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2017 DIGILAW 1024 (JK)

Pervaiz Rashid v. Union of India

2017-11-24

SANJAY KUMAR GUPTA

body2017
JUDGMENT : 1. Through the medium of instant writ petition, petitioner seeks the following reliefs:- a. An appropriate writ, order or direction in the nature of writ of mandamus commanding the respondents to renew the agreement for further period of five years with respect to allotment of STD/PCO Booth at Reservation Counter Jammu under unemployed quota which is expiring on 24.03.2016, so as it enable the petitioner to run his STD/PCO booth and earn his livelihood. b. An appropriate writ, order or direction in the nature of writ of mandamus commanding the respondents not to terminate the allotment of the petitioner with respect to space for running STD/PCO booth at Reservation Counter Jammu Tawi Railway Station and not to oust the petitioner from the space which has been duly allotted to him. c. An appropriate writ, order or direction in the nature of writ of mandamus commanding the respondents to allow the petitioner to continue running STD/PCO booth at reservation counter Jammu Tawi Railway Station without any hindrance, obstruction or interruption so that the fundamental rights guaranteed to the petitioner under Articles 19(i)(g) of the Constitution of India is duly honored. d. Any other relief which this Hon’ble Court in the facts and circumstances of the case deems fit and proper. 2. The case of the petitioner is that petitioner being an unemployed youth, applied to the respondents for allotment of a space at Jammu Tawi Railway Station, Jammu for running a STD/PCO booth so as to earn his livelihood as also livelihood for his family under unemployed quota. The request of the petitioner was duly considered by the respondents and vide agreement executed between the petitioner and the respondents, petitioner was permitted to run PCO booth with STD/ISD/Fax/Internet facilities for a period of five years from 25.03.2011 to 24.03.2016 in Reservation Complex at Railway Station Jammu at the annual license fee of Rs.10,560/- with a further condition that the same will be increased @ 10% at every subsequent year + 65% of commission (the percentage as agreed upon by the licensee which will in no case be less than 10% of the commission payable to the Booth Operator by the Service provider i.e. BSNL/MTNL) or any other authorized service provider) earned by him. It is stated that after grant of permission and execution of the agreement, petitioner started running his STD/PCO booth for the purpose of earning his livelihood and has also remained complying with the terms and conditions stipulated in the order of allotment/permission. During this period, the petitioner never ever given any chance of complaint to any of the respondents. 3. It is further submitted that the petitioner before the expiry of the aforesaid extended period of five years duly applied before the respondents for renewal of the permission for another five years by submitting application dated 28.03.2016 and after submission of application, the application has been given to understand that the respondents instead of renewing the permission/license are making efforts to allot the space where the petitioner is running his STD/PCO Booth to some of their blue eyed persons and are not going to renew the permission granted in favour of the petitioner. The petitioner, facing threat of non renewal of the permission/license to run STD/PCO booth, has been regularly approaching the respondents for renewal of the permission/license and for execution of agreement, but all the efforts being put by the petitioner have not yielded any positive result. It is stated that the petitioner has not other sources of income and in case the respondents succeed in throwing the petitioner, the fundamental rights including the right to livelihood guaranteed to the petitioner shall be seriously jeopardized and infringed with impunity. The petitioner is operating his STD/PCO booth for the last more than ten years and he cannot be ousted on any grounds and there is no reason or justification with the respondents for not renewing the same. 4. With aforementioned submissions, the petitioner has prayed that the petition be allowed. 5. Per contra, respondents in their objections have stated that the closure of the STD/PCO of the petitioner is in accordance with the Policy/Guidelines issued by the Ministry of Railway (Railway Board), according to which the license will be for a period of maximum ten years only including the extension period and no further extension period shall be permitted. It is submitted that the allotment of contract/license in Railway is done in most transparent manner i.e. by open bids and equal opportunity is given to all the prospectus bidders. It is submitted that the allotment of contract/license in Railway is done in most transparent manner i.e. by open bids and equal opportunity is given to all the prospectus bidders. The petitioner in order to avoid his participation in the open bid process has filed the present writ petition for which the same is liable to be dismissed. It is further submitted that on the representation of the petitioner, the space measuring 5’ x 6’ to install PCO/STD/ISD/FAX/Internet at platform No.1 for a period of five years was allotted in favour of the petitioner vide allotment letter No.MC/410001/JAT/2005 dated 8.2.2006 on provisional basis. That the allotment was made in accordance with the policy/guidelines contained in the Railway Board letter No.2001/TG/IV/10/PCO dated 22.4.2002. That the agreement was executed with the petitioner on 20.04.2006 for a period of five years from 25.3.2006 to 24.3.2011. That the booth was allotted on Platform No.1 and not on reservation complex and it was allotted at the land license fee of Rs.5960 only with increase @ 10% every year with commission 65% as agreed by the petitioner. It is further submitted that before the expiry of five years period on 24.3.2011, the petitioner again applied vide request dated 7.2.2011 for renewal of contract/license. After considering the request of the petitioner, license of the petitioner was further renewed for a period of five years from 25.3.2011 to 25.3.2016 vide letter dated 15.3.2011. It is further submitted that there was no proposal to allot the PCO/STD booth to anyone on the space where the petitioner was working and that the closure of the STD/PCO of the petitioner is in accordance with the Policy/Guidelines issued by the Ministry of Railway (Railway Board), according to which the license will be for a period of maximum ten years only including the extension period and no further extension period shall be permitted. As such none of the action of the respondents can be challenged on any of the grounds mentioned in the petition. The petitioner under the extant policy in vogue has availed the full facility for operation of STD/PCO booth for ten years and as such on the basis of the railway guidelines/policy the petitioner cannot be given the permission to run the STD/PCO booth beyond such period as prescribed in the Railway Policy. The petitioner under the extant policy in vogue has availed the full facility for operation of STD/PCO booth for ten years and as such on the basis of the railway guidelines/policy the petitioner cannot be given the permission to run the STD/PCO booth beyond such period as prescribed in the Railway Policy. Since the period of ten years has expired on 24.03.2016, no further renewal/extension can be granted to the petitioner as per the Railway Policy in vogue and further more it is not within the competency of the respondents to renew the license to run PCO/STD booth after the expiry of ten years. Learned counsel for respondents has prayed that the petition is without any merit and the same be dismissed. 6. Vide order dated 03.05.2016 passed by this Court, respondents were directed to allow the petitioner to run STD/PCO booth and said interim direction is continuing till date. 7. Heard learned counsel for the parties and gone through the case file meticulously. 8. Admitted position before this Court is that the petitioner was initially granted permission/license to run the STD/PCO for a period of five years effective from 25.3.2006 to 24.3.2011 and subsequently on his representation; he was given extension of five years effective from 25.3.2011 to 25.3.2016. On 03.05.2016, this Court directed the respondents to allow the petitioner to run STD/PCO booth and said interim direction is continuing till date. In terms of Policy/Guidelines issued by the Ministry of Railway (Railway Board), according to which the license will be for a period of maximum ten years only including the extension period and no further extension period shall be permitted. Since the petitioner has already availed of the benefits of the said Policy/Guidelines issued by the Ministry of Railway (Railway Board), no further extension was permissible. 9. As per law, a licensee has no right and interest whatsoever in subject of license deed. The term ‘license’, a licensee occupies premises at the pleasure of the licensor/owner. In wonderful legalese, section 52 of the Easement Act, defines ‘license’ as follows. 9. As per law, a licensee has no right and interest whatsoever in subject of license deed. The term ‘license’, a licensee occupies premises at the pleasure of the licensor/owner. In wonderful legalese, section 52 of the Easement Act, defines ‘license’ as follows. “Where one person grant to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.” 10. A license is a personal right granted to a person to do something upon immovable property of the guarantor and does not amount to the creation of an interest in the property itself. It is purely a permissive right and is personal to the guarantee. It creates no duties and obligations upon the person making the grant and is therefore, revocable except in certain circumstances expressly. A licensee has no legal right to remain in possession of property after the time of licensee is expired. Where a license is validly revoked the licensee has no right to retain possession and therefore would not be entitled to any relief. After Expiry of License period if licensee retains possession, it is deemed to be unlawful and illegal. 11. In present case also petitioner was granted STD/PCO Booth at Reservation Counter Jammu with effect from 25.3.2006 to 24.3.2011 and subsequently on his representation; he was given extension of five years effective from 25.3.2011 to 25.3.2016. So his licensee has expired on 25.3.2016; thereafter he has no right to retain the property in dispute. 12. In view of above discussion, no legal fundamental right of petitioner has been violated. Petition is dismissed. Interim direction stands vacated.