M T AND SONS Vs. UNION OF INDIA

JUDGEMENT

(1.) Invoking the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the petitioner has prayed for calling for the entire record from the possession of the respondents which is led to the issuance of impugned Circular dated 26-4-99 and notices dated 10-12-99 and further to issue writ of certiorari for quashment of the circular, the notices and also the order dated 18-2-2000, Annexure P.7. A further prayer has been made to declare that the increase of 12% of the licence fees by the Railways is unjust, unreasonable and arbitrary and to restrain the respondents from collecting at the increased rate.

(2.) Sans unnecessary details, the facts which are essential for disposal of the present writ petition are that the petitioners are holding licences for catering, tea stall, refreshment rooms at various Railway Stations in Bhopal Division. They have been undertaking the contract for more than last 10 years. They have entered into agreements with the Railways with regard to running the catering, tea stall and refreshment rooms. The petitioners were required to pay a fixed licence fee under the contract to railways. Earlier with effect from 11-4-1984 to 31-3-1986, a lump sum licence fee for catering licence was fixed at the 3% of the sales turnover including the rent of the location of the stall at the Railway Platform. The said licence fee of 3% was increased to 5% with effect from 1-4-86 and remained as such till 31-3-99. The licence fee at the rate of 5% of Sales turnover was continued up to 31-3-99. The petitioners have deposited licence fee up to 31-3-2000. An agreement, entered into by the Railways with one Om Prakash Agarwal has been brought on record as Annexure P.1. It has been pleaded that though the period stipulated in the agreement has expired yet the petitioners have been allowed to continue with the contract as the licences have been renewed. The order of renewal has been brought on record as Annexure P.2. It has been set forth that as per Annexure P.2 the licence in question has been renewed up to 31-3-2002. According to the writ petitioners they were paying the licence fee at the rate of 5% which was the fee demanded by the respondents. However, the respondent No. 3 the Director (Catering), Railway Board, has issued a commercial circular bearing No. 15 dated 24-6-99, Annexure P.3, purporting to revised rate of licence fee. As per the said circular, the licence fee stands enhanced to 12% of sales turnover. It is pleaded that the circular does not reveal any provision for payment of rent of location of stall at the platform and it is nowhere mentioned on what basis the licence fee has been increased. It has been stated that earlier the licence fee was 5% including the rent of the stalls at the Railway platform whereas by the said circular, the Contractor is liable to pay the rent excluding the licence fee of 12%. In pursuance of the aforesaid circular respondent No. 4 has issued the impugned notice dated 10-12-99 to the petitioners by which the petitioners are being compelled to pay the enhanced licence fee. It has also been stated that in pursuance of the said notices, the stalls of the petitioners have been closed by order dated 18-2-2000, Annexure P.7.

(3.) It is urged in the petition that the Railway Board vide its circular dated 2-1-87 had laid down certain criteria for fixation of lump sum licence fee. It has been categorically mentioned in the said circular that while fixing the licence fee certain factors, namely, existing rent and licence fee, number of vendors, salesman, workers, bearers allowed, importance of station from the point of view of passengers traffic and demand for items sold, location of the stall at the station, variation of passenger traffic, number and nature of items permitted to be sold, size of the stall/refreshment room, structure etc., are to be taken into consideration. In case of pantry car/dining car, importance of trains, by which the pantry car/dining car is attached and the number of meals, which are required to be served during journey and in the case of pantry car/dining car, it should be considered if the contractor is to be allowed cooking of meals inside the pantry car or is required to pick up casseroles, 'thalies' from the station. It has been put- forth that the aforesaid factors have not at all been taken into consideration while issuing the circular number 115 dated 24-6-99.