassessed at the time of each renewal subject to a minimum increase of 10% of the existing licence fee.

18.3 At the time of renewal of licence, licence fee should be enhanced/reassessed based on actual sales turnover of the unit. Licence fee will be reassessed and revised at the time of each renewal subject to a minimum of 10% increase over the prevailing licence fee of the unit. To arrive at a realistic figure zonal railways will ensure that a fresh assessment of sales turnover/revenue is conducted during the peak period and lean period i.e. with the periodioity of three-three months in order to assess the actual sales turnover so as to fix the revised licence fee. Renewal will be done for the existing licensees only on withdrawal of court cases by the licensees, if any, against the railways and payment of railway dues and arrears".

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9. Counsel further submits that according to clause 18.3 the

respondent(s) are entitled to charge the licence fee based on

actual sales turnover of the unit. Counsel further submits that at

the time of renewal of the licence of the petitioners in the year

2017 only minimum 10% increase was charged from the

petitioners and since the matter was pending consideration before

the Hon'ble Supreme Court in the matter of Senior Divisional

Commercial Manager, South Central Railways & Ors. Vs. S.C.R.

Caterers, Dry Fruits, Fruit Juice Stalls Welfare Association & Anr

(supra), therefore, after the matter was finally decided by the

Hon'ble Supreme Court, the sale assessment was again done by

the respondents for determining the licence fee and thereafter

only the order dated 17.12.2019 was passed by them demanding

the arrears of licence fee. Counsel further submits that it is a

contractual matter between the petitioners and the respondents

and there is an arbitration clause in the agreement entered

between the parties to the effect that in case of any dispute the

person/party aggrieved can invoke the arbitration clause, which

the petitioners have failed to do so before approaching the Court

of law.