Subhan Awasthi Catters v. The Union Of India
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4063 of 2022 ====================================================== Subhan Awasthi Catters having its Office at Ward No. 17, Near Balaji Mandir, Afshabad, Itarsi (MP)- 461111, through its Proprietor Subham Awasthi, Male, aged about 40 years, son of Ramakant Awashthi, Resident of Mohalla - Senioe, MIG- 344, Sai Fourtune City, Itarshi, Sonasawari, Hoshangabad, MP461111 ... ... Petitioner/s
Versus
1.
The Union of India through the Secretary, Ministry of Railways, Rail Bhawan, Raisina Road, New Delhi.
2.
The General Manager, East Central Railway, Hajipur Vaishali. 3.
The Chief Commercial Manager (PM and Catering), East Central Railway, Hajipur Vaishali.
4.
The Divisional Railway Manager (Catering) East Central Railway, DDU. ... ... Respondent/s ====================================================== Appearance :
For the Petitioner/s :
Mr.Uday Prasad Singh, Adv.
For the Respondent/s :
Dr. K.N. Singh (ASG) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 05-05-2022 Petitioner has prayed for following relief (s) :- "(I) That this writ application is being filed for issuance of writ in the nature of mandamus or any other appropriate writ/s, order/s, direction/s commanding the respondent not to proceed with the issuance of letter communicated by the respondent no.4, by instant petition. The petitioners seeks to assail the impugned decision dated 9.12.2021, 30.12.2021, 11.01.22 and 07.02.22 (recorded in separate communications dated 07.02.2022, 28/02/2022 bearing no. C/KHANPAN/DDU/22 Static/20 and is addressed to the petitioner, arrived at by the respondent no.4 herein, in imposing hundred present Licence fee on the petitioner for running the statics from December 2020 to Dec. 2021 copy of the
2/7 Impugned communication dated 30.12.2021 pertaining to Stall no. 10 and 18 in the Gaya Railway Station (Annexure-1 Series).
(II) The Respondent be command to in operate the input decisions record in the communication dated 30.12.2021, 07.02.2022, 28/02/2022 are capricious, whimsical, illegal and is vitiated by by irrationality, the spent, the input decisions are contrary to the circular a should by Ministry of Railway, Railway board dated 01.06.2020 and the subsequent communication dated 17.02.2021 and 07.02.2022 directing Chief Commercial Managers of all Zonal Railways to review/revise they licence fee of catering and vending units keeping in view the reduced footfall in the Railway Stations/Platforms. The petitioners have further reasons to believe, that the office of respondent no.
4, shall soon resort to taking coercive actions and has threatened the petitioner with terminating the License Agreement of the petitioner for running the Static unit at Gaya Railway Station. It is further submitted that the imposition of hundred present license fees for the period of December 2020 to December 2022, considering the fact that there was curtailed train operation during this time, frame cooing to the second surge of covid pendemic, which was as pit from middle of March, 2021 the wholly illegal needless to mansion here violation vitiated by malafied hence, the intent writ petition."
After the matter was heard for some time, finding the Bench not to be agreeable with the submissions made by learned counsel for the petitioner, learned counsel for the petitioner, under instructions, states that petitioner shall be content if a direction is issued to the authority concerned to consider and decide the representation which the petitioner shall be filing within a period of four weeks from today for redressal of the grievance(s).
3/7 Learned counsel for the respondents states that if such a representation is filed by the petitioner, the authority concerned shall consider and dispose it of expeditiously and preferably within a period of four months from the date of its filing along with a copy of this order.
Statement accepted and taken on record.
The Hon'ble Supreme Court in D. N. Jeevaraj Vs. Chief Secretary, Government of Karnataka & Ors, (2016) 2 SCC 653, paragraphs 34 to 38 observed as under:- "34. The learned counsel for the parties addressed us on the question of the bona fides of Nagalaxmi Bai in filing a public interest litigation. We leave this question open and do not express any opinion on the correctness or otherwise of the decision of the High Court in this regard.
35. However, we note that generally speaking, procedural technicalities ought to take a back seat in public interest litigation. This Court held in Rural Litigation and Entitlement Kendra v. State of U.P. [Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC 504] to this effect as follows: (SCC p. 515, para 16) "16. The writ petitions before us are not inter parties disputes and have been raised by way of public interest litigation and the controversy before the court is as to whether for social safety and for creating a hazardless environment for the people to live in, mining in the area should be permitted or stopped. We may not be taken to have said that for public interest litigations, procedural laws do not apply. At the same time it has to be remembered that every technicality in the procedural law is not available as a defence when a matter of grave public importance is for consideration before the court."
4/7
36. A considerable amount has been said about public interest litigation in R&M Trust [R&M Trust v. Koramangala Residents Vigilance Group, (2005) 3 SCC 91] and it is not necessary for us to dwell any further on this except to say that in issues pertaining to good governance, the courts ought to be somewhat more liberal in entertaining public interest litigation. However, in matters that may not be of moment or a litigation essentially directed against one organisation or individual (such as the present litigation which was directed only against Sadananda Gowda and later Jeevaraj was impleaded) ought not to be entertained or should be rarely entertained. Other remedies are also available to public spirited litigants and they should be encouraged to avail of such remedies.
37. In such cases, that might not strictly fall in the category of public interest litigation and for which other remedies are available, insofar as the issuance of a writ of mandamus is concerned, this Court held in Union of India v. S.B. Vohra [Union of India v. S.B. Vohra, (2004) 2 SCC 150: 2004 SCC (L&S) 363] that: (SCC p. 160, paras 12-13) "12. Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the King's Bench (now Queen's Bench) directing performance of a public legal duty.
13. A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and/or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted."
38. A salutary principle or a well-recognised rule that needs to be kept in mind before issuing a writ
5/7 of mandamus was stated in Saraswati Industrial Syndicate Ltd. v. Union of India [Saraswati Industrial Syndicate Ltd. v. Union of India, (1974) 2 SCC 630] in the following words: (SCC pp. 641-42, paras 2425) "24. ... The powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice.
Nevertheless, the well-recognised rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England, when a writ of mandamus is asked for, could be stated as we find it set out in Halsbury's Laws of England (3rd Edn.), Vol. 11, p. 106:
'198. Demand for performance must precede application.-As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal.'
25. In the cases before us there was no such demand or refusal. Thus, no ground whatsoever is shown here for the issue of any writ, order, or direction under Article 226 of the Constitution."
As such, petition stands disposed of on the following terms:- (a) Petitioner shall approach the authority concerned i.e. Respondent No.3, namely The Chief Commercial
6/7 Manager (PM & Catering), East Central Railway, Hajipur Vaishali within a period of four weeks from today by filing a representation for redressal of the grievance(s);
(b) The authority concerned shall consider and dispose it of expeditiously by a reasoned and speaking order preferably within a period of four months from the date of its filing along with a copy of this order; (c) The order assigning reasons shall be communicated to the petitioner;
(d) Needless to add, while considering such representation, principles of natural justice shall be followed and due opportunity of hearing afforded to the parties;
(e) Also, opportunity to place on record all relevant materials/documents shall be granted to the parties; (f) Equally, liberty is reserved to the petitioner to take recourse to such alternative remedies as are otherwise available in accordance with law;
(g) We are hopeful that as and when petitioner takes recourse to such remedies, as are otherwise available in law, before the appropriate forum, the same shall
7/7 be dealt with, in accordance with law and with reasonable dispatch;
(h) Liberty reserved to the petitioner to approach the appropriate forum/Court, should the need so arise subsequently on the same and subsequent cause of action;
(i) We have not expressed any opinion on merits. All issues are left open;
(j) The proceedings, during the time of current Pandemic- Covid-19 shall be conducted through digital mode, unless the parties otherwise mutually agree to meet in person i.e. physical mode;
The petition stands disposed of in the aforesaid terms.
Interlocutory Application(s), if any, shall stand disposed of.
(Sanjay Karol, CJ) ( S. Kumar, J) K.C.Jha/chn U