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2014 DIGILAW 64 (ALL)

LAXMAN PRASAD v. UNION OF INDIA

2014-01-08

ANIL KUMAR SHARMA, TARUN AGARWALA

body2014
JUDGMENT By the Court.—Heard Sri S.K.Tyagi, learned counsel for the petitioner and Sri Vivek Singh, the learned counsel for the Railways. 2. Petitioner is a scheduled caste and was granted a licence for running a Stall on the platform at Jhansi Railway station in the year 1970. Since then, the licence was being renewed from time to time. 3. In the year 1994, the Railway Board proposed to regulate the allotment of the licences through a policy decision and, based on such policy, the petitioner was again granted a licence in the year 1997 for a period of 3 years. An agreement was executed and the licence fee was required to be paid by the petitioner annually. In the year 2005, the policy was again revised and reservation was also provided for the allotment of stalls to scheduled caste, scheduled tribes and O.B.C. categories. In the year 2007 a new policy dated 17.12.2007 was enforced whereby the Railways thought it fit to allot the stalls through an open tender system. No provision was made for renewal of the existing licence as per the earlier policy. In this regard, the Railway authorities sought clarification from the Railway Board. A clarification dated 4.8.2008 was issued indicating that existing licence holders shall be allowed to continue till the period of the licence and that thereafter new licence would be issued as per the new policy of 2007. This clarification did not indicate renewal of the existing licencees in the reserved categories and, accordingly a fresh clarification was given by the Railway Board on 20.5.2009 indicating that the policy of 17.12.2007 does not prohibit the renewal of the licence of the existing licence holders belonging to the reserved categories. The Railway Board accordingly directed the authorities to consider such proposal pending with them for granting renewal of these licences. For facility, the extract of the clarification issued by the Railway Board dated 20.5.2009 is extracted hereunder : “3. In view of the above it is further advised that while taking any decision in such kind of matters they may consider the basic guidelines of Catering policy, 2005 dated 16.3.2005 and 21.12.2005 and subsequent clarifications on renewal of SMUs. As such, the Misc. stall/trolley policy guidelines dated 17.12.2007 do not prohibit railways for granting renewal to existing licensees belonging to reserved category. As such, the Misc. stall/trolley policy guidelines dated 17.12.2007 do not prohibit railways for granting renewal to existing licensees belonging to reserved category. Hence, railway may consider all such proposals pending with them for granting renewal to the existing Misc. stall/trolley licensees belonging to reserved category subject to satisfactory performance and payment of all dues and also withdrawal of Court cases, if any, filed by them before various Courts of law. “ 4. Since Railway authorities were in dilemma with regard to the procedure to be adopted for existing licence holders, the petitioner applied for renewal of his licence and deposited the licence fee upto the period 30.11.2008. Apparently no orders on his application for renewal was passed by the Railway authorities. Since no clarification came-forth from the Railway board, the petitioner sought continuance of his stall by applying for allotment of the stall under the general category through tender process. The petitioner’s application was rejected and, being aggrieved by the non-grant of a stall, filed Writ Petition No. 59738 of 2008 which was dismissed by a judgment dated 21.11.2008. 5. When the clarification dated 20.5.2009 came the petitioner made a representation that his earlier application for renewal may be processed and his licence be renewed and when no action was taken by the authorities, the petitioner approached the writ Court by filing Writ Petition No. 18626 of 2010 which was disposed of by an order of the Court dated 20.7.2010 directing the authorities to decide the representation. 6. Based on the aforesaid direction, the authority, by an order dated 17.2.2010, rejected the representation for renewal of his licence. The representation was rejected on the ground that no application for renewal was pending on the date when the clarification of the Railway Board dated 20.5.2009 was received by the authority and that the petitioner’s writ petition for grant of an allotment of the stall was rejected by the High Court. The petitioner being aggrieved by the said order has filed the present writ petition. 7. Having heard the learned counsel for the parties at some length and having perused the record which have been annexed in the pleadings, the Court is of the opinion that the action of the respondents in rejecting the application of the petitioner for renewal was based on non-existing ground. 7. Having heard the learned counsel for the parties at some length and having perused the record which have been annexed in the pleadings, the Court is of the opinion that the action of the respondents in rejecting the application of the petitioner for renewal was based on non-existing ground. The contention of the respondents that the application for renewal was not pending as on the date of the clarification is patently erroneous. The clarification of the Railway Board dated 20.5.2009 indicates that there was no embargo upon the authority in not considering the renewal application of the existing licensees belonging to the reserved categories under the policy dated 17.12.2007. In the light of this direction indicated by the railway board the fault lay with the authority in not processing the renewal application of the petitioner in the year 2008 when an appropriate licence fee was deposited upto the period 30.11.2008. Had the authority processed the application at that stage the situation would not have arisen when the clarification came into existence on 20.5.2009. 8. Further, writ petition filed by the petitioner had nothing to do with regard to the renewal of his licence. The writ petition was with regard to the fresh allotment of a stall under the tender process which was rejected. The cause of action for the writ petition was totally different and distinct from the controversy involved in the present writ petition. 9. In a supplementary affidavit filed by the petitioner it has come on record that the stall allotted to the petitioner still is existing and has not been allotted to any other person. This fact has not been denied by the respondents. 10. Consequently, for the reasons stated aforesaid, the Court is of the opinion that the action of the respondents in rejecting the petitioner’s application for renewal of his licence was wholly arbitrary and based on non-existing grounds. The impugned order cannot be sustained and is quashed. Writ petition is allowed and a writ of mandamus is issued commanding the authority to pass appropriate orders for renewing the licence of the petitioner within six weeks from the date of production of a certified copy of this order.