N F Railway v. The Union of India and 2 Ors

ORDER Date : 13-03-2023 Heard the learned counsels for the parties. Mr. D. Mazumdar, learned senior counsel representing the appellants submits that Page No.# 3/4 the controversy raised in these appeals stands covered by the order dated 10.03.2023, passed by the Coordinate Bench of this Court in WA 87/2023 and, thus, these two appeals may also be decided in the light of the aforesaid order. Mr. R.K.D. Choudhury, learned Deputy Solicitor General of India, and Mr. G. N. Sahewalla, learned senior counsel appearing for respondent no. 3 do not oppose the submission of Mr. Mazumdar. The above-referred WA 87/2023 was preferred by the appellants against an order dated 23.01.2023 passed by the learned Single Bench in WP(C) 7339/2018. WA 87/2023 was disposed of by the Coordinate Bench of this Court in the following terms: "8. Although Mr. RKD Choudhury, learned Deputy SGI raises an objection to such submission of Mr. D Mazumdar, learned senior counsel for the appellants, but on principle we see no reason as to why the said submission should not be accepted in law. We take note of a particular factual aspect that although the licenses of the appellants may not have been renewed or extended, but the respondents in the railway authorities continued to accept the vending fees at the existing rate on regular basis without raising any objection meaning thereby that the appellants continued with their vending business with the full knowledge of the respondent authorities inasmuch as, the vending fees at the existing rate were accepted from time to time as required.

¶9Mr. RKD Choudhury, learned Deputy SGI states that although the said acceptance was with the complete knowledge of the respondent authorities in the railways, but it was done pursuant to the interim orders of the Court.

¶10We are unable to accept the said submission for the reason that all that the interim orders provided was that as long as the appellants are required to pay the vend fees, they would be paying it in the interim at the existing rate, but the interim order did not preclude the respondent authorities in any manner to act upon their discretion not to extend the licenses and also not to accept the vend fees. All that the interim order provided was that the vend fees should be accepted at the existing rate and not at the enhanced rate. Although a stand was taken in the affidavit by the respondent railway authorities that because of the pendency of the Court proceeding the licenses could not be renewed or extended, but the said stand would also be unacceptable inasmuch as, there was no restrain order in any manner from the Court during the proceeding disentitling the respondent authorities from extending the licenses.

¶11Be that as it may, the factual aspect that remains is that the appellants continued to pay the vend fees at the existing rate and the respondent authorities continued to accept the same leading to an equitable situation of there being an implied extension of the licenses, as no pro active measure was Page No.# 4/4 taken not to allow the appellants to continue with the vending business.

¶12Another aspect of dismissal of the WP(C) No. 7339/2018 and other writ petitions would be that all the appellants would now be required to pay their vend fees at the enhanced rate.

¶13Mr. D Mazumdar, learned senior counsel for the appellants candidly makes a categorical statement that all the appellants are agreeable to pay the vend fees at the enhanced rate for the entire period and for the purpose are ready and agreeable to pay the difference between enhanced rate and the existing rate which they have already paid.

¶14If the appellants pay all the arrear amounts at the enhanced rate being the difference between the enhanced rate and the existing rate, the situation as of today would be as if the appellants had never approached the Court, there was no interim order and they have readily agreed to pay the respondents the entire dues at the enhanced rate and they have actually paid it. If that is the situation, we now leave it to the respondent authorities in the respondent railways to take their decision as to what they would have done had the appellants paid the vend fee for the entire period at the enhanced rate without raising any dispute and accordingly we also leave it at their discretion to do the needful as they would have done otherwise.

¶15In doing so, the appellants be also given an opportunity of hearing to arrive at any effective reasoned decision between the parties. Till any such reasoned decision is arrived at, the appellants be allowed to continue with the vending business, but with a clarification that the payments of the vend fees would be at the applicable enhanced rate for the interim period 16. All other terms of the judgment and order dated 23.01.2023 in WP(C) No. 7339/2018 shall remain as it is provided therein, except for the modification/clarification as indicated above. The writ appeal stands partly allowed as indicated above." In view of the above submissions noted hereinabove, without recording separate reasons these two writ appeals are partly allowed in the light of the order dated

10.03.2023 passed by the Coordinate Bench of this Court in WA 87/2023 but with the modifications as indicated in the judgment and order dated 23.01.2023 passed by the learned Single Bench in WP(C) 7339/2018.

JUDGE CHIEF JUSTICE Comparing Assistant

Page No.# 1/4 GAHC010030652023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WA/54/2023 N F RAILWAY VENDING AND CATERING CONTRACTORS ASSOCIATION, LUMDING DIVISION, REP. BY ITS SECRETARY RAKESH BARUA, AGED ABOUT 63 YEARS, S/O LATE NALINI RANJAN BARUA, R/O LUMDING, P.O. AND P.S.- LUMDING, DIST.- NAGAON, ASSAM. VERSUS THE UNION OF INDIA AND 2 ORS. REP. BY THE GENERAL MANAGER, N.F. RAILWAY, MALIGAON, GUWAHATI, ASSAM. 2:ASSISTANT COMMERCIAL MANAGER NORTH EAST FRONTIER RAILWAY GHY-01. 3:DIVISIONAL COMMERCIAL MANAGER NORTH EAST FRONTIER RAILWAY GHY-01 Advocate for the Petitioner : MR T H HAZARIKA Advocate for the Respondent : DY.S.G.I. Linked Case : WA/47/2023 N F RAILWAY VENDING AND CATERING CONTRACTORS ASSOCIATION LUMDING DIVISION REP. BY ITS SECRETARY SRI RAKESH BARUA S/O. LT. NALINI RANJAN BARUA Page No.# 2/4 R/O. THANA ROAD LUMDING BAZAR P.O. LUMDING DIST. NAGAON ASSAM PIN-782447. VERSUS THE UNION OF INDIA AND 3 ORS REP. BY THE GENERAL MANAGER N.F. RAILWAY MALIGAON GUWAHATI ASSAM. 2:THE DIRECTOR TOURISM AND CATERING BOARD RAILWAY BOARD NEW DELHI INDIA. 3:THE CHAIRMAN and MANAGING DIRECTOR INDIAN RAILWAY CATERING AND TOURISM CORPORATION LTD. NEW DELHI INDIA. 4:DIVISIONAL RAILWAY MANAGER C N.F. RAILWAY LUMDING DIVISION LUMDING DIST. NAGAON ASSAM. ------------ Advocate for : MR T H HAZARIKA Advocate for : DY.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS BEFORE HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE KARDAK ETE