K U Umesh and 6 Ors v. The Union of India and 6 Ors

PageoNo.#o1/5 GAHC010043662023 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWA/90/2023ooooooooo KoUoUMESHoANDo6oORS.o S/O-oLATEoK.N.oUNNI,oRANGAPARAoRAILWAYoSTATION,oDIST-oSONITPUR,o ASSAM,oPIN-o784505 2:oBINDESHWARoYADAV oSONoOFoGUNESHWARoYADAV oRANGAPARAoRAILWAYoSTATION oDIST-oSONITPUR oASSAM oPIN-o784505. 3:oBHOLAoYADAV oS/OoLATEoDEVNANDANoYADAV oRANGAPARAoRAILWAYoSTATION oDIST-oSONITPUR oASSAM oPIN-o784505. 4:oDEEPAKoSAH oSONoOFoNIRDHANoSAH oRANGAPARAoRAILWAYoSTATION oDIST-oSONITPUR oASSAM oPIN-o784505. 5:oOMoPRAKASHoSAH oSONoOFoLATEoRAMoAYODHYAoSAH oRANGAPARAoRAILWAYoSTATION oDIST-oSONITPUR oASSAM oPIN-o784505. 6:oVINODoKUMARoPANDEY oSONoOFoSRIoR.S.oPANDEY PageoNo.#o2/5 oWARDoNO.o2 oRANGAPARAoRAILWAYoSTATION oDIST-oSONITPUR oASSAM,ooPIN-o784505. 7:oBIMALoGHOSH oRESIDENToOFoWARDoNO.o4 oRANGAPARA oDIST-oSONITPUR oASSAM,ooPIN-o784505o VERSUSo THEoUNIONoOFoINDIAoANDo6oORS.o REP.oBYoTHEoSECRETARYoTOoTHEoGOVT.oOFoINDIA,oMINISTRYoOFo RAILWAYS,oRAILoBHAWAN,oNEWoDELHI-o110001. 2:GENERALoMANAGER oN.F.oRAILWAY oMALIGAON,ooGUWAHATI-11. 3:INDIANoRAILWAYoCATERINGoANDoTOURISMoCORPORATIONoLTD. oNEWoDELHI oINDIA.oREPRESENTEDoBYoTHEoCHAIRMANoANDoMANAGINGoDIRECTOR oREGIONALoOFFICEo4-D oMANDOVIoAPARTMENT oAMBARI oG.N.B.oROAD,ooGUWAHATI-o781001. 4:THEoCHAIRMANoANDoMANAGINGoDIRECTOR oINDIANoRAILWAYoCATERINGoANDoTOURISMoCORPORATIONoLTD. oNEWoDELHI oINDIA oREGIONALoOFFICEo4-DoMANDOVIoAPARTMENT oAMBARI oG.N.B.oROAD,ooGUWAHATI-o781001. 5:THEoDIVISIONALoRAILWAYoMANAGERo(C) oN.F.oRAILWAY oRANGIAoDIVISION oRANGIA oDIST-oKAMRUP,ooASSAM. 6:THEoCHIEFoCOMMERCIALoMANAGER oN.F.oRAILWAY oMALIGAON oGUWAHATI-11 oDIST.-oKAMRUP(M),ooASSAM. Page No.# 3/5 7:THE DIVISIONAL COMMERCIAL MANAGER RANGIA DIVISION RANGIA DIST.- KAMRUP ASSAM. 8:SUSHIL KUMAR SAH S/O-LATE RAGHU NATH SAH RESIDENT OF WARD NO. 2 RANGAPARA RAILWAY STATION DIST-SONITPUR ASSAM PIN-784505 For the appellants : Mr. S. Banik, Advocate

For respondent Nos.1, 2, 5, 6 & 7 : Mr. R.K.D. Choudhury, Deputy Solicitor General of India For respondent Nos.3 & 4 : Mr. G.N. Sahewalla,

Senior Advocate

Mr. N. Anix Singh, Advocate

– B E F O R E – HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE KARDAK ETE

13-03-2023

Heard learned counsel for the parties. Mr. S. Banik, learned counsel representing the appellants submits that the controversy raised in this appeal stands covered by the order dated 10.03.2023, passed by the Coordinate Bench of this Court in WA 87/2023 and, thus, this writ appeal 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 Nos.3 and 4 do not oppose the submission of Mr. Banik. Page No.# 4/5 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 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 Page No.# 5/5 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.

¶16All 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 this writ appeal is 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