Patna High Court - Orders
Sri Din Dayal Gupta & Sons vs The Union Of India & Ors on 20 June, 2014
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16343 of 2013
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1. Sri Din Dayal Gupta & Sons, Vending Contractor, Patna Saheb
Railway Station, through its proprietor Ram Narayan Gupta, S/O Late
Din Dayal Gupta, resident of Mohalla- Begampur, P.S- Patna City,
Chowk, District- Patna.
.... .... Petitioner/s
Versus
1. The Union of India, through Divisional Railway Manager, East Central
Railway, Danapur, Patna.
2. The Divisional Railway Manager, East Central Railway, Danapur,
Patna.
3. The Senior Divisional Commercial Manager, East Central Railway,
Danapur, Patna.
4. The Assistant Commercial Manager (TC & Catg), East Central
Railway, Danapur, Patna.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Yogesh Kumar
For the Respondent/s : Mr. Anil Kumar Sinha
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL ORDER
4 20-06-2014Heard Mr. Yogesh Kumar, learned counsel appearing on behalf of the petitioner and Mr. Anil Kumar Sinha, learned counsel appearing for the respondent-Railway.
Admittedly the petitioner is a licensee under the East Central Railway for holding three catering stalls at the Patna Sahib Railway Station within the district of Patna. Two of the catering stalls are stated to be falling within the railway building while one is situated out side the railway building but within the railway premises. There is no dispute on facts.
The petitioner has been making payment of the licence fee as and when revised and again there is no dispute on Patna High Court CWJC No.16343 of 2013 (4) dt.20-06-2014 2 this aspect. The fact remains that the contract subsisted between the parties when the impugned assessment order was passed on 25.6.2013 revising the licence fee of the three stalls in the light of the Catering Policy, 2010 (hereinafter referred to as „the Policy‟), copy whereof is placed at Annexure-8. Clause 18.3 of „the Policy‟ runs as follows:
"18.3 At the time of renewal of licence, licence fee should be enhanced/reassessed based on actual sales turnover of the unit. Licence fee will be reassessed and revised at the time of each renewal subject to a minimum of 10% increase over the prevailing licence fee of the unit. To arrive at a realistic figure zonal railways will ensure that a fresh assessment of sales turnover/revenue is conducted during the peak period and lean period i.e. with the periodicity of three- three months in order to assess the actual sales turnover so as to fix the revised licence fee. Renewal will be done for the existing licensees only on withdrawal of court cases by the licensees, if any, against the railways and payment of railway dues and arrears."
According to „the Policy‟, an enhancement/ reassessment of licence fee had to be done after taking into consideration the realistic figures relatable to the sles turnover of three months each during the „lean period‟ and the „peak period‟.
Whereas it is the case of the petitioner that the railway authorities never carried out any such inspection, this Patna High Court CWJC No.16343 of 2013 (4) dt.20-06-2014 3 fact is denied with reference to the order of assessment placed at Annexure-R/9 to the counter affidavit and which is the basis of the impugned order placed at Annexure-1.
It is the case of the petitioner that not only the assessment order is de hors clause 18.3 of „the Policy‟ inasmuch as the respondents have failed to take note of the turn over of three months each in the „lean period‟ and the „peak period‟, but even when the matter is pending consideration before this Court the railway authorities have gone ahead to terminate the licence of the petitioner vide order passed on 4.3.2014 placed at Annexure-9 which has been questioned by the petitioner by filing I.A. No.2065 of 2014 and have also demolished one of the catering stalls situated out side the railway building but within the railway station premises adversely effecting the right of the petitioner as well as causing him financial loss. The petitioner has questioned this action by filing I.A. No.3541 of 2014.
I have heard learned counsel for the parties and I have perused the materials on record.
No amount of justification by Mr. Sinha to the assessment order placed at Annexure-R/9 would persuade this Court to uphold either the order of assessment or the consequential order of revision dated 25.6.2013 impugned in the Patna High Court CWJC No.16343 of 2013 (4) dt.20-06-2014 4 writ petition or the order of termination of licence dated 4.3.2014. The reasons are not too many rather plainly speaking, the assessing authorities have failed to carry out the exercise of assessment in the manner prescribed under the catering policy as found in clause 18.3 thereof. The assessment order itself reflects inspection only on three consecutive dates i.e. 6.2.2012, 7.2.2012 and 8.2.2012 when "the Policy‟ requires an inspection and verification of sales turn over for three months during „peak period. and three months during „lean period‟. The undue haste shown by the railway authority in proceeding to cancel the licence of the petitioner and which is followed by the demolition of one of the stalls, the action of the authorities is patently illegal, mala-fide and difficult to uphold.
On this ground alone the assessment order placed at Annexure-R/9 to the counter affidavit and the consequential order dated 25.6.2013 placed at Annexure-1 together with the order dated 4.3.2014 impugned at Annexure-9 cannot be upheld and are accordingly set aside.
This writ petition as well as I.A. No.2065 of 2014 and I.A. No.3541 of 2014 are accordingly allowed.
Since the third stall of the petitioner has been demolished by the railway authorities showing unwarranted Patna High Court CWJC No.16343 of 2013 (4) dt.20-06-2014 5 urgency, they would be under duty to provide alternative third stall to the petitioner. They would be also under duty to return the materials which, according to Mr. Sinha, is in safe custody of the railway authorities. In case the railway authorities fail to return the materials which were found in the demolished stall they would be liable to recompense the petitioner for the loss of materials.
The exercise for providing the alternative third stall to the petitioner and for return of the materials taken in custody from the demolished stall of the petitioner or for recompensing him for the same in case the materials have rotted in the meanwhile rendering them unfit for consumption or usage, would be done within a period of four weeks from the date of receipt/production of a copy of this order.
(Jyoti Saran, J) SKPathak/-
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