Gauhati High Court
Jayanti Bhowmick vs The Union Of India And 4 Ors on 29 April, 2022
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/25
GAHC010012522013
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6473/2013
JAYANTI BHOWMICK
S/O- LT. SITANGSU KR. BHOWMICK, R/O- P.S.- KOTWALI, VILL.- BAISGURI,
P.O.- NEW COOCH BEHAR- 736179, WEST BENGAL.
VERSUS
THE UNION OF INDIA and 4 ORS
REP. BY THE SECY. TO THE GOVT. OF INDIA, MINISTRY OF RAILWAYS,
RAIL BHAWAN, NEW DELHI- 110001.
2:THE CHIEF COMMERCIAL MANAGER
NORTHEAST FRONTIER RAILWAY
MALIGAON
GUWAHATI
ASSAM.
3:THE GENERAL MANAGER
N.F. RAILWAYS
MALIGAON
GUWAHATI
ASSAM.
4:THE DIVISIONAL COMMERCIAL MANAGER
NORTHEAST FRONTIER RAILWAY
ALIPUDUAR JUNCTION
DIST.- JALPAIGURI
WEST BENGAL.
5:STATION SUPERINTENDENT
NORTHEAST FRONTIER RAILWAY
NEW COOCH BEHAR
DIST.- COOCH BEHAR
WEST BENGAL
Page No.# 2/25
Advocate for the Petitioner : MR.P K GARODIA
Advocate for the Respondent : SC, NF RLY
Linked Case : WP(C)/5911/2013
DEBI KANT ROY
S/OLT. NATHUNI ROY R/O C/O STATION SUPDT. NEW ALIPURDUAR
P.O. NEW ALIPURDUAR
DIST. JALPAIGURI
- 736121.
VERSUS
THE UNION OF INDIA and 4 ORS
REP. BY THE SECRETARY TO THE GOVT. OF INDIA
MINISTRY OF RAILWAYS
RAIL BHAWAN
NEW DELHI- 110001.
2:THE CHIEF COMMERCIAL MANAGER
NORTHEAST FRONTIER RAILWAY
MALIGAON
GUWAHATI
ASSAM.
3:THE GENERAL MANAGER
N.F. RAILWAYS
MALIGAON
GUWAHATI
ASSAM.
4:THE DIVISIONAL COMMERCIAL MANAGER
NORTH FRONTIER RAILWAY
ALIPUDUAR JUNCTION
DIST. JALPAIGURI
WEST BENGAL.
5:STATION SUPERINTENDENT
NORTHEAST FRONTIER RAILWAY
NEW COOACH BEHAR
DIST. COACH BEHAR
WEST BENGAL
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Advocate for : MR.M MAHANTA Advocate for : appearing for THE UNION OF INDIA and 4 ORS Linked Case : WP(C)/7394/2013 Page No.# 3/25 SUKHENDU PAUL S/O- LT. SACHINDRA NATH PAUL R/O VILL.- CHECHAKHATA P.O.- ALIPURDUAR JUNCTION P.S.- ALIPURDUAR DIST.- JALPAIGURI WEST BENGAL.
VERSUS THE UNION OF INDIA and 4 ORS REP. BY THE SECY. TO THE GOVT. OF INDIA MINSTRY OF RAILWAYS RAIL BHAWAN NEW DELHI- 110001.
2:THE CHIEF COMMERCIAL MANAGER NORTHEAST FRONTIER RAILWAY MALIGAON GUWAHATI ASSAM.
3:THE DIVISIONAL COMMERCIAL MANAGER NORTHEAST FRONTIER RAILWAY ALIPURDUAR JUNCTION DIST.- JALPAIGURI WEST BENGAL.
4:THE GENERAL MANAGER N.F. RAILWAY MALIGAON GUWAHATI ASSAM.
5:STATION SUPERINTENDENT NORTH EAST FRONTIER RAILWAY NEW COOCH BEHAR DIST.- COOCH BEHAR WEST BENGAL.
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Advocate for : MR.K N CHOUDHURY Advocate for : appearing for THE UNION OF INDIA and 4 ORS Linked Case : WP(C)/6455/2013 MRINAL ROY S/O LT. JAGADISH CHANDRA ROY R/O NEW COOCH BEHAR DT COOCH BEHAR-736179 Page No.# 4/25 WEST BENGAL VERSUS THE UNION OF INDIA and 4 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA MINISTRY OF RAILWAYS RAIL BHAWAN NEW DELHI-110001 2:THE CHIEF COMMERCIAL MANAGER NORTHEAST FRONTIER RAILWAY MALIGAON GHY.
ASSAM 3:THE GENERAL MANAGER N.F. RAILWAYS MALIGAON GHY.
ASSAM 4:THE DIVISIONAL COMMERCIAL MANAGER NORTHEAST FRONTIER RAILWAY ALIPURDUAR JUNCTION DIST- JALPAIGURI WEST BENGAL 5:STATION SUPERINTENDENT N.F. RAILWAY NEW COOCH BEHAR DIST- COOCH BEHAR WEST BENGAL
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Advocate for : MR.P K GARODIA Advocate for : SC NF RLY appearing for THE UNION OF INDIA and 4 ORS Linked Case : WP(C)/2745/2016 SUDHIR CHANDRA BARMAN S/O LT. SURENDRA CHANDRA BARMAN R/O PESTARJHAR P.O. PASTARJHAR P.S. KOTWALI DIST- COOCHBEHAR VERSUS THE UNION OF INDIA and 4 ORS REP. BY THE SECY. TO THE GOVT. OF INDIA Page No.# 5/25 MINISTRY OF RAILWAYS RAIL BHAWAN NEW DELHI-1 2:THE GENERAL MANAGER N.F. RAILWAYS MALIGAON GUWAHATI ASSAM 3:THE DIVISIONAL COMMERCIAL MANAGER NORTHEAST FRONTIER RAILWAY ALIPURDUAR JUNCTION DIST- JALPAIGURI WEST BENGAL 4:STATION SUPERINTENDENT NORTHEAST FRONTIER RAILWAY NEW COOCH BEHAR DIST- COOCH BEHAR WEST BENGAL
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Advocate for : MS.A B KAYASTHA Advocate for : MR.B SHARMA appearing for THE UNION OF INDIA and 4 ORS Linked Case : WP(C)/6427/2013 UMA KANTA ROY S/O- LT. JAGADISH CHANDRA ROY R/O- NEW COOCH BEHAR DT. COOCH BEHAR- 736179 WEST BENGAL.
VERSUS THE UNION OF INDIA and 4 ORS REP. BY THE SECY. TO THE GOVT. OF INDIA MINISTRY OF RAILWAYS RAIL BHAWAN NEW DELHI- 110001.
2:THE CHIEF COMMERCIAL MANAGER NORTH EAST FRONTIER RAILWAY MALIGAON GUWAHATI ASSAM.
3:THE GENERAL MANAGER Page No.# 6/25 N.F. RAILWAYS MALIGAON GUWAHATI ASSAM.
4:THE DIVISIONAL COMMERCIAL MANAGER NORTHEAST FRONTIER RAILWAY ALIPUDUAR JUNCTION DIST.- JALPAIGURI WEST BENGAL.
5:STATION SUPERINTENDENT NORTHEAST FRONTIER RAILWAY NEW COOCH BEHAR DIST.- COOCH BEHAR WEST BENGAL.
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Advocate for : MR.K N CHOUDHURY Advocate for : SC NF RLY appearing for THE UNION OF INDIA and 4 ORS Linked Case : WP(C)/7208/2013 PRADIP KUMAR DEY S/O LT. DINESH CH. DEY R/O NEW ALIPURDUAR P.O. ALIPURDUAR DIST- JALPAIGURI PIN-786121 WEST BENGAL VERSUS THE UNION OF INDIA and 4 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA MINISTRY OF RAILWAYS RAIL BHAWAN NEW DELHI-01 2:THE CHIEF COMMERCIAL MANAGER NORTHEAST FRONTIER RAILWAY MALIGAON GUWAHATI ASSAM 3:THE GENERAL MANAGER NORTHEAST FRONTIER RAILWAY MALIGAON GUWAHATI ASSAM 4:THE DIVISIONAL COMMERCIAL MANAGER Page No.# 7/25 NF RAILWAY ALIPUDUAR JUNCTION DIST- JALPAIGURI WEST BENGAL 5:STATION SUPERINTENDENT N.F. RAILWAY NEW COOCH BEHAR DIST- COOCH BEHAR WEST BENGAL
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Advocate for : MR.K N CHOUDHURY Advocate for : appearing for THE UNION OF INDIA and 4 ORS Linked Case : WP(C)/6456/2013 SMT. MUKTI DEY W/O- LT. SUDHANGSHU CHANDRA DEY R/O VILL.- BAISGURI P.S.- KOTWALI P.O.- NEW COOCH BEHAR- 736179 WEST BENGAL.
VERSUS THE UNION OF INDIA and 4 ORS REP. BY THE SECY. TO THE GOVT. OF INDIA MINISTRY OF RAILWAYS RAIL BHAWAN NEW DELHI- 110001.
2:THE CHIEF COMMERCIAL MANAGER NORTHEAST FRONTIER RAILWAY MALIGAON GUWAHATI ASSAM.
3:THE GENERAL MANAGER N.F RAILWAYS MALIGAON GUWAHATI ASSAM.
4:THE DIVISIONAL COMMERCIAL MANAGER NORTHEAST FRONTIER RAILWAY ALIPURDUAR JUNCTION DIST- JALPAIGURI WEST BENGAL 5:STATION SUPERINTENDENT Page No.# 8/25 NOTHEAST FRONTIER RAILWAY NEW COOCH BEHAR WEST BENGAL
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Advocate for : MR.K N CHOUDHURY Advocate for : SC NF RLY appearing for THE UNION OF INDIA and 4 ORS Linked Case : WP(C)/6475/2013 SHYAMAL KR. ROY S/O- LT. NAGENDRA KISHOR ROY R/O- C/O- ALIPURDUAR RAILWAY JUNCTION NO. 2 STATION ROAD/RPF P.O.- ALIPURDUAR JN.
P.S.- ALIPURDUAR DIST.- JALPAIGURI WEST BENGAL.
VERSUS THE UNION OF INDIA and 4 ORS REP. BY THE SECY. TO THE GOVT. OF ASSAM MINISTRY OF RAILWAYS RAIL BHAWAN NEW DELHI- 110001.
2:THE CHIEF COMMERCIAL MANAGER NORTHEAST FRONTIER RAILWAY MALIGAON GUWAHATI ASSAM.
3:THE GENERAL MANAGER N.F. RAILWAYS MALIGAON GUWAHATI ASSAM.
4:THE DIVISIONAL COMMERCIAL MANAGER NORTHEAST FRONTIER RAILWAY ALIPUDUAR JUNCTION DIST.- JALPAIGURI WEST BENGAL.
Page No.# 9/25 5:STATION SUPERINTENDENT NORTHEAST FRONTIER RAILWAY NEW COOCH BEHAR DIST.- COOCH BEHAR WEST BENGAL.
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Advocate for : MR.P K GARODIA Advocate for : MR.A CHETRY appearing for THE UNION OF INDIA and 4 ORS BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH JUDGMENT AND ORDER(CAV) Date : 29-04-2022 Heard Mr. R.Dubey, the learned counsel for the Petitioners and Mr. B. Sarma, the learned Standing Counsel for the NF Railway.
2. All these nine writ petitions are taken up for disposal together as the facts are similar and the questions of law involved therein are also similar.
3. All the writ petitioners in the nine writ petitions herein have obtained licenses from the Railway Authorities for running their units by making payment of a fixed monthly rent known as the license fee. The petitioners herein have entered into respective agreements with the Railway Authorities and their period of licenses have been extended from time to time alongwith the renewal of their agreements. It is apparent from the records of each of the writ petitions that their agreements have been renewed up till 30.10.2005 and thereafter there has been no renewal of their agreements.
Page No.# 10/25
4. The Respondent No. 1 had issued a catering policy by the Commercial Circular No. 35/2010. For the sake of convenience, the said catering policy herein is after referred to as the Catering Policy of 2010. The record further reveals that the said catering policy came into effect on 21.07.2010. Pursuant to the issuance of the said Catering Policy of 2010, another Commercial Circular No. 37 of 2010 was issued whereby various operative instructions were issued for implementation of some of the aspects of the policy. Clause 2 of the said Commercial Circular No.37/2010 dated 9.8.2010 relates to recovery of license fee. As the said Clause 2 is relevant, the same is quoted herein below:-
"2. Recovery of License Fee:
In the light of the Catering Policy, 2010, the following is proposed.
(i) The arrear of license fees for licences awarded by zonal railways will be recovered by zonal railways at the rate assessed/paid by the licensee prior to the introduction of the GDP formula subject to a minimum of 12% of the assessed annual sales turnover with an increase of 10% for every 3 years for GMU and SMU at 'A', 'B' and 'C' category stations as the case may be upto the time the contract is handed over to the Railways by IRCTC. Since as per the policy, a minimum increase of 10% is made at the time of each renewal which is after every 3 years for GMU and SMUs at A, B and C category stations. The arrears of license fee for licences awarded by IRCTC shall be recovered by IRCTC, prior to handling over to zonal railways.
(ii) Zonal Railways will assess the license fee accordingly and ensure that the same is deposited by the licensees.
(iii) In the event of failure of the licensee to deposit the dues within 3 months of taking over by zonal railways, the said contract will deemed to have expired.
(iv) After taking over the license the zonal railways henceforth will reassess the license fee based on the parameters stated in the new Catering Policy and the license fee so assessed shall be levied with prospective effect at the time of renewals after the date of issue of new policy. The application for renewal will be considered by the Zonal Railways only after payment of all dues, license fee and arrears."
Page No.# 11/25
5. The record further reveals that on 4.11.2010 on behalf of the Divisional Railway Manager (C), N.F. Railway, Alipuduar Junction, a notice was issued to all catering and vending licensees of "A" & "B" class stations. In terms with the said communication all the catering and vending licensees were asked to deposit the monthly license fee of their units to the concerned S.S. immediately as per the existing rate. It was also mentioned that if there was any arrear upon fixation of the revised license fee accrued against the category/vending unit at a later stage, that should also be paid by the said catering and vending licensee on receipt of the same from their end. It seems that the said communication was issued in terms with Sub-Clauses (i) of Clause 2 of the Circular dated 9/8/2010. Subsequently on 24.4.2013 the Divisional Railway Manager (C), N.F. Railway, Alipuduar Junction, issued respective notices to each of the Petitioners by making reference to the Communication dated 4.11.2010 and informing that the license fee has been revised and increased with effect from 1.11.2010 as per the Catering Policy, 2010 and each of the Petitioners were asked to deposit the monthly enhanced license fee of their units with arrears as per agreement Clause No. 58(d) within one month of receiving the letter. This communication shows that to the terms of the Agreements entered into by and between the Railway Authorities and the respective Petitioners were renewed by conduct.
6. Subsequent thereto on 6.5.2013 Communications were issued to each of the Petitioners stating inter alia that the license fee for their respective units have been Page No.# 12/25 enhanced with effect from 1.11.2010 and the petitioners were directed to make payment of the license fee at the enhanced rate from 1.11.2010 and the difference of the arrears, on the basis of the enhanced license fee for the period from 1.11.2010 to 30.4.2013 should be cleared immediately. It is against these Communication dated 6.5.2013 to each of the petitioners that the present writ petitions have been filed. The details of the demand in each of the writ petitions are given in the following tabular form :-
W.P.(C) No Original license Enhanced Increase in Arrears from fee license fee percentage 1/1/2010- 30/4/2013 W.P.(C) No.6473/2013 Rs. 1303/- Rs. 19,470/- 1494% Rs. 5,45,010/-
W.P.(C) No.7394/2013 Rs. 1956/- Rs. 15,730/- 804% Rs. 4,13,220/-
W.P.(C) No.7208/2013 Rs. 387/- Rs. 9,350/- 2416% Rs. 2,68,890/-
W.P.(C) No.6475/2013 Rs. 336/- Rs. 11,000/- 3273% Rs. 3,19,920/-
W.P.(C) No.6456/2013 Rs. 701/- Rs. 10,890/- 1553% Rs. 3,05,670/-
W.P.(C) No.6455/2013 Rs. 697/- Rs. 10,890/- 1562% Rs. 3,05,790/-
W.P.(C) No.2745/2013 Rs. 393/- Rs. 10,890/- 2770% Rs. 3,14,910/-
W.P.(C) No. 5911/2013 Rs. 393/- Rs. 11,000/- 2798% Rs. 3,20,130/-
W.P.(C) No.2745/2016 Rs. 657/- Rs. 12,870/- 1958% Rs. 3,66,390/-
7. The Petitioners herein being aggrieved by such actions of the Respondent Authorities have assailed the Communications all dated 6.5.2013 on the following grounds -
i) The retrospective imposition of the license fee for the period from 1.10.2020 onwards till 30.4.2013 is in violation to Clause 58 (d) of the agreement entered Page No.# 13/25 into by and between the Writ Petitioners and the Railway Authorities.
ii) In terms with Clause 18 of the Catering Policy of 2010, the fixation of the license has to be done in the manner stipulated therein. It was the case of the Petitioners that Clause 18(1) related to tendered units and 18(2) is in relation to the minimum license fee to be fixed which shall be 12% of the estimated annual sales turnover. In terms with Clause 18(3), it was mentioned that at the time of renewal of the license, the license fee should be enhanced/reassessed based on actual sales turnover of the unit and license fee will be reassessed and revised at the time of each renewal subject to a minimum of 10% increase over the prevailing license fee of the unit. It was also mentioned that Clause 16.2.3 also deals with the reassessment and revision of the license fee at the time of renewal and it stipulates that to arrive at a realistic figure, zonal railways will ensure that a fresh assessment of sales turnover/revenue is conducted during the peak season and the lean season of the year immediately preceding the year of renewal with the periodicity of three-three months in order to assess the actual sales turnover so as to fix the revised license fee. It is therefore the contention of the Petitioners that the exorbitant and arbitrary enhancement of the license fee was not in terms with the Catering Policy of 2010.
(iii) It is also the case of the Petitioners that this Court had vide an order dated 12.12.2012 held that the revision of the license fee with retrospective effect issued against the Petitioners was violative of Clause 58(d) of the Agreement Page No.# 14/25 and as such the imposition which has been sought for revision of the license fee by way of the impugned Communications dated 6.5.2013 in all the writ petitions were in violation to the judgment dated 12.12.2012 passed in various writ petitions including W.P.(C) No. 7850/2005.
8. This Court at the time of issuing notice stayed the Communications dated 6.5.2013 and directed that the Petitioners shall, however, continue to pay the license fee at the existing rate.
9. The Respondents had filed an affidavit in opposition wherein the stand taken was that the Catering Policy of 2010 came into force w.e.f. 21.7.2010 which envisaged fixation of license fee as per the calculation to be made on the basis of the recommendation of the SAG Committee. It was mentioned that immediately after the Catering Policy of 2010 became effective, a notice dated 4.11.2010 was served upon the Petitioners to intimate them about the Catering Policy of 2010 and thereafter vide a notice dated 24.4.2013, it was again reiterated that the Petitioners would have to pay license fee in terms with the Catering Policy of 2010 and as such the question of violation to Clause 58(d) did not arise. It was further mentioned that as per Clause 18.1 of the Catering Policy of 2010, a Committee comprising of 3 SA Grade Officers from commercial, finance and civil engineering were nominated by the General Manager and the committee so formed were to fix the formula for each category of stations. On the basis of the approval by the General Manager, the SAG Officers Committee was formed and the formula for fixation of the minimum license fee was Page No.# 15/25 worked out. The copy of the minutes of the SAG Officers Committee for fixation of the formula for minimum license fee, minimum reserved price for Catering Units of NF Railway of 2010 was enclosed as Annexure- B to the affidavit in opposition. It was also mentioned that in case of the Petitioner's, earlier Communications dated 10.8.2005 was issued whereby the license fee was enhanced w.e.f. 1.10.2000 and the Petitioners were directed to make payment of the license fee at the enhanced rate from 1.10.2000 and the difference of the arrear of the enhanced license fee for the period from 1.10.2000 to 31.8.2005 i.e. for 59 months. To the said Communication, the Petitioners had only paid a paltry sum. It was also mentioned that similarly situated persons had approached the Supreme Court and the Supreme Court was pleased to dismiss those cases being devoid of any merit and passed directions to the Petitioners to pay the remaining amount of arrears.
10. On a specific query being made to the learned counsels for both the parties as to what is the present status of the licensees in as much as the interim order was passed long back in the year 2013, the learned counsel for the parties have stated that in view of the interim order passed, the Petitioners are still continuing with their vending units by paying the existing rate as it existed prior to the issuance of the Communication dated 6.5.2013. It has also been submitted by the learned Standing Counsel for the Railways, that the Railways have come out with a new Catering Policy in the year 2017 and in terms with the said Catering Policy of 2017, there is no scope for renewal.
Page No.# 16/25
11. I have heard the learned counsels for the parties and perused the materials on record including the records produced by the learned Standing Counsel, NF Railways.
12. For the purpose of deciding the dispute, it would be relevant to take note of the Catering Policy of 2010. A perusal of the said Catering Policy clearly shows that apart from settling the vending units by way of tender, the concept of renewal for the vending units is not foreign and this aspect of the matter would be apparent from some of the Clauses of the Catering Policy of 2010. Clause 14 of the Catering Policy of 2010 stipulates the allotment procedure and the contract management. In terms with Clause 14.1.1, allotment of all major units and of general minor units of "A", "B" and "C" category stations will be done through open, competitive, two packet tendering system, duly following all the procedures/instructions issued by the Government of India/Railway Board from time to time. In respect to allotment of special minor units and general minor units at D, E & F category stations, the allotment can be done in terms with Clause 14.2 by calling application and selecting the licensee based on instructions as given in the said Clause 14.2 and its Sub-Clauses. Clause 16 stipulates the tenure. While Clause 16.1. relates to tenure of major units and general minor units, Clause 16.2 is in relation to tenure of special minor units. Clause 16.1.3, Clause 16.2.1 and Clause 16.2.2 stipulates that the allotment shall be awarded for a particular period of time with an option of renewal on satisfactory performance and payment of all dues and arrears and withdrawal of court cases. Clause 16.1.3 which relates to General Units of A, B, & C category stations, the contract would be awarded for 5 Page No.# 17/25 years with a provision for renewal after every 3 years. Clause 16.2.2 which relates to Special Minor Units at A, B, & C category stations, contract would be awarded for 5 years with an option of renewal after every three years. Clause 16.2.2 relates to Special Minor Units of D, E & F category, the contract would be awarded for 5 years with option for renewal after every 5 years, for a further period of 5 years. In terms with Clause 16.2.3, license fee will be assessed and revised at the time of each renewal and to arrive at a realistic figure, zonal railway will ensure that a fresh assessment of sales turnover/revenue is conducted during the peak season and the lean season of the year immediately preceding the year of renewal with the periodicity of three-three months in order to assess the actual sales turnover so as to fix the revised license fee.
13. Clause 17 stipulates renewal of license. In terms with Clause 17, renewal is not a matter of right and the renewal shall be subject to the compliance of the conditions mentioned in Clause 17. Relevant herein for the purpose of the instant dispute would be Clause 17.5 which stipulates that the license fee shall be revised and reassessed at the time of each renewal subject to a minimum increase of 10% of the existing license fee.
14. Clause 18 relates to fixation of the license fee. Clause 18.1, 18.2 and 18.3 being relevant are quoted herein below :-
"18.1 Minimum license fees/minimum reserve price (in case of tendered units) shall be fixed realistically, equitably in order to have a fair, just and equitable fixation of license fees without adversely affecting the quality of service. It shall Page No.# 18/25 be based on the following factors (i) category of station, (ii) type of license, (iii) number of originating passengers, (iv) number of trains stopping (day & night),
(v) duration of stoppages (vi) location of the unit at the station, (vii) approximate license fees of a similar type of unit at a similar category of station in proximity. In case of Static Units on Category 'A1' and 'A' stations of Metro cities, and 'C' Category stations having high purchasing power, the fixation of minimum license fee will apart from all other factors take into account the Circle rates notified by the competent authority of the State Government as fixed from time to time. The zonal railways shall evolve a formula based on the above parameters for fixing the license fees for the units falling within their jurisdiction. A Committee comprising three SA Grade officers from Commercial, Finance and Civil Engineering shall be nominated by the General Manager which shall fix the formula for each category of stations. The formula so fixed by the zonal railway shall be applicable to the entire zonal railway. Apart from the above zonal railways may include and consider any other factors unique to the unit/units.
18.2 Minimum license fee will be fixed as 12% of the estimated annual sales turnover for static units, mobile units of Ordinary Mail/ Express trains/Duronto trains of the annual sales turnover based on actual occupancy figures certified by the Train Superintendent.
18.3 At the time of renewal of license, license fee should be enhanced/reassessed based on actual sales turnover of the unit. License fee will be reassessed and revised at the time of each renewal subject to a minimum of 10% increase over the prevailing license fee of the unit. To arrive at a realistic figure zonal railways will ensure that a fresh assessment of sales turnover/revenue is conducted during the peak period and lean period i.e. with the periodicity of three- three months in order to assess the actual sales turnover so as to fix the revised license fee. Renewal will be done for the existing licensees only on withdrawal of court cases by the licensees, if any, against the railways and payment of railway dues and arrears ."
15. A perusal of Clause 18.1 would show that the minimum license fee/minimum reserve price in case of tendered units shall be fixed realistically, equitably in order to have a fair, just and equitable fixation of license fee without adversely affecting the quality of services. The factors which are to be taken into account have been mentioned in Clause 18.1. It is also mentioned that the Zonal Railways shall evolve a formula based on the above parameters for fixing the license fee for the units falling within its jurisdiction and for that purpose a committee Page No.# 19/25 comprising of 3 SA Grade Officers from Commercial, Finance and Civil Engineering shall be nominated by the General Manager which shall fix the formula for each category of stations. It was also mentioned that the formula so fixed by the zonal railway shall be applicable to the entire zonal railway. Liberty was given to the zonal railway to include and consider any other factors unique to the unit/units. Clause 18.2 stipulates fixation of minimum license fee as 12% of the estimated annual sales turnover for static units, mobile units of Ordinary Mail Express Train and Premium Superfast Train and 15% for Rajdhani, Satabdi, Duranto of annual sales turnover based on actual occupancy sales turnover certified by the train Superintendent..
16. Thus, a conjoint reading of Clause 18.1 and 18.2 would show that the committee comprising of 3 SA Grade Officers so nominated by the General Manager shall fix the formula for each category of stations on the basis of the factors mentioned in Clause 18.1 as well as such other factors which the zonal railway may include to the unit/units. While fixing the said license fee in terms with Clause 18.2, it should be kept in mind that the minimum license fee would be fixed as 12% of the estimated annual sales turnover for the static units, mobile units of ordinary Mail/Express Train and Premium Superfast Train and 15% for Rajdhani, Satabdi Train, Duranto of annual sales turnover based on actual occupancy sales turnover certified by the train Superintendent. While Clauses 18.1 and 18.2 relates to fixation of minimum license fee but Clause 18.3 stipulates that at the time of renewal of license, license fee should be enhanced/reassessed based on annual sales turnover of the Page No.# 20/25 units. It is further stipulated that the license fee will be reassessed/revised at the time of each renewal subject to a minimum of 10% increase over a prevailing license fee of the unit. The stipulation as contained in Clauses 16.2.3 can also be found in Clause 18.3 to the effect that to arrive at a realistic figure, zonal railway will ensure that a fresh assessment of sales turnover/revenue is conducted during the peak period and lean period i.e. with the periodicity of three -three months in order to assess the actual sales turnover so as to fix the revised license fee. Renewal of license fee will be done for the existing licenses only on withdrawal of cases by the licensee, if any, against the Railways and payment of the Railway dues and arrears.
17. Admittedly, the Petitioners were licensee and as such their case comes within the ambit of renewal of license and not fresh allotment. While Clause 18.1 and 18.2 relates to fixation of the minimum license fee which is for the purpose of fresh allotments to be done in terms with Clause 14. Clause 18.3 comes within the ambit of renewal as stipulated in Clause 17 and this aspect of the matter would be further clear from a reading of Clause 17.5 which also mandates the increase of license fee by minimum of 10% over the prevailing license fee of the unit and to the extent of such enhancement/reassessment based on actual sales turnover of the unit. Clause 16.2.3 as well as in Clause 18.3 clearly mandates the manner and procedure by which the assessment of actual sales turnover/revenue is to be made.
18. Now coming to the facts of the instant case, it would be seen that the Respondent Authorities have admittedly fixed the minimum license fee in terms with Page No.# 21/25 Clause 18.1 in the case of the Petitioners, though the Petitioners are not fresh allottees. At this stage, it may be relevant to refer to Clause 2 of the Communication dated 9.8.2010 which have already been quoted herein above. From Sub-Clause (1) of Clause 2, it was proposed that, the arrear of the license fee for the license awarded by the zonal railway would be recovered by the zonal railway at the rate assessed/paid by the licensee prior to the introduction of the GDP formula, subject to a minimum of 12% annual sales turnover, with an increase of 10% for every 3 years for General Minor Units and Special Minor Units at "A", "B" and "C" category stations. It was also proposed that the arrear of license fee for licenses awarded by IRCTC shall be recovered by IRCTC prior to handing over to the zonal railway. Sub-Clause (ii) of Clause 2, further stipulates that the zonal railways will assess the license fee accordingly and ensure that the same is deposited by the licensee; the communication dated 4/11/2018 seems to be in consonance with the Sub-Clause (iii) of Clause 2, which stipulates that in the event of the failure of the licensee to deposit the dues within 3 months of taking over by the zonal railway, the said contract would be deemed to be expired. Sub-Clause (iv) of Clause 2 stipulates that after taking over the license, the zonal railway henceforth will reassess the license fee based on the parameters stated in the new catering policy and the license fee so assessed shall be levied with prospective effect at the time of renewal after the date of issuance of the new policy. The application for renewal shall be considered by the zonal railway only after payment of all dues, license fee and arrears. Thus, it would be seen from a Page No.# 22/25 perusal of Clause 2 of the Circular dated 9.8.2010 as to how the arrear of the license fee was required to be recovered by the zonal railways and the same has to be done at the rate assessed/paid by the licensee prior to the introduction of the GDP formula, subject to a minimum of 12% of the assessed annual sales turnover with an increase of 10% for every 3 years. It is only after the license has been taken over by the zonal railway, the license fee would be reassessed based on parameters stated in the new catering policy and the license fee so assessed shall be levied with prospective effect at the time of renewal.
19. In the present facts, it would be seen that since 31.10.2005 neither the licences have been renewed nor fresh agreement has been entered into. However, the issuance of the communication dated 04/11/2010, as well as 6.5.2013 would show that the Railway Authorities have renewed the respective agreement and licences by conduct. The Petitioners have been paying the license fee as was fixed in the year 2010 till date by virtue of the interim order passed by this Court. The fixation of the license fee in terms with Clause 18.1 in the case of the Petitioners w.e.f. 1.11.2010 by applying Clause 18.1 in the opinion of this Court violates the Clause 17 and 18.3 in as much as Clause 18.1 would have come into play had it been a case of a fresh allotment in terms with Clause 14. Further the records produced by the learned Standing Counsel, Railway shows that the Railway Authorities have not complied with the mandate of Clause 16.2.3 as well as Clause 18.3 which stipulates the manner in which the actual sales turnover is to be reassessed and revised. What has been done Page No.# 23/25 is that the Railway authorities have assessed the actual sales turnover by taking only three days of daily sales from 10/1/2013 to 12/1/2013. There appears no record as to whether the said period was the lean period or the peak period. However on a perusal of the records, a Commercial Circular No.20/2008 dated 20/3/2008 invites the attention of this Court which stipulates for the purpose of peak season, the period is 1st April to 31st July and 1st September to 31st January. The lean season is from 1st of February to 31st March and from 1st August to 31st August. The records also do not reflect that an endeavour was made to arrive at a realistic figure by conducting a fresh assessment in the manner indicated in Clause 16.2.3 as well as Clause 18.3 of the Catering Policy of 2010.
20. Furthermore, from the tabular contents as already mentioned herein above at Paragraph 5, it would show that the enhancement of the license fee which had been done from the existing license fee is exorbitantly high and as such the Communications dated 6.5.2013 are iniquitous and arbitrary. Apart from the above, even if this Court takes note of Clause 18.1 of the Catering Policy, which as stated above do not apply in the case of the Petitioners, then also it would be seen that the minimum license fee is to be fixed realistically, equitably in order to have a fair, just and equitable fixation of license fees without adversely effecting the quality of service. In the opinion of this Court, taking into consideration the materials on record, the enhancement of the license fee as has been sought to be done, does not seem to be realistic as well as equitable. As an instance if this Court takes the case of the Page No.# 24/25 Petitioners in W.P.(C) No. 6473/2013, from the records produced, it was found that during the peak season i.e. from 10/1/2012 to 12/1/2013, it was found that the average daily sale was Rs. 1170/- and consequently the monthly sale would be Rs. 35,100/-. The licence fee fixed at Rs. 19,470/- per month that too when the Railway Authorities fixes the tariff with Clause 3.2 of the Catering Policy, 2010, this Court is of the opinion that the licence fee so fixed is not realistic and unviable.
Consequently all the Communications dated 6.5.2013 impugned in the writ petitions herein are set aside and quashed.
21. Before parting with the record, it would also be relevant to take note of that in terms with Clause 18.3, it is the requirement that upon renewal, the license fee would be increased by a minimum of 10% and shall be subject to enhancement/assessment based on actual sales turnover of the unit. By virtue of the communication dated 4/11/2010, the Petitioners herein were informed of the applicability of the Catering Policy of 2010 and that they should pay up their license fees at the existing rate and subsequent to the fixation of the new license fee, they would have to pay the arrears. Consequently the Petitioners are liable to pay the enhanced license fee with effect from 1/11/2010.
22. Taking into consideration that by dint of the interim orders, the petitioners are still paying license fee at the existing rate fixed in the year 2000, the Railway Authorities would be at liberty to enhance/reassess the license fee of the Petitioners notionally every 3 years on the basis of the actual sales turnover of the unit in the Page No.# 25/25 manner to be done in terms with Clause 18.3 and 16.2.3 for the period w.e.f. 1.11.2010 till the date of the instant judgment and to claim such enhanced amount and arrears thereof in terms with such assessment. It is clarified that if materials/data are not available, then the Railway Authorities would be entitled for minimum enhancement of 10% every three years since 1.11.2020. Further to that, the Respondent Authorities shall also be at liberty to take such steps as envisaged under the law as per its present existing policy in respect to the vending units of the Petitioners.
23. With the above observations, all the writ petitions stands disposed off.
24. The records in original so produced before this Court by the learned Standing Counsel, N.F. Railway is returned through the Court Master.
25. The interim order passed earlier stands vacated.
JUDGE Comparing Assistant