Allahabad High Court
Bhujarat Yadav (D) Through L.Rs. And ... vs Union Of India (Uoi) And Ors. on 17 August, 2007
Equivalent citations: 2007(4)AWC3467
Author: Rajes Kumar
Bench: B.S. Chauhan, Rajes Kumar
JUDGMENT Rajes Kumar, J.
1. By means of the present writ petition under Article 226 of the Constitution of India, the petitioners are challenging the impugned notices issued by the respondent No. 5 whereby the licence fee of vending/catering sale at different stations in the North Eastern Railway has been enhanced from 5 to 45 times.
2. The claim of the petitioners are that they are holding the vending licence for the sale of eatables at the Railway Station. Their licences have been renewed from time to time. It is also claimed that during the subsistence of such licence, the respondent has increased the licence fee from the date of the notice for the subsequent period arbitrary ranging from 5 time to 45 times. According to the petitioners such increase is wholly arbitrary and unreasonable and fixed without hearing the petitioners without making any proper exercise.
3. The claim of the respondent is that under the licence, they have a right to enhance the licence fee during the subsistence of the licence and, accordingly, the licence fee has been enhanced.
4. Heard Sri B.D. Mandhyan and Sri Chhotey Lal Pandey, learned senior advocate for the petitioners and Sri U.N. Sharma, senior advocate and Sri Govind Saran, learned Counsels for the respondents.
5. Counter and rejoinder-affidavits have been exchanged. With the consent of learned Counsel for both the parties, present writ petitions are being disposed of.
6. Learned Counsel for the petitioners submitted that it is true that under the licence, respondent had a right to Increase the licence fee during the subsistence of the licence, but such revision should be reasonable and not arbitrary. While in the present case, licence fee has been enhanced from 5 times to 45 times. They submitted that before revising the licence fee, no show cause notice or any opportunity has been given to the petitioners and the petitioners have not taken into confidence in this regard. He submitted that the petitioners are the poor persons having small capital to carry on the business and are unable to pay the enhanced licence fee. The prices of the goods have been fixed keeping in view of the old licence fee and the petitioners were not expecting for such an arbitrary increase in the licence fee. They placed reliance upon the decision in the case of Ganesh Chandra v. Union of India and Ors. 2000 (4) AWC 3417, wherein the Division Bench of this Court has set aside the enhancement of the licence fee within six months of the date of the licence from Rs. 2,500 per annum to Rs. 7,175 almost three times.
7. Sri U.N. Sharma, learned senior advocate and Sri Govind Saran appearing on behalf of the respondents submitted that under Clause 2(c) of the licence, the Railway had a power to revise the rate during the subsistence of the licence. They submitted that the licence fee had been enhanced prospectively from the date of the notice/order for the subsequent period having regard to the turnover of the previous years. They submitted that the licence fee has not been increased since more than 10 years. Thus, the enhancement of the licence fee may appear to be little higher in comparison to the previous licence fee, but it is wholly justified having regard to the turnover of the petitioners. They submitted that the enhancement of the licence fee is based on the relevant consideration after doing proper exercise in this regard. Learned Counsel of the respondents placed reliance on the decision of the Apex Court in Civil Appeal No. 4897 of 2002 N.B. Krishna Kurup v. Union of India, decided on 29th March, 2005, wherein similar enhancement with prospective effect has been upheld. Reliance is also placed on the decision of the Bombay High Court in the case of Indian Railway Caterers and Ors. v. Union of India passed in Writ Petition No. 569 of 2006 decided on 12th April, 2006.
8. In support of the contention that the Railway has a right to enhance the licence fee under the agreement, the Division Bench decision of this Court in Writ Petition No. 4814 of 2000 Barkat Khan and Ors. v. Union of India, decided on 11.10.2000 and in Writ Petition No. 50484 of 2002 Smt. Siraj Nasir and Ors. v. Union of India decided on 31.10 2002 : 2003 (1) AWC 296 have been referred.
9. Learned Counsels for the respondents further submitted that in each licence, there is an arbitration clause and in case, If the petitioners are aggrieved, they can address their grievances under the said clause.
10. Having heard the learned Counsel for the parties, we have gone through the record and given our anxious consideration to the rival submissions.
11. The Division Bench of this Court in the case of Barkat Khan and Ors. v. Union of India (supra) and in the case of Smt. Siraj Nasir and Ors. v. Union of India (supra) have held that the agreement between the Railway and the Vendors are non statutory in nature and the railway has power under a condition of licence to alter the terms of the licence and enhance the licence fee.
Clause 2(c) reads as follows:
Rail prashashan is karar ki avdhi ke dauran ktsi bhi samay is khand main ulakhit sabhi ya kinhi prabharo ka aisa punirachhar karne ka adhlkar aarajchhit rakhta hai jo mukhya vanijiya adhichak, purvottar rail apne ek matra vivekaanusar paristhithiyo ko dekhtey hue uchit samjhe aur anyghpatdhari us tarlk se aise punirichat prabharo kamaday karne ke liye aabudh hoga jis tarik ko ye prabhar rail prashashan dwara anugyapitdhari ko kiyajaye.
12. In the case of Ganesh Chandra v. Union of India and Ors. (supra) on which the reliance has been placed by the learned Counsel for the petitioner. The Division Bench of this Court has set aside the enhancement of the licence fee within six months of the date of the licence from Rs. 2,500 per annum to Rs. 7,175 almost three times. While holding the said enhancement arbitrary, it has been noticed that the petitioners had a stall at chauraha Railway Station which is a very small railway station at Kanpur Jhansi route in which only passenger train stopped. In the report of the Chief Commercial Inspector also found that only samosas and bhujia were kept for the purposes of sale besides tea and there were not many items were being sold. The Inspector report was silent with regard to the quantum of sale. Learned Counsel for the respondent submitted that this case does not apply in the present case because in the present cases the licence fee has been fixed on the basis of the turnover.
13. Thus, in our view, there is no manner of doubt that the railway administration has a power to revise any of the conditions, which also includes the enhancement of the licence fee during the existence of licence/agreement. Perusal of the aforesaid clause reveals that such revision should be on a best judgment having regard to the circumstances. In our opinion, best judgment should not be arbitrary, unreasonable, vindictive and capricious. There should be reasonable nexus between enhancement and material to justify.
14. Let us consider some of the cases. Take the case of Lal Bachan. In this case, the licence fee was Rs. 964 half yearly and this has been enhanced to Rs. 45,990, w.e.f. November, 2005. In the case of Sri J.N. Gupta, licence fee has been enhanced from Rs. 2,409 to Rs. 38,435. Likewise, in the other cases, licence fee has been enhanced. Prima facie, the enhancement of the licence fee appears to be excessive. It also appears that the licence fee has been enhanced without issuing any notice and without giving opportunity to the petitioners.
15. In view of the above, we are of the view that the grievances of the petitioners can more appropriately be addressed and considered by the Arbitrator under Clause 54 of the licence. Under the said clause, General Manager is the competent authority. Thus, we direct General Manager to consider the grievances of the petitioners and fix a reasonable amount of licence fee having regard to the entire facts and circumstances and after giving opportunity to the petitioners. The whole exercise may be completed within a period of three months. Till the final decision is taken in the matter, the petitioners may not be asked to deposit the enhanced licence fee. It is made clear that our decision is applicable to those cases only where the licence fee has been enhanced during the existence of licence. Our decision is not applicable to the cases of renewal of licence and to the fresh licence.
16. With the aforesaid observations, all the writ petitions stands disposed of.