B.N. PRASAD Vs. THE SUB-DIVISIONAL MAGISTRATE,

JUDGEMENT

(1.) This writ application is directed against an order dated 27.3.1971, passed by the Sub -divisional Magistrate, Kishunganj under the provisions of Sec. 138 of the Indian Railways Act (hereinafter to be referred as the Act) directing the petitioner -contractor of the Railway Refreshment Room at Kishunganj railway station to vacate the Refreshment Room there within a period of 15 days from the date of the order failing which the local police was directed to get it vacated and take possession and hand over the same to the Station Master, Kishunganj Railway Station. The order was passed on a petition filed on behalf of the Union of India through the Deputy Chief Commercial Superintendent, N.F. Railway, Maligaon, Gauhati, The prayer is to issue an appropriate writ quashing the order aforesaid dated the 27th March, 1971 (Annexure 2) on the grounds stated in the petition. The petitioner's case is that he entered into an agreement with the President of India represented by his duly constituted delegate in the matter and the agreement was renewed from time to time, (the last renewal being on the 10th of July, 1967) for a period of three years. By that agreement the petitioner obtained a lease for catering vegetarian and non -vegetarian meals and other refreshment to the passengers at Kishunganj Railway Station as also for vending by means of Dalas, wheel barrows and stalls on the premises of the said railway station in order to meet the demand of different types of passengers and in consideration to this agreement the petitioner was paying to the Railway Administration a consolidated sum reserved in the lease representing the rent for all types of vending and catering under one receipt granted for the same. The petitioner invested a huge sum of money on furniture, crockeries, utensils etc. and employed a large number of persons for executing his part of the lease as a lessee. It is said that certain interested persons in the railway at Maligaon and at Katihar, with a view to oust the petitioner inspite of the agreement, put in advertisement in the Indian Nation of 2nd September, 1967, purporting to be by the Chief Commercial Superintendent, N.F. Railway at Pandu inviting applications from the persons of catering experience for running one unit of vegetarian -cum -non -vegetarian Refreshment Room at Kishunganj Railway Station. The officers concerned were determined to throw out the petitioner from 1st October of the year. To counter -act the move, the petitioner filed a suit in the Court of 2nd Munsif at Kishunganj (Title Suit No. 72 of 1967) for a declaration and permanent injunction and an ad -interim order of injunction was issued by the said court and it was made absolute on the 15th December, 1967 (Annexure 1) by which the defendants of the suit were restrained from evicting the plaintiff from the suit premises and setting up any rival catering business at Kishunganj Railway Station till the disposal of the suit. An appeal was preferred before the District Judge of Purnea (Miscellaneous Appeal No. 5 of 1968) against the said order of the Munsif and on the 24th September, 1970, a consent order was passed to the effect "that the authorities concerned will look into the Circular Order No. 63 T.G. III/600 dated New Delhi 8.10.1963 from the Railway Board to the Manager of all the Railways before finally deciding the case of the plaintiff -respondent in respect of the catering contract at Kishunganj Railway Station". The petitioner's further contention is that the Railway Administration of N.F. Railway instead of taking steps to terminate the aforesaid contract allowed the petitioner to continue his business in terms of the said lease and the petitioner continued in expectation of a fresh renewal in course of time and the various privileges available to the petitioner as a lessee, namely free pass to the employees in service on the railway were being renewed. No notice was issued to the petitioner that he could no longer hold over or that there was no chance of any renewal of the lease; no notice was given to the petitioner to vacate the premises concerned and all on a sudden the petitioner learnt about the filing of the application by the Deputy Chief Commercial Superintendent, N.F. Railway, purporting to be under Sec. 138 of the Act before the Sub -divisional Magistrate, Kishunganj, and the impugned order was passed inspite of the objections raised before the learned Sub -divisional Magistrate by the petitioner.

(2.) The petitioner's contention is that Sec. 138 of the Indian Railways Act is not applicable to the case of the petitioner since the petitioner is not a railway servant nor is he a person 'employed' by the railways so as to attract the provision of the section; he is a lessee and at best a tenant for the premises held over on the expiry of the terms of the lease and he could be evicted therefrom only under the provision of Transfer of Property Act or the like law and not definitely under the provision of Sec. 138 of the Indian Railways Act and in absence of any finding regarding the actual status of the petitioner vis -a -vis N.F. Railway, the Magistrate had no jurisdiction to pass an order under Sec. 138 of the Act and the application for eviction having not been made by the Railway Administration as defined in Sec. 3(6) of the Indian Railways Act, it was not maintainable.

(3.) In the counter -affidavit filed on behalf of respondents 2 and 3, it is stated that by agreement last entered into with the petitioner a licence was granted in favour of the petitioner for carrying on catering business of refreshments at Kishunganj railway station commencing from 1.10.1964 and terminating on 30.9.1967. The relevant parts of the agreement have been included in Annexure 'A'. It is urged by Mr. Bose on behalf of respondents 2 and 3 that no lease was in fact created in favour of the petitioner to carry on the catering business and under the agreement only a licence was issued and since the service rendered by the petitioner was not considered satisfactory, an administrative decision was taken on 3.12.1970 when the petitioner was asked to quit the railway premises by notice dated 22.12.1970 (Annexure E). Submission of the learned counsel further was that the petitioner is a railway servant within the meaning of Sec. 138 of the Act and since the application under Sec. 138 of the Act was filed for and on behalf of Union of India (Central Government) it would be deemed to have been filed on behalf of the Railway Administration as defined under Sec. 3(6) of the Act and the petitioner being only a licensee, action under Sec. 138 of the Act was proper and appropriate.