Madras High Court
T.Balasubramanian vs The Senior Divisional Commercial ... on 30 October, 2017
1 B E F O R E T H E MADU R AI B E N C H O F MADR A S HI GH C O U R T DAT E D 1 9 . 1 1 . 2 0 1 8 CORAM T H E HO N O U R A B L E MR S . J U S T I C E V. B H AVA NI S U B B A ROYA N W. P(MD) N o. 2 1 3 4 5 o f 2 0 1 7 and W.M. P(MD) N o s . 1 7 6 0 3 a n d 1 7 6 0 4 o f 2 0 1 7 T.Balasubramanian ..Petitioner Vs The Senior Divisional Commercial Manager, Southern Railway, Trichy. ..Respondent P r a y e r : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus calling for the records relating to the proceedings of the impugned order in No.T/C.79/FVLR/TRB, dated 30.10.2017 on the file of the respondent and to quash the same and further to direct the respondent to permit the Petitioner to run the Fruit and Vegetarian Light Refreshment Stall in Platform No.1, Thiruverumbur Railway Station, Trichy for the un-utilized 5th year period of license.
For Petitioner :Mr.G.Prabhu Rajadurai For Respondent :Mr.S.Manoharan Standing Counsel O RD E R The Petitioner has prayed for issuance of a Writ of Certiorarified Mandamus to quash the impugned order in No.T/C.79/FVLR/TRB, dated 30.10.2017 on the file of the respondent and further to direct the respondent to permit the Petitioner to run the http://www.judis.nic.in 2 Fruit and Vegetarian Light Refreshment Stall in Platform No.1, Thiruverumbur Railway Station, Trichy for the un-utilized 5th year period of license.
2.Mr.S.Manoharan, learned Standing Counsel takes notice for the respondent. By consent of both parties, the Writ Petition is taken up for final disposal at the admission stage itself.
3.The Petitioner from the year 1987 has been running a Refreshment Stall in Thiruverumbur Railway Station, Trichy and depending on the same, he is eking out his livelihood and he belongs to the Scheduled Caste Community. The Petitioner would submit that license for the shop would vary depending on the change in policy and agreement. The respondent entered into an agreement with the Petitioner on 16.12.2013 for the grant of license to run a Fruit and Vegetarian Light Refreshment Stall in Thiruverumbur Railway Station for a period of five years commencing from 14.12.2012 to 13.12.2017 and the license fee is Rs.2,10,000/- per year and as per the Railway Policy, the said license is renewable once in every five years, as it is a Special Minor Unit. In the month of December 2016, the Petitioner has paid the license fee of Rs.2,10,000/- for the fifth year commencing from 15.12.2016 to 12.12.2017. On 6.10.2017, the respondent has directed the Petitioner to close the stall temporarily as the respondent has undertaken track doubling work and hence, the Petitioner has closed the shop and the said work went on till April 2017. By this act, the Petitioner has lost his livelihood as he had borrowed debts to met with his daily needs. The http://www.judis.nic.in 3 respondent demolished the said stall for the purpose of doubling work and in April 2017, the respondent asked the Petitioner to construct a new shop on his own. As the Petitioner was not in a position to generate funds, the respondent sent reminders repeatedly and finally on 24.8.2017, issued a show-cause notice without accepting his request that the earlier shop was demolished only by them. After borrowing money from friends, the Petitioner has constructed a metal structure and installed the same in the Railway Station and at that point of time, on 30.10.2017, the respondent issued an order terminating the licence forfeiting the deposit already deposited by him. The impugned order passed by the respondent is arbitrary, illegal and suffers from non application of mind. The respondent has failed to consider the fact that the shop was constructed and placed in the platform even prior to the impugned order.
4.The learned counsel for the Railways submit that the contract to run the Fruit and Vegetarian Light Refreshment Stall at Thiruverumbur Railway Station was extended and on 6.4.2017, the Petitioner was advised to resume the operation of the said stall. But the Petitioner did not resume the operation of the stall even after repeated reminders and show-cause notices were sent on 24.8.2017, 8.9.2017 and 10.10.2017. Only after giving reminders, the licence to run the Refreshment Stall was terminated on 30.10.2017 in terms of Clauses 20(a), 21(g), 2,3,4 and 22(a) of the agreement executed between the Petitioner and Railways and further, the said stall is a General Minor Unit and not a Special Minor Unit as submitted by the Petitioner. As per clause 9(i) of the agreement entered between them the licensee shall construct http://www.judis.nic.in 4 the stall at his own cost in accordance with the conditions stipulated by the Railway administration. As per the directions, the Petitioner was advised to construct a stall of the size of 6x10x7 ft and résumé the operation in-front of the station building near waiting hall. The Petitioner has neither constructed the stall nor resumed the operation of catering stall inspite of the repeated advice by the railway authorities. Hence the Petitioner has breached the conditions of agreement. But the Petitioner had kept an iron frame in the station premises after termination of contract, which the Petitioner himself had admitted in his letter, dated 13.11.2017. Further the Petitioner has brought the temporary structure of the stall to Thiruverumbur Railway Station only on 30.10.2017 for installation vide his letter, dated 13.11.2017. Hence the statement of the Petitioner in para 6 of his petition that he had constructed a metal structure in the above said Railway station is false. The contract was terminated as per the clause states supra in the agreement and the security deposit of the licensee was forfeited. Further, the Petitioner's wife is working as a Government employee and the Petitioner himself is not running the stall but had engaged somebody else to run the stall shows that this not the sole source of income to the Petitioner. The contract was terminated due to the unsatisfactory performance of the Petitioner and in accordance with the terms and conditions of agreement, affidavit and the Railway circulars are not applicable to the license hold by the Petitioner. On 30.10.2017, the structure of the catering stall was not installed in the Thiruverumbur Railway Station and catering service was not functioning in the said Railway Station. http://www.judis.nic.in 5
5.Heard the submission made by the learned counsel appearing on either side and perused the materials placed before this Court.
6.From the impugned order, dated 30.10.2017, it could be inferred that the contract is terminated and the security deposit is forfeited. The petitioner is debarred from participating in the future similar contract of Southern Railway for a period of one year from 26.10.2017 with the approval of the competent authority. It could be seen from the said order that even though there is notices issued on 6.4.2017, 24.8.2017, 8.9.2017 and 10.10.2017, the Petitioner has not given any valid explanation for the said notices. In the absence of any explanation from the Petitioner, the respondents having no other alternative, had to decide the matter on merits. The Petitioner's contention that other outstanding charges, if any including water and electricity charges has to be paid to the respondent immediately, failing, which legal action will be initiated for recovery of the dues is arbitrary. Further the Petitioner's contract was terminated and security deposit was also forfeited and that the order of the respondent that the Petitioner will be debarred from participating in future similar contract of Southern Railway for a period of one year from 26.10.2017 with the approval of the competent authority is very harsh and it is a black-mark on his reputation and it is to be quashed.
7.The learned counsel for the respondent would submit that the Petitioner is at liberty to participate in the future contract since from 26.10.2017, one year has been http://www.judis.nic.in 6 lapsed and hence he is at liberty to participate in the future contract. Since the Petitioner is an aged person and only due to the doubling of the track, the stall was removed as per the advise of the railways and it was not on the Petitioner's own fault it was removed and due to some financial difficulty, the Petitioner is not able to construct and start the business and based on these submissions,this Court finds it appropriate to interfere only with the debarring condition even though it has been expired, it has created a black-mark on the petitioner. Further, the respondent/Railways has not given him an opportunity of personal hearing and passed this order only based on the show-cause notice. Thus, the termination order has been passed in violation of the principles of natural justice. Hence, the portion of the impugned order debarring the Petitioner from participating in the future contract is deleted and the Petitioner is entitled to and directed to participate in the future contract, if any, in the Railways,if he desires so.
8.With the above directions, the Writ petition stands disposed of. No costs. Consequently, connected Miscellaneous Petitions are closed.
1 9.1 1.2 0 1 8 Index : Yes/No Internet:Yes/No vsn To The Senior Divisional Commercial Manager, Southern Railway, Trichy.
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