Railway Platform Tea Stall Tendered Licensee Progressive Welfare Society v. Union of India

1. The petitioner claims to be a society registered under the Madhya Pradesh Society Registration Act 1973. Members of the petitioner/Society are stated to be actively engaged in the business of catering, i.e. selling food and beverages through units/tea stalls at various railway stations across the country. It is averred that the respondent, through its Zonal Offices, grants licenses to run trolleys, stalls and other catering units for selling food and 2022:DHC:3678 beverages to travelling passengers of railway stations as well as in trains and members of the petitioner/Society have also been granted such licenses by the respective zonal division of the respondent.

2. The petitioner/Society had earlier approached this Court by way of W.P.(C) 5722/2021, wherein it had impugned letter dated 01.06.2020 issued by the Director (Tourism and Catering) Railway Board, Ministry of Railways, Government of India. The said writ petition was disposed of on 02.06.2021 with a direction to Director (Tourism and Catering) Railway Board, Ministry of Railways, Government of India to treat the petition as a representation. It is apparent that the Railway Board, Ministry of Railways after considering the petitioner's representation and grant of personal hearing has passed a speaking order on 27.07.2021, which has been impugned in the present petition.

3. Learned counsel for the petitioner has submitted that on account of financial and operational difficulties faced by the members of the petitioner/Society due to COVID-19 protocols put in place by the Government of India/State Government, representations were made vide letters dated 24.05.2020 and 08.06.2020 addressed to DRM (C), West Central Railway, Bhopal/The Sr. DCM, West Central Railway, Bhopal.

4. Learned counsel for the petitioner has further submitted that although initially the Railway Board issued letter dated 01.06.2020 on account of various references received from zonal railways regarding review/revision of license fee for catering and vending units, it advised the zonal railways to take necessary action in terms of Master License Agreement of the SBD which provided that any change or modification in the Agreement/Annexures can be made only by written amendment to be mutually signed by the Parties. It is contended that despite advisory dated 21.05.2020 issued by the Railway Board to the zonal railways to implement the Force Majeure Clause in respect of static catering and vending units, followed by above mentioned letter dated 01.06.2020, the Board vide the impugned speaking order has left the quantum of license fee relief to be calculated by zonal railways based on ‘passenger footfall’ in respect of individual station/platform, instead of granting a uniform license fee relief or basing the same on the ‘passenger footfall’ of individual platforms.

5. The petition has been contested on behalf of the respondent, which has raised objections as to the maintainability of the present petition as well as the territorial jurisdiction of this Court. The impugned speaking order is sought to be justified on the basis that no uniform relief for pro rata license fee can be granted as the impact of COVID-19 has not been the same in all 18 zones of Indian Railways. Further, it is contended that the respondent has rightly advised zonal railways to consider the 'passenger footfall' as the appropriate criteria while considering the quantum of license fee relief. In this regard, it is also submitted that the 'passenger footfall' data for reserved passenger/unreserved passenger/platform ticket passenger is maintained by ‘CRIS’, an independent organization of Ministry of Railways. As such, respective zonal railways would be in the best position to arrive at the relevant calculations.

6. Reference has been made to the following paragraphs of the short affidavit filed on behalf of the respondent:- "7. In order to illustrate the said facts the deponent is placing on record the calculations of footfall data of New Delhi Railway Station during the month of June’ 2021 as under:

┌────────────────────────────────────────────────────────────────────────────┐
│         Sl.No.      Station Passenger     Passenger      %      Footfall   │
│                             footfall in   footfall in    during     the    │
│                             June’         June’          June’ 2021 as     │
│                             2019(which    2021(which     compared with     │
│                             includes      includes       June’ 2019        │
│                             Reserved,     Reserved,                        │
│                             Unreserved    Unreserved                       │
│                             & Platform    & Platform                       │
│                             Ticket        Ticket                           │
│                             Passengers)   Passengers)                      │
├────────────────────────────────────────────────────────────────────────────┤
│         1.          New       7521659       2871375          38.17%        │
│                     Delhi                                                  │
│ 7.     At this stage, learned counsel for the petitioner has shown an      │
└────────────────────────────────────────────────────────────────────────────┘

9. The petitioner association has contended that all Zones are giving relief arbitrarily without following the Railway Board's instruction dated 01.06.20 i.e. ranging from 0% to 60 %. It was submitted before Hon'ble court that as per Board's instructions, Zonal Railways should with due diligence decide upon the quantum of relief based on the passenger footfall in respect of individual station/ platform. In this regard, it is stated that the intent behind providing relief in the license fee was to enable licensees to reopen their catering units. Since the license fee is linked to volume of traffic, and it is understood that restoration of passenger traffic may vary station to station, therefore it was left to the Zonal Railway to determine the license fee. Each station/platform may have seen passenger footfall change differently depending upon traffic pattern, hence giving the same relief for all catering units would be highly discriminatory in nature.

10. It needs to be understood here that each of the Zonal Railways is an independent Administrative unit of Indian Railways just like states of Union of India. These Zonal Railways have independent power to execute administrative decisions based on Schedule of Power (SOP) and depending upon the policies brought out by the Ministry of Railways. As such the Zonal Railway is the competent authority to decide the quantum of relief as directed by the Railway Board. Each zone, taking account of passenger footfall, has arrived at a certain license fee keeping their local conditions in mind including the stoppages of trains etc. Hence a uniform application of relief in license fee will not serve the purpose and will in fact contravene to the whole purpose of providing relief.” (emphasis added)

9. After making aforesaid observations, the following directions have been passed:- “16. In view of above, following orders are issued in reference to the prayers made in the W.P.:- In reference to Prayer (i), (ii):- The review of license fee by Zonal Railways is in accordance with the delegation given by Railway Board vide letter dated 01.06.2020. Clause 12.[1] of Catering Policy is not applicable to this issue for reasons expounded in item no. 4-6 above. Further, Zonal Railways have been advised to expedite implementation at the earliest. In reference to Prayer (iii):- Dies non will be applicable only in cases of non-operation of the unit, therefore no license fee to be paid. Contract may be extended as per the period of dies non. This is in accordance with instructions dated 21.5.2020 of the Board. Treating the operational period of stall as dies non is not envisaged within the scope of these instructions. In reference to prayer (iv):- There can be no uniformity in license fee relief granted on account of pandemic across all Zones, since relief is tied to reduction in passenger footfall which would vary station to station depending upon the quantum of restoration of traffic at that particular station. Hence, Railway Board vide letter dated 01.06.20 has delegated the power to decide upon the quantum of relief to Zonal Railways to be done with due diligence based on the passenger footfall in respect of individual station/platform. Regarding applicability of relief to new stalls/contracts that came into operation only post 22.3.2020, the Board has already issued clarification vide Board's letter no.2020/Catering/600/03 dated 14.7.2021. No coercive action is proposed as such no orders are required to be passed in reference to prayer (v) & (vi).” (emphasis added)

10. A plain reading of the impugned speaking order would show that ‘passenger footfall’ is linked to sales assessment and sales turnover is based on following factors - (i) category of station, (ii) type of licence, (iii) number of originating passengers, (iv) number of trains stopping (day & night), (v) duration of stoppages (vi) location of the unit at the station, (vii) approximate licence fees of a similar type of unit at a similar category of station in proximity. Thus, passenger footfall has direct relation to decrease in number of trains and traffic volume.

11. Based on the observations recorded in the impugned speaking order, this Court is of the opinion that the respondent has rightly denied uniformity in license fee relief on account of the Covid-19 pandemic. Since the impact of Covid-19 has not been uniform across 18 zones, the respective zonal railway would be the appropriate authority to decide the quantum of relief based on 'passenger footfall' in respect of individual station/platform.

12. Admittedly, the respective zonal railways have not taken any decision yet. Accordingly, the petitioner's apprehension, as recorded above, is premature.

13. Keeping in view the above, the writ petition is disposed of alongwith the pending applications with a direction to the respondent to ensure that the process of calculation of quantum of relief to be granted is expedited. It is clarified that all other rights and contentions of the parties raised before this Court are left open.

JUDGE SEPTEMBER 1, 2022 na