AI Structured Summary
Not yet generated for this judgment
Judgment
This writ petition has been listed under the heading ‘To Be Mentioned’ at instance of petitioners on citing urgency. Affidavit of service is filed.
Mr. Basu, learned senior advocate appears on behalf of petitioners and submits, notice dated 25th July, 2018 was served upon his client, oil depot
holder at Goods Shed Road Burdwan, in railway property. Contents of the notice are reproduced below: “It appears from the records that you have
not paid license fee since October 1987 and that you don’t have a valid license since 01.04.1989 for the Railway plot at Barddhaman Railway
station. You are therefore directed to showcause within three days as to why proceedings in accordance with law shall not be initiated against you as
above.â€
On 28th July, 2018 railway authorities put padlock in the goods shed. He seeks interim protection on challenge to said notice and act of railway
authorities of padlocking and sealing goods shed of his client by restoration of status quo ante. He submits, his client has a prima facie case. Tender of
licence fee was made enclosing cheque in letter dated 26th November, 1987. That cheque was returned by the Authority under cover of letter dated
4th December, 1987, contents of which are reproduced below:-
“The cheque No.781369 dt. 26.11.87 drawn in favour of F.A. and CAO/E.Rly/Calcutta is returned herewith since we are unable to accept in view
of the C.O. No.8090(W) of 1987 pending before High Court. I am afraid if I accept the same without the direction of hon’ble court it may
prejudice the interest of the administration.â€
Said writ petition stood dismissed. His client had preferred appeal against dismissal, which was disposed of by order dated 14th June, 2018. Division
Bench gave liberty to his client to file fresh writ on self-same cause of action as Appeal Court had not gone into merits of the matter. It is noticed said
Court also observed it was up to the appellant to convince Writ Court there is merit in the matter so as to persuade the Writ Court to admit such writ
after long delay. Mr. Basu continues, his clients, at that juncture, were confronted by State in denying them licence to continue as distributor of
superior kerosene oil (SKO). This being present threat to livelihood of his clients, same was challenged by W.P. 11385 (W) of 2018 in which railways
were parties. Said writ petition was heard and disposed of by order dated 19th July, 2018, operative part of which is reproduced below:
“In view of the observations recorded hereinabove, the impugned letter dated July 3, 2018 is quashed and set aside. The consequential steps taken
on the basis thereof being order dated July 6, 2018 being a dependent one cannot stand independently and is also quashed and set aside. However, it is
open to both the State respondents as well as Railways to initiate a proceeding, if not already initiated, as permissible under the relevant law and none
of the observations recorded hereinabove shall have persuasive value on the merit thereof.â€
It is only when petitioners were successful in removing obstacle to their livelihood that impugned notice was served and action taken purportedly
pursuant thereto. He submits, section 147 in Railways Act, 1989 does not authorize railways to have done what they did. He hands up Banker’s
cheque for Rs.66,298.68, which he submits, is licence fees from 1st October, 1987 till 31st March, 2019 being aggregate of monthly licence fees at
rate last paid, to show bona fide of his clients.
Mr. Chakraborty, learned senior advocate appears on behalf of railways. He submits, petitioners have refused to leave railway property. In exercise
of power granted to railway servants, petitioners’ occupation has been removed therefrom by putting padlock and sealing of the goods shed. He
hands up copy of letter dated 30th July, 2018 addressed by Senior Divisional Commercial Manager, Eastern Railway Howrah Division to Hindustan
Petroleum Corporation saying as follows:-
“Further to this office letter of even no. under reference, it is intimated that the possession of Railway Commercial plot at Barddhaman Railway
Station, occupied by M/s. Kedarnath Agarwalla & Brothers, has been taken over by Railway administration on 28.07.2018. This is for your kind
information and necessary action please.â€
He submits, there should be no interference, interim or otherwise. He relies on judgment of Supreme Court in Mandali Ranganna and Others versus T.
Ramachandra and others reported in (2008) 11 SCC 1, to paragraphs 21 and 22 therein as are reproduced below:
“21.While considering an application for grant of injunction, the court will not only take into consideration the basic elements in relation thereto viz.
existence of a prima facie case, balance of convenience and irreparable injury, it must also take into consideration the conduct of the parties.
Grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed another to deal with the properties exclusively,
ordinarily would not be entitled to an order of injunction. The court will not interfere only because the property is a very valuable one. We are not,
however, oblivious of the fact that grant or refusal of injunction has serious consequence depending upon the nature thereof. The courts dealing with
such matters must make all endeavours to protect the interest of the parties. For the said purpose, application of mind on the part of the courts is
imperative. Contentions raised by the parties must be determined objectively.â€
He also relies on order dated 4th January, 2017 made by a Division Bench of this Court in A.P.O.T. 109 of 2016 (Eastern Railway versus Lafarge
India Private Limited), where controversy between parties arose on railways issuing order directing tenant to furnish bank guarantee for sum of Rs.25
lakhs on rent enhanced. He relies on extract below:
“For the reasons aforesaid, the order impugned cannot be sustained and the same is set aside. The entire enhanced payment on account of rent
should be deposited by the respondent with the appropriate authority of the railways within a period of four weeks from date. In other words, there
will be an unconditional injunction restraining the railways from removing the respondent from the premises in question for a period of four weeks. The
railways will be at liberty to take appropriate steps in accordance with law, including for the immediate forcible eviction of the respondent, after four
weeks from date if the entire dues on account of rent as demanded are not tendered by then.â€
He submits, there was confirmation by Division Bench regarding power of railways to forcibly evict occupier of railway premises. He points out, by
letter dated 16th May, 1986 (at page 66) after licence had been terminated, 18 months time, on payment of annual occupation fees in advance, was
granted to petitioner to remove storage tank and find alternative site. His further submission is, it is settled that challenge to show cause notice should
result in a direction for answer thereto.
The writ petition has been moved before this Bench on special assignment since regular Bench is not available. Prima facie, facts are that up to 31st
March, 1989 petitioner was on extension pursuant to termination of licence. In extended period petitioner approached this Court by C.O. 8090 (W) of
1987. Tender of licence fees on 26th November, 1987 was not accepted by reason of pendency of said writ petition. That writ petition came to be
finally dismissed in appeal on 14th June, 2018.
Petitioner instead of filing another writ petition on self-same cause of action moved against other authorities on refusal of them to continue with
petitioner as distributor of SKO. Railways were party in said other writ petition which came to be disposed of on 19th July, 2018. It is immediately
after said order dated 19th July, 2018, impugned show cause notice was issued. Facts are also that petitioner did not reply to impugned notice.
Submission has been made that 28th July, 2018 was a Saturday and office of Senior Divisional Commercial Manager, Eastern Railway was closed and
in any event, time given in impugned show cause notice was too short. Counter-submission made was no extension was sought for. Fact is also that
railways have proceeded further.
Section 147 in Railways Act provides for, inter alia, person refusing to leave part of a railway to be removed from the railway by any railway servant.
Definition sections 2(31) and 2(32-A) give meanings of ‘railway’ and ‘railway land’. Occupation of petitioner, as appears from impugned
notice, is in respect of oil depot. Prima facie appreciation is, the depot is situate in railway land. When legislature inserted meaning of ‘railway
land’ by amendment, corresponding amendment was not made to section 147. This and in the circumstances of railways having suffered
possession of petitioner since 1st April, 1989 till 28th July, 2018, are reasons for this Court to be inclined to pass interim order of status quo for parties
to be heard and challenge in the writ petition decided.
As an interim measure and without prejudice to rights and contentions of parties this Court directs maintenance of status quo as on date in respect of
oil depot being subject matter of impugned notice for limited period. Banker’s cheque for Rs. 66,298.68 is made over to Mr. Chakraborty with
direction for encashment, appropriation towards occupation charges without determining rate of it and without creating any equity in favour of
petitioners. All points are left open to be decided.
This Court is inclined to observe that petitioners will have to satisfy further on bona fide regarding payment of occupation charges, by paying at rate as
may be directed for the period in which goods depot stood occupied till 28th July, 2018, for the same to be imposed on petitioners as condition
precedent for further interim order of restoring status quo ante, if prayed for. Mr. Chakraborty submits, there be direction for affidavits since
documents are required to be brought on record by his client. He wants three weeks time. Affidavit-in-opposition by three weeks, reply, if any, a week
thereafter. Parties will be at liberty to mention for listing upon completion of affidavits. Status quo directed will operate till 17th September, 2018. File
be sent back to regular Bench.