Rajendra Sharma, S/o. Bako Sharma v. Union of India through the Ministry of Railway
2020-10-16
MADHURESH PRASAD
body2020
DigiLaw.ai
JUDGMENT : This case has been taken up for consideration through Video Conferencing. 2. Heard learned counsel for the petitioner and the respondents. 3. It is submitted by the petitioner’s counsel that the right for Pah Bazari was given to the petitioner by the Authorities without any misrepresentation or any suppression on behalf of the petitioner. Subsequently, the same is sought to be cancelled by the order dated 23.03.2020 before conclusion of the licence (Pah Bazari Rights). It is further submitted that the ground taken for such cancellation is that there is an earlier decision within the Railways not to grant Pah Bazari Rights. Such decision is of the year, 2005. In spite of such decision, the Authorities have granted the rights. The petitioner cannot be made to suffer cancellation of his licence midway, because of fault on part of the Authorities in issuing the licence contrary to the earlier restriction on grant of such licence (Pah Bazari Rights). It is also submitted that the order has been issued in violation of the principles of natural justice as no show cause or any hearing has been granted prior to cancellation of the licence/agreement. 4. The learned counsel for the Railways submits that due to oversight, the Pah Bazari Rights appear to have been granted. It is only when the Authorities have realized their mistake that the order dated 23.03.2020 has been issued cancelling the rights, that also in terms of Clause 5 of the Agreement under which rights were granted. 5. On consideration of the submission of the parties, this Court would find that cancellation of the Pah Bazari Rights have been done relying on Clause 5 of the Agreement under which the rights were granted. Clause 5 contemplates that the same may be cancelled by giving notice of 30 days. This Court would consider it useful to reproduce Clause 5 of the Agreement which reads as follows : ^^5- ykbZlsal/kkjh bl djkj ds vUrxZr izkIr lqfo/kkvksa dks u rks gLrkUrfjr djsxk u gh jsgu ;k miiV~Vs ij nsxkA ykbZlsalnkrk dks ;g vf/kdkj gksxk fd fcuk dksbZ dkj.k crk;s 30 fnuksa dh uksfVl nsdj ykbZlsal dks lekIr djus ds fy, Lora= gksxhA ykbZlsal/kkjh ,oa ykbZlsalnkrk ds chp fdlh Hkh fookn dh fLFkfr esa fuykeh Lohd`r djus okys vf/kdkjh dk fu.kZ; nksuksa i{kksa dks ekU; gksxk** 6.
The order, which has been issued cancelling the petitioner’s Pah Bazari Rights, is dated 23.03.2020, but with effect from 01.04.2020. It is manifest from the order that one month’s notice, as contemplated under Clause 5 of the Agreement, has not been given to the petitioner. Thus, the order is not sustainable in terms of Clause 5 of the Agreement which requires a 30 days notices for cancellation of the Agreement simplicitor. 7. Since, no allegations have been made against the petitioner of any kind and cancellation is simplicitor and not as a result of any penal action, or casting any stigma, Authorities would be justified in resorting to cancellation of Agreement, but only if it is based on 30 days notice, as contemplated under Clause 5 of the Agreement. 8. The order dated 23.03.2020, therefore, is clearly unsustainable. The same is hereby quashed. 9. The Authorities would be at liberty to grant 30 days notice in accordance with Clause 5 of the Agreement dated 15.07.2019 and proceed for cancellation simplicitor of the Agreement dated 23.03.2020. 10. The writ petition stands allowed.