Bangalore District Court
South Western Railway vs The General Manager on 12 January, 2015
PRESENT: SRI Deshpande, G.S, B.Com., LLB;
C/c XXVII Additional City Civil Judge
and Presiding Officer, FTC-V
Dated this the 28th day of November 2014
PLAINTIFF: South Western Railway
Catering Contractors Association (Regd)
No.522/11, Ist floor, 63rd Cross,
5th Block, Rajajinagar,
Bangalore-560 010.
Represented by its General
Secretary V.S.Manogar
Aged about 59 years.
[By Sri MS, Advocate]
/v e r s u s/
DEFENDANTS: 1. The General Manager,
South-Western Railways,
Hubli.
2. The Senior Divisional Commercial
Manager, South -Western Railways,
Bangalore-560 023.
D1, D2 - By Sri NSSG, Advocate
Plaintiff/Association has filed IA No.2 under
Order 39 Rules 1 & 2 r/w Section 151 of CPC for
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grant of temporary injunction restraining the
defendants from dispossessing the members of the
association from the suit schedule stalls pending
disposal of the suit.
2. In the affidavit filed along with IA No.2, it is
stated that, suit schedule stalls are allotted to the
members of the association by name D.Abbas,
N. Ismail and Sri CKK. Moidoo in the Railway stations
by inviting tenders vide notification No. IRCTC/
SZ/SBC/2009/Stalls/General/OT/01 of the year
2009 for the period of five years commencing from
2009 to 2014 with a renewal clause for a further
period of three years. After completion of five years
period, without renewing the same for further three
years, the defendant no.2 has invited fresh tenders for
allotment of suit schedule stalls without giving
opportunity to the members of the
plaintiff/association. Therefore, the fresh tender
Notification No. B/C/79/CATG.Stalls/A-1, A&B/
2014 dated 16/9/2014 is null and void and
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unenforceable in law. The members of association and
its employees are depending upon the income getting
from the stalls. If they dispossessed from the stalls,
they will be put to irreparable loss and undue
hardship which cannot be compensated in terms of
money. The defendant no.2 cannot dispossess them
without due process of law. Therefore, the plaintiff
has filed the IA No.2 for grant of Temporary Injunction
pending disposal of the suit.
3. The defendants have filed their detailed
objections to IA No.2 contending that, the suit filed by
the association is not maintainable and as such IA
No.2 is liable to be dismissed with costs. Plaintiff
association is not a allottee of the stalls. The persons
who are allottees of the stalls are not the parties in
the suit. This suit is not filed in the representative
capacity. Association has not entered into agreement
with defendants for allotment of stalls. On these
grounds, suit is liable to be dismissed. The
Government of India, Ministry of Railway formulated
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the catering policy of 2010 to provide hygienic good
quality affordable food to the traveling public by
adopting best trade and hospitality industry practices
etc., As per Article 73 of the Constitution of India,
Ministry of Indian Railways has got power to make
laws and rules and policies. Same cannot be
challenged by the plaintiff by filing the suit before the
Civil Court. The defendants have got power to invite
tenders for allotment of stalls. Plaintiff/association
has not participated in the tender proceedings.
Therefore, they cannot question the tender
notification. The legality of catering policy 2010 was
challenged by filing two writ petitions No. W.P.(C)
No.25193/2010 and 28243/2010 before the Hon'ble
High Court of Kerala at Ernakulam. The Division
Bench has dismissed the Writ Petitions on 27/9/2010
with the following observations:
"We do not think there is any scope for
judicial review in the conduct of Government
business as visualized under Articles 73, 74
and 77 of the Constitution of India. Article 74
makes it very clear that the Council of
Ministers with Prime Minister as it's head will
advise the President. The Prime Minister
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obviously is the Head of the Council of
Ministries and it is probably for him to decide
which are the matters which require Cabinet
approval and which are the matters that
could be left to the Ministries concerned for
their decision. The question as to which are
the issues that require decision by the
Cabinet as a whole and which are the
matters that could be left for decision by the
Ministry are all issues beyond the scope of
judicial review. Court can only ensure
compliance of law including enforcement of
provisions of the Constitution. We have not
been shown that the Catering Policy 2010 is
issued in violation of any statutory provisions
or constitutional provisions. The objectives
sought to be achieved under the Policy are
quite laudable because the Railways want to
provide hygiene and quality food to the
traveling public at an affordable price".
Similar writ petition was filed before the Hon'ble
High Court of Madhya Pradesh at Jabalpur in
W.P.No.9899/2013 and same was also dismissed.
Similar writ petition was also filed in W.P.(C) No.
2928/2013 before the Hon'ble High Court of Gawhati
and it was dismissed on 14/8/2013.
Therefore, the plaintiff/association is not entitled
for the relief of Temporary Injunction and hence it is
prayed to dismiss IA No.2 with exemplary costs.
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4. Plaintiff/association in support of its
contentions has produced list with 3 documents. They
are, copy of Indian Railway code; copy of Rider
Agreement; and copy of order passed by Estate
Officer, Railways in Case No.13/2012.
5. On the other hand, the defendants have
produced Catering policy 2010.
6. Heard the arguments of both sides. The
Advocate for the plaintiff submitted that, the period of
tender is liable to be extended for the further period
of three years from 2014. It is mentioned in the
agreement entered between the members of
association and IRCTC. Contrary to this, the
defendant no.2 has invited fresh tenders without
giving reasonable opportunities to the members of
association and as such the tender notification issued
is null and void and not unenforceable in law. Now,
the defendant no.2 is threatening to dispossess the
members of the plaintiff /association from the stall. At
the most defendant no.2 has to dispossess them with
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due process of law. Therefore, the plaintiff is entitled
for the relief of Temporary Injunction as sought for in
IA No.2. The learned Advocate for the plaintiff has
cited the decision reported in ILR 1988 KAR 2378,
Sampkhand Mandal Panchayat vs. Kusumakara
Vishnu Kodiya.
7. On the other hand, the advocate for the
defendants submitted that, the suit filed by the
plaintiff is not maintainable. Therefore, question of
granting Temporary Injunction does not arise. The
persons who are allottees of the stalls are not the
parties in the suit. They have entered into agreement
with IRCTC at the time of allotting these stalls. The
plaintiff association is not a allottee of the stalls and it
is not entered into said agreement and hence plaintiff
cannot question the tender notification. The Indian
Railways formulated the catering policy of 2010 for
providing hygienic, good quality affordable food to the
traveling public by adopting best trade and hospitality
industry practices etc., under Article 73 of the
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Constitution of India. Plaintiff cannot question the
same. The present suit is filed in a representative
capacity. Hence, plaintiff association is not entitled
for the reliefs sought for in the suit and IA No.2. The
writ petitions filed before the different High Courts
challenging Catering Policy 2010 were dismissed.
Therefore, the advocate for the defendants prayed to
dismiss IA No.2 with exemplary costs.
8. In view of the rival contentions, following
points those arise for my consideration are as under:
1. Whether the plaintiff has made
out prima facie case for grant of
temporary injunction?
2. Whether balance of convenience
lies in favour of the plaintiff?
3. If an order of temporary
injunction is granted or refused,
to whom greater hardship will
cause?
4. Whether the plaintiff is entitled for
the relief of temporary injunction
as sought for in IA No.2?
5. What order?
9. My answer to the above points is as under:
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Point No.1 : In the negative;
Point No.2 : In the negative;
Point No.3 : If an order of temporary
injunction is granted in
favour of plaintiff,
greater hardship will
cause to the defendants.
Point No.4 : In the negative;
Point No.5 : As per final order; for
the following:
10. POINT NO.1 T0 4: Plaintiff - South
Western Railway Catering Contractors Association
(Regd) has filed the IA No.2 in the suit for the relief of
Temporary Injunction to restrain the defendants and
their officials from dispossessing the members of
plaintiff / association from the suit schedule stalls
pending disposal of the suit.
11. The case of the plaintiff in brief is that, suit
schedule stalls are allotted to one Sri D. Abbas,
N. Ismail and C.K.K. Moidoo in different Railway
stations for the period 2009-2014 with a renewal
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clause for the further period of three years as per
tender notification issued by the then IRCTC. These
persons are the members of plaintiff/association.
Now, the defendant no.2 without extending the
further period of three years, he is trying to
dispossess them from the suit stalls. He has called
fresh tenders as per tender notification
No.B/C/79/CATG.Stalls/A-1, A&B/ 2014 dated
16/9/2014. Same is null and void and not
enforceable in law. The above said persons cannot be
dispossessed without due process of law. Hence, they
are entitled for the relief of Temporary Injunction.
12. The defendants are contending that, the
said tender notification is issued as per the Catering
Policy of the year 2010. The Ministry of Indian
Railways has got power to issue such tenders etc.,
Plaintiff cannot question the same by filing suit.
Plaintiff /association is not a allottee of the stalls. It
has not entered into an agreement with Railway
authority. The above said persons are allottees of the
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stalls and they have entered into an agreement with
IRCTC. These persons are not made parties in the
present suit. Therefore, the suit filed by the plaintiff in
the present form is not maintainable. The present suit
is not filed in the representative capacity. Hence, the
defendants are praying to dismiss the application with
exemplary costs.
13. Plaintiff/association has not challenged the
Catering Policy of the year 2010. As per this policy,
the defendants are entitled to issue tender notification
in respect of suit schedule stalls. The persons who are
allottees of the stalls are not parties in the suit. These
persons are the agreement holders. The plaintiff
/association cannot contend that the above said
period of three years is liable to be extended. After
completion of tender period, it is for the competent
authority either to extend the said period of three
years or may not extend the said period. It is a
discretionary power of the competent authority.
Plaintiff /association cannot insist to extend the said
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period. In my opinion, the plaintiff /association has
no locus standi to file the present suit.
14. The tender notification issued by defendant
no.2 is not illegal. Plaintiff has not made out prima
facie case for grant of Temporary Injunction. If an
order of Temporary Injunction is granted in favour of
the plaintiff, the defendants will be put to irreparable
loss. It will cause loss to the revenue of defendants.
Therefore, the plaintiff is not entitled for grant of
Temporary Injunction.
15. The advocate for the plaintiff has cited the
decision reported in AIR 1989 SUIT SCHEDULE 2097,
Krishna Ram Mahale (dead) by his LRs vs. Mrs.
Shobha Venkta Rao, wherein it is held that the person
who is in settled possession of property, even though
he has no right to remain on the property, he cannot
be dispossessed by the owner of the property without
due process of law. Same view has been taken by the
Hon'ble Supreme Court in 2002(5) SCC 361, ILR
1994 KAR 3246, 1999 (3) Kar.L.J. 176.
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16. These decisions are not applicable to the
case on hand. The persons who are allottees of the
suit stalls are not parties to the suit. Plaintiff cannot
question the tender notification issued by the
defendant no.2. The above said persons are at liberty
to participate in the tender proceedings and can bid
the same. Therefore, the above said points are
answered accordingly.
17. POINT NO.5: In view of above discussions
and my findings to the points 1 to 4, I proceed to
pass the following:
IA No.2 filed by the plaintiff under
Order 39 Rules 1 & 2 of CPC is
dismissed.
No order as to costs.
***
[Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 28th day of November 2014.
[DESHPANDE, G.S.] C/c XXVII Additional City Civil Judge, 14 O.S.7937/2014 BANGALORE.
15 O.S.7937/2014 Order on IA No.2 pronounced in the Open Court vide separate order....
IA No.2 filed by the plaintiff under Order 39 Rules 1 & 2 of CPC is dismissed. No order as to costs.
[DESHPANDE, G.S.] C/c XXVII Additional City Civil Judge, BANGALORE.
16 O.S.7937/2014 In view of the direction issued by the Hon'ble High Court in W.P.No. 45881/2012 dated 14/11/2014, the case is advanced to 15/12/2014. Issue court notices to both sides and their advocates and call on 15/12/2014 C/c XXVII ACCJ, B'lore I 17 O.S.9229/2013 18 O.S.9229/2013 fff