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2017 DIGILAW 2534 (ALL)

M. L. TANDON AND SONS v. U. O. I.

2017-11-03

DEVENDRA KUMAR UPADHYAYA, RAJESH SINGH CHAUHAN

body2017
JUDGMENT : DEVENDRA KUMAR UPADHYAYA, J. 1. Heard Sri Ram Raj, learned counsel for the petitioner and Sri S.B. Pandey, learned Assistant Solicitor General of India for the opposite parties. 2. Learned Assistant Solicitor General of India has produced the instructions received by him from the competent authority of Railways in the office of Divisional Railway Manager, Northern Railway, Lucknow through his letter dated 8.10.2017 which are taken on record. 3. By means of instant writ petition filed on 4/5-10-2017 the petitioner prays mainly a single relief which is being reproduced hereunder : "i. Issue a writ of mandamus or a writ, order or direction in the nature of Mandamus commanding the opposite parties to permit the petitioner to continue to operate and run its business from the Stall Nos. 1 situated at Platform No. 2/3, Stall Nos. 2 and 3 situated at Platform No. 1, Rai Bareli Railway Station, Rai Bareli till a fresh selection is made by the opposite parties either by way of inviting tenders or by open auction/otherwise." 4. However, petitioner filed an amendment application on 7.10.2017 seeking amendment to impeach the order dated 5.10.2017 passed by the Assistant Commercial Manager, Northern Railway, Lucknow whereby a direction has been issued to opposite party No. 4 to ensure that after 10.10.2017 the petitioner shall not operate and manage all the three stalls numbered as Stall Nos. 1 situated at Platform No. 2/3 and Stall Nos. 2 and 3 all situated at Platform No. 1, Rai Bareli Railway Station, Rai Bareli. Besides, the petitioner also prayed that the Assistant Commercial Manager, Northern Railway, Lucknow be impleaded as opposite party No. 5 in the array of opposite parties. The aforesaid application was, accordingly allowed and petitioner has impleaded Assistant Commercial Manager, Northern Railway, Lucknow as opposite party No. 5 and has made proposed amendments in the memo of the writ petition. The petitioner thereafter filed a copy of the amended writ petition on 10.10.2017. 5. After the aforesaid amendment having been permitted, two additional prayers have been incorporated as prayer No. (ia) and (i-b) which are being reproduced herein below : "(i-a). Issue a writ, order or direction in nature of certiorari quashing the impugned order dated 5.10.2017, passed by the opposite party No. 5/Assistant Commercial Manager, Northern Railway, Lucknow, served upon the petitioner on 06.10.2017 contained in Annexure No. 16 to this writ petition. (i-b). Issue a writ, order or direction in nature of certiorari quashing the impugned order dated 5.10.2017, passed by the opposite party No. 5/Assistant Commercial Manager, Northern Railway, Lucknow, served upon the petitioner on 06.10.2017 contained in Annexure No. 16 to this writ petition. (i-b). Issue a writ of mandamus or a writ, order or direction in the nature of Mandamus commanding the opposite parties not to give effect to the operation and implementation of the impugned order dated 5.10.2017, passed by the opposite party No. 5/Assistant Commercial Manager, Northern Railway, Lucknow served upon the petitioners on 6.10.2017 contained in Annexure No. 16 to this writ petition. 6. The matter pertains to three stalls, No. 1 at Platform No. 2/3 and stall Nos. 2 and 3 situated at Platform No. 1 allotted to the petitioners at Rai Bareli Railway Station, Rai Bareli. These stalls were allotted to the petitioner by Indian Railway Catering and Tourism Corporation (I.R.C.T.C.) under the Catering Policy, 2005 on 11.10.2009 for a period of five years. The term of the aforesaid license was extended for three years. As such the term of 5 years + 3 years extension has elapsed on 10.10.2017. The order dated 5.10.2017 impugned in the writ petition, was passed by the opposite party No. 5 indicating the aforesaid fact directing the opposite party No. 4 to ensure that after 10.10.2017 the petitioner shall not operate and manage all the aforesaid three stalls. 7. The counsel for the petitioner has submitted that this Court passed an order dated 10.8.2007 in Writ Petition No. 5644(M/B) of 2007 : Ram Nawal Pandey v. Union of India and others, in an identical matter as per the statement of the counsel for the petitioners, permitting the petitioner of that writ petition to continue with the contract till fresh selection is made by the Railways either by way of inviting tenders or by open auction, as the case may be. The petitioner has filed the aforesaid order with the writ petition as Annexure No. 2. The counsel for the petitioner submitted that the aforesaid order has been passed by a coordinate Bench of this Court on the basis of dictum of Hon'ble Apex Court reported in (2005) 12 SCC 261 : N.B. Krishna Kurup v. Union of India and others. The petitioner has filed the aforesaid order with the writ petition as Annexure No. 2. The counsel for the petitioner submitted that the aforesaid order has been passed by a coordinate Bench of this Court on the basis of dictum of Hon'ble Apex Court reported in (2005) 12 SCC 261 : N.B. Krishna Kurup v. Union of India and others. The operative portion of Writ Petition No. 5644(M/B) of 2007; Ram Nawal Pandey is being reproduced herein below : "We, therefore, direct that the petitioner shall be allowed to continue with the contract till a fresh selection is made by the railways either by way of inviting tenders or by open auction, as the case may be. On award of such fresh license to any person whosoever he may be, the petitioner would have no right to continue thereafter and his extension of contract shall immediately ceases with effect from the said date. The petitioner will also be at liberty to apply for the contract in open auction or in the tender process, if he is otherwise eligible" 8. The petitioner has also relied upon a judgment of the Apex Court in Re: N.B. Krishna Kurup (supra) which he has enclosed as Annexure No. 1 to the writ petition. The counsel for the petitioner has referred to para No. 10 of the aforesaid judgment of the Hon'ble Apex Court which is being reproduced herein below: "10. As the writ petitions had been filed by the Indian Railways Caterers Association representing the caterers providing catering services in the Railways, we are not in a position to ascertain the existing arrangement which has been arrived at by the Indian Railways/IRCTC. Mr. Gourab Banerjee, learned Senior Counsel appearing for IRCTC has divided the existing licensees into four categories which are as follows: "Category I All cases where licences granted to erstwhile licensees have expired/not been renewed, after which fresh licences have been granted by IRCTC through financial bidding process. Erstwhile licensees do not/shall not have any right of renewal of licence. Category II In cases where licences granted have expired on or before 31.3.2005, but ad hoc extensions have been granted, and process for grant of fresh licences has been initiated by IRCTC. Such licences/licensees shall be permitted to continue in terms of their ad hoc extension already granted and in any event till 30-6-2005. Category II In cases where licences granted have expired on or before 31.3.2005, but ad hoc extensions have been granted, and process for grant of fresh licences has been initiated by IRCTC. Such licences/licensees shall be permitted to continue in terms of their ad hoc extension already granted and in any event till 30-6-2005. (A three-month period from today.) Category III In cases where licences granted have expired on or before 31.3.2005, but ad hoc extensions have been granted and process for grant of fresh licences has not been initiated by IRCTC. Such licences/licensees shall be permitted to continue in terms of their ad hoc extension already granted and in any event till 30-6-2005, whichever is later, (Subject to satisfactory performance.) Note: This will give a three month window for finalisation of fresh licences. Category IV In cases where licences granted are to expire after 31-3.2005. Such licences/licencee's shall be granted ad hoc extension at least up to 30.6.2005 and until such time that the process of grant of licence of fresh licence is completed by IRCTC. (Subject to satisfactory performance.)" 9. Out of aforesaid four categories of licenses, the counsel for the petitioner categorically has referred to Category IV urging that he be also given such benefit. Precisely, the counsel for the petitioner submitted that the petitioner be permitted to continue to operate and run its business till a fresh selection is made by the opposite parties either by inviting tenders or by open auction. 10. Counsel for the petitioner has also cited yet another judgment of Hon'ble Apex Court reported in (1982) 3 SCC 338 : M/s. Raj Restaurant and another v. Municipal Corporation of Delhi submitting therein that for refusal to give license or cancellation or revocation of license would be visited with both civil and pecuniary consequences and, therefore, the opportunity of hearing is must. 11. Counsel for the petitioner also cited the judgment of Andhra Pradesh High Court in Re: S.C.R. Caterers, Dry Fruits, Fruit Juice Stalls Welfare Association v. Senior Divisional Commercial Manager, Vijaywada Division, South Central Railway, Vijaywada, Writ Petition No. 14577 of 2013 decided on 16.8.2013 urging that the petitioner has got right of renewal of his license. 12. 11. Counsel for the petitioner also cited the judgment of Andhra Pradesh High Court in Re: S.C.R. Caterers, Dry Fruits, Fruit Juice Stalls Welfare Association v. Senior Divisional Commercial Manager, Vijaywada Division, South Central Railway, Vijaywada, Writ Petition No. 14577 of 2013 decided on 16.8.2013 urging that the petitioner has got right of renewal of his license. 12. Another case relied upon by the learned counsel for the petitioner is the judgment of Hon'ble Apex Court reported in (2016) 3 SCC 582 : Senior Divisional Commercial Manager, South Central Railways v. S.C.R. Caterers, Dry Fruits, Fruit Juice Stalls Welfare Association whereby the judgment and order passed by the Andhra Pradesh High Court (supra) has been upheld by the Hon'ble Apex Court. 13. The prayer on behalf of the petitioner so made during the course of the argument and even in the writ petition is that the petitioner be permitted to continue to operate and run its business till fresh selection is made by the opposite parties either by way of inviting tenders or by open auction. In other words, the petitioner is seeking an ad hoc extension of his licence till a fresh selection is made in view of the guidelines laid down by the Hon'ble Apex Court in Re: N.B. Krishna Kurup (supra) in para 10 of the order. 14. Per contra, Sri S.B. Pandey vehemently submitted that the term of contract of 5 years + 3 years extension have already elapsed and petitioner has got no legal right to get an ad hoc extension of his licence. Sri Pandey submitted that one similar matter has already been dismissed by the coordinate Bench of this Court vide order dated 8.2.2017 passed in Writ Petition No. 2807(M/B) of 2017 : M/s. A.S. Sales Corporation v. Union of India and others. 15. Counsel for the petitioner has also placed reliance on the order dated 13.6.2016 passed in Writ Petition No. 13906 (M/B) of 2016 : M/s K.B. Jeelani Fruit and Catering Services v. Union of India and others wherein on the consent of counsel for the Railways, the ad hoc extension was given to the petitioner of that writ petition. The counsel for the petitioner requested that he be granted parity of the aforesaid order dated 13.6.2016. The counsel for the petitioner requested that he be granted parity of the aforesaid order dated 13.6.2016. However, Sri S.B. Pandey submitted, on the basis of instructions received from the Railways, that the Railways do not intend to continue any such assignment with anyone and as a matter of fact, the catering services are being contemplated to be handed over to the Indian Railways Catering and Tourism Corporation. 16. This Court has put a specific query to the counsel for the petitioner to show his legal right to get an ad hoc extension even till a fresh selection is made but he could not show his legal right to that effect. The counsel for the petitioner only cited some case laws which have been referred to herein above. 17. It is settled proposition of law that for getting any relief under extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, a violation of any legal/constitutional right must be established. 18. Further, the counsel for the petitioner could not show any case law of the Hon'ble Apex Court or of this Court or of any High Court wherein the Courts have expressed as a proposition of law the view that if the term of license has elapsed even then an ad hoc extension should be granted till a fresh selection is made by way of inviting tenders or by open auction. Hon'ble Apex Court has never held that the licencee has got legal right to get an ad hoc extension of the licence if its' term has already expired. None of the judgments cited by learned counsel for the petitioner contain any such ratio or principle of law as is being canvassed by him. Thus, the cases relied upon by the petitioner will not come to his aid. In those cases the Hon'ble Apex Court has only observed some conditions without laying down any principle. The Hon'ble Apex Court has held in catena of cases that the High Courts and other subordinate Courts are bound by the Ratio Desidendi of a decision of the Apex Court and not by mere observations or even directions given in the facts of a particular case. 19. The Hon'ble Apex Court has held in catena of cases that the High Courts and other subordinate Courts are bound by the Ratio Desidendi of a decision of the Apex Court and not by mere observations or even directions given in the facts of a particular case. 19. The stalls in question were given to the petitioner through a license which though is not on record of this writ petition, however, it has been brought to the notice of the Court by Sri S.B. Pandey, learned Assistant Solicitor General of India that Clause 3 of the said license clearly provides that term of license will be five years from the date of commencement of the services to be provided by the petitioner. It further provides that an extension of three years will be considered subject to satisfactory performance. In this case the term of initial five years as set out in the license has been utilized by the petitioner and after completion of the initial term of five years the extension of three years as contemplated in Clause 3 of the license was also given to the petitioner. The terms and conditions of the license do not contemplate or envisage any further extension as such it is not a case where the term of the license has been cancelled which would have required an opportunity of hearing to be given to the petitioner. The submission made in this regard by the learned counsel for the petitioner is also, thus, erroneous and reliance placed by Sri Ram Raj on the judgments cited on this issue is also misconceived. It is a case where the term as provided in the license has come to an end as already observed above the terms of the license does not envisage any second extension, hence, even as per the terms and conditions of the license there does not exist any right of the petitioner to get any extension even on ad hoc basis till the new arrangement to run the stalls is made by the Railways. In absence of any such right either contractual or otherwise, the prayers made in this writ petition cannot be granted. 20. In view of the above, we are of the considered view that the prayer seeking ad hoc extension of the term of the contract, which has already elapsed, is not legally tenable. In absence of any such right either contractual or otherwise, the prayers made in this writ petition cannot be granted. 20. In view of the above, we are of the considered view that the prayer seeking ad hoc extension of the term of the contract, which has already elapsed, is not legally tenable. Therefore, the instant writ petition is dismissed being devoid of merits. 21. No order as to costs.