Andhra Pradesh High Court - Amravati
N. Seshaiah, vs South Central Railway, on 18 September, 2019
Author: M.Satyanarayana Murthy
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT APPEAL No.207 of 2019
JUDGMENT:(per the Hon'ble Justice M.Satyanarayana Murthy) The unsuccessful petitioner before the learned single judge in Writ Petition No.7509 of 2019 preferred this appeal under Clause 15 of the Letters Patent, assailing the order of dismissal dated 18th June, 2019.
2. Parties to the appeal hereinafter will be referred to as the petitioner and respondent for the sake of convenience.
3. The petitioner filed Writ Petition under Article 226 of the Constitution of India for issuance of writ of Mandamus declaring the action of the 2nd respondent vide his letter dated 23.5.2019 directing the petitioner to file an affidavit declaring that the petitioner is not having more than one catering unit for the purpose of renewal of his stall is without jurisdiction, suffering from non-application of mind, highly arbitrary, unjust, illegal and contrary to the terms and conditions of the license deed of the petitioner, unsustainable and violative of Articles 14 and 21 of the Constitution of India. Consequently, direct the 2nd respondent to renew the licence of the petitioner as per the terms and conditions of licence deed without reference to the circular No.22 of 2017, dated 15.3.2017.
4. The petitioner, who is the licensee of respondent Nos.1 and 2 for running a catering stall bearing G.M.U.No.22 i.e., Fruits & Fruits 2 Juice Stall on Platform No.1 of Gudur Railway Station, filed this petition for the relief stated above alleging that he obtained license for running catering stall bearing No.G.M.U. No.22 i.e., Fruits & Fruits Juice Stall on Platform, No.1 of Gudur Railway Station on payment of annual license fee of a sum of Rs.4,05,999/- commencing from 17.6.2014. The tenure of license for five years was expired on 16.6.2019. As per the terms and conditions of license, the license is renewable for a further period of three years on satisfactory performance. As the petitioner performed satisfactorily, made an application to the 2nd respondent for renewal of the license on 24.12.2018 for a period of three years commencing from 24.5.2019, but the 2nd respondent has not passed any order on the renewal application. On the other hand, the 2nd respondent addressed a letter dated 23.5.2019 to the petitioner as per Circular No.22 of 2017, dated 15.3.2017 informing that the licensees are entitled to renewal of their license under the Catering Policy, 2010, subject to the condition that the licensee has to forego all his units and that the licensee shall submit his affidavit declaring that he is not having more than one catering unit in his name or his benami and directed him to file such affidavit for consideration of application for renewal of licence and further informed that non-submission of affidavit disentitles him for renewal of the license.
5. The learned Single Judge, upon hearing counsel for the petitioner Sri C.Rama Chandra Raju and the learned Standing Counsel for the Railways, dismissed the petition on the ground that the petitioner did not comply with the condition of the respondent No.2 prescribed in letter dated 23.5.2019, which was issued in 3 pursuance of the Apex Court Judgment. The learned Single Judge referred to the judgment of this Court in Writ Appeal Nos.1735 and 1757 of 2018, dated 13.3.2019 and imposed exemplary costs of Rs.25,000/- for filing frivolous litigation and for the behaviour of the counsel for the petitioner in the court.
6. Aggrieved by the order, the appeal is filed raising several contentions. The main ground is that the learned Single Judge did not pass a speaking order and failed to consider the interim order granted by this court dated 22.5.2019 in Writ Petition No.6655 of 2019 in respect of the other stall which is binding on the learned single Judge, but committed an error in dismissing the petition at the threshold i.e., even before admission of the writ petition. It is also contended that the order of the learned single Judge is wholly unsustainable as the learned single Judge failed to appreciate the crucial contention of the appellant that observation made by the Supreme Court in Civil Appeal Nos.618-620 of 2016 that the license holders of the stalls in the railway stations, who are seeking renewal of licenses of their stalls as per Catering Policy, 2010, beyond their license period, as mentioned in the license deed, shall give an undertaking to the railway authorities to the effect that they do not seek renewal of their licenses as per Catering Policy 2010 for more than one stall is totally irrelevant and erroneous on the face of the record.
7. It is also contended that the observations made by the Hon'ble Supreme Court imposing the pre-condition to file an affidavit was not the issue before the Apex Court, but such incidental observation or direction is of no consequence, more particularly when the petitioner 4 is claiming renewal of lease not based on the Catering Policy, 2010, but based on terms and conditions of Master License Agreement and consequently, the order passed by the learned Single Judge is unsustainable under law and requested to set aside the order passed by the learned Single Judge exercising power under Clause 15 of the Letters Patent and allow the writ petition issuing direction to the respondents for renewal of the license.
8. Since the writ petition was disposed of at the stage of admission upon hearing of the counsel for the petitioner and respondents even before filing counter before this Court, the respondents filed counter duly signed by the Divisional Commercial Manager of South Central Railway, Vijayawada. The contentions raised by the respondents in nutshell are as follows :
(a) The petitioner suppressed the vital facts relating to similar litigation caused by him and more over there are no valid grounds to invoke the jurisdiction of this Court and as such the writ appeal is liable to be dismissed.
(b) The writ petitioner filed Writ Petition No.7509 of 2019 on baseless grounds.
(c) The petitioner also filed earlier Writ Petition No.8364 of 2014 seeking direction for renewal of licence for the catering stalls at Vijayawada Railway Station and the Court disposed the writ petition by common order dated 17.9.2016 directing the petitioner to file an affidavit for renewal along with an affidavit as directed by the Apex Court. The petitioner questioned the said order in Writ Appeal No.1175 of 2016 and the High Court of judicature at Hyderabad for 5 the State of Telangana and the State of Andhra Pradesh dismissed the writ appeal No.1175 of 2016 vide order dated 28.11.2016 which attained finality being not questioned before the Apex Court. In view of the order passed by the Division Bench of this Court in Writ Appeal referred to above, the contention of the petitioner shall be thrown out at the threshold, but reiterated the same grounds before this Court for the reasons best known to the petitioner. He also failed to disclose the Writ Appeals and its dismissal by the Division Bench and on such suppression, he is not entitled to claim any relief.
(d) As many license holders are making applications for renewal of licenses, a clarification was sought from the headquarters of the south central railway and on 5.10.2018, the clarification was received by the respondent. The petitioner filed the present writ petition and the appeal suppressing the material facts. It is also contended that the petitioner is having an alternative efficacious remedy of arbitration and in terms of Article 19.1 of Master License Agreement, in the event of any dispute or controversy or claim of any kind or nature arising under or in connection with the agreement between the parties, the parties shall firstly attempt to resolve their dispute by negotiations or referring the dispute to the arbitrator appointed under Arbitration and Conciliation Act through a Sole Arbitrator appointed by the General Manager of Zonal Railway, but the petitioner directly resorted to this frivolous litigation, hence requested to dismiss the petition on this ground also.
(e) It is specifically contended that the license was initially granted for 5 years and executed a Master License Agreement where categorical reference was made that the license was granted under 6 the Catering Policy 2010 regime and the said Catering Policy 2010 was superseded by the catering policy 2017, dated 27.2.2017 and the catering policy 2010 categorically prohibits any renewal of license.
The Apex Court also laid down certain specific conditions for renewal of license in its order dated 10.5.2016 and dismissed modification petition filed in I.A.No.25-27/2016, I.A.No.28-30, 31-33 vide order dated 11.7.2016. Thus, the condition of renewal of license is to file an affidavit declaring that he did not obtain any license to run any shop from the respondent. When he failed to comply the direction of the Hon'ble Apex Court, the respondent addressed a letter calling upon him to comply with the direction, but the petitioner did not comply with the direction issued by the Apex Court. Therefore, on this sole ground the petition and appeal are liable to be dismissed. It is also contended that the contention of the petitioner that he is claiming renewal under an independent contract, but not based on Master License Agreement is meritless. As the petitioner failed to fulfil the conditions 3.2, 9 and 17 of Articles of Master License Agreement i.e., satisfactory performance, payment of license fee dues etc., more over, the Article 3.2 of the agreement itself stated that licensee should submit documents afresh along with renewal application six months in advance, but did not comply with the direction. Dismissal of Writ Petition No.8364 of 2014 by the High Court of judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh and dismissal of W.A. No.1175 of 2016 confirming the order of the learned Single Judge is sufficient to reject the contention that the petitioner claimed right under the independent lease agreement, but not based on 2010 policy and requested to dismiss the appeal. He also contended that the appeal 7 is barred by the principles of res-judicata and the observations made in W.A.No.1175 of 2016 are suffice to non-suit the petitioner for any of the reliefs and requested to dismiss the appeal.
9. A reply affidavit is filed by the petitioner reiterating the contentions that the license is governed by an independent contract notwithstanding the Catering Policy 2010, as license was granted to him not based on 2010 Catering Policy.
10. During hearing, the learned counsel for the petitioner Sri C.Rama Chandra Raju advanced vociferous argument before us reiterating the contentions, mostly demonstrating that the petitioner's license is not covered by 2010 Catering Policy, but it is an independent contract between the petitioner and the 2nd respondent, thereby calling upon this petitioner to file an affidavit that he is not running any other canteen under the control of railways in terms of the direction issued by the Apex Court in the earlier Civil Appeal Nos.618-620 of 2016 is grave illegality for the simple reason that the respondent did not raise such issue as to running more than one canteen by single individual, but for no reason such serious observations are made which led the railways to take appropriate action calling upon the licensees to furnish notarized affidavit to that effect. Therefore, such letter addressed by the respondents calling upon this petitioner to furnish notarized affidavit in terms of the penultimate para in the judgment in Civil Appeal Nos.618-620 of 2016 is an erroneous approach. When the petitioner is claiming right under the independent license deed, his license is governed by easements act or general law of contract but not the judgment. He also filed written submission before this Court after advancing his 8 oral argument. It is worthy to refer to the written arguments submitted by this petitioner for limited purpose.
11. In the written arguments the learned counsel for the petitioner/appellant C.Rama Chandra Raju after narrating the brief facts of the case raised certain questions which are as follows :
Whether the appellant is entitled to renewal of his license under clause No.3.2 of his license deed and answered the same in affirmative. In the written argument itself similarly formulated another question as to the binding nature of the observations of the Apex Court judgment in Civil Appeal nos.618-620 of 2016 and recorded answer that it has no relevance to the present facts of the case. Similarly he formulated two questions with regard to the terms and conditions of the lease deed and its binding nature on the parties and answered in his favour by himself giving reason; besides those questions and answers the petitioner would draw the attention of this court to legal aspects with reference to the binding nature of the observations of the Apex Court in Civil Appeal Nos.618-620 of 2016 and contended that those incidental observations of the Apex Court are not having any force of law and they are only incidental for the purpose of deciding the Civil Appeals before it and none of the parties raised such contention before the Apex Court. In those circumstances, observations made by the Apex Court are not relevant for deciding the present controversy. The Supreme Court did not disclose anything about requirement of filing an affidavit as to the existing license for its renewal after its expiry, since no such question was raised before the Hon'ble Apex court. According to 2010 Catering Policy, licensees are entitled for renewal of their license for 9 every three years and the Court allowed the writ petition by judgment dated 16.8.2013 holding that writ petitioners who are the existing licensees as on the date of the catering policy 2010 are entitled to the renewal of their licenses for every three years subject to fulfilment of some conditions imposed under the Catering Policy 2010 and that the railway authorities filed the appeal before the Supreme Court and the Supreme Court while dismissing appeal imposed a condition to file affidavit. He also reiterated the contentions he raised with regard to the binding nature of the observations of the Apex court while highlighting that the petitioner is not claiming right of renewal under Catering Policy 2010, but claiming independent right based on terms and conditions of the Master License Agreement. The learned single judge misconstrued and misapplied the law and committed an error and requested to set aside the impugned order while allowing the writ appeal by issuing writ of mandamus as claimed by the petitioner.
12. The learned counsel for the respondents Sri P.Bhaskar would contend that this petitioner raised a similar issue in the earlier round of litigation before the High Court of judicature at Hyderabad in W.P.No.8364 of 2014 and batch, which was dismissed by order dated 17.9.2016 giving certain directions. Aggrieved by the order, the petitioner/appellant herein preferred appeal W.A. No.1175 of 2016, which was also dismissed. Apart from that, the reason for execution of Master License Agreement is the Catering Policy 2010 and the first clause itself in the Master License Agreement indicates that it was based on Catering Policy 2010, not otherwise. Hence, the petitioner is entitled to take benefits under 2010 Catering Policy, but not based on any independent agreement. Even the agreement was executed 10 only in pursuance of 2010 Catering Policy, but not otherwise. Therefore, the contention of the counsel for the petitioner is liable to be rejected and prayed to dismiss the Writ Appeal confirming the order dated 18.6.2019 passed by the learned Single Judge of this court in W.P. No. 7509 of 2019.
13. Considering the material available on record, the points that arise for consideration are as follows :
(i) Whether the observations made by the Apex Court in Civil Appeal Nos.618-620 of 2016 are binding on the petitioner?
(ii) Whether the execution of Master License Agreement is based on Catering Policy 2010 or it is a separate or independent contract of license between the petitioner and the respondents, if not, whether insisting upon this petitioner to file an affidavit as directed by the Apex court in Civil Appeal Nos.618-620 of 2016 is in accordance with law?
(iii) If Point Nos. 1 and 2 are decided in affirmative, whether the petitioner is entitled to claim renewal of license for another period of three years in terms of Article 3.2 of the Master License Agreement on payment of license fee at enhanced rate, notwithstanding the observations made by the Apex Court in Civil Appeal Nos.618-620 of 2016 is legal?11
In re - Point No.1 :
The first and foremost contention of the learned counsel for the petitioner is that the learned Single Judge did not consider any material, more particularly applicability of the observations made by the Apex Court in Civil Appeal Nos.618-620 of 2016. The counsel for the petitioner herein was the counsel before the learned single judge in W.P.No.14577 of 2013 wherein the High Court of judicature at Hyderabad by its order dated 16.8.2013 decided the Writ Petition in favour of the petitioner therein permitting members of the petitioner- association to claim renewal of licenses by submitting an application to the 3rd respondent therein within one month, in terms of clause Nos.16.1.3 and 16.2.1 and indicate the decision taken to the members of the association. Aggrieved by the order, the Railways preferred an appeal in Civil Appeal Nos.618-620 of 2016 whereunder the Apex Court while deciding the appeal, in its order dated 29.1.2016, observed as follows :
"We, however, make it clear that only those licensees may be eligible for renewal of their licenses who can declare on affidavit that they do not have the license of more than one shop or kiosk in their name or benami license at the railway stations with periodical reasonable increase of license fee."
The petitioner/appellant along with others filed a batch of Writ Petitions and this petitioner/appellant filed W.P.No.8364 of 2014 in which the petitioner claimed renewal of license to run two catering stalls (IFKS) at platform No.10 and platform Nos.2 and 3 of Vijayawada Railway Station in accordance with the catering policy 2010 and in accordance with the judgment of the High Court dated 16.8.2013. The writ petitions were disposed of directing the petitioners in the writ petition to file application for renewal with an 12 affidavit as directed by the Supreme Court, declaring that the applicant does not have more than one stall and the applications shall be filed by the petitioners within one week from the date of receipt of a copy of the order.
Aggrieved by the judgment of the learned single Judge in W.P.No.8364 of 2014 and batch, a Letters Patent Appeal was preferred before the Division Bench of the High Court of judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh wherein this issue was discussed elaborately by the learned Judges of the Division Bench. In para 14 of the said Judgment it was held that the observation made by the Hon'ble Supreme Court is nothing but one in the nature of clarification as the Hon'ble Supreme Court made it clear that only those licensees may be eligible for renewal of their licenses who can declare on affidavit that they do not have licence of more than one shop in their name or benami names at the railway stations, with periodical increase of licence fee. The said observation was made in the context of assessing Catering Policy, circulars and the cases put-forth by rival parties respectively. Having answered the contentious issues, we are not in agreement with the learned counsel for the petitioner's submission that the observation of the Hon'ble Supreme Court is a casual observation and has to be construed as an obiter dicta without having any binding effect on the right for renewal of licence of the petitioners.
It was further held that observation of the Hon'ble Supreme Court has binding effect on the right for renewal of licence of the applicant and the Division Bench is bound to act in aid of the orders of the Hon'ble Supreme Court abiding by the constitutional mandate 13 under Article 144 of the Constitution of India. In stating so the Division Bench placed reliance on rulings of the Hon'ble Apex Court in M.C,.Mehta v. Union of India 1, Dayaram v. Sudhir Batham 2, State of West Bengal v. The Committee for Protection of Democratic Rights, West Bengal 3 and Court on its Own Motion v. Union of India (UOI) 4.
Finally the Division Bench concluded that the order of the learned single judge in directing the petitioner to file applications for renewal with an affidavit, as directed by the Hon'ble Supreme Court, declaring that the applicant does not have more than one stall and further direction to the respondents to decide renewal application of the petitioner in terms of the judgment of this Court in W.P.No.14577 of 2013 dated 16.8.2013 and the observation of the Hon'ble Supreme Court in Civil Appeal Nos.618-620 of 2016 dated 29.1.2016 can neither be construed as patently, perverse nor suffers from any legal infirmity warranting interference and rejected the contention of the petitioner.
The argument of the learned counsel for the petitioner Sri C.Rama Chandra Raju, who appeared before the learned Single Judge and the Division Bench in the Writ Petition and the Writ Appeal referred to supra, was elaborately considered and when the judgments of the court have attained finality, this court cannot arrive at different conclusion than the one arrived at by the earlier division bench in Writ Appeal No.1175 of 2016. Even otherwise, the observations of the Apex Court are binding on the High Court and the 1 AIR 2001 SC 1848 2 (2012) 1 SCC 333 3 AIR 2010 SC 1476 4 2012 (12) SCALE 307 14 High Court is bound to take note of such observations while deciding similar cases, depending upon the facts of each case. Therefore, by applying the principles laid down in the above judgment and the findings recorded by the earlier Division Bench in identical case W.A. No.1175 of 2016, we are of the confirmed view that there is no substance in the argument of the counsel for the petitioner/appellant and the same is rejected without any hesitation. Accordingly, we hold that the petitioner is bound by the direction issued by the Apex Court in Civil Appeal Nos.618-620 of 2016. Accordingly, point is answered.
In re - Point No.2 :
It is the specific contention of the petitioner that the Master License Agreement dated 22-10-2014 was executed in his favour by the 2nd respondent and this agreement is not based on 2010 Catering Policy, but it is an independent contract of license. Hence, pleaded that the petitioner is entitled to claim renewal as of right, notwithstanding the observations of the Apex Court in Civil Appeal Nos.618-620 of 2016, dated 29.1.2016. Undoubtedly, the Senior Divisional Manager executed a Master License Agreement, dated 22- 10-2014 in favour of the petitioner to run a stall for providing fruits and fruit juice services basing on the memo incorporating certain conditions. It is evident from the Master License Agreement that it was executed based on Catering Policy 2010 and the relevant portion therein is extracted hereunder for better appreciation of facts :
A. Railway has mandated under the Catering Policy 2010 (Policy) to improve inter-alia, the quality of catering services for providing food and beverage services to passengers.15
B. Licensee, inter-alia, is currently engaged in the business of catering services.
The petitioner filed his bid for grant of license for provision of catering services at General Minor Unit No.22 (Fruit/Juice stall on PF No.1, BZA end) at Gudur Railway Station of A category (GMU). The said notification Bid Number B/C.79/GMUs/BZA Notice No.01/2012 is dated 27.8.2012. The notice inviting bids is based on Catering Policy, 2010 and reference of 2010 Catering Policy at the beginning itself would suffice to conclude the very basis for execution of Master License Agreement is Catering Policy 2010 and the license is not an independent contract notwithstanding 2010 Catering Policy. Article 3 of Master License Agreement deals with the tenure of the agreement and relevant clauses are extracted hereunder for better appreciation :
3.1 The Tenure of the Agreement will commence on the Commencement Date i.e.,
17.6.2014 which has been agreed by the parties as Five (5) years and subject to the provisions of Article 3.2, 9 and Article 17 herein below respectively, shall continue until period of five (5) years from the Commencement Date and, if not terminated/expired, will be renewed on the mutually agreed terms. 3.2 Tenure and Renewal of License The tenure of License shall be initially for a period of 5 years with a provision of further renewal for a period of 3 years on satisfactory performance payment of Railway dues of license fee as well as other outstanding dues and fulfillment of all terms and conditions by the licensee as per the laid down in the policy from time to time. Renewal will not be a matter of right. The licensee must apply for renewal minimum (6) six months in advance before the expiry of the contract. No dues Certificate from the concerned authority must be attached along with the application for renewal. The licensee must submit the documents afresh along with the renewal application as mentioned at Chapter 1 of Section B of the Bid document. It is clear from clause 3.2 that the initial period of license was 5 years and the licensee can claim renewal for a period of another three 16 years subject to fulfillment of certain conditions mentioned therein. But, Articles 9 and 17 are also relevant for deciding the real controversy between the parties, for renewal, but for reasons best known to the petitioner, he did not place on record the entire Master License Agreement, for perusal and to decide whether the petitioner is entitled for such renewal. But the Catering Policy document 2010 is placed on record which is not in controversy. Even before the learned Single Judge, the only four pages of Master Lease Agreement, which did not contain the relevant Articles i.e., Articles 9 and 17 were referred to, but the tenure of agreement is regulated by 3.2, 9 and 17 as mentioned in Article 3.1. Under those circumstances, it is difficult to accept the contention of the petitioner that the claim of the petitioner is based on independent agreement of license and not based on Catering Policy 2010 for the simple reason that the basis for issuing notice inviting bid and execution of agreement is catering policy 2010.
It is also contended, in the judgment in W.P.No.14577 of 2013 and batch, which is subject matter of Civil Appeal Nos.618-620 of 2016 before the Apex court, the Court made it clear that the licenses granted prior to the commencement of 2010 policy are governed by the terms and conditions contained in the license agreement and not by the terms and conditions of license granted in pursuance of 2010 Catering Policy. Therefore, the judgment of the Apex Court with reference to 2010 Catering Policy and the observations made by the Apex Court cannot be applied to the present facts of the case. We are unable to accept this contention for the simple reason that by the date of execution of Master License Agreement, the catering policy 17 was in force and there is a clear reference in clause (A) about the Catering Policy 2010. Hence, the Master License Agreement is only in pursuance of the Catering Policy 2010 and not an independent or separate agreement of license.
In the Writ Petitions filed in the earlier round of litigation, which is subject matter of W.P.No.8364 of 2014 and batch and Writ Appeal No.1175 of 2016, the same contention was raised, but the learned single Judge and Division Bench of the High Court of judicature at Hyderabad rejected the same and directed the petitioner to comply the requirement, as directed by the Apex Court in Civil Appeal Nos.618-620 of 2016. Therefore, the judgment of the coordinate bench of the High Court is binding on this court and consequently, we see no reason to differ with the same and accordingly, the same is hereby rejected.
Since the license was granted in pursuance of Catering Policy 2010 and a directive was issued by the Apex Court in Civil Appeal Nos.618-620 of 2016, addressing a letter by the 2nd respondent calling upon the petitioner to submit notarized affidavit declaring that he is not having more than one catering unit for the purpose of renewal of his stall in compliance with the direction of the Apex Court is not an illegality and it is only in strict adherence to the judgment of the Apex Court in Civil Appeal Nos.618-620 of 2016, dated 29.1.2016 and therefore, the letter addressed by the 2nd respondent calling upon this petitioner to submit an affidavit in terms of the direction issued by the Hon'ble Supreme Court cannot be said to be an illegality. Accordingly, point is decided against the petitioner/appellant and in favour of the respondents.
18In re - Point No.3 :
As Point Nos.1 and 2 are decided against this petitioner/appellant, the question of claiming renewal for another three years without complying the requirement of the direction issued by the Hon'ble Supreme Court is impermissible under law. Even otherwise, the renewal is subject to satisfying the requirements mentioned in Clause 3.2. Considering the Catering Policy 2010 with reference to condition in the Master License Agreement, the Apex Court issued such direction as extracted in the earlier paras. When the Hon'ble Supreme Court issued such a direction in the petitions filed by Caterers' Association of South Central Railway, in which the petitioner is also one of the member, the finding is binding on this petitioner as well. More over, he is running more than one such unit in view of the claim made in the earlier Writ Petition No.8364 of 2014 and batch and Writ Appeal No.1175 of 2016. Hence, we hold that without complying with the requirement of filing an affidavit, as directed by the Apex Court in Civil Appeal Nos.618-620 of 2016, dated 29.1.2016, the petitioner is not entitled to claim renewal of license to run catering unit. Accordingly, this point is answered against the petitioner/appellant and in favour of the respondents.
14. The petitioner is claiming a writ of Mandamus but grant of such mandamus is purely discretionary and such discretion must be exercised by the courts judiciously. To claim such writ of mandamus the petitioner has to establish his right either statutory or fundamental and its infringement. Here the petitioner claimed contractual right under the Master License Agreement, but not statutory or fundamental right and its infringement. Even according 19 to clause 3.2 of license agreement, renewal of three years is subject to fulfilling certain requirements mentioned therein, but filing of an affidavit is not part of the license agreement and when the Hon'ble supreme Court mandated filing of such affidavit for renewal of license, it is binding on all licensees. Therefore, without fulfilling the conditions under clause 3.2 of license agreement and the directions given by the Apex court in Civil Appeal Nos.618-620 of 2016, dated 29.1.2016, the petitioner is not entitled to claim writ of Mandamus. The Apex Court in its judgments clarified under what circumstances the writ of mandamus can be issued, which are as under. In "State of Kerala v. A.Lakshmi Kutty5", the Hon'ble Supreme Court held that a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus.
15. In "State of U.P. and Ors. v. Harish Chandra and Ors.6" the Apex Court held as follows:
"10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition."
5
1986 (4) SCC 632 6 (1996) 9 SCC 309 20
16. In "Union of India v. S.B. Vohra7" the Supreme Court considered the said issue and held that 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.
17. In "Oriental Bank of Commerce v. Sunder Lal Jain8" the Supreme Court held thus:
"The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.:
Note 187.-Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed.
Note 192.-Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty.
Note 196.-Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, 7 (2004) 2 SCC 150 8 (2008) 2 SCC 280 21 and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles.
Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances."
18. In view of the law laid down in the above judgments, it is clear that the petitioner without complying the direction issued by the Apex Court insisting renewal of license to run catering unit i.e., fruit and juices stall on the platform No.1 of Gudur Railway Station, when the Apex Court imposed such a condition while dealing with similar issue, this Court is bound by such direction and therefore the learned single Judge of this Court declined to grant relief despite vociferous argument advanced by the counsel as observed in the judgment.
19. The jurisdiction of this court under Clause 15 of Letters Patent is provided only in the three tier process of disposal of writ petition while exercising power of judicial review, the second tier is created providing an intra court appeal before the division bench against the order of the learned single judge of the High Court. In that the division bench is a superior court than the learned single judge and clause 15 of letters patent is only for the convenience of the parties, but such power can be exercised by the Division bench only if the judgment of the learned single is totally perverse. The scope of Clause 15 of Letters Patent in intra Court appeal is discussed by the Apex Court in "Roma Sonkar v. Madhya Pradesh State Public 22 Service Commission9" considered the scope of jurisdiction of appellate Court in Intra Court Appeal, held in paragraph No.3, as follows:
"Only to avoid inconvenience to the litigants, another tier of screening by the Division Bench is provided in terms of the power of the High Court but that does not mean that the Single Judge is subordinate to the Division Bench. Being a writ proceeding, the Division Bench was called upon, in the intra court appeal, primarily and mostly to consider the correctness or otherwise of the view taken by the learned Single Judge. Hence, in our view, the Division Bench needs to consider the appeal(s) on merits by deciding on the correctness of the judgment of the learned Single Judge, instead or remitting the matter to the learned Single Judge."
20. In the instant case the learned single judge after elaborate consideration of the judgment of the Supreme Court and judgment of this Court rightly dismissed the writ petition and we find no illegality, irregularity or perversity to interfere with the findings recorded by the learned single judge while exercising limited power under clause 15 of the Letters Patent as discussed earlier and that insistence of the petitioners for renewal of license for another three years without complying the direction issued by the Apex Court disentitled him to claim discretionary relief of writ of Mandamus under Article 226 of the constitution of India.
21. Though the learned counsel for the petitioner filed additional grounds of appeal highlighting the duties of the judges etc., they are not much relevant for deciding the real controversy between the parties. Therefore, the contentions raised by the counsel for petitioner/appellant are meritless and they are hereby rejected. In view of our foregoing discussion we find no illegality or irregularity or perversity to interfere with the findings recorded by the learned 9 2018 (10) SCALE 222 23 single judge and the appeal is devoid of merits and deserves to be dismissed.
22. In the result, the Writ Appeal is dismissed confirming the order passed by the learned single Judge in W.P.No.7509 of 2019, dated 18.6.2019. No order as to costs.
However, as regard to exemplary costs of Rs.25,000/- imposed by the learned Single Judge, mere raising voice by counsel in casual manner, while advancing vociferous argument is not sufficient to justify imposition of costs. The Advocate is not a mouthpiece of his client, his duty is to present the case of his client in the manner befitting his status as an Officer of the Court. An Advocate is a privileged member of the community and a gentleman besides being citizen. According to rules, every member of the Bar shall act in dignified manner, respect the court, not communicate in private, refrain to act in illegal manner towards the opposition and there are several other rules, but the learned Single Judge, on account of the vociferous argument of the counsel, might have felt some inconvenience, leading to imposing costs of Rs.25,000/-. Saddling such liability on the petitioner/appellant on account of the way in which counsel argued before the learned Single Judge may not be proper. Hence, the costs imposed @ Rs.25,000/- is hereby set aside. 24
Consequently, miscellaneous petitions pending, if any, shall stand closed.
_____________________________________________ ACTING CHIEF JUSTICE C.PRAVEEN KUMAR ________________________________________ JUSTICE M. SATYANARAYANA MURTHY 18th September, 2019.
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