Karnataka High Court
Gulfeeza Begum vs The Union Of India on 19 February, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
Reserved on : 23.01.2024
Pronounced on : 19.02.2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.24598 OF 2023 (GM - RES)
C/W
WRIT PETITION No.24377 OF 2023 (GM - RES)
WRIT PETITION No.26869 OF 2023 (GM - RES)
IN WRIT PETITION No.24598 OF 2023
BETWEEN:
GULFEEZA BEGUM,
AGED ABOUT 60 YEARS,
W/O LATE HAMEED KHAN,
LICENSEE OF MISCELLANEOUS STALL
AT PLATFORM NUMBER 7/8,
SITUATED AT BENGALURU CITY
RAILWAY STATION,
RESIDENT AT 2, BHEL OFFICERS LAYOUT,
SPK GARDEN, TILAK NAGAR,
BENGALURU - 560 041.
... PETITIONER
(BY SRI JAYAKUMAR S.PATIL, SR.ADVOCATE A/W
SRI JAVEED S., ADVOCATE)
2
AND:
1. THE UNION OF INDIA
THE MINISTRY OF RAILWAYS,
RAISINA ROAD,
NEW DELHI - 110 001,
REPRESENTED BY ITS SECRETARY.
2. THE EXECUTIVE DIRECTOR
(TOURISM AND CATERING)
THE DEPARTMENT OF
TOURISM AND CATERING,
THE RAILWAY BOARD,
RAIL BHAWAN,
RAISINA ROAD, NEW DELHI - 110 001.
3. THE DIRECTOR
(TOURISM AND CATERING)
THE DEPARTMENT OF
TOURISM AND CATERING,
THE RAILWAY BOARD,
RAIL BHAWAN,
RAISINA ROAD,
NEW DELHI - 110 001.
4. THE SENIOR DIVISIONAL COMMERCIAL MANAGER
(THE SR. DCM)
SOUTH WESTERN RAILWAYS,
BENGALURU DIVISION,
DIVISIONAL OFFICE,
COMMERCIAL BRANCH,
BENGALURU - 560 023.
5. THE CHIEF COMMERCIAL MANAGER
THE CCM PRINCIPAL
SOUTH WESTERN RAILWAYS,
HEADQUARTERS OFFICE,
2ND FLOOR, WEST RING,
3
GADAG ROAD,
HUBBALLI - 580 020.
... RESPONDENTS
(BY SRI GOWTHAMDEV C.ULLAL, CGC FOR RESPONDENTS)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE
IMPUGNED COMMERCIAL CIRCULAR 61 OF 2017 DATED 5.9.17 AS
MULTI PURPOSE STALL (MPS) POLICY 2017 ISSUED BY THE R2 THE
RAILWAY BOARD, THE MINISTRY OF RAILWAYS VIDE ANNEXURE-F
BY TREATING IT AS UNJUST, UNFAIR AND ULTRA VIRES AND ETC.,
IN WRIT PETITION No.24377 OF 2023
BETWEEN:
M/S. J.S.ENTERPRISES
UNDER THE PARTNERSHIP ACT, 1960
SITUATED AT 16/181,
CHENNIMALAI ROAD,
OPPOSITE RAILWAY STATION,
ERODE - 638 001
REPRESENTED BY ITS PARTNER.
... PETITIONER
(BY SRI JAYAKUMAR S.PATIL, SR.ADVOCATE A/W
SRI MAHAMMAD TAHIR A., ADVOCATE)
AND:
1 . THE UNION OF INDIA
THE MINISTRY OF RAILWAYS,
RAISINA ROAD,
NEW DELHI - 110 001
REPRESENTED BY ITS SECRETARY.
4
2 . THE EXECUTIVE DIRECTOR
(TOURISM AND CATERING)
THE DEPARTMENT OF
TOURISM AND CATERING,
THE RAILWAY BOARD,
RAIL BHAWAN, RAISINA ROAD,
NEW DELHI - 110 001.
3 . THE DIRECTOR
(TOURISM AND CATERING)
THE DEPARTMENT OF
TOURISM AND CATERING,
THE RAILWAY BOARD, RAIL BHAWAN,
RAISINA ROAD,
NEW DELHI - 110 001.
4 . THE SENIOR DIVISIONAL
COMMERCIAL MANAGER
(THE SR. DCM)
SOUTH WESTERN RAILWAYS,
BENGALURU DIVISION,
DIVISIONAL OFFICE,
COMMERCIAL BRANCH,
BENGALURU - 560 023.
5 . THE CHIEF COMMERCIAL MANAGER
THE CCM PRINCIPAL
SOUTH WESTERN RAILWAYS,
HEADQUARTERS OFFICE,
2ND FLOOR, WEST WING,
GADAG ROAD,
HUBBALLI - 580 020.
... RESPONDENTS
(BY SRI GOWTHAMDEV C.ULLAL, CGC FOR RESPONDENTS)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
5
IMPUGNED COMMERCIAL CIRCULAR 61 OF 2017 DTD 05.09.2017
AS MULTI PURPOSE STALL (MPS) POLICY - 2017 ISSUED BY THE
R2 - THE RAILWAY BOARD, THE MINISTRY OF RAILWAYS VIDE
ANNEXURE-G BY TREATING IT AS UNJUST, UNFAIR AND ULTRA
VIRES AND ETC.,
IN WRIT PETITION No.26869 OF 2023
BETWEEN:
SRI ABDUL KHUDUS
SON OF G. SYED ABDUL KHADER
AGED ABOUT 58 YEARS
LICENSEE OF BOOK STALL
SITUATED AT PLATFORM NUMBER 2/3
KRISHNARAJAPURAM RAILWAY STATION
BENGALURU - 560 016.
... PETITIONER
(BY SRI JAYAKUMAR S.PATIL, SR.ADVOCATE A/W
SRI MAHAMMAD TAHIR A., ADVOCATE)
AND:
1. THE UNION OF INDIA
THE MINISTRY OF RAILWAYS,
RAISINA ROAD
NEW DELHI - 110 001
REPRESENTED BY ITS SECRETARY.
2. THE EXECUTIVE DIRECTOR
(TOURISM AND CATERING)
THE DEPARTMENT OF
TOURISM AND CATERING
THE RAILWAY BOARD,
RAIL BHAWAN,RAISINA ROAD,
NEW DELHI - 110 001.
3. THE DIRECTOR
(TOURISM AND CATERING)
6
THE DEPARTMENT OF
TOURISM AND CATERING
THE RAILWAY BOARD,
RAIL BHAWAN, RAISINA ROAD,
NEW DELHI - 110 001.
4. THE SENIOR DIVISIONAL
COMMERCIAL MANAGER (THE SR.DCM)
SOUTH WESTERN RAILWAYS,
BENGALURU DIVISION
DIVISIONAL OFFICE,
COMMERCIAL BRANCH
BENGALURU - 560 023.
5. THE CHIEF COMMERCIAL MANAGER
THE CCM PRINCIPAL
SOUTH WESTERN RAILWAYS
HEADQUARTERS OFFICE,
2ND FLOOR, WEST WING
GADAG ROAD,
HUBBALLI - 580 020.
6. M/S.SHIV SHAKTI CATERERS-AGRA
28/1G/1, NAI ABADI, JYOTI NAGAR
SHAHEED NAGAR, NEAR SHIV MANDIR,
AGRA - 282 001.
REPRESENTED BY ITS
AUTHORIZED PERSON.
(AMENDED AS PER ORDER
DATED 12.12.2023)
... RESPONDENTS
(BY SRI GOWTHAMDEV C.ULLAL, CGC FOR RESPONDENTS 1 TO 5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO a) CALL FOR
RELEVANT RECORDS PENDING ON THE FILE OF RESPONDENTS -
7
RAILWAYS; b) QUASH THE IMPUGNED COMMERCIAL CIRCULAR 61
OF 2017 DATED 05/09/2017 AS MULTI PURPOSE STALL (MPS)
POLICE- 2017 ISSUED BY THE R2-THE RAILWAY BOARD, THE
MINISTRY OF RAILWAYS VIDE ANNEXURE-G BY TREATING IT AS
UNJUST, UNFAIR AND ULTRA VIRES AND ETC.,
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 23.01.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
WRIT PETITION NO.24598 OF 2023:
The petitioner is knocking at the doors of this Court in the subject petition calling in question a Commercial Circular issued by the respondents dated 05-09-2017 and consequently sought quashment of auction catalogue dated 17-10-2023 and also sought a direction by issuance of a writ in the nature of mandamus to consider the representation dated 15-12-2022.
2. Heard Sri Jayakumar S.Patil, learned senior counsel appearing for the petitioner and Sri Gowthamdev C.Ullal, learned Central Government Council appearing for respondents 1 to 5. 8
3. Facts, in brief, germane are as follows:
The respondents notify a Commercial Circular No.96 of 2007 on 17-12-2007 to let out Curio Stalls, Toy Stalls and Multipurpose Stalls to the interested. Another Commercial Circular is notified on 21-07-2010, for catering in the Railways, which is termed as Catering Policy 2010. The husband of the petitioner participates in the tender and was awarded Miscellaneous Stall in the Railway Station on 31-01-2011 after which the contract is signed with the petitioner for a period of five years to be operational from 15-02-2012 to 14-02-2016. Originally the husband of the petitioner was the licensee which came to be transferred in the name of the petitioner after his demise. Therefore, reference to the term 'petitioner' in this order would be reference to the present petitioner and her husband.
4. During subsistence of the contract, the respondents circulate a policy titled as 'New Miscellaneous Article Stalls/Trolleys Policy 2012". In terms of the said policy after completion of 5 years, a tenderer had the option of renewal for a further period of three years. Such renewal was granted to the petitioner from 9 15-02-2016 to 14-02-2019 for the Miscellaneous Stall that was allotted on 31-01-2011. After the renewal for a period of 3 years, another policy was notified by the Railways which is Multi Purpose Stall Policy ('MPS Policy' for short). The policy comes about on 05-09-2017. The purpose of the policy is depicted in the policy itself. After the notification of the policy, option was given to all existing licensees of Book Stalls, Miscellaneous Stalls, Chemist Stalls and others. Likewise the option was given to the petitioner to switch over to the said policy. On 09-11-2017 the petitioner accepts the new MPS Policy and opts for conversion of existing Miscellaneous Stall by submitting willingness. Therefore, the stall of the petitioner is now converted from the earlier Miscellaneous Stall to MPS Stall. After conversion a letter of award is issued again on 05-02-2018 now for a period of five years which would come to an end on 04-02-2023. On 24-04-2021 the original tenderer passes away and the stall is transferred to the name of the present petitioner only for the residual period. Due to closure of Railway Stations on account of COVID-19 Railways granted 282 days for all Multi Purpose Stalls and extended the period up to 09-11-2023. 10 Therefore, the tenure which had to end on 31-01-2023 is continued up to 09-11-2023.
5. Just before the tenure was coming to an end, auction catalogue for Multi Purpose Stall of the petitioner is published, in terms of which auction was scheduled on 17-10-2023. Auction was held through the portal and the highest bidder is also identified. After identification of the highest bidder a contract agreement is signed for the stall in which the petitioner is vending the business on 23-10-2023. Aggrieved by this action of the respondents, the present writ petition is preferred by the petitioner on 06-11-2023 and a direction not to precipitate is issued. It is, therefore, further proceedings have not taken place and the petitioner continues to do the business on the strength of the interim order.
6. The learned senior counsel Sri Jayakumar S. Patil representing the petitioner would contend that all existing operational miscellaneous article licenses awarded by the Railways would be governed by the 2007 Policy. In the 2007 policy, the licensees had a right to seek extension. In that light only, 11 extension was granted to the petitioner from 2016 to 2019. In the interregnum comes another policy which the petitioner was forced to accept. In the said policy there was no scope of further renewal. He would, therefore, contend that it is discriminatory and the petitioner on coercion ought to sign for the new policy. He would submit that the policy in which contract of the petitioner was signed is still in existence and the renewal or the rights of the petitioner should be determined under the said policy. He would seek to place reliance upon certain judgment passed by the Apex Court where non-renewal of miscellaneous stall licence was frowned upon to contend that non-renewal of miscellaneous licence of the petitioner runs counter to the judgment of the Apex Court.
7. Per contra, Sri Gowthamdev C. Ullal, learned Central Government Counsel taking this Court through the objections so filed by the Railways would seek to contend that the petitioner is a beneficiary of a policy up to 2016 which permitted extension. The extension was granted up to 2019. In the interregnum the petitioner on his own volition shifted to the new policy and under the new policy enjoyed the contract for a period of 5 years up to 12 2023. If he had not opted for the new policy, his term would have come to an end in the year 2019 itself. Therefore, the petitioner having taken benefit of the new policy cannot now turn around and challenge the policy to contend that he must be presumed to have continued under the old policy. He would submit that the tender is already called, highest bidder is in place and the contract with him is also signed. Therefore, he would seek dismissal of the petition, as in these policy matters, which the Railways according to their needs have notified, this Court in exercise of its jurisdiction under Article 226 of the Constitution of India would not tinker with the wisdom of the policy makers, unless arbitrariness is writ large which is demonstrable.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
9. The afore-narrated facts are not in dispute and as such they do not require reiteration. Railways notified a circular which was titled as 'Clarification for management of Miscellaneous 13 Stalls/Trolleys'. This was through Commercial Circular No.96 of 2007 which comes to be notified on 17-12-2007. Some of the clauses that are germane to be noticed are clauses 1.1 and 6. They read as follows:
"1.1 All the curio stalls, toy stalls and multipurpose stalls except the units selling exclusively catering items, books/magazines and medicines will come under the broad category of Miscellaneous Stalls/Trolleys which will sell such items that are essential and incidental to the travelling needs of passengers like locks, chains, inflatable pillows, towels, napkins, games, toys, toiletry items, batteries, local handicrafts, gift items, curio items, packed snacks/biscuit and beverages, 'Rail Neer' and other approved BIS certified packaged drinking water, chocolates, mobile recharge coupons etc. Further, the competent authority may allow the sale of common medicines from Miscellaneous Stalls/Trolleys for which Doctor's prescription is not required subject to the condition that alternative medical stall/corner facility is not available or the existing facility is not adequate at the platforms or in railway premises. Necessary drug license, if required as per local State norms has to be obtained by the vendor from the State authorities for this purpose.
... ... ...
6. TENURE AND RENEWAL OF LICENCE The tenure of license for Misc. Stalls/trolleys will be 5 (five) years.
At A, B and C category stations for general category Misc. Stalls an extension up to 3 years can be considered subject to satisfactory performance and payment of all dues. For licences given on the basis of calling of applications the renewal will be every five years in case of Misc. Stalls and trolleys of D, E and F category stations and it will be every 3 14 years for reserve category units at A, B & C category stations subject to satisfactory performance and payment of all dues.
At the time of extension/renewal of the unit, license fee should be enhanced based on sales assessment subject to a minimum of 10% increase on the prevailing license fee of the stall/trolley. The monitoring of performance of the licensee should be strengthened during the period."
(Emphasis added) Clause 1.1 depicts the purpose for which the policy is notified. It is for vending of Curio, Toys and Multipurpose items all in the multipurpose stalls. Clause-6 (supra) depicted tenure and renewal of license. The tenure was five years and miscellaneous stalls could seek extension for another three years on satisfactory performance of contract. Then comes another policy by name Catering Policy 2010 notified on 21-07-2010. The said policy has nothing to do with the present petition as it was for catering purposes, as the name itself was Catering Policy. The petitioner participates in a tender notified by the Railways for Miscellaneous Stalls and a contract is awarded to the petitioner in Platform No.7/8 from Yeshwantpur end of Bangalore City Railway Station. The contract is awarded on 31- 01-2011 for a period of five years. The clauses that are germane to be noticed for award of contract are as follows: 15
"1. The Railway Administration is pleased to inform you that your application is considered for award of contract for Miscellaneous Stall on Plotform No.8 towards Yesvantpur end at Bangalore Railway Station for a period of 5 years from 15.2.11.
The following payments are to be made immediate A Licence fee 15.2.11 to 14.2.12 Rs. 2,01,000 B Security Deposit Rs. 10,000 C Total Rs. 2,11,000 D Total Due payable (` 37,500 paid towards EMD, Adjusted towards Rs. 1,73,500 L/Fee ` 2,11,000-37,500.
2. You are hereby directed to take position of the stall by erecting temporary structure of size 10x6=60 sq.ft. at your own cost as per the design of the Modular catering stall erected by Indian railway Catering and Tourism corporation limited at Bangalore City Railway Station. A rough sketch along with a plan should be submitted to this office for approval before erection of the stall. The date of opening the stall should be informed.
3. The contract/license will be normally for a period of five years from 15.2.11 for business, subject to renewal if your performance is found satisfactory. The contract is liable to be summarily termination in the event of breach of any of the condition including unsatisfactory service, subletting or any other improper act on your part. The contract is ordinarily terminable on one months notice in writing on either side without assigning any reason."
(Emphasis added) During subsistence of the contract of the petitioner, the respondents notified a new Miscellaneous Article Stalls/Trolleys Policy 2012. The policy depicted that all the existing operational 16 miscellaneous article licenses would be continued under the newly notified policy of 2012. Clause 18 of the said policy deals with existing contracts under the old Policy which reads as follows:
"18. APPLICABILITY OF THE NEW MISC. ARTICLE POLICY:
18.1 The revised Misc. Article Policy will be applicable with immediate effect prospectively i.e., from the date of issue.
This policy supersedes all prior policy circulars issued from time to time unless specifically referred to in this policy document. 18.2 DRM should renew all existing operational Misc. Art. Units licenses agreements which have expired or are due for expiry in the next 6 months by giving an extension, subject to a maximum extension of six months from the date of issue of this Policy.
18.3 All existing operational Misc. Article licenses awarded by Railways will be governed by the Misc. Article Policy, 2007 (CC-96/2007 dated 17-12-2007) up to the validity of their contractual period. Thereafter, a renewal will be given to them as per proviso mentioned in para No.7 & 8 of this Policy.
18.4 This Policy will also apply in case of award of fresh licenses and licenses awarded in the event of termination, non-renewal, vacation etc. of the existing licensees."
(Emphasis added) The tenure of licence under this policy was also five years extendable to three years. Clause 8 deals with renewal of licence 17 and Clause 8.1 observes that renewal will not be a matter of right. Clause 8 reads as follows:
"8. RENEWAL OF LICENCE:
8.1 "Renewal will not be a matter of right". The licensee must apply for renewal minimum six months in advance before the expiry of the contract. Therefore, on completion of the contractual period of Misc. Article Stalls i.e., A to F category of stations, the license may be renewed by the Railways on the recommendation of the committee comprising JAG/Sr. Scale Officers from Commercial, Finance and Civil Engg. Deptt. As constituted by DRM. The committee shall take into account all aspects and make recommendations for renewal or otherwise as the case may be based on satisfactory performance, payment of all dues and arrears and withdrawal of court case, if any. Based on the recommendations of the committee, the renewal of Misc. Article Stalls may be permitted by the DRM for all category of stations."
(Emphasis added) This is the marked difference between the earlier policy and the replaced policy. Therefore, the existing policy came within the ambit of 2012 policy. The contract of the petitioner was to come to an end on 15-02-2016 in terms of the award of contract quoted supra. The contract is continued for a period of three years from 15-02-2016 to 14-02-2019. This is in terms of the afore-quoted policy. During the extended period of contract, the respondents notify another policy. This policy was styled as 'Multipurpose Stall 18 (MPS) Policy' dated 05-09-2017. The policy was for the purpose of miscellaneous and curio stalls. Clause 1.2 of the policy reads as follows:
"1.2 Items permitted for sale at Multi Purpose Stalls are miscellaneous items that satisfy the travelling needs of passengers including artifacts and items of local and regional importance, PAD items (Proprietary Article Depot) as per the extant procedure of Zonal Railway, PDW (Packaged Drinking Water) as per instructions issued vide Board's letter No.2015/TG-III /631/8 dated 12-02-
2016 and revised from time to time, books/magazines/news paper, chemist stall items- OTC medicines and non-pharmacy items viz., dry/spray milk powder etc. Zonal Railways shall ensure that all MPS stalls must display and sell books pertaining to Indian Tradition, Culture, Values, Morals and History. It shall be mandatory for them to sell and display prominently the Zonal Railway Time Table and 'Trains at Glance' and any other official publications as may be mandated by the Zonal Railway or Division from time to time."
(Emphasis added) Clause 11 relates to existing stalls. It reads as follows:
"11. Applicability of this policy on the existing stalls.
11.1 No new allotment, renewal, extension of the Bookstall/table (other than philanthropic), Misc. Stalls/trolley, Chemist Stalls/corner etc. shall be done by the railways as of now. All such existing stalls/trolley etc. shall be allowed for conversion into MPS as per the provisions of this policy. However, in case they do not opt for conversion 19 into MPS, the same may be allowed to continue till expiry of the existing agreement/arrangement in vogue.
11.2 After expiry of the current agreement period, space shall be standardized, identified and allotted by Zonal Railways for new MPS as per the extant procedure.
11.3 The existing Bookstall/table (other than philanthropic), Misc. Stalls/trolley, Chemist Stalls/corner etc. shall be given an option to convert to MPS subject to payment of Licence fee as quoted by the prospective bidder for similarly placed MPS unit at the station/platform. The tenure of 5 years shall commence from the date of conversion of existing stall into MPS.
11.4 The one-time division-wise exercise of providing option of conversion to existing licensees and conversion of existing stalls into MPS shall be completed by the Divisions within 90 days from the date of issue of this policy.
11.5 This Multi Purpose Stall policy will be applicable with immediate effect i.e., from the date of issue. This policy supersedes Misc. Article Policy 2012, Chemist Stall Policy 2000 & 2008 and Bookstall Policies of 2004 and their related instructions, unless specifically referred to in this policy document."
(Emphasis added) In the afore-quoted clauses the railways notified new allotment, renewal or extension of bookstall/table, Miscellaneous Staff/Trolley inter alia. The petitioner was already under a contract of Miscellaneous Stall. Clause 11.3 directed that all the licensees of existing miscellaneous stalls inter alia would be given an option to 20 convert to MPS i.e., the present policy and the tenure shall commence from the date of conversion. Here lies the entire issue in the lis. As observed hereinabove, the tenure of the petitioner was to come to an end on 14-02-2019. The advantage in the new policy was that if they would convert from old policy to the new policy from the date of such conversion they would get five years. Looking at the huge advantage, the petitioner accepts for conversion in to this policy on his volition. Option letter seeking willingness for conversion from Miscellaneous Stall Policy to Multi Purpose Stall policy reads as follows:
"SOUTH WESTERN RAILWAY No.B/C.79/Catg./Conver/SBC/2017 Divisional Office, Commercial Branch, Sri Hameed Kha, Bengaluru:560 023 Licensee, Misc Stall Bengaluru City Date: 31.10.2017 PF-7/8, No.2, BHEL Officers Layout, SRK Garden, Tilak Nagar, Bengaluru-560 041.
Sir, Sub: Conversion of Miscellaneous stall into Multi Purpose Stall.
Ref: Railway Board Policy letter No.2015/TG-III/461/2 dated 05.09.2017 Commercial Circular No. 61 of 2017.
Railway Board vide commercial circular No.61 of 2017 under letter No.2015/TG-III/461/2 dated 05-09- 21 2017 has introduced Multi Purpose Stall policy to be implemented with immediate effect.
A copy of the Railway Board policy is enclosed for the detailed information. All the existing Miscellaneous/ trolley, Bookstalls, (other than philanthropic) Chemist stalls /corners shall be converted into Multi Purpose Stalls as per the policy. As such you are hereby given an option to convert your stall into Multipurpose Stall. In case you are willing, subject to compliance of all terms and conditions. The tenure of the license will be for 5 (five) years from the date of conversion of the stall as approved by Railway Administration.
An option to convert to Multi Purpose Stall is subject to License Fee as quoted by the prospective bidder for similarly placed unit at the station/platform.
However, if you do not opt for MPS the same will be allowed to continue till the expiry of existing contract period. No renewal/extension will be given. All those stalls will be tendered as per Multi Purpose Stalls Policy.
An option form is enclosed. Please submit the same duly filled in so as to reach the office within ten days from the date of receipt of this letter. Submission of option form is compulsory for all the above mentioned stalls.
Thanking you, Yours faithfully, Sd/-
for Sr. Divisional Commercial Manager, South Western Railway."
(Emphasis added) The willingness submitted by the petitioner reads as follows:
"OPTION FORM FOR CONVERSION OF MISCELLANEOUS STALL INTO MULTI-PURPOSE STALL.22
From: Date 9-11-2017 HAMEED KHAN MISC. STALL, BANGALORE CITY, No.2, BHEL, OFFICER LAY-OUT, SRK GARDEN, TILAKNAGAR, JAYANAGAR, BANGALORE-560 041 To
Senior Divisional Commercial Manager South Western Railway, Bengaluru-560 023.
Sir, Sub: Willingness to convert Miscellaneous Stall, Book stall (other than Philanthropic) Chemist stall, Trolley/corner into Multi Purpose Stall commercial Circular No.61 of 2017.
I am the Licensee of Misc. stall at Bangalore city on PF 7/8.
1. I am willing to convert my existing miscellaneous stall into Multi Purpose Stall as per the new Multi Purpose Stall Policy.
2. I understand that my tenure of License will be for 5 (five) years from the date of intimation of conversion of the existing Misc.
stall into Multi Purpose Stall with Existing/revised License fee as the case may be. I also understand that, if I do not give my option to convert my existing stall into Multi Purpose Stall, the same will be allowed to continue till the existing Agreement/Contract period expires.
3. On agreeing to convert my Misc. stall to Multipurpose stall, I will not have any claim on the existing Misc. stall and the agreement shall cease to exist.23
4. Further, I undertake to execute a fresh agreement for the Multi Purpose Stall as per catering policy Commercial Circular No.61 of 2017 dated 05.09.2017.
Thanking you, Yours faithfully, Sd/-"
(Emphasis added) Thus, the petitioner took advantage of the new policy, came into the new policy and accepted the tenure of five years from the date of conversion. A new work order was issued in favour of the petitioner on such conversion on 05-02-2018 for a period of five years. Certain clauses of the letter of award which are germane read as follows:
"LETTER OF AWARD Sub: Conversion of existing Miscellaneous stall into MPS (Multi Purpose Stall) at Bangalore City Railway Station, PF No.7/8.
Ref: i. Tender Notice No.01/2009/MISC STALL/ SBC DIVISION dated 20-08-2009.
ii. LOA No.B/C 79/Misc.Stall/TK/PF/1/11 dated 31-01-2011 iii. Renewal letter No.B/C.79/Catg./Misc.Stalls/JSE/ SBC dated 12-12-2016.
iv. Railway Board Letter No.2015/TG-
III/461/2 of dated 5-09-2017.
v. This office letter No.B/C.79/Catg/Convert/SBC 24 /2017 dated 31-10-2017.
vi. Your request dated 09-11-2017.
--
A Miscellaneous Stall on Platform No.07/08 at Bengaluru City Railway Station was allotted to you vide this office letter dated 31-01-2011 for a period of Five Years with initial license fee of Rs.2,01,000/- per annum.
A renewal was granted for a period of Three years from 15-02-2016 to 14-02-2019 with annual license fee of Rs 3,56,083/- per annum vide this office letter dated 12.12.2016.
Railway Board has issued a Multi Purpose Stall Policy bearing Number 2015/TG-III/461/2 dated 05-09- 2017, which gives directive for conversion of existing Miscellaneous stall into MPS. As per policy, all existing miscellaneous stalls/Book Stalls/Chemist Stalls are given an option to convert the existing Miscellaneous Stalls/Book Stalls Chemist Stalls into Multi-Purpose Stalls. Accordingly, you were advised to offer your willingness to convert your miscellaneous stall into MPS vide this office letter dated 31.10.2017.
We have received your request for conversion of existing Miscellaneous Stall on PF-07/08 at Bengaluru city Railway Station vide your letter dated 09.11.2017. Your request has been considered subject to the following terms and conditions.
1. The period of license of MPS stall is deemed from 01.02.2018.
2. The period of license will be valid for a period of Five years from 01-02-2018 to 31-01-2023 unless terminated due to breach of agreement. There will be no renewal or extension as per the MPS Policy.
... ... ... ..."
(Emphasis added)
25
The letter of award is clear that the petitioner is converted from the existing Miscellaneous Stall to MPS Multi-purpose Stall Policy. The tenure was from 01-02-2018 to 31-01-2023. There was no renewal or extension under this policy. This was clearly indicated in the letter of award. The petitioner accepts it and continues the business under the letter of acceptance for a period of five years. This was to come to an end on 31-01-2023.
10. When the Globe was engulfed with COVID-19 the Railways did not function. Therefore, the respondents took a decision to extend the contract by 282 days of all the existing contracts. A contract which was supposed to end on 31-01-2023, then comes to end on 09-11-2023. Therefore, the petitioner who began the business in the year 2011 has gone on up to 2023, all, on him accepting the terms and conditions of the contract in terms of the policies notified from time to time. The Railways on the contract of the petitioner coming to an end, notified an auction catalogue for auctioning the multipurpose stalls in the Railways. The auction was conducted on 17-10-2023. The highest bidder is also identified on 17-10-2023 pursuant to which a contract agreement is 26 signed for the stall in which the petitioner is doing business on 23-10-2023, to be operational for a period of five years. Sensing that she would be dispossessed on 09-11-2023, the petitioner files the subject petition on 06-11-2023.
11. The submission of the learned senior counsel for the petitioner that the petitioner was forced to sign the new policy which depicted no renewal after the completion is unacceptable.
The petitioner or the like are the huge beneficiaries in the new policy as it became operational for a period of 5 years from the conversion, continues to do business under the new policy and at the verge of completion of the tenure is seeking to turn around and challenge the conditions of policy. The petitioner was fully made aware that there would be no renewal under the new policy. The petitioner cannot feign ignorance as the letter of award quoted supra itself clearly indicated that it is for a period of five years which was non-renewable. With eyes wide open the petitioner has signed on the contract, enjoyed the fruits of the contract, for five years and now wants to go back to a policy that is no longer in 27 existence or a Catering Policy that is not applicable to the petitioner.
12. The learned senior counsel tried to place reliance upon the judgment rendered by the Apex Court which was with regard to Catering Policy and not the Multipurpose Stall Policy, which judgment, on the face of it, is inapplicable to the facts of the case.
The petitioner cannot, after enjoying the fruits of the contract till its completion, put the clock back and take advantage by contending that she should be brought under the 2012 or the 2017 policy again. Those are Catering Policies and petitioner's contract is not under Catering Policy, but under a different policy.
13. It is not the case of the petitioner, that she was made ineligible to participate in new tender. However, it is a fact that she has chosen not to participate in the tender process. The tender is notified, participant is identified and the highest bidder has also emerged. Contract is also signed with the highest bidder. After keeping quiet for all the things to happen, the present petition is filed 3 days before expiry of term of the contract. It is needless to 28 observe that competition should be thrown open to all as is done in the case at hand. The petitioner cannot contend that she should be permitted to continue in the said business for ever. Therefore, the petition lacking in merit, is to be dismissed.
WRIT PETITION NO.24377 OF 2023:
14. The petitioner, in the subject petition, is identically placed like that of the petitioner in W.P.No.24598 of 2023. Every aspect considered in the order (supra) would become applicable to the facts obtaining in the case at hand except the climax. The tenure of the petitioner in the subject petition was to come to an end on 09-11-2023. The only difference between the two petitions is that pursuant to auction catalogue the auction was scheduled to be held on 10-11-2023 in this case. The interim order is granted on 08-11-2023 directing maintenance of status quo. Therefore, the petitioner who has five stalls in the Railway Station of the respondents in MPS 5, MPS 9, MPS 10, MPS 16 and MPS 17 is continuing. The difference is that in W.P.No.24598 of 2023 the tender is already over and the contract with the successful tenderer 29 is also complete. The reasons so rendered to reject the said writ petition would become squarely applicable to this petition as well.
WRIT PETITION NO.26869 OF 2023
15. The petitioner in the subject petition is identically placed as that of the petitioner in W.P.No.24598 of 2023 and petitioner in W.P.No.24377 of 2023 except the fact that the petitioner had knocked at the doors of this Court on two occasions earlier. The petitioner is also beneficiary of the Policy of 2017 as the other two petitioners in the afore-quoted petitions were. The petitioner also accepted conversion from the existing policy into Multipurpose Stall Policy. The communication by the Railways on 31-10-2017 reads as follows:
"SOUTH WESTERN RAILWAY No.B/C.79/catg./Conver/SBC/2017 Divisional Office, Commercial Branch, Sri Abdul Khuddoos, Bengaluru:560 023 (Book Stall at KJM PF 2/3) Date: 31.10.2017 No.24, M.M.Road, Frazer Town, Bengaluru.
Sir, 30 Sub: Conversion of Miscellaneous stalls into Multi Purpose Stall.
Ref: Railway Board Policy letter No.2015/TG-III/461/2 dated 05.09.2017 Commercial Circular No. 61 of 2017.
Railway Board vide commercial circular No.61 of 2017 under letter No.2015/TG-III/461/2 dated 05.09.2017 has introduced Multi Purpose Stall Policy to be implemented with immediate effect.
A copy of the Railway Board policy is enclosed for the detailed information. All the existing Miscellaneous/ trolley, Bookstalls, (other than philanthropic) Chemist stalls /corners shall be converted into Multi Purpose Stalls as per the policy. As such you are hereby given an option to convert your stall into Multipurpose Stall. In case you are willing, subject to compliance of all terms and conditions. The tenure of the license will be for 5 (Five) years from the date of conversion of the stall as approved by Railway Administration.
An option to convert to Multi Purpose Stall is subject to payment of License Fee as quoted by the prospective bidder for similarly placed unit at the station/platform.
However, if you do not opt for MPS the same will be allowed to continue till the expiry of contract period. No renewal/extension will be given. All those stalls will be tendered as per Multi Purpose Stalls Policy.
An option form is enclosed. Please submit the same duly filled in so as to reach this office within ten days from the date of receipt of this letter. Submission of option form is compulsory for all the above mentioned stalls.
Thanking you, 31 Yours faithfully, Sd/-
for Sr. Divisional Commercial Manager, South Western Railway."
(Emphasis added) The option given by the petitioner accepting conversion reads as follows:
"OPTION FORM FOR CONVERSION OF MISCELLANEOUS STALL INTO MULTI-PURPOSE STALL.
From: Date 16-11-2017
SYED ABDUL KHUDUS
BOOK STALL, PF 2/3
KJM Railway Station,
BANGALORE.
To
Senior Divisional Commercial Manager South Western Railway, Bengaluru-560 023.
Sir, Sub: Willingness to convert Miscellaneous Stall, Book stall (other than Philanthropic) Chemist stall, Trolley/corner into Multi Purpose Stall commercial Circular No.61 of 2017.
I AM THE Licensee of Book stall at KJM on PF 2/3.
1. I am willing to convert my existing miscellaneous stall into Multi Purpose Stall as per the new Multi Purpose Stall Policy.
2. I understand that my tenure of License will be for 5 (Five) years from the date of intimation of conversion of the existing Book stall into 32 Multi Purpose Stall with Existing/revised License fee as the case may be. I also understand that, if I do not give my option to convert my existing stall into Multi Purpose Stall, the same will be allowed to continue till the existing Agreement/Contract period expires.
3. On agreeing to convert my Book stall to Multipurpose stall, I will not have any claim on the existing Book stall and the Agreement shall cease to exist.
4. Further, I undertake to execute a fresh agreement for the Multi Purpose Stall as per catering policy Commercial Circular No.61 of 2017 dated 05.09.2017.
Thanking you, Yours faithfully, Sd/-"
(Emphasis added) The petitioner then communicates that his licence fee be fixed in terms of the Multipurpose Stall Policy after converting the existing Books stall into MPS. The communication reads as follows:
"Bangalore From Date: 10-12-2019, ABDUL KHUDUS, Licensee, Book Stall, Platform No.2/3, Krishnarajapuram, Residing at No.24, M.D. M.M. Road, Frazer Town, Bangalore-560 005.33
To THE Sr. Divisional Commercial Manager, Divisional Office, South Western Railways, Bangalore City, Bangalore.
Respected Sir, Sub: Conversion of existing Book Stall into MPS (Multipurpose stall) on platform No.2/3, at K.R. Puram Railway Station.
Ref: B/C 79/Book Stall/MPS/2018 dt.5-2-2018.
--
Reference to the above subject I like to bring to your kind information that I am running above said Book stall now Multi purpose stall at above said platform and I am selling books, Maxine's etc., and the profit is less from selling these Maxine's books in the said stall at above said railway station.
I hereby request your good self to kindly affix the license fee for MPS as per the Letter of award dated 05/02/2018. As per Sl.No.4 and Sl.No.7 of the said letter.
I like to bring that there is one more Multiple stall existing in the same platform your stall with 10 feet.
Sir, I am coming from a middle class family and there is no other source of income to maintain my family and to meet other family legal requirement and this is the only livelihood source to me.
Sir, kindly look into my case favourable and kindly reduce the licence fee and deposit amount and thus enable me to run the said stall with rules and regulations.
Further as per your letter dated 22/11/2019 ref.No. B/C 79/Catg/Misc.stall/SBC/2019, kindly fix the licence fee as per the sale survey done by your authorities and I am ready to pay the security deposit, kindly affix the licence fee and security deposit as per the sale survey and oblige.34
Thanking you, Yours faithfully, Sd/-
ABDUL KHUDUS."
(Emphasis added) The license demanded in a particular manner was not acceded to and an order was passed contrary to the interest of the petitioner. This had led the petitioner to approach this Court immediately in W.P.No.1083 of 2020. That matter came up for its consideration on 10-01-2023 during which the learned counsel for the Railways made a submission that the Railways would withdraw the impugned order therein. This Court, pursuant to the said submission, passed the following order:
"2. What is called in question is an order dated 22.11.2019 and a consequential mandamus to consider the representation of the petitioner.
3. Sri N.S. Prasad, learned counsel appearing for respondents on instructions would submit that the respondents - Railways are withdrawing the impugned order dated 22.11.2019 and are willing to consider the representation of the petitioner. He also files a memo before this Court, to that effect.
4. In the light of the said submission and the memo, the grievance of the petitioner insofar as the first prayer is concerned, is redressed as the submission is as they would withdraw the impugned order. Wherefore, the impugned order dated 22.11.2019, has lost its efficacy.35
5. Insofar as the second prayer is concerned, which is for consideration of the representation, Sri N.S.Prasad, learned counsel appearing for the respondents would submit that if eight weeks time is granted, the representation would be considered and appropriate orders would be passed. This submission is also reiterated in the memo as well.
6. There is an interim order granted by this Court, which is subsisting even as on date. In the light of the aforesaid submissions and memo, I deem it appropriate to dispose of the writ petition with the following:
Order i. The writ petition is disposed.
ii. The impugned order dated 22.11.2019, is rendered ineffective.
iii. The representation of the petitioner submitted (Annexure K) shall be considered by the respondents in accordance with law and appropriate orders be passed as expeditiously as possible at any rate, within eight weeks from the date of receipt of a copy of the order.
iv. Till the consideration of the representation of the petitioner and appropriate orders are passed, in terms of the aforesaid direction, the interim order granted and subsisting in the case at hand, shall continue. "
(Emphasis supplied) It was directed that till the representation was considered, the interim order subsisting would continue. Again certain orders were passed on 12-07-2023 that there was no extension and renewal 36 under the MPS policy. These orders were called in question before this Court in W.P.No.21128 of 2023. This Court disposed of the writ petition with the following order:
"The long and short of the petitioner's grievance is as to the alleged compulsion of the Respondent-Railways to enter into a contract in terms of the document at Annexure-N. learned Sr. Advocate Mr. Jayakumar S.Patil appearing for the petitioner submits that the tenure of the arrangement now in obtainment would continue till 09.11.2023 subject to certain payments to be made by his client which he is ready & willing that first of the installments is already paid and other two remain to be paid. He argues that any standard book on the law of contract would shun such a compulsion, free consent being one of the essential ingredients of any valid agreement; that being the position, in the absence of statutory enablement provision, no citizen can be compelled to enter into any contractual arrangement.
2. Learned Panel Counsel Sri Gautamdev C Ullal appearing for the Respondent - Railways on instructions submits that never the Petitioner was compelled to put his signature to the agreement in question; he was only asked to make the payment in terms of the Letter dated 14.08.2023 and therefore, petition is liable to be dismissed.
3. Having heard the learned counsel for the parties and having perused the Petition papers, this Court is of the considered opinion that in view of the fair stand taken by the Respondent-Railways the apprehension of compulsion as projected by the Petitioner is not justified; petitioner is free to sign or not to the subject arrangement now proposed.
In view of the above, this Writ Petition is accordingly disposed off. It hardly needs to be stated that the subject shop premises shall be unlocked and be give 37 to the Petitioner immediately and without booking any delay.
Petitioner is warned to quit the subject property on or before 09.11.2023 and that if he squats, that would be contempt of this Court."
(Emphasis supplied) The coordinate Bench holds that the petitioner was free to sign or not to sign any agreement that is sought for and directs that the shop premises should be unlocked and given to the petitioner immediately, as the shop premises was locked on account of non- signing of the agreement. No other relief sought for was granted in the writ petition. The petitioner challenged that order before the Division Bench in Writ Appeal No.1325 of 2023. He withdrew the writ appeal by seeking the following liberty:
"JUDGMENT Mr. J.Mohammed Tahir, learned Advocate for the appellant has filed a memo of even date seeking leave to withdraw this appeal with liberty to challenge the Commercial Circular No.51 of 2017 dated 05.09.2017.
2. Memo be kept in record. Leave granted. Appeal is dismissed as withdrawn in terms of the Memo.38
3. In view of dismissal of this appeal, pending interlocutory applications, if any, do not survive for consideration and the same stand dismissed."
(Emphasis supplied) The memo for withdrawal so filed reads as follows:
"Memo for Withdrawal The Appellant seeks leave of this Hon'ble Court to withdraw the Writ Petition No.21128 of 2023 and the captioned Appeal with liberty to challenge the Commercial Circular 61 of 2017 dated 05.09.2017.
Therefore, it is prayed that this Hon'ble Court kindly allow this memo and grant liberty as sought, in the interest of justice and equity."
He seeks liberty to challenge the Commercial Circular No.61 of 2017 which is the subject matter of this writ petition. Therefore, the petitioner is similarly situated to that of the petitioners in W.P.No.24598 of 2023 and W.P.No.24377 of 2023. The contract of the petitioner in the case at hand has also come to an end, like in Writ Petition No.24598 of 2023. Tender is notified and the successful bidder is also identified. Therefore, the petition in W.P.No.26869 of 2023 also does not merit any consideration for the very reasons rendered in Writ Petition No.24598 of 2023. 39
16. For the aforesaid reasons, the following:
ORDER
(i) W.P.No.24598 of 2023, W.P.No.24377 of 2023 and W.P.No.26869 of 2023 all stand dismissed.
(ii) Interim order of any kind, if any subsisting, in any of these cases shall stand dissolved.
(iii) The Railways are at liberty to take the tender, if notified in any of these cases and the successful bidders identified to its logical conclusion, if not already taken.
Sd/-
JUDGE bkp CT:MJ