Sri Ashok Kumar Kahar And ORS. v. Union Of India And ORS.
July 31, 2024 Sl. No.1 Court No.9 s.biswas WPA 16387 of 2024 Sri Ashok Kumar Kahar and others vs.
Union of India and others Mr. Achin Kumar Majumder ... for the petitioners Mr. Asok Bhaumik ... for the respondent
1. The petitioner prays for renewal of the contract and/or the licences, so that the petitioner can run the multi-purpose stall from three stations. The contention of the petitioner is that since 2007, the petitioner had been running stalls at Jasidih, Chittaranjan and Madhupur railway stations. The licences of the petitioner had expired sometime in June and July, 2024 in respect of the stations. The petitioner prays that directions be passed upon the authorities for renewal.
2. Mr. Bhaumik, learned advocate representing the railway authorities, submits that the licences had expired much earlier. Taking note of the COVID situation and the fate of such stall owners who would be jobless during the COVID period, extensions were given for a further period of 68 days from the date of expiry of licences. The period of 68 days also expired in June and July.
3. It appears to this court that the Delhi High Court had decided a matter similar in nature. Stall owners of multi-purpose stalls had approached the Delhi High Court with similar prayers for extension of licences. The Delhi High Court was of the view that the property of the railways could not be vested to the stall owners, without a proper tendering process. Accordingly, the writ petitions were dismissed, allowing the railway authorities to take steps in accordance with law.
4. The Delhi High Court also observed that the parties could invoke the arbitration clause if they thought it fit to do so. However, on humanitarian grounds and in order to allow the stall owners to make the transitions smooth and to figure out an alternative arrangement, three months time was given to vacate the stalls in question.
5. Under such circumstances, the prayer of the petitioner for renewal of the licences which have expired, cannot be granted. The decision of the Delhi High Court is noted and accepted as the matter has been decided in detail as to why the licence could not be renewed. The relevant portions of the judgment are quoted below:
"31. It is evident from the perusal of the aforesaid letter dated 21.05.2020 that it takes into consideration the ground reality that there were variations across the stations regarding
the impact of Covid-19. The actual date on which the stalls could be made operational, and the timeline for restoration of passenger traffic, varied from station to station. It was directed that the period during which license was nonoperational shall be treated as dies non period and the contract period shall be extended accordingly.
As noticed above, the determination in this regard was left to be made by the respective zonal/divisional railways.
32. Taking into account the above, the concerned zonal/divisional railway had worked out the dies non period based on the ground realities prevalent at the concerned railway stations and have accordingly extended the license period. It cannot be said that the extent of extension to which the petitioners are entitled, has been worked out on a completely arbitrary basis. The contentions in this regard are devoid of merit.
33. The petitioners' reliance on a larger extension of tenure granted to certain licensees, is misplaced. The facts and circumstances which necessitate such action by the concerned zonal/divisional railways have to be tested independently. Notably, the petitioners have not impugned the aforesaid letter dated 21.05.2020 issued by the Railway Board. Instead, the petitioners have sought a writ of mandamus to be issued to the respondents to frame policy in a particular manner. Such a direction cannot be issued under Article 226 of the Constitution. In Rachna v. Union of India", it has been held as under:
"48. Judicial review of a policy decision and to issue mandamus to frame policy in a particular
manner are absolutely different. It is within the realm of the executive to take a policy decision based on the prevailing circumstances for better administration and in meeting out the exigencies but at the same time, it is not within the domain of the courts to legislate. The courts do interpret the laws and in such an interpretation, certain creative process is involved. The courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for. The court is called upon to consider the validity of a policy decision only when a challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution or any other statutory right.
34. In Vivek Krishna v. Union of India, it has been held as under:
"9. Even otherwise, a writ of Mandamus cannot be issued to direct the Respondents to enact law and/or to frame rules even under the wider powers conferred under Article 226 of the Constitution. A Mandamus lies for enforcement of a fundamental right or a statutory right, or the
enforcement of a fundamental duty related to enforcement of a fundamental right or a statutory right. In exceptional cases, a writ may even lie for enforcement of an equitable right. The breach or threat to breach a fundamental, statutory or may be enforceable equitable right, is the sine qua non for issuance of a writ of Mandamus."
35. Once the respondents have disclosed the basis for working out the dies non period, this Court in exercise of the jurisdiction under Article 226 of the Constitution of India cannot get into intricacies of the factual situation subsisting at each railway station to virtually exercise appellate jurisdiction in respect of the extent of extension granted to individual licensees. It is noticed that individual license agreement executed between petitioner and the concerned railway authorities as well as the 2017 Policy (provisions of which are applicable to the licensees with whom the formal execution of the license agreement is yet to take place), contain an arbitration clause if the petitioners are aggrieved on account of insufficiency of extension on account of the Covid-19 situation or if they wish to claim damages on any account, they are at liberty to invoke the arbitration clause and initiate appropriate proceedings. The rights and remedies of the petitioners in this regard are kept open.
36. In the circumstances, this Court finds no merit in the present petitions and the same are accordingly dismissed. However, since the petitioners have been operating the concerned multi-purpose stall for a very long period of time, to enable the petitioners to make a
transition and make alternative vending arrangement/s, this Court considers it apposite to grant a period of 3 months to the petitioners (from the date of the extended license period after taking into account the dies non period; OR from the date of this judgment, whichever is later) to vacate the stalls in questions. It is directed accordingly.
37. The present batch of petitions is disposed of in the above terms.
38. All pending application/s also stands disposed of."
6. However, this court also deems it fit to allow some time to the petitioner to vacate the stalls. The railway authorities shall not take any coercive measures against the petitioner upto September 30, 2024. If the petitioner fails to vacate the stalls within September 30, 2024, the authority shall take possession of the stalls in question.
7. The writ petition is accordingly disposed of.
8. All the parties are directed to act on the basis of the server copy of the order.
(Shampa Sarkar, J.)