Pradeep Kant and Narayan Shukla, JJ.@mdashThis writ petition has been filed filed by a vending contractor, who was given a vending contract at Charbagh Railway Station in the year 1889 and thereafter it was continued from time to time. In the meantime, a policy decision was taken for enhancing the licence fee, which matter became a subject matter of challenge before the High Court, in Writ Petition No. 655 (MB) of 2007, which is still pending. In the said writ petition, an interim order of stay was passed that the petitioner shall be allowed to continue with the vending contract, in case he deposits the licence fee at the old rates, subject to any final assessment being made and the fee being determined accordingly.
2. It appears that the Railways, after the expiry of the term of the licence, took steps for giving contract to various persons by inviting tenders. It is also to be noted that the policy of enhancement of licence fee for vending contract by the Railways became the subject matter of challenge before the Supreme Court and the Supreme Court in the case of N.B. Krishsna Kurup v. Union of India and Ors. (2005) 12 SCC 261, and the SLP was dismissed as withdrawn. On the question that whether existing licence should be continued or not, the apex court directed that till the fresh contracts are given, the existing licences shall be allowed to continue.
3. This is reported in Para 10 of the report, which reads as under:
10. As the writ petitions had been filed by the Indian Railways Caterers Association representing the caterers providing catering services in the Railways, we are not in a position to ascertain the existing arrangement which has been arrived at by the Indian Railways/IRCTC. Mr. Gourab Banerjee, learned Senior Counsel appearing for IRCTC has divided the existing licensees into four categories which are as follows:
Category I
All cases where licences granted to erstwhile licensees have expired/not been renewed, after which fresh licences have been granted by IRCTC through financial bidding process.
Erst while licensees do not/shall not have any right of renewal of licence.
Category II
In cases where licences granted have expired on or before 31-3-2005, but ad hoc extensions have been granted, and process for grant of fresh licences has been initiated by IRCTC.
Such licences/licensees shall be permitted to continue in terms of their ad hoc extension already granted and in any event till 30-6-2005, whichever is later. (Subject to satisfactory performance.)
Note: It is expected that the process of grant of fresh licence shall be completed by 30-6-2005. (A three-month period from today.)
Category III
In cases where licences granted have expired on or before 31-3-2005, but ad hoc extensions have been granted and process for grant of fresh licences has not been initiated by the IRCTC.
Such licences/licensees shall be permitted to continue in terms of their ad hoc extension already granted and in any event till 30-6-2005, whichever is later. (Subject to satisfactory performance.)
Note: This will give a three-month window for finalisation of fresh licences.
Category IV
In cases where licences granted are to expire after 31-3-05 and until such time that the process of grant of licence of fresh licence is completed by IRCTC. (Subject to satisfactory performance.)
4. In pursuance of the said directives of the apex court, the petitioners have been allowed to continue but now it is the case of Indian Railway Catering & Tourism Corporation (IRCTC) that the tenders have been finalised and awarded also but the petitioners are not allowing the new contractors to take charge, on the ground that it is a special minor unit, which to be settled not by adopting the procedure of open auction and not by the IRCTC but it has to be done by the Railways itself.
5. There is an interim order working in favour of the petitioners and against the respondents.
6. Sri Ram Raj appearing for the IRCTC initially disputed the claim of the petitioner to continue with the contract on the ground that firstly they had earlier filed a writ petition challenging the enhancement of licence fee, in which interim order has been passed, which provides that they shall continue only upto the date till the fresh contract is awarded in terms of the judgement of the apex court aforesaid and, secondly, the petitioners did not plead this case in the earlier petition that it was special minor unit and, therefore, contract should not be awarded by the IRCTC.
7. A query was specifically put to the counsel appearing for the Railways, Sri Manik Sinha, as to whether Divisional Railway Manager has categorised and classified the special minor units, as under the terms of the scheme, the spadework has to be done by the ICRTC, who submits the report regarding the special minor units but approval has to be made by the Divisional Railway Manager.
8. Sri Manik Sinha, in response, informed the Court that till date the Divisional Railway Magistrate has not approved the special minor units.
9. Sri Ram Raj also submitted that in the absence of approval by the Divisional Railway Magistrate, it cannot be determined as to which are the special minor units, which are not to be settled by auction.
10. The parties have also suggested and we also agree to the suggestion that since the award of vending contract has to be given by the IRCTC with respect to those units, which do not fall in exceptional clause, namely, special minor units, and the stalls which are provided for edible things and other articles are for the benefit and convenience of the travelling public for getting necessary articles on the railway platform, decision should be taken at the earliest so that fresh contracts are awarded, if they are to be awarded. The delay on the part of the Railways, for any reason whatsoever, would not be in the interest of the travelling public also and would allow such contractors to continue, who otherwise may not be eligible for continuance of their contract.
11. We, therefore, dispose of the writ petition finally with a direction that the Divisional Railway Manager shall look into the matter and shall pass appropriate orders of approval with respect to special minor units, clearly specifying as to which are the special minor units as necessary report has also been furnished by the IRCTC to the railways. This will be done expeditiously, say within a maximum period of two months from the date of receipt of a certified copy of this order.
12. In case it is found that any vending unit or any other unit including that of the petitioner falls within the category of special minor unit, then settlement has to be done in accordance with the policy of the Railways but in case it does not fall in special minor unit, in that case also the settlement shall be done in accordance with the policy, i.e. by inviting tenders or by auction, as may be permissible.
13. Till the aforesaid decision with respect to the petitioners'' vending unit is taken, they shall be allowed to continue to carry on with the contract, subject to any decision, which may be taken by the Divisional Railway Manager.
14. The writ petition is disposed of accordingly.
