JIWAT BAI AND SONS Vs. G C BATRA

JUDGEMENT

(1.) Jiwat Bai's husband's father had a vending contract with Railway from 1920 to until his death in 1932 in Pakistan. Contract was then transferred to her husband which continued with him even after migration to India and till he died in 1961. After that it was transferred in the name of petitioner and was renewed from time to time. Last agreement was of 16.11.72 and it was signed by her son Hiralal. It was to expire on 31.7.74. By policy letter of 24.7.74, it was decided to renew licenses of individual, as distinct from contractors, without calling applications. On 26.7.74, petitioner was told that it was decided not to renew her license. After a temporary period, petitioners contract was terminated by letter dt. 22.11.76. Writ petition was filed on 28.11.74. During its pendency, there was a policy change per letter dt. 24.2.75 by which refugees were exempted from operation of current policy. The respondents raised a preliminary objection that the petition is by M/s Jiwat Bai and Sons' while petitioner had stated herself to be a widow and at places in the application 'petitioners' is mentioned and hence there is no proper petition. That the agreement had been signed by Hiralal who had described the firm as his proprietary concern and licence Jiwat Bai had no locus standi. After narrating above facts, judgement para 5a, onwards is :

(2.) Whether there is any right to the renewal of the vending license either in terms of the agreement by virtue of the relevant policy, is the first question that requires consideration. Clause (2) (a) of the agreement provides that renewal of the licence for further period would be at the "discretion" of the Railway Administration. There was, therefore, no right to renewal under the agreement. The revised policy in the matter of renewal of vending licences laid down by the Railway Board in its letter of July 17, 1974, as set in the Railway Board's letter of July 24, 1974, however, clearly confers a right of renewal on such of existing vendees who conform to the requirements for renewal in terms of the said policy. According to this policy, a vendor who was holding an individual licence in his own name and was himself actually doing the work without any vendor, helper, assistant etc. under him, was entitled to the renewal of the vending licence from time to time even though he might have held it for more than six years provided his performance had been found continuously satisfactory. The policy further lays down that it must be strictly complied with. The power conferred on the authorities to renew licences which satisfy the requirement for renewal laid down in the policy must be construed as a power coupled with a duty that must be exercised in favour of the subject if the requirements for such exercise are satisfied. To quote the language of Lord Cairns in the case of Frederic Guilder Julius 1880 (5), A.C. 214 'there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which is to be done, something into the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power then called upon to do so." The principle was adopted by the judicial Committee in Alcock Vs. Chief Revenue Authority AIR. 1923. P.C. 138 and had been approved by the Supreme Court. If the petitioners, being the existing licences, satisfied the aforesaid requirement, they were certainly entitled, to the renewal in terms of the policy.

(3.) The next question that requires consideration is as to the nature of such a right. If the right to renewal conferred by the policy is contractual in nature, then obviously the petitioner would not be entitled to enforce that right in the present proceedings because Article 226 of the Constitution of India is not a forum for the enforcement of contractual rights. A regular civil action is the appropriate forum for such a relief. If, however, the right has its genesis not in the contract but in the policy and, therefore, is an executive order, it would not be a contractual right but a right arising out of executive action. Mr. Dhebar, learned counsel for the 'Railway Administration contends that when the policy confers a right of renewal, assuming that it does, it is in no way different from a unilateral amendment of the agreement as it were to confer an additional right on the other party to the agreement and that the right was in a sense still a contractual right because in the absence of the agreement confers no right of renewal whatever. This contention appears to me to be misconceived. The agreement confers no right of renewal whatever. The right of renewal, subject to certain conditions being satisfied, is conferred by the policy even though on persons who held the licencees. The foundation for the right is the policy decision of the Government even though the subsistence of the vending licence is a qualifying condition for it. There can be no question of a unilateral modification of the agreement. It is benefit given to a vendor in addition to those to which he was entitled in terms of the agreement. The right could not, therefore, be considered contractual in its origin so as to disentitle the petitioners to enforce it in the present proceedings.