Smt.J.Chandrika & Ors. v. The Regional Director Indian Railways Catering and Tourism Corporation Ltd.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:19.04.2011CORAMTHE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE K.K.SASIDHARANW.A.Nos.570 & 571 of 2010Smt.J.Chandrika..Appellant in W.A.No.570 of 2010Smt.A.Saradammal..Appellant inW.A.No.571 of 2010-vs-1. The Regional Director Indian Railways Catering and Tourism Corporation Ltd.,(I.R.C.T.C.) South Zone, No.6-A, The Rain Tree Place No.9, Mchnicals Road Chetpet, Chennai 600 0312. The Divisional Railway Manager D.R.M.(C's) Office Chennai 600 0033. The Chief Commercial Manager Southern Railway Chennai 600 0034. The Director Tourism and Catering Railway BoardRespondents 1 to 4 New Delhi..in both Writ Appeals Appeals under Clause 15 of the Letters Patent, against the orderdated 15.12.2009 made in W.P.Nos.19848 & 19849 of 2009.Petition presented under Art.226 of the Constitution of India,praying this Court to issue a Writ of Certiorarified Mandamus,calling for the entire records leading to the issue of proceedingsbearing No.2009/IRCTC/SZ/MAS-IF dated 24.09.2009 on the file of the1st Respondent and quash the same and direct the Respondents 1 to 4herein to follow the Revised Catering Policy 2005 bearing No.2005/TG-III/600/5 dated 21.12.2005 and proceedings bearing No.2005/TG-III/600/5 dated 09.03.2006 on the file of the 4th Respondent andfollow the reservation policy enunciated therein and renew thelicense in favour of the petitioner in respect of the fruit and fruitjuice stall situated at Plat form No.6 & 7 and 10 & 11 in the CentralRailway Station Chennai and V.L.R. stall situated at Platform No.1 &2 in the St.Thomas Mount Railway Station Chennai and https://hcservices.ecourts.gov.in/hcservices/ (ii) Kailash Ice Cream Stall situated at Platform No.3 & 4 & 5 &6 in the Egmore Railway Station, Chennai respectively.For Appellants::Mr.K.Sridhar forM/s K.Sridhar Associates For Respondents::Mr.V.G.Suresh Kumar for R1Mr.M.Vellaichamy for R2 & R3JUDGMENTD.MURUGESAN, J. The question as to whether the licensees to run the stalls forvending eatables/refreshments in the various railway stationplatforms owned by the Indian Railways on their applications, couldclaim as a matter of right for renewal of those licenses, even whenthere has been a change of policy in the award of licenses for thosestalls for vending eatables/refreshments by calling for publictender, is not new to this Court, as it has come up on manyoccasions. 2. Prior to the year 2000, licences to run the stalls forvending eatables/refreshments in the various railway stationplatforms were granted to various individuals including theappellants herein on their applications. The licenses wereperiodically renewed. On 20.10.2000, a new catering policy wasintroduced with the main features of (i) two packet system-technicaland financial bid, (ii) fixing the license fee at 12% of the salesturnover and (iii) eligibility criteria and minimum turnover wereintroduced. The new policy was questioned by Indian Railway CanteenAssociation and some other licensees before the High Court of Keralaand the policy was upheld. That order of the High Court of Kerala wastaken to Supreme Court and the same was disposed of with thefollowing observation on 29.3.2005 in Civil Appeal No.4898 of 2002:"Nothing stated herein shall preclude the IndianRailways/IRCTC from granting adhoc extensions inthe interest of general public travelling in thetrains. Such extensions however shall not createany legal right in the licensees favour. Theappellants shall deposit arrears of license feeif any within a period of two months from today.In case the appellants fail to deposit thearrears as directed the Indian Railways/IRCTCwould be at liberty to terminate the licenseesforthwith and to make recovery of the arrears inaccordance with law."3. Subsequent to the judgment, the Railway Board, in its lettersdated 24.6.2005 and 30.6.2005, directed the Railways to handover allstatic units to IRCTC. The Railways in turn directed all the GeneralManagers to hand over the units in A. B and C category stations.Pursuant to this direction, the Chief Commercial Manager, SouthernRailway by letter dated 2.11.2005 directed all the divisions ofSouthern Railway to hand over the static units in A, B and C category https://hcservices.ecourts.gov.in/hcservices/ stations to IRCTC with effect from 15.11.2005. Pursuant to the abovedirection, the IRCTC took over all the static units, major and minorunits from all the divisions, except 21 units in Chennai division inview of the pendency of a batch of writ petitions in W.P.Nos.36263 of2005 etc. The batch of writ petitions was disposed of on thefollowing terms:"With regard to WP Nos.36263 and 38630 of 2005where the petitioners have not filed any affidavitof undertaking, considering the undisputed factthat these petitioners have also entered intorider agreement dated 15.07.2003 wherein thelicense expired on 31.03.2001 was extended till31.03.2006 or till such time IRCTC takes overwhichever is earlier, these writ petitions aredismissed. However granting liberty to thepetitioners in these writ petitions to give anundertaking before the respondent within a weekfrom the date of receipt of the copy of this orderthat they would vacate their respective stalls onor before 31.12.2005 or on the date on which IRCTCconfirms to the successful bidders to take overtheir respective stalls whichever is later, inwhich event, the respondent shall pass orderspermitting the petitioners in terms of theunderstanding given by them. If the petitionersin WP Nos.36263 and 38630 of 2005 failed to givesuch undertaking within the time stipulated abovethe respondent is at liberty to proceed inaccordance with law."Thereafter, the Railway Board in Commercial Circular No.8 of 2005dated 16.3.2005 introduced a new catering policy stipulating 75% ofminor units to be awarded to IRCTC through open tender and 25% of theminor units to be allotted by the Divisional Railway Managers.Subsequently, Commercial Circular No.56 of 2005 dated 21.12.2005 andCommercial Circular No.59 of 2005 dated 28.12.2005 were issuedrevising the catering policy.4. On the ground that the revision of policy had created a newright to the licensees, number of licensees demanded that they beallowed to run the stalls even after the revision of policy. By thenew policy, a joint procedure order was issued in respect of the fivedivisions, namely, Chennai, Thiruvananthapuram, Palghat, Madurai andTiruchirappalli of Southern Railway. Pursuant to the joint procedureorder, tenders were called for and they were questioned by some ofthe licensees in Thiruvananthapuram, Palghat, Madurai andTiruchirappalli divisions in a batch of writ petitions inW.P.Nos.42960 of 2006 and W.P.Nos.33881 of 2006 and connected cases,and this Court dismissed those writ petitions upholding the jointprocedure order. While dismissing W.P.Nos.33881 of 2006 etc., byfinal order dated 21.11.2006, in paragraph 27, this Court observed asfollows:-"27.00. Thus, it can safely be stated that thereis no arbitrariness and illegality in the https://hcservices.ecourts.gov.in/hcservices/ proposed policy of the respondents. In theconsidered opinion of this Court, the Courtcannot restrict the power of the Government ofIndia and the Indian Railways, to change theearlier policy and to formulate a new policy,when the said policy is for betterment of thesociety. The various clauses of the policyclarify that the railways intend to provide moreand more benefits to the passengers, travellingin the trains, and streamline and systematizethe existing catering facilities on the railwayplatforms and in the railway compartments.Therefore, I am not inclined to accept thecontention that the new policy is a violation ofthe fundamental rights."Similarly, Tambaram to Chennai Beach Soda Water Staff and Book StallAssociation filed W.P.2652 of 2007 challenging the order of IRCTCdated 11.1.2007, by which the licensees were directed to close downtheir stalls. While granting interim order dated 2.11.2007, thisCourt directed as follows:-"5. The members of the petitionerAssociation have filed affidavits giving anundertaking that they will hand over the vacantpossession of the Soda Water Stall on the lastdate on which the IRCTC fixed the opening of thetender.6. In view of this undertaking, therespondents are directed to permit the members ofthe petitioner association to run the Soda WaterStall upto the last date on which IRCTC fixed theopening of the tender. However, the members ofthe petitioner association are permitted toparticipate in the tender. Taking note of thefact that the others have paid the revised rateand as on date, no license exists in favour ofthe petitioner, the members of the petitionerassociation are directed to pay the revised rateof rent as fixed by the GDP w.e.f. 1.1.2007. Thearrears from the period 1.1.2007 to 31.10.2007has to be paid within a period of three weeksfrom the date of receipt of a copy of this order.In the event of failure on the part of themembers of the petitioner Association, either topay the enhanced rent or the arrears for theperiod from 1.1.2007 upto 31.10.2007, the interimdirection granted will stand automaticallyvacated."5. In view of the above, all stalls were handed over to thecontrol of IRCTC with effect from 13.11.2008 and the tenders werefloated for general minor units by IRCTC. Again some of theerstwhile licensees questioned the same by filing a batch of writpetitions in W.P.Nos.3513 of 2009 etc., challenging the tender https://hcservices.ecourts.gov.in/hcservices/ notice. Those writ petitions were disposed of only with a directionthat their representations could be considered. However, pursuant tothe floating of tenders, bids were opened on 13.4.2009 and thetenders were finalized in respect of 66 stalls. Some of the erstwhilelicensees again filed W.P.Nos.11136 of 2009 etc., challenging thewithdrawal of temporary absorption given to them. Those writpetitions were once again dismissed by this Court by order dated24.8.2009. The writ petitions filed with similar relief inW.P.Nos.7270 of 2009 etc., were also dismissed subsequently on19.6.2009 with the following direction:-"5. Now, it is not disputed by the learnedcounsel for the petitioners that an undertakinghas been given by the petitioners. But, the onlystand taken by the learned counsel for thepetitioners is the cancellation of the jointproceedings. As rightly pointed out by the learnedSenior Counsel appearing for the first respondent,when the Railway Board itself has given adirection to proceed with the tender in the matterof this nature, now, basing on the DivisionalOfficers' proceedings which is an internalcommunication, the petitioners cannot takeadvantage of this. That apart, already theextension was given and it is for the Railwaymanagement to decide the policy with regard tothis and even as per the orders of the Hon'bleApex Court, temporary extension of contract willnot confer any right on the petitioners.Consequently, I do not find any reason tointerfere with the impugned orders. Hence, thewrit petitions are dismissed. No costs.Consequently, connected Miscellaneous Petitionsare closed."6. The above order was questioned by some of the licensees inW.A.Nos.1136 to 1138 of 2009 and they were also dismissed by thejudgment dated 20.8.2009 with the following observations:-"9. The grievance of the appellant appearsto be that by virtue of the renewal made in theyear 2005, the licensee should be regularised andgranted permanent license. In our opinion, thesaid contention cannot be accepted. First of all,grant of license is governed by the revisedcatering policy, which we have quoted earlier. Ofcourse, the existing licensee is entitled to makean application for renewal and on considerationof the application, the renewal could be grantedupto a maximum period of three years. As thelicense of the appellant had expired during themonth of December, 2005, the licensee if at allcould claim the benefit of Clause 10.5 and suchbenefit could be only for a period of threeyears. Beyond the said period of three years,there is no right conferred on any licensee to https://hcservices.ecourts.gov.in/hcservices/ seek either for further renewal or for grant oflicense.11. We may also point out that the policy assuch is also not questioned, except claiming thatthe appellant is entitled to the grant ofpermanent license which, in our consideredopinion, cannot be accepted. Till such time theprocess for the grant of license commenced andstood completed in terms of the revised cateringpolicy, the licensee was granted the renewalperiodically and that too, subject to clauses10.3 and 10.5 of the revised policy, whichprovide for such temporary renewal only for amaximum period of three years. Inasmuch as theperiod of three years is prescribed, the learnedJudge has correctly rejected the contention ofthe licensee and consequently, dismissed the writpetition. Hence we do not find any reason tointerfere with the order passed by the learnedsingle Judge. The facts are also identical inrespect of the other two appellants in WritAppeal Nos.1137 & 1138 of 2009 and for samereason, the said writ appeals are also liable tobe dismissed."7. Not satisfied with the above orders, S.L.P.(Civil) NO.26822of 2009 was filed before the Supreme Court and the same was withdrawnon 3.11.2009. Under these circumstances, the appellants-writpetitioners who have also approached this Court on many occasions atvarious stages, filed the writ petitions along with some otherindividuals questioning the order dated 24.9.2009, wherein they wereasked to pay the arrears of licensee fee for the period of theiroccupation of the stalls while the above proceedings were pending andconsequently to vacate and hand over possession of the stalls toIRCTC to enable the successful bidders to operate the stalls. Thelearned Judge, having noticed the various attempts made by theerstwhile licensees who were granted licenses to the stalls prior to2000 and had managed to continue the business in the stalls in spiteof the various orders of this Court upholding the revised policy ofthe Railway Board, ultimately, found no merit in the writ petitionsand accordingly dismissed the batch of writ petitions. In fact, thelearned Judge found that the writ petitions are clear abuse of theprocess of law, as the writ petitioners had successfully thwarted thesteps taken by the Railways and IRCTC in respect of Chennai division.Hence, these writ appeals.8. Mr.K.Sridhar, learned counsel for the appellants hassubmitted that even as per the revised policy, the appellants areentitled to the allotment on the quota reserved for women in respectof special minor units. That reservation cannot be refused in view ofthe earlier proceedings. 9. We have heard Mr.V.G.Suresh Kumar, learned counsel for theIRCTC and Mr.M.Vellaichamy, learned counsel for the Railways. https://hcservices.ecourts.gov.in/hcservices/

10. The earlier judgments of this Court as well as the SupremeCourt would make the legal position clear declaring that theappellants herein, who were the licensees prior to 2000, cannot haveany subsisting right to seek for renewal on the basis of the earlierlicenses granted in favour of them after the revision of policy. Thelegal position is settled, whereby the right of the Railway Board totake a policy decision to hand over the stalls to IRCTC had beenupheld. Similarly, the law that the licensees cannot have existingright to seek for renewal after the change of policy. However, thegrievance appears to be that since both the appellants are women,they are entitled for reservation in respect of 25 special minorunits. As per clause 10.8 of the revised catering policy of 2005,minor units at A, B and C category stations consisting of 25%reservation which are basically for socially backward persons,SC/ST/OBC. In terms of clause 10.3, these reserved category minorunits in A, B and C category stations will be allotted by calling forapplications and selecting the licensees based on the eligibilitycriteria and shortlisting. The 25% reservation for minor units in A,B and C category stations consists of the following breakup:-Scheduled Caste - 6%Scheduled Tribe-4%Below Poverty Line people-3%Freedom Fighters, women including war widows and widows of railway employees, persons who have been dislocated or displaced due to their land having been taken by railways for its own use-4%Other Backward Class-3%Minorities-3%Physically/mentally challenged persons-2%Though the appellants have claimed that they are widows, under 4%reservation for freedom fighters, women including war widows, etc.,the said reservation is zonal wise and not station wise. Evenotherwise, it could be seen that initially the stalls were allottedin favour of the husband of the respective appellant and after theirdemise, the same had been transferred in the name of the appellants.The question raised in these writ appeals is as to whether they couldclaim as a matter of right the renewal or allotment under the newpolicy. This contention has to fail for the simple reason that evenafter the revised policy and even if the appellants could make theirclaim as against the 4% reservation for widows among others, itshould be independently considered for fresh allotment and theycannot claim as a matter of right that they alone should be given thelicenses to run the stalls. If the said submission is to be accepted, https://hcservices.ecourts.gov.in/hcservices/ then the purpose of reservation of 25% in respect of minor unitswould be defeated, as the stalls may not be available for allotmentto each of the category as per the break-up. Therefore, it shouldnecessarily mean that when the policy has been upheld by the Courtsand the reservation can only be understood to mean that the widowsalso are eligible to apply for fresh allotment of stalls as againstthe 4% reservation for the particular sections considering the totalnumber of stalls available in the entire zone and to be selected onthe basis of shortlisting. In that view of the matter, the challengeto the order dated 24.9.2009 asking the appellants to pay the arrearsof licensee fee upto the period of their occupation of the stallsduring the pendency of the writ petitions cannot be faulted.Similarly, as of now, all of them have handed over the stalls andthey were also notified for allotment and in fact, going by the standof the Railways, the successful bidders have to be allotted thestalls which are claimed by the appellants herein. 11. For all the aforesaid reasons, the challenge to the orderimpugned in the writ petitions dated 24.9.2009 cannot be accepted, ashas been rightly rejected by the learned Judge. Accordingly, boththe writ appeals fail and they are dismissed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarssTo1. The Regional Director Indian Railways Catering and Tourism Corporation Ltd.,(I.R.C.T.C.) South Zone, No.6-A, The Rain Tree Place No.9, Mchnicals Road Chetpet, Chennai 600 0312. The Divisional Railway Manager D.R.M.(C's) Office Chennai 600 0033. The Chief Commercial Manager Southern Railway Chennai 600 0034. The Director Tourism and Catering Railway Board New Delhi.2 cc To Mr.K.Sridhar, Advocate, SR.273321 cc To Mr.V.G.Suresh Kumar, Advocate, SR.27553 W.A.Nos.570 & 571 of 2010ksj(co)pmk.26.4.2011