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2020 DIGILAW 380 (TS)

Arun Kumar Agarwal v. South Central Railway

2020-03-13

CHALLA KODANDA RAM

body2020
JUDGMENT Challa Kodanda Ram, J. - Proceedings dated 30.09.2019 of the 3rd respondent - Divisional Railway Manager, South Central Railway rejecting the Application of the petitioner for transfer of licence of his mother in his favour in respect of Catering Stall on PFNo.1 middle at PARLI Railway Station immediately, on the ground that the competent authority has not accepted for transfer of licensee, is challenged in this Writ Petition. 2. The brief facts are: 3. Originally, the licence was granted in favour of the father of the petitioner viz. Chiranjilal Agarwal by the 1st respondent for running a canteen in Parli Railway Station, after whose death, the licence was transferred in favour of his mother Smt. Vimala Devi vide proceedings dated 08.04.2004 of the 3rd respondent, which, thereafter, was renewed from time to time up to 20.10.2019. It is stated, after the death of the mother of the petitioner, he sought transfer of licence in his favour vide Application to the 2nd respondent dated 10.01.2019, pursuant to which, the Assistant Commercial Manager had addressed the letter dated 14.02.2019 to submit the necessary documents therefor, which was also complied with. But however, through the impugned proceedings, the 3rd respondent advised the petitioner to close the canteen, even before the expiry of the licence period, that too without assigning any reasons. The petitioner therefore, addressed the letter dated 14.10.2019 to the 3rd respondent requesting to transfer the licence in his favour, but there is no response. 4. The 3rd respondent filed the counter-affidavit denying the averments of the writ affidavit. It is stated, the Writ Petition itself is not maintainable, as, in terms of Section 79 of the Code of Civil Procedure, the Union of India has to be impleaded as party respondent. It is also stated that as per Clause 18 of the Catering Policy, 2017 when original licensee expires, the licence can be transferred to the legal heir for the remaining part of the licence period. Accordingly the licence was transferred in favour of Smt. Vimala Devi, who was wife of the original licensee, in 2004, as per the guidelines of Railway Board Letter No. 81/FG/III/600/11, dated 27.06.1992 and thereafter, it was renewed till her death in 2019. Accordingly the licence was transferred in favour of Smt. Vimala Devi, who was wife of the original licensee, in 2004, as per the guidelines of Railway Board Letter No. 81/FG/III/600/11, dated 27.06.1992 and thereafter, it was renewed till her death in 2019. It is also stated, the transfer of license in subject case is governed by Catering Policy 2017 issued by the Railway Board vide Commercial Circular No. 20 with effect from 27.02.2017, para 18 of which states that 'transfer of licence to the legal heir would be allowed only in the event of death of the original licensee and the licence shall be transferred in the name of the legal heir for the unexpired period of the contract', hence, the petitioner cannot question the impugned proceedings. It is also stated that according to Para 21 of Railway Board Letter No. 2010/TG-III/600/25 Part 2, dated 19.08.2013, licence can be transferred in the name of spouse / legal heir for the unexpired period of the agreement only with personal approval of the Chief Commercial Manager / Divisional Railway Manager/MD, IRCTC, as the case may be, hence, the Divisional Railway Manager is the Competent Authority to accept / reject the request for transfer of licence of the petitioner herein. It is further stated that the judgment of this Court in Writ Petition No. 14577 of 2013, as confirmed by the Supreme Court in Civil Appeal Nos. 618-620 of 2016, laid down that 'all the existing licensees are entitled to renewal of their licence for one stall and renewal is not a matter of right and it is the discretion of the authority and as per the agreement with the licensee'. 5. A reply-affidavit was filed specifically refuting the averments in the counter-affidavit that the licence would be transferred in the name of legal heir when the original licensee expires only and that the transfer of licence would be done only once, is false. As per Railway Catering Policy, 2010 or 2017, and as per Condition No. 40, licence deed shall be transferred in the name of legal heir of the licensee in the event of his / her death, till the expiry of the licence period. Clause 18 of Railway Catering Policy 2017 or Clause 21 of Catering Policy, 2010 only speak that the licence will be transferred to the legal heir only in the event of death of the original licensee. Clause 18 of Railway Catering Policy 2017 or Clause 21 of Catering Policy, 2010 only speak that the licence will be transferred to the legal heir only in the event of death of the original licensee. The purport of the said clauses is that the licence would not be transferred to others except in the event of death of licensee. The expression 'original licensee' refereed to in the clause is used only with reference to the licensee without any significance and the clause does not make any distinction between original licensee or licensee. 6. Learned counsel for the petitioner contends that the 3rd respondent is not the Competent Authority to issue the impugned proceedings and that he did not refer to any proceedings of Respondent No.2 rejecting the transfer. According to him, the order of rejection lacks reasons as to what prevented the 3rd respondent to transfer the licence in favour of the petitioner when it was done from his father to mother. He vehemently contends that as per the Railway Board Proceedings and as per the terms of agreement, the petitioner is entitled to the relief prayed for. Directing closure of the canteen even before expiry of the licence period is illegal and without jurisdiction, laments the learned counsel. He quotes the judgment of this Court in Writ Petition No. 14577 of 2013 dated 16.08.2013, as affirmed in Civil Appeal No. 618-620 of 2016, dated 29.11.2016 and contends, all the existing licensees are eligible for renewal for one stall for every three years. Taking cue from Clause 20 of the Catering Policy, 2017, the learned counsel urges that the case of the petitioner may be considered. 7. Sri T.S.Venkata Ramana, learned Standing Counsel for the respondents submits that the order impugned does not warrant any interference for the licence can be transferred once to the legal heir after death of the original licensee. 8. This Court to ascertain whether the order was made by the 3rd respondent and communicated by the Senior Divisional Commercial Manager, or as contended by the learned counsel for the petitioner, it was made by the Divisional Commercial Manager, called for the original file. On 05.03.2020, the file was produced and the learned Standing Counsel submitted that the decision, as a matter of fact, was taken by the Divisional Railway Manager. The learned counsel for the petitioner also perused the record. 9. On 05.03.2020, the file was produced and the learned Standing Counsel submitted that the decision, as a matter of fact, was taken by the Divisional Railway Manager. The learned counsel for the petitioner also perused the record. 9. In the facts of the present case, as the note file discloses that the decision was taken by the Divisional Railway Manager, who is the competent authority in terms of the policy guidelines of the Railways, the challenge to the impugned order on the ground of competency does not survive. It is the specific case of the petitioner that he is governed by 2010 policy an in terms of para 16.1.3, renewal is to be accorded every three years and in terms of the Supreme Court judgment, the petitioner is entitled to renewal . The next ground required to be considered is whether there are any reasons for rejecting the claim of the petitioner for renewal as is done in cases of others on the ground of the petitioner being the legal heir of the deceased licensee Smt. Vimala Bai and the said rejection is contrary to the Catering Policy, 2017 10. For answering the above and in the factual backdrop, we may notice the Catering Policy, 2010 and 2017, so far as it is relevant. Clause 21 of the 2010 Policy reads as under: "TRANSFER OF LICENSE: Transfer of license to the spouse/legal heir would be allowed only in the event of death of the original licensee. The license can be transferred in the name of spouse/legal heir for the unexpired period of the agreement only with personal approval of the Chief Commercial Manager / Divisional Railway Manager / MD, IRCTC as the case may be. Nomination of the legal heir should be obtained from the licence holder at the time of entering into contract. The nomination should be only from amongst the family members. Renewal of license on transfer to the legal heir may be permitted only in the case of licensees belonging to reserved minor catering units as per existing instructions. Clause 18 of the 2017 Policy: "TRANSFER OF LICENSE: Transfer of license to the legal heir would be allowed only in the event of death of the original licensee. The license shall be transferred in the name of the legal heir for the unexpired period of the contract as per General Conditions of Contract (GCC)of Railways. Clause 18 of the 2017 Policy: "TRANSFER OF LICENSE: Transfer of license to the legal heir would be allowed only in the event of death of the original licensee. The license shall be transferred in the name of the legal heir for the unexpired period of the contract as per General Conditions of Contract (GCC)of Railways. No subletting will be allowed." Clause 20: APPLICABILITY OF THE NEW POLICY: 20.1 The revised catering policy will be applicable with immediate effect i.e. from the date of issue. This policy supersedes all prior policy circulars issued from time to time unless specifically referred to in this policy document. 20.2 Tenders that have been finalized and LoA issued prior to the date of notification of this policy shall be allowed to continue as per policy guidelines prevailing at that time. Zonal Railways will cancel all such tenders and return the earnest money to the tenderer in cases, where LoA has not been issued before issuance of this circular. 11. It is the specific case of the petitioner that he is governed by 2010 policy. It may be noted that the judgment of this Court in Writ Petition No. 14577 of 2013 referred to by the learned counsel for the petitioner, which ultimately culminated in the judgment of the Supreme Court is also in the context of 2010 policy. In the said case, the petitioners were denied extension on the ground that 2010 policy would apply only to such of those licensees who were granted licence in terms of 2010 policy and thus, they were not entitled for renewal, particularly in terms of para 16.3 of 2010 policy which reads as under: " 16.3 Allotments after expiry of this extended period will be made by calling for fresh tenders /applications as the case may be, and the process will be started well in time so that fresh allotments are finalized timely and further extension of existing contracts is not necessitated." 12. There is no dispute that the petitioner's mother was the legal heir of the original licensee Mr. Chiranji lal Agarwal, who was initially granted licence for three years and thereafter, got it renewed from time to time, and was transferred in the name of the petitioner's mother Smt. Vimala Bai which term also expired by 20.10.2019 (as on the date of filing of the Writ Petition). Chiranji lal Agarwal, who was initially granted licence for three years and thereafter, got it renewed from time to time, and was transferred in the name of the petitioner's mother Smt. Vimala Bai which term also expired by 20.10.2019 (as on the date of filing of the Writ Petition). It is therefore, clear the benefit of extending the facility for one term was in fact, done in favour of the petitioner's mother in 2004 and thereafter, the licence was renewed from time to time up to 20.10.2019. Further, the challenge in Writ Petition No. 14577 of 2013 and batch, on which the petitioner places reliance, was to the tender notification dated 26.04.2013 on the ground that the existing licensees were entitled for renewal for another period of three years in terms of 2010 policy. The argument of the respondents that 2010 policy is applicable only to the licenses granted after the said policy came into force was specifically rejected, stating "nowhere in the 2010 policy, the licensees are classified into two categories, namely, those who were granted licenses prior to the commencement of the 2010 policy and those who were granted licenses after the said policy came into force. On the contrary, all the GMUs and SMUs were treated under one category, irrespective of whether the licenses were granted by the Railways prior to 2005 or by the IRCTC from 2005 and by the Indian Railways after 2010, renewal of licenses is envisaged subject to their fulfillment of three requirements referred to hereinbefore". Finally the said Writ Petitions were disposed of as under: " For all the above reasons, I am of the opinion that the claims of the members of the petitioner- Association for renewal of their licenses deserve to be considered on their own merits and that they are entitled for renewal subject to their satisfying the conditions stipulated in paras 16.1.3 and 16.2.1 of the 2010 policy. In the result, the Writ Petitions are allowed in the following terms: 1. The members of the petitioner - Association shall make applications for renewal of their licenses within one month from today. 2. Respondent No.3 shall consider each of such applications with reference to paras 16.1.3 and 16.2.1 as the case may be, and communicate its decision to the members of the petitioner Association. 3. The members of the petitioner - Association shall make applications for renewal of their licenses within one month from today. 2. Respondent No.3 shall consider each of such applications with reference to paras 16.1.3 and 16.2.1 as the case may be, and communicate its decision to the members of the petitioner Association. 3. In the event of rejection of the application of any of the licensees for renewal, respondent No. 3 shall record reasons therefor and communicate the same to the licensee concerned. 4. Till completion of the above mentioned process, the members or the petitioner - Association shall be permitted to continue to run their respective GMUs and SMUs. 13. The above judgment of the learned Single Judge was confirmed by the Division Bench and thereafter by the Supreme Court in Civil Appeal No. 618-620 of 2016 (Senior Divisional Commercial Manager v. S.C.R. Caterers, Dry Fruits, Fruit Juice Stalls Welfare Association) dated 29.01.2016. In the light of the above, it is clear that the issue before the Courts was only with respect to the right of renewal after expiry of the initial period, irrespective of the fact whether licence was granted prior to 2010 policy or after 2010 policy came into force. This Court is not in agreement with the contention of the learned counsel for the petitioner that a licensee is entitled for renewal for eternity notwithstanding the policy changes, particularly after the new policy came into existence. The facts in the present case disclose that it was the petitioner's father who was initially granted licence in 1974 which was renewed from time to time and transferred in favour of his mother in 2004, after his death, and thereafter, she was also granted renewal up to 20.10.2019. In those circumstances, it cannot be said that the judgment of the Supreme Court has anything to do in the case of the petitioner's mother. The judgment of this Court, as confirmed by the Supreme Court, does not lay down any law to the effect that, notwithstanding the change in policy, a licensee, who has secured right to sell / run a canteen in a railway station, is entitled to continue under the same licence ignoring the terms of licence, the policy under which such licence came to be granted and the change in the policy thereafter. This Court is unable to see any such policy existing in the material placed before it. Similar argument, in fact, was rejected by a Division Bench of Madras High Court in The Divisional Railway Manager, Southern Railway, Salem Division v. The Senior Divisonal Commercial Manager (Co-ordinateion), Southern Railway (W.A.No. 971 of 2018), though, in fairness, the said judgment does not make any reference to the judgment of the Supreme Court referred to supra. If the argument of the learned counsel is to be accepted, every individual licensee, if is able to secure and enter into licence agreement once, would be entitled to continue for eternity notwithstanding the policy, notification and terms of the licence under which he obtains a licence. 14. With respect to the argument of the learned counsel for the petitioner that in terms of para 21 of the Catering Policy 2010, the petitioner would be entitled to be granted licence in his favour as the legal heir of Smt. Vimala Bai, who was admittedly granted renewal in her favour for the period from 21.10.2016 to 20.10.2019 commends acceptance. However, in terms of paras 21 and 18, the right of the petitioner would be only to continue for the unexpired. It may be noted that such renewal can be traceable only to Catering Policy 2010. In terms of para 21 of the 2010 policy, the spouse /legal heir is entitled to seek transfer of licence in his / her favour for the unexpired period of the licence. 15. In the present case on hand, the petitioner's mother expired on 26.12.2018, as per the intimation given by the petitioner on 10.01.2019. The licence granted in favour of the petitioner's mother is valid up to 20.10.2019. In that view of the matter, the contention of the learned counsel for the petitioner that the petitioner is entitled for transfer of licence in his name for the unexpired period at least till 20.10.2019 cannot be rejected. The present Writ Petition came to be filed on 26.11.2019. As a matter of fact, the licence granted in favour of the petitioner's mother also stands expired and it is not the case of the petitioner that the petitioner did not run the canteen at Parli Railway Station till then. The present Writ Petition came to be filed on 26.11.2019. As a matter of fact, the licence granted in favour of the petitioner's mother also stands expired and it is not the case of the petitioner that the petitioner did not run the canteen at Parli Railway Station till then. However, the argument of the learned counsel for the petitioner that as a legal heir of Smt. Vimala Bai, the petitioner is entitled to seek renewal of the licence and further, is entitled to renewal of the same, in view of the judgment, is liable to be rejected for the detailed reasons stated in the preceding paragraphs. 16. The supplementary argument of the learned counsel for the petitioner that the impugned order did not set out any reasons for not considering the petitioner's case is liable to be rejected, firstly for the reason that as a matter of right, the petitioner is not entitled for renewal and secondly, there is no requirement of giving reasons as the 3rd respondent is not adjudicating or determining any right of the petitioner. The entire case of the petitioner rests on the judgment of the Supreme Court which is in the context of 2010 Policy, but thereafter, 2017 Policy had come into force with effect from 27.02.2017. In this regard, we may note the objectives of Catering Policy 2017: " With the objective to provide quality food to our customers unbundling of catering services on trains has been envisaged in Catering Policy 2017. This policy supersedes Catering Policy 2010 and related instructions, unless specifically referred to in this policy document. IRCTC has been mandated to carry out the unbundling by creating a distinction primarily between food preparation and food distribution. In order to upgrade quality of food preparation IRCTC shall be setting up new kitchens and upgrade existing ones. Modifications have been necessitated in the management of catering service on mobile and static units to implement social objectives of the Government besides encouraging fair competition in allotment of catering units over stations. IRCTC shall be responsible for catering services through mobile catering units, Base Kitchens, Cell Kitchens, refreshment Rooms at A1 & A category of stations, Food Plazas, Food Courts, Train Side Vending, Jan Ahaars. All other catering units like Refreshment Rooms at B and below category of stations, AVMs., Milk Stalls, Trolleys shall be managed by the Zonal Railways." 17. IRCTC shall be responsible for catering services through mobile catering units, Base Kitchens, Cell Kitchens, refreshment Rooms at A1 & A category of stations, Food Plazas, Food Courts, Train Side Vending, Jan Ahaars. All other catering units like Refreshment Rooms at B and below category of stations, AVMs., Milk Stalls, Trolleys shall be managed by the Zonal Railways." 17. As can be seen from the above, the entire new procedure has been adopted in a holistic manner by the respondent - Railways and the same cannot be thwarted in the name of the pronouncement of the Supreme court which was limited to the facts of the particular case. In those circumstances, there are no merits in the Writ Petition and accordingly, the same is dismissed, but however, on humanitarian grounds the case of the petitioner, is left open to be considered. It is made clears, the same cannot be set as a precedent hereafter.